Commission of the European Communities v Council of the European Union.
Date: 2003-09-11
35. The German Government adds that under the Treaty fiscal policy is horizontal in nature.  Therefore, measures of fiscal policy frequently relate to other fields, such as energy.  However, horizontal authorisation rules always take precedence over sectoral legal bases such as Article 71 EC.  For that reason, where there is a conflict between the two horizontal authorisation rules contained in Article 95 EC concerning the approximation of national laws in order to achieve the internal market and Article 93 EC, the authors of the Treaty explicitly provided in Article 95(1) EC that that article applies save where otherwise provided in the Treaty.
38. It is settled case-law that the choice of the legal basis for a Community measure must rest on objective factors amenable to judicial review, which include in particular the aim and the content of the measure (see,  inter alia , Case C-300/89  Commission  v  Council , cited above, paragraph 10, and Case C-269/97  Commission  v  Council , cited above, paragraph 43).
39. If examination of a Community measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of these is identifiable as the main or predominant purpose or component whereas the other is merely incidental, the act must be based on a single legal basis, namely that required by the main or predominant purpose or component (see, to that effect,  inter alia  Case C-155/91  Commission  v  Council  [1993] ECR I-939, paragraphs 19 and 21,  and Case C-36/98  Spain  v  Council  [2001] ECR I-779, paragraph 59).
40. By way of exception, if it is established that the measure simultaneously pursues several objectives which are inseparably linked without one being secondary and indirect in relation to the other, the measure must be founded on the corresponding legal bases (see,  inter alia ,  Case C-336/00  Huber  [2002] ECR I-7699, paragraph 31; Case C-281/01  Commission  v  Council  [2002] ECR I-2049, paragraph 35, and Opinion 2/00 [2001] ECR 1-9713, paragraph 23).
41. In the present case, it is not in dispute that the agreements pursue a transport policy objective and that their content relates to that policy.  Nor do the parties disagree as to the fact that the agreements contain provisions of a fiscal nature. Thus, the Commission does not deny that certain provisions of Article 8 of the agreements, namely paragraphs 1, 2 and 4, on which the Council relies to maintain its position, are of such a nature.
51. In those circumstances, there is no need to examine the Commission ' s other arguments concerning the scope of Articles 70 EC and 71 EC in relation to other objectives of the Treaty, or arguments relating to  Titanium dioxide , cited above.
52. In principle, the incorrect use of a Treaty article as a legal basis which results in the substitution of unanimity for qualified majority voting in the Council cannot be considered a purely formal defect since a change in voting method may affect the content of the act adopted.
53. In conclusion, since Article 93 EC is referred to as the legal basis for the contested decisions, those decisions must be annulled.
Limitation of the effects of the judgment
55. It is common ground that the content of international agreements cannot be amended unilaterally, without new negotiations being undertaken by the contracting parties.