Opinion of the Advocate General — ECLI:EU:C:2003:152
Date: 2003-03-13
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Taxation;Transport
Procedure: Action for annulment - successful

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 — Reference to the main 
or predominant purpose or component — Inseparable purposes — Joint legal basis 
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SUMMARY — CASE C-211/01 
2. International agreements — Conclusion — EC/Bulgaria Agreement and EC/Hungary 
Agreement on the carriage of goods by road and combined transport — Agreements 
falling principally under transport policy — Predominating over harmonisation of 
fiscal laws — Legal basis — Article 71 EC in conjunction with Article 300(3) EC — 
Conclusion on the basis of Article 93 EC — Unlawfulness 
(Arts 71, 93 and 300(3) EC; EC/Bulgaria agreement; EC/Hungary Agreement) 
3. Actions for annulment — Judgment annulling a measure — Effects — Limitation by 
the Court — Case of a decision concerning the conclusion of an international 
agreement 
(Art. 231, second para., EC; Council Decisions 2001/265 and 2001/266) 
1. The choice of legal basis for a Com­
munity measure must rest on objective 
factors amenable to judicial review, 
which include in particular the aim and 
the content of the measure. If examin­
ation of such a measure reveals that it 
pursues a twofold purpose or that it 
has a twofold component and if one of 
these 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. 
By way of exception, if it is established 
that the measure simultaneously pur­
sues several objectives which are insep­
arably linked without one being sec­
ondary and indirect in relation to the 
other, the measure must be founded on 
the corresponding different legal bases. 
(see paras 38-40) 
2. Even accepting that the harmonisation 
of the laws of the Member States 
achieved through Article 8 of the 
agreements concluded between the 
European Community on the one hand 
and the Republic of Bulgaria and the 
Republic of Hungary on the other, 
establishing certain conditions for the 
carriage of goods by road and the 
promotion of combined transport, is 
necessary in order to ensure the estab­
lishment and the functioning of the 
internal market, as required under 
Article 93 EC if that article is to be 
taken as the legal basis for a Commu­
nity measure, in any event the aspect of 
those agreements which concerns the 
harmonisation of fiscal laws is, in the 
light of their aim and their content, 
only secondary and indirect in nature 
compared with the transport policy 
objective which they pursue. The prin­
ciple of equal treatment in the area of 
road vehicle taxation and other fiscal 
charges set out in Article 8(1) and the 
various fiscal exemptions laid down in 
Article 8(2) and (4) are closely linked 
to the simplification of transit through 
Bulgaria and Hungary for the purpose 
of facilitating the carriage of goods 
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COMMISSION v COUNCIL 
between Greece and other Member 
States. Moreover, Article 2 of the 
agreements, concerning their scope, 
characterises fiscal measures as 'sup­
porting measures'. It follows that the 
Council should have used Article 71 
EC alone, in conjunction with 
Article 300(3) EC, as the legal basis 
for the decisions on the conclusion of 
the agreements. 
Since Article 93 EC is referred to as the 
legal basis for the decisions in question, 
they must be annulled, since, in prin­
ciple, the incorrect use of a Treaty 
article as a legal basis which results in 
the substitution of unanimity for quali­
fied majority voting in the Council 
cannot be considered a purely formal 
defect since a change in voting method 
may affect the content of the act 
adopted. 
(see paras 48-50, 52-53) 
3. In order to avoid any legal uncertainty 
as regards the applicability of the 
international commitments entered 
into by the Community within the 
Community's legal order, the effects 
of Decisions 2001/265 and 2001/266 
concerning the conclusion of agree­
ments between the European Commu­
nity on the one hand and the Republic 
of Bulgaria and the Republic of Hun­
gary on the other, establishing certain 
conditions for the carriage of goods by 
road and the promotion of combined 
transport, must be maintained until the 
measures necessary to implement the 
judgment annulling them have been 
adopted. The content of international 
agreements cannot be amended unilat­
erally, without new negotiations being 
undertaken by the contracting parties. 
(see paras 55, 57) 
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