OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 26 May 2005 1( )

Case C-94/03

Commission of the European Communities

v

Council of the European Union

(Hazardous chemicals and pesticides – Rotterdam Convention – Choice of legal basis – Common commercial policy, environmental policy)

I – Introduction

1. In these proceedings the Commission of the European Communities and the Council of the European Union are in dispute over the choice of the correct legal basis for the conclusion of an international agreement, namely the Rotterdam Convention on the Prior Informed Consent Procedure for certain hazardous chemicals and pesticides in international trade ( ) (‘the Convention’).

2. While the Commission takes the view that the legal basis for the European Community’s membership of the Convention should be the common commercial policy (Article 133 EC), the Council defends the conclusion of the Convention which eventually took place on the basis of environmental policy (Article 175(1) EC), and is supported in so doing by the European Parliament and five Member States.

3. In the parallel proceedings in Case C‑178/03 ( ) the choice of legal basis for Regulation (EC) No 304/2003 of the European Parliament and of the Council of 28 January 2003 concerning the export and import of dangerous chemicals ( ) is under examination. The purpose of that regulation is not least to implement the Convention within the Community. ( )

II – The Convention

A – Extracts from the preamble

4. In the preamble to the Convention, the following passages especially are important for the present proceedings (the first, second, third, sixth, seventh, eighth and eleventh recitals):

‘Aware of the harmful impact on human health and the environment from certain hazardous chemicals and pesticides in international trade,

Recalling the pertinent provisions of the Rio Declaration on Environment and Development and chapter 19 of Agenda 21 on “Environmentally sound management of toxic chemicals, including prevention of illegal international traffic in toxic and dangerous products”,

Mindful of the work undertaken by the United Nations Environment Programme (UNEP) and the Food and Agriculture Organisation of the United Nations (FAO) in the operation of the voluntary Prior Informed Consent procedure, as set out in the UNEP Amended London Guidelines for the Exchange of Information on Chemicals in International Trade (hereinafter referred to as the “Amended London Guidelines”) and the FAO International Code of Conduct on the Distribution and Use of Pesticides (hereinafter referred to as the “International Code of Conduct”),

…

Recognising that good management practices for chemicals should be promoted in all countries, taking into account, inter alia, the voluntary standards laid down in the International Code of Conduct and the UNEP Code of Ethics on the International Trade in Chemicals,

Desiring to ensure that hazardous chemicals that are exported from their territory are packaged and labelled in a manner that is adequately protective of human health and the environment, consistent with the principles of the Amended London Guidelines and the International Code of Conduct,

Recognising that trade and environmental policies should be mutually supportive with a view to achieving sustainable development,

…

Determined to protect human health, including the health of consumers and workers, and the environment against potentially harmful impacts from certain hazardous chemicals and pesticides in international trade’.

5. Reference should also be made to the third recital in the preamble to Council Decision 2003/106/EC of 19 December 2002 concerning the approval, on behalf of the European Community, of the Rotterdam Convention on the Prior Informed Consent Procedure for certain hazardous chemicals and pesticides in international trade ( ) (also referred to as ‘the contested decision’). That recital states:

‘The Convention is an important step in improving the international regulation of trade in certain hazardous chemicals and pesticides in order to protect human health and the environment from potential harm and to promote the environmentally sound use of such substances.’

B – Summary of the principal provisions of the Convention

6. The essential provisions of the Convention may be summarised – in simplified form – as follows.

7. The objective of the Convention, as stated in Article 1, is ‘to promote shared responsibility and cooperative efforts among Parties in the international trade of certain hazardous chemicals in order to protect human health and the environment from potential harm and to contribute to their environmentally sound use, by facilitating information exchange about their characteristics, by providing for a national decision-making process on their import and export and by disseminating these decisions to Parties’. ( )

8. For that purpose, the Convention makes international trade in certain chemicals, classified as hazardous by agreement of the Contracting Parties, subject to what is known as a Prior Informed Consent procedure (‘PIC procedure’). A list of the chemicals concerned is annexed to the Convention as Annex III. ( ) This PIC procedure is defined in more detail in Articles 10 and 11 of the Convention. It essentially provides for the mutual provision of information by the Contracting Parties to the Convention on their individual import practices for the chemicals concerned. ( ) Each Party also undertakes to pass the information thus received on the import practices of the other Parties on to economic operators within its jurisdiction and to ensure that they are observed.

In addition, Article 10(9) of the Convention contains the following provision:

‘A Party that … takes a decision not to consent to import of a chemical or to consent to its import only under specified conditions shall, if it has not already done so, simultaneously prohibit or make subject to the same conditions:

(a) import of the chemical from any source; and

(b) domestic production of the chemical for domestic use.’

9. For other chemicals, that is, those which are not subject to the PIC procedure under Annex III, the Convention also provides, in Article 5(1) to (4), for a procedure of information exchange by the Contracting Parties concerning their national bans and severe restrictions of chemicals. ( ) Article 12 of the Convention requires each Party from whose territory such a chemical banned or severely restricted by it is exported to notify that export to the country of destination (designated the importing Party) (export notification).

10. Article 13 of the Convention provides essentially that when chemicals are exported labelling requirements must apply which ensure adequate availability of information with regard to risks and/or hazards to human health or the environment. ( )

11. Article 14 of the Convention calls on the Parties to exchange information on the chemicals within the scope of the Convention, while Article 11(1)(c) and Article 16 of the Convention urge them to provide technical assistance, particularly for developing countries and countries with economies in transition; the aim of this technical assistance is the development of the infrastructure and capacity to manage chemicals throughout their life cycle.

12. Under Article 15(2) each Party is required to ensure, to the extent practicable, that the public has appropriate access to information on chemical handling and accident management and on alternatives that are safer for human health or the environment than the chemicals in Annex III, classified as especially hazardous, that are subject to the PIC procedure.

13. Under Article 15(4) of the Convention, the right of the Contracting Parties to take action that is more stringently protective of human health and the environment is not affected by the Convention, provided that such action is consistent with the Convention and international law.

III – Background to the case, forms of order sought and procedure

A – Background to the case

14. The Convention was adopted in Rotterdam on 10 September 1998 and signed on behalf of the Community on 11 September 1998.

15. On 24 January 2002 the Commission proposed to the Council to approve the Convention, basing its proposal on Article 133 EC in conjunction with the first sentence of the first subparagraph of Article 300(2) EC and the first subparagraph of Article 300(3) EC. ( )

16. On 19 December 2002 the Council approved the Convention on behalf of the European Community. Differing from the Commission’s proposal, however, the Council unanimously decided on this occasion, after obtaining the opinion of the European Parliament in accordance with Article 300(3) EC, to replace Article 133 EC by Article 175(1) EC as the legal basis for its approval.

17. As provided for in Article 25(3) of the Convention, the European Community also, when depositing its instrument of approval, made a declaration of the extent of its competence in respect of the matters governed by the Convention. ( ) That declaration likewise refers to Article 175(1) EC, not to Article 133 EC.

18. As well as the European Community, most of the Member States of the European Union are also Contracting Parties to the Convention. ( ) The question whether the Community may even at that time, under the ‘AETR line of case-law’, ( ) have had exclusive competence to conclude the Convention ( ) goes beyond the subject-matter of the Commission’s application, so that it need not be discussed in the present case.

B – Forms of order sought and procedure before the Court

19. By its application for annulment of 27 February 2003, the Commission asks the Court pursuant to Article 230 EC:

– to annul Council Decision 2003/106/EC of 19 December 2002 approving, on behalf of the European Community, the Rotterdam Convention on the Prior Informed Consent Procedure for certain hazardous chemicals and pesticides in international trade;

– to order the Council to pay the costs.

20. The Council for its part contends that the Court should:

– dismiss the application;

– order the Commission to pay the costs.

21. By order of the President of the Court of 16 July 2003, the European Parliament as well as the French Republic, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Finland and the United Kingdom of Great Britain and Northern Ireland were granted leave to intervene in support of the Council.

22. All the parties submitted observations in the written procedure, and the Commission, the Parliament, the Council and the United Kingdom also did so at the hearing on 7 April 2005, at which the case was heard together with Case C‑178/03.

IV – Assessment

23. In its application the Commission puts forward a single ground of invalidity, namely the choice of the wrong legal basis for the approval of the Convention on behalf of the Community. It thereby complains of a breach of the EC Treaty within the meaning of the second paragraph of Article 230 EC.

24. The choice of the correct legal basis is of considerable practical and institutional, indeed constitutional importance. ( ) It determines not only the legislative procedure applicable (rights of the Parliament to participate, unanimity or qualified majority in the Council ( )) but also whether the Community’s competence to legislate and conclude an international agreement is exclusive or is to be shared with the Member States. ( )

A – Criteria for the choice of legal basis

25. The abstract criteria for the choice of the correct legal basis for approval of the Convention are essentially a matter on which the parties agree.

26. According to settled case-law, the choice of the legal basis for a Community act must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the measure. ( )

27. If examination of a Community act reveals that it pursues two purposes or has two components, and if one is identifiable as the main or predominant one while the other is merely incidental, the act must be founded on a single legal basis, namely that required by the main or predominant purpose or component. ( )

28. This means that the approval of a Community act may be based on the common commercial policy (Article 133 EC) even if in addition to its main commercial aspect it also pursues other aims, such as aims of development policy, ( ) external and security policy, ( ) protection of the environment ( ) or protection of health. ( ) That applies all the more in that the provisions on the common commercial policy are based on an open and dynamic concept which is by no means confined to the traditional aspects of external trade. ( ) With respect specifically to protection of the environment and protection of health, Article 6 EC and the first subparagraph of Article 152(1) EC are enough to show that these are cross-sectional obligations which must be taken into account in all the other policies of the Community, thus including the common commercial policy.

29. Conversely, however, international agreements whose centre of gravity lies in the environmental field may incidentally affect trade. Provided only that their environmental policy aspect is predominant, the approval of such agreements must be based on Article 175(1) EC, not Article 133 EC. ( )

30. To draw a line between the common commercial policy (Article 133 EC) and environmental policy (Article 175 EC) as possible legal bases for international agreements, the Court has developed the criterion of direct and immediate effect. ( ) If, then, an international agreement with environmental policy aims has no direct and immediate effects on trade, that agreement is to be based on Article 175 EC; in the contrary case, it must be based on Article 133 EC. ( ) The direct and immediate effects on trade need not necessarily consist in promoting or facilitating trade for an international agreement to be capable of falling within the scope of Article 133 EC; rather, it suffices that such an agreement is ‘an instrument intended essentially … to promote, facilitate or govern trade’. ( )

31. With this as background, it must now be examined where in the present case the centre of gravity of the Convention is, in terms of its content, purpose and context, and whether any effects the Convention may have on trade are direct and immediate (see section B below). In addition, it will also be necessary to discuss the consequences which would arise for the validity of the approval of the Convention if it were concluded that it should have been based not on a single but on a dual legal basis (see section C).

B – Content, aims and context of the Convention

32. The parties disagree on what sphere of policy the Convention should be allotted to, having regard to its content, aims and context. While the Commission puts forward the view that the Convention has its centre of gravity in the scope of the common commercial policy, the Council, supported by the interveners on its side, regards it as an instrument of a predominantly environmental policy character. Both sides thus adopt essentially the same points of view in the present case as in the parallel Case C‑178/03.

33. I will say at once that the Commission’s argument does not convince me.

34. It is indeed the case that the wording of the Convention is not without references to commercial policy. Both the title and the preamble ( ) and several articles of the Convention speak of international trade, commercial policy and imports and exports. But the wording of the Convention has at least as substantial references to environmental policy. Thus the preamble ( ) and in particular Article 1 of the Convention refer to the protection of the environment, sustainable development, the protection of human health, the promotion of good practice in managing chemicals and their environmentally sound use; Article 16 speaks of the management of chemicals throughout their life cycle.

35. As regards content, one must admittedly agree with the Commission, and also the Council, that the PIC procedure – defined in more detail in Articles 10 and 11 – represents the nucleus of the Convention. Contrary to the Commission’s view, however, a PIC procedure is by no means primarily an instrument of commercial policy but, on the contrary, as the Court has already held in Opinion 2/00, a typical instrument of environmental policy. ( ) Contrary to the Commission’s arguments, the assessment made in Opinion 2/00 concerning the PIC procedure in the Cartagena Protocol can be transferred to the PIC procedure in the present case. Here too, with reference to the hazardous chemicals concerned, the PIC procedure is related primarily to ‘information exchange on the benefits as well as the risks associated with the use of chemicals [and is] aimed at enhancing the sound management of toxic chemicals through the exchange of scientific, technical, economic and legal information’. ( )

36. International trade in certain chemicals which the Contracting Parties have agreed to classify as hazardous ( ) is thus merely the external point of reference of the PIC procedure. The real subject-matter of the Convention is not primarily the promotion, facilitation or even the regulation of trade in hazardous chemicals, ( ) but only the exchange of information by the Contracting Parties on their import practices (Article 10(7) and (10) of the Convention ( )) combined with the onward transmission of the information thus obtained to the economic operators concerned (Article 11(1)(a) of the Convention).

37. The PIC procedure, like the export notification procedure for certain chemicals (Article 12 of the Convention), is intended above all to prevent a Contracting Party – in particular a developing country – from being confronted with the import of hazardous chemicals without first having had an opportunity to take the necessary steps for the protection of the environment and human health. ( )

38. The PIC procedure can at most indirectly, by the abovementioned provision of information to the economic operators concerned (Article 11(1)(a) of the Convention), contribute to the increased transparency of the rules in force in the various countries and thus possibly facilitate trade in hazardous chemicals. On the other hand, the Convention may also make trade more expensive for an exporter, for instance if he is required to comply with the necessary formalities for an export notification (Article 12 of the Convention). ( )

39. Apart from such indirect effects on trade, however, the Convention essentially has no commercial policy rules as its subject-matter. In particular, it does not lay down common rules of the Contracting Parties for imports and exports of hazardous chemicals. It does not contain any provisions on whether and on what conditions the import of hazardous chemicals may or must be permitted or refused by the Parties. Nor are any rules laid down on the mutual recognition of products. Each Party remains entirely free to consent, refuse to consent, or consent only subject to certain conditions to the import of a hazardous chemical (Article 10(1), (2), (4)(a) and (6) of the Convention). The other Parties merely support it in so doing by ‘ensuring’ that exporters comply with the laws in force in the country of destination (Article 11(1)(b) of the Convention). Otherwise, the Convention as such attaches to the import practice of the Party in question merely an incidental consequence with indirect effects on trade, by imposing a prohibition of discrimination ( ) in relation to the origin of imported hazardous chemicals and an obligation of equal treatment with domestic hazardous chemicals ( ) (Article 10(9) of the Convention).

40. If the other provisions of the Convention are also taken into consideration, the impression is confirmed that it is primarily an instrument of environmental policy, not of commercial policy. The exchange of information between the Contracting Parties (Article 14 of the Convention) and mutual technical assistance (Article 11(1)(c) and Article 16 of the Convention) and public access to information on chemicals (Article 15(2) of the Convention) do not serve the promotion, facilitation or even the regulation of trade in hazardous chemicals. Instead, as the wording of those provisions shows, their aim is primarily the protection of the environment, and also of human health.

41. Contrary to first appearances, the provisions in Article 13 of the Convention on labelling and accompanying information for chemicals are also not commercial policy provisions but environmental policy ones. In their case the emphasis is not on the otherwise usual approximation or mutual recognition of product packaging and accompanying information, in order to ensure that chemicals can be traded or to improve their access to the market. ( ) The aim is rather to satisfy the public’s need for information on risks and/or dangers to human health or the environment in connection with the chemicals concerned. The Convention accordingly states only the environmental policy aim of labelling chemicals and providing them with accompanying information, while leaving it to the national laws of the Contracting Parties to determine the specific requirements as to the content of that packaging and accompanying information.

42. As regards the objectives of the Convention, Article 1 shows that the emphasis is on environmental policy concerns, in particular the promotion of shared responsibility, the protection of human health and the environment from potential harm, the facilitation of the exchange of information on the characteristics of hazardous chemicals, and the environmentally sound use of those chemicals. This prominence given to environmental concerns is also confirmed by the preamble to the Convention, which refers in the very first recital to the impact of certain hazardous chemicals and pesticides on human health and the environment, and deals substantially with environmental protection in the seventh, ninth and eleventh recitals too. The sixth and eighth recitals in the preamble, which are devoted to the promotion of good practice in the management of chemicals and the objective of sustainable development, are along the same lines.

43. It is true that references to international trade are also present in the objectives, in particular in the second, eighth and ninth recitals in the preamble and in the wording of Article 1 of the Convention. But here too, trade is more a point of attachment for the real environmental policy aims of the Convention, and has no substantive position of its own among those objectives. The Convention is an environmental agreement with commercial policy references, not a commercial policy agreement with environmental references. ( )

44. The same conclusion suggests itself if one considers the context in which the Convention is situated. The Convention was not concluded in the framework of, for instance, the World Trade Organisation (WTO), but is based on the work of the United Nations Environment Programme (UNEP) and the Food and Agriculture Organisation of the United Nations (FAO). ( ) Those two institutions initiated the negotiation of the Convention and now, in accordance with Article 19(3), exercise the function of a secretariat for the Contracting Parties. Moreover, the Convention itself regards itself as following on from the United Nations Conference on Environment and Development which took place in Rio de Janeiro (Brazil) in 1992; the Rio Declaration on Environment and Development ( ) and Chapter 19 of Agenda 21 ( ) are expressly referred to in the Convention. ( ) More recently, one should note the Plan of Implementation agreed by the World Summit on Sustainable Development in Johannesburg (South Africa) in 2002, which calls for the swift ratification and implementation of the Rotterdam Convention. ( ) Within the Community, the Sixth Environment Action Programme of 22 July 2002 is of importance; ( ) that programme, which for its part was based on Article 175 EC, thematically shows numerous points of contact with the Convention ( ) and includes swift ratification of the Convention among the priority actions of the Community’s environmental policy. ( )

45. To sum up: if the content and objectives of the Convention and the context in which it was concluded are taken into account, its centre of gravity is not in the sphere of the common commercial policy but in the sphere of environmental policy. The – entirely possible – consequences of the Convention for international trade in hazardous chemicals are more indirect than direct. ( ) In that sense I agree with the view taken by the Council and the interveners that the Convention, with reference to the legal basis for its approval, has more in common with the Cartagena Protocol on Biosafety ( ) than with the Energy Star Agreement. ( ) It was therefore correct to base the approval of the Convention on Article 175(1) EC, not on Article 133 EC. ( )

46. The Commission further objects that serious effects on the internal market and distortions of trade are to be feared if Article 175(1) EC rather than Article 133 EC is accepted as the legal basis. The Member States could in that case, in the absence of exclusive competence of the Community, unilaterally enact stricter provisions on the import and export of hazardous chemicals and circumvent the provisions already existing at Community level on the classification, packaging and labelling of hazardous substances.

47. In this respect, it must first be observed that in the field of environmental policy, according to the AETR line of case-law, an exclusive external jurisdiction of the Community may very well exist. ( ) Whether this was the case with respect to the conclusion of the Convention at issue in this case may be left open, however. Even in the area of shared competence, the Member States must comply with existing Community law when exercising the powers retained by them. In so doing they may not infringe existing secondary law, nor may they infringe primary law, in particular the fundamental freedoms of the EC Treaty and Article 95(4) to (10) EC. That follows from the principle of the primacy of Community law. The Commission’s objection is therefore unfounded.

48. Altogether, I therefore conclude that the Commission’s application is unfounded and should consequently be dismissed.

C – The question of a dual legal basis

49. That conclusion would not be any different if it were assumed that the Convention should not have been based on a single basis only, but in fact on a dual legal basis, that is, Article 175(1) EC and Article 133 EC at the same time.

50. It is indeed possible to base an act on several relevant legal bases, where exceptionally it is established that several objectives are being pursued simultaneously which are inseparably linked without one being merely secondary and indirect in relation to the other. ( )

51. In the present case, resort to a dual legal basis would have been conceivable if it were suggested that commercial policy and environmental policy aspects were represented equally in the Convention ( ) and the Convention consequently – contrary to the view put forward above – could not be clearly allocated to either of the two policies.

52. It should be observed here, to begin with, that the differences in procedure between the conclusion of commercial policy agreements on the one hand and environmental policy agreements on the other are not irreconcilable. ( ) It is true that in the field of commercial policy agreements the Parliament is generally only informed ( ) unofficially, without it having any formal right under the Treaty to participate, whereas, under the first subparagraph of Article 300(3) EC, it must compulsorily be consulted before the conclusion of environmental policy agreements. However, nothing stops the Council also consulting the Parliament optionally ( ) in the case of commercial policy agreements.

53. What is decisive, however, is that annulment of the approval of the Convention would be possible only if the alleged error in the choice of the legal basis were more than a purely formal error.

54. The Court has found there to be a purely formal error, for example, where an act was incorrectly based on a dual instead of a single legal basis. ( ) The same should also apply in the converse case, where the complaint against the Community legislature is that it should have had recourse not just to a single but to a dual legal basis. A mere incorrect reference to the legal basis or bases in the preamble is not sufficient for the annulment of a Community act; rather, such an error in the choice of legal basis must have produced further-reaching consequences, in particular leading to the application of an unlawful procedure ( ) or otherwise adversely affecting the legal position of the institutions concerned.

55. In the present case the Parliament was consulted in accordance with the first subparagraph of Article 300(3) EC. The procedural rights of the Parliament were thus observed. Recourse to Article 133 EC as an additional legal basis could not have given the Parliament any additional rights; on the contrary, the very wording of the first subparagraph of Article 300(3) EC shows that the Parliament’s procedural rights in the field of commercial policy agreements are less extensive than, for example, in the case of environmental policy agreements. ( )

56. Nor are there any specific indications that the absence of Article 133 EC as an additional legal basis weakened the Commission’s role as negotiator. ( ) For the common commercial policy (Article 133 EC) the Community indeed has exclusive competence, ( ) whereas in environmental policy (Article 175 EC) it shares its competence in principle with the Member States; ( ) so only in the latter case do the Member States sit at the negotiating table alongside the Commission, while in the former case it is for the Commission alone to carry on the negotiations. Additional recourse to Article 133 EC as a legal basis can thus strengthen the Commission’s position as a matter of procedural law whenever the agreement in question comprises several parts which can be distinguished from each other, at least one of which is to be allocated to the exclusive jurisdiction of the Community. ( ) In a case such as the present, however, there is nothing to suggest that the various provisions of the Convention were mutually distinguishable in that way. Instead, the Convention forms a uniform whole, so that the use of Article 133 EC as an additional legal basis to Article 175(1) EC could not have improved the Commission’s negotiating position, and its absence did not weaken the Commission’s negotiating position.

57. Even, then, if it were supposed that commercial and environmental policy aspects are expressed equally strongly in the Convention at issue, the failure to have recourse to Article 133 EC as an additional legal basis would have been no more than a mere formal error which could not justify annulling the contested act. The Council’s decision to approve the Convention on the basis of Article 175(1) EC in conjunction with the first sentence of the first subparagraph of Article 300(2) EC and the first subparagraph of Article 300(3) EC would not thus have to be set aside from this point of view either.

V – Costs

58. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it should be ordered to pay the costs, as applied for by the Council.

59. As an exception to that rule, it follows from Article 69(4) of the Rules of Procedure that the European Parliament, as an institution which has intervened in the proceedings, and the five Member States which have also intervened in the proceedings must bear their own costs.

VI – Conclusion

60. On the basis of the above considerations, I propose that the Court should:

(1) dismiss the application;

(2) order the European Parliament, the French Republic, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Finland and the United Kingdom of Great Britain and Northern Ireland to bear their own costs. Apart from that, the Commission of the European Communities shall pay the costs.