Opinion of Advocate General Emiliou delivered on 22 June 2022.
| Jurisdiction | European Union |
| Date | 22 June 2022 |
| Court | Court of Justice (European Union) |
Provisional text
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 22 June 2022(1)
Case C‑259/21
European Parliament
v
Council of the European Union
(Common fisheries policy – Action for annulment – Articles 15 to 17, 20 and 59, second paragraph, of Regulation (EU) 2021/92 – Scope of Article 43(3) TFEU – Powers of the Council – Alleged misuse of powers by the Council – Procedure laid down for the adoption of technical measures in Article 10(4) and Article 15 of Regulation (EU) 2019/1241 and Article 9 of Regulation (EU) 2019/472 – Powers of the Commission to determine those technical measures in delegated acts – Principle of sincere cooperation)
I. Introduction
1. Broadly speaking, the present case concerns a disagreement among the EU institutions as to the role that the Council of the European Union should play in the adoption of certain technical measures in the field of fisheries.
2. Before the entry into force of the Treaty on the Functioning of the European Union, the Council assumed the main role in deciding all aspects of the common fisheries policy (CFP). That is, however, no longer the case. Pursuant to Article 43(2) TFEU, the ordinary legislative procedure applies to the CFP, and unilateral decision-making powers of the Council are preserved only within the limits set out by Article 43(3) TFEU. That provision allows it to adopt measures relating to, inter alia, the ‘fixing and allocation of fishing opportunities’.
3. By the present action, the European Parliament seeks the annulment of certain technical measures of Regulation (EU) 2021/92, (2) which was adopted by the Council in application of the latter provision. Those measures are contained in Articles 15, 16, 17, 20 and 59, second paragraph, of that regulation (‘the contested provisions’).
4. The Parliament contends, in essence, that the Council has exceeded the bounds of its powers in adopting those provisions. It considers that the latter are in conflict with two regulations – namely, Regulation (EU) 2019/472 (3) and Regulation (EU) 2019/1241 (4) (together, ‘the basic regulations’) – which were adopted by the Council and the Parliament in accordance with Article 43(2) TFEU. In the Parliament’s view, those two regulations placed limits on the Council’s decision-making powers under Article 43(3) TFEU in that they specifically empowered the Commission to determine, in delegated acts adopted by virtue of Article 290(1) TFEU, (5) the technical measures corresponding to the measures established in the contested provisions.
II. Legal framework
A. Relevant TFEU provisions
5. Article 43(2) and (3) TFEU states:
‘2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article 40(1) and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the [CFP].
3. The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.’
B. The basic regulations
6. Article 9(1) of Regulation 2019/472 provides:
‘The Commission is empowered to adopt delegated acts in accordance with Article 18 of this Regulation and Article 18 of Regulation (EU) No 1380/2013 (6) in order to supplement this Regulation regarding the following technical measures:
(a) specifications of characteristics of fishing gears and rules governing their use, to ensure or improve selectivity, to reduce unwanted catches or to minimise the negative impact on the ecosystem;
(b) specifications of modifications or additional devices to the fishing gears, to ensure or improve selectivity, to reduce unwanted catches or to minimise the negative impact on the ecosystem;
(c) limitations or prohibitions on the use of certain fishing gears and on fishing activities in certain areas or periods to protect spawning fish, fish below the minimum conservation reference size or non-target fish species, or to minimise the negative impact on the ecosystem; and
(d) the fixing of minimum conservation reference sizes for any of the stocks to which this Regulation applies, to ensure the protection of juveniles of marine organisms.’
7. Article 10(4) of Regulation 2019/1241 states:
‘The Commission is empowered to adopt delegated acts in accordance with Article 29 to amend the list set out in Annex I, where the best available scientific advice indicates that an amendment of that list is necessary.’
8. Pursuant to Article 15(2) of that regulation:
‘In order to take into account regional specificities of the relevant fisheries, the Commission is empowered to adopt delegated acts in accordance with Article 29 of this Regulation and Article 18 of Regulation (EU) No 1380/2013 in order to amend, supplement, repeal or derogate from the technical measures set out in [Annexes V to XI and XIII] including when implementing the landing obligation in the context of Article 15(5) and (6) of Regulation (EU) No 1380/2013. The Commission shall adopt such delegated acts on the basis of a joint recommendation submitted in accordance with Article 18 of Regulation (EU) No 1380/2013 and in accordance with the relevant Articles of Chapter III of this Regulation.’
9. Article 29(6) of the same regulation states:
‘A delegated act adopted pursuant to Article 2(2), Article 8(3), Article 10(4), Article 12(2), Article 15(2), Article 23(1) and (5), Article 27(7) and Article 31(4) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.’
10. Annex VI of Regulation 2019/1241 contains the technical measures applicable to North Western Waters. (7)
C. Regulation 2021/92 (‘the regulation at issue’)
11. Article 15 of the regulation at issue, entitled ‘Technical measures for cod and whiting in the Celtic Sea’, provides for a number of measures regarding, in particular, mesh sizes. Those measures apply to Union vessels with bottom trawls or seines operating in the Celtic Sea.
12. Article 16 of that regulation, entitled ‘Technical measures in the Irish Sea’, contains obligations regarding fishing gear options for Union fishing vessels operating with bottom trawls or seines conducting their activities in the Irish Sea.
13. Article 17 of the same regulation, entitled ‘Technical measures in the West of Scotland’, also provides for measures regarding, in particular, mesh sizes. They apply to Union fishing vessels operating with bottom trawls or seines in Norway lobster (Nephrops norvegicus) fisheries in the West of Scotland.
14. Under Article 20 of the regulation at issue, entitled ‘Prohibited species’, it is prohibited for Union fishing vessels to fish for, retain on board, tranship or land certain species in specific ICES (8) divisions and subzones of the then Union waters. That provision also indicates that, when accidentally caught, the species listed should not be harmed and the specimens should be promptly released.
15. Pursuant to Article 59 of that regulation, entitled ‘Transitional provision’:
‘Articles 11, 19, 20, 27, 33, 34, 41, 42, 43, 48, 50 and 57 shall continue to apply, mutatis mutandis, in 2022 until the entry into force of the Regulation fixing the fishing opportunities for 2022.
Articles 15, 16 and 17 shall apply until the date on which a delegated act adopted in accordance with Article 15(2) of Regulation [2019/1241] and amending Annex VI of that Regulation by introducing corresponding technical measures for the North Western Waters becomes applicable.’
III. Background to the proceedings
16. On 27 October 2020, the Commission proposed to adopt a regulation fixing for the year 2021 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in Union waters and, for Union fishing vessels, in certain non-Union waters (‘the Commission Proposal’).
17. On 14 December 2020, the Commission updated that proposal by adopting a number of provisions identical to the contested provisions. Those draft provisions were first included in a non-official document (‘the non-paper’) and, subsequently, published on the Commission’s website.
18. On 28 January 2021, the Council adopted the regulation at issue on the basis of Article 43(3) TFEU. That regulation was published in the Official Journal of the European Union on 29 January 2021. It came into force on the day following its publication.
19. By application lodged at the Court Registry on 23 April 2021, the Parliament brought the present action under the second paragraph of Article 263 TFEU, seeking the annulment of the contested provisions.
IV. Facts subsequent to the bringing of the action
20. On 23 August 2021, the Commission adopted Commission Delegated Regulation (EU) 2021/2324 amending Regulation 2019/1241 of the European Parliament and of the Council as regards technical measures for certain demersal and pelagic fisheries in the Celtic Sea, the Irish Sea and the West of Scotland (‘Delegated Regulation 2021/2324’). (9) That regulation was adopted on the basis of Article 10(4) and Article 15(2) of Regulation 2019/1241 (one of the two basic regulations).
21. It is clear from recital 6 of Delegated Regulation 2021/2324 that that instrument is aimed at ‘incorporating into one single act’ the technical measures corresponding to the measures established in Articles 15 to 17 of the regulation at issue along with certain other measures.
22. Furthermore, the...
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