OPINION 1/19 OF THE COURT (Grand Chamber)

6 October 2021

Table of contents

I. The request for an Opinion II. Legal context A. The relevant directives on judicial cooperation in criminal matters B. The relevant directives relating to the common asylum policy C. The Staff Regulations of Officials of the European Union and the Condition of Employment of Other Servants of the European Union III. The Istanbul Convention and its signature by the European Union A. Analysis of the Istanbul Convention B. The proposals for decisions on the signing and conclusion of the Istanbul Convention C. Signature decision 2017/865 D. Signature decision 2017/866 IV. The Parliament’s assessments in its request for an Opinion A. Facts and procedure B. The appropriate legal bases for concluding the Istanbul Convention C. Division of each of the acts on the signing and on the conclusion of the Istanbul Convention into two separate decisions D. The practice of ‘common accord’ of the Member States V. Summary of the observations submitted to the Court A. Facts and procedure 1. The signing and ratification of the Istanbul Convention by the Member States 2. The procedure for signing the Istanbul Convention within the Council 3. The procedure for concluding the Istanbul Convention within the Council B. Admissibility of the request for an Opinion 1. The appropriate legal bases for concluding the Istanbul Convention 2. Division of the acts on the signature and conclusion of the Istanbul Convention into two separate decisions 3. The practice of ‘common accord’ of the Member States C. Substance of the request for an Opinion 1. The appropriate legal bases for concluding the Istanbul Convention (a) ‘Broad’ or ‘narrow’ accession of the European Union to the Istanbul Convention (b) The criteria for identifying the competences of the European Union (c) The relationship between the Istanbul Convention and the EU acquis (d) Article 82(2) TFEU (e) Article 84 TFEU (f) Article 78(2) TFEU (g) Article 83(1) TFEU 2. Division of the acts on the signing and conclusion of the Istanbul Convention into two separate decisions 3. The practice of ‘common accord’ of the Member States (a) Presentation of the practice of ‘common accord’ (b) Whether the practice of ‘common accord’ is compatible with Article 13(2) TEU and with Articles 2 to 6 and Article 218(2), (6) and (8) TFEU (c) The compatibility of the practice of ‘common accord’ with the principles of conferral, sincere cooperation between the European Union and its Member States, unity in the external representation of the European Union and public international law VI. Opinion of the Court A. Admissibility of the request for an Opinion B. The practice of ‘common accord’ of the Member States C. The appropriate legal bases for the conclusion of the Istanbul Convention D. Division of the act concluding the Istanbul Convention into two separate decisions VII. Answer to the request for an Opinion

(Opinion pursuant to Article 218(11) TFEU – Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) – Signature by the European Union – Draft conclusion by the European Union – Concept of an ‘agreement envisaged’, within the meaning of Article 218(11) TFEU – External competences of the European Union – Substantive legal basis – Article 78(2) TFEU – Article 82(2) TFEU – Article 83(1) TFEU – Article 84 TFEU – Article 336 TFEU –Articles 1 to 4a of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice – Partial participation of Ireland in the conclusion of the Istanbul Convention by the European Union – Possibility of splitting the act concluding an international agreement into two separate decisions according to the applicable legal bases – Practice of ‘common accord’ – Compatibility with the TEU and the TFEU)

In Opinion 1/19,

REQUEST for an Opinion pursuant to Article 218(11) TFEU, made on 9 July 2019 by the European Parliament,

THE COURT (Grand Chamber)

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Arabadjiev (Rapporteur), A. Prechal, M. Vilaras, M. Ilešič, L. Bay Larsen, A. Kumin and N. Wahl, Presidents of Chambers, T. von Danwitz, F. Biltgen, K. Jürimäe, L.S. Rossi, I. Jarukaitis and N. Jääskinen, Judges,

Advocate General: G. Hogan,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 6 October 2020,

after considering the observations submitted on behalf of:

– the European Parliament, by D. Warin, A. Neergaard and O. Hrstková Šolcová, acting as Agents,

– the Belgian Government, by C. Pochet and J. C. Halleux, acting as Agents,

– the Bulgarian Government, by E. Petranova, L. Zaharieva, T. Mitova and M. Georgieva, acting as Agents,

– the Czech Government, by M. Smolek, J. Vláčil, M. Švarc and K. Najmanová, acting as Agents,

– the Danish Government, by M. P. Jespersen, acting as Agent,

– Ireland, by M. Browne, G. Hodge and A. Joyce, acting as Agents, and by P. McGarry and S. Kingston, Senior Counsel,

– the Greek Government, by K. Boskovits, acting as Agent,

– the Spanish Government, by S. Centeno Huerta, acting as Agent,

– the French Government, by J.-L. Carré, D. Dubois, T. Stéhelin and A.‑L. Desjonquères, acting as Agents,

– the Hungarian Government, by M.Z. Fehér and P. Csuhány, acting as Agents,

– the Austrian Government, by J. Schmoll, E. Samoilova and H. Tichy, acting as Agents,

– the Polish Government, by B. Majczyna and A. Miłkowska, acting as Agents,

– the Slovak Government, by B. Ricziová, acting as Agent,

– the Finnish Government, by H. Leppo and J. Heliskoski, acting as Agents,

– the Council of the European Union, by S. Boelaert, B. Driessen and A. Norberg, acting as Agents,

– the European Commission, by A. Bouquet, T. Ramopoulos, C. Cattabriga and S. Grünheid, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 11 March 2021,

gives the following

Opinion

I. The request for an Opinion

1 The request for an Opinion submitted to the Court by the European Parliament is worded as follows: ‘[(1)] [(a)] Do Articles 82(2) and 84 TFEU constitute the appropriate legal bases for the [Council of the European Union] act concluding the [Council of Europe Convention on preventing and combating violence against women and domestic violence (“the Istanbul Convention”)] on behalf of the [European] Union, or should that act be based on Articles 78(2), 82(2) and 83(1) TFEU and [(b)] Is it necessary or possible to split each of the two decisions on the signing and on the conclusion of the [Istanbul] Convention as a result of this choice of legal basis? [(2)] Is the conclusion by the [European] Union of the Istanbul Convention in accordance with Article 218(6) TFEU compatible with the Treaties in the absence of a common accord of all the Member States giving their consent to being bound by the convention?’

II. Legal context

A. The relevant directives on judicial cooperation in criminal matters

2 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ 2011 L 101, p. 1), applicable to all Member States, with the exception of the Kingdom of Denmark, provides in Article 1: ‘This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of trafficking in human beings. It also introduces common provisions, taking into account the gender perspective, to strengthen the prevention of this crime and the protection of the victims thereof.’

3 Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ 2011 L 335, p. 1, and corrigendum OJ 2012 L 18, p. 7), applicable to all Member States, with the exception of the Kingdom of Denmark, states in Article 1: ‘This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of sexual abuse and sexual exploitation of children, child pornography and solicitation of children for sexual purposes. It also introduces provisions to strengthen the prevention of those crimes and the protection of the victims thereof.’

4 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (OJ 2012 L 315, p. 57), applicable to all Member States, with the exception of the Kingdom of Denmark, states in recital 11 thereof: ‘This Directive lays down minimum rules. Member States may extend the rights set out in this Directive in order to provide a higher level of protection.’

B. The relevant directives relating to the common asylum policy

5 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12), which is applicable to all the Member States, with the exception of the Kingdom of Denmark and Ireland, states in Article 3(4)(a) and (5): ‘4. This Directive is without prejudice to more favourable provisions of: (a) bilateral and multilateral agreements between the [European Union] or the [European Union] and its Member States, on the one hand, and third countries, on the other; … 5. This Directive shall not affect the possibility for the Member States to adopt or maintain more favourable provisions.’

6 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44), which is applicable to all Member States, with the exception of the Kingdom of Denmark and Ireland, provides in Article 3(3)(a) and (b): ‘This Directive shall apply without prejudice to more favourable provisions of: (a) bilateral and multilateral agreements between the [European Union] or the [European Union] and its Member States, on the one hand, and third countries, on the other; (b) bilateral agreements already concluded between a Member State and a third country before the date of entry into force of this Directive’.

7 Under Article 13 of that directive: ‘Member States may issue residence permits of permanent or unlimited validity on terms that are more favourable than those laid down by this Directive. Such residence permits shall not confer the right of residence in the other Member States as provided by Chapter III of this Directive.’

8 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98), which is applicable to all Member States, with the exception of the Kingdom of Denmark and Ireland, provides in Article 4: ‘1. This Directive shall apply without prejudice to more favourable provisions of: (a) bilateral or multilateral agreements between the [European Union] or the [European Union] and its Member States and one or more third countries; (b) bilateral or multilateral agreements between one or more Member States and one or more third countries. 2. This Directive shall be without prejudice to any provision which may be more favourable for the third-country national, laid down in the [European Union] acquis relating to immigration and asylum. 3. This Directive shall be without prejudice to the right of the Member States to adopt or maintain provisions that are more favourable to persons to whom it applies provided that such provisions are compatible with this Directive. 4. With regard to third-country nationals excluded from the scope of this Directive in accordance with Article 2(2)(a), Member States shall: (a) ensure that their treatment and level of protection are no less favourable than as set out in Article 8(4) and (5) (limitations on use of coercive measures), Article 9(2)(a) (postponement of removal), Article 14(1)(b) and (d) (emergency health care and taking into account needs of vulnerable persons), and Articles 16 and 17 (detention conditions) and (b) respect the principle of non-refoulement.’

9 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9), which succeeded Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12) and is applicable to all the Member States, with the exception of the Kingdom of Denmark and Ireland, provides, in Article 3: ‘Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with this Directive.’

10 Directive 2004/83 – which, although repealed by Directive 2011/95, continues to apply to Ireland – provides in Article 1: ‘The purpose of this Directive is to lay down minimum standards for the qualification of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.’

11 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60), which is applicable to all the Member States, with the exception of the Kingdom of Denmark and Ireland, provides in Article 5: ‘Member States may introduce or retain more favourable standards on procedures for granting and withdrawing international protection, in so far as those standards are compatible with this Directive.’

12 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13) – which, although repealed by Directive 2013/32, continues to be apply to Ireland – states in Article 1: ‘The purpose of this Directive is to establish minimum standards on procedures in Member States for granting and withdrawing refugee status.’

13 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96), which is applicable to all the Member States, with the exception of the Kingdom of Denmark and Ireland, provides in Article 4: ‘Member States may introduce or retain more favourable provisions in the field of reception conditions for applicants and other close relatives of the applicant who are present in the same Member State when they are dependent on him or her, or for humanitarian reasons, in so far as these provisions are compatible with this Directive.’

C. The Staff Regulations of Officials of the European Union and the Condition of Employment of Other Servants of the European Union

14 Regulation No 31 (EEC) 11, (EAEC) laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and of the European Atomic Energy Community (OJ, English Special Edition, Series I 1959-1962, p. 135), as last amended by Council Regulation (EU) No 1416/2013 of 17 December 2013 (OJ 2013 L 353, p. 24), states, inter alia, in the second recital thereof, that the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union are intended to ‘enable [the officials and other servants of the European Union] to discharge their duties in conditions which will ensure maximum efficiency’.

III. The Istanbul Convention and its signature by the European Union

A. Analysis of the Istanbul Convention

15 The Istanbul Convention, the final text of which was adopted by the Committee of Ministers of the Council of Europe on 7 April 2011, was opened for signature on 11 May 2011 at the 121st session of that committee in Istanbul (Turkey). That convention, which entered into force on 1 August 2014, includes a preamble, 81 articles, divided into 12 chapters and an annex on privileges and immunities which apply to the members of the ‘Group of experts on action against violence against women and domestic violence’ (‘GREVIO’) referred to in Article 66 of that convention.

16 In its preamble, the Istanbul Convention refers to, inter alia, the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, the Council of Europe Convention on Action against Trafficking in Human Beings. the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (United Nations Treaty Series, vol. 1249, p. 13) and international humanitarian law, in particular the Convention relative to the Protection of Civilian Persons in Time of War, signed in Geneva on 12 August 1949 (United Nations Treaty Series, vol. 75, p. 287).

17 That preamble recognises that violence against women is a manifestation of historically unequal power relations between women and men, which have led to domination over, and discrimination against, women by men, the structural nature of violence against women as gender-based violence, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.

18 Pursuant to Article 1 of that convention, in Chapter I thereof, entitled ‘Purposes, definitions, equality and non-discrimination, general obligations’, the purposes of the Istanbul Convention are, inter alia, to protect women against all forms of violence, and to prevent, prosecute and eliminate such violence, to contribute to the elimination of all forms of discrimination against women and to design a comprehensive framework, policies and measures of protection and assistance. That provision also states that that convention establishes a specific monitoring mechanism.

19 Under Article 3(c) of that convention, the term ‘gender’ means the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men. In accordance with point (f) of that article, the term ‘women’ includes girls under the age of 18.

20 In accordance with Articles 5 and 6 of the Istanbul Convention, the parties to that convention undertake to act in order to prevent, investigate, punish and provide reparation for acts of violence covered by that convention and to include a gender perspective in the implementation and evaluation of the impact of the provisions of that convention.

21 Under Articles 7, 8, 10 and 11 of the Istanbul Convention, set out in Chapter II thereof, entitled ‘Integrated policies and data collection’, the parties to that convention undertake, inter alia, to implement State-wide effective, comprehensive and coordinated policies to prevent and combat all forms of violence covered by that convention, to allocate appropriate financial and human resources for that purpose, to designate official bodies responsible for the coordination, implementation, monitoring and evaluation of policies, to collect disaggregated relevant statistical data at regular intervals on cases of all forms of violence covered by the scope of that convention and to support research concerning the root causes and effects, incidences and conviction rates of the forms of violence covered by that convention.

22 Chapter III of the Istanbul Convention, entitled ‘Prevention’, includes inter alia Articles 12 to 16 thereof, which set out the obligations on the parties to that convention to promote changes in the social and cultural patterns of behaviour with a view to eradicating prejudices, customs, traditions and all other practices which are based on the idea of the inferiority of women or on stereotyped roles for women and men, to prevent all forms of violence covered by that convention, to put the specific needs of vulnerable persons and victims at the centre of measures taken, to ensure that culture, custom, religion, tradition or so-called ‘honour’ shall not be considered as justification for any acts of violence, to promote or conduct, on a regular basis and at all levels, awareness-raising campaigns or programmes, to include teaching material on issues such as equality between women and men, non-stereotyped gender roles, mutual respect, non-violent conflict resolution in interpersonal relationships, gender-based violence against women and the right to personal integrity in education, sports, cultural and leisure facilities and the media and to set up programmes aimed at teaching perpetrators of domestic violence to adopt non-violent behaviour.

23 Chapter IV of the Istanbul Convention, entitled ‘Protection and support’, provides, in Articles 18 to 28 thereof, that the parties to that agreement are to take the necessary measures to protect all victims from any further acts of violence, including mechanisms for effective cooperation between all relevant state agencies, adequate and timely information on available support services and legal measures, legal and psychological counselling, financial assistance, health care and social services, information on individual/collective complaints mechanisms, appropriate, easily accessible shelters in sufficient numbers, round-the-clock telephone helplines free of charge, rape crisis or sexual violence referral centres for victims, age-appropriate psychosocial counselling for child witnesses of violence and the necessary measures to ensure that the confidentiality rules imposed on certain professionals do not constitute an obstacle to their reporting to the competent organisations of a serious act of violence committed or expected.

24 Chapter V of the Istanbul Convention, entitled ‘Substantive law’, contains, first, Articles 29 to 32 thereof, under which the parties undertake to provide victims with adequate civil remedies against the perpetrator and against State authorities that have failed in their duty to take the necessary preventive or protective measures, in order to obtain, within a reasonable time, adequate compensation from perpetrators for any offences or from the State for serious bodily injury or impairment of health, to the extent that the damage is not covered by other sources. Those provisions also require that, in the determination of custody and visitation rights of children, incidents of violence are taken into account and that marriages concluded under force may be annulled or dissolved without undue financial or administrative burden placed on the victim.

25 Secondly, Chapter V includes Articles 33 to 48 of that convention, by which the parties to that convention undertake to ensure that the following conduct is criminalised and punishable by effective, proportionate and dissuasive sanctions: inter alia, the commission, attempt to commit, aiding or abetting the commission of impairing a person’s psychological integrity through coercion or threats, threatening conduct directed at another person, causing her or him to fear for her or his safety, acts of physical violence, non-consensual acts of a sexual nature with a person, forcing an adult or a child to enter into a marriage, excising, infibulating or performing any other mutilation to a woman’s genitals, performing an abortion on a woman without her prior consent, performing surgery which terminates a woman’s capacity to naturally reproduce without her consent and any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which violates the dignity of a person, in particular when it creates an intimidating, hostile, degrading, humiliating or offensive environment.

26 It is also provided, in Article 44(4) of the Istanbul Convention, that jurisdiction for the prosecution of the offences established in accordance with Articles 36 to 39 of that convention, namely those concerning sexual violence, forced marriage, genital mutilation, forced abortion and forced sterilisation is not to be subordinated to the condition that the prosecution can only be initiated following the reporting by the victim of the offence or the laying of information by the State of the place where the offence was committed. Under Article 46 of that convention, the commission of acts against a former or a current spouse or cohabiting person, vulnerable persons or children, inter alia, constitute aggravating circumstances. Article 48(1) of the Istanbul Convention provides that the parties to that convention are to take the necessary measures to prohibit mandatory alternative dispute resolution processes in relation to all forms of violence covered by the scope of that convention.

27 Chapter VI of the Istanbul Convention, entitled ‘Investigations, prosecution, procedural law and protective measures’, contains Articles 49 to 58 thereof, according to which the parties are to ensure that the responsible law enforcement agencies respond promptly and appropriately by offering adequate and immediate protection to victims of violence, in particular by ensuring that investigations and judicial proceedings are carried out without undue delay, by employing preventive operational measures and by carrying out an assessment of the lethality risk, the seriousness of the situation and the risk of repeated violence.

28 Furthermore, the parties to the Istanbul Convention are to provide that appropriate restraining or protection orders are available without undue financial or administrative burdens placed on the victim, inter alia in situations of immediate danger, by ordering a perpetrator of domestic violence to vacate the residence of the victim. Victims must be protected from retaliation and be informed when the perpetrator escapes or is released. They must be informed of their rights and the services at their disposal, be provided with appropriate support, including legal assistance and free legal aid, and allowed the possibility to be heard in such a way that contact between victims and perpetrators is avoided, inter alia by enabling victims to testify without being physically present. Under Articles 54 and 56 of the Istanbul Convention, the competent authorities are to protect the privacy and the image of the victim, inter alia by ensuring that evidence relating to the sexual history and conduct of the victim is permitted only when it is relevant and necessary.

29 Article 56(2) of that convention provides that a child victim and child witness of violence against women is to be afforded special protection measures and Article 58 of that convention provides that the statute of limitation for initiating any legal proceedings with regard to the offences established in accordance with Articles 36 to 39 thereof are to continue for a period of time that is sufficient and commensurate with the gravity of the offence in question, to allow for the efficient initiation of proceedings after the victim has reached the age of majority.

30 In Chapter VII of the Istanbul Convention, entitled ‘Migration and asylum’, Article 59 thereof lays down, first, the obligation for the parties to that convention to ensure that victims whose residence status depends on that of the spouse or partner are granted, in the event of particularly difficult circumstances, an autonomous residence permit and the obligation to take the measures necessary to ensure that victims may obtain the suspension of expulsion proceedings in relation to that residence status. That article then provides for the issue of a renewable residence permit to victims where their stay is necessary owing to their personal situation or for the purpose of their cooperation in investigation or criminal proceedings. Finally, under that article, victims of forced marriage brought into another country for the purpose of the marriage and who, as a result, have lost their residence status must be able to regain this status.

31 Under Article 60 of the Istanbul Convention, gender-based violence against women must be recognised as a form of persecution within the meaning of Article 1(A)(2), of the 1951 Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, and as a form of serious harm giving rise to subsidiary protection. In addition, in accordance with Article 60 thereof, the parties to the Istanbul Convention must ensure that a gender-sensitive interpretation is given to each of the grounds of the Convention relating to the Status of Refugees in assessing whether to grant refugee status, and that measures are taken to develop gender-sensitive reception procedures and support services for asylum-seekers as well as gender guidelines and gender-sensitive asylum procedures.

32 Under Article 61 of the Istanbul Convention, victims of violence against women who are in need of protection cannot be returned under any circumstances to any country where their life would be at risk or where they might be subjected to torture or inhuman or degrading treatment or punishment.

33 Chapter VIII of that convention, entitled ‘International co-operation’, contains Articles 62 to 65, which provide that the parties to that convention undertake inter alia to cooperate in civil and criminal matters for the purpose of preventing, combating and prosecuting all forms of violence covered by that convention; protecting and providing assistance to victims; carrying out investigations or proceedings concerning the offences and enforcing civil and criminal judgments, to ensure that victims of an offence established and committed in the territory of a party to the Istanbul Convention other than the one where they reside may make a complaint before the competent authorities of their State of residence and to consider the Istanbul Convention to be the legal basis for mutual legal assistance in criminal matters, extradition or enforcement of civil or criminal judgments.

34 Articles 63 and 64 of the Istanbul Convention encourage the parties to that convention to forward information which might assist in preventing criminal offences or in initiating or carrying out investigations and to transmit without delay information according to which a person is at immediate risk of being subjected to acts of violence for the purpose of ensuring that appropriate protection measures are taken, while respecting the protection of personal data, as provided for in Article 65 of that convention.

35 In Chapter IX of the Istanbul Convention, entitled ‘Monitoring mechanism’, Article 66 of that convention establishes GREVIO, tasked with monitoring the implementation of that convention. In accordance with Article 68 of that convention, the parties there are to submit, based on a questionnaire prepared by GREVIO, a report on legislative and other measures giving effect to the provisions of the Istanbul Convention, for consideration by GREVIO, which is to consider the report submitted with the representatives of the party concerned. It may also receive information on that implementation from non-governmental organisations and civil society, and is to take due consideration of the information available from other instruments and bodies. GREVIO may also organise country visits, and may be assisted by specialists during those visits. GREVIO is to prepare a report on the party to the Istanbul Convention subject to evaluation, intended to enable the Committee of the Parties, established in Article 67 of that convention, to adopt recommendations addressed to that party.

36 In Chapter X of the Istanbul Convention, entitled ‘Relationship with other international instruments’, Article 71 thereof states that that convention is not to affect obligations arising from other international instruments and that the parties to that convention may conclude agreements for purposes of supplementing or strengthening its provisions or facilitating the application of the principles embodied in it.

37 Chapter XII, entitled ‘Final clauses’, of that convention contains Articles 73 to 81 thereof. Under Article 73 of the Istanbul Convention, the provisions of that convention are not to prejudice provisions under which more favourable rights are or would be accorded.

38 Article 75 of that convention provides that it is open for signature by the Member States of the Council of Europe, the non-member States which have participated in its elaboration and the European Union and that it is subject to ratification.

39 Under Article 77 of that convention, any State or the European Union may, at the time of signature or when depositing its instrument of ratification, specify the territory or territories to which the Istanbul Convention is to apply and any party may, at any later date, extend the application of that convention to any other territory on whose behalf it is authorised to give undertakings, or withdraw such declarations.

40 Article 78 of the Istanbul Convention states that no reservation may be made in respect of any provision of that convention, with the exception of the possibility for any State or the European Union to declare that it reserves the right not to apply or to apply only in specific cases or conditions the provisions laid down in Article 30(2); Article 44(1)(e), (3) and (4); Article 55(1) in respect of Article 35 regarding minor offences; Article 58 in respect of Articles 37, 38 and 39 and Article 59 of the Istanbul Convention and the right to provide for non-criminal sanctions, instead of criminal sanctions, for the behaviours referred to in Articles 33 and 34 of that convention.

B. The proposals for decisions on the signing and conclusion of the Istanbul Convention

41 On 4 March 2016, the European Commission submitted to the Council both its proposal for a Council decision on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence (COM(2016) 111 final; ‘the proposal for a signature decision’) and its proposal for a Council decision on the conclusion, by the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence (COM(2016) 109 final; ‘the proposal for a conclusion decision’). The latter proposal, the content of which is essentially identical to that of the proposal for a signature decision, is worded as follows: ‘2.1 EU competence to conclude the [Istanbul] Convention Whereas the Member States remain competent for substantial parts of the [Istanbul] Convention, and particularly for most of the provisions on substantive criminal law and other provisions in Chapter V [of that convention] to the extent that they are ancillary, –the EU has competence for a considerable part of the provisions of the [Istanbul] Convention, and should therefore ratify [that] Convention alongside Member States. … To the extent that the [Istanbul] Convention may affect or alter the scope of these common rules, the Union is exclusively competent pursuant to Article 3(2) TFEU. This is, for example, the case as regards matters pertaining to the residence status of third-country nationals and stateless persons, including beneficiaries of international protection, as far as it is covered by Union legislation, and the examination of applications for international protection, and also as regards the rights of crime victims. Even if many of the existing provisions referred to [in the foregoing paragraphs] are minimal rules, it cannot be ruled out that, in the light of recent case-law, some of them may also be affected or their scope altered. 2.2 Legal basis for the proposed Council Decision … The legal bases under the [TFEU] which are of relevance here are: Article 16 (data protection), Article 19(1) (sex discrimination), Article 23 (consular protection for citizens of another Member State), Articles 18, 21, 46, 50 (free movement of citizens, free movement of workers and freedom of establishment), Article 78 (asylum and subsidiary and temporary protection), Article 79 (immigration), Article 81 (judicial cooperation in civil matters), Article 82 (judicial cooperation in criminal matters), Article 83 (definition of EU-wide criminal offences and sanctions for particularly serious crimes with a cross-border dimension), Article 84 (non-harmonising measures for crime prevention), and Article 157 (equal opportunities and equal treatment of men and women in areas of employment and occupation). Taken as a whole, although the [Istanbul] Convention has several components, its predominant purpose lies in the prevention of violent crimes against women, including domestic violence, and the protection of victims of such crimes. It therefore appears appropriate to base the Decision on the competences of the Union under Title V TFEU and in particular on Article 82(2) and Article 84 thereof. The provisions of the [Istanbul] Convention on other matters are ancillary or, for example for data protection, incidental to the measures that constitute the focus of [that convention]. As a consequence, for the [European Union] to exercise its competences over the entirety of [that convention] and excluding elements over which it would have no competence, the main legal bases are Article 82(2) and Article 84 TFEU.’

C. Signature decision 2017/865

42 The first citation in the preamble to Council Decision (EU) 2017/865 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to matters related to judicial cooperation in criminal matters (OJ 2017 L 131, p. 11; ‘signature decision 2017/865’), is worded as follows: ‘Having regard to the [TFEU], and in particular Article 82(2) and Article 83(1), in conjunction with Article 218(5) thereof’.

43 Recitals 1 to 11 of that decision state: ‘(1) The Union participated alongside the Member States as an observer in the negotiation of the [Istanbul Convention] … (2) In accordance with Article 75 of the [Istanbul] Convention, the Convention is open for signature by the Union. (3) The [Istanbul] Convention creates a comprehensive and multifaceted legal framework to protect women against all forms of violence. It seeks to prevent, prosecute and eliminate violence against women and girls and domestic violence. It covers a broad range of measures, from data collection and awareness raising to legal measures on criminalising different forms of violence against women. It includes measures for the protection of victims and the provision of support services, and addresses the gender-based violence dimension in matters of asylum and migration. The [Istanbul] Convention establishes a specific monitoring mechanism in order to ensure effective implementation of its provisions by the Parties. (4) The signing of the [Istanbul] Convention on behalf of the Union will contribute to the realisation of equality between women and men in all areas, which is a core objective and value of the Union to be realised in all its activities in accordance with Articles 2 and 3 [TEU], Article 8 [TFEU] and Article 23 of the Charter of Fundamental Rights of the European Union. Violence against women is a violation of their human rights and an extreme form of discrimination, entrenched in gender inequalities and contributing to maintaining and reinforcing them. By committing to the implementation of the [Istanbul] Convention, the Union confirms its engagement in combating violence against women within its territory and globally, and reinforces its current political action and existing substantial legal framework in the area of criminal procedural law, which is of particular relevance for women and girls. (5) Both the Union and its Member States have competence in the fields covered by the [Istanbul] Convention. (6) The [Istanbul] Convention should be signed on behalf of the Union as regards matters falling within the competence of the Union in so far as [that convention] may affect common rules or alter their scope. This applies, in particular, to certain provisions of [that convention] relating to judicial cooperation in criminal matters and to the provisions of [that convention] relating to asylum and non-refoulement. The Member States retain their competence in so far as the [Istanbul] Convention does not affect common rules or alter the scope thereof. (7) The Union also has exclusive competence to accept the obligations set out in [that convention] with respect to its own institutions and public administration. (8) Since the competence of the Union and the competences of the Member States are interlinked, the Union should become a Party to [that convention] alongside its Member States, so that together they can fulfil the obligations laid down by the [Istanbul] Convention and exercise the rights vested in them in a coherent manner. (9) This Decision concerns the provisions of [that convention] on judicial cooperation in criminal matters in so far as those provisions may affect common rules or alter their scope. It does not concern Articles 60 and 61 of [that convention], which are addressed by a separate Council decision on signing to be adopted in parallel with this Decision. (10) Ireland and the United Kingdom are bound by Directives [2011/36 and 2011/93] and are therefore taking part in the adoption of this Decision. (11) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, [the Kingdom of] Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application.’

44 Article 1 of that decision provides: ‘The signing, on behalf of the European Union, of the [Istanbul Convention] with regard to matters related to judicial cooperation in criminal matters is hereby authorised, subject to the conclusion of the said Convention.’

D. Signature decision 2017/866

45 The first citation in the preamble to Council Decision (EU) 2017/866 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to asylum and non-refoulement (OJ 2017 L 131, p. 13; ‘signature decision 2017/866’) is worded as follows: ‘Having regard to the [TFEU], and in particular Article 78(2), in conjunction with Article 218(5) thereof’.

46 Recitals 1 to 8 and 11 of that decision are identical to those recitals of signature decision 2017/865. Recitals 9 and 10 of signature decision 2017/866 state: ‘(9) This Decision concerns only Articles 60 and 61 of the [Istanbul] Convention. It does not concern the provisions of [that convention] on judicial cooperation in criminal matters, which are addressed by a separate Council decision on signing to be adopted in parallel with this Decision. (10) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Decision and are not bound by it or subject to its application.’

47 Article 1 of signature decision 2017/866 provides: ‘The signing, on behalf of the European Union, of the [Istanbul Convention] with regard to asylum and non-refoulement is hereby authorised, subject to the conclusion of [that convention].’

IV. The Parliament’s assessments in its request for an Opinion

A. Facts and procedure

48 The Parliament observes that, on 4 March 2016, the Commission adopted both the proposal for a signature decision, citing Article 218(5) TFEU as the procedural legal basis and Article 82(2) and Article 84 TFEU as the substantive legal basis, and the proposal for a conclusion decision, citing Article 218(6) TFEU as the procedural legal basis and the same substantive legal basis as that of the proposal for a signature decision.

49 In authorising the signing of the Istanbul Convention by the European Union, the Council replaced those substantive legal bases with Article 78(2) , Article 82(2) and Article 83(1) TFEU.

50 In addition, on 11 May 2017, it adopted two separate decisions for the purposes of that authorisation, namely, signature decision 2017/865, based on Article 82(2) and Article 83(1) TFEU, and signature decision 2017/866, based on Article 78(2) TFEU.

51 Although the Istanbul Convention was signed on behalf of the European Union on 13 June 2017, the Council has not yet adopted any decision on the conclusion of that convention by the European Union, since, according to the Parliament, the Council seems to want to make the adoption of such a decision contingent on securing the prior ‘common accord’ of all the Member States.

B. The appropriate legal bases for concluding the Istanbul Convention

52 Having regard to the aims of the Istanbul Convention, relating to the protection of victims of violence against women and the prevention of such violence, as set out in Articles 1, 5 and 7 and specified in Chapters III and IV thereof, the Parliament submits that the Commission was justified in considering those aspects to be the two main components of that convention.

53 The Parliament therefore has doubts, in the first place, about the reasons justifying the Council’s decision not to use Article 84 TFEU as the legal basis for the adoption of signature decisions 2017/865 and 2017/866 and the addition of Article 78(2) and Article 83(1) TFEU as legal bases for, respectively, signature decision 2017/866 and signature decision 2017/865.

54 As regards Article 78(2) TFEU, the Parliament states that that legal basis concerns only the area of asylum, covered by Articles 60 and 61 of the Istanbul Convention alone, and therefore questions whether the latter articles can properly be regarded as a separate, main component of that convention, or if those articles are not rather the manifestation, in the particular area of asylum, of the broader concern to protect all victims of violence against women, with the result that they are merely auxiliary provisions which do not call for the use of Article 78(2) TFEU as part of the substantive legal basis for those signature decisions.

55 As regards Article 83(1) TFEU, the Parliament submits that that provision limits the competence of the European Union to certain areas of criminal law, which do not include violence against women. Violence against women thus fall within the competence of the European Union only in the context of human trafficking, sexual exploitation of women and children and organised crime.

56 Accordingly, since the Member States have retained their competence in most of the areas of substantive criminal law addressed by the Istanbul Convention and the components of that convention which concern aspects of that law for which the European Union is competent appear secondary, they do not necessitate the addition of Article 83(1) TFEU as a basis for signature decisions 2017/865 and 2017/866.

C. Division of each of the acts on the signing and on the conclusion of the Istanbul Convention into two separate decisions

57 The Parliament submits that the fact that Ireland could invoke the provisions of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU (‘Protocol No 21’), in relation to Articles 60 and 61 of the Istanbul Convention, cannot in itself justify the choice of Article 78(2) TFEU as a legal basis for the act on the signing of that convention. Accordingly, if Articles 60 and 61 cannot be regarded as a separate, main component of that convention, the use of Article 78(2) TFEU is unnecessary and the division of the act on the signing of that convention into two separate decisions is unjustified.

58 In addition, the Parliament maintains that Articles 60 and 61 of the Istanbul Convention are in any event largely covered by common rules which apply to Ireland, since Directives 2004/83 and 2005/85 were repealed only as regards those Member States which are bound by Directives 2011/95 and 2013/32. Accordingly, even if the addition of Article 78(2) TFEU as a legal basis were justified, the question arises as to the necessity of splitting the decision on the signing of that convention into two separate decisions.

D. The practice of ‘common accord’ of the Member States

59 The Parliament states that the ‘mixed’ nature of the Istanbul Convention – the subject matter of which falls, in part, within the competences of the European Union and, in part, within those reserved for the Member States – is not disputed. However, Article 218(6) TFEU provides, as regards the conclusion of an international agreement on behalf of the European Union, for a Council decision adopted by a qualified majority after obtaining the consent of Parliament. The Parliament thus questions the Council’s approach of ensuring, before concluding the Istanbul Convention, that all the Member States consent to be bound by it.

60 The Parliament acknowledges in that regard that it is essential to ensure close cooperation between the Member States and the EU institutions in the negotiation, conclusion and the fulfilment of the commitments entered into, but submits that waiting for a ‘common accord’ of all the Member States for the conclusion of that convention goes beyond such cooperation and amounts to applying, in practice, an unanimity rule within the Council despite the fact that, under the TFEU, only the qualified majority rule applies.

61 The Parliament also submits that the present situation differs from that in which the Council had merged the decisions of the European Union and of the Member States into a ‘hybrid’ act, since, in this case, there is no decision at all until the ‘common accord’ of the Member States has been secured. The Parliament notes, however, that the ‘common accord’ approach appears to be a general practice of the Council and not a requirement applied only in the present case.

V. Summary of the observations submitted to the Court

62 In the present proceedings, observations have been submitted to the Court by the Republic of Bulgaria, the Czech Republic, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, Hungary, the Republic of Austria, the Republic of Poland, the Slovak Republic, the Republic of Finland, the Council and the Commission.

A. Facts and procedure

1. The signing and ratification of the Istanbul Convention by the Member States

63 According to the Republic of Bulgaria and the Council, since the opening of the Istanbul Convention for signature, 21 Member States of the European Union, with the exception of the Republic of Bulgaria, the Czech Republic, the Republic of Latvia, the Republic of Lithuania, Hungary and the Slovak Republic, have ratified that convention, without considering whether those ratifications interfere with the exclusive competence of the European Union.

64 Furthermore, according to the Council, several Member States expressed reservations and made declarations whilst signing or ratifying the Istanbul Convention, concerning inter alia the compatibility of certain provisions of that convention with their national Constitutions. In addition, some parties to that convention, including four EU Member States, raised objections to those reservations and declarations under public international law.

65 The Council also submits that it is common knowledge that certain elements and definitions set out in the Istanbul Convention are contentious in some Member States of the Council of Europe, questions having been raised as to whether the obligations laid down in that convention are compatible with national traditions, laws and constitutions. Thus, some national delegations in the working party on ‘Fundamental Rights, Citizens’ Rights and Free Movement of Persons’ (‘FREMP’), which is a Council working party responsible, inter alia, for examining the proposals relating to accession to the Istanbul Convention, stated that they had encountered serious difficulties as regards ratification of that convention. However, none of those Member States have officially notified the Council of those difficulties or of the irreversible nature of the difficulties encountered.

2. The procedure for signing the Istanbul Convention within the Council

66 The Commission submits that the proposal for a signature decision, which has Article 82(2) and Article 84 TFEU as its substantive legal basis, envisaged the signature of the Istanbul Convention by means of a single decision and noted the respective competences of the European Union, exclusive or shared, and of the Member States. However, the Council did not follow the Commission’s approach set out in that proposal.

67 The Council states that discussions within FREMP on the proposal for a signature decision were difficult in several respects. In the first place, FREMP challenged, in the light of the principle of conferral, the Commission’s assertion in that proposal that the EU ‘has competence for a considerable part of the provisions of the [Istanbul] Convention’, in view of the competences conferred on the European Union under Article 3(2) TFEU, and requested that a rigorous analysis be carried out, within the Council, of the European Union’s exclusive competences in relation to the conclusion of the Istanbul Convention. Following that analysis, FREMP concluded that the European Union’s exclusive competence was limited to certain matters related to judicial cooperation in criminal matters and to asylum and non-refoulement.

68 In the second place, while the Commission and the Parliament advocated a ‘broad’ accession by the European Union to the Istanbul Convention by making the European Union a party to that convention to the full extent of its exclusive or shared competences, whether exercised or potential, many national delegates in FREMP considered that such an accession might lead to complications for the Member States which had already ratified that convention. Since there was insufficient support for a ‘broad’ accession, it was clear that only a signature decision limited to the exclusive competence of the European Union could obtain a qualified majority in the Council. The choice between a ‘narrow’ accession and a ‘broad’ accession to that convention is a political choice for the Council.

69 In the third place, the Council considered that the decision to sign the Istanbul Convention had to have Article 78(2), Article 82(2) and Article 83(1) TFEU as its substantive legal basis. In addition, the Council considered that it was legally necessary to split the signature decision into two separate decisions. By virtue of the application of Protocol No 21, the calculation of the voting majorities in the Council for asylum and non-refoulement matters differed from that for judicial cooperation in criminal matters. Ireland shares the Council’s view.

3. The procedure for concluding the Istanbul Convention within the Council

70 The Commission states that the proposal for a conclusion decision, which has Article 82(2) and Article 84 TFEU as its substantive legal basis, has been the subject of discussions within the Council since 26 April 2016. The European Union’s conclusion of the Istanbul Convention has thus been blocked for several years, without the Council having initiated the procedures laid down by the Treaties to enable the European Union to commit itself at the international level. That situation is the consequence of the practice of ‘common accord’ of the Member States, as a result of which the decision-making process provided for in Article 17(2) TEU and Article 218(6) TFEU remains ‘blocked’ until a consensus has been reached among the Member States.

71 According to the Commission, that practice applies to agreements the mixed nature of which is considered to be necessary, in view of the powers reserved to the Member States, but also to agreements concluded on the basis of shared competences. In the present case, the Council is unable to establish that ‘common accord’, since at least one of the Member States has expressed its disagreement because of a potential conflict between the Istanbul Convention and its constitutional law.

72 The Commission submits that although Article 218 TFEU lays down a single procedure of general application for the negotiation, signing and conclusion of international agreements by the European Union, the approach taken by the institutions thus diverges as regards mixed agreements, which gives rise to deadlocks affecting the European Union’s capacity to act internationally. It was because of that deadlock situation that the Parliament made the present request for an Opinion.

73 The Council submits that, following the adoption of signature decisions 2017/865 and 2017/866, FREMP worked on several issues relating to the accession of the European Union to the Istanbul Convention, including the drawing up of a code of conduct between the European Union and the Member States intended to deal with matters such as the establishment of positions, coordination and reporting under that convention’s monitoring mechanisms. In-depth discussions were also undertaken concerning the conclusion of that convention by the European Union, which were halted by the present request for an Opinion.

B. Admissibility of the request for an Opinion

1. The appropriate legal bases for concluding the Istanbul Convention

74 According to the Council, the Parliament and the Commission delayed challenging signature decisions 2017/865 and 2017/866 under Article 263 TFEU. Ireland and the Council submit in that regard that challenging those decisions, in the context of the present request for an Opinion, more than two years after their adoption calls into question the compatibility of such a step with the ratio legis of Article 218(10) TFEU, which provides that the Parliament is to be immediately informed at each stage of the procedure in order, inter alia, to ensure that it is able to verify that its powers are respected as regards the choice of legal basis and to enable it to react immediately in the event of a problem. Thus, by the present request for an Opinion, the Parliament undermines that ratio legis, circumvents the time limits for bringing an action for annulment, which Hungary also submits, and potentially undermines the principle of sincere cooperation and the international status of the European Union.

75 The Republic of Finland submits that the Court has jurisdiction to examine, in the present opinion procedure, the appropriate legal basis for the adoption of the Council act on the conclusion of the Istanbul Convention on behalf of the European Union, since an incorrect legal basis could result in the annulment of the conclusion decision.

76 The Republic of Poland argues that the Parliament is seeking to call into question the Council’s decision that the European Union should accede to the Istanbul Convention only on the basis of its exclusive competences, with a view to reverting to a ‘broader’ accession. Such a request cannot form the subject matter of the opinion procedure, since that choice is of a political nature and is reserved to the Council. Hungary agrees with that analysis and adds that, as formulated, the first question does not make it possible to determine the European Union’s exclusive competences.

77 According to Hungary, the request for an Opinion does not concern the compatibility of the Istanbul Convention with the Treaties and relates only indirectly and marginally to the division of competences between the European Union and the Member States. It thus concerns, at most, the delimitation of competences between the European Union and the Member States. Even if the extent of the European Union’s competences could be determined, that would not justify the delivery of an opinion, since that opinion would not contribute to preventing the Member States or the European Union from assuming international obligations which are incompatible with the division of competences between them, the Member States and the European Union being, in any event, jointly liable for such obligations. Having regard to signature decisions 2017/865 and 2017/866 and to the fact that the Istanbul Convention has already been signed by all the Member States and ratified by the majority of them, it is difficult to maintain that the request for an Opinion could forestall future legal complications concerning the division of competences between the European Union and its Member States.

78 Furthermore, if the first question concerns a Council decision on the conclusion of the Istanbul Convention, Hungary considers that that question is hypothetical and premature, since the Council has not yet decided on the content of that decision and has not reached the stage at which it will have to seek the Parliament’s consent, at which stage the Parliament may raise any objections.

2. Division of the acts on the signature and conclusion of the Istanbul Convention into two separate decisions

79 Hungary also disputes the admissibility of the first question raised by the Parliament in its request for an Opinion in so far as it concerns the division of the acts on the signature and conclusion of the Istanbul Convention into two separate decisions, for reasons similar to those set out in paragraphs 74 and 78 above. The Council also disputes the admissibility of that question, submitting in particular that the question of the manner in which it might envisage in the future concluding the Istanbul Convention on behalf of the European Union is premature at this stage.

80 The Republic of Finland, on the other hand, considers that the Court has jurisdiction to examine whether, having regard to Protocol No 21, it is necessary or possible to split into two separate decisions the acts on the signature and conclusion of the Istanbul Convention according to the appropriate legal basis. Such a division could call into question not only the voting rules within the Council, but also the legal effects of the decision approving the Istanbul Convention with regard, in particular, to Ireland.

3. The practice of ‘common accord’ of the Member States

81 The Hellenic Republic submits, in order to challenge the admissibility of the second question posed by the Parliament in its request for an Opinion, that that institution has not sufficiently clarified how the Council’s conduct is detrimental.

82 The Republic of Bulgaria and Hungary also challenge the admissibility of the second question and state in that regard that that question concerns neither the compatibility of the Istanbul Convention with the Treaties, nor the competence of the European Union or of one of its institutions to conclude that convention, nor the legal basis of the Council’s decisions, but rather the Council’s Rules of Procedure, annexed to the Council Decision of 1 December 2009 adopting its Rules of Procedure (OJ 2009 L 325, p. 35). In addition, the Republic of Bulgaria considers that the practice of ‘common accord’ does not alter the competences of the European Union or those of its institutions or the procedure laid down in Article 218(8) TFEU.

83 Hungary adds that, as long as the Council has not made a decision on the conclusion of that convention, no complications can arise in relation to international law, and the request for an Opinion is therefore unnecessary. The Council also submits that the second question is purely hypothetical because it is based on speculation as to the manner in which the Council will act. Similarly, Ireland, the Hellenic Republic and the Kingdom of Spain state that no steps have been taken by the Council to require a ‘common accord’ of the Member States before adopting its decision on the conclusion of the Istanbul Convention.

84 While acknowledging that it is possible under the opinion procedure to consider whether or not the conclusion of an agreement falls within the competences of the European Union, the Kingdom of Spain, Hungary and the Council point out, first, that the decision-making process within the Council is still at the preparatory stage before FREMP. Furthermore, according to Hungary and the Council, accession to the Istanbul Convention requires a prior review process with a view to revising and supplementing the internal rules of the institutions, bodies, offices and agencies of the European Union, including those of the Staff Regulations of Officials of the European Union. Such measures have not yet been proposed. It is only after the procedure has followed its normal course that the conclusion of that convention is to be submitted to the Council for decision, in accordance with Article 218(6) TFEU. Hungary adds that the Council is not bound by any time limit for the adoption of decisions concluding international agreements and that the reason why the Council does not take such a decision is irrelevant.

85 Secondly, the Council submits that the Parliament should have asked whether the conclusion of that convention by the European Union is compatible with international law and the sovereign rights of the Member States in the absence of a ‘common accord’ of all the Member States. However, while the Council must ensure that the conclusion by the European Union of the Istanbul Convention does not give rise to problems with regard to international law, such a question could not be the subject of a request for an Opinion. The Kingdom of Spain considers that the second question raised by the Parliament in its request for an Opinion should relate to whether it is consistent with the principle of conferral and with Article 218(6) TFEU to make the adoption of the decision concluding the Istanbul Convention on behalf of the European Union contingent on the ‘common accord’ of the Member States to be bound by the Istanbul Convention as regards their national competences.

86 In any event, according to the Council, the conclusion of the Istanbul Convention by the European Union will take place by means of a Council decision adopted in accordance with Article 218(6) TFEU, without any further vote being required. Furthermore, such a decision cannot be regarded as being vitiated by the fact that the Member States have previously expressed their consent to be bound by that convention as regards their national competences. Such an expression of consent cannot, moreover, be regarded as a complication which the opinion procedure is intended to prevent.

87 If the Parliament considers that the Council must act before the Member States express their wish to be bound by the agreement concerned, the Kingdom of Spain, Hungary, the Slovak Republic and the Council consider that the Parliament could have brought an action for failure to act under Article 265 TFEU. The opinion procedure has a different purpose and cannot be used to compel the Council to act.

88 Thirdly, the adoption by the European Union of the decision concluding the Istanbul Convention must be distinguished from the deposit of the instrument of accession. Since neither of those two acts has, at this stage, been adopted by the Council and the procedure is still ongoing, the request for an Opinion is based on faulty assumptions and is premature and hypothetical. While acknowledging that the Istanbul Convention is an ‘agreement envisaged’ within the meaning of Article 218(11) TFEU, the Council denies that its internal procedures or its schedule may be the subject of an opinion procedure under that provision. Hungary shares that view.

89 On the other hand, the Republic of Finland takes the view that the practice of ‘common accord’ may be the subject of the present opinion procedure, since the conclusion of that convention without the ‘common accord’ of the Member States would be liable to be invalidated if such an accord were required by the Treaties. In addition, it is possible to examine in the context of that procedure not only whether the European Union has competence to conclude a specific international agreement, but also whether the European Union acts in conformity with the Treaties.

C. Substance of the request for an Opinion

1. The appropriate legal bases for concluding the Istanbul Convention

(a) ‘Broad’ or ‘narrow’ accession of the European Union to the Istanbul Convention

90 Ireland and the Republic of Finland point out that the analysis presented by the Parliament concerning the appropriate legal bases for signature decisions 2017/865 and 2017/866 appears to refer to the Istanbul Convention in its entirety. However, those decisions concern only the areas of that convention which, according to the Council’s analysis, fall within the exclusive competence of the European Union. The Council may indeed limit the accession of the European Union to those areas only.

91 The Republic of Finland submits that it is therefore necessary to determine the appropriate legal bases for the adoption of the decisions on the signing of the Istanbul Convention according to the provisions of that convention which fall within the exclusive competence of the European Union, while adding that it is possible that the Council may still decide to exercise shared competences also.

92 Since the choice of the legal basis for an EU measure, including one adopted with a view to concluding an international agreement, must be based, inter alia, on the aim and content of that measure, it is entirely appropriate, according to Ireland, to determine the legal bases for the decisions on the signing of that agreement solely in the light of the content of those decisions and not in the light of the entirety of the international agreement concerned, in this case the Istanbul Convention.

93 The Republic of Poland also points out that the scope of the accession determines the purpose and content of the decisions on the signing and conclusion of the Istanbul Convention. The choice of the legal basis for those decisions is therefore the result of a political decision of the Council, which the Parliament seeks to challenge.

(b) The criteria for identifying the competences of the European Union

94 According to the Commission, the finding that the European Union has an exclusive external competence under Article 3(2) TFEU must be based on a specific analysis of the relationship between the envisaged international agreement and the EU law in force. That analysis should take into account the fields covered, their foreseeable future development and the nature and content of the rules and provisions in question, in order to determine whether that agreement is liable to undermine the uniform and consistent application of EU rules. Such a risk exists where a field is largely covered by EU rules and provisions of the TFEU, such as Article 82(2)(d) and Article 83(1), in fine, which may give rise to such future developments since they provide for the possibility of extending the European Union’s competences.

95 According to the Council, an exclusive competence on the part of the European Union as regards the conclusion of the Istanbul Convention can be based only on the third hypothesis set out in Article 3(2) TFEU, namely where that conclusion may affect common rules or alter their scope. However, the Council states that, in the context of that third hypothesis, the Court has held that an internal competence can give rise to exclusive external competence only if it is exercised. If that is not the case, there can be no implied exclusive competence in the context of that third hypothesis. The provisions of primary law to which the Commission referred in its proposal for a signature decision and its proposal for a conclusion decision cannot therefore form the basis for such competence. Furthermore, for the purposes of identifying the ‘common rules’ of the European Union, within the meaning of Article 3(2) TFEU, it is necessary to take into account not only the state of EU law as it exists at the time of the analysis of the competences of the European Union, but also its future development, in so far as that is foreseeable at the time of that analysis, which requires, at a minimum, that the Commission has presented a proposal to the EU legislature. The Commission’s assertion in the explanatory memorandum to the proposal for a signature decision that it cannot be ‘ruled out’ that the European Union has exclusive competence for some parts of that convention runs counter to the principle of conferral and is insufficient to establish such a competence.

96 In so far as the Istanbul Convention and the relevant EU legislation contain only minimum requirements, the Council states that, in principle, that there can be no exclusive EU competence for the conclusion of that convention within the meaning of Article 3(2) TFEU. The Council cites in that regard the case-law of the Court according to which an international agreement containing minimum requirements cannot lead to an exclusive external EU competence. The Republic of Finland submits that it follows from the very wording of Article 82(2) and Article 83(1) TFEU that the European Union’s competence is limited to the adoption of minimum requirements.

97 The Council considers, however, that that case-law should not be applied in a mechanical fashion, but that it is necessary to examine specifically whether the envisaged international agreement and EU law leave the Member States a genuine degree of freedom. Such an examination is necessary to determine whether the fact that only the Member States would adhere to that agreement for a particular provision would be capable of undermining the uniform and consistent application of EU law.

98 In the light of those criteria, the Republic of Bulgaria and the Council consider that the provisions of the Istanbul Convention fall within the shared competences of the European Union and its Member States, the European Union’s supporting competence, its exclusive competence and the competences reserved to the Member States. The European Union has exclusive competence in respect of some of the provisions of that convention set out in Chapters IV, V and VI thereof, since those provisions concern victims of violence covered by Directives 2011/93 and 2011/36, and in respect of two of the three provisions of Chapter VII of that convention.

99 The Republic of Finland disputes that analysis, emphasising that the Court did not specifically examine the extent of the freedom left to the Member States when it previously determined, solely on the basis of the wording of the provisions of the EC Treaty or the fact that the secondary legislation laid down minimum requirements, that the conditions for exclusive competence of the European Union were not satisfied. In any event, the exclusive competence of the European Union is so limited that it is doubtful whether such a ‘narrow’ accession is possible, with the result that the European Union should also accede to the Istanbul Convention on the basis of its shared competences.

(c) The relationship between the Istanbul Convention and the EU acquis

100 According to the Commission, the objectives set out in Chapter I of the Istanbul Convention and, more specifically, in Article 1(a) to (e) thereof, correspond to the objectives of the European Union referred to in Article 2 TEU and Articles 8, 19 and 67 TFEU. The key definitions in Article 3(a) and (b) of that convention correspond to Article 22 and recitals 17 and 18 of Directive 2012/29.

101 The obligations laid down in Chapter II of that convention, designed to place the rights of victims at the centre of all the measures adopted in order to prevent and combat all forms of violence covered by that convention, correspond inter alia to Articles 1, 8, 26 and 28 of Directive 2012/29 and to financial programmes designed to promote equality between women and men, in particular recitals 7, 10, 15 and 17 and Article 4(1)(e) of Regulation (EU) No 1381/2013 of the European Parliament and of the Council of 17 December 2013 establishing a Rights, Equality and Citizenship Programme for the period 2014 to 2020 (OJ 2013 L 354, p. 62), Article 5 of Regulation (EU) No 1382/2013 of the European Parliament and of the Council of 17 December 2013 establishing a Justice Programme for the period 2014 to 2020 (OJ 2013 L 354, p. 73), and recitals 2, 3 and 10 and Article 2(1)(b)(ix) of Regulation (EU) No 235/2014 of the European Parliament and of the Council of 11 March 2014 establishing a financing instrument for democracy and human rights worldwide (OJ 2014 L 77, p. 85).

102 The subject matter of Chapter III of the Istanbul Convention, concerning the prevention of all forms of violence covered by that convention, is governed in EU law by Article 84 TFEU, by Article 18 of Directive 2011/36, by Articles 22 and 23 of Directive 2011/93, by Council Decision 2009/902/JHA of 30 November 2009 setting up a European Crime Prevention Network (EUCPN) and repealing Decision 2001/427/JHA (OJ 2009 L 321, p. 44), by financial programmes, including Article 5(1)(b) of Regulation No 1381/2013, Article 4(1)(b) and Article 6(1)(b) of Regulation No 1382/2013 and Article 3(3)(c) and (d) of Regulation (EU) No 513/2014 of the European Parliament and of the Council of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for police cooperation, preventing and combating crime, and crisis management and repealing Council Decision 2007/125/JHA (OJ 2014 L 150, p. 93), and by Article 25 of Directive 2012/29.

103 As regards the measures provided for in Chapter IV of the Istanbul Convention to protect victims of violence from any further act of violence, the Commission submits that Directive 2012/29 was adopted, on the basis of Article 82(2) TFEU, to ensure that victims of crime receive support, inter alia, and Directives 2011/36 and 2011/93 were adopted, on the basis of Article 82(2) and Article 83(1) TFEU, to protect victims of specific types of crime.

104 As regards Chapter V of that convention, which contains substantive provisions of civil and criminal law, the European Union has adopted, on the basis of, inter alia, Article 83(1) TFEU, Directives 2011/36 and 2011/93, which provide for certain offences also covered by that chapter. Moreover, since the European Union has shared competence under Article 83(1) TFEU, in fine, in those areas of civil law and criminal law, nothing precludes it from exercising that competence by concluding that convention.

105 The procedural obligations relating to investigations and prosecutions imposed by Chapter VI of that convention correspond to those set out in Directives 2011/36 and 2011/93, Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order (OJ 2011 L 338, p. 2), Directive 2012/29 and Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters (OJ 2013 L 181, p. 4).

106 In the field of migration and asylum, which is the subject of Chapter VII of the Istanbul Convention, Directives 2011/95, 2013/32 and 2013/33 on international protection, common procedures for granting and withdrawing that protection and standards for the reception of applicants for that protection were adopted. Furthermore, in that field, Ireland continues to be bound by Directives 2004/83 and 2005/85, of which Directives 2011/95 and 2013/32 are a recast.

107 Lastly, as regards international cooperation in civil and criminal matters, referred to in Chapter VIII of that convention, the European Union has adopted a wide range of legal instruments as regards both civil cooperation and judicial cooperation in criminal matters.

108 The Council observes at the outset that there is no specific EU legislation dealing in a comprehensive manner with the prevention of all forms of violence against women and combating that phenomenon.

109 As regards Chapters I to III of the Istanbul Convention, the Council submits that they relate, at most, to matters under a non-exercised shared competence of the European Union. As regards the obligations falling within Chapter II of that convention, relating to research, the European Union’s competence exists, pursuant to Article 4(3) TFEU, parallel to that of the Member States. For those linked to the prevention of crimes, the European Union has competence only to support the action of the Member States under Article 2(6) and Article 84 TFEU.

110 The Council does not share the Commission’s view that Chapter IV of that convention contains rules that are broadly comparable to those set out in Chapter 2 of Directive 2012/29 and takes the view that Chapter IV falls, with three exceptions, under a non-exercised shared competence of the European Union.

111 In the first place, that directive has a limited scope of application, since it applies only to victims of crime, particularly in the framework of criminal proceedings, which take place on the territory of the European Union, provided that there is a cross-border intra-EU element.

112 In the second place, Directives 2012/29 and 2011/93 contain minimum standards, as is apparent from the title, from recitals 11 and 67, Article 9(3) and Article 26 of Directive 2012/29 and from recitals 25, 27, 38, 41 and 43 and Article 1 of Directive 2011/93, with the result that the Member States may also comply with the provisions of Chapter IV of the Istanbul Convention, without breaching either that convention or EU law, since a close analysis of those provisions confirms that the Member States retain genuine freedom in relation to Chapter IV.

113 In the third place, the Council takes the view that a different conclusion must nevertheless be reached in relation to two specific categories of victims, namely, first, child victims of sexual offences, defined in the Istanbul Convention as women under the age of 18, in respect of whom the European Union has adopted detailed rules in Directive 2011/93, on the basis of Article 82(2) and Article 83(1) TFEU. Article 1(2), Article 22(4) and Articles 23 and 24 of Directive 2012/29 are also relevant.

114 Secondly, Directive 2011/36, in particular Articles 12 to 16 thereof, contains detailed obligations for assistance and support to child victims of human trafficking. The detailed provisions of those directives leave the Member States little freedom, with the result that they are, despite the fact that those directive contain minimum requirements, two areas largely covered by EU rules, for the purposes of Article 3(2) TFEU.

115 In the fourth place, the Commission wrongly asserted, in the proposal for a signature decision and the proposal for a conclusion decision, that Council Directive (EU) 2015/637 of 20 April 2015 on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries and repealing Decision 95/553/EC (OJ 2015 L 106, p. 1) – which is based on Article 23 TFEU, under which it is for the Member States to adopt the necessary provisions and start the international negotiations required to secure that protection – confers exclusive competence on the European Union concerning the aspects of consular protection referred to in Article 18(5) of the Istanbul Convention. In addition, in accordance with recital 13 thereof, complaints made to competent authorities outside the European Union, such as embassies, do not trigger the obligations set out in Directive 2012/29.

116 As regards Chapter V of the Istanbul Convention, Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ 2004 L 261, p. 15), including Article 12(2) thereof; Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (OJ 2004 L 373, p. 37), including recital 26 and Article 7 thereof; Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23), including Article 27 thereof; Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC (OJ 2010 L 180, p. 1), including recitals 18 and 23 thereof; Directive 2011/36, including Article 17 thereof, and Directive 2012/29 contain, according to the Council, minimum standards relating to the matters set out in Article 29(1) and Article 30(1), (2) and (3) of the Istanbul Convention which do not fall under the exclusive competence of the European Union. Moreover, Directive 2004/113, in Article 3(3) thereof, and Directive 2006/54, in Article 8 thereof, contain exclusions from their material scope. Furthermore, there is no EU legislation in relation to the other provisions in that chapter. That being said, the European Union has acquired exclusive competence over the provisions of Chapter V of the Istanbul Convention, in so far as they concern the victims covered by Directives 2011/93 and 2011/36.

117 The Council considers that Articles 49 to 54 and 56 of Chapter VI of that convention contain obligations that correspond in large measure to those in Articles 1, 3, 4, 6, 8, 9, 11, 18, 19, 20 and 22 to 24 of Directive 2012/29. Article 15(2) and Article 20 of Directive 2011/93 are also relevant, as are the instruments for mutual recognition between Member States in civil and criminal matters, namely Regulation No 606/2013, Council Directive 2003/8/EC of27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes (OJ 2003 L 26, p. 41, and corrigendum OJ 2003 L 32, p. 15), Directives 2004/80 and 2011/99, Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings (OJ 2008 L 220, p. 32), Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (OJ 2008 L 337, p. 102), Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States (OJ 2009 L 93, p. 23), and Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA (OJ 2009 L 93, p. 33). However, since the provisions in question constitute minimum standards, the European Union has not acquired exclusive competence, except in relation to the matters covered by certain provisions of Directives 2011/93 and 2011/36.

118 As regards the three articles in Chapter VII of that convention, the Council submits that Article 13(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (JO 2004 L 158, p. 77 , and corrigendum OJ 2004 L 229, p. 35), Article 3(5) and Article 15(3) of Directive 2003/86, Directive 2003/109 and the other instruments of EU law which are relevant as regards Article 59(1) to (3) of the Istanbul Convention contain only minimum requirements and that there is no EU legislation corresponding to Article 59(4) of that convention.

119 By contrast, as regards matters falling within Article 60(1) to (3) and Article 61 of that convention, the Member States do not appear to have much leeway, in the light of the detailed rules stemming, inter alia, from recitals 30 and 39, Article 4(3)(c) and (4), Article 9(2)(a) and (f), Article 10(1)(d) and Article 30 of Directive 2011/95 (which is not, however, binding on Ireland or the Kingdom of Denmark), Article 10(3)(d), Articles 18 and 24 and recital 32 of Directive 2013/32, Article 11, Article 17(2), Article 18(3), (4) and (7), Articles 19 and 21 to 25 of Directive 2013/33 and Article 5 of Directive 2008/115.

120 The Council therefore considers that, in the light of the EU law in force, the European Union has exclusive competence as regards matters falling within Articles 60 and 61 of the Istanbul Convention, but not as regards matters covered by Article 59 thereof which fall within a shared competence not exercised by the European Union.

121 Chapters VIII, IX and XI of the Istanbul Convention, follow, according to the case-law, the divisions of competence observed in relation to the previous chapters of that convention, with the result that they fall partly under shared EU competence, partly under supporting EU competence, partly under exclusive EU competence and partly under Member State competence. No separate analysis is needed for Chapters X and XII of that convention.

122 Lastly, the Council states that there was insufficient support within the Council for a ‘broad’ accession of the European Union to the Istanbul Convention, with the result that it decided, by a qualified majority, to authorise the signature of that convention limited to matters under exclusive EU competence.

123 Ireland shares the Council’s position.

(d) Article 82(2) TFEU

124 Noting that, according to the Parliament, the Council and the Commission, Article 82(2) TFEU constitutes one of the appropriate legal bases for the decision concluding the Istanbul Convention, the Commission and the Slovak Republic consider that that provision does not require any particular examination.

125 The Council submits that the European Union has exclusive competence to conclude the Istanbul Convention as regards certain specific articles of that convention relating to judicial cooperation in criminal matters, in so far as those articles concern victims of violence covered by Directives 2011/93 and 2011/36.

126 The Republic of Finland and the Republic of Poland contend that, since it confers on the European Union only competence to adopt minimum rules, the very wording of Article 82(2) TFEU precludes the European Union’s having exclusive competence to conclude the Istanbul Convention as regards its provisions on judicial cooperation in criminal matters.

127 If, on the other hand, the European Union wished also to accede to the parts of that convention falling under its shared competence, that provision would, according to the Republic of Finland, be one of the appropriate legal bases for concluding the Istanbul Convention.

(e) Article 84 TFEU

128 The Commission submits that the objective of the Istanbul Convention is the prevention of violence against women and the protection of victims. By concluding that convention, the European Union would support the preventive action of the Member States by providing a framework for their individual and specific measures. If the European Union’s conclusion of that convention were limited solely to the protection of victims, the EU institutions could be regarded as exempt from preventive obligations, which would be inconsistent.

129 Moreover, Article 82(2) TFEU does not in itself cover all the preventive measures which are not linked to criminal procedures within the meaning of Article 82(2) TFEU. Such measures are most often lacking in the specific context of violence against women and the Istanbul Convention seeks to remedy that shortcoming.

130 The Republic of Poland submits that Article 84 TFEU does not confer on the European Union either exclusive competence or shared competence, but merely refers to measures to support the action of the Member States. Accordingly, that provision cannot confer exclusive competence on the European Union and an accession of the European Union to the Istanbul Convention on the basis of that article would have the consequence of binding not the European Union, but the Member States.

131 The Republic of Finland considers that, if the European Union wished to accede to that convention by exercising its shared competences, Article 84 TFEU would be an appropriate legal basis.

(f) Article 78(2) TFEU

132 Since Articles 60 and 61 of the Istanbul Convention cover matters which do not fall within the scope of either Article 82(2) TFEU or Article 84 TFEU, the Commission considers that those matters are ancillary in nature, with the result that the addition of legal bases covering those matters is excluded. Articles 60 and 61 of that convention, which are intended to ensure that a ‘gender’-sensitive perspective is taken into account in decisions on the grant of international protection and in the reception conditions for victims of violence, are merely a manifestation, in the field of asylum, of the general objectives of that convention and do not make that convention an asylum law measure.

133 The Council maintains that the European Union has exclusive competence in relation to the matters falling under those two provisions of the Istanbul Convention. It submits, moreover, like the Slovak Republic, that those matters cannot be regarded as ancillary to the provisions of that convention relating to judicial cooperation in criminal matters.

134 The Republic of Finland and the Republic of Poland submit that, since the relevant secondary legislation in this area merely lays down minimum requirements, the European Union cannot have exclusive competence for the conclusion of the Istanbul Convention as regards Articles 60 and 61 thereof. According to the Republic of Finland, if the European Union wished to accede to the Istanbul Convention by exercising its shared competences, Article 78(2) TFEU would concern only an ancillary aspect of the Istanbul Convention, and that provision would therefore not be a relevant legal basis.

(g) Article 83(1) TFEU

135 The Commission submits that although the Istanbul Convention also applies to victims of human trafficking and sexual exploitation of women and children, its scope ratione personae is much broader. Moreover, those victims are covered by specific conventions of the Council of Europe and, at EU level, by Directives 2011/36 and 2011/93. That convention therefore does not constitute an act the primary purpose of which is combating specific forms of crime.

136 The Council considers that the European Union has supporting competence in the fields covered by certain provisions of that convention.

137 The Republic of Finland and the Republic of Poland submit that, since the wording of Article 83(1) TFEU grants the European Union only competence to adopt minimum requirements, it cannot be regarded as conferring exclusive competence on the European Union for the conclusion of the Istanbul Convention.

2. Division of the acts on the signing and conclusion of the Istanbul Convention into two separate decisions

138 The Republic of Bulgaria states that, if the decision concluding an international agreement pursues two objectives, one of which is the main objective whereas the other is incidental, it must be based on the primary legal basis alone. If, on the other hand, the decision pursues two objectives without one being incidental to the other, it must be founded on the various corresponding legal bases. In that case, two decisions may be necessary if the applicable procedures are incompatible with each other.

139 The Commission reiterates that Article 78(2) TFEU is not an appropriate legal basis for the conclusion of the Istanbul Convention. In any event, the addition of that provision would not necessarily lead to the division of the decision concluding that convention into two separate acts, since Ireland is bound by the relevant EU acquis. It is true that it is not the most recent acquis, but Protocol No 21 is not such as to release that Member State from its obligations or alter the criteria for identifying the appropriate legal basis.

140 Thus, the mere fact that Article 4a of Protocol No 21 allows Ireland not to participate in the amended version of an existing measure is irrelevant, since the rules on exclusive external competence are laid down in Article 3 TFEU and the possibility of exercising an ‘opt-out’ cannot be regarded as conferring competence on a Member State to conclude international agreements in breach of Article 3(2) TFEU.

141 The Republic of Finland submits that, as regards all the envisaged legal bases, the adoption of decisions by the Council is subject to Protocol No 21 and Ireland is therefore not required to take part in those decisions. Since the decision-making procedure is therefore identical, it was not necessary to split the decision on signing the Istanbul Convention into two.

142 The Council states that Article 78(2) and Article 82(2) TFEU trigger the application of Protocol No 21 and Protocol (No 22) on the position of Denmark annexed to the TEU and to the TFEU (‘Protocol No 22’). Since the Kingdom of Denmark is not bound by any of the secondary legislation relevant to the conclusion of the Istanbul Convention, the applicability of Protocol No 22 did not lead to any particular difficulty. However, since Ireland is participating in the judicial cooperation in criminal matters established by Directives 2011/36 and 2011/93, but is not bound by Directives 2011/95, 2013/32 and 2013/33 on asylum law, that Member State had to participate in the adoption of signature decision 2017/865, but not, under Articles 1, 3 and 4 of Protocol No 21, in that of signature decision 2017/866, with the result that it was necessary to adopt two separate signature decisions. The Republic of Bulgaria, Ireland, the French Republic and the Slovak Republic share that view.

143 Ireland submits that the adoption of two separate decisions is therefore essential in order to enable it to exercise its right, pursuant to Protocol No 21, to be bound only by the measures of the Istanbul Convention falling under Title V of the TFEU that it wishes to adopt. Had the Council had adopted a single decision, it would have been impossible for Ireland to distinguish between those aspects of the decision where the European Union’s competence is based on legislation that Ireland is bound by, and aspects where that competence is based on legislation that does not apply to it.

144 Such an approach would be contrary to Protocol No 21 and would undermine the fundamental parallelism between EU internal and external competences which forms the basis of the doctrine resulting from the judgment of 31 March 1971, Commission v Council (22/70, EU:C:1971:32), known as the ‘ERT