CELEX: 62021CC0207
Language: en
Date: 2022-03-10 00:00:00
Title: Opinion of Advocate General Emiliou delivered on 10 March 2022.###

Provisional text
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 10 March 2022(1)

Case C‑207/21 P

European Commission

v

Republic of Poland

(Appeal – Annulment of Implementing Decision (EU) 2017/1442 – Article 16(4) and (5) TEU – Article 3(2) and (3) of Protocol (No 36) on transitional provisions – Application ratione temporis – Council’s voting rules – Qualified majority)

I.      Introduction

1.        The voting arrangements for decision-making in the Council of the European Union have traditionally been regarded as a real brainteaser by everyone except for (relatively few) insiders. Indeed, owing to hard-fought and carefully crafted compromises, those arrangements have,  unfortunately, not been blessed with the virtue of simplicity.

2.        Over the course of the last 70 years, the Council’s voting arrangements have undergone a number of changes, resulting from both express amendments to the Treaties, and from other types of formally  or informally  agreed rules or practices. (2) In particular, the rules on the Council’s voting were once again revised and, to some extent,  simplified with the Treaty of Lisbon. (3)

3.        Put simply, depending on the issue under discussion, the Council takes its decisions either by simple majority, qualified  majority, or unanimously. (4) Qualified majority – which is the most widely used and most significant voting method in the Council – is now defined, subject to exceptions,  as  a double majority. Pursuant to Article 16(4) TEU, qualified  majority is, in most cases, (5) obtained when ‘at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union’ vote in favour of the adoption of the act in question.

4.        However, this double majority system did not become applicable with the entry into force of the Treaty of Lisbon, but only became applicable from 1 November 2014 onwards. Moreover, in conformity with Protocol (No 36) on transitional provisions, (6) during a transitional period – extending from 1 November 2014 to 31 March 2017 – any member of the Council could request that the vote  on an act take  place under the rules laid down in Article 3 thereof, corresponding essentially to the qualified‑majority rules in force under the Treaty of Nice.

5.        The present case concerns the application ratione temporis of that protocol. In a nutshell, the question raised by the present case is whether, in order to be able to benefit from the application of the ‘old’ qualified-majority rules, it was sufficient for a member of the Council to request the application of those rules between 1 November 2014 and 31 March 2017, or whether it was also necessary for the vote  to take place during that period.
II.    EU legal framework

A.      The EU Treaty and Protocol No 36

6.        Article 16(4) and (5) TEU provides:
‘4. As from 1 November 2014, a qualified majority shall be defined as at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union.
A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.
The other arrangements governing the qualified majority are laid down in Article 238(2) [TFEU].
5.  The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions.’

7.        Article 3 of Protocol No 36 states:
‘1. In accordance with Article 16(4) [TEU], the provisions of that paragraph and of Article 238(2) [TFEU] relating to the definition of the qualified majority in the European Council and the Council shall take effect on 1 November 2014.
2. Between 1 November 2014 and 31 March 2017, when an act is to be adopted by qualified majority, a member of the Council may request that it be adopted in accordance with the qualified majority as defined in paragraph 3. In that case, paragraphs 3 and 4 shall apply.
3. Until 31 October 2014, the following provisions shall remain in force, without prejudice to the second subparagraph of Article 235(1) [TFEU].
For acts of the European Council and of the Council requiring a qualified majority, members’ votes shall be weighted as follows:
… [(7)]
Acts shall be adopted if there are at least 260 votes in favour representing a majority of the members where, under the Treaties, they must be adopted on a proposal from the Commission. In other cases decisions shall be adopted if there are at least 260 votes in favour representing at least two thirds of the members.
A member of the European Council or the Council may request that, where an act is adopted by the European Council or the Council by a qualified majority, a check is made to ensure that the Member States comprising the qualified majority represent at least 62% of the total population of the Union. If that proves not to be the case, the act shall not be adopted.
4. Until 31 October 2014, the qualified majority shall, in cases where, under the Treaties, not all the members of the Council participate in voting, namely in the cases where reference is made to the qualified majority as defined in Article 238(3) [TFEU], be defined as the same proportion of the weighted votes and the same proportion of the number of the Council members and, if appropriate, the same percentage of the population of the Member States concerned as laid down in paragraph 3 of this Article.’
B.      Regulation (EU) No 182/2011

8.        Article 5(1) and (2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (8) provides:
‘1. Where the examination procedure applies, the committee shall deliver its opinion by the majority laid down in Article 16(4) and (5) [TEU] and, where applicable, Article 238(3) TFEU, for acts to be adopted on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in those Articles.
2. Where the committee delivers a positive opinion, the Commission shall adopt the draft implementing act.’
C.      Directive 2010/75/EU

9.        In accordance with its Article 1, Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (9) lays down ‘rules on integrated prevention and control of pollution arising from industrial activities’, and ‘rules designed to prevent or, where that is not practicable, to reduce emissions into air, water and land and to prevent the generation of waste, in order to achieve a high level of protection of the environment taken as a whole’.

10.      Pursuant to Article 14(3) of Directive 2010/75, best available techniques (‘BAT’) conclusions ‘shall be the reference for setting the permit conditions’ for operating combustion plants.

11.      BAT conclusions are adopted in two stages, in accordance with Article 13 of Directive 2010/75 and the Annex to Commission Implementing Decision 2012/119/EU of 10 February 2012 laying down rules concerning guidance on the collection of data and on the drawing up of BAT reference documents and on their quality assurance referred to in Directive 2010/75. (10)

12.      The first stage consists in drawing up a technical BAT reference document (‘BREF’) following an exchange of information with the participation of the European Commission, the Member States, the sectors concerned and non-governmental organisations promoting environmental protection. In that context, a technical working group draws up documents relating to the BREF, taking into account the outcome of the exchange of information for a given sector. The final draft of the BREF is sent to the forum established by Article 13(3) of Directive 2010/75, which provides its opinion on the proposed content of the BREF resulting from the technical work carried out.

13.      At the second stage, in accordance with Article 13(5) and Article 75(2) of Directive 2010/75, the Commission submits a draft implementing decision on BAT conclusions to the committee established by Article 75 of Directive 2010/75 (‘the committee’) composed of representatives of the Member States. The committee delivers, under the examination procedure referred to in Article 5 of Regulation No 182/2011, its opinion on the Commission’s draft implementing decision by the qualified majority defined in Article 16(4) and (5) TEU. Where that opinion is positive, the Commission adopts the implementing decision setting out the BAT conclusions.
III. Factual background

14.      On 9 March 2017, the Commission, in its capacity as chair of the committee, submitted to the committee a draft implementing decision establishing BAT conclusions, under Directive 2010/75, for large combustion plants (‘LCPs’).

15.      By letter of 23 March 2017, the Commission invited the members of the committee to a meeting scheduled for 28 April 2017. The purpose of that meeting was to vote on the opinion relating to that draft implementing decision. A draft agenda was attached to that letter.

16.      On 30 March 2017, the Republic of Poland requested that the committee take a vote on the opinion on that draft implementing decision in accordance with the voting rules laid down in Article 3(3) of Protocol No 36.

17.      On 4 April 2017, the Legal Service of the Council of the European Union sent to the Committee of Permanent Representatives of the Member States an opinion according to which, in essence, in order for a vote on a draft act to be conducted in accordance with the rules applicable before the entry into force of the Treaty of Lisbon, the Member State in question would have had to submit a request to that effect by 31 March 2017 at the latest and the vote, which is the subject matter of the request, would also have had to take place before that date.

18.      On 10 April 2017, the Commission’s Directorate-General for the Environment refused the Republic of Poland’s request of 30 March 2017 on the ground that the vote on the opinion was scheduled for 28 April 2017, that is to say, after 31 March 2017, the deadline laid down in Article 3(2) of Protocol No 36.

19.      On 28 April 2017, a meeting of the committee was held at which the members voted in order to adopt an opinion on an amended draft implementing decision. The vote took place pursuant to the voting rules established by Article 16(4) TEU rather than those established by Article 3(3) of Protocol No 36. The vote resulted in a favourable opinion of the committee with regard to the draft text following the positive vote of 20 Member States representing 65.14% of the population and 71.43% of the members of that committee. Eight Member States, including the Republic of Poland, cast a negative vote.

20.      On 31 July 2017, following that vote, the Commission adopted Implementing Decision (EU)  2017/1442 establishing best available techniques (BAT) conclusions, under Directive 2010/75, for LCPs (‘the contested decision’). (11)

21.      The contested decision imposes, inter alia, emission levels associated with the best available techniques in respect of emissions of nitrogen oxides (NOx), mercury (Hg) and hydrogen chloride (HCl) for LCPs, that is to say, installations with a rated thermal input of at least 50 megawatts (MW), irrespective of the type of fuel used.
IV.    The judgment under appeal 

22.      On 11 October 2017, the Republic of Poland brought an action for annulment before the General Court against the contested decision, relying on five grounds for annulment.

23.      In the proceedings before the General Court, the Republic of Bulgaria and Hungary intervened in support of the form  of order sought by the Republic of Poland, whereas the Kingdom of Belgium, the French Republic and the Kingdom of Sweden intervened in support of the form  of order sought by the Commission.

24.      By its judgment of 27 January 2021, (12) the General Court upheld the first ground of annulment put forward by the Republic of Poland, according to which the contested decision should have been adopted in accordance with the ‘old’ qualified-majority rules laid down in Protocol No 36, and not in accordance with the ‘new’ rules laid down in the Treaty of Lisbon.

25.      To reach that conclusion, the General Court carried out ‘a literal, contextual, teleological and historical interpretation of Article 3(2) of Protocol No 36’, in the light of the different language versions of that protocol. (13)

26.      In the first place, with regard to the literal interpretation of Article 3(2) of Protocol No 36, the General Court found the wording of that provision to be unclear, even when examined in the different language versions.  In particular, in the view of the General Court, it was not apparent from the text whether  the act, for which a member of the Council requested, between 1 November 2014 and 31 March 2017, that it be adopted in accordance with the ‘old’ qualified-majority rules,  should also have  been adopted within that period. (14)

27.      In the second place, a historical interpretation of the provision in question also did not – according to the General Court – shed any light on the proper interpretation of that provision. The documents submitted  by the parties were, in fact, considered to be inconclusive. (15)

28.      In the third place, as regards the teleological interpretation, the General Court stated that the objective of Protocol No 36 was, according to its sole recital, ‘to organise the transition from the institutional provisions of the Treaties applicable prior to the entry into force of the Treaty of Lisbon to the provisions contained in that Treaty’. For that purpose, Article 3(2) of Protocol No 36 conferred on a Member State the right to request, during a specific period, the application of the ‘old’ qualified-majority rules. The interpretation put forward by the Commission – as the General Court found – rendered ineffective the express setting of that period to exercise the right in question. Indeed, it would significantly reduce the period in which a vote according to the rules of the Treaty of Nice could actually be requested by a Member State. By contrast, the interpretation proposed by the Republic of Poland was, the General Court held, capable of ensuring that a Member State was able  effectively to exercise that right during the entirety of that period. (16)

29.      In the fourth place, the General Court took the view that that finding was borne out by a contextual interpretation of Article 3(2) of Protocol No 36. That provision forms part of a set of provisions intended to lay down three transitional stages for the application of the qualified-majority rules introduced by the Treaty of Lisbon. As a result, Article 3(2) of Protocol No 36 should not be regarded – the General Court stated – as an exception to the rule laid down in Article 16(4) TEU, but as a provision of a transitional nature, whose effectiveness must be guaranteed. (17)

30.      In this context, the General Court added that, contrary to the Commission’s submissions, the interpretation of Article 3(2) of Protocol No 36 put forward by the Republic of Poland met the requirement according to which a transitional provision had to be interpreted strictly. It noted that the right of the members of the Council to make a request remained limited in time. In addition, the General Court considered the Commission’s argument, according to which that interpretation would go against the objective  pursued by the Treaty of Lisbon  to enhance the democratic legitimacy of the Council’s votes, to be unjustified. In that regard, the General Court pointed out that Article 3(2) of Protocol No 36 was part of primary law and thus its effectiveness should not be negatively affected by a ‘premature application of Article 16(4) TEU’. (18)

31.      Finally, the General Court found the interpretation of Article 3(3) of Protocol No 36 adopted to be consistent with the principle of legal certainty. The period within which a member of the Council could request the application of the ‘old’ qualified  majority rules was expressly limited. By contrast, the interpretation put forward by the Commission rendered uncertain the period within which that right could be exercised, in  so  far as that would ultimately depend on the actual date of the vote, an event which could depend on many variables. In addition, the Commission’s proposed interpretation would have created – according to the General Court –  the possibility to circumvent the transitional provision in question, as its application could be thwarted by merely setting the date of the vote on a draft act after 31 March 2017. (19)

32.      In the light of the above considerations, the General Court concluded that Article 3(2) of Protocol No 36 must be interpreted as meaning that, in order for a draft act to be adopted in accordance with the qualified-majority rules laid down in Article 3(3) of Protocol No 36, it sufficed that the application of those rules be requested by a Member State between 1 November 2014 and 31 March 2017, without it being necessary that the vote on the draft act in question also take place between those dates. (20)

33.      Consequently, in the judgment under appeal, the General Court:
–        annulled the contested decision;
–        ordered that the effects of the contested decision be maintained until the entry into force, within a reasonable period which could not exceed 12 months from the date of delivery of the judgment, of a new act intended to replace it and adopted in accordance with the qualified-majority rules laid down in Article 3(3) of Protocol No 36 on transitional provisions;
–        ordered the Commission to bear its own costs and to pay those incurred by the Republic of Poland; and the Kingdom of Belgium, the Republic of Bulgaria, the French Republic, Hungary and the Kingdom of Sweden to bear their own costs.
V.      Proceedings before the Court

34.      In its appeal before the Court of Justice, lodged on 2 April 2021, the Commission asks the Court to:  
–        set aside the judgment under appeal;
–        dismiss the first ground for annulment relied on by the Republic of Poland;
–        refer the case back to the General Court for a decision on the remaining grounds for annulment; and
–        reserve the costs.

35.      On the same day, by separate act, the Commission requested that the Court adjudicate the case under an expedited procedure in accordance with Article 133 of the Rules of Procedure of the Court of Justice.

36.      In its statement of defence, lodged on 28 June 2021, the Republic of Poland asks the Court of Justice to dismiss the appeal and order the Commission to pay the costs. In the alternative, were the Court of Justice to set aside the judgment under appeal, the Republic of Poland asks the Court of Justice to refer the case back to the General Court for a decision on the remaining grounds for annulment.

37.      By decision of 7 July 2021, the President of the Court of Justice decided to reject the Commission’s request for an accelerated procedure.
VI.    Assessment

38.      In support of its application to the Court, the Commission relies on a single ground of appeal, directed against paragraphs 38 to 60 of the judgment under appeal.
A.      Arguments of the parties

39.      The Commission claims that the General Court erred in law in holding that the committee was required to vote on the draft act in accordance with the qualified-majority rules set out in Article 3 of Protocol No 36 on the sole ground that a Member State had submitted a request for the application of those rules before the expiry of the transitional period on 31 March 2017, irrespective of the fact that the date of the vote on that draft act was after 31 March 2017. The Commission considers that, in doing so, the General Court misinterpreted Article 3 of Protocol No 36, breaching Article 16(4) and (5) TEU.

40.      In essence, the Commission’s ground of appeal can be divided into two parts. 

41.      In the first part, the Commission focuses on an alleged breach of Article 16(5) TEU. In its view, the General Court was wrong to find the wording of that provision to be ambiguous. The Commission maintains that, according to that provision, there can be no transitional period after 31 March 2017. The General Court thus adopted, in the Commission’s view, an interpretation of Article 3 of Protocol No 36 that cannot be reconciled with Article 16(5) TEU. In addition, the Commission argues that transitional rules must be interpreted strictly to avoid prolonging unnecessarily (and without limit) the transitional period and the ensuing situation of legal uncertainty. Indeed, the Commission and the Member States must be able to predict the period of application in which the voting rules of the Treaty of Nice continue to be applicable. That date cannot be made dependent on the actual date of the vote for a draft act, since that date can vary depending on many circumstances. 

42.      That lack of certainty on the rules applicable to the vote would – according to the Commission – be further exacerbated by the withdrawal, on 31 January 2020, of the United Kingdom of Great Britain and Northern Ireland from the European Union (‘Brexit’). Due to Brexit, the majority required within the committee to approve a new draft implementing decision establishing BAT conclusions – which would be the result of the annulment of the contested decision – would in any event be different from that which was required in 2017.

43.      In the second part of its ground of appeal, the Commission turns to the alleged breach of Article 16(4) TEU. The Commission argues that the interpretation of Article 3 of Protocol No 36 adopted by the General Court deprives the double-majority rule set out in Article 16(4) TEU of part of its effectiveness. The new majority rules, introduced by the Treaty of Lisbon, are more ‘democratic’ than the previous rules, in  so  far as they increase the representativeness of the Council’s votes. The General Court’s reading of Article 3 of Protocol No 36 thus gives rise to a delay in the full application of the new rules, thereby frustrating the objective pursued by the drafters of the Treaty of Lisbon.

44.      Conversely, the Republic of Poland agrees with the interpretation of Article 3 of Protocol No 36 made by the General Court. In its view, that provision is – in all language versions – unambiguous in that the members of the Council have the right to request application of the ‘old’ qualified-majority rules between 1 November 2014 and 31 March 2017. The Republic of Poland emphasises that Article 16(4) and (5) TEU makes reference to Protocol No 36 concerning the manner and the timing in which the new voting rules are applicable. The Commission is thus wrong, in its view, in claiming that the interpretation of Article 3 of that protocol, made by the General Court, clashes with the abovementioned Treaty provisions.

45.      The Republic of Poland also takes the view that the interpretation of  Article 3 of Protocol No 36 followed by the General Court does not lead to any indefinite period of application of that provision. It is unmistakably clear that the right to request the application of the ‘old’ qualified-majority rules cannot be exercised beyond 31 March 2017. It is actually the interpretation of Article 3 of Protocol No 36 proposed by the Commission that, in the view of the Republic of Poland, introduces an element of uncertainty in the system. Indeed, it points out that the application of the old rules would be made dependent on a date that, as the Commission itself recognises, may vary on the basis of many variables. Finally, the Republic of Poland contests the more democratic nature of the new voting rules in comparison with the old ones. It argues that that aspect is, in any event, irrelevant with regard to the interpretation of the various provisions at issue  which, as correctly stated in the judgment under appeal, all form part of EU primary law.
B.      Assessment of the ground of appeal

46.      As a preliminary point, I must state that, although different opinions have been expressed in legal scholarship, (21) I am of the view that Article 3(2) of Protocol No 36 granted a subjective right to the members of the Council to request that an act be adopted according to the ‘old’ qualified-majority rules. When such a right was invoked, the Council had no discretion in terms of whether or not to accept the request. As that provision expressly states, in such circumstances, the old rules ‘shall apply’. (22) Such a reading  was also adopted in the judgment under appeal and appears to be common ground between the parties.

47.      That said, the crucial issue in the present case is whether, to be able to benefit from the application of the ‘old’ qualified-majority rules, it was sufficient for a Member State to request the application of those rules between 1 November 2014 and 31 March 2017, or whether it was also necessary for the vote to take place during that period.

48.      In that regard, I can say at the outset that I find the arguments put forward by the Commission against the interpretation of Article 3(2) of Protocol No 36 embraced by the General Court to be unconvincing. For the reasons that I will explain below, I will thus propose that the Court reject the Commission’s appeal and uphold the judgment under appeal.

49.      First, I would agree with the Commission that the text of the relevant (Treaty and Protocol) provisions are not as ambiguous as is suggested in the judgment under appeal. However, I am of the view that a literal interpretation of those provisions actually supports  the  interpretation adopted by the General Court, and not that put forward by the Commission.

50.      Although I would not go so far as to say  that the wording of Article 3(2) of Protocol No 36 is an example of clarity, it is not disputed that that provision refers to a ‘request’  which may be made ‘between 1 November 2014 and 31 March 2017’. In other words, the transitional period set out in that provision appears to concern  the ability, of the members of the Council, to exercise their right  with regard to the application of the ‘old’ qualified-majority rules. A comparison of the different language versions of Protocol No 36  confirms that reading. (23)

51.      Second, a point strictly relating to the former one, the text of Article 16(4) and (5) TEU does not call that finding into question. Indeed, those provisions do not include any element that  appears to contradict the suggested interpretation of Article 3(2) of Protocol No 36.

52.      Article 16(4) TEU provides the new definition of ‘qualified majority’, applicable as from 1 November 2014 onwards. The fact that, exceptionally, a vote according to the ‘old’ qualified-majority rules may still take place after 31 March 2017 by no means detracts from the fact that, after that date, qualified majority is generally defined according to the new double-majority rule set out in Article 16(4) TEU.

53.      In turn, Article 16(5) TEU simply indicates that:  (i) some transitional provisions  apply with regard to, inter alia, the period between 1 November 2014 and 31 March 2017; and (ii) those provisions are set out ‘in the Protocol on transitional provisions’. Article 3(2) of Protocol No 36 is indisputably one of those transitional provisions. Contrary to what the Commission argues,  I fail to see how,  in literal terms, Article 16(5) TEU provides any indication as to how Article 3(2) of Protocol No 36 should be read. In particular, the fact that certain transitional provisions set out in Protocol No 36 are applicable from 1 November 2014 to 31 March 2017 does not exclude that, when invoked in a timely manner, those provisions could still have some effect beyond the latter date.

54.      Third, contrary to what the Commission argues, I do not believe that the General Court has, through its interpretation of Article 3(2) of Protocol No 36, prolonged indefinitely the transitional period or created a situation of legal uncertainty. As the Republic of Poland correctly points out, only requests up to a specific date (31 March 2017) trigger the application of the ‘old’ qualified-majority rules. To that, I would add that, to be validly made, such a request could  only concern draft acts which were duly presented for adoption up to that date. Accordingly, the mere possibility that the vote on the draft act might  take place after 31 March 2017  did not entail an ‘indefinite prolongation’ of the transitional period.

55.      Nor does that eventuality create a situation of uncertainty for the chair and members of the Council, thus infringing the principle of legal certainty.  According to that principle, rules of law must be clear and precise and their application be foreseeable by those subject to them. More specifically, rules must enable those concerned to know precisely the extent of the obligations imposed on them, and those persons must be able to ascertain unequivocally their rights and obligations and take steps accordingly. (24)

56.      I cannot see why the interpretation of Article 3(2) of Protocol No 36 adopted by the General Court would be at odds with that principle. As a matter of fact, when a request under that provision was made within the period set out therein, both the Commission and the members of the Council could be certain of the voting rules that were applicable for the vote.  By contrast, were the interpretation put forward by the Commission to be followed, the relevant voting rules would vary, depending on the actual date chosen by the Presidency for the vote.  The members of the Council would not be in a position to know the applicable majority until the date of the vote had been set by the Presidency. (25)

57.      Furthermore, as noted by the General Court, (26) the interpretation suggested by the Commission opened up the possibility for easy circumvention of the rules of Protocol No 36. Indeed, the date of the vote could be chosen strategically, in order to defeat a request made by a member of the Council under Article 3(2) thereof. Yet again, that is another aspect that could create legal uncertainty in the application of the voting rules.

58.      Lastly on this point, I fail to see how considerations relating to Brexit (which took place on 31 January 2020) should have any bearing on the interpretation of the rules set out in Protocol No 36 (agreed at the Intergovernmental Conference that concluded its work in October 2007). The simple fact that, to date, the majority required within the committee to approve  a draft implementing decision establishing BAT conclusions would be different from the majority required back in 2017 (when the contested decision was adopted) does not give rise to any situation of legal uncertainty. What matters, in that regard, is that the majority required for the approval of the draft act is clear, to the chair and members of the committee, on the basis of the relevant rules, which is not contested by the Commission. 

59.      In addition, it may very well be possible that, after Brexit, the application of the Council’s voting rules provided for in the Treaty of Nice gives rise to certain complications that do not exist under the – to some extent simpler – rules introduced by the Treaty of Lisbon. However, that is merely a consequence of the fact that the Member States decided not to amend the EU Treaties immediately after Brexit, and continue to apply the current rules, interpreted in the light of their object and purpose, and with regard to the principle of effectiveness. I do not see how a practical aspect relating to present circumstances, which were unforeseen and unforeseeable in 2007, could be considered to be a sound criterion of interpretation of Article 3(2) of Protocol No 36.

60.      Fourth, I am not persuaded that the interpretation of Article 3(2) of Protocol No 36 adopted in the judgment under appeal contradicts the principle that transitional provisions must be interpreted strictly. In that regard, I observe that the Commission refers to a single case (27) in which the Court interpreted narrowly a derogation to a general rule contained in some transitional provisions. (28) In the present case, the transitional provision in question does not introduce a derogation to a general rule, but concerns the phasing-in of a new provision, by permitting an extended application of the old provision. (29) I am not certain that the two situations are entirely comparable, a point which the Commission did not seek to explain in its observations.

61.      In any event, and more importantly, even if one were to agree that, generally, transitional provisions should not be given an overly broad interpretation, (30) that does not mean that those provisions  may be interpreted in a manner that appears to contradict their wording. (31) Nor does the requirement to interpret exceptions and derogations strictly mean that the terms used to define them can be construed in such a way as to deprive those exceptions and derogations of their effects. (32)

62.      On this point, I indeed agree with the Republic of Poland that the interpretation put forward by the Commission would have the effect of shortening the period – set out in Protocol No 36 – in which the members of the Council could actually exercise the right to request the application of the ‘old’ qualified-majority rules. (33) In that regard, I would add that, since several weeks normally elapse between the tabling of a proposal and the actual vote on that proposal, the erosion of the period set out in Protocol No 36 is by no means negligible. 

63.      Fifth, I do not believe that it is for the Court to judge whether – as the Commission argues – the voting rules introduced by the Treaty of Lisbon are, when compared to those applicable under the Treaty of Nice, inherently more ‘democratic’ and thus  enhance the legitimacy of the Council’s votes. That is an argument that I consider to be plainly irrelevant to the interpretation of Article 3(2) of Protocol No 36.

64.      In any case,  it seems to me that, if anything, it is more respectful to the principle of democracy to give full effect to the clear intention of the drafters of the Treaty of Lisbon who, having received a democratic mandate to negotiate amendments to the EU Treaties, agreed to include some transitional rules. Indeed, it is common ground that the drafters of the Treaty of Lisbon intended to introduce the new voting rules with a certain degree of  flexibility and, to that end, established two transitional periods. That is the rationale of Protocol No 36 which, as noted in the judgment under appeal, also constitutes primary law, alongside the Treaties. (34) Consequently, the temporal scope of the provisions of that protocol cannot be unduly limited by  what the Commission regards as  more democratic rules.

65.      In the light of the foregoing, the Commission’s allegation according to which the interpretation of Article 3(2) of Protocol No 36 retained by the General Court would frustrate one of the objectives pursued by the drafters of the Treaty of Lisbon leaves me perplexed. In that regard, I must also observe that, as stated in the judgment under appeal, (35) none of the documents submitted by the parties at first instance reveal an intention on the part of the drafters of the Treaty  of Lisbon to have the new rules on double majority become applicable even when that would de facto deprive the members of the Council of the rights enjoyed under Protocol No 36.

66.      More generally, I wonder whether the Commission does not in fact overstate the significance of the effects that Article 3(2) of Protocol No 36 was to  retain after the end of the transitional period.  The vote under the ‘old’ qualified-majority rules after 31 March 2017 was something that, because of the limitations referred to in point 54 above, could only take place exceptionally. Arguing that the interpretation of that provision, made by the General Court, would be contrary to the principle of democracy, or be capable of frustrating one of the objectives pursued by the drafters of the Treaty of Lisbon, reminds me of the Monty Python sketch where some hunters use machine guns, bazookas and artillery to kill a mosquito. Unlike the outcome in that sketch, however, this form of overkill does not seem to me to be a success.

67.      In conclusion, I am of the view that the interpretation of Article 3(2) of Protocol No 36 made by the General Court in the judgment under appeal is sound. I thus propose that the Court reject the appeal lodged by the Commission.
VII. Costs

68.      According to Article 138(1) of the Rules of Procedure, applicable to appeal proceedings pursuant to Article 184(1) thereof, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

69.      The Republic Poland has applied for the costs. 

70.      Since the Commission has, in my view, been unsuccessful, it must be ordered to pay the costs relating to the present appeal proceedings.
VIII. Conclusion

71.      In the light of the foregoing, I suggest that the Court of Justice:
–        dismiss the appeal;
–        order the Commission to pay the costs.

1      Original language: English.

2      See, among others, the so-called ‘Luxembourg Compromise’ of 1966 (Conclusions of the extraordinary session of the Council in Luxembourg on 17, 18, 27 and 28 January 1966) (Bulletin of the European Economic Community, March 1966, 3/66, pp. 5 to 11); the so-called ‘Ioannina Compromise’ of 1994 (Council decision of 29 March 1994 on qualified majority decision-making by the Council (OJ 1994 C 105, p. 1), as amended by the Council Decision of 1 January 1995 (OJ 1995 C 1, p. 1)); and, more recently, Declaration (No 7) on Article 16(4) of the Treaty on European Union and Article 238(2) of the Treaty on the Functioning of the European Union, annexed to the Treaty of Lisbon (OJ 2008 C 115, p. 338).  

3      For a historical overview, with further references, see inter alia Jacqué, J.-P., ‘Le vote au Conseil de l’Union européenne’, in Blanquet, M., La prise de décision dans le système de l’Union européenne, Bruylant, 2011, pp. 61 to 89, and Dann, P., ‘The Council’, in Schütze, R., and Tridimas, T., Oxford Principles of European Union Law, Vol. I, Oxford, 2018, pp. 540 to 544.

4      See, in particular, Article 16(3) to (5) TEU, Article 238 TFEU, and Article 11 of Council Decision 2009/937/EU of 1 December 2009 adopting the Council’s Rules of Procedure (OJ 2009 L 325, p. 35), as amended.

5      That is so where the Council acts on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy (see Article 238(2) TFEU). Those represent the vast majority of cases in which the Council is required to hold a vote under qualified-majority rules.

6      OJ 2016 C 202, p. 321 (‘Protocol No 36’).

7      Table omitted.

8      OJ 2011 L 55, p. 13.

9      OJ 2010 L 334, p. 17.

10      OJ 2012 L 63, p. 1.

11      OJ 2017 L 212, p. 1.

12      Judgment in Poland v Commission (T‑699/17, EU:T:2021:44) (‘the judgment under appeal’). 

13      See paragraph 34 of the judgment under appeal.

14      Ibid., paragraphs 35 and 36.

15      Ibid., paragraph 37.

16      Ibid., paragraphs 38 to 42.

17      Ibid., paragraphs 43 to 49.

18      Ibid., paragraphs 50 to 52.

19      Ibid., paragraphs 53 to 55.

20      Ibid., paragraph 56.

21      See, inter alia, Ponzano, P., ‘Comment to Article 16 TEU’, in Curti Gialdino, C., (ed.) Codice dell’Unione europea – Operativo, Simone, Naples, 2012, pp. 196 to 197.

22      Emphasis added.

23      See, inter alia, the Spanish version (‘entre el 1 de noviembre de 2014 y el 31 de marzo de 2017 … cualquier miembro del Consejo podrá solicitar’), the German version (‘für den Zeitraum vom 1. November 2014 bis zum 31. März 2017 … kann ein Mitglied des Rates beantragen’), the Greek version (‘aπό  την 1η  Νοεμβρίου 2014 έως  την 31η  Μαρτίου 2014 … ένα  μέλος  του  Συμβουλίου  μπορεί  να  ζητά  να  θεσπισθεί), the French version (‘entre le 1er novembre 2014 et le 31 mars 2017 … un membre du Conseil peut demander’), the Croatian version (‘u razdoblju od 1. studenoga 2014. do 31. ožujka 2017 … član Vijeća može zatražiti’), and the Italian version (‘nel periodo dal 1o novembre 2014 al 31 marzo 2017 … un membro del Consiglio può chiedere’)

24      See, for instance, judgment of 1 July 2014, Ålands Vindkraft (C‑573/12, EU:C:2014:2037, paragraphs 127 and 128).

25      On this point, see, convincingly, paragraph 55 of the judgment under appeal.

26      Ibid.

27      Judgment of 2 September 2010, Kirin Amgen (C‑66/09, EU:C:2010:484, paragraphs 30 to 33).

28      On that point, see also Opinion of Advocate General Bot in Kirin Amgen (C‑66/09, EU:C:2010:96, points 5 and 57).

29      Cf. also paragraph 47 of the judgment under appeal. 

30      See paragraph 50 of the judgment under appeal and the case-law cited.

31      See above, points 48 and 49 of this Opinion.

32      See, inter alia, judgment of 30 September 2021, Icade Promotion (C‑299/20, EU:C:2021:783, paragraph 31 and the case-law cited). See also, to that effect, judgment of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraph 40).

33      On this point, see, again, convincingly, paragraph 41 of the judgment under appeal.

34      Paragraph 51 of the judgment under appeal

35      Ibid., paragraph 37.