European Commission v Council of the European Union.
Date: 2015-04-28
14. In accordance with settled case-law, an action for annulment must be available in the case of all measures adopted by the EU institutions, irrespective of their nature or form, provided that they are intended to have legal effects (see, to this effect, judgments in 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).
15. In this instance, since the contested decision relates to the signing of the Accession Agreement and the Ancillary Agreement on behalf of the European Union and to the provisional application of those agreements by, first, the European Union and, second, the Member States, it follows that the Council participated in the decisions made in respect of all of those matters (see, by analogy, judgment in Commission  v Council , C‑114/12, EU:C:2014:2151, paragraph 41).
18. As regards the third ground of inadmissibility, it is clear from settled case-law of the Court that the admissibility of actions for annulment brought by the Commission cannot be subject to the condition that an interest in its bringing proceedings must be demonstrated (see judgments in Commission  v Council , 45/86, EU:C:1987:163, paragraph 3, and Commission  v Council , C‑370/07, EU:C:2009:590, paragraph 16).
42. It should be recalled, in this regard, that the rules regarding the manner in which the EU institutions arrive at their decisions are laid down in the Treaties and are not at the disposal of the Member States or of the institutions themselves (judgments in United Kingdom  v Council , 68/86, EU:C:1988:85, paragraph 38, and Parliament  v Council , C‑133/06, EU:C:2008:257, paragraph 54).
54. As to the Council’s argument that the contested decision reflects the duty of cooperation which is imposed on the European Union and the Member States in the field of mixed agreements, it is true that the Court has acknowledged that, where it is apparent that the subject-matter of an agreement falls partly within the competence of the European Union and partly within that of the Member States, it is essential to ensure close cooperation between the Member States and the EU institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into (Opinion 1/94, EU:C:1994:384, paragraph 108, and judgment in Commission  v Sweden , C‑246/07, EU:C:2010:203, paragraph 73).
60. In that regard, it is clear from the Court’s case-law that the effects of a contested act may be maintained on grounds of legal certainty, in particular where the immediate effects of its annulment would give rise to serious negative consequences and the lawfulness of such an act is contested not because of its aim or subject-matter, but on grounds of lack of competence or infringement of an essential procedural requirement (see judgment in Parliament and Commission  v Council , C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 90 and the case-law cited).
61. In this instance, it should be noted in particular that the contested decision enabled provisional application of the Accession Agreement and the Ancillary Agreement by the European Union. Annulment of that decision with immediate effect would be liable to give rise to serious consequences for the relations of the European Union with the third States concerned and for the businesses which operate on the air transport market and have been able to benefit from the provisional application of those agreements.
62. In those circumstances, there are important grounds of legal certainty justifying the grant by the Court of the request that the effects of the contested decision, whose aim and content are not challenged, be maintained.