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’.
The case concerned actions for annulment by the European Parliament and the Commission of Council Regulation 1243/2012 amending the long-term plan for cod stocks (the main objective of which is sustainable exploitation of those cod stocks). That Regulation amended Regulation 1342/2008 which was a Council Regulation based on the old article 37 EC. The Commission had proposed amending the old Regulation on the basis of the new article 43 (2) TFEU, which would ensure the participation of the European Parliament as a co-legislator through the ordinary legislative procedure. Instead, the Council hived off certain aspects of the Commission’s proposal and adopted only those amendments that concerned fishing quota. The Regulation was subsequently adopted on the basis of article 43 (3) TFEU which did not require any participation of the European Parliament.
The amendment concerned both the methodology of calculating the total allowable catches (TACs) of cod and the maximum allowable fishing effort of cod. TACs are catch limits (expressed in tonnes or numbers) that are set for most commercial fish stocks. They are based on scientific evidence, but the methodology for setting those catch limits differs. Fishing effort management is a combination of limitations to the fleet capacity and the amount of time that can be spent at sea by that fleet. Often effort restrictions are applied in addition to the more generally used system of total allowable catches.
The European Parliament and the Commission opposed the actions of the Council and argued that the contested Regulation regulated how TACs and fishing efforts of cod were to be calculated and therefore went beyond merely fixing the numbers. The Council, on the other hand, argued that determining the methodology fell squarely within the scope of article 43 (3) TFEU which provides that the Council shall adopt measures on the fixing and allocation of fishing opportunities. The recent Venezuela judgment (decided after the written procedure in this case) had already established a precedent that was favourable to the Parliament and Commission’s view. In that judgment, the Court held:
The adoption of the provisions referred to in Article 43(2) TFEU necessarily presupposes an assessment of whether they 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). (para 50)
This meant that measures adopted in the context of the CFP entailing a policy choice must be adopted on the basis of article 43 (2) TFEU.
After recalling the principles of the Venezuela judgment, the Court clarified the relationship between the old article 37 EC, the new provisions in article 43 (2) and (3) TFEU, and article 291 (2) TFEU. The Parliament and the Commission had argued that article 43 (2) replaced article 37 EC and that a parallel should be drawn between article 43 (3) and article 291 (2) TFEU (comitology). The Court rejected the parallelism argument on the basis that this power is normally conferred to the Commission and not to the Council (paras 52-54). Accordingly, the Court found that both paragraphs (2) and (3) of article 43 TFEU replaced article 37 EC and not only article 43 (2) TFEU.
As a result, the Court had to assess the relationship between the two provisions in light of the old article 37 EC. The Court found that both provisions
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. […] 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. (paras 58-59)
The Court subsequently analysed whether the amendments made to Regulation 1342/2008 entailed a policy choice because the measures were necessary for the pursuit of the CFP. Here the Court sided with the Commission and the Parliament in holding that the Council had effectively taken policy decisions and not merely fixed and allocated fishing opportunities. According to the Court, the amendments
are intended to adapt the general mechanism for setting the TACs 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. (paras 79-80)
The judgment is an important victory for the European Parliament, and most likely in the long run also for sustainable fishing. It is an interesting judgment that warrants a number of comments.
Firstly, while the Court maintains that there is no parallelism between article 43 (3) and 291 (2) TFEU, the question is how different these types of implementing measures are and how article 43 (3) differs not only from article 291 (2) TFEU but also article 290 TFEU (delegated acts). The Court simply dismisses the analogy through a formal argument (article 43 (3) applies to the Council). One distinction is, however, already hinted at by the Court later on in the judgment: whereas delegated and implementing acts require a basic legislative act, this is not necessary for measures adopted under article 43 (3) TFEU. Thus, autonomous action by the Council independent of measures adopted under article 43 (2) TFEU is still possible.
On the other hand, it is clear that article 43 (3) TFEU does not leave the Council much room to manoeuvre. It comes close to the Court’s assessment in the Biocides case of implementing measures which only provide ‘further details’ to a basic act which requires uniform implementation.
Secondly, this case is likely to be leading in the future shaping of not only the Common Fisheries Policy but the Common Agricultural Policy as well. While the Court does not rule out the possibility of autonomous use of article 43 (3), it is clear that all policy decisions must be made by the legislator. What is more, the Court does not go easy on the Council in determining measures that do not contain a policy choice. Rules establishing a mechanism for fixing and allocation of fishing opportunities do involve a policy choice.
Lastly, the judgment provides hope for those that have argued that the CFP has resulted in overfishing and overexploitation of the EU’s biological resources. In the past, Council decisions have tended to side with short-term industrial interests, at the expense of sustainable exploitation of the seas. With the renewed powers of the European Parliament, the CFP may result in decisions that are more favourable to sustainable fishing.