Commission of the European Communities v Council of the European Union.
Date: 2009-10-01
16. In that connection, it must be recalled that the Commission does not have to demonstrate an interest in bringing proceedings in order to bring an action seeking the annulment of such decisions (see, to that effect, Case 45/86 Commission  v Council  [1987] ECR 1493, paragraph 3).
17. Furthermore, it should be observed that the Court has already declared an action for annulment to be admissible where the measure had already been implemented or was no longer in force at the time at which the action was brought (see Case 53/85 AKZO Chemie and AKZO Chemie UK v Commission  [1986] ECR 1965, paragraph 21, and Case 207/86 Apesco v Commission  [1988] ECR 2151, paragraph 16).
37. As a preliminary point, the Court has consistently held that the obligation under Article 253 EC to give reasons requires that all of the measures concerned should contain a statement of the reasons which led the institution 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 learn of the conditions under which the Community institutions have applied the Treaty (see to that effect, inter alia, Case C-41/93 France  v Commission  [1994] ECR I-1829, paragraph 34).
38. It is clear from the Court’s case-law that the obligation to indicate the legal basis of a measure is related to the duty to state reasons (see, inter alia, Case 45/86 Commission  v Council , paragraph 9, and Case 203/86 Spain  v Council  [1988] ECR 4563, paragraphs 36 to 38).
39. 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 Community law which prescribes the legal form to be taken by that act and which must be expressly indicated therein as its legal basis (Case C‑325/91 France  v Commission  [1993] ECR I-3283, paragraph 26).
42. In that connection, the classification of the contested decision as a decision within the meaning of Article 249 EC or as a sui generis decision is not conclusive in the present case for the purpose of deciding whether it must be subject to the obligation that it be reasoned. That obligation, which is justified in particular by the need for the Court to be able to exercise judicial review, must apply to all acts which may be the subject of an action for annulment. According to settled case-law, acts open to challenge, within the meaning of Article 230 EC, are any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects (see, inter alia, the AETR judgment, paragraph 42, Case 60/81 IBM  v Commission  [1981] ECR 2639, paragraph 9, and Case C‑521/06 P Athinaïki Techniki  v Commission  [2008] ECR I-5829, paragraph 42). It follows that, in principle, any measure producing binding effects is subject to the obligation to state reasons.
44. The contested decision is therefore a measure which produces binding legal effects, in so far as it establishes the Community position at that 14 th  meeting, and which is binding in nature, first, with respect to the Council and the Commission and, second, with respect to the Member States inasmuch as it obliges them to defend that position.
45. It follows that the contested decision must be reasoned and must therefore indicate the legal basis on which it is founded in order, in particular, that the Court may be able to exercise its powers of review.
46. The legal basis must also be indicated in the light of the principle of the allocation of powers enshrined in the first paragraph of Article 5 EC, according to which the Community must act within the limits of the powers conferred on it and of the objectives assigned to it by the Treaty in both the internal action and the international action of the Community (see Opinion 2/94 [1996] ECR I‑1759, paragraph 24).
48. The indication of the legal basis also has particular importance for preserving the prerogatives of the Community institutions concerned by the procedure for the adoption of a measure. Thus, in the present case, such an indication is liable to have an effect on the powers of the Parliament, given that Articles 133 EC, 175 EC, and 300(2) EC do not confer on it the same degree of involvement in the adoption of a measure. In the same way, an indication of the legal basis is necessary in order to determine the voting procedure within the Council. In that regard, the first subparagraph of Article 300(2) EC provides that the Council is to act by qualified majority except, first, when the agreement covers a field for which unanimity is required for the adoption of internal rules and, second, for the agreements referred to in Article 310 EC.
49. Furthermore, the indication of the legal basis determines the division of powers between the Community and the Member States. In the present case, the application of Article 175 EC or Article 133 EC alone would not have had the same implications for the division of powers between the Community and the Member States as a combined application of those two provisions, since Article 133 EC confers powers exclusive to the Community, whereas Article 175 EC provides for powers shared between the Community and the Member States. The failure to indicate a legal basis may thus give rise to confusion as to the nature of the Community’s powers and is liable to weaken the Community in the defence of its position in international negotiations.
52. Second, as regards the United Kingdom’s argument that excessive formality would seriously hamper the effectiveness of the Community’s participation in bodies set up by international agreements, it should be noted, first, that, although the need for flexibility as regards courses of action to be taken may be of some importance in the context of international negotiations, the fact remains that the Community has only conferred powers and may act only within the limits of those powers. Second, according to settled case-law, the requirement to be satisfied by the statement of reasons is determined in the light of the nature of the act concerned and its context (see, to that effect, Case C-333/07 Régie Networks  [2008] ECR I-0000, paragraph 63 and the case-law cited). Therefore, although a statement of reasons for the act in question, more or less detailed depending on the circumstances, may indeed be capable of addressing any difficulties encountered during international negotiations, the need to indicate its legal basis is not an excessive requirement. The indication of the legal basis must therefore be regarded, in principle, as a minimum item of information making it possible to satisfy the requirement that the reasons on which a decision is based should be stated, since the Community must link the measure to a provision of the Treaty which empowers it to adopt that decision.
53. Third, the argument regarding the constraints relating to time-limits likewise raised by the United Kingdom must also be rejected. As the Community has only conferred powers, the article of the Treaty which confers those powers on it must be determined before it acts. Furthermore, stating the legal basis subsequently, in an act intended to implement amendments to CITES at Community level, is not sufficient, contrary to the Council’s submissions, to comply with the duty to state reasons, since the statement of reasons for a measure must appear in that measure (see Case C-291/98 P Sarrió  v Commission  [2000] ECR I‑9991, paragraphs 73 and 75, and Case C-378/00 Commission  v Parliament and Council  [2003] ECR I‑937, paragraph 66).
54. Finally, the argument put forward by the Council that, in the past, comparable decisions also failed to indicate the legal basis on which they were founded likewise cannot be accepted. Suffice it to point out in that regard that a mere practice on the part of the Council cannot derogate from rules laid down in the Treaty and cannot therefore create a precedent binding on the Community institutions with regard to the correct legal basis (Case 68/86 United Kingdom  v Council , paragraph 24, and Case C-271/94 Parliament  v Council  [1996] ECR I‑1689, paragraph 24).
55. It follows that the contested decision ought, at least, to have indicated the legal basis on which it is founded in order to satisfy the obligation to state reasons.
56. However, it must be recalled that failure to refer to a precise 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. However, such explicit reference is indispensable where, in its absence, the parties concerned and the Court are left uncertain as to the precise legal basis (see Case 45/86 Commission  v Council , paragraph 9).
60. It follows that the legal basis of the contested decision cannot be clearly deduced from that decision itself and that the fact that no legal basis is indicated is explained by the existence of disagreement within the Council, at least with regard to the substantive legal basis.
61. In those circumstances, contrary to the submissions of the Council and the United Kingdom, the failure to indicate any legal basis in the contested decision cannot be regarded a purely formal defect.
64. Under the second paragraph of Article 231 EC the Court may, if it considers this necessary, state which of the effects of a regulation which it has declared void are to be considered as definitive. Such a provision is also capable of being applied, by analogy, to a decision where there are important grounds of legal certainty, comparable to those which arise in the case of annulment of certain regulations, justifying exercise by the Court of the power conferred on it, in this context, by the second paragraph of Article 231 EC (Case C-155/07 Parliament  v Council  [2008] ECR I-0000, paragraph 87 and the case-law cited).
65. It must be observed that the contested decision was intended to establish the Community position on a number of proposals examined during the 14 th  meeting of the Conference of the Parties to CITES which took place in The Hague from 3 to 15 June 2007. It is not disputed in this regard that that Community position was in fact expressed by the Member States in accordance with the contested decision.