# C_2012073EN.01002302.xml

| 10.3.2012 | EN | Official Journal of the European Union | C 73/23 |
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10.3.2012

EN

Official Journal of the European Union

C 73/23

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Action brought on 18 January 2012 — European Commission v Council of the European Union

(Case C-28/12)

2012/C 73/40

Language of the case: English

Parties

Parties

Applicant: European Commission (represented by: G. Valero Jordana, K. Simonsson, S. Bartelt, Agents)

Applicant:

Defendant: Council of the European Union

Defendant:

The applicant claims that the Court should:

The applicant claims that the Court should:

| — | annul the Decision of the Council and of the Representatives of the Governments of the Member States of the European Union, meeting within the Council of 16 June 2011 on the signing, on behalf of the Union, and provisional application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part; and on the signing, on behalf of the Union, and provisional application of the Ancillary Agreement between the European Union and its Member States, of the first part, Iceland, of the second part, and the Kingdom of Norway, of the third part, on the application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part (2011/708/EU) (1); |
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annul the Decision of the Council and of the Representatives of the Governments of the Member States of the European Union, meeting within the Council of 16 June 2011 on the signing, on behalf of the Union, and provisional application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part; and on the signing, on behalf of the Union, and provisional application of the Ancillary Agreement between the European Union and its Member States, of the first part, Iceland, of the second part, and the Kingdom of Norway, of the third part, on the application of the Air Transport Agreement between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part (2011/708/EU) (1);

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| — | order the effects of Decision 2011/708/EU to be maintained; |
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order the effects of Decision 2011/708/EU to be maintained;

| — | order the Council to pay the costs. |
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order the Council to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | By way of the present application the Commission seeks the annulment of the ‘Decision of the Council and of the Representatives of the Governments of the Member States of the European Union, meeting within the Council’ of 16 June 2011 (Decision 2011/708/EU) (hereinafter referred to as ‘the contested decision’ or ‘the contested measure’) which was adopted in the field of air transport. It concerns the signing and provisional application of the accession of Iceland and the Kingdom of Norway to the Air Transport Agreement between the United States, of the one part, and the EU and its Member States, of the other part, as well as the signing and provisional application of the Ancillary Agreement thereto. |
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1.

By way of the present application the Commission seeks the annulment of the ‘Decision of the Council and of the Representatives of the Governments of the Member States of the European Union, meeting within the Council’ of 16 June 2011 (Decision 2011/708/EU) (hereinafter referred to as ‘the contested decision’ or ‘the contested measure’) which was adopted in the field of air transport. It concerns the signing and provisional application of the accession of Iceland and the Kingdom of Norway to the Air Transport Agreement between the United States, of the one part, and the EU and its Member States, of the other part, as well as the signing and provisional application of the Ancillary Agreement thereto.

| 2. | The Application is founded on the following three pleas in law: |
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2.

The Application is founded on the following three pleas in law:

| 3. | The Commission argues, first, that adopting the contested decision the Council has violated Article 13 (2) of the Treaty on European Union (TEU) in conjunction with Article 218 (2) and (5) of the Treaty on the Functioning of the European Union (TFEU), in so far as it transpires from Article 218 (2) and (5) TFEU that the Council is the institution designated to authorise the signing and provisional application of agreements. Therefore, the decision should have been solely taken by the Council and not also by the Member States, meeting within the Council. |
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3.

The Commission argues, first, that adopting the contested decision the Council has violated Article 13 (2) of the Treaty on European Union (TEU) in conjunction with Article 218 (2) and (5) of the Treaty on the Functioning of the European Union (TFEU), in so far as it transpires from Article 218 (2) and (5) TFEU that the Council is the institution designated to authorise the signing and provisional application of agreements. Therefore, the decision should have been solely taken by the Council and not also by the Member States, meeting within the Council.

| 4. | With its second plea, the Commission argues that by adopting the contested decision, the Council violated the first subparagraph of Article 218 (8) TFEU in conjunction with Article 100 (2) TFEU pursuant to which the Council shall act by qualified majority. The decision of the Member States, meeting within the Council, is not a decision of the Council, but an act taken by the Member States collectively as members of their governments and not in their capacity as members of the Council. Due to its nature, such an act requires unanimity. As a result, taking both decisions as one and making it subject to unanimity divests the qualified majority rule set out in the first subparagraph of Article 218 (8) TFEU of its very nature. |
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4.

With its second plea, the Commission argues that by adopting the contested decision, the Council violated the first subparagraph of Article 218 (8) TFEU in conjunction with Article 100 (2) TFEU pursuant to which the Council shall act by qualified majority. The decision of the Member States, meeting within the Council, is not a decision of the Council, but an act taken by the Member States collectively as members of their governments and not in their capacity as members of the Council. Due to its nature, such an act requires unanimity. As a result, taking both decisions as one and making it subject to unanimity divests the qualified majority rule set out in the first subparagraph of Article 218 (8) TFEU of its very nature.

| 5. | Finally, the Council infringed the objectives set out in the Treaties and the principle of sincere cooperation laid down in Article 13 (2) TEU. The Council should have exercised its powers so as not to circumvent the institutional framework of the Union and the Union procedures set out in Article 218 TFEU and should have done so in conformity with the objectives set out in the Treaties. |
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5.

Finally, the Council infringed the objectives set out in the Treaties and the principle of sincere cooperation laid down in Article 13 (2) TEU. The Council should have exercised its powers so as not to circumvent the institutional framework of the Union and the Union procedures set out in Article 218 TFEU and should have done so in conformity with the objectives set out in the Treaties.

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(1)  OJ L 283, p. 1

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