Joined Cases C‑124/13 and C‑125/13

European Parliament and European Commission

v

Council of the European Union

‛Actions for annulment — Regulation (EU) No 1243/2012 — Choice of legal basis — Article 43(2) and (3) TFEU — Policy decision — Long-term plan for cod stocks’

Summary — Judgment of the Court (Grand Chamber) 1 December 2015

Fisheries — Common Fisheries Policy — Provisions necessary for the pursuit of policy objectives — Measures on the fixing and allocation of fishing opportunities — Powers of the Council — Article 43(2) and (3) TFEU — Scope of each of those provisions

The adoption by the Parliament and the Council, in accordance with the ordinary legislative procedure, of provisions under Article 43(2) TFEU necessarily presupposes an assessment of whether those provisions are ‘necessary’ for the pursuit of the objectives of the common policies governed by the FEU Treaty, with the result that it entails a policy decision that must be reserved to the EU legislature. By contrast, the adoption by the Council of measures on the fixing and allocation of fishing opportunities, in accordance with Article 43(3) TFEU, does not require such an assessment since such measures are of a primarily technical nature and are intended to be taken in order to implement provisions adopted on the basis of Article 43(2) TFEU. Thus, paragraphs 2 and 3 of Article 43 TFEU pursue different aims and each have a specific field of application, which means that they may be used separately as a basis for adopting particular measures under the Common Fisheries Policy, provided that the Council, when it adopts measures on the basis of Article 43(3) TFEU, acts within the limits of its powers and, where relevant, within the legal framework already established under Article 43(2) TFEU. Accordingly, measures which do more than merely fix and allocate fishing opportunities may fall within the scope of Article 43(3) TFEU, provided that they do not entail a policy choice that is reserved to the EU legislature because the measures are necessary for the pursuit of the objectives of the common policies for agriculture and fisheries. (see paras 48, 58, 59)

The amendments made by Regulation No 1243/2012 to Articles 9 and 12 of Regulation No 1342/2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks are not confined to merely providing for the fixing and actual allocation of fishing opportunities in specific circumstances and on an annual basis but are intended to adapt the general mechanism for setting the total allowable catches and the fishing effort limitations in order to remedy the shortcomings arising from the application of the previous rules on automatic reduction, which were jeopardising attainment of the objectives of the multiannual recovery plan for cod stocks. Those amendments therefore define the legal framework in which fishing opportunities are established and allocated. They thus result from a policy choice having a long-term impact on the multiannual recovery plan for cod stocks. It follows that the amendments in question constitute provisions necessary for the pursuit of the objectives of the Common Fisheries Policy, as referred to in Article 43(2) TFEU. Consequently, those amendments should have been adopted under the legislative procedure referred to in that provision and the Council was not justified in selecting Article 43(3) TFEU as the legal basis for Regulation No 1243/2012. That regulation must thus be annulled. (see paras 79-81, 83)