Opinion of the Advocate General — ECLI:EU:C:2007:528
Date: 2007-09-19
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - successful

Summary of the Judgment 1. European Union – Common foreign and security policy – Powers of the Community judicature – Acts adopted under Title V of the Treaty on European Union (Arts 230 EC and 241 EC; Arts 46(f) EU and 47 EU) 2. European Union – Common foreign and security policy – Acts adopted under Title V of the Treaty on European Union (Art. 47 EU) 3. Development cooperation – Competence of the Community – Extent – Measures to combat the proliferation of small arms and light weapons (Art. 177 EC) 4. European Union – Common foreign and security policy – Combating the proliferation of small arms and light weapons (Art. 47 EU; Council Decision 2004/833) 1. It follows from Article 46(f) EU that the provisions of the EC Treaty concerning the powers of the Court and the exercise of those powers are applicable to Article 47 EU. Under the latter article, none of the provisions of the EC Treaty is to be affected by a provision of the EU Treaty. It is therefore the task of the Court to ensure that acts which, according to the Council, fall within the scope of Title V of the EU Treaty and which, by their nature, are capable of having legal effects, do not encroach upon the powers conferred by the EC Treaty on the Community. It follows that the Court has jurisdiction to consider an action for annulment of an act adopted under Title V of the EU Treaty brought by a Community institution under Article 230 EC and, in that context, to consider the pleas invoked in accordance with Article 241 EC in so far as they allege an infringement of Article 47 EU. (see paras 31-34) 2. A measure having legal effects adopted under Title V of the EU Treaty affects the provisions of the EC Treaty within the meaning of Article 47 EU whenever it could have been adopted on the basis of the EC Treaty, it being unnecessary to examine whether the measure prevents or limits the exercise by the Community of its competences. If it is established that the provisions of a measure adopted under Titles V or VI of the EU Treaty, on account of both their aim and their content, have as their main purpose the implementation of a policy conferred by the EC Treaty on the Community, and if they could properly have been adopted on the basis of the EC Treaty, those provisions will infringe Article 47 EU. Since the infringement of Article 47 EU arises from the fact that a measure having legal effects adopted by the Union on the basis of the EU Treaty could have been adopted by the Community, it is also not relevant whether, in an area which does not fall within the exclusive competence of the Community and in which, therefore, the Member States are not precluded from exercising, individually or collectively, their competences, such a measure could have been adopted by the Member States in exercise of their competences. Moreover, the question whether the provisions of such a measure adopted by the Union fall within the competence of the Community relates to the attribution and, thus, the very existence of that competence, and not its exclusive or shared nature. (see paras 60-62) 3. While the objectives of current Community development cooperation policy should not be limited to measures directly related to the campaign against poverty, it is none the less necessary, if a measure is to fall within that policy, that it contributes to the pursuit of that policy’s economic and social development objectives. In that regard, it is apparent from a number of documents emanating from the Union institutions and from the European Council that certain measures aiming to prevent fragility in developing countries, including those adopted in order to combat the proliferation of small arms and light weapons, can contribute to the elimination or reduction of obstacles to the economic and social development of those countries. Nevertheless, a concrete measure aiming to combat the proliferation of small arms and light weapons may be adopted by the Community under its development cooperation policy only if that measure, by virtue both of its aim and its content, falls within the scope of the competences conferred by the EC Treaty on the Community in that field. That is not the case if such a measure, even if it contributes to the economic and social development of the developing country, has as its main purpose the implementation of the Common Foreign and Security Policy of the Union. (see paras 67-68, 71-72) 4. Decision 2004/833 implementing Joint Action 2002/589/CFSP with a view to a European Union contribution to the Economic Community of West African States in the framework of the Moratorium on Small Arms and Light Weapons contains, taking account of its aim and its content, two components, neither of which can be considered to be incidental to the other, one falling within Community development cooperation policy and the other within the Common Foreign and Security Policy (CFSP). With regard to a measure which simultaneously pursues a number of objectives or which has several components, without one being incidental to the other, where various legal bases of the EC Treaty are applicable, that measure will have to be founded, exceptionally, on the various corresponding legal bases. However, under Article 47 EU, such a solution is impossible with regard to a measure which pursues a number of objectives or which has several components falling, respectively, within development cooperation policy, as conferred by the EC Treaty on the Community, and within the CFSP, and where neither one of those components is incidental to the other. Since Article 47 EU precludes the Union from adopting, on the basis of the EU Treaty, a measure which could properly be adopted on the basis of the EC Treaty, the Union cannot have recourse to a legal basis falling within the CFSP in order to adopt provisions which also fall within a competence conferred by the EC Treaty on the Community. It follows that the Council infringed Article 47 EU by adopting Decision 2004/833 on the basis of Title V of the EU Treaty, since that decision* also falls within development cooperation policy. (see paras 75-77, 108-109)