Commission of the European Communities v Council of the European Union.

• Jurisdiction: European Union
• Celex Number: 62003CJ0094
• ECLI: ECLI:EU:C:2006:2
• Court: Court of Justice (European Union)
• Date: 10 January 2006
• Docket Number: C-94/03
• Procedure Type: Recours en annulation - fondé

Case C-94/03

Commission of the European Communities

v

Council of the European Union

(Action for annulment – Council Decision 2003/106/EC concerning the approval of the Rotterdam Convention – Prior Informed Consent Procedure – Hazardous chemicals and pesticides in international trade – Choice of legal basis – Articles 133 EC and 175 EC)

Summary of the Judgment

1. Acts of the institutions – Choice of legal basis – Criteria – Community measure pursuing a twofold purpose or having a twofold component

2. International agreements – Conclusion – Rotterdam Convention

(Arts. 133 EC, 175(1) EC, 300(2) EC, first subparagraph and 300(3) EC, first subparagraph)

1. The choice of the legal basis for a Community measure, including one adopted with a view to conclusion of an international agreement, must be based on objective factors which are amenable to judicial review and include in particular the aim and content of the measure.

If examination of a Community measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the act must be based on a single legal basis, namely that required by the main or predominant purpose or component. Exceptionally, if, on the other hand, it is established that the act simultaneously pursues a number of objectives or has several components that are indissociably linked, without one being secondary and indirect in relation to the other, such an act will have to be founded on the various corresponding legal bases. However, recourse to a dual legal basis is not possible where the procedures laid down for each legal basis are incompatible with each other or where the use of two legal bases is liable to undermine the rights of the Parliament.

(see paras 34-36, 52)

2. The Rotterdam Convention on the Prior Informed Consent procedure for certain hazardous chemicals and pesticides in international trade includes, both as regards the aims pursued and its contents, two indissociably linked components, neither of which can be regarded as secondary or indirect as compared with the other, one falling within the scope of the common commercial policy and the other within that of protection of human health and the environment. Accordingly, Decision 2003/106/EC approving that Convention on behalf of the European Community should therefore have been based on the two corresponding legal bases, namely, in this case, Articles 133 EC and 175(1) EC, in conjunction with the relevant provisions of Article 300 EC.

In that regard, it must be observed, first, that recourse to both Article 133 EC and Article 175(1) EC at the same time is not precluded by means of the incompatibility of the procedures laid down in respect of those two legal bases. The Convention of Rotterdam does not fall within the category of agreements which, under Article 133(5) EC, require unanimity within the Council, so that additional recourse to Article 133 EC could not have any impact on the voting rules applicable within the Council, since the latter provision provides in principle, in the same way as Article 175(1) EC, for recourse to qualified majority voting. Secondly, recourse to Article 133 EC jointly with Article 175(1) EC is likewise not liable to undermine the Parliament’s rights because, although the first-mentioned article, read in conjunction with the first subparagraph of Article 300(3) EC, does not provide for consultation of that institution prior to the conclusion of an agreement in the area of commercial policy, the second article, on the other hand, does lead to such a result.

It is therefore necessary to annul Decision 2003/106/EC inasmuch as it is based solely on Article 175(1) EC, in conjunction with the first sentence of the first subparagraph of Article 300(2) EC and the first subparagraph of Article 300(3) EC.

(see paras 51-54, 56)

JUDGMENT OF THE COURT (Second Chamber)

10 January 2006 (*)

(Action for annulment – Council Decision 2003/106/EC concerning the approval of the Rotterdam Convention – Prior Informed Consent Procedure – Hazardous chemicals and pesticides in international trade – Choice of legal basis – Articles 133 EC and 175 EC)

In Case C-94/03,

ACTION for annulment under Article 230 EC, brought on 28 February 2003,

Commission of the European Communities, represented by G. zur Hausen, L. Ström van Lier and E. Righini, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Council of the European Union, represented initially by B. Hoff-Nielsen and M. Sims-Robertson, and then by the latter and K. Michoel, acting as Agents,

defendant,

supported by

French Republic, represented by G. de Bergues, F. Alabrune and E. Puisais, acting as Agents, with an address for service in Luxembourg,

Kingdom of the Netherlands, represented by H.G. Sevenster, S. Terstal and N.A.J. Bel, acting as Agents,

Republic of Austria, represented by E. Riedl, acting as Agent, with an address for service in Luxembourg,

Republic of Finland, represented by T. Pynnä, acting as Agent, with an address for service in Luxembourg,

United Kingdom of Great Britain and Northern Ireland, represented by R. Caudwell, acting as Agent, and A. Dashwood, Barrister, with an address for service in Luxembourg,

European Parliament, represented initially by C. Pennera and M. Moore, and then by the latter and K. Bradley, acting as Agents, with an address for service in Luxembourg,

interveners,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, J. Makarczyk, C. Gulmann, P. Kūris and J. Klučka, Judges,

Advocate General: J. Kokott,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 7 April 2005,

after hearing the opinion of the Advocate General at the sitting on 26 May 2005,

gives the following

Judgment

1 By its application, the Commission of the European Communities seeks the annulment of Council Decision 2003/106/EC of 19 December 2002 concerning the approval, on behalf of the European Community, of the Rotterdam Convention on the Prior Informed Consent Procedure for certain hazardous chemicals and pesticides in international trade (OJ 2003 L 63, p. 27, ‘the contested decision’), in so far as it is based on Article 175(1) EC and not on Article 133 EC.

Legal background

2 The Rotterdam Convention (hereinafter ‘the Convention’) was adopted on 10 September 1998 and opened the next day for signature by all the States and regional economic integration organisations; according to Article 1 its objective is ‘to promote shared responsibility and cooperative efforts among Parties in the international trade of certain hazardous chemicals in order to protect human health and the environment from potential harm and to contribute to their environmentally sound use’. The same article makes it clear that that objective must be attained ‘by facilitating information exchange about [the] characteristics [of those chemicals], by providing for a national decision-making process on their import and export and by disseminating these decisions to Parties’.

3 By virtue of Article 3 of the Convention, which relates to its scope, the Convention applies to ‘banned or severely restricted chemicals’ and ‘severely hazardous pesticide formulations’ but does not apply to a number of products listed in Article 3(2) of the Convention. The products covered by it are defined in more detail in Article 2 of the Convention.

4 According to Article 2(b) and (c), ‘banned’ and ‘severely restricted’ chemicals mean chemicals ‘all uses of which’ or ‘virtually all uses of which’, respectively, ‘have been prohibited by final regulatory action in order to protect human health or the environment’. As for the term ‘severely hazardous pesticide formulation’, it is defined in Article 2(d) as ‘a chemical formulated for pesticidal use that produces severe health or environmental effects observable within a short period of time after single or multiple exposure, under conditions of use’. The procedures applicable to those two types of product are described in Articles 5 and 6 of the Convention respectively.

5 Thus, with regard to banned or severely restricted chemicals, Article 5(1) to (3) of the Convention provides, in essence, that, when a Party to the Convention has adopted a final regulatory action – defined by Article 2(e) of the Convention as ‘an action taken by a Party, that does not require subsequent regulatory action by that Party, the purpose of which is to ban or severely restrict a chemical’, it must as soon as possible give written notice of such action to the Secretariat established by the Convention, which must then verify whether the notification contains the information required in Annex I to the Convention, concerning in particular the identification of the chemical in question, its physical and chemical, toxicological and ecotoxicological properties and the reasons for the final regulatory action relevant to human health or the environment. If it does contain that information, the Secretariat must forthwith forward to all Parties to the Convention a summary of the information received. If the notification does not contain the required information, the Secretariat must inform the Party that submitted the incomplete notification and request it to provide the missing information without delay. In any case, Article 5(4) of the Convention provides that every six months the Secretariat is to send the Parties a synopsis of the information received by it pursuant to Article 5(1) and (2), ‘including information regarding those notifications which do not contain all the information required by Annex I’.

6 Under Article 5(5) of the Convention, ‘when the Secretariat has received at least one notification from each of two Prior Informed Consent [“PIC”]...