Federal Republic of Germany v Council of the European Union.
Date: 2017-12-05
41


In the alternative, the Council, supported by the Commission, refers to Opinion 2/00 (Cartagena Protocol on Biosafety) of 6 December 2001 (EU:C:2001:664, paragraphs 44 to 47), and to the judgments of 7 October 2004, Commission v France, (C‑239/03, EU:C:2004:598, paragraph 30), and of 30 May 2006, Commission v Ireland (C‑459/03, EU:C:2006:345, paragraph 95), and considers that the European Union has the competence to adopt such a position, in accordance with Article 218(9) TFEU, by virtue of a competence that it shares with the Member States, even in the absence of EU rules in the area of private law concerning contracts of carriage. According to those institutions, the action of the Union externally is not, contrary to what is maintained by the Federal Republic of Germany, limited to areas which are already the subject of EU common rules, but also extends to areas which are not yet, or are only partly, covered by legislation at EU level, which, as a result, is not liable to be affected. In the latter case also, the Union has the competence to adopt a decision, under Article 218(9) TFEU, acting by virtue of a shared external competence, that competence being limited, in accordance with Protocol No (25) on the exercise of shared competences, annexed to the EU and FEU Treaties, to the specific elements governed by the Union decision in question.
46


Moreover, it follows from the Court’s settled case-law that a distinction must be made between whether the Union has an external competence and whether any such competence is exclusive or shared (Opinion 1/76 (Agreement on the establishment of a European Laying‑up Fund for Inland Waterway Vessels) of 26 April 1977, EU:C:1977:63, paragraphs 3 and 4; Opinion 2/91 (ILO Convention No 170) of 19 March 1993, EU:C:1993:106, paragraphs 13 to 18; Opinion 1/03 (New Lugano Convention) of 7 February 2006, EU:C:2006:81, paragraphs 114 and 115, and judgment of 30 May 2006, Commission v Ireland, C‑459/03, EU:C:2006:345, paragraphs 93 and 94; see to that effect, also, Opinion 2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, paragraphs 44 to 47).
59


In particular, the common rules provided for in Article 91(1)(a) TFEU are applicable to ‘international transport to or from the territory of a Member State, or passing across the territory of one or more Member States’. In its judgment of 31 March 1971, Commission v Council (22/70, EU:C:1971:32, paragraphs 26 and 27), the Court stated, specifically in that field, that that provision which is also concerned with transport to and from third countries - as regards that part of the journey that takes place on EU territory - and which thus is based on the assumption that the European Union’s competence extends to relationships that are subject to international law, meaning that agreements with the third countries concerned are therefore necessary in the field in question.
63


The Court has held, in the judgment of 30 May 2006, Commission v Ireland (C‑459/03, EU:C:2006:345, paragraph 95 and the case-law cited), on the subject of whether a provision of a mixed agreement in the area of environmental protection, where the Union and its Member States have a shared competence, came within the competence of the European Union, that the Union can enter into agreements in that area even if the specific matters covered by those agreements are not yet, or are only very partially, the subject of rules at EU level which, by reason of that fact, are not likely to be affected.
68


Admittedly, the Court found, in paragraph 244 of that Opinion, that the relevant provisions of the agreement concerned, relating to non-direct foreign investment, which fall within the shared competence of the European Union and its Member States, could not be approved by the Union alone. However, in making that finding, the Court did no more than acknowledge the fact that, as stated by the Council in the course of the proceedings relating to that Opinion, there was no possibility of the required majority being obtained within the Council for the Union to be able to exercise alone the external competence that it shares with the Member States in this area.
79


As regards the alleged necessity of indicating as a legal basis in the contested decision not only Article 91(1)TFEU but also the second situation referred to in Article 216(1) TFEU, it must be recalled that, in accordance with settled case-law, the obligation under Article 296 TFEU to state reasons requires that all of the measures concerned should contain a statement of the reasons which led the institution concerned to adopt them, in order that the Court can exercise its power of review and that the Member States and the third parties concerned may know the conditions under which the EU institutions have applied the FEU Treaty (judgment of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraph 37 and the case-law cited).
80


An indication of the legal basis is essential in the light of the principle of conferral 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 the international action of the European Union. 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 (judgment of 25 October 2017, Commission v Council (WRC‑15), C‑687/15, EU:C:2017:803, paragraphs 48 and 49].
81


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 (judgment of 25 October 2017, Commission v Council (WRC‑15), C‑687/15, EU:C:2017:803, paragraph 50).
82


An indication of the legal basis is also 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 (judgment of 25 October 2017, Commission v Council (WRC‑15), C‑687/15, EU:C:2017:803, paragraph 52).
83


The Court has also held that 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 (judgments of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraph 39, and of 25 October 2017, Commission v Council (WRC‑15), C‑687/15, EU:C:2017:803, paragraph 53).
84


Moreover, it is clear from equally settled case-law of the Court that the alleged failure to refer to a specific provision of the Treaty, such as in this case Article 216(1) TFEU, as raised by the Federal Republic of Germany, does not constitute an infringement of essential procedural requirements if the legal basis for a measure may be determined from other parts of the measure, provided that the parties concerned and the Court are not left uncertain as to the specific legal basis (see, to that effect, judgment of 25 October 2017, Commission v Council (WRC‑15), C‑687/15, EU:C:2017:803, paragraph 55 and the case-law cited).
94


In its third plea in law, the Federal Republic of Germany states that the principle of sincere cooperation, enshrined in the first subparagraph of Article 4(3) TEU, not only obliges the Member States to take all the measures necessary to guarantee the application and effectiveness of EU law, but also imposes on the EU institutions reciprocal duties of sincere cooperation with the Member States.
105


It must be recalled that, under Article 4(3) TEU, which sets out the principle of sincere cooperation, the European Union and the Member States are, in full mutual respect, to assist each other in carrying out the tasks provided for by the Treaties.
107


It is apparent, in this case, that the discussions which took place within the Council working group, with a view to the establishment of a Union position, began on 26 April 2014, namely the day after that on which most of the documents had been sent by the OTIF Secretary-General, and the discussions continued at the following two meetings, on the basis of the Commission’s proposal for a decision. Further, the progress of the procedure, as described by the Council and summarised in paragraph 100 of the present judgment, indicates that the Council began preliminary discussions with a view to the adoption of a Union position without waiting for all the working documents drawn up for the 25th session of the OTIF Revision Committee to be sent to it. The four meetings of the appropriate Council working group and of the Permanent Representatives Committee were devoted to, inter alia, clarification of the allocation of the respective powers of the European Union and the Member States with respect to the items on the agenda of the 25th session of the OTIF Revision Committee, on the subject of which the Federal Republic of Germany had expressed its reservations. Last, the Federal Republic of Germany has not established that the period of one week that elapsed between the approval of the proposal for a decision by the Permanent Representatives Committee and the adoption of the contested decision by the Council was so unwarranted as to call into question the fulfilment, by that institution, of its duty of sincere cooperation with the Member States.