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

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Bay Larsen
• ECLI: ECLI:EU:C:2009:249
• Date: 23 April 2009
• Docket Number: C-370/07
• Procedure Type: Recours en annulation - fondé

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 23 April 2009 ¹(1)

Case C‑370/07

Commission of the European Communities

v

Council of the European Union

(Decision – Decision sui generis – Determination of positions to be represented on behalf of the Community in a body established by a convention – Obligation to state reasons – Reference to legal basis – 14th meeting of the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES))

I – Introduction

1. This case concerns the question of when Community measures must refer to their legal basis and what the consequences are of the failure to make a reference that is required.

2. The subject of the application is the decision of the Council of the European Union establishing the position to be adopted on behalf of the European Community with regard to certain proposals submitted to the 14th meeting of the Conference of the Parties (COP 14) to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (2) of 3 to 15 June 2007. The Commission of the European Communities seeks the annulment of the decision on the ground that the Council made no reference in it to any legal basis.

II – Legal context

3. Article 253 EC provides:

‘Regulations, directives and decisions adopted jointly by the European Parliament and the Council, and such acts adopted by the Council or the Commission, shall state the reasons on which they are based and shall refer to any proposals or opinions which were required to be obtained pursuant to this Treaty.’

4. Article 300(2) EC governs inter alia the procedure for defining Community positions to be adopted in bodies of international organisations:

‘Subject to the powers vested in the Commission in this field, the signing, which may be accompanied by a decision on provisional application before entry into force, and the conclusion of the agreements shall be decided on by the Council, acting by a qualified majority on a proposal from the Commission. The Council shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of internal rules and for the agreements referred to in Article 310.

By way of derogation from the rules laid down in paragraph 3, the same procedures shall apply for a decision to suspend the application of an agreement, and for the purpose of establishing the positions to be adopted on behalf of the Community in a body set up by an agreement, when that body is called upon to adopt decisions having legal effects, with the exception of decisions supplementing or amending the institutional framework of the agreement.

The European Parliament shall be immediately and fully informed of any decision under this paragraph concerning the provisional application or the suspension of agreements, or the establishment of the Community position in a body set up by an agreement.’

5. The contested decision explains the reasons for adopting a common position in recitals 2 to 4 in its preamble:

‘(2) Amendments to the Appendices to the Convention and certain resolutions of the Conference of the Parties will generally affect the Community legislation concerned and may require amendments thereto.

(3) Due to the fact that the “Gaborone” amendment to CITES has not entered into force, the Community is not yet a contracting party to the Convention.

(4) In such circumstances, where Community rules have been established for the attainment of the objectives of the Treaty, Member States cannot outside of the framework of the Community institutions assume obligations which might affect those rules or alter their scope.’

6. The decision determines, in its two articles:

‘Article 1

The position of the Community, as regards areas within the Community’s field of competence, to be expressed by Member States acting jointly in the interest of the Community, at CITES COP 14, shall be in accordance with the Annexes to this Decision.

Article 2

Where new scientific or technical information presented after the adoption of this Decision and before or during COP 14 is likely to affect the position referred to in Article 1, or where new proposals are made at that meeting on which there is not yet a Community position, the Community position as regards areas within the Community’s field of competence shall be established by means of on-the-spot coordination before the COP is called to vote on those proposals.’

III – Background to the dispute

7. The contested decision served, internally within the Community, to prepare the position to be represented by the Member States at the 14th meeting of the Conference of the Parties to CITES.

8. CITES is an international convention. Its aim is to protect endangered species of fauna and flora through controls on international trade in specimens of those species. (3)

9. The European Community has not yet become a party to the convention. (4) Its accession depends on an amendment to CITES which has not yet come into force. At present, therefore, the European Community is only an observer at meetings of the Conference of the Parties to CITES. However, since 1982 the Community has autonomously adopted measures through which it performs within the Community the obligations of the Member States under CITES as if it were itself a contracting party to the convention. (5)

10. The most recent measure for implementing CITES is Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein. (6) It was adopted on the basis of Article 130s(1) of the EC Treaty (now Article 175(1) EC).

11. The 14th meeting of the Conference of the Parties to CITES took place in The Hague from 3 to 15 June 2007. The subject-matter of the meeting included votes on amendments to the appendices to the convention in which the species protected are listed. (7)

12. On 4 April 2007, the Commission adopted a proposal for a Council decision establishing the position to be adopted on behalf of the European Community with regard to certain proposals which were to be submitted for discussion and voting at that meeting. (8) It based that proposal for a decision on Article 175(1) EC (environment), Article 133 EC (commercial policy) and the second subparagraph of Article 300(2) EC.

13. The Council thereupon on 24 May 2007 unanimously adopted the contested decision, which was entitled ‘Council Decision’, (9) but without stating a legal basis. (10)

14. As the Commission submitted without being contradicted, the Council did not specify a legal basis because agreement could not be reached on the legal basis to be stated. Some representatives were said to have opposed the double substantive legal basis in the form of Articles 175(1) EC and 133 EC and proposed referring to Article 175(1) EC alone. Others rejected the procedural legal basis of the second subparagraph of Article 300(2) EC.

15. The Commission took the view that a reference to a legal basis was necessary and insisted before the Council decision was taken on an express reference to Article 133 EC, Article 175(1) EC and the second subparagraph of Article 300(2) EC.

IV – Procedure before the Court

16. By application of 1 August 2007, the Commission brought an action under Article 230 EC against the ‘Council Decision of 24 May 2007 establishing the position to be adopted on behalf of the European Community with regard to certain proposals submitted to the 14th meeting of the Conference of the Parties (COP 14) to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), The Hague, Netherlands, 3 to 15 June 2007’.

17. The Commission claims that the Court should:

– annul that decision; and

– order the Council to pay the costs.

18. The Council contends that the Court should:

– dismiss the application;

– in the alternative, should the Court annul the contested decision, declare that the effects of the decision are definitive; and

– order the Commission to pay the costs.

19. By order of the President of the Court of 20 November 2007, the United Kingdom of Great Britain and Northern Ireland was given leave to intervene in support of the Council.

20. The Commission’s action was the subject of a written procedure before the Court, followed by a hearing on 4 March 2009.

V – Legal assessment

A – Admissibility

21. The first point to discuss is whether the decision at issue in the present case is in fact an act against which an action may be brought under Article 230 EC. This must be examined by the Court of its own motion.

22. A decision of the Council defining the position of the Community undoubtedly constitutes an act against which an action may be brought under Article 230 EC. Under Article 230 EC, acts of the Council are subject to review by the Court, and it is settled case-law that an action for annulment is available against all measures of the institutions which are intended to have legal effects, whatever their nature or form. (11)

23. It is otherwise with a decision of the representatives of the Member States meeting within the Council, by which the Member States coordinate their external action. Such a decision does not constitute an act amenable to review under the first paragraph of Article 230 EC. (12) It is not an act of the Council but a joint act of representatives of the Member States.

24. The subject of the present dispute is not the usual case of the determination of a position of the Community in connection with a convention to which the Community is a party. On the contrary, the Community is precisely not a party to CITES. Since the Community cannot therefore take part in the CITES meeting as a contracting party, the contested measure does not establish the position to be adopted by the Community, but the position to be adopted at the meeting by the Member States as the only...