European Commission v Council of the European Union.
Date: 2017-10-25
23


However, a party who, pursuant to Article 40 of the Statute of the Court of Justice of the European Union, is granted leave to intervene in a case submitted to the Court may not alter the subject matter of the dispute as defined by the forms of order sought by the main parties and the pleas in law raised by those parties. It follows that arguments submitted by an intervener are not admissible unless they fall within the framework provided by those forms of order and pleas in law (see, inter alia, judgment of 7 October 2014, Germany v Council, C‑399/12, EU:C:2014:2258, paragraph 27).
40


As regards, first, the form of the contested act, it must be recalled that the Treaties set up a system of allocation of powers among the EU institutions, assigning to each institution its own role in the institutional structure of the European Union and the accomplishment of the tasks entrusted to the European Union. 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 European Union, a principle which requires that each of the institutions must exercise its powers with due regard for the powers of the other institutions (judgment of 28 July 2016, Council v Commission, C‑660/13, EU:C:2016:616, paragraphs 31 and 32 and the case-law cited).
41


Accordingly, as the Court has repeatedly held, in so far as the rules regarding the manner in which the EU institutions arrive at their decisions are laid down in the Treaties and are not within the discretion of the Member States or of the institutions themselves, the Treaties alone may, in particular cases, empower an institution to amend a decision-making procedure established by the Treaties (judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 149).
42


In this case, it must, first, be emphasised that, contrary to what is suggested by the Council, the practice of the institutions, and in particular, with respect to the present case, an alleged consistent practice in relation to the preparation of the EU position for the purposes of the world radiocommunication conferences by means of conclusions, a practice which is contradicted by the position maintained by the Commission in this action, cannot alter the rules of the Treaties that the institutions are obliged to respect. In accordance with settled case-law, a mere practice on the part of the Council cannot derogate from the rules of the Treaty and cannot therefore create a precedent that is binding on the EU institutions (see, to that effect, judgment of 6 May 2008, Parliament v Council, C‑133/06, EU:C:2008:257, paragraph 60 and the case-law cited, and Opinion 1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739, paragraph 172 and the case-law cited].
48


As regards, second, the fact that the contested act makes no reference to the legal basis on which it is adopted, it must be observed, at the outset, that an indication of the legal basis is essential in the light of the principle of the allocation of powers enshrined in Article 5(2) TEU, according to which the European Union must act within the limits of the competences conferred on it by the Member States in the Treaties to attain the objectives set out in the Treaties with respect to both the internal action and international action of the European Union (see, to that effect, Opinion 2/94 (Accession of the Community to the ECHR) of 28 March 1996, EU:C:1996:140, paragraph 24, and judgment of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraph 46).
49


The choice of the appropriate legal basis has constitutional significance, since, having only conferred powers, the European Union must link the acts which it adopts to provisions of the FEU Treaty which actually empower it to adopt such acts (Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 71).
50


Further, the indication of the legal basis is of particular significance in order to preserve the prerogatives of the EU institutions concerned by the procedure for the adoption of a measure (see, to that effect, judgment of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraph 48).
51


Thus, in the present case, such an indication is liable to have an effect on the powers of the Commission and of the Council and on their respective roles in the procedure for the adoption of the contested act. In the same way, an indication of the legal basis is necessary in order to determine the voting procedure within the Council (see, by analogy, judgment of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraph 48). In particular, since the contested act does not correspond to any of the situations mentioned in the second subparagraph of Article 218(8) TFEU, the Council must, in principle, in accordance with the provisions, read together, of the first subparagraph of Article 218(8) and Article 218(9) TFEU, act by qualified majority when adopting that act (see, to that effect, judgment of 18 December 2014, United Kingdom v Council, C‑81/13, EU:C:2014:2449, paragraph 66).
52


Moreover, it must be recalled that an indication of the legal basis is essential in the light of the obligation to state reasons that stems from Article 296 TFEU. That obligation, which is justified in particular by the need for the Court to be able to exercise its power of judicial review, must apply to all European Union acts that produce legal effects (see, to that effect, judgment of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraphs 42 and 45).
53


Last, the requirement of legal certainty means that the binding nature of any act intended to have legal effects must be derived from a provision of EU law which prescribes the legal form to be taken by that act and which must be expressly indicated therein as its legal basis (judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 47).
55


Moreover, while it is true that failure to refer to a specific provision of the Treaty need not necessarily constitute an infringement of essential procedural requirements if the legal basis for a measure may be determined from other parts of the measure, as claimed by the Council, such explicit reference is, however, indispensable where, in its absence, the parties concerned and the Court are left uncertain as to the specific legal basis (see, inter alia, judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 48).
57


It follows that the legal basis of the contested act cannot be clearly determined. That being the case, contrary to what is argued by the Council, the failure, in the contested act, to indicate any legal basis cannot be regarded as a purely formal defect (see, to that effect, judgment of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraphs 60 and 61).
58


Accordingly, the derogation from the legal form laid down by Article 218(9) TFEU and the failure to indicate the legal basis are the source of confusion as to the legal nature and scope of the contested act and as to the procedure that had to be followed for its adoption, a confusion that was apt to weaken the European Union in the defence of its position at WRC-15 (see, by analogy, judgment of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraph 49).