delivered on 20 April 2016 (1)

Case C‑113/14

European Parliamentand

‛Action for annulment — Choice of legal basis — FEU Treaty — Article 43(2) and (3) — Common organisation of the markets in agricultural products — Regulation (EU) No 1308/2013 — Article 7 — Regulation (EU) No 1370/2013 — Article 2 — Measures on fixing prices — Reference thresholds — Intervention prices’

I – Introduction

1.This is the year 2016 A.D. The common agricultural policy (CAP) is governed entirely by the ordinary legislative procedure … Entirely? No! Because an irrevocable provision of the FEU Treaty relating to the CAP is still resisting that ordinary procedure. And life is not easy for those who are called upon to define the scope of that provision. (2)

2.The Treaty of Lisbon fundamentally changed the set of ‘horizontal’ competences concerning the CAP. Whereas, prior to 1 December 2009, the date on which that treaty came into force, the Council of the European Union alone was competent to adopt measures, on a proposal from the European Commission and after consulting the European Parliament, (3) the FEU Treaty now provides that the Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the common organisation of agricultural markets and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy (Article 43(2) TFEU), while the Council on a proposal from the Commission, shall adopt, inter alia, measures on fixing prices (Article 43(3) TFEU).

3.That change quickly gave rise to a dispute between the Commission and the Parliament, on the one hand, and the Council, on the other hand, regarding how to delimit precisely those two legal bases. (4)

4.In this case, which is the third case concerning Article 43(2) and (3) TFEU, it is the Federal Republic of Germany which has brought an action against the Parliament and the Council for having adopted legislation on the basis of Article 43(2) TFEU instead of Article 43(3) TFEU. (5) It seeks the annulment of Article 7 of Regulation (EU) No 1308/2013 (‘the Single CMO Regulation’), (6) adopted in accordance with the ordinary legislative procedure, on the basis of Article 43(2) TFEU and the annulment of Article 2 of Regulation (EU) No 1370/2013 (‘the Fixing Regulation’), (7) adopted on the basis of Article 43(3) TFEU.

5.The Court will therefore be required once more to specify the circumstances in which legislative or other measures concerning agriculture or fisheries are to be adopted in accordance with the ordinary legislative procedure or by the Council alone.

6.This question is of considerable importance from a constitutional point of view. (8) The Court will have the opportunity to remind the political institutions that it is not procedures that define the legal basis of a measure but the legal basis of a measure that determines the procedures to be followed in adopting that measure. (9)

II – Legal framework

A – The FEU Treaty

7.Under Article 40(1) and (2) TFEU:

‘1. In order to attain the objectives [of the CAP], a common organisation of agricultural markets shall be established.

…

8.Article 43(2) TFEU states:

‘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.’

9.Under Article 43(3) TFEU:

‘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 Single CMO Regulation

10.Under recitals 2, 5, 10, 12 and 14 of the Single CMO Regulation:

‘(2) This Regulation should contain all the basic elements of the common organisation of the markets in agricultural products.

…

(5) Pursuant to Article 43(3) TFEU, the Council is to adopt measures on fixing prices, levies, aid and quantitative limitations. In the interest of clarity, where Article 43(3) TFEU applies, this Regulation should explicitly refer to the fact that measures will be adopted by the Council on that legal basis.

…

(10) In order to stabilise the markets and to ensure a fair standard of living for the agricultural community, a differentiated system of price support for the different sectors has been developed and direct support schemes have been introduced, taking into account the different needs in each of these sectors on the one hand and the interdependence between different sectors on the other. Those measures take the form of public intervention or the payment of aid for private storage. There continues to be a need to maintain price support measures whilst streamlining and simplifying them.

…

(12) For the sake of clarity and transparency, the provisions on public intervention should be made subject to a common structure, whilst maintaining the policy pursued in each sector. For that purpose, it is appropriate to distinguish between reference thresholds and intervention prices and to define the latter. …

…

(14) Public intervention price should consist of a fixed price for certain quantities for some products and in other cases should depend on tendering, reflecting the practice and experience under previous CMOs [common organisation of the markets].’

11.Article 7 of the Single CMO Regulation, entitled ‘Reference thresholds’, in the ‘Introductory provisions’ of the regulation, provides:

‘1. The following reference thresholds are fixed:

(a) as regards the cereals sector, EUR 101.31/tonne, related to the wholesale stage for goods delivered to the warehouse, before unloading;

(b) as regards paddy rice, EUR 150/tonne for the standard quality as defined in point A of Annex III, related to the wholesale stage for goods delivered to the warehouse, before unloading;

as regards sugar of standard quality as defined in point B of Annex III, related to unpacked sugar, ex-factory:

(i)for white sugar: EUR 404.40/tonne;

(ii)for raw sugar: EUR 335.20/tonne;

as regards the beef and veal sector, EUR 2 224/tonne for carcasses of male bovine animals of grade R3 as laid down in the Union scale for the classification of carcasses of bovine animals aged eight months or more referred to in point A of Annex IV;

as regards the milk and milk products sector:

(i)EUR 246.39 per 100 kg for butter;

(ii)EUR 169.80 per 100 kg for skimmed milk powder;

as regards pigmeat, EUR 1 509.39/tonne for pig carcasses of a standard quality defined in terms of weight and lean meat content as laid down in the Union scale for the classification of pig carcasses referred to in point B of Annex IV as follows:

(i)carcasses weighing from 60 to less than 120 kg: class E;

(ii)carcasses weighing from 120 to 180 kg: class R;

as regards the olive oil sector:

(i)EUR 1 779/tonne for extra virgin olive oil;

(ii)EUR 1 710/tonne for virgin olive oil;

(iii)EUR 1 524/tonne for lampante olive oil with 2 degrees of free acidity, this amount being reduced by EUR 36.70/tonne for each additional degree of acidity.

The reference thresholds provided for in paragraph 1 shall be kept under review by the Commission, taking account of objective criteria, notably developments in production, costs of production (particularly inputs), and market trends. When necessary, the reference thresholds shall be updated in accordance with the ordinary legislative procedure in the light of developments in production and markets.’

Article 15 of that regulation, entitled ‘Public intervention price’, provides:

(a)the price at which products shall be bought in under public intervention where this is done at a fixed price;

(b)the maximum price at which products eligible for public intervention may be bought-in where this is done by tendering.

The measures on fixing the level of the public intervention price, including the amounts of increases and reductions, shall be taken by the Council in accordance with Article 43(3) TFEU.’

C – The Fixing Regulation

Recitals 2 and 3 of the Fixing Regulation are worded as follows:

(2)For the sake of clarity and transparency, the provisions on public intervention should be made subject to a common structure, whilst maintaining the policy pursued in each sector. For that purpose, it is appropriate to distinguish between reference thresholds laid down in [the Single CMO Regulation] and intervention prices on the other hand, and to define the latter. …

(3)The level of the public intervention price at which buying-in is carried out at a fixed price or under a tendering procedure should be provided for, including the cases for which an adjustment of the public intervention prices may be necessary. …’

Article 1 of that regulation, entitled ‘Scope’, states:

This Regulation provides for measures on fixing prices, levies, aid and quantitative limitations related to the single common organisation of agricultural markets established by [the Single CMO Regulation].

Article 2 of the same regulation, entitled ‘Public intervention prices’, provides:

The level of the public intervention price:

(a)for common wheat, durum wheat, barley, maize, paddy rice and skimmed milk powder shall be equal to the respective reference threshold set out in Article 7 of [the Single CMO Regulation] in the case of buying-in at a fixed price and shall not exceed the respective reference threshold in the case of buying-in by tendering;

(b)for butter shall be equal to 90% of the reference threshold set out in Article 7 of [the Single CMO Regulation] in the case of buying-in at a fixed price and shall not exceed 90% of that reference threshold in the case of buying-in by tendering;

(c)for beef and veal shall not exceed the level referred to in point (c) of Article 13(1) of [the Single CMO Regulation].

The public intervention prices for common wheat, durum wheat, barley, maize and paddy rice referred to in paragraph 1 shall be adjusted by price increases or reductions to those prices based on the main quality criteria for the products.

The Commission shall adopt implementing acts determining the increases or reductions to the public intervention prices of the products referred to in paragraph 2 of this Article under the conditions laid down therein. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 15(2).’

III – Background to the dispute

The common organisation of agricultural markets was codified for the first time in a uniform and comprehensive way by Regulation (EC) No 1234/2007 (10) on the basis of Article 37 of the EC Treaty.

Article 15 of that regulation, entitled ‘Public intervention price’, provides:

(a)the price at which products shall be bought in under public intervention where this is done at a fixed price;

(b)the maximum price at which products eligible for public intervention may be bought-in where this is done by tendering.

The measures on fixing the level of the public intervention price, including the amounts of increases and reductions, shall be taken by the Council in accordance with Article 43(3) TFEU.’

C – The Fixing Regulation

Recitals 2 and 3 of the Fixing Regulation are worded as follows:

(2)For the sake of clarity and transparency, the provisions on public intervention should be made subject to a common structure, whilst maintaining the policy pursued in each sector. For that purpose, it is appropriate to distinguish between reference thresholds laid down in [the Single CMO Regulation] and intervention prices on the other hand, and to define the latter. …

(3)The level of the public intervention price at which buying-in is carried out at a fixed price or under a tendering procedure should be provided for, including the cases for which an adjustment of the public intervention prices may be necessary. …’

Article 1 of that regulation, entitled ‘Scope’, states:

This Regulation provides for measures on fixing prices, levies, aid and quantitative limitations related to the single common organisation of agricultural markets established by [the Single CMO Regulation].

Article 2 of the same regulation, entitled ‘Public intervention prices’, provides:

The level of the public intervention price:

(a)for common wheat, durum wheat, barley, maize, paddy rice and skimmed milk powder shall be equal to the respective reference threshold set out in Article 7 of [the Single CMO Regulation] in the case of buying-in at a fixed price and shall not exceed the respective reference threshold in the case of buying-in by tendering;

(b)for butter shall be equal to 90% of the reference threshold set out in Article 7 of [the Single CMO Regulation] in the case of buying-in at a fixed price and shall not exceed 90% of that reference threshold in the case of buying-in by tendering;

(c)for beef and veal shall not exceed the level referred to in point (c) of Article 13(1) of [the Single CMO Regulation].

The public intervention prices for common wheat, durum wheat, barley, maize and paddy rice referred to in paragraph 1 shall be adjusted by price increases or reductions to those prices based on the main quality criteria for the products.

The Commission shall adopt implementing acts determining the increases or reductions to the public intervention prices of the products referred to in paragraph 2 of this Article under the conditions laid down therein. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 15(2).’

III – Background to the dispute

The common organisation of agricultural markets was codified for the first time in a uniform and comprehensive way by Regulation (EC) No 1234/2007 (10) on the basis of Article 37 of the EC Treaty.

Article 15 of that regulation, entitled ‘Public intervention price’, provides:

(a)the price at which products shall be bought in under public intervention where this is done at a fixed price;

(b)the maximum price at which products eligible for public intervention may be bought-in where this is done by tendering.

The measures on fixing the level of the public intervention price, including the amounts of increases and reductions, shall be taken by the Council in accordance with Article 43(3) TFEU.’

C – The Fixing Regulation

Recitals 2 and 3 of the Fixing Regulation are worded as follows:

(2)For the sake of clarity and transparency, the provisions on public intervention should be made subject to a common structure, whilst maintaining the policy pursued in each sector. For that purpose, it is appropriate to distinguish between reference thresholds laid down in [the Single CMO Regulation] and intervention prices on the other hand, and to define the latter. …

(3)The level of the public intervention price at which buying-in is carried out at a fixed price or under a tendering procedure should be provided for, including the cases for which an adjustment of the public intervention prices may be necessary. …’

Article 1 of that regulation, entitled ‘Scope’, states:

This Regulation provides for measures on fixing prices, levies, aid and quantitative limitations related to the single common organisation of agricultural markets established by [the Single CMO Regulation].

Article 2 of the same regulation, entitled ‘Public intervention prices’, provides:

The level of the public intervention price:

(a)for common wheat, durum wheat, barley, maize, paddy rice and skimmed milk powder shall be equal to the respective reference threshold set out in Article 7 of [the Single CMO Regulation] in the case of buying-in at a fixed price and shall not exceed the respective reference threshold in the case of buying-in by tendering;

(b)for butter shall be equal to 90% of the reference threshold set out in Article 7 of [the Single CMO Regulation] in the case of buying-in at a fixed price and shall not exceed 90% of that reference threshold in the case of buying-in by tendering;

(c)for beef and veal shall not exceed the level referred to in point (c) of Article 13(1) of [the Single CMO Regulation].

The public intervention prices for common wheat, durum wheat, barley, maize and paddy rice referred to in paragraph 1 shall be adjusted by price increases or reductions to those prices based on the main quality criteria for the products.

The Commission shall adopt implementing acts determining the increases or reductions to the public intervention prices of the products referred to in paragraph 2 of this Article under the conditions laid down therein. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 15(2).’

III – Background to the dispute

The common organisation of agricultural markets was codified for the first time in a uniform and comprehensive way by Regulation (EC) No 1234/2007 (10) on the basis of Article 37 of the EC Treaty.

Article 15 of that regulation, entitled ‘Public intervention price’, provides:

(a)the price at which products shall be bought in under public intervention where this is done at a fixed price;

(b)the maximum price at which products eligible for public intervention may be bought-in where this is done by tendering.

The measures on fixing the level of the public intervention price, including the amounts of increases and reductions, shall be taken by the Council in accordance with Article 43(3) TFEU.’

C – The Fixing Regulation

Recitals 2 and 3 of the Fixing Regulation are worded as follows:

(2)For the sake of clarity and transparency, the provisions on public intervention should be made subject to a common structure, whilst maintaining the policy pursued in each sector. For that purpose, it is appropriate to distinguish between reference thresholds laid down in [the Single CMO Regulation] and intervention prices on the other hand, and to define the latter. …

(3)The level of the public intervention price at which buying-in is carried out at a fixed price or under a tendering procedure should be provided for, including the cases for which an adjustment of the public intervention prices may be necessary. …’

Article 1 of that regulation, entitled ‘Scope’, states:

This Regulation provides for measures on fixing prices, levies, aid and quantitative limitations related to the single common organisation of agricultural markets established by [the Single CMO Regulation].

Article 2 of the same regulation, entitled ‘Public intervention prices’, provides:

The level of the public intervention price:

(a)for common wheat, durum wheat, barley, maize, paddy rice and skimmed milk powder shall be equal to the respective reference threshold set out in Article 7 of [the Single CMO Regulation] in the case of buying-in at a fixed price and shall not exceed the respective reference threshold in the case of buying-in by tendering;

(b)for butter shall be equal to 90% of the reference threshold set out in Article 7 of [the Single CMO Regulation] in the case of buying-in at a fixed price and shall not exceed 90% of that reference threshold in the case of buying-in by tendering;

(c)for beef and veal shall not exceed the level referred to in point (c) of Article 13(1) of [the Single CMO Regulation].

The public intervention prices for common wheat, durum wheat, barley, maize and paddy rice referred to in paragraph 1 shall be adjusted by price increases or reductions to those prices based on the main quality criteria for the products.

The Commission shall adopt implementing acts determining the increases or reductions to the public intervention prices of the products referred to in paragraph 2 of this Article under the conditions laid down therein. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 15(2).’

III – Background to the dispute

The common organisation of agricultural markets was codified for the first time in a uniform and comprehensive way by Regulation (EC) No 1234/2007 (10) on the basis of Article 37 of the EC Treaty.

Article 15 of that regulation, entitled ‘Public intervention price’, provides:

(a)the price at which products shall be bought in under public intervention where this is done at a fixed price;

(b)the maximum price at which products eligible for public intervention may be bought-in where this is done by tendering.

The measures on fixing the level of the public intervention price, including the amounts of increases and reductions, shall be taken by the Council in accordance with Article 43(3) TFEU.’

C – The Fixing Regulation

Recitals 2 and 3 of the Fixing Regulation are worded as follows:

(2)For the sake of clarity and transparency, the provisions on public intervention should be made subject to a common structure, whilst maintaining the policy pursued in each sector. For that purpose, it is appropriate to distinguish between reference thresholds laid down in [the Single CMO Regulation] and intervention prices on the other hand, and to define the latter. …

(3)The level of the public intervention price at which buying-in is carried out at a fixed price or under a tendering procedure should be provided for, including the cases for which an adjustment of the public intervention prices may be necessary. …’

Article 1 of that regulation, entitled ‘Scope’, states:

This Regulation provides for measures on fixing prices, levies, aid and quantitative limitations related to the single common organisation of agricultural markets established by [the Single CMO Regulation].

Article 2 of the same regulation, entitled ‘Public intervention prices’, provides:

The level of the public intervention price:

(a)for common wheat, durum wheat, barley, maize, paddy rice and skimmed milk powder shall be equal to the respective reference threshold set out in Article 7 of [the Single CMO Regulation] in the case of buying-in at a fixed price and shall not exceed the respective reference threshold in the case of buying-in by tendering;

(b)for butter shall be equal to 90% of the reference threshold set out in Article 7 of [the Single CMO Regulation] in the case of buying-in at a fixed price and shall not exceed 90% of that reference threshold in the case of buying-in by tendering;

(c)for beef and veal shall not exceed the level referred to in point (c) of Article 13(1) of [the Single CMO Regulation].

The public intervention prices for common wheat, durum wheat, barley, maize and paddy rice referred to in paragraph 1 shall be adjusted by price increases or reductions to those prices based on the main quality criteria for the products.

The Commission shall adopt implementing acts determining the increases or reductions to the public intervention prices of the products referred to in paragraph 2 of this Article under the conditions laid down therein. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 15(2).’

III – Background to the dispute

The common organisation of agricultural markets was codified for the first time in a uniform and comprehensive way by Regulation (EC) No 1234/2007 (10) on the basis of Article 37 of the EC Treaty.

Article 15 of that regulation, entitled ‘Public intervention price’, provides:

(a)the price at which products shall be bought in under public intervention where this is done at a fixed price;

(b)the maximum price at which products eligible for public intervention may be bought-in where this is done by tendering.

The measures on fixing the level of the public intervention price, including the amounts of increases and reductions, shall be taken by the Council in accordance with Article 43(3) TFEU.’

C – The Fixing Regulation

Recitals 2 and 3 of the Fixing Regulation are worded as follows:

(2)For the sake of clarity and transparency, the provisions on public intervention should be made subject to a common structure, whilst maintaining the policy pursued in each sector. For that purpose, it is appropriate to distinguish between reference thresholds laid down in [the Single CMO Regulation] and intervention prices on the other hand, and to define the latter. …

(3)The level of the public intervention price at which buying-in is carried out at a fixed price or under a tendering procedure should be provided for, including the cases for which an adjustment of the public intervention prices may be necessary. …’

Article 1 of that regulation, entitled ‘Scope’, states:

This Regulation provides for measures on fixing prices, levies, aid and quantitative limitations related to the single common organisation of agricultural markets established by [the Single CMO Regulation].

Article 2 of the same regulation, entitled ‘Public intervention prices’, provides:

The level of the public intervention price:

(a)for common wheat, durum wheat, barley, maize, paddy rice and skimmed milk powder shall be equal to the respective reference threshold set out in Article 7 of [the Single CMO Regulation] in the case of buying-in at a fixed price and shall not exceed the respective reference threshold in the case of buying-in by tendering;

(b)for butter shall be equal to 90% of the reference threshold set out in Article 7 of [the Single CMO Regulation] in the case of buying-in at a fixed price and shall not exceed 90% of that reference threshold in the case of buying-in by tendering;

(c)for beef and veal shall not exceed the level referred to in point (c) of Article 13(1) of [the Single CMO Regulation].

The public intervention prices for common wheat, durum wheat, barley, maize and paddy rice referred to in paragraph 1 shall be adjusted by price increases or reductions to those prices based on the main quality criteria for the products.

The Commission shall adopt implementing acts determining the increases or reductions to the public intervention prices of the products referred to in paragraph 2 of this Article under the conditions laid down therein. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 15(2).’

After the entry into force of the FEU Treaty, the Commission submitted, on 12 October 2011, five proposals for regulations, of the Parliament and of the Council or of the Council alone, intended to effect a fundamental reform of the CAP. Those proposals included a Single CMO Regulation of the Parliament and of the Council. That ‘reform proposal’ was based on Article 43(2) TFEU and contained, in Article 7, a provision concerning the fixing of ‘reference prices’.

On the same day, the Commission submitted a proposal for a Council regulation determining measures on fixing certain aids and refunds related to the common organisation of the markets in agricultural products, which was based on Article 43(3) TFEU.

On 4 July 2012, the Parliament approved a report of its Committee on Agriculture and Rural Development which, in the Explanatory Memorandum, stated that the Commission’s proposal for the Single CMO Regulation undermined the powers conferred on the legislature by Article 43(2) TFEU and, for that reason, proposed ‘that all the provisions referring to Article 43(3) TFEU be removed’.

On 13 September 2012, the Council Presidency sent a working document to the Special Committee on Agriculture stating that, in its view, only the Council was to fix, inter alia, the reference prices of the agricultural products which could be the subject of public interventions, in accordance with Article 43(3) TFEU. According to the Council’s Summary Record, (11) that position was adopted by a ‘very large majority’ of the Member States at the next meeting of the Special Committee on Agriculture on 17 September 2012.

Subsequently, the General Secretariat of the Council submitted, on 12 October 2012, a draft fixing regulation including, as well as intervention prices, ‘reference prices’. That draft was adopted by the Council’s Special Committee on Agriculture on 5 November 2012.

On 13 December 2012 and 12 March 2013, the Council Presidency forwarded consolidated versions of the draft Single CMO Regulation. The first sentence of Article 7 of those two drafts referred, in its title, to reference prices and then stated that ‘measures on fixing reference prices shall be adopted by the Council pursuant to Article 43(3) [TFEU]’.

On 13 March 2013, the Parliament adopted an amendment reintroducing all of the reference prices in Article 7 of the draft Single CMO Regulation.

Between 11 April and 26 June 2013, the inter-institutional disagreement gave rise to more than 10 informal trilogues on the future Single CMO Regulation. Towards the end of the period of those trilogues, the General Secretariat of the Council sent, on 4 June 2013, a report from which it may be inferred that the fixing of reference prices was still an area of contention. During all the later trilogue meetings, the Parliament indicated that it would not approve the CAP reform package if there were no rules relating to reference prices in the Single CMO Regulation.

On 21 June 2013, the Council Presidency submitted a working document in order to prepare for the meeting of 24 and 25 June 2013, which showed the stage reached by the trilogues. That document included ‘Reference prices’.

On 25 June 2013, the Council Presidency forwarded an addendum to that working document which contained the remaining areas of contention. Under the title ‘Positions on Article 43(3) related provisions’ concerning the draft Single CMO Regulation, it proposed as a ‘landing zone’, the use of the term ‘reference threshold’.

In the night of 25 to 26 June 2013 and after the sitting had been suspended several times, a qualified majority within the Council finally acceded to the Parliament’s request to include reference prices, henceforth named ‘reference thresholds’, in Article 7 of that regulation. However, the German and United Kingdom Governments were not in favour of that amendment to the general approach and abstained.

On 25 September 2013, the Council Presidency forwarded a working document containing the whole of the consolidated version of the draft Single CMO Regulation. In that version, the whole draft reflected the agreement reached in the internal trilogies. Article 7 of the consolidated version of the draft Single CMO Regulation was entitled ‘Reference threshold’ and no longer ‘Reference prices’. The content of the legislation was otherwise unchanged.

On 13 December 2013, the General Secretariat of the Council sent a note to the delegations in which it was stated that the ‘outcome of the negotiations concerning recourse to Article 43(3) TFEU forms part of the package deal on the current reform of the CAP and in no way prejudges the position of each institution with regard to the scope of that provision or any subsequent development on the matter, inter alia any new case-law of Court of Justice of the European Union’.

Under the heading ‘Declaration of the Council on Article 43(3) [TFEU]’, it was stated, as regards the outcome of the negotiations on the CAP during the trilogue of June 2013, that ‘the Council confirms that, in the exceptional circumstances of that trilogue, the sole aim of its decision that the Single CMO Regulation should relate to questions arising under Article 43(3) TFEU was to reach a compromise’.

The German Government declared in that respect that it could not, for various reasons, support some of the proposals contained in the draft Single CMO Regulation. In its view, under Article 43(3) TFEU it was for the Council alone, on a proposal from the Commission, to adopt inter alia the ‘measures on fixing prices’. The German Government considered that it was not acceptable to depart from that rule that power should be divided between the EU institutions and announced that it therefore rejected that proposal for a regulation.

Consequently, at the time of the vote on the adoption of the Single CMO Regulation, which took place on 16 December 2013, the German Government voted against its adoption and the United Kingdom Government abstained. At the time of the vote relating to the adoption of the Fixing Regulation, which took place on the same day, the German and United Kingdom Governments abstained. On that occasion, the Council ‘confirmed’ in the minutes of its session that, ‘in the exceptional circumstances of that trilogue, the sole aim of its decision that the Single CMO Regulation should relate to questions arising under Article 43(3) TFEU was to reach a compromise’ and that ‘that decision will not affect the position which the Council will continue to adopt in the future in order to safeguard the powers which have been conferred on it under the Treaty of Lisbon’.

IV – Procedure before the Court and forms of order sought by the parties

The German Government claims that the Court should annul the two contested provisions while maintaining their effects until the entry into force of legislation adopted on the correct legal basis and order the Parliament and the Council to pay the costs.

In its defence, the Parliament contends that the Court should declare the action inadmissible, in the alternative dismiss the action, and order the Federal Republic of Germany to pay the costs.

The Council, for its part, relies on the wisdom of the Court to rule on the principal claims of the German Government and, in addition, requests that the Court maintain, if it upholds those claims, the effects of the contested provisions until the entry into force of the provisions adopted on the correct legal basis and order each party to bear its own costs.

The Czech and United Kingdom Governments have intervened in support of the German Government, while the Commission has intervened in support of the Parliament.

All the aforementioned parties attended the hearing which was held on 3 February 2016.

V – Analysis

A – Admissibility

The Parliament and the Commission consider that the application should be dismissed as inadmissible on the ground that Article 7 of the Single CMO Regulation cannot be severed from the remainder of the measure. According to the Parliament, that article is entirely in line with the objectives of that regulation and serves to achieve its objectives. The content of the Single CMO Regulation would be altered if Article 7 thereof were to be annulled. Furthermore, that article has several functions in that regulation and those functions are linked to other provisions of the regulation.

The German Government and the intervening governments and also the Council point out that neither the Parliament nor the Commission has shown how and to what extent the annulment of Article 7 of the Single CMO Regulation could alter the substance of that regulation, which has more than 200 provisions covering all aspects and sectors of the CAP.

Partial annulment of an act of EU law is possible only if the elements which it is sought to have annulled can be severed from the remainder of the measure. That requirement of severability is not satisfied where the partial annulment of a measure would have the effect of altering its substance. (12)

Neither the overall approach of the Single CMO Regulation, which covers a rather diverse range of areas, nor the content of Article 7 of that regulation or the relationship between reference thresholds and intervention prices (13) support the inseverability of the contested provision. I can see no significant reason for concluding that the content of the Single CMO Regulation would be altered if the contested provision were to be annulled.

I consider, therefore, that this action is admissible.

B – Substance

(a) The main arguments of the parties

(i) The German Government

The German Government claims that the Parliament and the Council based Article 7 of the Single CMO Regulation on an incorrect legal basis. Since this was a question, in the case of the ‘reference prices’, finally renamed ‘reference thresholds’, of a ‘measure on fixing prices’, Article 7 of the Single CMO Regulation should have been based on Article 43(3) TFEU.

In support of its application for annulment, the German Government refers to the previous scheme of the common organisation of agricultural markets, that resulting from Regulation No 1234/2007, recital 16 of which defined ‘reference price’ as a price resulting from a policy decision of the Council. In that connection, that government notes that Regulation No 1234/2007 expressly confers on the Council the power to alter the reference prices. Moreover, the former common organisation of the agricultural market and the background to the Single CMO Regulation (and in particular to Article 7 thereof) show that the system of measures on fixing the prices of agricultural products was not altered as to the substance and that the reference prices or thresholds are still the ‘safety net’ of the CAP. On the other hand, still in the view of the German Government, the inclusion of Article 7 in the Single CMO Regulation, and the replacement of the term ‘reference price’ by ‘reference thresholds’, is the result of a political compromise made solely in order to prevent the collapse of the overall CAP reform package.

Referring to the wording of Article 43(3) TFEU, the German Government points out that, according to that provision, which draws no distinction between prices in the strict sense or in the broad sense, but speaks of ‘measures on fixing prices’ in general, all the essential elements of fixing prices fall within the competence of the Council. Since Article 7 of the Single CMO Regulation fixes a specific monetary unit for certain agricultural products and since, subsequently, Article 2 of the Fixing Regulation defines the intervention price as a certain percentage of the ‘reference threshold’, the intervention prices and the reference prices are closely linked to market prices and Article 7 of the Single CMO Regulation is an essential element of the fixing of prices.

Still having regard to the objectives of Article 43(3) TFEU, the German Government maintains that Article 7(2) of the Single CMO Regulation provides that the reference thresholds shall be updated in the light of developments in production and markets and charges the Commission with keeping under review the reference price and particularly developments in production and market trends. If the competent legislative authority is therefore required to react quickly, flexibly and effectively to market disturbances, that reaction would be much quicker if the Council, which, unlike under the ‘pre-Lisbon’ scheme, no longer even has to consult the Parliament, were competent.

As regards the link between paragraphs 2 and 3 of Article 43 TFEU, the German Government maintains that Article 43(3) TFEU excludes paragraph 2 from its scope of application or, at least, that those two paragraphs are mutually exclusive. In any event, according to the same Government, there is no hierarchy between those two rules which constitute two different, autonomous legal bases.

Moreover, the German Government considers that Article 43(3) TFEU would be completely meaningless and would therefore lose its effectiveness if Article 43(2) TFEU were held to be the legal basis in this case. Furthermore, the principle of institutional balance between EU bodies requires each of the institutions to exercise its powers with due regard for the powers of the other institutions.

Referring to the Court’s case-law concerning the choice of legal basis for the adoption of EU legal measures, the German Government considers that, in the present case, all the objective elements which may be subject to judicial review indicate that Article 43(3) TFEU constitutes the only relevant legal basis. Recourse to a dual legal basis is also precluded in this case since the provisions laid down respectively in paragraphs 2 and 3 of Article 43 TFEU may be implemented independently of each other.

As regards the Parliament’s argument that it is apparent from Article 40(2) TFEU that, in exercising its power under Article 43(2) TFEU, the Union legislature is free to adopt all the measures stated in paragraph 2 of Article 40 TFEU, including ‘regulation of prices’, the German Government considers that that argument takes no account of the existence of Article 43(3) TFEU. The German Government states that that approach would render Article 43(3) meaningless.

(ii) The Council and the intervening governments

The Council and the two intervening governments support the arguments of the German Government. In addition, the Council claims, referring to Article 294(1) TFEU, that the treaties provide no support for the hypothesis that the ordinary legislative procedure takes priority over provisions providing for the adoption of non-legislative measures. The intervening governments add that, in their view, Article 43(3) TFEU constitutes a lex specialis as opposed to the broader measures to which Article 43(2) TFEU applies.

(iii) The Parliament and the Commission

The Parliament, supported by the Commission, agrees with the German Government that paragraphs 2 and 3 of Article 43 TFEU are two separate legal bases, even though there is, as the Parliament points out, a strong contextual link between them. Nevertheless, those two institutions maintain that Article 43(3) TFEU only confers on the Council the very specific executive power to fix the exact final amounts of the prices. Any other measure beyond that activity falls within the scope of Article 43(2) TFEU, which is apparent from the reference in the latter provision to Article 40 TFEU and from the wording of Article 40(1) and, a fortiori, Article 40(2) TFEU, which expressly mentions regulation of prices among the main elements likely to constitute a common organisation of the market.

The Parliament concludes that the ‘measures’ which Article 43(3) TFEU authorises the Council to adopt may be described as ‘sui generis implementing measures’. It considers that the non-legislative procedure provided for in Article 43(3) TFEU must be conceived as an exception to the general rule laid down in Article 43(2) TFEU. The Commission, on the other hand, sees a hierarchical relationship between paragraphs 2 and 3 of Article 43 TFEU. It adds that the European legislature has considerable discretion with regard to what it leaves to the executive and that, in the present case, no manifest error was committed in the exercise of that discretion of the legislature, even though Article 43(3) TFEU provides for an express delegation of powers.

As regards the objective and content of Article 7 of the Single CMO Regulation, the Parliament claims that that objective is identical to — and therefore inseparable from — that of the Single CMO Regulation, namely to ‘[establish] a common organisation of the markets in agricultural products’. According to the Parliament and the Commission, Article 7 of the Single CMO Regulation serves as a basic provision for the scheme of intervention in the common organisation of the market. The reference thresholds constitute, as the ‘safety net of the CAP’, the trigger for the intervention mechanism and for other types of market support measures. In that connection, the Commission states that the reference thresholds are, as well as in the present case, taken into consideration repeatedly in the Single CMO and Fixing Regulations, for example for the grant of aid for private storage and for the fixing of the production refund in the sugar sector.

As regards the designation of the ‘reference thresholds’, which, both in Regulation No 1234/2007 and in the negotiations on the CAP reform, were called ‘reference prices’, the Parliament observes that the title of Article 7 of the Single CMO Regulation was altered in response to a request from the Council. For the Commission, the former designation of ‘reference thresholds’ was misleading because the ‘reference prices’ were already threshold values which guided the fixing of actual prices and only had a guiding role.

In respect of the reference made by the German Government to the former scheme of the common organisation of the markets, the Parliament and the Commission consider that that government ignores the fact that Regulation No 1234/2007 had been adopted on another legal basis, namely, Article 37 EC.

As for the German Government’s argument that the effectiveness of Article 43(3) TFEU would be undermined if Article 7 of the regulation could be based on Article 43(2) TFEU, the Parliament considers that the adoption of the Fixing Regulation itself is sufficient to demonstrate the effectiveness of Article 43(3) TFEU.

Neither the Parliament nor the Commission see the need for a quick adjustment to the reference thresholds in the light of market developments which, according to the German Government, require the intervention of the Council. According to the Parliament, even though Article 43(3) TFEU seeks to ensure that prices are fixed quickly and although that task was, in the history of the CAP, an important requirement, it has, already in the past, gradually become less important and in practice, disappeared.

In the alternative, the Parliament maintains that, although Article 7 of the Single CMO Regulation pursued objectives referred to in paragraphs 2 and 3 of Article 43 TFEU, the contested provision is still valid owing to the preponderance of the objectives referred to in Article 43(2) TFEU.

(b) Assessment

(i) Reminder of the Court’s general case-law concerning legal basis

It is apparent from settled case-law that the choice of the legal basis for an EU measure must rest on objective factors amenable to judicial review, which include in particular the purpose or, in other words, the aim and the content of the measure. (14) The legislative context may also be considered. (15) It is not procedures that define the legal basis of a measure but the legal basis of a measure that determines the procedures to be followed in adopting that measure. (16) If examination of such a measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of these is identifiable as the main or predominant purpose or component whereas the other is merely incidental, the act must be based on a single legal basis, namely that required by the main or predominant purpose or component. (17)

It is only in the exceptional case of a measure that simultaneously pursues a number of objectives, or that has several components, which are inseparably linked without one being incidental to the other, that the Court has held that, where various provisions of the Treaty are therefore applicable, such a measure will have to be founded on the various corresponding legal bases. (18) However, the Court has already held that recourse to a dual legal basis is not possible where the procedures laid down for those legal bases are incompatible with each other. (19)

(ii) Reminder of the Court’s case-law concerning legal basis: Article 43 TFEU

The Court has already had occasion to rule on the respective scopes of paragraphs 2 and 3 of Article 43 TFEU in two cases concerning the common fisheries policy.

In the first case, which gave rise to the judgment of 26 November 2014 in *Parliament and Commission* v *Council* (‘the *Venezuela* judgment’), (20) the issue was whether or not the Council, by adopting on the basis of Article 43(3) TFEU a decision relating to the granting of fishing opportunities off the coast of French Guiana to Venezuelan vessels, (21) had chosen the appropriate legal basis. The Court had replied in the negative and had consequently annulled the Council’s decision for lack of competence. According to the Court, Article 43(2) TFEU, and therefore an adoption of the measure at issue according to the ordinary legislative procedure, constituted the appropriate legal basis.

More specifically, the Court held that ‘the adoption of the provisions referred to in Article 43(2) TFEU necessarily presupposes an assessment of whether they are “necessary” for the pursuit of the objectives of the common policies governed by the FEU Treaty, with the result that it entails a policy decision that must be reserved to the EU legislature. By contrast, the adoption of measures … in accordance with Article 43(3) TFEU, does not require such an assessment since such measures are of a primarily technical nature and are intended to be taken in order to implement provisions adopted on the basis of Article 43(2)’. (22)

In the *Venezuela* judgment, (23) the Court nevertheless refrained from further defining what it understood by ‘policy decision’ and by measures of a ‘primarily technical nature.’ I wonder, in that context, whether those two concepts are mutually exclusive. For example, how should a measure which appears to be practical, but which has a significant budgetary impact be assessed? Is it not also a measure involving a ‘policy decision’?

In the second case, which gave rise to the judgment in *Parliament and Commission* v *Council* (‘the *cod* judgment’), (24) the Court annulled a Council regulation establishing a long-term plan for cod stocks (25) because it considered that the Council had, once more, exceeded the powers conferred on it by Article 43(3) TFEU.

In that judgment, the Court reiterated that Article 43(3) TFEU may cover measures which are not limited to the fixing and allocation of fishing opportunities, provided that those measures do not entail a political choice that is reserved to the Union legislature because they are ‘necessary’ for the pursuit of the objectives of the common fisheries policy. However, instead of repeating the formula that ‘the adoption of measures on the fixing and allocation of fishing opportunities, in accordance with Article 43(3) TFEU, does not require such an assessment since such measures are of a primarily technical nature and are intended to be taken in order to implement provisions adopted on the basis of Article 43(2) TFEU’, (26) it stated that those measures should not be confused with the measures provided for in Article 291(2) TFEU and that, therefore, that provision gives no indication of the scope of Article 43(3) TFEU. (27)

I think it is difficult to confuse the measures adopted on the basis Article 43(3) TFEU with the ‘implementing powers’ within the meaning of Article 291 TFEU. (28) Nevertheless, I think that explanation from the Court is necessary in order to eliminate any confusion between those two concepts. In the same regard, I propose from now on to avoid any reference to implementing measures in connection with Article 43(3) TFEU.

Moreover, in the *cod* judgment, (29) the Court stated that ‘paragraphs 2 and 3 of Article 43 TFEU pursue different aims and each has a specific field of application, which means that they may be used separately as a basis for adopting particular measures (30)

under the [common fisheries policy], provided that the Council, when it adopts measures on the basis of Article 43(3) TFEU, acts within the limits of its powers and, where relevant, within the legal framework already established under Article 43(2) TFEU.’ (31) It based that finding on the historical context, stating that Article 37 EC had been replaced by Article 43(2) and (3) TFEU and that, therefore, any parallel drawn between Article 37 EC and Article 43 TFEU must be assessed in the light of paragraphs 2 and 3 of the latter provision. (32)

It is therefore apparent from the judgments given until now by the Court that, although the measures adopted on the basis of Article 43(3) TFEU are not legislative acts, they are also not merely implementing measures as provided for in Article 291(2) TFEU. Most academic writers take the view that this is an autonomous and <span class="italic">sui generis</span> power, (33) as did Advocate General Kokott in her Opinion in <span class="italic">Inuit Tapiriit Kanatami and Others</span> v <span class="italic">Parliament and Council</span>. (34)

Furthermore, the fact that the procedure laid down in Article 43(3) TFEU is not classified as ‘ordinary legislative procedure’ has no effect on its link to that procedure. The procedures under paragraphs 2 and 3 of Article 43 TFEU each have a separate legal basis in the treaty. In the light of the clear wording of Article 294(1) TFEU, under which the ordinary legislative procedure is applicable where reference is made to it in the treaties, I find it difficult to imagine that — from a legal point of view — it is possible to speak of a default procedure which to a certain extent takes precedence over the other procedures. (35)

On the other hand, the aforementioned case-law does not make it possible to reply to the argument that the legal basis of Article 43(3) TFEU may be used only once the measures under Article 43(2) TFEU have been taken. (36) The Court did not say that <span class="italic">any</span> autonomous decision involving policy <span class="italic">considerations</span> now necessarily falls under Article 43(2) TFEU. (37)

By my understanding of the case-law, Article 43 TFEU contains two mutually exclusive legal bases.

It is in the light of these considerations that it is necessary to examine the content and objectives of Article 7 of the Single CMO Regulation and to determine whether that provision could legitimately be adopted on the legal basis of Article 43(2) TFEU.

(iii) Do the reference thresholds under Article 7 of the Single CMO Regulation fall within the scope of Article 43(3) TFEU?

Article 7 of the Single CMO Regulation, contained in the ‘Introductory provisions’ of that regulation, is entitled ‘Reference thresholds’. Under paragraph 1 thereof, reference thresholds are fixed in EUR per tonne or EUR per 100 kilogrammes for a whole range of agricultural products. Under paragraph 2, those thresholds are ‘kept under review by the Commission, taking account of objective criteria, notably developments in production, costs of production (particularly inputs), and market trends’. The same paragraph stipulates that ‘when necessary, [those thresholds] shall be updated in accordance with the ordinary legislative procedure in the light of developments in production and markets’.

Nevertheless, the Single CMO Regulation provides no abstract or even merely ‘policy’ definition (38) of ‘reference thresholds’.

Article 15(1) of the Single CMO Regulation states that the ‘public intervention price’ is the price at which products shall be bought in under public intervention where this is done at a fixed price [subparagraph (a)] or the maximum price at which products eligible for public intervention may be bought in where this is done by tendering [subparagraph (b)]. Article 15(2) of the Single CMO Regulation states that ‘the measures on fixing the <span class="italic">level</span> (39) of the public intervention price, including the amounts of increases and reductions, shall be taken by the Council in accordance with Article 43(3) TFEU’. Recital 12 of the Single CMO Regulation stipulates that ‘it is appropriate to distinguish between reference thresholds and intervention prices and to define the latter’.

Article 2 of the Fixing Regulation fixes, in its turn, a percentage in relation to each product allocated a reference threshold in Article 7 of the Single CMO Regulation. That percentage of the reference threshold constitutes the intervention price.

The Single CMO and Fixing Regulations thus maintain the structure and organisation of Regulation No 1234/2007 as regards the fixing of an intervention price in two successive stages.

Article 43(3) TFEU refers to ‘measures on fixing prices’. (40)

In everyday language, ‘price’ means the exchange ratio between a product or service and money. (41) According to that definition, the intervention prices established by the Fixing Regulation are undoubtedly prices. Here, the exact amount at which products are bought is the direct result of applying intervention prices to reference thresholds.

As regards the ‘reference thresholds’, it is irrelevant whether or not they are prices (42) from the moment they constitute ‘measures on fixing prices’. The question to be asked is therefore whether the ‘reference thresholds’ constitute ‘measures on fixing prices’.

A reference to the predecessor of the Single CMO Regulation, Regulation No 1234/2007, helps us to elucidate the nature of reference thresholds, formerly reference prices. First of all, recital 11 of Regulation No 1234/2007 already stated, as recital 12 of the Single CMO Regulation does now, that reference prices and intervention prices coexist. Then, recitals 16 and 18 of Regulation No 1234/2007, which no longer appear in the Single CMO Regulation, described in an abstract manner the relationship between those two terms and left no room for doubt that reference prices were very similar to prices in the proper sense of that term. In the light of the background to the dispute and the <span class="italic">Venezuela</span> (43) and <span class="italic">cod</span> (44) judgments, that conception should be analysed, in my view, as meaning that the three aforementioned recitals of Regulation No 1234/2007 contained policy considerations relating to the pursuit of the objectives of the CAP, whereas Articles 8 and 18 of that regulation, containing reference and intervention prices, served to fix prices and therefore constituted a measure on fixing prices. Moreover, in the previous scheme, it was Article 2(2)(c) which defined, and Article 18 of Regulation No 1234/2007 which fixed the intervention prices.

By contrast, it is now Article 15 of the Single CMO Regulation which defines the intervention prices while those prices are fixed by the Fixing Regulation.

Although Article 7 of the Single CMO Regulation does not fix the (final) intervention prices, it determines, for a large variety of agricultural products, amounts calculated to the last cent, which will serve, in the scheme of the Single CMO Regulation, to guide the Council in fixing a subsequent intervention price.

86.

The position of Article 7 of the Single CMO Regulation among the ‘Introductory provisions’ does not seem to me to corroborate the argument put forward by the Parliament and the Commission that the reference thresholds constitute a fundamental element in the common organisation of agricultural markets referred to in Article 43(2) TFEU. According to the Venezuela and cod judgments, it is the regulations and principles governing the common organisation of the markets which should be contained in the Single CMO Regulation. However, the Single CMO Regulation does not describe the reference thresholds as an ‘essential element’. (45)

87.

In my view, it is rather an essential element for fixing an intervention price, which means that the Single CMO Regulation is not the right place for that provision.

88.

As for the Commission’s argument that the taking into consideration of the reference thresholds in several other provisions of the Single CMO and Fixing Regulations beyond intervention prices supports the political importance and need for those thresholds within the meaning of Article 43(2) TFEU, it need only be stated that the Union legislature, by referring in another context to a certain concept, in that case reference thresholds, cannot deprive the Council of its powers under Article 43(3) TFEU.

89.

There is therefore a significant link between the Single CMO Regulation and the Fixing Regulation with regard to intervention prices. As I have explained above, Article 15 of the Single CMO Regulation provides a definition of intervention prices, a definition which has been included for a long time in the provisions of the CAP. The intervention prices themselves are determined by the Fixing Regulation.

90.

On the other hand, the recitals of the Single CMO Regulation do not seem to me to establish any need for reference thresholds, and even less so in the specific form given to them by Article 7 of that regulation, as policy directions for the common organisation of the market. The recitals of the Single CMO Regulation merely state, in that connection, in recital 12, that ‘it is appropriate to distinguish between reference thresholds and intervention prices and to define the latter’, without confirming the presumed importance, within the meaning of Article 43(2) TFEU, of the adoption of those thresholds by the European legislature.

91.

To sum up, the inclusion of the reference thresholds in the Single CMO Regulation does not seem to be necessary for the purposes of pursuing the objectives of the CAP. On the contrary, it is a matter falling within the scope of the Council’s powers in connection with its power to determine measures on fixing prices.

92.

All the foregoing considerations lead me to describe the fixing of the reference thresholds in Article 7 of the Single CMO Regulation as a ‘measure on fixing prices’ within the meaning of Article 43(3) TFEU.

93.

It should also be pointed out that it is not for the legislature, that is to say the Parliament and Council, to define the scope of Article 43(3) TFEU by legislating or not within the framework of Article 43(2) TFEU. If that were the case, it might, as in the present case, have the effect of depriving Article 43(3) TFEU of its effectiveness. It is the Member States, as masters of the treaties, which define the scope of that article, and not the political institutions. It is also necessary here to reject the Commission’s argument that that is part of the political process of negotiation. Even though this case appears to be a simple inter-institutional dispute, (46) that procedure is rightly framed by the competences provided for by the treaties. A different interpretation would give the political institutions the power to exceed the framework established by the treaties.

94.

Finally, since the two legal bases in Article 43 TFEU differ from each other in that they are mutually exclusive, the aforementioned case-law of the Court concerning the choice of legal basis for a Union measure and the possible recourse to a dual legal basis (47) is irrelevant for the purpose of the present case. However, it is apparent from that case-law that recourse to a dual legal basis is not possible where the procedures laid down for each legal basis are incompatible with one another. (48)

(iv) Conclusion

95.

Article 7 of the Single CMO Regulation was adopted on an incorrect legal basis. The German Government’s application should be allowed and that provision should be annulled.

(a) Arguments of the parties

96.

As regards the Article 2 of the Fixing Regulation, the German Government claims that that provision ought, if Article 7 of the Single CMO Regulation is annulled, also be annulled for reasons of clarity and legal certainty, since, without the latter provision, Article 2 of the Fixing Regulation can neither be applied nor produce effects. Moreover, that article helps, by its reference to Article 7 of the Single CMO Regulation, to give the false impression that this was adopted on the correct legal basis.

(b) Assessment

97.

As is already apparent from the wording of Article 2 of the Fixing Regulation, that provision contains no specific amount on which the public intervention in the agricultural market may be based. On the other hand, that article links public intervention, for each product concerned, to a specific relationship between the market price and the amount which Article 7 of the Single CMO Regulation provides for that product. The annulment of Article 7 of the Single CMO Regulation, which I propose to the Court, would therefore negate Article 2 of the Fixing Regulation entirely.

98.

In those circumstances, for reasons of clarity and legal certainty, Article 2 of the Fixing Regulation — which could no longer be applied following an annulment of Article 7 of the Single CMO Regulation — should also be annulled.

(a) Arguments of the parties

99.

The German Government requests the Court, in order to safeguard higher interests, for reasons of protection of the legitimate expectations of farmers and, in general, for reasons of legal certainty, to declare, in accordance with the second paragraph of Article 264 TFEU, that the effects of the contested provisions will be maintained until the entry into force of the new provisions adopted on the correct legal basis. The Commission supports those arguments in the alternative.

(b) Assessment

100.

The Court has considered at length, in the Venezuela (49) and cod (50) judgments, the conditions for maintaining, under the second paragraph of Article 264 TFEU, certain effects of an annulled provision. According to that case-law, on grounds of legal certainty, the effects of such an act may be maintained, in particular where the immediate effects of its annulment would give rise to serious negative consequences for the persons 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. Those grounds include, in particular, the fact that an incorrect legal basis was used for the contested act. (51)

101.

The annulment with immediate effect of the two contested provisions would undermine the whole public intervention system which, undeniably, has always been an essential element of the CAP. I think it is neither necessary nor justified to cause disruption to the intervention system itself which, for several months at least, would cause serious uncertainty for European farmers.

102.

If, furthermore, neither the applicant, nor the defendants, nor the Commission or the intervening Governments have disputed the legality of the two contested provisions owing to their aims or content, I see no impediment to maintaining the effects of those provisions until the entry into force, within a reasonable time, of new legislation adopted on the correct legal basis.

103.

VI – Costs

Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party must be ordered to pay the costs if they have been applied for in the other party’s pleadings. In this case, the German Government has applied for costs and the Parliament and the Council have been unsuccessful.

104.Under Article 140(1) of the Rules of Procedure, Member States and institutions which intervene in the proceedings are to bear their own costs. Accordingly, the Czech Republic, the United Kingdom of Great Britain and Northern Ireland and the Commission should bear their own costs.

VII – Conclusion

105.In the light of the foregoing considerations, I propose that the Court:

—annul Article 7 of Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007;

—annul Article 2 of Council Regulation (EU) No 1370/2013 of 16 December 2013 determining measures on fixing certain aids and refunds related to the common organisation of the markets in agricultural products;

—maintain, pursuant to Article 264(2) TFEU, the effects of Article 7 of Regulation No 1308/2013 and Article 2 of Regulation No 1370/2013 until the entry into force, within a reasonable time, of new legislation adopted on the correct legal basis;

—order the European Parliament and the Council of the European Union to pay the costs, and

—declare that the Czech Republic, the United Kingdom of Great Britain and Northern Ireland and the European Commission shall bear their own costs.

(1) Original language: French.

(2) Comic strip enthusiasts will have recognised a paraphrase of the text appearing on the first page of each Asterix adventure. I shall be careful not to take the comparison further in relation to this case.

(3) Under the third subparagraph of Article 37(2) EC: ‘The Council shall, on a proposal from the Commission and after consulting the European Parliament, acting by a qualified majority, make regulations, issue directives, or take decisions, without prejudice to any recommendations it may also make.’

(4) See judgments of 26 November 2014, Parliament and Commission v Council (C‑103/12 and C‑165/12), and of 1 December 2015, Parliament and Commission v Council (C‑124/13 and C‑125/13).

(5) It should be pointed out that, even though the Council is appearing before the Court as defendant, it puts forward in essence similar arguments to those of the applicant.

(6) Regulation of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007.

(7) Council Regulation of 16 December 2013 determining measures on fixing certain aids and refunds related to the common organisation of the markets in agricultural products.

(8) See also, to that effect, Opinion of Advocate General Wahl in Parliament and Commission v Council (C‑124/13 and C‑125/13), point 39.

(9) See judgment of 19 July 2012, Parliament v Council (C‑130/10), paragraph 80.

(10) Council Regulation of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products.

(11) See Council, Summary Record of 28 September 2012 on the 1438th meeting of the Special Committee on Agriculture of 17 September 2012, 13828/12, p. 5, No 1 (Annex A2 to the application).

(12) See judgment in Commission v Parliament and Council (EU:C:2014:170), paragraph 16 and the case-law cited.

(13) See the analysis of the substance in this Opinion.

(14) See, inter alia, judgments of 26 March 1987, Commission v Council (45/86, EU:C:1987:163, paragraph 11); of 23 February 1988, United Kingdom v Council (68/86).

EU:C:1988:85

paragraph 24

of 11 June 1991, Commission v Council (C‑300/89, EU:C:1991:244, paragraph 10); of 6 November 2008, Parliament v Council (C‑155/07, EU:C:2008:605, paragraph 34); and of 26 November 2014, Parliament and Commission v Council (C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 51).

(15) See judgment of 8 September 2009, Commission v Parliament and Council (C‑411/06, EU:C:2009:518, paragraphs 64 and 65).

(16) See judgment of 19 July 2012, Parliament v Council (C‑130/10, EU:C:2012:472, paragraph 80).

(17) See, inter alia, judgments of 30 January 2001, Spain v Council (C‑36/98, EU:C:2001:64, paragraph 59), and of 6 November 2008, Parliament v Council (C‑155/07, EU:C:2008:605, paragraph 35).

(18) See, to that effect, judgments of 11 September 2003, Commission v Council (C‑211/01, EU:C:2003:452, paragraph 40), and of 6 November 2008, Parliament v Council (C‑155/07, EU:C:2008:605, paragraph 36).

(19) See judgments of 11 June 1991, Commission v Council (C‑300/89, EU:C:1991:244, paragraphs 17 to 21), and of 25 February 1999, Parliament v Council (C‑164/97 and C‑165/97, EU:C:1999:99, paragraph 14).

(20) C‑103/12 and C‑165/12, EU:C:2014:2400.

(21) That case concerned Council Decision 2012/19/EU of 16 December 2011 on the approval, on behalf of the European Union, of the Declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of the Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana (OJ 2012 L 6, p. 8).

(22) See judgment of 26 November 2014, Venezuela (C‑103/12 and C‑165/12, EU:C:2014:2400).

paragraph 50.

Judgment of 26 November 2014 (C‑103/12 and C‑165/12, EU:C:2014:2400).

Council Regulation (EU) No 1243/2012 of 19 December 2012 amending Regulation (EC) No 1342/2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks (OJ 2012 L 352, p. 10).

My emphasis.

See paragraphs 52 to 54 of judgment of 1 December 2015, cod (C‑124/13 and C‑125/13, EU:C:2015:790).

In the structure of the Treaty of Lisbon, the power to adopt implementing measures is generally conferred by secondary law (see Article 291(2) TFEU), contrary to the provision of Article 43(3) TFEU, which is quite clearly a provision of primary law. Moreover, in Article 291(2) TFEU, that power is conferred on the Commission, not on the Council.

Judgment of 1 December 2015 (C‑124/13 and C‑125/13, EU:C:2015:790).

My emphasis.

See paragraph 58 of that judgment.

See paragraph 57 of the judgment of 1 December 2015, cod (C‑124/13 and C‑125/13, EU:C:2015:790).

See, by way of example, Bianchi, D., La politique agricole commune, 2nd ed., Bruylant, Brussels, 2012, p. 97; von Rintelen, J., in Grabitz, E., Hilf, M., Nettesheim, M., Das Recht der Europäischen Union, 57. updated August 2015, C.H. Beck, Munich, Article 43, paragraph 11, and Frenz, W., Handbuch Europarecht, Band 6, Institutionen und Politiken, Springer, Heidelberg, 2011, paragraph 2681.

C‑583/11 P, EU:C:2013:21, footnote 33.

That obviously applies without prejudice to the paramount importance of that procedure in the system in the treaties.

See paragraph 79 of the judgment of 26 November 2014, Venezuela (C‑103/12 and C‑165/12, EU:C:2014:2400), in which the Court noted that the decision contested in that case was ‘not a technical or implementing measure but, on the contrary, a measure which entails the adoption of an autonomous decision’.

See point 66 of the Opinion of Advocate General Wahl in the judgment in cod (C‑124/13 and C‑125/13, EU:C:2015:337).

See judgment of 26 November 2014, Venezuela (C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 50).

My emphasis.

Judgment of 1 December (C‑124/13 and C‑125/13, EU:C:2015:790).

(45) Which already shows that the element is probably not truly essential to the common organisation of agricultural markets.

(46) See, to that effect, Vandenberghe, J., The Single Common Market Organization Regulation, in McMahon, J. A., Cardwell, M. N., Research Handbook on EU Agriculture Law, Cheltenham, 2015, p. 78.

(47) See, inter alia, judgment of 11 June 1991, Commission v Council (C‑300/89, EU:C:1991:244, paragraphs 17 to 21).

(48) A cumulation of legal bases, as in the present case, would render the procedure laid down by Article 43(3) TFEU meaningless. The Council would therefore be denied any opportunity to react quickly with regard to fixing prices. With such a cumulation, the ordinary legislative procedure would also be required. However, the correct legal basis for measures on fixing prices, Article 43(3) TFEU, does not provide for the involvement of the Parliament and the Economic and Social Committee.

(49) Judgment of 26 November 2014 (C‑103/12 and C‑165/12, EU:C:2014:2400).

(50) Judgment of 1 December 2015 (C‑124/13 and C‑125/13, EU:C:2015:790).

(51) See judgments of 26 November 2014, Venezuela (C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 90), and of 1 December 2015, cod (C‑124/13 and C‑125/13, EU:C:2015:790, paragraph 86 and the case-law cited).