By Laurens Ankersmit
In this Grand Chamber judgment the Court gave important guidance on the interpretation of the new TFEU provisions 43 (2) and (3). These provisions provide a legal basis for the Common Agricultural Policy (CAP) and the Common Fisheries Policy (CFP) and replace the old article 37 EC. Significantly, article 43 (2) TFEU makes the CFP subject to the ordinary legislative procedure and thus gives the Parliament a new and important role in the CAP and the CFP. Under the old article 37 EC the Parliament was only consulted. Article 43 (3), on the other hand, provides that the Council shall adopt measures ‘fixing and allocation of fishing opportunities’ without any role for the Parliament.
In this judgment, the Court found a clear hierarchical relationship between the two provisions in the context of the CFP which was already addressed by the Court in the Venezuela judgment (2014). Article 43 (2) is reserved for policy decisions whereas article 43 (3) TFEU is to be used mainly for measures implementing those policy decisions. Policy decisions also encompass determining the mechanism for calculating fishing limits. However, the Court did not accept the analogy between article 291 (2) TFEU and article 43 (3) TFEU. The judgment is an important victory for the European Parliament and strengthens and shapes its role in the determination of the Common Fisheries Policy, one of the major policy areas of the Union. Indeed, as the Advocate General pointed out, ‘in constitutional terms, the importance of the present cases can hardly be overestimated’.