European Commission v Council of the European Union.
Date: 2014-09-04
39. In that regard, it should be remembered that an action for annulment must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects (judgments in Commission v Council  (‘ ERTA ’), 22/70, EU:C:1971:32, paragraph 42; Parliament v Council and Commission , C‑181/91 and C‑248/91, EU:C:1993:271, paragraph 13; and Commission v Council , C‑27/04, EU:C:2004:436, paragraph 44).
40. In the present case, the contested decision, which produces legal effects as regards relations between the European Union and its Member States and between the EU institutions, was adopted on the basis of Article 218(3) and (4) TFEU.
41. In addition, since the contested decision combines the authorisations to negotiate issued (i) to the Commission and (ii) to the Member States and to the Presidency of the Council, it necessarily follows that the Council was involved in the grant of both of those authorisations. Therefore, the action is admissible with regard to the contested decision as a whole.
Substance
66. In that regard, it must be stated that the words used in that last clause correspond to those by which the Court, in paragraph 22 of the judgment in ERTA  (EU:C:1971:32), defined the nature of the international commitments which Member States cannot enter into outside the framework of the EU institutions, where common EU rules have been promulgated for the attainment of the objectives of the Treaty.
67. Those words must therefore be interpreted in the light of the Court’s explanation with regard to them in the judgment in ERTA  (EU:C:1971:32) and in the case-law developed as from that judgment.
68. According to the Court’s case-law, there is a risk that common EU rules might be adversely affected by international commitments, or that the scope of those rules might be altered, which is such as to justify an exclusive external competence of the European Union, where those commitments fall within the scope of those rules (see, to that effect, the judgments in ERTA , EU:C:1971:32, paragraph 30; and in Commission v Denmark , EU:C:2002:625, paragraph 82).
69. A finding that there is such a risk does not presuppose that the areas covered by the international commitments and those covered by the EU rules coincide fully (see, to that effect, Opinion 1/03, EU:C:2006:81, paragraph 126).
70. As the Court has consistently held, the scope of common EU rules may be affected or altered by such commitments also where those commitments fall within an area which is already largely covered by such rules (Opinion 2/91, EU:C:1993:106, paragraph 25; judgment in Commission v Denmark , EU:C:2002:625, paragraph 82; and Opinion 1/03, EU:C:2006:81, paragraphs 120 and 126).
71. In addition, Member States may not enter into such commitments outside the framework of the EU institutions, even if there is no possible contradiction between those commitments and the common EU rules (see, to that effect, Opinion 2/91, EU:C:1993:106, paragraphs 25 and 26; and the judgment in Commission v Denmark , EU:C:2002:625, paragraph 82).
75. In accordance with the principle of conferral as laid down in Article 5(1) and (2) TEU, it is, for the purposes of such an analysis, for the party concerned to provide evidence to establish the exclusive nature of the external competence of the EU on which it seeks to rely.
83. Thus, in particular, the Court, in paragraphs 27 and 29 of the judgment in Commission v France (C‑239/03, EU:C:2004:598), considered the protection of waters against pollution — the subject-matter of the international agreement in question in the case which gave rise to that judgment — as an area, notwithstanding the fact that the relevant EU rules were contained in different legal instruments.
94. So far as concerns, secondly, the right of communication to the public, the Council and several Member States intervening in its support state that the negotiations in question might go beyond the EU acquis by extending, contrary to Article 8(3) of Directive 2006/115, the scope of that right so as to include places accessible to the public without payment of an entrance fee.
95. In that regard, it must, however, be observed, as the Commission has stated, that neither the 2008 Memorandum nor the 2010 Report contain any indication to that effect and that the Council and the intervening Member States have not provided any evidence in support of their claims.
96. On the contrary, as set out in the 2002 Recommendation and, in particular, in point (f) of the section ‘Rights to be granted’ contained in the Appendix to that recommendation, and paragraph 24 of the Explanatory Memorandum of that recommendation, the scope of the right of communication to the public would be modelled on the right provided for in Article 13(d) of the Rome Convention, which restricts it to places accessible to the public against payment of an entrance fee.
102. It is apparent from the above analysis that the content of the negotiations for a Convention of the Council of Europe on the protection of neighbouring rights of broadcasting organisations, as is defined by the 2002 Recommendation, the 2008 Memorandum and the 2010 Report, falls within an area covered to a large extent by common EU rules and that those negotiations may affect common EU rules or alter their scope. Therefore, those negotiations fall within the exclusive competence of the European Union.