Opinion of Advocate General Szpunar delivered on 19 May 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:404
• Date: 19 May 2022
• Celex Number: 62020CC0024
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 19 May 2022 (1)

Case C‑24/20

European Commission

v

Council of the European Union

(Action for annulment – Decision (EU) 2019/1754 – Accession of the European Union to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications – Authorisation granted to the Member States to accede to that act alongside the European Union – Lack of any proposal from the Commission – Power of the Council to amend the Commission proposal – Exclusive external competence of the European Union – Article 13(2) and Article 17(2) TEU – Article 2(1), Article 218(6) and Article 293(1) TFEU)

I. Introduction

1. The Americans say that if something looks like a duck, swims like a duck and quacks like a duck, it’s a duck. In reality, the proper classification of the things we see, as obvious as it may seem at first sight, is always open to debate. That is all the more true so far as concerns abstract concepts.

2. Thus, in the present case, the European Commission calls into question the competence of the Council of the European Union to amend, pursuant to Article 293(1) TFEU, its proposal for a legal act of the European Union, on the ground that the change made by the Council goes beyond an amendment. In essence, the Commission presents the Court with an amendment to the proposal made by the Council and, in the spirit of René Magritte, observes: ‘Ceci n’est pas un amendement’. It is that observation that the Court will need to consider in the present case.

II. Legal framework

3. The present case concerns two international treaties administered by the World Intellectual Property Organisation (WIPO).

A. The Lisbon Agreement

4. The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration is a treaty signed on 31 October 1958, revised at Stockholm on 14 July 1967 and amended on 28 September 1979 (2) (‘the Lisbon Agreement’). It constitutes a special agreement for the purposes of Article 19 of the Paris Convention for the Protection of Industrial Property of 20 March 1883 (3) (‘the Paris Convention’), to which any State party to that convention may accede.

5. Seven Member States of the European Union are parties to the Lisbon Agreement, namely the Republic of Bulgaria, the Czech Republic, the French Republic, the Italian Republic, Hungary, the Portuguese Republic and the Slovak Republic. (4) On the other hand, the European Union is not a party to the agreement, to which only States can accede.

6. Article 1 of the Lisbon Agreement provides that the States to which that agreement applies constitute a Special Union (‘the Special Union’) within the framework of the Union for the Protection of Industrial Property established by the Paris Convention and undertake to protect on their territories, in accordance with the terms of that agreement, the appellations of origin of products of the other States of the Special Union, recognised and protected as such in the country of origin and registered at the International Bureau of WIPO.

B. The Geneva Act

7. On 20 May 2015, a diplomatic conference adopted the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications (5) (‘the Geneva Act’), which revised the Lisbon Agreement. The Geneva Act differed from the Lisbon Agreement in that it provided, in Article 28(1)(iii), for intergovernmental organisations (‘IGOs’) to become parties to it. (6)

8. Article 22 of the Geneva Act makes provision as regards the Assembly of the Special Union (‘the assembly’), which is made up of the contracting parties to that act and the States party to the Lisbon Agreement. Under Article 22(2) of the act, the tasks of the assembly include dealing with all matters concerning the maintenance and development of the Special Union and the implementation of the act, amending the common regulations, adopting the financial regulations of the Special Union and adopting amendments to Articles 22 to 24 and 27 of the act.

9. Article 22(4) of the Geneva Act, which is headed ‘Taking Decisions in the Assembly’, provides:

‘(a) The Assembly shall endeavour to take its decisions by consensus.

(b) Where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting. In such a case:

(i.) each Contracting Party that is a State shall have one vote and shall vote only in its own name; and

(ii.) any Contracting Party that is an [IGO] may vote, in place of its member States, with a number of votes equal to the number of its member States which are party to this Act. No such [IGO] shall participate in the vote if any one of its member States exercises its right to vote, and vice versa.

(c) On matters concerning only States that are bound by [the Lisbon Agreement], Contracting Parties that are not bound by [that agreement] shall not have the right to vote, whereas, on matters concerning only Contracting Parties, only the latter shall have the right to vote.’

10. Article 31 of the Geneva Act, which is headed ‘Application of the [Lisbon Agreement]’, provides:

‘(1) [Relations Between States Party to Both This Act and [the Lisbon Agreement]] This Act alone shall be applicable as regards the mutual relations of States party to both this Act and [the Lisbon Agreement]. However, with regard to international registrations of appellations of origin effective under [the Lisbon Agreement], the States shall accord no lower protection than is required by [the Lisbon Agreement].

(2) [Relations Between States Party to Both This Act and [the Lisbon Agreement] and States Party to [the Lisbon Agreement] Without Being Party to This Act] Any State party to both this Act and [the Lisbon Agreement] shall continue to apply [the Lisbon Agreement], as the case may be, in its relations with States party to [the Lisbon Agreement] that are not party to this Act.’

11. The common regulations under the Lisbon Agreement and the Geneva Act, (7) adopted pursuant to Article 25 of the Geneva Act, contain, in rule 7, a mechanism for the protection, under the Geneva Act, of appellations of origin registered under the Lisbon Agreement, where a State party to the Lisbon Agreement has acceded to the Geneva Act. (8)

III. Background to the dispute

12. On 30 March 2015, in preparation for the diplomatic conference to be held in Geneva (Switzerland), from 11 to 21 May 2015, for the purposes of considering and adopting a draft revised Lisbon Agreement, the Commission adopted a recommendation for a Council decision authorising the opening of negotiations on a Revised Lisbon Agreement for the Protection of Appellations of Origin and Geographical Indications. In that recommendation, the Commission, amongst other things, invited the Council to base its decision on Article 207 and Article 218(3) and (4) TFEU, given the exclusive competence conferred on the European Union in the area of the common commercial policy by Article 3(1) TFEU.

13. On 7 May 2015, the Council adopted Decision 8512/15 authorising the opening of negotiations on a revised Lisbon Agreement on Appellations of Origin and Geographical Indications, as regards matters falling within the competence of the European Union. In contrast to what the Commission recommended, that decision was based on Article 114 and Article 218(3) and (4) TFEU.

14. By its judgment of 25 October 2017, Commission v Council (Revised Lisbon Agreement), (9) the Court annulled Council Decision 8512/15, holding that the negotiation of the Geneva Act fell within the exclusive competence which Article 3(1) TFEU confers on the European Union in the field of the common commercial policy envisaged in Article 207(1) TFEU. (10)

15. On 27 July 2018, the Commission made a proposal for a Council decision on the accession of the European Union to the Geneva Act (11) (‘the proposal for a decision’), on the basis of Article 207 and Article 218(6)(a) TFEU. Given its exclusive competence, it was proposed that the European Union alone should accede to that act.

16. After debate, the Council sent the European Parliament a draft decision which, besides approving the accession of the European Union to the Geneva Act, also authorised Member States wishing to do so to accede to that act (‘the contested authorisation’). On 16 April 2019, the Parliament approved the draft decision.

17. The Commission objected to the Council’s draft. In a statement of 20 September 2019, it disputed that authorisation could be given for any Member State wishing to do so to ratify the Geneva Act or to accede to it alongside the European Union. On the other hand, it stated that it was prepared to accept that the seven Member States which were parties to the Lisbon Agreement and had already registered numerous intellectual property rights pursuant to that agreement should be authorised to accede to the Geneva Act in the interest of the European Union.

18. On 7 October 2019, pursuant to Article 293(1) TFEU, the Council unanimously adopted Decision (EU) 2019/1754 (12) (‘the contested decision’).

19. In the words of recitals 6, 8, 9 and 10 of the contested decision:

‘(6) In order for the Union to be able to properly exercise its exclusive competence for the areas covered by the Geneva Act and its functions in the context of its comprehensive protection systems for agricultural designations of origin and geographical indications, the Union should accede to the Geneva Act and become a contracting party thereto.

…

(8) The Union should endeavour to regularise the issue of its voting rights in the [assembly] in order to ensure its effective participation in the decision-making procedures, in view of point (b)(ii) of Article 22(4) of the Geneva Act. It is therefore appropriate that the Member States which wish to do so, should also be authorised to ratify or to accede to, as appropriate, alongside the Union the Geneva Act in the interest of the Union.

(9) At the same time, this will allow to ensure...