Opinion of the Advocate General — ECLI:EU:C:2015:174
Date: 2015-03-17
Language of the case: English
Subject matter: Environment
Procedure: Action for annulment - unfounded;Action for annulment - successful

Summary — Judgment of the Court (Grand Chamber), 16 July 2015 1. Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Council decision authorising the opening of negotiations with a third State — Included — Conditions (Arts 218(3) and (4) TFEU and 263, second para., TFEU; Council Decision of 13 May 2013, Art. 1(2) and Annex, Section A) 2. International agreements — Agreements of the European Union — Negotiation and conclusion — Article 218 TFEU — Division of powers — Conferral of specific powers on the various institutions — Special committee designated by the Council — Obligations to provide information imposed on the Commission by the Council decision authorising the opening of negotiations — Compatibility with the limits of the powers conferred on each institution — Observance of the principle of institutional balance (Art. 13(2) TEU; Arts 218(2) and (4) TFEU and 295 TFEU; Council Decision of 13 May 2013, Art. 2, 2nd sentence) 3. International agreements — Agreements of the European Union — Negotiation and conclusion — Negotiating directives addressed by the Council to the Commission —Directives setting out procedural arrangements governing the process for the provision of information, for communication and for consultation between the special committee and the Commission — Observance of the division of powers and of the principle of institutional balance (Art. 13(2) TEU; Arts 218(2) to (4) TFEU and 295 TFEU; Council Decision of 13 May 2013, Annex, Section A, paras 1 and 2) 4. International agreements — Agreements of the European Union — Negotiation and conclusion — Negotiating directives addressed by the Council to the Commission — Provisions imposing binding negotiating positions — Infringement of the division of powers and of the principle of institutional balance — Annulment (Art. 13(2) TEU; Arts 218(2) to (4) TFEU and 295 TFEU; Council Decision of 13 May 2013, Art. 1(2) and Annex, Section A, para. 3, 1st sentence) 5. Actions for annulment — Judgment annulling a measure — Scope — Partial annulment of a measure of EU law — Condition — Severability of the elements of the contested measure which are to be annulled — Council decision authorising the opening of negotiations for an international agreement — Heads of annulment not altering the substance of the Commission’s obligations relating to the conduct of the negotiations — Severable (Art. 263 TFEU) 1. An action for annulment under Article 263 TFEU must be available in the case of all measures adopted by the EU institutions, irrespective of their nature or form, provided that they are intended to have legal effects. In order to ascertain whether such measures produce legal effects it is necessary to look to their substance. In this regard, a decision adopted on the basis of Article 218(3) and (4) TFEU produces legal effects as regards relations between the European Union and its Member States and between the EU institutions. Thus, a Council decision authorising the opening of negotiations with a third State, such as the Decision of 13 May 2013 authorising the opening of negotiations on linking the EU emissions trading scheme with an emissions trading system in Australia, can be the subject of an action for annulment brought by the Commission, inasmuch as it sets out a precise and detailed procedure, concerning the negotiation of the contemplated agreement, which the Council seeks to impose upon the Commission. (see paras 26-30) 2. As regards the conclusion of international treaties, Article 218 TFEU constitutes an autonomous and general provision of constitutional scope, in that it confers specific powers on the EU institutions. With a view to establishing a balance between those institutions, it provides, in particular, that agreements between the European Union and one or more third States are to be negotiated by the Commission, in compliance with the negotiating directives drawn up by the Council, and then concluded by the Council, either after obtaining the consent of the European Parliament or after consulting it. The power to conclude such agreements is, however, conferred on the Council subject to the powers vested in the Commission in this field. In the context of those functions, the Council and the Commission are nevertheless required to comply with the principle of sincere cooperation, which is of particular importance for EU action at international level as such action triggers a closely circumscribed process of concerted action and consultation between the EU institutions. Where the Council has designated a special committee under Article 218(4) TFEU, the Commission must provide the special committee with all the information necessary for it to monitor the progress of the negotiations, such as, in particular, the general aims announced and the positions taken by the other parties throughout the negotiations. It is only in this way that the special committee is in a position to formulate opinions and advice relating to the negotiations. Having regard to the various functions of the institutions in the negotiation and conclusion of the agreements referred to in Article 218 TFEU, the Commission can be required to provide that information to the Council as well. Consequently, an obligation in the Council decision authorising the opening of negotiations which provides that the Commission is to report in writing to the Council on the outcome of the negotiations after each negotiating session and, in any event, at least quarterly must be regarded as in conformity with Article 218(2) and (4) TFEU. Such an obligation also complies with the obligation laid down in Article 13(2) TEU that each EU institution is to act within the limits of the powers conferred on it by the Treaties. Likewise, it does not infringe the principle of institutional balance or Article 295 TFEU. (see paras 62, 64, 66-68, 70-72) 3. Article 218(4) TFEU must be interpreted as empowering the Council to set out, in the negotiating directives addressed to the Commission with a view to conclusion of an international agreement, procedural arrangements governing the process for the provision of information, for communication and for consultation between (i) the special committee designated by the Council and (ii) the Commission, as such rules meet the objective of ensuring proper cooperation at the internal level. Such procedural arrangements do not infringe Article 13(2) TEU, the principle of institutional balance or Article 295 TFEU. (see paras 78, 84) 4. Whilst Article 218(4) TFEU authorises the Council, for the purpose of the negotiation of international agreements by the Commission, to draw up negotiating directives, it does not, on the other hand, invest it with the power to impose detailed negotiating positions on the negotiator. Since provisions seeking to bind the negotiator go beyond the consultative function which is assigned to the special committee designated by the Council, they amount to an infringement by the Council of the obligation laid down by Article 13(2) TEU to act within the limits of the powers conferred on it by Article 218(2) to (4) TFEU. Furthermore, in adopting such provisions, the Council also infringes the principle of institutional balance. (see paras 88-92) 5. See the text of the decision. (see paras 94, 95)