Commission of the European Communities v Council of the European Union.
Date: 2008-05-20
32. Under Article 47 EU, none of the provisions of the EC Treaty is to be affected by a provision of the Treaty on European Union (Case C-176/03 Commission  v Council  [2005] ECR I-7879, paragraph 38, and Case C-440/05 Commission  v Council  [2007] ECR I-0000, paragraph 52).
33. It is therefore the task of the Court to ensure that acts which, according to the Council, fall within the scope of Title V of the Treaty on European Union and which, by their nature, are capable of having legal effects, do not encroach upon the powers conferred by the EC Treaty on the Community (see, to that effect, Case C-170/96 Commission  v Council  [1998] ECR I-2763, paragraph 16; Case C-176/03 Commission  v Council , paragraph 39; and Case C-440/05 Commission  v Council , paragraph 53).
58. It is therefore necessary to determine whether the provisions of the contested decision affect competences enjoyed by the Community under the EC Treaty, on the ground that, as the Commission argues, they could have been adopted on the basis of that treaty (see, to that effect, Case C-176/03 Commission  v Council , paragraph 40, and Case C-440/05 Commission  v Council , paragraph 54).
59. In providing that nothing in the EU Treaty is to affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them, Article 47 EU aims, in accordance with the fifth indent of Article 2 EU and the first paragraph of Article 3 EU, to maintain and build on the acquis communautaire.
60. Contrary to what is submitted by the United Kingdom Government, a measure having legal effects adopted under Title V of the EU Treaty affects the provisions of the EC Treaty within the meaning of Article 47 EU whenever it could have been adopted on the basis of the EC Treaty, it being unnecessary to examine whether the measure prevents or limits the exercise by the Community of its competences. It is apparent from the case-law of the Court that, if it is established that the provisions of a measure adopted under Titles V or VI of the EU Treaty, on account of both their aim and their content, have as their main purpose the implementation of a policy conferred by the EC Treaty on the Community, and if they could properly have been adopted on the basis of the EC Treaty, the Court must find that those provisions infringe Article 47 EU (see, to that effect, Case C-176/03 Commission  v Council , paragraphs 51 and 53, and Case C-440/05 Commission  v Council , paragraphs 69 to 74).
61. Since the infringement of Article 47 EU arises from the fact that a measure having legal effects adopted by the Union on the basis of the EU Treaty could have been adopted by the Community, it is also not relevant whether in an area such as development cooperation – which does not fall within the exclusive competence of the Community and in which, therefore, the Member States are not precluded from exercising, individually or collectively, their competences (see, to that effect, Joined Cases C-181/91 and C-248/91 Parliament  v Council and Commission  [1993] ECR I-3685, paragraph 16, and C-316/91 Parliament  v Council  [1994] ECR I-625, paragraph 26) – such a measure could have been adopted by the Member States in exercise of their competences.
62. Moreover, the question whether the provisions of such a measure adopted by the Union fall within the competence of the Community relates to the attribution and, thus, the very existence of that competence, and not its exclusive or shared nature (see, to that effect, Case C-459/03 Commission  v Ireland  [2006] ECR I-4635, paragraph 93).
64. With regard to Community development cooperation policy, the Court has held that the objectives pursued by Article 130u of the EC Treaty (now Article 177 EC) are broad in the sense that it must be possible for the measures required for their pursuit to concern various specific matters (Case C-268/94 Portugal  v Council  [1996] ECR I-6177, paragraph 37).
65. Articles 177 EC to 181 EC, which deal with cooperation with developing countries, refer not only to the sustainable economic and social development of those countries, their smooth and gradual integration into the world economy and the campaign against poverty, but also to the development and consolidation of democracy and the rule of law, as well as to respect for human rights and fundamental freedoms, in compliance also with commitments in the context of the United Nations and other international organisations (C-403/05 Parliament  v Commission  [2007] ECR I-0000, paragraph 56).
66. In addition, it follows from the Joint Statement by the Council and the representatives of the governments of the Member States meeting within the Council, the European Parliament and the Commission on European Union Development Policy, entitled ‘The European Consensus [on Development]’ (OJ 2006 C 46, p. 1) that there can be no sustainable development and eradication of poverty without peace and security and that the pursuit of the objectives of the Community’s new development policy necessarily proceed via the promotion of democracy and respect for human rights (C-403/05 Parliament  v Commission , paragraph 57).
72. That is not the case if such a measure, even if it contributes to the economic and social development of the developing country, has as its main purpose the implementation of the CFSP.
73. If examination of a measure reveals that it pursues a twofold aim or that it has a twofold component and if one of those is identifiable as the main one, whereas the other is merely incidental, the measure must be based on a single legal basis, namely that required by the main aim or component (see, to that effect, Case C-211/01 Commission  v Council [2003] ECR I-8913, paragraph 39; Case C‑338/01 Commission  v Council  [2004] ECR I-4829, paragraph 55, and Case C‑94/03 Commission  v Council  [2006] ECR I‑1, paragraph 35; and see, with regard to the application of Article 47 EU, Case C-176/03 Commission v Council , paragraphs 51 to 53, and Case C-440/05 Commission  v Council , paragraphs 71 to 73).
75. With regard to a measure which simultaneously pursues a number of objectives or which has several components, without one being incidental to the other, the Court has held, where various legal bases of the EC Treaty are therefore applicable, that such a measure will have to be founded, exceptionally, on the various corresponding legal bases (see, to that effect, Case C-211/03 Commission  v Council , paragraph 40, and Case C-94/03 Commission  v Council , paragraph 36).
106. The fact that the contested joint action was implemented by other decisions adopted under Title V of the EU Treaty, the legality of which the Commission has not challenged, cannot determine the outcome of the present case. For, according to settled case-law, the legal basis for an act must be determined having regard to its own aim and content and not to the legal basis used for the adoption of other Union measures which might, in certain cases, display similar characteristics (see, to that effect, Case C-94/03 Commission  v Council , paragraph 50).