JUDGMENT OF THE GENERAL COURT (Third Chamber, Extended Composition)
25 June 2025 (*)
( Common fisheries policy – Conservation of resources – Total allowable catches – Fish stocks shared with the United Kingdom – Trade and Cooperation Agreement between the European Union and the United Kingdom – Regulation (EU) 2022/515 – Request for internal review of an administrative act under environmental law – Article 2(1)(f) and Article 10 of Regulation (EC) No 1367/2006 – Objective of achieving a maximum sustainable yield exploitation rate at the latest by 2020 for all stocks – Articles 2, 3, 9, 10, 15 and 16 of Regulation (EU) No 1380/2013 – Socioeconomic and employment objectives – Best available scientific advice – Landing obligation – Mixed fisheries – Choke species – Precautionary approach – Ecosystem-based approach – Regulation (EU) 2019/472 – Target stocks – By-catches )
In Case T‑648/22,
ClientEarth AISBL, established in Ixelles (Belgium), represented by C. Ziegler, lawyer,
applicant,
v
Council of the European Union, represented by F. Naert, A. Nowak‑Salles, A. Maceroni and P. Pecheux, acting as Agents,
defendant,
supported by
European Commission, represented by A. Dawes, G. Gattinara and A. Stobiecka‑Kuik, acting as Agents,
intervener,
THE GENERAL COURT (Third Chamber, Extended Composition),
composed of E. Buttigieg, acting as President, P. Škvařilová‑Pelzl, I. Nõmm, G. Steinfatt (Rapporteur) and D. Kukovec, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written part of the procedure,
further to the hearing on 25 September 2024,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, ClientEarth AISBL, seeks annulment of the decision of the Council of the European Union of 26 July 2022, contained in its letter of 3 August 2022 (‘the contested decision’), rejecting as unfounded its request for internal review of 20 May 2022 under Title IV of Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13; ‘the Aarhus Regulation’), concerning Council Regulation (EU) 2022/515 of 31 March 2022 amending Regulation (EU) 2022/109 fixing for 2022 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in Union waters and for Union fishing vessels in certain non-Union waters (OJ 2022 L 104, p. 1).
Background to the dispute
2        Pursuant to Article 43(3) TFEU, the Council, on a proposal from the European Commission, is to adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities. The fishing opportunities are known as ‘total allowable catches’ (‘TACs’).
3        Article 498(2) of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (OJ 2021 L 149, p. 10; ‘the TCA’), provides that the European Union and the United Kingdom are to hold consultations annually to agree, at the latest by 10 December of each year, the TACs for the following year for the fish stocks whose management is shared between the European Union and the United Kingdom.
4        However, Article 499(2) of the TCA provides that if those TACs have not been agreed by 20 December, the parties to that agreement are to set provisional TACs corresponding to the level advised by the International Council for the Exploration of the Sea (ICES), applying from the following 1 January.
5        On 21 December 2021, the European Union and the United Kingdom agreed on the TACs for 2022. The outcome of the consultations was documented in a written record, which was endorsed by the Council on 21 December 2021 and signed on the same day by the Head of Delegation of the United Kingdom and by the Commission representative on behalf of the European Union, in accordance with Article 498(6) of the TCA and Council Decision (EU) 2021/1875 of 22 October 2021 concerning the position to be adopted on behalf of the Union in the annual consultations with the United Kingdom to agree on total allowable catches (OJ 2021 L 378, p. 6).
6        On 27 January 2022, the Council adopted Regulation (EU) 2022/109 fixing for 2022 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in Union waters and for Union fishing vessels in certain non-Union waters (OJ 2022 L 21, p. 1). Since the bilateral consultations with the United Kingdom were concluded on 21 December 2021, it was too late for the result to be included in Regulation 2022/109, given that it was to apply from 1 January 2022. Regulation 2022/109 thus established, inter alia, on the one hand, the TACs for fish stocks managed by Member States and, on the other hand, the provisional TACs for fish stocks whose management was shared between the European Union and the United Kingdom (‘the provisional TACs’), in accordance with Article 499(2) of the TCA.
7        On 25 March 2022, the applicant, an international non-profit-making environmental organisation, submitted a first request for internal review, under Article 10 of the Aarhus Regulation, as amended by Regulation (EU) 2021/1767 of the European Parliament and of the Council of 6 October 2021 (OJ 2021 L 356, p. 1), concerning Regulation 2022/109.
8        On 31 March 2022, the Council adopted Regulation 2022/515.
9        On 20 May 2022, the applicant submitted a second request for internal review, under Article 10 of the Aarhus Regulation, as amended by Regulation 2021/1767, concerning Regulation 2022/515.
10      By the decision contained in its letter of 5 July 2022, the Council rejected the first request for internal review as in part devoid of purpose as regards the provisional TACs and in part unfounded. That decision was the subject of an action for annulment brought by the applicant, registered under case number T‑577/22.
11      By the contested decision, the Council rejected the second request for internal review as unfounded. The Council stated, however, that it intended to amend the TACs set for stocks of undulate ray (RJU/9-C and RJU/8-C), as a result of errors in the corresponding table in Annex I to Regulation 2022/515.
Forms of order sought
12      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Council and the Commission to pay the costs.
13      The Council and the Commission contend that the Court should:
–        dismiss the action as unfounded;
–        order the applicant to pay the costs.
Law
14      The applicant puts forward four pleas in law in support of the action. The first plea alleges, in essence, an error of law and a manifest error of assessment as regards the grounds for review of administrative acts under the Aarhus Regulation. The second plea alleges errors of law and a manifest error of assessment as regards the Council’s margin of discretion for setting fishing opportunities and as regards its competence under Article 43(3) TFEU. The third plea alleges manifest errors of assessment as regards the implementation of the precautionary approach and the ecosystem-based approach. The fourth plea alleges an error regarding the misuse of powers.
The first plea in law, alleging an error of law and a manifest error of assessment as regards the grounds for review of administrative acts under the Aarhus Regulation
15      The applicant complains that the Council wrongly considered that the pleas alleging lack of competence and misuse of powers did not fall within the scope of the internal review provided for in Article 10 of the Aarhus Regulation.
16      The Council, supported by the Commission, disputes the applicant’s arguments.
17      In paragraphs 7 and 74 of the contested decision, the Council considered, in essence, that the arguments alleging lack of competence and misuse of powers raised in the second request for internal review did not fall within the scope of the internal review referred to in Article 10(1) of the Aarhus Regulation, since only infringements of environmental law could be raised.
18      The Council nevertheless examined the arguments put forward by the applicant in the context of the plea alleging lack of competence in paragraphs 7 to 54 of the contested decision and those put forward in the context of the plea alleging misuse of powers in paragraphs 75 to 79 of the contested decision, which the applicant acknowledged in reply to a question put by the Court at the hearing. The applicant also disputes the merits of those findings of the contested decision in the context of the second, third and fourth pleas.
19      Since the question of its merits thus has no bearing on the legality of the contested decision, the first plea in law must therefore be rejected as ineffective.
The second plea in law, alleging errors of law and a manifest error of assessment as regards the Council’s margin of discretion for setting fishing opportunities and as regards its competence under Article 43(3) TFEU
20      In support of the second plea in law, which is divided into three parts, the applicant claims, in essence, that the Council committed errors of law and a manifest error of assessment as regards the margin of discretion, powers and competences that it has under Article 43(3) TFEU to set fishing opportunities.
21      By the first part, the applicant submits that the Council erred in law and made a manifest error of assessment as regards the impact of the TCA on its competence to set TACs for stocks shared by the European Union and the United Kingdom. By the second part, the applicant asserts that the Council committed an error of law as regards its margin of discretion for setting fishing opportunities. By the third part, the applicant maintains that the Council committed an error of law regarding the limits of its competence under Article 43(3) TFEU.
22      The Court considers it appropriate to rule, first of all, on the first part, and then on the second and third parts taken together.
The first part of the second plea in law, alleging an error of law and a manifest error of assessment as regards the impact of the TCA on the Council’s competence to set TACs for shared stocks
23      The applicant submits, in essence, that, under Article 1(2)(c) and Article 28(1) to (3) of 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 (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ 2013 L 354, p. 22; ‘the CFP Regulation’), as well as Article 494(1), (3)(f) and Article 496(1) of the TCA, the Council remained bound to apply the relevant provisions of the CFP Regulation at the stage at which it implemented the written record of 21 December 2021 in the EU legal order, by setting the TACs for shared stocks in Regulation 2022/515, which should have led it to set the contested TACs below those agreed in the written record in order to comply with the maximum sustainable yield (MSY) target, the precautionary approach and the ecosystem-based approach referred to in Article 2(2) and (3) of the CFP Regulation.
24      The Council thus erred in law and made a manifest error of assessment in considering, in the contested decision, that the TCA permitted ‘a departure from the TAC setting rules in the CFP … Regulation’ because ‘the rules on the setting of TACs in the TCA [were] different, less precise and explicitly more flexible than the [European] Union’s internal rules’, with the result that, due to the primacy of the TCA, it was entitled to agree with the United Kingdom TACs for shared stocks that exceeded ICES recommendations and were contrary to the requirements of the CFP Regulation, and then to implement the upper limit of those TACs when Regulation 2022/515 was adopted. There is no conflict between the TAC setting rules in the TCA and those in the CFP Regulation, which would have exempted the Council from complying with the requirements of the CFP Regulation when adopting Regulation 2022/515.
25      The Council, supported by the Commission, disputes the applicant’s arguments.
26      In the present case, the applicant complains, in essence, that the Council considered that it was not required to comply with the requirements of internal EU law, more specifically those referred to in the CFP Regulation, when it implemented the TACs agreed in the written record of 21 December 2021 in the EU legal order by means of Regulation 2022/515.
27      In that regard, it is true that the Council stated, in paragraphs 20, 22 and 24 of the contested decision, (i) that it did not share the applicant’s view that nothing in the TCA, or in the European Union’s position during the consultations with the United Kingdom in 2022, permitted it to depart from the rules for setting TACs laid down in the CFP Regulation, (ii) that the rules on setting TACs in the TCA were different, less precise and explicitly more flexible than the internal rules of the European Union and (iii) that the approval of the TCA by the European Union included the possibility for the European Union to make full use of its share of the TACs agreed with the United Kingdom.
28      However, the abovementioned passages of the contested decision must not be read in isolation but placed in their context and in the light of the following passages of the contested decision.
29      In paragraphs 31 to 42, 48 to 53, 57, 58, 62 to 64, 66 to 73 and 78 of the contested decision, the Council set out the reasons why the TACs set in Regulation 2022/515 complied, in its view, with the requirements of the CFP Regulation and Regulation (EU) 2019/472 of the European Parliament and of the Council of 19 March 2019 establishing a multiannual plan for stocks fished in the Western Waters and adjacent waters, and for fisheries exploiting those stocks, amending Regulations (EU) 2016/1139 and (EU) 2018/973, and repealing Council Regulations (EC) No 811/2004, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007 and (EC) No 1300/2008 (OJ 2019 L 83, p. 1; ‘the multiannual plan for the Western Waters’). The Council thus concluded, in paragraph 80 of that decision, that, ‘for the reasons explained above …, the TACs [had been set] in accordance with the applicable rules of the CFP’. It is thus clear that the Council did not in any way rule out the possibility that those TACs had to comply with internal EU law, namely the CFP Regulation and the multiannual plan for the Western Waters.
30      This was confirmed by the Council and the Commission at the hearing.
31      First, the Commission maintained, in reply to a question from the Court, that Decision 2021/1875 took into account the EU internal legal framework, that is to say, the requirements of the CFP Regulation and the multiannual plan for the Western Waters, with the result that, when the European Union negotiated TACs for stocks shared with the United Kingdom, it took those requirements into account.
32      That is indeed apparent, inter alia, from recitals 2 and 7 to 11 of Decision 2021/1875, which recall, in particular, the provisions of (i) Article 2(1) of the CFP Regulation, which ‘requires the Union to ensure that fishing and aquaculture activities are environmentally sustainable in the long term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies’, (ii) Article 2(2) of that regulation, which ‘requires the Union to apply the precautionary approach to fisheries management and to aim to ensure that exploitation of living marine biological resources restores and maintains populations of harvested species above levels that can produce MSY’, (iii) Article 2(5)(a), read in conjunction with Article 7(1)(d), of the CFP Regulation, which requires the European Union to ‘gradually eliminate discards by, inter alia, promoting fishing methods that contribute to more selective fishing and to the avoidance and reduction, as far as possible, of unwanted catches, as well as fishing with low impact on marine ecosystem and fishery resources’, and (iv) of Article 3(c) of the CFP Regulation, which provides that ‘the [European] Union is to take management and conservation measures based on the best available scientific advice’.
33      The principles that are to guide the European Union in the annual consultations with the United Kingdom thus set out, in particular in point 1(e) of the Annex to Decision 2021/1875, that the European Union is to ‘seek to ensure that TACs are jointly determined in accordance with the [CFP] objective of ensuring that fisheries are environmentally sustainable in the long term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, including the core conservation objective of the CFP, namely MSY, as well as with the applicable multiannual plans’.
34      Secondly, the Commission also explained at the hearing that, when it had drawn up the proposal for Regulation 2022/515, it had indeed taken into account the EU legal framework, namely the requirements of the CFP Regulation and the multiannual plans for the Western Waters, and had assessed whether the EU quotas set out in the written record of 21 December 2021 complied with those requirements and whether or not it was appropriate to propose that the Council maintain the same TAC level in Regulation 2022/515.
35      It should be noted that that is borne out, inter alia, by the explanatory memorandum to the proposal for Regulation 2022/515, which states, in the part ‘Consistency with existing policy provisions in the policy area’, that ‘the measures proposed are consistent with the objectives and rules of the CFP and are consistent with the [European] Union’s policy on sustainable development’.
36      The Commission thus stated, at the hearing, that the implementation of the TACs agreed in the written record of 21 December 2021 in the EU internal legal order was not automatic and that, in the present case, it had reached the conclusion that the TACs agreed in that written record complied with the requirements of the CFP Regulation and the multiannual plan for the Western Waters, which is why it had proposed to the Council that it maintain the same TAC levels as those agreed in the written record.
37      Thirdly, the Council explained at the hearing that the passages in paragraphs 20, 22 and 24 of the contested decision were merely contextual information concerning the stages of the negotiations organised in the context of the TCA, which had been provided in response to the applicant’s arguments in its request for internal review.
38      It should be noted that that is borne out by paragraphs 26 to 32 of the second request for internal review, in which the applicant stated, in essence, that the TCA did not allow derogation from the rules on setting fishing opportunities under the CFP Regulation, with the result that it was for the Council to comply with the CFP Regulation when setting the definitive TACs for shared stocks for EU fishing vessels after negotiations between the European Union and the United Kingdom had taken place. It is therefore in that context that the Council stated that it did not agree with the applicant’s argument that nothing in the TCA, or in the European Union’s position during the consultations with the United Kingdom in 2022, permitted it to depart from the rules for setting TACs laid down in the CFP Regulation, which did not mean, however, that such an approach had been followed when the definitive TACs for shared stocks were set in Regulation 2022/515.
39      In reply to a question put by the Court at the hearing, the Council and the Commission confirmed that the legal framework applicable to the TACs set in Regulation 2022/515, to which reference is made in the contested decision, consisted of the CFP Regulation and the multiannual plan for the Western Waters and that the rules of the TCA were relevant only as regards the first stage relating to the negotiations between the European Union and the United Kingdom. It is for that reason that the Council maintained, in its written pleadings before the Court, that it was only if the Court were to find that the Council had set a TAC above the level at which it could be set under the internal CFP rules that the TCA would in any event offer a greater degree of flexibility in setting the TACs at issue.
40      It follows from all of the foregoing considerations that, contrary to the applicant’s claims, the Council did not consider that it was not required to comply with internal EU law when it implemented the TACs agreed in the written record of 21 December 2021 in the EU legal order, by setting the definitive TACs for shared stocks in Regulation 2022/515. The first part of the second plea in law must therefore be rejected as unfounded.
The second and third parts of the second plea in law alleging errors of law as regards the Council’s margin of discretion for setting fishing opportunities and as regards its competence under Article 43(3) TFEU
41      In the second part of the second plea in law, the applicant complains that the Council erred in law as regards its margin of discretion for setting fishing opportunities.
42      Indeed, according to the applicant, the relevant legal framework contains no implicit or explicit derogations from the fundamental MSY objective laid down in Article 2(2) of the CFP Regulation of progressively restoring and maintaining populations of fish stocks above biomass levels capable of achieving the MSY by 2015 where possible and, on a progressive, incremental basis at the latest by 2020 for all stocks. In addition, the applicant submits that Article 5(3) of the multiannual plan for the Western Waters does not apply to stocks shared between the European Union and the United Kingdom, which are covered only by Articles 3 and 15 of the CFP Regulation. In any event, even assuming that Article 5(3) of that multiannual plan applies to shared stocks, that provision does not provide for any derogation from the MSY objective or from the deadline for achieving it. Thus, the applicant asserts that neither the ‘importance of trying to avoid premature closure of fisheries for stocks in good shape’ nor the intention to ‘ensure a level playing field for Union operators’ specified by the Council constitute reasons for setting TACs above those recommended in the ICES advice.
43      In the third part of the second plea, the applicant submits that the Council committed manifest errors as regards the limits of its competence under Article 43(3) TFEU. According to the applicant, the Council exceeded its competence in the same manner as an EU institution can be found to exceed its implementing power under Article 291 TFEU, given that measures adopted under Article 43(3) TFEU, such as Regulation 2022/515, are taken in order to implement acts adopted on the basis of Article 43(2) TFEU, such as the CFP Regulation. Those limits correspond, in particular, to the MSY objective and the obligations to adopt a precautionary approach and an ecosystem-based approach when setting fishing opportunities, in accordance with Article 2(2) and (3) of the CFP Regulation. However, the Council exceeded its competence under Article 43(3) TFEU by exercising its discretion to choose the stocks for which it could set TACs not in line with the MSY objective, despite the best available scientific advice for each of those stocks. The Council thus made a policy choice which falls within the scope of Article 43(2) TFEU.
44      The Council, supported by the Commission, disputes the applicant’s arguments.
45      It should be noted that the second and third parts of the second plea essentially concern the question whether or not the applicable legal framework conferred on the Council discretion to set the annual fishing opportunities at levels above those recommended in the best available scientific advice, in the light of the MSY objective to be achieved by 2020 at the latest, referred to in the second subparagraph of Article 2(2) of the CFP Regulation. It will thus be necessary to determine whether the second subparagraph of Article 2(2) of the CFP Regulation imposed on the Council a clear and non-derogable obligation to set the TACs at issue in accordance with the best available scientific advice in order to achieve MSY exploitation rates for all stocks at the latest by 2020, as the applicant claims.
46      In paragraphs 12 to 59 of the contested decision, the Council essentially considered that it had not made any policy choice falling within the scope of Article 43(2) TFEU and that, while the MSY objective referred to in the second subparagraph of Article 2(2) of the CFP Regulation was certainly, in principle, a binding objective to be achieved by 2020 where no derogations applied, the applicable legal framework nevertheless afforded it wider discretion than acknowledged by the applicant, since the CFP pursued not only environmental objectives but also social and economic objectives, which it had to weigh up when setting TACs.
47      In particular, recital 8 of the CFP Regulation provides that ‘management decisions relating to maximum sustainable yield in mixed fisheries should take into account the difficulty of fishing all stocks in a mixed fishery at [MSY] at the same time, in particular where scientific advice indicates that it is very difficult to avoid the phenomenon of “choke species” by increasing the selectivity of the fishing gears used’. Article 9(5) of the CFP Regulation provides that ‘multiannual plans may contain specific conservation objectives and measures based on the ecosystem approach in order to address the specific problems of mixed fisheries in relation to the achievement of the objectives set out in Article 2(2) [of that regulation] for the mixture of stocks covered by the plan in cases where scientific advice indicates that increases in selectivity cannot be achieved’ and that ‘where necessary, the multiannual plan shall include specific alternative conservation measures, based on the ecosystem approach for some of the stocks that it covers’. Consequently, Article 5(3) of the multiannual plan for the Western Waters provides that the management of mixed fisheries with regard to by-catches covered by that multiannual plan is to take into account the difficulty of fishing all stocks at MSY at the same time, especially in situations where that leads to a premature closure of the fishery.
48      The Council thus considered that it had a margin of discretion for setting TACs above the levels recommended in the ICES advice for cod in the Celtic Sea (COD/7XAD 34), whiting (WHG/07A), cod in the West of Scotland (COD/5BE6A), Rockall cod (COD/5W6-14), cod in the Irish Sea (COD/07A) and pollack in the Celtic Sea (POL/56-14 and POL/07), which constitute by-catches covered by the multiannual plan for the Western Waters or which are to be managed as such under Article 4(6) of that multiannual plan, in order to take account of the difficulties associated with mixed fisheries and to avoid the phenomenon of choke species, in accordance with Article 5(3) of that multiannual plan. As regards Northern prawn (PRA/2AC4-C), the Council stated that, according to the ICES advice, there should be no targeted fisheries in 2022 and 2023, which did not preclude the setting of TACs for that stock as a by-catch. The TAC set in Regulation 2022/515 thus relates exclusively to by-catches for that stock, in accordance with the ICES advice.
49      As a preliminary point, it should be recalled that, as is apparent from the wording of Article 43(2) TFEU, the European Parliament and the Council are required to adopt, in accordance with the ordinary legislative procedure, inter alia, the ‘provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy’, whereas, 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’.
50      In addition, according to the case-law of the Court of Justice, 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, whereas 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 (see, to that effect, judgments of 26 November 2014, Parliament and Commission v Council, C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 50, and of 1 December 2015, Parliament and Commission v Council, C‑124/13 and C‑125/13, EU:C:2015:790, paragraphs 48 and 50).
51      In that regard, while Article 43(3) TFEU confers on the Council the power to adopt, inter alia, acts having as their objective the implementation of provisions adopted under Article 43(2) TFEU, the fact remains that, contrary to what is apparent from the applicant’s line of argument, those acts are not simply to be considered the same as the acts conferring implementing powers, within the meaning of Article 291(2) TFEU (see, to that effect, judgment of 1 December 2015, Parliament and Commission v Council, C‑124/13 and C‑125/13, EU:C:2015:790, paragraph 54).
52      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 acts on the basis of Article 43(3) TFEU, acts within the limits of its powers and, where relevant, within the legal framework already established by the EU legislature under Article 43(2) TFEU (see, to that effect, judgment of 1 December 2015, Parliament and Commission v Council, C‑124/13 and C‑125/13, EU:C:2015:790, paragraphs 48, 50 and 58).
53      The CFP Regulation and the multiannual plan for the Western Waters were adopted on the basis of Article 43(2) TFEU and set out the policy choices of the EU legislature with regard to the CFP, which were binding on the Council when it adopted Regulation 2022/515 in accordance with Article 43(3) TFEU. Thus, the margin of discretion enjoyed by the Council in setting TACs in Regulation 2022/515 depended on the leeway which the EU legislature had decided to afford it in the CFP Regulation and in the multiannual plan referred to above.
54      So far as concerns, in the first place, the CFP Regulation, the first subparagraph of Article 2(2) of that regulation lays down the principle according to which the CFP ‘shall apply the precautionary approach to fisheries management’ and indicates that that policy is to ‘aim to ensure that exploitation of living marine biological resources restores and maintains populations of harvested species above levels which can produce the [MSY]’.
55      Indeed, as recital 6 of the CFP Regulation states, the CFP should contribute to the European Union’s implementation of its obligations under the United Nations Convention on the Law of the Sea, concluded at Montego Bay on 10 December 1982, and the Agreement on the implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (‘the UN Fish Stocks Agreement’), which entered into force on 11 December 2001, to which it is a contracting party, in respect of the conservation, management and exploitation of fish stocks.
56      In particular, as is apparent from recital 7 of the CFP Regulation, the adoption of that regulation seeks to act against the ‘continued decline of many fish stocks’ and to ‘improve’ the CFP by reorienting it towards the objective of the long-term sustainability of fishing activities, in particular by ‘adapting [the] exploitation rates’ of those stocks so as to ensure, ‘within a reasonable time frame’, the achievement of the objective of restoring and maintaining harvested populations above levels that can produce the MSY.
57      More specifically, ‘in order to achieve [that] objective’, the second subparagraph of Article 2(2) of the CFP Regulation provides that ‘the [MSY] exploitation rate shall be achieved by 2015 where possible and, on a progressive, incremental basis at the latest by 2020 for all stocks.’
58      It is apparent from the wording of the second subparagraph of Article 2(2) of the CFP Regulation that, while there is some latitude in setting an exploitation rate to achieve MSY between 2015 and 2020, on the other hand, as is emphasised by the expressions ‘at the latest’ and ‘all stocks’, the period for achieving that objective expires, in principle, in 2020, for all of the biological resources that occur in the management areas covered by the CFP, in accordance with the definition of ‘stock’ in Article 4(1)(14) of that regulation (judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero), C‑330/22, EU:C:2024:19, paragraph 64).
59      However, first, contrary to what the applicant claims, the second subparagraph of Article 2(2) of the CFP Regulation must be interpreted in the light of that article as a whole, which requires, in paragraph 1 thereof, that the CFP ensure that fishing and aquaculture activities are environmentally sustainable in the long term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies. The latter objectives include, in Article 2(5)(c), (f) and (g) of that regulation, the objective of providing conditions for an economically viable and competitive fishing capture and processing industry and land-based fishing-related activity, that of contributing to a fair standard of living for those who depend on fishing activities, bearing in mind coastal fisheries and socio-economic aspects and that of contributing to ensuring a level-playing field for fisheries and aquaculture products marketed in the European Union (see, to that effect, judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero), C‑330/22, EU:C:2024:19, paragraph 65).
60      Furthermore, it follows also from Article 2 of the CFP Regulation, read as a whole, that the long-term environmental sustainability of fishing activities entails not only the setting of the rates of exploitation of species which can produce the MSY, but also, in accordance with Article 2(3) of that regulation, the minimisation of the negative impacts of those activities on the marine ecosystem and, in particular, as Article 2(5)(a) of that regulation indicates, the gradual elimination of discards, on a case-by-case basis, taking into account the best available scientific advice, by avoiding and reducing, as far as possible, unwanted catches and by gradually ensuring that catches are landed (judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero), C‑330/22, EU:C:2024:19, paragraph 66).
61      Secondly, under Article 10(1)(b) and (c) of the CFP Regulation, multiannual plans are to contain, in particular, objectives that are consistent with the objectives set out, inter alia, in Article 2 and with the relevant provisions of Article 9 of that regulation, as well as quantifiable targets such as fishing mortality rates.
62      In that regard, Article 9(5) of the CFP Regulation provides that the multiannual plans adopted on the basis of Article 9(1) of that regulation may contain specific conservation objectives and measures based on the ecosystem approach in order to address the specific problems of mixed fisheries in relation to the achievement of the objectives set out in Article 2(2) of the CFP Regulation for the mixture of stocks covered by the plan in cases where scientific advice indicates that increases in selectivity cannot be achieved.
63      Article 9(5) of the CFP Regulation must be read in the light of recital 8 of that regulation, which states that ‘management decisions relating to [MSY] in mixed fisheries’ must ‘take into account the difficulty of fishing all stocks in [such a] fishery at [MSY] at the same time, in particular where scientific advice indicates that it is very difficult to avoid the phenomenon of “choke species” by increasing the selectivity of the fishing gears used’. The fact that the EU legislature considered it necessary to provide those details, immediately after having set out, in recital 7 of the said regulation, the objective of restoring all stocks to MSY level by 2020 at the latest, underlines its intention not to exclude the possibility of adapting that objective in cases where it could not be achieved simultaneously for all stocks in a mixed fishery (judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero), C‑330/22, EU:C:2024:19, paragraph 69).
64      In the case of mixed fisheries, within the meaning of Article 4(1)(36) of the CFP Regulation, that is to say, fisheries where different species are likely to be caught together in the same fishing operation, the stocks for which the allocated quota is zero or exhausted most quickly can have a ‘choking’ effect, by obliging fishing vessels to cease operations before the quotas allocated for other species – especially those targeted by those operations – are caught. Furthermore, as recital 8 of that regulation emphasises, the phenomenon of ‘choke species’ cannot always be avoided by increasing the selectivity of the fishing gears used (judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero), C‑330/22, EU:C:2024:19, paragraph 70).
65      It therefore follows from Article 9(5) of the CFP Regulation, read in the light of recital 8 of that regulation, that the EU legislature intended to provide for the possibility, inter alia in the context of multiannual plans, of adapting the objectives set out in Article 2(2) of that regulation, in particular that contained in the second subparagraph of that paragraph, to take account of the difficulty, in the context of mixed fisheries, of achieving an MSY exploitation rate for all stocks exploited at the same time, regard being had to the phenomenon of ‘choke species’, where increasing the selectivity of fishing gears does not enable that phenomenon to be avoided (see, to that effect, judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero), C‑330/22, EU:C:2024:19, paragraph 71).
66      In that regard, in the second place, in the context of the multiannual plan for the Western Waters, the EU legislature established, in Articles 4 and 5 of that multiannual plan, a differentiated management regime, first, for target stocks and, second, for by-catch stocks, aimed precisely at taking into account the specific problems of mixed fisheries, in accordance with Article 9(5) of the CFP Regulation (see, to that effect, judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero), C‑330/22, EU:C:2024:19, paragraph 72).
67      On the one hand, Article 4(1) of the multiannual plan for the Western Waters sets, for the target stocks, a targeted objective of fishing mortality within the ‘ranges of FMSY’, within the meaning of Article 2(2) of the multiannual plan for the Western Waters, that is to say ranges of values ‘provided for in the best available scientific advice … where all levels of fishing mortality within [those ranges] result in [MSY] in the long term’, and provides that that objective must be achieved as soon as possible, on a progressive, incremental basis, at the latest by 2020. Thus, that targeted objective specifies, as regards the target stocks covered by the abovementioned multiannual plan, the objective of achieving the MSY exploitation rate for all stocks, at the latest by 2020, set out in the second subparagraph of Article 2(2) of the CFP Regulation (see, to that effect, judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero), C‑330/22, EU:C:2024:19, paragraph 73).
68      On the other hand, Article 5(1) of the multiannual plan for the Western Waters provides that management measures for by-catch stocks including, where appropriate, fishing opportunities are to be set ‘taking into account the best available scientific advice’ and that they are to be consistent with the objectives laid down in Article 3 of that multiannual plan, which reiterate, in general terms, the long-term environmental sustainability objectives set out in Article 2 of the CFP Regulation. In addition, Article 5(3) of that multiannual plan provides that, in accordance with Article 9(5) of the CFP Regulation, the management of mixed fisheries with regard to by-catch stocks is to take into account the difficulty of fishing all stocks at MSY at the same time, ‘especially in situations where that leads to a premature closure of the fishery’.
69      It follows that the maximum period for achieving an MSY exploitation rate, laid down in the second subparagraph of Article 2(2) of the CFP Regulation, applies strictly and without exception to the target stocks listed in Article 1(1) of the multiannual plan for the Western Waters. However, for the management of by-catch stocks falling within the scope of that multiannual plan, and in particular for the setting of fishing opportunities for those stocks, the Council has discretion, regard being had to the difficulties arising from the setting of such exploitation rates for all stocks fished at the same time, especially if that fixing would lead to the premature closure of a fishery as a result of the phenomenon of ‘choke species’ described in paragraph 64 above (see, to that effect, judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero), C‑330/22, EU:C:2024:19, paragraph 75).
70      That finding cannot be called into question by the applicant’s argument that Article 15 of the multiannual plan for the Western Waters provides that, with the exception of the objectives of the CFP Regulation, in particular those referred to in Article 2(2) of that regulation, its other provisions, including Article 5(3) of that multiannual plan, do not apply to stocks shared with third countries, with the result that the Council’s margin of discretion for the management of by-catch stocks covered by that multiannual plan does not apply to stocks shared between the European Union and the United Kingdom.
71      Article 15(1) of the multiannual plan for Western Waters provides, inter alia, that ‘where stocks of common interest are also exploited by third countries, the Union shall engage with those third countries with a view to ensuring that those stocks are managed in a sustainable manner that is consistent with the objectives of [the CFP Regulation], in particular Article 2(2) thereof, and of this [multiannual plan]’.
72      Article 5 of the multiannual plan for the Western Waters forms part of Chapter III, entitled ‘Targets’, as does Article 4, with the result that that provision is applicable to shared stocks. It follows that the Council has a margin of discretion in managing the shared stocks which are the subject of by-catches covered by that multiannual plan, in accordance with the judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero) (C‑330/22, EU:C:2024:19, paragraph 73).
73      In the present case, it is apparent from paragraph 187 of the second request for internal review that the applicant challenged the TACs set in Regulation 2022/515 for Rockall cod (COD/5W6-14), cod in the Celtic Sea (COD/7XAD 34), whiting in the Irish Sea (WHG/07A), cod in the West of Scotland (COD/5BE6A), cod in the Irish Sea (COD/07A), pollack (POL/56-14 and POL/07), Northern prawn (PRA/2AC4-C), undulate ray (RJU/9-C), herring (HER/7G-K) and herring (HER/5BE6ANB and HER/6AS7BC), in so far as they exceeded the TAC levels recommended in the ICES advice.
74      However, it is apparent from the applicant’s written pleadings before the Court that it disputes the margin of discretion which the Council considered that it had in setting the TACs for certain stocks and the Council’s application of Article 5(3) of the multiannual plan for the Western Waters in respect of those stocks, in order to take account of the objective of avoiding choke situations or the premature closure of fisheries, as regards, in particular, the TACs set for whiting in the Irish Sea (WHG/07A), Northern prawn (PRA/2AC4-C), cod in the West of Scotland (COD/5BE6A), cod in the Irish Sea (COD/7XAD 34), Rockall cod (COD/5W6-14), cod in the Irish Sea (COD/07A) and pollack (POL/56-14 and POL/07).
75      First, cod in the Celtic Sea (COD/7XAD 34) constitutes a target stock referred to in Article 1(1)(7) of the multiannual plan for the Western Waters, as the Council correctly noted in paragraph 41 of the contested decision. However, it is apparent from Regulation 2022/515 that the TAC set for cod in the Celtic Sea (COD/7XAD 34) concerns only by-catches of that stock in fisheries targeting other species and that targeted fisheries for cod had been suspended. The Council thus explained, in paragraph 41 of the contested decision, that the TAC of 644 tonnes fixed for cod in the Celtic Sea (COD/7XAD 34), despite ICES’s zero catch advice, was intended solely to avoid premature closure of fisheries for multiple other stocks caught together.
76      In that regard, the applicant submitted, in its reply to a measure of organisation of procedure of the Court, that the fact that cod in the Celtic Sea (COD/7XAD 34) had since 2019 been subject to a TAC covering only by-catches showed that, because of its bad state, it was no longer fit for targeted catches. Thus, the discretion conferred on the Council for the management of by-catches covered by the multiannual plan for the Western Waters can only aggravate the depleted state of ‘target’ stocks which have been de facto reclassified as ‘by-catch’ stocks and jeopardise their recovery. The applicant thus claims that the MSY deadline should have applied strictly and without exception to cod in the Celtic Sea, as a target stock covered by the multiannual plan for the Western Waters.
77      In that regard, it should be noted, first, that Article 8(2) of the multiannual plan for the Western Waters provides that ‘when scientific advice indicates that the spawning stock biomass and, in the case of Norway lobster stocks, abundance of any of the stocks referred to in Article 1(1) is below the [limit spawning stock biomass reference point], further remedial measures shall be taken to ensure rapid return of the stock or functional unit concerned to levels above the level capable of producing MSY’ and that ‘in particular, those remedial measures may include, notwithstanding Article 4(3), suspending the targeted fishery for the stock or functional unit concerned and the adequate reduction of fishing opportunities’.
78      It is apparent from recital 7 of Regulation 2022/515 that the biomass of certain stocks, in particular of cod in the Celtic Sea (COD/7XAD 34), was below the biomass reference points. It follows that, in accordance with Article 8(2) of the multiannual plan for the Western Waters, the Council was entitled to suspend the targeted fishery for the stock of cod in the Celtic Sea (COD/7XAD 34) in order to ensure the rapid return of the stock concerned to levels above those capable of producing MSY.
79      Secondly, as the Council submitted in response to a measure of organisation of procedure of the Court, although cod in the Celtic Sea (COD/7XAD 34) constitutes a target stock covered by the multiannual plan for the Western Waters, the fact remains that that stock also constitutes a by-catch, inter alia, of the Norway lobster referred to in Article 1(1) of that multiannual plan. It is apparent from the ICES advice of 30 November 2021, formulated in response to an EU standing request on catch scenarios for cod in ICES divisions 7.e-k (Celtic Sea) which is subject to zero catch advice, to which the applicant and the Council referred in their pleadings, that cod in the Celtic Sea (COD/7XAD 34) is caught in most mixed fisheries in the Celtic Sea with other species for which non-zero catches are recommended, in particular haddock (had.27.7b-k), whiting (whg.27.7b-ce-k), Norway lobster (functional units 16, 17, 19, 20 to 21, 22 and outside the functional units of ICES subarea 7) and sole (sol.27.7fg). Those other species are designated as target stocks in Article 1(1), (16), (17), (23) and (33) of the multiannual plan for the Western Waters.
80      In those circumstances, cod in the Celtic Sea (COD/7XAD 34) also constitutes a by-catch referred to in Article 1(4) of the multiannual plan for the Western Waters, for which the Council had discretion to set fishing opportunities, in accordance with the case-law cited in paragraph 69 above.
81      It follows that the Council did not in any way ‘de facto reclassify’ the stock of cod in the Celtic Sea (COD/7XAD 34) as a by-catch, nor did it err in law in considering, in essence, in paragraph 41 of the contested decision, that it had a margin of discretion in setting the TAC for that stock in order to take account of the difficulties associated with mixed fisheries and to avoid the risk of premature closure of fisheries.
82      In addition, it is true that cod in the Irish Sea (COD/07A) and pollack in the Celtic Sea (POL/56-14 and POL/07) constitute target stocks referred to in points (6) and (29) of Article 1(1) of the multiannual plan for the Western Waters, respectively, as the Council noted in paragraphs 49 and 50 of the contested decision. However, for those two stocks, ICES was unable to determine ranges of FMSY due to the lack of available scientific data, as can be seen from the ICES advice to which Annex A.5.3 of the application refers.
83      In that regard, Article 4(6) of the multiannual plan for the Western Waters provides that where ‘ranges of FMSY’ cannot be determined for a stock listed in Article 1(1) because of a lack of adequate scientific information, that stock shall be managed in accordance with Article 5 until ranges of FMSY are available pursuant to Article 4(2) of that plan. Thus, since Article 5 of the multiannual plan for the Western Waters concerns the management of by-catch stocks, it must be inferred that stocks of cod in the Irish Sea (COD/07A) and pollack in the Celtic Sea (POL/56-14 and POL/07) must be managed as by-catch stocks covered by that multiannual plan, as the Council correctly stated in paragraphs 49 and 50 of the contested decision.
84      Thirdly, Rockall cod (COD/5W6-14) and Irish Sea whiting (WHG/07A) constitute by-catches referred to in Article 1(4) of the multiannual plan for the Western Waters, as the Council noted in paragraphs 31 and 48 of the contested decision. In addition, as the Council stated in paragraph 40 of that decision and in paragraph 22 of the defence, cod in the West of Scotland (COD/5BE6A) constitutes a by-catch both under Article 1(4) of Regulation (EU) 2018/973 of the European Parliament and of the Council of 4 July 2018 establishing a multiannual plan for demersal stocks in the North Sea and the fisheries exploiting those stocks, specifying details of the implementation of the landing obligation in the North Sea and repealing Council Regulations (EC) No 676/2007 and (EC) No 1342/2008 (OJ 2018 L 179, p. 1; ‘the multiannual plan for the North sea’), and under Article 1(4) of the multiannual plan for the Western Waters.
85      It follows that, since the TACs relating to cod in the Irish Sea (COD/07A), Rockall cod (COD/5W6-14), cod in the West of Scotland (COD/5BE6A), pollack in the Celtic Sea (POL/56-14 and POL/07) and whiting (WHG/07A), which are disputed by the applicant, concern stocks which constitute by-catches covered, inter alia, by the multiannual plans for the North Sea and the Western Waters or stocks which must be managed as such, the Council had discretion to set those TACs taking into account the difficulty associated with mixed fisheries, namely the difficulty of fishing all stocks at MSY at the same time, as it correctly stated in the contested decision.
86      That finding cannot be called into question by the applicant’s argument that the Court of Justice’s assessment that the Council has discretion to set the TACs for by-catches in view of the difficulties associated with mixed fisheries (see paragraph 69 above) is not applicable to the present case, since it is based exclusively on stocks which are the subject of zero-catch advice, whereas cod in the Irish Sea (COD/07A), Rockall cod (COD/5W6-14) and pollack in the Celtic Sea (POL/56-14 and POL/07), in particular, are the subject of ICES advice recommending quotas above zero, so that the choke risk and the risk of premature closure of fisheries is lower for the stocks in question.
87      In that regard, in paragraph 70 of the judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero) (C‑330/22, EU:C:2024:19), the Court of Justice stated that, in the case of mixed fisheries, within the meaning of Article 4(1)(36) of the CFP Regulation, that is to say, fisheries where different species are likely to be caught together in the same fishing operation, the stocks for which the allocated quota is zero or exhausted most quickly can have a ‘choking’ effect, by obliging fishing vessels to cease all operations before the quotas allocated for other species – especially those targeted by those operations – are caught. It thus followed that the choking phenomenon did not occur only when the TAC fixed for by-catch was zero, but also when it was at a lower level and when it was thus used up more quickly than the level set for the target stock, as was the case here. The Council therefore had discretion to determine whether it was possible to set TACs at the level capable of producing MSY and whether or not it was necessary to comply with the ICES advice, in accordance with that judgment.
88      In addition, the applicant submits that the finding of the Court of Justice in the judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero) (C‑330/22, EU:C:2024:19), that the Council had not exceeded the limits of its discretion by setting the contested TACs at a level higher than that recommended by ICES, is not comparable, given that the four criteria referred to in paragraphs 83 to 87 of that judgment are not satisfied in the present case.
89      As the Commission correctly maintained, the Court of Justice did not in any way establish, in paragraphs 83 to 87 of the judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero) (C‑330/22, EU:C:2024:19), a list of criteria which must necessarily be satisfied in order for the Council to be able to set a TAC at a level higher than that recommended by ICES for a given by-catch stock. In paragraphs 81 to 92 of that judgment, the Court of Justice examined, in essence, whether the Council had clearly exceeded the bounds of its discretion in finding, in the regulation the validity of which had been challenged before the Irish referring court, that, ‘in order to strike the right balance between continuing fisheries in view of the potentially severe socio-economic implications, and the need to achieve a good biological status for those stocks’, it was appropriate, ‘taking into account the difficulty of fishing all stocks in a mixed fishery at [MSY] at the same time’, to establish specific TACs for by-catches for those stocks and to set them at a level ‘such that mortality for those stocks is decreased and that it provides incentives for improvements in selectivity and avoidance’. It was in that context that the Court of Justice assessed, in particular in paragraphs 83 to 87 of that judgment, whether the TACs at issue had been set at a level which was not manifestly inappropriate for reconciling the objective of maintaining mixed fisheries with that of restoring a good biological status for the stocks concerned, relying on the specific circumstances of the case. The applicant’s argument cannot therefore succeed.
90      As regards Northern prawn (PRA/2AC4-C), to which no multiannual plan appears to apply, the TAC set at 990 tonnes in Regulation 2022/515 relates exclusively to by-catches. By not permitting any targeted fisheries for Northern prawn under that quota (see paragraph 48 above), the Council complied with the ICES advice. ICES had stated that, since it did not have sufficient data on the status of the stock, it recommended that targeted fisheries should not be authorised in 2022 and 2023. Furthermore, Table 3 in the ICES advice, to which the applicant refers, does indeed state the reference to ‘landings corresponding to the advice: 0’ for 2022 and 2023. However, the same table states that the ICES advice is limited to advising that there should be no targeted fisheries. By contrast, the ICES advice, including Table 3, does not exclude landings of the Northern prawn as a by-catch. It follows that, as regards Northern prawn, the Council complied with the ICES advice in order to achieve an MSY exploitation rate.
91      Furthermore, as recalled in paragraph 59 above, while it is true that the second subparagraph of Article 2(2) of the CFP Regulation provides that the deadline for achieving the MSY objective expires, in principle, in 2020, for all stocks, that provision must be interpreted in the light of Article 2 of that regulation as a whole, which requires in paragraph 1 that the CFP ensure that fishing and aquaculture activities are environmentally sustainable in the long term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits and of contributing to the availability of food supplies.
92      It is true that it follows from Article 9(5) of the CFP Regulation that multiannual plans may contain specific conservation objectives and measures in order to address the specific problems of mixed fisheries. However, the fact remains that, even in the absence of such a multiannual plan, the Council is required to balance the various objectives set out in Article 2 of the CFP Regulation. It follows that multiannual plans may give concrete expression to that balancing by providing, where appropriate, for specific conservation measures, but that the Council must nonetheless fulfil its task of balancing the various objectives also in the absence of a multiannual plan. It follows that the decision-making power lies with the Council, which cannot therefore be required to follow the ICES advice strictly without being able to take account of the constraints associated with the other objectives of the CFP referred to in Article 2 of the CFP Regulation.
93      It follows that, in the case of mixed fisheries characterised by the difficulty of fishing all species in such a fishery at MSY at the same time, the Council necessarily has a margin of discretion in order that the environmental objectives can be managed consistently with the socioeconomic objectives of the CFP, irrespective of whether or not the by-catch stock in question is covered by a multiannual plan, which, under Article 7(1)(a) of the CFP Regulation, is only one of the conservation measures that may be adopted for the purposes of implementing the objectives of the CFP Regulation. Given that it is not necessarily only by means of measures on the fixing and allocation of fishing opportunities that the objectives laid down in Article 2 of the CFP Regulation can be achieved, since the CFP Regulation provides for the possibility of adopting various conservation measures listed in Article 7 of that regulation, the Council cannot be required to follow, in all circumstances, ICES advice for fixing fishing opportunities.
94      That finding is borne out by the fact that Article 6(2) of the CFP Regulation merely provides that conservation measures are to be adopted taking into account scientific advice, but does not require the Council to follow it strictly in all cases.
95      It follows that the Council was right to take the view that there was no need to re-examine the TAC that it had set for Northern prawn (PRA/2AC4-C) exclusively as a by-catch in accordance with the ICES advice and in considering that it was necessary to take account of the difficulties associated with mixed fisheries and to avoid a choke situation, since Northern prawn was caught mainly as a by-catch of Norwegian pout.
96      It also follows from all of the above considerations that the Council did not err in law in considering that the applicable legal framework gave it a greater margin of discretion than that alleged by the applicant in setting the contested TACs in order to take account of the difficulties associated with mixed fisheries.
97      Moreover, in so doing, the Council did not err in law in finding that it had not made a policy choice under Article 43(2) TFEU and that it had not exceeded the limits of its competence under Article 43(3) TFEU. Contrary to what the applicant claims, the Council did not in any way remove by-catches from the scope of the MSY objective referred to in the second subparagraph of Article 2(2) of the CFP Regulation, but complied with the possibilities offered by the applicable legal framework to set them at a higher level than that recommended in the ICES scientific advice.
98      The second and third parts of the second plea and, therefore, the second plea in its entirety must therefore be rejected as unfounded.
The third plea in law alleging manifest errors of assessment as regards the implementation of the precautionary approach and the ecosystem-based approach
99      In support of the third plea in law, which is divided into two parts, the applicant submits, in essence, that the Council committed a manifest error of assessment regarding its obligation to set TACs in accordance with both the precautionary approach and the ecosystem-based approach required by Article 2(2) and (3) of the CFP Regulation.
100    The first part alleges a manifest error of assessment as regards the application of the precautionary approach to fisheries management, while the second part alleges a manifest error of assessment as regards the application of the ecosystem-based approach to fisheries management.
The first part of the third plea in law, alleging a manifest error of assessment as regards the application of the precautionary approach to fisheries management
101    The applicant submits, in essence, that the Council made a manifest error of assessment in taking the view that there was no need to review the TACs set in Regulation 2022/515 for Rockall cod (COD/5W6-14), cod in the Irish Sea (COD/07A), pollack (POL/56-14 et POL/07), undulate ray (RJU/9-C), Northern prawn (PRA/2AC4-C) and herring (HER/5BE6ANB and HER/6AS7BC), on account of a breach of the precautionary approach to fisheries management referred to in the first subparagraph of Article 2(2), point 8 of Article 4(1) and Article 9(2) of the CFP Regulation.
102    First, the applicant maintains that the Council misinterpreted the precautionary approach by considering (i) that ‘the more uncertain that advice …, the more reasonable it [could] be … to not entirely follow the headline advice only and also to take into account other elements, including uncertainties identified in the advice itself’, and (ii) that it had wider discretion than that asserted by the applicant, allowing it to set higher TACs than those recommended in the ICES precautionary advice. According to the applicant, the application of the precautionary approach involves greater caution where information is uncertain, unreliable or inadequate, requiring compliance with the ICES precautionary advice. In the contested decision, the Council took the view, as regards Northern prawn (PRA/2AC4-C), Rockall cod (COD/5W6-14), pollack (POL/56-14 and POL/07) and undulate ray (RJU/9-C), that, in the absence of firm evidence of the poor status of the stock, there could be grounds for exceeding the recommendations in the ICES precautionary advice, which is contrary to the precautionary approach to fisheries management.
103    Secondly, the Council’s discretion in applying the precautionary approach is strictly limited by the MSY objective, which applies to all stocks, whether they are covered by advice based on the MSY objective or by precautionary ICES advice. The Council therefore has an obligation to set TACs at or below the levels recommended in the ICES precautionary advice so that those stocks may plausibly be exploited at sustainable levels by 2020 at the latest.
104    The Council, supported by the Commission, disputes the applicant’s arguments.
105    It should be noted that the scope of the judicial review carried out by the Courts of the European Union in their examination of an action for annulment brought pursuant to Article 12 of Aarhus Regulation against a decision of the Council concerning a request for internal review adopted pursuant to Article 10 of that regulation does not differ from the scope of the judicial review which the General Court carries out on the merits of the grounds of decisions directly challenged on the basis of Article 263(2) and (4) TFEU (see judgment of 18 October 2023, TestBioTech v Commission, T‑606/21, not published, EU:T:2023:649, paragraph 18 and the case-law cited).
106    In that regard, where an EU institution is called upon to make complex assessments, it enjoys a wide measure of discretion, the exercise of which is subject to a judicial review restricted to verifying that the measure in question is not vitiated by a manifest error or a misuse of powers and that the competent authority did not clearly exceed the bounds of its discretion (see judgment of 18 October 2023, TestBioTech v Commission, T‑606/21, not published, EU:T:2023:649, paragraph 19 and the case-law cited).
107    In order to establish that an institution committed a manifest error in assessing complex facts such as to justify the annulment of an act, the evidence adduced by the applicant must be sufficient to make the factual assessments used in the act implausible. Subject to that review of plausibility, it is not the Court’s role to substitute its assessment of complex facts for that made by the institution which adopted the decision. In other words, a plea alleging a manifest error of assessment must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid. That is particularly so where the decision at issue is vitiated by errors which, taken together, are of only minor significance unlikely to have influenced the administration (see judgment of 18 October 2023, TestBioTech v Commission, T‑606/21, not published, EU:T:2023:649, paragraph 20 and the case-law cited).
108    In the present case, the Council noted, in essence, in paragraphs 60 to 64 of the contested decision, that, first, the applicant’s interpretation, in the second request for internal review, of the role of scientific advice was too strict and amounted to a delegation of decision-making power to scientists. Secondly, as regards the precautionary approach, there was no obligation to ensure the highest possible level of environmental protection and the Council correctly weighed all the relevant considerations in the manner in which it applied the precautionary approach for the TACs of the stocks at issue, without exceeding the margin of discretion provided for by the applicable legal framework. The Council stated, however, that it intended to amend the TACs set for undulate ray (RJU/8-C and RJU/9-C) from 100 to 50 tonnes (RJU/9-C) and from 66 to 33 tonnes (RJU/8-C), following errors in the table in Annex I to Regulation 2022/515.
109    It is apparent from Table 4 of the second request for internal review that the applicant challenged the TACs for Rockall cod (COD/5W6-14), cod in the Irish Sea (COD/07A), pollack (POL/56-14 and POL/07), undulate ray (RJU/9-C), Northern prawn (PRA/2AC4-C) and herring (HER/5B6ANB and HER/6AS7BC), in so far as they exceeded the levels recommended in the ICES precautionary advice.
110    In that regard, on the one hand, Rockall cod (COD/5W6-14) and undulate ray (RJU/9-C) are by-catches covered by the multiannual plan for the Western Waters (see paragraph 84 above). In addition, cod in the Irish Sea (COD/07A) and pollack (POL/56-14 and POL/07) are target stocks covered by the multiannual plan for the Western Waters to be managed as by-catches, in accordance with Article 4(6) of that multiannual plan (see paragraph 82 above). Lastly, herring (HER/5B6ANB and HER/6AS7BC) and Northern prawn (PRA/2AC4-C) do not appear to be covered by the multiannual plan for the North Sea or by the multiannual plan for the Western Waters. However, herring (HER/5B6ANB and HER/6AS7BC) is subject only to a ‘sentinel’ TAC for the collection of scientific data, whereas Northern prawn (PRA/2AC4-C) is subject to a TAC covering only by-catches of that stock (see paragraph 48 above). On the other hand, all those stocks were the subject of ICES precautionary advice on account of the lack of sufficient or appropriate data.
111    It is apparent from the first subparagraph of Article 2(2) of the CFP Regulation that the precautionary approach must be applied to fisheries management.
112    Article 9(2) of the CFP Regulation provides that ‘where targets relating to the [MSY] as referred to in Article 2(2) [of that regulation] cannot be determined, owing to insufficient data, the multiannual plans shall provide for measures based on the precautionary approach, ensuring at least a comparable degree of conservation of the relevant stocks’.
113    Similarly, Article 3(5) of the multiannual plan for the Western Waters states that ‘measures under the plan shall be taken in accordance with the best available scientific advice’ and that ‘where there is insufficient data, a comparable degree of conservation of the relevant stocks shall be pursued’.
114    In addition, Article 5(2) of the multiannual plan for the Western Waters provides that by-catches are to be managed under the precautionary approach to fisheries management as defined in point 8 of Article 4(1) of the CFP Regulation, when no adequate scientific information is available, and in accordance with Article 3(5) of that multiannual plan.
115    It thus follows from the abovementioned provisions that by-catches or target stocks to be treated as by-catches covered by the multiannual plan for the Western Waters, for which there is insufficient scientific data, such as Rockall cod (COD/5W6-14), undulate ray (RJU/9-C), cod in the Irish Sea (COD/07A) and pollack (POL/56-14 and POL/07), must be managed in accordance with the precautionary approach to fisheries management in order to achieve a ‘comparable degree of conservation’, as the applicant and the Commission observed in response to a measure of organisation of procedure.
116    The same applies to stocks which are not covered by the multiannual plans for the North Sea and the Western Waters, such as herring (HER/5B6ANB and HER/6AS7BC) and Northern prawn (PRA/2AC4-C), given that Article 2(2) of the CFP Regulation provides, in general, that the CFP is to apply the precautionary approach to fisheries management.
117    In accordance with point 8 of Article 4(1) of the CFP Regulation, the ‘precautionary approach to fisheries management’, as referred to in Article 6 of the UN Fish Stocks Agreement, means an approach according to which the absence of adequate scientific information should not justify postponing or failing to take management measures to conserve target species, associated or dependent species and non-target species and their environment.
118    Moreover, it is apparent from recital 10 of the CFP Regulation that sustainable exploitation of marine biological resources should be based on the precautionary approach, which derives from the precautionary principle referred to in the first subparagraph of Article 191(2) TFEU, taking into account available scientific data.
119    It is thus apparent that the precautionary approach to fisheries management must be interpreted in the light of the precautionary principle referred to in the first subparagraph of Article 191(2) TFEU. In that regard, the abovementioned provision provides that ‘Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union’ and ‘it shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay’.
120    However, the case-law makes clear that, although the institutions are bound by their obligation under the first subparagraph of Article 191(2) TFEU to ensure a high level of environmental protection, that high level of protection does not necessarily, in order to be compatible with that provision, have to be the highest that is technically possible (see, to that effect, judgment of 14 July 1998, Safety Hi-Tech, C‑284/95, EU:C:1998:352, paragraph 49).
121    Thus, the precautionary approach to fisheries management, as defined in point 8 of Article 4(1) of the CFP Regulation, implies that data uncertainties should not serve as a justification for the Council not to adopt conservation measures. However, it is without prejudice to the question of what ‘management measures to conserve target species, associated or dependent species, non-target species and their environment’ are necessary and appropriate.
122    That is a fortiori the case, given that, as provided in Article 6(2) of the CFP Regulation, conservation measures are to be adopted ‘taking account of available scientific, technical and economic advice’. The Court of Justice has held in relation to a similar obligation under Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources (OJ 1983 L 24, p. 1) that fishery conservation measures need not be completely consistent with the scientific advice and the absence of such advice or the fact that it is inconclusive cannot prevent the Council from adopting such measures as it deems necessary for achieving the objectives of the CFP (see judgment of 11 January 2017, Spain v Council, C‑128/15, EU:C:2017:3, paragraph 50 and the case-law cited).
123    The objectives of the CFP include, in particular, that of contributing to ensuring a level playing field for fisheries and aquaculture products marketed in the European Union, in accordance with Article 2(5)(g) of the CFP Regulation.
124    The TACs contested by the applicant concern stocks shared between the European Union and the United Kingdom. According to Article 28 of the CFP Regulation, the European Union is to ensure that EU fishing activities outside EU waters are based on the same principles and standards as those applicable under EU law in the area of the CFP, while promoting a level-playing field for EU operators vis-à-vis third-country operators.
125    Furthermore, in accordance with Article 2(4) of the CFP Regulation, the CFP also contributes to the collection of scientific data.
126    Finally, when the Council is setting TACs and allocating fishing opportunities among Member States, it has to evaluate a complex economic situation, for which it has, in principle, broad discretion which is not limited to the nature and scope of the measures to be taken but extends, to some degree, to the finding of the basic facts (see, to that effect, judgment of 11 January 2017, Spain v Council, C‑128/15, EU:C:2017:3, paragraph 46 and the case-law cited).
127    In the first place, as has been pointed out in paragraph 110 above, Rockall cod (COD/5W6-14), cod in the Irish Sea (COD/07A), pollack (POL/56-14 and POL/07) and undulate ray (RJU/9-C) are by-catches or target stocks to be managed as by-catches covered by the multiannual plan for the Western Waters. Accordingly, the Council had discretion to set the TACs for those stocks taking into account the difficulty of fishing all stocks at MSY at the same time, in particular where that led to the premature closure of the fishery.
128    However, ICES precautionary advice recommends a TAC level that is considered sustainable and results solely from scientific considerations. That advice does not take any account of the other objectives referred to in Article 2 of the CFP Regulation which the Council is required to balance when setting a TAC for by-catches. Thus, contrary to what the applicant claims, the Council is not required to comply strictly with ICES precautionary advice, since, while scientific studies and advice must be taken into consideration by the Council, it is for the Council to take decisions setting fishing opportunities, in accordance with Article 43(3) TFEU, taking account of all the objectives referred to in Article 2 of the CFP Regulation, and not for scientists.
129    As the Commission also rightly asserted at the hearing, for stocks for which the data are limited or uncertain, the Council’s discretion is neither broader nor narrower. As stated in paragraph 121 above, the precautionary approach to fisheries management leaves the Council a certain degree of leeway to decide, in the light of data uncertainties, which management and conservation measures it considers necessary and appropriate. Thus, the discretion conferred on the Council to set fishing opportunities under the applicable legal framework remains the same for all by-catch stocks or stocks to be treated as such, whether they are the subject of ICES advice based on MSY or on the precautionary approach. In other words, since the stock concerned is a by-catch or must be managed as such, the Council has discretion to take account, where appropriate, of the difficulties associated with mixed fisheries, irrespective of whether the stock in question is the subject of advice based on the MSY objective or a precautionary advice.
130    It follows that, for by-catches and target stocks to be managed as by-catches, for which there is no sufficient or reliable scientific data, the precautionary approach to fisheries management affords the Council a margin of discretion in setting TACs for those stocks taking into account both ICES precautionary advice, identifying the potentially negative consequences for the sustainability of the stock and assessing the level of risk for that stock based on the most reliable scientific data available and the most recent scientific results, and difficulties linked to mixed fisheries. In addition, since the stocks at issue constitute stocks shared between the European Union and the United Kingdom, the Council must also take into account the need to ensure a level playing field for EU operators in relation to United Kingdom operators (see paragraphs 123 and 124 above).
131    It must be stated that such an approach was followed by the Council when setting the TAC for Rockall cod (COD/5W6-14), pollack (POL/56-14 and POL/07) and undulate ray (RJU/9-C).
132    As regards Rockall cod (COD/5W6-14), the Council explained, in paragraph 48 of the contested decision, that the overall TAC had been set at 74 tonnes instead of 14 tonnes, as was recommended in the 2020 ICES advice, first, in order to avoid a choke situation in mixed fisheries and, secondly, in so far as the Rockall cod TAC had been set at 74 tonnes since 2013, despite ICES precautionary advice recommending lower TACs, which did not appear to have harmed the stock in question, since the 2020 ICES advice stated that ‘a new survey … provides information indicating a recent increase in biomass’.
133    Similarly, as regards pollack (POL/56-14 and POL/07), the Council stated, in paragraph 50 of the contested decision, that it had set the overall TAC at 8 168 tonnes instead of 3 360 tonnes, as recommended in the 2021 ICES advice, in order to avoid a choke situation in mixed fisheries. Furthermore, the Council explained, inter alia, that the ICES advice was based on very limited data relating solely to commercial catch data, that the TAC of 8 168 tonnes amounted to a reduction of 15% compared with the 2021 TAC, which amounted in turn to a 22.5% reduction compared with the 2020 TAC, and that, in recent years, the TAC for that stock had not been fully used, so that it was unlikely that catches would exceed the level of catches advised by ICES. The Council thus considered that it was not necessary to further reduce the TAC level in 2022. Lastly, as explained in the explanatory memorandum to the proposal for Regulation 2022/515, the TAC level for pollack (POL/56-14 and POL/07) was agreed with the United Kingdom at a higher level than that proposed by the European Union, in order to achieve an overall outcome considered necessary and desirable in terms of sustainability and socioeconomic considerations, including the need to promote a level playing field.
134    In addition, as regards cod in the Irish Sea (COD/07A), the Council explained, in paragraph 49 of the contested decision, that it had set the overall TAC at 206 tonnes instead of 74 tonnes as recommended in the 2021 ICES advice, first, in order to avoid a choke situation in mixed fisheries and, secondly, in order to achieve an overall outcome considered necessary and desirable in terms of sustainability and socioeconomic considerations, including the need to promote a level playing field. Lastly, the Council noted that the TAC level at issue, which related exclusively to by-catches of cod in the Irish Sea (COD/07A), corresponded to the same level as that adopted in 2021.
135    Lastly, as regards undulate ray (RJU/9-C), the Council first of all explained, in paragraphs 51 and 54 of the contested decision, that it had erroneously stated in Regulation 2022/515 that the overall TAC corresponded to 100 tonnes, whereas in reality it was only 50 tonnes, so that it was necessary to correct the TAC for undulate ray (RJU/9-C). The Council then noted that the TAC in question covered only by-catches in accordance with the ICES advice, that there was very little information available on the stock of undulate ray and that the TAC for that stock had remained stable at approximately 50 tonnes since 2016. Lastly, the Council explained that the TAC for undulate ray (RJU/9-C) was a ‘sub-TAC’ of the larger TAC for skates and rays in EU waters in areas 8 and 9 (SRX/89-C) and that, when it had set the TAC for undulate ray (RJU/9-C), it had taken account of the amendment to the ICES advice in 2021 and 2022 for all the stocks concerned in areas 8 and 9, which had led to an 8% increase in the TAC for skates and rays (SRX/89-C), and, consequently, in the TAC for undulate ray (RJU/9-C).
136    Thus, for the stocks referred to in paragraph 131 above, the Council, first, assessed the most reliable and recent scientific data available, which led it, where appropriate, to establish a lower level of risk than that set out in the ICES advice in relation to the potentially negative consequences for the sustainability of those stocks, and, secondly, took account of the difficulties associated with mixed fisheries, in view of the fact that the stocks in question constituted by-catches or had to be managed as such, and in view of the need to ensure a level playing field for EU operators in relation to United Kingdom operators. In so doing, the Council correctly applied the precautionary approach to fisheries management to the by-catches at issue or to the target stocks to be managed as such, as described in paragraph 130 above.
137    Moreover, the applicant has not put forward any argument capable of making the Council’s assessments referred to in paragraphs 132 to 135 above implausible.
138    As regards Rockall cod (COD/5W6-14), the applicant complains that the Council relied on a survey mentioned in the ICES advice of June 2020, in so far as, in the absence of more recent advice, the information contained in that survey indicating a recent increase in biomass would not have made it possible to determine whether the positive trend in the status of that stock was still up-to-date. As was pointed out in paragraph 130 above, the Council was entitled to rely on the most reliable and recent scientific data available, which corresponded, in the present case, to the 2020 ICES advice and the survey to which it referred, which led it to establish a lower level of risk of potentially negative consequences for the sustainability of Rockall cod (COD/5W6-14) stock.
139    As regards pollack (POL/56-14 and POL/07), the applicant complains, first, that the Council relied on the fact that the TACs for that stock which had been set for previous years had not been fully used. It submits that it does not dispute the actual catch rates, but the level of the TACs agreed. In addition, it asserts that setting TACs above that recommended in the ICES advice, based on the assumption that uptake will remain low enough in order for the resulting catches not to exceed the TAC level recommended by ICES is contrary to the precautionary approach. Secondly, the applicant also criticises the Council for having considered that there was no need to further reduce the level of the TAC for pollack, even though the ICES advice was based on ‘very limited data based solely on commercial catch data’.
140    In that regard, it should be noted that, in setting the TAC for pollack at 8 168 tonnes instead of 3 360 tonnes as recommended in the 2020 ICES advice, the Council relied on data in the 2020 ICES advice, which demonstrated, in particular, that the commercial landings of that stock had been below the TAC recommended by ICES since 2017, so that it did not make a manifest error of assessment in inferring that it was unlikely that catches of that stock would exceed the TAC level recommended by ICES for 2022. Furthermore, the applicant does not call into question the fact that the Council significantly reduced the TAC level in 2021 and 2022, thus taking into account, inter alia, the fact that the data relating to that stock were limited.
141    As regards cod in the Irish Sea (COD/07A) and undulate ray (RJU/9-C), the applicant merely claims that the Council was not entitled to set a TAC above the level recommended in the ICES precautionary advice. However, it has already been established in paragraphs 127 and 128 above that the Council had a margin of discretion in setting the TAC for the stock at issue and that it was not required to comply strictly with the scientific advice in order to adopt the measures which it considered necessary in order to achieve the objectives of the CFP.
142    It follows from the above considerations that the Council did not commit a manifest error of assessment when setting the TAC for Rockall cod (COD/5W6-14), pollack (POL/56-14 and POL/07), cod in the Irish Sea (COD/07A) and undulate ray (RJU/9-C) in the light of the precautionary approach to fisheries management.
143    In the second place, as regards Northern prawn (PRA/2AC4-C), which does not appear to be the subject of the multiannual plan for the North Sea or the multiannual plan for the Western Waters, the Council noted, in paragraphs 36 to 38 of the contested decision, that the TAC for the stock at issue concerned only by-catches and that no targeted fishery for that stock was authorised under that quota, which was consistent with the ICES advice. In addition, the Council stated that several factors corroborated the fact that the Northern prawn (PRA/2AC4-C) stock was not in a bad state and that the TAC for that stock had, in agreement with the United Kingdom, been set at a level which made it possible to avoid choke situations, which took account of the specific characteristics of mixed fisheries, given that Northern prawn was mainly caught as a by-catch of Norwegian pout.
144    In that regard, the applicant complains, in essence, that the Council did not set the TAC at issue at a level equal to or lower than the level set in 2021, which was 660 tonnes, but increased it by 50% to 990 tonnes. Such a significant increase would not only be ‘counter-intuitive’ if the objective pursued were to avoid targeted fisheries and would also be contrary to the precautionary approach, given the lack of robust information on the state of the stock.
145    However, the 50% increase in the TAC for Northern prawn (PRA/2AC4-C) compared with the previous year was justified, in particular, by the fact that the data contained in the best available scientific advice corroborated the fact that the stock in question was not in a critical state. As is apparent from paragraph 38 of the contested decision, the Council relied, first, on the ICES advice of 2021 on Northern prawn (PRA/2AC4-C), which states that ‘a new index of abundance based on the weight proportion of [Northern prawn] as by-catch in the Danish … fishery for Norway pout shows a steep increase in 2021’ and, on the other hand, on a report of November 2021 from ICES, which states that ‘stock size is likely at a relative high level and fishing mortality at a relatively low level’ and that ‘new information from the fisheries and the Norwegian [Northern prawn] survey indicate that the stock size has increased since 2018 and presently is at a relatively high level’. The applicant has not put forward any argument capable of calling into question those scientific opinions on which the Council relied when setting the TAC for Northern prawn (PRA/2AC4-C).
146    In addition, as regards herring stocks (HER/7G-K, HER/5B6ANB and HER/6AS7BC), which also do not appear to be the subject of the multiannual plan for the North Sea or the Western Waters, the Council explained, in paragraphs 52 and 53 of the contested decision, that it had set ‘sentinel’ TACs of 869 tonnes for the ‘HER/7G-K’ stock and 4 840 tonnes for the ‘HER/5B6ANB’ and the ‘HER/6AS7BC’ stocks, in order to ensure adequate data collection for better stock assessment. The Council added, as regards the stock ‘HER/7G-K’, that the level of the TAC at issue corresponded to that recommended by ICES in 2021 in the event that a ‘sentinel’ TAC was set and that it would lead to an increase in the biomass of that stock by 7% in 2023. Similarly, the Council noted, with regard to the ‘HER/5B6ANB’ and ‘HER/6AS7BC’ stocks, that the TAC level corresponded to that recommended in the ICES advice in 2016 where a ‘sentinel’ TAC was set, which was to lead to a 17% increase in biomass in 2022.
147    In that regard, the applicant ‘takes note’ that the purpose of the TACs set for herring stocks (HER/5B6ANB and HER/6AS7BC) was to ensure the collection of scientific data. However, the applicant maintains that in order to give legal effect to that intention, the Council should have expressed it explicitly in Regulation 2022/515, as it did for the TAC relating to the ‘HER/7G-K’ stock, in order to reserve access to those TACs only for monitoring purposes.
148    The Council explained, in footnote 53 to the contested decision, that, although Regulation 2022/515 did not specify that the TAC set for herring (HER/5B6ANB and HER/6AS7BC) was intended to ensure the collection of scientific data, the fact remains that that was apparent from the explanatory memorandum to the proposal for Regulation 2022/515, which stated that ‘a monitoring TAC [had been] agreed with the United Kingdom for herring West of Scotland (HER/5BE6ANB) and … herring West of Ireland (HER/6AS7BC)[, which] will result in an increase in biomass level in 2022 (+ 21%) compared to the 2021 biomass level’ and thus confirmed that that TAC should be understood only as a ‘sentinel’ TAC.
149    In any event, the applicant does not put forward any arguments capable of calling into question the TACs set for the herring stocks at issue (HER/5B6ANB and HER/6AS7BC).
150    It follows from the foregoing considerations that the Council also did not commit a manifest error of assessment in considering that there was no need to review the TACs for Northern prawn (PRA/2AC4-C) and herring (HER/5B6ANB and HER/6AS7BC), on the ground that it had set them in the light of the precautionary approach to fisheries management.
151    The first part of the third plea must therefore be rejected as unfounded.
The second part of the third plea, alleging a manifest error of assessment as regards the application of the ecosystem-based approach to fisheries management
152    The applicant submits, in essence, that the Council set the TACs for Celtic Sea haddock (HAD/7XAD 34), megrim (LEZ/07 and LEZ/8ABDE), anglerfish (ANF/07 et ANF/8ABDE), common sole (SOL/7FG) and Norway lobster (NEP/07 et NEP/5BC6), in breach of the ecosystem-based approach to fisheries management, as provided for and defined in Article 2(3) and Article 4(1)(9) of the CFP Regulation. In particular, the applicant submits that the ecosystem-based approach referred to in Article 2(3) of the CFP Regulation and the MSY target to be achieved for all stocks, at the latest by 2020, referred to in the second subparagraph of Article 2(2) of that regulation, required the setting of a lower TAC than that recommended in the ICES headline advice, in so far as that was necessary to limit the inevitable catches of vulnerable by-catches in the same fishery. However, the Council did not adopt that approach, at least not to the extent necessary to safeguard vulnerable or depleted stocks caught alongside the more abundant target species in mixed fisheries, with the result that it committed a manifest error of assessment by refusing to review the contested TACs in the light of the ecosystem-based approach to fisheries management.
153    The Council, supported by the Commission, disputes the applicant’s arguments.
154    In paragraphs 65 to 73 of the contested decision, the Council considered that it was true that it had to apply the ecosystem-based approach, which involved taking into account the interaction between the various species caught in mixed fisheries. However, the provisions of the multiannual plans for the North Sea and the Western Waters relating to mixed fisheries do not entail an absolute rule that it is only the protection of the stock in the worst state which dictates the TAC level for all other stocks in a mixed fishery, irrespective of the social and economic cost. Moreover, ICES did not recommend a single scenario for mixed fisheries, but generally set out considerations rather than advice on mixed fisheries, precisely because they were not merely scientific choices. Furthermore, it was difficult to exclude fully any choke effect, so that the Council may legitimately prefer not to limit excessively all the TACs, in particular because that had the advantage of creating a major incentive for fishing more selectively. Indeed, if fishers managed to reduce the catches of the limiting stock, they could fish more of the stocks with higher TACs. By contrast, the setting of zero TACs prevented the collection of data and the proper assessment of stocks and, in the case of mixed fisheries, that would have entailed closing not only the fishery for the most vulnerable stock, but also the fisheries for all other stocks caught in the same mixed fishery, including those in a very good state, which would have significant socioeconomic consequences and be contrary to the balanced pursuit of all the objectives of the CFP.
155    Article 2(3) of the CFP Regulation provides that ‘the CFP shall implement the ecosystem-based approach to fisheries management so as to ensure that negative impacts of fishing activities on the marine ecosystem are minimised, and shall endeavour to ensure that aquaculture and fisheries activities avoid the degradation of the marine environment’.
156    Article 4(1)(9) of the CFP Regulation defines the ecosystem-based approach to fisheries management as ‘an integrated approach to managing fisheries within ecologically meaningful boundaries which seeks to manage the use of natural resources, taking account of fishing and other human activities, while preserving both the biological wealth and the biological processes necessary to safeguard the composition, structure and functioning of the habitats of the ecosystem affected, by taking into account the knowledge and uncertainties regarding biotic, abiotic and human components of ecosystems’.
157    It is thus apparent from the abovementioned provisions that, on the one hand, the implementation of the ecosystem-based approach to fisheries management seeks to ensure that negative impacts of fishing activities on the marine ecosystem are minimised. On the other hand, that approach involves taking into account, when setting fishing opportunities, the interaction between the different species in the context of mixed fisheries and thus avoid an approach focused on a single species that would treat the target stock as if it were independent of the rest of the ecosystem (see, to that effect, Opinions of Advocate General Wahl in Deutscher Naturschutzring, Dachverband der deutschen Natur- und Umweltschutzverbände e.V., C‑683/16, EU:C:2018:38, point 23, and in Bosphorus Queen Shipping, C‑15/17, EU:C:2018:123, point 78). Fishing of a target stock is likely to have an adverse effect on the state of the by-catch stock and, therefore, on the rest of the ecosystem.
158    The Council must therefore, in accordance with the ecosystem-based approach, take into account the inevitable catches of by-catches when setting the TAC for a target stock, in order to avoid as far as possible that catches of target stocks do not undermine the sustainability of the stocks which constitute by-catches in the same mixed fishery.
159    At the same time, the Council must also take into account the difficulties relating to mixed fisheries, which gives it discretion to strike the best balance between TACs for target stocks and associated by-catches (see paragraph 93 above).
160    In the present case, it is apparent from the second request for internal review that the applicant challenges the TACs for haddock in the Celtic Sea (HAD/7X7A34), Norway lobster (NEP/07), Norway lobster (NEP/5BC6), anglerfish (ANF/07 and ANF/8ABDE), megrim (LEZ/07 and LEZ/8ABDE) and common sole (SOL/7FG), in so far as they are contrary to an ecosystem-based approach to fisheries management.
161    Megrim (LEZ/07 and LEZ/8ABDE), anglerfish (ANF/07 and ANF/8ABDE), haddock in the Celtic Sea (HAD/7X7A34) and common sole (SOL/7FG) are target stocks referred to in Article 1(1), (10), (12), (16) and (33) of the multiannual plan for the Western Waters and are associated with by-catches of cod in the Celtic Sea (COD/7X7AD 34).
162    In addition, it is true that Norway lobster (NEP/5BC6) and Norway lobster (NEP/07) also constitute target stocks referred to in Article 1(1), (22) and (23) of the multiannual plan for the Western Waters. Norway lobster (NEP/07) is associated with by-catches of whiting (WHG/07), while Norway lobster (NEP/5BC6) is associated with by-catches of cod (COD/5BE6A).
163    In paragraphs 71 to 73 of the contested decision, the Council first of all noted that the applicant did not dispute that the TACs for common sole (SOL/7FG), Norway lobster (NEP/07) and Norway lobster (NEP/5BC6) had been set at the level recommended in the ICES headline advice, whereas the TACs for haddock in the Celtic Sea (HAD/7X7A34), megrim (LEZ/07 and LEZ/8ABDE) and anglerfish (ANF/07 and ANF/8ABDE) had been set below the level recommended in the ICES headline advice. Next, the Council considered that it had not followed a single species approach for the stocks in question. In particular, as regards haddock in the Celtic Sea (HAD/7X7A34), megrim (LEZ/07 and LEZ/8ABDE) and anglerfish (ANF/07 and ANF/8ABDE), the Council set the TAC at a level below that recommended in the ICES headline advice, although the stocks were considered to be in a good state. Furthermore, the Council considered, in essence, that the TACs set for those stocks did not mean that the TAC for cod in the Celtic Sea (COD/7X7AD 34) could be exceeded. The Council therefore concluded that the contested TACs had not been set in breach of the ecosystem-based approach to fisheries management and that there was no need to amend them.
164    First, the applicant submits that the Council’s assessment in paragraph 69 of the contested decision, according to which it could legitimately prefer not to limit excessively all TACs for target stocks in order to encourage fishers to fish more selectively, is true only where fisheries are effectively controlled, in particular by monitoring compliance with the landing obligation. However, it claims that that is not the case in practice. It is apparent from a communication from the Commission to the Parliament and the Council, entitled ‘Towards more sustainable fishing in the EU: state of play and orientations for 2022’ (COM(2021) 279 final), that compliance with the landing obligation remains poor and discard rates are in many cases uncertain.
165    In addition, it is apparent from the 2022 ICES advice that the most recent catches in 2021 of cod in the Celtic Sea (COD/7XAD 34), whiting in the Irish Sea (WHG/07A) and cod in the West of Scotland (COD/5BE6A), which constitute by-catches of the target stocks referred to in this part of the third plea, have indeed exceeded the TACs agreed for those by-catches, which shows that, in practice, those TACs were not respected and that the Council was thus wrong to assert that the setting of TACs for the target stocks in the mixed fishery at the level recommended in the ICES headline advice does not result in the TAC for by-catches being exceeded.
166    In that regard, it is indeed apparent from the Commission’s communication referred to by the applicant that, inter alia, ‘the Member States for which [audit] reports have been completed have not adopted the necessary measures to ensure control and enforcement of [the landing] obligation and show significant undocumented discarding of catches by operators’ and that ‘the findings of the audits indicate that the landing obligation is not effectively controlled and enforced and that quantities recorded as discarded and the landed quantities of catches below the [minimum conservation reference size] are very low’.
167    However, in accordance with Article 15(1) of the CFP Regulation, concerning the landing obligation, ‘all catches of species which are subject to catch limits, … caught during fishing activities in Union waters or by Union fishing vessels outside Union waters in waters not subject to third countries’ sovereignty or jurisdiction … shall be brought and retained on board the fishing vessels, recorded, landed and counted against the quotas where applicable, … in accordance with the following time frames’.
168    In addition, Article 15(13) of the CFP Regulation provides that ‘for the purpose of monitoring compliance with the landing obligation, Member States shall ensure detailed and accurate documentation of all fishing trips and adequate capacity and means, such as observers, closed-circuit television (CCTV) and others’ and that ‘in doing so, Member States shall respect the principle of efficiency and proportionality’. It must therefore be held, as the Council has done, that it is for the Member States to check that the landing obligation is complied with.
169    Moreover, Article 16(2) of the CFP Regulation provides that ‘when the landing obligation in respect of a fish stock is introduced, fishing opportunities shall be fixed taking into account the change from fixing fishing opportunities that reflect landings to fixing fishing opportunities that reflect catches, on the basis of the fact that, for the first and subsequent years, discarding of that stock will no longer be allowed’.
170    It follows that the Council cannot be criticised for having set fishing opportunities on the basis of the principle that the landing obligation was complied with, with the result that fishing vessels would be legally obliged to stop catching the target stocks when the quota for associated by-catches was reached, as the Council essentially argued in response to a measure of organisation of procedure. It is the responsibility of the Member States to ensure compliance with the landing obligation and the TACs set and allocated by the Council, so that those TACs are not deprived of useful effect and help to combat the decline of fish stocks.
171    Furthermore, it should be noted that the ICES advice on which the applicant relies in order to show that the TACs for cod in the Celtic Sea (COD/7XAD 34), whiting in the Irish sea (WHG/07A) and cod in the West of Scotland (COD/5BE6A) were not complied with dates from 30 June 2022, well after Regulation 2022/515 was adopted.
172    Secondly, the applicant asserts that it does not complain that the Council entirely disregarded the impact of targeted fishing of haddock (HAD/7X7A34) on cod in the Celtic Sea (COD/7XAD 34), but that the TAC set for haddock still allows catches of cod which significantly exceed not only the zero catch advice for that stock, but also the TAC set at 644 tonnes for that stock. The same applies to megrim (LEZ/07 and LEZ/8ABDE) and anglerfish (ANF/07 and ANF/8ABDE).
173    However, the applicant’s argument seeks in reality to ask the Council to set a zero TAC for haddock (HAD/7X7A34), megrim (LEZ/07 and LEZ/8ABDE) and anglerfish (ANF/07 and ANF/8ABDE) in order that there be no catches of cod in the Celtic Sea (COD/7XAD 34), in accordance with the ICES advice.
174    As was found in the context of the examination of the second plea, the applicable legal framework affords the Council a margin of discretion which allows it to depart from the zero TAC recommended in the ICES advice for cod in the Celtic Sea (COD/7XAD 34) in order to take account of the difficulties linked to mixed fisheries and to avoid the premature closure of fisheries. Furthermore, as the Council correctly noted in paragraph 70 of the contested decision, the setting of zero TACs in the case of mixed fisheries would entail the closure not only of the fishery for the most vulnerable stock, but also of the fisheries for all other stocks caught in the same mixed fishery, including those in a good state, which would be contrary to Article 2(1) of the CFP Regulation, under which it is for the Council to reconcile the environmental objectives of the CFP with the socioeconomic objectives of that regulation.
175    Thus, the applicant’s line of argument, which would have the effect of depriving the Council of the margin of discretion conferred on it under the applicable legal framework and which would be contrary to Article 2(1) of the CFP Regulation, must be rejected.
176    Thirdly, as regards sole (SOL/7FG) and Norway lobster (NEP/5BC6 and NEP/07), the applicant states that the TACs were set at a level equal to, rather than below, that recommended in the ICES headline advice, without taking account of their potential impact on by-catch stocks.
177    However, as stated in paragraphs 167 to 170 above and as the Council observed, in essence, in paragraph 72 of the contested decision, fishing vessels are legally obliged to cease catching target stocks when the quota for associated by-catches is reached. It follows that the fact that the TAC for sole (SOL/7FG) and Norway lobster (NEP/5BC6 and NEP/07) was set at a level equal to that recommended in the ICES headline advice cannot, in itself, demonstrate a breach of the ecosystem-based approach to fisheries management.
178    In those circumstances, the second part of the third plea in law must be rejected and, therefore, the third plea in law in its entirety must be rejected as unfounded.
The fourth plea in law, alleging a manifest error of assessment regarding misuse of powers
179    The applicant claims, in essence, that the Council erred in considering that it had not misused its powers in adopting Regulation 2022/515 and in refusing to review that regulation accordingly. The Council, first, evaded the legislative procedure referred to in Article 43(2) TFEU by altering the scope of the second subparagraph of Article 2(2) of the CFP Regulation and, secondly, used its powers with the sole or main purpose of achieving objectives other than those laid down in the CFP Regulation, by establishing TACs in order to promote the short-term social and economic interest of the fisheries sector.
180    The Council, supported by the Commission, disputes the applicant’s arguments.
181    In paragraph 78 of the contested decision, the Council acknowledged that it had taken into account the importance of avoiding premature closure of fisheries for stocks in good shape and attempted to ensure a level playing field for EU operators. However, the Council considered that those two objectives were legitimate in the light of the applicable legal framework, with the result that, in pursuing them, it had in no way attempted to adopt measures which fell within the scope of Article 43(2) TFEU. The Council thus asserted that it had set the TACs only in a manner which complied with the whole of the applicable legal framework and taking account of all the objectives of the CFP in a balanced manner, with the result that it had not misused its powers.
182    According to settled case-law, a measure is vitiated by misuse of power only if it appears, on the basis of objective, relevant and consistent evidence to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaties for dealing with the circumstances of the case (see judgment of 5 May 2015, Spain v Parliament and Council, C‑146/13, EU:C:2015:298, paragraph 56 and the case-law cited).
183    That is not the case here.
184    As was found in the context of the examination of the second plea in law, the applicable legal framework conferred a margin of discretion on the Council to set the TACs for by-catches in order to take account of the difficulties associated with mixed fisheries. In addition, as noted in paragraphs 123 and 124 above, the Council was entitled to set the TACs for shared stocks taking into account the need to ensure a level playing field for EU operators in relation to operators from third countries, in accordance with Article 2(5)(g) and Article 28 of the CFP Regulation. It follows that the applicant’s argument that the Council evaded the ordinary legislative procedure provided for in Article 43(2) TFEU by altering the scope of the second subparagraph of Article 2(2) of the CFP Regulation and adopted the contested TACs with the sole aim of promoting the short-term social and economic interest of the fisheries sector cannot succeed.
185    The fourth plea in law must therefore be rejected as unfounded and, consequently, the action must be dismissed in its entirety.
Costs
186    Under Article 134(1) of the Rules of Procedure of the General 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 applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Council, in accordance with the form of order sought by the Council.
187    The Commission is to bear its own costs, in accordance with Article 138(1) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Third Chamber, Extended Composition)
hereby:
1.      Dismisses the action;
2.      Orders ClientEarth AISBL to bear its own costs and to pay the costs incurred by the Council of the European Union;
3.      Orders the European Commission to bear its own costs.
Škvařilová‑Pelzl
Nõmm
Steinfatt
Kukovec
Buttigieg
Delivered in open court in Luxembourg on 25 June 2025.
V. Di Bucci
S. Papasavvas
Registrar
President
Table of contents
Background to the dispute
Forms of order sought
Law
The first plea in law, alleging an error of law and a manifest error of assessment as regards the grounds for review of administrative acts under the Aarhus Regulation
The second plea in law, alleging errors of law and a manifest error of assessment as regards the Council’s margin of discretion for setting fishing opportunities and as regards its competence under Article 43(3) TFEU
The first part of the second plea in law, alleging an error of law and a manifest error of assessment as regards the impact of the TCA on the Council’s competence to set TACs for shared stocks
The second and third parts of the second plea in law alleging errors of law as regards the Council’s margin of discretion for setting fishing opportunities and as regards its competence under Article 43(3) TFEU
The third plea in law alleging manifest errors of assessment as regards the implementation of the precautionary approach and the ecosystem-based approach
The first part of the third plea in law, alleging a manifest error of assessment as regards the application of the precautionary approach to fisheries management
The second part of the third plea, alleging a manifest error of assessment as regards the application of the ecosystem-based approach to fisheries management
The fourth plea in law, alleging a manifest error of assessment regarding misuse of powers
Costs
*      Language of the case: English.