OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 7 September 2017 ( 1 )

Case C‑687/15

European Commission

v

Council of the European Union

(Action for annulment — External action of the European Union — Article 218(9) TFEU — Establishment of the positions to be adopted on the European Union’s behalf in a body set up by an international agreement — External competence of the European Union — Inappropriate legal form of the act establishing the positions to be adopted on the European Union’s behalf — Council Conclusions on the World Radiocommunication Conference 2015 of the International Telecommunication Union)

I. Introduction

1. By its application, the European Commission asks the Court to annul the Conclusions of the Council of the European Union, adopted on 26 October 2015, on the World Radiocommunication Conference 2015 (WRC‑15) of the International Telecommunication Union (ITU), on the ground that the Council infringed Article 218(9) TFEU by establishing the positions to be adopted on behalf of the European Union, under that provision, in the form of conclusions rather than a decision, as proposed by the Commission.

2. In the present Opinion, I shall set out the reasons why I consider that the Commission’s application must be upheld and the Council Conclusions of 26 October 2015 must be annulled.

II. Legal context

A. International law

3. The International Telecommunication Union (ITU) is a specialised agency of the United Nations responsible for information and communication technologies. The ITU allocates global radio spectrum and satellite orbits and develops technical standards that ensure networks and technologies interconnect. ( 2 )

4. Under its Constitution, the ITU is composed of Member States of the ITU and Sector Members of the ITU. Currently, 193 States are members of the ITU, including all Member States of the European Union. The ITU also includes some 800 Sector Members, primarily private sector entities or universities. The European Union is a Sector Member of the ITU. It follows from Article 3(2) and (3) of the ITU Constitution that, unlike Member States of the ITU, Sector Members of the ITU do not have the right, in particular, to one vote at ITU world conferences. ( 3 )

5. Article 4 of the ITU Constitution, entitled ‘Instruments of the Union’, provides, in paragraphs 1 and 3: ‘1. The instruments of the Union are: – this Constitution of the International Telecommunication Union, – the Convention of the International Telecommunication Union, and – the Administrative Regulations. … 3. The provisions of both this Constitution and the Convention are further complemented by those of the Administrative Regulations, enumerated below, which regulate the use of telecommunications and shall be binding on all Member States: … — Radio Regulations’.

6. Article 13 of the ITU Constitution, entitled ‘Radiocommunication Conferences and Radiocommunication Assemblies’, provides, in paragraphs 1 and 2: ‘1. A world radiocommunication conference may partially or, in exceptional cases, completely, revise the Radio Regulations and may deal with any question of a worldwide character within its competence and related to its agenda; its other duties are specified in the Convention. 2. World radiocommunication conferences shall normally be convened every three to four years; however, following the application of the relevant provisions of the Convention, such a conference need not be convened or an additional one may be convened.’

B. EU law

7. Article 10 of Decision No 243/2012/EU, ( 4 ) entitled ‘International negotiations’, provides, in paragraph 1: ‘1. In international negotiations relating to spectrum matters, the following principles shall apply: (a) if the subject matter of the international negotiations falls within the competence of the Union, the Union position shall be established in accordance with Union law; (b) if the subject matter of the international negotiations falls partly within the competence of the Union and partly within the competence of the Member States, the Union and the Member States shall seek to establish a common position in accordance with the requirements of the principle of sincere cooperation. For the purpose of applying point (b) of the first subparagraph, the Union and the Member States shall cooperate in accordance with the principle of unity in the international representation of the Union and its Member States.’

III. Background to the dispute

8. The World Radiocommunication Conference 2015 (‘WRC‑15’) was held in Geneva from 2 to 27 November 2015 for the purpose of revising the Radio Regulations. ( 5 )

9. A preliminary agenda for WRC‑15 had been established at the previous World Radiocommunication Conference, in 2012 (‘WRC‑12’), ( 6 ) following which the ITU Council had adopted the definitive agenda for WRC‑15. ( 7 )

10. On 29 May 2015, the Commission submitted to the Council a proposal for a Council decision on the position to be adopted, on behalf of the European Union, at WRC‑15. ( 8 ) The Commission’s proposal had given as its legal basis Article 114 TFEU in conjunction with Article 218(9) TFEU.

11. Article 1 of the Commission proposal provides: ‘The Member States, acting jointly in the interest of the Union, shall participate in the negotiations at the World Radiocommunication Conference 2015 of the International Telecommunication Union with a view to revising the Radio Regulations. The positions to be adopted on the Union’s behalf in the negotiations and during the adoption of the revisions to the Radio Regulations are set out in the Annex to this Decision. Where new proposals regarding the subject matter in the Annex are made at the Conference on which there is not yet a Union position, the Union position shall be established by means of on-the-spot coordination before the Conference is called to adopt revisions to the Radio Regulations. In such cases, the Union position shall be consistent with the principles laid down in the Annex to this Decision.’

12. During its 3 419th session, which was held on 26 October 2015 in Luxembourg, the Council adopted the following conclusions on WRC‑15 (‘the contested act’): ( 9 ) ‘The Council of the European Union, 1. Recalling: (a) Decision No 676/2002/EC of the European Parliament and the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community; (b) the provisions of the Framework Directive on electronic communications networks and services, and particularly its Article 8a(4); (c) Decision No 243/2012/EU of the European Parliament and of the Council of 14 March 2012 establishing a multiannual radio spectrum policy programme; (d) the Council conclusions on the European positions for the World Radiocommunication Conferences of 1992, 1997, 2000, 2003, 2007 and 2012; (e) the importance of wireless technologies using spectrum for achieving the [European Union]’s policy objectives under the EU2020 Strategy flagship initiative “Digital Agenda for Europe” to deliver fast broadband internet and achieving sustainable economic and social benefits from a digital single market; (f) the Council conclusions of 31 May 2010 on the Digital Agenda for Europe; 2. Noting • the February 2015 Opinion of the Radio Spectrum Policy Group (RSPG) on “Common Policy Objectives for WRC‑15”; 3. Expresses its broad support for the following objectives to be achieved at WRC‑15 in view of the successful implementation of relevant Union policies: (a) Under agenda item 1.1: i. To identify the band 1452-1492 MHz, and adjacent bands 1427-1452 MHz and 1492-1518 MHz for International Mobile Telecommunications (IMT) while protecting passive services below 1427 MHz. This identification does not preclude the use of these bands by any applications, including defence, of the services to which they are allocated, nor establish priority in the Radio Regulations; ii. To allocate the band 3400-3800 MHz on a co-primary basis to the mobile service and identify it for IMT, taking into account that the band plays an important role for satellite communications; iii. To support no change to allocations in the band 470-694 MHz in Europe; iv. To neither add the co-primary allocation to the mobile service of the bands 5350-5470 MHz and 5725-5850 MHz nor identify for IMT those bands as well as the band 5850-5925 MHz, while studying these three bands further with a view to considering their use for radio local area networks and ensuring that primary use is protected in all cases. (b) Under agenda item 1.2: i. To set the lower band edge at 694 MHz and support ITU-R recommendations for protection levels for the broadcasting service below 694 MHz commensurate with the results of the studies performed by the European Conference of Postal and Telecommunications Administrations; ii. To ensure balanced coexistence between wireless broadband and broadcasting, and not add additional constraints going beyond the GE-06 agreement for the protection of broadcasting in the band 694-790 MHz; iii. To ensure balanced access between mobile service and aeronautical radionavigation services (ARNS) at the borders of the eastern Member States, so as to facilitate the deployment of mobile services in all EU countries through appropriate regulatory provisions of the radio regulations, while favouring the smallest effective separation distances between ARNS and IMT and supporting the rights of the EU eastern Member States in this regard. (c) Under agenda item 1.18, to allocate the band 77.5-78 GHz to radiolocation service to facilitate the deployment of automotive radars without introducing excessive restrictions, and to recognise that radio astronomy stations should continue to benefit from protection; (d) Under agenda item 10, to support an agenda item for WRC‑19 addressing the spectrum needs for 5G mobile systems, with the focus above 6 GHz for new allocations and a common approach to launch related compatibility studies ahead of WRC‑19; 4. Invites Member States to: • Pursue the objectives set out in paragraph 3 and to respect the principles set out in Decision 243/2012/EU establishing a multiannual radio spectrum policy programme when negotiating any relevant amendment to the ITU Radio Regulations at WRC‑15. 5. Invites the Commission to: • Report rapidly to the European Parliament and the Council on the results of WRC‑15 and on the means to ensure that the European preparations for the next conference due in 2019 (WRC‑19) are fully supportive of Union policies and principles.’

13. When the contested act was adopted, the Commission made the following statement, entered in the minutes of the Council meeting: ‘The Commission regrets the fact that the Council has adopted conclusions in preparation for the World Radiocommunication Conference 2015, rather than a decision as foreseen by Article 218(9) TFEU. In the view of the Commission, this position is contrary to the Treaty and case law of the Court of Justice. The Commission reserves all its rights in that regard.’

IV. Forms of order sought by the parties

14. The Commission claims that the Court should: – annul the Council Conclusions on the World Radiocommunication Conference 2015 (WRC‑15) of the International Telecommunication Union (ITU) adopted on 26 October 2015 at the 3 419th meeting of the Council in Luxembourg; – order the Council to pay the costs.

15. The Council contends that the Court should: – dismiss the action in its entirety; – order the Commission to pay the costs.

16. The Czech Republic, the Federal Republic of Germany, the French Republic and the United Kingdom of Great Britain and Northern Ireland were granted leave to intervene in support of the form of order sought by the Council.

V. The action

A. Admissibility of the action

17. As a preliminary point, it should be noted that, in its statement in defence, the Council called into question the admissibility of the present action for annulment on the ground that it appears to follow from the statements contained in the Commission’s application that the latter took the view that the contested act was not intended to produce legal effects, a position which, according to the Council, is incompatible with the bringing of an action for annulment under Article 263 TFEU.

18. Following the clarification provided by the Commission in its reply, however, in particular with regard to the legal effects of the contested act, the Council stated in its rejoinder that that clarification had dispelled the doubts which it had initially expressed concerning the admissibility of the action.

19. The exchange of observations between the parties with respect to the admissibility of the present action calls for the following remarks.

20. Under Article 263 TFEU, the Court is to review the legality of acts of the institutions which are ‘intended to produce legal effects vis-à-vis third parties’. In accordance with the Court’s settled case-law, acts open to challenge, within the meaning of that provision, are any measures adopted by the institutions, whatever their nature or form, which are intended to have binding legal effects. ( 10 )

21. There is no doubt that a Council decision establishing the positions to be adopted on the European Union’s behalf under Article 218(9) TFEU is an act intended to produce legal effects within the meaning of Article 263 TFEU. ( 11 ) Such a decision may therefore be the subject of an action for annulment under the latter provision.

22. In the present case, it is common ground between the parties, first, that the contested act, although adopted in the form of ‘conclusions’, was adopted by the Council in accordance, in particular, with Article 218(9) TFEU, ( 12 ) and, secondly, that that act is intended to produce legal effects, in so far as it serves to establish, under that provision, the positions to be adopted on the European Union’s behalf at WRC‑15. In that regard, the Council submits that the contested act is ‘in substance’ a Council decision. ( 13 ) It should also be noted that none of the Member States which have intervened in support of the form of order sought by the Council disputes the admissibility of the present action.

23. In those circumstances, I consider that the contested act is intended to produce legal effects within the meaning of Article 263 TFEU and that the legal classification of ‘conclusions’ is not such as to imply that that act falls outside the scope of the review of legality carried out by the Court under that provision. For the sake of completeness, I would add that the Court has in the past already held to be admissible an action directed against Council conclusions which were intended to produce legal effects. ( 14 )

24. I therefore conclude that the action for the annulment of the contested act is admissible and that the Court has jurisdiction under Article 263 TFEU to review the legality of that act.

25. In the interests of clarity, it is important to make the point that that conclusion does not in any way mean that Council acts adopted in the form of ‘conclusions’ may as a general rule be the subject of an action for annulment under Article 263 TFEU.

B. Substance

1. Subject matter of the action

26. In support of its action for annulment, the Commission raises a single plea in law to the effect that, by adopting the conclusions on ITU WRC‑15 rather than a decision as proposed by the Commission, the Council infringed Article 218(9) TFEU.

27. It should be noted, first and foremost, that the Commission and the Council are in agreement, first, that the WRC‑15 agenda items in respect of which the contested act established the positions to be adopted on the European Union’s behalf fell within the European Union’s external competence and, secondly, that Article 114 TFEU was the applicable substantive basis and Article 218(9) TFEU the applicable procedural basis for the adoption of that act. They further consider that the nature of the European Union’s competence, that is to say, whether it is exclusive or shared with the Member States, has no bearing on the applicability of Article 218(9) TFEU. They are in disagreement, however, on the question as to whether, in adopting the contested act, the Council observed the procedural requirements laid down in the latter provision and, if it did not, what consequences this would have on the validity of that act.

28. Conversely, some of the Member States which have intervened in support of the form of order sought by the Council dispute the applicability of Article 218(9) TFEU in the present case, on the ground, in particular, that the European Union did not have the external competence necessary to enable the Council to establish positions to be adopted on the European Union’s behalf, under that provision, in respect of the WRC‑15 agenda items set out in the contested act.

29. First of all, it should be noted that, under the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union, an application to intervene must be limited to supporting the form of order sought by one of the parties. Moreover, under Article 129(3) of the Rules of Procedure of the Court of Justice, the intervener must accept the case as he finds it at the time of his intervention. In that context, the Court has held that a party who, pursuant to Article 40 of the Statute of the Court of Justice of the European Union, is granted leave to intervene in a case submitted to the Court may not alter the subject matter of the dispute as defined by the forms of order sought by the main parties and the pleas in law raised by those parties. It follows that arguments submitted by an intervener are not admissible unless they fall within the framework provided by those forms of order and pleas in law. ( 15 )

30. I consider that the arguments relating to the inapplicability of Article 218(9) TFEU and the European Union’s lack of external competence which have been put forward by the Member States intervening in the present case are such as to alter the subject matter of the dispute as defined by the forms of order sought by the main parties and the pleas in law raised by those parties. The forms of order thus sought and the pleas in law so raised relate only to whether the procedural requirements laid down in Article 218(9) TFEU were observed when the contested act was adopted.

31. It follows, in my view, that the arguments relating to the inapplicability of Article 218(9) TFEU and the European Union’s lack of external competence which have been put forward by the intervening Member States must, in principle, be rejected at the outset as inadmissible. ( 16 ) In that regard, it must be borne in mind that none of the intervening Member States availed themselves of their right under the second paragraph of Article 263 TFEU to bring an action for annulment against the contested act on the ground that the Council had exceeded its powers.

32. For the sake of completeness and in the event that the Court considers that it must verify of its own motion ( 17 ) that Article 218(9) TFEU is applicable and the European Union has external competence in the present case, I shall set out in the following section the reasons why I take the view that that provision was applicable to the adoption of the contested act and that the European Union had the external competence necessary to enable the Council to adopt that act.

2. The applicability of Article 218(9) TFEU and the existence of EU external competence

(a) Whether there is a need for exclusive EU external competence

33. Under Article 218(9) TFEU, the Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, is to adopt a decision establishing the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.

34. It follows from the Court’s case-law that Article 218(9) TFEU applies to the positions to be adopted on the European Union’s behalf in the context of the latter’s participation, through its institutions or, as the case may be, through its Member States acting jointly in its interests, in the adoption of acts having legal effects within the international body concerned. ( 18 ) The Court has also held that the fact that the European Union is not a party to the international agreement concerned does not, as such, prevent it from applying Article 218(9) TFEU. ( 19 )

35. In accordance with the principle of conferral enshrined in Article 5(1) and (2) TEU, ( 20 ) the Council’s adoption of positions to be adopted on the European Union’s behalf, under Article 218(9) TFEU, presupposes the existence of EU external competence. ( 21 ) However, I see no reason to take the view, as the Czech Republic and the French Republic submit, that that external competence must necessarily be exclusive within the meaning of Article 3(2) TFEU.

36. First, the wording of Article 218(9) TFEU contains no indication to that effect.

37. Moreover, Article 216 TFEU, which determines the existence of EU external competence, also draws no distinction according to whether the European Union’s external competence is shared or exclusive. That provision covers both the shared external competence and the exclusive external competence of the European Union. ( 22 ) In the absence of any indication to the contrary, it must be assumed that the same is true of Article 218 TFEU, given that both provisions are contained in Title V (entitled ‘International Agreements’) of Part Five of the FEU Treaty.

38. Secondly, the argument that the applicability of that article depends on the existence of EU exclusive external competence is not supported by a teleological interpretation of that provision.

39. As regards the context and purpose of Article 218(9) TFEU, the Court has held that that provision provides, by way of derogation from the ordinary procedure set out in Article 218(1) to (8) TFEU for the negotiation and conclusion of international agreements by the European Union, a simplified procedure for deciding on the positions to be adopted on the European Union’s behalf in the context of its participation in the adoption, within a decision-making body set up by the international agreement concerned, of acts applying or implementing that agreement. ( 23 ) In other words, the procedure laid down in Article 218(9) TFEU serves to expedite and, therefore, make more effective the European Union’s participation in the application or implementation of an existing international agreement. I see no reason why that simplified procedure should not apply in the case of shared external competence. ( 24 )

40. Moreover, whatever the nature of the competence enjoyed by the European Union, the establishment of the positions to be adopted on its behalf under Article 218(9) TFEU can help to ensure unity in the international representation of the European Union and the Member States ( 25 ) and observance of the principle of sincere cooperation, as set out in Article 4(3) TEU, by preventing the Member States from adopting unilateral measures that might jeopardise the attainment of the European Union’s objectives. ( 26 ) That is particularly true where, as in the present case, the European Union is not a full member of the international organisation concerned, the ITU, and is therefore bound to act, within the bodies of that organisation, through the intermediary of its Member States. ( 27 ) I would reiterate in this regard that an act establishing the European Union’s position, under Article 218(9) TFEU, is binding on Member States inasmuch as it requires them to defend that position. ( 28 )

41. Thirdly, the argument put forward by the Czech Republic and the French Republic would make it more difficult to defend the European Union’s interests in the context of the implementation of an international agreement, an outcome which would be hard to reconcile with the objective pursued by the Treaties, which, to my mind, is to guarantee an increased level of EU participation on the international scene. ( 29 )

42. Fourthly, although the Court has never yet had occasion to rule explicitly on the applicability of Article 218(9) TFEU to an instance of competence shared between the European Union and the Member States, I would say that it did so implicitly in the judgment in Germany v Council (C‑399/12). ( 30 ) In paragraph 66 of that judgment, the Court endorsed the Council’s use of Article 218(9) TFEU as the basis for adopting the contested decision, having held in paragraph 51 of that judgment that the case concerned common agricultural policy matters. It will be recalled that, under Article 4(2)(d) TFEU, agriculture falls within the sphere of competence shared between the European Union and its Member States. ( 31 )

43. In conclusion, I consider, like the Commission and the Council, ( 32 ) that the nature of the European Union’s competence has no bearing on the applicability of Article 218(9) TFEU.

(b) The existence of EU external competence

44. Under Article 216(1) TFEU, the European Union has external competence, in particular, where the conclusion of an international agreement is likely to affect common rules or alter their scope.

45. There is, in my view, no reason to suppose that the European Union did not, in the present case, have the external competence necessary to enable the Council to establish the positions to be adopted on the European Union’s behalf, under Article 218(9) TFEU, as expressed in the contested act.

46. In that regard, it should be noted that the positions established in the contested act concern management of the radio spectrum and use of radio frequencies, an area which, to a large extent, is regulated by the EU legislature under its competence based on Article 114 TFEU. ( 33 ) Particular EU acts in this field make explicit reference to the ITU’s work on management of the radio spectrum and to the Radio Regulations. ( 34 ) Moreover, on the basis of Decision 676/2002 (Radio Spectrum Decision), ( 35 ) the Commission has adopted several technical measures providing for the harmonisation of the conditions relating to the availability and efficient use of radio spectrum, some of which concern the frequency bands covered by the contested act. ( 36 )

47. As regards the WRC‑15 agenda items for which the contested act established the positions to be adopted on the European Union’s behalf, the Commission set out in its proposal for a Council decision of 29 May 2015 the reasons why it considered that each of those items was likely to have a direct effect on EU rules or alter their scope and that they were therefore covered by the external competence of the European Union, in accordance with Article 216(1) TFEU. ( 37 )

48. The observations submitted to the Court by the intervening Member States are not, in my view, capable of calling into question the assessment carried out by the Commission with respect to the existence of EU external competence enabling the Council to establish, pursuant to Article 218(9) TFEU, the positions to be adopted on the European Union’s behalf, as expressed in the contested act.

49. First, contrary to what the Federal Republic of Germany appears to assume, the existence of EU external competence cannot depend on the adoption of EU legal acts that cover in full the frequency bands referred to in the contested act. According to its wording, Article 216(1) TFEU requires only that the conclusion of the agreement in question be ‘likely to affect common rules or alter their scope’.

50. The Court has held, with regard to the almost identical form of words contained in Article 3(2) TFEU, ( 38 ) that there is a risk that common EU rules may be adversely affected by international commitments undertaken by Member States, or that the scope of those rules may be altered, which is such as to justify an exclusive external competence of the European Union, where those commitments fall within the scope of those rules. In that regard, the Court has stated (i) that a finding that there is such a risk does not presuppose that the area covered by the international commitments and that of the EU rules coincide fully, and (ii) that, in particular, such international commitments may affect EU rules or alter their scope when the commitments fall within an area which is already covered to a large extent by such rules. ( 39 ) I take the view that that reasoning is fully transposable to an assessment of whether the conclusion of an international agreement is likely to affect common rules or alter their scope within the meaning of Article 216(1) TFEU. As is apparent from the foregoing, radio spectrum management and use of radio frequencies are an area covered to a large extent by common rules of the European Union. ( 40 )

51. With regard, secondly, to the arguments relied on by the French Republic in connection with use of the radio spectrum for national defence and public security purposes, it should be noted that, while EU acts concerning the management and use of the radio spectrum are without prejudice to the right of Member States to organise and use their radio spectrum for public order, public security and defence purposes, ( 41 ) the mere fact that the radio spectrum generally has a bearing on the operation of national defence or public security cannot exclude the European Union’s external competence.

52. In my view, it has not been demonstrated in the present case that the revisions to the Radio Regulations, contemplated in the WRC‑15 agenda items referred to in the contested act, have a specific impact on the national defence or public security of the Member States, such as to exclude the competence of the European Union.

53. As regards, thirdly, Article 10 of Decision No 243/2012, relied on by the Czech Republic, the Federal Republic of Germany and the French Republic, I see no incompatibility between that provision and the application of Article 218(9) TFEU in the present case. Indeed, it follows from Article 10(1)(a) of Decision No 243/2012 that, in international negotiations relating to spectrum matters, if the subject matter of the international negotiations falls within the competence of the European Union, the EU position is to be established in accordance with EU law. ( 42 ) That was precisely the situation in the present case. I note that that provision makes no reference to the nature of the EU competence.

54. Contrary to what the Czech Republic and the French Republic submit, Article 10(1)(b) of Decision No 243/2012 was not, in my opinion, applicable to the adoption of the contested act. According to its wording, that provision in fact concerns the situation where the subject matter of the international negotiations ‘falls partly within the competence of the Union and partly within the competence of the Member States’. To my mind, that form of words is a direct reflection of the Court’s case-law concerning situations in which the subject matter of the international negotiations falls partly within the competence of the European Union and partly within the competence of the Member States, to which reference is also made in recital 34 of Decision No 243/2012. ( 43 ) I therefore take the view that Article 10(1)(b) is directed not at cases of shared competence but rather at cases where certain aspects of an international agreement are not covered by EU competence. That was not the situation in the present case, however.

55. In conclusion, I consider that, in the present case, the European Union had the external competence required.

56. None of the parties which have submitted observations to the Court disputes that the other conditions for the application of Article 218(9) TFEU are fulfilled in the present case, which is to say, first, that WRC‑15 may be regarded as a ‘body set up by an agreement’, ( 44 ) secondly, that the revisions to the Radio Regulations contemplated in the WRC‑15 agenda may be classified as ‘acts having legal effects’ ( 45 ) and, thirdly, that those revisions are not ‘acts supplementing or amending the institutional framework of the agreement’. I too am of the view that all of the conditions for the application of Article 218(9) TFEU are fulfilled.

57. It follows that the Council was, in my view, entitled to establish, under Article 218(9) TFEU, the positions to be adopted on the European Union’s behalf, as expressed in the contested act. ( 46 )

58. It therefore falls to be determined whether the Council observed the procedural requirements arising under that provision when adopting the contested act.

3. The single plea in law

59. By its single plea in law, the Commission submits that, by adopting the contested act in the form of conclusions rather than a decision, as it proposed, the Council infringed Article 218(9) TFEU.

60. The Council submits that it did comply with that provision when adopting the contested act and states that the fact that the EU positions concerning WRC‑15 were established in the form of conclusions does not amount to an infringement of essential procedural requirements such as to cause those conclusions to be annulled. It further argues that the Commission has not demonstrated that those positions might have been significantly different had they been adopted in the form of a decision.

61. For the reasons set out hereafter, I take the view that the Commission’s application must be upheld and the contested act annulled for infringement of Article 218(9) TFEU.

62. First, it should be noted that, under Article 218(9) TFEU, positions to be adopted on the European Union’s behalf within the meaning of that provision are to be adopted by the Council in the form of a ‘decision’. By adopting the contested act in the form of conclusions, the Council therefore used a legal form other than that laid down in the Treaty.

63. Like the Commission, I take the view that this cannot be regarded as a mere formality. As I shall explain below, the choice of legal form for an EU act determines, on the one hand, the nature and legal effects of the act ( 47 ) and, on the other, the procedure to be followed for its adoption. ( 48 )

64. Secondly, I consider that the fact that the approach which the Council took in this case to establishing the positions to be adopted on the European Union’s behalf in relation to WRC‑15 is the same as that taken on the occasion of previous World Radiocommunication Conferences ( 49 ) is irrelevant to the analysis to be carried out in the context of the present action. As the Court has held, a mere practice on the part of the Council cannot derogate from rules laid down in the Treaty and cannot therefore create a precedent binding on the EU institutions. ( 50 ) It should further be noted that the earlier practice referred to by the Council related for the most part to the period prior to the entry into force of the Treaty of Lisbon, which introduced Article 218(9) TFEU in its current wording. ( 51 )

65. Thirdly, so far as concerns the judgment in IBM v Commission, ( 52 ) relied on by the Council, it should be noted that, while it is true that the Court held in that judgment that the form in which acts or decisions are cast is, in principle, immaterial as regards the question whether they are open to challenge by way of an action for annulment, it cannot be inferred from this that the form of an EU act is of no importance so far as concerns the legality of the act in question.

66. In my opinion, the fact that an EU institution derogates from the legal form laid down in the Treaties amounts to an infringement of essential procedural requirements such as to trigger the annulment of the act, in particular where that derogation may create uncertainty as to the nature of that act or the procedure to be followed for its adoption. In such circumstances, legal certainty is compromised and the Court is prevented from exercising in full its power to review the legality of the act in question. ( 53 )

67. I take the view that such uncertainty is indeed present in this case. In particular, I would say, for the reasons set out hereafter, that the fact that the Council chose to adopt the contested act in the form of conclusions rather than a decision created considerable uncertainty as regards both the nature of that act and the procedure to be followed for its adoption.

(a) The uncertainty concerning the nature of the contested act

68. Article 288 TFEU distinguishes between different types of EU legal acts by conferring on each one its own characteristics as regards its scope, its applicability and its legal effects. It is therefore essential that the nature of an EU act be clearly identifiable.

69. In my opinion, the observations submitted by the intervening Member States in the present case show that there is considerable uncertainty over the nature of the contested act.

70. Thus, while the Council submits that the contested act is ‘in substance’ a Council decision establishing the positions to be adopted on the European Union’s behalf under Article 218(9) TFEU, that assertion is disputed by the Czech Republic, the French Republic and the Federal Republic of Germany. The first two of those States consider that that act constitutes a common position of the European Union and the Member States adopted in accordance with Article 10(1)(b) of Decision No 243/2012, while the latter considers that it constitutes Council conclusions. Moreover, the Council submits that the contested act is binding, whereas the Czech Republic is of the view that only certain parts of that act, covering matters which, according to that intervener, fall within the competence of the European Union, are legally binding. The Federal Republic of Germany, for its part, submits that the contested act constitutes non-binding conclusions. ( 54 )

71. It is clear, therefore, that the Council and the intervening Member States are in profound disagreement as regards both whether the contested act is an EU act or a ‘hybrid’ act adopted jointly by the European Union and the Member States, and whether it is binding.

72. While I am in no doubt that the contested act is an act of an EU institution, namely the Council, as its very title makes clear, and that it is intended to produce legal effects, ( 55 ) its precise nature is still, in my view, a matter of some uncertainty. That uncertainty is made worse by the fact that the Council decided, when adopting the contested act, to derogate from the legal form proposed by the Commission, ( 56 ) which is to say that expressly laid down in Article 218(9) TFEU. ( 57 ) It is also important to bear in mind that, while the binding nature of a Council decision arises directly from Article 288 TFEU, ( 58 ) the Treaties are silent on the effects to be attached to Council conclusions. Thus, as the Commission submits, in adopting the contested act in the form of conclusions, the Council opted for a legal form which is not provided for in the Treaties and is generally reserved for non-binding acts. ( 59 )

73. The uncertainty we have found with respect to the nature of the contested act cannot, in my view, be dispelled by an analysis of the content of that act.

74. In the first place, as the Commission says, the conclusions adopted by the Council on 26 October 2015, contrary to the Commission’s proposal of 29 May 2015, which referred to Article 218(9) TFEU, ( 60 ) contain no indication of their substantive or procedural legal basis. ( 61 )

75. According to the Court’s case-law, the obligation to indicate the legal basis of a measure is related to the duty to state reasons, enshrined in Article 296 TFEU, which is intended to ensure, first, that the Court can exercise its power of review and, secondly, that both the Member States and the third parties concerned may learn of the conditions under which the EU institutions have applied the Treaty. ( 62 )

76. The Court has also held that the requirement for legal certainty means that the binding nature of any act intended to have legal effects must be derived from a provision of EU law which prescribes the legal form to be taken by that act and which must be expressly indicated therein as its legal basis. ( 63 ) While it is true that failure to refer to a specific provision of the Treaty need not necessarily constitute an infringement of essential procedural requirements if the legal basis for an act may be determined from other parts of the act, such explicit reference is, however, indispensable where, in its absence, the parties concerned and the Court are left uncertain as to the specific legal basis. ( 64 )

77. In my view, the latter category is the very one into which the present case falls. Indeed, the intervening Member States’ observations clearly show that the parties concerned are left uncertain as to the specific legal basis of the contested act and, therefore, the nature of that act.

78. In the second place, I take the view that the terminology used in the contested act compounds the uncertainty as to its nature. While it is clear from the title and Article 1 of the Commission proposal of 29 May 2015 that that proposal concerns the positions to be adopted on the European Union’s behalf at WRC‑15, ( 65 ) the conclusions adopted by the Council on 26 October 2015, as the Commission points out, simply ‘express … broad support for’ the objectives set out in those conclusions and ‘[invite] Member States to pursue [those] objectives … and to respect the principles set out in Decision No [243/2012] when negotiating any relevant amendment to the ITU Radio Regulations at WRC‑15’. ( 66 )

79. So far as concerns the choice made by the Council to adopt the contested act in a legal form other than that laid down in Article 218(9) TFEU, it is my view that, in the absence of any indication of that provision as the legal basis for that act, the ‘watered-down’ wording used in the contested act, in particular by comparison with that used in the proposal submitted by the Commission, is likely to compound the uncertainty as to the nature of that act and, therefore, as to the extent of the Member States’ obligation under EU law to defend the positions established by the contested act. ( 67 )

(b) The uncertainty concerning the procedure to be followed for adopting the contested act

80. The fact that the Council chose to adopt the contested act in the form of conclusions rather than a decision also created uncertainty in relation to the procedure to be followed for its adoption.

81. Under Article 218(9) TFEU, decisions establishing the positions to be adopted on the European Union’s behalf are to be adopted by the Council on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy. Moreover, it follows from the Court’s case-law that, in accordance with Article 16(3) TEU, the Council is to adopt such decisions by the qualified majority voting procedure. ( 68 )

82. By contrast, the Treaties are silent on the procedure to be followed for adopting Council conclusions, since these are a legal form not provided for in the Treaties. ( 69 )

83. In the present case, the Council submits that, even though the contested act was adopted in the form of conclusions, the procedure laid down in Article 218(9) TFEU was indeed applicable to the adoption of that act and was actually followed.

84. In my view, that argument is untenable.

85. It must be borne in mind in that regard that the Treaties set up a system allocating powers among the EU institutions, assigning to each institution its own role in the institutional structure of the European Union and the accomplishment of the tasks entrusted to the European Union. Accordingly, Article 13(2) TEU provides that each institution is to act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out therein. That provision reflects the principle of institutional balance, characteristic of the institutional structure of the European Union, a principle which requires that each of the institutions exercise its powers with due regard for the powers of the other institutions. ( 70 )

86. It is in that context that the Court has held on a number of occasions that the rules regarding the manner in which the EU institutions arrive at their decisions are laid down in the Treaties and are not within the discretion of the Member States or of the institutions themselves. ( 71 ) In my view, that reasoning also applies to the Treaty rules prescribing the legal form which an EU act must take. ( 72 )

87. It follows that the EU institutions are not at liberty to cherry-pick certain aspects of the procedures laid down in the Treaties, while disregarding others. The present case is a good illustration of why such an ‘à la carte’ approach is unsustainable. After all, the fact that the Council derogated from the legal form laid down in Article 218(9) TFEU raises doubts as to the procedure to be followed for adopting the contested act, in particular as regards the Commission’s role and the voting rules within the Council.

88. With regard, first, to the role to be performed by the Commission, the first question that arises is whether the contested act may actually be regarded as having been adopted on ‘a proposal from the Commission’, as prescribed in Article 218(9) TFEU, given that that act has a legal form different from that given to it in the proposal submitted by the Commission. ( 73 ) Moreover, was the Commission under an obligation to submit a proposal for Council conclusions or did such a proposal rather have to be drafted and submitted by the Council Presidency, as is customary in the case of Council conclusions? Finally, was the Commission entitled to amend its proposal, in accordance with Article 293(2) TFEU, or to withdraw it after the Council had changed the legal form of the act?

89. As those questions show, the approach taken by the Council called into question the role to be performed by the Commission in the adoption of the contested act and, therefore, compromised the institutional balance established by the Treaties.

90. With regard, secondly, to the voting rules within the Council, while the Council recognises that the qualified majority voting procedure was ‘in principle’ applicable to the adoption of the contested act, it actually opted, as the Commission states, for a legal form generally reserved for acts adopted by the Council by ‘consensus’. Moreover, the Council submits that the high degree of convergence that existed between the Member States with respect to the objectives to be pursued by the European Union at WRC‑15 enabled the act to be agreed unanimously, once the reservations expressed by certain Member States had been dispelled within the Committee of Permanent Representatives (Coreper). Finally, the Council adds that, since, during the discussions leading up to the adoption of the contested act, the Commission did not amend its proposal to take account of the amendments on which agreement was about to be reached within the Council, it follows from Article 293(1) TFEU that the Council was bound to act unanimously. ( 74 )

91. The Council’s arguments cannot be upheld.

92. It is true that the Treaties do not prevent an act that must be adopted in accordance with the qualified voting majority procedure from being adopted, where appropriate, with the support of all of the Member States. ( 75 ) Moreover, I am well aware of the need, during negotiations in the course of a qualified majority voting procedure, for the Council Presidency, in a spirit of effective cooperation, to take into consideration and, where possible, grant requests made by the delegations of the Member States not entitled under the Treaties to block the adoption of the act in question.

93. The fact remains, however, that the Council is not permitted, by classifying an act as ‘conclusions’, to create uncertainty for the Member States with respect to whether or not they have the right to block the adoption of that act. Attendant upon such an approach, after all, is the risk that it may have the effect of circumventing or making redundant the qualified majority voting procedure and, therefore, of compromising the effectiveness of the voting procedure in the Council. ( 76 ) In my view, that risk is heightened where, as in the present case, the Council derogates from the legal form expressly laid down by the Treaties by adopting an act in the form of conclusions rather than a decision.

94. In this context, it is important to make the point that the choice between the qualified majority voting procedure and unanimity or consensus voting is a crucial one, since it could affect the determination of the content of the act in question. ( 77 ) As Advocate General Sharpston rightly noted, ‘a decision on which all can agree or to which no one is opposed is not necessarily the same as a decision on which a qualified majority can agree. For example, the content of a decision which can command a qualified majority might need to be watered down in order to be approved unanimously or without any opposition’. ( 78 )

95. In the light of all the foregoing considerations, I take the view that, in the circumstances of the present case, the Council, by derogating from the legal form laid down by the Treaties, created uncertainty as to the nature of the contested act and as to the procedure to be followed for its adoption, with the result that that derogation constitutes an infringement of Article 218(9) TFEU such as to trigger the annulment of the act.

96. I therefore conclude that the single plea in law raised by the Commission must be upheld and the Council Conclusions of 26 October 2015 must be annulled.

VI. Costs

97. Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. If the Court endorses my proposal, the Council will be the unsuccessful party and, as such, must therefore be ordered to pay the costs, these having been applied for in the Commission’s pleadings. Under Article 140(1) of the Rules of Procedure of the Court of Justice, the intervening Member States must bear their own costs.

VII. Conclusion

98. In light of all the foregoing considerations, I propose that the Court should: – annul the Conclusions of the Council of the European Union, adopted on 26 October 2015, on the World Radiocommunication Conference 2015 (WRC‑15) of the International Telecommunication Union (ITU); – order the Council to pay the costs; and – order the Czech Republic, the Federal Republic of Germany, the French Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

( 1 ) Original language: French.

( 2 ) See, on the purpose of the ITU, Article 1 of its Constitution, adopted by the Additional Plenipotentiary Conference in Geneva (Switzerland) in 1992, with amendments adopted by the Plenipotentiary Conferences in Kyoto (Japan) in 1994, in Minneapolis (United States) in 1998, in Marrakesh (Morocco) in 2002, in Antalya (Turkey) in 2006 and in Guadalajara (Mexico) in 2010 (‘the ITU Constitution’).

( 3 ) The Commission submits that, in accordance with Article 3(2) of the ITU Constitution, participation as a Sector Member, unlike full membership, does not permit the European Union to put forward positions at ITU conferences and meetings, including conferences where legally binding acts are negotiated.

( 4 ) Decision of the European Parliament and of the Council of 14 March 2012 establishing a multiannual radio spectrum policy programme (OJ 2012 L 81, p. 7).

( 5 ) See, on the subject of the Radio Regulations, point 5 of the present Opinion.

( 6 ) See Resolution 807 (WRC‑12), adopted by WRC‑12 in Geneva in 2012, entitled ‘Agenda for the 2015 World Radiocommunication Conference’.

( 7 ) See Resolution 1343 (C12) of the ITU Council, entitled ‘Place, dates and agenda for the World Radiocommunication Conference (WRC‑15)’.

( 8 ) Proposal for a Council decision of 29 May 2015 on the position to be adopted, on behalf of the European Union, in the International Telecommunication Union (ITU) World Radiocommunication Conference 2015 (WRC‑15) (COM(2015) 234 final).

( 9 ) Council Conclusions of 26 October 2015 on the World Radiocommunication Conference 2015 (WRC‑15) of the International Telecommunication Union (ITU) (ST 13460 2015 INIT) (2015/0119 (NLE)) (cited here without footnotes).

( 10 ) See judgment of 19 November 2013, Commission v Council (C‑63/12, EU:C:2013:752, paragraph 28 and the case-law cited). See also judgment of 11 November 1981, IBM v Commission (60/81, EU:C:1981:264, paragraph 9), from which it follows that the form in which such acts or decisions are cast is, in principle, immaterial as regards the question whether they are open to challenge by way of an action for annulment.

( 11 ) See to that effect judgment of 1 October 2009, Commission v Council (C‑370/07, EU:C:2009:590, paragraph 44), from which it follows that such a decision produces binding legal effects in so far as it establishes the EU position within the body in question, and is binding in nature, first, with respect to the Council and the Commission and, secondly, with respect to the Member States inasmuch as it obliges them to defend that position.

( 12 ) According to the parties, Article 114 TFEU is the substantive basis and Article 218(9) TFEU the procedural basis of the contested act. See point 27 of the present Opinion.

( 13 ) See point 70 of the present Opinion.

( 14 ) See judgment of 13 July 2004, Commission v Council (C‑27/04, EU:C:2004:436, paragraphs 44 to 51).

( 15 ) Judgment of 7 October 2014, Germany v Council (C‑399/12, EU:C:2014:2258, paragraph 27).

( 16 ) See to that effect judgment of 7 October 2014, Germany v Council (C‑399/12, EU:C:2014:2258, paragraphs 25 to 28).

( 17 ) See in that regard judgment of 13 July 2000, Salzgitter v Commission (C‑210/98 P, EU:C:2000:397, paragraphs 55 to 57), relied on by the Federal Republic of Germany, concerning the EU judicature’s obligation to raise of its own motion a failure to observe the time limit for the notification of aid, inasmuch as this is a finding which touches on the competence of the Commission to authorise the aid in question. See also Opinion of Advocate General Mengozzi in British Airways v Commission (C‑122/16 P, EU:C:2017:406, point 100 and footnote 54).

( 18 ) See to that effect judgment of 6 October 2015, Council v Commission (C‑73/14, EU:C:2015:663, paragraph 63).

( 19 ) See to that effect judgment of 7 October 2014, Germany v Council (C‑399/12, EU:C:2014:2258, paragraph 55).

( 20 ) The principle of conferral must be respected in both the internal action and the international action of the European Union. See Opinion 2/94 (Accession of the Community to the ECHR [European Convention for the Protection of Human Rights and Fundamental Freedoms]) of 28 March 1996 (EU:C:1996:140, paragraph 24).

( 21 ) See to that effect Opinion of Advocate General Szpunar in Germany v Council (C‑600/14, EU:C:2017:296, point 60).

( 22 ) With regard to the distinction between the existence of EU external competence, determined by Article 216(1) TFEU, on the one hand, and the potentially exclusive nature of that competence, determined by Article 3(2) TFEU, on the other hand, see Opinion of Advocate General Sharpston in Opinion 2/15 (EU-Singapore Free Trade Agreement, EU:C:2016:992, point 64) and Opinion of Advocate General Szpunar in Germany v Council (C‑600/14, EU:C:2017:296, point 80). See also, albeit to less explicit effect, Opinion 2/15 (EU-Singapore Free Trade Agreement) of 16 May 2017 (EU:C:2017:376, paragraphs 171 and 172); Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014 (EU:C:2014:2303, paragraphs 67 to 74); and Opinion 2/91 (ILO Convention No 170) of 19 March 1993 (EU:C:1993:106, paragraph 7).

( 23 ) Judgment of 6 October 2015, Council v Commission (C‑73/14, EU:C:2015:663, paragraphs 64 and 65). See also Rosas, A., ‘Recent Case Law of the European Court of Justice Relating to Article 218 TFEU’, The EU as a Global Actor Bridging Legal Theory and Practice — Liber Amicorum in Honour of Ricardo Gosalbo Bono, Brill/Nijhoff, 2017, pp. 370 and 371. See, on the genesis of Article 218(9) TFEU, Opinion of Advocate General Cruz Villalón in Germany v Council (C‑399/12, EU:C:2014:289, points 39 to 52), and Opinion of Advocate General Sharpston in Council v Commission (C‑73/14, EU:C:2015:490, points 69 to 74).

( 24 ) Article 2(2) TFEU provides that, when the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States are to exercise their competence to the extent that the Union has not exercised its competence. See also, to that effect, judgment of 14 July 1976, Kramer and Others (3/76, 4/76 and 6/76, EU:C:1976:114, paragraphs 39 and 40).

( 25 ) On the requirement of unity in the international representation of the European Union and the Member States in cases where it is apparent that the subject matter of an international agreement falls partly within the competence of the European Union and partly within that of the Member States, see Opinion 2/00 (Cartagena Protocol on Biosafety) of 6 December 2001 (EU:C:2001:664, paragraph 18 and the case-law cited) and judgment of 20 April 2010, Commission v Sweden (C‑246/07, EU:C:2010:203, paragraph 73). See, more generally, Opinion of Advocate General Mengozzi in Commission v Council (C‑28/12, EU:C:2015:43, points 58 to 63 and the case-law cited).

( 26 ) See in this regard the third subparagraph of that provision, which states that the Member States are to facilitate the achievement of the European Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives. See also judgment of 20 April 2010, Commission v Sweden (C‑246/07, EU:C:2010:203, paragraph 71 and the case-law cited), in which the Court held that the duty of sincere cooperation is of general application and does not depend either on whether the EU competence concerned is exclusive or on any right of the Member States to enter into obligations towards third States.

( 27 ) See point 4 of the present Opinion. See also judgment of 12 February 2009, Commission v Greece (C‑45/07, EU:C:2009:81, paragraph 31), from which it follows that the fact that the European Union is not a member of an international organisation does not prevent its external competence from being in fact exercised, in particular through the Member States acting jointly in the European Union’s interest.

( 28 ) See to that effect judgment of 1 October 2009, Commission v Council (C‑370/07, EU:C:2009:590, paragraph 44), and footnote 11 of the present Opinion.

( 29 ) See in particular Article 3(5) and Article 21 TEU. See also Article 220 TFEU.

( 30 ) See judgment of 7 October 2014, Germany v Council (C‑399/12, EU:C:2014:2258).

( 31 ) In that case, the Council had submitted that, under Article 3(2) TFEU, the European Union had exclusive external competence in the areas covered by the contested decision, while the Federal Republic of Germany and the intervening Member States had expressed the view that the European Union’s competence was shared. See judgment of 7 October 2014, Germany v Council (C‑399/12, EU:C:2014:2258, paragraphs 34 and 43).

( 32 ) See point 27 of the present Opinion.

( 33 ) See, in particular, Articles 8a to 9b of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37) (‘Directive 2002/21’); Articles 5 to 8 and 10 to 14 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21), as amended by Directive 2009/140; Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision) (OJ 2002 L 108, p. 1); and Decision No 243/2012. See also Council Directive 91/287/EEC of 3 June 1991 on the frequency band to be designated for the coordinated introduction of digital European cordless telecommunications (DECT) into the Community (OJ 1991 L 144, p. 45) and Council Directive 87/372/EEC of 25 June 1987 on the frequency bands to be reserved for the coordinated introduction of public pan-European cellular digital land-based mobile communications in the Community (OJ 1987 L 196. p. 85), as amended by Directive 2009/114/EC of the European Parliament and of the Council of 16 September 2009 (OJ 2009 L 274, p. 25).

( 34 ) See, in particular, Article 9(1), second subparagraph, and (4) and recital 30 of Directive 2002/21; Article 1(3) and recitals 18 and 19 of Decision No 676/2002; recital 22 of Decision No 243/2001; and recital 7 of Directive 87/372. See also Article 8 of Directive 2002/20, which refers more generally to ‘international agreements’. With respect to the Radio Regulations, see point 5 of the present Opinion.

( 35 ) See footnote 33 of the present Opinion.

( 36 ) See in particular Commission Decision 2004/545/EC of 8 July 2004 on the harmonisation of radio spectrum in the 79 GHz range for the use of automotive short-range radar equipment in the Community (OJ 2004 L 241, p. 66), which harmonises the frequency band between 77 and 81 GHz; Commission Decision 2005/513/EC of 11 July 2005 on the harmonised use of radio spectrum in the 5 GHz frequency band for the implementation of wireless access systems including radio local area networks (WAS/RLANs) (OJ 2005 L 187, p. 22), as amended by Commission Decision 2007/90/EC of 12 February 2007 (OJ 2007 L 41, p. 10), which harmonises the frequency bands 5 150-5 350 MHz and 5 470-5 725 MHz; Commission Decision 2008/411/EC of 21 May 2008 on the harmonisation of the 3 400-3 800 MHz frequency band for terrestrial systems capable of providing electronic communications services in the Community (OJ 2008 L 144, p. 77), as amended by Commission Implementing Decision 2014/276/EU of 2 May 2014 (OJ 2014 L 139, p. 18); Commission Decision 2008/671/EC of 5 August 2008 on the harmonised use of radio spectrum in the 5 875-5 905 MHz frequency band for safety-related applications of Intelligent Transport (OJ 2008 L 220, p. 24); and Commission Implementing Decision (EU) 2015/750 of 8 May 2015 on the harmonisation of the 1 452-1 492 MHz frequency band for terrestrial systems capable of providing electronic communications services in the Union (OJ 2015 L 119, p. 27). On the frequency bands covered by the contested act, see point 12 of the present Opinion.

( 37 ) See paragraph 3 of the Explanatory Memorandum to the Commission Proposal for a Council decision of 29 May 2015 (cited above). In that proposal, the Commission also referred to the opinion given by the Radio Spectrum Policy Group (RSPG) on 19 February 2015, ‘RSPG Opinion on Common Policy Objectives for WRC‑15’ (RSPG15-593 final).

( 38 ) Article 3(2) TFEU provides that the European Union is to have exclusive competence for the conclusion of an international agreement, in particular, in so far as its conclusion may affect common rules or alter their scope.

( 39 ) See Opinion 3/15 (Marrakesh Treaty on access to published works) of 14 February 2017 (EU:C:2017:114, paragraphs 105 to 107), and, to that effect, Opinion 2/15 of 16 May 2017 (EU:C:2017:376, paragraphs 180 and 181). See, in that context, recital 10 of Decision No 243/2012, which states that, ‘while spectrum management is still largely a national competence, it should be exercised in compliance with existing Union law and allow for action to pursue Union policies’. See also recital 28 of Directive 2009/140, which states that, ‘although spectrum management remains within the competence of the Member States, strategic planning, coordination and, where appropriate, harmonisation at Community level can help ensure that spectrum users derive the full benefits of the internal market and that EU interests can be effectively defended globally …’.

( 40 ) See point 46 of the present Opinion.

( 41 ) See Article 1(4) of Decision No 676/2002 and the second subparagraph of Article 1(3) of Decision No 243/2012. See also to that effect recital 7 of Directive 2002/21. See also in this context Article 4(2) TEU, which provides that the European Union is to respect essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security, the latter remaining the sole responsibility of each Member State, and Article 346(1)(a) TFEU, which states that no Member State is to be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security.

( 42 ) See point 7 of the present Opinion.

( 43 ) See, in particular, Opinion 2/91 (ILO Convention No 170) of 19 March 1993 (EU:C:1993:106, paragraph 36 and the case-law cited) and judgment of 28 April 2015, Commission v Council (C‑28/12, EU:C:2015:282, paragraph 54).

( 44 ) On World Radiocommunication Conferences, see Article 13(1) and (2) of the ITU Constitution, reproduced in point 6 of the present Opinion, and Article 7 of the ITU Convention, adopted by the Additional Plenipotentiary Conference in Geneva (Switzerland) in 1992, with the amendments adopted by the Plenipotentiary Conferences in Kyoto (Japan) in 1994, in Minneapolis (United States) in 1998, in Marrakesh (Morocco) in 2002, in Antalya (Turkey) in 2006 and in Guadalajara (Mexico) in 2010.

( 45 ) On the phrase ‘acts having legal effects’ within the meaning of Article 218(9) TFEU, see judgment of 7 October 2014, Germany v Council (C‑399/12, EU:C:2014:2258, paragraph 56 et seq.). On the binding nature of the Radio Regulations and the amendments thereto, see Article 4(3) of the ITU Constitution, reproduced in point 5 of the present Opinion, and Article 54 of the ITU Constitution. See also, on the reference in EU acts to the ITU and to the Radio Regulations, point 46 and footnote 34 of the present Opinion.

( 46 ) To my mind, there is no need for the Court to rule, in the context of this action, on whether the Council was also obliged to rely on Article 218(9) TFEU. That question does not arise in the present case, since the Council states that it did rely on that provision when adopting the contested act.

( 47 ) See points 68 and 72 of the present Opinion.

( 48 ) See points 81 and 82 of the present Opinion.

( 49 ) See in particular Council Conclusions on the Communication from the Commission on the European Positions for the World Radiocommunication Conference (WRC‑2000) (Doc. 7788/00); Council Conclusions on the Communication from the Commission on ‘The ITU World Radiocommunication Conference 2007 (WRC‑07)’ (Doc. 11991/07); and Council Conclusions on the World Radiocommunication Conference 2012 (WRC‑12) of the International Telecommunication Union (ITU) (Doc. 10301/11).

( 50 ) See to that effect, on the subject of the indication of the legal basis of an EU act, judgment of 1 October 2009, Commission v Council (C‑370/07, EU:C:2009:590, paragraph 54 and the case-law cited), and, on the choice of the correct legal basis, Opinion 1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS [General Agreement on Trade in Services]) of 30 November 2009 (EU:C:2009:739, paragraph 172 and the case-law cited). See also judgment of 6 May 2008, Parliament v Council (C‑133/06 EU:C:2008:257, paragraph 60).

( 51 ) See, on the genesis of Article 218(9) TFEU, footnote 23 of the present Opinion.

( 52 ) Judgment of 11 November 1981 (60/81, EU:C:1981:264, paragraph 9). See footnote 10 of the present Opinion.

( 53 ) See in that regard points 75 and 76 of the present Opinion.

( 54 ) The United Kingdom has not commented on the nature or legal effects of the contested act.

( 55 ) See points 17 to 23 of the present Opinion.

( 56 ) See points 10 and 12 of the present Opinion. See, on the practice followed by the Council at previous World Radiocommunication Conferences, point 64 of the present Opinion.

( 57 ) See point 62 of the present Opinion.

( 58 ) Under Article 288 TFEU, a decision is to be binding in its entirety.

( 59 ) ‘Conclusions’ are in fact a form provided for in the Treaties only for particular acts of the European Council. See Article 148 TFEU.

( 60 ) See point 10 of the present Opinion.

( 61 ) See point 12 of the present Opinion.

( 62 ) See to that effect judgment of 1 October 2009, Commission v Council (C‑370/07, EU:C:2009:590, paragraphs 37 and 38).

( 63 ) See judgment of 14 June 2016, Commission v McBride and Others (C‑361/14 P, EU:C:2016:434, paragraph 47 and the case-law cited).

( 64 ) See judgment of 14 June 2016, Commission v McBride and Others (C‑361/14 P, EU:C:2016:434, paragraph 48 and the case-law cited).

( 65 ) See points 10 and 11 of the present Opinion.

( 66 ) See point 12 of the present Opinion.

( 67 ) See in that regard point 40 of the present Opinion.

( 68 ) See to that effect judgment of 18 December 2014, United Kingdom v Council (C‑81/13, EU:C:2014:2449, paragraph 66), and, more explicitly, Opinion of Advocate General Kokott in United Kingdom v Council (C‑81/13, EU:C:2014:2114, point 98).

( 69 ) See point 72 and footnote 59 of the present Opinion.

( 70 ) See judgment of 28 July 2016, Council v Commission, (C‑660/13, EU:C:2016:616, paragraphs 31 and 32 and the case-law cited).

( 71 ) See judgments of 6 September 2017, SlovakiaandHungary v Council (C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 149), and of 28 April 2015, Commission v Council (C‑28/12, EU:C:2015:282, paragraph 42 and the case-law cited). See also to that effect judgment of 13 July 2004, Germany v Council (C‑27/04, EU:C:2004:436, paragraph 81).

( 72 ) The first paragraph of Article 296 TFEU provides that, where the Treaties do not specify the type of act to be adopted, the institutions are to select it on a case-by-case basis, in compliance with the applicable procedures and with the principle of proportionality.

( 73 ) See points 10 and 12 of the present Opinion.

( 74 ) That provision states that, where, pursuant to the Treaties, the Council acts on a proposal from the Commission, the Council may amend that proposal only by acting unanimously, except in the cases referred to.

( 75 ) See to that effect Opinion of Advocate General Sharpston in Commission v Council (C‑114/12, EU:C:2014:224, point 189).

( 76 ) See in that regard judgment of 6 September 2017, SlovakiaandHungary v Council (C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 148), in which the Court stated that the principle of institutional balance prevents the European Council from altering a qualified majority voting rule which is provided for by the Treaties, by imposing on the Council, by means of conclusions adopted pursuant to Article 68 TFEU, a rule requiring a unanimous vote.

( 77 ) See to similar effect, on the subject of the legal basis, judgments of 26 March 1987, Commission v Council (45/86, EU:C:1987:163, paragraph 12), and of 23 February 1988, United Kingdom v Council (68/86, EU:C:1988:85, paragraph 6).

( 78 ) See Opinion of Advocate General Sharpston in Commission v Council (C‑114/12, EU:C:2014:224, point 189). See also to that effect Opinion of Advocate General Mengozzi in Commission v Council (C‑28/12, EU:C:2015:43, point 81).