Federal Republic of Germany v European Parliament and Council of the European Union.
Date: 2016-09-07
27


According to the settled case-law of the Court, partial annulment of an EU act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act at issue. The Court has repeatedly ruled that that requirement of severability is not satisfied where the partial annulment of an act would have the effect of altering its substance (judgment of 18 March 2014 in Commission v Parliament and Council, C‑427/12, EU:C:2014:170, paragraph 16 and the case-law cited).
55


It should, next, be pointed out that 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 (see, to that effect, Parliament and Commission v Council, C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 50, and of 1 December 2015 in Parliament and Commission v Council, C‑124/13 and C‑125/13, EU:C:2015:790, paragraphs 48 and 50).
56


In that regard, although Article 43(3) TFEU grants 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 conferring implementing powers, within the meaning of Article 291(2) TFEU (judgment of 1 December 2015 in Parliament and Commission v Council, C‑124/13 and C‑125/13, EU:C:2015:790, paragraph 54).
58


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 CAP, 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 (see, as regards the common fisheries policy, applicable mutatis mutandis to the CAP, the judgment of 1 December 2015 in Parliament and Commission v Council, C‑124/13 and C‑125/13, EU:C:2015:790, paragraph 58).
60


It follows moreover from the Court’s case-law that the scope of Article 43(3) TFEU may extend to measures which do more than merely fix and allocate fishing opportunities, 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 (judgment of 1 December 2015 in Parliament and Commission v Council, C 124/13 et C 125/13, EU:C:2015:790, paragraph 59).
61


It should, finally, be borne in mind that, according to the Court’s settled case-law, 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 (judgments of 23 October 2007 in Commission v Council, C‑440/05, EU:C:2007:625, paragraph 61, and of 26 November 2014 in Parliament and Commission v Council, C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 51).
71


As is maintained by the Federal Republic of Germany, the Czech Republic, the United Kingdom and the Council, such a review requires principally technical and scientific assessments to be carried out, and must therefore be distinguished from measures involving political decisions which, according to the Court’s case-law, are reserved to the Union legislature (see, to that effect, the judgment of 26 November 2014 in Parliament and Commission v Council, C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 50). 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.
81


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 (judgment of 1 December 2015 in Parliament and Commission v Council, C‑124/13 and C‑125/13, EU:C:2015:790, paragraph 86).
83


To the extent that the provisions at issue fix the prices at which public intervention must take place and that the latter seeks to ensure the stability of markets and a fair standard of living for the agricultural community, the annulment thereof with immediate effect could have severe consequences for the individuals concerned.