Opinion of the Advocate General — ECLI:EU:C:2015:190
Date: 2015-03-19
Language of the case: English
Subject matter: Environment;Approximation of laws
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Denmark;United Kingdom

Summary 96. As neither the first nor the second ground of appeal can be upheld, the appeal in its entirety has no prospects of success and should therefore be dismissed as being partially inadmissible and partially unfounded. V – Costs 97. If, as I propose in this case, the appeal is dismissed, the Court will make a decision as to costs under Article 184(2) of the Rules of Procedure, the details of which are set out in Articles 137 to 146, in conjunction with Article 184(1), of those Rules of Procedure. 98. It follows from Article 138(1) and (2), in conjunction with Article 184(1), of the Rules of Procedure that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings; where there is more than one unsuccessful party, the Court is to decide how costs are to be shared. Since the Commission has applied for costs and the appellants have been unsuccessful, they must be ordered to pay the costs. They must pay those costs jointly and severally since they brought the appeal jointly. (65) 99. A different decision must be taken on the costs incurred by the Parliament and by the Council. Those institutions, which intervened in the proceedings at first instance in support of the Commission, also participated in the written and oral parts of the appeal proceedings. Under the second sentence of Article 184(4) of the Rules of Procedure, the Court may decide that such parties are to bear their own costs. 100. According to its wording (‘may’), the latter provision certainly does not prevent the Court, where appropriate, from taking a different decision and ordering the unsuccessful appellant to pay the costs incurred by the opposing intervener at first instance if the latter, like the Parliament and Council in the present case, has been successful in its pleas in the appeal proceedings. (66) In the present case, however, it would seem that the rule laid down in the second sentence of Article 184(4) of the Rules of Procedure should be applied. This is also supported by Article 140(1), in conjunction with Article 184(1), of the Rules of Procedure. (67) VI – Conclusion 101. In the light of the foregoing, I propose that the Court should: (1) dismiss the appeal; (2) order the European Parliament and the Council of the European Union to bear their own costs; (3) order, for the remainder, the appellants jointly and severally to bear the costs of the proceedings. 1 Original language: German. 2 Other legal disputes concerning Article 114 TFEU are pending, namely Cases C‑358/14 (Poland v Parliament and Council), C‑477/14 (Pillbox 38) and C‑547/14 (Philip Morris and Others). 3 The Inuit are an indigenous ethnic group who live primarily in the arctic and subarctic regions of central and north-eastern Canada, in Alaska, in Greenland and in parts of Russia. The term Eskimo(s), which is sometimes used colloquially, describes other arctic ethnic groups in addition to the Inuit. 4 Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products (OJ 2009 L 286, p. 36). 5 Order in Inuit Tapiriit Kanatami and Others v Parliament and Council (T‑18/10, EU:T:2011:419), confirmed by the judgment in Inuit Tapiriit Kanatami and Others v Parliamentand Council (C‑583/11 P, EU:C:2013:625). 6 Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products (OJ 2010 L 216, p. 1). 7Inuit Tapiriit Kanatami and Others v Commission (T‑526/10, EU:T:2013:215), ‘the judgment under appeal’. 8 French: ‘qui constitue un idéal à atteindre dans un esprit de partenariat et de respect mutuel’; Spanish: ‘como ideal común que debe perseguirse en un espíritu de solidaridad y respeto mutuo’. 9 The proceedings initiated by Canada and Norway against the European Union before the World Trade Organisation’s Dispute Settlement Body (‘EC — Seal Products’, DS 400 and DS 401), in which the final reports with recommendations were adopted on 18 July 2014, concerned different matters from the present appeal proceedings. 10 See points 27 to 96 of this Opinion. 11 In this regard the General Court relied on the case-law occasionally applied by the Court of Justice following from Council v Boehringer (C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52) and France v Commission (C‑233/02, EU:C:2004:173, paragraph 26). 12Stadtwerke Schwäbisch Hall and Others v Commission (C‑176/06 P, EU:C:2007:730, paragraph 18). 13 See footnote 5 above. 14 The third variant of the fourth paragraph of Article 263 TFEU, which was introduced by the Treaty of Lisbon, confers on natural or legal persons standing to institute proceedings against a regulatory act which is of direct concern to them and does not entail implementing measures. 15CIRFS and Others v Commission (C‑313/90, EU:C:1993:111, paragraphs 30 and 31). 16France v Commission (15/76 and 16/76, EU:C:1979:29, paragraph 7); Crispoltoni and Others (C‑133/93, C‑300/93 and C‑362/93, EU:C:1994:364, paragraph 43); IECC v Commission (C‑449/98 P, EU:C:2001:275, paragraph 87) and Schaible (C‑101/12, EU:C:2013:661, paragraph 50). 17Arnold André (C‑434/02, EU:C:2004:800, paragraph 38); Swedish Match (C‑210/03, EU:C:2004:802, paragraph 37); Germany v Parliament and Council (C‑380/03, EU:C:2006:772, paragraphs 46, 51 and 55) and Vodafone and Others (C‑58/08, EU:C:2010:321, in particular paragraph 39). 18British American Tobacco (Investments) and Imperial Tobacco (C‑491/01, EU:C:2002:741, paragraph 60); United Kingdom v Parliament and Council (C‑217/04, EU:C:2006:279) and Vodafone and Others (C‑58/08, EU:C:2010:321, paragraph 32). 19Germany v Parliament and Council (C‑380/03, EU:C:2006:772, paragraph 37) and Vodafone and Others (C‑58/08, EU:C:2010:321, paragraph 32). 20Germany v Parliament and Council (C‑376/98, EU:C:2000:544, paragraphs 84 and 106) and Vodafone and Others (C‑58/08, EU:C:2010:321, paragraph 32). 21 See in particular paragraph 36 of the judgment under appeal. 22 Recitals 5, 6 and 7 in the preamble to Regulation No 1007/2009. 23 Recital 6 in the preamble to Regulation No 1007/2009. 24 Recitals 7 and 10 in the preamble to Regulation No 1007/2009. 25AJD Tuna (C‑221/09, EU:C:2011:153, paragraph 59). 26Stora Kopparbergs Bergslags v Commission (C‑286/98 P, EU:C:2000:630, paragraph 61); similarly, Präsident Ruhrkohlen-Verkaufsgesellschaft and Others v High Authority (36/59 to 38/59 and 40/59, EU:C:1960:36, in particular pp. 442 to 444) and Picciolo v Parliament (111/83, EU:C:1984:200, paragraph 22). 27Michel v Parliament (195/80, EU:C:1981:284, paragraph 22); Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 463); Elf Aquitaine v Commission (C‑521/09 P, EU:C:2011:620, paragraph 149) and Alliance One International and Standard Commercial Tobacco v Commission (C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 74). 28 Paragraph 51 of the judgment under appeal. 29 Belgium and the Netherlands. 30 See, to that effect, Arnold André (C‑434/02, EU:C:2004:800, paragraph 38) and Swedish Match (C‑210/03, EU:C:2004:802, paragraph 37). 31Sumitomo Metal Industries and Nippon Steel v Commission (C‑403/04 P and C‑405/04 P, EU:C:2007:52, paragraph 40); Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 117); Solvay v Commission (C‑109/10 P, EU:C:2011:686, paragraph 51) and Commission v Stichting Administratiekantoor Portielje (C‑440/11 P, EU:C:2013:514, paragraph 59). 32British American Tobacco (Investments) and Imperial Tobacco (C‑491/01, EU:C:2002:741, paragraph 64); Arnold André (C‑434/02, EU:C:2004:800, paragraph 39) and Swedish Match (C‑210/03, EU:C:2004:802, paragraph 38). 33Germany v Parliament and Council (C‑380/03, EU:C:2006:772, paragraph 53). 34 See paragraph 55 of the judgment under appeal. 35 See again the judgments cited above in footnotes 32 and 33. 36 Case-law has recognised a kind of de minimis threshold in some cases only in respect of the intensity of interference with fundamental freedoms, but not in respect of the significance of the relevant volume of trade; see, for example, CMC Motorradcenter (C‑93/92, EU:C:1993:838, paragraph 12); Graf (C‑190/98, EU:C:2000:49, paragraph 25) and Commission v Spain (C‑211/08, EU:C:2010:340, paragraph 72). 37 See, in particular, paragraph 105 of the judgment under appeal. 38Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522, paragraph 32) and Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 44) and Opinion 2/13 (EU:C:2014:2454, paragraph 179). 39 See, to that effect, Otis and Others (C‑199/11, EU:C:2012:684); Chalkor v Commission (C‑386/10 P, EU:C:2011:815) and Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522); also in Sky Österreich (C‑283/11, EU:C:2013:28) the Court examined only the provisions of the Charter of Fundamental Rights even though the question referred to it also related to Additional Protocol No 1 to the ECHR. 40 See also my Opinion in Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:229, point 143) and my View in Opinion 2/13 (EU:C:2014:2475, point 203). 41 In so far as the appellants claim that the protection of commercial interests is more strongly expressed in the ECHR than in the Charter of Fundamental Rights, I will examine that contention in the context of the second part of the second ground of appeal (see below, points 72 to 82 of this Opinion). 42Nold v Commission (4/73, EU:C:1974:51, paragraph 14); FIAMM and Others v Council and Commission (C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 185) and Sky Österreich (C‑283/11, EU:C:2013:28, paragraph 34). 43Faust v Commission (52/81, EU:C:1982:369, paragraph 27); Swedish Match (C‑210/03, EU:C:2004:802, paragraph 73) and Alliance for Natural Health and Others (C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 128). 44 European Court of Human Rights, judgments Marckx v. Belgium, 13 June 1979, § 50, Series A no. 31; Anheuser-Busch v. Portugal [GC], no. 73049/01, § 64, ECHR 2007-I and Malik v. United Kingdom, no. 23780/08, § 93, 13 March 2012. 45 See, for example, European Court of Human Rights, judgments Pressos Compania Naviera v. Belgium, 20 November 1995, § 31, Series A no. 332 and Maurice v. France [GC], no. 11810/03, § 63, ECHR 2005-IX. 46 See also, to this effect, European Court of Human Rights, Maurice v. France (cited above in footnote 45, §§ 65 and 66) and Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 83 to 87, ECHR 2001-VIII. 47 European Court of Human Rights, judgments Tre Traktörer v. Sweden, 7 July 1989, § 53, Series A no. 159; Van Marle and Others v. Netherlands, 26 June 1986, Series A no. 101; Iatridis v. Greece [GC], no. 31107/96, §§ 54 and 55, ECHR 1999-II; Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, §§ 178 and 179, ECHR 2012 and Malik v. United Kingdom (cited above in footnote 44, § 93). 48 See, in particular, paragraph 109 of the judgment under appeal. 49 This is suggested by their reference to Alliance for Natural Health and Others (C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 127). 50Groupe Gascogne v Commission (C‑58/12 P, EU:C:2013:770, paragraph 35); see also Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 165), Alliance One International and Standard Commercial Tobacco v Commission (C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 111) and Nexans and Nexans France v Commission (C‑37/13 P, EU:C:2014:2030, paragraph 45). 51Sky Österreich (C‑283/11, EU:C:2013:28, paragraphs 45 and 46). 52 See, to this effect, Lindorfer v Council (C‑227/04 P, EU:C:2007:490, paragraph 83); Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522, paragraphs 45 and 106) and MasterCard and Others v Commission (C‑382/12 P, EU:C:2014:2201, paragraph 151). 53 See again the case-law cited above in footnote 50. 54 See, inter alia, Scaramuzza v Commission (C‑76/93 P, EU:C:1994:371, paragraph 18); Akzo Nobel and Others v Commission (C‑97/08 P, EU:C:2009:536, paragraphs 38 and 39) and Commission v Poland (C‑504/09 P, EU:C:2012:178, paragraphs 35 and 36). 55Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraph 101). 56 See the last recital in the preamble to the UNDRIP (emphasis added). 57 See in this connection, in particular, the judgments of the ICJ of 20 February 1969 in the North Sea Continental Shelf Cases (Germany v Netherlands and Germany v Denmark), I.C.J. Reports 1969, p. 4 (paragraph 77) and of 27 June 1986 in the Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), I.C.J. Reports 1986, p. 14 (paragraphs 183 and 184). 58 Resolution 61/295 was adopted by 143 votes to four, with 11 abstentions (Official Records of the General Assembly, Sixty-First Session, Supplement No 53, A/61/53, Part One, Chapter II, Section A). Australia, Canada, New Zealand and the United States of America voted against the resolution; abstentions included Bangladesh, Kenya, Columbia, Nigeria and the Russian Federation. 59NTN Toyo Bearing and Others v Council (113/77, EU:C:1979:91, paragraph 21). 60Fediol v Commission (191/82, EU:C:1983:259, paragraph 22); see, most recently, also Council and Parliament v Commission and Commission v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 58). 61 Recital 14 in the preamble to Regulation No 1007/2009. 62Nakajima v Council (C‑69/89, EU:C:1991:186, paragraph 31); see, most recently, also Council and Parliament v Commission and Commission v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 59). 63 With regard to ‘soft law’, see for example, recently, the Opinion of Advocate General Cruz Villalón in Germany v Council (C‑399/12, EU:C:2014:289, point 97, with further references). 64 Paragraphs 114 and 115 of the judgment under appeal. 65Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512, paragraph 123); to the same effect, see D and Sweden v Council (C‑122/99 P and C‑125/99 P, EU:C:2001:304, paragraph 65); in the latter case D and the Kingdom of Sweden had even lodged two separate appeals and were nevertheless ordered jointly and severally to pay the costs. 66 See, for example, Council v Zhejiang Xinan Chemical Industrial Group (C‑337/09 P, EU:C:2012:471, paragraph 112); in that case, the Council, as the unsuccessful appellant, was ordered to pay the costs, including those incurred by Audace as the opposing intervener at first instance, which had been successful in its pleas in the appeal proceedings. 67 See, to this effect, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph116).