Opinion of the Advocate General — ECLI:EU:C:2018:362
Date: 2018-05-31
Language of the case: French
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment - unfounded

summary, the research components of the contested 2015 and 2016 decisions are therefore to be regarded as incidental, with the result that no research policy legal basis could be relied on in the adoption of those decisions, even in combination with other legal bases. 3. Preponderance of the environmental link over the fisheries aspect 88. The centre of interest in the present case is the delineation between environmental policy and fisheries policy. This aspect, which is rightly the main focus of the parties to the proceedings in Cases C‑626/15 and C‑659/16, has been addressed only peripherally in case-law previously, (49) with the result that it has not really been possible to develop clear, practicable criteria. The Court has simply found that a measure cannot be regarded as part of action on environmental matters merely because it takes account of environmental protection requirements, as consideration must be given to those requirements in all policy areas under the horizontal clause in the present Article 11 TFEU. (50) In addition, the Court recalled that the rules of the Treaties on environmental policy leave intact the powers held by the Union under other provisions of the Treaties. (51) 89. The Court has dealt much more frequently with the question of how the powers of the Union institutions in the field of the common commercial policy (Article 207(1) TFEU) are to be delineated from those in other policy areas, not least environmental policy (Article 192 TFEU). (52) It is settled case-law that the mere fact that an EU act is liable to have implications for trade with one or more third States is not enough for it to fall within the common commercial policy; on the other hand, such an act concerns commercial policy if it relates specifically to such trade in that it is essentially intended to promote, facilitate or govern such trade and has direct and immediate effects on it. (53) 90. These criteria can also be applied mutatis mutandis as a guide for the delineation between fisheries policy and environmental policy to be made in this case. If they are employed, the mere fact that an EU act has certain implications for fisheries is not enough for it to fall within the common fisheries policy. Such an act can be regarded as a genuine fisheries policy measure only if it – relates specifically to fisheries activity in that it is essentially intended to promote, facilitate or govern such activity, and – has direct and immediate effects on fisheries activity. 91. Conversely, an EU act cannot be regarded as part of environmental policy solely because it takes account of environmental protection requirements, as should always be the case under Article 11 TFEU, but only where environmental protection is the focus. 92. If regard is had to the aims, content and context (54) of the contested 2015 and 2016 decisions in the light of these criteria, it cannot be denied that, with their prohibitions and restrictions on fishing, the envisaged marine protected areas in the Antarctic have direct and immediate effects on fisheries activity. However, the emphasis is not on promoting, facilitating or even merely governing fishing in any of those marine protected areas; rather, following a whole series of environmental policy measures in certain sub-regions, fishing is completely prohibited there for several decades and is at most tolerated within certain limits in other sub-regions. 93. The main aim of the envisaged marine protected areas is to conserve, study and protect ecosystems, biodiversity and habitats in the Antarctic and to tackle the harmful effects of climate change in that region which is extremely important to the world’s climate. (55) The species to be protected are certainly not just those which are fished commercially, but also, for example, birds (including penguins) and sea mammals (such as seals and whales). 94. As far as content is concerned, the planned CCAMLR rules on the establishment of various marine protected areas admittedly pay particular attention to regulating the activity of fishing vessels, but such that fishing there is largely prohibited and is permitted only exceptionally, in some smaller sub-regions and subject to strict conditions. (56) It should also be stated that those rules are by no means restricted to fisheries activities but also, for example, prohibit the discharging or dumping of waste. (57) In addition, it is proposed to study how ecosystems develop in sub-regions of marine protected areas with fishing activities and in sub-regions without fishing activities, (58) which does not constitute a genuine fisheries policy measure. 95. The context of the envisaged marine protected areas is likewise not characterised solely by fisheries policy, but encompasses general environmental protection considerations. It is true that fishing plays a much more prominent role in the Canberra Convention than in other international agreements connected with the Antarctic Treaty, such as the Madrid Protocol. (59) As the Commission rightly states, the importance of fishing regulation with a view to a rational use of Antarctic marine living resources — including as a source of protein — under the Canberra Convention should not be underestimated (see Article II(2) and (3) of that Convention (60)). Nevertheless, under the Canberra Convention too, the Contracting Parties — that is to say, the members of the CCAMLR that decide on the establishment of marine protected areas in the Antarctic — have a responsibility for the protection of the Antarctic environment from all forms of harmful human interference which goes beyond the purely economic dimension (see Article V(2) of the Canberra Convention in conjunction with Article IX(1)(f) of the Antarctic Treaty (61)). Such interference of human origin can undoubtedly occur in areas other than fishing. The Council very rightly points to possible drilling operations to extract mineral resources. Furthermore, I think it conceivable that sooner or later the construction of wind farms could be discussed. 96. Against this background, the envisaged marine protected areas in the Antarctic to which the contested 2015 and 2016 decisions related are genuine environmental policy projects and not conservation measures under the common fisheries policy. 97. It may be that the environmental protection requirements, as noted by the Commission, also play an important role under the common fisheries policy and have produced a sustainable, ecosystem-based approach there (Article 2 of Regulation No 1380/2013), as required by the horizontal clause in Article 11 TFEU. Nevertheless, the Antarctic marine protected areas to which the contested 2015 and 2016 decisions were dedicated did not, according to their centre of gravity, constitute fisheries policy measures with an environmental conscience, but environmental protection measures with — very serious — implications for fishing. 98. The Council was therefore right not to base the contested 2015 and 2016 decisions on the Union’s powers for the conservation of marine biological resources under the common fisheries policy, but solely on environmental policy. 99. The situation here is therefore quite different from that in the pending case Deutscher Naturschutzring, (62) in which the establishment of a marine protected area in its entirety is not in dispute, but only specific measures to implement the requirements for that protected area in the field of fisheries. It makes sense to found specific implementing measures of this kind on the legal bases in the area of fisheries policy and other implementing measures with a more pronounced environmental character on environmental policy. 4. Outcome of the Commission’s first plea in law concerning the identification of a legal basis other than that favoured by the Commission 100. On the basis of my above statements, the Commission is not therefore successful in its claims that the substantive legal basis for the contested 2015 and 2016 decisions rests in the Union’s power for the conservation of marine biological resources under the common fisheries policy; rather the view taken by the Council and its interveners that the Union’s environmental policy powers were to be exercised is confirmed. 101. Nevertheless, it would be premature to reject the first plea in law in Cases C‑626/15 and C‑659/16 solely because in it the Commission erroneously relies on the exclusive Union competence for the conservation of marine biological resources under the common fisheries policy (Article 3(1)(d) TFEU), as the real, much more fundamental contention raised by the Commission in its first plea in law is different. As is evident from both its written and its oral submissions to the Court, the Commission alleges that in the contested 2015 and 2016 decisions the Council forced it to submit the documents at issue to the CCAMLR jointly on behalf of the Union and its Member States, although it would have been possible and sufficient to act on behalf of the Union alone. 102. As I will explain below, this central contention raised by the Commission can still hold even if, in accordance with the legal opinion of the Council and its interveners, the contested 2015 and 2016 decisions come under environmental policy and not the common fisheries policy favoured by the Commission. There is neither the legal necessity in environmental policy for the Member States to participate alongside the Union by way of mixed action in the bodies of the CCAMLR (see immediately below, section a) nor is there scope for voluntary participation by the Member States (see further below, section b). 103. The principle of ‘ne ultra petita’ does not prevent the Court from upholding the first plea in law in Cases C‑626/15 and C‑659/16 on a different ground from that mentioned by the Commission itself. The Court is not the ‘mouthpiece of the parties’. (63) Accordingly, it cannot be obliged to confine itself to the arguments put forward by the parties in support of their claims, or else it might be forced, in some circumstances, to base its decision on erroneous legal considerations. (64) (a) No legal necessity for the Member States to participate 104. It is true that under Article 4(1) in conjunction with Article 4(2)(e) TFEU environmental policy is among the shared competences which are conferred on neither the Union nor the Member States for exclusive use. Nevertheless, the existence of a shared competence does not necessarily mean that there would always have to be mixed action by the Union and its Member States in an external area, with the Union being absolutely reliant for its external action on participation by the Member States alongside it. 105. Advocate General Szpunar put it perfectly: (65) ‘shared competences’ and ‘mixed agreements’ (or, applied to the present case, ‘mixed external action’) are two separate issues. (66) 106. It may be that in the majority of cases where it acts alone on the international stage, the Union has an exclusive external competence under Article 3(1) or (2) TFEU. However, the existence of such an exclusive competence is not an absolute precondition for the Union to be able to enter into international agreements with third countries or to act in international bodies alone, that is, without the Member States alongside it. 107. Along these same lines, only recently in its judgment on International Carriage by Rail (the ‘COTIF judgment’), the Court expressly rejected the idea that in areas where the European Union and its Member States have shared competences, external Union competence cannot exist unless those shared competences have become exclusive competences under the mechanism of the Article 3(2) TFEU (in essence under the ERTA principle). (67) It is also clear from that judgment that international agreements can be approved by the Union alone even if they fall within an area of shared competence, provided the required majority can be mobilised for such action in the Council. (68) 108. There is a need for mixed action by the Union and its Member States on the international stage only where the Union itself does not have sufficient exclusive or shared competences to act alone in relation to third countries or in international bodies. Only if the Union does not have powers of its own is it absolutely necessary for the Member States to participate alongside the Union in international matters. (69) 109. There was no such need here, however. There is absolutely no dispute that in the present case, based on its powers in environmental policy, the Union had sufficient competences of its own to participate alone in the discussions and decisions in the CCAMLR on the establishment of marine protected areas in the Antarctic. When asked, the Council and its interveners were also unable to identify a single measure in connection with the marine protected areas in question for which the Union might lack the necessary competence in this case. 110. The Commission is therefore correct when it argues that, even if the contested 2015 and 2016 decisions come under the shared competences in environmental policy, there was no legal necessity for the documents at issue to be submitted to the CCAMLR and for the positions in question to be delivered in the CCAMLR jointly on behalf of the Union and its Member States. (b) No scope for voluntary participation by individual Member States 111. It remains to be considered whether, in view of the recourse to the Union’s powers in environmental policy there is still scope for the Member States to act voluntarily alongside the Union in the CCAMLR. This cannot meaningfully apply to all the Member States, however, but only those which are themselves actually members of the CCAMLR, (70) as only they may participate in the discussions and decisions of the CCAMLR. 112. The starting point for the considerations in this regard should be Article 2(2) TFEU, which describes the operation of the competences shared between the Union and its Member States. According to its wording, that provision applies not only to legislative activity, but generally to the adoption of legally binding acts, and can therefore also be effective in respect of decisions like the contested decisions in the field of the external action of the Union. 113. Under Article 2(2) TFEU, a characteristic of shared competences is that the Member States may exercise their competence to the extent that the Union has not exercised its competence (second sentence of Article 2(2) TFEU); the Member States may again exercise their competence to the extent that the Union has decided to cease exercising its competence (third sentence of Article 2(2) TFEU). 114. In the present case — despite the protestations to the contrary made by some parties to the proceedings at the hearing before the Court — there is no objective evidence amenable to review that the Council did not wish to exercise the Union’s existing environmental competences. (71) On the contrary, the contested 2015 decision authorises the Commission, with express recourse to environmental policy, to submit a reflection paper to the CCAMLR at its 34th annual meeting in 2015 (also) on behalf of the Union. Likewise having recourse to environmental policy, the contested 2016 decision formally established a position which was to be taken by the Union at the CCAMLR’s 35th annual meeting in 2016. It therefore simply cannot be argued that in the two contested decisions the Council did not exercise the Union’s environmental competence. 115. Nor is there any objective evidence amenable to review in this case that the Council exercised the Union’s environmental competences in the contested 2015 and 2016 decisions only partially for political reasons. It is true that in the absence of a legal obligation to take action the Council could certainly have determined in the present case that the Union would not make full use of its powers in environmental matters. However, it clearly did not take that path. Rather, the two contested decisions each related to the entirety of the measures to be discussed or decided at the CCAMLR’s annual meetings in 2015 and 2016 with a view to the establishment of the marine protected areas in question. It is not apparent anywhere in the contested decisions that the Union refrained from exercising its powers in environmental policy in respect of a specific element of the measures envisaged within the framework of the CCAMLR (72) or wished to leave those measures in the responsibility of the Member States. 116. It seems to me that the only reason why the Council ultimately advocated joint action in the CCAMLR on behalf of the Union and its Member States in the contested 2015 and 2016 decisions is that the Council erroneously (73) summarily equated shared competences and mixed action, but not that the Union had insufficient powers for specific elements of the measures to be discussed or decided in the CCAMLR or that the Union purposefully wished to refrain from exercising individual aspects of its powers. 117. Against this background, the Union must be considered not only to have had a competence in the field of environmental policy for all the measures to be discussed or decided in the CCAMLR, but also to have exercised that competence fully. The Member States were therefore prevented, pursuant to the second sentence of Article 2(2) TFEU, from exercising their own competences in respect of the same subjects, even only by acting alongside the Union in the CCAMLR. 118. The same conclusion must also be drawn from Article 191(4) TFEU. 119. The second subparagraph of Article 191(4) TFEU makes clear that Member States’ competence to negotiate in international bodies and to conclude international agreements is not prejudiced. However, as the wording of that clause makes clear (‘the previous subparagraph shall be without prejudice to Member States’ competence ...’ (74)), the Member States are guaranteed a residual environmental external competence only in relation to the subjects regulated in the first subparagraph of Article 191(4) TFEU, that is to say, in relation to the ‘arrangements for cooperation’ with the competent international organisations and third countries. That is not the situation in the present case, however, as the subject of the contested 2015 and 2016 decisions is not the ‘arrangements for cooperation’ between the Union and the CCAMLR, but specific substantive measures for the establishment of marine protected areas in the Antarctic. 120. A more extensive general reservation of competence to the Member States in environmental matters cannot be inferred from the second subparagraph of Article 191(4) TFEU. Otherwise the environmental competences would lose their character as competences shared between the Union and the Member States within the meaning of Article 2(2) TFEU and Article 4(1) in conjunction with Article 4(2)(e) TFEU and simply be turned into parallel competences which could be exercised at any time both by the Union and by the Member States, and possibly by both side by side. However, this is not compatible with the fact that, according to the will of the authors of the Treaties, the second subparagraph of Article 191(4) TFEU (formerly the second subparagraph of Article 130r(4) EC) is expressly without prejudice to the principles of the ERTA case-law, (75) which would be impossible in the case of parallel competences. 121. It would be conceivable at most for individual Member States to pursue the intention, on the basis of Article 193 TFEU, of committing to more stringent environmental standards than the Union at international level and, with that objective in view, to wish to contribute to discussions and decisions in international bodies on their own behalf. (76) However, there is also no objective evidence amenable to review in this regard in the present case. Rather, there was a consensus between the Union institutions and the Member States regarding the content of the measures envisaged within the framework of the CCAMLR for the establishment of marine protected areas. 122. Nor is voluntary participation by individual Member States alongside the Union on the basis of Article 4(3) TFEU permitted in this case. That provision does make clear that in areas including research the Member States are not prevented from exercising their competence even where the Union carries out activities of its own. However, as has already been explained above, (77)the discussions and measures at issue for the establishment of marine protected areas within the framework of the CCAMLR do not come under the area of research. Of course, this does not prevent Member States from participating, alone or alongside the Union, in other measures to be discussed or decided in the CCAMLR whose centre of gravity lies in the area of research. 123. Lastly, it should be pointed out that individual Member States have territorial interests in the Antarctic outside the scope of the European Union’s founding Treaties and Union policies. (78) It cannot be ruled out that the Member States concerned will participate on their own behalf alongside the Union in discussions and decisions in the CCAMLR in order to safeguard such interests, provided the interests in question are specified. In the present case, however, there is no objective evidence amenable to review in this regard. In addition, the contested 2015 and 2016 decisions, which offered all Member States and not just individual Member States the possibility of participating in the CCAMLR alongside the Union, quite clearly go beyond what would be necessary to safeguard those territorial interests. 5. Interim conclusion 124. All in all, in response to the Commission’s first plea in law in Cases C‑626/15 and C‑659/16, the contested 2015 and 2016 decisions should be annulled in so far as in those decisions it is specified that the Union is not to submit the reflection papers and positions at issue within the framework of the CCAMLR alone, but only jointly on behalf of the Union and its Member States. B. Second plea in law: Article 3(2) TFEU 125. By its second plea in law, the Commission alleges that the Council failed to recognise the Union’s exclusive external competence laid down in Article 3(2) TFEU. It asserts that the contested 2015 and 2016 decisions resulted in common rules being affected and their scope being altered within the meaning of the last clause of Article 3(2) TFEU, by which the ERTA principle was codified. (79) 126. This second plea in law is raised only in the alternative. Because, in accordance with my above statements, the Commission’s first plea in law results in the annulment of the contested 2015 and 2016 decisions, I will address the second plea in law only for the sake of completeness. 127. First, the Commission asserts that the measures envisaged within the framework of the CCAMLR for the establishment of marine protected areas could affect the Council’s 2014 pluriannual position on the Union’s action in the CCAMLR. (80) 128. In this regard it is sufficient to note that, according to its wording, the pluriannual position applies only to matters pertaining to the common fisheries policy. Since the contested 2015 and 2016 decisions, as has been stated above, (81) do not come under the common fisheries policy, but environmental policy, it can be ruled out a priori that the pluriannual position of 2014 is affected. 129. Second, the Commission asserts that the measures envisaged within the framework of the CCAMLR for the establishment of marine protected areas could affect Regulations (EC) No 600/2004 (82) and No 601/2004. (83) 130. In fact, the first of those two regulations governs technical measures and the second control measures applicable to fishing activities in the area covered by the Convention on the Conservation of Antarctic Marine Living Resources (Canberra Convention). It is thus clear that the possible prohibitions and restrictions on fishing which, as part of the envisaged marine protected areas in the Antarctic, were the subject of the contested 2015 and 2016 decisions could result in those regulations being affected or their scope being altered. As we know, according to the relevant case-law, it is sufficient for the risk of rules being affected or their scope being altered that the measures to be discussed and decided at international level fall within the scope of the common rules applicable at EU level, (84) without there necessarily having to be a substantive contradiction between them. (85) 131. It should be noted, however, that fishing regulation is only of subordinate importance in the contested 2015 and 2016 decisions and merely forms one element of the envisaged CCAMLR measures for the establishment of marine protected areas in the Antarctic. 132. Consequently, even if the Union did have an exclusive external competence in respect of the measures regulated in Regulations No 600/2004 and No 601/2004 pursuant to the last clause of Article 3(2) TFEU, that exclusive competence could serve as a legal basis only for specific, individual elements of the contested 2015 and 2016 decisions and could not support all the measures provided for in those decisions. 133. If the second plea in law in Cases C‑626/15 and C‑659/16 were relevant, it would therefore have to be rejected as unfounded. C. Maintenance of the effects of the contested decisions 134. If the Court partially annuls the contested 2015 and 2016 decisions, as I propose in the context of the first plea in law, the question arises whether the effects of the annulled parts of those decisions are to be maintained pursuant to the second paragraph of Article 264 TFEU. 135. The Commission rightly points out that such partial annulment affects the contested decisions only in so far as those decisions prescribe mixed action by the Union and its Member States in the CCAMLR. Neither is the legal basis for the Union’s action at the CCAMLR’s 34th and 35th annual meetings removed, nor is the substance of the reflection papers submitted by the Union in that body and of the positions adopted by it affected. 136. However, the partial annulment of the contested decisions takes away the legitimacy, from the perspective of EU law, for the Member States acting alongside the Union at the 34th and 35th annual meetings of the CCAMLR. Because some EU Member States actually contributed to the CCAMLR’s decisions at those annual meetings, not least in the decision on the establishment of a marine protected area for the Ross Sea, doubts could arise at international level as to the scope of the respective international commitments entered into by the Union and by its Member States. 137. Accordingly, I recommend that, in order to avoid any legal uncertainty, the Court maintain the effects of the annulled parts of the contested decisions pursuant to the second paragraph of Article 264 TFEU. D. Costs 138. Under Article 138(1) of the Rules of Procedure, 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 ultimately been unsuccessful in both cases and the Commission has applied for costs in each case, the Council must be ordered to pay the costs in both cases. On the other hand, the Member States granted leave to intervene in support of the Council must each bear their own costs in accordance with Article 140(1) of the Rules of Procedure in each of the two cases in which they participated. VII. Conclusion 139. In light of the foregoing, I propose that the Court should: (1) in Case C‑626/15, annul the decision of the Permanent Representatives Committee of 11 September 2015 on the submission of a reflection paper on the establishment of a marine protected area in the Weddell Sea for the 34th annual meeting of the Commission for the Conservation of Antarctic Marine Living Resources in so far as in that decision it is specified that the reflection paper is to be submitted on behalf of the Union and its Member States, rather than on behalf of the Union alone; (2) in Case C‑659/16, annul the decision of the Council of the European Union of 10 October 2016 concerning the establishment of the position to be adopted at the 35th annual meeting of the Commission for the Conservation of Antarctic Marine Living Resources in so far as in that decision it is specified that the position is to be adopted on behalf of the Union and its Member States, rather than on behalf of the Union alone; (3) order that the effects of the annulled parts of the contested decisions be maintained; (4) order the Council of the European Union to bear its own costs and to pay the costs incurred by the European Commission in both cases; (5) order the Kingdom of Belgium, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland each to bear their own costs in each of the two cases in which they participated. 1 Original language: German. 2 The ERTA principle goes back to the judgment in Commission v Council (‘ERTA’, 22/70, EU:C:1971:32, paragraphs 15 to 19); a more recent summary can be found, for example, in Opinion 1/03 of 7 February 2006 (New Lugano Convention, EU:C:2006:81, paragraphs 114 to 133). 3 The content of this decision is reproduced in the summary record of the 2554th meeting of the Permanent Representatives Committee of 23 September 2015 (Council document 11837/15, paragraph 65, p. 19 and 20, and Council document 11644/1/15/REV). 4 That decision was taken on the basis of an ‘I/A Item Note’ (Council document 12523/16). The actual content of the position to be adopted by the Union is apparent from Council document 12445/16. 5 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ 2013 L 354, p. 22). 6 Approved on behalf of the European Economic Community by Council Decision 81/691/EEC of 4 September 1981 on the conclusion of the Convention on the conservation of Antarctic marine living resources (OJ 1981 L 252, p. 26). 7 These are the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Kingdom of the Netherlands, the Republic of Poland, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland. 8 They are the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Poland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland. 9 They are the Kingdom of Belgium, the French Republic and the United Kingdom of Great Britain and Northern Ireland. 10 These are the Republic of Bulgaria, the Czech Republic, the Federal Republic of Germany, the Kingdom of Spain, the Italian Republic, the Kingdom of the Netherlands, the Republic of Poland, the Republic of Finland and the Kingdom of Sweden. 11 These are the Kingdom of Denmark, the Republic of Estonia, the Hellenic Republic, Hungary, the Republic of Austria, the Portuguese Republic, Romania and the Slovak Republic. 12 Council Decision of 11 June 2014 on the position to be adopted, on behalf of the European Union, in the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) (Council document 10840/14). The ‘simplified procedure’ is set out in Annex II to that decision. 13 The Weddell Sea was named after the British explorer James Weddell and at a depth of up to 5 000 m covers an area of more than 2.5 million km2. 14 The Scientific Committee is an advisory body to the CCAMLR under Article XIV of the Canberra Convention. 15 See above, point 24 of this Opinion. 16 The Ross Sea was named after the British explorer James Clark Ross and at a depth of up to 1 200 m covers an area of around 1.55 million km2. 17 For simplicity I will refer to all these areas hereinafter as marine protected areas. 18 The Commission amended the documents submitted to the CCAMLR Secretariat to that effect on 12 October 2016. 19 The Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland claim that the Court should dismiss the Commission’s action as inadmissible and in the alternative as unfounded. The Kingdom of the Netherlands and the Portuguese Republic claim that the Court should dismiss the Commission’s action as unfounded. 20 The Hellenic Republic, the Republic of Finland, the Portuguese Republic, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland do not make any submissions as to costs. 21 The Republic of Finland, the Portuguese Republic, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland do not make any submissions as to costs. 22 Judgment of 19 March 1996, Commission v Council (FAO, C‑25/94, EU:C:1996:114, paragraph 26). 23 Judgment of 19 March 1996, Commission v Council (FAO, C‑25/94, EU:C:1996:114, paragraph 27). 24 See, to that effect, judgment of 11 November 1981, IBM v Commission (60/81, EU:C:1981:264, paragraph 11), with regard to the Commission’s administrative procedure. 25 See, to that effect, judgments of 11 November 1981, IBM v Commission (60/81, EU:C:1981:264, paragraph 10), and of 17 July 2008, Athinaïki Techniki v Commission (C‑521/06 P, EU:C:2008:422, paragraph 42), each with regard to the Commission’s administrative procedure. 26 Judgments of 31 March 1971, Commission v Council (AETR, 22/70, EU:C:1971:32, paragraph 42); of 2 March 1994, Parliament v Council (ACP Financial Regulation, C‑316/91, EU:C:1994:76, paragraph 8); of 19 March 1996, Commission v Council (FAO, C‑25/94, EU:C:1996:114, paragraph 29); of 13 October 2011, Deutsche Post and Germany v Commission (C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 36); and of 25 October 2017, Slovakia v Commission (Own resources, C‑593/15 P and C‑594/15 P, EU:C:2017:800, paragraph 46). 27 Judgments of 17 July 2008, Athinaïki Techniki v Commission (C‑521/06 P, EU:C:2008:422, paragraph 42), and of 25 October 2017, Slovakia v Commission (Own resources, C‑593/15 P and C‑594/15 P, EU:C:2017:800, paragraph 47). 28 Judgment of 25 October 2017, Slovakia v Commission (Own resources, C‑593/15 P and C‑594/15 P, EU:C:2017:800, paragraph 47). 29 Judgment of 17 July 2008, Athinaïki Techniki v Commission (C‑521/06 P, EU:C:2008:422, paragraph 42). 30 See above, point 23 of this Opinion. 31 With regard to the distinction between those two powers of the Council and the Commission, see judgment of 28 July 2016, Council v Commission (Switzerland’s financial contribution, C‑660/13, EU:C:2016:616). 32 See, to that effect, judgment of 7 October 2014, Germany v Council (Vine and Wine, C‑399/12, EU:C:2014:2258, paragraph 63), according to which recommendations of an international body also fall within the scope of the Article 218(9) TFEU if they are capable of influencing the content of the legislation to be adopted by the EU legislature. 33 See, to that effect, judgment of 7 October 2014, Germany v Council (Vine and Wine, C‑399/12, EU:C:2014:2258, paragraph 65), according to which Article 218(9) TFEU is applicable ‘regardless of whether the acts … will, in fact, actually be voted on by the competent body’. 34 See, to that effect, judgment of 19 March 1996, Commission v Council (FAO, C‑25/94, EU:C:1996:114, paragraphs 35 and 37). 35 Opinion 2/94 of 28 March 1996 (Accession by the Community to the ECHR, EU:C:1996:140, paragraph 24), and judgment of 5 December 2017, Germany v Council (COTIF, C‑600/14, EU:C:2017:935, end of paragraph 44). 36 Opinion 2/00 of 6 December 2001 (Cartagena Protocol on Biosafety, EU:C:2001:664, paragraph 5); and judgments of 14 June 2016, Parliament v Council (Tanzania, C‑263/14, EU:C:2016:435, paragraph 42); and of 5 December 2017, Germany v Council (COTIF, C‑600/14, EU:C:2017:935, paragraph 80). 37 See also judgments of 14 July 1976, Kramerand Others (3/76, 4/76 and 6/76, EU:C:1976:114, paragraph 31), and of 24 November 1993, Mondiet (C‑405/92, EU:C:1993:906, paragraph 12). 38 See the case-law just cited in footnote 37 and the judgment of 5 May 1981, Commission v United Kingdom (Conservation measures in matters of sea fisheries, 804/79, EU:C:1981:93). 39 According to the wording of Article 3(1)(d) TFEU, the exclusive Union competence for the conservation of marine biological resources applies only ‘under the common fisheries policy’. Conversely, Article 4(1) in conjunction with Article 4(2)(d) TFEU makes clear that a competence shared between the Union and the Member States exists for agriculture and fisheries ‘excluding the conservation of marine biological resources’. 40 Judgments of 11 June 1991, Commission v Council (Titanium dioxide, C‑300/89, EU:C:1991:244, paragraph 10), and of 14 June 2016, Parliament v Council (Tanzania, C‑263/14, EU:C:2016:435, paragraph 43); and Opinion 1/15 of 26 July 2017 (Envisaged agreement with Canada concerning passenger data, EU:C:2017:592, paragraph 76). 41 Judgments of 26 September 2013, United Kingdom v Council (Extension of social security rules to the EEA, C‑431/11, EU:C:2013:589, paragraph 48); of 27 February 2014, United Kingdom v Council (Extension of social security rules to Switzerland, C‑656/11, EU:C:2014:97, paragraph 50); and of 18 December 2014, United Kingdom v Council (Extension of social security rules to Turkey, C‑81/13, EU:C:2014:2449, paragraph 38). 42 See to that effect, for example, Opinion 2/00 of 6 December 2001 (Cartagena Protocol on Biosafety, EU:C:2001:664, paragraph 22). 43 Judgments of 10 January 2006, Commission v Council (Rotterdam Convention, C‑94/03, EU:C:2006:2, paragraph 50); of 24 June 2014, Parliament v Council (Mauritius, C‑658/11, EU:C:2014:2025, paragraph 48); and of 18 December 2014, United Kingdom v Council (Extension of social security rules to Turkey, C‑81/13, EU:C:2014:2449, paragraph 36). 44 Judgment of 23 February 1988, United Kingdom v Council (Substances having a hormonal action, 68/86, EU:C:1988:85, paragraph 24); Opinion 1/94 (WTO Agreement, EU:C:1994:384, paragraph 52); and judgment of 25 October 2017, Commission v Council (World Radiocommunication Conference 2015, C‑687/15, EU:C:2017:803, paragraph 42). 45 The case-law on the precise basis for the external competence of the Union in the field of environmental policy is not entirely consistent. In Opinion 2/00 of 6 December 2001 (Cartagena Protocol on Biosafety, EU:C:2001:664, paragraph 44) the Court invoked Article 175 EC, the present Article 192 TFEU. On the other hand, in the recent judgment of 5 December 2017, Germany v Council (COTIF, C‑600/14, EU:C:2017:935, paragraph 65), it stated that in the area of the environment the European Union ‘has an explicit external competence, under the fourth indent of Article 191(1) TFEU’. In the judgment of 30 May 2006, Commission v Ireland (MOX plant located at Sellafield, C‑459/03, EU:C:2006:345, paragraphs 90 to 92), the Union’s external competence in regard to protection of the marine environment is expressly recognised on the basis of a reading of Article 175 EC in conjunction with the fourth indent in Article 174(1) EC, the present Article 192 TFEU and the fourth indent in Article 191(1) TFEU. It is ultimately unnecessary in the present case to determine whether Article 191 TFEU or Article 192 TFEU or a combination of the two provisions is relevant, as in each scenario the competence is shared between the Union and its Member States under Article 4(1) in conjunction with Article 4(2)(e) TFEU. 46 Opinion 2/00 of 6 December 2001 (Cartagena Protocol on Biosafety, EU:C:2001:664, paragraph 23); and judgments of 11 June 2014, Commission v Council (Framework Agreement with the Philippines, C‑377/12, EU:C:2014:1903, paragraph 34); and of 14 June 2016, Parliament v Council (Tanzania, C‑263/14, EU:C:2016:435, paragraph 44). 47 See my Opinion in Commission v Council (Vietnam, C‑13/07, EU:C:2009:190, point 113). 48 See, for example, the 14th recital in the preamble to the Proposal on a conservation measure establishing the Weddell Sea Marine Protected Area (WSMPA), submitted as Annex A.2-B to the application in Case C‑659/16: ‘research and monitoring related to the objectives of the WSMPA form an integral part of the management of the WSMPA’. In addition, specific research objectives are set out in section 3 of that Proposal, in provisions S 11 and S 12, and the provisions of section 7 describe in more detail how the research activities are to be authorised and carried out. 49 See in particular judgment of 24 November 1993, Mondiet (C‑405/92, EU:C:1993:906), and Opinion of Advocate General Wahl in the pending case Deutscher Naturschutzring, Dachverband der deutschen Natur- und Umweltschutzverbände e.V. (C‑683/16, EU:C:2018:38). 50 Judgments of 29 March 1990, Greece v Council (Chernobyl, C‑62/88, EU:C:1990:153, paragraph 20), and of 24 November 1993, Mondiet (C‑405/92, EU:C:1993:906, paragraph 27). 51 Judgments of 29 March 1990, Greece v Council (Chernobyl, C‑62/88, EU:C:1990:153, paragraph 19), and of 24 November 1993, Mondiet (C‑405/92, EU:C:1993:906, paragraph 26). 52 With specific regard to the delineation between the common commercial policy and environmental policy see, for example, judgment of 29 March 1990, Greece v Council (Chernobyl, C‑62/88, EU:C:1990:153); Opinion 2/00 of 6 December 2001 (Cartagena Protocol on Biosafety, EU:C:2001:664); and judgments of 12 December 2002, Commission v Council (Energy Star, C‑281/01, EU:C:2002:761); and of 10 January 2006, Commission v Council (Rotterdam Convention, C‑94/03, EU:C:2006:2). 53 Judgments of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland (C‑414/11, EU:C:2013:520, paragraph 51); and of 22 October 2013, Commission v Council (Conditional access services, C‑137/12, EU:C:2013:675, paragraph 57); Opinion 2/15 of 16 May 2017 (Free Trade Agreement with Singapore, EU:C:2017:376, paragraph 36); and judgment of 25 October 2017, Commission v Council (Revised Lisbon Agreement, C‑389/15, EU:C:2017:798, paragraph 49). 54 With regard to the relevance of the aim, content and context of the act in question, see again above, point 76 of this Opinion. 55 See, for example, the eighth recital in the preamble to the Proposal on a CCAMLR conservation measure establishing the Weddell Sea Marine Protected Area (cited in footnote 48), in which the desire is expressed ‘to ensure that areas vulnerable to the effects of climate change and impacts by human activities are protected in recognition of their global and regional environmental and scientific importance’. In the ninth recital of that Proposal it is further noted ‘that the Weddell Sea has largely pristine ecosystems and diverse marine living resources and that it is crucial for global ocean circulation and the world’s climate, and is also an ideal area for studying ecosystem effects, resilience and adaptive capacity to climate change and ocean acidification separate from the impacts of human activities, such as fishing’. Provisions G 1 to G 6 regarding the general objectives of the marine protected area in section 3 of that proposal again refer mainly to protection of ecosystems, biodiversity, habitats and the effects of climate change. 56 See, for example, section 5 of the Proposal on a CCAMLR conservation measure establishing the Weddell Sea Marine Protected Area (cited in footnote 48), in which ‘Restricted, prohibited and managed activities’ are listed and provision 4 establishes the general rule that ‘fishing activities are prohibited’. 57 See, for example, provision 5 in section 5 of the Proposal on a CCAMLR conservation measure establishing the Weddell Sea Marine Protected Area (cited in footnote 48): ‘Dumping or discharging of any waste or other matter and the introduction of any sewage … is prohibited’. 58 See, for example, section 2.3 of the Proposal for a Weddell Sea Marine Protected Area Management Plan, which is annexed to the Proposal on a CCAMLR conservation measure establishing the Weddell Sea Marine Protected Area (cited in footnote 48): ‘The Fisheries Research Zone includes both fished areas and unfished reference areas to advance our understanding about the ecosystem effects of longline fishing …’. 59 Protocol on Environmental Protection to the Antarctic Treaty, signed in Madrid on 4 October 1991. 60 See also the second recital of the Canberra Convention, which notes the concentration of marine living resources found in Antarctic waters and the increased interest in the possibilities offered by the utilisation of these resources as a source of protein. 61 See again the Preamble to the Canberra Convention, where, first, ‘the importance of safeguarding the environment and protecting the integrity of the ecosystem of the seas surrounding Antarctica’ is emphasised in a prominent position (first recital) and, second, ‘the prime responsibilities of the Antarctic Treaty Consultative Parties for the protection and preservation of the Antarctic environment and, in particular, their responsibilities under Article IX, paragraph 1(f) of the Antarctic Treaty in respect of the preservation and conservation of living resources in Antarctica’ are stressed (sixth recital). 62 See Opinion of Advocate General Wahl in the pending case Deutscher Naturschutzring, Dachverband der deutschen Natur- und Umweltschutzverbände (C‑683/16, EU:C:2018:38). 63 In the words of Advocate General Léger in his Opinion in Parliament v Gutiérrez de Quijano y Lloréns (C‑252/96 P, EU:C:1998:157, point 36). 64 See, to that effect, order of 27 September 2004, UER v M6 and Others (C‑470/02 P, EU:C:2004:565, paragraph 69), and judgment of 21 September 2010, Sweden and Others v API and Commission (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 65). 65 Opinion of Advocate General Szpunar in Germany v Council (COTIF, C‑600/14, EU:C:2017:296, point 83 and preceding heading). 66 See, in the same vein, judgment of 30 May 2006, Commission v Ireland (MOX plant located at Sellafield, C‑459/03, EU:C:2006:345, paragraph 93). 67 Judgment of 5 December 2017, Germany v Council (COTIF, C‑600/14, EU:C:2017:935, paragraph 61). 68 See judgment of 5 December 2017, Germany v Council (COTIF, C‑600/14, EU:C:2017:935, paragraph 68). In that judgment the Court qualifies its recent statement in Opinion 2/15 of 16 May 2017 (Free Trade Agreement with Singapore, EU:C:2017:376, paragraph 244 in conjunction with paragraph 243), in which it held that commitments contained in an international agreement which fall within a competence shared between the European Union and the Member States ‘cannot be approved by the European Union alone’. 69 That was the situation, for example, with the conclusion of individual areas of regulation in the Agreement annexed to the WTO Agreement, for which the common commercial policy did not provide an adequate legal basis at that time (see Opinion 1/94 of 15 November 1994, WTO Agreement, EU:C:1994:384). The same holds at present for the envisaged Free Trade Agreement with Singapore (see Opinion 2/15 of 16 May 2017, Free Trade Agreement with Singapore, EU:C:2017:376). 70 See above for details, point 18 of this Opinion. 71 It can be inferred from the judgments of 30 May 2006, Commission v Ireland (MOX plant located at Sellafield, C‑459/03, EU:C:2006:345, in particular paragraph 96), and of 5 December 2017, Germany v Council (COTIF, C‑600/14, EU:C:2017:935, paragraph 68, second sentence) that the Union can decide in each individual case not to exercise its inherent powers in an area of shared competences fully, but only partially, thereby allowing scope for autonomous action by the Member States. 72 Examples might include the protection of individual, specifically designated species or the implementation of individual measures to study the problem of ice shelf retreat. 73 See above, points 104 to 110 of this Opinion. 74 Emphasis added. 75 See Declaration No 10 annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Maastricht signed on 7 February 1992 (Treaty on European Union — Declaration on Articles 109, 130r and 130y of the Treaty establishing the European Community, OJ 1992 C 191, p. 100): ‘The Conference considers that the provisions of Article 109(5), Article 130r(4), second subparagraph, and Article 130y do not affect the principles resulting from the judgment handed down by the Court of Justice in the AETR case.’ 76 With regard to marine protected areas like those at issue in this case, it would be conceivable, for example, that individual Member States wish to undertake in international law to refrain entirely from any human activity in Antarctic waters, rather than merely being subject to the restrictions proposed by the Union. 77 See above, points 84 to 87 of this Opinion. 78 This applies in particular to the French Republic and the United Kingdom of Great Britain and Northern Ireland. 79 Judgments of 4 September 2014, Commission v Council (Protection of the rights of broadcasting organisations, C‑114/12, EU:C:2014:2151, paragraphs 64 to 67), and of 26 November 2014, Green Network (C‑66/13, EU:C:2014:2399, paragraphs 27 and 28). 80 See above, point 23 of this Opinion. 81 See above, in particular points 88 to 98 of this Opinion. 82 Council Regulation (EC) No 600/2004 of 22 March 2004 laying down certain technical measures applicable to fishing activities in the area covered by the Convention on the conservation of Antarctic marine living resources (OJ 2004 L 97, p. 1). 83 Council Regulation (EC) No 601/2004 of 22 March 2004 laying down certain control measures applicable to fishing activities in the area covered by the Convention on the conservation of Antarctic marine living resources and repealing Regulations (EEC) No 3943/90, (EC) No 66/98 and (EC) No 1721/1999 (OJ 2004 L 97, p. 16). 84 See Opinion 1/13 of 14 October 2014 (Accession of third States to the Hague Convention, EU:C:2014:2303, paragraph 71); judgment of 26 November 2014, Green Network (C-66/13, EU:C:2014:2399, paragraph 29); and Opinions 3/15 of 14 February 2017 (Marrakesh Treaty to Facilitate Access to Published Works, EU:C:2017:114, paragraph 105); and 2/15 of 16 May 2017 (Free Trade Agreement with Singapore, EU:C:2017:376, paragraph 181). 85 See Opinions 2/91 of 19 March 1993 (ILO Convention No 170, EU:C:1993:106, paragraphs 25 and 26); 1/13 of 14 October 2014 (Accession of third States to the Hague Convention, EU:C:2014:2303, paragraph 86); 3/15 of 14 February 2017 (Marrakesh Treaty to Facilitate Access to Published Works, EU:C:2017:114, paragraph 113); and 2/15 of 16 May 2017 (Free Trade Agreement with Singapore, EU:C:2017:376, paragraph 201).