1 By its application, the European Commission seeks the annulment of Council Decision (EU) 2017/477 of 3 March 2017 on the position to be adopted on behalf of the European Union within the Cooperation Council established under the Enhanced Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Kazakhstan, of the other part as regards the working arrangements of the Cooperation Council, the Cooperation Committee, specialised subcommittees or any other bodies (OJ 2017 L 73, p. 15; ‘the contested decision’).
2 On 26 October 2015, the Council of the European Union adopted Decision (EU) 2016/123 on the signing, on behalf of the European Union, and provisional application of the Enhanced Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Kazakhstan, of the other part (OJ 2016 L 29, p. 1). That decision was adopted on the legal basis of Articles 37 and 31(1) TEU and Articles 91, 100(2) and 207 and 209 TFEU in conjunction with Article 218(5) and the second subparagraph of Article 218(8) TFEU. The Enhanced Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Kazakhstan, of the other part (‘the Partnership Agreement’) was signed on 21 December 2015 in Astana (Kazakhstan) and its provisional application, provided for in Article 281(3) thereof, began on 1 May 2016.
3 Article 268 of the Partnership Agreement establishes a Cooperation Council, which is assisted in the performance of its duties by a Cooperation Committee, established by Article 269 of that agreement. Article 269(6) provides that the Cooperation Council may decide to set up specialised subcommittees or any other bodies that can assist it in carrying out its duties, and is to determine the composition and duties of such subcommittees or bodies and how they are to function.
4 In addition, Article 268(7) of the Partnership Agreement provides that the Cooperation Council is to establish its rules of procedure. Article 269(7) of that agreement states that in those rules the Cooperation Council is to determine the duties and functioning of the Cooperation Committee and of any subcommittee or body set up by the Cooperation Council.
5 For the purpose of implementing those provisions, the Commission, jointly with the High Representative of the European Union for Foreign Affairs and Security Policy, adopted on 3 February 2017 a proposal for a Council decision on the position to be adopted on behalf of the European Union in the Cooperation Council established under the Partnership Agreement, which had Article 218(9) TFEU in conjunction with Article 37 TEU as its procedural legal basis and Articles 207 and 209 TFEU as its substantive legal basis.
6 On 3 March 2017 the Council adopted the contested decision, adding Article 31(1) TEU and Articles 91 and 100(2) TFEU to the proposed legal bases. The contested decision provides: ‘Article 1 1. The position to be taken on the Union’s behalf within the Cooperation Council established by Article 268(1) of the [Partnership Agreement] shall be based on the draft Decisions of the Cooperation Council attached to this Decision as regards: - the adoption of the Rules of Procedure of the Cooperation Council and those of the Cooperation Committee, specialised subcommittees or any other bodies, - the establishment of a Subcommittee on Justice, Freedom and Security, a Subcommittee on Energy, Transport, Environment and Climate Change and a Subcommittee on Customs Cooperation. 2. Minor technical corrections to the draft Decisions of the Cooperation Council may be agreed to by the representatives of the Union within the Cooperation Council without further decision of the Council. Article 2 The Cooperation Council shall be chaired on the Union side by the High Representative of the Union for Foreign Affairs and Security Policy, in accordance with his or her responsibilities pursuant to the Treaties and his or her capacity as President of the Foreign Affairs Council. ...’
7 The Commission claims that the Court should annul the contested decision and order the Council to pay the costs.
8 The Council contends that the action should be dismissed and that the Commission should be ordered to pay the costs. In the alternative, should the contested decision be annulled, it requests the Court to maintain its effects.
9 By its single plea in law, the Commission criticises the Council for adding, in the legal basis of the contested decision, Article 31(1) TEU, which provides in particular that decisions under Chapter 2 of Title V of the EU Treaty that contain specific provisions on the common foreign and security policy (CFSP) are to be taken unanimously, except where that chapter provides otherwise.
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.
12 In the Commission’s submission, the voting rules for the adoption of any Council decision under Article 218(9) TFEU are exclusively set out in the first subparagraph of Article 218(8) TFEU, which constitutes a lex specialis laying down a simplified procedure to be followed by the Council - when establishing the positions to be adopted in a body established by an agreement - that applies to both CFSP and non-CFSP matters. Accordingly, the qualified majority voting rule was applicable for adopting the contested decision, as the aim of that decision is not to supplement or amend the institutional framework of the Partnership Agreement, but only to ensure its efficient implementation, so that the contested decision cannot be equated with the conclusion or amendment of an international agreement.
13 The Commission observes, furthermore, that the Council’s position is not consistent with the first paragraph of Article 40 TEU, in that adding Article 31(1) TEU would require a unanimous vote for the adoption of any decision under Article 218(9) TFEU, in the context of an international agreement whose legal basis includes a provision falling within the CFSP, irrespective of the subject matter of that decision. The Council’s position would result in the application of CFSP procedures in order to exercise EU competences not only in the field of the CFSP, but also for the implementation of other EU policies.
14 The Council states that Decision 2016/123, which authorised the signing of the Partnership Agreement and the provisional application of parts of it, was adopted on the legal basis of Articles 37 and 31(1) TEU and Articles 91, 100(2) and 207 and 209 TFEU in conjunction with Article 218(5) and the second subparagraph of Article 218(8) TFEU, without that being contested by the Commission, and that the measures envisaged by the contested decision are intended to ensure the proper operation of the institutional framework established by the Partnership Agreement.
15 According to the Council, it is settled case-law that the competence of the European Union to enter into international commitments includes competence to couple those commitments with institutional provisions; those provisions are of an ancillary nature and therefore fall within the same competence as the substantive provisions which they accompany. It follows that the European Union could adopt the contested decision only on the basis of the provisions which empowered it to adopt the substantive provisions of the Partnership Agreement.
16 The Council submits that the Commission, moreover, misreads the case-law. First, the judgment of 24 June 2014, Parliament v Council (C‑658/11, EU:C:2014:2025), does indeed confirm that the procedure for the adoption of decisions establishing positions to be adopted on behalf of the European Union in a body set up by an agreement must be considered a single procedure of general application applicable across all policy fields and fields of activity of the European Union. That judgment establishes, however, in paragraph 53, a principle according to which 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. The area of the CFSP displays specific features of a procedural and of a substantive nature, and they must be taken into account in the application of the general procedure under Article 218(9) TFEU. In particular, when exercising its powers in that area, the Council is authorised to act by qualified majority only in the cases envisaged in Article 31(2) and (3) TEU. No provision of the FEU Treaty may be used to provide for a further derogation, if the second paragraph of Article 40 TEU is not to be infringed.
17 Second, the judgment of 18 December 2014, United Kingdom v Council (C‑81/13, EU:C:2014:2449), is no authority for the Commission’s position that a Council decision under Article 218(9) TFEU is to be taken by qualified majority in all instances, irrespective of the EU field concerned by that decision. Such a position goes against the settled case-law according to which it is the substantive legal basis of a measure that determines the procedure to be followed in adopting that measure. It also runs counter to the correct interpretation of that judgment, which must be read in its context - the case giving rise to that judgment does not relate to the exercise of EU competences in the field of the CFSP - and taking account of the fact that the qualified majority voting rule laid down in Article 16(3) TEU, a provision that is mentioned in the Advocate General’s Opinion referred to in that judgment, does not apply to the CFSP.
18 Whilst, according to the Council, Article 218(9) TFEU provides for a separate and simplified procedure for establishing the positions to be adopted in a body set up by an agreement or in respect of suspending application of an agreement, it does not, however, regulate all the aspects of that procedure, in particular the applicable voting rule. As a separate procedure is involved, the voting rules set out in Article 218(8) TFEU, which apply throughout the procedure, for conclusion of an agreement, governed by the provisions contained in the preceding paragraphs of that article, cannot apply automatically to that separate procedure. The voting rule laid down in the first subparagraph of Article 218(8) TFEU therefore applies to that separate procedure only to the extent that it reflects the voting rules applicable within the areas of EU activity for the adoption of internal acts. Furthermore, whilst Article 218(9) TFEU provides for a simplified procedure by comparison with the more elaborate procedure laid down for concluding an agreement, that simplification is concerned exclusively with the limited participation of the European Parliament.
19 The Council contests, finally, the contentions that it infringed Article 40 TEU, submitting, in particular, that the addition of Article 31(1) TEU in the legal basis of the contested decision was necessary in order for the procedures laid down by the Treaties for the exercise of EU competence in CFSP matters to be observed, that no infringement of the powers of the institutions was committed and that the Council needed in any event to act by unanimity, pursuant to Article 293(1) TFEU.
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).
23 That procedure includes inter alia various rules relating specifically to EU activity in the fields covered by the CFSP.
24 It follows that, as regards the procedure for negotiation and conclusion of an international agreement by the European Union, the provisions of Article 218 TFEU themselves take account of the specific features of each field of EU activity, in particular those laid down in respect of the CFSP, and reflect in that regard the institutional balance established for each of those fields by the Treaties.
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).
26 As is clear from reading Article 218(6), (9) and (10) TFEU together, that simplification, which applies only in respect of acts not supplementing or amending the institutional framework of the agreement, consists exclusively of a limitation of the Parliament’s participation.
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).
28 Determination of the voting rule applicable for the adoption of such a decision by reference to the two subparagraphs of Article 218(8) TFEU helps, in line with what has been stated in paragraph 24 of the present judgment so far as concerns the procedure for negotiation and conclusion of an agreement, to ensure that the single procedure envisaged in Article 218(9) TFEU takes account of the specific features of each field of EU activity.
29 In particular, the first case in which the second subparagraph of Article 218(8) TFEU requires the Council to act unanimously concerns the situation where the agreement covers a field for which unanimity is required for the adoption of an EU act, thereby establishing a link between the substantive legal basis of a decision adopted under that article and the voting rule applicable to the decision’s adoption. That is so as regards the CFSP, since the first subparagraph of Article 31(1) TEU provides in particular that decisions under Chapter 2 of Title V of the EU Treaty are to be taken unanimously, except where that chapter provides otherwise.
30 The link thereby ensured between the substantive legal basis of decisions adopted under the procedure laid down in Article 218(9) TFEU and the applicable voting rule for adopting those decisions helps, moreover, to preserve symmetry between procedures relating to internal activity of the European Union and procedures relating to its external activity, in compliance with the institutional balance established by the framers of the Treaties.
31 Contrary to what is contended, in essence, by the Commission, it does not follow from paragraph 66 of the judgment of 18 December 2014, United Kingdom v Council (C‑81/13, EU:C:2014:2449), that any decision establishing a position to be adopted on behalf of the European Union in a body set up by an agreement, under Article 218(9) TFEU, must be adopted by qualified majority provided that the act which that body is called upon to adopt does not supplement or amend the institutional framework of that agreement.
32 It is true that the Court held in that judgment, regarding a decision falling within the field covered in Article 48 TFEU and adopted in the context of an association agreement, which was intended not to supplement or amend the institutional framework of that agreement but solely to ensure its implementation, that it was, in accordance with the first subparagraph of Article 218(8) TFEU in conjunction with Article 218(9) TFEU, by qualified majority and without the consent of the Parliament that the Council had to adopt that decision. The Court therefore did not refer in that context to the second subparagraph of Article 218(8) TFEU, despite the fact that the second case in which that provision lays down that the Council is to act unanimously concerns specifically ‘association agreements’, which the European Union has competence to conclude under Article 217 TFEU.
33 However, that case displays the particular feature that it concerns that specific category of international agreement. A decision seeking to implement an association agreement cannot, generally, be regarded as similar to such an agreement and as therefore falling within that category. It is only if a decision seeking to implement the association agreement is intended to supplement or amend the institutional framework of that agreement that its scope is such that it must be equated to a decision concerning the conclusion of an agreement amending the association agreement. That justifies such a decision being subject, pursuant to the exception laid down at the end of Article 218(9) TFEU, to the same procedure as that laid down for the conclusion of an association agreement, in which case the Council acts unanimously and the Parliament’s consent is required, in accordance with Article 218(6)(a)(i) TFEU.
34 The first case in which unanimity is required by the second subparagraph of Article 218(8) TFEU is of an entirely different nature, since it relates to the field which the act adopted covers, and therefore to the act’s content. In that case, the fact that a decision seeking to implement an international agreement of the European Union, by means of action to be taken by a decision-making body established by that agreement, falls outside the exception laid down at the end of Article 218(9) TFEU does not enable any conclusion to be drawn as to whether that decision covers a field for which unanimity is required for the adoption of an EU act and must therefore, in the light of the first case referred to in the second subparagraph of Article 218(8) TFEU, be adopted unanimously.
35 In order to determine, in that context, whether a decision adopted within the framework defined in Article 218(9) TFEU does cover such a field, it is necessary to refer to its substantive legal basis.
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).
38 It follows from the foregoing that, just as in the case of the decision concerning the conclusion of an international agreement by the European Union, 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, pursuant to Article 218(9) TFEU, and which concerns exclusively the CFSP must, in principle, be adopted unanimously, in accordance with the second subparagraph of Article 218(8) TFEU. On the other hand, if such a decision comprises several components or pursues a number of objectives, some of which fall within the CFSP, the voting rule applicable for its adoption must be determined in the light of its main or predominant purpose or component. Thus, if the main or predominant purpose or component of the decision falls within a field in respect of which unanimity is not required for the adoption of an EU measure, that decision must, in accordance with the first subparagraph of Article 218(8) TFEU, be adopted by qualified majority.
39 In the present case, the contested decision establishes the position to be adopted on behalf of the European Union within the Cooperation Council established by the Partnership Agreement regarding (i) a decision of the Cooperation Council relating to the adoption of its rules of procedure and those of the Cooperation Committee, specialised subcommittees or any other bodies and (ii) a decision of the Cooperation Council establishing three specialised subcommittees.
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).
41 The Council contends in this regard that the links which the Partnership Agreement displays with the CFSP are sufficiently significant to warrant the inclusion in the legal basis of the contested decision - like the decision on the signing, on behalf of the European Union, and provisional application of the Partnership Agreement itself - of Article 37 TEU, under which the European Union may conclude agreements with one or more States or international organisations in areas covered by the CFSP.
42 It is true that, as the Advocate General has noted in points 64 to 68 of her Opinion, the Partnership Agreement displays certain links with the CFSP. Thus, Article 6 of that agreement, in Title II headed ‘Political dialogue, cooperation in the field of foreign and security policy’, is specifically devoted to that policy, the first paragraph of Article 6 providing that the parties are to intensify their dialogue and cooperation in the area of foreign and security policy and are to address, in particular, issues of conflict prevention and crisis management, regional stability, non-proliferation, disarmament and arms control, nuclear security and export control of arms and dual-use goods. Furthermore, Articles 9 to 12 of the Partnership Agreement, which define the framework of the cooperation between the parties regarding conflict prevention and crisis management, regional stability, countering the proliferation of weapons of mass destruction and the fight against illicit trade in small arms and light weapons, may also be linked with the CFSP.
43 However, it is clear that, as the Advocate General has observed in essence in point 69 of her Opinion, those links between the Partnership Agreement and the CFSP are not sufficient for it to be held that the legal basis of the decision on the signing of that agreement, on behalf of the European Union, and its provisional application had to include Article 37 TEU.
44 First, most of the provisions of the Partnership Agreement, which contains 287 articles, fall within the common commercial policy of the European Union or its development cooperation policy.
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).
46 Those provisions, which fall fully within the objective of the Partnership Agreement, set out in Article 2(2) thereof, of contributing to international and regional peace and stability and to economic development, are not therefore of a scope enabling them to be regarded as a distinct component of that agreement. On the contrary, they are incidental to that agreement’s two components constituted by the common commercial policy and development cooperation.
47 Therefore, in the light of all those considerations, the Council was wrong to include Article 31(1) TEU in the legal basis of the contested decision and that decision was wrongly adopted under the voting rule requiring unanimity.
48 Consequently, the Commission’s single plea must be upheld and the contested decision must be annulled.
49 The Council requests the Court, should it annul the contested decision, to maintain its effects. It states in support of that request that the position of the European Union established in the contested decision has already been expressed in accordance with that decision and has been acted upon, as the rules of procedure of the Cooperation Council, the Cooperation Committee and specialised subcommittees or any other bodies, and the decision on the establishment of three specialised subcommittees, were adopted and entered into force on 28 March 2017. It would, in the Council’s submission, be disproportionate to require the adoption of a new decision whose content would have to remain unchanged, since the same end could be achieved by the Court’s judgment.
50 Under the second paragraph of Article 264 TFEU, the Court may, if it considers this necessary, state which of the effects of an act which it has declared void are to be considered as definitive.
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).
52 Consequently, the effects of the contested decision, which is annulled by the present judgment, should be maintained on grounds of legal certainty.
53 Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Council has been unsuccessful, the Council must be ordered to pay the costs.