Commission of the European Communities v Council of the European Communities.
Date: 1971-03-31
3 TO DECIDE THIS POINT, IT IS FIRST NECESSARY TO DETERMINE WHICH AUTHORITY WAS, AT THE RELEVANT DATE, EMPOWERED TO NEGOTIATE AND CONCLUDE THE AETR .
16 SUCH AUTHORITY ARISES NOT ONLY FROM AN EXPRESS CONFERMENT BY THE TREATY - AS IS THE CASE WITH ARTICLES 113 AND 114 FOR TARIFF AND TRADE AGREEMENTS AND WITH ARTICLE 238 FOR ASSOCIATION AGREEMENTS - BUT MAY EQUALLY FLOW FROM OTHER PROVISIONS OF THE TREATY AND FROM MEASURES ADOPTED, WITHIN THE FRAMEWORK OF THOSE PROVISIONS, BY THE COMMUNITY INSTITUTIONS .
17 IN PARTICULAR, EACH TIME THE COMMUNITY, WITH A VIEW TO IMPLEMENTING A COMMON POLICY ENVISAGED BY THE TREATY, ADOPTS PROVISIONS LAYING DOWN COMMON RULES, WHATEVER FORM THESE MAY TAKE, THE MEMBER STATES NO LONGER HAVE THE RIGHT, ACTING INDIVIDUALLY OR EVEN COLLECTIVELY, TO UNDERTAKE OBLIGATIONS WITH THIRD COUNTRIES WHICH AFFECT THOSE RULES .
18 AS AND WHEN SUCH COMMON RULES COME INTO BEING, THE COMMUNITY ALONE IS IN A POSITION TO ASSUME AND CARRY OUT CONTRACTUAL OBLIGATIONS TOWARDS THIRD COUNTRIES AFFECTING THE WHOLE SPHERE OF APPLICATION OF THE COMMUNITY LEGAL SYSTEM .
19 WITH REGARD TO THE IMPLEMENTATION OF THE PROVISIONS OF THE TREATY THE SYSTEM OF INTERNAL COMMUNITY MEASURES MAY NOT THEREFORE BE SEPARATED FROM THAT OF EXTERNAL RELATIONS .
20 UNDER ARTICLE 3 ( E ), THE ADOPTION OF A COMMON POLICY IN THE SPHERE OF TRANSPORT IS SPECIALLY MENTIONED AMONGST THE OBJECTIVES OF THE COMMUNITY .
21 UNDER ARTICLE 5, THE MEMBER STATES ARE REQUIRED ON THE ONE HAND TO TAKE ALL APPROPRIATE MEASURES TO ENSURE FULFILMENT OF THE OBLIGATIONS ARISING OUT OF THE TREATY OR RESULTING FROM ACTION TAKEN BY THE INSTITUTIONS AND, ON THE OTHER HAND, TO ABSTAIN FROM ANY MEASURE WHICH MIGHT JEOPARDIZE THE ATTAINMENT OF THE OBJECTIVES OF THE TREATY .
22 IF THESE TWO PROVISIONS ARE READ IN CONJUNCTION, IT FOLLOWS THAT TO THE EXTENT TO WHICH COMMUNITY RULES ARE PROMULGATED FOR THE ATTAINMENT OF THE OBJECTIVES OF THE TREATY, THE MEMBER STATES CANNOT, OUTSIDE THE FRAMEWORK OF THE COMMUNITY INSTITUTIONS, ASSUME OBLIGATIONS WHICH MIGHT AFFECT THOSE RULES OR ALTER THEIR SCOPE .
26 THIS PROVISION IS EQUALLY CONCERNED WITH TRANSPORT FROM OR TO THIRD COUNTRIES, AS REGARDS THAT PART OF THE JOURNEY WHICH TAKES PLACE ON COMMUNITY TERRITORY .
27 IT THUS ASSUMES THAT THE POWERS OF THE COMMUNITY EXTEND TO RELATIONSHIPS ARISING FROM INTERNATIONAL LAW, AND HENCE INVOLVE THE NEED IN THE SPHERE IN QUESTION FOR AGREEMENTS WITH THE THIRD COUNTRIES CONCERNED .
30 SINCE THE SUBJECT-MATTER OF THE AETR FALLS WITHIN THE SCOPE OF REGULATION NO 543/69, THE COMMUNITY HAS BEEN EMPOWERED TO NEGOTIATE AND CONCLUDE THE AGREEMENT IN QUESTION SINCE THE ENTRY INTO FORCE OF THE SAID REGULATION .
31 THESE COMMUNITY POWERS EXCLUDE THE POSSIBILITY OF CONCURRENT POWERS ON THE PART OF MEMBER STATES, SINCE ANY STEPS TAKEN OUTSIDE THE FRAMEWORK OF THE COMMUNITY INSTITUTIONS WOULD BE INCOMPATIBLE WITH THE UNITY OF THE COMMON MARKET AND THE UNIFORM APPLICATION OF COMMUNITY LAW .
38 UNDER ARTICLE 173, THE COURT HAS A DUTY TO REVIEW THE LEGALITY " OF ACTS OF THE COUNCIL ... OTHER THAN RECOMMENDATIONS OR OPINIONS ".
39 SINCE THE ONLY MATTERS EXCLUDED FROM THE SCOPE OF THE ACTION FOR ANNULMENT OPEN TO THE MEMBER STATES AND THE INSTITUTIONS ARE " RECOMMENDATIONS OR OPINIONS " - WHICH BY THE FINAL PARAGRAPH OF ARTICLE 189 ARE DECLARED TO HAVE NO BINDING FORCE - ARTICLE 173 TREATS AS ACTS OPEN TO REVIEW BY THE COURT ALL MEASURES ADOPTED BY THE INSTITUTIONS WHICH ARE INTENDED TO HAVE LEGAL FORCE .
40 THE OBJECTIVE OF THIS REVIEW IS TO ENSURE, AS REQUIRED BY ARTICLE 164, OBSERVANCE OF THE LAW IN THE INTERPRETATION AND APPLICATION OF THE TREATY .
41 IT WOULD BE INCONSISTENT WITH THIS OBJECTIVE TO INTERPRET THE CONDITIONS UNDER WHICH THE ACTION IS ADMISSIBLE SO RESTRICTIVELY AS TO LIMIT THE AVAILABILITY OF THIS PROCEDURE MERELY TO THE CATEGORIES OF MEASURES REFERRED TO BY ARTICLE 189 .
42 AN ACTION FOR ANNULMENT MUST THEREFORE BE AVAILABLE IN THE CASE OF ALL MEASURES ADOPTED BY THE INSTITUTIONS, WHATEVER THEIR NATURE OR FORM, WHICH ARE INTENDED TO HAVE LEGAL EFFECTS .
66 THE PROCEEDINGS OF 20 MARCH 1970, HOWEVER, CANNOT BE REGARDED AS SIMPLY A CONFIRMATION OF PREVIOUS DISCUSSIONS, SINCE REGULATION NO 543/69 OF 25 MARCH 1969 BROUGHT ABOUT A DECISIVE CHANGE IN THE ALLOCATION OF POWERS BETWEEN THE COMMUNITY AND THE MEMBER STATES ON THE SUBJECT-MATTER OF THE NEGOTIATIONS .
68 ESSENTIALLY, THE COMMISSION DISPUTES THE VALIDITY OF THE PROCEEDINGS OF 20 MARCH 1970 ON THE GROUND THAT THEY INVOLVED INFRINGEMENTS OF PROVISIONS OF THE TREATY, MORE PARTICULARLY OF ARTICLES 75, 228 AND 235 CONCERNING THE DISTRIBUTION OF POWERS BETWEEN THE COUNCIL AND THE COMMISSION, AND CONSEQUENTLY THE RIGHTS WHICH IT WAS THE COMMISSION' S DUTY TO EXERCISE IN THE NEGOTIATIONS ON THE AETR .
( A ) SUBMISSION RELATING TO INFRINGEMENT OF ARTICLES 75 AND 228 .
86 AT THAT STAGE OF THE NEGOTIATIONS, TO HAVE SUGGESTED TO THE THIRD COUNTRIES CONCERNED THAT THERE WAS NOW A NEW DISTRIBUTION OF POWERS WITHIN THE COMMUNITY MIGHT WELL HAVE JEOPARDIZED THE SUCCESSFUL OUTCOME OF THE NEGOTIATIONS, AS WAS INDEED RECOGNIZED BY THE COMMISSION' S REPRESENTATIVE IN THE COURSE OF THE COUNCIL' S DELIBERATIONS .
95 ALTHOUGH ARTICLE 235 EMPOWERS THE COUNCIL TO TAKE ANY " APPROPRIATE MEASURES " EQUALLY IN THE SPHERE OF EXTERNAL RELATIONS, IT DOES NOT CREATE AN OBLIGATION, BUT CONFERS ON THE COUNCIL AN OPTION, FAILURE TO EXERCISE WHICH CANNOT AFFECT THE VALIDITY OF PROCEEDINGS .
96 THIS SUBMISSION MUST THEREFORE BE REJECTED .