Action brought on 24 April 2020 — European Commission v Council of the European Union

(Case C-180/20)

(2020/C 209/27)

Language of the case: English

Parties

Applicant: European Commission (represented by: M. Kellerbauer, T. Ramopoulos, Agents)

Defendant: Council of the European Union

The applicant claims that the Court should:

— annul Council Decision (EU) 2020/245 (1) of 17 February 2020 on the position to be taken on behalf of the European Union within the Partnership Council established by the Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Armenia, of the other part (‘CEPA’), as regards the adoption of the Rules of Procedure of the Partnership Council and those of the Partnership Committee, subcommittees and other bodies set up by the Partnership Council, and the establishment of the list of Sub-Committees, for the application of that Agreement with the exception of Title II thereof (‘Council Decision 2020/245’) and Council Decision (EU) 2020/246 (2) of 17 February 2020 on the position to be taken on behalf of the European Union within the Partnership Council established by the CEPA, as regards the adoption of the Rules of Procedure of the Partnership Council and those of the Partnership Committee, subcommittees and other bodies set up by the Partnership Council, and the establishment of the list of Sub-Committees, for the application of Title II of that Agreement (‘Council Decision 2020/246’);

— order the Council of the European Union to pay the costs.

Pleas in law and main arguments

The Commission argues that i) excluding Title II CEPA from the scope of Council Decision 2020/245; (ii) adopting a separate Council Decision 2020/246 concerning solely Title II CEPA, which is based on the substantive legal basis of Article 37 TEU; and (iii) adding the second subparagraph of Article 218(8) TFEU, which provides that the Council shall act unanimously when the agreement covers a field for which unanimity is required, violates the Treaty as interpreted in the case law of the Court.

This plea is substantiated by the following arguments:

First, according to established case-law of the Court, the substantive legal basis for the Council Decision based on Article 218(9) TFEU on the position to be taken on behalf of the Union within the bodies established by an agreement needs to be determined in accordance with the centre of gravity of the agreement as a whole. CEPA is predominantly concerned with trade and development cooperation as well as trade in transport services whilst the links between the CEPA and the CFSP are not sufficiently significant to warrant a substantive CFSP legal basis regarding the Agreement as a whole. Accordingly, the Council was wrong to include Article 37 TEU in the legal basis of Decision 2020/246 and that Decision was incorrectly adopted under the voting rule requiring unanimity.

Second, it is not open to the Union institutions artificially to split a single act into different parts and thereby create parts with different centres of gravity respectively, lest they be allowed to circumvent the requirement in Article 13 TEU that each institution act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. Where the Council establishes the position to be taken on behalf of the Union in a body set up by an agreement pursuant to Article 218(9) TFEU regarding rules governing the operation of that body across all provisions of the agreement, splitting the Council decision into two decisions cannot be justified. Since the CEPA does not draw a distinction between the Rules of Procedure that apply when the bodies concerned act under Title II or under other Titles of the CEPA, the Council was wrong to adopt two separate Council decisions, one of which solely concerns Title II CEPA.

(1) OJ 2020, L 52, p. 3.

(2) OJ 2020, L 52, p. 5.