European Commission v Council of the European Union.
Date: 2018-09-04
10


In support of this plea, the Commission submits that a decision adopted pursuant to Article 218(9) TFEU is to be taken by qualified majority voting, in accordance with the first subparagraph of Article 218(8) TFEU in conjunction with Article 218(9) TFEU, as the Court held in the judgment of 18 December 2014, United Kingdom v Council (C‑81/13, EU:C:2014:2449, paragraph 66), even if one or more of its substantive legal bases would otherwise require unanimity for the conclusion of an international agreement.
11


According to the Commission, Article 218 TFEU lays down, as the Court stated in the judgment of 24 June 2014, Parliament v Council (C‑658/11, EU:C:2014:2025, paragraph 52), a single procedure of general application concerning the negotiation and conclusion of international agreements which the European Union can conclude in the fields of its activity, including the CFSP, a point confirmed by the judgment of 14 June 2016, Parliament v Council (C‑263/14, EU:C:2016:435, paragraph 55), in which the Court held that an agreement falling predominantly within the CFSP must be concluded under Article 218(6) TFEU. Both the negotiation and conclusion of international agreements and the adoption of positions implementing such agreements are governed by that single procedure. Chapter 2 of Title V of the EU Treaty does not cover the decision-making procedure applicable to international agreements.
20


In order to determine the voting rule that must be applied where the Council adopts, under Article 218(9) TFEU, a decision establishing the positions to be adopted on behalf of the European Union in a body set up by an agreement when that body is called upon to adopt acts having legal effects, it is necessary to interpret that provision by considering not only its wording but also its objectives and the context in which it occurs (see, to that effect, judgment of 24 June 2014, Parliament v Council, C‑658/11, EU:C:2014:2025, paragraph 51).
21


In order to satisfy requirements of clarity, consistency and rationalisation, Article 218 TFEU lays down a single procedure of general application concerning, in particular, the negotiation and conclusion of international agreements which the European Union is competent to conclude in the fields of its activity, including the CFSP, except where the Treaties lay down special procedures (see, to that effect, judgment of 24 June 2014, Parliament v Council, C‑658/11, EU:C:2014:2025, paragraph 52).
22


The Court has observed that, precisely because of its general nature, that procedure must take account of the specific features which the Treaties lay down in respect of each field of EU activity, particularly as regards the powers of the institutions, and that it is designed to reflect externally the division of powers between institutions that applies internally, in particular by establishing symmetry between the procedure for adopting EU measures internally and the procedure for adopting international agreements in order to guarantee that the Parliament and the Council enjoy the same powers in relation to a given field, in compliance with the institutional balance provided for by the Treaties (see, to that effect, judgment of 24 June 2014, Parliament v Council, C‑658/11, EU:C:2014:2025, paragraphs 53, 55 and 56).
25


Article 218(9) TFEU lays down a simplified procedure for the purpose, in particular, of deciding on the positions to be adopted on behalf of the European Union in the context of its participation in the adoption, within a decision-making body set up by the international agreement concerned, of acts applying or implementing that agreement (see, to that effect, judgment of 6 October 2015, Council v Commission, C‑73/14, EU:C:2015:663, paragraph 65).
27


As Article 218(9) TFEU does not, on the other hand, lay down any voting rule for the purpose of adoption by the Council of the categories of decisions which it covers, the applicable voting rule must be determined in each individual case by reference to Article 218(8) TFEU. Thus, the Court has already had occasion to hold that, where a decision by which the Council establishes the position to be adopted on behalf of the European Union in a body set up by an agreement does not correspond to any of the cases in which the second subparagraph of Article 218(8) TFEU requires a unanimous vote, the Council must, in principle, in accordance with the first subparagraph of Article 218(8) TFEU read in conjunction with Article 218(9) TFEU, act by qualified majority when adopting that decision (judgment of 25 October 2017, Commission v Council (WRC‑15), C‑687/15, EU:C:2017:803, paragraph 51).
36


According to settled case-law, the choice of the legal basis for an EU measure must rest on objective factors amenable to judicial review, which include the aim and content of that measure (see, to that effect, judgment of 26 March 1987, Commission v Council, 45/86, EU:C:1987:163, paragraph 11; judgment of 11 June 1991, Commission v Council, C‑300/89, EU:C:1991:244, paragraph 10; Opinion 2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, paragraph 22; and judgment of 14 June 2016, Parliament v Council, C‑263/14, EU:C:2016:435, paragraph 43).
37


If examination of an EU measure reveals that it pursues two purposes or that it comprises two components and if one of these is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the measure must be founded on a single legal basis, namely that required by the main or predominant purpose or component. Exceptionally, if it is established, on the other hand, that the measure simultaneously pursues a number of objectives, or has several components, which are inextricably linked without one being incidental to the other, so that various provisions of the Treaty are applicable, the measure must be founded on the various corresponding legal bases (see, to that effect, judgments of 10 January 2006, Commission v Parliament and Council, C‑178/03, EU:C:2006:4, paragraphs 42 and 43; of 11 June 2014, Commission v Council, C‑377/12, EU:C:2014:1903, paragraph 34; and of 14 June 2016, Parliament v Council, C‑263/14, EU:C:2016:435, paragraph 44).
40


As the Advocate General has observed, in essence, in point 54 of her Opinion, the measures whose adoption was envisaged concern, generally, the functioning of the international bodies set up on the basis of the Partnership Agreement. It follows that the field within which the contested decision falls must be determined in the light of the Partnership Agreement as a whole (see, to that effect, judgment of 25 October 2017, Commission v Council (Revised Lisbon Agreement), C‑389/15, EU:C:2017:798, paragraph 64, and, by analogy, Opinion 2/15 (EU-Singapore Free Trade Agreement) of 16 May 2017, EU:C:2017:376, paragraph 276 and the case-law cited).
45


Second, the provisions of the Partnership Agreement displaying a link with the CFSP and cited in paragraph 42 of the present judgment, apart from being few in number in comparison with the agreement’s provisions as a whole, are limited to declarations of the contracting parties on the aims that their cooperation must pursue and the subjects to which that cooperation will have to relate, and do not determine in concrete terms the manner in which the cooperation will be implemented (see, by analogy, judgment of 11 June 2014, Commission v Council, C‑377/12, EU:C:2014:1903, paragraph 56).
51


In the present case, it is clear from the information available to the Court that the position of the European Union defined by the contested decision was expressed within the Cooperation Council in March 2017 and that the Cooperation Council adopted the measures envisaged by that decision in the same month. Therefore, annulment of the contested decision without its effects being maintained would be liable to disrupt the functioning of the bodies established by the Partnership Agreement, to cast doubt on the commitment of the European Union in relation to the legal measures adopted by those bodies and thus to hinder the proper implementation of that agreement (see, by analogy, judgment of October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraph 65).