Case C‑389/15

European Commission

v

Council of the European Union

(Action for annulment — Council decision authorising the opening of negotiations on a revised Lisbon Agreement on Appellations of Origin and Geographical Indications — Article 3(1) TFEU — Exclusive competence of the European Union — Common commercial policy — Article 207(1) TFEU — Commercial aspects of intellectual property)

Summary — Judgment of the Court (Grand Chamber), 25 October 2017

1.        Common commercial policy — International agreements — Conclusion — Competence of the European Union — Competence to conclude agreements concerning the commercial aspects of intellectual property — Scope — Revised Lisbon Agreement on Appellations of Origin and Geographical Indications — Included

(Arts 3(1) TFEU and 207(1) TFEU)

2.        International agreements — Agreements of the European Union — Negotiation and conclusion — Council decision authorising the opening of negotiations on an agreement falling within an exclusive competence — Adoption on a legal basis relating to a field falling within a shared competence — Unlawful — Consequences — Annulment

(Arts 114 TFEU, 207(3) TFEU and 218(3) and (4) TFEU)

3.        Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Maintenance of the effects of the contested measure until its replacement within a reasonable period — Justification on grounds of legal certainty

(Art. 264, second para., TFEU)

1.      International commitments concerning intellectual property entered into by the European Union fall within the common commercial policy if they display a specific link with international trade in that they are essentially intended to promote, facilitate or govern such trade and have direct and immediate effects on it. International agreements which are concerned with safeguarding and organising the protection of intellectual property rights on the territory of the parties are among those that may fall within that policy, provided that they satisfy those conditions.

A draft revision of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration must be regarded as essentially intended to facilitate and govern trade between the European Union and third States and such as to have direct and immediate effects on such trade, so that its negotiation falls within the exclusive competence which Article 3(1) TFEU confers on the European Union in the field of the common commercial policy envisaged in Article 207(1) TFEU. As regards, first, the aim of the draft revised agreement, since its main objective is to strengthen the system established by the Lisbon Agreement and, within the Special Union created by that agreement, to extend the specific protection introduced by the latter to geographical indications, supplementing the protection which the Convention for the Protection of Industrial Property, signed in Paris on 20 March 1883, affords to the various forms of industrial property, the draft revised agreement must be regarded as falling within the framework of the aim that is pursued by the body of international agreements of which it forms part and, in particular, from the point of view of the European Union, as being intended to facilitate and govern trade between the European Union and the third States party to the Lisbon Agreement. The fact that the draft revised agreement will be administered by the World Intellectual Property Organisation from its entry into force, as is already the case with the Lisbon Agreement, cannot call that conclusion into question.

As regards, secondly, the effects of the draft revised agreement, in view of the single registration mechanism envisaged in it, the international agreement which it presages will have the direct and immediate effect of altering the conditions under which trade between the European Union and the other parties to that international agreement is organised, by dispensing manufacturers participating in that trade from the obligation that they currently face, in order to address the legal and economic risks associated with such trade, of having to lodge an application for registration of the appellations of origin and geographical indications that they use with the competent authorities of each of the contracting parties. Furthermore, the provisions concerning the system of reciprocal protection of appellations of origin and geographical indications will have direct and immediate effects on trade between the European Union and the third States concerned, by giving all those manufacturers, and any other interested natural or legal person, the necessary tools to secure, under homogeneous substantive and procedural conditions, effective observance of the protection which the draft revised agreement affords to their industrial property rights if appellations of origin or geographical indications are used abroad in a harmful or unfair manner.

(see paras 49, 50, 52, 62, 63, 65, 70, 71, 74)

2.      The fact that the Council wrongly took the view that a decision authorising the opening of negotiations on an international agreement fell within the approximation of laws in the field of the internal market and, accordingly, within a competence shared between the European Union and its Member States, and that it based that decision on Article 114 TFEU and Article 218(3) and (4) TFEU, cannot be regarded as a mere formal defect. That error in particular led the Council to disregard the procedural provisions specifically laid down in Article 207(3) TFEU for the negotiation of international agreements falling within the field of the common commercial policy, above all those relating to conduct of the negotiations by the Commission. Accordingly, that decision must be annulled.

(see paras 75-77)

3.      See the text of the decision.

(see paras 80, 81)