Council of the European Union v European Commission.
Date: 2016-07-28
23


In reliance on the Court’s case-law stemming from the judgment of 23 March 2004 in France v Commission (C‑233/02, EU:C:2004:173, paragraph 40), the Council submits that the fact that a measure is not binding is not sufficient to confer on the Commission the power to adopt it. The Commission does not have the power under Article 17 TEU to sign a non-binding international agreement, such as the 2013 Addendum, on behalf of the Union without the Council’s prior approval. Thus, the Commission has taken upon itself the power to decide on the policy of the Union and infringed the principle of conferral of powers set out in the second sentence of Article 13(2) TEU and, therefore, the principle of institutional balance.
26


In that regard, the Commission argues that, in accordance with Article 16(1) TEU, it falls to the Council to decide on the Union’s policy and to ensure consistency in the external action of the Union. As regards the Commission, it is required to execute that policy and to ensure the Union’s external representation. The role entrusted to the Commission by Article 17(1)TEU in that regard requires that it should enjoy a degree of autonomy. That provision gives it direct authority to execute a Union policy and to sign non-binding instruments of a political nature on behalf of the Union, in so far as they reflect a position established by the Council, without any need for that institution’s prior approval. Furthermore, the signature of a non-binding instrument, such as the 2013 Addendum, is an act of external representation, for the purpose of Article 17(1) TEU, of a political position previously fixed by the Council. Thus, it follows from the Court’s case-law stemming from the judgment of 20 April 2010 in Commission v Sweden (C‑246/07, EU:C:2010:203, paragraph 77) that it is not indispensable that a common position should take a specific form for it to exist.
31


It must be borne in mind in that regard that the Treaties set up a system allocating powers among the EU institutions, assigning to each institution its own role in the institutional structure of the Union and the accomplishment of the tasks entrusted to the Union (see, to that effect, judgment of 22 May 1990 in Parliament v Council, C‑70/88, EU:C:1990:217, paragraph 21).
32


Accordingly, Article 13(2) TEU provides that each institution is to act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out therein. That provision reflects the principle of institutional balance, characteristic of the institutional structure of the Union, a principle which requires that each of the institutions exercise its powers with due regard for the powers of the other institutions (judgments of 14 April 2015 in Council v Commission, C‑409/13, EU:C:2015:217, paragraph 64, and 6 October 2015 in Council v Commission, C‑73/14, EU:C:2015:663, paragraph 61).
36


It should be noted in that regard that the mere fact that the Commission enjoys a power of external representation of the Union under Article 17(1) TEU is not sufficient to address the issue, raised by the Council’s first plea in law, of whether the principle of conferral of powers laid down in Article 13(2) TEU required the Commission to obtain the Council’s approval before signing the 2013 Addendum on behalf of the Union (see, by analogy with regard to Article 335 TFEU, judgment of 6 October 2015 in Council v Commission, C‑73/14, EU:C:2015:663, paragraphs 59 and 60).
51


The Court has held in this regard that, on grounds of legal certainty, the effects of such an act may be maintained, in particular where the immediate effects of its annulment would give rise to serious negative consequences for the persons concerned and where the lawfulness of the act in question is contested, not because of its aim or content, but on grounds of lack of competence or infringement of an essential procedural requirement (judgment of 26 November 2014 in Parliament and Commission v Council, C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 90 and the case-law cited).