Action brought on 20 December 2016 — European Commission v Council of the European Union

(Case C-659/16)

Language of the case: French

Parties

Applicant: European Commission (represented by: A. Bouquet, E. Paasivirta and Ch. Hermes, acting as Agents)

Defendant: Council of the European Union

Form of order sought

Annul in part the Council’s Decision of 10 October 2016, adopted by Note point ‘I/A’, concerning the establishment of the European Union’s position for the 35th annual meeting of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) (Hobart, Australia, from 17 to 28 October 2016), in so far as concerns the creation of three marine protected areas and the creation of special study areas (Documents 12523/16 and 12445/16);

order Council of the European Union to pay the costs.

Pleas in law and main arguments

The Commission requests the Court to annul the Council’s decision of 10 October 2016 in so far as the Council required that proposals to the Commission for the conservation of Antarctic marine living resources with a view to the creation of three marine protected areas in the Weddell Sea, the Ross Sea and the East Antarctic and a system of special study areas be submitted or supported on behalf of the European Union and its Member States, rather than being submitted or supported on behalf of the European Union alone.

The Commission maintains that, by taking the view that competence in the matter is shared and that, as a result, the discussion document should be decided by consensus and submitted on behalf of the European Union and its Member States, the contested decision is unlawful, in so far as it thus precludes the Commission from submitting that document on behalf of the European Union alone, in breach of the European Union’s exclusive competence in the matter (and of the Commission’s prerogatives to represent the European Union).

The Commission relies on two pleas in law in support of its action for annulment of the contested decision.

In the first place, the Commission submits that by adopting the contested act, the Council acted in breach of the European Union’s exclusive competence in the matter of the conservation of marine biological resources, as laid down in Article 3(1)(d) TFEU (first plea in law). First, the Commission argues that the Council disregarded the legal context of the measure concerned by the contested act, both in connection with the Convention for the Conservation of Antarctic Marine Living Resources and with the European Union. Second, the Commission maintains that the Council disregarded the purpose and the content of that measure.

In the second place (in the alternative), the Commission submits that even if the measure did not have to be regarded as a measure for the conservation of marine biological resources within the meaning of Article 3(1)(d) TFEU, by adopting the contested act the Council infringed, in any event, the European Union’s exclusive competence inasmuch as the European Union has exclusive external competence in the matter because the measure envisaged may affect rules of the European Union or alter their scope for the purpose of Article 3(2) TFEU (second plea in law). First, the Commission argues that the Council disregarded the fact that the measure envisaged may affect or alter two regulations of secondary law (Regulation (EC) No 600/2004 and Regulation (EC) No 601/2004). Second, the Commission maintains that the Council did not take account of the effect on, or alteration of, the framework position of the European Union of June 2014.

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