CELEX: 62003CC0094
Language: en
Date: 2005-05-26
Title: Opinion of Advocate General Kokott delivered on 26 May 2005. # Commission of the European Communities v Council of the European Union. # Action for annulment - Council Decision 2003/106/EC concerning the approval of the Rotterdam Convention - Prior Informed Consent Procedure - Hazardous chemicals and pesticides in international trade - Choice of legal basis - Articles 133 EC and 175 EC. # Case C-94/03.

OPINION OF ADVOCATE GENERAL
      KOKOTT
      delivered on 26 May 2005 1(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 (2) (‘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 (3) 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 (4) is under examination. The purpose of that regulation is not least to implement the Convention within the Community. (5)
      
      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 (6) (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’. (7)
      
      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. (8) 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. (9) 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. (10) 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)
      
      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. (12)
      
      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. (13) 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. (14) The question whether the Community may even at that time, under the ‘AETR line of case-law’, (15) have had exclusive competence to conclude the Convention (16) 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. (17) It determines not only the legislative procedure applicable (rights of the Parliament to participate, unanimity or qualified
         majority in the Council (18)) 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. (19)
      
      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. (20)
      
      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. (21)
      
      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, (22) external and security policy, (23) protection of the environment  (24) or protection of health. (25) 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. (26) 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. (27)
      
      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. (28) 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. (29) 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’. (30)
      
      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 (31) 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 (32) 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. (33) 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’. (34)
      
      36.      International trade in certain chemicals which the Contracting Parties have agreed to classify as hazardous (35) 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, (36) but only the exchange of information by the Contracting Parties on their import practices (Article 10(7) and (10) of the
         Convention (37)) 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)
      
      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)
      
      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 (40) in relation to the origin of imported hazardous chemicals and an obligation of equal treatment with domestic hazardous chemicals (41) (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. (42) 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. (43)
      
      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). (44) 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 (45) and Chapter 19 of Agenda 21 (46) are expressly referred to in the Convention. (47) 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. (48) Within the Community, the Sixth Environment Action Programme of 22 July 2002 is of importance; (49) that programme, which for its part was based on Article 175 EC, thematically shows numerous points of contact with the Convention (50) and includes swift ratification of the Convention among the priority actions of the Community’s environmental policy. (51)
      
      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. (52) 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 (53) than with the Energy Star Agreement. (54) It was therefore correct to base the approval of the Convention on Article 175(1) EC, not on Article 133 EC. (55)
      
      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. (56) 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. (57)
      
      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 (58) 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. (59) It is true that in the field of commercial policy agreements the Parliament is generally only informed (60) 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 (61) 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. (62) 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 (63) 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. (64)
      
      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. (65) For the common commercial policy (Article 133 EC) the Community indeed has exclusive competence, (66) whereas in environmental policy (Article 175 EC) it shares its competence in principle with the Member States; (67) 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. (68) 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.
      
      1 –	 Original language: German.
      
      2 –	Text in OJ 2003 L 63, p. 29 et seq.
      
      3 –	Commission v Parliament and Council. See also my Opinion of today’s date in that case, [2005] ECR I‑0000.
      
      4 –	OJ 2003 L 63, p. 1, ‘Regulation No 304/2003’.
      
      5 –	See, for instance, the third recital in the preamble to Regulation No 304/2003 and Article 1(1)(a) of the regulation.
      
      6 –	OJ 2003 L 63, p. 27.
      
      7 –	Chemicals within the meaning of the Convention are to be understood as including pesticides, in accordance with Article
         2(a) of the Convention.
      
      8 –	Chemicals can be added to or removed from this list by the Conference of the Parties on the recommendation of a Chemical
         Review Committee (Articles 7 and 8 in conjunction with Article 5(5) and (6) of the Convention).
      
      9 –	In a statement on its import practice, a Party can consent to import of the chemical concerned, consent to import only
         subject to specified conditions, or not consent, or give only an interim response (Article 10(4) of the Convention). Such
         statements are exchanged by means of the joint Secretariat (Article 10(7) and (10)).
      
      10 –	This information is notified through the joint Secretariat and must contain certain information defined in more detail
         in Annex I to the Convention on the characteristics of the substance in question, in particular its physico-chemical, toxicological
         and ecotoxicological properties, and on the environmental and health policy reasons for such bans or restrictions.
      
      11 –	This concerns not only the export of chemicals which are subject to the PIC procedure under Annex III to the Convention,
         but also the export of chemicals which are banned or severely restricted in the territory of the Contracting Party in question.
         The Parties may also extend this rule to other chemicals which are subject to labelling requirements under their national
         law.
      
      12 –	COM (2001) 802 final (OJ 2002 C 126 E, p. 274). At the same time the Commission submitted its proposal for a Council Regulation
         concerning the export and import of dangerous chemicals, based on Article 133 EC (OJ 2002 C 126 E, p. 291).
      
      13 –	Text in OJ 2002 L 63, p. 47.
      
      14 –	See in this respect the summary of ratifications available on the internet site of the Convention at http://www.pic.int/en/ViewPage.asp?id=265
         (last visited on 1 February 2005).
      
      15 –	On the present state of the case-law which started with the judgment in Case 22/70 Commission v Council (‘AETR’ or ‘ERTA’) [1971] ECR 263, paragraph 22, see in particular Opinion 2/91 [1993] ECR I‑1061, paragraph 9, and Opinion 2/00 (‘Cartagena Protocol on Biosafety’) [2001] ECR I‑9713, paragraphs 45 to 47, and the ‘Open Skies’ judgments in Case C‑467/98 Commission v Denmark [2002] ECR I‑9519, paragraphs 82 to 84, Case C‑468/98 Commission v Sweden [2002] ECR I‑9575, paragraphs 78 to 80, Case C‑469/98 Commission v Finland [2002] ECR I‑9627, paragraphs 82 to 84, Case C‑471/98 Commission v Belgium [2002] ECR I‑9681, paragraphs 95 to 97, Case C‑472/98 Commission v Luxembourg [2002] ECR I‑9741, paragraphs 88 to 90, Case C‑475/98 Commission v Austria [2002] ECR I‑9797, paragraphs 97 to 99, and Case C‑476/98 Commission v Germany [2002] ECR I‑9855, paragraphs 108 to 110. 
      
      16 –	On the secondary legislation in existence at that time, see in particular Council Regulation (EEC) No 2455/92 of 23 July
         1992 concerning the export and import of certain dangerous chemicals (OJ 1992 L 251, p. 13), by which the Community inter
         alia already adopted a (then still voluntary) PIC procedure. That regulation is the predecessor of Regulation No 304/2003
         now in force.
      
      17 –	Opinion 2/00, cited in note 15, paragraph 5.
      
      18 –	See, for example, Case C‑211/01 Commission v Council (‘Carriage of Goods’) [2003] ECR I‑8913, paragraph 52.
      
      19 –	See, for example, Opinion 1/94 (‘WTO’) [1994] ECR I‑5267 and Opinion 2/00, cited in note 15.
      
      20 –	Case C‑268/94 Portugal v Council [1996] ECR I‑6177, paragraph 22, Case C‑36/98 Spain v Council (‘Danube Protection Convention’) [2001] ECR I‑779, paragraph 58, Case C‑281/01 Commission v Council (‘Energy Star’) [2002] ECR I‑12049, paragraph 33, the Carriage of Goods judgment, cited in note 18, paragraph 38, and Opinion 2/00, cited in note 15, paragraph 22. A fundamental judgment as early
         as 1991 was Case C‑300/89 Commission v Council (‘Titanium Dioxide’) [1991] ECR I‑2867, paragraph 10.
      
      21 –	Energy Star, cited in note 20, paragraph 34, Danube Protection Convention, cited in note 20, paragraph 59, and Carriage of Goods, cited in note 18, paragraph 39; Opinion 2/00, cited in note 15, paragraph 23. A fundamental judgment as early as 1993 was
         Case C‑155/91 Commission v Council (‘Waste Directive’) [1993] ECR I‑939, paragraphs 19 and 21.
      
      22 –	Case 45/86 Commission v Council [1987] ECR 1493, paragraphs 17 to 21. See also the Opinion of Advocate General Lenz in that case, especially point 62.
      
      23 –	Case C‑70/94 Werner [1995] ECR I‑3189, paragraph 10, and Case C‑124/95 Centro-Com [1997] ECR I‑81, paragraph 26.
      
      24 –	Case C‑62/88 Greece v Council (‘Chernobyl’) [1990] ECR I‑1527, paragraphs 15 to 19, and Energy Star, cited in note 20, paragraphs 39 to 43.
      
      25 –	To that effect, but with reference to the relationship between internal market provisions and health policy, Case C‑376/98
         Germany v Parliament and Council [2000] ECR I‑8419, paragraph 88, Case C‑434/02 Arnold André [2004] ECR I‑0000, paragraphs 32 to 34, and Case C‑210/03 Swedish Match [2004] ECR I‑0000, paragraphs 31 to 33. These considerations are transferable to the relationship between the common commercial
         policy and health policy.
      
      26 –	Settled case-law; see Opinion 1/78 (‘Natural Rubber’) [1979] ECR 2871, paragraphs 44 and 45, Opinion 1/94, cited in note 19, paragraph 41, and Case 45/86 Commission v Council, cited in note 22, paragraph 19.
      
      27 –	Opinion 2/00, cited in note 15, especially paragraphs 25 and 40 to 44. The Court has similarly drawn a line between Article
         95 EC (formerly Article 100a of the EEC Treaty) and Article 175 EC (formerly Article 130s of the EEC Treaty). In its view,
         ‘the mere fact that the establishment or functioning of the internal market is affected is not sufficient for Article 100a
         of the Treaty to apply. It appears from the Court’s case-law that recourse to Article 100a is not justified where the measure
         to be adopted has only the incidental effect of harmonising market conditions within the Community’, see the Waste Directive judgment, cited in note 21, paragraph 19, and to the same effect Case C‑187/93 Parliament v Council [1994] ECR I‑2857, paragraph 25.
      
      28 –	Energy Star, cited in note 20, paragraphs 40 in fine and 41 in fine. The Court had already similarly distinguished, for example, cultural
         policy (formerly Article 128 of the EC Treaty) and industrial policy (formerly Article 130 of the EC Treaty): Case C‑42/97
         Parliament v Council [1999] ECR I‑869, paragraph 63.
      
      29 –	Energy Star, cited in note 20, paragraphs 40, 41, 43 and 48, and Opinion 2/00, cited in note 15, paragraphs 40 and 42 to 44.
      
      30 –	To that effect, Opinion 2/00, cited in note 15, paragraph 37 in fine; emphasis added. Instruments of commercial policy
         by no means always have the sole object of promoting or facilitating trade; rather, Article 133 EC also permits classic (protective) measures of commercial policy that may amount to restricting
         or even prohibiting the import or export of certain products, for instance if anti-dumping duties or a trade embargo is imposed
         (on the latter, see, for example, Centro-Com, cited in note 23).
      
      31 –	See in particular the second, eighth and ninth recitals in the preamble to the Convention; similarly, incidentally, the
         third recital in the preamble to the contested Council Decision 2003/106/EC.
      
      32 –	See in particular the 1st, 2nd, 6th, 7th, 8th, 9th and 11th recitals in the preamble to the Convention; similarly, incidentally,
         the third recital in the preamble to the contested Council Decision 2003/106/EC
      
      33 –	Opinion 2/00, cited in note 15, paragraph 33.
      
      34 –	Thus stated in paragraph 19.33 of ‘Agenda 21’, introducing the section in which the PIC procedure is particularly emphasised
         as an instrument. Agenda 21 was adopted in 1992 at the United Nations Conference on Environment and Development – the ‘Earth
         Summit’ – in Rio de Janeiro (Brazil). The English text may be found at http://www.un.org/esa/sustdev/documents/agenda21/index.htm
         (last visited on 2 March 2005).
      
      35 –	These chemicals are listed in Annex III to the Convention.
      
      36 –	The Convention differs in this respect from, for example, the Agreements on the Application of Sanitary and Phytosanitary
         Measures (SPS) and on Technical Barriers to Trade (TBT), annexed to the WTO Agreement. The SPS Agreement ‘is confined … to
         “the establishment of a multilateral framework of rules and disciplines to guide the development, adoption and enforcement
         of sanitary and phytosanitary measures in order to minimise their negative effects on trade”’, while the provisions of the TBT Agreement are ‘designed merely to ensure that technical regulations and standards and
         procedures … do not create unnecessary obstacles to international trade’ (Opinion 1/94, cited in note 19, paragraphs 31 and 33, emphasis added).
      
      37 –	Article 5 of the Convention contains a further element of exchange of information.
      
      38 –	In this connection, Agenda 21 (cited in note 34) says in paragraph 19.35: ‘The export to developing countries of chemicals
         that have been banned in producing countries or whose use has been severely restricted in some industrialised countries has
         been the subject of concern, as some importing countries lack the ability to ensure safe use, owing to inadequate infrastructure for controlling the importation, distribution, storage, formulation and disposal of chemicals’
         (emphasis added).
      
      39 –	See, for instance, Article 7 of Regulation No 304/2003, especially paragraphs 1 and 7.
      
      40 –	To simplify: the same conditions or prohibitions must apply to the import of hazardous chemicals, regardless of the country
         of origin.
      
      41 –	To simplify: if the import of hazardous chemicals is subject to restrictions, such restrictions must apply also to domestic
         industry.
      
      42 –	The present case differs in this respect from the Energy Star case (cited in note 20, especially paragraph 40), which concerned a labelling programme intended essentially to enable manufacturers,
         on the basis of a mutual recognition procedure, to use a common logo to identify certain products for consumers.
      
      43 –	As the Commission correctly observes, measures of environment policy can also have the effect of restricting trade and
         must be examined in that respect as to their justification in the context, for instance, of the General Agreement on Tariffs
         and Trade (GATT). That does not, however, mean that the measures themselves are not of an environmental character.
      
      44 –	Third recital in the preamble to the Convention.
      
      45 –	The Rio Declaration on Environment and Development is available at http://www.un.org/esa/sustdev/documents/agenda21/index.htm
         (last visited on 2 March 2005) as Annex I to the Report of the United Nations Conference on Environment and Development (document
         A/CONF.151/26 (Vol. I)).
      
      46 –	Chapter 19 of Agenda 21 (cited in note 34) is headed ‘Environmentally sound management of toxic chemicals, including prevention
         of illegal international traffic in toxic and dangerous products’. In Section C, ‘Information exchange on toxic chemicals
         and chemical risks’, the PIC procedure is emphasised particularly (paragraphs 19.36 and 19.37).
      
      47 –	Second recital in the preamble to the Convention.
      
      48 –	Point 23(a) of the Plan of Implementation, available at http://www.johannesburgsummit.org (last visited on 2 March 2005)
         as part of the Report of the World Summit on Sustainable Development (document A/CONF.199/20).
      
      49 –	OJ 2002 L 242, p. 1.
      
      50 –	Such as risk assessment and risk management in dealing with chemicals and public access to information (Article 7(2)(b)
         of the Sixth Environment Action Programme).
      
      51 –	Article 7(2)(d), first indent, of the Sixth Environment Action Programme.
      
      52 –	On the criterion of direct (and immediate) as opposed to indirect (and long-term) effects, see point 30 above.
      
      53 –	The subject of Opinion 2/00, cited in note 15. Merely as an example, it may be mentioned that the chapters of Agenda 21
         (Chapter 15, Chapter 19) in whose context the Cartagena Protocol and the Rotterdam Convention – at issue in the present case
         – respectively fall both belong to Section II of Agenda 21, which is headed ‘Conservation and management of resources for
         development’.
      
      54 –	The subject of the Energy Star judgment, cited in note 20.
      
      55 –	In so far as the Convention also serves the protection of human health, it does not require a separate legal basis in addition to Article 175(1) EC. As follows from the second indent of Article
         174(1) EC, the Community’s environmental policy contributes also to the protection of human health.
      
      56 –	On this point, see point 18 above. The possibility of an exclusive external jurisdiction of the Community in environmental
         policy is also recognised by Opinion 2/00, cited in note 15, paragraphs 45 and 46.
      
      57 –	Opinion 2/00, cited in note 15, paragraph 23, last sentence, Energy Star, cited in note 20, paragraphs 35 and 39, and Carriage of Goods, cited in note 18, paragraph 40. See also Titanium Dioxide, cited in note 20, paragraphs 13 and 17.
      
      58 –	In support of this argument, on a superficial view, the eighth recital in the preamble to the Convention and the third
         recital in the preamble to the contested decision of the Council might perhaps be adduced, in which commercial policy and
         environmental policy are mentioned alongside each other in the same breath and apparently with equal status.
      
      59 –	Cumulation of different legal bases is excluded, according to the case-law, if the procedures laid down for them are incompatible
         with each other; see Titanium Dioxide, cited in note 20, paragraphs 17 to 21, Joined Cases C‑164/97 and C‑165/97 Parliament v Council [1999] ECR I‑1139, paragraph 14, and Case C-338/01 Commission v Council [2004] ECR I‑0000, paragraph 57. It may be concluded from this line of authority that a combination of two legal bases is
         possible at most where they both lay down the same legislative procedure, or at least compatible legislative procedures; see
         to that effect also Joined Cases C‑184/02 and C‑223/02 Spain and Finland v European Parliament and Council [2004] ECR I-0000, paragraphs 42 to 44.
      
      60 –	Framework Agreement of 5 July 2000 on relations between the European Parliament and the Commission, in force at the time
         of approval of the Convention; see in particular Annex 2, ‘Forwarding to the European Parliament information on international
         agreements and enlargement, and involvement of the European Parliament in this respect’, OJ 2001 C 121, p. 122 et seq., especially
         p. 128.
      
      61 –	For example – in relation to other legal bases – Case 165/87 Commission v Council [1988] ECR 5545, paragraph 20, according to which a consultation of the Parliament, which the Council is entitled to do at
         any time, cannot be regarded as unlawful, even if it is not mandatory. Nothing to contradict that follows from Case C‑316/91
         Parliament v Council [1994] ECR I‑625, paragraph 16, second sentence: the Court admittedly states in that judgment that optional consultation of the Parliament cannot take the place of mandatory consultation, but that does not affect the possibility of optional consultation wherever the Treaty does not prescribe any
         (mandatory) consultation at all.
      
      62 –	In its recent judgment in Swedish Match, cited in note 25, paragraph 44, the Court stated that the incorrect reference to Article 133 EC as an additional legal basis of an act does not as such lead to its being invalid; see also Case C‑491/01 British American Tobacco [2002] ECR I‑11453, paragraph 98.
      
      63 –	Thus – concerning the incorrect use of a dual legal basis – Swedish Match, cited in note 25, paragraph 44; see also Spain and Finland v Parliament and Council, cited in note 59, paragraph 44, Case 165/87 Commission v Council, cited in note 61, paragraph 19, Case 45/86 Commission v Council, cited in note 22, paragraphs 12 and 22, and Titanium Dioxide, cited in note 20, paragraphs 18 to 20 and 25.
      
      64 –	See also point 51 above.
      
      65 –	Article 133(3) EC in conjunction with the second sentence of Article 300(1) EC.
      
      66 –	Opinion 1/75 (‘Local Cost’) [1975] ECR 1355, p. 1363 et seq., Case 41/76 Donckerwolcke [1976] ECR 1921, paragraph 32, Opinion 2/91, cited in note 15, paragraph 8, and Opinion 1/94, cited in note 19, paragraph
         34.
      
      67 –	In certain cases, however, exclusive competence may appear in this field too, in particular under the AETR line of case-law
         cited in note 15. The possibility of exclusive competence of the Community in environmental policy is also recognised by Opinion
         2/00, cited in note 15, paragraphs 45 and 46.
      
      68 –	See, for example, Opinion 1/94, cited in note 19, which distinguishes, with respect to the establishment of the WTO, between
         the GATT, GATS and TRIPS parts and allocates them to different legal bases.