Opinion of the Advocate General — ECLI:EU:C:2021:957
Date: 2021-11-25
Language of the case: English
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment - unfounded

summary of its current state can be found in a number of judgments and opinions given in recent years. In the Court’s own words, since the EU is vested only with conferred powers, any competence, especially where it is exclusive, must have its basis in conclusions drawn from a comprehensive and detailed analysis of the relationship between the international agreement envisaged and the EU law in force. That analysis must take into account the areas covered, respectively, by the rules of EU law and by the provisions of the agreement envisaged, their foreseeable future development and the nature and content of those rules and those provisions, in order to determine whether the agreement is capable of undermining the uniform and consistent application of the EU rules and the proper functioning of the system which they establish. (56) 116. The weight of and the relationship between the different elements referred to in the summary above are debatable. They were gradually added to the body of ERTA doctrine over the years following the subsequent judgments and opinions of the Court. It is possible to identify two categories of such elements. The elements in the first category determine the objects that are to be the subject of the analysis (EU rules and the international commitment). The elements in the second category pertain to the relationship between these objects. 117. The crux of the matter lies in the relationship concerned by the elements of the second group. (57) Should an international commitment have no effect whatsoever on EU law (taking into account its foreseeable future development), the fact that the two systems of rules concern the same area would be irrelevant for the purposes of Article 3(2) TFEU. 118. This follows not only from the wording of Article 3(2) TFEU but also from the case-law of the Court cited above. It is pointed out therein that the analysis is to be carried out in its entirety in order to determine whether the international commitment is capable of undermining the uniform and consistent application of EU rules and the proper functioning of the system which those rules establish, or, alternatively, whether the international commitments at issue, without necessarily conflicting with those rules, may have an effect on their meaning, scope and effectiveness. (58) A tangible effect of the international commitment on EU law is thus necessary in order for the condition in question to be met. 119. The condition that there be a tangible effect on EU rules should be borne in mind when examining the elements of the first category. In so far as these are concerned, the Court has held in particular that there is a risk that common EU rules may be adversely affected by international commitments undertaken by the Member States, or that the scope of those rules may be altered, where those commitments fall within the scope of those rules. (59) It has also ruled that a finding that there is such a risk does not presuppose that the area covered by the international commitments and that of the EU rules coincide fully. (60) In particular, such international commitments may affect EU rules or alter their scope when the commitments fall within an area which is already covered to a large extent by such rules. (61) In all these cases, however, finding that the respective scopes of the two systems of rules overlap is only a first step. In order for the condition in question to be fulfilled, the international commitment must have some effect on the meaning, scope and effectiveness of EU rules. 120. It must also be noted that, according to settled case-law, it is for the party concerned to provide evidence to establish the exclusive nature of the external competence of the EU on which it seeks to rely. (62) 121. In light of the above considerations I shall first analyse the scope, nature and content of the envisaged international commitment; second, compare it with the scope of the rules of the EU law invoked by the Commission; and, third, examine the effect of the international commitment on the rules of the EU law in question. (63) (ii) The international commitment: scope, nature and content 122. In the case of the conclusion, or even the negotiation, of an agreement, determining the scope, nature and content of the future international commitment is, in principle, straightforward. The present case, however, concerns a future instrument, the scope, nature and content of which is difficult to define and predict. This is due to the fact that the work on the future act is in its initial stages, where ideas for measures addressing the issue of GHG emissions from maritime fuels in the life cycle perspective have yet to be decided upon and are only now being sought and discussed. 123. Therefore, the first step is to determine the scope, nature and content of the future international commitment which should be taken into account for the purpose of the analysis under Article 3(2) TFEU. Specifically, should they be determined on the basis of the text of the invitation from ISWG‑GHG 6 or on the basis of the disputed submission? 124. The Commission and the Council agreed during the hearing that it is the content of the disputed submission that should be taken into account, and not the scope of the invitation. I agree with this position in principle. Admittedly, the invitation from ISWG‑GHG 6 is also of relevance as it sets certain (albeit broad) limits as to the scope, nature and content of the future instrument. However, the disputed submission is the only source of information on how the Union imagines that instrument. This initial conception allows the shape of the future instrument to be predicted, and can thus better serve as an object of the analysis than the open and vague invitation to submit proposals. It also allows it to be considered that there is a degree of probability that a proposal put forward by the Union will be adopted. (64) 125. In the light of the disputed submission, it should thus be found that the future international commitment to be taken into account in the analysis for the purpose of Article 3(2) TFEU is the future instrument, being the guidelines addressing the issue of GHG emissions from maritime fuels in a life cycle perspective through the introduction WtT values for alternative fuels. Those WtT values would reflect the GHG emissions in the upstream phase, while the known TtP emission values would in turn reflect the GHG emissions in the downstream phase. 126. Given the text of the disputed submission and the IMO documents, (65) including the invitation from ISWG‑GHG 6, it cannot be determined, at this stage, whether the future guidelines will be binding. (66) In particular, the disputed submission does not propose any amendments to any binding IMO instruments. (67) (iii) The scope of the EU rules potentially affected 127. The Commission relies on three sources of EU rules that risk being affected by the future international instrument in question, namely the MRV Regulation, Directive 2014/94 and Directive 2018/2001. 128. As for the two abovementioned directives, I entirely share the view expressed and shared by the Council and some of the interveners. There are no grounds to consider that the areas covered by the directives cited overlap with that of the international instrument in a relevant way. The fact that different acts pursue the same ultimate goal of contributing to the reduction of GHG emissions and combating climate change, does not suffice in itself to determine that their provisions overlap in a relevant way from the point of view of Article 3(2) TFEU. The same ultimate goal, such as the protection of the environment or, more specifically, combating climate change, or even reducing GHG emissions, can be attained through different measures the provisions of which do not necessarily have to affect each other. In particular, the same concepts used in different acts need not be defined in the same way as the context of an act, the structure and scope of the latter can determine the definition of the former. Admittedly, it is not excluded that some horizontal definitions may be adopted but it is not the most obvious solution. 129. In that connection, the definition of ‘alternative fuels’ contained in Article 2(1) of Directive 2014/94 does not necessarily need to be amended following the adoption of the future international instrument. The Commission’s claims to the effect that it is likely that that definition would need to be adapted to any IMO rules for reasons of consistency and would likely have a horizontal effect on the scope of the body of common EU rules designed to promote the use of alternative fuels are, for the time being, purely hypothetical. The simple fact that both acts refer to the same concept does not suffice to contend that they overlap with each other if the respective purposes of the two acts are different. Directive 2014/94 uses the term of ‘alternative fuels’ to determine the scope of its rules concerning measures for the deployment of alternative fuels infrastructure. The delimitation of the scope of WtT values applicable to alternative fuels does not mean that, to that end, the term ‘alternative fuels’ cannot be given a different definition. 130. As regards Directive 2018/2001, the Commission itself admits that the definitions contained in Article 29 thereof are primarily intended for other purposes, such as measuring compliance with renewable energy obligations of the Member States. It is impossible to present arguments which allow it to be predicted that the introduction of WtT values for different fuels used in maritime transport could have an impact on the above definitions. 131. The Commission failed, in my view, to present sound arguments in support of its claims in respect of either of the directives referred to above. 132. The situation of the MRV Regulation is, however, quite different. In this respect, I share the Commission’s view that the areas covered by that regulation and by the future international instrument are closely linked. 133. The rationale of the MRV Regulation is clear. It follows from its first recital that the regulation is intended to contribute to achieve emission reductions. It is also the case of the future guidelines in the light of the disputed submission. 134. Both that regulation and those guidelines concern the same sector – maritime transport – and the same activity, the purchase and use of fuels. 135. Both are intended to provide information on GHG emissions associated with the use of particular fuels. (68) The difference is that TtP emissions are directly linked to combustion of the fuel on board a ship – that is, to the actual operations of the maritime sector – whereas WtT emissions concern the activity preceding those operations, and have no source in the activity of the maritime sector as such. There is, however, an indirect link between the two in the sense that it is the demand for fuels in the maritime sector that triggers the production of fuels and WtT emissions. 136. Lastly, the clear link between the scope of the MRV Regulation and that of the future international instrument envisaged by the disputed submission follows from the text of the latter. The proposed WtT values are not to be used separately but in conjunction with the known values for the emissions in the downstream phase (as applied in that regulation). 137. Admittedly, there are also differences between the two instruments. 138. First, the MRV Regulation relates to CO2 emissions only, whereas WtT values are intended to encompass all kinds of GHG. In this respect, it should be noted that CO2 is the GHG with the biggest share in all GHG emissions together. (69) Should the Union envisage entering into an international agreement providing for the calculation of emissions of other GHG for the purpose of emissions reduction from maritime transport, it would be impossible to claim that the instrument does not fall within the scope of an area covered to a large extent by EU law. (70) 139. Second, even if the default emission factors defined in the Annex I to the MRV Regulation are, for the time being, laid down in respect of fossil fuels only, the same annex contains a clear indication that its scope is not limited thereto. (71) 140. Third, the fact that the objective of the future guidelines is to encourage the uptake of alternative fuels does not mean that fossil fuels concerned in the first place by the MRV Regulation will not be covered. (72) It seems that the benefits of the use of alternative fuels can only be seen if it is possible to compare the same information (WtT emissions) for all fuels. 141. Fourth, admittedly, the MRV Regulation is based on the TtP approach, which, in principle, means that it concerns GHG emissions resulting from the combustion of fuel on board a ship (downstream phase). Conversely, the disputed submission provides for the adoption of WtT values reflecting GHG emissions during extraction of raw materials, and the production and distribution of fuel (upstream phase). However, even in the light of the disputed submission, these WtT values are to be combined with TtP emission values. In fact, they are meant to supplement the available information on GHG emissions in the downstream phase. This is logical as the submissions were supposed to address the issue of GHG emissions of fuels in a life cycle perspective and not only in the upstream phase. For this reason, it seems to me that the WtT values would not be of much use when taken separately. In particular, they are not to be used simply to calculate the actual emissions in the upstream phase in the process of calculating total emissions. (73) They are intended to provide information for those responsible for emissions in the downstream phase. Only when combined with the values for TtP emissions will WtT values provide information on GHG emissions resulting from the use of a given fuel in a life cycle perspective. 142. For the reasons set out above, I do not find the differences between the scopes of the two acts to be of relevance for the purpose of this analysis. Conversely, I consider that the future international instrument, in the form foreseen by the disputed submission, concerns the area that is regulated by EU law, to a large extent in the MRV Regulation. (iv) The effect of the future international instrument on EU rules 143. Given the conclusions reached above, the crucial question is whether the Commission has demonstrated that the future international instrument will have a tangible effect on EU rules. 144. My proposed answer to the question is ‘No’. 145. In this regard, first of all, there are no grounds to find that the future international instrument will be binding in the foreseeable future. It must be found that, for the time being, it is foreseen as a non-binding act intended only to incentivise a certain behaviour within the shipping sector by providing information on GHG emissions from alternative fuels in the upstream phase. (74) 146. Admittedly, the use of WtT values as a metric providing such information would be closely linked to the use of values applied in the MRV Regulation. This does not mean, however, that their introduction by the IMO in order to reflect GHG emissions in the upstream phase would affect the system laid down by that regulation. There is no particular reason to find that the latter would need to be amended in any way. The MRV Regulation could continue to be applied in its current form for the purposes of the monitoring and reporting of actual GHG emissions from maritime transport in the downstream phase, even in the event of the adoption of the future IMO guidelines. The fact that a non-binding instrument issued by an international organisation may use the same factors as applied in that regulation in order to provide information on GHG emissions in the life cycle perspective would neither affect common EU rules nor alter their scope within the meaning of Article 3(2) TFEU. 147. In this regard, it should be pointed out that it does not seem to follow either from the disputed submission or from the IMO documentation that the future instrument is intended to replace the monitoring and reporting systems already in place. It would appear that the latter systems and the guidelines are regarded as two separate instruments which are quite independent of each other. At least, the work of the IMO MEPC on the life cycle guidelines are not presented in the IMO documentation as a first step towards the adoption of amendments to the IMO Data Collection System (‘IMO DCS’), being the IMO counterpart of the system laid down by the MRV Regulation. (75) The guidelines not having such an impact on the IMO DCS allows it to be assumed that they would not lead to the amendment of that regulation either. 148. The present case is distinct from and yet reminiscent of the case in Germany v Council. (76) The Court found in that case that the non-binding recommendations of the International Organisation of Vine and Wine (OIV) had legal effects for the purposes of Article 218(9) TFEU by reason of their incorporation into EU law by virtue of certain provisions of EU law providing expressly for this effect. (77) Although that case did not concern Article 3(2) TFEU, it appears that the finding of the Court implies that the amendment of such recommendations could be regarded as affecting EU rules within the meaning of that article. 149. This case-law cannot be transposed to the present case. There are no provisions of EU law that would contain a reference to any IMO guidelines providing for the introduction of WtT values in order to estimate GHG emissions in the upstream phase or to any other kind of life cycle GHG/carbon intensity guidelines. There are no IMO provisions that would refer to such guidelines either. 150. Admittedly, it is necessary also to take into account the future development of the EU rules in question, in so far as that is foreseeable at the time of that analysis. (78) 151. In this regard, there are no grounds, at the time of writing, to consider that the future IMO guidelines will constitute a binding act and that their adoption will require an amendment of the IMO DCS. Moreover, there are no reasons to find that in the foreseeable future the Union will adopt an act corresponding to the future IMO guidelines. 152. The Commission appears to argue that the EU will certainly adapt its legislation to the future IMO guidelines. In that connection, it relies on the upcoming amendments to the MRV Regulation, which are the result of the introduction of the IMO DCS. (79) However, in that regard, Article 22(3) of that regulation expressly lays down the obligation of such amendments. (80) The alignment of that regulation with the IMO DCS thus results from a specific provision of EU law. There is no such provision that concerns the guidelines in question. In addition, due to the apparent lack of impact of the future guidelines on the IMO DCS, (81) there are no grounds to consider that the obligation to amend the MRV Regulation in line with the IMO DCS implies an obligation to amend EU legislation in line with the future guidelines. 153. It is by no means impossible that an instrument adopted by an international organisation becomes a source of inspiration for the EU legislature. However, in my view, the mere possibility of drawing inspiration from such an instrument is not sufficient to establish that corresponding autonomous EU rules will also be adopted in the foreseeable future. 154. In light of the foregoing considerations, there are no reasons, in my view, to find that the future international instrument, as currently envisaged, is capable of undermining the uniform and consistent application of EU rules and the proper functioning of the system which they establish. Similarly, it cannot be found that this international instrument may have an effect on the meaning, scope and effectiveness of EU rules. (b) The second part of the first plea (1) The arguments of the parties 155. The Commission claims that, given the global nature of maritime transport and the fight against climate change, the action of the Union in the IMO is necessary to enable the Union to exercise its internal competence. 156. The Council, supported by the intervening Member States, contends that the Commission has failed to demonstrate that such an action is necessary from a legal perspective to enable the Union to exercise its competence internally. 157. The Commission did not respond to this contention in its reply. (82) (2) Assessment 158. The second part of Article 3(2) TFEU provides for the exclusive external competence of the Union for the conclusion of an international agreement when it is necessary to enable the Union to exercise its internal competence. 159. The second part of Article 3(2) TFEU is a codification of the case-law of the Court with its origins in Opinion 1/76. (83) According to the Court, this ground for the external exclusive competence of the Union arises in the situation in which internal competence may be effectively exercised only at the same time as external competence, (84) the conclusion of the international agreement being thus necessary in order to attain objectives of the Treaty that cannot be attained by establishing autonomous rules. (85) 160. I am of the view that the Commission failed to furnish, in its application, the evidence necessary to establish the exclusive nature of the external competence of the EU. A simple reference to the global nature of maritime transport and to the fight against climate change is insufficient. The condition of necessity for the conclusion of an international agreement in order to attain objectives of the Treaty is interpreted narrowly by the Court. (86) A global dimension of an issue falling within the competences of the EU alone does not mean of itself that the objectives of the Treaty cannot be attained without an international agreement. 161. This is especially true in the case of a non-binding act intended to provide information likely to incentivise certain behaviour within the shipping sector. The Commission has failed to demonstrate that, without the adoption of such an instrument, the objectives of the Treaty cannot be attained through the adoption of autonomous rules. 162. Accordingly, I consider that the second part of the first plea should also be dismissed. (c) Conclusion regarding the first plea 163. In light of all the foregoing considerations concerning both parts of the first plea, I am of the view that this plea should also be dismissed as unfounded. 164. In that context, in the event that the Court does not agree with my analysis of the second plea but shares my view on the first plea, the application should be dismissed nonetheless. Even if the Union can act alone in the field falling within the scope of the Union’s shared competences, (87) the Commission’s weaker status compared to that of the EU Member States in the IMO constitutes an argument in favour of the participation of the Member States in the exercise of the Union’s external competence. (88) VI. Costs 165. The Commission has, in my view, been unsuccessful. In its pleadings, the Council requests that the Commission pay its costs. In accordance with Article 138(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Article 140(1) of the Rules of Procedure provides that Member States and institutions which have intervened shall bear their own costs. VII. Conclusion 166. In light of all the foregoing considerations, I propose that the Court should: – dismiss the application; – order the European Commission to bear its own costs and to pay those incurred by the Council of the European Union; – order the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the French Republic, the Kingdom of the Netherlands, the Republic of Finland and the Kingdom of Sweden to bear their own costs. 1 Original language: English. i Les points 46 et 149 ainsi que les notes en bas de page 39, 48, 54, 73 et 82 du présent texte ont fait l’objet d’une modification d’ordre typographique, postérieurement à sa première mise en ligne. 2 In 1982 its name was amended to ‘Convention on the International Maritime Organization’. 3 Arrangement for Cooperation and Collaboration between the Inter-Governmental Maritime Consultative Organisation and the Commission of the European Communities. 4 Article 11 of the IMO Convention. 5 Article 37 of the IMO Convention. 6 Regulation of the European Parliament and of the Council of 29 April 2015 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport, and amending Directive 2009/16/EC (OJ 2015 L 123, p. 55). 7 Directive of the European Parliament and of the Council of 22 October 2014 on the deployment of alternative fuels infrastructure (OJ 2014 L 307, p. 1). 8 Directive of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (OJ 2018 L 328, p. 82). 9 Resolution MEPC.304(72). 10 Paragraph 4.7.11 of the Initial Strategy. 11 The explanation provided by the IMO on its official website (https://www.imo.org/en/MediaCentre/Pages/WhatsNew-1603.aspx). In a broader context, life cycle assessment (LCA) addresses the environmental aspects and potential environmental impacts (for example, use of resources and the environmental consequences of releases) throughout a product’s life cycle from raw material acquisition through production, use, end-of-life treatment, recycling and final disposal (i.e. cradle-to-grave) (See introduction to ISO 14040:2006 Environmental management – Life cycle assessment – Principles and framework standard, available at https://www.iso.org/obp/ui/#iso:std:iso:14040:ed-2:v1:en). More recently, LCA has been incorporated into a number of policies/regulations, primarily those related to reducing the GHG emission intensity of transportation fuels. Although the field of LCA has expanded rapidly, many methodological and implementation-related challenges remain (Rajagopal, D., Vanderghem, C., MacLean, H.L., ‘Life Cycle Assessment for Economists’, Annual Review of Resource Economics, 2017, vol. 9:361–381, https://doi.org/10.1146/annurev-resource-100815-095513, pp. 362 and 363). 12 Report of the sixth meeting of the Intersessional Working Group on Reduction of GHG Emissions from Ships of 15 November 2019 (ISWG‑GHG 6), MEPC 75/7/2, paragraph 49.1-3. 13 Commission Staff Working Document: ‘Union submission to the seventh meeting of the Intersessional Working Group on Reduction of GHG Emissions from Ships of the IMO in London from 23 to 27 March 2020 on the introduction of lifecycle guidelines to estimate well-to tank greenhouse gas (GHG) emissions of sustainable alternative fuels to incentivise the uptake of sustainable alternative fuels at global level’ (SWD(2019) 456 final of 20 December 2019). 14 A formal EU position under Article 218(9) TFEU was to be established in due time (SWD(2019) 456 final, pp. 2 and 3 and footnote 8). 15 SWD(2019) 456 final, p. 2 and 3 and footnote 8. 16 SWD(2019) 456 final, p. 2 and footnote 1. 17 Council doc. 5606/20. 18 Judgments of 28 April 2015, Commission v Council (C‑28/12, EU:C:2015:282, paragraph 14), and of 20 November 2018, Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:925, paragraph 59). 19 Judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:925, paragraph 61). 20 As the Commission explains, Resolution 65/276 of the UN General Assembly of 3 May 2011 (‘UNGA Resolution 65/276’) sets out in its Annex the modalities for the participation of the representatives of the European Union, in its capacity as observer, in the sessions and work of the General Assembly and its committees and working groups, in international meetings and conferences under the auspices of the Assembly and in the United Nations conferences. 21 Argument raised for the first time in reply. 22 Droesse, G., Membership in International Organizations: Paradigms of Membership Structures, Legal Implications of Membership and the Concept of International Organization, The Hague, T.M.C. Asser Press, 2020, pp. 1-2, 11-12. 23 See, more broadly, Droesse, G., op. cit., pp. 151 and 152. The European Union, whose membership of other organisations is not rare, is an exception confirming the rule. 24 Some authors distinguish between participants being members (including full members, associate members, affiliate members and partial members) and non-members (including observers), noting however that the position of affiliate members comes close to that of observers. See Schermers, H.G., Blokker, N.M., International Institutional Law: Unity within Diversity, 5th Revised Edition, Leiden, Brill Nijhoff, 2011, pp. 63 and 150. 25 For more details, see Klabbers, J., An Introduction to International Institutional Law, 2nd ed., Cambridge, Cambridge University Press, 2009, pp. 94-99. 26 Regional Economic Integration Organisation or Regional Integration Organisation, respectively (‘the R(E)IO clause’). 27 Although, as J. Klabbers puts it, ‘[an] organization’s member states do not always warmly embrace observers’ (Klabbers, J., op. cit., p. 101). 28 Klabbers, J., op. cit., p. 100. 29 Klabbers, J., op. cit., p. 101. 30 Wessel, R.A., Odermatt, J., (eds.), Research Handbook on the European Union and International Organizations, Cheltenham, Gloucestershire, Edward Elgar Publishing, 2019, p. 16. 31 See, to that effect, Opinion 2/91 (ILO Convention No 170), of 19 March 1993 (EU:C:1993:106, paragraph 4). For such jurisdiction to exist, a special legal basis in an international agreement would be necessary. 32 See, inter alia, judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:925, paragraph 127 and the case-law cited). 33 See, to that effect, Opinion 2/91 (ILO Convention No 170) of 19 March 1993 (EU:C:1993:106, paragraph 5); judgments of 12 February 2009, Commission v Greece (C‑45/07, EU:C:2009:81, paragraph 31); of 7 October 2014, Germany v Council (C‑399/12, EU:C:2014:2258, paragraph 52); and Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014 (EU:C:2014:2303, paragraph 44). 34 For the overview of the case-law, see Wouters, J., Hoffmeister, F., De Beere, G., Ramopoulos, T., The Law of EU External Relations. Cases, Materials, and Commentary on the EU as an International Legal Actor, Third edition, Oxford University Press, Oxford, pp. 24, 25, 139 and 166. See also Van Elsuwege, P., ‘The Duty of Sincere Cooperation and its Implications for Autonomous Member State Action in the Field of External Relations’ in Varju, M., (ed.), Between Compliance and Particularism. Member State Interests and European Union Law, Springer, Cham, pp. 283-297. 35 For the IMO, see, for example, Article 4(1) of Council Decision 2013/268/EU of 13 May 2013 on the position to be taken on behalf of the European Union within the International Maritime Organization (IMO) with regard to the adoption of certain Codes and related amendments to certain conventions and protocols (OJ 2013 L 155, p. 3). 36 The Commission itself stated in the SWD that the formal decision under Article 218(9) TFEU would be adopted at a later stage. As Advocate General Sharpston noted in her Opinion in Council v Commission (C‑660/13, EU:C:2015:787, point 107), ‘unlike internal Union action, the instruments through which the Union acts externally are not limited to those for which the Treaties expressly provide, establish the form and effects and lay down the procedural steps to be taken’. Presenting the draft submission to the Council, the Commission could rightly have assumed that the formal decision under Article 218(9) TFEU was not necessary for the action in question. 37 See, by analogy, judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:925, paragraph 65). 38 At the hearing, the Commission disagreed with some views expressed in legal opinion, whereby it was the Union, and not the Commission, which had observer status with the IMO. 39 All the IMO documents referred to by the parties, as well as the IMO website, list the European Commission (and not the European Union) among the observers of this organisation (https://www.imo.org/en/OurWork/ERO/Pages/IGOsWithObserverStatus.aspx ). 40 The Commission claims that the submission of 2005 was not made in response to any invitation from the IMO. The Member States however identified and cited a particular IMO document of 28 June 2004 in which that invitation was made. Therefore, I assume that the submission was made in response to an invitation from the IMO. 41 Nothing prevents the Union and its Member States from taking adequate steps in order to change this situation. In particular, the institutions and the Member States could initiate the amendment of the 1974 Cooperation Arrangement or submit a proposal to enter into a new arrangement with the IMO with a view to changing the Union’s status in that organisation. 42 See footnote 33 of the present Opinion. 43 See, to that effect, for instance, Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014 (EU:C:2014:2303, paragraph 44). 44 See, more broadly, Schermers, H.G., Blokker, N.M., op. cit., p. 190; Droesse, G., op. cit., pp. 84-86; and Klabbers, J., op. cit., pp. 107 and 108. 45 As in the case of the representation of States within the meaning of Article 7 of the Vienna Convention on the Law of the Treaties. 46 This term, used by the Court in judgment of 5 May 1981, Commission v United Kingdom (804/79, EU:C:1981:93, paragraph 30), is applied in legal opinion to the situation in question, see, for example, Cremona, M., ‘Member States as Trustees of the Union Interests: Participating in International Agreements on Behalf of the European Union’, in Arnull, A., Barnard, C., Dougan, M., Spaventa, E. (eds.), A Constitutional Order of States?: Essays in EU Law in Honour of Alan Dashwood, Hart Publishing, London, 2011, pp. 435-458. 47 Only in exceptional situations has the Court declared agreements concluded by the Member States to be binding on the Community (for more details, see Cremona, M., op. cit., p. 447). It excluded such effect, however, for the Marpol Convention 73/78 (see, to that effect, judgment of 3 June 2008, The International Association of Independent Tanker Owners and Others, C‑308/06, EU:C:2008:312, paragraph 50). 48 It has also been argued in legal opinion that the situation where the Member States act instead of the Union in the situation in question is an exception ‘provided for in the Treaties’ referred to in Article 17(1) TEU. See, for instance, Martenczuk, B., ‘EUV Art. 17’ in Grabitz, E., Hilf, M., Nettesheim, M., (eds.), Das Recht der Europäischen Union, C.H. Beck, Munich, 2021, point 45. Be that as it may, the conclusion as regards the non-applicability of Article 17(1) TEU will be the same. 49 See, more broadly, Droesse, G., op. cit., pp. 85 and 86. During the hearing, the Commission did not question the possibility of such delegation of a task to a Member State, but only in the case of a previous rejection by the IMO of a submission made on behalf of the Union. 50 Following the entry into force of the Treaty of Lisbon, the Treaties do not provide for any competence for the Presidency of the Council in the area of international representation of the EU. There is thus no legal basis in the Treaties for such an action. This does not mean that whenever the Member States act in their own name, they cannot designate one to act on behalf of all of them. 51 In so far as the observer’s action is permitted. 52 Judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:925, paragraph 112). 53 Judgment of 31 March 1971, Commission v Council (22/70, EU:C:1971:32) 54 Chamon, M., ‘Implied exclusive powers in the ECJ’s post-Lisbon jurisprudence: The continued development of the ERTA doctrine’, Common Market Law Review, vol. 55(4), 2018, p. 1102. 55 Idem, p. 1140. 56 See, to that effect, Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014 (EU:C:2014:2303, paragraph 74); judgment of 26 November 2014, Green Network (C‑66/13, EU:C:2014:2399, paragraph 33); and Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017 (EU:C:2017:114, paragraph 108). 57 See, also, Rosas, A., ‘EU External Relations: Exclusive Competence Revisited’, Fordham International Law Journal, vol. 38(4), 2015, p. 1086. 58 See, to that effect, judgment of 4 September 2014, Commission v Council, (C‑114/12, EU:C:2014:2151, paragraph 102); Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014 (EU:C:2014:2303, paragraph 85); and judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:925, paragraph 114). 59 Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014 (EU:C:2014:2303, paragraph 71; judgment of 26 November 2014, Green Network (C‑66/13, EU:C:2014:2399, paragraph 29); and Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017 (EU:C:2017:114, paragraph 105). 60 Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014 (EU:C:2014:2303, paragraph 72); judgment of 26 November 2014, Green Network (C‑66/13, EU:C:2014:2399, paragraph 30); and Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017 (EU:C:2017:114, paragraph 106). 61 See, to that effect, Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014 (EU:C:2014:2303, paragraph 73), and judgment of 26 November 2014, Green Network (C‑66/13, EU:C:2014:2399, paragraph 31); as well as Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017 (EU:C:2017:114, paragraph 107). 62 See, to that effect, judgments of 4 September 2014, Commission v Council (C‑114/12, EU:C:2014:2151, paragraph 75), and of 20 November 2018, Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:925, paragraph 115). 63 In line with the suggestion made by Advocate General Sharpston in her Opinion in Commission v Council (C‑114/12, EU:C:2014:224, point 89). 64 The future instrument could be of a very different nature. For example, in their joint submission, Australia, Japan, Norway, the Republic of Korea and ICS, in order to reflect emissions in the upstream phase, proposed the introduction of fuel life cycle labelling indicating categories of fuel (IMO ISWG document ISWG‑GHG 7/5/8). 65 See the Initial Strategy, paragraph 4.7.11, and the Terms of Reference for ISWG‑GHG 6 approved during the 74th session of the MEPC, paragraph 7.48.4. 66 Some guidelines elaborated by the IMO Committees are referred to in the IMO conventions and are thus binding in nature. See, for example, the Marpol Convention 73/78/97, Annex I, Regulation 9(7)(g) or Annex I, Regulation 13F(5). Furthermore, there are also guidelines that are not attached in the same way to any binding instrument. 67 No direct proposals of amendments of IMO instruments were foreseen in the IMO documents either. 68 As indicated in recital 10 of the MRV Regulation, ‘public access to the emissions data will contribute to removing market barriers that prevent the uptake of many cost-negative measures which would reduce [GHG] emissions from maritime transport’. 69 And, as far as the maritime transport is concerned, it follows from the Fourth IMO Greenhouse Gas Study 2020 that, while all the GHG emissions of shipping amounted to 1 076 million tonnes in 2018, 1 056 million tonnes thereof were CO2 emissions. See Fourth IMO Greenhouse Gas Study 2020, IMO, London, 2021, p. 1, available at: https://www.imo.org/en/OurWork/Environment/Pages/Fourth-IMO-Greenhouse-Gas-Study-2020.aspx 70 See also recital 20 of the MRV Regulation explaining the limitation of the scope of that regulation: ‘To further reduce the administrative burden for shipowners and operators, the monitoring rules should focus on CO2 as the most relevant [GHG] emitted by maritime transport’. 71 See point 22 of the present Opinion. 72 The disputed submission leaves this question open, but suggests that WtT values not be used for fossil fuels. 73 The Intergovernmental Panel on Climate Change (IPCC), in its methodologies intended for use by countries to estimate GHG inventories to report to the United Nations Framework Convention on Climate Change, provides for a separate reporting of emissions from fuel use in ships engaged in international transport and of emissions from fuel production. The GHG emissions in the production and distribution phase for the fuels (upstream phase) should already be accounted for in calculations for another sector. The special values concerning the WtT GHG emissions for fuels (as proposed by the disputed submission) are thus not intended to provide general information about emissions in the upstream phase but to provide information on emissions in the upstream phase for operators in the shipping sector having monitoring and reporting obligations in the downstream phase. For the IPCC methodology see 2006 IPCC Guidelines for National Greenhouse Gas Inventories: https://www.ipcc-nggip.iges.or.jp/public/2006gl/ and the 2019 Refinement to the 2006 IPCC Guidelines for National Greenhouse Gas Inventories: https://www.ipcc-nggip.iges.or.jp/public/2019rf/index.html 74 I am fully aware that the term ‘incentivising’ can be misleading as it can refer to measures of a different nature. These can consist in providing information with a view to raising awareness, thereby influencing decisions made by individuals, but can also consist in imposing restrictions or additional obligations in case of non-compliance with certain requirements. The future international commitment as envisaged by the disputed submission does not allow it to be found that concrete measures going beyond raising awareness are to be adopted in the foreseeable future. In its application, the Commission itself claims that the objective of the instrument is to provide information that would incentivise the uptake of sustainable alternative fuels. 75 The IMO DCS was introduced following the adoption of Resolution MEPC.278(70) of 28 October 2016 (which entered into force on 1 March 2018), which amended Annex VI to the Marpol Convention 73/78/97 by adding to it a new Regulation 22A headed ‘Collection and reporting of ship fuel oil consumption data’. The IMO DCS thus has a legal basis in a binding international convention. 76 Judgment of 7 October 2014, Germany v Council (C‑399/12, EU:C:2014:2258). 77 Judgment of 7 October 2014, Germany v Council (C‑399/12, EU:C:2014:2258, paragraphs 57-64). 78 Judgment of 26 November 2014, Green Network (C‑66/13, EU:C:2014:2399, paragraph 61). 79 Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2015/757 in order to take appropriate account of the global data collection system for ship fuel oil consumption data COM/2019/38. 80 Article 22(3) of the MRV Regulation provides that ‘in the event that an international agreement on a global monitoring, reporting and verification system for greenhouse gas emissions or on global measures to reduce greenhouse gas emissions from maritime transport is reached, the Commission shall review this Regulation and shall, if appropriate, propose amendments to this Regulation in order to ensure alignment with that international agreement’. 81 See point 147 of the present Opinion. 82 Only in its oral pleadings, in response to questions of the Court, did the Commission refer to the fourth indent of Article 191(1) TFEU, Article 21 TEU, as well as to the global nature of maritime transport. It argued that, in order to be fully effective, any action against climate change taken in the maritime sector must be global and that it is impossible fully to attain the objectives of the Union without action at an international level. 83 Opinion 1/76 (Agreement on the establishment of a European Laying-up Fund for Inland Waterway Vessels) of 26 April 1977 (EU:C:1977:63, paragraphs 3 and 4). This case-law was supplemented in subsequent opinions and judgments, in particular in Opinion 1/94 (Agreements annexed to the WTO Agreement), and the Open Skies judgments of 15 November 1994, for example, judgment of 5 November 2002, Commission v Denmark (C‑467/98, EU:C:2002:625, paragraph 56). 84 See, to that effect, Opinion 1/76 (Agreement on the establishment of a European Laying-up Fund for Inland Waterway Vessels) of 26 April 1977 (EU:C:1977:63, paragraphs 4 and 7), and Opinion 1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994 (EU:C:1994:384, paragraph 85). 85 See, in particular, judgment of 5 November 2002, Commission v Denmark (C‑467/98, EU:C:2002:625, paragraph 57), and Opinion 1/03 (New Lugano Convention) of 7 February 2006 (EU:C:2006:81, paragraph 115). 86 See, to that effect, judgment of 5 November 2002, Commission v Denmark (C‑467/98, EU:C:2002:625, paragraphs 57-62). 87 See, to that effect, judgment of 5 December 2017, Germany v Council, C‑600/14, EU:C:2017:935, paragraph 68). 88 See, by analogy, judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:925, paragraphs 130-133).