Opinion of the Advocate General — ECLI:EU:C:2015:337
Date: 2015-05-21
Language of the case: English
Subject matter: Agriculture and Fisheries;Fisheries policy
Procedure: Action for annulment - successful

Summary — Judgment of the Court (Grand Chamber) 1 December 2015 1. Fisheries — Common Fisheries Policy — Provisions necessary for the pursuit of policy objectives — Measures on the fixing and allocation of fishing opportunities —Powers of the Council — Article 43(2) and (3) TFEU — Scope of each of those provisions (Art. 43(2) and (3) TFEU) 2. Fisheries — Conservation of the resources of the sea — Long-term plan for cod stocks and the fisheries exploiting those stocks — Regulation No 1243/2012 –– Adaptation of the general mechanism for setting the total allowable catches and fishing effort limitations — Legal basis — Article 43(2) TFEU (Art. 43(2) TFEU; Council Regulations No 1342/2008 and No 1243/2012) 3. Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Maintenance of the effects of the contested measure until its replacement within a reasonable period — Justification on grounds of legal certainty (Art. 264, second para., TFEU) 1. The adoption by the Parliament and the Council, in accordance with the ordinary legislative procedure, 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 by the Council 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. Thus, 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 Common Fisheries Policy, 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. 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. (see paras 48, 58, 59) 2. The amendments made by Regulation No 1243/2012 to Articles 9 and 12 of Regulation No 1342/2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks are not confined 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 total allowable catches 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. 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. It follows that the amendments in question constitute provisions necessary for the pursuit of the objectives of the Common Fisheries Policy, as referred to in Article 43(2) TFEU. Consequently, those amendments should have been adopted under the legislative procedure referred to in that provision and the Council was not justified in selecting Article 43(3) TFEU as the legal basis for Regulation No 1243/2012. That regulation must thus be annulled. (see paras 79-81, 83) 3. The effects of an act which has been declared void may be maintained, on grounds of legal certainty, 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. Inasmuch as Regulation No 1243/2012 amending Regulation No 1342/2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks seeks to ensure the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, its annulment with immediate effect would be liable to have serious consequences for the implementation of that policy and for the economic operators concerned. Accordingly, the effects of that 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. (see paras 86, 88, 90)