OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 26 March 2009 (1)

Case C‑13/07

Commission of the European Communities

v

Council of the European Union

(World Trade Organisation (WTO) – Accession of Vietnam – Establishment of the Community position – Choice of correct legal basis – Exclusive or shared competence – Community competence alone or requirement of involvement of the Member States – Article 133(5) and (6) EC in the version of the Treaty of Nice)

I –  Introduction

1.        ‘Sisyphus would have done a better job’. (2) That is only one of many critical remarks concerning the new version of the provisions on the common commercial policy introduced by the Treaty of Nice. (3) Consequently it is no surprise that the extremely complicated wording of the new paragraphs 5 and 6 of Article 133 EC was sooner or later inevitably going to give rise to legal disputes.

2.        In the present case the Court is faced with a dispute of that kind. (4) It concerns the accession of Vietnam to the World Trade Organisation (WTO). The Commission of the European Communities and the Council of the European Union are in dispute as to whether approval for Vietnam’s accession in the appropriate WTO body fell within the competence of the Community alone or whether the involvement of the Member States was required in accordance with Article 133(6) EC. In fact, the latter path was taken: both the Council as a Community institution and the representatives of the Member States meeting within the Council adopted decisions establishing their respective positions. Approval was then given to the accession of Vietnam to the WTO on behalf of the Community and on behalf of its Member States.

3.        The question whether this procedure was correct in law is of considerable practical importance going beyond this particular case. Since the WTO was founded on 1 January 1995 it has already admitted 25 new members, three of which were admitted after the accession of Vietnam, which was completed at the beginning of 2007. At present there are still 29 further applications for accession, including those of Russia and Serbia. (5)

4.        Leaving aside such questions of membership within the WTO, the interpretation of Article 133(5) and (6) EC is of considerable importance for the Community’s scope for action in negotiations within and outside the WTO, for the scope of the common commercial policy and for the division of powers between the Community and its Member States within this core area of Community activity.

II –  Legal context

A –    Community law

5.        Articles 133 EC and 300 EC, which are to be applied in the version of the Treaty of Nice, form the Community-law context of the present dispute.

6.        Article 133(1) EC reads as follows:

‘The common commercial policy shall be based on uniform principles, particularly in regard to changes in tariff rates, the conclusion of tariff and trade agreements, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies.’

7.        Paragraphs 5 and 6 of Article 133 EC were recast by the Treaty of Nice and now read as follows:

‘(5)      Paragraphs 1 to 4 shall also apply to the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, in so far as those agreements are not covered by the said paragraphs and without prejudice to paragraph 6.

By way of derogation from paragraph 4, the Council shall act unanimously when negotiating and concluding an agreement in one of the fields referred to in the first subparagraph, where that agreement includes provisions for which unanimity is required for the adoption of internal rules or where it relates to a field in which the Community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules.

The Council shall act unanimously with respect to the negotiation and conclusion of a horizontal agreement in so far as it also concerns the preceding subparagraph or the second subparagraph of paragraph 6.

This paragraph shall not affect the right of the Member States to maintain and conclude agreements with third countries or international organisations in so far as such agreements comply with Community law and other relevant international agreements.

(6)      An agreement may not be concluded by the Council if it includes provisions which would go beyond the Community’s internal powers, in particular by leading to harmonisation of the laws or regulations of the Member States in an area for which this Treaty rules out such harmonisation.

In this regard, by way of derogation from the first subparagraph of paragraph 5, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services, shall fall within the shared competence of the Community and its Member States. Consequently, in addition to a Community decision taken in accordance with the relevant provisions of Article 300, the negotiation of such agreements shall require the common accord of the Member States. Agreements thus negotiated shall be concluded jointly by the Community and the Member States.

The negotiation and conclusion of international agreements in the field of transport shall continue to be governed by the provisions of Title V and Article 300.’

8.        Article 300(2) EC, which was also amended by the Treaty of Nice, regulates, inter alia, the procedure for establishing the positions to be adopted in bodies of international organisations:

‘Subject to the powers vested in the Commission in this field, the signing, which may be accompanied by a decision on provisional application before entry into force, and the conclusion of the agreements shall be decided on by the Council, acting by a qualified majority on a proposal from the Commission. The Council shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of internal rules and for the agreements referred to in Article 310.

By way of derogation from the rules laid down in paragraph 3, the same procedures shall apply for a decision to suspend the application of an agreement, and for the purpose of establishing the positions to be adopted on behalf of the Community in a body set up by an agreement, when that body is called upon to adopt decisions having legal effects, with the exception of decisions supplementing or amending the institutional framework of the agreement.’

…’

B –    Law of the World Trade Organisation

1.      The WTO Agreement

9.        Article II of the Agreement establishing the World Trade Organisation (6) (‘the WTO Agreement’) defines the scope of the WTO:

‘1.      The WTO shall provide the common institutional framework for the conduct of trade relations among its Members in matters related to the agreements and associated legal instruments included in the Annexes to this Agreement.

2.      The agreements and associated legal instruments included in Annexes 1, 2 and 3 (hereinafter referred to as “Multilateral Trade Agreements”) are integral parts of this Agreement, binding on all Members.

…’

10.      Article XII of the WTO Agreement concerns the accession of new members to the WTO and is worded as follows:

‘1.      Any State or separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement and the Multilateral Trade Agreements may accede to this Agreement, on terms to be agreed between it and the WTO. Such accession shall apply to this Agreement and the Multilateral Trade Agreements annexed thereto.

2.      Decisions on accession shall be taken by the Ministerial Conference. The Ministerial Conference shall approve the agreement on the terms of accession by a two‑thirds majority of the Members of the WTO.

…’

11.      In accordance with the second sentence of Article IV(2) of the WTO Agreement, in the intervals between meetings of the Ministerial Conference its functions are to be conducted by the WTO General Council.

2.      The GATS

12.      The General Agreement on Trade in Services (‘the GATS’) (7) is a multilateral trade agreement within the meaning of Article II(2) of the WTO Agreement and, in accordance with that provision, is binding on all WTO members.

13.      Article II(1) of the GATS contains the following most‑favoured-nation clause:

‘With respect to any measure covered by this Agreement, each Member shall accord immediately and unconditionally to services and service suppliers of any other Member treatment no less favourable than that it accords to like services and service suppliers of any other country.’

14.      Part III of the GATS, containing Articles XVI to XVIII, relates to the so-called specific commitments of the members. With regard to market access, Article XVI(1) of the GATS provides as follows:

‘With respect to market access through the modes of supply identified in Article I, each Member shall accord services and service suppliers of any other Member treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule.’

15.      With regard to national treatment, Article XVII(1) of the GATS contains the following provision:

‘In the sectors inscribed in its Schedule, and subject to any conditions and qualifications set out therein, each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.’

16.      Finally, under the heading ‘Schedules of Specific Commitments’, Article XX of the GATS provides as follows:

‘1.      Each Member shall set out in a schedule the specific commitments it undertakes under Part III of this Agreement. …

3.      Schedules of specific commitments shall be annexed to this Agreement and shall form an integral part thereof.’

3.      The TRIPS Agreement

17.      The Agreement on Trade‑Related Aspects of Intellectual Property Rights (‘the TRIPS Agreement’) (8) is also a multilateral trade agreement within the meaning of Article II(2) of the WTO Agreement and, by virtue of that provision, is binding on all WTO members. Of particular relevance to the present dispute is Article 61 of the TRIPS Agreement, which provides as follows:

‘Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. …’

III –  Background of the dispute

18.      The procedure within the Council of the European Union underlying this dispute served the internal Community preparations for Vietnam’s accession to the WTO.

19.      On 27 October 2006 the Commission submitted to the Council a proposal for a decision establishing the Community position within the General Council of the WTO on the accession of Vietnam to that organisation. (9) In that proposal the Commission indicated as the legal basis Article 133(1) and (5) EC in conjunction with Article 300(2) EC.

20.      The Commission’s proposal was discussed within the Council. The representatives of the Member States there took the view that the proposal also concerned, inter alia, matters which came under Article 133(6) EC.

21.      Subsequently, on 6 November 2006, the Council unanimously adopted a decision establishing the Community’s position in the General Council of the World Trade Organisation on the accession of Vietnam to the World Trade Organisation. (10) That position was that the Community, represented by the Commission, would approve Vietnam’s accession in the General Council of the WTO. However, the legal basis cited by the Council included Article 133(6) EC, in addition to the provisions already set out in the Commission’s proposal. The Council took the view that this was a case of shared competence of the Community and the Member States.

22.      On the same day the representatives of the Member States meeting within the Council adopted a common position of the Member States on Vietnam’s accession to the WTO and authorised the Commission to adopt that position on behalf of the Member States within the WTO General Council. That position also expressed approval of Vietnam’s accession to the WTO. (11)

23.      In a statement appended to the Council minutes, the Commission protested against the inclusion of Article 133(6) EC as an additional legal basis for the Council’s decision and against the simultaneous decision of the representatives of the Member States meeting within the Council. It also reserved the right to make use of all legal means at its disposal. (12)

24.      On 7 November 2006 the WTO General Council resolved, with the approval of the Community and its Member States, both represented by the Commission, to admit Vietnam to the WTO. When Vietnam, for its part, had ratified the accession protocol it became the 150th member of the WTO on 11 January 2007. The details of Vietnam’s accession are set out in the accession protocol, which also includes Vietnam’s specific commitments.

IV –  Procedure before the Court

25.      By application of 15 January 2007 (13) the Commission brought an action on the basis of Article 230 EC against ‘the decision of the Council and the Member States establishing the Community’s and the Member States’ position within the General Council of the World Trade Organisation on the accession of the Socialist Republic of Vietnam to the World Trade Organisation’.

26.      The Commission claims that the Court should:

–        annul that decision;

–        declare that the effects of the annulled decision are definitive; and

–        order the Council to pay the costs.

27.      The Council contends that the Court should:

–        dismiss the application as inadmissible in so far as it concerns the decision of the representatives of the Member States meeting within the Council;

–        in any event, dismiss the application as unfounded;

–        in the alternative, and to the extent to which the Court annuls the contested decisions, declare that the effects of those decisions are definitive; and

–        order the applicant to bear the costs.

28.      By order of the President of the Court of Justice of 5 June 2007, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Republic of Finland and the United Kingdom of Great Britain and Northern Ireland, which had all timeously lodged the appropriate applications (Article 93(3) to (6) of the Rules of Procedure), were granted leave to intervene in support of the Council.

29.      In addition, by order of the President of the Court of Justice of 8 June 2008, the Hellenic Republic and, by order of 30 July 2007, the Czech Republic were granted leave to intervene in support of the Council pursuant to Article 93(7) of the Rules of Procedure.

30.      All of the interveners seek dismissal of the action, with Finland, Spain and the United Kingdom also claiming that the action is inadmissible in so far as it concerns the decision of the representatives of the Member States meeting within the Council.

31.      In its observations on the interveners’ pleadings, the Council takes issue with the fact that Spain’s statement in intervention discloses details of the Council’s deliberations, including a legal assessment by the Legal Service of the Council given in the course of those deliberations. I agree with the Council that such information may be subject to the duty of secrecy laid down by Article 6 of the Council’s Rules of Procedure, at least for the duration of the current proceedings in this case, and its disclosure may have required prior approval. Consequently, I shall not take that information into account in my Opinion in the present case. (14)

32.      The Commission’s action was examined by the Court, first, by way of written procedure and, subsequently, on 3 February 2009, in a hearing.

V –  Admissibility of the action

33.      According to the wording of its application, the Commission has brought its action against ‘the decision’. In its reply it points out in this connection that formally there are two separate decisions, one being the Council’s decision on establishing the Community position and the other a corresponding decision by the representatives of the Member States meeting within the Council. However, the Commission claims that the two decisions are inextricably linked with each other so that in fact there is one single decision which as a whole is subject to review by the Court.

34.      On that point it must be observed, first of all, that a Community position adopted by the Council under the second subparagraph of Article 300(2) EC may be the subject of an application for annulment under the first paragraph of Article 230 EC because, under Article 230 EC, acts of the Council are open to review by the Court, which has consistently held that an action for annulment must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects. (15)

35.      Furthermore, under the second subparagraph of Article 300(2) EC a decision of the Council is not merely a preparatory act, but the outcome of an opinion-forming process within the Community. Such a decision establishes the Community position finally and with binding effect in the form in which the Commission has to present it later in international bodies.

36.      The Commission’s action is therefore admissible in so far as it is directed against the Council’s decision establishing the Community position.

37.      On the other hand, the ‘common accord of the Member States’ within the meaning of Article 133(6) EC, which in the present case was determined by the representatives of the Member States meeting within the Council, is not an actionable legal act for the purposes of the first paragraph of Article 230 EC. That accord is not an act of the Council, but a joint act of the representatives of the Member States.

38.      Contrary to the Commission’s argument, the reference to both the Community decision and the accord of the Member States in Article 133(6) EC does not make those two separate legal acts a single sui generis legal act which as a whole comes within the jurisdiction of the Court under the first paragraph of Article 230 EC. The wording of Article 133(6) EC itself shows that the two acts exist separately from each other because, ‘in addition to’ a Community decision, the common accord of the Member States is required.

39.      It is true that the Court has held that an act cannot be excluded from its review under Article 230 EC solely because it is described as a decision of the Member States. (16) It is also irrelevant whether the act in question was or was not adopted by an institution pursuant to provisions of the Treaty. (17)

40.      In the present case, however, the decision of the representatives of the Member States meeting within the Council cannot, regard being had to its content and all of the circumstances attendant on its adoption, be treated as constituting a disguised decision of the Council. The Council, on the one hand, and the representatives of the Member States, on the other, intentionally adopted two separate decisions, as expressly provided for in Article 133(6) EC. Therefore, having regard to the content of the decision and the circumstances in which it was adopted, the common accord of the Member States is a genuine decision of the representatives of the Member States which cannot be subject to judicial review by the Court. (18)

41.      Furthermore, this does not lead to gaps in legal protection because it is still open to the Commission to proceed against the Member States concerned by way of an action for failure to fulfil Treaty obligations (Article 226 EC) if it forms the view that they have encroached on the Community’s powers by acting alongside it.

42.      The Commission’s action is therefore inadmissible in so far as it is directed against the common accord of the Member States.

VI –  Merits of the action

43.      The Commission’s action is based on a single ground of annulment. When establishing the Community position on Vietnam’s accession to the WTO, the Council is alleged to have regarded Article 133(6) EC as relevant, which was wrong, and therefore also incorrectly took the view that the Community and the Member States were required to act together. In essence, the Council is charged with failing to make full use of the Community’s existing external powers and of unlawfully sharing them with the representatives of the Member States instead of acting alone.

44.      This action will be well founded if it transpires that approval of Vietnam’s accession to the WTO should have been given by the Community alone, that is to say, to the exclusion of the Member States.

A –    Preliminary observation: requirement of a legal basis in procedural law and also in substantive law

45.      In accordance with the principle of limited conferred powers (first paragraph of Article 5 EC), the Community is required to act within the limits of the powers conferred upon it by the EC Treaty and of the objectives assigned to it therein. This principle applies to both internal Community action and action of the Community under international law. (19) In the same way, it follows from the second subparagraph of Article 7(1) EC that the Council can act only within the limits of the powers conferred upon it by the EC Treaty.

46.      In respect of procedural law, it is common ground that the Community position on the accession of Vietnam to the WTO was correctly established by the Council of the European Union in the form of a decision pursuant to the second subparagraph of Article 300(2) EC. The General Council of the WTO is a body constituted by the WTO Agreement which is required to adopt legally effective decisions on the accession of new members to the WTO (Article XII(2) in conjunction with Article IV(2) of the WTO Agreement).

47.      It is likewise undisputed that, in addition to the second subparagraph of Article 300(2) EC, such a decision establishing the Community position also requires a basis in substantive law demonstrating the ambit of Community powers and thereby, ultimately, the scope for Community action marked out by the EC Treaty. (20) All the parties agree that the substantive legal basis is to be found in the provisions concerning the common commercial policy. In this connection, it follows from the relationship with the second subparagraph of Article 300(2) EC that Article 133 EC may be applicable, not only to conventional trade agreements, but also to the Community’s voting conduct within the bodies of an international organisation.

48.      As the admission of a new WTO member concerns not only the conventional areas of commercial policy, but also trade in services and the commercial aspects of intellectual property, (21) Article 133(1) EC is not sufficient as a legal basis and reference must also be made to the newly amended Article 133(5) EC. For the purpose of the present action it is unnecessary to decide whether the terms ‘trade in services’ and ‘commercial aspects of intellectual property’ within the meaning of Article 133(5) EC correspond in every detail to those used in the WTO Agreement because that question is not decisive for the present dispute.

49.      The only hotly disputed question in the present case is whether, in addition to paragraphs 1 and 5 of Article 133 EC, paragraph 6 must also apply. It is true that Article 133(6) EC does not, as such, contain a separate legal basis for Community action, contrary to what the Council and the Commission appear to presume. However, as it clarifies the limits to the scope of another legal basis, namely Article 133(5) EC, Article 133(6) EC is of considerable importance for determining the respective scopes for action of the Community and the Member States in relation to Vietnam’s accession to the WTO.

B –    The Council’s argument that it is possible for the Member States voluntarily to act alongside the Council within the framework of Article 133(5) EC

50.      The Council takes the view that cooperation between the Community and its Member States in relation to Vietnam’s admission to the WTO would have been legally permissible even if the substantive legal basis were provided by Article 133(1) and (5) EC only, and Article 133(6) EC played no part. In fact, on the basis of Article 133(5) EC the Member States may also voluntarily be involved in Community measures. Therefore, even if Article 133(6) EC were not applicable, the reference to it in connection with the establishment of the Community position would be, at most, a formal error.

51.      It is true that the citation of an incorrect legal basis or a reference to an incorrect legal basis in addition to the legal basis that is actually applicable means that the disputed act will be annulled only if the error is more than purely formal, that is to say, an error that could affect the applicable procedure and, thereby, ultimately the content of the legal measure. (22) In the present case, if the reference to Article 133(6) EC were merely a formal error, the Commission’s action would have to be dismissed as being unfounded. The ground of annulment put forward by the Commission could then in principle not be successful and would therefore serve no purpose (in French: ‘inopérant’). (23)

52.      However, whether the Council’s argument is correct depends on the exact classification of the competence under Article 133(5) EC. This would have to be a non-exclusive Community competence which, in addition, allows the Member States to act in parallel with the Community because the question here in dispute as to the applicability of Article 133(6) EC may be left open only if Article 133(5) EC does indeed allow the Community and the Member States to act together and does not prohibit such cooperation.

1.      Article 133(5) EC does not constitute exclusive Community competence

53.      Action by the Member States alongside the Community would in principle be unlawful in the context of Article 133(5) EC if this new Community competence were exclusive, something which the Commission appears to assume as a matter of course.

54.      As the Treaties stand at present, there is no comprehensive provision as to which areas of competence of the Community are exclusive and which it shares with the Member States. Of course, the Treaties presuppose the existence of areas of exclusive competence of the Community (second paragraph of Article 5 EC and Article 43(d) EU) and the Court has consistently held that these include the common commercial policy in its conventional form as defined in Article 133(1) EC. (24)

55.      Nevertheless, exclusive Community competence is the exception and, as a rule, the Community shares its areas of competence with the Member States because only in that way is it possible to ensure that the principle of subsidiarity, a fundamental stipulation of the Treaties which applies only to non-exclusive competence (second paragraph of Article 5 EC), has appropriate scope for application. The increasingly important possibility of enhanced cooperation is likewise not applicable in the areas within which the Community has exclusive competence (Article 43(d) EU).

56.      Against that background it by no means necessarily follows that the exclusive nature of the competence under Article 133(1) EC also extends to the new competence under Article 133(5) EC created by the Treaty of Nice. Unlike Article III-315(1) of the Treaty establishing a Constitution for Europe (25) and the future Article 207 of the Treaty on the Functioning of the European Union, (26) the Treaty of Nice did not incorporate trade in services and the commercial aspects of intellectual property in the existing legal basis of Article 133(1) EC, but created for them a new, separate legal basis which has numerous special features in substantive and procedural law, as demonstrated by Article 133(5) and (6) EC. In other words, although the provisions on conventional commercial policy in Article 133(1) to (4) EC ‘apply’, in accordance with the first subparagraph of Article 133(5) EC, to the negotiation and conclusion of agreements in the two new areas specified therein, they do not apply unconditionally.

57.      The new competence in Article 133(5) EC could be regarded as being exclusive only if it were clear that the power to negotiate and conclude agreements concerning trade in services and the commercial aspects of intellectual property has been transferred fully and definitively to the Community and that the Member States are therefore no longer entitled to exercise any power of their own in those fields, (27) even if the Community itself has not yet taken any measures. (28) This means that it is a characteristic of exclusive competence that only the Community is entitled to take action. (29)

58.      However, that is precisely not the case with regard to Article 133(5) EC, the fourth subparagraph of which makes it clear that the right of the Member States to maintain and conclude agreements with third countries or international organisations is not affected in so far as such agreements comply with Community law and other relevant international agreements. Consequently, the Treaty of Nice did not assign competence in that area fully and definitively to the Community.

59.      For that reason, the rules on competence contained in Article 133(5) EC lack one characteristic which is crucial for areas of exclusive competence, namely the exclusion of any parallel or concurrent action on the part of the Member States.

60.      Admittedly, the Member States may exceptionally also act within the areas of exclusive Community competence if the Community specifically authorises them to do so. (30) However, the fourth subparagraph of Article 133(5) EC cannot be regarded as constituting such authorisation because here the Community is not permitting the Member States to exercise a power which has actually been reserved for itself, but it is the Member States themselves, as ‘masters of the Treaties’, which in the Treaty of Nice expressly reserved those powers for themselves.

61.      Contrary to the Commission’s view, the proviso in the fourth subparagraph of Article 133(5) EC also by no means guarantees only the Member States’ right to conclude agreements in other fields that may have merely marginal points of contact with the common commercial policy, such as double taxation agreements. Nor can the fourth subparagraph of Article 133(5) EC be construed as being a purely transitional provision allowing the Member States to maintain their existing agreements with non-member countries in the area of trade in services and the commercial aspects of intellectual property. There is no support at all for such a restrictive interpretation in the wording, meaning, purpose or legislative context of that provision.

62.      In truth, although all the additions to Article 133 EC made by the Treaty of Nice serve to assign to the Community new powers in the area of external trade, they serve at the same time to secure for the Member States certain possibilities of action and rights of joint decision within that same area.

63.      I must agree with the Commission that exclusive competence for the Community in the field of trade in services and the commercial aspects of intellectual property would be better suited for ensuring the effective representation of European interests at international level. However, no such competence was acquired by the Community under the rules created by Article 133(5) EC. Rather, that step is completed only in the Treaty of Lisbon: Article 207(1) TFEU henceforward expressly places the ‘new’ fields of commercial policy (31) on the same footing as the conventional fields, and the common commercial policy as a whole is expressly assigned to the exclusive competence of the Union (Article 3(1)(e) TFEU). (32)

64.      On the other hand, until the Treaty of Lisbon enters into force, the Community’s competence under Article 133(5) EC may only, at most, be converted, as the occasion arises, into exclusive competence in accordance with the so-called AETR principles. (33) However, it is not disputed that the Community has not yet acquired by that means a comprehensive exclusive competence for trade in services and the commercial aspects of intellectual property.

65.      The Community’s competence under Article 133(5) EC is therefore not exclusive in nature, at least as Community law stands at present.

66.      However, contrary to the view taken by the Council, it does not necessarily follow, from the mere fact that Article 133(5) EC does not provide for exclusive Community competence, that the Member States were automatically entitled to be involved alongside the Community in adopting the decision on Vietnam’s accession to the WTO.

2.      Article 133(5) EC creates concurrent, not parallel, competence.

67.      It would be permissible for the Member States to be involved alongside the Community on the basis of Article 133(5) EC (and without simultaneous recourse to Article 133(6) EC) only if there were parallel competence of the Community and the Member States in relation to trade in services and the commercial aspects of intellectual property.

68.      The existence of such parallel competence might be suggested by a cursory reading of the fourth subparagraph of Article 133(5) EC. The wording of that provision is similar to that of the second paragraph of Article 181 EC, which, in relation to development cooperation, makes it clear that the Community’s competence to conclude agreements with third parties does not affect the Member States’ competence to negotiate in international bodies and to conclude international agreements. (34) Case-law has construed this as meaning parallel competence, with the result that under the second paragraph of Article 181 EC the Member States are entitled to enter into commitments themselves vis-à-vis non-member countries concerning development cooperation, either collectively or individually, or even jointly with the Community. (35)

69.      On closer scrutiny, however, notwithstanding certain similarities in the wording of the fourth paragraph of Article 133(5) EC and the second paragraph of Article 181 EC, there are significant differences owing to the particular characteristics of the respective Community policies. As I shall explain below, those differences militate against applying the case-law on development cooperation to the new areas of Community competence within the framework of the common commercial policy.

70.      Thus, in the field of development cooperation, Community policy only complements that of the Member States in that field (Article 177(1) EC). (36) Independent action by the Member States in that field, whether collectively, individually or jointly with the Community, can share out the financial and technical burdens of development cooperation in Europe over several shoulders. Overall, this may result in more intensive development cooperation than would be the case if the Community alone had the right to conclude treaties in this area with non-member countries. Put more simply, the motto of the second paragraph of Article 181 EC and Article 177(1) EC is: the more development aid, the better. It is thus consistent with the meaning and purpose of development cooperation to assume that the Community and the Member States enjoy parallel competence. Of course, the Member States are required to coordinate their policies with the Community when exercising their own powers (Article 180(1) EC) and to respect the priority of Community law.

71.      The situation is also similar with regard to antitrust law (Articles 81 EC and 82 EC). The Court has consistently held that Community competition law and national competition law are applicable in parallel, since they consider restrictive practices from different perspectives. (37) Here again, it is consistent with the meaning and purpose of the relevant rules of the EC Treaty to assume that the Community and the Member States have parallel powers. (38)

72.      The situation, however, is different in the field of external trade with which the Court is faced in the present case. The more players there are on the European side at international level, the more difficult it will be to represent effectively the interests of the Community and its Member States outwardly, in particular vis‑à‑vis significant trading partners. Even if the Commission acts as the joint spokesperson of the Community and the Member States in negotiations, this will be preceded by considerable work on coordination, together with de facto pressure for unanimity if, in addition to the Community, all the Member States act individually in dealings involving international law.

73.      In addition, there is a risk that individual Member States may, to the detriment of the common interest, obstruct or protract negotiations with non-member countries in order to secure concessions for themselves. Conversely, for non-member countries it may be sufficient, in negotiations ‘with Europe’, to apply pressure to individual Member States in order circuitously to force concessions from the Community as a whole. Furthermore, the scope for complaints by non‑member countries within the framework of the WTO’s own dispute-resolution system will increase commensurately with the number of players on the European side which act and enter into commitments at international level.

74.      Agreements to which the Member States as well as the Community are parties are consequently out of place in the common commercial policy. (39) They should be permitted only where the Community on its own has no or insufficient power and therefore has to rely on the involvement of its Member States at international level. However, this does not apply with regard to Article 133(5) EC, apart from the cases listed in Article 133(6) EC.

75.      For the foregoing reasons Article 133(5) EC should be interpreted as meaning that, within its scope of application, voluntary involvement of the Member States alongside the Community is not permissible. Rather, to the extent to which the Community exercises its own powers under that provision, the Member States may for their part no longer exercise powers in the areas of trade in services and the commercial aspects of intellectual property.

76.      In other words, the new powers in respect of external trade conferred upon the Community by Article 133(5) EC are not parallel, but concurrent. A characteristic of concurrent competence (also referred to as shared competence) is that the Member States exercise their competence in so far as the Community has not exercised its competence. (40) However, if the Community does exercise its competence, it acts alone, so far as that competence is sufficient.

77.      The presumption that the Community has concurrent competence under Article 133(5) EC is also not precluded by its subparagraph 4, which in fact may be construed simply as an expression of the concurrent nature of the new powers in relation to external trade. Bearing in mind the objective of representation of Community interests at international level which should be as effective as possible, the Member States cannot be allowed, without restriction, to maintain or conclude agreements with non‑member countries or international organisations in the fields of trade in services and the commercial aspects of intellectual property, but may do so only in so far as the Community itself does not act.

78.      The existence of concurrent competence is also indicated by the fact that the second part of the fourth subparagraph of Article 133(5) EC lays down limits on the Member States’ exercise of their own powers if and in so far as the Community has adopted legislation or concluded international agreements. Consequently, agreements maintained or newly concluded by the Member States concerning trade in services or the commercial aspects of intellectual property must be consistent with Community law and other relevant international agreements. In this connection it must be borne in mind that international agreements concluded by the Community form an integral part of the Community legal order (41) and are binding on the Member States (Article 300(7) EC). (42)

79.      The point in time from which the Member States can no longer exercise their remaining powers in relation to external trade under the fourth subparagraph of Article 133(5) EC and must give precedence to the Community must be determined having regard in each particular case to the duty of genuine cooperation (Article 10 EC), which requires Member States to facilitate the achievement of the Community’s tasks and to abstain from any measure which could jeopardise the attainment of the objectives of the EC Treaty. (43) This duty of genuine cooperation is of general application and also applies where – as in the present case – the Community does not have exclusive competence and the Member States are thus in principle entitled to enter into conventional obligations towards non-member countries. (44)

80.      The adoption of a decision authorising the Commission to act externally on behalf of the Community marks the start of concerted Community action. Such a decision may thus already give rise to a duty on the Member States to refrain from acting in order to facilitate the Community’s performance of its task and to ensure the coherence and consistency of the Community action and its representation at international-law level. (45)

81.      The coherence and consistency of the Community’s international-law representation is endangered particularly in the field of external trade if the Member States act independently alongside the Community at international level without any compelling need for them to do so. The additional involvement of the Member States and the resulting pressure for unanimity weaken the Community’s negotiating position vis‑à‑vis its trading partners. (46)

82.      In the present case, on 27 October 2006 the Commission submitted to the Council a proposal for establishing the Community position on Vietnam’s application for accession to the WTO, and the Council established a Community position on that basis. From that point in time therefore, at the latest, the Member States were bound by their duty of loyalty under Article 10 EC not to jeopardise the effectiveness of the Community’s actions at international level by activities of their own in relation to Vietnam’s accession to the WTO, even if that ‘only’ involved acting in parallel alongside the Community. The Community alone was entitled to take measures under Article 133(5) EC from that time onward. Additional action by the Member States alongside the Community was no longer permissible, unless absolutely necessary by virtue of Article 133(6) EC.

83.      Contrary to the Council’s view, it cannot voluntarily waive some or all of its powers under Article 133(5) EC in favour of the Member States, but must take account of the Community interest in the most effective and coherent representation at international level as is possible and must make full use of its powers to that end. The Council must not allow the powers of the Community and its institutions, as formulated in the EC Treaty, to be distorted. (47)

84.      Likewise, the Member States within the Council may not obstruct optimum efficacy of action by the Community in external fields with the object of themselves becoming involved alongside the Community. As already mentioned, the duty of genuine cooperation (Article 10 EC) requires the Member States to do everything possible to facilitate the exercise of the Community’s powers and to abstain from any measure which could jeopardise the attainment of the objectives of the EC Treaty. (48)

3.      Interim conclusion

85.      To sum up, it follows from what has been said above that the Community’s new external trade competence under Article 133(5) EC is neither exclusive nor parallel in nature. Rather, it is a concurrent competence which allows the Member States to act only in so far as the Community does not exercise its own power. If the Community does exercise its power under Article 133(5) EC, in principle it acts alone unless Article 133(6) EC requires the common accord of the Member States.

86.      Against this background, the reference to Article 133(6) EC in the present case was not a purely formal matter, contrary to the view taken by the Council. Rather, the crucial issue here is whether Vietnam’s accession to the WTO fell within the scope of that provision or not, because only Article 133(6) EC could justify involvement of the Member States alongside the Community.

C –    The need for involvement of the Member States alongside the Community pursuant to Article 133(6) EC

87.      Since action by the Member States in conjunction with the Community was not permissible under Article 133(5) EC, as has just been shown, it needs to be examined in what follows whether it was necessary for the Member States to act alongside the Community pursuant to 133(6) EC.

88.      That will be the case if the Community’s own areas of competence – in this case its exclusive competence under Article 133(1) EC and its concurrent competence under Article 133(5) EC – were not sufficient for approving Vietnam’s accession to the WTO, that is to say, its accession touched on certain areas reserved to the Member States. That would then give rise to a shared competence of the Community and its Member States within the meaning of Article 133(6) EC, which, in contrast to the normal shared competence, (49) mandatorily requires joint action of the Community and the Member States. (50)

89.      Contrary to the assumptions of the Council and Spain, previous Community practice concerning the accession of new WTO members (51) is irrelevant for the purpose of appraising the issue of the applicability of Article 133(6) EC. The Court has consistently held that what is merely Council practice cannot derogate from the rules laid down in the EC Treaty, and also cannot therefore create a precedent binding on the Community institutions with regard to determination of the correct legal basis. (52)

90.      Practical difficulties in the negotiation and implementation of mixed agreements or decisions are likewise irrelevant to the question whether Article 133(6) EC was applicable or not in the present case. (53)

91.      Whether approval of the admission of a new WTO member comes solely within the scope of Article 133(1) and (5) EC or is also covered by Article 133(6) EC depends entirely on objective factors which are amenable to judicial review, including in particular the aim and content of the legal measure. (54) Consequently, the parties’ arguments will be discussed below with reference to the aim and content of the decision establishing the Community position on Vietnam’s accession to the WTO.

1.      The relevance of the specific obligations of the Community and Vietnam as a consequence of WTO accession

92.      The primary issue in dispute between the parties is how far the specific obligations of the Community and Vietnam as a consequence of the latter’s accession to the WTO should be taken into account in the examination of the applicability of Article 133(6) EC.

93.      The Commission sees the Community’s approval of the accession of a new WTO member as a general commercial-policy decision involving only the incorporation of a new State in the structures of an international organisation. Therefore, in the selection of the legal basis for establishing the Community position, guidance may be sought at most in the general fields with which the WTO deals: trade in goods, trade in services, and the commercial aspects of intellectual property rights. On the other hand, the choice of legal basis should not depend on the specific obligations arising for the Community and the new WTO member from the latter’s accession; after all, no agreement is being concluded between the Community and the new member.

94.      The Commission’s view would mean that approval of the accession of a new WTO member would at present fall entirely within the competence of the Community. For the three general areas to which the WTO Agreement relates (trade in goods, trade in services and the commercial aspects of intellectual property rights), the Community has, since the Treaty of Nice, had external competence arising from Article 133(1) EC in conjunction with Article 133(5) EC. To the extent to which new powers have accrued to the Community as a result, it has succeeded to the Member States’ functions within the WTO. (55)

95.      However, the Council and the interveners supporting it take issue with the Commission. They contend that the specific obligations of the Community and Vietnam are crucial in determining the legal basis which authorises the Community to approve accession to the WTO, and in particular whether recourse in that regard was to be had to Article 133(1) and (5) EC only, or whether Article 133(6) EC should also have been used.

96.      The latter view is to be preferred.

97.      Admittedly, from the formal viewpoint the accession of a new WTO member is not effected by an agreement between it and the original WTO members, but only by means of an agreement between that new member and the WTO (Article XII(1) of the WTO Agreement). (56) Accordingly, the Community, in giving its approval to such accession, is not concluding an agreement within the meaning of Article 133 EC, but is merely exercising its membership rights within the bodies of that international organisation (second subparagraph of Article 300(2) EC).

98.      This purely formal approach should not, however, distract attention from the actual effects for the Community of the accession of a new WTO member.

99.      With the WTO Agreement the members of the World Trade Organisation have equipped themselves not only with a common institutional framework for the conduct of trade relations among themselves (Article II(1) of the WTO Agreement). Rather, several multilateral trade agreements also form an integral part of the WTO Agreement and are binding on all members (Article II(2) of the WTO Agreement).

100. On the basis of these multilateral agreements, membership of the WTO brings with it a large measure of substantive rights and obligations. The agreements are concluded on the basis of reciprocal and mutually advantageous arrangements and aim at an overall balance between rights and obligations. (57) In the field of trade in services, which is of particular interest here, these include a most-favoured-nation clause (Article II(1) of the GATS), but WTO members also enter into specific commitments concerning market access, and such commitments may go as far as treatment equal to that of nationals (Articles XVI and XVII of the GATS). (58)

101. For the Community, any extension to WTO membership automatically leads to a broadening of the geographical scope of the Community’s own commitments within the framework of the WTO. So far as trade in services is concerned, for example, the admission of Vietnam to the WTO means that the Community must henceforward grant also to Vietnam most-favoured-nation treatment and that the Community’s specific commitments in relation to market access now apply also to service providers and services from Vietnam. Therefore it is not true that the admission of a new member to the WTO does not entail new legal obligations for the Community, as the Commission has argued in the present proceedings.

102. Furthermore, on admission every new WTO member enters into specific commitments with regard to access to its market (Article XX of the GATS), aptly described by some of the parties to these proceedings as amounting to an ‘entrance fee’. Such specific commitments on the part of a member acceding to the WTO form an integral part of the GATS and add to the complex weft of rights and obligations of WTO members in relation to each other.

103. Whether and, if so, to what extent a WTO member grants market access, or even national treatment, to foreign services and foreign service providers depends crucially on the specific commitments which it has entered into within the framework of the WTO (Articles XVI and XVII of the GATS).

104. These specific commitments represent commercial-policy concessions by the new WTO member which are normally the subject of lengthy and intensive negotiations within the WTO bodies prior to accession and are recorded in a voluminous accession protocol. As the Council observes, every WTO member may take part in these negotiations. In the case of Vietnam, 12 years elapsed between the submission of the application to accede and the actual completion of accession. (59)

105. As France, in particular, correctly points out, in order for the Community to grant its own commercial-policy concessions and to accept such concessions from non-member countries in return, the Community requires a legal basis. This follows from the principle of limited conferred powers (first paragraph of Article 5 EC), which applies to both internal and external Community action. (60) Otherwise, the Community could, for instance, in exchange for the removal of its own customs duties, demand concessions by non-member countries in areas which are outside the scope of its tasks and in respect of which it has no competence, at least as matters stand at present.

106. The general commercial-policy decision to approve the accession of a new WTO member cannot be contemplated separately from the previously negotiated commitments of the respective applicant for accession. In the framework of its political decision-making process the Council of the European Union must necessarily consider whether those commitments are sufficient, from the Community viewpoint, to ensure the overall balance between rights and obligations which it is sought to achieve within the WTO. (61) A new member’s ‘entrance fee’ is an important factor in that connection and the Council must take it into account when exercising its discretion.

107. Contrary to the Commission’s view, consideration of the specific obligations of the Community and Vietnam cannot be replaced by a comprehensive examination of the complex multilateral weft of rights and obligations of all WTO members because, when establishing the Community position on the accession of a new WTO member, it is not the entire multilateral system of the WTO that is to be tested, but only the specific changes in the rights and obligations arising for the Community from the admission of the particular applicant for accession.

108. Against that background, the specific obligations of the Community and Vietnam arising from accession to the WTO had to be taken into account in selecting the legal basis for establishing the Community position.

109. In that connection, contrary to what the Commission argues, it is immaterial whether the votes of the Community and its Member States within the General Council of the WTO were decisive for Vietnam’s accession or whether the necessary majority (62) could have been obtained with the votes of other WTO members. The Community always requires a legal basis for measures which it adopts or in which it is involved. This is so even where it is impossible to predict with certainty whether the objective which the Community seeks to attain (in the present case, influencing the decision of the WTO by particular voting conduct) will be achieved.

2.      The alleged ouster of Article 133(6) EC by other provisions

110. Secondly, the parties are in dispute as to whether Article 133(6) EC can be ousted by other provisions, as alleged by the Commission.

a)      Applicability of Article 133(6) EC even if only marginally concerned

111. First of all, the Commission takes the view that the Community’s approval of Vietnam’s accession to the WTO concerned Article 133(6) EC only marginally, if at all. However, according to the Commission, that provision is applicable only if the matters listed therein are ‘specifically and exclusively’ concerned, but not if they are only marginally concerned.

112. It is correct that, with regard to the choice of the legal basis for Community action, the Court has consistently held that a main-purpose test must be carried out: if examination of a Community measure reveals that it pursues a twofold purpose or that it has a twofold component, and if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the act must have a single legal basis, namely that required by the main or predominant purpose or component. (63)

113. However, this consideration relates to legal measures in respect of which the Community’s competence as such is beyond doubt and where it is necessary only to clarify which of several existing areas of Community competence is to be used (horizontal demarcation of competence). If, on the other hand, the Community is competent only in respect of certain components of a proposed act, while other components come within the competence of the Member States, (vertical demarcation of competence) the Community cannot simply declare that it is competent for the entire act by way of a main-purpose test. Otherwise it would undermine the principle of limited conferred powers (first paragraph of Article 5 EC; see also the second subparagraph of Article 7(1) EC). (64)

114. Admittedly, the Court has, in recent cases concerning criminal law relating to the environment and marine pollution, recognised that the Community may, as an annex, so to speak, to its existing areas of competence, also regulate certain aspects of criminal law if this is necessary in order to ensure that the rules which it lays down are fully effective. (65) However, those cases involved the interpretation of existing Community competence in the areas of the environment and transport. (66) The case-law cited must not be misunderstood as meaning that henceforward, with regard to the division of areas of competence between the Community and the Member States, a simple main-purpose test would be sufficient to create Community competence in areas for which no powers were conferred upon it by the Treaties.

115. However, for the purpose of interpreting areas of Community competence, in no circumstances may a main-purpose test be undertaken or ancillary competence be presumed if that is expressly precluded by provisions of the Treaties. That is the situation here with regard to Article 133(6) EC.

116. The first subparagraph of Article 133(6) EC prohibits the Council – alone (67) – from concluding an international agreement if it includes provisions which would go beyond the Community’s internal powers.

117. Likewise, the second subparagraph of Article 133(6) EC prescribes shared competence (68) wherever an international agreement relates to trade in the specified services. It is true that the German wording (‘im Bereich’) and some other language versions (69) could be understood as meaning that the second subparagraph prescribes the conclusion of shared agreements only where they relate predominantly or exclusively to trade in the specified services. However, a number of other language versions suggest that the second subparagraph of Article 133(6) EC is to apply if an agreement simply relates to (70) the services in question. This broad interpretation is also supported by the regulatory nexus between the second and first subparagraphs (‘in this regard’) and by the general purpose of Article 133(6) EC, which is to safeguard the Member States’ rights of joint decision in areas which are politically sensitive for them, particularly in connection with the WTO.

118. The second subparagraph of Article 133(6) EC would to a large extent cease to be practically effective were its scope confined to sectoral trade agreements (or decisions within the meaning of the second subparagraph of Article 300(2) EC) relating to the service sectors specifically listed therein because, in bilateral and multilateral negotiations in the area of foreign trade (and not least within the framework of the WTO), overall packages are frequently tied up which relate to a large number of different fields, none of which can be said to constitute the predominant component or main subject.

119. Against that background, the requirement for the consensual involvement of the Member States alongside the Community should not be confined to agreements (or decisions) the predominant component or main subject of which falls within the ambit of Article 133(6) EC. Rather, under Article 133(6) EC individual provisions of an agreement may make it necessary to conclude it as a shared agreement, even if those provisions are of secondary importance in relation to the agreement as a whole.

120. Accordingly, Article 133(6) EC is not an exception to the first subparagraph of Article 133(5) EC and, as such, to be interpreted narrowly, but rather a provision which is designed to clarify the precise scope of and the substantive limits to the Commission’s new external trade competence for trade in services and the commercial aspects of intellectual property. At the same time, this provision counteracts a main-purpose test operating to the disadvantage of the areas of competence of the Member States.

121. Individual aspects of an agreement for which the Community has no competence internally ‘infect’ the agreement as a whole and make it dependent on the common accord of the Member States. The picture created by the Commission itself in another context (71) is also absolutely true in relation to Article 133(6) EC. Just as a little drop of pastis can turn a glass of water milky, individual provisions, however secondary, in an international agreement based on the first subparagraph of Article 133(5) EC can make it necessary to conclude a shared agreement.

122. Therefore, the Community on its own, that is to say, without the consensual involvement of the Member States in the form of a shared agreement, can conclude an external trade agreement within the meaning of the first subparagraph of Article 133(5) EC only if that agreement contains no provisions which would go beyond the Community’s internal powers within the meaning of the first subparagraph of Article 133(6) EC and relates to none of the areas listed in the second subparagraph of Article 133(6) EC.

123. In the same way, the Community may act on its own in commercial-policy decisions within bodies of international organisations only if those decisions do not relate to any of the matters referred to in Article 133(6) EC; otherwise, the Community requires the consensual involvement of the Member States when it casts its vote.

124. No doubt this legal position is not exactly conducive to the effective representation of Community interests in the area of external trade, particularly and precisely in the framework of the WTO. However, this disadvantage must be accepted as the Treaties stand at present. (72) The far-reaching rights of joint decision which the Member States reserved for themselves in the Treaty of Nice in relation to the Community’s new areas of external trade competence would otherwise be meaningless. In interpreting Treaty provisions, the Court may not exceed the limits on amending the Treaties laid down by Article 48 EU. (73) The first and second subparagraphs of Article 133(6) EC have been removed only by the Treaty of Lisbon, with the result that the Member States’ rights of joint decision are now confined to internal Community decision-making, but within the Council unanimity is required in areas which are regarded as being particularly sensitive (second and third subparagraphs of Article 207(4) TFEU).

125. Contrary to the Commission’s view, this legal position in the version of the Treaty of Nice does not represent a retreat from the previous position obtaining at the date of the WTO opinion. (74) The first subparagraph of Article 133(5) EC creates a new external Community competence, albeit subject to limitations, for trade in services and the commercial aspects of intellectual property, in respect of which the Community hitherto had no comparable competence. At the same time, that provision expressly leaves untouched the Community’s exclusive competence for ‘mode 1’ (75) services under Article 133(1) EC, which had already been recognised by the Court in the WTO opinion, that is to say, services not requiring persons to cross borders. (76) This is made clear by the phrase ‘in so far as those agreements are not covered by the said paragraphs’.

b)      Applicability of Article 133(6) EC also to horizontal agreements

126. The Commission further takes the view that Article 133(6) EC is not applicable because the admission of a new member to the WTO is to be treated as equivalent to a horizontal agreement.

127. By emphasizing the horizontal nature of accession to the WTO, the Commission links up smoothly with the abovementioned main‑purpose test, according to which Article 133(6) EC applies only if it is ‘specifically and exclusively’ concerned. I have already shown that such a test in relation to Article 133(6) EC is not permissible. (77)

128. However, the Commission’s argument is also based on systemic considerations: for horizontal agreements, the third subparagraph of Article 133(5) EC provides for a uniform legal basis which confers a comprehensive competence upon the Community and takes precedence over Article 133(6) EC.

129. I am not persuaded by that part of the Commission’s argument either. It blurs the distinction between procedural rules and substantive provisions in the reformulated paragraphs of Article 133 EC.

130. Contrary to the view taken by the Commission, the Community is provided with a substantive legal basis for negotiating and concluding trade agreements only in Article 133(1) EC and in the first subparagraph of Article 133(5) EC. If those provisions are applied in conjunction with the second subparagraph of Article 300(2) EC, as in the present case, they must be construed as meaning that the Community is allowed, not only to negotiate and conclude agreements, but also to participate in the formulation of commercial-policy decisions in bodies of international organisations.

131. The substantive limits to the Community’s competence under the first subparagraph of Article 133(5) EC are made clear by Article 133(6) EC. If the latter is applicable, the Community needs the involvement of its Member States in the form of a shared agreement or, in the case of decision-making in international bodies, in the form of a common, consensual vote.

132. Moreover, under the fourth subparagraph of Article 133(5) EC the Member States reserve a concurrent competence to maintain and conclude their own agreements within the substantive scope of Article 133(5) EC in so far as such agreements comply with Community law and other relevant international agreements.

133. The abovementioned substantive-law provisions stand in contrast to the second and third subparagraphs of Article 133(5) EC, which contain purely procedural rules. Those subparagraphs merely state that in certain cases the Council is to act unanimously, although actually a qualified majority would be sufficient to adopt a decision in view of the rule in the first subparagraph of Article 133(5) EC in conjunction with Article 133(4) EC.

134. To be specific, the third subparagraph of Article 133(5) EC, with which the present case is concerned, contains three safeguards. First, the requirement of unanimity – which is still required within the Community in many policy areas that are regarded as being particularly sensitive – is not to be undermined when it comes to the conclusion of horizontal agreements. (78) Second, integration is not to proceed faster in the context of external relations than is the case within the Community, unless that is decided unanimously. (79) And third, where a horizontal agreement takes the form of a shared agreement, the mode of voting within the Council is adjusted to the pressure for unanimity which exists in any case and results from the consensual involvement of all Member States as contracting parties alongside the Community. (80)

135. In view of the very different regulatory content of the third subparagraph of Article 133(5) EC and Article 133(6) EC – the former deals with procedure, the latter with the substantive‑law limits of the Community’s new external trade competence – it is not possible to infer a rule‑exception relationship between them. Rather, Article 133(6) EC also applies to horizontal agreements within the meaning of the third subparagraph of Article 133(5) EC.

136. Contrary to the view espoused by the Commission, there is no uniform substantive legal basis for horizontal agreements in Article 133 EC. Rather, it appears from the systemic link between Article 133(1) and (5) EC that, when concluding horizontal agreements, the Community must, where appropriate, use more than one legal basis simultaneously. If, for example, the WTO Agreement, indubitably the most important existing example of a horizontal agreement, were to be concluded again today, the Community would have to find support at least in Article 133(1) and (5) EC and also, because of the third subparagraph of Article 133(6) EC, in the provisions concerning transport in Title V of the EC Treaty. Even the Treaty of Lisbon will not provide the Community with a uniform and comprehensive external trade competence for horizontal agreements because, for the field of transport, Article 207(5) TFEU still requires recourse to the provisions of the common transport policy.

(c) Interim conclusion

137. It follows from the foregoing that Article 133(6) EC is applicable even where it is not predominantly concerned. For the application of Article 133(6) EC, it is also irrelevant whether the agreement or decision in question is horizontal in nature.

3.      The requirements of Article 133(6) EC in detail

138. Finally, the parties are in dispute as to whether the specific obligations of the Community and Vietnam as a result of accession to the WTO were such in the present case as to require the involvement of the Member States under Article 133(6) EC.

a)      Involvement of the Member States under the first subparagraph of Article 133(6) EC

139. It follows from the first subparagraph of Article 133(6) EC that the Community cannot – alone (81) – conclude an agreement if it includes provisions which would go beyond the Community’s internal powers. In the same way, the Community cannot act alone in relation to commercial-policy decisions within bodies of international organisations under the conditions of the first subparagraph of Article 133(6) EC if the subject‑matter of those decisions goes beyond the Community’s internal powers.

140. First of all, it must be made clear that the scope of that provision is by no means limited to such agreements (or decisions) as include provisions that would lead to harmonisation of national law where the EC Treaty rules out harmonisation. As shown by the words ‘in particular’, the prohibitions of harmonisation laid down in the EC Treaty are only examples of the application of the first subparagraph of Article 133(6) EC and do not restrict the scope of the provision to that field.

141. Furthermore, the half-sentence in the first subparagraph of Article 133(6) EC beginning with the words ‘in particular’ must also not be understood as meaning that the prohibition on exceeding the Community’s internal powers applies only where it would be particularly serious to do so, as for example in the case of harmonisation prohibited by the EC Treaty. Such an interpretation would be tantamount to the introduction of an unwritten de minimis threshold. This would be incompatible with the principle of limited conferred powers (first paragraph of Article 5 EC), which also applies unconditionally to external powers. (82) The Community may not generally exceed the bounds of its competence, regardless of whether any such excess is a minor matter or more serious.

142. The meaning and purpose of the first subparagraph of Article 133(6) EC is, very generally, to put the Community’s internal and external powers on a parallel footing and to prevent the Community from entering into external commitments to which it would be unable to give effect internally for want of sufficient powers.

143. In essence the Council gives two examples which, in its opinion, demonstrate that the approval of Vietnam’s accession to the WTO exceeded the Community’s internal competence, which is why it was necessary for the Member States to be involved alongside the Community under the first subparagraph of Article 133(6) EC.

i)      Restrictions on access to the market for services

144. The Council’s first example relates to the specific commitments of the Community and Vietnam in the context of Articles XVI and XVII of the GATS relating to access to the market for services and service providers. Certain Member States have in this connection provided for, inter alia, restrictions on access to the market for ‘mode 3’ hospital services, (83) which include in particular approval requirements in the framework of national health-care systems (84) and in some cases also a needs test. (85) In addition, natural persons are subject to numerous restrictions on access to the market for providing ‘mode 4’ services, (86) such as an economic needs test, as well as residence or nationality requirements.

145. The Council doubts whether the Community has, on the basis of the EC Treaty, internal powers in respect of those restrictions.

146. First of all, it must be observed in this connection that, since the Treaty of Amsterdam, the Community has acquired several new powers for regulating the entry and residence of natural persons from non-member countries. These powers are contained in Title IV of the EC Treaty and entitle the Community to adopt not only rules on visas for intended stays of no more than three months (Article 62(2)(b) EC) and measures on immigration policy (Article 63(3)(a) EC), but also rules on the freedom of movement within the Community of nationals of non‑member countries (Article 63(4) EC).

147. Apart from these entry and residence matters, provisions concerning the taking-up and pursuit, by natural and legal persons, of activities as self-employed persons within the Community, including in the health sector, fall within the scope of the provisions on the internal market.

148. There the Community has power not only to issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications (Article 47(1) EC), but also power to issue directives for giving effect to the freedom of establishment (Article 44 EC) and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons (Article 47(2) EC). (87) In addition, the Community may issue directives for the coordination of provisions for special treatment of foreign nationals on grounds of public policy, public security or public health (Article 46(2) EC).

149. As the Court found in the WTO opinion, the sole and express objective of those provisions is to secure the right of establishment and freedom to provide services for nationals of Member States. (88) However, that does not mean that ‘the Community institutions are prohibited from using the powers conferred on them in that field in order to specify the treatment which is to be accorded to nationals of non-member countries’. (89) Therefore the Community may, when issuing directives for completing the internal market, at least join in regulating how nationals of non-member countries working in the Community are to be treated if that is necessary, for example, for bringing about equal conditions of competition within the internal market. The fact that those powers have not been fully used and have therefore not yet been transformed into exclusive areas of competence within the meaning of the AETR judgment, but continue to be of a concurrent nature, (90) is not relevant to the question of the existence of internal Community powers, which is the only issue of interest in the context of the first subparagraph of Article 133(6) EC.

150. Specifically in the health sector, however, certain limits have been imposed on the Community’s powers. In particular, in the field of health policy, the Community must fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care (Article 152(5) EC). In any event, the needs test mentioned by the Council, which is required in some countries for the authorisation of new hospitals, is closely connected with the organisation of the respective national health services and therefore falls within the specific competence of the Member States. (91)

151. Consequently the Community has no internal power within the meaning of the first subparagraph of Article 133(6) EC in relation, at least, to some of the market-access rules applying to hospital services, with the result that the involvement of the Member States, alongside the Community, was necessary on the occasion of Vietnam’s accession to the WTO.

ii)    Article 61 of the TRIPS Agreement

152. The Council’s second example relates to Article 61 of the TRIPS Agreement. The Council alleges that the commitments arising from that provision would lead to the harmonisation of national criminal law concerning the infringement of certain intellectual property rights, in respect of which the Community has no power.

153. It is true that, as matters stand at present, criminal law and the legal rules governing criminal procedure do not in principle come within the competence of the Community and it has no general power with regard to the harmonisation of national law in that field. (92) However, as I have already stated, the Court has found, in its judgments on criminal law relating to the environment and marine pollution, that the Community may join in the regulation of certain aspects of criminal law if this is necessary in order to ensure that the rules which it lays down are fully effective. (93) I think that it is not altogether impossible that the Community legislature could find support in that case-law if it creates European intellectual property rights which are fortified with penalties (94) or if it adds to existing rules (95) in order to ensure that they are fully effective by means of a criminal‑law element. (96) Article 61 of the TRIPS Agreement is one provision which shows that a safeguard of that kind is regarded internationally as being necessary.

154. However, in its marine pollution judgment the Court expressly stated that the determination of the type and level of the criminal penalties to be applied does not fall within the Community’s sphere of competence, thus leaving it to the Member States. (97) Consequently, as matters stand at present, the Community has no power to adopt a comprehensive criminal provision. (98)

155. Article 61 of the TRIPS Agreement certainly does not lay down a specific level of penalty for WTO members, but it does require them to introduce certain types of penalty, namely imprisonment and/or monetary fines and also, in appropriate cases, the seizure, forfeiture and destruction of items. Consequently, as Community law stands at present, the requirements of Article 61 of the TRIPS Agreement go beyond the Community’s internal powers.

156. As the first subparagraph of Article 133(6) EC requires the internal and external powers of the Community to be parallel, the Community was not entitled to approve, on its own, Vietnam’s accession in so far as it relates to Article 61 of the TRIPS Agreement. For that reason Vietnam’s accession to the WTO thus required the involvement of the Member States alongside the Community.

b)      Involvement of the Member States under the second subparagraph of Article 133(6) EC

157. The second subparagraph of Article 133(6) EC provides that, by way of derogation from the first subparagraph of paragraph 5, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services, fall within the shared competence of the Community and its Member States. In the same way, under the conditions set out in the second subparagraph of Article 133(6) EC, the Community may not be involved on its own in commercial-policy decisions in bodies of international organisations within the meaning of the second subparagraph of Article 300(2) EC.

158. In the Commission’s view, the second subparagraph of Article 133(6) EC concerns only cases in which the conclusion of an agreement by the Community would lead to harmonisation of the law of the Member States in the areas of culture, audiovisual services, education, social or health services. This, it argues, follows from the regulatory nexus between the first and second subparagraphs of Article 133(6) EC. As shown by the words ‘in this regard’, the second subparagraph addresses in more detail the provisions set out in the first subparagraph. The purpose of both subparagraphs is merely to prevent the Community, when it exercises its external powers, from undermining the prohibitions of harmonisation which are laid down at various points in the Treaty; to that extent, the second subparagraph of Article 133(6) EC reflects Articles 149 EC to 152 EC.

159. I am not persuaded by that argument.

160. Under the second subparagraph of Article 133(6) EC, the consensual involvement of the Member States alongside the Community is required as soon as and in so far as the areas listed therein are affected, irrespective of whether the trade agreement concerned leads to harmonisation of national law or not.

161. If the scope of the first subparagraph of Article 133(6) EC cannot be reduced only to cases of harmonisation of national law, as already mentioned, (99) even less can that interpretation be transposed to the second subparagraph by means of the words ‘in this regard’.

162. Furthermore, the first and second subparagraphs of Article 133(6) EC are independent of each other (100) and one does not take precedence over the other. In particular, the second subparagraph cannot be regarded merely as addressing in more detail the provisions of the first. They do not both cover the same field; indeed, each subparagraph has its own scope and regulatory content.

163. On the one hand, the scope of the second subparagraph exceeds that of the first. The second extends the requirement for the common accord of the Member States to areas for which the Community has power to harmonise national law and which therefore are not covered by the first subparagraph at all. This applies, for example, in the case of audiovisual services, for which an internal power of harmonisation exists (101) and has already been exercised with the ‘television without frontiers’ directive. (102)

164. On the other hand, the scope of the second subparagraph is less than that of the first because it does not in any way list all the areas in which the Community would have no internal power within the meaning of the first subparagraph or in which harmonisation would be prohibited within the Community. The list in the second subparagraph does not, for instance, include criminal law and the legal rules governing criminal procedure, in respect of which, as the Treaties stand at present, the Community has in principle no competence, (103) or employment policy, where the Community is prohibited from harmonising national law (second paragraph of Article 129 EC) in any way.

165. Furthermore, it cannot be inferred from the words ‘in this regard’ that the scope of the two subparagraphs is identical. Those words are intended only to make it clear that the first and second subparagraphs of Article 133(6) EC have the same legal consequence: all the matters to which they relate are included among those in respect of which the Council alone cannot conclude agreements on the Community’s behalf. The purpose is to ensure that the respective agreements are concluded in the form of shared agreements, that is to say, with the Member States joining in as contracting parties alongside the Community.

166. By contrast, the need for shared agreements to be concluded arises from very different considerations in the two subparagraphs. Whereas the first subparagraph of Article 133(6) EC seeks to make the Community’s internal and external powers parallel, as has already been mentioned, (104) the Member States’ insistence on shared agreements in the second subparagraph can be explained by the politically sensitive nature of the areas which it lists. (105) For agreements on services affecting the areas listed in the second subparagraph of Article 133(6) EC, the Member States are to be granted not only a right of veto internally within the Council, (106) but are also to retain a comprehensive right of joint decision externally at international level.

167. In the present case this means that, for Vietnam’s accession to the WTO, the Member States were required to be involved alongside the Community simply if that accession affected one or more of the areas specified in the second subparagraph of Article 133(6) EC, regardless of whether or not that led to the harmonisation of national laws or regulations within the meaning of the first subparagraph. As already mentioned, (107) account must be taken in this regard of the specific commitments of the Community and Vietnam resulting from WTO accession.

168. It is common ground that a number of the Community’s specific commitments within the framework of the GATS relate to services in the areas of culture, social and health services and education, and that their geographical scope is extended to Vietnam as a result of the latter’s accession to the WTO. Vietnam has likewise, by virtue of its accession to the WTO, entered into specific commitments within the framework of the GATS relating to audiovisual services, education, health services, and social and cultural services.

169. It follows that the Community’s approval of Vietnam’s accession to the WTO related to several of the areas mentioned in the second subparagraph of Article 133(6) EC. Consequently, the Community was not entitled on its own, in the WTO General Council, to approve Vietnam’s admission and it needed the Member States to be involved for that purpose in the form of concerted voting conduct.

D –    Interim conclusion

170. As the Community was not entitled on its own to approve Vietnam’s accession to the WTO, but required concerted involvement of the Member States pursuant to Article 133(6) EC, the Commission’s action must be dismissed as being unfounded, in so far as it is admissible at all.

VII –  Limitation of the effects of possible annulment

171. Should the Court, contrary to the foregoing observations, annul the contested decision, it would be appropriate to limit the effects of the judgment. This position has also been taken by the parties and they agree in asking the Court to uphold the effects of the contested decision, if necessary.

172. Under the second paragraph of Article 231 EC, the Court may, if it considers this necessary, state which of the effects of the legal measure which it has declared void are to be considered as definitive. Although, strictly speaking, this provision relates, as is apparent from its wording, only to regulations, the Court has applied it by analogy to decisions. (108)

173. In the present case, justification for the contested decision to continue to have effect lies in the fact that Vietnam has already become a member of the WTO. The annulment of a prior decision establishing the Community position would not alter the fact that Vietnam’s accession to the WTO is binding under international law on the Community and its Member States because infringements of provisions of internal law cannot in principle, according to the general rules of international law, have any bearing on the competence to conclude treaties and agreements. (109) Within the Community, however, uncertainty might arise as to the legal position regarding the effects of Vietnam’s accession to the WTO and with regard to trade with that non‑member country. To avoid any legal uncertainty concerning the rules applying to trade with Vietnam, therefore, it is necessary that the effects of the contested decision be maintained. (110)

174. Unlike the situation in Case C‑178/03, (111) however, in the present case it would be pointless to require the Council to adopt another decision within a reasonable period, but without recourse to Article 133(6) EC, because so far as the future is concerned there is no longer any need to establish a Community position on Vietnam’s accession to the WTO. The establishment of that Community position was meaningful only with a view to the Community’s voting conduct within the WTO General Council on 7 November 2006. That vote has already taken place and will not be repeated.

VIII –  Costs

175. Under Article 69(2) 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. As the Commission has failed entirely in its submissions, it must be ordered to pay the costs in accordance with the Council’s application.

176. By way of exception to the foregoing, it follows from Article 69(4) of the Rules of Procedure that the Member States which intervened in the proceedings must bear their own costs.

IX –  Conclusion

177. On the basis of the foregoing considerations, I propose that the Court:

(1)      Dismiss the action as inadmissible in so far as it is directed against the decision of the representatives of the Member States meeting within the Council, otherwise dismiss the action as unfounded;

(2)      Order the Czech Republic, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Republic of Finland and the United Kingdom of Great Britain and Northern Ireland each to pay their own costs, otherwise order the Commission of the European Communities to pay the costs of the proceedings.

1 – Original language: German.

2 – According to Christoph W. Herrmann in: ‘Common Commercial Policy after Nice: Sisyphus would have done a better job’, Common Market Law Review – CMLRev 39 (2002), p. 7.

3 – The Treaty of Nice was signed on 26 February 2001 and came into force on 1 February 2003. It is published in OJ 2001 C 80, p. 1.

4 – In parallel to these proceedings, the Commission has lodged with the Court an application 1/08 for an opinion on the basis of Article 300(6) EC, also relating to the interpretation of Article 133(5) and (6) EC in the version of the Treaty of Nice.

5 – According to the information published by the WTO itself, which can be consulted on the internet at http://wto.org/english/thewto_e/acc_e.htm (last visited on 3 February 2009).

6 – Signed in Marrakech on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1).

7 – OJ 1994 L 336, p. 190.

8 – OJ 1994 L 336, p. 213.

9 – Commission proposal of 27 October 2006 for a Council decision establishing the Community position within the General Council of the World Trade Organisation on the accession of the Socialist Republic of Vietnam to the World Trade Organisation (COM(2006) 659 final).

10 – The decision was adopted in the written procedure initiated on 31 October 2006 (Council document CM 3730/06) and ended on 6 November 2006 (Council document CM 3773/06). It was not published in the Official Journal of the European Union.

11 – The decision is printed in the same document as the Council decision (see footnote 10).

12 – The statement appended to the Council minutes, which is printed in Council document CM 3773/06, is worded as follows: ‘the Commission notes that its proposal had as the legal basis Article 133(1) and (5) in conjunction with the second subparagraph of Article 300(2). The Council has added paragraph 6 of Article 133 and in addition the Representatives of Member States meeting within the Council have adopted a separate decision approving the accession of Vietnam to the WTO. The Commission considers that its proposal included the correct legal basis and is of the view that the separate decision of the Representatives of Member States meeting within the Council was not necessary. Consequently the Commission reserves its right to make use of all legal means at its disposal.’

13 – The original application, which was initially submitted by fax, was lodged at the Court Registry on 18 January 2007.

14 – The Court proceeded similarly in its orders in Case C‑445/00 Austria v Council [2002] ECR I‑9151 and in Case C‑221/06 Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten [2007] ECR I‑2613.

15 – See, inter alia, Case 22/70 Commission v Council (AETR) [1971] ECR 263, paragraphs 39 and 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‑0000, paragraph 42.

16 – Joined Cases C‑181/91 and C‑248/91 Parliament v Council and Commission (‘Bangladesh’) [1993] ECR I‑3685, paragraph 14.

17 – Case C‑316/91 Parliament v Council (‘European Development Fund – EDF’) [1994] ECR I‑625, paragraph 9.

18 – Bangladesh judgment, cited in footnote 16, paragraph 12.

19 – Opinion 2/94 (ECHR Opinion) [1996] ECR I‑1759, paragraph 24.

20 – See, to that effect, Joined Cases 3/76, 4/76 and 6/76 Kramer and Others [1976] ECR 1279, paragraph 19, according to which ‘regard must be had to the whole scheme of Community law no less than to its substantive provisions’; see also Opinion 2/94, cited in footnote 19, paragraph 23 et seq.

21 – As is well known, according to Article II(2) of the WTO Agreement, in addition to the 1994 General Agreement on Tariffs and Trade (GATT 1994), there are two further multilateral trade agreements that form part of the WTO Agreement and are thus binding on all WTO members: the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

22 – Case 165/87 Commission v Council [1988] ECR 5545, paragraphs 18 and 19; Case C‑268/94 Portugal v Commission [1996] ECR I‑6177, paragraph 79; Case C‑491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I‑11453, paragraph 98; and Case C‑210/03 Swedish Match [2004] ECR I‑11893, paragraph 44.

23 – On the dismissal of a ground in an action or appeal as being ‘to no purpose’ or ‘of no consequence’ (‘inopérant’), see Case C‑35/92 P Parliament v Frederiksen [1993] ECR I‑991, paragraph 31; Case C‑380/03 Germany v Parliament and Council [2006] ECR I‑11573, paragraph 125; and Joined Cases C‑120/06 P and C‑121/06 P FIAMM and FIAMM Technologies v Council and Commission [2008] ECR I‑0000, paragraph 189.

24 – Opinion 1/75 (‘local costs’) [1975] ECR 1355, pp. 1363 and 1364; Case 41/76 Donckerwolcke and Schou [1976] ECR 1921, paragraph 32; Opinion 2/91 (‘ILO Convention No 170’) [1993] ECR I‑1061, paragraph 8; Opinion 1/94 (‘WTO opinion’) [1994] ECR I‑5267, paragraph 22 in conjunction with paragraph 34; Opinion 2/00 (‘Cartagena Protocol’) [2001] ECR I‑9713, paragraph 41; Case C‑347/03 Regione autonoma Friuli-Venezia Giulia and ERSA [2005] ECR I‑3785, paragraphs 75 and 76; and Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-0000, paragraph 182.

25 – The Treaty establishing a Constitution for Europe (‘TCE’) was signed in Rome on 29 October 2004 (OJ 2004 C 310, p. 1).

26 – The Treaty on the Functioning of the European Union (‘TFEU’) is based on amendments to the EC Treaty arising from the Treaty of Lisbon (signed in Lisbon on 13 December 2007) (OJ 2007 C 306, p. 1) and enters into force with that latter Treaty.

27 – Case 804/79 Commission v United Kingdom [1981] ECR 1045, paragraphs 17, 18 and 27.

28 – Commission v United Kingdom, cited in footnote 27, paragraph 20.

29 – See, to the same effect, the first half of the sentence in Article I‑12(1) TCE and the first half of the sentence in Article 2(1) TFEU, which in that respect may be regarded as codifying the legal position to date; see also the AETR judgment, cited in footnote 15, paragraph 31; Opinion 1/75, cited in footnote 24, pp. 1363 and 1364; and Opinion 2/91, cited in footnote 24, paragraph 8, which find that there can be no ‘concurrent competence’ or ‘parallel competence’ of the Member States alongside exclusive competence of the Community.

30 – Donckerwolcke and Schou, cited in footnote 24, paragraph 32; Case 174/84 Bulk Oil [1986] ECR 559, paragraph 31; Case C‑70/94 Werner [1995] ECR I‑3189, paragraph 12; and Case C‑83/94 Leifer and Others [1995] ECR I‑3231, paragraph 13; this case‑law has also been incorporated in the respective second halves of the sentences in Article I‑12(1) TCE and Article 2(1) TFEU. Apart from the cases of specific authorisation, the Member States may, in the event of inaction on the Community’s part, take action in urgent cases as ‘trustees of the common interest’, but in so doing they must consult the Commission and comply with Community law (Commission v United Kingdom, cited in footnote 27, paragraphs 22 and 31). In the present case, however, any action by the Member States as ‘trustees’ in this sense was precluded from the outset because the Council itself adopted a decision in relation to Vietnam’s accession to the WTO.

31 – Meaning trade in services, the commercial aspects of intellectual property and foreign direct investments.

32 – Article III‑315(1), in conjunction with Article I‑13(1)(e), TCE already made similar provision.

33 – AETR, cited in footnote 15, paragraphs 17, 18 and 31; Opinion 1/94, cited in footnote 24, paragraphs 77 and 95; Case C‑467/98 Commission v Denmark (‘Open Skies’) [2002] ECR I‑9519, paragraphs 77 to 84; and Opinion 1/03 (‘Lugano Convention’) [2006] ECR I‑1145, paragraphs 115, 116, 118, 122 to 126.

34 – Similar phraseology is used in Article 111(5) EC (monetary union), the second subparagraph of Article 174(4) EC (environment) and the second subparagraph of Article 181a(3) EC (economic, financial and technical cooperation with non‑member countries).

35 – EDF, cited in footnote 17, paragraphs 26 and 34; also similar Bangladesh, cited in footnote 16, paragraph 16.

36 – See also Portugal v Council, cited in footnote 22, paragraph 36.

37 – Case 14/68 Walt Wilhelm and Others [1969] ECR 1, paragraphs 3 and 4; Joined Cases 253/78 and 1/79 to 3/79 Giry and Guerlain and Others [1980] ECR 2327, paragraph 15; Case C‑137/00 Milk Marque and National Farmers’ Union [2003] ECR I‑7975, paragraph 61; and Joined Cases C-295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 38.

38 – For coordination between the Commission and the national competition authorities, and also the priority of Community law, see Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1), particularly Article 3 and recitals 8 and 15 in the preamble.

39 – See, to that effect, Opinion 1/75, cited in footnote 24, pp. 1363 and 1364, according to which the concept of the (conventional) common commercial policy is incompatible with the freedom to which the Member States could lay claim by invoking a concurrent power, so as to ensure that their own interests were separately satisfied in external relations, at the risk of compromising the effective defence of the Community’s common interests.

40 – See, to that effect, Kramer, cited in footnote 20, paragraphs 39 and 40, and, most recently, the respective second sentences of Article I‑12(2) TEC and Article 2(2) TFEU, which may be regarded as codifications of the legal position to date.

41 – Case 181/73 Haegeman [1974] ECR 449, paragraph 5; Case 12/86 Demirel [1987] ECR 3719, paragraph 7; Case C‑459/03 Commission v Ireland [2006] ECR I‑4635, paragraph 82; and Case C‑431/05 Merck Genéricos – Productos Farmacêuticos [2007] ECR I‑7001, paragraph 31.

42 – See also Case 104/81 Kupferberg [1982] ECR 3641, paragraph 11.

43 – Opinion 2/91, cited in footnote 24, paragraph 10; Commission v Denmark, cited in footnote 33, paragraph 110; Case C‑266/03 Commission v Luxembourg [2005] ECR I‑4805, paragraph 57; Case C‑433/03 Commission v Germany [2005] ECR I‑6985, paragraph 63; and Opinion 1/03, cited in footnote 33, paragraph 119.

44 – Commission v Luxembourg, cited in footnote 43, paragraph 58, and Commission v Germany, cited in footnote 43, paragraph 64.

45 – Commission v Luxembourg, cited in footnote 43, paragraphs 59 and 60, and Commission v Germany, cited in footnote 43, paragraphs 65 and 66.

46 – See point 72 of this Opinion.

47 – See, to that effect, albeit in a different context, Opinion 1/00 [2002] ECR I‑3493, paragraph 12.

48 – On this point, see once again Commission v Luxembourg, cited in footnote 43, paragraph 57, and Commission v Germany, cited in footnote 43, paragraph 63.

49 – On this matter, see point 76 and footnote 40 of this Opinion.

50 – In view of the particular characteristic indicated, it is misleading that in several language versions of the second subparagraph of Article 133(6) EC this form of competence is described by means of the normal term ‘shared competence’, particularly in the French (‘compétence partagée’) and English language versions. [Translator’s note: the German version of the second subparagraph of Article 133(6) EC uses the more precise term ‘gemischte Zuständigkeit’, which would translate as ‘mixed competence’ in English].

51 – Examples given were, in particular, the approval of the Community and the Member States for the accession to the WTO of the Kingdoms of Saudi Arabia and Tonga in 2005, when the EC Treaty, in the version of the Treaty of Nice, likewise governed the issue of approval within the Community.

52 – Case 68/86 United Kingdom v Council [1988] ECR 855, paragraph 24; Case C‑84/94 United Kingdom v Council [1996] ECR I‑5755, paragraph 19; Case C‑414/04 Parliament v Council [2006] ECR I‑11279, paragraph 37; Case C‑133/06 Parliament v Council [2008] ECR I‑0000, paragraph 60; and Opinion 1/94, cited in footnote 24, paragraph 52.

53 – See, to that effect, Opinion 1/94, cited in footnote 24, paragraph 107, and Opinion 2/00, cited in footnote 24, paragraph 41.

54 – Settled case-law: see, by way of example, Case C‑300/89 Commission v Council (‘titanium dioxide’) [1991] ECR I‑2867, paragraph 10; Portugal v Council, cited in footnote 22, paragraph 22; Kadi and Al Barakaat International Foundation v Council and Commission, cited in footnote 24, paragraph 182; and Opinion 2/00, cited in footnote 24, paragraph 22.

55 – A similar situation arose earlier in relation to the GATT 1947 (Joined Cases 21/72 to 24/72 International Fruit Company and Others [1972] ECR 1219, paragraphs 14 to 18).

56 – According to the general rules of the law on international treaties, as laid down in the Vienna Convention of 23 May 1969 on the Law of Treaties (UNTS vol. 1155, p. 331), international treaties may in principle be amended only by agreement between the parties (Article 39 of the Vienna Convention). There are special rules for the amendment of multilateral treaties (Article 40 of the Vienna Convention). However, these general rules of international law apply only in so far as the treaty in question does not provide otherwise (second sentence of Article 39, Article 40(1) of the Vienna Convention). The WTO members have made use of the latter possibility and have provided for a simplified admission procedure in Article XII of the WTO Agreement which does not require an agreement between all existing WTO members and the new member.

57 – See the third recitals in the respective preambles to the WTO Agreement and the GATS; see also Case C‑149/96 Portugal v Council (‘textile products’) [1999] ECR I‑8395, paragraph 42.

58 – Similarly Article I(1) GATT and Article 4 TRIPS.

59 – Vietnam’s application to accede was received by the WTO on 4 January 1995. On 31 January 1995 a working party was set up. On 7 November 2006 the WTO General Council approved Vietnam’s accession. On 11 January 2007 Vietnam became a member of the WTO. See again in this regard the information published by the WTO itself at www.wto.org/english/thewto_e/acc_vietnam_e.htm, last visited on 3 February 2009.

60 – Opinion 2/94, cited in footnote 19, paragraph 24.

61 – See again the third recital in the respective preambles to the WTO Agreement and the GATS, as well as the textile products case, cited in footnote 57, paragraph 42.

62 – According to Article XII(2) of the WTO Agreement, a two-thirds majority of the members of the WTO is required.

63 – Case C‑155/91 Commission v Council (‘directive on waste’) [1993] ECR I‑939, paragraphs 19 and 21; Opinion 2/00, cited in footnote 24, paragraph 23; Case C‑94/03 Commission v Council (‘Rotterdam Convention’) [2006] ECR I‑1, paragraph 35); and Case C‑91/05 Commission v Council (‘small arms’) [2008] ECR I‑0000, paragraph 73.

64 – Also in Case C‑301/06 Ireland v Parliament and Council (‘retention of data’) [2009] ECR I‑0000, paragraph 56, the Court distinguishes between the division of areas of competence within the Union, on the one hand, and the division of areas of competence between the Union and the Member States, on the other. The latter embraces the question as to whether the Union has encroached on the Member States’ areas of competence.

65 – Case C‑176/03 Commission v Council (‘criminal law relating to the environment’) [2005] ECR I‑7879, paragraph 48, and Case C‑440/05 Commission v Council (‘marine pollution’) [2007] ECR I‑9097, paragraph 66.

66 – The examples from case‑law cited by the Commission, namely Opinion 1/78 (‘international agreement on natural rubber’) [1979] ECR 2871, paragraph 56, and Portugal v Council, cited in footnote 22, paragraphs 38 and 39, also relate to the interpretation of existing areas of Community competence under the EC Treaty.

67 – The wording in the first subparagraph of Article 133(6) EC stating that an agreement ‘may not be concluded by the Council’ is open to misunderstanding. In actual fact, an agreement may not be concluded by the Community (that is to say, by the Council as an institution thereof) alone.

68 – To distinguish this form of competence from the normal ‘shared competence’, see point 88 and footnote 50 of this Opinion.

69 – See the Spanish (‘en el ámbito’), Czech (‘v oblasti’), Greek (‘στον τομέα του’), French (‘dans le domaine’), Italian (‘nei settori’), Portuguese (‘no domínio’) and Romanian (‘în domeniul’) versions of the second subparagraph of Article 133(6) EC.

70 – See the comparatively neutral wording in the Bulgarian (‘относно’), Danish (‘om’), Estonian (‘käsitlevad’), English (‘relating to’), Irish (‘a bhaineann le’), Latvian (‘kas saistīti ar’), Lithuanian (‘susiję’), Hungarian (‘vonatkozó), Maltese (‘li ghandu x’jaqsam ma[’]’), Dutch (‘betreffende’), Polish (‘dotyczące’), Slovak (‘týkajúce sa’), Slovene (‘ki se nanašajo na’), Finnish (‘koskevat’) and Swedish (‘rörande’) versions of the second subparagraph of Article 133(6) EC.

71 – The Commission refers to the requirement of unanimity within the Council for horizontal agreements under the third subparagraph of Article 133(5) EC.

72 – On the legal position prior to the Treaty of Nice see, to the same effect, Opinion 1/94, cited in footnote 24, paragraph 107.

73 – See, to the same effect, Opinion 2/94, cited in footnote 19, second sentence of paragraph 35, and Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 45.

74 – Opinion 1/94, cited in footnote 24.

75 – ‘Mode 1’ means the supply of a service from the territory of one member of the WTO into the territory of any other member (Article I(2)(a) of the GATS).

76 – In relation to the commercial aspects of intellectual property, the same applies to the prohibition of releasing counterfeit goods for free circulation (Opinion 1/94, cited in footnote 24, paragraphs 55 and 71).

77 – See points 111 to 125 of this Opinion.

78 – This applies to horizontal agreements, within the meaning of the third subparagraph of Article 133(5) EC, which relate to the first alternative of the second subparagraph thereof (‘where that agreement includes provisions for which unanimity is required for the adoption of internal rules’). See, to the same effect, the second subparagraph of Article 300(2) EC in conjunction with the second sentence of the first subparagraph thereof.

79 – This applies to horizontal agreements, within the meaning of the third subparagraph of Article 133(5) EC, which relate to the second alternative of the second subparagraph thereof (‘where it relates to a field in which the Community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules’).

80 – Horizontal agreement that ‘also concerns … the second subparagraph of paragraph 6’.

81 – See on this point, once again, footnote 67.

82 – Opinion 2/94, cited in footnote 19, paragraph 24.

83 – ‘Mode 3’ means the supply of a service by a service supplier of one member through a commercial presence in the territory of any other WTO member (Article I(2)(c) of the GATS). [Translator’s note: the remainder of the footnote is not relevant to the English text].

84 – In English ‘health plans’ or ‘health-service plans’.

85 – The Council refers specifically to the examples of Belgium (where the needs test relates to ‘the needs in function of the population, age scale, death rate and geographical spread’) and Austria (‘due consideration on a case‑by‑case basis is taken of the density of population, existing facilities, traffic infrastructure, topographical conditions and the distance between hospitals’).

86 – ‘Mode 4’ means the supply of a service by a service supplier of one member through the presence of natural persons of a member in the territory of any other WTO member (Article I(2)(d) of the GATS). [Translator’s note: the remainder of this footnote is not relevant to the English text].

87 – These powers apply to the freedom to provide services (Article 55 EC), as well as the freedom of establishment, and cover legal as well as natural persons (Article 48 EC).

88 – Opinion 1/94, cited in footnote 24, paragraphs 81 and 86.

89 – Opinion 1/94, cited in footnote 24, paragraph 90. In that opinion, the Court adds (paragraph 90 et seq.) that numerous Community acts adopted on the basis of Articles 44 EC and 47 EC already exist which also apply to nationals of non‑member countries.

90 – Opinion 1/94, cited in footnote 24, paragraphs 95 to 98.

91 – This is also not refuted by Case C‑169/07 Hartlauer [2009] ECR I‑0000, which relates to a national provision concerning the needs test for the purpose of authorising clinics. The provision in question is examined by reference to the freedom of establishment (Article 43 EC). On the other hand, no mention is made of a Community power to require such a needs test to be carried out by the Member States, or of a power to harmonise national legislation in that connection.

92 – Case 203/80 Casati [1981] ECR 2595, paragraph 27; Case 186/87 Cowan ]1989] ECR 195, paragraph 19; criminal law relating to the environment, cited in footnote 65, paragraph 47; and marine pollution, cited in footnote 65, paragraph. 66.

93 – Criminal law relating to the environment, cited in footnote 65, paragraph 48, and marine pollution, cited in footnote 65, paragraph 66.

94 – For example, there are plans to create a Community patent: see the Commission’s proposal for a regulation of the Council on the Community patent, COM(2000) 412 final (OJ 2000 C 337 E, p. 278). At present Article 308 EC is used as the legal basis for the creation of such intellectual property rights (see also Opinion 1/94, cited in footnote 24, paragraph 59). When the Treaty of Lisbon enters into force the Union will have in Article 118 TFEU an express power to create European rules on uniform protection of intellectual property rights. Further, under the conditions set out in Article 83(2) TFEU it will acquire express competence to establish minimum conditions for determining offences and penalties.

95 – See, for example, Council Regulation No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) and Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).

96 – See in this connection also the amended proposal for a directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (COM(2006) 168 final), which is based on Article 95 EC in conjunction with the judgment on the criminal law relating to the environment.

97 – Cited in footnote 65, paragraph 70.

98 – When the Treaty of Lisbon enters into force the Union will acquire, under the conditions laid down in Article 83(2) TFEU, the power to establish minimum conditions for determining offences and penalties.

99 – See point 140 above.

100 – This is shown by the general structure as indicated by a neighbouring provision: the third subparagraph of Article 133(5) EC refers only to the second subparagraph of paragraph 6, but not to the first.

101 – Articles 47(2) EC and 55 EC (previously Articles 57(2) and 66 of the EC Treaty).

102 – Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), last amended by Directive 2007/65/EC (OJ 2007 L 332, p. 27).

103 – See in this regard the cases cited in footnote 92.

104 – See point 142 above.

105 – As an example of the importance of audiovisual services for the cultural diversity and the language policy of the EU Member States, see, most recently, Case C‑222/07 UTECA [2009] ECR I‑0000, and my Opinion in that case, in particular points 90 to 102.

106 – This right of veto arises from the requirements of unanimity contained in the second and third subparagraphs of Article 133(5) EC.

107 – See points 92 to 109 above.

108 – Case C‑22/96 Parliament v Council [1998] ECR I‑3231, paragraph 42, and Case C‑155/07 Parliament v Council (‘guarantees’) [2008] ECR I‑0000, paragraph 87.

109 – See, to the same effect, Article 46 of the Vienna Convention on the Law of Treaties.

110 – See, to that effect, Case C‑360/93 Parliament v Council [1996] ECR I‑1195, paragraphs 33 to 36; Case C‑159/96 Portugal v Commission [1998] ECR I‑7379, paragraphs 52 and 53; Case C‑178/03 Commission v Parliament and Council (‘dangerous chemicals’) [2006] ECR I-107, paragraphs 64 and 65; and guarantees judgment, cited in footnote 108, paragraphs 87 and 88.

111 – Dangerous chemicals judgment, cited in footnote 110, paragraph 65.