62001CC0281_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I ─ Introduction
1.
The present proceedings concern the choice of legal basis for the Council decision approving the Agreement on the coordination of energy-efficient labelling programs for office equipment ( "the Energy Star Agreement"
). As in Opinion 2/00 given by the Court last year, the issue is once again to define the scope of, on the one hand, Article 133 EC relating to commercial policy and, on the other, Article 175 EC relating to environmental protection.
II ─ Legal context
(1)
Energy Star Agreement
2.
The provisions of the Energy Star Agreement relevant to the present proceedings are set out below.
3.
The agreement's title is
"Agreement between the Government of the United States of America and the European Community on the coordination of energy-efficient labelling programs for office equipment"
.
4.
The preamble to the agreement states:
"The Government of the United States of America and the European Community, ... desiring to maximise energy savings and environmental benefits by stimulating the supply of and demand for energy-efficient products, have agreed as follows"
.
5.
Article I, headed
"General Principles"
, provides:
"1.
A common set of energy-efficiency specifications and a common logo shall be used by the Parties for the purpose of establishing consistent targets for manufacturers, thereby maximising the effect of their individual efforts on the supply of and demand for such product types.
2.
The Parties shall use the Common Logo for the purpose of identifying qualified energy-efficient product types listed in Annex C.
3.
The Parties shall ensure that common specifications encourage continuing improvement in efficiency, taking into account the most advanced technical practices on the market.
4.
The Parties shall ensure that consumers have the opportunity to identify efficient products by finding the label in the market.
"
6.
Article 2, headed
"Definitions"
, provides:
"1.
For the purposes of this Agreement:
(a)
...
(b)
"Common Logo"
means the US-registered certification mark designated in Annex A and owned by [the United States Environmental Protection Agency];
(c)
...
(d)
"Energy Star Labelling Program"
means a program administered by a Management Entity using common energy-efficiency specifications, marks, and guidelines to be applied to designated product types;
(e)
...
(f)
...
"
7.
Annex A sets out the common logo while Annex B establishes the guidelines for use of the logo and of the Energy Star name. Annex C lays down the respective specifications for products covered by the agreement. Specifications are set out for the following product types: computers, monitors, printers, fax machines, mailing machines, copiers, scanners and multifunction devices.
(2)
Regulation (EC) No 2422/2001 of the European Parliament and of the Council of 6 November 2001 on a Community energy efficiency labelling programme for office equipment (2)
8.
The Energy Star Agreement was transposed into Community law by Regulation No 2422/2001. The legal basis for adoption of the regulation was Article 175(1) EC although the proposal presented by the Commission
(3) specified Article 95 EC as the legal basis.
III ─ Facts
9.
The American Environmental Protection Agency ( "the EPA"
) set up the Energy Star Program in 1992. At first covering primarily office equipment, it has since been extended to household appliances, heating and cooling equipment, consumer electronics, home office equipment, water-coolers, house construction, lighting, windows, ventilating fans, emergency exit signs, roofing material, transformers, traffic lights and other products and services.
(4) Under that programme, provisions concerning energy consumption of products and in relation to services are laid down. They set non-binding standards. Manufacturers of the relevant products can participate in the programme on a voluntary basis. The Energy Star logo was created for the identification of products which adhere to the provisions.
10.
The office-equipment industry, including European manufacturers, largely observes the provisions set out under the programme and uses the Energy Star logo for its products. Given that situation, the Commission suggested that the Community, instead of developing its own programme for energy-efficient office equipment, should attach itself to the American programme. On 1 July 1999 it therefore communicated to the Council a proposal, based on Article 133 EC, for a decision concerning the conclusion of the Energy Star Agreement with the United States of America.
(5)
11.
The Council unanimously adopted that proposal on 14 December 2000,
(6) but on the basis of Article 175(1) EC. The agreement was signed in Washington on 19 December 2000.
12.
By Decision 2001/469/EC of 14 May 2001, the decision challenged in the present case, the Council approved the conclusion of the agreement.
(7) Article 175(1) EC was again the legal basis. The agreement then entered into force on 7 June 2001.
IV ─ Arguments of the parties and forms of order sought
(1)
The Commission
13.
The Commission contests the legal basis chosen for the decision of 14 May 2001. In its submission the agreement, in accordance with its aim and content, seeks to facilitate trade. It enables manufacturers to market their products in both the European and the American market using one single label obtainable through one single registration. Manufacturers of office equipment are thereby spared the costs which would result from the use of two different labels, each with its own requirements and registration procedure. Article 133 EC must therefore be the legal basis for the contested decision.
14.
The aim of the agreement is not to set up an energy-efficiency programme but to coordinate the European labelling programme with the American one. The alternative to concluding the Energy Star Agreement would have been to introduce separate European energy-efficiency labelling with its own standards and a separate registration procedure. That would have led to the existence of two competing energy labels and the resulting potential barriers to trade.
15.
The preamble to the agreement specifies that the latter's purpose is constituted by the contracting parties' endeavour to maximise energy savings and environmental benefits by stimulating the supply of and demand for energy-efficient products. However, this reflects only the rationale for the setting up of the Energy Star Program by the EPA and not the aim of the agreement to create a joint label for both markets by coordinating the various labelling programmes.
16.
The Commission also bases its view on the title of the agreement, which speaks of the
"coordination of ... labelling programs"
. In addition the Commission refers to the wording of the 13th and 14th recitals in the preamble to its proposal for Regulation No 2422/2001 by which the agreement was transposed into Community law.
17.
The Commission relies furthermore on Community practice in relation to international agreements. Agreements concerning the mutual recognition of technical standards have been concluded with a series of non-member States on the basis of Article 133 EC. Nothing different is involved in the case of the Energy Star Agreement, which lays down common standards for energy-efficient office equipment.
18.
Its view is not precluded by the fact that the agreement also promotes environmental protection. Where trade agreements also take account of environmental aspects, that merely reflects Article 6 EC which declares that the task of protecting the environment applies across Community policies and activities. Referring to case-law of the Court of Justice,
(8) the Commission puts forward a broad interpretation of the concept of commercial policy within the meaning of Article 133 EC. Since unilaterally adopted environmental provisions have a potentially restrictive effect on trade, trade agreements increasingly also deal with environmental aspects. As the case-law has indeed already confirmed,
(9) the fact that regard is also had to environmental aspects in such agreements does not however mean that they can no longer be concluded on the basis of Article 133 EC. It cites in support of its view the Agreement on the Application of Sanitary and Phytosanitary Measures concluded within the framework of the WTO.
(10)
19.
The Commission regards the restrictive interpretation of the concept of commercial policy put forward by the Council as a step back from previous case-law and practice. It fears that that could undermine the effectiveness of Community commercial policy. The present proceedings concern the demarcation between the exclusive competence of the Community in the field of external trade and the shared Community and Member State competence in the field of environmental policy. It is true that the Energy Star Agreement was signed by the Community only. However, it is apparent from the statement made by the Council in the context of approval of the agreement
(11) that the Council regards trade agreements which have effects on environmental protection as environmental-policy measures and intends as a rule to conclude them as mixed agreements. For the Commission that is unacceptable.
20.
The fact that the provisions at issue are non-binding does not prevent the conclusion of the agreement from being regarded as a measure to facilitate trade. Voluntary standards can also give rise to barriers to trade. The Energy Star logo is a
de facto
requirement for the successful marketing of office equipment in the American market. The agreement pursues the objective of removing that
de facto
barrier to trade.
21.
The Commission considers that the Council's reference to Regulation (EC) No 1980/2000
(12) is not sound. Those rules concerning the internal market do not relate to the coordination of programmes with other States or the mutual recognition of certifications, which the Energy Star Agreement deals with. The legal basis selected for an intra-Community legal measure does not affect the choice of legal basis when approving an international agreement concluded by the Community.
22.
The Commission submits purely in the alternative that Article 175(1) EC is not under any circumstances a possible legal basis for concluding an international agreement. That provision grants authority for the adoption of internal legal measures only. In the context of the chapter concerning environmental protection, international agreements are instead to be based on Article 174(4) EC, as the Court has already decided.
(13)
23.
At the hearing the Commission also set out its view on Opinion 2/00. In its submission, the present case differs from that of the Opinion inasmuch as, unlike the Cartagena Protocol, the Energy Star Agreement was not negotiated within the framework of an agreement relating to environmental protection. Consequently, the Court's findings in Opinion 2/00 do not preclude the view that the Energy Star Agreement is to be approved on the legal basis provided by Article 133 EC.
24.
For those reasons the Council claims that the Court should annul Decision 2001/469 and order the Council to pay the costs.
(2)
The Council
25.
The Council contends that the action should be dismissed and the Commission ordered to pay the costs.
26.
In its submission, the aim and subject-matter of the agreement are the reduction of energy consumption by stimulating the supply of and demand for energy-efficient office equipment. It therefore considers Article 175(1) EC to be the correct legal basis.
27.
It relies in support of its interpretation on the preamble to the agreement, according to which the contracting parties are endeavouring
"... to maximise energy savings and environmental benefits ..."
.
28.
The Council additionally refers to Article I(1) of the agreement, according to which the parties concluded the agreement in order to maximise the effect of their individual efforts on the supply of and demand for energy-efficient products. That desire also finds expression in the diplomatic notes exchanged in connection with the conclusion of the agreement. They state that, to maximise the impact of their individual programmes for energy efficiency of office equipment, the contracting parties will use a single set of energy-efficiency specifications and a common logo.
(14)
29.
The Council disputes that the agreement has the effect of facilitating trade. The logo was already a
de facto
standard for producers before the agreement was concluded. European producers can also use the Energy Star logo awarded by the EPA without the agreement, by registering with the EPA.
30.
Besides, the agreement expressly allows the contracting parties to introduce further energy-efficiency programmes alongside the Energy Star Program. This confirms that the agreement does not result in the facilitation of trade since it does not in any way preclude the existence of a multiplicity of labels.
31.
The Council concludes that the agreement is trade-neutral. Article XI(4) indeed provides that neither party is to hinder the import, export, sale or distribution of any product because it bears energy-efficiency marks of the management entity of the other party.
32.
The agreement leads to synergies at best. The trade element of the agreement is in any event at most ancillary
(15) to its primary aim of environmental protection and therefore does not preclude application of Article 175 EC.
33.
The Council likewise supports its view by referring to Community practice with regard to international agreements. It states that numerous agreements have already been concluded on the basis of Article 175 EC although they also concern trade issues. It refers to the Vienna Convention for the protection of the ozone layer and the Montreal Protocol on substances that deplete the ozone layer,
(16) the Convention on the control of transboundary movements of hazardous wastes and their disposal (the Basel Convention)
(17) and the Washington Convention on international trade in endangered species of wild fauna and flora. The latter was implemented in the Community by the adoption of Regulation (EEC) No 3626/82, since replaced by Regulation (EC) No 338/97 which was based on Article 175 EC.
(18) In contrast to the present case, the agreements cited by the Commission concern the establishment of mandatory and not merely voluntary standards. There is, however, a substantial difference between those two categories. The fact that the legal basis provided by Article 133 EC has not been applied to the creation of other voluntary standards shows that the Commission's argument that voluntary standards may constitute barriers to trade is incorrect.
34.
The content of the agreement also shows that it is primarily concerned with energy conservation. Article IV stipulates that consumers are to be educated about the logo and its significance. Under Articles IV, V and VIII, provision is to be made for checks and measures in respect of enforcement of the proper use of the logo. The provisions on cooperation between the contracting parties and the mutual recognition of registrations effected by them (Articles VI, VIII, IX and X, and Article V) likewise serve solely to achieve the aim of reducing energy consumption.
35.
In support of its view, the Council also refers to intra-Community measures for the introduction of voluntary eco-labelling which have been adopted on the basis of Article 175 EC. It cites Regulation (EEC) No 880/92, which was adopted on the basis of the former Article 130s (now, after amendment, Article 175 EC),
(19) and Commission Decision 1999/205/EC of 26 February 1999.
(20) The preamble to that decision makes express reference to the Energy Star Program and envisages revision of the criteria specified in the decision in order to adapt the energy requirements to technological innovation, market developments and that programme. It is the Council's understanding that, as a result of the conclusion of the Energy Star Agreement, it did not become necessary to renew that decision under the new scheme which was introduced by Regulation No 1980/2000,
(21) a measure likewise adopted on the basis of Article 175 EC.
36.
Furthermore, only the view that environmental-protection measures are involved is compatible with the introduction by Member States of eco-labelling of their own, such as the Blue Angel, the Swan or the GEA-label. This shows that the Community and the Member States share competence in this field. If the introduction of eco-labelling were a commercial-policy measure, the Community would have exclusive competence and it would be unlawful for the Member States to act in this field.
37.
Referring to existing case-law,
(22) the Council rejects the use of Article 174(4) EC. According to that case-law, Article 174 EC is confined to defining the objectives of environmental policy whereas Article 175 EC constitutes the legal basis for Community legal measures adopted to put that policy into effect. The Council regards Opinion 2/00
(23) as confirming its view as to the choice of legal basis for approving the Energy Star Agreement. Furthermore, that Opinion contains a clear rejection of Article 174 EC as a possible legal basis.
V ─ Assessment
38.
In accordance with settled case-law, the choice of the legal basis for a measure must rest on objective factors which are amenable to judicial review. Those factors include in particular the aim and the content of the measure.
(24) If a measure pursues several purposes and one of these is identifiable as the main or predominant purpose, whereas the other is merely incidental, the measure must be founded only on the legal basis required by the main or predominant purpose.
(25) If, on the other hand, a measure simultaneously pursues objectives which are inseparably linked without one being secondary and indirect in relation to the other, it may by way of exception be founded on the various corresponding legal bases.
(26)
39.
The Commission and the Council agree on those principles but disagree as to the outcome of their application to the present case. While the Commission considers that a commercial-policy measure is at issue, the Council regards the agreement as an environmental-policy measure.
40.
The Commission contends that in the past the Court has given a wide interpretation to the concept of commercial policy within the meaning of Article 133 EC. In its submission, that justifies Article 133 EC as a basis for agreements which cover environmental aspects alongside trade.
41.
The Court of Justice indeed stated in Opinion 1/78 on the Agreement on Natural Rubber that it is not possible to lay down, for the concept of commercial policy, an interpretation the effect of which is to restrict that policy to the use of instruments intended to have an effect only on the traditional aspects of external trade.
(27) The open nature of the concept of commercial policy within the meaning of Article 133 EC was confirmed in Opinion 1/94 on the WTO Agreement.
(28) It may also be true that more and more international trade agreements pursue a variety of objectives, one of which is environmental protection. However, the finding that the Court has given a wide interpretation to the concept of commercial policy within the meaning of Article 133 EC can yield no more than a finding that the adoption of a commercial-policy measure is not precluded simply because account is taken of other aspects, for example environmental protection. It alone cannot result in the categorisation of the Energy Star Agreement as a commercial-policy measure.
42.
The question raised in the present case appears no more capable of being answered by reference to the judgments on measures relating
inter alia
to environmental protection but in which another matter was regarded as predominant.
(29) Those judgments expressly state every time that the trade or internal market aspect is central to the legal measure in question and that a measure is not to be based on Article 175 EC simply because it also relates to environmental protection. In this regard, that case-law merely illustrates, in relation to environmental protection, the foregoing general observations regarding the choice of legal basis. The aim and content of the Energy Star Agreement must therefore be examined below.
(1)
Wording and history of the Energy Star Agreement
43.
In order to establish the aim pursued by the Energy Star Agreement, its title should be considered first of all. According to the title, the agreement pursues the aim of coordinating labelling programmes. That pronouncement is defined more precisely in that labelling programmes for energy-efficient office equipment are stated to be at issue. The agreement's title consequently addresses two aspects, coordination and labelling of energy-efficient products.
44.
The coordination of labelling programmes facilitates trade inasmuch as a uniform label, founded on uniform (energy-efficiency) standards, is agreed upon. The number of labels used that consumers have to grapple with is at least reduced. Manufacturers have to comply with only one standard at the production stage and not several different standards. Furthermore, in order to use the label it is sufficient to register with one of the two management entities provided for by the agreement (in accordance with Article III
(30) they are the Commission and the EPA). The other management entity recognises the registration and hence the right of the manufacturer in question to use the logo on his products which meet the standards. Manufacturers are entitled to offer for sale products bearing the Energy Star logo on both the European and the American market. This supports the view that the Energy Star Agreement is a commercial-policy measure.
45.
However, this interpretation does not yet take into account that the coordination of labelling programmes for energy-efficient products is at issue. The labelling is intended to stimulate the demand for and supply of energy-efficient products. That is to result in energy savings, for which reason this aspect of the title provides justification for regarding the agreement as primarily an environmental-policy measure.
46.
The wording of the title consequently justifies both views. It therefore cannot provide a clear answer to the question raised here as to the choice of legal basis.
47.
The preamble to the agreement must also be analysed. It states that the contracting parties concluded the agreement in order to maximise energy savings and environmental benefits. That aim is to be achieved by means of stimulating the demand for and supply of energy-efficient products. The Commission and the Council agree that the preamble emphasises above all the aim of saving energy. However, the Commission regards it as merely substantiating the rationale for the American Energy Star Program, and not as establishing the aim of the Energy Star Agreement.
48.
It may be stated in support of the Commission's view that the agreement has recourse to the logo and standards of the EPA. To that extent it might well be correct that the preamble expresses the objective of the American Energy Star Program.
49.
However, according to the agreement's title, coordination of the labelling programmes of the contracting parties is at issue. It would not be logical in that context for the preamble to the agreement to refer to the labelling programme of one party only. Rather, the natural assumption is that the preamble gives expression to the endeavour of both contracting parties to save energy and to the objective of the labelling programmes introduced by them for that purpose. In this regard the Commission's view is not persuasive.
50.
The preamble links the declaration of the aim of saving energy with the means, namely stimulating the demand for and supply of energy-efficient products. The means is intended to influence the market behaviour of persons offering for sale or seeking to buy office equipment and to that extent have an effect on the market for office equipment. Such equipment is manufactured and put on sale throughout the world. To that extent the means agreed upon in the Energy Star Agreement relates to trade in office equipment. This element in the preamble consequently emphasises the commercial-policy dimension of the agreement. Accordingly, the preamble likewise cannot provide a clear answer to the question whether the agreement is an environmental-policy or a commercial-policy measure.
51.
The aim of the agreement is also addressed in Article I, which deals with the agreement's general principles. Under Article I(1), the contracting parties are to use common energy-efficiency specifications and a common logo for the purpose of establishing targets for manufacturers, thereby maximising the effect of their individual efforts on the supply of and demand for energy-efficient products. That reflects the endeavour to reduce energy consumption and thereby help to protect the environment. This too supports the proposition that the agreement is a measure designed to enhance environmental protection.
52.
However, as in the preamble, the objective of the agreement in Article I(1) which I have just referred to is coupled to the description, set out in the same sentence, of the subject-matter of the agreement. The means decided upon in the agreement for achieving the aim of reducing energy consumption is the establishment of common specifications with regard to the energy consumption of certain items of office equipment together with the use of a common logo. Through the use of that logo, consumers are to be able to identify which of the products offered for sale are energy-efficient and make their choice accordingly (see Article I(4)). As already stated, this agreed means relates to trade in office equipment.
53.
The foregoing observations clearly show that the agreement pursues the long-term objective of contributing to environmental protection; however, the means employed for that purpose and laid down by the contracting parties in the agreement relates to trade.
54.
In accordance with the case-law cited at the outset, the question thus arises as to whether one of those two aims constitutes the agreement's primary aim or whether both are inseparably linked so that the decision approving the agreement is to have a dual legal basis.
55.
The present case appears comparable with the dispute between the Parliament and the Council concerning the legal basis for the programme to promote the linguistic diversity of the Community in the information society.
(31) That Council decision was concerned in the long term with the promotion of linguistic diversity in the Community. Since language constitutes a component of culture, it seemed reasonable for Article 128 EC to constitute at least one of the legal bases for the measure. However, the Council used Article 130 EC alone as the legal basis. The Court upheld the Council's action. On the basis of an analysis of the decision's aim and content, the Court came to the conclusion that the beneficial effects which the programme would have for the dissemination of cultural works were to be categorised as purely indirect effects in relation to the direct economic effects which resulted from the programme.
(32)
56.
The situation is similar here. The present case is concerned in the long term with a reduction in energy consumption and therefore with environmental protection. The means by which that aim is to be achieved is, however, a trade-related measure. On the basis of the judgment in Case C-42/97 it should thus be concluded that Article 133 EC is the appropriate legal basis for the contested Council decision.
57.
The analysis that the agreement has direct consequences only for trade and not for environmental protection is borne out by Article II(d). It provides that
"Energy Star Labelling Program"
means a programme administered by a management entity using common energy-efficiency specifications, marks, and guidelines for designated product types. The product types covered by the agreement and their respective energy-efficiency specifications are set out in Annex C. The Energy Star Agreement relates to the following product types: computers, monitors, printers, fax machines, mailing machines, copiers, scanners and multifunction devices. The power consumption requirements contained in the energy-efficiency specifications were originally set by the EPA. This is apparent from Commission Decision 2001/686.
(33) The agreement borrows those requirements, but makes their amendment subject to the agreement of both contracting parties (Article X), thereby removing the possibility of unilateral amendment by the EPA.
58.
The common logo which is used was likewise already in existence when the agreement was concluded. Recourse is had to the
"Energy Star"
certification mark which is owned by the EPA (Article II(b)).
59.
The recourse to power consumption requirements which had already been laid down and to a logo which already existed suggests that the Energy Star Agreement should be regarded at least primarily as a trade-related measure. Environmental protection considerations cannot in any event explain why regard was had to market practice, under which the Energy Star logo was already widely regarded as the
de facto
standard, as is apparent from the explanatory memorandum accompanying the Commission's proposal for a decision.
(34) Had environmental protection been to the fore, the obvious approach would have been to establish in the agreement new independent power consumption requirements together with an independent logo and above all to agree mandatory standards. However, that was not done.
60.
The 18th recital in the preamble to Regulation No 2422/2001 expressly states with regard to office equipment to which the agreement relates that a mandatory labelling system was not regarded as the most appropriate instrument for attaining the objective of saving energy. Rather, a voluntary labelling programme was considered to be the most cost-effective measure for promoting energy efficiency of office equipment.
61.
The Council submits by reference to the non-binding nature of the provisions set out in the Energy Star Agreement that its conclusion cannot serve trade purposes. However, that view conflicts with Regulation No 1980/2000 which establishes in the first and fourth recitals in its preamble and in Article 1 that the voluntary eco-label is intended to promote products with a reduced environmental impact through the provision to consumers of information on the environmental impact of products. The labelling is intended to direct consumers' attention to those products. That regulation thus proceeds on the basis that the labelling has an effect on the sale of the products and therefore on trade in them. Similarly, the fourth recital in the preamble to Directive 92/75 states that the mandatory labelling of appliances is intended to influence the public's choice in favour of those appliances which consume least energy. Also Regulation No 2422/2001, which was adopted in order to transpose the Energy Star Agreement, declares in the fourth recital in its preamble that coordination of the labelling of energy-efficient products is desirable in order to minimise the adverse impact on industry and trade. In the 14th recital it is stated that the Energy Star Agreement will facilitate international trade and environmental protection. All the legal measures cited thus demonstrate that the Energy Star Agreement is not prevented by its non-binding nature from being regarded as a commercial-policy measure.
62.
Confirmation for the view that non-binding labelling rules too relate to trade is provided by the WTO Agreement on Technical Barriers to Trade.
(35) Under that agreement, whether a measure is an obstacle to trade does not depend on whether the relevant provision is mandatory. The agreement applies to both mandatory and non-binding provisions. In accordance with Annex I to the agreement, provisions with which compliance is mandatory are referred to as
"technical regulations"
whereas those with which compliance is not mandatory are referred to as
"standards"
. Both types of provision can govern product characteristics or product labelling. The preamble to the agreement expresses the desire of the contracting parties that technical regulations and standards, including packaging, marking and labelling requirements, and procedures for assessment of conformity with technical regulations and standards should not create unnecessary obstacles to international trade. That implies that non-binding labelling provisions too may in principle constitute obstacles to international trade.
63.
It is admittedly up to individual manufacturers to decide whether to register and use the logo for their products. However, the Energy Star Agreement provides that any registration with one of the two management entities will be recognised by the other. A registration effected in Europe is also valid in the United States and authorises use of the logo on the American market.
64.
On the other hand, the environmental-policy impact of the agreement is dependent not only on whether manufacturers decide to register but in addition on consumers' purchasing decisions. The fact that compliance with the specifications is voluntary thus rather indicates that environmental protection was not to the fore when the agreement was concluded. Whether environmental protection is in fact promoted by the agreement depends solely on the will and behaviour of consumers and manufacturers. To that extent, it must be found that the Energy Star Agreement has a direct impact on trade only and an indirect impact at most on environmental protection.
65.
The creation of a European registration body and recognition by the EPA of registrations effected by it facilitate access to the Energy Star logo in any event. The fact that European manufacturers had access to the logo even without the agreement does prevent the agreement from being regarded as a measure promoting trade.
66.
It was a
de facto
requirement for products to bear the logo in order for them to be placed on the market in the United States, as the Council itself concedes. A rule relating to access to the market is, however, a typical commercial-policy measure, as follows from the examples listed in Article 133 EC.
67.
This interpretation of the agreement as primarily a commercial-policy measure is borne out by the preparatory documents for the adoption of the contested decision. In the explanatory memorandum accompanying its proposal for the decision, the Commission stated that the best approach was to introduce the American Energy Star Program in the Community. It explained that the Energy Star logo was the
"de facto "
required standard for office equipment sold on the United States market. In addition, the Energy Star requirements were becoming the applicable standard world-wide and therefore in the Community as well.
(36)
68.
It therefore follows from an analysis of the wording and history of the Energy Star Agreement that, in accordance with the content of its provisions, it is primarily a commercial-policy measure. Its impact on environmental protection is at most indirect and long-term.
(2)
Comparison with Community practice in relation to international agreements
69.
The Commission and the Council also refer to practice to date in concluding international agreements. The Commission compares the Energy Star Agreement with agreements concerning mutual recognition of technical standards which have been based on Article 133 EC. The Council counters by stating that those agreements concern mandatory standards and refers in support of its own argument to various environmental agreements which in its submission also related to trade issues.
70.
As already explained, the fact that the energy-efficiency specifications are not binding does not prevent the Energy Star Agreement from being classified as a trade-related measure. This objection on the part of the Council is therefore not persuasive.
71.
In the Energy Star Agreement, uniform specifications are laid down for certain items of office equipment. In that regard the agreement seems entirely comparable in content with the agreements concerning technical standards referred to by the Commission.
72.
The Council cites agreements, such as the Montreal Protocol concerning protection of the ozone layer and the Basel Convention, which were ratified on the basis of Article 175 EC. The Cartagena Protocol on Biosafety might be added to that list. In accordance with Opinion 2/00, the decision for the conclusion of this agreement is also to be based on Article 175 EC. The Commission has meanwhile submitted a proposal to that effect which, following an opinion from the Parliament, was adopted by the Council on 25 June 2002.
(37)
73.
It should, however, be pointed out that all the agreements cited by the Council were negotiated in an environmental-policy context. They were primarily concerned with environmental protection and touched on trade issues in an ancillary or subsidiary manner at most. Opinion 2/00 on the Cartagena Protocol expressly emphasises the environmental-policy context in which the protocol was negotiated.
(38) In that regard there is a fundamental difference between the agreements cited by the Council and the Energy Star Agreement. The latter was not negotiated in the context of an environmental agreement, on the basis of such an agreement or within the framework of a conference concerning the environment. No specific international context for the Energy Star Agreement is discernible.
74.
A comparison with Community practice in relation to international agreements thus reveals that the Energy Star Agreement bears a certain similarity to agreements concerning technical standards which have been concluded on the basis of Article 133 EC. The comparison therefore confirms the conclusions reached in the preceding sections.
(3)
Comparison with other Community labelling rules
75.
The Council refers in support of its view to Regulation No 880/92
(39) which has meanwhile been replaced by Regulation No 1980/2000.
(40) By the adoption of Regulation No 880/92, a Community eco-label promoting products which have a reduced environmental impact during their entire life cycle was introduced. As in the case of the Energy Star logo, products are promoted in that the label is intended to direct consumers' attention to them. That is intended to contribute to the more efficient use of resources and a high level of environmental protection (see the first and fourth recitals in the preamble to Regulation No 1980/2000 and Article 1 thereof). Both regulations were adopted as environmental measures on the basis of what is now Article 175 EC.
76.
The Energy Star Program set up by the EPA in 1992 does not cover merely the office equipment governed by the agreement. Rather, it relates to household appliances, heating and cooling equipment, consumer electronics, home office equipment, water-coolers, house construction, lighting, windows, ventilating fans, emergency exit signs, roofing material, transformers, traffic lights and other products and services.
(41) The eco-label introduced by Regulation No 880/92 is available in the Community for a whole range of products bearing the EPA's Energy Star logo.
77.
The Community eco-label can also be used for computers. First the Commission adopted, on the basis of Regulation No 880/92, Decision 1999/205/EC in which ecological criteria were laid down for personal computers.
(42) The preamble to that decision refers to the negotiations concerning the Energy Star Agreement and envisages the possibility of the decision's being revised in the light of the agreement. The decision was indeed subsequently superseded by Commission Decision 2001/686/EC
(43) which is based on Regulation No 1980/2000. In that decision, which was adopted after the entry into force of the Energy Star Agreement but before the adoption of Regulation No 2422/2001 which transposed the Energy Star Agreement into Community law, the Commission, in laying down the ecological criteria, refers under the heading
"Energy savings"
to the definitions of the EPA's Energy Star Program.
(44) All those legal measures are founded directly, or indirectly through the relevant basic regulation, on Article 175 EC and were thus adopted as measures to protect the environment.
78.
It is to be noted first as a matter of principle with regard to the reference to Regulations No 880/92 and No 1980/2000 that the choice of Article 175 EC as the legal basis for those regulations does not predetermine the choice of legal basis for the decision at issue in the present case approving the Energy Star Agreement. The present case is concerned with defining the scope of Articles 133 EC and 175 EC. As Community practice in relation to international agreements shows, the Community has in the past concluded agreements on the basis of both provisions. The fact that Article 175 EC has been chosen as the legal basis for an internal Community measure is not in itself sufficient to show that the same legal basis must be chosen when approving an international agreement governing comparable matters. Article 133 EC, which relates to external trade, can never form the legal basis for a measure whose effects are internal to the Community. Article 95 EC perhaps fulfils a comparable function in respect of internal trade. However, the decision whether measures which are contained in international agreements ratified on the basis of Article 133 EC are to be implemented within the Community on the basis of Article 95 EC or another legal basis turns solely on the scope of Article 95 EC and the other potential legal bases such as Article 175 EC. Those fundamental considerations alone show that the Council's reference to Regulations No 880/92 and No 1980/2000 is not persuasive.
79.
It must also be pointed out that, in addition to the regulations mentioned by the Council, there are further Community legal measures which deal with the labelling of electrical appliances and their energy consumption but are not based on Article 175 EC. Directive 92/75/EEC on the indication by labelling and standard product information of the consumption of energy and other resources by household appliances
(45) was adopted on the basis of Article 100a of the EC Treaty, that is to say the precursor of Article 95 EC. Like Regulations No 880/92 and No 1980/2000, it too pursues the objective of saving energy by stimulating demand for energy-efficient products (see the fourth recital in its preamble).
80.
Accordingly, there are internal Community legal measures which pursue an objective comparable to that of the Energy Star Agreement and likewise employ the means of stimulating supply and demand but some are regarded as a measure relating to environmental protection and others as a measure concerning the internal market, that is to say intra-Community trade.
81.
There is, however, a difference between Regulations No 880/92 and No 1980/2000, on the one hand, and Directive 92/75, on the other, inasmuch as the regulations, like the Energy Star Agreement, set up a voluntary labelling system whereas the directive introduces a mandatory labelling system. None the less, as already explained (see point 61 et seq.), the question whether a measure relates to trade does not turn on whether it establishes mandatory or voluntary standards. Both Regulations No 880/92, No 1980/2000 and No 2422/2001, which set up a voluntary system, and Directive 92/75, which prescribes mandatory labelling, make it clear in their respective preambles that they relate to trade.
82.
It can accordingly be stated by way of intermediate conclusion that comparison of the Energy Star Agreement with Regulations No 880/92 and No 1980/2000 and with Directive No 92/75 confirms that an agreement concerning the use of a uniform label constitutes in the first place a trade-related measure.
(4)
Introduction by the Member States of their own eco-labels
83.
The Council finally puts forward in support of its view the fact that some Member States have introduced their own eco-labels. In its submission, that would not be possible if the introduction of the Energy Star Agreement were taken to be a commercial-policy measure, since the Community has exclusive competence in the field of commercial policy: only if it were regarded as an environmental-policy measure could the action on the part of the Member States be explained, since competence is shared in the field of environmental protection.
84.
Article 133 EC establishes exclusive Community competence in respect of external trade.
(46) The introduction of an eco-label by Member States does not relate to the external trade of the Community, but possibly to intra-Community trade. In that regard, such rules could raise the question of their compatibility with Article 28 EC. However, so long as no Community harmonisation measure has been adopted, there is no prohibition in law of such action by Member States in so far as the requirements of the free movement of goods are observed. That applies in particular where, as in the cases referred to by the Council, voluntary rules are involved and manufacturers in other Member States also have access to the eco-label. The Council has adduced no evidence suggesting that that is not currently the case.
85.
It must therefore be concluded that the introduction by Member States of their own eco-labels does not prevent Article 133 EC from being regarded as the legal basis for Decision 2001/469.
(5)
Summary
86.
By way of summary, the Energy Star Agreement contains aspects relating both to trade and to environmental protection. The agreement of common energy-efficiency specifications for certain items of office equipment, of a common logo for the labelling of such products which comply with the specification and of a procedure for the mutual recognition of registrations has a direct impact on trade, since trade in those products is facilitated. On the other hand, agreement on those matters has only an indirect impact on the environment since energy savings depend on how manufacturers and consumers actually behave. The Energy Star Agreement therefore primarily relates to trade and the decision approving it thus had to be based on Article 133 EC.
(6)
In the alternative: the applicability of Article 174 EC
87.
Purely in the alternative, should the Court not follow the foregoing analysis but regard the Energy Star Agreement as a primarily environmental measure, it is also necessary to consider briefly the issue, upon which the parties disagree, as to whether in that case Article 174 EC or Article 175 EC constitutes the appropriate legal basis for the decision approving the agreement.
88.
Article 174(4) EC must be interpreted as forming the legal basis only for legal measures which establish the details of Community cooperation with third countries and international organisations in the field of environmental protection. It was thus the legal basis for Council Decision 98/216/EC of 9 March 1998 on the conclusion, on behalf of the European Community, of the United Nations Convention to combat desertification in countries seriously affected by drought and/or desertification, particularly in Africa.
(47)
89.
It is true that the Energy Star Agreement also relates to cooperation between the two management entities (the Commission and the EPA) entrusted with coordinating the programmes (see in particular Articles V(4), VI, IX and X). However, the agreement's content extends beyond those issues of administrative organisation in that the agreement provides for uniform energy-efficiency specifications, a uniform logo and the mutual recognition of registrations.
90.
In this connection, the Court, citing existing case-law, held in the Opinion on the Cartagena Protocol that Article 174 EC defines the objectives to be pursued in the context of environmental policy, while Article 175 EC constitutes the legal basis on which Community measures are adopted.
(48) In so far as an agreement extends beyond the scope of Article 174(4) EC, as is the case here, Article 175 EC should therefore be used as the legal basis.
91.
Accordingly, should the Court place the agreement within the scope of environmental protection, Article 175 EC is the legal basis for the decision concerning its conclusion.
VI ─ Costs
92.
Under Article 69(2) of the Rules of Procedure, the unsuccessful party must pay the costs if they have been applied for in the successful party's pleadings. Since the Council is the unsuccessful party and the Commission has applied for costs, the Council is to be ordered to pay the costs.
VII ─ Conclusion
93.
On the basis of the foregoing arguments, I propose that the Court should:
(1)
annul Council Decision 2001/469/EC of 14 May 2001 concerning the conclusion on behalf of the European Community of the Agreement between the Government of the United States of America and the European Community on the coordination of energy-efficient labelling programs for office equipment;
(2)
order the Council to pay the costs.
(1) .
(2)
OJ 2001 L 332, p. 1.
(3)
COM(2000) 18 final of 28 January 2000, Proposal for a Regulation of the European Parliament and of the Council on a Community energy efficiency labelling programme for office and communication technology equipment (OJ 2000 C 150 E, p. 73).
(4)
See the overview on the internet at www.energystar.gov/products.
(5)
Proposal for a Council Decision concerning the conclusion on behalf of the European Community of an agreement between the United States of America and the European Community on the co-ordination of energy-efficient labelling programmes (COM(1999) 328 final of 1 July 1999; OJ 1999 C 274 E, p. 16). The text of the original proposal cited Articles 130 EC and 300(2) EC as the legal basis. However, the Commission subsequently corrected this, stating that Articles 133 EC and 300(2) EC were meant. In its discussions the Council assumed that the Commission proposal was based on Articles 133 EC and 300(2) EC, as is apparent from Council document 8663/00 submitted as Annex 3 to the application. The examination which follows is therefore to be carried out on that premiss.
(6)
Decision of 14 December 2000, item 8 in the list of A points of the Council agenda (Council document 14408/00) submitted as Annex 4 to the application.
(7)
Council Decision 2001/469/EC of 14 May 2001 concerning the conclusion on behalf of the European Community of the Agreement between the Government of the United States of America and the European Community on the coordination of energy-efficient labelling programs for office equipment (OJ 2001 L 172, p. 1).
(8)
In particular Opinion 1/78 concerning the International Agreement on Natural Rubber [1979] ECR 2871, paragraph 45, and the judgment in Case 45/86
Commission
v
Council
[1987] ECR 1493, paragraph 19.
(9)
The Commission relies on Case C-62/88
Greece
v
Council
[1990] ECR I-1527, paragraphs 18, 19 and 20, Case C-300/89
Commission
v
Council
[1991] ECR I-2867, paragraph 22, and Case C-405/92
Mondiet
[1993] ECR I-6133, paragraphs 26, 27 and 28.
(10)
OJ 1994 L 336, p. 40, approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1).
(11)
The statement is annexed to Council document 8421/01 of 3 May 2001 which was lodged as Annex 6 to the application.
(12)
Regulation (EC) No 1980/2000 of the European Parliament and of the Council of 17 July 2000 on a revised Community eco-label award scheme (OJ 2000 L 237, p. 1).
(13)
The Commission refers to Case C-268/94
Portugal
v
Council
[1996] ECR I-6177, paragraphs 37, 38 and 39.
(14)
See point 1 of the diplomatic note from the EC to the USA (OJ 2001 L 172, p. 31) and point 1 of the diplomatic note from the USA to the EC (OJ 2001 L 172, p. 32).
(15)
The Council cites in this connection the judgment in Case C-187/93
Parliament
v
Council
[1994] ECR I-2857.
(16)
Council Decision 88/540/EEC of 14 October 1988 concerning the conclusion of the Vienna Convention for the protection of the ozone layer and the Montreal Protocol on substances that deplete the ozone layer (OJ 1988 L 297, p. 8).
(17)
Council Decision 93/98/EEC of 1 February 1993 on the conclusion, on behalf of the Community, of the Convention on the control of transboundary movements of hazardous wastes and their disposal (Basel Convention) (OJ 1993 L 39, p. 1).
(18)
Council Regulation (EEC) No 3626/82 of 3 December 1982 on the implementation in the Community of the Convention on international trade in endangered species of wild fauna and flora (OJ 1982 L 384, p. 1) and Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (OJ 1997 L 61, p. 1).
(19)
Council Regulation (EEC) No 880/92 of 23 March 1992 on a Community eco-label award scheme (OJ 1992 L 99, p. 1).
(20)
Commission Decision 1999/205/EC of 26 February 1999 establishing ecological criteria for the award of the Community eco-label to personal computers (notified under document number C(1999) 425) (OJ 1999 L 70, p. 46).
(21)
Cited in footnote 12.
(22)
Opinion 2/00 [2001] ECR I-9713, paragraphs 23, 24 and 25, and the judgment in Case C-36/98
Spain
v
Council
[2001] ECR I-779.
(23)
Opinion 2/00 on the Cartagena Protocol, cited in footnote 22.
(24)
Judgments in
Portugal
v
Council
, cited in footnote 13, paragraph 22, Case C-269/97
Commission
v
Council
[2000] ECR I-2257, paragraph 43, and
Spain
v
Council
, cited in footnote 22, paragraph 58; Opinion 2/00, cited in footnote 22, paragraph 22.
(25)
Judgments in Case C-42/97
Parliament
v
Council
[1999] ECR I-869, paragraph 40, and
Spain
v
Council
, cited in footnote 22, paragraph 59; Opinion 2/00, cited in footnote 22, paragraph 23.
(26)
See, to that effect, judgments in Case 165/87
Commission
v
Council
[1988] ECR 5545, paragraph 11, Case C-300/89
Commission
v
Council
, cited in footnote 9, paragraph 17, and Joined Cases C-164/97 and C-165/97
Parliament
v
Council
[1999] ECR I-1139, paragraph 14, and Opinion 2/00, cited in footnote 22, paragraph 23.
(27)
Opinion 1/78, cited in footnote 8, paragraph 44.
(28)
Opinion 1/94 [1994] ECR I-5267, paragraph 41.
(29)
See
Greece
v
Council
, cited in footnote 9, paragraph 20, Case C-300/89
Commission
v
Council
, cited in footnote 9, paragraph 22, and
Mondiet
, cited in footnote 9, paragraphs 26, 27 and 28.
(30)
Articles cited without further indication are articles of the Energy Star Agreement.
(31)
Council Decision 96/664/EC of 21 November 1996 on the adoption of a multiannual programme to promote the linguistic diversity of the Community in the information society (OJ 1996 L 306, p. 40). The legality of the decision was confirmed in Case C-42/97
Parliament
v
Council
, cited in footnote 25.
(32)
See paragraphs 62 and 63 of the judgment.
(33)
Commission Decision 2001/686/EC of 22 August 2001 establishing the ecological criteria for the award of the Community eco-label to personal computers (OJ 2001 L 242, p. 4, in particular p. 7, footnote 1).
(34)
COM(1999) 328 final of 1 July 1999 (cited in footnote 5), p. 3, paragraph 3.
(35)
OJ 1994 L 336, p. 86.
(36)
COM(1999) 328 final of 1 July 1999 (cited in footnote 5), p. 3, paragraph 3.
(37)
Proposal for a Council Decision concerning the conclusion, on behalf of the Community, of the Cartagena Protocol on Biosafety (COM (2002) 127 final of 13 March 2002; OJ 2002 C 181 E, p. 258) and Council Decision 2002/628/EC of 25 June 2002 (OJ 2002 L 201, p. 48).
(38)
Opinion 2/00, cited in footnote 22, paragraphs 26, 27 and 28.
(39)
Cited in footnote 19.
(40)
Cited in footnote 12.
(41)
See the overview on the internet at www.energystar.gov/products.
(42)
Commission Decision 1999/205/EC of 26 February 1999 establishing ecological criteria for the award of the Community eco-label to personal computers (OJ 1999 L 70, p. 46).
(43)
Commission Decision 2001/686/EC of 22 August 2001, cited in footnote 33.
(44)
See OJ 2001 L 242, p. 7, footnotes 1, 3 and 4.
(45)
Council Directive 92/75/EEC of 22 September 1992 on the indication by labelling and standard product information of the consumption of energy and other resources by household appliances (OJ 1992 L 297, p. 16).
(46)
Case C-83/94
Leifer and Others
[1995] ECR I-3231, paragraph 13.
(47)
OJ 1998 L 83, p. 1.
(48)
See Opinion 2/00, cited in footnote 22, paragraph 43.