1 By its application, the European Commission seeks the annulment of Article 2 of Council Decision (EU) 2021/1117 of 28 June 2021 on the signing, on behalf of the European Union, and provisional application of the Implementing Protocol to the Fisheries Partnership Agreement between the Gabonese Republic and the European Community (2021-2026) (OJ 2021 L 242, p. 3), and of the designation by the Council of the European Union, through its President, of the Permanent Representative of the Portuguese Republic to the European Union as the person empowered to sign that protocol.
2 Article 2(1) of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations, Treaty Series, Vol. 1155, p. 331; ‘the Vienna Convention’) reads as follows: ‘For the purposes of the present Convention: … (c) “full powers” means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty; …’
3 Article 7(1) of that convention provides: ‘A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) he produces appropriate full powers; … …’
4 Article 18 of that convention provides: ‘A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.’
5 Article 13(2) TEU provides that: ‘Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation.’
6 Article 16 TEU is worded as follows: ‘1. The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the Treaties. … 6. The Council shall meet in different configurations, … The General Affairs Council shall ensure consistency in the work of the different Council configurations. … The Foreign Affairs Council shall elaborate the Union’s external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union’s action is consistent. 7. A Committee of Permanent Representatives of the Governments of the Member States shall be responsible for preparing the work of the Council. … 9. The Presidency of Council configurations, other than that of Foreign Affairs, shall be held by Member State representatives in the Council on the basis of equal rotation, …’
7 Article 17(1) TEU provides: ‘The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union’s external representation. It shall initiate the Union’s annual and multiannual programming with a view to achieving interinstitutional agreements.’
8 Article 27(2) TEU provides: ‘The High Representative [of the Union for Foreign Affairs and Security Policy] shall represent the Union for matters relating to the common foreign and security policy. …’
9 Article 218 TFEU provides: ‘1. Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure. 2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them. 3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team. 4. The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted. 5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force. 6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement. …’
10 On 22 October 2015 the Council adopted, on a proposal from the Commission, a decision authorising the Commission to conduct, on behalf of the European Union, negotiations with the Gabonese Republic with a view to renewing, for the period 2021-2026, the Implementing Protocol to the Fisheries Partnership Agreement between the European Union and the Gabonese Republic.
11 Following those negotiations, on 10 February 2021, the negotiators initialled the new implementing protocol of that agreement (‘the Protocol’).
12 On 19 May 2021, the Commission submitted its proposal for a Council decision on the signing, on behalf of the European Union, and provisional application of the Implementing Protocol (2021-2026) to the Fisheries Partnership Agreement between the Gabonese Republic and the European Community (COM(2021) 246 final).
13 Article 2 of the decision as proposed by the Commission was worded as follows: ‘The Council Secretariat General shall establish the instrument of full powers to sign the aforementioned Protocol, subject to its conclusion, for the person indicated by the Commission.’
14 On 28 June 2021, the Council adopted Decision (EU) 2021/1117. That decision comprises four articles, which read as follows: ‘Article 1 The signing, on behalf of the Union, of the Implementing Protocol to the Fisheries Partnership Agreement between the Gabonese Republic and the European Community (2021-2026) … is hereby authorised, subject to the conclusion of the said Protocol. Article 2 The President of the Council is hereby authorised to designate the person(s) empowered to sign the Protocol on behalf of the Union. Article 3 The Protocol shall be applied on a provisional basis as from the date of its signature, pending the completion of the procedures necessary for its entry into force. Article 4 This Decision shall enter into force on the date of its adoption.’
15 Also on 28 June 2021, the President of the Council designated the Permanent Representative of the Portuguese Republic to the European Union as the person empowered to sign the Protocol on behalf of the European Union. The Portuguese Republic was the Member State which, at that time, exercised the rotating Presidency of the Council.
16 On 29 June 2021, that Permanent Representative signed the Protocol on behalf of the European Union.
17 On 30 June 2021, the Commission and the Member States were informed, by document ST 10307/21 of the Secretariat General of the Council (‘document ST 10307/21’), of that signing and of the provisional application of the Protocol with effect from 29 June 2021.
18 The Commission claims that the Court should: - annul Article 2 of Decision 2021/1117; - annul the designation by the Council, through its President, of the Permanent Representative of the Portuguese Republic to the European Union as the person empowered to sign the Protocol; and - order the Council to pay the costs.
19 The Council contends that the Court should: - reject the action as inadmissible; - in the alternative, reject the action as unfounded; - order the Commission to pay the costs; and - in the further alternative, should the Court annul the contested acts, state, pursuant to the second paragraph of Article 264 TFEU, that the effects of the contested acts are to be considered as definitive.
20 By order of the President of the Court of Justice of 26 January 2022, the Czech Republic, the French Republic, Hungary, the Kingdom of the Netherlands and the Portuguese Republic were granted leave to intervene in support of the forms of order sought by the Council.
21 By order of 3 March 2022, the President of the Court of Justice granted the High Representative of the Union for Foreign Affairs and Security Policy (‘the High Representative’) leave to intervene in support of the forms of order sought by the Commission.
22 Finally, it should be noted that in its application the Commission submits, whilst emphasising that it is not the object of a plea in law in support of its action, that the Council erred in law in basing Decision 2021/1117 on Article 43 TFEU without further precision. According to the Commission, the Council should have indicated Article 43(2) TFEU as the legal basis for that decision, in order for the applicable approval procedure to be clearly specified. However, since the Council sought the consent of the European Parliament for the conclusion of the Protocol, the error had no legal consequences. In those circumstances, the Commission leaves it to the Court to consider whether that error must be addressed in an obiter dictum.
23 The Council submits that the application is inadmissible.
24 As regards, first, the claim seeking the annulment of Article 2 of Decision 2021/1117, the Council, supported by the Hungarian, Netherlands and Portuguese Governments, recalls that the partial annulment of an EU act is possible only if the element the annulment of which is sought may be severed from the remainder of the act. That requirement is not satisfied where the partial annulment of an act would have the effect of altering the substance of that act, which is to be determined objectively.
25 Article 2 of Decision 2021/1117 cannot, according to that institution and those governments, be severed from the remainder of that decision without altering its substance. Since every decision of the Council authorising the signing of an international agreement necessarily contains a provision that states the manner in which the signatory will be designated, the lack of such a provision, resulting from the annulment solely of Article 2 of Decision 2021/1117, would create a legal vacuum contrary to the aim and purpose of that decision, which consists of the signing and provisional application of the Protocol.
26 As regards, secondly, the form of order seeking the annulment of the designation by the Council, through its President, of the Permanent Representative of the Portuguese Republic to the European Union as the person empowered to sign the Protocol, the Council, supported by the Hungarian Government, submits that the content of the application does not make it possible to identify precisely the subject matter of that head of claim, contrary to the requirement for clarity and precision flowing from Article 21 of the Statute of the Court of Justice of the European Union and Article 120(c) of the Rules of Procedure of the Court of Justice. The Commission makes no reference to the full powers granted on 28 June 2021 by the President of the Council to the Permanent Representative of the Portuguese Republic to the European Union for the purpose of signing the Protocol on behalf of the European Union. The Council adds that document ST 10307/21 to which the Commission refers in the application is purely informative, such that it produces no legal effect and cannot therefore be the subject matter of an action for annulment.
27 Finally, the Council contests the admissibility of the action in that it indirectly challenges the material legal basis chosen for Decision 2021/1117. The Commission emphasises that it does not intend to raise a plea in that regard since that error had no legal consequence in this case, whilst leaving it to the Court to determine whether it is appropriate to respond to that plea via an obiter dictum. As a result of that lack of clarity, the Council is uncertain as to the need to submit a defence in that respect. That presentation of the application is therefore incompatible with the requirements of legal certainty and the sound administration of justice, which necessitate that the application be sufficiently clear and precise to enable the defendant to prepare its defence and the Court of Justice to give a ruling.
28 The Commission, supported by the High Representative, submits that the action is admissible.
29 First, according to settled case-law of the Court, the partial annulment of an EU act is possible only in so far as the elements whose annulment is sought may be severed from the remainder of the act. That requirement is not satisfied where the partial annulment of an act would have the effect of altering its substance. The review of whether the contested provisions are severable requires consideration of their scope in order to be able to assess whether their annulment would alter the spirit and substance of the act at issue (judgments of 16 July 2015, Commission v Council, C‑425/13, EU:C:2015:483, paragraph 94, and of 22 November 2022, Commission v Council(Accession to the Geneva Act), C‑24/20, EU:C:2022:911, paragraph 47).
30 The question whether partial annulment would alter the substance of the act at issue is an objective criterion, and not a subjective criterion linked to the political intention of the institution which adopted that act (judgment of 22 November 2022, Commission v Council(Accession to the Geneva Act), C‑24/20, EU:C:2022:911, paragraph 48 and the case-law cited).
31 In the present case, it must be observed that, as is clear from their wording, the first three articles of Decision 2021/1117 are each distinct in scope.
32 In Article 1 of that decision the Council authorises the signing of the Protocol and, in Article 3 thereof, it orders that the Protocol is to be applied on a provisional basis. By Article 2 of that decision, which is the subject matter of the present action, the Council authorises its President to designate the person or persons empowered to sign the Protocol on behalf of the European Union.
33 Articles 1 and 3 of Decision 2021/1117 thus express the decision of the Council to approve, as regards its content, the Protocol negotiated by the Commission and to order its provisional application, whereas Article 2 of that decision determines which authority is responsible for designating who is to be the signatory of that Protocol. As the Advocate General observed in points 34 to 37 of her Opinion, the question of the designation of the signatory has no influence on the Council’s decision to approve the content of the Protocol and to order its provisional application. As to the remainder, both the determination of the person empowered to designate the signatory and the subsequent designation, by that person, of the signatory himself or herself could arise in separate acts without having, objectively, the effect of altering the spirit or substance of Article 1 or Article 3 of Decision 2021/1117.
34 As regards Article 4 of that decision, that provision merely lays down the date on which the decision enters into force.
35 It follows that Article 2 of Decision 2021/1117 is severable from the remainder of that decision and may, separately, be the subject matter of an action for annulment.
36 Secondly, the designation by the Council of the Permanent Representative of the Portuguese Republic to the European Union as the person empowered to sign the Protocol is an act of the Council, within the meaning of the first paragraph of Article 263 TFEU, which may therefore, in accordance with the second paragraph of that article, be the subject matter of an action brought by the Commission. Consequently, contrary to the submissions of the Council, supported on that point by the Hungarian Government, the head of claim seeking the annulment of that designation is admissible.
37 That finding is not called into question by the Council’s argument that the Commission has not, with the degree of clarity and precision required by Article 21 of the Statute of the Court of Justice of the European Union and Article 120(c) of the Rules of Procedure, set out the subject matter of that head of claim since it has not referred, in the application initiating proceedings, to the full powers granted on 28 June 2021 by the President of the Council to the Permanent Representative of the Portuguese Republic to the European Union. There is no disagreement between the parties that those full powers, which were not published, were transmitted by the Secretariat General of the Council solely to the Gabonese Republic, whereas the Commission was solely the recipient, on 30 June 2021, of document ST 10307/21, which contained the information that the Protocol had been signed the previous day by the Permanent Representative of the Portuguese Republic to the European Union.
38 Moreover, and since a copy of the full powers was finally sent to the Commission in the context of the present proceedings as an annex to the Council’s defence, the Commission stated, in its reply, that the head of claim seeking the annulment of the designation by the Council, through its President, of the Permanent Representative of the Portuguese Republic to the European Union as the person empowered to sign the Protocol included those full powers.
39 Accordingly, the Commission has fully complied with the requirements, under Article 21 of the Statute of the Court of Justice of the European Union and Article 120(c) of the Rules of Procedure, for clarity and precision by stating, in its application, that the designation of the Permanent Representative of the Portuguese Republic to the European Union as the person empowered to sign the Protocol is an integral part of the subject matter of its action for annulment and by referring in that respect to the sole document that had been sent to it on that subject, whilst making, in its reply which followed the communication by the Council of the full powers, the clarification referred to in the preceding paragraph.
40 As regards, thirdly, the plea of inadmissibility of the action in so far as it refers to the legal basis of Decision 2021/1117, that plea must be rejected as ineffective. As the Commission emphasised in its application, its suggestion seeking the inclusion, in the Court’s judgment, of an obiter dictum on the subject of that legal basis is not one of the pleas in law of its action, that institution having moreover indicated in the application that the error that it complains of had no legal consequence in this case.
41 It follows from all of the foregoing that the action is admissible.
42 In support of its action, the Commission advances two pleas in law, both of which are divided into two limbs. The first plea in law alleges an infringement of Article 17(1) TEU, read in combination, in the first limb, with Article 13(1) and (2) TEU and, in the second limb, with Article 4(3) TEU. The second plea in law alleges, in the first limb, an infringement of Articles 296 and 297 TFEU and, in the second limb, an infringement of Article 13(2) TEU.
43 It is appropriate first of all to examine the first limb of the first plea in law alleging an infringement of Article 17(1) TEU, read in combination with Article 13(1) and (2) TEU.
44 The Commission, supported by the High Representative, submits that Article 17(1) TEU confers on it alone the prerogative to ensure the European Union’s external representation in matters that are not within the scope of the common foreign and security policy (‘the CFSP’). That prerogative includes, inter alia, the signing of international agreements on behalf of the European Union or the designation of the signatory of those agreements on its behalf. It is therefore in breach of that prerogative that the Council, by the acts covered by the present action, undermined the institutional balance established by the Treaties, the requirement to comply with which is imposed by Article 13(1) and (2) TEU.
45 In that regard a distinction must be made between the internal decision-making process of the European Union, which leads the Council to authorise the signing of an international agreement negotiated by the Commission, and the actual signing of that agreement. The signing is an act of external representation, within the meaning of the sixth sentence of Article 17(1) TEU, in accordance with customary international law, reflected in the Vienna Convention. Therefore, it is for the Commission to designate the person empowered to sign that agreement.
46 That division of competences between the Council and the Commission is supported by Article 218(5) TFEU, which empowers the Council to authorise the signing of the agreement but not to designate the signatory.
47 There is no conflict, therefore, between Article 17(1) TEU and Article 218(5) TFEU, as the second of those provisions does not derogate from the first.
48 By empowering the permanent representative of the Member State exercising the Presidency of the Council to sign the Protocol on behalf of the European Union, the Council acted as if it, itself, its rotating presidency, and its Secretariat General still ensured the external representation of the European Union. However, since the entry into force of the EU Treaty and the FEU Treaty, resulting from the Treaty of Lisbon, that is no longer the case.
49 The discontinuation of the Council’s rotating presidency in the external representation of the European Union is one of the main innovations of the Treaty of Lisbon in the field of external relations. The aim of that amendment is to increase the international visibility and recognition of the European Union by ensuring that the representatives of third countries are no longer exposed to changes in the external representation of the European Union which resulted from the rotation of the Presidency of the Council between the Member States and are in contact not with the Member States’ representatives to the European Union but with its own representatives, designated by the High Representative in the CFSP field and by the Commission in all other fields of the external relations of the European Union.
50 The Council acts covered by the present action are part of a practice that negates that amendment introduced by the Treaty of Lisbon. That practice is consequently unlawful, without the fact that it is always implemented by the Secretariat General of the Council and by the Treaty and Agreements Office which assists it being of any relevance in that respect.
51 Article 2 of Decision 2021/1117 and the designation of the Permanent Representative of the Portuguese Republic to the European Union as the signatory of the Protocol on behalf of the European Union should therefore be annulled. It is appropriate, however, for the effects of the Protocol to be maintained.
52 The Council contends that the first limb of the first plea in law should be rejected.
53 That institution, supported by the Czech, French, Hungarian, Netherlands and Portuguese Governments, considers that the present action constitutes an attempt to encroach upon its prerogatives as regards the signing and, by extension, the conclusion of international agreements on behalf of the European Union, as laid down in the EU and FEU Treaties and as exercised by it for decades.
54 In that regard, the Council observes that, in exercising the powers conferred on it to authorise the signing and to conclude such agreements, it is assisted by its Secretariat General, which has a dedicated service for that purpose, the Treaties and Agreements Office, whose duties include, inter alia, organising the signing of international agreements.
55 The full powers prepared by that office for the President of the Council are based on an assessment of various factors, including the protocol level of the representative designated by the third country concerned, the political importance of the agreement and the framework within which, or in the margins of which, the signing ceremony is organised.
56 The designation of the person or persons empowered to sign an international agreement on behalf of the European Union is an extension and a component of the exercise, by the Council, of the prerogative attributed to it by Article 218(5) TFEU to ‘[authorise] the signing’. In view of that provision, the sixth sentence of Article 17(1) TEU is irrelevant as regards the signing of international agreements. The purpose of such signing is not merely to communicate the European Union’s position but to create legal effects in international law, such that it cannot be a matter merely of the ‘Union’s external representation’.
57 All the steps from the decision authorising the signing to the signing itself form a legal and procedural continuum falling within the Council’s competence under Article 16(1) TEU, which finds specific expression in Article 218(5) TFEU. Since the signing of an international agreement produces legal effects, it must be regarded as a constituent element of EU policy-making.
58 The Council and the governments supporting it emphasise furthermore that, where the authors of the Treaties entrust powers relating to international agreements to an institution, it is always done explicitly. In the absence of an express reference, in Article 218(5) TFEU, limiting the Council’s power as regards signature, the authors of the Treaties established an institutional balance which does not permit the Commission to claim, on the basis of Article 17(1) TEU, that it has competence to designate the signatory.
59 The fact that the person designated by the full powers has the status of a ‘representative’, within the meaning of customary international law codified by the Vienna Convention, does not mean, without infringing the scope of Article 16(1) TEU and Article 218(5) TFEU, that the signature provided by that person falls within the ‘Union’s external representation’, within the meaning of the sixth sentence of Article 17(1) TEU. Even if the signing of an international agreement could, in the abstract, be an act of external representation, it remains the case that Article 218(5) TFEU is one of the ‘other cases provided for in the Treaties’ referred to in the sixth sentence of Article 17(1) TEU, and that, therefore, where the organisation of the signing of an international agreement is concerned, that is an exception to the Commission’s power to ensure the external representation of the European Union.
60 While acknowledging that the EU and EC Treaties in force before the Treaty of Lisbon did not contain a provision equivalent to the sixth sentence of Article 17(1) TEU, the Council and the governments supporting it observe that the earlier Treaties, which already conferred some powers of external representation on the Commission, did not however confer any power on it to sign international agreements. That remains the case within the framework of the EU and FEU Treaties. Similarly, the fact that the Treaty of Lisbon transferred some powers of external representation of the rotating Presidency of the Council to the High Representative did not alter the power of the Council, now flowing from Article 218(5) TFEU, to designate the signatories of international agreements. The Treaty of Lisbon did not therefore introduce the changes relied on by the Commission as regards the signing of those agreements, as the textual differences between the earlier provisions and Article 218(5) TFEU are purely editorial.
61 It must be borne in mind, at the outset, that the Treaties set up a system of allocation of powers among the EU institutions, assigning to each institution its own role in the institutional structure of the European Union and the accomplishment of the tasks entrusted to the European Union (judgments of 22 May 1990, Parliament v Council, C‑70/88, EU:C:1990:217, paragraph 21, and of 25 October 2017, Commission v Council (WRC-15), C‑687/15, EU:C:2017:803, paragraph 40).
62 Accordingly, Article 13(2) TEU provides that each EU institution is to act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out therein. That provision reflects the principle of institutional balance, characteristic of the institutional structure of the European Union, a principle which requires that each of the institutions must exercise its powers with due regard for the powers of the other institutions (judgments of 14 April 2015, Council v Commission, C‑409/13, EU:C:2015:217, paragraph 64, and of 22 November 2022, Commission v Council (Accession to the Geneva Act), C‑24/20, EU:C:2022:911, paragraph 83).
63 Article 13(2) TEU provides, in addition, that the EU institutions are to practice mutual sincere cooperation.
64 In the present case, the powers of the Council relevant for the purpose of assessing the first limb of the first plea include, in particular, the power provided for in the second sentence of Article 16(1) TEU, which attributes to that institution the ‘policy-making and coordinating functions as laid down in the Treaties’, and the power provided for in the third subparagraph of Article 16(6) TEU, according to which the Foreign Affairs Council ‘shall elaborate the Union’s external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union’s action is consistent’.
65 The powers of the Commission relevant for the purpose of that assessment are set out in the first, fifth and sixth sentences of Article 17(1) TEU. Those sentences provide, respectively, that the Commission ‘shall promote the general interest of the Union and take appropriate initiatives to that end’, ‘exercise coordinating, executive and management functions, as laid down in the Treaties’ and ‘ensure the Union’s external representation’, with the exception, however, as regards the latter competence, of the CFSP and ‘other cases provided for in the Treaties’.
66 In accordance with that allocation of powers, and as is confirmed by Article 218(2) and (5) TFEU, it is for the Council, on a proposal by the negotiator, to authorise the signing of an international agreement on behalf of the European Union. The decision as to whether to sign an agreement negotiated by the Commission with a third country requires an assessment to be made, in compliance with strategic guidelines laid down by the European Council and the principles and objectives of the European Union’s external action, its interests in the context of its relations with that third country and the divergent interests arising in those relations to be reconciled. Consequently, that decision is one of the measures by which the European Union’s policy is made and its external action planned for the purpose of the second sentence of Article 16(1) and the third subparagraph of Article 16(6) TEU (see, to that effect, judgment of 28 July 2016, Council v Commission, C‑660/13, EU:C:2016:616, paragraphs 39 and 40).
67 The decision authorising the signing of an international agreement does not include, however, the later act of the signing itself of that agreement. That signing must, following the authorisation, be done after all the necessary steps have been taken to that end, including in respect of the third country concerned. Those steps include the issuing of the full powers designating the person or persons empowered to sign the agreement on behalf of the European Union.
68 In order to determine which institution, under EU law, has the power of designating the signatory of an international agreement, reliance must be placed upon the main characteristic of that designation, which is to empower one or more persons to act on behalf of the European Union with regard to the third country concerned.
69 In that regard, it must be observed, first, that that designation does not require a determination that falls within the scope of the ‘policy-making’ of the European Union or of the functions of ‘coordinating’ or of ‘[elaborating its] external action’, within the meaning of Article 16(1) and (6) TEU. It is true that it takes place following the decision of the Council authorising the signing of the agreement, but it is not part of the policy assessment leading to that decision, at the end of which that institution has consented to the legal effects which, by the signing, will be produced in accordance with the relevant rules of international law.
70 In the latter regard, it must be noted that, whoever the person is who is designated to be the signatory pursuant to the rules of EU law, the legal effects of the signing, which include the obligation, referred to notably in Article 18 of the Vienna Convention, to refrain from acts which would defeat the object and purpose of the agreement, will be the same and will be binding on the European Union in its capacity as a subject of international law.
71 Secondly, as regards whether the designation of the signatory is an act that ‘[ensures] the Union’s external representation’, within the meaning of the sixth sentence of Article 17(1) TEU, it must be observed that, according to its usual meaning, the legal concept of ‘representation’ implies an action taken on behalf of a subject towards a third party and such an action may be, as the Advocate General observes in point 50 of her Opinion, a declaration of the intent of that subject with regard to that third party.
72 The signing, by the person designated for that purpose, of an international agreement on behalf of the European Union properly expresses the declaration of the European Union’s intention, as defined by the Council, with regard to the third party with which that agreement has been negotiated.
73 The wording of the sixth sentence of Article 17(1) TEU, according to which the Commission is to ‘ensure the Union’s external representation’, thus tends to establish that that provision confers on the Commission the power to take, outside of the CFSP and unless the Treaties provide for a different allocation of powers on that point, any action that, following a decision of the Council authorising the signing of an international agreement on behalf of the European Union, ensures that that signature is given.
74 That literal interpretation of the sixth sentence of Article 17(1) TEU is in line with customary international law.
75 In that regard, with respect to the signing of international agreements, it follows from customary international law as codified in particular in Article 2(1)(c) and Article 7(1)(a) of the Vienna Convention that any person designated in a document emanating from the competent authority of a State or the competent body of an international organisation for the act of signing must be regarded, pursuant to those full powers, as representing that State or that international organisation.
76 The signing, by such a person, of an international agreement on behalf of the European Union thus falls within the scope, from the perspective of the rules of customary international law, of the latter’s ‘representation’.
77 Therefore, having regard to the sixth sentence of Article 17(1) TEU, it must be held that the steps necessary for the purpose of the signing of an international agreement after that signing has been authorised by the Council, including the step of designating the signatory, outside the CFSP, fall within the scope of the Commission’s power to ‘ensure the Union’s external representation’, unless the EU Treaty or the FEU Treaty allocate the power to organise that signing to another institution of the European Union. The latter reservation, reflected in the phrase ‘other cases provided for in the Treaties’, constitutes, as the Advocate General observes in point 72 of her Opinion and as follows from the wording of the sixth sentence of Article 17(1) TEU, an exception to the Commission’s powers provided for in that provision.
78 The Council and the governments supporting it submit that Article 218 TFEU, which provides for a single procedure of general application concerning the negotiation, signing and conclusion of international agreements that the European Union is competent to conclude (see, to that effect, judgment of 2 September 2021, Commission v Council (Agreement with Armenia), C‑180/20, EU:C:2021:658, paragraph 27 and the case-law cited), paragraph 5 of which concerns the authorisation of the signing of those agreements, is, as regards that signing, one of the ‘other cases provided for in the Treaties’ referred to in the sixth sentence of Article 17(1) TEU.
79 However, it must be pointed out that, unlike Article 218(3)TFEU, which, as regards the negotiation of international agreements, confers on the Council the power not only to authorise the opening of negotiations but also to designate the negotiator or the head of the European Union’s negotiating team, Article 218(5) TFEU refers to the Council’s power to authorise the signing and provisional application of an international agreement but not the power to designate the signatory thereof. Accordingly, as the Advocate General observes in points 82 to 84 of her Opinion, the latter provision does not contain a derogation from the sixth sentence of Article 17(1) TEU.
80 Although the procedure for the negotiation, signing and conclusion of international agreements laid down in Article 218 TFEU may, as a whole, be regarded, as the Council and the governments supporting it observe, as a ‘continuum’, the fact remains that, during each of the steps of that procedure identified in that article, each institution must, subject only to the exceptions expressly provided for, exercise its powers as allocated by the Treaties, and must do so in accordance with the principle of institutional balance recalled in paragraph 62 of the present judgment. As regards the designation of the signatory of an international agreement, Article 218(5) TFEU does not lay down, in favour of the Council, an exception to the competence that the Commission derives from the sixth sentence of Article 17(1) TEU.
81 It follows that, in a situation where the Council has authorised the signing of an international agreement which, as in the present case, is not within the scope of the CFSP or of ‘other cases provided for in the Treaties’ it is for the Commission, pursuant to the sixth sentence of Article 17(1) TEU, to ensure the actual signing of that agreement.
82 That finding is not undermined by the fact that the Council has continued, since the entry into force of the EU and FEU Treaties, to designate the signatories of international agreements and regularly to choose as signatory the permanent representative to the European Union of the Member State exercising the rotating Presidency of the Council. A practice, however consistent, cannot alter the rules of the Treaties that the institutions are obliged to respect (see, to that effect, judgment of 25 October 2017, Commission v Council (WRC-15), C‑687/15, EU:C:2017:803, paragraph 42 and the case-law cited).
83 Lastly, it should be observed that, in accordance with the first sentence of Article 17(1) TEU, the Commission must exercise its competence relating to the signing of international agreements in the general interest of the European Union. It is, in addition, required to comply with the duty of mutual sincere cooperation provided for in Article 13(2) TEU. Accordingly, it is incumbent upon that institution to ensure in particular that, once the Council decision authorising the signing of an agreement has been adopted, that signing takes place within the shortest possible time and in circumstances that reflect appropriately the importance of that agreement. Furthermore, in the event of a fundamental change of circumstances arising after the adoption of the decision authorising the signing, it is incumbent upon the Commission to consult the Council so that it may, if appropriate, within the framework of exercising its powers enshrined in Article 16(1) and (6) TEU and Article 218 TFEU, draw the consequences of that fundamental change of circumstances before the signature is given.
84 In the light of all the foregoing considerations, the first limb of the first plea in law must be upheld.
85 Consequently, Article 2 of Decision 2021/1117 and the designation, on the basis of that provision, of the Permanent Representative of the Portuguese Republic to the European Union as the person empowered to sign the Protocol must be annulled, without it being necessary to examine either the second limb of the first plea in law or the second plea in law.
86 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.
87 That power may be exercised, on grounds of legal certainty, in particular where the annulment of an EU act adopted in the context of the procedure for negotiating, signing and concluding an international agreement is such as to call into question the participation of the European Union in that agreement or its implementation, even though there is no doubt as to the competence of the European Union for that purpose (see, to that effect, judgment of 25 October 2017, Commission v Council (Revised Lisbon Agreement), C‑389/15, EU:C:2017:798, paragraph 81 and the case-law cited).
88 The annulment of Article 2 of Decision 2021/1117 and the designation, on the basis of that provision, of the person empowered to sign the Protocol, would, if the effects of those acts were not maintained, have the consequence of calling into question the signing of that agreement on behalf of the European Union, which took place on 29 June 2021, even though the competence of the European Union to consent, by means of a signature given on its behalf, to the legal effects referred to inter alia in Article 18 of the Vienna Convention and to the provisional application of the Protocol are not in doubt and that, moreover, the intention of the European Union to declare its consent is certain, the Council having authorised the signing of the Protocol in Article 1 of Decision 2021/1117. Although it is true that that authorisation was given subject to the conclusion of the Protocol, it is appropriate to find that that conclusion subsequently took place, as evidenced by the adoption of Council Decision (EU) 2022/2066 of 21 February 2022 on the conclusion, on behalf of the European Union, of the Implementing Protocol to the Fisheries Partnership Agreement between the Gabonese Republic and the European Community (2021-2026) (OJ 2022 L 277, p. 103), which expresses the approval, by the European Union, of the Protocol.
89 Consequently, in order to preserve legal certainty, it must be held that the effects of Article 2 of Decision 2021/1117 and of the designation, on the basis of that provision, of the Permanent Representative of the Portuguese Republic to the European Union as the person empowered to sign the Protocol are definitive.
90 Under Article 138(1) of the Rules of Procedure, 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 latter must be ordered to pay the costs incurred by the Commission, in addition to bearing its own costs.
91 In accordance with Article 140(1) of those rules, the Czech Republic, the French Republic, Hungary, the Kingdom of the Netherlands and the Portuguese Republic are to bear their own costs.
92 In accordance with Article 140(3) of those rules, the High Representative is also to bear his own costs.