Opinion of the Advocate General — ECLI:EU:C:2003:503
Date: 2003-09-25
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Provisions governing the Institutions;Commercial policy;Acts of the institutions
Procedure: Action for annulment - unfounded
Origin: France

Summary of the Judgment 1. Acts of the institutions – Guidelines on regulatory cooperation and transparency agreed upon with the United States of America – Institution competent to adopt such a measure – Account to be taken of the division of powers and the institutional balance established by the Treaty in the field of the common commercial policy – Non-binding effect of the Guidelines – Irrelevant (Arts 133 EC and 300 EC) 2. International agreements – Determination of binding character – Decisive criterion – Intention of the parties – Guidelines on regulatory cooperation and transparency agreed upon with the United States of America – Non-binding effect – Undermining of the Commission’s power of legislative initiative – Exclusion (Art. 300 EC) 1. The fact that a measure, such as the Guidelines on regulatory cooperation and transparency agreed upon with the United States of America, is not binding is not sufficient to confer on the Commission the competence to adopt it. Determining the conditions under which such a measure may be adopted requires that the division of powers and the institutional balance established by the Treaty in the field of the common commercial policy be duly taken into account, since in this case the measure seeks to reduce the risk of conflict related to the existence of technical barriers to trade in goods. (see para. 40) 2. For the purpose of determining whether or not a measure, such as the guidelines on regulatory cooperation and transparency agreed upon with the United States of America, is binding, the intention of the parties must in principle be the decisive criterion. In the present case, that intention is clearly expressed in the text of the Guidelines itself, paragraph 7 of which specifies that the purpose of the document is to establish guidelines which regulators of the United States Federal Government and the services of the Commission ‘intend to apply on a voluntary basis’. On the basis of that information, it is apparent that the parties had no intention of entering into legally binding commitments when they concluded those guidelines. Consequently, those guidelines do not constitute a binding agreement and therefore do not fall within the scope of Article 300 EC. Since they are devoid of binding effect, those guidelines cannot impose obligations on the Commission in carrying out its role of initiating legislation in the context of the Community legislative process. Therefore, the mere fact that a measure such as those guidelines provides for the possibility of engaging in prior consultation and gathering all necessary information before submitting appropriate proposals cannot undermine the Commission’s power of initiative. (see paras 42-43, 45, 50-51)