Opinion of the Advocate General — ECLI:EU:C:2002:486
Date: 2002-09-12
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;External relations
Procedure: Action for annulment - successful

Summary 86. By way of summary, the Energy Star Agreement contains aspects relating both to trade and to environmental protection. The agreement of common energy-efficiency specifications for certain items of office equipment, of a common logo for the labelling of such products which comply with the specification and of a procedure for the mutual recognition of registrations has a direct impact on trade, since trade in those products is facilitated. On the other hand, agreement on those matters has only an indirect impact on the environment since energy savings depend on how manufacturers and consumers actually behave. The Energy Star Agreement therefore primarily relates to trade and the decision approving it thus had to be based on Article 133 EC. (6) In the alternative: the applicability of Article 174 EC 87. Purely in the alternative, should the Court not follow the foregoing analysis but regard the Energy Star Agreement as a primarily environmental measure, it is also necessary to consider briefly the issue, upon which the parties disagree, as to whether in that case Article 174 EC or Article 175 EC constitutes the appropriate legal basis for the decision approving the agreement. 88. Article 174(4) EC must be interpreted as forming the legal basis only for legal measures which establish the details of Community cooperation with third countries and international organisations in the field of environmental protection. It was thus the legal basis for Council Decision 98/216/EC of 9 March 1998 on the conclusion, on behalf of the European Community, of the United Nations Convention to combat desertification in countries seriously affected by drought and/or desertification, particularly in Africa. (47) 89. It is true that the Energy Star Agreement also relates to cooperation between the two management entities (the Commission and the EPA) entrusted with coordinating the programmes (see in particular Articles V(4), VI, IX and X). However, the agreement's content extends beyond those issues of administrative organisation in that the agreement provides for uniform energy-efficiency specifications, a uniform logo and the mutual recognition of registrations. 90. In this connection, the Court, citing existing case-law, held in the Opinion on the Cartagena Protocol that Article 174 EC defines the objectives to be pursued in the context of environmental policy, while Article 175 EC constitutes the legal basis on which Community measures are adopted. (48) In so far as an agreement extends beyond the scope of Article 174(4) EC, as is the case here, Article 175 EC should therefore be used as the legal basis. 91. Accordingly, should the Court place the agreement within the scope of environmental protection, Article 175 EC is the legal basis for the decision concerning its conclusion. VI - Costs 92. Under Article 69(2) of the Rules of Procedure, the unsuccessful party must pay the costs if they have been applied for in the successful party's pleadings. Since the Council is the unsuccessful party and the Commission has applied for costs, the Council is to be ordered to pay the costs. VII - Conclusion 93. On the basis of the foregoing arguments, I propose that the Court should: (1) annul Council Decision 2001/469/EC of 14 May 2001 concerning the conclusion on behalf of the European Community of the Agreement between the Government of the United States of America and the European Community on the coordination of energy-efficient labelling programs for office equipment; (2) order the Council to pay the costs. 1: - Original language: German. 2: - OJ 2001 L 332, p. 1. 3: - COM(2000) 18 final of 28 January 2000, Proposal for a Regulation of the European Parliament and of the Council on a Community energy efficiency labelling programme for office and communication technology equipment (OJ 2000 C 150 E, p. 73). 4: - See the overview on the internet at www.energystar.gov/products. 5: - Proposal for a Council Decision concerning the conclusion on behalf of the European Community of an agreement between the United States of America and the European Community on the co-ordination of energy-efficient labelling programmes (COM(1999) 328 final of 1 July 1999; OJ 1999 C 274 E, p. 16). The text of the original proposal cited Articles 130 EC and 300(2) EC as the legal basis. However, the Commission subsequently corrected this, stating that Articles 133 EC and 300(2) EC were meant. In its discussions the Council assumed that the Commission proposal was based on Articles 133 EC and 300(2) EC, as is apparent from Council document 8663/00 submitted as Annex 3 to the application. The examination which follows is therefore to be carried out on that premiss. 6: - Decision of 14 December 2000, item 8 in the list of A points of the Council agenda (Council document 14408/00) submitted as Annex 4 to the application. 7: - Council Decision 2001/469/EC of 14 May 2001 concerning the conclusion on behalf of the European Community of the Agreement between the Government of the United States of America and the European Community on the coordination of energy-efficient labelling programs for office equipment (OJ 2001 L 172, p. 1). 8: - In particular Opinion 1/78 concerning the International Agreement on Natural Rubber [1979] ECR 2871, paragraph 45, and the judgment in Case 45/86 Commission v Council [1987] ECR 1493, paragraph 19. 9: - The Commission relies on Case C-62/88 Greece v Council [1990] ECR I-1527, paragraphs 18, 19 and 20, Case C-300/89 Commission v Council [1991] ECR I-2867, paragraph 22, and Case C-405/92 Mondiet [1993] ECR I-6133, paragraphs 26, 27 and 28. 10: - OJ 1994 L 336, p. 40, approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1). 11: - The statement is annexed to Council document 8421/01 of 3 May 2001 which was lodged as Annex 6 to the application. 12: - Regulation (EC) No 1980/2000 of the European Parliament and of the Council of 17 July 2000 on a revised Community eco-label award scheme (OJ 2000 L 237, p. 1). 13: - The Commission refers to Case C-268/94 Portugal v Council [1996] ECR I-6177, paragraphs 37, 38 and 39. 14: - See point 1 of the diplomatic note from the EC to the USA (OJ 2001 L 172, p. 31) and point 1 of the diplomatic note from the USA to the EC (OJ 2001 L 172, p. 32). 15: - The Council cites in this connection the judgment in Case C-187/93 Parliament v Council [1994] ECR I-2857. 16: - Council Decision 88/540/EEC of 14 October 1988 concerning the conclusion of the Vienna Convention for the protection of the ozone layer and the Montreal Protocol on substances that deplete the ozone layer (OJ 1988 L 297, p. 8). 17: - Council Decision 93/98/EEC of 1 February 1993 on the conclusion, on behalf of the Community, of the Convention on the control of transboundary movements of hazardous wastes and their disposal (Basel Convention) (OJ 1993 L 39, p. 1). 18: - 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) and 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). 19: - Council Regulation (EEC) No 880/92 of 23 March 1992 on a Community eco-label award scheme (OJ 1992 L 99, p. 1). 20: - Commission Decision 1999/205/EC of 26 February 1999 establishing ecological criteria for the award of the Community eco-label to personal computers (notified under document number C(1999) 425) (OJ 1999 L 70, p. 46). 21: - Cited in footnote 12. 22: - Opinion 2/00 [2001] ECR I-9713, paragraphs 23, 24 and 25, and the judgment in Case C-36/98 Spain v Council [2001] ECR I-779. 23: - Opinion 2/00 on the Cartagena Protocol, cited in footnote 22. 24: - Judgments in Portugal v Council, cited in footnote 13, paragraph 22, Case C-269/97 Commission v Council [2000] ECR I-2257, paragraph 43, and Spain v Council, cited in footnote 22, paragraph 58; Opinion 2/00, cited in footnote 22, paragraph 22. 25: - Judgments in Case C-42/97 Parliament v Council [1999] ECR I-869, paragraph 40, and Spain v Council, cited in footnote 22, paragraph 59; Opinion 2/00, cited in footnote 22, paragraph 23. 26: - See, to that effect, judgments in Case 165/87 Commission v Council [1988] ECR 5545, paragraph 11, Case C-300/89 Commission v Council, cited in footnote 9, paragraph 17, and Joined Cases C-164/97 and C-165/97 Parliament v Council [1999] ECR I-1139, paragraph 14, and Opinion 2/00, cited in footnote 22, paragraph 23. 27: - Opinion 1/78, cited in footnote 8, paragraph 44. 28: - Opinion 1/94 [1994] ECR I-5267, paragraph 41. 29: - See Greece v Council, cited in footnote 9, paragraph 20, Case C-300/89 Commission v Council, cited in footnote 9, paragraph 22, and Mondiet, cited in footnote 9, paragraphs 26, 27 and 28. 30: - Articles cited without further indication are articles of the Energy Star Agreement. 31: - Council Decision 96/664/EC of 21 November 1996 on the adoption of a multiannual programme to promote the linguistic diversity of the Community in the information society (OJ 1996 L 306, p. 40). The legality of the decision was confirmed in Case C-42/97 Parliament v Council, cited in footnote 25. 32: - See paragraphs 62 and 63 of the judgment. 33: - Commission Decision 2001/686/EC of 22 August 2001 establishing the ecological criteria for the award of the Community eco-label to personal computers (OJ 2001 L 242, p. 4, in particular p. 7, footnote 1). 34: - COM(1999) 328 final of 1 July 1999 (cited in footnote 5), p. 3, paragraph 3. 35: - OJ 1994 L 336, p. 86. 36: - COM(1999) 328 final of 1 July 1999 (cited in footnote 5), p. 3, paragraph 3. 37: - Proposal for a Council Decision concerning the conclusion, on behalf of the Community, of the Cartagena Protocol on Biosafety (COM (2002) 127 final of 13 March 2002; OJ 2002 C 181 E, p. 258) and Council Decision 2002/628/EC of 25 June 2002 (OJ 2002 L 201, p. 48). 38: - Opinion 2/00, cited in footnote 22, paragraphs 26, 27 and 28. 39: - Cited in footnote 19. 40: - Cited in footnote 12. 41: - See the overview on the internet at www.energystar.gov/products. 42: - Commission Decision 1999/205/EC of 26 February 1999 establishing ecological criteria for the award of the Community eco-label to personal computers (OJ 1999 L 70, p. 46). 43: - Commission Decision 2001/686/EC of 22 August 2001, cited in footnote 33. 44: - See OJ 2001 L 242, p. 7, footnotes 1, 3 and 4. 45: - Council Directive 92/75/EEC of 22 September 1992 on the indication by labelling and standard product information of the consumption of energy and other resources by household appliances (OJ 1992 L 297, p. 16). 46: - Case C-83/94 Leifer and Others [1995] ECR I-3231, paragraph 13. 47: - OJ 1998 L 83, p. 1. 48: - See Opinion 2/00, cited in footnote 22, paragraph 43.