Opinion of the Advocate General — ECLI:EU:C:2009:249
Date: 2009-04-23
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;External relations;Provisions governing the Institutions;Commercial policy;Acts of the institutions
Procedure: Action for annulment - successful

summary, that in relation to the contested measure there was an obligation to refer to a legal basis. 2. Consequences of the failure to refer to a legal basis 71. It remains to discuss the consequences for the validity of the measure of the failure to refer to a legal basis. a) Can the legal basis be determined from other elements of the measure? 72. Failure to refer to a specific provision of the Treaty does not necessarily always constitute a breach of the obligation to state reasons under Article 253 EC entailing its invalidity. There is no breach of essential procedural requirements if the legal basis of a measure can be ascertained from other elements of the measure. (34) 73. In the present case, however, the legal basis cannot be ascertained without doubt from other elements of the measure. That follows, to begin with, from the mere fact that in the discussions in the Council there was controversy as to the correct legal basis and a wide variety of proposals were under discussion. The Commission submits on this point, without being contradicted, that a reference to Article 300(2) EC alone as a procedural legal basis, a reference to a substantive legal basis alone, and a combination of both were all discussed. The relevant material legal basis, either Article 175 EC alone or Article 175 EC in conjunction with Article 133 EC, was also discussed without a conclusion being reached. 74. In their written submissions to the Court, the Council and the Commission appear to assume that the second subparagraph of Article 300(2) EC is the procedural legal basis of the contested measure. That provision lays down the procedure for decisions 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’. 75. The question also arises in this connection of whether the second subparagraph of Article 300(2) EC applies only to situations in which the Community is a party to the international agreement. That view could be supported not least by a systematic interpretation, since Article 300(1) EC undoubtedly relates only to the conclusion of international agreements by the Community. In the case of CITES, however, it is not the Community itself which is a party, but only the Member States. 76. A teleological interpretation, on the other hand, suggests that the second subparagraph of Article 300(2) EC must also apply to agreements whose subject-matter falls within the competence of the Community, but to which the Community cannot yet become a party, because of the form taken by the international agreement. 77. Precisely because of this problem of interpretation, it cannot be assumed that the relevant legal basis is apparent without doubt from the contested measure. 78. Even on the assumption that the second subparagraph of Article 300(2) EC is the legal basis, it would not be sufficient to refer solely to that procedural provision as the legal basis. Rather, the measure also requires a reference to a substantive legal basis from which the extent of the Community’s powers and hence ultimately the scope given it by the EC Treaty appear. (35) 79. However, the substantive legal basis also cannot be derived without doubt from the contested measure, since several legal bases are possible in this case. They could be commercial policy, environment policy, or a combination of both. (36) 80. The legal basis on which it is based cannot therefore be ascertained without doubt from the measure. b) Is this no more than a purely formal error? 81. The Council considers that, if there is an obligation to state reasons, this should not entail invalidity as it is a purely formal defect of the measure. 82. In cases concerning a reference to an incorrect legal basis in addition to the legal basis that was actually correct, the Court has held that this will entail the annulment of the contested measure only if it is more than a purely formal defect, in other words, a defect which might affect the applicable procedure and hence ultimately the content of the measure. (37) 83. That line of case-law can hardly be applied to a case in which no legal basis at all has been stated. If no legal basis is mentioned, it is difficult even to establish which procedure was used and hence whether the failure to state the legal basis could have affected the applicable procedure. It is therefore correct, at least where the defect in the statement of reasons consists in the reference to a legal basis being omitted altogether, to assume that there is a defect that is so essential that it should always entail the annulment of the decision. As stated above, the reference to the legal basis is an indispensable requirement of the statement of reasons. 84. Finally, the following consideration also speaks against there being a purely formal error. As regards the substantive legal basis for the contested measure, the possibilities are Article 133 EC, Article 175 EC and a combination of the two. Article 133 EC lays down exclusive competence of the Community, whereas Article 175 EC provides for competence divided between the Community and the Member States. Making a choice between those two articles thus affects the distribution of powers between the Community and the Member States. For that reason too, the error in the present case cannot be a purely formal error. (38) 3. Interim conclusion 85. It must be concluded, in summary, that the contested measure must be annulled because of the lack of a reference to a legal basis. VI – Limitation of the effects of an annulment 86. The Council has submitted that, in the event that the contested decision is annulled, its effects should be maintained. That submission should be accepted. 87. Under the second paragraph of Article 231 EC, the Court may, if it considers it necessary, state which of the effects of a measure it has annulled are to be considered as definitive. That provision, according to its wording, actually relates only to regulations, but the Court has applied it by analogy to decisions. (39) 88. In the present case, maintaining the effects of the contested decision is justified because the 14th meeting of the Conference of the Parties to CITES has already taken place and decisions were taken at that meeting. It is true that the binding effect in international law of those decisions for the Member States would not be changed by the annulment of a preliminary decision establishing the position of the Community, since infringements of internal provisions in the preparation of a position to be represented at an international conference are in principle irrelevant, under the general rules of international law. However, legal uncertainties could arise within the Community regarding the points adopted at the conference. For the avoidance of any legal uncertainty, it is therefore necessary to maintain the effects of the contested decision. 89. The Council should not, however, be required to adopt a new decision without the errors of law complained of. As the 14th meeting of the Conference of the Parties to CITES has already taken place, it would be pointless to require the Council to establish again its position for that meeting. VII – Costs 90. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if costs have been applied for. Since the Council has been entirely unsuccessful and the Commission has applied for an order for costs, the Council must be ordered to pay the costs of the proceedings. 91. Under Article 69(4) of the Rules of Procedure, the United Kingdom as intervener must be ordered to bear its own costs. VIII – Conclusion 92. On the basis of the above considerations, I propose that the Court should: (1) annul 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; (2) order the effects of that decision to be maintained; (3) order the United Kingdom of Great Britain and Northern Ireland to bear its own costs, and the Council of the European Union otherwise to pay the costs of the proceedings. 1 – Original language: German. 2 – Washington Convention, referred to below as CITES. 3 – See recital 1 in the preamble to Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (OJ 1997 L 61, p. 1). 4 – The text of the convention was agreed by 80 States on 3 March 1970. The convention entered into force on 1 July 1975. 5 – Council Regulation (EEC) No 3626/82 of 3 December 1982 on the implementation in the Community of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (OJ 1982 L 384, p. 1). 6 – Cited in footnote 3. 7 – See recital 2 in the preamble to the contested decision. 8 – Proposal for a Council decision 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 (SEC(2007) 443 final). 9 – ‘Beschluss des Rates’ in German and ‘Décision du Conseil’ in French. 10 – The decision was not published in the Official Journal of the European Union. 11 – See merely Case 22/70 Commission v Council [1971] ECR 263 (‘ERTA’), paragraphs 39 and 42; Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9; and Case C‑521/06 P Athinaïki Techniki v Commission [2008] ECR I‑0000, paragraph 42. 12 – Compare on this point my Opinion of 26 March 2009 in Case C‑13/07 Commission v Council, point 33 et seq. 13 – See my Opinion in Case C‑13/07 Commission v Council, cited in footnote 12, point 35. 14 – Case 45/86 Commission v Council [1987] ECR 1493, paragraph 3. 15 – Case 53/85 AKZO v Commission [1986] ECR 1965, paragraph 21. 16 – Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 16. 17 – See merely Case 45/86 Commission v Council, cited in footnote 14, paragraph 9, and Case 203/86 Spain v Council [1988] ECR 4563, paragraph 36 et seq. 18 – Thus the Court makes reference to a majority of uniform language versions only as confirmation of an interpretation: see Case C‑298/94 Henke [1996] ECR I‑4989, paragraph 15. 19 – Any other method would be incompatible with the requirement of the uniform application of Community law: see merely Case C‑372/88 Cricket St Thomas [1990] ECR I‑1345, paragraph 18. 20 – See inter alia Case 30/77 Bouchereau [1977] ECR 1999, paragraph 13/14; Case C‑449/93 Rockfon [1995] ECR I‑4291, paragraph 28; Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 28; and Case C‑420/98 W.N. [2000] ECR I‑2847, paragraph 21. 21 – ERTA, cited in footnote 11, paragraph 11. 22 – See Case C‑233/94 Germany v ParliamentandCouncil [1997] ECR I‑2405, paragraph 25, referring to Case C‑41/93 France v Commission [1994] ECR I‑1829, paragraph 34. 23 – See merely ERTA, cited in footnote 11, paragraph 42; IBM v Commission, cited in footnote 11, paragraph 9; and Athinaïki Techniki v Commission, cited in footnote 11, paragraph 42. 24 – See Opinion 2/94 [1996] ECR I‑1759 (‘ECHR’), paragraph 24. 25 – Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). 26 – Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco v Council [2008] ECR I‑0000, paragraph 46. 27 – Sweden and Turco v Council, cited in footnote 26, paragraph 46. 28 – ERTA, cited in footnote 11, paragraph 44. 29 – At that time, the Parliament had no right to be informed, in contrast to the position under the second subparagraph of Article 300(2) EC. 30 – Case C‑325/91 France v Commission [1993] ECR I‑3283, paragraph 26. 31 – See Case C‑265/97 P VBA v Florimex and Others [2000] ECR I‑2061; Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑0000, paragraph 166; and Case C‑333/07 Regie Networks [2008] ECR I‑0000, paragraph 63. 32 – See on this point Case C‑378/00 Commission v Parliament and Council [2003] ECR I‑937, paragraph 66, where the Court held that the statement of reasons for a Community measure must appear in that measure itself. 33 – See merely Case 68/86 United Kingdom v Council [1988] ECR 855, paragraph 24, and Case C‑271/94 Parliament v Council [1996] ECR I‑1689, paragraph 24. 34 – Case 45/86 Commission v Council, cited in footnote 14, paragraph 9. 35 – See also my Opinion in Case C‑13/07 Commission v Council, cited in footnote 12, point 47. 36 – On the question of whether Articles 133 EC and 175(1) EC can be combined, see Case C‑178/03 Commission v Parliament and Council [2006] ECR I‑107, paragraph 59; Case C‑155/07 Parliament v Council [2008] ECR I‑0000, paragraphs 77 to 83; Case C‑94/03 Commission v Council [2006] ECR I‑1, paragraphs 52 to 55; my Opinions in those cases; and the Opinion of Advocate General Poiares Maduro of 26 March 2009 in Case C‑411/06 Commission v Parliament and Council, point 6. 37 – See Case 165/87 Commission v Council [1988] ECR 5545, paragraphs 19 and 20, and Case C‑210/03 Swedish Match [2004] ECR I‑11893, paragraph 44 and the case-law cited. 38 – See on this point the Opinion of Advocate General Poiares Maduro in Case C-411/06 Commission v Parliament and Council, cited in footnote 36, point 7. 39 – Case C‑22/96 Parliament v Council [1998] ECR I‑3231, paragraph 42, and Case C‑155/07 Parliament v Council, cited in footnote 36, paragraph 87.