Opinion of Advocate General Ćapeta delivered on 15 June 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:487
• Date: 15 June 2023
• Celex Number: 62022CC0330
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 15 June 2023(1)

Case C‑330/22

Friends of the Irish Environment CLG

v

Minister for Agriculture, Food and the Marine,

Ireland,

Attorney General

(Request for a preliminary ruling from the High Court (Ireland))

(Reference for a preliminary ruling – Validity – Common fisheries policy – Article 43(2) TFEU – Regulation (EU) No 1380/2013 – Regulation (EU) 2019/472 – Setting of fishing opportunities – Total allowable catch limits above maximum sustainable yield – Discretion of the Council under Article 43(3) TFEU – Regulation (EU) 2020/123)

I. Introduction

1. A name which echoes through many ancient Irish myths and legends is that of the spirit of the oceans, Manannán mac Lir. A mighty warlord, for whom the waves were his chariot, he was also considered a prosperous farmer on the ‘plains of the sea’. Shoals of fish instead of cattle and sheep were his herds. Such was the abundance of his crop in the waters surrounding Ireland that when consecutive royal commissions examined the fishing industry in 1863 and 1885, the leading ichthyologists of the day concluded that the fisheries were ‘inexhaustible’. (2)

2. Alas, they were wrong. Fish stocks are not a perpetual self-renewing resource, independent of human influence. As we have learned in this century, fish stocks require careful management in order to secure their survival. At its heart, that is the point that the applicant’s case seeks to make. Indeed, that party’s argument is that Regulation (EU) 2020/123 (3) setting fishing opportunities for the year 2020 fixes fishing limits for certain stocks in the waters around Ireland (4) above levels that are sustainable in the long term. (5) In making that argument, the applicant principally relies on the basic legislation establishing the common fisheries policy (‘the CFP’). (6) In that act, the EU legislature designated the year 2020 as the last point in time by which fishing in Union waters for all stocks should be carried out at sustainable levels.

3. Legally, however, the present case does not raise the question as to whether or not the levels set by the Council are sustainable. That is not a decision for the Court to make. Rather, the applicant’s legal case concerns the existence and the limits of the Council’s discretion when setting fishing opportunities in Union waters under Article 43(3) TFEU. In answering that question of competence, the Court will equally have to untangle the related issue regarding the extent to which the basic objectives of the CFP may be affected by area-specific and subject-specific legislation in that field.

II. Background of the case and the questions referred

4. Every year, the Council allocates fishing opportunities among the Member States, based on a predictable share of the stocks for each species of fish in Union waters. Those individual shares are what are known as the total allowable catch (‘TAC’). In determining and distributing yearly TACs, the Council is obliged to act within the objective of the CFP, as set out in the CFP Basic Regulation.

5. Article 2 of the CFP Basic Regulation lists a number of objectives pursuant to which the CFP should operate. Its first paragraph notes, inter alia, that the CFP ‘shall ensure that fishing and aquaculture activities are environmentally sustainable in the long-term’. The second paragraph then explains, in the first subparagraph thereof, that in managing the CFP, the European Union ‘shall aim to ensure that exploitation of living marine biological resources restores and maintains populations of harvested species above levels which can produce the maximum sustainable yield’. It continues by stating in the second subparagraph that ‘the maximum sustainable yield exploitation rate shall be achieved by 2015 where possible and, on a progressive, incremental basis at the latest by 2020 for all stocks’ (7) (‘the 2020 MSY target’).

6. The concept of the maximum sustainable yield (‘MSY’) is a harvest strategy globally used in fisheries. It assumes that there is a certain level of catch that can be taken from a fish stock without affecting its equilibrium population size. In essence, the idea is to harvest only the surplus of fish that naturally occurs as the stock reaches its equilibrium point and its reproduction rates slow down. Hence, by ‘shaving off’ that surplus, the reproduction rates remain maximised and the fish stock annually repletes itself without affecting its long-term survival. The MSY is thus a theoretical assumption that seeks to strike a balance between the objective of conserving commercially harvested fish stocks for generations to come, on the one hand, and the economic and social interest of harvesting those stocks, on the other.

7. Under the CFP Basic Regulation, what constitutes the MSY for a given stock and how to achieve it is calculated on the basis of ‘the best available scientific advice’, (8) and, in the absence of adequate scientific data, on the basis of the precautionary approach. (9) As all parties to the present case agree, the advice specifically prepared for the European Commission by the International Council for the Exploration of the Sea (‘ICES’) for the four stocks at issue took account of both of those approaches. There is, accordingly, no dispute over the fact that both ‘the best available scientific advice’ and the precautionary approach, on the basis of which ICES prepared its advice, showed that the TAC for the four stocks at issue in the waters around Ireland must be set at a level of zero for the year 2020 in order to achieve the MSY of those stocks in the future. (10)

8. There is also no dispute over the fact that the presence of ‘zero-catch’ stocks, coupled with the ‘landing obligation’, in ‘mixed fisheries’ (11) leads to the allied problem of ‘choke species’ and the obligation to force fishing vessels to cease operations well before they have caught their main quota allocations. That phenomenon deserves clarification. Mixed fisheries are waters in which more than one species of fish is present and where different species are likely to be caught together in the same fishing operation. The landing obligation requires all fishing vessels to retain all fish caught on board, record that fish and count it against the quotas which apply to those stocks. (12) In practice, the combination of those elements means that a zero TAC stock can ‘choke’ fishing for other stocks in mixed fisheries as soon as they are caught, often as by-catch when another stock is actually targeted. A by-catch of an unexhausted (or zero) quota stock can thus have the effect of ‘choking’ the fishery by requiring it to cease operations well before it has caught its main quota allocations.

9. In view of that problematic and following the receipt of zero-catch advice for the four stocks at issue, the Commission requested another ICES advice specifically related to the amount of by-catch of the four stocks at issue that is caught when fishing for ‘target’ stock in mixed fisheries. As its name suggests, target stock is the kind of stock that a fishing vessel intends to catch during a particular fishing operation when it goes out to sea. The fish that ends up in its nets by accident or chance is the by-catch.

10. In line with the Commission’s request, (13)ICES gave estimates according to how much by-catch of the four stocks at issue would likely be caught if fishing at TAC levels were to occur for certain target stock during the year 2020 in mixed fisheries around Ireland. It is important to state that the opinion received from ICES was not claiming that such levels of by-catch are consistent with achieving the MSY for the four stocks at issue if those stocks were only caught as by-catch. The relevant ICES estimates only constituted that body’s mathematical estimate of the quantity of each of those four stocks that would inevitably be caught if another stock were targeted.

11. In its 2020 Regulation, the Council, acting on those estimates, fixed the fishing opportunities for the year 2020 for the four stocks at issue at levels above zero, at the levels which ICES had estimated as unavoidable by-catch in mixed fisheries, or at below those levels.

12. Basing its data on the annual TAC fixed by the Council for the year 2020 and the relevant quantities allocated to Ireland, the Minister for Agriculture, Food and the Marine (‘the Minister’) issued monthly fisheries management notices pursuant to Section 12(1) of the Sea-Fisheries and Maritime Jurisdiction Act 2006. Those notices stipulate the quantity of the four fish stocks at issue that may be landed by Irish vessels in each month of 2020.

13. Friends of the Irish Environment CLG (‘the applicant’) has brought proceedings in Ireland against those notices issued by the Minister. Its case is essentially that, by fixing TAC for the four stocks at issue above zero for the year 2020, the Council infringed the CFP Basic Regulation, in particular the 2020 MSY target contained in Article 2(2) thereof. The Minister’s notices would thus be invalid.

14. The Minister defends its course of action (and thereby the Council’s TAC levels) inter alia on the basis that the CFP Basic Regulation must be read alongside Regulation (EU) 2019/472. (14) The latter regulation is an instrument of equal hierarchical rank that specifically recognises the difficulty of fishing in mixed fisheries and the related problem of avoiding a ‘choke species’. It is claimed that the Western Waters Regulation had the effect of permitting the designation of TAC above zero for those stocks for which zero-catch advice was issued, where that would, to some extent, ‘avoid the choke’.

15. Against that factual and legal background, the High Court (Ireland) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) In circumstances where the 2020 Regulation has been superseded and/or the national...