European Commission v Council of the European Union.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Jarašiūnas
• ECLI: ECLI:EU:C:2018:662
• Date: 04 September 2018
• Docket Number: C-244/17
• Procedure Type: Recours en annulation - fondé

JUDGMENT OF THE COURT (Grand Chamber)

4 September 2018 ( *1 )

(Action for annulment — Decision (EU) 2017/477 — 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 — Article 218(9) TFEU — Decision establishing the positions to be adopted on behalf of the European Union in a body set up by an international agreement — Agreement some of whose provisions may be linked with the common foreign and security policy (CFSP) — Voting rule)

In Case C‑244/17,

ACTION for annulment under Article 263 TFEU, brought on 10 May 2017,

European Commission, represented initially by L. Havas, L. Gussetti and P. Aalto, acting as Agents, and subsequently by L. Havas and L. Gussetti, acting as Agents,

applicant,

v

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

defendant,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, A. Tizzano, Vice-President, R. Silva de Lapuerta, M. Ilešič, L. Bay Larsen, E. Levits, C.G. Fernlund and C. Vajda, Presidents of Chambers, J.-C. Bonichot, A. Arabadjiev, C. Toader, M. Safjan, E. Jarašiūnas (Rapporteur), S. Rodin and F. Biltgen, Judges,

Advocate General: J. Kokott,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 17 April 2018,

after hearing the Opinion of the Advocate General at the sitting on 31 May 2018,

gives the following

Judgment

1 By its application, the European Commission seeks the annulment of 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; ‘the contested decision’).

The Partnership Agreement and the contested decision

2 On 26 October 2015, the Council of the European Union adopted Decision (EU) 2016/123 on the signing, on behalf of the European Union, and provisional application of 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 (OJ 2016 L 29, p. 1). That decision was adopted on the legal basis of Articles 37 and 31(1) TEU and Articles 91, 100(2) and 207 and 209 TFEU in conjunction with Article 218(5) and the second subparagraph of Article 218(8) TFEU. 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 (‘the Partnership Agreement’) was signed on 21 December 2015 in Astana (Kazakhstan) and its provisional application, provided for in Article 281(3) thereof, began on 1 May 2016.

3 Article 268 of the Partnership Agreement establishes a Cooperation Council, which is assisted in the performance of its duties by a Cooperation Committee, established by Article 269 of that agreement. Article 269(6) provides that the Cooperation Council may decide to set up specialised subcommittees or any other bodies that can assist it in carrying out its duties, and is to determine the composition and duties of such subcommittees or bodies and how they are to function.

4 In addition, Article 268(7) of the Partnership Agreement provides that the Cooperation Council is to establish its rules of procedure. Article 269(7) of that agreement states that in those rules the Cooperation Council is to determine the duties and functioning of the Cooperation Committee and of any subcommittee or body set up by the Cooperation Council.

5 For the purpose of implementing those provisions, the Commission, jointly with the High Representative of the European Union for Foreign Affairs and Security Policy, adopted on 3 February 2017 a proposal for a Council decision on the position to be adopted on behalf of the European Union in the Cooperation Council established under the Partnership Agreement, which had Article 218(9) TFEU in conjunction with Article 37 TEU as its procedural legal basis and Articles 207 and 209 TFEU as its substantive legal basis.

6 On 3 March 2017 the Council adopted the contested decision, adding Article 31(1) TEU and Articles 91 and 100(2) TFEU to the proposed legal bases. The contested decision provides: ‘Article 1 1. The position to be taken on the Union’s behalf within the Cooperation Council established by Article 268(1) of the [Partnership Agreement] shall be based on the draft Decisions of the Cooperation Council attached to this Decision as regards: – the adoption of the Rules of Procedure of the Cooperation Council and those of the Cooperation Committee, specialised subcommittees or any other bodies, – the establishment of a Subcommittee on Justice, Freedom and Security, a Subcommittee on Energy, Transport, Environment and Climate Change and a Subcommittee on Customs Cooperation. 2. Minor technical corrections to the draft Decisions of the Cooperation Council may be agreed to by the representatives of the Union within the Cooperation Council without further decision of the Council. Article 2 The Cooperation Council shall be chaired on the Union side by the High Representative of the Union for Foreign Affairs and Security Policy, in accordance with his or her responsibilities pursuant to the Treaties and his or her capacity as President of the Foreign Affairs Council. ...’

Forms of order sought

7 The Commission claims that the Court should annul the contested decision and order the Council to pay the costs.

8 The Council contends that the action should be dismissed and that the Commission should be ordered to pay the costs. In the alternative, should the contested decision be annulled, it requests the Court to maintain its effects.

The action

Arguments of the parties

9 By its single plea in law, the Commission criticises the Council for adding, in the legal basis of the contested decision, Article 31(1) TEU, which provides in particular that decisions under Chapter 2 of Title V of the EU Treaty that contain specific provisions on the common foreign and security policy (CFSP) are to be taken unanimously, except where that chapter provides otherwise.

10 In support of this plea, the Commission submits that a decision adopted pursuant to Article 218(9) TFEU is to be taken by qualified majority voting, in accordance with the first subparagraph of Article 218(8) TFEU in conjunction with Article 218(9) TFEU, as the Court held in the judgment of 18 December 2014, United Kingdom v Council (C‑81/13, EU:C:2014:2449, paragraph 66), even if one or more of its substantive legal bases would otherwise require unanimity for the conclusion of an international agreement.

11 According to the Commission, Article 218 TFEU lays down, as the Court stated in the judgment of 24 June 2014, Parliament v Council (C‑658/11, EU:C:2014:2025, paragraph 52), a single procedure of general application concerning the negotiation and conclusion of international agreements which the European Union can conclude in the fields of its activity, including the CFSP, a point confirmed by the judgment of 14 June 2016, Parliament v Council (C‑263/14, EU:C:2016:435, paragraph 55), in which the Court held that an agreement falling predominantly within the CFSP must be concluded under Article 218(6) TFEU. Both the negotiation and conclusion of international agreements and the adoption of positions implementing such agreements are governed by that single procedure. Chapter 2 of Title V of the EU Treaty does not cover the decision-making procedure applicable to international agreements.

12 In the Commission’s submission, the voting rules for the adoption of any Council decision under Article 218(9) TFEU are exclusively set out in the first subparagraph of Article 218(8) TFEU, which constitutes a lex specialis laying down a simplified procedure to be followed by the Council — when establishing the positions to be adopted in a body established by an agreement — that applies to both CFSP and non-CFSP matters. Accordingly, the qualified majority voting rule was applicable for adopting the contested decision, as the aim of that decision is not to supplement or amend the institutional framework of the Partnership Agreement, but only to ensure its efficient implementation, so that the contested decision cannot be equated with the conclusion or amendment of an international agreement.

13 The Commission observes, furthermore, that the Council’s position is not consistent with the first paragraph of Article 40 TEU, in that adding Article 31(1) TEU would require a unanimous vote for the adoption of any decision under Article 218(9) TFEU, in the context of an international agreement whose legal basis includes a provision falling within the CFSP, irrespective of the subject matter of that decision. The Council’s position would result in the application of CFSP procedures in order to exercise EU competences not only in the field of the CFSP, but also for the implementation of other EU policies.

14 The Council states that...