JUDGMENT OF THE GENERAL COURT (Third Chamber, Extended Composition)
25 June 2025 (*)
( Common fisheries policy – Conservation of resources – Total allowable catches – Regulation (EU) 2022/109 – 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) 2018/973 – Regulation (EU) 2019/472 – Target stocks – By-catches )
In Case T‑577/22,
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 contained in its letter of 5 July 2022 (‘the contested decision’) rejecting as unfounded its request for internal review of 25 March 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) 2022/109 of 27 January 2022 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).
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, 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 applicable 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 2022/109. 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 (EU) 2022/515 amending Regulation 2022/109 (OJ 2022 L 104, p. 1).
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 contested decision, the Council rejected the first request for internal review as in part devoid of purpose as regards the provisional TACs and in part unfounded.
11      By decision of 26 July 2022, contained in its letter of 3 August 2022, the Council rejected the second request for internal review as unfounded. That decision was the subject of an action for annulment brought by the applicant, registered under case number T‑648/22.
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, errors of law and manifest errors of assessment as regards the scope of the review and the grounds for reviewing administrative acts under the Aarhus Regulation, as well as an infringement of the right to effective judicial protection within the meaning of Article 47 of the Charter of Fundamental Rights of the European Union. The second plea alleges, in essence, 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 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 errors of law and manifest errors of assessment as regards the scope of the review and the grounds for review of administrative acts under the Aarhus Regulation and infringement of the right to effective judicial protection
15      In support of the first plea, which is divided into two parts, the applicant submits, in essence, that the Council committed errors of law and manifest errors of assessment as regards the scope of review and the grounds for review of administrative acts under the Aarhus Regulation.
16      In the first part, the applicant complains that the Council refused to review the provisional TACs set by Regulation 2022/109. In the second part, the applicant complains that the Council rejected as inadmissible the grounds of challenge alleging lack of competence and misuse of powers on the ground that they did not fall within the scope of Article 10 of the Aarhus Regulation.
The first part of the first plea in law, alleging that the Council wrongly refused to review the provisional TACs
17      The applicant submits that the Council committed an error of law and a manifest error of assessment in the application of Article 10 of the Aarhus Regulation by refusing to review the provisional TACs. First, the provisional TACs were still in force at the time when the first request for internal review was made. Moreover, the applicant submits that, according to settled case-law, an action for annulment against an act which is no longer in force is not necessarily devoid of purpose if the applicant retains an interest in the annulment of the contested act, in particular in order to prevent the unlawfulness from recurring in similar future acts. The provisional TACs applied from 1 January to 31 March 2022 and were set at levels which were not sustainable and which were higher than the recommendations of the best scientific advice, with the result that they were contrary to environmental law. Thus, since the Council is likely to set the provisional TACs once again in accordance with Article 499 of the TCA, there is a risk that the unlawfulness alleged by the applicant will be repeated. Secondly, by refusing to review the provisional TACs in the light of the arguments raised in the request for internal review, the Council infringed the applicant’s right to effective judicial protection.
18      The Council, supported by the Commission, disputes the applicant’s arguments.
19      In paragraphs 1 and 2 of the contested decision, the Council considered, in essence, that the applicant’s arguments relating to the provisional TACs submitted in the first request for internal review did not fall within the scope of Article 10 of the Aarhus Regulation, given that, first, those TACs were no longer in force, since they had in the meantime been replaced by the definitive TACs, set out in Regulation 2022/515, and, secondly, the applicant had submitted a second request for internal review, in respect of Regulation 2022/515, in order to challenge the definitive TACs. The Council thus considered that the first request for internal review had become devoid of purpose, in so far as it concerned the provisional TACs and therefore did not address the applicant’s arguments in that regard. The Council added that it would address separately the arguments relating to the definitive TACs for shared stocks in the context of the second request for internal review.
20      Under Article 10(1) of the Aarhus Regulation, any non-governmental organisation which meets the criteria set out in Article 11 of that regulation may submit a reasoned request and trigger an internal review of an administrative act by the EU institution or body that adopted it under environmental law.
21      According to Article 2(1)(g) of the Aarhus Regulation, as amended, an ‘administrative act’ is ‘any non-legislative act adopted by a Union institution or body, which has legal and external effects and contains provisions that may contravene environmental law within the meaning of point (f) of Article 2(1) [of that regulation]’.
22      In the present case, the request for internal review, rejected by the contested decision, was directed against Regulation 2022/109, adopted by the Council pursuant to Article 43(3) TFEU, which, as is common ground between the parties, constitutes a non-legislative act (see, to that effect, judgment of 26 November 2014, Parliament and Commission v Council, C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 49) and, therefore, an administrative act within the meaning of Article 2(1) (g) of the Aarhus Regulation, as amended.
23      It should be recalled that the objective of the internal review procedure is to create the possibility to initiate procedures to challenge acts that contravene environmental law (see, to that effect, judgment of 14 March 2018, TestBioTech v Commission, T‑33/16, EU:T:2018:135, paragraph 48).
24      The obligation to carry out an internal review under Article 10 of the Aarhus Regulation presupposes that the author of the act is required to examine a request for internal review in order to review, in the light of the claims of the party requesting the review, whether the administrative act in question is contrary to environmental law within the meaning of the Aarhus Regulation (see, to that effect, judgment of 14 March 2018, TestBioTech v Commission, T‑33/16, EU:T:2018:135, paragraph 49).
25      Unless the request for internal review in question is clearly unfounded, the institution or body that adopted the administrative act in question must consider the request and, once the internal review is concluded, may either reject the request for internal review as unfounded by reasoned decision or on the ground that the internal review did not lead to a different result than the one obtained by the act in question or, as legally permitted, take any other measure it deems appropriate to amend the act in question, including amendment, suspension or repeal of that act (judgment of 15 December 2016, TestBioTech and Others v Commission, T‑177/13, not published, EU:T:2016:736, paragraph 52).
26      In the present case, the provisional TACs, set in Regulation 2022/109, were replaced, after the submission of the first request for internal review, by the definitive TACs, set in Regulation 2022/515.
27      It is therefore necessary to examine whether, in the light of the replacement of the provisional TACs by the definitive TACs and contrary to the Council’s finding in the contested decision, the first request for internal review still had a purpose.
28      In that regard, it is apparent from recitals 59 and 60 of Regulation 2022/109, in essence, that the provisional TACs were adopted in accordance with Article 499(2) of the TCA, in so far as the parties to that agreement had not agreed on TACs applicable to shared stocks before the cut-off date of 20 December 2021. In accordance with recital 61 of that regulation, the provisional TACs were intended to ensure legal certainty for EU operators and the continuation of sustainable fishing activities until the adoption of the amendment to Regulation 2022/109 reflecting the outcome of the consultations under Article 498 of the TCA, expressed in the written record signed on 21 December 2021. It is apparent from recital 67 of Regulation 2022/109 that the approach followed in setting the provisional TACs did not prejudge the definitive TACs.
29      In addition, it follows from recital 4 of Regulation 2022/515 that the Council adopted that regulation in order ‘to replace the provisional TACs that were established in Regulation 2022/109 in accordance with the fishing opportunities agreed in the written record [of 21 December 2021] and to implement other measures functionally linked to the fishing opportunities also agreed in the written record’. Recital 22 of Regulation 2022/515 thus indicates that that regulation should amend Regulation 2022/109 in that regard. Lastly, it is apparent from the second subparagraph of Article 2 of Regulation 2022/515 that that regulation is to apply from 1 January 2022, while recital 23 states that such retroactive application does not affect the principles of legal certainty and protection of legitimate expectations, as the fishing opportunities concerned are increased or have not yet been exhausted.
30      It is thus clear that the provisional TACs, set in Regulation 2022/109, were replaced retroactively by the definitive TACs, set in Regulation 2022/515, with the result that Regulation 2022/109 no longer had legal effects as regards the TACs relating to shared stocks on the date of adoption of the contested decision. Thus, Regulation 2022/515 completely replaced Regulation 2022/109 as regards the TACs for shared stocks.
31      Furthermore, given that the applicant challenged the definitive TACs for shared stocks set by Regulation 2022/515 in the context of the second request for internal review and that the Council responded to those arguments in the decision of 26 July 2022, which is the subject of an action for annulment in Case T‑648/22, no infringement of the applicant’s right to effective judicial protection can be found in the present case.
32      In those circumstances, the Council did not err in law or make a manifest error of assessment in considering that the first request for internal review had become devoid of purpose in so far as it concerned the provisional TACs and that it was therefore not required to respond to the applicant’s arguments in that regard.
33      Furthermore, in so far as the applicant submits, in essence, relying on the judgment of 7 June 2007, Wunenburger v Commission (C‑362/05 P, EU:C:2007:322, paragraph 50), that it continues to have an interest in obtaining a review of the provisional TACs in order to prevent the alleged unlawfulness from recurring in similar future acts, it is sufficient to recall that, irrespective of whether that case-law is applicable by analogy to an internal review procedure, the arguments put forward by the applicant concerning the stocks subject to the provisional TACs were raised in the context of the second request for internal review, to which the Council replied in its decision of 26 July 2022, and that that assessment by the Council is subject to a review of legality in the context of the action brought by the applicant in Case T‑648/22 (see paragraph 31 above). In any event, the applicant does not explain how the provisional TACs would create a breach of environmental law distinct from that created by the definitive TACs.
34      The first part of the first plea in law must therefore be rejected as unfounded. In those circumstances, there will be no need to examine, subsequently, the applicant’s arguments relating to the provisional TACs raised in the context of the second and third pleas in law.
The second part of the first plea in law, alleging, in essence, that the Council wrongly rejected as inadmissible the pleas relating to lack of competence and misuse of powers
35      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 referred to in Article 10 of the Aarhus Regulation.
36      The Council, supported by the Commission, disputes the applicant’s arguments.
37      In paragraphs 6 and 58 of the contested decision, the Council considered, in essence, that the arguments alleging lack of competence and misuse of powers raised in the first 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.
38      The Council nevertheless examined the arguments put forward by the applicant in the context of the plea alleging lack of competence in paragraphs 8 to 38 of the contested decision and those put forward in the context of the plea alleging misuse of powers in paragraphs 60 to 63 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.
39      Since the question of its merits thus has no bearing on the legality of the contested decision, the second part of the first plea in law must be rejected as ineffective and, therefore, the first plea in law must be rejected in its entirety.
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
40      In support of the second plea in law, which is divided into two parts, the applicant submits, in essence, that the Council committed errors of law as regards the margin of discretion, powers and competences that it has under Article 43(3) TFEU to set fishing opportunities.
41      The Court considers it appropriate to deal with both parts of the second plea together.
42      By the first part, the applicant complains that the Council committed errors of law as regards its margin of discretion for setting fishing opportunities.
43      First, the applicable legal framework does not contain any implicit or explicit derogations from the fundamental maximum sustainable yield (MSY) objective provided for in the second subparagraph of Article 2(2) 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’), 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.
44      Secondly, the applicant submits that Article 16(4) of the CFP Regulation provides that fishing opportunities are to be fixed in accordance with the objectives set out in Article 2(2) of that regulation. By contrast, that provision makes no explicit reference to the objectives of Article 2(1) of the CFP Regulation, aimed at achieving economic, social and employment benefits and contributing to the availability of food supplies. The overarching objective when fixing fishing opportunities is thus exclusively expressed by Article 2(2) of the CFP Regulation. There is thus no legal basis for the Council to refuse to review the TACs at issue by setting the objectives of Article 2(2) of the CFP Regulation against those of Article 2(1) of that regulation.
45      Furthermore, the applicant asserts that neither economic, social or employment benefits nor food supply objectives can be secured in the long term if fish stocks will be entirely depleted in the future by constant overfishing. The overarching MSY objective is the prerequisite for achieving the environmental, social and economic objectives of the common fisheries policy (‘the CFP’), which is why it prevails over other considerations. There is therefore no conflict between environmental and socioeconomic long-term sustainability, but only between short- and long-term perspectives.
46      The applicant therefore asserts that, in order to ensure the sustainability of the CFP across all dimensions, recovery of depleted stocks should be prioritised by not setting TACs above scientific advice, and that impacts of target and mixed fisheries on those stocks must be taken into account when setting TACs.
47      Thirdly, according to the applicant, the Council misinterpreted the provisions relating to mixed fisheries covered by 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 by 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’).
48      The applicant maintains that Article 5(3) of the multiannual plans for the North Sea and for the Western Waters does not provide for the possibility of derogating from the MSY objective referred to in the second subparagraph of Article 2(2) of the CFP Regulation in order to keep mixed fisheries open, to the detriment of by-catch stocks or stocks to be treated as such, in accordance with Article 1(4) of those multiannual plans. The margin of discretion that Article 5(3) of those multiannual plans confers on the Council is strictly limited by the objective of fishing all stocks at exploitation rates equal to or below MSY by 2020 at the latest, in accordance with the second subparagraph of Article 2(2) and Article 16(4) of the CFP Regulation, and Article 3(1) of those multiannual plans. It follows that Article 5(3) of the multiannual plans for the North Sea and for the Western Waters cannot be interpreted as conferring on the Council a margin of discretion allowing it to set TACs, including for by-catch stocks or stocks managed as such, which are higher than the TACs recommended in the ICES advice, whether based on MSY or on the precautionary approach.
49      By the second part, the applicant submits that the Council committed manifest errors regarding the limits of its competence under Article 43(3) TFEU.
50      The applicant argues that 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 2022/109, 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 and by thus modifying the scope of the MSY objective. The Council thus made a policy choice which falls within the scope of Article 43(2) TFEU.
51      The Council, supported by the Commission, disputes the applicant’s arguments.
52      It must be noted that both 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.
53      In paragraphs 13 to 43 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 a wider margin of 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.
54      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’. However, Article 5(3) of the multiannual plans for the North Sea and for the Western Waters provides that the management of mixed fisheries with regard to by-catches covered by those multiannual plans 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.
55      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 Kattegat (COD/03AS), common hake (HKE/8C3411), pollack (POL/8ABDE, POL/08C and POL/9/3411), common sole (SOL/7BC) and Norway lobster (NEP/9/3411), which constitute by-catches covered by the multiannual plans for the North Sea and the Western Waters or which should be managed as such under Article 4(6) of those multiannual plans, 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 those multiannual plans.
56      In that regard, 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’.
57      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).
58      In that regard, while it is true that 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).
59      Moreover, the provisions of 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).
60      The CFP Regulation and the multiannual plans for the North Sea and 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 2022/109, in accordance with Article 43(3) TFEU. Thus, the discretion enjoyed by the Council in setting TACs in Regulation 2022/109 depended on the leeway which the EU legislature had decided to afford it in the CFP Regulation and in the multiannual plans referred to above.
61      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]’.
62      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.
63      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.
64      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’.
65      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).
66      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) and (f) 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, and that of contributing to a fair standard of living for those who depend on fishing activities, bearing in mind coastal fisheries and socioeconomic aspects (see judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero), C‑330/22, EU:C:2024:19, paragraph 65).
67      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).
68      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.
69      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.
70      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).
71      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).
72      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 (judgment of 11 January 2024, Friends of the Irish Environment (Fixing fishing quotas above zero), C‑330/22, EU:C:2024:19, paragraph 71).
73      In that regard, in the second place, in the context of the multiannual plans for the North Sea and for the Western Waters, the EU legislature established, in Articles 4 and 5 thereof, a differentiated management regime, first, for target stocks and, secondly, 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).
74      On the one hand, Article 4(1) of the multiannual plans for the North Sea and for the Western Waters sets, for the target stocks, a targeted objective of fishing mortality in line within the ‘ranges of FMSY’, within the meaning of Article 2(1) of the multiannual plan for the North Sea and 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, by 2020. Thus, that targeted objective specifies, as regards the target stocks covered by the abovementioned multiannual plans, 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).
75      On the other hand, Article 5(1) of the multiannual plans for the North Sea and 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 those multiannual plans, 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 those multiannual plans 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’.
76      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 plans for the North Sea and for the Western Waters. However, for the management of by-catch stocks falling within the scope of those multiannual plans, 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 is likely to lead to the premature closure of a fishery as a result of the phenomenon of ‘choke species’ described in paragraph 71 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).
77      In the present case, it is apparent from paragraph 178 of the first request for internal review that the applicant challenged the TACs set in Regulation 2022/109 for Rockall cod (COD/5W6-14), cod in the Kattegat (COD/03AS), cod in the Celtic Sea (COD/7XAD 34), whiting (WHG/07A), cod in the West of Scotland (COD/5BE6A), Northern prawn (PRA/2AC4-C), common hake (HKE/8C3411), pollack (POL/8ABDE, POL/08C and POL/9/3411), Norway lobster (NEP/9/3411), common sole (SOL/7BC), herring (HER/7G-K), herring (HER/5B6ANB and HER/6AS 7BC) and Norway lobster (NEP/8CU25), in so far as they exceed the TAC levels recommended in the ICES advice.
78      Given that the Council rightly considered that there was no need to examine the applicant’s arguments relating to the provisional TACs (see paragraphs 28 to 33 above), as regards Rockall cod (COD/5W6-14), cod in the Celtic Sea (COD/7XAD 34), whiting (WHG/07A), cod in the West of Scotland (COD/5BE6A), Northern prawn (PRA/2AC4-C), herring (HER/7G-K), herring (HER/5B6ANB and HER/6AS 7BC), as specified in Tables 1, 2, 4 and 5 of the first request for internal review, only the TACs relating to cod in the Kattegat (COD/03AS), common hake (HKE/8C3411), pollack (POL/8ABDE, POL/08C and POL/9/3411), Norway lobster (NEP/9/3411), common sole (SOL/7BC) and Norway lobster (NEP/8CU25) will be examined subsequently.
79      Cod in the Kattegat (COD/03AS) constitutes a by-catch covered by the multiannual plan for the North Sea, whereas pollack (POL/8ABDE, POL/08C and POL/9/3411) and common sole (SOL/7BC) constitute by-catches governed by the multiannual plan for the Western Waters, as the Council correctly pointed out in paragraphs 21, 34 and 35 of the contested decision.
80      In addition, it is true that common hake (HKE/8C3411) and Norway lobster (NEP/9/3411) constitute target stocks referred to in Article 1(1), (20) and (25) of the multiannual plan for the Western Waters, as the Council noted in paragraphs 32 and 36 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 in the ICES advice.
81      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) of that multiannual plan because of a lack of adequate scientific information, that stock is to 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 common hake (HKE/8C3411) and Norway lobster (NEP/9/3411) must be managed as by-catch stocks covered by that multiannual plan, as the Council correctly stated in paragraphs 32 and 36 of the contested decision.
82      It follows that, since the TACs relating to cod in the Kattegat (COD/03AS), common hake (HKE/8C3411), pollack (POL/8ABDE, POL/08C and POL/9/3411), Norway lobster (NEP/9/3411) and common sole (SOL/7BC), which are disputed by the applicant, concern stocks which constitute by-catches covered by the multiannual plans for the North Sea and for 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 rightly noted in the contested decision.
83      That finding cannot be called into question by the applicant’s argument that the Court of Justice’s assessment that the Council had discretion to set the TACs for by-catches in view of the difficulties associated with mixed fisheries (see paragraph 76 above) is not applicable to the present case, since it is based exclusively on stocks which are the subject of zero-catch advice, whereas all the stocks referred to in paragraph 82 above, with the exception of cod in the Kattegat (COD/03AS), 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.
84      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 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.
85      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.
86      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 socioeconomic 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.
87      It thus follows from all of the foregoing 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 linked to mixed fisheries.
88      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 above the level recommended in the ICES scientific advice.
89      Lastly, as regards Norway lobster (NEP/8CU25), the Council explained, in paragraph 37 of the contested decision, that it had set a very low ‘sentinel’ TAC of 1.7 tonnes in order to collect scientific data, as had been proposed by the Commission. The TAC level of 1.7 tonnes was that recommended by ICES in its 2018 advice.
90      In that regard, it is apparent from the ICES advice of 2018 on Norway lobster (NEP/8CU25), referred to in footnote 25 to the contested decision, that ‘ICES [recommended] that catches be zero in order to minimise the impact on the stock’ and that, ‘however, if it [were] not possible to carry out a UWTV study, the collection of [catch per unit of effort] data [(CPUE)] to monitor Norway lobster in [functional unit 25] would require ten fishing trips and would involve catches for 2018 not exceeding 1.7 tonnes’.
91      It follows that, although ICES had indeed recommended zero catches, it had also considered the possibility of setting a 1.7 tonne sentinel TAC in order to collect scientific data to assess the status of the Norway lobster stock (NEP/8CU25), meaning that the TAC set by the Council remained in accordance with ICES advice. In any event, although the applicant confirmed, following a question put by the Court at the hearing, that it disputed the TAC for Norway lobster (NEP/8CU25), it nevertheless did not put forward any specific argument capable of rendering implausible the Council’s assessment relating to that TAC, as set out in paragraph 37 of the contested decision.
92      The second plea in law must therefore be rejected in its entirety as unfounded.
The third plea in law, alleging manifest errors of assessment as regards the application of the precautionary approach and the ecosystem-based approach to fisheries management
93      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.
94      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
95      The applicant claims, 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 2022/109 for common hake (HKE/8C3411), pollack (POL/8ABDE, POL/08C and POL/9/3411), Norway lobster (NEP/9/3411) and common sole (SOL/7BC), on account of a breach of the precautionary approach to fisheries management referred to in the first subparagraph of Article 2(2), Article 4(1)(8) and Article 9(2) of the CFP Regulation.
96      First, according to the applicant, the Council misinterpreted the precautionary approach by considering 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 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.
97      Secondly, the Council did not specifically explain the reasons why it objected to the application of the precautionary buffer in line with the official ICES protocol, as regards common hake (HKE/8C3411), pollack (POL/8ABDE, POL/08C and POL/9/3411) and common sole (SOL/7BC). By departing from that precautionary buffer, which is necessary when knowledge of the stock status is limited, the Council disregarded the best available scientific advice.
98      Thirdly, the margin of discretion enjoyed by the Council in applying the precautionary approach is strictly limited by the MSY objective, which applies to all stocks, whether they are the subject of advice based on the MSY objective or of 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.
99      The Council, supported by the Commission, disputes the applicant’s arguments.
100    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).
101    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).
102    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).
103    In the present case, the Council noted, in essence, in paragraphs 44 to 48 of the contested decision, that, first, the applicant’s interpretation, in the first request for 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. In that regard, the Council explained, in essence, that it had set the TACs for the stocks at issue at a level higher than that recommended in the precautionary advice, first, because of certain doubts as to the need for the automatic application of the precautionary buffer entailing a 20% reduction in the level of catches, as recommended in the ICES precautionary advice, and, secondly, in order to take account of the difficulties associated with mixed fisheries and to avoid the phenomenon of choke species.
104    It is apparent from Table 5 of the first request for internal review that the applicant challenged the TACs for common hake (HKE/8C3411), pollack (POL/8ABDE, POL/08C and POL/9/3411), Norway lobster (NEP/9/3411), common sole (SOL/7BC), cod in the Kattegat (COD/03AS), Rockall cod (COD/5W6-14), Northern prawn (PRA/2AC4-C) and herring (HER/5B6ANB and HER/6AS 7BC), in so far as they exceeded the levels recommended in the ICES precautionary advice.
105    However, for the reasons set out in paragraphs 28 to 33 above, there is no need to examine the provisional TACs for Rockall cod (COD/5W6-14), Northern prawn (PRA/2AC4-C) and herring (HER/5B6ANB and HER/6AS 7BC).
106    In  that regard, on the one hand, pollack (POL/8ABDE, POL/08C and POL/9/3411) and common sole (SOL/7BC) are by-catches covered by the multiannual plan for the Western Waters (see paragraph 79 above). In addition, common hake (HKE/8C3411) and Norway lobster (NEP/9/3411) 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 paragraphs 80 and 81 above). Finally, cod in the Kattegat (COD/03AS) is a by-catch covered by the multiannual plan for the North Sea (see paragraph 79 above). On the other hand, all of those stocks were the subject of ICES precautionary advice on account of the lack of sufficient or appropriate data.
107    Next, it is apparent from the first subparagraph of Article 2(2) of the CFP Regulation that the precautionary approach must be applied in fisheries management.
108    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’.
109    Similarly, Article 3(5) of the multiannual plans for the North Sea and for the Western Waters states that ‘measures under the plan shall be taken in accordance with the best available scientific advice. Where there is insufficient data, a comparable degree of conservation of the relevant stocks shall be pursued’.
110    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. The same applies, in essence, as regards Article 5(2) of the multiannual plan for the North Sea.
111    It thus follows from the abovementioned provisions that by-catches or target stocks to be treated as by-catches covered by the multiannual plans for the North Sea and for the Western Waters, for which there is insufficient scientific data, such as all the stocks at issue referred to in paragraph 106 above, 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.
112    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.
113    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.
114    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’.
115    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).
116    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.
117    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).
118    Moreover, 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).
119    As recalled in paragraph 106 above, the stocks at issue are by-catches or target stocks to be managed as by-catches covered by the multiannual plans for the North Sea and 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.
120    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.
121    As the Commission also rightly asserted at the hearing, for stocks for which the data are limited or uncertain, the Council’s margin of discretion is neither broader nor narrower. As stated in paragraph 116 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 margin of discretion conferred on the Council to set fishing opportunities, as confirmed by 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, paragraph 75), 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 precautionary advice.
122    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.
123    As the Council and the Commission submitted in response to a measure of organisation of procedure, such an approach is reflected, in essence, in recital 17 of Regulation 2022/109 which states that ‘for stocks for which there is a lack of sufficient or reliable data on which to base stock size estimates, management measures and TAC levels should follow the precautionary approach to fisheries management, as defined in point 8 of Article 4(1) of [the CFP Regulation], while taking account of stock-specific factors, in particular available information on stock trends and mixed fisheries considerations’.
124    It was in that context that the Council stated, in paragraph 42 of the contested decision, 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’, which it also stated in its response to a measure of organisation of procedure.
125    In addition, in paragraphs 31 to 36 of the contested decision, the Council explained that in Regulation 2022/109 it had set higher TACs than those recommended in the ICES precautionary advice for common hake (HKE/8C3411), pollack (POL/8ABDE, POL/08C and POL/9/3411), Norway lobster (NEP/9/3411) and sole (SOL/7BC), first, in order to avoid a choke situation in mixed fisheries and, secondly, in so far as it considered, in essence, that the automatic application of the additional precautionary buffer of 20% by ICES was not justified in the light of the most reliable and recent scientific data available.
126    In particular, the Council noted that the common hake (HKE/8C3411) stocks had been considered to be in a good state in the 2019 ICES advice, that pollack (POL/8ABDE, POL/08C and POL/9/3411) catches had been relatively stable, that catches of Norway lobster (NEP/9/3411) had been well below the MSY reference point for over a decade and that they remained at a low level, and finally that it had set the TAC for common sole (SOL/7BC) at the same level as the previous year.
127    Thus, for each of the stocks referred to in paragraph 125 above, the Council, first, assessed the most reliable and recent scientific data available, which led it 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. 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 122 above. Moreover, the applicant has not put forward any specific evidence capable of rendering implausible the Council’s assessment that there was no need to apply the additional precautionary buffer of 20% recommended by ICES for the stocks referred to in paragraph 125 above.
128    Furthermore, as regards cod in the Kattegat (COD/03AS), the Council stated, in paragraphs 21 and 22 of the contested decision, that it had set a TAC at 97 tonnes and not a zero TAC as recommended in the ICES precautionary advice, given that it had to take account of the difficulties associated with mixed fisheries. The Council nevertheless stated, in paragraphs 22 to 25 of that decision, that the TAC of 97 tonnes corresponded to the lowest number of catches in recent years and reflected a further reduction in the TAC, as in previous years, since 2019. In addition, the Council stated that it had also set a TAC for Norway lobster in the Kattegat and Skagerrak (NEP/03A), of which cod (COD/03AS) was a by-catch, which was below the MSY value and, more specifically, in the lowest ‘FMSY range’ set out in the ICES advice, precisely in order to limit by-catches of cod. In addition, the Council adopted, in Article 17 of Regulation 2022/109, corrective measures to help the cod stock (COD/03AS) to recover, which obliged EU vessels operating in the Kattegat to use specific selective gears. Lastly, the Council stated that some Member States had declared that they would not use the year-to-year flexibility provided for in Article 15(9) of the CFP Regulation for cod in the Kattegat (COD/03AS).
129    It is thus apparent, first, that the Council sought to reconcile the ICES precautionary advice, which recommended setting a zero TAC for cod in the Kattegat (COD/03AS), with the difficulties associated with mixed fisheries, in accordance with the approach described in paragraph 122 above. On the other hand, in order to allow the recovery of the stock despite the TAC set at 97 tonnes, which is intended to avoid the premature closure of fisheries, the Council adopted additional measures to limit by-catches of cod (COD/03AS) in mixed fisheries and to improve selectivity when fishing for stocks for which cod is a by-catch. Such measures were intended to contribute to the recovery of the cod stock (COD/03AS) and were capable of offsetting the TAC level of 97 tonnes set for that stock. In the absence of such measures, the TAC level would have had to be reduced to enable that stock to recover, taking into account ICES precautionary advice, which recommended a zero TAC.
130    It follows that the Council did not commit any manifest error of assessment in applying the precautionary approach to fisheries management to cod in the Kattegat (COD/03AS) in considering that it could set the TAC for that stock at 97 tonnes and adopt functionally linked measures in order to help it recover.
131    In any event, the applicant merely claims that the measures referred to in paragraph 128 above do not guarantee a comparable degree of conservation, within the meaning of Article 9(2) of the CFP Regulation and Article 3(5) of the multiannual plan for the Western Waters. It does not therefore put forward any concrete evidence to show that the functionally linked measures adopted by the Council to help the cod in the Kattegat stock (COD/03AS) to recover were manifestly inappropriate.
132    Lastly, as regards Norway lobster (NEP/8CU25), the Council explained, in paragraph 37 of the contested decision, that it had set a very low ‘sentinel’ TAC of 1.7 tonnes in order to collect catch per unit of effort (CPUE) data, which corresponded to the level recommended by ICES in its 2018 advice.
133    As has already been stated in paragraphs 90 and 91 above, the Council complied with the ICES advice by setting the TAC for Norway lobster (NEP/8CU25) at 1.7 tonnes in order to collect scientific data. In any event, the applicant has not put forward any specific evidence capable of rendering implausible the Council’s assessment in paragraph 37 of the contested decision.
134    It follows from all of the foregoing considerations that the Council did not commit a manifest error of assessment with regard to the precautionary approach to fisheries management. The first part of the third plea in law must therefore be rejected as unfounded.
The second part of the third plea in law, alleging a manifest error of assessment as regards the application of the ecosystem-based approach to fisheries management
135    The applicant submits, in essence, that the Council set the TACs for megrim (LEZ/8C3411), anglerfish (ANF/8C3411), Norway lobster in the Kattegat and Skagerrak (NEP/03A), whiting (WHG/08), common sole (SOL/8AB) and Norway lobster (NEP/8ABDE), 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. The Council did not comply with those obligations, but followed a single species approach, with the result that it committed a manifest error of assessment in refusing to review the contested TACs in the light of the ecosystem-based approach to fisheries management.
136    The Council, supported by the Commission, disputes the applicant’s arguments.
137    In paragraphs 51 to 57 of the contested decision, the Council considered, in essence, 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. Finally, it was difficult to exclude fully any choke effect, so that the Council could legitimately prefer not to limit excessively all the TACs, in particular because this had the advantage of creating a major incentive for fishing more selectively. Indeed, if fishers manage to reduce the catches of the limiting stock, they can fish more of the target stocks with higher TACs.
138    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’.
139    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’.
140    It is thus apparent from the abovementioned provisions that, on the one hand, 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.
141    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.
142    At the same time, in accordance with Article 5(3) of the multiannual plans for the North Sea and for the Western Waters, the Council must also take into account the difficulties linked to mixed fisheries, which gives it discretion in order to strike the best balance between the TACs for target stocks and associated by-catches, as the Council rightly pointed out in paragraph 52 of the contested decision.
143    In the present case, it is apparent from the first request for internal review that the applicant challenged the TACs for Norway lobster (NEP/03A), megrim (LEZ/8C3411), anglerfish (ANF/8C3411), Norway lobster (NEP/8ABDE), whiting (WHG/08) and common sole (SOL/8AB), in so far as they are contrary to the ecosystem-based approach to fisheries management.
144    First, the applicant submits that the Council’s assessment in paragraph 53 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, that is not the case. 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.
145    In that regard, it is indeed apparent from the abovementioned communication 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’.
146    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’.
147    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.
148    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’.
149    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, so that the TACs set by the Council are not deprived of useful effect and help to combat the decline of fish stocks.
150    Secondly, Norway lobster in the Kattegat and Skagerrak (NEP/03A) is a target stock referred to in Article 1(1)(j) of the multiannual plan for the North Sea and is associated with by-catches of cod in the Kattegat (COD/03AS).
151    In paragraph 55 of the contested decision, the Council explained that it had set the TAC for Norway lobster (NEP/03A) below the level recommended in the ICES headline advice for that stock, that is to say, the level of landings corresponding to the catches associated with MSY lower, precisely in order to take account of by-catches of cod (COD/03AS). It is thus clear that the Council took account of the interaction between Norway lobster (NEP/03A) and cod (COD/03AS) when setting the TAC for Norway lobster.
152    The applicant asserts, however, that it does not criticise the Council for having disregarded the impact of targeted fishing for Norway lobster (NEP/03A) on cod (COD/03AS), but that the TAC set for Norway lobster still allows catches of cod which significantly exceed not only the zero catch advice for that stock, but also the TAC set at 97 tonnes for that stock. Cod accounts for 4% of catches of Norway lobster, which corresponds to volumes of cod ranging from 340 tonnes to 410 tonnes.
153    However, the applicant’s argument seeks in reality to ask the Council to set a zero TAC for Norway lobster (NEP/03A) so that there is no catch of cod (COD/03AS), in accordance with the ICES advice. 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 (COD/03AS) in order to take account of the difficulties linked to mixed fisheries and to avoid the premature closure of fisheries. 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, must be rejected.
154    Furthermore, in order to minimise by-catches of cod (COD/03AS) during targeted fishing for Norway lobster (NEP/03A) and to help the cod stock (COD/03AS) to recover as much as possible, while avoiding the premature closure of fisheries, the Council stated, in paragraphs 24 and 25 of the contested decision, that it had adopted functionally linked measures (see paragraphs 128 and 129 above). This concerns, in particular, the adoption of a remedial measure referred to in Article 17 of Regulation 2022/109, which obliges EU vessels operating in the Kattegat to use specific, more selective fishing gear. In addition, several Member States have stated that they would not apply the year-to-year flexibility provided for in Article 15(9) of the CFP Regulation to that stock. Such measures are intended to minimise the negative impacts of fishing activities on the marine ecosystem, in accordance with the ecosystem-based approach to fisheries management.
155    It follows that the Council did not commit a manifest error of assessment when setting the TAC for Norway lobster (NEP/03A) in the light of the ecosystem-based approach to fisheries management.
156    Thirdly, megrim (LEZ/8C3411), anglerfish (ANF/8C3411), whiting (WHG/08), Norway lobster (NEP/8ABDE) and common sole (SOL/8AB) constitute target stocks referred to in Article 1(1) (11), (13), (18), (24) and (35) of the multiannual plan for the Western Waters.
157    Megrim (LEZ/8C3411) and anglerfish (ANF/8C3411) are associated with by-catches of common hake (HKE/8C3411), whereas Norway lobster (NEP/8ABDE), whiting (WHG/08) and common sole (SOL/8AB) are associated with by-catches of pollack (POL/8ABDE, POL/08C and POL/9/3411).
158    In that regard, the Council noted, in paragraph 56 of the contested decision, that the applicant did not dispute that the TACs set for megrim (LEZ/8C3411), anglerfish (ANF/8C3411), Norway lobster (NEP/8ABDE), whiting (WHG/08) and common sole (SOL/8AB) were in line with the level recommended in the ICES headline advice. In addition, the applicant also acknowledged that the TACs set for whiting (WHG/08), common sole (SOL/8AB) and Norway lobster (NEP/8ABDE) were compatible with the TAC set for pollack (POL/8ABDE, POL/08C and POL/9/3411), which is the associated by-catch. Moreover, the TAC set for common sole (SOL/8AB) already constitutes a reduction of 36% compared with the TAC set in 2021. Finally, catches of megrim (LEZ/8C3411) and anglerfish (ANF/8C3411) are limited by the TAC set for by-catches of common hake (HKE/8C3411).
159    The applicant merely claims that the Council set all the TACs for the abovementioned stocks in accordance with the ICES headline advice and thus carried out a single species approach, which is contrary to the ecosystem-based approach. In addition, by stating in the seventh column, entitled ‘Other TACs affected and potential overshoot’, of Table 6 of the first request for internal review, that the TACs for the target stocks at issue set by Regulation 2022/109 would cause considerable overshoots of the TACs for associated by-catches set by that regulation, the applicant also appears to criticise the Council for failing to take account of the fact that, if the TACs for those target stocks were entirely exhausted, the TACs for by-catches associated with them would be considerably exceeded.
160    However, as the Council noted in response to a measure of organisation of procedure, fishing vessels are required to cease catches of target stocks as soon as the by-catch quota is reached, so that the TACs for target stocks referred to in paragraph 156 above should not mean that the TAC for associated by-catches is exceeded, provided that the Member States ensure compliance with the landing obligation.
161    It follows from all of the foregoing considerations that the Council did not commit a manifest error of assessment with regard to the ecosystem-based approach to fisheries management. The second part of the third plea in law must therefore be rejected as unfounded, as must, therefore, the third plea in law in its entirety.
The fourth plea in law, alleging a manifest error of assessment regarding misuse of powers
162    The applicant claims that the Council erred in considering that it had not misused its powers in adopting Regulation 2022/109 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.
163    The Council, supported by the Commission, disputes the applicant’s arguments.
164    In paragraphs 61 to 63 of the contested decision, the Council considered that, contrary to the applicant’s claims, it had in no way intended to allow the fishing sector to continue its activities in the short term without taking into consideration the achievement of the MSY objective referred to in Article 2 of the CFP Regulation, by circumventing the ordinary legislative procedure laid down in Article 43(2) TFEU, which is necessary to limit the scope of the MSY objective or to derogate from that objective or to achieve it within the prescribed period. 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.
165    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).
166    That is not the case here.
167    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. 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.
168    The fourth plea in law must therefore be rejected as unfounded and, consequently, the action must be dismissed in its entirety.
Costs
169    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.
170    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 errors of law and manifest errors of assessment as regards the scope of the review and the grounds for review of administrative acts under the Aarhus Regulation and infringement of the right to effective judicial protection
The first part of the first plea in law, alleging that the Council wrongly refused to review the provisional TACs
The second part of the first plea in law, alleging, in essence, that the Council wrongly rejected as inadmissible the pleas relating to lack of competence and misuse of powers
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 application of the precautionary approach and 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
The second part of the third plea in law, 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.