European Commission v Council of the European Union.
Date: 2018-11-20
53


In that regard, it should be noted that, under Article 83 of the Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, inter alia where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute the Court of Justice of the European Union (see, to that effect, judgment of 26 September 2018, Belastingdienst/Toeslagen (Suspensory effect of the appeal), C-175/17, EU:C:2018:776, paragraph 20).
59


In accordance with settled case-law, any decision adopted by an institution, office, body or agency of the European Union, irrespective of its nature or form, which is intended to have legal effects constitutes a challengeable act for the purposes of Article 263 TFEU (see, inter alia, judgment of 28 April 2015, Commission v Council, C‑28/12, EU:C:2015:282, paragraph 14).
60


First of all, as set out in Article 240(1) TFEU, Coreper consists of the permanent representatives of the governments of the Member States of the European Union and is responsible for preparing the work of the Council and for carrying out the tasks assigned to it by the latter. Thus, the framers of the Treaties intended to make Coreper an auxiliary body of the Council, for which it carries out preparation and implementation work (see, to that effect, judgment of 19 March 1996, Commission v Council, C‑25/94, EU:C:1996:114, paragraphs 25 and 26).
61


Whilst the function of preparing the work of the Council and of carrying out the tasks assigned by it does not give Coreper the power to take decisions, a power which belongs, under the Treaties, to the Council (see, to that effect, judgment of 19 March 1996, Commission v Council, C‑25/94, EU:C:1996:114, paragraph 27), the fact remains that, as the European Union is a union based on the rule of law, a measure adopted by Coreper must be amenable to judicial review where it is intended, as such, to produce legal effects and therefore falls outside the framework of that preparation and implementation function.
62


Next, so far as concerns determination of the effects which the 2015 decision is intended to produce, in accordance with settled case-law it is necessary to look to its substance, which must be assessed on the basis of objective criteria such as the context in which that measure was adopted, its content and its author’s intention, provided that the latter can be determined objectively (see, to that effect, judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42).
76



Indeed, it should be recalled that, according to settled case-law, in order to identify the competence to which decisions are to be linked, it is necessary to specify their appropriate legal basis by having regard to objective factors that include the context, content and aims pursued by the decisions at issue (judgment of 18 December 2014, United Kingdom v Council, C‑81/13, EU:C:2014:2449, paragraph 35).
77


In addition, according to settled case-law, if examination of an EU measure reveals that it pursues several purposes or that it comprises several components and if one of these is identifiable as the main or predominant purpose or component, whereas the others are merely incidental, the measure must then be founded on a single legal basis, namely that corresponding to the main purpose or component (see, to that effect, judgments of 24 June 2014, Parliament v Council, C‑658/11, EU:C:2014:2025, paragraph 43 and the case-law cited, and of4 September 2018, Commission v Council (Agreement with Kazakhstan), C‑244/17, EU:C:2018:662, paragraph 37 and the case-law cited).
78


It is only exceptionally that an EU measure must be founded simultaneously on several legal bases, that is to say, when it simultaneously pursues a number of objectives or has several components that are inseparably linked, without one being incidental to the other (see, to that effect, judgment of11 September 2003, Commission v Council, C‑211/01, EU:C:2003:452, paragraph 40).
86


Initially, the Treaties prescribed, among the competences of the European Union, the establishment of a common agricultural policy including fisheries, without separate mention of the conservation of marine resources. Under that competence, the European Union adopted, on 20 October 1970, Regulation (EEC) No 2141/70 of the Council laying down a common structural policy for the fishing industry (OJ, English Special Edition 1970 (III), p. 703), Article 5 of which specifically empowered the Council to adopt measures for the conservation of fishery resources. That power was then reproduced in the Act concerning the conditions of accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ, English Special Edition, 27 March 1972, p. 14), an act in respect of which the Court has held that, at the end of the transitional period laid down by it, the Member States cease to have competence in respect of that area (see, to that effect, judgments of 14 July 1976, Kramer and Others, 3/76, 4/76 and 6/76, EU:C:1976:114, paragraph 40, and of 5 May 1981, Commission v United Kingdom, 804/79, EU:C:1981:93, paragraphs 17 and 27).
108


The Commission’s argument concerning the two regulations referred to does not meet the evidential requirements resulting from the Court’s case-law. As the Court held in the judgment of 4 September 2014, Commission v Council (C‑114/12, EU:C:2014:2151, paragraph 75), it is for the party which pleads that the external competence of the European Union is exclusive to prove this. However, the Commission has not put forward any evidence or arguments to establish that the external competence of the European Union invoked by it on the basis of Article 3(2) TFEU is exclusive. In any event, the envisaged measures do not contain any provision that may affect the application of Regulations No 600/2004 and 601/2004, because those regulations concern fishing activities and not, as in the present instance, activities for the conservation of biological resources.
114


Furthermore, such a risk of common EU rules being affected may be found to exist where the international commitments at issue, without necessarily conflicting with those rules, may have an effect on their meaning, scope and effectiveness (see, to that effect, judgment of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 102, and Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014, EU:C:2014:2303, paragraph 85).
115


It is for the party concerned to put forward evidence or arguments to establish that the exclusive nature of the external competence of the European Union on which it seeks to rely has been disregarded (see, to that effect, judgment of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 75).
126


It is true that the Court has had occasion to state that the mere fact that international action of the European Union falls within a competence shared between it and the Member States does not preclude the possibility of the required majority being obtained within the Council for the European Union to exercise that external competence alone (see, to that effect, judgment of 5 December 2017, Germany v Council, C‑600/14, EU:C:2017:935, paragraph 68, citing paragraph 244 of Opinion 2/15 (EU-Singapore Free Trade Agreement) of 16 May 2017, EU:C:2017:376).
127


That said, in accordance with settled case-law, when the European Union decides to exercise its powers they must be exercised in observance of international law (see, to that effect, inter alia, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 291 and the case-law cited).