Other Legal Bases

Agricultural and fisheries policy, Article 43 TFEU

According to Article 38 TFEU, the Union shall define and implement a common agriculture and fisheries policy covering the products listed in Annex I, including live animals, meat, fish, and dairy produce. Agriculture, fisheries, and trade in agricultural products are to be part of the internal market. ‘Agricultural products’ refers to the products of the soil, of stock farming, and of fisheries and products of first-stage processing directly related to these products. References to the common agricultural policy (CAP) or to agriculture in the TFEU are understood as also referring to fisheries.

The objectives of the CAP, set out in Article 39 TFEU, are, briefly put, to increase agricultural productivity; to ensure a fair standard of living for the agricultural community; to stabilise markets; to assure the availability of supplies; and to ensure that supplies reach consumers at reasonable prices. These objectives are to be attained through the establishment of a common organisation of agricultural markets (Art 40). The legal basis for such measures is found in Article 43 TFEU. The provisions necessary for the pursuit of the objectives of the CAP and the common fisheries policy (CFP) are decided by the EP and the Council, acting in accordance with the ordinary legislative procedure. Before the Treaty of Lisbon the Council only had to hear the EP, which thus did not have much real influence on the decisions. However, measures on fixing prices, levies, aid and quantitative limitations, and the fixing and allocation of fishing opportunities are still adopted by the Council alone on a proposal from the Commission.5⁸

According to the Court of Justice, Article 43 is the appropriate legal basis for any legislation concerning the production and marketing of listed agricultural products which contributes to the achievement of one or more of the objectives of the CAP. 59

It must be noted that, unlike the situation before the entry into force of the Treaty of Lisbon, Article 43 now is also the legal basis for the common fisheries policy.^{[1] [2] [3] [4]}

The Court of Justice has found that, since environment protection is to be integrated into other policy areas, including agriculture, such protection should be viewed as an objective which forms part of the CAP.6¹

Once the EU has legislated for the establishment of the common organisation of the market in a given sector, Member States must refrain from taking any measure which might undermine or create exceptions to it.^[5] However, establishment of such a common organisation does not prevent the Member States from applying national rules which pursue an objective of general interest other than those covered by the common organisation, even if those rules are likely to have an effect on the functioning of the common market in the sector concerned.^[6]

Article 43 is quiet on environmental considerations but it follows from Article 11 TFEU that environmental protection requirements must be integrated, when relevant, into policies and activities in this area. Among the legal acts based wholly or partly on Article 43 that have environmental protection as an important objective are the regulations on plant protection products (Regulation 1107/2009) and the one establishing rules for direct payments to farmers under support schemes within the framework of the CAP.^{[7] [8] [9]} Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources provides an example of a legal act relating specifically to agricultural activities but which uses the legal basis for environmental policy.65

Fisheries are mainly regulated through Regulation (EU) No 1380/2013 on the Common Fisheries Policy, based on Article 43(2) TFEU. The CFP shall ensure that fishing and aquaculture activities are environmentally sustainable in the long term and are managed in a way that is consistent with the objectives of achieving economic, social, and employment benefits, and of contributing to the availability of food supplies (Art 1).

As previously noted, the conservation of marine biological resources under the CFP is, unlike the rest of the common agricultural and fisheries policies, subject to exclusive EU competence (Art 3 TFEU). However, Member States may take nondiscriminatory measures for the conservation and management of fish stocks and the maintenance or improvement of the conservation status of marine ecosystems within their respective territorial sea as long as the Union has not adopted conservation measures specifically for that area or for the specific problems identified by the Member State.66

• [1] On the choice between these two procedures for the adoption of measures concerning certainfishing activities see Joined cases C-124/13 and C-125/13 Parliament and Commission v CouncilECLI:EU:C:2015:790.
• [2] Case 68/86 United Kingdom v Council ECLI:EU:C:1988:85, para 14.
• [3] On the relationship between the previous Art 37 EC and the current Art 43 TFEU see Joinedcases C-124/13 and C-125/13 Parliament and Commission v Council (n 58), para 56.
• [4] Case C-428/07 Horvath ECLI:EU:C:2009:458, para 29.
• [5] Case 83/78 Pigs Marketing Board ECLI:EU:C:1978:214, para 56. On the organisation of themarkets in agricultural products and fishery and aquaculture products see Regulation (EU) No 1308/2013 of the European Parliament and of the Council establishing a common organisation of the markets in agricultural products ... [2013] OJ L 347/671, and Regulation (EU) No 1379/2013 of theEuropean Parliament and of the Council on the common organisation of the markets in fishery andaquaculture products, ... [2013] OJ L 354/1, respectively.
• [6] Case C-462/01 Hammarsten ECLI:EU:C:2003:33, para 29 with further references.
• [7] Regulation (EU) No 1307/2013 of the European Parliament and of the Council establishingrules for direct payments to farmers under support schemes within the framework of the commonagricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC)No 73/2009 [2013]OJ L 347/608.
• [8] Council Directive 91/676/EEC concerning the protection of waters against pollution caused bynitrates from agricultural sources [1991] OJ L 375/1.
• [9] Regulation (EU) No 1380/2013 of the European Parliament and of the Council on the CommonFisheries Policy ... [2013] OJ L 354/22, Art 20.