JUDGMENT OF THE COURT (Grand Chamber)
1 December 2015 (*)
(Actions for annulment — Regulation (EU) No 1243/2012 — Choice of legal basis — Article 43(2) and (3) TFEU — Policy decision — Long-term plan for cod stocks)
In Joined Cases C‑124/13 and C‑125/13,
ACTIONS for annulment under Article 263 TFEU, brought on 14 March 2013,
European Parliament, represented by I. Liukkonen, L. Knudsen and R. Kaškina, acting as Agents, with an address for service in Luxembourg (C‑124/13),
European Commission, represented by A. Bouquet, K. Banks and A. Szmytkowska, acting as Agents, with an address for service in Luxembourg (C‑125/13),
applicants,
v
Council of the European Union, represented by E. Sitbon, A. de Gregorio Merino and A. Westerhof Löfflerová, acting as Agents, with an address for service in Luxembourg,
defendant,
supported by:
Kingdom of Spain, represented by M. Sampol Pucurull and N. Díaz Abad, acting as Agents,
French Republic, represented by G. de Bergues, D. Colas, R. Coesme and C. Candat, acting as Agents,
Republic of Poland, represented by B. Majczyna, M. Nowacki and A. Miłkowska, acting as Agents,
interveners,
THE COURT (Grand Chamber),
composed of K. Lenaerts, President, A. Tizzano (Rapporteur), Vice-President, R. Silva de Lapuerta, T. von Danwitz, J.L. da Cruz Vilaça, A. Arabadjiev and F. Biltgen, Presidents of Chambers, J. Malenovský, E. Levits, J.-C. Bonichot, C.G. Fernlund, C. Vajda and S. Rodin, Judges,
Advocate General: N. Wahl,
Registrar: L. Hewlett, Principal Administrator,
having regard to the written procedure and further to the hearing on 24 February 2015,
after hearing the Opinion of the Advocate General at the sitting on 21 May 2015,
gives the following
Judgment
1 By their applications, the European Parliament and the European Commission seek the annulment of Council Regulation (EU) No 1243/2012 of 19 December 2012 amending Regulation (EC) No 1342/2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks (OJ 2012 L 352, p. 10; ‘the contested regulation’).
Legal context
Regulation (EC) No 2371/2002
2 Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L 358, p. 59; ‘the basic regulation’) was repealed by Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ 2013 L 354, p. 22).
3 Recitals 6 and 7 in the preamble to the basic regulation read as follows:
‘(6) The objective of sustainable exploitation will be more effectively achieved through a multiannual approach to fisheries management, involving multiannual management plans for stocks at or within safe biological limits. For stocks outside safe biological limits, the adoption of multiannual recovery plans is an absolute priority. In line with scientific advice, substantial reductions in fishing effort may be required for these stocks.
(7) These multiannual plans should establish targets for sustainable exploitation of the stocks concerned, contain harvesting rules laying down the manner in which annual catch and/or fishing effort limits are to be calculated and provide for other specific management measures, taking account also of the effect on other species.’
4 Article 1 of the basic regulation defined the scope of the Common Fisheries Policy (CFP) as follows:
‘1. The [CFP] shall cover conservation, management and exploitation of living aquatic resources, aquaculture, and the processing and marketing of fishery and aquaculture products where such activities are practised on the territory of Member States or in Community waters or by Community fishing vessels or, without prejudice to the primary responsibility of the flag State, nationals of Member States.
2. The [CFP] shall provide for coherent measures concerning:
(a) conservation, management and exploitation of living aquatic resources,
...’
5 The objectives of the CFP were described as follows in Article 2(1) of the basic regulation:
‘The [CFP] shall ensure exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions.
For this purpose, the Community shall apply the precautionary approach in taking measures designed to protect and conserve living aquatic resources, to provide for their sustainable exploitation and to minimise the impact of fishing activities on marine eco-systems. It shall aim at a progressive implementation of an eco-system-based approach to fisheries management. ...’
6 Article 4 of the basic regulation, which laid down the types of measures to be taken for achieving the objective of sustainability, made the following provision in paragraph 2:
‘[The measures] may … include measures for each stock or group of stocks to limit fishing mortality and the environmental impact of fishing activities by:
(a) adopting recovery plans under Article 5;
(b) adopting management plans under Article 6;
...’
Regulation (EC) No 1342/2008
7 Council Regulation (EC) No 1342/2008 of 18 December 2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks and repealing Regulation (EC) No 423/2004 (OJ 2008 L 348, p. 20; corrigendum OJ 2010 L 231, p. 6) was adopted by the Council of the European Union on the basis of a proposal from the Commission and after consultation of the Parliament in accordance with Article 37 of the EC Treaty.
8 Recitals 7 and 9 in the preamble to Regulation No 1342/2008 are worded as follows:
‘(7) In order to ensure the attainment of fishing mortality targets, and to contribute to minimising discards, fishing opportunities in terms of fishing effort need also to be fixed at levels which are consistent with the multiannual strategy. ...
...
(9) The establishment and allocation of catch limits, the fixing of the minimum and precautionary levels of stocks and of the level of fishing mortality rates, as well as the maximum allowable fishing effort for each effort group by Member State and the exclusion of certain groups of vessels from the effort regime laid down in this Regulation are measures of prime importance in the [CFP]. ...’
9 Article 5 of Regulation No 1342/2008 describes the objective of the plan for the recovery of cod stocks, which entails ensuring ‘the sustainable exploitation of [those] stocks on the basis of maximum sustainable yield’. In accordance with paragraphs 2 and 3 of Article 5, that objective must be attained while maintaining a certain fishing mortality on cod.
10 In order to achieve that objective, Regulation No 1342/2008 lays down, in Articles 6 to 10, specific rules for the annual setting of total allowable catches (TACs) and, in Articles 11 to 17, rules on the fishing effort limitation.
11 In particular, Regulation No 1342/2008, prior to its amendment by the contested regulation, laid down, in Article 9, detailed rules for setting the TACs in poor data conditions, where the rules established in Articles 7 and 8 for the setting of the TACs could not be applied because of a lack of sufficiently accurate and representative information. It also defined, in Article 12, the method for calculating the maximum allowable fishing effort.
The contested regulation
12 Recitals 3 to 5 in the preamble to the contested regulation read as follows:
‘(3) The scientific evaluation of the performance of the Cod Plan carried out by the Scientific, Technical and Economic Committee for Fisheries (STECF) has shown a number of problems with the design and functioning of the Cod Plan. Without putting into question the objectives of the Cod Plan, the STECF concluded that those objectives are unlikely to be achieved within a time frame that would be in compliance with the conclusions of the World Summit on Sustainable Development held in Johannesburg in 2002 unless the flaws in the design of the Cod Plan, relating, inter alia, to the application of its Articles 9 and 12, are corrected.
(4) ... Although the application of the automatic yearly TAC reductions of 25% had been intended to apply in exceptional circumstances only, from 2009 until 2012, it became the rule. Consequently, since the entry into force of the Cod Plan, the TACs for the areas concerned have been reduced significantly and further automatic cuts would lead to the effective closure of the cod fisheries in the areas concerned. The scientific evaluation carried out by the STECF suggests that, for the purpose of attaining the objectives of the Cod Plan, it would be more appropriate in some cases to allow more flexibility to reflect the scientific advice on a case by case basis. As part of that flexibility, it is, therefore, appropriate to allow suspension, under certain conditions, of the annual reduction in the TACs or an alternative TAC level to be set, without jeopardising the objectives of the Cod Plan.
(5) ... allowable fishing effort has been reduced by 25% per year from 2009 to 2012 in the areas to which Article 9 has applied and significantly reduced in the areas to which Article 8 has applied. ... The continued application of the automatic annual effort reductions would not lead to the achievement of the objectives of the Cod Plan, but would have a significant economic and social impact on the fleet segments that use the same gears, but that fish principally for species other than cod. It is, therefore, appropriate to enable a more flexible approach that would allow suspension of the automatic annual reduction in the fishing effort, without jeopardising the objectives of the Cod Plan.’
13 Recital 8 of the contested regulation states the reasons why the regulation, which amended Articles 9 and 12 of Regulation No 1342/2008, was adopted on the basis of Article 43(3) TFEU rather than on the basis of Article 43(2) TFEU.
14 Recital 8 is worded as follows:
‘Amendments to Articles 9 and 12 establish detailed specific rules for the purpose of fixing fishing opportunities expressed by means of the TAC and of fishing effort limitations. They adapt the currently applicable rules for the fixing of fishing opportunities without amending the objective of the Cod Plan. They are, consequently, measures on the fixing and allocation of the TACs and fishing effort limitations and cannot be considered either as provisions establishing the common organisation of fisheries markets, or as other provisions necessary for the pursuit of the objectives of the [CFP].’
15 Point (1) of Article 1 of the contested regulation, which inserts a replacement Article 9 into Regulation No 1342/2008, lays down a special procedure for setting the TACs, under which:
‘1. Where there is insufficient information to set the TACs in accordance with Article 7, the TACs for cod stocks in the Kattegat, the west of Scotland and the Irish Sea shall be set at a level indicated by scientific advice. However, if the level indicated by scientific advice is more than 20% greater than the TACs in the previous year, they shall be set at a level 20% greater than the TACs in the previous year, or if the level indicated by scientific advice is more than 20% less than the TACs in the previous year they shall be set at a level 20% less than the TACs in the previous year.
2. By way of derogation from paragraph 1, where scientific advice indicates that there should be no directed fisheries and that:
(a) bycatch should be minimised or reduced to the lowest possible level; and/or
(b) the catches of cod should be reduced to the lowest possible level;
the Council may decide not to apply an annual adjustment to the TAC in the subsequent year or in subsequent years, on condition that the TAC set is for bycatch only.
3. Where there is insufficient information to set the TACs in accordance with Article 8, the TACs for the cod stock in the North Sea, the Skagerrak and the eastern Channel shall be set by applying paragraphs 1 and 2 of this Article mutatis mutandis, unless consultations with Norway result in a different level of the TAC.
4. When scientific advice indicates that the application of the rules set out in Article 8(1) to (4) is not appropriate to meet the objectives of the plan, the Council may, notwithstanding the abovementioned provisions, decide on an alternative TAC level.’
16 Point (2)(a) of Article 1 of the contested regulation is worded as follows:
‘[Article 12(4) of Regulation No 1342/2008] is replaced by the following:
“4. For aggregated effort groups where the percentage cumulative catch calculated according to paragraph 3(d) is equal to or exceeds 20%, annual adjustments shall apply. The maximum allowable fishing effort of the groups concerned shall be calculated as follows:
(a) where Articles 7 or 8 apply, by applying to the baseline the same percentage adjustment as that set out in those Articles for fishing mortality;
(b) where Article 9 applies, by applying the same percentage adjustment in fishing effort as the adjustment of the TAC compared with the previous year.”’
17 Point (2)(b) of Article 1 of the contested regulation, which adds paragraph 6 to Article 12 of Regulation No 1342/2008, reads as follows:
‘[T]he following paragraph is added:
“6. By way of derogation from paragraph 4, the Council may, where the maximum allowable fishing effort has been reduced for four consecutive years, decide not to apply an annual adjustment to the maximum allowable fishing effort in the subsequent year or in subsequent years.”’
Background to the dispute
18 On 12 September 2012, the Commission submitted a proposal for a Regulation of the Parliament and of the Council amending Regulation No 1342/2008 (COM(2012) 498 final), with the aim of improving and clarifying the provisions of the latter regulation.
19 That proposal for a regulation was based on Article 43(2) TFEU and was intended to resolve certain difficulties related to the implementation of the Cod Plan established by Regulation No 1342/2008. It provided for the following amendments:
– an amendment to Article 4 of Regulation No 1342/2008, clarifying the method to be used by the Member States when calculating fishing effort limitations;
– an amendment to Article 9 of that regulation, concerning the method for setting the TACs in cases in which the default calculation rules set out in Articles 7 and 8 cannot be applied because there is insufficient data;
– an amendment to Article 11 of Regulation No 1342/2008, concerning simplification of the procedure for excluding vessels from the fishing effort regime;
– an amendment to Article 12 of that regulation, concerning fishing effort limitations, based on the objective of flexible and individualised treatment which also underpins the proposed amendment to Article 9 of the regulation;
– an amendment adding a new paragraph 6 to Article 12 of Regulation No 1342/2008, enabling the Council to suspend further reductions to the maximum allowable fishing effort where the latter has been reduced for four consecutive years;
– an amendment to Article 13 of Regulation No 1342/2008, aimed at removing differences in interpretation between language versions as regards one of the conditions for allocating additional fishing effort;
– an amendment to Article 14 of that regulation, aimed at strengthening the obligations of Member States to address high levels of discards and ensure that the incentives provided for in Articles 11 and 13 of the regulation are properly monitored and controlled, and
– an amendment to Article 32 of the regulation, inserting an article relating to the comitology procedure.
20 On 19 December 2012, the Council, without incorporating all the provisions of the proposal for a regulation (COM(2012) 498 final), adopted the contested regulation, stating the legal basis to be Article 43(3) TFEU and including only the amendments relating to Articles 9 and 12 of Regulation No 1342/2008.
21 A Commission statement was entered in the minutes of the Council ‘Agriculture and Fisheries’ meeting at which the contested regulation was adopted. That statement reads as follows:
‘The Commission considers that Regulation [No] 1342/2008 ... which was adopted as a legislative act under the former Treaty (EC Treaty), must be amended by way of the now existing ordinary legislative procedure under [the FEU Treaty].
For these reasons, the Commission considers that Articles 8, 9 and 12 of [that regulation] cannot be amended by the Council on the basis of the non-legislative procedure of Article 43(3) TFEU. Furthermore, the material content of Articles 8, 9 and 12 of [Regulation No 1342/2008] cannot be construed as being covered by the terms “measures on the fixing and allocation of fishing opportunities”.
The Presidency’s proposal to split the Commission’s proposal and adopt under Article 43(3) TFEU the amendment to Articles 8, 9 and 12 of [Regulation No 1342/2008] would be in breach of the Treaty. In these circumstances, the Commission maintains its original proposal including the legal basis of Article 43(2) TFEU, and reserves the right to avail itself of the legal remedies provided by the Treaty to contest the Council’s amendment to [that regulation].’
22 The contested regulation was published in the Official Journal of the European Union on 21 December 2012 and entered into force on 22 December 2012.
23 Taking the view that the contested regulation had been adopted on the wrong legal basis and that it should have been founded on Article 43(2) TFEU, the Parliament, in Case C‑124/13, and the Commission, in Case C‑125/13, brought the present actions.
Forms of order sought and procedure before the Court
24 The Parliament and the Commission claim that the Court should annul the contested regulation and order the Council to pay the costs. The Commission also asks the Court to maintain the effects of that regulation for a reasonable time after delivery of the present judgment, that is to say, for a maximum of one full calendar year starting on 1 January of the year after delivery of the present judgment.
25 The Council contends that the Court should dismiss the actions and order the Parliament and the Commission to pay the costs. In the alternative, should the Court annul the contested regulation, the Council requests that, pursuant to Article 264 TFEU, the effects of the regulation be maintained.
26 By order of the President of the Court of 19 April 2013, Cases C‑124/13 and C‑125/13 were joined for the purposes of the written and oral procedure and the judgment.
27 By order of the President of the Court of 11 September 2013, the Kingdom of Spain, the French Republic and the Republic of Poland were granted leave to intervene in support of the forms of order sought by the Council.
The actions
28 In Case C‑124/13, the Parliament puts forward a single plea in law, submitting that there is an error of law in the choice of Article 43(3) TFEU as the legal basis for the contested regulation.
29 The plea is structured in two parts. By the first part, the Parliament maintains that, as a fish stocks conservation and management tool, each multiannual plan, such as that at issue in the present case, forms a whole that contains only provisions which pursue the sustainability and conservation objectives of the CFP and that it must therefore be adopted in its entirety under Article 43(2) TFEU. By the second part of its plea, the Parliament asserts that the proposal for a regulation (COM(2012) 498 final) should have been adopted in its entirety on the basis of Article 43(2) TFEU. In splitting the proposal and adopting, by means of the contested regulation, only some of the Commission’s proposed amendments, the Council, in its choice of procedure, disregarded the Court’s case-law concerning the choice of legal basis for an EU act.
30 In Case C‑125/13, the Commission raises three pleas in law. By its first plea, the Commission maintains that there is an error of law in the choice of Article 43(3) TFEU as the legal basis for the contested regulation. The second plea alleges that there is an error of law concerning the procedure followed by the Council, which, in the Commission’s view, wrongly excluded both the Parliament and the European Economic and Social Committee from any involvement in the adoption of the contested regulation. By its third plea the Commission maintains that there was a fundamental change in the nature of its proposal for a regulation, in breach of its exclusive right of initiative.
Arguments of the parties
31 By the first part of the Parliament’s single plea in law and the Commission’s first plea in law, those institutions maintain that the Council erred in law in adopting the contested regulation under Article 43(3) TFEU instead of under Article 43(2) TFEU.
32 They submit that, since the Treaty of Lisbon entered into force, paragraph 3 of Article 43 TFEU has constituted a derogation from the application of the ordinary legislative procedure provided for in paragraph 2 of Article 43 TFEU and that the scope of paragraph 3 must therefore be interpreted strictly. Thus, in their submission, only measures that expressly concern ‘the fixing and allocation of concrete fishing opportunities’ may be adopted on the basis of Article 43(3) TFEU. By contrast, if a measure pursues a CFP objective other than the mere allocation of fishing quotas, the measure has to be adopted under Article 43(2) TFEU.
33 In that regard, the applicants maintain that Article 43(2) TFEU designates the ordinary legislative procedure as the usual decision-making procedure for adopting the provisions necessary for the pursuit of the objectives of the CFP, whilst Article 43(3) TFEU merely confers on the Council a specific power limited to the adoption of non-legislative, sui generis implementing acts relating to the fixing of the TACs.
34 Accordingly, the applicants submit that the words ‘measures on ... the fixing and allocation of fishing opportunities’ in Article 43(3) TFEU must be interpreted as meaning that, under that provision, the Council may adopt only non-legislative regulations or implementing measures relating to the fixing and allocation of fishing opportunities but may not adopt measures designed to contribute to the achievement of the objectives of the CFP. As Article 3(q) of the basic regulation makes clear, ‘“fishing opportunity” means a quantified legal entitlement to fish, expressed in terms of catches and/or fishing effort’.
35 The applicants maintain that the contested regulation does not fall into that category. In their view, it is clear from recital 7 and Articles 5 and 6 of the basic regulation and from Article 5 of Regulation No 1342/2008 that multiannual plans, namely recovery and management plans, are aimed at conserving fish stocks and thus play a key role in achieving the main objective of the CFP, that is to say, the sustainable exploitation of those stocks.
36 Consequently, since multiannual plans are instruments for the achievement of the objectives of the CFP, legal acts establishing or amending those plans, such as the contested regulation, must, so the applicants argue, be regarded as ‘necessary’ for the pursuit of the objectives of the CFP, within the meaning of Article 43(2) TFEU, and must, for that reason, be adopted using the ordinary legislative procedure, as required by that provision.
37 The applicants add that the contested regulation amends legislative provisions adopted on the basis of Article 37 EC, which, before the entry into force of the Treaty of Lisbon, was the general legal basis for the adoption of legislative acts in the fisheries area. Inasmuch as Article 37 EC has been replaced by Article 43(2) TFEU, the ordinary legislative procedure referred to in Article 43(2) TFEU should be used for the adoption of the body of legislative acts in that area, given that a parallel may be drawn between the procedures concerned. Similarly, in so far as Article 20 of the basic regulation has been restated in Article 43(3) TFEU, that provision should be used for the adoption of non-legislative acts.
38 The Council, supported by the Kingdom of Spain, the French Republic and the Republic of Poland, rejects the applicants’ arguments, claiming that the contested regulation does constitute a measure on the fixing and allocation of fishing opportunities and that it was thus correctly based on Article 43(3) TFEU.
39 In that regard, the Council asserts at the outset that there is no justification in the FEU Treaty for the applicants’ interpretation of the application of Article 43(3) TFEU. Paragraphs 2 and 3 of Article 43 TFEU, which were introduced by the Treaty of Lisbon, replaced a single provision, namely Article 37 EC, which had been used as the legal basis for the adoption of a whole range of legal acts in the areas of agriculture and fisheries. The applicants cannot maintain, merely on that account, that, in every case in which Article 37 EC was used before the entry into force of the Treaty of Lisbon, Article 43(2) TFEU must now be used automatically.
40 The Council further contends that by deliberately using, in Article 43(3) TFEU, the words ‘measures on’ the fixing and allocation of fishing opportunities, the authors of the FEU Treaty intended to include in the scope of that provision measures going beyond the fixing and allocation of fishing opportunities sensu stricto. An excessively restrictive interpretation which excluded certain measures clearly identified in Article 43(3) TFEU from its scope would encroach on the powers conferred on the Council by Article 43(3) TFEU and would infringe the basic rules of institutional balance enshrined in Article 13(2) TEU, which provides that ‘each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them’.
41 The Council thus rejects the applicants’ argument that where a measure may be regarded as necessary for the pursuit of the objectives of the CFP, that measure must necessarily be adopted under Article 43(2) TFEU. It submits that paragraphs 2 and 3 of Article 43 TFEU are, in fact, autonomous legal bases established by primary law, which means that the use of paragraph 3 cannot be made subject to any condition such as the prior adoption of an act under paragraph 2.
42 That said, the Council argues that the application of the amendments made by Article 1 of the contested regulation to Articles 9 and 12(4) and (6) of Regulation No 1342/2008 affects in a direct, prescriptive and automatic manner the fixing and allocating of fishing opportunities. The applicants thus have no valid ground for claiming that those amendments have affected the objective of the multiannual Cod Plan, which is still defined in Article 5 of Regulation No 1342/2008, a provision that has not been amended. Rather, those amendments, as is clear from an analysis of the aims and content of the contested regulation, are intended to adjust the means of achieving that objective, namely the rules for the fixing of the TACs and of the fishing effort limitations.
Findings of the Court
43 The Parliament, by the first part of its single plea in law, and the Commission, by its first plea in law, maintain that the Council, in adopting the contested regulation under Article 43(3) TFEU, instead of under Article 43(2) TFEU, chose the wrong legal basis.
44 In that regard, it should be recalled at the outset that, as is clear from the wording of Article 43(2) TFEU, the Parliament and the Council, acting in accordance with the ordinary legislative procedure, are to adopt the ‘provisions necessary for the pursuit of the common agricultural policy and the common fisheries policy’.
45 In addition, in accordance with Article 43(3) TFEU, the Council, on a proposal from the Commission, is to adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.
46 It should also be recalled that the Court has already ruled on the scope of each of paragraphs 2 and 3 of Article 43 TFEU in its judgment in Parliament and Commission v Council (C‑103/12 and C‑165/12, EU:C:2014:2400).
47 In the cases which gave rise to that judgment, the Court was required to ascertain whether the Council could lawfully adopt, on the basis of Article 43(3) TFEU, Decision 2012/19/EU of 16 December 2011 on the approval, on behalf of the European Union, of the Declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of the Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana (OJ 2012 L 6, p. 8).
48 The Court, albeit in a different factual and legal context from that of the present case, held inter alia, at paragraph 50 of that judgment, that the adoption of provisions under Article 43(2) TFEU necessarily presupposes an assessment of whether those provisions are ‘necessary’ for the pursuit of the objectives of the common policies governed by the FEU Treaty, with the result that it entails a policy decision that must be reserved to the EU legislature. By contrast, the adoption of measures on the fixing and allocation of fishing opportunities, in accordance with Article 43(3) TFEU, does not require such an assessment since such measures are of a primarily technical nature and are intended to be taken in order to implement provisions adopted on the basis of Article 43(2) TFEU.
49 The Court concluded, at paragraphs 78 to 81 of that judgment, that the Council had made an error in adopting Decision 2012/19 on the basis of Article 43(3) TFEU. Since the decision granted vessels flying the flag of Venezuela access to EU waters rather than mere fishing opportunities, adoption of the decision entailed a policy decision, which made it necessary to use the ordinary legislative procedure referred to in Article 43(2) TFEU.
50 It follows from the judgment in Parliament and Commission v Council (C‑103/12 and C‑165/12, EU:C:2014:2400) that measures which entail a policy choice reserved to the EU legislature because the measures are necessary for the pursuit of the objectives of the common policies for agriculture and fisheries must be adopted on the basis of Article 43(2) TFEU.
51 That said, and so far as the present cases are concerned, it is necessary to determine whether the scope of Article 43(3) TFEU has to be limited just to measures whose subject-matter is the fixing and allocation of fishing opportunities.
52 In that regard, as the Council maintains, the powers that are vested in the Council under Article 43(3) TFEU cannot be appraised by drawing a parallel with the powers conferred on it, as regards implementing acts, pursuant to Article 291 TFEU.
53 As the Court has stated on many occasions, the power to adopt implementing acts is, as a rule, conferred on the Commission and, in accordance with Article 291(2) TFEU, it is only exceptionally that that power may be reserved to the Council in ‘duly justified specific cases’ and the cases expressly provided for in Article 291(2) TFEU, which relate solely to the common foreign and security policy (see, to that effect, judgments in Parliament v Council, C‑133/06, EU:C:2008:257, paragraph 47 and the case-law cited, and Commission v Parliament and Council, C‑88/14, EU:C:2015:499, paragraph 30).
54 Thus, while it is true that Article 43(3) TFEU confers on the Council the power to adopt, inter alia, implementing acts in the area concerned, the fact remains that those acts are not simply to be considered the same as those provided for in Article 291(2) TFEU.
55 Nor can the Court accept the applicants’ argument concerning the use, on account of parallelism between Article 37 EC and Article 43(2) TFEU, of the ordinary legislative procedure, as referred to in the latter provision, for the whole of the area that was covered by Article 37 EC before the entry into force of the Treaty of Lisbon.
56 Article 37 EC, which was used, prior to the entry into force of the Treaty of Lisbon, as the legal basis for the adoption of a whole range of legal acts in the areas of agriculture and fisheries, enabled the Council, acting by a qualified majority, on a proposal from the Commission and after consulting the European Parliament, to adopt the acts intended to implement, inter alia, the CFP.
57 However, Article 37 EC has now been replaced by Article 43(2) and (3) TFEU. As a consequence, the parallel drawn by the Commission between Article 37 EC and Article 43(2) TFEU must be assessed in the light of the relationship between the latter provision and Article 43(3) TFEU.
58 In that regard, paragraphs 2 and 3 of Article 43 TFEU pursue different aims and each have a specific field of application, which means that they may be used separately as a basis for adopting particular measures under the CFP, provided that the Council, when it adopts measures on the basis of Article 43(3) TFEU, acts within the limits of its powers and, where relevant, within the legal framework already established under Article 43(2) TFEU.
59 Accordingly, measures which do more than merely fix and allocate fishing opportunities may fall within the scope of Article 43(3) TFEU, provided that they do not entail a policy choice that is reserved to the EU legislature because the measures are necessary for the pursuit of the objectives of the common policies for agriculture and fisheries.
60 The question whether the Council was justified in selecting Article 43(3) TFEU as the legal basis for the contested regulation must therefore be determined in the light of those considerations.
61 In the present case, the purpose of the contested regulation, as is clear from the proposal for a regulation (COM(2012) 498 final), is to amend Regulation No 1342/2008 with the aim of improving and clarifying the provisions of the latter.
62 That being so, it is necessary, before examining the substance of the amendments made by the contested regulation, to set out the legal framework of which Regulation No 1342/2008 forms part.
63 As the Advocate General has noted at point 70 of his Opinion, the overarching aim of the CFP is to achieve the sustainable exploitation of living aquatic resources while striking a balance between environmental, economic and social concerns.
64 For this purpose, in accordance with the second subparagraph of Article 2(1) of the basic regulation, the European Union is to apply the precautionary approach in taking, in the context of multiannual plans, specific measures designed to protect and conserve living aquatic resources, to provide for their sustainable exploitation and to minimise the impact of fishing activities on marine ecosystems.
65 In particular, Article 5 of the basic regulation provides that the Council is to adopt, as a priority, multiannual recovery plans for fisheries exploiting stocks which are outside safe biological limits in order to enable those stocks to recover and to attain a level within those limits.
66 In addition, Article 6 of that regulation enables the Council to adopt multiannual management plans to maintain stocks within safe biological limits where those limits have been achieved.
67 Regulation No 1342/2008 forms part of that legal framework. It was adopted on the basis of Article 37 EC and provides for a broad range of specific conservation measures to support the sustainable management of certain cod stocks.
68 According to Article 5 of Regulation No 1342/2008, the objective of the recovery plan for which the regulation provides is to ensure the sustainable exploitation of cod stocks on the basis of maximum sustainable yield, while maintaining a certain fishing mortality on the fish in question.
69 For the purpose of achieving that objective, Articles 6 to 10 of Regulation No 1342/2008 lay down rules on the method for the annual setting of the TACs and Articles 11 to 17 of the regulation lay down the rules on the limitation of the annual fishing effort.
70 In particular, and so far as the present cases are concerned, Article 9 of Regulation No 1342/2008 establishes the special procedure for setting the TACs where the general rules for doing so, which are laid down in Articles 7 and 8, cannot be applied because there is a lack of sufficiently accurate and representative information. Article 12 of that regulation prescribes detailed rules for the allocation of fishing effort by Member State.
71 As recital 3 of the contested regulation makes clear, the scientific evaluation of the performance of the Cod Plan carried out by the Scientific, Technical and Economic Committee for Fisheries showed that there were a number of problems with the design and functioning of that plan. That committee concluded that the objectives of the Cod Plan were unlikely to be achieved within a time frame that would be in compliance with the conclusions of the World Summit on Sustainable Development held in Johannesburg in 2002 unless the flaws in the design of that plan, relating, inter alia, to the application of Articles 9 and 12 of Regulation No 1342/2008 were corrected.
72 As regards, more particularly, Article 9 of Regulation No 1342/2008, it is stated in recital 4 of the contested regulation that, as a result of the application, from 2009 to 2012, of the automatic 25% TAC reduction provided for in Article 9, the TACs for the areas concerned have, since the entry into force of the Cod Plan, been reduced significantly and further automatic cuts would lead to the effective closure of the cod fisheries in those areas.
73 The contested regulation therefore appreciably altered the special procedure laid down in Article 9 of Regulation No 1342/2008 for the annual setting of the TACs for cod stocks, allowing, in some cases, as recital 4 of the contested regulation indicates, more flexibility in the determination and allocation of fishing opportunities in order to reflect the scientific advice on a case-by-case basis. This mechanism replaces the automatic TAC reductions, initially established by Regulation No 1342/2008 to cover cases involving a lack of sufficiently accurate and representative information in which the general rules for setting the TACs cannot be applied.
74 As regards Article 12 of Regulation No 1342/2008, recital 5 of the contested regulation also mentions a significant reduction in allowable fishing effort over the period 2009 to 2012 in the areas concerned. According to recital 5, the continued application of the automatic annual fishing effort reductions would not lead to the achievement of the objectives of the Cod Plan, but would have a significant economic and social impact on the fleet segments that use the main cod catching gears, but that fish principally for species other than cod.
75 Consequently, the rules on fishing effort limitations were substantially amended as the result, inter alia, of introducing a procedure which derogates from the procedure laid down in Article 12(4) of Regulation No 1342/2008 for establishing the fishing effort in poor data conditions.
76 Attention should also be drawn to the fact that Article 9(2) of Regulation No 1342/2008, as replaced by point (1) of Article 1 of the contested regulation, and Article 12(6) of Regulation No 1342/2008, as inserted by point (2)(b) of Article 1 of the contested regulation, enable the Council to decide to suspend the annual adjustment of the TACs or the fishing effort limitations in the cases set out in those provisions.
77 While it is true that — as the Council stated in recital 8 of the contested regulation to justify using Article 43(3) TFEU as the legal basis of the regulation — the amendments made to Articles 9 and 12 of Regulation No 1342/2008 by Article 1 of the contested regulation do not affect the objective of the multiannual plan for the recovery of cod stocks provided for in Article 5 of Regulation No 1342/2008, that fact is not, in itself, a sufficient ground for finding that those amendments could properly be adopted on the basis of Article 43(3) TFEU.
78 In that connection, as has been stated at paragraph 59 of the present judgment, it is necessary to ascertain whether the adoption of the contested regulation entailed a policy choice reserved to the EU legislature because the amendments in question were necessary for the pursuit of the objectives of the CFP, which would have required that the regulation be adopted on the basis of Article 43(2) TFEU.
79 Here, the amendments to Articles 9 and 12 of Regulation No 1342/2008, made by the contested regulation and described at paragraphs 70 to 76 of the present judgment, are not confined — contrary to the Council’s contention — to merely providing for the fixing and actual allocation of fishing opportunities in specific circumstances and on an annual basis but are intended to adapt the general mechanism for setting the TACs and the fishing effort limitations in order to remedy the shortcomings arising from the application of the previous rules on automatic reduction, which were jeopardising attainment of the objectives of the multiannual recovery plan for cod stocks.
80 Those amendments therefore define the legal framework in which fishing opportunities are established and allocated. They thus result from a policy choice having a long-term impact on the multiannual recovery plan for cod stocks.
81 It follows that the amendments in question constitute provisions necessary for the pursuit of the objectives of the CFP. Consequently, those amendments should have been adopted under the legislative procedure referred to in Article 43(2) TFEU.
82 In view of all the foregoing considerations, the first part of the Parliament’s single plea in law and the Commission’s first plea in law must be accepted.
83 Consequently, the contested regulation must be annulled and it is not necessary to examine the other pleas in law raised by the Parliament and the Commission in support of their actions.
The request that the effects of the contested regulation be maintained for a certain time
84 The Council and the Commission, supported by the Kingdom of Spain and the French Republic, ask the Court, in the event that it annuls the contested regulation, to maintain the effects of the regulation. In that regard, the Commission specifically requests that those effects be maintained for a reasonable time, which does not exceed 12 months starting from 1 January of the year following the date of delivery of the present judgment.
85 Under the second paragraph of Article 264 TFEU, the Court may, if it considers it necessary, state which of the effects of the act which it has declared void are to be considered definitive.
86 The Court has held in this regard that, on grounds of legal certainty, the effects of such an act may be maintained, in particular where the immediate effects of its annulment would give rise to serious negative consequences for the persons concerned and where the lawfulness of the act in question is contested, not because of its aim or content, but on grounds of lack of competence or infringement of an essential procedural requirement. Those grounds include, in particular, the fact that an incorrect legal basis was used for the contested act (see judgment in Parliament and Commission v Council, C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 90 and the case-law cited).
87 In this case, the contested regulation, pursuant to Article 2 thereof, entered into force on the day following that of its publication in the Official Journal of the European Union, which took place on 21 December 2012.
88 Inasmuch as the contested regulation seeks to ensure the conservation and sustainable exploitation of fisheries resources under the CFP, its annulment with immediate effect would be liable to have serious consequences for the implementation of that policy and for the economic operators concerned.
89 In those circumstances, there are important grounds of legal certainty justifying the grant by the Court of the request that the effects of the contested regulation be maintained. Moreover, it must be noted that neither the Parliament nor the Commission has challenged the lawfulness of that regulation on the ground of its aim or content and there is therefore no obstacle in that respect to prevent the Court from ordering that the effects of the contested regulation be maintained.
90 Accordingly, the effects of the contested regulation must be maintained until the entry into force, within a reasonable period, which may not exceed 12 months starting from 1 January of the year following the date of delivery of the present judgment, of a new regulation adopted on the appropriate legal basis, namely Article 43(2) TFEU.
Costs
91 Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Parliament and the Commission have applied for costs and the Council has been unsuccessful, it must be ordered to pay the costs. In accordance with Article 140(1) of the Rules of Procedure, the Kingdom of Spain, the French Republic and the Republic of Poland, which have intervened in the present proceedings, must bear their own costs.
On those grounds, the Court (Grand Chamber) hereby:
1. Annuls Council Regulation (EU) No 1243/2012 of 19 December 2012 amending Regulation (EC) No 1342/2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks;
2. Maintains the effects of Regulation No 1243/2012 until the entry into force, within a reasonable period, which may not exceed 12 months starting from 1 January of the year following the date of delivery of the present judgment, of a new regulation adopted on the appropriate legal basis, namely Article 43(2) TFEU;
3. Orders the Council of the European Union to pay the costs;
4. Orders the Kingdom of Spain, the French Republic and the Republic of Poland to bear their own costs.
[Signatures]