OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 29 April 2014 ( 1 )

Case C‑399/12

Federal Republic of Germany

v

Council of the European Union

(Action for annulment by the Federal Republic of Germany)

‛International organisations — Procedure for the conclusion of agreements — Establishment of positions to be adopted on behalf of the European Union in a body set up by an agreement — Resolutions of the International Organisation for Vine and Wine — Article 218(9) TFEU — Agreements concluded by the Member States — Legal effects — Analogy’

1. Over the years, the European Union has developed into a respected participant in international organisations. ( 2 ) One of the Treaty provisions relevant in this regard is Article 218(9) TFEU, which contains a procedural basis for establishing the positions to be adopted on behalf of the European Union in a body set up by an agreement, when that body is called upon to adopt acts having legal effects. The present action for annulment raises the question whether that provision is applicable in a case with the following special features: on the one hand, the fact that some European Union Member States belong to the organisation, but the European Union itself does not; and, on the other hand, the fact that the organisation in question essentially makes ‘recommendations’.

2. The dispute has its origin in the agreement between the European Union and the Member States in the area of activity of the International Organisation of Vine and Wine (‘OIV’), an intergovernmental organisation with competences in the areas of vines, wine, wine-based beverages, table grapes, raisins and other vine-based products. Many European Union Member States are members of the organisation, although the European Union itself is not. On 18 June 2012, the Council, for the first time, adopted by qualified majority on the basis of Article 43 in conjunction with Article 218(9) TFEU a decision establishing the position to be adopted on behalf of the European Union with regard to certain OIV resolutions. As a result, the Federal Republic of Germany, which had voted against that decision and had entered a statement on its position in the minutes, brought the present action for annulment.

3. Beyond the circumstances of the present case the questions of law to be resolved here are of considerable relevance to the relationship between the European Union and the Member States in the field of external action. It is true of many international organisations that, for reasons relating not least to the history of international law, while the European Union Member States are members, the European Union itself is not. This is often the case even where the organisation in question acts in an area in which the European Union is competent. The present case gives the Court an opportunity to provide clarification for the purposes of similar cases arising in future.

I – Legal framework

A – International law

4. In its present form, the OIV was established by the Agreement establishing the International Organisation of Vine and Wine (OIV) of 3 April 2001 (‘the Agreement’) ( 3 ) as the successor to the International Vine and Wine Office created in 1924. ( 4 )

5. One of its objectives is to ‘contribute to international harmonisation of existing practices and standards and, as necessary, to the preparation of new international standards in order to improve the conditions for producing and marketing vine and wine products, and to help ensure that the interests of consumers are taken into account’ (Article 2(1)(c) of the Agreement).

6. According to Article 2(2)(b) of the Agreement, to attain those objectives, the OIV’s activities are, among others: ‘to draw up and frame recommendations and monitor implementation of such recommendations in liaison with its members, especially in the following areas: (i) conditions for grape production, (ii) oenological practices, (iii) definition and/or description of products, labelling and marketing conditions, (iv) methods for analysing and assessing vine products’.

7. Article 8 of the Agreement reads: ( 5 ) ‘An international intergovernmental organisation may participate in or be a member of the OIV and may help to fund the OIV under conditions determined, on a case by case basis, by the General Assembly on a proposal from the Executive Committee.’

B – EU law

1. Primary law

8. The first sentence of Article 4(3) TEU provides: ‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.’

9. Article 218 TFEU states: ‘(1) Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure. … (9) The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of an agreement and 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. … (11) A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. …’

2. Secondary law

10. Council Regulation No 479/2008, ( 6 ) which entered into force on 1 August 2008, introduced dynamic references to OIV resolutions into secondary law for the first time. ( 7 ) By Council Regulation No 491/2009, ( 8 ) those provisions on the common organisation of the market in wine were incorporated into Council Regulation (EC) No 1234/2007 (Single CMO Regulation). ( 9 )

11. Article 120f of the Single CMO Regulation states: ‘When authorising oenological practices in accordance with the procedure referred to in Article 195(4), the Commission shall: (a) base itself on the oenological practices recommended and published by the International Organisation of Vine and Wine (OIV) as well as on the results of experimental use of as yet unauthorised oenological practices …’

12. Article 120g of the same regulation provides: ‘The methods of analysis for determining the composition of the products of the wine sector and the rules whereby it may be established whether these products have undergone processes contrary to the authorised oenological practices shall be those recommended and published by the OIV. Where there are no methods and rules recommended and published by the OIV, corresponding methods and rules shall be adopted by the Commission in accordance with the procedure referred to in Article 195(4). Pending the adoption of such rules, the methods and rules to be used shall be the ones allowed by the Member State concerned.’

13. Article 158a(2) of the same regulation provides: ‘Save as otherwise provided for in agreements concluded pursuant to Article 300 of the Treaty, products referred to in paragraph 1 of this Article shall be produced in accordance with oenological practices recommended and published by the OIV or authorised by the Community pursuant to this Regulation and its implementing measures.’

14. Article 9(1) of Regulation No 606/2009 ( 10 ) provides: ‘Where they are not laid down by Commission Directive 2008/84/EC, the purity and identification specifications of substances used in the oenological practices referred to in point (e) of the second paragraph of Article 32 of Regulation (EC) No 479/2008 shall be those laid down and published in the International Oenological Codex of the International Organisation of Vine and Wine.’ ( 11 )

15. Article 15(2) of Regulation No 606/2009 states: ‘The Commission shall publish in the C Series of the Official Journal of the European Union the list and description of the analysis methods referred to in the first paragraph of Article 31 of Regulation (EC) No 479/2008 [now Article 120g(1) of the Single CMO Regulation] and described in the Compendium of International Methods of Analysis of Wines and Musts of the International Organisation of Vine and Wine and applicable for verification of the limits and requirements laid down by Community rules for the production of wine products.’ ( 12 )

II – Subject-matter of the dispute, procedure and forms of order sought

16. On 18 June 2012, the Council adopted by qualified majority a decision establishing the position to be adopted on behalf of the European Union with regard to certain resolutions to be adopted in the framework of the International Organisation for Vine and Wine (OIV). ( 13 ) That decision was based on Article 43 in conjunction with Article 218(9) TFEU.

17. With written submissions dated 28 August 2012, the Federal Republic of Germany brought an action for annulment against that decision. Germany takes the view that Article 218(9) TFEU should not have been used as the legal basis for the adoption of that decision. No other legal basis for the adoption of that decision is apparent.

18. The Czech Republic, the Grand Duchy of Luxembourg, Hungary, the Kingdom of the Netherlands, the Republic of Austria and the Slovak Republic were granted leave to intervene in support of the Federal Republic of Germany, and the Commission was granted leave to intervene in support of the Council.

19. The Federal Republic of Germany, supported by those intervening in its support, claims that the Court should: — annul the Council Decision of 18 June 2012; and — order the Council to pay the costs.

20. The Council, supported by the Commission, contends that the Court should: — dismiss the action as unfounded in its entirety; — in the alternative, in the event that the decision is annulled, order that its effects be maintained; and — order the applicant to pay the costs.

21. Following the conclusion of the written procedure, the action was examined at the hearing on 26 November 2013. The United Kingdom of Great Britain and Northern Ireland was also granted leave to intervene in support of the Federal Republic of Germany for this purpose.

III – Arguments of the parties

22. The Federal Republic of Germany raises a single plea in law in support of its action for annulment, to the effect that the Council should not have used Article 218(9) TFEU as the legal basis for adopting the decision at issue. Germany’s argument in this regard is essentially that the contested provision is not applicable in the present case for two reasons. First, in accordance with its wording, scheme, drafting history and function, it is not applicable to agreements concluded by the Member States, but only to international agreements concluded by the European Union itself, neither is it applicable by analogy. The action of the Member States in the bodies of international organisations set up by international agreements of the Member States is, according to Germany, coordinated in accordance with the principle of sincere cooperation laid down in Article 4(3) TEU. ( 14 ) Secondly, Article 218(9) TFEU presupposes the existence of ‘acts having legal effects’, which, in the view of the Federal Republic of Germany, means that the relevant act must be binding under international law. This is not the case with resolutions of the OIV. Germany further points out that the application of the contested provision is not consistent with the technical nature of the OIV and makes for a less efficient representation of the European Union’s interests.

23. The Council, on the other hand, considers Article 218(9) TFEU to be applicable. Its argument is essentially that, in matters falling within the competence of the European Union, that provision allows a position to be adopted even in international organisations in which the Member States alone are members, but the European Union is not. As regards the OIV resolutions affected by the contested decision, the Council takes the view, contrary to that of the Federal Republic of Germany, that these fall within the exclusive competence of the European Union. As regards the ‘legal effects’ of those acts, the Council, as well as referring to certain effects which the resolutions in question produce in international law even though they are only recommendations, takes the view in particular that the incorporation of those resolutions into EU law in accordance with Article 158a(2), Article 120f(a) and Article 120g of the Single CMO Regulation guarantees that they have sufficient legal effects.

24. The Czech Republic concurs in essence with the submissions advanced by the Federal Republic of Germany and supplements these in relation to the interpretation of Article 218(9) TFEU. The Grand Duchy of Luxembourg, too, shares the same view and refers inter alia to the fact that, in the present case, competence is shared and does not lie exclusively with the European Union. This point is also emphasised by the Netherlands, which argues in addition that Article 218(9) TFEU is not a conceivable legal basis for the further reason that it was not clear at the time when the decision was adopted which resolutions would be put forward for agreement. The contested decision, it contends, also fails to state reasons, in particular as regards the question why, despite the fact that neither the European Union nor of all its Member States are members of the OIV, and despite the forty-year-long practice of cooperation between the Member States in this area within the framework of the OIV and its predecessor organisation, there was still a need for it. ( 15 ) Finally, the Netherlands takes the view that the Council’s action jeopardises consensus within the OIV and hence the interests of the European Union. Hungary supplements Germany’s submissions and further points out that the European Parliament was not, to its knowledge, informed of the contested decision and that the procedure laid down in Article 218(10) TFEU was therefore infringed, a matter which the Court must take into account of its own motion. Austria, too, largely endorses Germany’s arguments. The Slovak Republic supports Germany’s submissions and points out inter alia that, even in areas where the European Union has exclusive competence over external affairs, Article 218(9) TFEU is applicable only if its conditions are fulfilled. The United Kingdom states that the case-law concerning legal effects in EU law is not relevant to the question of legal effects in the present case, and that account is to be taken rather of the fact that Article 218 TFEU governs the conclusion of agreements which are binding on the European Union under international law.

25. The Commission shares the Council’s view. It also points to the fundamental importance of the case. There are, it contends, a number of international organisations in which the European Union is not represented even though those organisations are active in areas which, at least in part, fall within the competence of the European Union. In its submission, the case-law shows that, in such cases, the European Union’s external representation in areas within its competence is exercised through the Member States acting in the interests of the European Union. The Commission bases its argument in particular on the competences of the European Union. ( 16 ) The European Union has, according to the Commission, an exclusive external competence in this case. From a legal point of view, therefore, the Member States are not allowed to adopt within an international organisation decisions which are capable of changing EU law. The OIV resolutions at issue, however, do result in such a change. Consequently, those resolutions can be adopted only after the establishment, in accordance with Article 218(9) TFEU, of a common European Union position which, as well as establishing the point of view to be adopted, empowers the Member States to represent the point of view of the European Union in areas in which it has exclusive external competence. This is the only way of ensuring that the interests of those Member States which are not represented in the OIV are also safeguarded. After all, these too are exposed to the effects of OIV resolutions, since such resolutions alter the acquis binding on the Member States of the European Union. As regards the interpretation of Article 218(9) TFEU in its context, the Commission points out that it must be borne in mind that Article 218(11) TFEU is not concerned only with agreements concluded by the European Union itself, either. The Commission goes on to say that acts not having legal effects are to be the subject of informal coordination within the Council in accordance with Article 16 TFEU.

IV – Assessment

26. The dispute between the parties in the present case is concerned in essence ( 17 ) with the applicability of Article 218(9) TFEU as a procedural legal basis for the adoption of the Council Decision of 18 June 2012 establishing the position to be adopted on behalf of the European Union with regard to certain resolutions to be voted in the framework of the OIV.

27. The OIV resolutions concerned are not themselves the subject-matter of the dispute. They were supported by all the parties and interveners and were adopted in the OIV with the votes of the applicant and those intervening in its support.

A – Preliminary considerations

28. Before I can turn to the interpretation of Article 218(9) TFEU, I consider it appropriate to give a detailed account of the background to the dispute and the drafting history essential to an understanding of the contested provision. In this context, I shall also, finally, look at the question of the extent to which CITES ( 18 ) is material to the present dispute.

1. Background to the dispute

29. The OIV is, as I have already explained, an international organisation which, inter alia, adopts recommendations for the wine sector, in relation, for example, to oenological practices. ( 19 ) These are normally adopted by consensus at the annual General Assembly. ( 20 )

30. In 2012, the Federal Republic of Germany and 19 other Member States of the European Union were members of the OIV. ( 21 ) Although the European Union itself is legally permitted to become a member of the organisation, in accordance with Article 8 of the founding Agreement, it has not yet done so and has also not acquired observer or other special status. ( 22 ) The Commission may, however, attend and participate in the works of the OIV expert groups and committees. ( 23 )

31. Until June 2010, the Member States of the European Union, in accordance with Article 4(3) TEU, coordinated their position within the OIV, in conjunction with the Commission, in the Council’s ‘Wine and Alcohol’ working group, without the proposal of a common position by the Commission and in such a way that the Member States and the Commission presented their views and the Presidency attempted to formulate a common point of view.

32. According to Germany’s submission at the hearing, the resolutions of the OIV and its predecessor organisation, both specialised international organisations with a high degree of scientific and technical expertise, have served as a point of reference for European legislative measures since 1971.

33. The first time the European Union introduced dynamic references to OIV resolutions in the common organisation of the market in wine, however, was, as I have said, in Regulation No 479/2008. ( 24 )

34. Shortly afterwards, in September 2008, the Commission recommended to the Council (explicitly on account, inter alia, of the references to OIV recommendations introduced by the regulation just mentioned) that it authorise the Commission to negotiate the European Community’s accession to the OIV. ( 25 ) The Council did not give such authorisation, however, as the majority required for doing so was not obtained. ( 26 )

35. On 16 May 2011, the Commission, with a view to the 9th General Assembly of the OIV, submitted to the Council for the first time a proposal for a Council Decision establishing a common position to be adopted on behalf of the European Union with regard to OIV resolutions. From a procedural point of view, the Commission relied in this regard on Article 218(9) TFEU, that is to say the provision on which the Council relied in the decision at issue in the present case. The Commission’s proposal was not adopted, however. As a result, the Commission formed the view that, in the absence of a Council decision, the Member States could not adopt any position which would affect the European Union’s acquis and cited a non-exhaustive list of 14 draft resolutions the adoption of which would, in the Commission’s view, have an impact on the acquis. None the less, at the OIV General Assembly on 24 June 2011, the Member States represented in the OIV, after prior coordination, adopted many resolutions by consensus, including some which, in the Commission’s view, affected the European Union’s acquis. The Commission responded by bringing proceedings for failure to fulfil obligations against the Member States concerned, including against the Federal Republic of Germany. ( 27 )

36. On 27 April 2012, the Commission submitted to the Council a Proposal for a Decision establishing the position to be adopted on behalf of the European Union with regard to certain resolutions to be voted at the 10th General Assembly of the OIV on 22 June 2012. ( 28 ) Under the pressure of the proceedings for failure to fulfil obligations, ( 29 ) the proposal, based on Article 43 in conjunction with Article 218(9) TFEU and in amended form, was adopted by qualified majority — Germany, the Czech Republic, Austria and Slovakia having voted against and Luxembourg having abstained — by the Special Committee on Agriculture on 11 June 2012 and by the Council (Agriculture and Fisheries) on 18 June 2012. ( 30 ) Germany, Greece, the Netherlands, Romania and the United Kingdom entered in the minutes statements in which they questioned the suitability of Article 218(9) TFEU as a legal basis (the statement by the Netherlands was endorsed by Hungary and Finland). ( 31 )

37. The contested Council Decision of 18 June 2012 established a common European Union position with regard to 27 draft resolutions, set out in the annex to that decision, on the methods of analysis for determining the composition of the products of the wine sector and certain purity and identification specifications of substances used in oenological practices and on oenological practices. These are resolutions which, in the view of the Council, fall within the competence of the European Union and have legal effects. ( 32 ) The decision states that Member States which are members of the OIV are to adopt the common position at the OIV General Assembly. In this regard, the Member States concerned may, following coordination, in particular on the spot, and without a Council decision, agree to changes which do not alter the substance of those resolutions. However, where the common position may be affected by the presentation of new scientific or technical information, the Member States concerned must request that the voting in the General Assembly be postponed until the European Union’s position is established on the basis of the new elements.

38. With one exception, ( 33 ) those resolutions were adopted by the OIV General Assembly on 22 June 2012 in Izmir. At meetings to coordinate the European Union’s position in Izmir, the amendments to the draft resolutions had been previously assessed as not ‘substantive’. The Federal Republic of Germany, too, agreed with the technical content of the resolutions and approved them.

2. Drafting history of the contested provision

39. Examining the drafting history of the provision concerning the establishment of a position to be adopted on behalf of the European Union in a body set up by an agreement appears justified not least by its particular place, namely as paragraph 9 of Article 218 TFEU. After all, it may seem surprising that a provision establishing the position to be adopted on behalf of the European Union in a body set up by an agreement appears in the context of an article governing the procedures for negotiating and concluding agreements between the European Union and third countries or international organisations. In order to understand the provision, the scope of which forms the subject-matter of this dispute, it is necessary, in my view, to look at its origin and the provisions that were its predecessors.

a) The EEC Treaty

40. The EEC Treaty did not contain any provision corresponding to the current Article 218(9) TFEU. However, Article 116 EEC provided: ‘From the end of the transitional period onwards, Member States shall, in respect of all matters of particular interest to the common market, proceed within the framework of international organisations of an economic character only by common action. To this end, the Commission shall submit to the Council, which shall act by a qualified majority, proposals concerning the scope and implementation of such common action …’

41. According to the Court, that provision was conceived as a basis for ‘common action by the Member States in international organisations of which the Community is not part’. ( 34 ) Such a rule was required at that time not least because international organisations usually allowed only States to accede as members, ( 35 ) a fact which was liable to cause problems in the very area in which the European Union’s central competence lay, that is to say commercial policy. In practice, that provision was also applied outside the common commercial policy. ( 36 ) What is more, the Court seemed to insist on applying it more systematically. ( 37 ) The Member States, on the other hand, perceived it as a threat to their competences. ( 38 )

b) The Treaty of Maastricht

42. The Treaty of Maastricht removed the contested provision from the treaty framework without replacing it (in the area of the CFSP, there remained only an obligation to coordinate action in international organisations and to uphold common positions). ( 39 ) It is reasonable to assume that the reason for this was what the Member States considered it to be an excessive encroachment on their sovereignty. ( 40 ) The Treaties did not now contain any provision expressly governing the coordination of the conduct of the Member States and the Community in international organisations.

43. In view of the increasing importance of international organisations in many areas and the Community’s extensive competences, however, the Community had to continue to act in matters relating to international organisations, too, which raised the question of the legal basis for doing so, although, in practice, that question usually became relevant only in cases where the institutions of the European Union and the Member States could not reach agreement.

44. When it came to negotiating decisions binding under international law, the provisions on the conclusion of agreements could be used. The Court had already held in its Opinion 1/78 that, in the case of negotiations undertaken within the framework of international organisations which are intended to lead to an ‘undertaking entered into by entities subject to international law which has binding force’, it is the provisions relating to the negotiation and conclusion of agreements which apply, not Article 116 EEC. ( 41 ) Next, in its Opinion 2/92, the Court examined the Community’s accession to the Third Revised Decision by the Council of the Organisation for Economic Cooperation and Development (OECD) on National Treatment, which also fell within its competence. ( 42 ) The Community was not a member of that organisation. The Court decided that that (legally binding) decision was to be treated as an agreement between the Community and third countries. After all, an agreement within the meaning of Article 228 EC was ‘an undertaking entered into by subjects of international law which has binding force’. ( 43 ) This lent weight to the view that the adoption of decisions within international organisations is equivalent to the conclusion of agreements. ( 44 )

45. Accordingly, it became apparent that in the absence of an explicit legal basis for coordinating action taken within international organisations in relation to the legally binding decisions of those organisations recourse was taken in particular to Article 113 EC (common commercial policy) and Article 228 EC (conclusion of international agreements). ( 45 )

c) The Treaty of Amsterdam

46. That legal position did not, however, fulfil the European Union’s needs in its external relations. Mixed agreements in particular caused problems. ( 46 ) It was thus established in the course of the negotiations on the Treaty of Amsterdam that, in spite of the existing division of competences, the Community must speak with one voice. This was particularly true given the increase in the number of mixed bodies, the decisions of which had legal effects. ( 47 ) To solve that problem, it was proposed that Article 228(2) EC, that is to say the provision concerning the conclusion of agreements, should be amended. ( 48 )

47. The outcome of those negotiations was (in accordance with the renumbering of the former Article 228 EC) the second subparagraph of Article 300(2) EC, which read as follows: ‘By way of derogation from the rules laid down in paragraph 3, the same procedures shall apply for a decision to suspend the application of an agreement, and for the purpose of establishing the positions to be adopted on behalf of the Community in a body set up by an agreement under Article 310, when that body is called upon to adopt decisions having legal effects, with the exception of decisions supplementing or amending the institutional framework of the agreement.’

48. The scheme of that provision in particular is instructive: Article 300(1) to (5) EC governed the procedure for concluding international agreements. In this context, a distinction is drawn between the negotiation phase of an agreement (Article 300(1) EC), on the one hand, and its signature, which may be accompanied by a decision on provisional application, and conclusion (first subparagraph of Article 300(2)), on the other hand. The participation of the European Parliament in the procedure for the conclusion of agreements is covered by Article 300(3), following the provisions just described.

49. The second subparagraph of Article 300(2) EC is located in the middle of those provisions on the conclusion of agreements and provides that, ‘[b]y way of derogation from the rules laid down in paragraph 3, the same procedures’ are to apply to the suspension of an agreement and to the establishment of positions in bodies set up under Article 310 EC. In other words, the procedure governing the conclusion of agreements (that is to say the first subparagraph of Article 300(2) EC) is also to apply — subject to a modification in respect of participation by the Parliament — to the adoption of decisions in bodies set up under Article 310 EC, that is to say by association agreements. The involvement of the Parliament provided for in Article 300(3) EC is simply replaced here by the requirement in the third subparagraph of Article 300(2) EC that the Parliament be immediately and fully informed. The fact that the scope of the contested provision is confined to decisions of councils of association may be explained precisely by the particular status which decisions adopted by councils of association enjoy in the European Union legal system, that is to say as an integral part of that system. ( 49 )

50. The purpose of the contested provision was therefore not only to clarify the application of the provisions on the conclusion of agreements but also to simplify the procedure ( 50 ) by means of a lex specialis, by comparison with the procedure normally applicable, for the establishment of positions to be adopted in association councils, that is to say in bodies set up by agreements to which the European Union is by definition (Article 310 EC) a contracting party.

d) The Treaty of Nice

51. The Treaty of Nice retained the wording of the contested provision but removed the limitation of its applicability to bodies set up by agreements under Article 310 EC. The wording of that part of the second subparagraph of Article 300(2) EC which is relevant here was now framed more generally ‘to be adopted on behalf of the Community in a body set up by an agreement’. The provision thus lost the limitation of its application to a specific or particular form of agreement by which a body is set up. ( 51 )

e) The Treaty of Lisbon

52. The Treaty of Lisbon set out the rules on the conclusion of agreements — and also on the establishment of a common position — in Article 218 TFEU. This was accompanied by a number of editorial changes. Thus, the reference to ‘the same procedures’ and the introductory reference to a derogation from paragraph 3 were removed and replaced by a description of the procedure. Those amendments did not, however, come with any other fundamental changes of substance. In particular, the editorial changes did not alter the status of the provision at issue as a lex specialis, as is clear not least from the fact that it continued to form part of the rules on the procedure for the conclusion of agreements (Article 218 TFEU).

2. CITES

53. Finally, it must be examined to what extent CITES, cited repeatedly by the parties, is relevant to the present proceedings and, in particular, whether, by the judgment in that case, the Court has already ruled, at least implicitly, on the questions to be adjudicated upon here.

54. CITES, too, concerned the establishment of a common position by the European Union Member States within the framework of an international agreement (namely at the 14th meeting of the Conference of the Parties to CITES) to which the European Union itself had not acceded. The Council had — as in this case, too — adopted a decision establishing the common position to be adopted at that conference. Although the Council itself submitted that it had adopted that decision by way of the procedure provided for in the second subparagraph of Article 300(2) EC, the predecessor provision to the current Article 218(9) TFEU, that decision did not actually mention any legal basis. The choice of the relevant legal basis had previously been the subject of some controversy within the Council. The Commission brought an action for annulment on the ground that, in failing to indicate the legal basis on which it was founded, the decision breached the duty to state reasons. ( 52 )

55. The case is relevant to the present dispute for two reasons. First, the Court upheld the Commission’s contention that a decision which establishes the European Union’s position in an area within its field of competence, which is to be expressed by the Member States acting jointly in the interest of the European Union at a Conference of the Parties to an international agreement not ratified by the European Union, must state the legal basis on which it is founded. ( 53 )

56. From that point of view, the present case illustrates the consequence of CITES. The Council now fulfilled its obligation to state a legal basis. The applicant and those intervening in its support, however, do not consider the legal basis to be the correct one.

57. The second reason why CITES is of particular significance here is that the legal basis the relevance of which is disputed in the present case was also mentioned in CITES. The Council and the Commission take the view that the Court at least implicitly confirmed in that case that the contested legal basis is applicable in situations such as the one here at issue.

58. In my view, that judgment cannot support such an inference. Although the Court held that the ‘Council adopted a decision in accordance with the second subparagraph of Article 300(2) EC’, ( 54 ) that was merely a description of the facts. ( 55 ) Nowhere does the Court find that the aforementioned provision is indeed a suitable legal basis for establishing positions in international bodies of which the European Union is not a member.

59. The Opinion of Advocate General Kokott does not contain such a finding either. Rather, the Advocate General argues that, if not stated, the legal basis for the decision cannot be clearly inferred from the legislative act, not least because it is unclear whether the second subparagraph of Article 300(2) EC is applicable in the case of international agreements to which the Community is not a party. In her contention, while an interpretation with a view to the context of the provision militates against its application, a teleological interpretation militates in favour of it. ( 56 ) The Advocate General did not need to take a view on the applicability of that provision and, moreover, did not do so.

60. In CITES, the Court thus did not give a ruling, even implicitly, on any of the questions raised here. The issue remained unresolved.

B – Analysis

1. Interpretation of Article 218(9) TFEU

61. In support of its position, Germany essentially raises two arguments: that the provision to be interpreted here is based on the premise that the European Union is itself a member of the international organisation in question, which is not so in the present case, and that the establishment of the positions to be adopted on behalf of the European Union depends, in accordance with that provision, on a further condition which is not fulfilled, namely that the international organisation must adopt acts ‘having legal effects’, in other words acts which are binding in international law, which is also not the case here. It must therefore be examined in this dispute whether Article 218(9) TFEU does indeed require, as part of its prescriptive content, first that the European Union must be a member of the international organisation in question, and secondly that the acts which the relevant body is called upon to adopt, or at least some of them, must be binding in international law.

a) Membership

62. The first question to be addressed, therefore, is whether Article 218(9) TFEU can be applied to the establishment of the positions to be adopted on behalf of the European Union in a body set up by an agreement even where the European Union itself is not a party to the agreement, but only certain Member States are.

63. Article 218(9) TFEU reads, in full: ‘The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of an agreement and 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.’

64. Two at first sight markedly different rules are thus combined in one sentence. First, the provision concerns the adoption of a decision ‘suspending application of an agreement’. The overwhelming consensus is that that stipulation was made in consequence of the fact that the trade and cooperation agreements concluded by the European Union since the 1990s increasingly contain human rights clauses which, if infringed, are to result in the suspension or termination of the agreement. ( 57 ) The provision provided clarity on the procedure applicable in this regard and thus enabled the European Union to act expeditiously. ( 58 )

65. That provision afterwards contains a legal basis for the establishment of positions in international organisations. This is the subject-matter of the present proceedings.

i) Wording

66. The starting point for a grammatical interpretation must be the finding that the contested provision refers first of all to ‘agreements’ ( 59 ) generically, without expressly distinguishing in this regard between cases in which the European Union is a party to such agreements and cases in which this not the case. The lack of such a distinction, however, does not immediately support the conclusion, as the Council effectively proposes, that, where the law does not draw a distinction, the body applying that law must not draw a distinction either. ( 60 )

67. After all, it must be taken into account first of all that Article 218(9) TFEU uses the same word ‘agreement’ several times in a single breath and, in particular, in relation to two different situations. It provides first of all for ‘suspending application of an agreement’ and then for the establishment of positions in a body set up by an agreement. It must be assumed in these circumstances, however, that the same word is also intended to have the same meaning. Clearly, the first reference can only be to European Union agreements. Consequently, the word ‘agreement’ must also have that meaning when it is used the second time, which is to say that, here too, it refers to European Union agreements. ( 61 )

68. Less convincing, to my mind, is the argument which Germany bases on the expression ‘on the Union’s behalf’. Germany argues that it follows from the fact that the positions to be established are ‘to be adopted on the Union’s behalf in a body set up by an agreement’ ( 62 ) that the European Union must be a member of the organisation. ( 63 ) For the reasons given below, however, I do not believe that the use of that expression automatically implies that the European Union itself must be a party to the agreement.

69. Where the European Union itself is a party to the agreement, that is to say where it is a member of the international organisation, it does not need a Member State to speak on its behalf, but only a representative within the organisation in the same sense as that in which the aforementioned expression is used in another paragraph of the article. ( 64 ) In the context of the case at issue, the aforementioned expression can therefore be meant only in a metaphorical or figurative sense, that is to say to the effect that the Member States put forward their position in the interests of the Union — but without, in so doing, expressly acting on behalf of a third party.

70. The Council rightly points out in this regard that even the European Union’s exclusive external competences must often be exercised via the Member States acting jointly in the interests of the European Union. This occurs, for example, in cases where the European Union itself is excluded from membership of an international organisation for reasons of international law. ( 65 ) In such cases, the Member States represent the European Union’s position and, as the Commission has noted, have an obligation to ensure that that position is effectively represented.

71. In the light of all the foregoing, I therefore take the view that the word ‘agreement’ as it is used in Article 218(9) TFEU refers to agreements to which the European Union is a party.

ii) Context

72. As regards the context of the contested provision, conclusions can be drawn both from the title in which that provision is situated and from the article itself.

73. The provision to be interpreted appears in Part Five (External Action by the Union), Title V, concerning ‘International Agreements’. As the introductory provision under that title, Article 216 TFEU, concerning the competence to conclude agreements, shows, that title deals with agreements concluded by the Union. This is confirmed by the content of the other provisions of that title.

74. Article 218 itself also supports such a contextual interpretation. Article 218(1) TFEU provides that — without prejudice to Article 207 TFEU — agreements ‘between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure’. The adoption of a decision establishing a position in a body set up by an agreement which is called upon to adopt acts having legal effects is, as the historical considerations have shown, a special form of concluding an agreement under the Treaty. Article 218(1) TFEU clearly limits the applicability of paragraph 9 of that provision to agreements ‘between the European Union and third countries or international organisations’.

75. That interpretation is also confirmed by the fact that the contested provision is expressly inapplicable to acts ‘supplementing or amending the institutional framework of the agreement’. In my view, that limitation of the scope of the provision clearly indicates its status as a lex specialis for the establishment of positions in international organisations which is intended to create a simplified procedure by comparison with the more elaborate procedure for the conclusion of agreements. That simplified procedure, that is to say one in which the Parliament’s participation is limited, is not intended to be applicable in the case of particularly important decisions. However, a lex specialis simplifying the procedure for the conclusion of agreements cannot be applied to agreements to which the European Union’s procedure for concluding agreements is not applicable anyway. As the procedure for the conclusion of agreements applies to European Union agreements, the procedure laid down in Article 218(9) TFEU can also apply only to European Union agreements.

76. Against that argument, the Council and the Commission submit that Article 218(11) TFEU is also applicable to agreements concluded by the Member States without the European Union’s participation, in other words that not all provisions of Article 218 TFEU apply only to European Union agreements.

77. In accordance with the Court’s settled case-law, it is true that the possibility of obtaining an opinion on the compatibility of a planned agreement with the Treaties, provided for in Article 218(11) TFEU, is in certain cases also available in connection with agreements which are to be concluded not by the European Union itself but by the Member States. ( 66 ) In that context, however, the Court was looking in particular at the question of how the competences of the European Union and the Member States are determined in EU law; ( 67 ) it was not carrying out a general examination of agreements concluded by the Member States. In my view, that case-law relates very specifically to the procedure for obtaining opinions and cannot be relied on as an argument in the interpretation of the other provisions of Article 218 TFEU, in particular the paragraph requiring interpretation here.

78. A contextual interpretation therefore militates in favour of the applicant’s position. ( 68 )

iii) Teleology

79. In the context of a teleological interpretation, it is important first of all to determine the purpose of the provision. This can be ascertained, on the one hand, from an interpretation of the provision’s context and framework, and, on the other hand, from the purpose pursued by the legislature in adopting the provision. Finally, it can be derived from the objectives pursued by the Treaty as a whole. ( 69 )

80. As far as the provision at issue here is concerned, its purpose is demonstrated first of all by its drafting history. The use of the procedure for concluding agreements for the purposes of establishing positions in international organisations with respect to decisions binding on the European Union under international law, which the Treaty of Maastricht had made necessary, became impractical. The Treaty of Amsterdam created a simplified procedure which at first was applicable only to association councils but the scope of which was later extended. In this regard, Article 218(9) TFEU was intended to create a lex specialis, as compared with the general procedure for concluding agreements, for the establishment of positions within the European Union in relation to the adoption of decisions in international bodies which have legal effects. The contested provision is therefore intended, in the words used by the Commission in its statement in intervention, to make it possible, ‘in the context of international agreements, to adopt acts capable of being established at EU level by means of a simplified and therefore rapid procedure, without upsetting the institutional balance’.

81. The context of the contested provision shows that, despite the extension of its scope in the Treaty of Nice — which, as is clear not least from the minimal changes made to its wording, was not intended to entail an extension also to agreements concluded by the Member States — and despite the changes made by the Treaty of Lisbon, that provision is still intended to serve its original purpose. After all, it continues to form an integral part of the article dealing with the negotiation and conclusion of agreements by the European Union and is therefore still intended to constitute a lex specialis in the context of the procedure for the conclusion of agreements.

82. The procedure for concluding agreements is, however, a procedure for the conclusion of agreements between the European Union and third countries or international organisations (Article 218(1) TFEU). If the procedure laid down in Article 218(9) TFEU constitutes a lex specialis in that context, the scope of the latter provision too must be limited to agreements to which the European Union is a party.

iv) Interim conclusion

83. It follows from the foregoing that Article 218(9) TFEU is based on the assumption that the European Union must be a party to the agreement setting up the body referred to in that provision.

b) Acts having legal effects

84. The question concerning the meaning of ‘having legal effects’, the second question of law raised in this case, arises against the background of two special circumstances. On the one hand, the OIV resolutions with which the decision at issue was concerned contain recommendations, which are not binding under traditional international law (a fact not in dispute between the parties), ( 70 ) irrespective of whether OIV resolutions are capable of binding the European Union at all in its capacity as a non-member. ( 71 )

85. On the other hand (a further fact not in dispute between the parties), European Union secondary legislation has contained dynamic references to those very OIV resolutions since 2008. Thus, the Commission bases its approval of oenological practices on the practices recommended by the OIV (Article 120f of the Single CMO Regulation). Moreover, the methods of analysis used to determine the composition of the products of the wine sector and the rules whereby it may be established whether these products have undergone processes contrary to the authorised oenological practices, are the methods and rules recommended and published by the OIV (Article 120g of the Single CMO Regulation), which are also published by the Commission, in accordance with Article 15(2) of Regulation No 606/2009. Finally, oenological practices recommended by the OIV are also directly relevant to the importation of wine (Article 158a(2) of the Single CMO Regulation). In the latter two cases at least, the OIV resolutions have been incorporated into secondary law by dynamic references to them in EU legislation. In the applicant’s view, the resolutions at issue also concerned methods within the meaning of Articles 120f, 120g and 158a(2) of the Single CMO Regulation.

86. The Federal Republic of Germany and those intervening in its support take the view that only decisions of an international organisation which are binding in international law may be regarded as acts ‘having legal effects’.

87. The Council and the Commission, on the other hand, consider that decisions of an international organisation which are incorporated into EU law by dynamic reference also have legal effects within the meaning of the contested provision. They further argue that even minor effects which a non-binding decision produces in international law are sufficient for that decision to be recognised as having legal effects.

88. I shall now analyse the wording, context and teleology of the contested provision in order to determine the meaning of the concept of having legal effects.

i) Wording

89. At first sight, the wording of the contested provision would indicate that the concept of ‘legal effects’ employed in the provision is, as the Commission has submitted, different from that of having binding effect in international law. This is also true of other language versions, ( 72 ) where the expressions used appear to be more concerned with the legal effects of the act and do not make clear in this regard what form those effects are to take.

90. A more precise analysis shows, however, that the wording of that provision militates against the Council’s argument based on dynamic references in EU law. The contested provision refers to acts having legal effects which a body set up by an agreement ‘is called upon to adopt’. ( 73 ) The fact that the contested provision is worded in this way makes clear the close relationship between the action of the body and the outcome of that action. The body would thus be called upon to adopt acts which have legal effects ab origine. The contested provision does not therefore concern cases where acts without legal effects acquire them for all intents and purposes only ex post facto, through the internal law of a contracting party (in this case, the European Union), not even where this occurs automatically by means of a dynamic reference, but rather cases where acts exhibit that quality from the outset (and, therefore, in the legal order of the body itself, that is to say, international law). The reason for the need to adopt a common position is almost certainly to be found in that very quality of immediate legal effects. The provision is therefore concerned with positions adopted by a body which are legally binding on the European Union.

ii) Context

91. A contextual interpretation is less instructive. On the one hand, the fact that Article 216(2) TFEU uses the term ‘binding’ in connection with international agreements ( 74 ) might indicate that a different meaning must be attributed to the phrase ‘having legal effects’. On the other hand, however, the fact that the provision governing actions for annulment (Article 263 TFEU) contains, in the expression ‘intended to produce legal effects’, a concept which is similar to that of ‘having legal effects’, ( 75 ) and which is linked to the settled case-law of the Court to the effect that an action for annulment is admissible only against measures whose ‘legal effects’ are ‘binding’, ( 76 ) might, on the basis of the foregoing, support an interpretation of the concept of ‘having legal effects’ as meaning that those effects must be binding (in this case, in international law). Finally, the fact that the Court has in other contexts ( 77 ) attached some relevance to non-binding acts in international law does not permit conclusions to be drawn in relation to the question of interpretation to be adjudicated upon here.

iii) Teleology

92. As I have already explained, the purpose of the contested provision is to create a lex specialis, as compared with the general procedure for concluding agreements, for the establishment of positions within the European Union in relation to the adoption of decisions in international bodies which have legal effects. In my view, that purpose supports an interpretation of the expression ‘having legal effects’ as meaning that those effects must be binding in international law, for two reasons.

93. First, that distinction is clearly intended to separate acts which are relevant from those which are not relevant from the point of view of their effects. An act which has legal effects must, on account of those effects, be the subject of a procedure for establishing a common position which is different from that applicable to acts which do not have legal effects. The distinction is thus linked to a quality which is inherent in the acts themselves from the outset, that is to say the fact that they are binding on the European Union in international law. Although acts which are not binding in international law may produce legal effects in EU law from the time of their adoption, by virtue of a dynamic reference to them in EU legislation, these effects are based on the free will of the European Union. Such legal effects do not constitute a quality of the act itself.

94. Secondly, the drafting history of the contested provision shows that, during the period of application of the Maastricht Treaty, decisions binding in international law had to be adopted via the procedure for the conclusion of agreements. In this connection, the concept of an international agreement was, as indicated above, broadly defined as being ‘any undertaking entered into by entities subject to international law which has binding force’. ( 78 ) To this extent, it seems logical that the lex specialis which the Treaty of Amsterdam created in relation to that procedure should also be aimed at decisions which are binding in international law.

95. Such an interpretation also affords the necessary measure of legal certainty when it comes to deciding whether Article 218(9) TFEU should be applied in the interests of the bodies involved in the procedure. This would not be afforded by the criteria proposed by the defendant.

96. The Council’s claim that the legal effects conferred by a dynamic reference in EU law should be sufficient for the purposes of the application of Article 218(9) TFEU would have the effect of placing the application of that procedure at the discretion of the legislature. The introduction of a dynamic reference would render the contested provision applicable. Recourse, instead, to the simple incorporation of the relevant international acts into EU legislation, on the other hand, would preclude the application of that provision. Such a criterion seems to me to be too arbitrary for the purpose of deciding on the application of a provision as important as one which may serve as a procedural legal basis. ( 79 )

97. The minor effects which a non-binding decision produces in international law are even less suitable as a criterion for the application of a procedural legal basis. It is tempting to point out in this respect that, in recent years, the doctrine on sources of international law has increasingly sought to also cover acts which, although not legally binding, none the less exhibit a degree of relevance through references made to them, the reliance placed on them for the purposes of interpreting binding law or their practical effectiveness, all of this under the heading of ‘soft law’ . ( 80 )

98. In order to illustrate that degree of relevance in the present case, that is to say on the part of the OIV resolutions at issue, the Council has rightly pointed out that, in their capacity as international technical standards, those resolutions fall within the scope of Article 2.4 and 2.5 of the World Trade Organisation’s TBT Agreement. ( 81 ) A State that adopts technical provisions which conform to those standards enjoys advantages in the event that those technical provisions are contested in the World Trade Organisation as a barrier to trade: there is a rebuttable presumption that internal technical provisions which comply with the relevant international standards do not create an unnecessary barrier to international trade. ( 82 ) In my view, however, ‘soft law’ is neither a legally relevant category of acts nor one that can be clearly circumscribed. It is therefore unsuitable as a criterion for the application of a procedural legal basis.

iv) Interim conclusion

99. The phrase ‘having legal effects’ in Article 218(9) TFEU serves to indicate that the acts in question must have binding force in international law.

c) Outcome of the interpretation of Article 218(9) TFEU

100. In essence, this shows that, in the light of its wording, its scheme and its purpose, Article 218(9) TFEU is not intended to be applied to situations such as that in the present case. That outcome is not, however, sufficient to conclude the analysis of the present case.

2. Application by analogy

101. The Council and the Commission have submitted arguments which might justify the application of the contested provision by analogy, even though the two conditions governing the application of that provision, as examined here, are not fulfilled. In their view, Article 218(9) TFEU must be applied where the activity of a body set up by an agreement under international law falls within the competence of the European Union, and in particular where that competence lies exclusively with the European Union. ( 83 ) This, they argue, is the only way of ensuring that the European Union and its Member States are able to act in the areas in which they are competent.

102. In this case, therefore, the need to apply the contested provision by analogy might arise from the fact that, where an activity (not having legal effects) is carried on by an international organisation in which the European Union is not a participant in an area falling within the competence of the European Union, the Treaties have inadvertently omitted to make available any EU-internal procedure which the European Union can apply in order to ensure that the Union’s external competences are efficiently exercised by the Member States, and the interests at stake are comparable to those at issue in cases where Article 218(9) TFEU is normally applied.

103. Application by analogy is one of the instruments of EU law. ( 84 ) It presupposes not only the existence of an inadvertent legislative lacuna ( 85 ) but also that the interests at stake in the situation under examination are comparable to those at issue in the situations for which the legislation in question was drafted. In this regard, the rigour with which those conditions are examined depends on the subject-matter in which the application by analogy is being considered. Thus, in criminal law, analogy is excluded outright. ( 86 ) In the context of the European Union’s material competences, analogy is decidedly problematic on account of the principle of conferred powers. ( 87 ) In other areas, however, such as the secondary legislation governing movement and residence, for example, disposal of a matter by analogy may be appropriate. ( 88 )

104. As far as the present case is concerned, it must be pointed out first of all that, in the subject area of procedural legal bases to which this case must be assigned, although analogy is not excluded, the conditions applicable to it must be examined carefully given the need to preserve the competences of the EU institutions concerned. Furthermore, the fact that a rule has been created as a lex specialis for a specific situation militates against its application by analogy. ( 89 ) In principle, therefore, recourse to an analogy requires a detailed evaluation of the reasons capable of justifying its application.

a) Distinction between two scenarios

105. The Treaties are based on the premise that EU competences are exercised by EU institutions. ( 90 ) Where an international organisation is active in an area in which the European Union is competent, the logic of that system seems to require first that the European Union itself should act as a member of that organisation. In many cases, however, the European Union is not a member of the organisation.

106. It is my view that, in order to dispose of the present case, a distinction must be drawn in this regard between two scenarios. Thus, first of all, there are a number of cases where, for reasons of international law, the European Union cannot become a member of an international organisation. Such a situation arises where the international organisation does not permit membership of supranational organisations or where, for whatever reason, the European Union’s application for membership in the organisation has been refused. The case-law of the Court states that, in such a situation, the European Union’s external competence is to be exercised through the medium of the Member States acting jointly in the European Union’s interest. ( 91 )

107. The position is different where the European Union is permitted to become a member of the international organisation concerned and an application for membership of that organisation has not so far been refused. In such a situation, the European Union’s accession is the most natural way for it to exercise its competences effectively.

108. The present case must be regarded as falling within the second scenario. In accordance with Article 8 of the Agreement of 3 April 2001, the OIV expressly permits accession by ‘international intergovernmental organisation[s]’ and, therefore, by the European Union. Accordingly, in 2008, the Commission, acting on the basis of the dynamic references to OIV resolutions in EU law which had been introduced shortly beforehand, ( 92 ) made a recommendation that it be given authorisation to negotiate accession. For reasons internal to the European Union (namely, the absence of the necessary majority in the Council), however, that authorisation was not given.

109. In those circumstances, I shall confine the following considerations on the application of Article 218(9) TFEU by way of analogy to the second scenario. I shall therefore leave aside the question of the extent to which the analogous application of the contested provision would be justifiable in the case of agreements the subject-matter of which falls within the competence of the European Union but to which the European Union ‘cannot yet’ become a member because of the content of the international agreement in question. ( 93 )

b) Application by analogy in the relevant scenario

110. In my view, application of the contested provision by analogy must be rejected in this context.

111. First, the interpretation of Article 218(9) TFEU proposed by the defendant would, rather, effectively signify a return to Article 116 EEC. That provision, however, was deliberately repealed and was not reinstated — it also related to an entirely different context. The clear will of the authors of the Treaties would be ignored.

112. Secondly, such an application by analogy would disregard two fundamental developments of the law. First, the activities of an ever-growing number of international organisations fall within the competence of the European Union. Secondly, and most importantly, the barriers in international law that preclude the European Union’s membership of an international organisation have been and are being removed to an increasing extent. In circumstances where the European Union exercises exclusive competence, the norm must be the European Union’s accession to the international organisation in question. In accordance with the Court’s case-law, where the European Union exercises exclusive competence, the EU institutions and the Member States are under a duty to use all the political and legal means at their disposal in order to ensure the European Union’s participation in agreements. ( 94 ) If, however, one were to share the Council’s view, the European Union would in future be free to choose whether to accede to an international organisation or, without acceding to it, to establish positions in the same way as it would following accession. If one were to share the Council’s perception of the effects of dynamic references, the European Union would be able, by introducing such a reference, to trigger the application of Article 218(9) TFEU itself, thus rendering accession to the international organisation to some extent unnecessary.

113. Finally, the application by analogy of Article 218(9) TFEU in the present case would circumvent the European Parliament’s competences. Article 218 TFEU provides in principle for the Parliament’s participation in the conclusion of an agreement. This applies both in the case of the European Union’s accession to an international organisation and, as stated above, in the case of the adoption of a decision in international organisations which has legal effects. In the context of Article 218(9) TFEU, however, the Parliament’s role is reduced to that of being immediately and fully informed. The extension of Article 218(9) TFEU also to agreements concluded by the Member States considerably restricts the Parliament’s participation rights. The choice of the correct legal basis, however, is specifically intended, inter alia, to preserve the prerogatives of the Community institutions concerned. ( 95 )

114. A detailed evaluation of the reasons for and against the application of Article 218(9) TFEU by analogy does not therefore support such application.

C – Conclusion

115. Article 218(9) TFEU does not therefore provide a suitable legal basis for the decision in this case. In the light of my foregoing observations, moreover, the illegality in question here is not a purely formal defect. ( 96 ) Consequently, the contested decision must be annulled.

D – Further complaints

116. In the light of my position, I shall not be expressing a view on the additional complaints raised by the interveners (or, for that matter, on the admissibility of those complaints), that is to say the insufficient statement of reasons for the contested decision, as alleged by the Netherlands, and the non-participation of the Parliament, as alleged by Hungary.

E – Limitation of the effects of the annulment

117. In the event that the decision is annulled, the Council has requested that its effects be maintained. The applicant has opposed that request.

118. Under Article 264 TFEU, the Court may, if it considers this necessary, state which of the effects of the act which it has declared void are to be considered as definitive.

119. The contested decision established a European Union position which was to be adopted and was adopted by the European Union Member States which are parties to the OIV. To this extent, the situation appears to be the same as that in which the Court maintained the effects of the contested decision in CITES. ( 97 )

120. However, the present case differs from CITES not least inasmuch as, in that case, the applicant did not oppose the request that the effects of the contested decision be maintained. In this case, the applicant has opposed that request on the ground of possible consequences in connection with the proceedings for failure to fulfil obligations.

121. As the Slovak Government rightly submits, it is not apparent in the present case whose legal certainty would be jeopardised by annulment. The OIV resolutions at issue were adopted and their effects are not adversely affected by the annulment of the contested decision. In my view, therefore, the alternative plea should not be upheld.

F – Costs

122. 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. In accordance with the solution I have proposed, the applicant is the successful party and has applied for costs. The Council must therefore be ordered to pay the costs. Under Article 140(1) of the Rules of Procedure, the interveners must bear their own costs.

V – Conclusion

123. In the light of the foregoing submissions, I propose that the Court should: (1) annul the Council Decision establishing the position to be adopted on behalf of the European Union with regard to certain resolutions of the OIV of 18 June 2012; (2) order the Council of the European Union to pay the costs; (3) order the Czech Republic, the Grand Duchy of Luxembourg, Hungary, the Kingdom of the Netherlands, the Republic of Austria, the Slovak Republic, the United Kingdom of Great Britain and Northern Ireland and the Commission to bear their own costs.

( 1 ) Original language: German.

( 2 ) Hoffmeister, F., Outsider or Frontrunner? Recent Developments under International and European Law on the Status of the European Union in International Organizations and Treaty Bodies, CMLR 44 (2007), 41, 68.

( 3 ) Agreement creating an International Wine Office in Paris, 29 November 1924. The text of the agreement is available on the OIV website: http://www.oiv.int/oiv/info/enhistorique?lang=en. The organisation has gone by the name of ‘International Organisation of Vine and Wine’ since 4 September 1958.

( 4 ) Text available on the OIV website: http://www.oiv.int/oiv/info/entextesfondamentaux. In accordance with Article 19 of the Agreement, the French, Spanish and English texts thereof are equally authentic.

( 5 ) It would appear that the predecessor organisation envisaged only States as members, inasmuch as Article 6 of the Arrangement portant creation, à Paris, d’un Office international du Vin (Arrangement creating an International Wine Office in Paris) provided: ‘Any country which has not signed this Arrangement will be able to accede to it …’.

( 6 ) Council Regulation (EC) No 479/2008 of 29 April 2008 on the common organisation of the market in wine, amending Regulations (EC) No 1493/1999, (EC) No 1782/2003, (EC) No 1290/2005, (EC) No 3/2008 and repealing Regulations (EEC) No 2392/86 and (EC) No 1493/1999 (OJ 2008 L 148, p. 1).

( 7 ) According to Germany’s submission at the hearing, the resolutions adopted by the OIV and its predecessor organisation have been used as points of reference by the Community since 1971. The OIV was mentioned in relevant legislative acts even before 2008, for example in recital 4 in the preamble to Council Regulation (EC) No 2165/2005 of 20 December 2005 amending Regulation No 1493/1999 (OJ 2005 L 345, p. 1), and recital 1 in the preamble to Commission Regulation (EC) No 1507/2006 of 11 October 2006 amending Regulations (EC) No 1622/2000, (EC) No 884/2001 and (EC) No 753/2002 (OJ 2006 L 280, p. 9). See also recital 2 in the preamble to Council Regulation (EC) No 519/2007 of 7 May 2007 amending Regulation No (EC) 572/2003 (OJ 2007 L 123, p. 1).

( 8 ) Council Regulation (EC) No 491/2009 of 25 May 2009 amending Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2009 L 154, p. 1).

( 9 ) Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (the Single CMO Regulation) (OJ 2007 L 299, p. 1), as amended on several occasions. See recital 3 in the preamble to Regulation No 491/2009.

( 10 ) Commission Regulation (EC) No 606/2009 of 10 July 2009 laying down certain detailed rules for implementing Council Regulation (EC) No 479/2008 as regards the categories of grapevine products, oenological practices and the applicable restrictions (OJ 2009 L 193, p. 1).

( 11 ) Here without the footnotes contained in the text.

( 12 ) Emphasis in original.

( 13 ) Council document 11436/12.

( 14 ) At the hearing, Germany raised two distinct questions here: whether the European Union must be a member of the OIV in order to apply the provision at issue; and whether resolutions in the OIV may be adopted ‘on the Union’s behalf’. In my view, the second question is simply an element of the first.

( 15 ) The applicant expressly endorses this complaint.

( 16 ) The Council endorsed that argument.

( 17 ) The parties intervening in support of Germany raised additional complaints, some of which Germany endorsed.

( 18 ) Commission v Council (‘CITES’, C‑370/07, EU:C:2009:590). CITES is the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington, 3 March 1973, UNTS 993, p. 243.

( 19 ) The objectives and activities of the OIV are set out in Articles 1 and 2 of the Agreement.

( 20 ) See Article 5(1) and (3) of the Agreement. Exceptions to the consensus procedure are possible but may be averted on grounds of a risk to fundamental national interests. The procedure for preparing resolutions is described in Chapter 5 of the OIV’s Rules of Procedure.

( 21 ) Today, 21 of the 45 Member States of the OIV are Member States of the European Union: Austria, Belgium, Bulgaria, Croatia, the Czech Republic, Cyprus, Finland, France, Germany, Greece, Hungary, Italy, Luxembourg, Malta, the Netherlands, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.

( 22 ) Articles 3 and 4 of the OIV’s Rules of Procedure.

( 23 ) With the agreement of the Executive Committee, in accordance with Article 5(2) and (3) of the OIV’s Rules of Procedure. Definitions of the two terms are contained in Annex 2 to the OIV’s Rules of Procedure.

( 24 ) Articles 30a, 31 and 82(2) of the Regulation, now Articles 120f(a), 120g and 158a(2) of the Single CMO Regulation. References to the OIV appear in earlier legislative measures (see footnote 7).

( 25 ) COM(2008)577 final.

( 26 ) The Commission cited two reasons for this at the hearing: on the one hand, the fact that, because of the voting weight associated with it, European Union membership might upset the balance within the OIV; and, on the other hand, the fact that the Member States wanted to maintain an independent position.

( 27 ) Proceedings No. 2011/2121. According to the information provided by the Commission at the hearing, those proceedings were suspended pending the judgment in the present case.

( 28 ) COM(2012) 192 final. Between the 9th and 10th General Assembly of the OIV, the organisation had held two extraordinary General Assemblies. For the first of those assemblies, a draft decision based on Article 218(9) TFEU had been submitted but not adopted. However, the resolutions adopted by the OIV were not classified as relevant to the European Union’s acquis. For the second General Assembly, no draft decision could be submitted and no coordination could take place within the European Union because of lack of time.

( 29 ) Germany and the Czech Republic maintain that the Commission promised not to press ahead with the proceedings for failure to fulfil obligations if the Member States approved the decision. At the hearing, the Commission admitted that the majority was achieved under the pressure of the proceedings for failure to fulfil obligations.

( 30 ) Council document 11436/12.

( 31 ) Romania’s statement does not mention the contested provision but makes clear that Romania’s vote must not be interpreted as a precedent for similar cases and that the Commission and the Member States must clarify the division of competences.

( 32 ) Other draft resolutions, on the other hand, were the subject of informal coordination in the Council’s preparatory bodies, in accordance with the obligation of sincere cooperation (Article 4(3) TEU).

( 33 ) According to the Council’s submissions, Resolution OENO-SPECIF 10-452 was not put to a vote following a decision by the competent technical committee of the General Assembly.

( 34 ) Opinion 1/78, EU:C:1979:224, point 50. My emphasis.

( 35 ) So far as concerns international law, see Kuijper, P., and others (ed.), The Law of EU External Relations, Oxford, OUP, 2013, p. 201. On this subject generally, see Eeckhout, P., EU External Relations Law, Oxford, OUP, 2nd ed. 2012, pp. 222 to 231.

( 36 ) Commission v Council (‘ERTA’), 22/70, EU:C:1971:32, paragraphs 76 and 77.

( 37 ) Kramer and Others, 3/76, 4/76 and 6/76, EU:C:1976:114, paragraphs 42 and 43; see also Constantinesco, V., and others (editors), Traité instituant la CEE, Paris, Economica, 1992, Article 116, paragraphs 6 and 16.

( 38 ) They thus criticised the fact that that provision allowed the Community to adopt by majority vote decisions which, internally, the Council would only have been able to adopt on a unanimous basis, and made it possible to adopt decisions which fell within the exclusive competence of the Member States (CONF/3870/96).

( 39 ) Article J.2(3) TEU, now Article 34(1) TEU, containing an obligation to uphold the European Union’s positions. In this context the term ‘position’ is not to be interpreted strictly. See in this regard Geiger, R., in: Geiger, R. and others (editors) EUV/AEUV, Munich, C.H. Beck, 5th ed. 2010, Art. 34 TEU, paragraph 1.

( 40 ) Sack, J., Les relations extérieures de l’Union européenne sous l’angle institutionnel, Revue des affaires européennes 2001-2002, 29, 33.

( 41 ) Opinion 1/78, EU:C:1979:224, point 51. See also Opinion 1/75, EU:C:1975:145.

( 42 ) That decision expressly enabled the Community to accede. See Article 7 of the Third Revised Decision by the Council of the Organisation for Economic Cooperation and Development on National Treatment.

( 43 ) Opinion 2/92, EU:C:1995:83, point 8.

( 44 ) See also Vedder, C., Die auswärtige Gewalt des Europa der Neun, Göttingen, Otto Schwartz&Co., 1980, pp. 155 to 157.

( 45 ) Sack, J., The European Community’s Membership of International Organizations, CMLR 32 (1995), 1227, 1252; Schmalenbach, K., in: Calliess, C., and Ruffert, M., (editors), Kommentar zu EU-Vertrag und EG-Vertrag, Neuwied, Luchterhand, 1999, Article 300, paragraph 49.

( 46 ) On these problems and the Community’s competence to become a member of an international organisation, see Opinion 1/76, EU:C:1977:63, point 5; Opinion 1/94, EU:C:1994:384; and Hillion, C., and Koutrakos, P., (editors), Mixed Agreements Revisited, Oxford, Hart, 2010.

( 47 ) CONF/3870/96, in particular p. 5. In this regard, the Council and the Commission had at an early stage made unpublished arrangements applicable to raw materials agreements and the FAO. See Sack, J., Die Europäische Gemeinschaft als Mitglied Internationaler Organisationen, in: Randelzhofer, A. and others (editors), Gedächtnisschrift für Eberhard Grabitz, Munich, C.H.Beck, 1995, pp. 655 to 659.

( 48 ) CONF/3822/96; CONF/3870/96.

( 49 ) Sevince, C‑192/89, EU:C:1990:322, paragraph 9; and Greece v Commission, 30/88, EU:C:1989:422, paragraph 13.

( 50 ) Schmalenbach, K., in: Calliess, C., and Ruffert, M., (editors), Kommentar zu EU-Vertrag und EG-Vertrag, Neuwied, Luchterhand, 1999‚ Article 300, point 45.

( 51 ) Other bodies, such as those set up by cooperation agreements for example, were now also covered. Conference of the Representatives of the Governments of the Member States, The Legal Adviser, Document SN 2705/00 of 10 May 2000. See Rehulka, in: Mayer, H., and Stöger, K., Kommentar zu EUV und AEUV, Vienna, Manzsche Verlags- und Universitätsbuchhandlung, 2011, Article 218 TFEU, paragraph 3; Terhechte in: Schwarze, J., (editor) EU-Kommentar, Baden-Baden, Nomos, 2nd ed. 2009, Article 218 TFEU, paragraphs 11 to 14.

( 52 ) CITES, EU:C:2009:590, paragraphs 19, 58 and 59.

( 53 ) CITES, EU:C:2009:590, paragraphs 43, 45, 61 and 62.

( 54 ) CITES, EU:C:2009:590, paragraph 51.

( 55 ) CITES, EU:C:2009:590, paragraph 59.

( 56 ) Opinion of Advocate General Kokott in CITES, EU:C:2009:249, points 75 to 77.

( 57 ) See Articles 57 and 60 of the Vienna Convention on the Law of Treaties. Brandtner, B., and Rosas, A., Human Rights and the External Relations of the European Community, EJIL 9 (1998), 468; Bartels, L., Human Rights Conditionality in the EU’s International Agreements, Oxford, OUP, 2005; see COM(95) 216 final.

( 58 ) See to this effect Zagel, G., in: Smit, H., and others (editors.), Smit & Herzog on the Law of the European Union, Danvers, LexisNexis, 2013, Article 218.04[3][c]; Schmalenbach, K., in: Calliess, C., and Ruffert, M., (editors), EUV/AEUV, Munich, C.H. Beck, 4th ed. 2011, Article 218, paragraphs 23 and 24.

( 59 ) ‘Abkommen’, the term used in [the German-language version of] the provision that was the predecessor to the second subparagraph of Article 300(2) EC, has been replaced by the term ‘Übereinkunft’. This does not, however, amount to a substantive change. The latter term still refers to ‘any undertaking entered into by entities subject to international law which has binding force, whatever its formal designation’. See Opinion 1/75, EU:C:1975:145. See also Opinion 2/92, OECD, EU:C:1995:83, paragraph 8; and France v Commission, C‑233/02, EU:C:2004:173, paragraph 45.

( 60 ) In accordance with the maxim Ubi lex non distinguit, nec nos distinguere debemus (Gloss Pretium, Dig. 6.2.8). Equally erroneous, in my view, is the Council’s argument that, where there is a clear textual interpretation from which there is no deviation in other language versions, there is no further need for other methods of interpretation. The Court has expressly held that, when interpreting a provision of EU law, it is necessary ‘to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part’. Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 41; SGAE, C‑306/05, EU:C:2006:764, paragraph 34; and Wendelboe and Others, 19/83, EU:C:1985:54, paragraphs 13 to 15.

( 61 ) See also, to the same effect, Lorenzmeier, S., in: Grabitz, E., and others. (editors), Das Recht der Europäischen Union, Munich, C.H. Beck, 51st supplement 2013, Article 218, point 8. On the use of this term in Article 218(11) TFEU, I refer to my submissions on the schematic interpretation of the contested provision.

( 62 ) Emphasis added.

( 63 ) Germany has argued that the presentation of a position ‘on behalf’ of a non-member of an international organisation is inadmissible and that the presentation of positions ‘on the Union’s behalf’ will be rejected by those OIV Member States that do not belong to the European Union and will not be accepted by the presidency.

( 64 ) Article 218(7) TFEU uses the expression ‘on the Union’s behalf’ in the sense of representation within an organisation: ‘the Council may … authorise the negotiator to approve on the Union’s behalf modifications to the agreement …’. My emphasis.

( 65 ) Opinion 2/91, EU:C:1993:106, point 5; Commission v Greece, C‑45/07, EU:C:2009:81, paragraph 31. See footnote 91 below.

( 66 ) Opinion 2/91, EU:C:1993:106, point 5.

( 67 ) Opinion 2/91, EU:C:1993:106, points 3 and 4.

( 68 ) See the Opinion of Advocate General Kokott in CITES, EU:C:2009:249, point 75.

( 69 ) See, fundamentally, Simon, D., L’Interprétation judiciaire des traités d’organisations internationales, Paris, Pedone, 1981, pp. 391 to 398. See also Lecourt, R., L’Europe des juges, Bruxelles, Bruylant, 1976, pp. 235 to 247.

( 70 ) Although the OIV reviews the application of recommendations (Article 2(2)(b) of the Agreement), that review does not in any way involve monitoring a compulsory implementation.

( 71 ) See in this regard Intertanko and Others, C‑308/06, EU:C:2008:312, paragraphs 47 to 50, and Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraphs 52 and 60 to 71.

( 72 ) ‘[W]hen that body is called upon to adopt acts having legal effects’ in English, ‘lorsque cette instance est appelée à adopter des actes ayant des effets juridiques’ in French, ‘cuando dicho organismo deba adoptar actos que surtan efectos jurídicos’ in Spanish and ‘se tale organo deve adottare atti che hanno effetti giuridici’ in Italian.

( 73 ) [R]echtswirksame Akte [die ein durch eine Übereinkunft eingesetztes Gremium] ‘zu erlassen hat’. As regards other language versions, see footnote 72.

( 74 ) In the English version: ‘binding’; in the French: ‘lient’; in the Spanish: ‘vincularán’; and in the Italian: ‘vincolano’.

( 75 ) In German, the corresponding text reads: ‘mit Rechtswirkung gegenüber Dritten’; in the English version: ‘intended to produce legal effects vis-à-vis third parties’ (emphasis in the original): in the French: ‘destinés à produre des effets juridiques à l’egard des tiers’: in the Spanish: ‘destinados a producir efectos jurídicos frente a terceros’; in the Italian: ‘destinati a produrre effetti giuridici nei confronti di terzi’.

( 76 ) See Eurocoton and Others v Council, C‑76/01 P, EU:C:2003:511, paragraph 54; Netherlands v Commission, C‑147/96, EU:C:2000:335, paragraph 25; Les Verts v Parliament, 294/83, EU:C:1986:166, paragraphs 24 to 27; IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; and ERTA, EU:C:1971:32, paragraphs 38 to 55. See also Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 56.

( 77 ) For example, in Deutsche Shell, C‑188/91, EU:C:1993:24, paragraphs 16 to 18; and Commission v Greece, EU:C:2008:642, paragraphs 19 to 23.

( 78 ) See footnote 59 above.

( 79 ) Like the Council, however, I take the view that there is no question here of extending the European Union’s material competences in contradiction to the principle of conferred powers.

( 80 ) See Dupuy, P.-M., Droit international public, Paris, Dalloz, 10th ed. 2010, p. 433; Malanczuk, P., Akehurst’s Modern Introduction to International Law, London, Routledge, 7th ed. 1997, p. 54.

( 81 ) Agreement on Technical Barriers to Trade (‘TBT Agreement’), Annex 1A to the Agreement establishing the World Trade Organisation (OJ 1994 L 336, p. 86), approved by the Council in Council Decision 94/800/EC of 22 December 1994 (OJ 1994 L 336, p. 1).

( 82 ) See in this regard Tamiotti, L., Art. 2 TBT Agreement, in: Wolfrum, R. and others. (editors), Max Planck Commentaries on World Trade Law: Technical Barriers and SPS Measures, Leiden, Brill, 2007, p. 226.

( 83 ) I can leave open here the question whether the European Union does have exclusive material competence in the present case.

( 84 ) See, most recently, O, C‑456/12, not yet published in the ECR, paragraph 50. See also Ziebell (previously Örnek), C‑371/08, EU:C:2011:809, paragraph 58; and Winner Wetten, C‑409/06, EU:C:2010:503, paragraph 64.

( 85 ) Opinion of Advocate General Trstenjak in Sapir and Others, C‑645/11, EU:C:2012:757, point 118; and Opinion of Advocate General Alber in Council v Busacca and Others, C‑434/98 P, EU:C:2000:298, point 26.

( 86 ) Article 49 of the Charter of Fundamental Rights of the European Union; Article 7 ECHR; ECtHR, K.A. and A.D. v. Belgium, No. 42758/98 and 45558/99, 17 February 2005, paragraph 51.

( 87 ) See Calliess, C., in: Calliess, C., and Ruffert, M., (editors), EUV/AEUV, Munich, C.H. Beck, 4th ed. 2011, Article 5 TEU, point 9.

( 88 ) See Eind, C‑291/05, EU:C:2007:771, paragraphs 43 and 45, and O, C‑456/12, ECR, paragraph 50.

( 89 ) Haneberg, C‑28/91, EU:C:1992:285, paragraphs 21 to 25.

( 90 ) Schmalenbach, K., in: Calliess, C. and Ruffert, M., Kommentar zu EU-Vertrag und EG-Vertrag, Neuwied, Luchterhand, 2nd ed. 2002‚ Article 300, paragraph 74.

( 91 ) Opinion 2/91, EU:C:1993:106, point 5; Commission v Greece, EU:C:2009:81, paragraph 31; Opinion of Advocate General Bot in Commission v Greece, C‑45/07, EU:C:2008:642, point 47. More broadly: ERTA, EU:C:1971:32, paragraphs 81 to 90 (in relation to changes to Community competences); Opinion of Advocate General Tizzano in Commission v Germany, C‑433/03, EU:C:2005/153, point 87. See, generally, Cremona, M., Member States as Trustees of the Community Interest: Participating in International Agreements on Behalf of the European Community, EUI Working Papers 2009/17.

( 92 ) Point 33 of this Opinion.

( 93 ) See in this regard, in the context of a teleological interpretation, the Opinion of Advocate General Kokott in CITES, EU:C:2009:249, point 76. On the application of the contested provision by analogy, see Lorenzmeier, S. in Grabitz, E. and others (eds), Das Recht der Europäischen Union, Munich, C.H. Beck, 51st supplement 2013, Article 218, points 64 to 66.

( 94 ) Kramer and Others, EU:C:1976:114, paragraphs 44 and 45. See Hoffmeister, footnote 2, p. 59, above.

( 95 ) CITES, EU:C:2009:590, paragraph 48.

( 96 ) See Commission v Council, 165/87, EU:C:1988:458, paragraph 19.

( 97 ) CITES, EU:C:2009:590, paragraphs 63 to 66.