European Commission v Council of the European Union.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2021:658
• Docket Number: C-180/20
• Date: 02 September 2021

JUDGMENT OF THE COURT (Grand Chamber)

2 September 2021 (*)

(Action for annulment – Decisions (EU) 2020/245 and 2020/246 – Position to be taken on behalf of the European Union within the Partnership Council established by the Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Armenia, of the other part – Agreement, certain provisions of which may be linked with the common foreign and security policy (CFSP) – Adoption of the Rules of Procedure of the Partnership Council, of the Partnership Committee, subcommittees and other bodies – Adoption of two separate decisions – Choice of legal basis – Article 37 TEU – Article 218(9) TFEU – Voting rules)

In Case C‑180/20,

ACTION for annulment under Article 263 TFEU, brought on 24 April 2020,

European Commission, represented by M. Kellerbauer and T. Ramopoulos, acting as Agents,

applicant,

supported by:

Czech Republic, represented by K. Najmanová, M. Švarc, J. Vláčil and M. Smolek, acting as Agents,

intervener,

v

Council of the European Union, represented by P. Mahnič, M. Balta and by M. Bishop, acting as Agents,

defendant,

supported by:

French Republic, represented by T. Stehelin, J.‑L. Carré and by A.‑L. Desjonquères, acting as Agents,

intervener,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, A. Arabadjiev, A. Prechal, N. Piçarra and A. Kumin, Presidents of Chambers, C. Toader (Rapporteur), M. Safjan, D. Šváby, S. Rodin, F. Biltgen, P.G. Xuereb, L.S. Rossi and I. Jarukaitis, Judges,

Advocate General: G. Pitruzzella,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 17 June 2021,

gives the following

Judgment

1 By its action, the European Commission seeks the annulment of Council Decision (EU) 2020/245 of 17 February 2020 on the position to be taken on behalf of the European Union within the Partnership Council established by the Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Armenia, of the other part, as regards the adoption of the Rules of Procedure of the Partnership Council and those of the Partnership Committee, subcommittees and other bodies set up by the Partnership Council, and the establishment of the list of Sub‐Committees, for the application of that Agreement with the exception of Title II thereof (OJ 2020 L 52, p. 3) and of Council Decision (EU) 2020/246 of 17 February 2020 on the position to be taken on behalf of the European Union within the Partnership Council established by the Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Armenia, of the other part, as regards the adoption of the Rules of Procedure of the Partnership Council and those of the Partnership Committee, subcommittees and other bodies set up by the Partnership Council, and the establishment of the list of Sub‐Committees, for the application of Title II of that Agreement (OJ 2020 L 52, p. 5) (together ‘the contested decisions’).

The Comprehensive and Enhanced Partnership Agreement and the contested decisions

2 On 20 November 2017, the Council adopted Decision (EU) 2018/104 on the signing, on behalf of the Union, and provisional application of the Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Armenia, of the other part (OJ 2018 L 23, p. 1). That decision was based on Article 37 TEU and on Article 91, Article 100(2) and Articles 207 and 209 TFEU, in conjunction with Article 218(5), (7) and (8), second subparagraph, TFEU.

3 That partnership agreement (‘the Partnership Agreement with Armenia’) was signed on 24 November 2017 and has been applied provisionally since 1 June 2018. It entered into force on 1 March 2021.

4 Articles 362 and 363 of the Partnership Agreement with Armenia establish a Partnership Council and a Partnership Committee respectively, whilst Article 364 of that agreement provides for the option of setting up, as required, subcommittees and other bodies. In addition, pursuant to the combined provisions of Article 362(4) and Article 363(4) of that agreement, it is for the Partnership Council to establish its own rules of procedure and to determine therein the duties and functioning of the Partnership Committee, which is responsible inter alia for preparing the meetings of the Partnership Council.

5 For the purposes of implementing Articles 362 to 364 of the Partnership Agreement with Armenia, the Commission and the High Representative of the European Union for Foreign Affairs and Security Policy jointly adopted, on 29 November 2018, a proposal for a Council Decision on the position to be taken on behalf of the European Union within the Partnership Council established by the Partnership Agreement with Armenia, as regards the adoption of decisions on the rules of procedure of the Partnership Council, the Partnership Committee and those of specialised subcommittees or any other body. That proposal was based on Article 37 TEU and Article 91, Article 100(2) and Articles 207 and 209 TFEU, in combination with Article 218(9) TFEU.

6 However, in its amended proposal of 19 July 2019, the Commission deleted the reference to Article 37 TEU as a substantive legal basis. That amended proposal was a response to findings made by the Court in the judgment of 4 September 2018, Commission v Council (Agreement with Kazakhstan) (C‑244/17, EU:C:2018:662), which annulled Council Decision (EU) 2017/477 of 3 March 2017 on the position to be adopted on behalf of the European Union within the Cooperation Council established under the Enhanced Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Kazakhstan, of the other part as regards the working arrangements of the Cooperation Council, the Cooperation Committee, specialised subcommittees or any other bodies (OJ 2017 L 73, p. 15), on the ground that the Council had wrongly relied on Article 31(1) TEU as a basis for the adoption of that decision.

7 At the meeting of 4 December 2019, the Permanent Representatives’ Committee (Coreper) decided to split the legal act as to the position to be adopted into two Council decisions, namely, first, Decision 2020/245, intended to ensure the application of the Partnership Agreement with Armenia with the exception of Title II thereof, based on a substantive legal base constituted by Article 91 and Articles 207 and 209 TFEU, and, secondly, Decision 2020/246, intended to ensure the application of Title II of that agreement, based on a substantive legal basis constituted solely by Article 37 TEU. On 17 February 2020, the Council adopted the contested decisions on those same substantive legal bases. Whereas Decision 2020/245 was adopted by qualified majority, its procedural legal basis being constituted in particular by the first subparagraph of Article 218(8) TFEU, and by Article 218(9) TFEU, Decision 2020/246 was adopted by unanimity. The procedural legal basis for that decision includes, in addition to Article 218(9) TFEU, the second subparagraph of Article 218(8) TFEU, pursuant to which the Council acts unanimously where the agreement covers a field for which unanimity is required for the adoption of an act of the European Union.

8 Thus, Article 1(1) of Decision 2020/245 provides that the position to be taken on the European Union’s behalf within the Partnership Council established by the Partnership Agreement with Armenia, as regards the adoption of the Rules of Procedure of the Partnership Council and those of the Partnership Committee, subcommittees and other bodies set up by the Partnership Council, and the establishment of the list of Sub‐Committees, for the application of that Agreement with the exception of Title II thereof, is to be based on the draft Decision of the Partnership Council. Likewise, the content of Article 1(1) of Decision 2020/246 is identical as regards the application of Title II of that agreement.

9 The Commission expressed its objections in a statement recorded in the minutes of the Council meeting, submitting that the addition of Article 37 TEU as a legal basis of Decision 2020/246 and the division of the act of the Council into two decisions was unlawful. The Czech Republic also recorded a statement in the minutes of the meetings of Coreper and of the Council, according to which that introduction was wrong in the light of the judgment of 4 September 2018, Commission v Council (Agreement with Kazakhstan) (C‑244/17, EU:C:2018:662). Similarly, Hungary expressed its reservations with regard to the adoption of two separate decisions. Those two Member States abstained from voting when the contested decisions were adopted.

Forms of order sought by the parties

10 The Commission claims that the Court should annul the contested decisions, maintain their effects, and order the Council to pay the costs.

11 The Council contends that the action should be dismissed and that the Commission should be ordered to pay the costs. In the alternative, in the event that the contested decisions are annulled, it requests that the Court maintain the effects of those decisions.

12 By decisions of the President of the Court of 25 August 2020 and of 25 September 2020, the Czech Republic and the French Republic were granted leave to intervene in support of the forms of order sought by the Commission and by the Council, respectively.

The action

13 The Commission raises two pleas in law alleging, first, incorrect use of Article 37 TEU as a substantive legal...