CELEX: 62007CC0370
Language: en
Date: 2009-04-23 00:00:00
Title: Opinion of Advocate General Kokott delivered on 23 April 2009. # Commission of the European Communities v Council of the European Union. # Action for annulment - Establishment of the positions to be adopted on behalf of the Community in a body established by a convention - Obligation to state reasons - Reference to the legal basis - 14th meeting of the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). # Case C-370/07.

OPINION OF ADVOCATE GENERAL
      KOKOTT
      delivered on 23 April 2009 1(1)
      
      Case C‑370/07
      Commission of the European Communities
      v
      Council of the European Union
      (Decision – Decision sui generis – Determination of positions to be represented on behalf of the Community in a body established by a convention – Obligation to state reasons – Reference to legal basis – 14th meeting of the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna
         and Flora (CITES))
      I –  Introduction
      1.        This case concerns the question of when Community measures must refer to their legal basis and what the consequences are of
         the failure to make a reference that is required.
      
      2.        The subject of the application is the decision of the Council of the European Union establishing the position to be adopted
         on behalf of the European Community with regard to certain proposals submitted to the 14th meeting of the Conference of the
         Parties (COP 14) to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (2) of 3 to 15 June 2007. The Commission of the European Communities seeks the annulment of the decision on the ground that the
         Council made no reference in it to any legal basis.
      
      II –  Legal context
      3.        Article 253 EC provides:
      
      ‘Regulations, directives and decisions adopted jointly by the European Parliament and the Council, and such acts adopted by
         the Council or the Commission, shall state the reasons on which they are based and shall refer to any proposals or opinions
         which were required to be obtained pursuant to this Treaty.’
      
      4.        Article 300(2) EC governs inter alia the procedure for defining Community positions to be adopted in bodies of international
         organisations:
      
      ‘Subject to the powers vested in the Commission in this field, the signing, which may be accompanied by a decision on provisional
         application before entry into force, and the conclusion of the agreements shall be decided on by the Council, acting by a
         qualified majority on a proposal from the Commission. The Council shall act unanimously when the agreement covers a field
         for which unanimity is required for the adoption of internal rules and for the agreements referred to in Article 310.
      
      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, 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.
      
      The European Parliament shall be immediately and fully informed of any decision under this paragraph concerning the provisional
         application or the suspension of agreements, or the establishment of the Community position in a body set up by an agreement.’
      
      5.        The contested decision explains the reasons for adopting a common position in recitals 2 to 4 in its preamble:
      
      ‘(2)      Amendments to the Appendices to the Convention and certain resolutions of the Conference of the Parties will generally affect
         the Community legislation concerned and may require amendments thereto.
      
      (3)      Due to the fact that the “Gaborone” amendment to CITES has not entered into force, the Community is not yet a contracting
         party to the Convention.
      
      (4)      In such circumstances, where Community rules have been established for the attainment of the objectives of the Treaty, Member
         States cannot outside of the framework of the Community institutions assume obligations which might affect those rules or
         alter their scope.’
      
      6.        The decision determines, in its two articles:
      
      ‘Article 1
      The position of the Community, as regards areas within the Community’s field of competence, to be expressed by Member States
         acting jointly in the interest of the Community, at CITES COP 14, shall be in accordance with the Annexes to this Decision.
      
      Article 2
      Where new scientific or technical information presented after the adoption of this Decision and before or during COP 14 is
         likely to affect the position referred to in Article 1, or where new proposals are made at that meeting on which there is
         not yet a Community position, the Community position as regards areas within the Community’s field of competence shall be
         established by means of on-the-spot coordination before the COP is called to vote on those proposals.’
      
      III –  Background to the dispute
      7.        The contested decision served, internally within the Community, to prepare the position to be represented by the Member States
         at the 14th meeting of the Conference of the Parties to CITES.
      
      8.        CITES is an international convention. Its aim is to protect endangered species of fauna and flora through controls on international
         trade in specimens of those species. (3)
      
      9.        The European Community has not yet become a party to the convention. (4) Its accession depends on an amendment to CITES which has not yet come into force. At present, therefore, the European Community
         is only an observer at meetings of the Conference of the Parties to CITES. However, since 1982 the Community has autonomously
         adopted measures through which it performs within the Community the obligations of the Member States under CITES as if it
         were itself a contracting party to the convention. (5)
      
      10.      The most recent measure for implementing CITES is Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of
         species of wild fauna and flora by regulating trade therein. (6) It was adopted on the basis of Article 130s(1) of the EC Treaty (now Article 175(1) EC).
      
      11.      The 14th meeting of the Conference of the Parties to CITES took place in The Hague from 3 to 15 June 2007. The subject-matter
         of the meeting included votes on amendments to the appendices to the convention in which the species protected are listed. (7)
      
      12.      On 4 April 2007, the Commission adopted a proposal for a Council decision establishing the position to be adopted on behalf
         of the European Community with regard to certain proposals which were to be submitted for discussion and voting at that meeting. (8) It based that proposal for a decision on Article 175(1) EC (environment), Article 133 EC (commercial policy) and the second
         subparagraph of Article 300(2) EC.
      
      13.      The Council thereupon on 24 May 2007 unanimously adopted the contested decision, which was entitled ‘Council Decision’, (9) but without stating a legal basis. (10)
      
      14.      As the Commission submitted without being contradicted, the Council did not specify a legal basis because agreement could
         not be reached on the legal basis to be stated. Some representatives were said to have opposed the double substantive legal
         basis in the form of Articles 175(1) EC and 133 EC and proposed referring to Article 175(1) EC alone. Others rejected the
         procedural legal basis of the second subparagraph of Article 300(2) EC.
      
      15.      The Commission took the view that a reference to a legal basis was necessary and insisted before the Council decision was
         taken on an express reference to Article 133 EC, Article 175(1) EC and the second subparagraph of Article 300(2) EC.
      
      IV –  Procedure before the Court
      16.      By application of 1 August 2007, the Commission brought an action under Article 230 EC against the ‘Council Decision of 24
         May 2007 establishing the position to be adopted on behalf of the European Community with regard to certain proposals submitted
         to the 14th meeting of the Conference of the Parties (COP 14) to the Convention on International Trade in Endangered Species
         of Wild Fauna and Flora (CITES), The Hague, Netherlands, 3 to 15 June 2007’.
      
      17.      The Commission claims that the Court should:
      
      –        annul that decision; and
      –        order the Council to pay the costs.
      18.      The Council contends that the Court should:
      
      –        dismiss the application;
      –        in the alternative, should the Court annul the contested decision, declare that the effects of the decision are definitive;
         and
      
      –        order the Commission to pay the costs.
      19.      By order of the President of the Court of 20 November 2007, the United Kingdom of Great Britain and Northern Ireland was given
         leave to intervene in support of the Council.
      
      20.      The Commission’s action was the subject of a written procedure before the Court, followed by a hearing on 4 March 2009.
      
      V –  Legal assessment
      A –    Admissibility
      21.      The first point to discuss is whether the decision at issue in the present case is in fact an act against which an action
         may be brought under Article 230 EC. This must be examined by the Court of its own motion.
      
      22.      A decision of the Council defining the position of the Community undoubtedly constitutes an act against which an action may be brought under Article 230 EC. Under Article 230 EC, acts of
         the Council are subject to review by the Court, and it is settled case-law that an action for annulment is available against
         all measures of the institutions which are intended to have legal effects, whatever their nature or form. (11)
      
      23.      It is otherwise with a decision of the representatives of the Member States meeting within the Council, by which the Member
         States coordinate their external action. Such a decision does not constitute an act amenable to review under the first paragraph
         of Article 230 EC. (12) It is not an act of the Council but a joint act of representatives of the Member States.
      
      24.      The subject of the present dispute is not the usual case of the determination of a position of the Community in connection with a convention to which the Community is a party. On the contrary, the Community is precisely not a party
         to CITES. Since the Community cannot therefore take part in the CITES meeting as a contracting party, the contested measure
         does not establish the position to be adopted by the Community, but the position to be adopted at the meeting by the Member
         States as the only contracting parties.
      
      25.      In this context, it must be examined whether the present case concerns a measure of the Council or a decision of the representatives
         of the Member States meeting within the Council.
      
      26.      The wording of the contested decision suggests that it is a Council measure. It is explicitly stated that the Council of the
         European Union ‘has decided’. As appears from recital 2 in the preamble to the decision, amendments to CITES may affect the
         relevant legislation of the Community. The decision therefore determines the position to be adopted by the Member States at
         the meeting. Article 1 of the measure then mentions the ‘position of the Community … to be expressed by Member States acting
         jointly in the interest of the Community’.
      
      27.      It follows that the contested measure is a measure of the Council.
      
      28.      Nor is a decision of the Council under the second subparagraph of Article 300(2) EC a purely preparatory act: it forms the
         conclusion of the Community’s internal opinion-forming process. In it the position of the Community is laid down finally and
         with binding effect in the form in which it is to be represented later in international bodies. (13) Since it instructs the Member States as to the positions they are to represent at the 14th meeting of the Conference of the
         Parties to CITES, it consequently also has binding legal effects. It is therefore an act against which an action may be brought
         under Article 230 EC.
      
      29.      Finally, an observation by the Council should be addressed, namely that the action is inadmissible because the contested measure
         has already produced all its effects and the action has thus become devoid of purpose.
      
      30.      On this point, it should first be pointed out that in the case of a privileged applicant the exercise of the right to bring
         an action does not depend on a need for legal protection being demonstrated. (14)
      
      31.      Even if a need for legal protection were insisted on, that need would exist in the present case. In relation to actions by
         individuals against the Commission, the Court has already established that the applicant’s need for legal protection does
         not cease because a contested decision has already been implemented at the time of bringing the action (15) or because the contested measure is no longer applicable. (16) In such a situation the Court derives the need for legal protection from the fact that the action may be able to prevent
         a repetition of the error of law complained of.
      
      32.      The Commission has indicated in the present case that the action is intended to prevent the Council from adopting similar
         decisions in future that do not refer to their legal basis. It has thereby convincingly argued a risk of repetition.
      
      33.      The Commission’s application is therefore admissible.
      
      B –    Merits
      34.      The Commission’s application is based on a single ground for annulment. The complaint is that the contested decision does
         not state a legal basis. That is said to constitute a breach of essential procedural requirements, in particular the obligation
         to state reasons under Article 253 EC, and to entail the nullity of the measure.
      
      1.      Obligation to state a legal basis
      35.      Article 253 EC provides that regulations, directives and decisions are to state reasons. The obligation to refer to a legal
         basis is part of the obligation to state reasons. (17)
      
      36.      Article 249 EC lists measures which the Community institutions can make use of in order to carry out their tasks. It mentions
         regulations, directives, decisions, recommendations and opinions.
      
      37.      In the present case, the parties disagree as to whether the contested measure, which is entitled ‘Beschluss’ in the German
         version and ‘Decision’ in the English, is a decision sui generis or a decision within the meaning of Article 249 EC which is subject to the obligation to state reasons under Article 253
         EC.
      
      38.      The Commission takes the view that a decision which establishes a position of the Community in accordance with the second
         subparagraph of Article 300(2) EC is a decision within the meaning of Article 249 EC and is therefore also subject to the
         obligation to state reasons under Article 253 EC.
      
      39.      The Council, on the other hand, takes the view that Article 253 EC does not apply to a measure such as the one at issue here.
         The establishment of a position in accordance with the second subparagraph of Article 300(2) EC is a decision sui generis which is not a decision within the meaning of Article 249 EC and does not therefore fall within the scope of Article 253
         EC. There is thus no obligation for the contested decision to state reasons.
      
      40.      The Commission pleads in support of its view essentially that in most language versions of the Treaty the term used to designate
         the measure in the second and third subparagraphs of Article 300(2) EC is one of the measures listed in Article 253 EC which
         require a statement of reasons. Thus the French language version, for example, uses the term ‘décision’ in both provisions,
         and the English language version the term ‘decision’.
      
      41.      The Council, on the other hand, relies on the fact that four language versions of the Treaty use different terms. In the German
         version, Article 253 EC uses the term ‘Entscheidung’, while the second and third subparagraphs of Article 300(2) EC speak
         of a ‘Beschluss’. The Danish version distinguishes between ‘beslutning’ and ‘afgørelse’, the Dutch between ‘beschikking’ and
         ‘besluit’, and the Slovene, finally, between ‘odločba’ and ‘sklep’. The Council regards the terminological differentiation
         in four language versions as evidence to show that the establishment of a position in accordance with the second subparagraph
         of Article 300(2) EC is a decision sui generis and thus not a decision within the meaning of Articles 249 EC and 253 EC.
      
      42.      The United Kingdom Government refers to the legislative history of Article 300(2) EC to support the view taken by the Council.
         It submits that before the changes made by the Treaty of Nice the Council adopted measures such as the contested measure,
         by which positions of the Community were established, in the form of decisions sui generis. By the amendments the Member States did not intend to replace the adoption of decisions sui generis by decisions within the meaning of Article 249 EC.
      
      43.      The parties are basically arguing on a purely terminological plane, addressing the different language versions of Article
         300(2) EC.
      
      44.      That a majority of the language versions use in Article 300(2) EC the term which also occurs in Articles 249 EC and 253 EC
         is, however, at most some indication that the Commission’s view is correct. (18) But it cannot be decisive: all the language versions must, in principle, be of equal worth. (19) If the different language versions diverge, the need for a uniform interpretation requires their meaning to be ascertained
         by means of systematic and teleological considerations. (20)
      
      45.      The fact, moreover, that it is by no means obvious that a situation such as the one at issue falls within the scope of the
         second subparagraph of Article 300(2) EC at all also speaks against an argument based solely on the terminology of that provision.
         At first sight, the second subparagraph of Article 300(2) EC applies only in connection with agreements to which the Community
         is itself a party. Yet the Community is precisely not a party to CITES. If that provision were not in fact the relevant legal
         basis, an argument which relied, for deriving an obligation to state reasons, solely on the term used in the second subparagraph
         of Article 300(2) EC would lead nowhere.
      
      46.      To establish whether the contested decision required a statement of reasons, it is not therefore possible to focus solely
         on the terminology of Article 300(2) EC. Instead, it is the substantive criteria which a measure must satisfy in order to
         be classified as a decision within the meaning of Articles 249 EC and 253 EC, for which a statement of reasons is required,
         which are decisive.
      
      47.      Substantively, a ‘decision’ within the meaning of Article 249 EC is characterised by having binding and direct legal effects
         and by specifying an addressee.
      
      48.      The normal case contemplated by the second subparagraph of Article 300(2) EC is characterised by a position of the Community
         being established which the Commission is to represent in a body of an international organisation of which the Community is
         a member. Such a measure thus has no direct addressee, since it merely determines the action of another institution, internally
         within the Community. That suggests that such a measure is not a decision within the meaning of Article 249 EC but a decision
         sui generis.
      
      49.      The present case, by contrast, is characterised by the measure being addressed to the Member States. It determines the position
         to be represented by the Member States, since the Community is not a member of the international organisation, although in the opinion of the Council and the Commission
         it has competence for the convention within the Community. The contested measure is therefore, as the Council also concedes,
         addressed to the Member States. It is thus more like a decision within the meaning of Article 249 EC than the normal case
         under the second subparagraph of Article 300(2) EC.
      
      50.      In the end, however, it can be left open in the present case whether it should be classified as a decision within the meaning
         of Article 249 EC or as a decision sui generis.
      
      51.      Even if it is classified as a decision sui generis, the contested measure is subject to an obligation to state reasons. That obligation derives in terms of legal theory either
         from a broad interpretation of the term ‘decision’ in Article 253 EC or from its application by analogy. The obligation to
         state reasons, which exists as a matter of principle, must be distinguished from the extent of the obligation (mere reference
         to the legal basis or more extensive reasons), which I will examine further below.
      
      52.      The obligation to state reasons laid down in Article 253 EC requires that all the measures mentioned in that provision contain
         an account of the reasons why the institution adopted the measure. The Court regards the obligation enshrined in Article 253
         EC primarily as intended to enable the Court to exercise its function of review. (21) In addition, the Member States and the persons concerned are to learn of the conditions under which the Community institutions
         have applied the Treaty. (22)
      
      53.      The justification of the obligation to state reasons as enabling the fullest possible judicial review applies, however, not
         only to decisions within the meaning of Article 249 EC but also to a measure such as the contested measure which produces
         binding legal effects.
      
      54.      The Court has interpreted Article 230 EC to the effect that an action for annulment lies against all measures of the institutions which are intended to produce legal effects, regardless of their nature or form. (23) It is therefore logical, as a parallel, also to subject those measures to an obligation to state reasons, in order to enable
         the Court to exercise its power of review. Thus the only measures listed in Article 249 EC that are not caught by Article
         253 EC are those which do not produce binding legal effects, namely recommendations and opinions. From that it may be concluded
         that the application of Article 253 EC, like Article 230 EC, might depend on whether a measure produces binding legal effects.
         Decisions sui generis which have legal effects thus also require reasons to be stated.
      
      55.      Reference to a legal basis, as a minimum requirement for a statement of reasons, is also necessary to observe the principle
         of limited specific competence laid down in the first paragraph of Article 5 EC. That principle states that the Community
         acts only within the limits of the powers conferred on it and the objectives assigned to it, and applies both to internal
         and to international Community action. (24) Without the obligation to refer to a legal basis, there could be a risk, where the legal basis is unclear, of the Community
         appropriating to itself powers which really belong to the Member States. The obligation to state reasons also has a warning
         function in such cases. It forces the competent institutions to visualise, before adopting a measure, whether the Community
         has competence in the first place.
      
      56.      Reference to the legal basis is also necessary for the protection of decision-making in the Council. The first subparagraph
         of Article 300(2) EC provides for a decision by a qualified majority unless the agreement covers a field for which unanimity
         is required for the adoption of internal rules. The method of voting thus depends on the relevant legal basis. The obligation
         to specify that legal basis expressly therefore ensures that the Council determines the legal basis and hence the method of
         voting before the decision is taken. That is all the more important in that the method of voting can also affect the content
         of the decision. Unanimity brought about as a precaution may lead to the adoption of a mere minimum consensus and thus to
         a different outcome from a decision taken by a qualified majority.
      
      57.      An obligation to state reasons is also supported by the principle of transparency. This is expressed in the second paragraph
         of Article 1 EU, which states that decisions are to be taken as openly as possible. As the Court has held in connection with
         Regulation No 1049/2001, (25) the principle of transparency is of particular relevance where the Council is acting in its legislative capacity. (26) Transparency in that respect contributes to strengthening democracy by allowing citizens to scrutinise all the information
         which has formed the basis of a legislative act. (27)
      
      58.      Taking decisions as transparently as possible includes stating the legal basis of a measure. The principle of transparency
         can be adduced in the present context too, even though measures such as the present one are not always published. It may be
         that the Council declines to publish at first, in order not to weaken the Community’s negotiating position by disclosing its
         position. As the Council explained at the hearing, however, that does not mean that the measure cannot be supplied to individuals
         on request. It would be enough to safeguard the Community’s negotiating position, moreover, if such measures were published
         only after the meetings were over.
      
      59.      The Council relies on the Court’s ERTA judgment in arguing against an obligation to state reasons for measures sui generis. The Commission regards that judgment as not relevant, since it concerned only ‘certain procedures’ in the Council, not a
         measure comparable to the measure at issue in the present case.
      
      60.      The ERTA case was an action brought by the Commission against a decision of the Council. The decision concerned the negotiation and
         conclusion of the European Road Transport Agreement by the Member States of the Community under the auspices of the United
         Nations Economic Commission for Europe. By that decision, the Council, ‘after an exchange of views between its members and
         the representative of the Commission, reached a number of “conclusions” on the attitude to be taken by the Governments of
         the Member States in the decisive negotiations on [ERTA]’. (28) At first sight, then, there is a certain resemblance between the facts behind the ERTA judgment and those of the present case.
      
      61.      However, the formulation of the judgment at this point shows that the Court took great care not to make a statement of principle
         but to decide only the specific case. That case was characterised by the fact that a Commission representative was present
         at the discussions in the Council, so that the Commission as the only third party affected (29) already had full information on how the measure came into being.
      
      62.      However, if the measure at issue in the present case had the second subparagraph of Article 300(2) EC as its legal basis,
         there would be a third party who was not involved in the creation of the measure and therefore had an interest in a statement
         of reasons for the measure, or at least an indication of the legal basis.
      
      63.      That is because the third subparagraph of Article 300(2) EC obliges the Council to inform the Parliament immediately and fully
         of any decision taken. The contested decision would have had to be transmitted to the Parliament immediately. Specifying the
         legal basis would also be required so that the Parliament’s rights of information would appear clearly, thereby making it
         possible effectively to review the observance of those rights. Moreover, as in the present case the Council did not transmit
         the measure to the Parliament until six weeks after its adoption and simultaneously with the opening of the CITES meeting,
         the requirement of immediate information in accordance with the third subparagraph of Article 300(2) EC was not satisfied.
      
      64.      Contrary to the Council’s view, therefore, it is not only the Member States which were affected by the contested measure.
      
      65.      The Court also, in a later judgment, defined the extent of the obligation to state reasons with respect to a Commission communication
         which required the Member States annually to report to the Commission, on a general, systematic basis, data relating to the
         financial relations of a particular category of undertakings. It held that the requirement of legal certainty meant that the
         binding nature of any measure intended to have legal effects must be derived from a provision of Community law which prescribes
         the legal form to be taken by that measure and which must be expressly indicated in it as its legal basis. (30)
      
      66.      I must now address an objection by the United Kingdom relating to the practicability of an obligation to state reasons. The
         United Kingdom argues that the imposition of an obligation to state reasons for measures such as the present one would make
         their adoption too cumbersome and inflexible. The Council points out in this connection that only two months were available
         for the adoption of the contested measure, between the proposal by the Commission and the date of the meeting.
      
      67.      Those objections may be accepted in so far as flexibility of action is of great importance in the context of external trade.
         Difficulties that may arise in that connection can, however, be countered by flexible requirements as to the extent of the
         obligation to state reasons. Depending on the type of measure and its context, a more or less comprehensive statement of reasons
         may be required. (31) The minimum to be required of a statement of reasons is always, however, a reference to the legal basis. That is unlikely
         ever to cause an excessive burden.
      
      68.      Nor may an exception be made on the ground of pressure of time. The more complex the matter and the more legal bases that
         are possible, the more important and urgent it is to achieve clarity as to the relevant legal bases and the more intensively
         the question must be examined. It follows from the principle of limited specific competence that the Community can act only
         if the Treaty confers power on it to act. It must therefore necessarily clarify before taking action what legal basis gives
         it that power. Mentioning that legal basis in the measure will not then be an excessive burden. Nor could it suffice if –
         as the Council submits – a legal basis were referred to at a later stage in a possible measure transposing amendments to CITES
         within the Community. That would not alter the fact that the Community also requires competence to establish the position
         to be adopted by the Member States at the CITES meeting, and that competence must then be stated in the measure itself. (32)
      
      69.      Finally, I should address the Council’s argument that comparable decisions in the past did not refer to a legal basis either.
         Against that argument based on previous practice, it must be objected that a mere practice on the part of the Council cannot
         alter the rules laid down in the Treaties and consequently cannot create a precedent. (33)
      
      70.      It must be concluded, in summary, that in relation to the contested measure there was an obligation to refer to a legal basis.
      
      2.      Consequences of the failure to refer to a legal basis
      71.      It remains to discuss the consequences for the validity of the measure of the failure to refer to a legal basis.
      
      a)      Can the legal basis be determined from other elements of the measure?
      72.      Failure to refer to a specific provision of the Treaty does not necessarily always constitute a breach of the obligation to
         state reasons under Article 253 EC entailing its invalidity. There is no breach of essential procedural requirements if the
         legal basis of a measure can be ascertained from other elements of the measure. (34)
      
      73.      In the present case, however, the legal basis cannot be ascertained without doubt from other elements of the measure. That
         follows, to begin with, from the mere fact that in the discussions in the Council there was controversy as to the correct
         legal basis and a wide variety of proposals were under discussion. The Commission submits on this point, without being contradicted,
         that a reference to Article 300(2) EC alone as a procedural legal basis, a reference to a substantive legal basis alone, and
         a combination of both were all discussed. The relevant material legal basis, either Article 175 EC alone or Article 175 EC
         in conjunction with Article 133 EC, was also discussed without a conclusion being reached.
      
      74.      In their written submissions to the Court, the Council and the Commission appear to assume that the second subparagraph of
         Article 300(2) EC is the procedural legal basis of the contested measure. That provision lays down the procedure for decisions
         establishing the positions ‘to be adopted on behalf of the Community in a body set up by an agreement, when that body is called
         upon to adopt decisions having legal effects’.
      
      75.      The question also arises in this connection of whether the second subparagraph of Article 300(2) EC applies only to situations
         in which the Community is a party to the international agreement. That view could be supported not least by a systematic interpretation,
         since Article 300(1) EC undoubtedly relates only to the conclusion of international agreements by the Community. In the case
         of CITES, however, it is not the Community itself which is a party, but only the Member States.
      
      76.      A teleological interpretation, on the other hand, suggests that the second subparagraph of Article 300(2) EC must also apply
         to agreements whose subject-matter falls within the competence of the Community, but to which the Community cannot yet become
         a party, because of the form taken by the international agreement.
      
      77.      Precisely because of this problem of interpretation, it cannot be assumed that the relevant legal basis is apparent without
         doubt from the contested measure.
      
      78.      Even on the assumption that the second subparagraph of Article 300(2) EC is the legal basis, it would not be sufficient to
         refer solely to that procedural provision as the legal basis. Rather, the measure also requires a reference to a substantive
         legal basis from which the extent of the Community’s powers and hence ultimately the scope given it by the EC Treaty appear. (35)
      
      79.      However, the substantive legal basis also cannot be derived without doubt from the contested measure, since several legal
         bases are possible in this case. They could be commercial policy, environment policy, or a combination of both. (36)
      
      80.      The legal basis on which it is based cannot therefore be ascertained without doubt from the measure.
      
      b)      Is this no more than a purely formal error?
      81.      The Council considers that, if there is an obligation to state reasons, this should not entail invalidity as it is a purely
         formal defect of the measure.
      
      82.      In cases concerning a reference to an incorrect legal basis in addition to the legal basis that was actually correct, the
         Court has held that this will entail the annulment of the contested measure only if it is more than a purely formal defect,
         in other words, a defect which might affect the applicable procedure and hence ultimately the content of the measure. (37)
      
      83.      That line of case-law can hardly be applied to a case in which no legal basis at all has been stated. If no legal basis is
         mentioned, it is difficult even to establish which procedure was used and hence whether the failure to state the legal basis
         could have affected the applicable procedure. It is therefore correct, at least where the defect in the statement of reasons
         consists in the reference to a legal basis being omitted altogether, to assume that there is a defect that is so essential
         that it should always entail the annulment of the decision. As stated above, the reference to the legal basis is an indispensable
         requirement of the statement of reasons.
      
      84.      Finally, the following consideration also speaks against there being a purely formal error. As regards the substantive legal
         basis for the contested measure, the possibilities are Article 133 EC, Article 175 EC and a combination of the two. Article
         133 EC lays down exclusive competence of the Community, whereas Article 175 EC provides for competence divided between the
         Community and the Member States. Making a choice between those two articles thus affects the distribution of powers between
         the Community and the Member States. For that reason too, the error in the present case cannot be a purely formal error. (38)
      
      3.      Interim conclusion
      85.      It must be concluded, in summary, that the contested measure must be annulled because of the lack of a reference to a legal
         basis.
      
      VI –  Limitation of the effects of an annulment
      86.      The Council has submitted that, in the event that the contested decision is annulled, its effects should be maintained. That
         submission should be accepted.
      
      87.      Under the second paragraph of Article 231 EC, the Court may, if it considers it necessary, state which of the effects of a
         measure it has annulled are to be considered as definitive. That provision, according to its wording, actually relates only
         to regulations, but the Court has applied it by analogy to decisions. (39)
      
      88.      In the present case, maintaining the effects of the contested decision is justified because the 14th meeting of the Conference
         of the Parties to CITES has already taken place and decisions were taken at that meeting. It is true that the binding effect
         in international law of those decisions for the Member States would not be changed by the annulment of a preliminary decision
         establishing the position of the Community, since infringements of internal provisions in the preparation of a position to
         be represented at an international conference are in principle irrelevant, under the general rules of international law. However,
         legal uncertainties could arise within the Community regarding the points adopted at the conference. For the avoidance of
         any legal uncertainty, it is therefore necessary to maintain the effects of the contested decision.
      
      89.      The Council should not, however, be required to adopt a new decision without the errors of law complained of. As the 14th
         meeting of the Conference of the Parties to CITES has already taken place, it would be pointless to require the Council to
         establish again its position for that meeting.
      
      VII –  Costs
      90.      Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if costs have been
         applied for. Since the Council has been entirely unsuccessful and the Commission has applied for an order for costs, the Council
         must be ordered to pay the costs of the proceedings.
      
      91.      Under Article 69(4) of the Rules of Procedure, the United Kingdom as intervener must be ordered to bear its own costs.
      
      VIII –  Conclusion
      92.      On the basis of the above considerations, I propose that the Court should:
      
      (1)      annul the Council Decision of 24 May 2007 establishing the position to be adopted on behalf of the European Community with
         regard to certain proposals submitted to the 14th meeting of the Conference of the Parties (COP 14) to the Convention on International
         Trade in Endangered Species of Wild Fauna and Flora (CITES), The Hague, Netherlands, 3 to 15 June 2007;
      
      (2)      order the effects of that decision to be maintained;
      (3)      order the United Kingdom of Great Britain and Northern Ireland to bear its own costs, and the Council of the European Union
         otherwise to pay the costs of the proceedings.
      
      1 –	Original language: German.
      
      2 –	Washington Convention, referred to below as CITES.
      
      3 –	See recital 1 in the preamble to Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild
         fauna and flora by regulating trade therein (OJ 1997 L 61, p. 1).
      
      4 –	The text of the convention was agreed by 80 States on 3 March 1970. The convention entered into force on 1 July 1975.
      
      5 –	Council Regulation (EEC) No 3626/82 of 3 December 1982 on the implementation in the Community of the Convention on International
         Trade in Endangered Species of Wild Fauna and Flora (OJ 1982 L 384, p. 1).
      
      6 –	Cited in footnote 3.
      
      7 –	See recital 2 in the preamble to the contested decision.
      
      8 –	Proposal for a Council decision establishing the position to be adopted on behalf of the European Community with regard
         to certain proposals submitted to the 14th meeting of the Conference of the Parties (COP 14) to the Convention on International
         Trade in Endangered Species of Wild Fauna and Flora (CITES), The Hague, Netherlands, 3 to 15 June 2007 (SEC(2007) 443 final).
      
      9 –	‘Beschluss des Rates’ in German and ‘Décision du Conseil’ in French.
      
      10 –	The decision was not published in the Official Journal of the European Union.
      
      11 –	See merely Case 22/70 Commission v Council [1971] ECR 263 (‘ERTA’), paragraphs 39 and 42; Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9; and Case C‑521/06 P Athinaïki Techniki v Commission [2008] ECR I‑0000, paragraph 42.
      
      12 –	Compare on this point my Opinion of 26 March 2009 in Case C‑13/07 Commission v Council, point 33 et seq.
      
      13 –	See my Opinion in Case C‑13/07 Commission v Council, cited in footnote 12, point 35.
      
      14 –	Case 45/86 Commission v Council [1987] ECR 1493, paragraph 3.
      
      15 –	Case 53/85 AKZO v Commission [1986] ECR 1965, paragraph 21.
      
      16 –	Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 16.
      
      17 –	See merely Case 45/86 Commission v Council, cited in footnote 14, paragraph 9, and Case 203/86 Spain v Council [1988] ECR 4563, paragraph 36 et seq.
      
      18 –	Thus the Court makes reference to a majority of uniform language versions only as confirmation of an interpretation: see
         Case C‑298/94 Henke [1996] ECR I‑4989, paragraph 15.
      
      19 –	Any other method would be incompatible with the requirement of the uniform application of Community law: see merely Case
         C‑372/88 Cricket St Thomas [1990] ECR I‑1345, paragraph 18.
      
      20 –	See inter alia Case 30/77 Bouchereau [1977] ECR 1999, paragraph 13/14; Case C‑449/93 Rockfon [1995] ECR I‑4291, paragraph 28; Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 28; and Case C‑420/98 W.N. [2000] ECR I‑2847, paragraph 21.
      
      21 –	ERTA, cited in footnote 11, paragraph 11.
      
      22 –	See Case C‑233/94 Germany v ParliamentandCouncil [1997] ECR I‑2405, paragraph 25, referring to Case C‑41/93 France v Commission [1994] ECR I‑1829, paragraph 34.
      
      23 –	See merely ERTA, cited in footnote 11, paragraph 42; IBM v Commission, cited in footnote 11, paragraph 9; and Athinaïki Techniki v Commission, cited in footnote 11, paragraph 42.
      
      24 –	See Opinion 2/94 [1996] ECR I‑1759 (‘ECHR’), paragraph 24.
      
      25 –	Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European
         Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
      
      26 –	Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco v Council [2008] ECR I‑0000, paragraph 46.
      
      27 –	Sweden and Turco v Council, cited in footnote 26, paragraph 46.
      
      28 –	ERTA, cited in footnote 11, paragraph 44.
      
      29 –	At that time, the Parliament had no right to be informed, in contrast to the position under the second subparagraph of
         Article 300(2) EC.
      
      30 –	Case C‑325/91 France v Commission [1993] ECR I‑3283, paragraph 26.
      
      31 –	See Case C‑265/97 P VBA v Florimex and Others [2000] ECR I‑2061; Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑0000, paragraph 166; and Case C‑333/07 Regie Networks [2008] ECR I‑0000, paragraph 63.
      
      32 –	See on this point Case C‑378/00 Commission v Parliament and Council [2003] ECR I‑937, paragraph 66, where the Court held that the statement of reasons for a Community measure must appear in
         that measure itself.
      
      33 –	See merely Case 68/86 United Kingdom v Council [1988] ECR 855, paragraph 24, and Case C‑271/94 Parliament v Council [1996] ECR I‑1689, paragraph 24.
      
      34 –	Case 45/86 Commission v Council, cited in footnote 14, paragraph 9.
      
      35 –	See also my Opinion in Case C‑13/07 Commission v Council, cited in footnote 12, point 47.
      
      36 –	On the question of whether Articles 133 EC and 175(1) EC can be combined, see Case C‑178/03 Commission v Parliament and Council [2006] ECR I‑107, paragraph 59; Case C‑155/07 Parliament v Council [2008] ECR I‑0000, paragraphs 77 to 83; Case C‑94/03 Commission v Council [2006] ECR I‑1, paragraphs 52 to 55; my Opinions in those cases; and the Opinion of Advocate General Poiares Maduro of 26
         March 2009 in Case C‑411/06 Commission v Parliament and Council, point 6.
      
      37 –	See Case 165/87 Commission v Council [1988] ECR 5545, paragraphs 19 and 20, and Case C‑210/03 Swedish Match [2004] ECR I‑11893, paragraph 44 and the case-law cited.
      
      38 –	See on this point the Opinion of Advocate General Poiares Maduro in Case C-411/06 Commission v Parliament and Council, cited in footnote 36, point 7.
      
      39 –	Case C‑22/96 Parliament v Council [1998] ECR I‑3231, paragraph 42, and Case C‑155/07 Parliament v Council, cited in footnote 36, paragraph 87.