Opinion of the Advocate General — ECLI:EU:C:2018:364
Date: 2018-05-31
Language of the case: English
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment - successful

Summary — Judgment of the Court (Grand Chamber), 4 September 2018 1. International agreements — Agreements of the European Union — Decision of the Council establishing the position to be adopted on behalf of the European Union in a body set up by an international agreement — Procedure laid down in Article 218(9) TFEU — Determination of the applicable voting rule (Art. 31(1), first subpara., TEU; Art. 218(8) and (9) TFEU) 2. Acts of the institutions — Choice of legal basis — Criteria — EU measure pursuing a twofold aim or having a twofold component — Reference to the main or predominant aim or component — Decision 2017/477 — Adoption under Article 218(9) TFEU (Arts 31(1) and 37 TEU; Art. 218(9) TFEU; Council Decision 2017/477) 3. Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Maintenance of the effects of the contested measure — Justification on grounds of legal certainty (Art. 264, second para., TFEU; Council Decision 2017/477) 1. As Article 218(9) TFEU does not lay down any voting rule for the purpose of adoption by the Council of the categories of decisions which it covers, the applicable voting rule must be determined in each individual case by reference to Article 218(8) TFEU. This helps to ensure that the single procedure envisaged in Article 218(9) TFEU takes account of the specific features of each field of EU activity. In particular, the first case in which the second subparagraph of Article 218(8) TFEU requires the Council to act unanimously concerns the situation where the agreement covers a field for which unanimity is required for the adoption of an EU act, thereby establishing a link between the substantive legal basis of a decision adopted under that article and the voting rule applicable to the decision’s adoption. The link thereby ensured between the substantive legal basis of decisions adopted under the procedure laid down in Article 218(9) TFEU and the applicable voting rule for adopting those decisions helps, moreover, to preserve symmetry between procedures relating to internal activity of the European Union and procedures relating to its external activity, in compliance with the institutional balance established by the framers of the Treaties. Consequently, a decision by which the Council establishes the position to be adopted on behalf of the European Union in a body set up by an agreement, pursuant to Article 218(9) TFEU, and which concerns exclusively the CFSP must, in principle, be adopted unanimously, in accordance with the second subparagraph of Article 218(8) TFEU. On the other hand, if such a decision comprises several components or pursues a number of objectives, some of which fall within the CFSP, the voting rule applicable for its adoption must be determined in the light of its main or predominant purpose or component. Thus, if the main or predominant purpose or component of the decision falls within a field in respect of which unanimity is not required for the adoption of an EU measure, that decision must, in accordance with the first subparagraph of Article 218(8) TFEU, be adopted by qualified majority. (see paras 27-30, 38) 2. The links between (i) the Enhanced Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Kazakhstan, of the other part, and (ii) the CFSP are not sufficient for it to be held that the legal basis of the decision on the signing of that agreement, on behalf of the European Union, and its provisional application had to include Article 37 TEU. First, most of the provisions of that agreement fall within the common commercial policy of the European Union or its development cooperation policy and, second, the provisions of that agreement displaying a link with the CFSP, apart from being few in number in comparison with the agreement’s provisions as a whole, are limited to declarations of the contracting parties on the aims that their cooperation must pursue and the subjects to which that cooperation will have to relate, and do not determine in concrete terms the manner in which the cooperation will be implemented. Therefore, the Council was wrong to include Article 31(1) TEU in the legal basis of the decision on the position to be adopted on behalf of the European Union within the Cooperation Council established under that agreement and that decision was wrongly adopted under the voting rule requiring unanimity. (see paras 43-45, 47) 3. See the text of the decision. (see paras 50-52)