Opinion of the Advocate General — ECLI:EU:C:2013:441
Date: 2013-06-27
Language of the case: French
Subject matter: External relations;Commercial policy;Freedom to provide services
Procedure: Action for annulment - successful

Summary 124. Both pleas in law raised by the Commission are therefore successful and each of them in itself justifies the annulment of the contested decision (Article 263(1) and (2) TFEU in conjunction with the first paragraph of Article 264 TFEU). D – Maintenance of the effects of the contested decision 125. If the Court annuls the contested decision, it should maintain its effects pursuant to the second paragraph of Article 264 TFEU pending the adoption of a new decision on the correct legal basis. In this way any doubt at international level regarding the mandate of the Union’s authorised representatives to sign the Convention will be avoided, the legal effects of any previous signing cannot be called into question, and there will be no delays in the ratification process. 126. Moreover, on the basis of their duty of sincere cooperation with the Union (Article 4(3) TEU), the Member States must refrain from taking any measure which could undermine the Union’s exclusive competence. (68) This means that Member States which have not yet signed the Convention must continue to refrain from doing so and that Member States which have already signed the Convention must not ratify it. VII – Costs 127. Under Article 138(1) of the Rules of Procedure of 25 September 2012, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since, according to my proposed solution, the Council has been unsuccessful and the Commission has applied for costs, the Council must be ordered to pay the costs. On the other hand, France, the Netherlands, Poland, Sweden, the United Kingdom and the European Parliament, as interveners, must each bear their own costs in accordance with Article 140(1) of the Rules of Procedure. VIII – Conclusion 128. In the light of the foregoing considerations, I propose that the Court should: (1) annul Council Decision 2011/853/EU of 29 November 2011; (2) order that the effects of the annulled decision be maintained pending the adoption of a new decision on the correct legal basis; (3) order the Council of the European Union to pay its own costs and the costs incurred by the European Commission; (4) order the French Republic, the Kingdom of the Netherlands, the Republic of Poland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the European Parliament to bear their own costs. 1 – Original language: German. 2 – See Opinion 2/00 [2001] ECR I‑9713, paragraph 5; Opinion 1/08 [2009] ECR I‑11129, paragraph 110; and Case C‑370/07 Commission v Council [2009] ECR I‑8917, paragraph 47. 3 – OJ 2011 L 336, p. 2 (published by the Council of Europe in ETS No 178). 4 – Council Decision 2011/853/EU of 29 November 2011 on the signing, on behalf of the Union, of the European Convention on the legal protection of services based on, or consisting of, conditional access (OJ 2011 L 336, p. 1). 5 – It is common ground between the parties that Article 218(5) TFEU was the appropriate procedural legal basis, as was used in the contested decision. 6 – Recital 6 in the preamble to the contested decision. 7 – Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access (OJ 1998 L 320, p. 54). 8 – The ERTA doctrine dates back to Case 22/70 Commission v Council (‘ERTA’) [1971] ECR 263, paragraphs 15 to 19; a recent summary can be found, for example, in Opinion 1/03 [2006] ECR I‑1145, paragraphs 114 to 133. 9 – Report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions - Second Report on the implementation of Directive 98/84/EC, COM(2008) 593 final, submitted on 30 September 2008 (see section 4.2.4). 10 – Proposal for a Council Decision concerning the signing of the European Convention on the legal protection of services based on, or consisting of, conditional access, COM(2010) 753 final. 11 – Proposal for a Council Decision concerning the conclusion of the European Convention on the legal protection of services based on, or consisting of, conditional access, COM(2010) 755 final. 12 – Recital 6 in the preamble to the contested decision. 13 – Minutes of the 3128th meeting of the Council of the European Union held in Brussels on 28 and 29 November 2011 (Agenda item 11 with addenda). 14 – Poland and Sweden have made no claim for costs. 15 – The Netherlands and Poland did not participate in the hearing. 16 – See the first citation in the preamble to the contested decision. 17 – Case C‑300/89 Commission v Council [1991] ECR I‑2867, paragraph 10; Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 182; and Case C‑130/10 Parliament v Council [2012] ECR, paragraph 42. 18 – Recital 5 in the preamble to the contested decision. 19 – See also recital 6 in the preamble to the contested decision. 20 – See, to the same effect, with regard to Article 48 TFEU, my Opinion of 21 March 2013 in Case C‑431/11 United Kingdom v Council, pending before the Court, in particular points 47 and 48. 21 – See in particular Opinion 1/76 [1977] ECR 741, especially paragraphs 3 to 7; Opinion 1/94 [1994] ECR I‑5267, paragraphs 85, 88 and 89; Case C‑467/98 Commission v Denmark [2002] ECR I‑9519, paragraph 57; and Opinion 1/03, cited in footnote 8, paragraph 115. 22 – Case 165/87 Commission v Council [1988] ECR 5545, paragraphs 18 to 21; Joined Cases C‑184/02 and C‑223/02 Spain and Finland v Parliament and Council [2004] ECR I‑7789, paragraphs 42 to 44; Case C‑210/03 Swedish Match [2004] ECR I‑11893, paragraph 44; see also my Opinion in Case C‑94/03 Commission v Council [2006] ECR I‑1, point 53; and my Opinion in Case C‑431/11 United Kingdom v Council, pending before the Court, points 79 to 81. 23 – Explanatory Report on the Convention (available in French and English on the website of the Council of Europe’s Treaty Office at http://www.conventions.coe.int, under heading ETS No 178), paragraphs 9 to 11. 24 – Recital 5 in the preamble to the contested decision. 25 – Opinion 1/03, cited in footnote 8, paragraph 130; see also Commission v Denmark, cited in footnote 21, paragraph 101. 26 – With regard to the similarity between the provisions of the Convention and those of the directive, see recitals 3 and 5 in the preamble to the contested decision. 27 – If examination of a measure reveals that it pursues two aims or that it has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the measure must be founded on a single legal basis, namely that required by the main or predominant aim or component (Case C‑155/07 Parliament v Council [2008] ECR I‑8103, paragraph 35, and Case C‑130/10 Parliament v Council, cited in footnote 17, paragraph 43; see also Case C‑155/91 Commission v Council [1993] ECR I‑939, paragraphs 19 and 21). 28 – See above, point 49 of this Opinion. 29 – Case C‑58/08 Vodafone and Others [2010] ECR I‑4999, paragraph 32; see also Case C‑491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I‑11453, paragraph 60; and Case C‑217/04 United Kingdom v Parliament and Council [2006] ECR I‑3771, paragraph 42. 30 – Vodafone and Others, cited in footnote 29, end of paragraph 32; see also Joined Cases C‑154/04 and C‑155/04 Alliance for Natural Health and Others [2005] ECR I‑6451, paragraph 28; and Case C‑380/03 Germany v Parliament and Council [2006] ECR I‑11573, paragraph 37. 31 – See again the case-law cited above in footnote 30. 32 – See above, point 49 of this Opinion. 33 – See points 40 to 61 of this Opinion. 34 – That is the case, for example, with the Agreement on Trade Related Aspects of Intellectual Property Rights, which applies within the framework of the World Trade Organisation (WTO) (‘TRIPS Agreement’, OJ 1994 L 336, p. 214); see in particular Part II of that Agreement. 35 – Case C-281/01 Commission v Council [2002] ECR I‑12049, end of paragraph 40 and end of paragraph 41; Case C‑347/03 Regione autonoma Friuli-Venezia Giulia and ERSA [2005] ECR I‑3785, paragraph 75; and Case C‑411/06 Commission v Parliament and Council [2009] ECR I‑7585, paragraph 71. 36 – Seventh recital in the preamble to the Convention. 37 – Recital 5 in the preamble to the contested decision. 38 – As the Commission states in paragraph 9 of each of its two Proposals for Council Decisions (cited above in footnotes 10 and 11), many European states which are not members of the European Union may provide havens for the development or distribution of devices for hacking into conditional access services, given that their legal system does not provide for sanctions against this very specific hacking activity. 39 – See again the TRIPS Agreement, in particular Part II. 40 – Sixth recital in the preamble to the Convention; see also paragraphs 2 and 3 of the Explanatory Report on the Convention. 41 – See above, point 56 of this Opinion. 42 – See the case-law cited above in footnote 27. 43 – Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice. 44 – Protocol on the position of Denmark. 45 – See my Opinion in Case C‑431/11 United Kingdom v Council, cited in footnote 22, points 73 and 74. 46 – See the case-law cited above in footnote 27. 47 – Protocol No 21 concerns the need for an express ‘opt-in’ for the United Kingdom and Ireland, whilst Protocol No 22 relates to the need for a declaration by Denmark that it wishes to implement a measure in national law. 48 – Case C‑130/10 Parliament v Council, cited in footnote 17, paragraph 80. 49 – Recital 6 in the preamble to the contested decision. 50 – Recital 6 in the preamble to the contested decision. 51 – Nevertheless, it may follow, from the perspective of international law, that the Union and its Member States are each bound by the Convention in its entirety, including those elements which do not fall within their respective internal Union competence. 52 – Opinion 1/75 [1975] ECR 1355, 1363 et seq., and Opinion 2/91 [1993] ECR I‑1061, paragraph 8. 53 – See also my Opinion of 26 March 2009 in Case C‑13/07 Commission v Council (‘Vietnam’), point 53. 54 – See my statements on the first plea in law in points 35 to 88 of this Opinion. 55 – In the preamble to the contested decision the Council states that the provisions of the Convention and of the directive are ‘almost identical’ (recital 3) or at least ‘similar’ (recital 5). 56 – Opinion 2/91, cited in footnote 52, paragraph 26, and Commission v Denmark, cited in footnote 21, paragraph 82. 57 – Commission v Denmark, cited in footnote 21, paragraph 130. 58 – See, on the one hand, Article 2 of the directive and, on the other, Article 2 of the Convention. 59 – See, on the one hand, Article 4 of the directive and, on the other, Article 4 of the Convention. 60 – To this effect, recital 6 in the preamble to the contested decision. 61 – Case C‑286/90 Poulsen and Diva Navigation [1992] ECR I‑6019, paragraph 31; similarly, Case C‑177/95 Ebony Maritime and Loten Navigation [1997] ECR I‑1111, paragraphs 32 and 33. 62 – See also recital 23 in the preamble to Directive 98/84, in which the seizure of illicit devices is even categorised under ‘other sanctions’ to which the directive is ‘without prejudice’. 63 – Opinion 2/91, cited in footnote 52, paragraphs 25 and 26; Commission v Denmark, cited in footnote 21, paragraphs 81 and 82; and Opinion 1/03, cited in footnote 8, paragraph 126. 64 – See the case-law cited above in footnote 8. 65 – Protocol on the exercise of shared competence. 66 – Opinion 1/03, cited in footnote 8, paragraph 126. 67 – See the references above in footnote 63. 68 – See Case C‑266/03 Commission v Luxembourg [2005] ECR I‑4805, paragraphs 57 to 67, also paragraphs 41 to 43; and Case C‑433/03 Commission v Germany [2005] ECR I‑6985, paragraphs 60 to 73, also paragraphs 43 to 45.