Case C‑113/14

Federal Republic of Germany

v

European Parliament

and

Council of the European Union

‛Action for annulment — Choice of legal basis — Article 43(2) TFEU or Article 43(3) TFEU — Common organisation of the markets in agricultural products — Regulation (EU) No 1308/2013 — Article 7 — Regulation (EU) No 1370/2013 — Article 2 — Measures on fixing prices — Reference thresholds — Intervention prices’

Summary — Judgment of the Court (Fifth Chamber), 7 September 2016

Acts of the institutions — Choice of legal basis — Criteria — Article 7 of Regulation No 1308/2013 establishing reference thresholds serving as a basis for the fixing of intervention prices with regard to the common organisation of agricultural markets — Adoption on the basis of Article 43(2) TFEU — Unlawful — Obligation to base such a provision on Article 43(3) TFEU

See the text of the decision. (see para. 27)

Measures involving a political choice reserved to the EU legislature due to the fact that they are necessary for the pursuit of the objectives of the common agriculture and fisheries policies must be based on Article 43(2) TFEU. By contrast, the adoption of measures on the fixing and allocation of fishing opportunities, in accordance with Article 43(3) TFEU, does not require such a choice, since such measures are principally technical and are intended to be taken in order to implement provisions adopted on the basis of Article 43(2) TFEU. Moreover, paragraphs 2 and 3 of Article 43 TFEU pursue different aims and each has a specific scope so that they can be used separately as a basis for adopting particular measures under the Common Agricultural 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 a legal framework already established under Article 43(2) TFEU. In that regard, it cannot validly be claimed that there exists a hierarchy between the two provisions at issue. The Council may make use of the powers conferred on it by Article 43(3) TFEU, although the EU legislature has not yet established a legal framework by exercising the powers conferred on it by Article 43(2) TFEU. (see paras 55, 58, 59)

The choice of the legal basis for an EU measure must rest on objective factors amenable to judicial review, which include the aim and content of that measure. As regards the fixing of reference thresholds, which are used exclusively as a basis in order to fix intervention prices for the products at issue by Article 7 of Regulation No 1308/2013 establishing a common organisation of the markets in agricultural products, it follows from Article 7(2) thereof that those thresholds must be reviewed in the light of objective factors such as production changes, production costs and market trends. Such a review requires principally technical and scientific assessments to be carried out, and must therefore be distinguished from measures involving political decisions which are reserved to the EU legislature. The assessment of elements which are principally technical with a view to adopting measures relating to fixing prices is a prerogative reserved to the Council by Article 43(3) TFEU. In so far as there is nothing else in Regulation No 1308/2013 which allows a distinction to be validly made between the review of the thresholds at issue and the initial fixing thereof, and in the light of the fact that the intervention prices are derived from the reference thresholds, it must be concluded that the fixing of those thresholds constitutes a price-fixing measure. Consequently, Article 7 of Regulation No 1308/2013 should have been adopted on the basis of Article 43(3) TFEU. That conclusion is not undermined by the argument that Article 7 of that regulation pursues the objectives referred to both in Article 43(2) TFEU and in Article 43(3) TFEU so that, given the preponderance of the objectives referred to in Article 43(2) TFEU, Article 7 of that regulation should not be annulled. Articles 43(2) and 43(3) TFEU pursue different aims and each has a specific field of application. Therefore, as the Council must act within the limits of its powers when it adopts measures on the basis of Article 43(3) TFEU, the EU legislature is required to act within the limits of its powers when it adopts measures on the basis of Article 43(2) TFEU. (see paras 61, 65, 70-74)