Opinion of the Advocate General — ECLI:EU:C:2015:43
Date: 2015-01-29
Language of the case: English
Subject matter: Transport
Procedure: Action for annulment - successful

Summary — Judgment of the Court (Grand Chamber), 28 April 2015 1. Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Decision of the Council and the Member States authorising the signing and the provisional application of a mixed international agreement — Included (Art. 263, second para., TFEU; Decision 2011/708 of the Council and of the Representatives of the Governments of the Member States) 2. Actions for annulment — Actions of the Member States, the Parliament, the Council and the Commission — Admissibility not conditional on demonstrating an interest in bringing proceedings (Art. 263, second para., TFEU) 3. International agreements — Competences of the European Union and of the Member States — Joint decision of the Council and the Member States on the signing of a mixed agreement on behalf of the European Union and its provisional application at national level — Not permissible — Obligation to comply with the division of powers and the procedural and voting rules laid down in the Treaty (Art. 13(2) TEU; Art. 218(2), (5) and (8) TFEU; Decision 2011/708 of the Council and of the Representatives of the Governments of the Member States) 4. Actions for annulment — Judgment annulling an act — Effects — Limitation by the Court — Maintaining the effects of the contested act until its replacement within a reasonable period — Justification on grounds of legal certainty (Art. 264, second para., TFEU; Decision 2011/708 of the Council and of the Representatives of the Governments of the Member States) 1. An action for annulment under Article 263 TFEU must be available in the case of all measures adopted by the EU institutions, irrespective of their nature or form, provided that they are intended to have legal effects. A decision of the Council and of the Representatives of the Governments of the Member States on the signing, on behalf of the European Union, of an agreement under which third States accede to an international agreement concluded by the European Union and of an ancillary agreement, and on the provisional application of those agreements by, first, the European Union and, second, the Member States, must be regarded as an act of the Council against which an action for annulment may be brought, since the Council has participated in the decisions made in respect of all of those matters. (see paras 14, 15, 17) 2. See the text of the decision. (see para. 18) 3. As provided in Article 13(2) TEU, each institution must act within the limits of the powers conferred on it by the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The rules regarding the manner in which the EU institutions arrive at their decisions are laid down in the Treaties and are not at the disposal of the Member States or of the institutions themselves. In the case of a decision authorising the signing of an agreement between the European Union and third States or international organisations and, if necessary, its provisional application by the European Union, under Article 218(5) TFEU no competence is granted to the Member States as the decision must be adopted by the Council. Accordingly, it is necessary to annul a decision of the Council and of the Representatives of the Governments of the Member States, authorising the signing of a mixed agreement on behalf of the European Union and providing for its provisional application, which in fact merges two different acts, namely, on the one hand, an act relating to the signing of that agreement on behalf of the European Union and its provisional application by the latter and, on the other, an act relating to the provisional application of the agreement by the Member States, without it being possible to discern which act reflects the will of the Council and which the will of the Member States. In so doing, the Council has been involved, as an EU institution, in the adoption of the act concerning the provisional application of a mixed agreement by the Member States although such an act falls within the scope of, first of all, the internal law of each of those States and, then, international law. Moreover, since Article 218(8) TFEU provides that the Council must act, on behalf of the European Union, by a qualified majority, the two different acts, brought together in that decision, cannot be validly adopted under a single procedure. The act concerning the provisional application of a mixed agreement by the Member States entails consensus of the representatives of those States, and therefore their unanimous agreement. Furthermore, whilst it is true that in the field of mixed agreements it is essential to ensure close cooperation between the Member States and the EU institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into, that principle cannot, however, justify the Council setting itself free from compliance with the procedural rules and voting arrangements laid down in Article 218 TFEU. (see paras 41, 42, 44, 48-50, 52, 54, 55) 4. The effects of an act contested in an action before the Court of Justice may be maintained on grounds of legal certainty, in particular where the immediate effects of its annulment would give rise to serious negative consequences and the lawfulness of such an act is contested not because of its aim or subject-matter, but on grounds of lack of competence or infringement of an essential procedural requirement. That is so in the case of Decision 2011/78 on the signing, on behalf of the European 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, the annulment of which with immediate effect would be liable to give rise to serious consequences for the relations of the European Union with the third States concerned and for the businesses which operate on the air transport market and have been able to benefit from the provisional application of that agreement. (see paras 60, 61)