Opinion of the Advocate General — ECLI:EU:C:2014:334
Date: 2014-05-15
Language of the case: French
Subject matter: Agriculture and Fisheries;Provisions governing the Institutions;Fisheries policy;Acts of the institutions
Procedure: Action for annulment - successful

Summary — Judgment of the Court (Grand Chamber), 26 November 2014 1. Acts of the institutions — Choice of legal basis — Criteria — Decision 2012/19 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 — Adoption on the basis of Article 43(3) TFEU — Not permissible — Obligation to base such a decision on Articles 43(2) TFEU and 218 TFEU (Arts 43(2) and (3) TFEU and 218(6)(a), (v) and (b), TFEU; Council Regulations No 44/2012, Art. 36(1) and Annex VIII, No 40/2013, Art. 34(1) and Annex VIII and No 43/2014, Art. 40(1) and Annex VIII; Council Decision 2012/19) 2. International agreements — Conclusion — International agreements in the area of agriculture and fisheries — Declaration adressed to a third State granting fishing opportunities in EU waters to fishing vessels of that State — Requests made by that third State for fishing authorisations in which no reservations were expressed — Lawfulness (Council Decision 2012/19) 3. Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Effects of the contested regulation to be maintained until it has been replaced within a reasonable period — Justification on grounds of legal certainty (Art. 264, second para., TFEU; Council Decision 2012/19) 1. The choice of legal basis for an EU measure must rest on objective factors amenable to judicial review, including in particular the aim and the content of the measure. In that regard, the purpose 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, approved by Council Decision 2012/19, is not the fixing and allocation of fishing opportunities, within the meaning of Article 43(3) TFEU, but to offer that Republic the opportunity to participate in the utilisation of living resources in the exclusive economic zone of French Guiana, under the conditions laid down by the European Union. Having regard to the specific responsibility of the European Union — acting on behalf of the coastal State — for the utilisation of living resources in the latter’s exclusive economic zone, the competent EU institutions assess whether the interested State is capable of ensuring that the ships flying its flag respect the conditions to which such utilisation is subject, such as, inter alia, compliance with the provisions of the European Union’s common fisheries policy applicable in the zone concerned. Finally, the EU institutions are to take into account factors such as the significance of the living resources of the area to its economy and its other national interests, the requirements of developing States in the region concerned and the need to minimise economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks. Thus, the purpose of the declaration at issue is to establish a general framework, with a view to authorising fishing vessels flying the flag of Venezuela to fish in that zone, which was subsequently clarified by several provisions of various regulations. It follows that the offer made to the Bolivarian Republic of Venezuela is not a technical or implementing measure but, on the contrary, a measure which entails the adoption of an autonomous decision which must be made having regard to the policy interests of the European Union pursued through its fisheries policy. The declaration at issue therefore falls within an area of competence in which the decision-making power lies with the EU legislature and Decision 2012/19, which approved that declaration on behalf of the European Union, falls within the scope of Article 43(2) TFEU, not Article 43(3) TFEU. Moreover, given that that declaration is a constituent element of an international agreement, it falls within the scope of Article 218 TFEU. Decision 2012/19 must therefore be adopted on the basis of Article 43(2) TFEU in conjunction with Article 218(6)(a)(v) TFEU, not Article 43(3) TFEU in conjunction with Article 218(6)(b) TFEU. (see paras 51, 58, 75, 76, 78-83, 85, operative part 1) 2. A declaration addressed to a third State on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of that State in the exclusive economic zone off the coast of a Member State constitutes an offer made by the European Union, on behalf of the coastal State concerned, to that third State, subject to certain specific conditions, including the condition that that State ensure that vessels flying its flag and fishing in that zone comply with the provisions of the EU’s common fisheries policy applicable to that zone. By sending to the European Union — following the offer that had been made to it — specific applications for fishing authorisations and by refraining, when making those applications, from expressing any reservations as regards the conditions of that offer, that State must be regarded as having accepted the offer made to it by the European Union by means of that declaration. It follows that that declaration made by the European Union and its acceptance by the third State must be regarded, taken together, as an agreement concluded between those two parties concerning the authorisation to utilise, under the specific conditions set out in that declaration, part of the surplus of the allowable catch in the exclusive economic zone of the Member State at issue. (see paras 68, 70, 71, 73, 83, 84) 3. Decision 2012/19 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, granting the Bolivarian Republic of Venezuela access to the surplus of the allowable catch in the exclusive economic zone of Guiana, seeks to ensure the continuity of landings in French Guiana by vessels flying the flag of Venezuela, since the processing industry based in French Guiana depends on those landings. The annulment with immediate effect of that decision would be liable to affect that continuity by giving rise to serious negative consequences for the economic operators concerned. Consequently, in the light of important grounds of legal certainty, the effects of that decision should be maintained until the entry into force, within a reasonable period of time after the date of the present judgment, of a new decision adopted on the proper legal basis. (see paras 91-93, operative part 2)