Contents
Judgment of the Court (Third Chamber)24 November 2022note(Action for annulment — Common fisheries policy — Regulation (EU) 2021/92 — 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 — Conservation of fishery resources and protection of marine ecosystems through technical measures — Articles 15 to 17 and 20 and the second paragraph of Article 59 — Article 43(3) TFEU — Misuse of powers — Principle of sincere cooperation)In Case C‑259/21,ACTION for annulment under Article 263 TFEU, brought on 22 April 2021,European Parliament, represented by I. Liukkonen and I. Terwinghe, acting as Agents,vCouncil of the European Union, represented by S. Falek, F. Naert and A. Nowak-Salles, acting as Agents,supported by:European Commission, represented by A. Dawes, A. Stobiecka-Kuik and K. Walkerová, acting as Agents,THE COURT (Third Chamber),composed of K. Jürimäe, President of the Chamber, M. Safjan, N. Piçarra, N. Jääskinen (Rapporteur) and M. Gavalec, Judges,Advocate General: N. Emiliou,Registrar: A. Calot Escobar,having regard to the written procedure,after hearing the Opinion of the Advocate General at the sitting on 22 June 2022,gives the following
Judgment
1By its application, the European Parliament asks the Court to annul Articles 15 to 17 and 20 and the second paragraph of Article 59 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 (OJ 2021 L 31, p. 31) (‘the contested provisions’).
Legal context
The FEU Treaty
2Article 43(2) and (3) TFEU reads as follows: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 common fisheries policy.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.’
The basic regulations
3Regulation (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), Regulation (EU) 2019/472 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), and Regulation (EU) 2019/1241 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 and (EC) No 1224/2009 and Regulations (EU) No 1380/2013, (EU) 2016/1139, (EU) 2018/973, (EU) 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) (together, ‘the basic regulations’) were adopted on the basis of Article 43(2) TFEU.
Regulation No 1380/2013
4Article 2 of Regulation No 1380/2013 sets out the objectives of the common fisheries policy (‘the CFP’).
5Article 12 of that regulation, entitled ‘Commission measures in case of a serious threat to marine biological resources’, is worded as follows:1. On duly justified imperative grounds of urgency relating to a serious threat to the conservation of marine biological resources or to the marine ecosystem based on evidence, the Commission, at the reasoned request of a Member State or on its own initiative, may, in order to alleviate that threat, adopt immediately applicable implementing acts applicable for a maximum period of six months in accordance with the procedure referred to in Article 47(3).…3. Before expiry of the initial period of application of immediately applicable implementing acts referred to in paragraph 1, the Commission may, where the conditions under paragraph 1 are complied with, adopt immediately applicable implementing acts extending the application of such emergency measure for a maximum period of six months with immediate effect. …’
6Article 13 of Regulation No 1380/2013, entitled ‘Member State emergency measures’, allows Member States to adopt emergency measures to alleviate a serious threat to the conservation of marine biological resources or to the marine ecosystem relating to fishing activities in waters falling under the sovereignty or jurisdiction of a Member State that require immediate action.
Regulation 2019/472
7Regulation 2019/472, as amended by Regulation 2019/1241 (‘Regulation 2019/472’), establishes a multiannual plan for stocks fished in the Western Waters and adjacent waters and for fisheries exploiting those stocks.
8Pursuant to Article 8(2) of that regulation, when scientific advice indicates that the spawning stock biomass and, in the case of Norway lobster stocks, abundance of any of the stocks referred to in Article 1(1) is below certain values, further remedial measures are to be taken to ensure rapid return of the stock or functional unit concerned to levels above the level capable of producing maximum sustainable yield. It is also clear from that provision that those remedial measures may include the suspension of targeted fishery for the stock or functional unit concerned and the adequate reduction of fishing opportunities.
9Under Article 8(3) of that regulation, the remedial measures referred to in that article may include emergency measures in accordance with Articles 12 and 13 of Regulation No 1380/2013 and measures pursuant to Article 9 of Regulation 2019/472.
10As set out in Article 9(1) of Regulation 2019/472:‘The Commission is empowered to adopt delegated acts in accordance with Article 18 of this Regulation and Article 18 of Regulation [No 1380/2013] in order to supplement this Regulation regarding the following technical measures, in so far as they are not covered by Regulation [2019/1241]:(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;(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.’
Regulation 2019/1241
11The purpose of Regulation 2019/1241 is, in accordance with Article 1 thereof, to lay down technical measures concerning the taking and landing of marine biological resources, the operating of fishing gear and the interaction of fishing activities with marine ecosystems.
12Article 10 of that regulation, entitled ‘Prohibited fish and shellfish species’, provides:1. The catching, retention on board, transhipment or landing of fish or shellfish species referred to in Annex IV to [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7)] shall be prohibited except when derogations are granted under Article 16 of that Directive.2. In addition to the species referred to in paragraph 1, it shall be prohibited for Union vessels to fish for, retain on board, tranship, land, store, sell, display or offer for sale the species listed in Annex I or species for which fishing is prohibited under other Union legal acts.…4. 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.…’
13Article 15 of that regulation, entitled ‘Regional technical measures’, provides in paragraph 2:‘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 [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 [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 [No 1380/2013] and in accordance with the relevant Articles of Chapter III of this Regulation.’
14Article 29 of Regulation 2019/1241, entitled ‘Exercise of the delegation’, states in paragraph 6:‘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.’
15The list of species for which fishing is prohibited, referred to in Article 10(2) of Regulation 2019/1241, is set out in Annex I to that regulation.
16Annex VI to that regulation lists the technical measures applicable to North Western Waters.
Regulation 2021/92
17Regulation 2021/92 was adopted by the Council on the basis of Article 43(3) TFEU.
18Recitals 55 to 59 of that regulation read as follows:(55) [International Council for the Exploitation of the Sea (ICES)] advice for 2021 indicates that the stocks of cod and whiting in the Celtic Sea are below the [biomass limit (Blim)]. Specific remedial measures were already taken for those stocks pursuant to [Council Regulation (EU) 2020/123 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)]. The purpose of those measures was to contribute to the recovery of the stocks concerned. The measures for cod aim at improving selectivity by making the usage of gear that has lower levels of by-catches of cod mandatory in the areas where cod catches are significant, thus decreasing the fishing mortality of that stock in mixed fisheries. The measures for whiting consist of technical modifications to characteristics of gear to decrease by-catches of whiting. In accordance with Article 8 of the Western Waters multiannual plan [established by Regulation 2019/472], where scientific advice indicates that the spawning stock biomass of any of the stocks referred to in Article 1(1) of that plan is below (Blim), further remedial measures are to be taken to ensure the rapid return of the stock to levels above the level capable of producing [maximum sustainable yield]. In particular, those remedial measures may include suspending the targeted fishery for the stock concerned and the adequate reduction of fishing opportunities for those stocks or other stocks in the fisheries that have by-catches of cod or whiting.(56) The measures to reduce bycatches of gadoids are functionally linked to the [total allowable catches (TACs)] of species caught in mixed fisheries together with gadoids (e.g. haddock, megrims, anglerfish and Norway lobster), as, without those measures in place, TAC levels of target species should be reduced to ensure that gadoid stocks are able to recover. It is therefore proposed that those measures also be adopted for 2021, taking into account further assessment of those measures and work undertaken by the Member States of the North Western Waters.(57) In line with the regionalisation process of the CFP, the Member States of the North Western Waters have submitted a joint recommendation on a broader range of specific measures to reduce bycatches of cod and whiting in the Celtic Sea and adjacent areas based on the remedial measures that were in place in 2020. Additional selectivity measures aiming to reduce gadoid bycatches in the Irish Sea and West of Scotland are also included in that joint recommendation, based on similar measures that were in place in 2020.(58) The [Scientific, Technical and Economic Committee for Fisheries (STECF)] considers that, overall, the proposed measures are more selective or at least as selective as the technical measures in Regulation [2019/1241], and the Commission is currently considering including those measures in a delegated act based on the joint recommendation submitted by the Member States having a direct management interest in the North Western Waters.(59) As those measures are more comprehensive and will apply on a more stable basis, the functionally linked technical measures should only apply in the absence of 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.’
19Article 15 of Regulation 2021/92, entitled ‘Technical measures for cod and whiting in the Celtic Sea’, lays down a number of measures relating to mesh applicable to Union vessels fishing with bottom trawls or seines in the Celtic Sea.
20Article 16 of that regulation, entitled ‘Technical measures in the Irish Sea’, lays down obligations concerning Union fishing vessels operating with bottom trawls or seines in the Irish Sea.
21Article 17 of that regulation, entitled ‘Technical measures in the West of Scotland’, also lay downs measures relating to mesh applicable to Union fishing vessels operating with bottom trawls or seines in the West of Scotland.
22Pursuant to Article 20 of Regulation 2021/92, entitled ‘Prohibited species’, it is prohibited for Union fishing vessels to fish for, to retain on board, to tranship or to land certain species in specific ICES divisions and subareas of the then Union waters. That provision also states that, when accidentally caught, the species listed should not be harmed and the specimens should be promptly released.
23As set out in 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.’
Interinstitutional Agreement
24Point 2 of the 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) (‘the interinstitutional agreement’) is worded as follows:‘In exercising their powers and in compliance with the procedures laid down in the Treaties, and recalling the importance which they attach to the Community method, the three Institutions agree to observe general principles of Union law, such as democratic legitimacy, subsidiarity and proportionality, and legal certainty. They further agree to promote simplicity, clarity and consistency in the drafting of Union legislation and to promote the utmost transparency of the legislative process.’
25As set out in the third and fourth paragraphs of Article 25 of that agreement:‘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, the three Institutions will exchange views thereon.The three Institutions agree that the choice of legal basis is a legal determination that must be made on objective grounds which are amenable to judicial review.’
Background to the proceedings
26On 27 October 2020, the Commission issued the Proposal for a Council Regulation 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 (COM(2020) 668 final).
27On 14 December 2020, the Commission updated that proposal by incorporating provisions identical to the contested provisions.
28On 28 January 2021, the Council of the European Union adopted Regulation 2021/92. In accordance with Article 60 thereof, that regulation entered into force on the day of its publication in the Official Journal of the European Union, being 29 January 2021.
29By application lodged at the Court Registry on 22 April 2021, the Parliament brought the present action under the second paragraph of Article 263 TFEU, seeking the annulment of the contested provisions.
Facts subsequent to the bringing of the action
30On 23 August 2021, the Commission adopted Delegated Regulation (EU) 2021/2324 amending Regulation (EU) 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 (OJ 2021 L 465, p. 1). That regulation was adopted on the basis, inter alia, of Article 10(4) and Article 15(2) of Regulation 2019/1241.
31First, according to recital 2 of that delegated regulation, the Kingdom of Belgium, Ireland, the Kingdom of Spain, the French Republic, and the Kingdom of the Netherlands submitted a first joint recommendation in May 2020. In response to the Commission’s invitation, those Member States submitted a revised joint recommendation on 14 December 2020.
32Secondly, recital 3 of Delegated Regulation 2021/2324 states that pending the adoption of the measures proposed in that joint recommendation by delegated act, remedial measures within the meaning of Regulation 2019/472, that aimed at decreasing by-catches of cod and whiting in the Celtic Sea and adjacent areas, and additional technical measures aiming to reduce gadoid bycatches in the Irish Sea and West of Scotland were established in Articles 15 to 17 of Regulation 2021/92. According to that recital, those measures were functionally linked to the TAC levels for target species caught in mixed fisheries, as, without those measures such TAC levels would have had to be reduced to allow the by-catch stocks to recover.
33Thirdly, according to recital 6 of Delegated Regulation 2021/2324, that regulation aims at incorporating into one single act existing provisions on, inter alia, technical measures corresponding to the measures established in Articles 15 to 17 of Regulation 2021/92.
34On 27 January 2022, the Council adopted Regulation (EU) 2022/109 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). In accordance with Article 60 thereof, that regulation entered into force on the day of its publication in the Official Journal of the European Union, being 31 January 2022.
Forms of order sought and procedure before the Court
35The Parliament claims that the Court should:– annul the contested provisions; and– order the Council to pay the costs.
36The Council contends that the Court should:– dismiss the action as unfounded;– in the event that the contested provisions are annulled, maintain their effects, and– order the Parliament to pay the costs.
37By decision of the President of the Court of 19 August 2021, the Commission was granted leave to intervene in support of the form of order sought by the Council.
38Pursuant to Article 62 of the Rules of Procedure of the Court, the Advocate General and the Judge-Rapporteur, by letter of 13 May 2022, asked the parties to give their views on the effect of the adoption of Regulation 2022/109 on the Parliament’s action. The parties complied with that request.
The action
Admissibility
Arguments of the parties
39In a preliminary procedural observation set out in its reply, the Council submits, in the first place, that the adoption by the Commission of Delegated Regulation 2021/2324 after the present action had been brought put an end to the application of the measures laid down by Articles 15 to 17 of Regulation 2021/92, with the result that the action has become devoid of purpose in respect of those articles and the second paragraph of Article 59 of that regulation.
40In the second place, and in any event, the action became devoid of purpose on 31 December 2021 as regards Articles 15 to 17 of Regulation 2021/92, since the temporal application of those provisions was limited to 2021. Article 20 of that regulation, it is submitted, continued to produce its effects only until the entry into force of Regulation 2022/109, being 31 January 2022.
41Conversely, the Parliament contends that the adoption of Delegated Regulation 2021/2324 does not preclude the Court from ruling on the validity of Articles 15 to 17 of Regulation 2021/92. Although certain provisions of that delegated regulation reflect the content of Articles 15 to 17 of Regulation 2021/92, those provisions continue to exist in the EU legal order and should be repealed in the interest of legal certainty.
42As regards the entry into force of Regulation 2022/109, the Parliament, like the Commission, contends that the adoption of that regulation has no bearing on the present action.
43The Parliament states that it is normal practice for a regulation fixing fishing opportunities for a given year not to repeal the regulation for the preceding year. That approach makes it possible, inter alia, to enforce the provisions of that earlier regulation against Member States and operators even after the end of the fishing year in question, in particular with a view to a subsequent review of the compatibility of the fishing activities carried out with the fishing opportunities provided for.
44Furthermore, the Parliament contends that the Court must rule on the present action because the Council could, in the future, adopt technical measures such as those contained in the contested provisions.
Findings of the Court
45The Court has already declared an action for annulment to be admissible where the measure had already been implemented or was no longer in force at the time when the action was brought (judgment of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraph 17 and the case-law cited).
46That solution is justified, in particular, by the need to ensure that the alleged illegality does not recur (see, to that effect, judgments of 24 June 1986, AKZO Chemie and AKZO Chemie UK v Commission, 53/85, EU:C:1986:256, paragraph 21, and of 26 April 1988, Apesco v Commission, 207/86, EU:C:1988:200, paragraph 16). That is the case where, as here, the legislation adopted in the area of fishing is limited in time and new rules are adopted each year.
47It follows that neither the adoption of Delegated Regulation 2021/2324 by the Commission nor the entry into force of Regulation 2022/109 can affect whether the present action has retained its purpose and thus its admissibility.
48In any event, since the Parliament is not required to demonstrate an interest in bringing proceedings in order to bring an action for annulment of decisions taken by the Council (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), nor is it required to prove that such an interest persists during the proceedings.
49Consequently, the present action is admissible.
Substance
50In support of its action, the Parliament raises two pleas in law, the first alleging abuse of the procedure laid down by the basic regulations, and the second alleging breach of the principle of sincere cooperation referred to in Article 13(2) TEU.
The first plea, alleging abuse of the procedure laid down by the basic regulations
–Arguments of the parties
51The Parliament argues that, by adopting the contested provisions on the basis of Article 43(3) TFEU, the Council misused its power under that provision and circumvented the procedure laid down in the basic regulations for the adoption of technical measures, a procedure which conferred the power to adopt such measures only on the Commission and, in the event of an emergency, on the Member States.
52More specifically, the Parliament submits that the Council’s failure to comply with the procedure for the adoption of technical measures as laid down by the basic regulations, in particular by Article 9 of Regulation 2019/472 and by Article 10(4) and Article 15 of Regulation 2019/1241, constitutes a misuse of powers within the meaning of the Court’s case-law derived from the judgments of 13 November 1990, Fedesa and Others (C‑331/88, EU:C:1990:391, paragraph 24), and of 16 April 2013, Spain and Italy v Council (C‑274/11 and C‑295/11, EU:C:2013:240, paragraph 33 and the case-law cited).
53Since those provisions of the basic regulations, adopted on the basis of Article 43(2) TFEU, conferred on the Commission the power to adopt technical measures, the Council was not entitled to adopt the contested provisions based on its power under Article 43(3) TFEU.
54The Council’s power to adopt technical measures under Article 43(3) TFEU is, therefore, limited since the Parliament and the Council agreed, in legislative acts adopted pursuant to Article 43(2) TFEU, to empower the Commission rather than the Council to adopt such measures as delegated acts under Article 290 TFEU.
55Referring, inter alia, to the Court’s case-law derived from the judgment of 1 December 2015, Parliament and Commission v Council (C‑124/13 and C‑125/13, EU:C:2015:790), the Parliament submits that the Council must respect and follow the framework pre-established in legislative acts adopted on the basis of Article 43(2) TFEU when it intends to adopt measures pursuant to Article 43(3) TFEU in order to implement those legislative acts.
56More specifically, the Parliament submits that Articles 15 to 17 and 20 of Regulation 2021/92 had the effect of amending the rules laid down in Part B, point 1, and Part C of Annex VI and in Annex I to Regulation 2019/1241, in breach of Article 10(4) and Article 15(2) of that regulation, since the amendment of those rules was a matter for the Commission and not the Council.
57Moreover, the Parliament states that the Council expressly acknowledged, in recital 59 and in the second paragraph of Article 59 of Regulation 2021/92, that the Commission should have adopted the technical measures provided for in Articles 15 to 17 of that regulation. The Council has in no way explained the reasons why it adopted the contested provisions itself, instead of the Commission.
58The Parliament further submits that, if the adoption of the technical measures contained in the contested provisions had been justified by an emergency, the appropriate legal basis for adopting those measures would have been Articles 12 and 13 of Regulation No 1380/2013, under which emergency measures may be adopted either by the Commission or by the Member States, but not by the Council.
59The Parliament states that, in the absence of an emergency, Article 8(2) and (3) of Regulation 2019/472 provides that remedial measures may be adopted only by the Commission in delegated acts.
60The Council, supported by the Commission, contends that the first plea is unfounded.
–Findings of the Court
61In accordance with settled case-law, a measure is vitiated by misuse of powers only 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 Treaties for dealing with the circumstances of the case (judgment of 5 May 2015, Spain v Parliament and Council, C‑146/13, EU:C:2015:298, paragraph 56 and the case-law cited).
62In the present case, it is necessary to examine whether, as the Parliament maintains, the contested provisions were adopted 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 FEU Treaty for dealing with the circumstances of the case.
63As regards, in the first place, whether the contested provisions fall within the Council’s power under Article 43 TFEU, it must first be recalled that paragraphs 2 and 3 thereof pursue different aims and each have a specific field of application, which means that they may be used separately as a basis for adopting particular measures under the CFP (judgment of 1 December 2015, Parliament and Commission v Council, C‑124/13 and C‑125/13, EU:C:2015:790, paragraph 58).
64When it adopts acts on the basis of Article 43(3) TFEU, the Council must act within the limits of its powers and, where relevant, within the legal framework already established under Article 43(2) TFEU (judgment of 1 December 2015, Parliament and Commission v Council, C‑124/13 and C‑125/13, EU:C:2015:790, paragraph 58).
65Next, it should be noted that Article 43(3) TFEU provides that the Council, on a proposal from the Commission, is to adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.
66The Court has clarified that that provision may extend to measures which do more than merely fix and allocate fishing opportunities, 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 (judgment of 1 December 2015, Parliament and Commission v Council, C‑124/13 and C‑125/13, EU:C:2015:790, paragraph 59).
67In the present case, as regards, first, Articles 15 to 17 of Regulation 2021/92, it is apparent from recitals 55 to 58 of that regulation that the purpose of the technical measures laid down by those provisions is, by improving selectivity of fishing gear, to contribute to the recovery of the stocks concerned, as with the specific remedial measures previously adopted pursuant to Regulation 2020/123.
68Furthermore, it follows from recital 56 of Regulation 2021/92, as well as from recital 3 of Delegated Regulation 2021/2324, as noted in paragraph 32 above, that the technical measures provided for by Articles 15 to 17 of Regulation 2021/92 are functionally linked to the TAC levels for target species caught in mixed fisheries as, without those measures, TAC levels would have to be reduced to allow the by-catch stocks to recover.
69As regards, secondly, Article 20 of Regulation 2021/92, it should be stated, as the Commission has noted, that the prohibitions on fishing prescribed therein constitute a lack of fishing opportunities, which may, if appropriate, be subsequently amended into limited fishing opportunities, depending on stock trends for the species concerned.
70Furthermore, as the Advocate General observed in point 79 of his Opinion, unlike the amendments made by the Council on the basis of Article 43(3) TFEU regarding the rules on the fixing of fishing opportunities, which were at issue in the case giving rise to the judgment of 1 December 2015, Parliament and Commission v Council (C‑124/13 and C‑125/13, EU:C:2015:790), the adoption of the contested provisions is 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.
71On the contrary, Articles 15 to 17 and 20 of Regulation 2021/92 are unique in that they are limited in scope to particular circumstances – that is to say, the measures they provide for are intended to apply to certain types of vessel, operating in certain areas only, and only to certain types of species – and in that they are intended to apply temporarily. Accordingly, they do not entail a policy choice that is reserved to the EU legislature, within the meaning of the case-law cited in paragraph 66 above.
72Consequently, the contested provisions fall, in principle, within the Council’s power under Article 43(3) TFEU.
73In the second place, as regards the impact of the basic regulations on that power, it should be noted that those regulations, specifically Article 9 of Regulation 2019/472 and Article 10(4) and Article 15 of Regulation 2019/1241, lay down a specific procedure for the adoption of technical measures by the Commission, namely the adoption of delegated acts under Article 290 TFEU.
74However, that power conferred on the Commission does not prevent the Council from adopting, on the basis of its power under Article 43(3) TFEU, technical measures relating to matters similar to those covered by those provisions of the basic regulations in circumstances such as those of the present case, that is to say, where the Commission has not itself taken steps to adopt delegated acts on the basis of those provisions of the basic regulations.
75Indeed, it is apparent from the second paragraph of Article 59 of Regulation 2021/92 that Articles 15 to 17 of that regulation were intended to cease applying as soon as the Commission adopted one or more delegated acts on the same technical measures.
76In those circumstances, as the Advocate General observed in point 83 of his Opinion, it must be held that the contested provisions are 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.
77That power of the Commission is acknowledged not only in the second paragraph of Article 59 but also in recital 59 of Regulation 2021/92, which indicates that the technical measures adopted by the Commission 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.
78As regards the prohibition on fishing contained in Article 20 of Regulation 2021/92, it should be noted that, while Article 10(2) of Regulation 2019/1241 contains a similar prohibition on fishing, that prohibition is aimed at other species of fish and crustaceans.
79It is true that Article 10(4) of Regulation 2019/1241 states that the Commission is empowered to adopt delegated acts in order to amend the list of species set out in Annex I to that regulation, where the best available scientific advice indicates that it is necessary to do so.
80Nevertheless, Article 10(2) of Regulation 2019/1241 states that, in addition to the species referred to in paragraph 1, it is prohibited for Union vessels to fish for, retain on board, tranship, land, store, sell, display or offer for sale the species listed in Annex I or species for which fishing is prohibited ‘under other Union legal acts’.
81The ‘other Union legal acts’ referred to in Article 10(2) of Regulation 2019/1241 should be regarded, as the Council and the Commission have done, as including, inter alia, Council regulations fixing fishing opportunities, adopted pursuant to Article 43(3) TFEU.
82Thus, in adopting the contested provisions, the Council acted within the limits of its powers under Article 43(3) TFEU and complied with the specific legal framework established under Article 43(2) TFEU.
83In those circumstances, the material in the file submitted to the Court does not support the finding, on the basis of objective, relevant and consistent evidence, as required by the case-law referred to in paragraph 61 above, that the contested provisions are vitiated by a misuse of powers, as the Parliament claims.
84That conclusion is not invalidated by the Parliament’s argument that the measures contained in the contested provisions should have been adopted either as Commission or Member State emergency measures designed to respond to a serious threat to the conservation of marine biological resources or to the marine ecosystem, within the meaning of Articles 12 and 13 of Regulation No 1380/2013, or, in the absence of an emergency situation, as delegated acts of the Commission, since Article 8(2) and (3) of Regulation 2019/472 envisages only those two possibilities.
85First, as the Parliament has also agreed, the contested provisions do not constitute, having regard to their subject matter and purpose, emergency measures designed to respond to a serious threat to the conservation of marine biological resources, within the meaning of Articles 12 and 13 of Regulation No 1380/2013. Secondly, the Council acted and adopted the contested provisions for the interim period during which the Commission had not yet made use of the other option expressly provided for in Article 8(2) and (3) of Regulation 2019/472 and adopted one or more delegated acts pursuant to those provisions.
86As the Commission was correct in arguing in its statement in intervention, the previous remedial measures contained in Article 13 of Regulation 2020/123 were intended to remain in force only until 31 December 2020. Similarly, other earlier measures, in particular the prohibition on fishing for certain vulnerable species, continued, in accordance with Article 54 of that regulation, to apply mutatis mutandis during 2021 until the entry into force of the regulation fixing fishing opportunities for 2021, namely Regulation 2021/92.
87Furthermore, as regards Articles 15 to 17 of Regulation 2021/92 specifically, as the Advocate General observed in point 88 of his Opinion, given that efforts were concentrated on the European Union and the United Kingdom reaching agreement on the adoption of technical measures on account of the withdrawal of the United Kingdom from the European Union, no joint recommendation, as required by Article 9(1) of Regulation 2019/472 and Article 15(2) of Regulation 2019/1241, was submitted early enough for the Commission to adopt a delegated act at the start of 2021. Moreover, that is confirmed by recital 2 of Delegated Regulation 2021/2324, according to which, although the Kingdom of Belgium, Ireland, the Kingdom of Spain, the French Republic and the Kingdom of the Netherlands submitted a first joint recommendation in May 2020, it was not until 14 December 2020 that they submitted a revised joint recommendation.
88Thus, as the Advocate General observed in point 89 of his Opinion, 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.
89Consequently, the first plea must be rejected.
The second plea in law
–Arguments of the parties
90The Parliament submits that, by failing to comply with the procedures laid down in the basic regulations for the adoption of the measures contained in the contested provisions, the Council failed to fulfil its duty of sincere cooperation towards the Parliament, in breach of Article 13(2) TEU.
91In particular, the Parliament argues that the Council infringed point 2 of the interinstitutional agreement, which sets out the duty of sincere cooperation in the context of the procedures for the preparation and adoption of legislative texts and delegated acts and which is binding on the parties, in particular the Council and the Parliament, in accordance with Article 295 TFEU.
92The adoption of technical measures on the basis of Article 43(3) TFEU, instead of the adoption of a delegated act in accordance with the basic regulations, prevented the Parliament from exercising its power of review of measures taken on the basis of Article 290(2)(b) TFEU and thus deprived the Parliament of any role in the legislative process.
93Furthermore, the Parliament maintains that the Council did not notify it of its intention to amend the procedure for the adoption of the contested provisions. It states that point 25 of the interinstitutional agreement lays down the obligation to consult the other institutions on a modification of the legal basis which may significantly alter the division of powers with regard to the adoption of an act as compared with what is provided for under EU law.
94The Council, supported by the Commission, contends that the second plea should be rejected.
–Findings of the Court
95Under Article 13(2) TEU, the institutions are to practise mutual sincere cooperation. That sincere cooperation must, however, be exercised within the limits of the powers conferred by the Treaties on each institution, so that the obligation resulting from Article 13(2) TEU is therefore not such as to change those powers (see, to that effect, judgment of 12 February 2015, Parliament v Council, C‑48/14, EU:C:2015:91, paragraphs 57 and 58).
96In order to argue, in its second plea, that the Council infringed the principle of sincere cooperation in adopting the contested provisions, the Parliament relies, in essence, on reasoning based on the premiss that the Council adopted the contested provisions in disregard of the basic regulations and, therefore, in excess of its powers under the Treaties.
97However, it is apparent from paragraphs 82 and 83 above that, in adopting the contested provisions, the Council acted within the limits of its powers under Article 43(3) TFEU and did not misuse its powers.
98It follows that the Parliament has no basis for claiming that the Council infringed the principle of sincere cooperation enshrined in Article 13(2) TEU.
99That conclusion is not invalidated by the Parliament’s arguments based on point 25 of the interinstitutional agreement, since, as the Council was correct in arguing, Regulation 2021/92 was adopted on the same legal basis as that proposed by the Commission, namely Article 43(3) TFEU, with the result that there was no modification of the legal basis within the meaning of point 25.
100Consequently, the second plea must be rejected.
101Since none of the pleas has been upheld, the action must be dismissed in its entirety.
Costs
102Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has applied for costs and the Parliament has been unsuccessful, the Parliament must be ordered to pay the costs.
103In accordance with Article 140(1) of the Rules of Procedure, the Commission is to bear its own costs.
Operative part
On those grounds, the Court (Third Chamber) hereby:
1.Dismisses the action;
2.Orders the European Parliament to bear its own costs and to pay the costs incurred by the Council of the European Union;
3.Orders the European Commission to bear its own costs.
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