European Parliament and European Commission v Council of the European Union.
Date: 2015-12-01
48. The Court, albeit in a different factual and legal context from that of the present case, held inter alia, at paragraph 50 of that judgment, that the adoption 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 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.
50. It follows from the judgment in Parliament and Commission  v Council  (C‑103/12 and C‑165/12, EU:C:2014:2400) that 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.
53. As the Court has stated on many occasions, the power to adopt implementing acts is, as a rule, conferred on the Commission and, in accordance with Article 291(2) TFEU, it is only exceptionally that that power may be reserved to the Council in ‘duly justified specific cases’ and the cases expressly provided for in Article 291(2) TFEU, which relate solely to the common foreign and security policy (see, to that effect, judgments in Parliament  v Council , C‑133/06, EU:C:2008:257, paragraph 47 and the case-law cited, and Commission  v Parliament and Council , C‑88/14, EU:C:2015:499, paragraph 30).
54. Thus, while it is true that Article 43(3) TFEU confers on the Council the power to adopt, inter alia, implementing acts in the area concerned, the fact remains that those acts are not simply to be considered the same as those provided for in Article 291(2) TFEU.
58. In that regard, 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 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.
59. 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.
86. The Court has held in this regard that, on grounds of legal certainty, the effects of such an act may be maintained, in particular where the immediate effects of its annulment would give rise to serious negative consequences for the persons concerned and where the lawfulness of the act in question is contested, not because of its aim or content, but on grounds of lack of competence or infringement of an essential procedural requirement. Those grounds include, in particular, the fact that an incorrect legal basis was used for the contested act (see judgment in Parliament and Commission  v Council , C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 90 and the case-law cited).