Commission of the European Communities v Council of the European Union.
Date: 2006-01-10
34. It must be borne in mind at the outset that, according to settled case-law, the choice of the legal basis for a Community measure, including one adopted with a view to conclusion of an international agreement, must be based on objective factors which are amenable to judicial review and include in particular the aim and content of the measure (see Case 45/86 Commission  v Council , cited above, paragraph 11; Case C-300/89 Commission  v Council  (the ‘ Titanium dioxide  case’) [1991] ECR I-2867, paragraph 10; Case C-268/94 Portugal  v Council  [1996] ECR I‑6177, paragraph 22; Opinion 2/00, cited above, paragraph 22; and Case C‑176/03 Commission  v Council  [2005] ECR I‑0000, paragraph 45).
35. If examination of a Community 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, the act must be based on a single legal basis, namely that required by the main or predominant purpose or component (see Case C-36/98 Spain  v Council  [2001] ECR I-779, paragraph 59; Case C-211/01 Commission  v Council  [2003] ECR I‑8913, paragraph 39; and Case C-338/01 Commission  v Council  [2004] ECR I‑4829, paragraph 55).
36. Exceptionally, if on the other hand it is established that the act simultaneously pursues a number of objectives or has several components that are indissociably linked, without one being secondary and indirect in relation to the other, such an act will have to be founded on the various corresponding legal bases (see, to that effect, Case C-336/00 Huber  [2002] ECR I-7699, paragraph 31; C-281/01 Commission  v Council , cited above, paragraph 35; and Case C-211/01 Commission  v Council , cited above, paragraph 40).
37. In this case, as the Council and all the interveners have indicated in their written observations or oral submissions, it cannot be denied that the protection of human health and the environment was the most important concern in the mind of the signatories of the Convention. That objective is clearly apparent not only from a reading of the preamble to the Convention but also from its actual text, in which several provisions unequivocally confirm the importance of that objective.
42. Accordingly, it cannot be inferred from the foregoing paragraphs that the commercial component of the Convention is purely incidental. A reading of the provisions of the Convention and, more particularly, of its articles concerning the PIC procedure, prompts the conclusion that the Convention also contains rules governing trade in hazardous chemicals and having direct and immediate effects on such trade (see, to that effect, Opinion 2/00, cited above, paragraph 37, and Case C-281/01 Commission  v Council , cited above, paragraphs 40 and 41).
43. Evidence of the presence of such rules is to be found in Article 1 of the Convention, according to which the parties affirm that their aim is to promote shared responsibility and cooperative efforts ‘in the international trade of certain hazardous chemicals’ and also in the decision at issue in these proceedings. The Council explicitly recognises, in the third recital in the preamble thereto, that the Convention ‘is an important step in improving the international regulation of trade in certain hazardous chemicals and pesticides in order to protect human health and the environment from potential harm and to promote the environmentally sound use of such substances’. It is clearly therefore through the adoption of measures of a commercial nature, relating to trade in certain hazardous chemicals or pesticides, that the parties to the Convention seek to attain the objective of protecting human health and the environment.
46. As defined in the Convention, that procedure also involves a number of measures that must be classified as measures ‘governing’ or ‘regulating’ international trade in the products concerned and therefore fall within the scope of the common commercial policy. Reference may in particular be made, in that connection, to the obligation imposed on the parties to the Convention to establish the import regime applicable to the products that are subject to that procedure (Article 10(1) to (5)), the disclosure of the essential elements of that regime to any natural or legal person with an interest (Article 10(8)) or the obligation imposed on exporting parties to ensure compliance by exporters within their jurisdiction with the regimes laid down by the importing parties and, in particular, to prohibit, subject to clearly circumscribed exceptions, any export of the products listed in Annex III to the Convention to a party to the Convention which has not notified to the secretariat the import regime applicable to those products or has merely notified to it an interim response not containing a decision concerning the interim import regime (Article 11(1)(b) and (2)).
47. Article 10(9) of the Convention – requiring the parties thereto that have decided not to consent to the import of a specific chemical or to consent thereto only under certain conditions, or to ban or restrict simultaneously the import of the product, whatever its provenance, and domestic production of that product – is, in that connection, particularly indicative of the close links existing, within that agreement, between the commercial and environmental policies. In so far as that article is also concerned with domestic production of the chemicals concerned, it is undeniable that it falls within the scope of the policy of protecting human health and the environment. At the same time, however, it cannot be denied that such a provision has a clear commercial aspect since a ban or restriction imposed by the importing parties must apply to any import of the products concerned, whatever their provenance. Countries that have not signed the Convention are therefore also covered by that provision, which is liable to have a direct impact on trade from or to those countries.
49. Those findings concerning the commercial component of the Convention cannot be called in question by the fact that the Convention tends more to restrict trade in such products than to promote it. As the Commission has rightly pointed out in its written submissions, numerous Community measures have been adopted on the basis of Article 133 EC or, previously, Article 113 of the EC Treaty (now, after amendment, Article 133 EC), even though they were explicitly designed to restrict, or indeed prohibit entirely, imports or exports of certain products (see, in that connection, in particular, Case C-70/94 Werner  [1995] ECR I-3189, paragraph 10; Case C-83/94 Leifer  [1995] ECR I-3231, paragraph 10; and Case C‑124/95 Centro-Com  [1997] ECR I-81, paragraph 26).
50. As regards the fact, referred to by several interveners, that other similar Community agreements or regulations are based on Article 130s of the EEC or EC Treaties or on Article 175 EC, it is entirely irrelevant in the context of the present case. In fact, 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 Community measures which might, in certain cases, display similar characteristics (see, in particular, Case C-187/93 Parliament  v Council  [1994] ECR I-2857, paragraph 28, regarding, specifically, the choice of legal basis for Regulation No 259/93, which is relied on by the Council and a number of interveners in the present case in support of recourse to Article 175 EC).
51. Having regard to all the foregoing considerations, and as is also clear from the express terms of the eighth recital in the preamble to the Convention, according to which the commercial and environmental policies of the parties to the Convention should be mutually supportive with a view to achieving sustainable development, it must therefore be concluded that the Convention includes, both as regards the aims pursued and its contents, two indissociably linked components, neither of which can be regarded as secondary or indirect as compared with the other, one falling within the scope of the common commercial policy and the other within that of protection of human health and the environment. In accordance with the case-law cited in paragraph 36 of the present judgment, the decision approving that Convention on behalf of the Community should therefore have been based on the two corresponding legal bases, namely, in this case, Articles 133 EC and 175(1) EC, in conjunction with the relevant provisions of Article 300 EC.
52. Admittedly, and as the Court held, in substance, in paragraphs 17 to 21 of the Titanium dioxide  case, cited above, recourse to a dual legal basis is not possible where the procedures laid down for each legal basis are incompatible with each other or where the use of two legal bases is liable to undermine the rights of the Parliament (see also, to that effect, Joined Cases C-164/97 and C‑165/97 Parliament  v Council  [1999] ECR I-1139, paragraph 14, and Case C‑338/01 Commission  v Council , cited above, paragraph 57). In this case, however, no such consequence follows from recourse to both Article 133 EC and Article 175(1) EC at the same time.
54. Second, recourse to Article 133 EC jointly with Article 175(1) EC is likewise not liable to undermine the Parliament’s rights because, although the first-mentioned article, read in conjunction with the first subparagraph of Article 300(3) EC, does not provide for consultation of that institution prior to the conclusion of an agreement in the area of commercial policy, the second article, on the other hand, does lead to such a result. In contrast to the situation at issue in the abovementioned Titanium dioxide  case, the use of a combination of legal bases does not therefore in this case involve any encroachment upon the Parliament’s rights.