Opinion of Advocate General Emiliou delivered on 10 March 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:186
• Date: 10 March 2022
• Celex Number: 62021CC0207
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 10 March 2022(1)

Case C‑207/21 P

European Commission

v

Republic of Poland

(Appeal – Annulment of Implementing Decision (EU) 2017/1442 – Article 16(4) and (5) TEU – Article 3(2) and (3) of Protocol (No 36) on transitional provisions – Application ratione temporis – Council’s voting rules – Qualified majority)

I. Introduction

1. The voting arrangements for decision-making in the Council of the European Union have traditionally been regarded as a real brainteaser by everyone except for (relatively few) insiders. Indeed, owing to hard-fought and carefully crafted compromises, those arrangements have, unfortunately, not been blessed with the virtue of simplicity.

2. Over the course of the last 70 years, the Council’s voting arrangements have undergone a number of changes, resulting from both express amendments to the Treaties, and from other types of formally or informally agreed rules or practices. (2) In particular, the rules on the Council’s voting were once again revised and, to some extent, simplified with the Treaty of Lisbon. (3)

3. Put simply, depending on the issue under discussion, the Council takes its decisions either by simple majority, qualified majority, or unanimously. (4) Qualified majority – which is the most widely used and most significant voting method in the Council – is now defined, subject to exceptions, as a double majority. Pursuant to Article 16(4) TEU, qualified majority is, in most cases, (5) obtained when ‘at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union’ vote in favour of the adoption of the act in question.

4. However, this double majority system did not become applicable with the entry into force of the Treaty of Lisbon, but only became applicable from 1 November 2014 onwards. Moreover, in conformity with Protocol (No 36) on transitional provisions, (6) during a transitional period – extending from 1 November 2014 to 31 March 2017 – any member of the Council could request that the vote on an act take place under the rules laid down in Article 3 thereof, corresponding essentially to the qualified‑majority rules in force under the Treaty of Nice.

5. The present case concerns the application ratione temporis of that protocol. In a nutshell, the question raised by the present case is whether, in order to be able to benefit from the application of the ‘old’ qualified-majority rules, it was sufficient for a member of the Council to request the application of those rules between 1 November 2014 and 31 March 2017, or whether it was also necessary for the vote to take place during that period.

II. EU legal framework

A. The EU Treaty and Protocol No 36

6. Article 16(4) and (5) TEU provides:

‘4. As from 1 November 2014, a qualified majority shall be defined as at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union.

A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.

The other arrangements governing the qualified majority are laid down in Article 238(2) [TFEU].

5. The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions.’

7. Article 3 of Protocol No 36 states:

‘1. In accordance with Article 16(4) [TEU], the provisions of that paragraph and of Article 238(2) [TFEU] relating to the definition of the qualified majority in the European Council and the Council shall take effect on 1 November 2014.

2. Between 1 November 2014 and 31 March 2017, when an act is to be adopted by qualified majority, a member of the Council may request that it be adopted in accordance with the qualified majority as defined in paragraph 3. In that case, paragraphs 3 and 4 shall apply.

3. Until 31 October 2014, the following provisions shall remain in force, without prejudice to the second subparagraph of Article 235(1) [TFEU].

For acts of the European Council and of the Council requiring a qualified majority, members’ votes shall be weighted as follows:

… [(7)]

Acts shall be adopted if there are at least 260 votes in favour representing a majority of the members where, under the Treaties, they must be adopted on a proposal from the Commission. In other cases decisions shall be adopted if there are at least 260 votes in favour representing at least two thirds of the members.

A member of the European Council or the Council may request that, where an act is adopted by the European Council or the Council by a qualified majority, a check is made to ensure that the Member States comprising the qualified majority represent at least 62% of the total population of the Union. If that proves not to be the case, the act shall not be adopted.

4. Until 31 October 2014, the qualified majority shall, in cases where, under the Treaties, not all the members of the Council participate in voting, namely in the cases where reference is made to the qualified majority as defined in Article 238(3) [TFEU], be defined as the same proportion of the weighted votes and the same proportion of the number of the Council members and, if appropriate, the same percentage of the population of the Member States concerned as laid down in paragraph 3 of this Article.’

B. Regulation (EU) No 182/2011

8. Article 5(1) and (2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (8) provides:

‘1. Where the examination procedure applies, the committee shall deliver its opinion by the majority laid down in Article 16(4) and (5) [TEU] and, where applicable, Article 238(3) TFEU, for acts to be adopted on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in those Articles.

2. Where the committee delivers a positive opinion, the Commission shall adopt the draft implementing act.’

C. Directive 2010/75/EU

9. In accordance with its Article 1, Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (9) lays down ‘rules on integrated prevention and control of pollution arising from industrial activities’, and ‘rules designed to prevent or, where that is not practicable, to reduce emissions into air, water and land and to prevent the generation of waste, in order to achieve a high level of protection of the environment taken as a whole’.

10. Pursuant to Article 14(3) of Directive 2010/75, best available techniques (‘BAT’) conclusions ‘shall be the reference for setting the permit conditions’ for operating combustion plants.

11. BAT conclusions are adopted in two stages, in accordance with Article 13 of Directive 2010/75 and the Annex to Commission Implementing Decision 2012/119/EU of 10 February 2012 laying down rules concerning guidance on the collection of data and on the drawing up of BAT reference documents and on their quality assurance referred to in Directive 2010/75. (10)

12. The first stage consists in drawing up a technical BAT reference document (‘BREF’) following an exchange of information with the participation of the European Commission, the Member States, the sectors concerned and non-governmental organisations promoting environmental protection. In that context, a technical working group draws up documents relating to the BREF, taking into account the outcome of the exchange of information for a given sector. The final draft of the BREF is sent to the forum established by Article 13(3) of Directive 2010/75, which provides its opinion on the proposed content of the BREF resulting from the technical work carried out.

13. At the second stage, in accordance with Article 13(5) and Article 75(2) of Directive 2010/75, the Commission submits a draft implementing decision on BAT conclusions to the committee established by Article 75 of Directive 2010/75 (‘the committee’) composed of representatives of the Member States. The committee delivers, under the examination procedure referred to in Article 5 of Regulation No 182/2011, its opinion on the Commission’s draft implementing decision by the qualified majority defined in Article 16(4) and (5) TEU. Where that opinion is positive, the Commission adopts the implementing decision setting out the BAT conclusions.

III. Factual background

14. On 9 March 2017, the Commission, in its capacity as chair of the committee, submitted to the committee a draft implementing decision establishing BAT conclusions, under Directive 2010/75, for large combustion plants (‘LCPs’).

15. By letter of 23 March 2017, the Commission invited the members of the committee to a meeting scheduled for 28 April 2017. The purpose of that meeting was to vote on the opinion relating to that draft implementing decision. A draft agenda was attached to that letter.

16. On 30 March 2017, the Republic of Poland requested that the committee take a vote on the opinion on that draft implementing decision in accordance with the voting rules laid down in Article 3(3) of Protocol No 36.

17. On 4 April 2017, the Legal Service of the Council of the European Union sent to the Committee of Permanent Representatives of the Member States an opinion according to which, in essence, in order for a vote on a draft act to be conducted in accordance with the rules applicable before the entry into force of the Treaty of Lisbon, the Member State in question would have had to submit a request to...