European Commission v Council of the European Union.
Date: 2013-10-22
49. Secondly, the Council, supported by the French Republic and the United Kingdom, argues that the fact that the Convention also covers the supply of conditional access services between the European Union and non-member countries in no way means that it is intended to apply more to those services than to those supplied within the European Union.
52. According to settled case-law, the choice of legal basis for an EU measure must rest on objective factors that are amenable to judicial review; these include the aim and content of that measure (see, to that effect, Case C‑411/06 Commission v Parliament and Council  [2009] ECR I‑7585, paragraph 45 and the case-law cited, and Case C‑130/10 Parliament v Council  [2012] ECR I‑0000, paragraph 42 and the case‑law cited).
53. If examination of that measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, that measure must be based on a single legal basis, namely that required by the main or predominant purpose or component (see, to that effect, Commission v Parliament and Council , paragraph 46 and the case-law cited, and Case C‑490/10 Parliament v Council  [2012] ECR I‑0000, paragraph 45 and the case-law cited).
56. In that regard, it follows from Article 207(1) TFEU – and, in particular, from the second sentence of that provision, in the words of which the common commercial policy belongs within the context of ‘the Union’s external action’ – that the common commercial policy relates to trade with non-member countries, not to trade in the internal market (see Case C‑414/11 Daiichi Sankyo and Sanofi-Aventis Deutschland [2013] ECR I‑0000, paragraph 50).
57. Moreover, it is settled-case law that the mere fact that an act of the European Union is liable to have implications for international trade is not enough for it to be concluded that the act must be classified as falling within the common commercial policy. On the other hand, an EU act falls within that policy if it relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade (see, inter alia, Daiichi Sankyo and Sanofi-Aventis Deutschland , paragraph 51 and the case-law cited).
58. It follows that only those acts of the European Union with a specific link to international trade are capable of falling within the field of the common commercial policy (see, to that effect, Daiichi Sankyo and Sanofi-Aventis Deutschland , paragraph 52).
65. That objective, which can be seen from the recitals to the contested decision, read in conjunction with the Convention, to be the primary objective of that decision, therefore has a specific connection with international trade in those services, by dint of which it can legitimately be linked to the common commercial policy (see, by analogy, Daiichi Sankyo and Sanofi-Aventis Deutschland , paragraphs 58 and 60).
69. On the contrary, a ban on the export of illicit devices to the European Union concerns the defence of the European Union’s global interests and falls, by its very nature, within the ambit of the common commercial policy (see, to that effect, Opinion 1/75 of 11 November 1975 ECR 1335 and 1364; Opinion 1/94 of 15 November 1994 ECR I‑5267, paragraphs 55, 63 and 71; and Case C‑94/03 Commission v Council  [2006] ECR I-1, paragraphs 46, 47 and 49).
74. Indeed, it is the legal basis for a measure – the appropriateness or otherwise of which falls to be assessed, by virtue of the case-law recalled in paragraphs 52 and 53 above, on the basis of objective factors such as main or predominant purpose of the measure and its content – which determines the protocols to be applied, and not vice versa.
80. The annulment of the contested decision without its effects being maintained would call in question the signing of the Convention by the European Union, which took place on 21 December 2011, even though the competence of the European Union to sign that convention has never been called in question.
81. In the interests of legal certainty, therefore, it is appropriate for the Court to maintain the effects of that decision until the adoption, within a reasonable period which must not exceed six months, of a new decision based on the appropriate legal bases, namely Article 207(4) TFEU, together with Article 218(5) TFEU.
Costs