Source: EURLEX
Language: en
Format: md

Case C‑24/20

European Commission

v

Council of the European Union

Judgment of the Court (Grand Chamber), 22 November 2022

(Action for annulment – Council Decision (EU) 2019/1754 – Accession of the European Union to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications – Article 3(1) TFEU – Exclusive competence of the European Union – Article 207 TFEU – Common commercial policy – Commercial aspects of intellectual property – Article 218(6) TFEU – Right of initiative of the European Commission – Modification by the Council of the European Union of the proposal from the Commission – Article 293(1) TFEU – Applicability – Article 4(3), Article 13(2) and Article 17(2) TEU – Article 2(1) TFEU – Principles of conferral of powers, of institutional balance and of sincere cooperation)

1. Action for annulment – Admissibility criteria – Action against the author of the contested measure – Request for annulment of a Council decision concluding an international agreement – Adoption of that decision by the Council alone – Whether permissible

   (Arts 218(6), 263 and 297(2) TFEU)

   (see paragraphs 42-45)
2. Action for annulment – Subject matter – Partial annulment – Condition – Severability of the contested provisions – Objective criterion – No modification of the substance of the contested act – Condition fulfilled – Admissibility

   (Art. 263 TFEU; Council Decision 2019/1754, Arts 3 and 4)

   (see paragraphs 47-49, 53-55)
3. Council – Powers – Power to amend unanimously a proposal from the Commission – Scope – Proposal from the Commission, as designated negotiator, in the context of the European Union’s external action – Included

   (Arts 218 and 293(1) TFEU)

   (see paragraphs 77-82)
4. European Union – Institutions – Duties – Duty of sincere cooperation – Institutional balance – Scope

   (Arts 13(2), 16(1) and 17(2) TEU; Art. 293 TFEU)

   (see paragraphs 83, 84, 92)
5. Commission – Powers – EU acts other than legislative acts – Power of initiative as designated negotiator of an international agreement – Scope – Promotion of the general interest of the European Union – Powers to submit a proposal, to determine its subject matter, objective and content, and to alter or even withdraw it

   (Art. 17(1) and (2), second sentence, TEU; Art. 218(3) and (6) TFEU)

   (see paragraphs 85-88)
6. Council – Powers – Power to amend unanimously a proposal from the Commission – Condition – No distortion of the subject matter and objective thereof

   (Arts 16(1) and 17(2) TEU; Art. 293 TFEU; Council Decision 2019/1754, Art. 3)

   (see paragraphs 92-94, 105-108, 111, 112)
7. Council – Powers – Power to amend unanimously a proposal from the Commission as designated negotiator of an international agreement – Scope – Proposal from the Commission concerning the exercise of an exclusive competence by the European Union alone – Political choice forming part of the Commission’s assessment of the general interest of the European Union – Amendment from the Council empowering Member States to exercise an exclusive competence of the European Union – Precluded

   (Art. 17(2) TEU; Arts 218 and 293(1) TFEU)

   (see paragraphs 102-104, 109, 110)

Résumé

By Decision 2019/1754, (
[1](#t-ECR_62020CJ0024_RES_EN_01-E0001)
) the Council of the European Union approved the accession of the European Union to the Geneva Act (
[2](#t-ECR_62020CJ0024_RES_EN_01-E0002)
) of the Lisbon Agreement (
[3](#t-ECR_62020CJ0024_RES_EN_01-E0003)
) on Appellations of Origin and Geographical Indications.

The Lisbon Agreement constitutes a special agreement within the meaning of the Paris Convention for the Protection of Industrial Property, (
[4](#t-ECR_62020CJ0024_RES_EN_01-E0004)
) to which any State party to that convention may accede. Seven Member States of the European Union are parties to that agreement. Under that agreement, the States to which it applies constitute a Special Union within the framework of the Union for the Protection of Industrial Property established by the Paris Convention. The Geneva Act made it possible for the European Union to become a member of the same Special Union as the States which were parties to the Lisbon Agreement whereas the latter allowed only States to accede.

The accession of the European Union to the Geneva Act was approved on behalf of the European Union in accordance with Article 1 of the contested decision. Articles 2 and 5 of that decision make practical arrangements for the said accession. Article 3 of the contested decision authorises Member States which wish to do so to ratify or accede to the Geneva Act. As for Article 4 of that decision, it provides details concerning the representation, within the Special Union, of the European Union and of any Member State which ratifies or accedes to the Geneva Act and concerning the responsibilities which are incumbent on the European Union as regards the exercise of the rights and fulfilment of the obligations of the European Union and of those Member States arising from that act.

The Commission brought an action seeking partial annulment of the contested decision, namely of Article 3 and of Article 4 thereof to the extent that the latter article contains references to the Member States. It criticises the Council for amending its proposal (
[5](#t-ECR_62020CJ0024_RES_EN_01-E0005)
) by introducing a provision authorising Member States which wish to do so to ratify or accede to the Geneva Act. The Commission’s proposal, submitted on the basis of the provisions of the FEU Treaty concerning the implementation of the common commercial policy (
[6](#t-ECR_62020CJ0024_RES_EN_01-E0006)
) and the procedure for the adoption of a decision concluding an international agreement in that area, (
[7](#t-ECR_62020CJ0024_RES_EN_01-E0007)
) provided, in view of the European Union’s exclusive competence, that the European Union alone would accede to the Geneva Act.

The Court of Justice, sitting as the Grand Chamber, rules on the admissibility of the action, in the light of the criteria concerning the author of the contested decision and whether the parts whose annulment is sought can be severed from the remainder of the act. Moreover, in the context of the examination of the main plea, which it upholds, the Court gives a ruling on the issue of the Member States being empowered by the Council to adopt legally binding acts, such as the accession to an international agreement, in an area falling under the exclusive competence of the European Union. The Court annuls in part the contested decision by finding that it was adopted in breach of Article 293(1) TFEU, read in conjunction with Article 13(2) TEU.

Findings of the Court

The Court of Justice rejects at the outset the argument put forward by the Italian Republic that the action is inadmissible on the ground that it is directed solely against the Council and not also against the European Parliament. It states that, under Article 218(6) TFEU, notwithstanding prior consent by the European Parliament, the Council alone is empowered to adopt a decision concluding an international agreement. The contested decision was therefore correctly signed by the President of the Council alone, that signature thus identifying the author of that decision, against which the action was to be brought.

Moreover, the Court rejects the plea of inadmissibility raised by the Council, which maintained that the provisions of the contested decision which the Commission seeks to have annulled cannot be severed from the remainder of that decision and that it is therefore not possible to annul it in part.

In that context, the Court recalls that review of whether the contested provisions are severable requires consideration of their scope, in order to be able to assess objectively whether their annulment would alter the spirit and substance of the act at issue. In that regard, it notes that the substance of the contested decision consists of the accession of the European Union to the Geneva Act, approved on behalf of the European Union pursuant to Article 1 of that decision. By contrast, the provisions which the Commission seeks to have annulled intend to enable Member States which wish to do so to ratify or accede to the Geneva Act alongside the European Union. The Court notes that neither the situation where no Member State exercises that option nor the consequences flowing from it affects the legal scope of Article 1 of the contested decision or calls into question the accession of the European Union to the Geneva Act. The Court states that the fact that the Commission requested the temporary maintenance, from the date of delivery of the judgment to be delivered, of the effects of the parts of the contested decision which it seeks to have annulled as regards the Member States which are parties to the Lisbon Agreement has no bearing on the severability of the provisions of the contested decision whose annulment is sought.

As to the substance, the Court examines the main plea, alleging that, in amending the Commission’s proposal by adding a provision authorising Member States which wish to do so to ratify or accede to the Geneva Act, the Council acted outside any Commission initiative, thereby infringing Article 218(6) and Article 293(1) TFEU and distorting the institutional balance established by Article 13(2) TEU.

In the first place, the Court concludes that Article 293(1) TFEU is applicable where the Council, acting on a proposal from the Commission as negotiator designated by it pursuant to Article 218(3) TFEU, adopts a decision concluding an international agreement under Article 218(6) TFEU.

In the second place, the Court examines the argument alleging breach of Article 293(1) TFEU.

To that end, it recalls, first, that that provision must be read in the light of the principle of institutional balance, characteristic of the institutional structure of the European Union, which requires that each of the institutions must exercise its powers with due regard for the powers of the other institutions, as well as the principle of mutual sincere cooperation between those institutions. (
[8](#t-ECR_62020CJ0024_RES_EN_01-E0008)
) In that regard, EU acts other than legislative acts, such as the contested decision concluding the international agreement at issue, are adopted on the basis of a Commission proposal. Under that power of initiative, the Commission promotes the general interest of the European Union and takes appropriate initiatives to that end. Article 293 TFEU, by providing, on the one hand, for a power of amendment of the proposal by the Council requiring unanimity, subject to certain exceptions, and, on the other hand, for the Commission’s power to amend its proposal as long as the Council has not acted, ensures observance of the principle of institutional balance between the Commission’s powers and those of the Council. Thus, the Council’s power of amendment cannot extend to enabling it to distort the Commission’s proposal in a manner which would prevent the objectives pursued from being achieved and deprive it of its raison d’être.

Accordingly, the Court then ascertains whether the amendment made by the Council has distorted the subject matter or objective of the Commission’s proposal in a manner which would prevent the objectives pursued by it from being achieved.

It recalls in that regard that the subject matter of that proposal consisted of the accession of the European Union alone to the Geneva Act and that its objective was to enable the European Union to exercise properly its exclusive competence for the area covered by that act, namely the common commercial policy, based on uniform principles and conducted within the framework of the principles and objectives of the European Union’s external action, which covers the negotiation of the Geneva Act.

The Court states, moreover, that when the Treaties confer on the European Union exclusive competence in a specific area, only the European Union may legislate and adopt legally binding acts, expect where the Member States are empowered to do so by the European Union. (
[9](#t-ECR_62020CJ0024_RES_EN_01-E0009)
) In addition, the principle of conferral of powers and the institutional framework defined in the EU Treaty to enable the European Union to exercise the powers conferred on it by the Treaties are specific characteristics of the European Union and of its law relating to the constitutional structure of the European Union.

The Court finds that, by deciding to empower Member States to ratify or accede to the Geneva Act, the Council expressed a political choice alternative to the Commission’s proposal, which affects the modalities for the exercise of an exclusive competence conferred on the European Union, while such a choice forms part of the Commission’s assessment of the general interest of the European Union, an assessment to which the Commission’s power of initiative is inextricably linked.

The Court concludes that that empowerment by the Council distorts the subject matter and objective of the Commission’s proposal, expressing its political choice to allow the European Union alone to accede to the Geneva Act and thus to exercise alone its exclusive competence in the area covered by that act.

In addition, it adds that that conclusion cannot be called into question by the fact that the authorisation provided for in Article 3 of the contested decision was granted subject to full respect of the exclusive competence of the European Union and that, in accordance with Article 4 of that decision, in order to ensure unity in the international representation of the European Union and its Member States, the Council had entrusted the Commission with the representation of the European Union and that of any Member State wishing to avail itself of that authorisation. Despite that framework, by availing themselves of that authorisation, those States, as independent subjects of international law alongside the European Union, would exercise an exclusive competence of the latter, precluding it from exercising that competence alone.

Finally, the arguments relating to the need to ensure that the European Union has voting rights in the Assembly of the Special Union and to preserve the seniority and continuity of the protection of appellations of origin registered under the Lisbon Agreement in the seven Member States which were already parties thereto cannot justify the Council’s amendment. The Court holds that any difficulty which the European Union may encounter at international level in the exercise of its exclusive competence or the consequences of that exercise on the international commitments of the Member States would not, as such, authorise the Council to amend a Commission proposal to the point that it distorts its subject matter or objective, thereby infringing the principle of institutional balance which Article 293 TFEU seeks to ensure.

---

(
[1](#c-ECR_62020CJ0024_RES_EN_01-E0001)
) Council Decision (EU) of 7 October 2019 on the accession of the European Union to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications ([OJ 2019 L 271, p. 12](./../../../legal-content/EN/AUTO/?uri=OJ:L:2019:271:TOC); ‘the contested decision’).

(
[2](#c-ECR_62020CJ0024_RES_EN_01-E0002)
) Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications ([OJ 2019 L 271, p. 15](./../../../legal-content/EN/AUTO/?uri=OJ:L:2019:271:TOC); ‘the Geneva Act’).

(
[3](#c-ECR_62020CJ0024_RES_EN_01-E0003)
) The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration was signed on 31 October 1958, revised in Stockholm on 14 July 1967 and amended on 28 September 1979 (United Nations Treaty Series, vol. 828, No 13172, p. 205; ‘the Lisbon Agreement’).

(
[4](#c-ECR_62020CJ0024_RES_EN_01-E0004)
) The Paris Convention for the Protection of Industrial Property was signed in Paris on 20 March 1883, last revised in Stockholm on 14 July 1967 and amended on 28 September 1979 (United Nations Treaties Series, vol. 828, No 11851, p. 305).

(
[5](#c-ECR_62020CJ0024_RES_EN_01-E0005)
) Commission Proposal of 27 July 2018 for a Council Decision on the accession of the European Union to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications (document COM(2018) 350 final).

(
[6](#c-ECR_62020CJ0024_RES_EN_01-E0006)
) Article 207 TFEU.

(
[7](#c-ECR_62020CJ0024_RES_EN_01-E0007)
) Article 218(6)(a) TFEU.

(
[8](#c-ECR_62020CJ0024_RES_EN_01-E0008)
) Principles set out in Article 13(2) TEU.

(
[9](#c-ECR_62020CJ0024_RES_EN_01-E0009)
) Article 2(1) TFEU.

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