Court of Justice of the European Communities (including Court of First Instance Decisions)

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

1.      Regulation 2019/472

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.’

2.      Regulation 2019/1241

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 Council adopted, on 27 January 2022, a new regulation fixing fishing opportunities for the year 2022 (‘the regulation fixing fishing opportunities for 2022’). (10) That regulation entered into force on 31 January 2022, the day of its publication in the Official Journal. (11)

V.      Procedure before the Court and forms of order sought

23.      The Parliament requests the Court to:

annul the contested provisions, and

order the Council to pay the costs.

24.      The Council claims that the Court should:

dismiss the action as unfounded and maintain the effects of the contested provisions until new provisions replacing those provisions are adopted, and

order the Parliament to pay the costs.

25.      By decision of 19 August 2021 of the President of the Court of Justice, the Commission was granted leave to intervene in support of the form of order sought by the Council.

VI.    The action

26.      ‘Technical measure[s]’ in the field of fisheries are defined as ‘measure[s] that regulate … the composition of catches by species and size and the impacts on components of the ecosystems resulting from fishing activities by establishing conditions for the use and structure of fishing gear and restrictions on access to fishing areas’. (12) In the words of the Parliament and of the Council, technical measures are ‘tools’ to support the implementation of the CFP. (13) Without them, the objectives of conserving fisheries resources and of maintaining relative stability of fishing activities, which are paramount in all EU rules in this field, (14) are unattainable.

27.      Such measures may, in theory, be decided (i) by both the Council and the Parliament on the basis of Article 43(2) TFEU; (ii) by the Commission by virtue of Article 290(1) TFEU, provided that legislation adopted on the basis of Article 43(2) TFEU delegates to it the power to do so; or (iii) by the Council, acting on its own in application of Article 43(3) TFEU. (15) The present case concerns the interrelationship and limits of those respective decision-making powers.

28.      As I explained in point 2 above, Article 43(3) TFEU empowers the Council to adopt measures relating to the ‘fixing and allocation of fishing opportunities’. The regulation at issue was adopted on the basis of that provision. (16) It is aimed at establishing and allocating among the Member States the common Total Allowable Catches (TACs) and quotas for certain fish stocks and groups of fish stocks, for 2021.

29.      Aside from the rules determining TACs and quotas, that regulation contains, in its Articles 15 to 17, a number of technical measures applicable to certain Union vessels (those operating with bottom trawls or seines) in certain parts of the then Union waters (the Celtic Sea, the Irish Sea and the West of Scotland). In essence, those provisions are intended to decrease by-catches of certain species by imposing technical obligations regarding fishing gear (in particular, mesh sizes). (17) Furthermore, Article 20 of the regulation at issue provides a list of species the fishing of which is expressly prohibited. The Parliament requests before the Court that those four provisions, as well as the second paragraph of Article 59 of the regulation at issue, which limits the temporal scope of Articles 15, 16 and 17 thereof, be annulled.

30.      The Parliament claims that the Council’s power to adopt those technical measures in application of Article 43(3) TFEU was expressly curtailed by three provisions of the basic regulations, namely Article 10(4) and Article 15(2) of Regulation 2019/1241 and Article 9 of Regulation 2019/472. Those provisions allow the Commission to determine those technical measures in delegated acts. (18) The Parliament considers that, as a result, the Council was barred from acting on the basis of Article 43(3) TFEU and from adopting the contested provisions, given that those measures could only properly be decided by the Commission. (19)

31.      More specifically, according to the Parliament, by adopting the contested provisions unilaterally, the Council followed a decision-making procedure which contravened the Parliament’s institutional prerogatives and flaunted its right to object to or oppose the technical measures contained therein.

32.      In that regard, I recall that both the Parliament and the Council retain, by virtue of Article 29(3) of Regulation 2019/1241, the power to revoke at any time the delegation of powers referred to in Article 10(4) and Article 15(2) of that regulation. They also have the possibility of objecting to the delegated acts adopted in application of those provisions within two months after they have been notified to them. (20) The same is true for delegated acts adopted by the Commission in application of Article 9 of Regulation 2019/472. (21)

33.      On the contrary, if an act is adopted by the Council on the basis of Article 43(3) TFEU (as the regulation at issue was), the Parliament cannot object to its content. The adoption of such an act falls to the Council alone.

34.      Consequently, the gist of the present case lies, first and foremost, in the demarcation line between the respective roles of the Parliament, of the Council and of the Commission in adopting the technical measures contained in the contested provisions. If the Court were to annul those provisions (as the Parliament so requests), that would confirm the Parliament’s right to oversee the adoption of the technical measures contained therein, either by objecting to them or by revoking the Commission’s powers to adopt such delegated acts in the future. Dismissing the action, on the other hand, would result in the Council being able legitimately to decide such matters unilaterally on the basis of Article 43(3) TFEU.

35.      The parties disagree as to whether the action has become devoid of purpose following the adoption of Delegated Regulation 2021/2324 by the Commission, on 23 August 2021. (22) I will address that issue first, together with the effect that the regulation fixing fishing opportunities for 2022 has on the present action (A). I shall then turn to the two pleas in law put forward by the Parliament in its action and explain why I believe those pleas to be unfounded (B).

A.      The effect of Delegated Regulation 2021/2324 and of the regulation fixing fishing opportunities for 2022 on the need to adjudicate

1.      Delegated Regulation 2021/2324

36.      It is clear to me that, since the entry into force of Delegated Regulation 2021/2324, Articles 15 to 17 of the regulation at issue no longer apply. As I have already indicated in point 21 above, that delegated regulation 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. Furthermore, the second paragraph of Article 59 of the latter regulation states in unequivocal terms that those provisions are meant to apply only ‘until the date on which a delegated act adopted in accordance with Article 15(2) of [Regulation 2019/1241] … becomes applicable …’.

37.      Delegated Regulation 2021/2324 was adopted pursuant to that very provision, on 23 August 2021, and it came into force on 30 December 2021. (23) Neither of the parties to the present action disputes that the measures contained therein correspond to those covered by Articles 15 to 17 of the regulation at issue, and that they have therefore effectively ‘replaced’ those provisions. They also do not dispute that Article 20 of the regulation at issue is not affected by the adoption of Delegated Regulation 2021/2324 given that that provision is not cited in the second paragraph of Article 59 of the regulation at issue nor in that delegated regulation.

38.      In the light of that development, the parties disagree as to whether the present action has become devoid of purpose to the extent that the Parliament requests the annulment of Articles 15 to 17 and 59, second paragraph, of the regulation at issue. (24)

39.      On the one hand, the Parliament considers that, notwithstanding the adoption of Delegated Regulation 2021/2324 by the Commission, the Court still needs to adjudicate on the validity of those provisions. In essence, it argues that, although certain provisions of that delegated regulation reflect the content of Articles 15 to 17 of the regulation at issue, those provisions still exist in the legislative landscape and that they should be repealed in the interest of legal certainty. Accordingly, it claims that its action has not become devoid of purpose.

40.      On the other hand, the Council contends that, following the adoption of Delegated Regulation 2021/2324, there is no longer any need to adjudicate on that issue. It considers that it is apparent from the second paragraph of Article 59 of the regulation at issue that Articles 15 to 17 of that regulation were meant to apply only until a delegated act was adopted by the Commission on the matters covered by those provisions. Moreover, the Council claims that it never intended those provisions to have any effect after 2021.

41.      At first glance, I must admit that I sympathise to a certain extent with the Council’s line of reasoning. If Articles 15 to 17 of the regulation at issue are no longer in force, it is by no means obvious that the Parliament could still ‘gain’ anything from having those provisions annulled by the Court. In that regard, I note that both the Council and the Parliament request before the Court that the past effects of all four contested provisions be maintained. Thus, by its action, the Parliament does not even seek to change the ‘state of affairs’ resulting from the Council’s adoption of the contested provisions.

42.      That being said, I would say that, here, there are at least three specific reasons to conclude that the present action has not become devoid of purpose following the adoption of Delegated Regulation 2021/2324.

43.      First, the present action was introduced by the Parliament against the Council on the basis of the second paragraph of Article 263 TFEU. In that connection, I recall that the Parliament does not have to demonstrate an interest (25) in bringing proceedings in order to bring an action seeking the annulment of decisions or acts of, inter alia, the Council. (26) That provision gives the Parliament the right to bring such an action to challenge the legality of a Council regulation without making the exercise of that right conditional on proof of an interest in bringing proceedings. (27)

44.      Second, the Court has already declared an action for annulment to be admissible where the disputed measure had already been implemented or was no longer in force at the time at which the action was brought. (28) In my view, the same may, a fortiori, be said of an action for annulment concerning a measure that (like Articles 15 to 17 of the regulation at issue) was still in force at the time when the action was brought, but expired during the procedure before the Court. It does not automatically follow from such circumstances that the action becomes devoid of purpose from the moment that the provisions or the instrument in dispute expire.

45.      Indeed, what matters, in my view, is whether the annulment of the act is of itself capable of having legal consequences.

46.      In that regard, I would like to emphasise that, as I already noted in point 31 above, the Parliament contends that the Council’s unilateral adoption of the contested provisions has deprived it of the right to examine and, as the case may be, to oppose the technical measures contained therein. It claims that, had such measures been integrated in one or several delegated act(s), adopted by the Commission in application of Article 10(4) and Article 15(2) of Regulation 2019/1241 and Article 9 of Regulation 2019/472, rather than by the Council on the basis of Article 43(3) TFEU, it would have been able to have some input as to their content.

47.      I understand that, by its action, the Parliament intends to ensure that the Council refrains, in the future, from using its decision-making powers derived from Article 43(3) TFEU in situations where the exercise of such powers overlaps with certain Commission delegated powers and procedures outlined in such secondary law (here, Article 10(4) and Article 15(2) of Regulation 2019/1241 and Article 9 of Regulation 2019/472). In essence, the Parliament’s purpose in bringing the present action is to obtain a judgment from the Court preventing the Council from adopting technical measures analogous to those covered by the contested provisions on the basis of Article 43(3) TFEU in the future.

48.      It follows that, even though the contested provisions are no longer in force and no longer produce legal effects, their annulment is of itself capable of having legal consequences, in particular by preventing a repetition by the Council of the legislative practice complained of. (29) For that reason, I consider that the present action has not become devoid of purpose following the adoption of Delegated Regulation 2021/2324.

49.      My view in that regard is reinforced by the Court’s case-law on infringement proceedings. Generally, actions for infringement become devoid of purpose when the breach complained of has ceased to have any effect before the end of the period laid down by the Commission in its reasoned opinion. However, in limited instances, the Court has found that the Commission may still be entitled to bring proceedings before it despite the infringement itself being terminated. Those cases are typically those where there is an imminent risk that the infringement might be repeated (30) or the infringement is of a seasonal nature (31) so that it would otherwise be exempt from judicial review.

50.      To my mind, a parallel may be drawn between that line of case-law and the present case, given that, here too, the Parliament’s purpose in bringing the action is to prevent the repetition of the Council’s action in the future. In addition, the regulation at issue is designed to cover a very specific – here, very short – period (the year 2021), making it not only difficult for the Parliament to bring proceedings in a timely manner, but also for such proceedings to be closed before the regulation at issue ceases to apply.

51.      Third, and from a practical point of view, I must add that I would find it rather perplexing if an act such as the regulation at issue, which is designed to remain in force for one year only (or even less), were to be challengeable only during that specific period and for there to be no such opportunity once that period has come to an end. In my view, it would be unrealistic and detrimental to applicants for the Court invariably to require that (i) their challenge be made within a maximum of one year (or, as the case may be, within an even shorter period) after the adoption of the act, and (ii) the proceedings before the Court also be conducted and closed by that date.

52.      It is true that, for such cases, the Court has the option of applying an ‘expedited procedure’ (in application of Article 133(1) and (3) of the Court’s Rules of Procedure). However, there is absolutely no guarantee in that regard. (32) In my view, that mere possibility is therefore not sufficient to guarantee sufficient access to the Court. (33)

53.      I believe that the pragmatic approach which I propose that the Court should follow becomes all the more necessary where, as in the present case, the dispute before the Court is of constitutional importance and concerns the sharing of law-making competences between different EU institutions. Within that context, I cannot see why a challenge as to the lack of a legal basis or improper adoption of an instrument should be omitted from the Court’s docket, for the sole reason that its legal effects are ‘short-lived’. Such a result would ultimately make it impossible for the Court to exercise its judicial review and, as the case may be, to prevent the future adoption of similar acts.

54.      For those reasons, I consider that the Court still needs to adjudicate on the present action despite the adoption of Delegated Regulation 2021/2324.

2.      The regulation fixing fishing opportunities for 2022

55.      The adoption of Delegated Regulation 2021/2324 was not the only development subsequent to the bringing of the present action by the Parliament. As I already pointed out in point 22 above, the Council adopted, on 27 January 2022, the regulation fixing fishing opportunities for 2022, which effectively replaced the regulation at issue. That regulation came into force on 31 January 2022. By virtue of the first paragraph of Article 59 of the regulation at issue, (34) Article 20 of that regulation ceased to apply on that same date. Thus, whereas the entry into force of Delegated Regulation 2021/2324 put an end to the application of Articles 15 to 17 of the regulation at issue, it is the regulation fixing fishing opportunities for 2022 which rendered that provision no longer applicable.

56.      In response to a question of the Court, adopted on the basis of Article 62 of the Rules of Procedure, the Parliament and the Commission explained that the adoption of the regulation fixing fishing opportunities for 2022 has no impact on the present action. The Parliament observes that Article 18 of that regulation reproduces the list of prohibited species contained in Article 20 of the regulation at issue (the result of which being that that provision continues to have legal effects). Furthermore, the Parliament contends that, notwithstanding the adoption of the regulation fixing fishing opportunities for 2022, there is a risk for the alleged unlawfulness (the adoption of technical measures corresponding to those contained in the contested provisions by the Council) to recur in the future.

57.      The Council disputes those arguments. It considers that, following the adoption of the regulation fixing fishing opportunities for 2022, the present action has become devoid of purpose in so far as Article 20 of the regulation at issue is concerned. In its view, that result is apparent from the first paragraph of Article 59 of the regulation at issue.

58.      It seems to me that the considerations which I have outlined, in the previous section, with regard to Articles 15 to 17 and 59, second paragraph, of the regulation at issue apply mutatis mutandis to Article 20 of the regulation at issue, in so far as the consequences of the adoption of the regulation fixing fishing opportunities for 2022 on that provision are concerned.

59.      In the light of the foregoing considerations, I am of the view that, although none of the contested provisions remain in force, there is still a need to adjudicate on the present action.

B.      Substance

60.      The Parliament raises two pleas in law in support of its application for annulment. First, it alleges that the Council has abused the procedure laid down in the basic regulations. Second, it contends that the Council has breached the ‘principle of mutual sincere cooperation’ within the meaning of Article 13(2) TEU. (35) I will examine each of those pleas in turn.

1.      The first plea, alleging an abuse of the procedure laid down in the basic regulations

(a)    Main arguments of the parties

(1)    The Parliament’s main arguments

61.      In essence, the Parliament argues that the Council’s powers to adopt technical measures in accordance with Article 43(3) TFEU are limited to the extent that the Parliament and the Council have agreed, in one or several legislative acts adopted pursuant to Article 43(2) TFEU, that the Commission, rather than the Council, is empowered to adopt such measures.

62.      In the present case, the Parliament considers that, because Article 10(4) and Article 15 of Regulation 2019/1241 and Article 9 of Regulation 2019/472 (which were all adopted pursuant to Article 43(2) TFEU) expressly granted to the Commission the power to adopt technical measures such as those covered by the contested provisions, the Council could not rely on Article 43(3) TFEU to adopt those provisions unilaterally. (36)

63.      The Parliament argues that all the requirements set out in the Court’s case-law in order to establish the existence of a misuse of powers are fulfilled in the present case. It points out that the Council has expressly acknowledged, in recital 59 and in the second paragraph of Article 59 of the regulation at issue, that the Commission should have been responsible for adopting the technical measures covered by Articles 15 to 17 of that regulation. Furthermore, it considers that the Council has failed to provide any justification as to why it, rather than the Commission, adopted the contested provisions, such as, for example, by explaining why their adoption by the Commission was impossible in the present case.

64.      The Parliament further claims that, had the adoption of the technical measures contained in the contested provisions been warranted by imperative circumstances, then the proper legal basis for their adoption would have been Articles 12 and 13 of Regulation No 1380/2013. Pursuant to those provisions, ‘urgent’ measures (designed to respond to a serious threat to the conservation of marine biological resources or to the marine ecosystem) can be adopted either by the Commission (37) or by the Member States, (38) but not by the Council. The Parliament notes that, in the absence of such urgent circumstances, Article 8(2) and (3) of Regulation 2019/472 makes it clear that corrective measures (measures taken to ensure rapid return of the stock or functional unit concerned to specified levels) can be adopted only by the Commission in delegated acts.

65.      Finally, the Parliament points out that, just as the Council’s power to adopt technical measures ‘relating to the fixing and allocation of fishing opportunities’ comes from Article 43(3) TFEU, the Commission derives its general prerogatives to adopt delegated acts from Article 290(1) TFEU and, thus, also from primary law.

(2)    The Council and the Commission’s main arguments

66.      The Council disputes the Parliament’s arguments. It considers that the first plea is unfounded in that the Parliament is mistaken in its interpretation of the concept of ‘abuse of procedure’ and has misapprehended the objective and content of the contested provisions.

67.      It further contends that the adoption of the contested provisions complies fully with Article 43(3) TFEU given that their purpose is connected to the ‘fixing … of fishing opportunities’. By contrast, the technical measures mentioned in the basic regulations would relate to different, broader aims than those provisions.

68.      The Council points out that there is nothing in the basic regulations to suggest that the powers conferred on the Commission by Article 10(4) and Article 15 of Regulation 2019/1241 and Article 9 of Regulation 2019/472 were meant to be exclusive in the sense that they would prevent the Council from adopting technical measures on identical matters.

69.      It further notes that the second paragraph of Article 59 of the regulation at issue expressly indicates that Articles 15 to 17 of that regulation would no longer to be in force once the Commission adopted a delegated act covering the same matters as those provisions. That would clearly show that the Council did not intend to overstep the bounds of its powers. Similarly, Article 20 of the regulation at issue would aim to preserve fully the Commission’s power to adopt delegated acts pursuant to Article 10(2) of Regulation 2019/1241. In that regard, it should be borne in mind that the contested provisions were adopted shortly after the United Kingdom’s departure from the European Union, in a context where there remained much uncertainty as to the ‘fixing of fishing opportunities’ for 2021 and where it was clear that the Commission was yet to add to its own proposal before it adopted any delegated act on those matters.

70.      The Commission generally endorses the arguments of the Council. It emphasises that nothing in the basic regulations obliges it to adopt technical measures regarding the matters covered by the contested provisions.

71.      The Commission also explains that, since previous corrective measures (those contained in Article 13 of Regulation (EU) 2020/123 (39)) had remained in force only until 31 December 2020, it was necessary that new technical measures be adopted by the Council at the start of 2021. (40) The Commission could have adopted such new measures in a delegated act, if a joint recommendation of the Member States had been submitted in time. (41) However, no joint recommendation was in fact formally submitted (in its final form) to the Commission until 14 December 2020. (42) The Commission’s non-paper, which led to the adoption of the contested provisions by the Council served to fill that vacuum.

(b)    Analysis

72.      As the Court has held time and again, a measure is vitiated by a misuse of powers if it appears, on the basis of objective, relevant and consistent evidence to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. (43)

73.      In the present case, the Parliament’s first plea rests, in essence, on the claim that the Council, by adopting the contested provisions, has circumvented the procedure for adoption of technical measures laid down in the basic regulations, which would place the power to adopt such measures solely in the hands of the Commission.

74.      However, it is my view that the Parliament’s claims must be rejected. That institution does not show that the contested provisions were adopted either with the sole or chief aim of achieving ends other than those for which the powers in Article 43(3) TFEU were conferred on the Council or with the aim of evading a procedure specifically prescribed by the FEU Treaty for dealing with the circumstances of the case.

75.      In this connection, I recall that the Court has already had the opportunity to clarify the respective scopes of Article 43(3) TFEU, which provides that the Council is entitled to adopt measures concerning, inter alia, the ‘fixing … of fishing opportunities’, and Article 43(2) TFEU. The Court has held that autonomous decisions made on the basis of EU policy interests belong within the sphere of competence of the EU legislature (that is, within the scope of Article 43(2) TFEU). By contrast, Article 43(3) TFEU falls to be applied in relation to primarily technical measures that implement those choices. (44)

76.      In his Opinion in Joined Cases Parliament and Commission v Council, (45) Advocate General Wahl explained that it follows from that case-law that the ordinary legislative procedure under Article 43(2) TFEU should apply for the more general category of measures, namely those necessary for the pursuit of the objectives of the CFP, whereas the non-legislative procedure under Article 43(3) TFEU should be reserved for a certain type of regulatory measure. Accordingly, measures under Article 43(3) TFEU should be confined to those which closely relate to the definition of who can fish what, and where, and conditions functionally linked to those questions, (46) and do not include every technical measure that is somehow connected to fishing opportunities. The decisive factor is, as the Court confirmed, whether the measure in question entails a policy choice that is reserved to the EU legislature because it is necessary for the pursuit of the objectives of the common policies for agriculture and fisheries. (47)

77.      In the present case, it is clear to me that the contested provisions are functionally linked to the ‘fixing … of fishing opportunities’ within the meaning of Article 43(3) TFEU, rather than a policy choice reserved to the EU legislature. (48)

78.      Indeed, as the Council and the Commission state, the purpose of the contested provisions is to improve the selectivity of fishing gears (Articles 15 to 17) and the protection of certain species (Article 20). Those provisions were adopted as an alternative to reducing the TACs even more than had already been decided for that year. That is confirmed by recital 3 of Delegated Regulation 2021/2324, which states that the measures established in the contested provisions were ‘functionally linked to the TAC levels for target species caught’, given that ‘without those measures, such TAC levels would have had to be reduced to allow the by-catch stocks to recover’. (49)

79.      Moreover, unlike the amendments made by the Council on the basis of Article 43(3) TFEU which were at the heart of the judgment in Parliament and Commission v Council, (50) the contested provisions are confined to apply merely in specific circumstances (given that they are meant to apply to specific types of ships, operating in certain areas only and to target only certain types of species) and on an annual basis (the year 2021). They are not 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 or to define the legal framework in which those TACs and fishing effort limitations are established. (51)

80.      Consequently, I consider that the contested provisions fall within the scope of the powers attributed to the Council by Article 43(3) TFEU.

81.      Turning now to the specific issue of whether the Council could properly use that legal basis to adopt the technical measures contained in the contested provisions in spite of the fact that the basic regulations provided for the adoption of those measures by the Commission, I recall that the Court has ruled that Article 43(3) TFEU may be used by the Council as a legal basis for adopting particular measures under the CFP, subject to the condition that the Council acts within the limits of its powers and, where relevant, within the legal framework already established under Article 43(2) TFEU. (52) To that extent, the margin of discretion that the Council enjoys in adopting measures on the basis of Article 43(3) TFEU depends on how much leeway the EU legislature has decided to allow it. Thus, I need to consider whether the legal framework already established in the basic regulations was designed by the EU legislature to limit the Council’s power to act in application of Article 43(3) TFEU.

82.      In that regard, it appears to me that there is nothing in either of the two basic regulations which suggests that the powers conferred on the Commission by, respectively, Article 10(4) and Article 15 of Regulation 2019/1241 and Article 9 of Regulation 2019/472, were designed to prevent the Council from adopting technical measures regarding the same matters in a case where, as here, the Commission has not stepped in and itself adopted delegated acts. I agree with the Parliament that the Council cannot deprive the Commission of the powers which are attributed to it by those provisions, or else the latter would become devoid of any purpose and the Council would fail to respect the framework set out in those provisions. However, it is clear to me that the Council did not do that when it adopted the contested provisions.

83.      Indeed, it is apparent from the second paragraph of Article 59 of the regulation at issue that Articles 15 to 17 were meant to stop applying as soon as the Commission adopted one or several delegated acts on the same technical measures. Like the Council and the Commission, I therefore consider that the contested provisions were meant to be temporary in nature, and that the Council did not encroach upon, but rather expressly sought to preserve, the Commission’s power to adopt delegated acts.

84.      In fact, that power of the Commission is acknowledged not only in the second paragraph of Article 59 of the regulation at issue, but also in recital 59 thereof, which indicates that the technical measures which the Commission will decide on the basis of Regulation 2019/1241 are ‘more comprehensive and will apply on a more stable basis’ than the technical measures contained in the contested provisions.

85.      Given this, I have no difficulty concluding that the Council not only acted within the limits of its powers under Article 43(3) TFEU, but also within the specific legal framework already established under Article 43(2) TFEU.

86.      That conclusion is by no means invalidated by the Parliament’s argument outlined in point 63 above, that the contested provisions should either have been adopted as ‘urgent’ measures designed to respond to a serious threat to the conservation of marine biological resources or, in the absence of such imperative circumstances, by the Commission in delegated acts, given that only those two options were envisaged by Article 8(2) and (3) of Regulation 2019/472.

87.      I agree with the Parliament that the contested provisions are not ‘urgent measures’ designed to respond to a serious threat to the conservation of marine biological resources. That being said, and for what it is worth, I believe that there are particular circumstances that explain why the Council stepped in and adopted the contested provisions for the interim period during which the Commission had not yet made use of the other option expressly left open by Article 8(2) and (3) of Regulation No 2019/472 and, pursuant to those provisions, adopted one or more delegated acts.

88.      As the Commission explained, previous corrective measures (those contained in Article 13 of Regulation 2020/123) had remained in force only until 31 December 2020 and, given that efforts were concentrated on the European Union and the United Kingdom reaching agreement on aligned functionally linked technical measures following Brexit, no joint recommendation was submitted early enough for the Commission to adopt a delegated act at the start of 2021. That is confirmed by recital 2 of Delegated Regulation 2021/2324, which states that, although Belgium, Spain, France, Ireland and the Netherlands submitted a first joint recommendation in May 2020, they submitted a revised joint recommendation only on 14 December 2020.

89.      Within that context, it is clear that the adoption of the contested provisions by the Council served to fill a void that would otherwise have carried on throughout part, if not all, of 2021.

90.      In the light of the foregoing, there is nothing to indicate that the Council, by adopting the contested provisions, exceeded or misused its powers.

91.      Since none of the submissions put forward by the Parliament in support of its first plea have succeeded, that plea should be rejected.

2.      The second plea, alleging a breach of the principle of sincere cooperation

(a)    Main arguments of the parties

92.      The Parliament contends that, in failing to follow the procedure outlined in the basic regulations, the Council has breached the principle of sincere cooperation.

93.      The Parliament notes that, pursuant to Article 13(2) TEU, as interpreted in the Court’s case-law, that principle requires that each institution exercises its powers with due regard for the powers of the other institutions. It also recalls that the Interinstitutional Agreement on Better Law-Making, (53) which was adopted on the basis of Article 295 TFEU, has binding effects on the Parliament, the Council and the Commission. Point 25 of that agreement requires that an exchange of views takes place between those three institutions ‘if a modification of the legal basis entailing a change from the ordinary legislative procedure to a special legislative procedure or a non-legislative procedure is envisaged’. Point 2 of the Annex to that agreement (54) obliges the institutions to cooperate throughout the procedure with a view to a smooth exercise of delegated power and an effective control of that power by the Parliament. In the present case, the Parliament is of the view that the Council has effectively deprived it of the power to exercise such control.

94.      According to the Parliament, the Council should have consulted it about its intention to adopt the contested provisions on the basis of Article 43(3) TFEU, in breach of the basic regulations.

95.      The Council, supported by the Commission, disputes those arguments. It refers back to its argumentation in relation to the first plea. In its view, it follows from the absence of any abuse of procedure (in relation to the first plea) that the principle of sincere cooperation has not been breached in the present case.

96.      The Council adds that the Interinstitutional Agreement on Better Law-Making is not relevant in the present case. It argues that the regulation at issue was adopted on the same legal basis as that proposed by the Commission in the Commission Proposal and that, as a result, the Council’s actions did not amount to a ‘modification of the legal basis’ within the meaning of point 25 of that agreement.

(b)    Analysis

97.      Under Article 13(2) TEU, the institutions are to practise mutual sincere cooperation. However, that sincere cooperation must be exercised within the limits of the powers conferred by the Treaties on each institution. The obligation resulting from Article 13(2) TEU is therefore not such as to change those powers. (55)

98.      As to whether the Council infringed the principle of sincere cooperation by adopting the contested provisions, I observe that the Parliament argues the present plea in law along the lines already set out in its previous arguments with regard to the first plea in law.

99.      It follows from the previous section that the Parliament’s first plea in law should be rejected on the ground that the Council has not misused its powers in the present case. Consequently, and given that the Parliament’s arguments in support of its two pleas in law are closely connected, I agree with the Council and the Commission that there has been no breach of the principle of sincere cooperation in this instance. In my view, the second plea in law must therefore be rejected as unfounded.

100. The Parliament’s arguments relating to the Interinstitutional Agreement on Better Law-Making do not affect my conclusion in that regard.

101. Indeed, it follows from the previous section that the Commission was in no way prevented from adopting a delegated act in application of the basic regulations (specifically, Article 10(4) and Article 15(2) of Regulation 2019/1241 and Article 9 of Regulation 2019/472). Therefore, the Council’s adoption of the contested provisions did not constitute a ‘modification of the legal basis’ within the meaning of point 25 of that agreement.

102. Furthermore, and again given that the Commission remained fully entitled to adopt Delegated Regulation 2021/2324 (and in fact ultimately did so), it seems to me that the Parliament was in no way stripped of its power to oversee the adoption of delegated acts within the meaning of point 2 of that same agreement, and that it was in fact fully able to exercise such control in the present case.

103. It follows from all the foregoing that the present action should, in my view, be dismissed as unfounded.

3.      The request to maintain the effects of the contested provisions

104. Given that the two pleas put forward by the Parliament must, in my view, be rejected and the present action dismissed as unfounded, I consider that it is not necessary for the Court to adjudicate on the parties’ request to maintain the effects of the contested provisions.

105. In that regard, I only wish to indicate that a decision to maintain the effects of an annulled act is usually justified where important grounds relating to legal certainty call for it or where maintaining the effects is needed in order to avoid serious negative consequences for the sector 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. (56)

106. Here, all the parties involved in the present proceedings appear to me to disagree only as to the legal basis employed, but not as to the material content of the contested provisions. Furthermore, it cannot be doubted that cancelling the effects of the contested provisions retroactively would not only be problematic in terms of legal certainty, but also may have serious consequences for the fishing industry, as it would mean that none of the restrictions contained in the contested provisions (regarding fishing gear or prohibited species) could actually be applied for the year 2021. In that regard, I add that none of the parties involved in the present proceedings dispute that the measures contained in those provisions are aimed at furthering the objectives of the CFP of conserving fisheries resources and of achieving the sustainable exploitation of living aquatic resources. I further note that the two acts adopted subsequently to the regulation at issue, namely Delegated Regulation 2021/2324 and the regulation fixing fishing opportunities for 2022, actually seek to reproduce the content of the contested provisions. (57)

107. In the event that the Court does not agree with me that the Council was entitled to adopt the contested provisions, I therefore believe that the effects of those provisions should be maintained.

VII. Conclusion

108. In the light of the foregoing considerations, I consider that the Court should:

–        dismiss the action of the European Parliament requesting the annulment of Articles 15 to 17, 20 and 59, paragraph 2, of Council Regulation (EU) 2021/92 of 28 January 2021 fixing for 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; and

–        order the Parliament to pay the costs.

1      Original language: English.

2      Council Regulation of 28 January 2021 fixing for 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 (OJ 2021 L 31, p. 31).

3      Regulation of the European Parliament and of the Council of 19 March 2019 establishing a multiannual plan for stocks fished in the Western Waters and adjacent waters, and for fisheries exploiting those stocks, amending Regulations (EU) 2016/1139 and (EU) 2018/973, and repealing Council Regulations (EC) No 811/2004, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007 and (EC) No 1300/2008 (OJ 2019 L 83, p. 1).

4      Regulation of the European Parliament and of the Council of 20 June 2019 on the conservation of fisheries resources and the protection of marine ecosystems through technical measures, amending Council Regulations (EC) No 1967/2006, (EC) No 1224/2009 and Regulations (EU) No 1380/2013, (EU) 2016/1139, (EU) 2018/973, 2019/472 and (EU) 2019/1022 of the European Parliament and of the Council, and repealing Council Regulations (EC) No 894/97, (EC) No 850/98, (EC) No 2549/2000, (EC) No 254/2002, (EC) No 812/2004 and (EC) No 2187/2005 (OJ 2019 L 198, p. 105).

5      Pursuant to Article 290(1) TFEU, ‘a legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act’.

6      Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ 2013 L 354, p. 22).

7      Prior to the United Kingdom’s withdrawal from the European Union, the North Western Waters were fully part of Union Waters and included, inter alia, the Celtic Sea, the Irish Sea and the West of Scotland (see Annex I of Council Decision of 19 July 2004 establishing Regional Advisory Councils under the Common Fisheries Policy (OJ 2004 L 256, p. 17); see also the map available on the website of the North Western Waters Advisory Council at the following address: https://www.nwwac.org/_fileupload/Structure%20of%20NWWAC/NWWAC_Area_Map%20incl%20EU%20zone.pdf).

8      International Council for the Exploration of the Sea.

9      OJ 2021 L 465, p. 1.

10      See Council Regulation (EU) 2022/109 of 27 January 2022 fixing for 2022 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 (OJ 2022 L 21, p. 1).

11      See Article 60 of Regulation 2022/109.

12      See Article 4(1)(20) of Regulation (EU) No 1380/2013.

13      See recital 2 of Regulation 2019/1241.

14      See judgment of 15 May 2008, Spain v Council (C‑442/04, EU:C:2008:276, paragraph 42). I note that recital 7 of Regulation 2019/1241 refers to ‘achieving the CFP objectives to fish at maximum sustainable yield levels, reduce unwanted catches and eliminate discards, and contribute to the achievement of good environmental status’.

15      In that regard, I note that Article 7(2) of Regulation No 1380/2013 contains a non-exhaustive list of what ‘technical measures’ may include. However, none of the provisions of that regulation indicates which EU institution is responsible for adopting those measures.

16      See recital 1 of the regulation at issue.

17      As per the Commission’s explanations in recital 3 of Delegated Regulation 2021/2324. The species of fish concerned by Articles 15 to 17 of the regulation at issue are cod, whiting and gadoid.

18      Pursuant to the wording of those provisions, the Commission is entitled to amend the list of fish or shellfish species the catching, retention, transhipment or landing of which is prohibited (see Article 10(4) of Regulation 2019/1241); to amend, supplement, repeal or derogate from the technical measures designed to take into account regional specificities of certain fisheries (that is, regional technical measures) (see Article 15(2) of Regulation 2019/1241); and to supplement technical measures relating to fishing gears, additional devices to the fishing gears, fishing activities and the fixing of minimum conservation reference size (see Article 9 of Regulation 2019/472).

19      To be precise, the Parliament considers that Articles 15 to 17 of the regulation at issue were adopted by the Council in breach of Article 15(2) of Regulation 2019/1241 or, alternatively, of Article 9 of Regulation 2019/472. Article 20 of the regulation at issue would be in breach of Article 10(4) of Regulation 2019/1241.

20      See Article 29(6) of Regulation 2019/1241.

21      See Article 18(3) and (6) of Regulation 2019/472.

22      See points 20 and 21 above.

23      See Article 3 of Delegated Regulation 2021/2324.

24      As I indicated in the previous point, the second paragraph of Article 59 of the regulation at issue relates to the temporal scope of Articles 15 to 17 of that same instrument. Thus, if the Court were to find that the action has become devoid of any purpose in so far as the Parliament requests that those three provisions be annulled, it would also have to dismiss the Parliament’s arguments regarding the second paragraph of Article 59 of that regulation.

25      Here, by the word ‘interest’, I mean an interest such as that which natural or legal persons must establish in order to bring actions on the basis of the fourth paragraph of Article 263 TFEU.

26      See, to that effect, judgment of 1 October 2009, Commission v Council (C‑370/07, EU:C:2009:590, paragraph 16 and the case-law cited).

27      See, in that sense, judgment of 26 March 1987, Commission v Council (45/86, EU:C:1987:163, paragraph 3).

28      See judgment of 1 October 2009, Commission v Council (C‑370/07, EU:C:2009:590, paragraph 17 and the case-law cited). In that case, the Court annulled a decision of the Council establishing the position to be adopted on behalf of the European Community at a Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), even though the legal effects of that decision had already been exhausted, since that position had already been expressed at the Conference in question.

29      Given that, as I pointed out in point 22 above, the Council adopted, on 27 January 2022, the regulation fixing fishing opportunities for 2022, it cannot be doubted that the Court’s findings in the present case could be directly relevant to the question of whether that regulation should, in part or in whole, also be annulled (if it were to be challenged before the Court), depending on whether it contains provisions analogous to the contested provisions. Furthermore, if the Court were to annul the contested provisions, the natural consequence of that outcome would be that the Council would effectively be prevented from adopting similar provisions in the future.

30      See judgment of 25 October 2001, Germany v Commission (C‑276/99, EU:C:2001:576, paragraph 32).

31      See judgment of 11 October 2007, Commission v Greece (C‑237/05, EU:C:2007:592, paragraphs 36 to 39).

32      Indeed, Article 133(1) of the Rules of Procedure states that the President of the Court ‘may’ (my emphasis) where the nature of the case so requires, decide that a case is to be determined pursuant to an expedited procedure.

33      In that regard, I wish to add that the expedited procedure requires the Court to mobilise its resources in such a way that, from a logistical standpoint, that procedure can concern only a handful of cases each year. Whether or not the action becomes devoid of purpose in a case such as the present one, cannot, in my view, depend on whether that expedited procedure is granted or not.

34      The first paragraph of Article 59 of that regulation provides that Article 20 (along with most of the other provisions of the regulation at issue which do not form part of the present action) shall ‘continue to apply … until the entry into force of the Regulation fixing the fishing opportunities for 2022’.

35      Pursuant to that provision, ‘each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation’.

36      In particular, the Parliament is of the view that Articles 15 to 17 and 20 of the regulation at issue modify the rules set out in Annex VI, part B, point 1, and part C, and Annex I to Regulation 2019/1241, respectively. In doing so, they would breach Article 10(4) and Article 15(2) of that latter regulation, which make it clear that modifications to those rules should be made by the Commission, not by the Council.

37      See Article 12 of Regulation No 1380/2013 (entitled ‘Commission measures in case of a serious threat to marine biological resources’).

38      See Article 13 Regulation No 1380/2013 (entitled ‘Member State emergency measures’).

39      Council Regulation of 27 January 2020 fixing for 2020 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 (OJ 2020 L 25, p. 1).

40      Or else the TACs themselves would have had to be reduced (in order to compensate for the absence of any such technical measures).

41      See Article 15(2) of Regulation 2019/1241 and Article 9(1) of Regulation 2019/472 (see also Article 18 of Regulation No 1380/2013 and, inter alia, Article 15(3) of Regulation 2019/1241). However, there is no such requirement for delegated acts adopted pursuant to Article 10(4) of that regulation.

42      See recital 2 of Delegated Regulation 2021/2324.

43      See, inter alia, judgments of 15 May 2008, Spain v Council (C‑442/04, EU:C:2008:276, paragraph 49 and the case-law cited), and of 16 April 2013, Spain and Italy v Council (C‑274/11 and C‑295/11, EU:C:2013:240, paragraph 33).

44      See, to that effect, judgment of 26 November 2014, Parliament and Commission v Council (C‑103/12 and C‑165/12, EU:C:2014:2400, paragraphs 79 and 81).

45      C‑124/13 and C‑125/13, EU:C:2015:337, point 61.

46      Ibid., point 66.

47      See judgment of 1 December 2015, Parliament and Commission v Council (C‑124/13 and C‑125/13, EU:C:2015:790, paragraph 59).

48      I note that the Parliament’s arguments in that regard are, to some extent, contradictory. On the one hand, the Parliament clearly states that it does not seek to challenge the issue of whether the Council would have been entitled to rely on Article 43(3) TFEU to adopt the contested provisions, had the basic regulations never been adopted. On the other hand, it seems to me that it does not accept that Articles 15 to 17 of the regulation at issue are connected to the ‘fixing of … fishing opportunities’. Indeed, it claims, in essence, that, if one were to accept the Council’s rationale that Articles 15 to 17 are connected to the ‘fixing of … fishing opportunities’ (within the meaning of Article 43(3) TFEU), the Council would effectively be able to adopt all sorts of technical measures using that rationale and disrupt the ‘standard’ procedure for the adoption of technical measures in relation to fisheries (which should consist, first, in the adoption of a legislative act in application of Article 43(2) TFEU and, then, in the adoption of delegated acts by the Commission in application of that act).

49      As I explained at point 26 above, TACs mean Total Allowable Catches. It is undisputed that the determination of the TACs is one of the ways by which the Council may ‘fix and allocate fishing opportunities’ within the meaning of Article 43(3) TFEU.

50      In that case, the Court found that the amendments at issue were designed to ‘appreciably alter’ the special procedure laid down for the annual setting of the TACs for cod stocks and to replace the automatic TAC reductions initially established in that regard (see judgment of 1 December 2015,  Parliament and Commission v Council, C‑124/13 and C‑125/13, EU:C:2015:790, paragraph 73). The Court concluded that Article 43(2) TFEU, rather than Article 43(3) TFEU, was the proper legal basis in that case.

51      Ibid., paragraphs 79 and 80. In essence, a measure which, unlike the contested provisions, sets the framework or constitutes a prerequisite for the fixing and allocation of fisheries and which is not designed simply to implement a provision adopted at a higher level will usually fall within the scope of Article 43(2) TFEU, rather than Article 43(3) TFEU (see the explanation given by Advocate General Wahl in his Opinion in Joined Cases Parliament and Commission v Council, C‑124/13 and C‑125/13, EU:C:2015:337, point 66).

52      Ibid., paragraph 58. To that extent, I disagree with the Council’s line of reasoning that acts decided pursuant to Article 43(3) TFEU (such as the regulation at issue) always take precedence over delegated acts adopted by the Commission pursuant to legislation adopted on the basis of Article 43(2) TFEU. In my view, the Council can only use its decision-making powers derived from the former provision if that use is compatible with the delegation of powers instituted by acts adopted in accordance with the latter provision, given that the Court has made it clear that there is a hierarchy between those two provisions of the FEU Treaty (see judgment of 26 November 2014, Parliament and Commission v Council,  C‑103/12 and C‑165/12, EU:C:2014:2400, paragraphs 79 and 81).

53      Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making of 13 April 2016 (OJ 2016 L 123, p. 1).

54      Entitled ‘Common Understanding between the European Parliament, the Council and the Commission on Delegated Acts’.

55      See, in that regard, judgment of 12 February 2015, Parliament v Council (C‑48/14, EU:C:2015:91, paragraphs 57 and 58).

56      See, for example, judgments of 3 September 2009, Parliament v Council (C‑166/07, EU:C:2009:499, paragraphs 74 and 75); of 5 September 2012, Parliament v Council (C‑355/10, EU:C:2012:516, paragraphs 89 and 90); and of 6 May 2014, Commission v Parliament and Council (C‑43/12, EU:C:2014:298, paragraphs 54 to 56).

57      See Article 2 of Delegated Regulation 2021/2324 and Article 18 of the regulation fixing fishing opportunities for 2022.

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