OPINION OF ADVOCATE GENERAL
SHARPSTON
delivered on 16 July 2015 (1)
Case C‑73/14
Council of the European Union
v
European Commission
(Submission by the Commission of a written statement on behalf of the European Union to the International Tribunal for the Law of the Sea — Articles 13(2), 16(1) and 17(1) TEU — Articles 218(9) and 335 TFEU — External representation of the European Union — Violation of the Council’s prerogatives — Sincere cooperation — Article 263 TFEU — Admissibility)
1. On 29 November 2013, the European Commission submitted a written statement on behalf of the European Union (‘the EU’) to the International Tribunal for the Law of the Sea (‘ITLOS’) regarding an advisory opinion to be delivered by that court.
2. The Council of the European Union seeks annulment of ‘the Commission’s decision of 29 November 2013’ to submit that statement. Supported by a number of Member States, it claims essentially that the Commission should have requested and obtained its approval before submitting the written statement to ITLOS. The Council claims that, by failing to do so, the Commission violated Article 218(9) TFEU and/or Article 16 TEU (first and second parts, respectively, of the first plea) and breached the duty of sincere cooperation (second plea). For its part, the Commission claims that it was competent to submit that statement without the Council’s approval; and that it cooperated fully with the Council.
3. The central issue debated between the parties thus concerns the identity of the EU institution entrusted with the task of deciding upon the position of the EU before a judicial body constituted in accordance with an international agreement to which the EU is a Contracting Party.
4. I shall examine the various aspects of that highly important issue in due course, but it seems to me that the Council’s action is in fact inadmissible and should be dismissed on that ground alone.
Law governing ITLOS
5. The EU, together with its Member States, is a Contracting Party to the United Nations Convention on the Law of the Sea (‘UNCLOS’). (2)
6. ITLOS is constituted and governed by UNCLOS, in particular by Annex VI thereto, which contains its Statute.
7. Article 16 of the ITLOS Statute requires ITLOS to lay down its rules of procedure. Article 20 provides that ITLOS shall be available to Contracting Parties.
8. Under Article 133 of the ITLOS rules of procedure, which apply to the advisory opinion proceedings of the Seabed Dispute Chamber of ITLOS, the Contracting Parties to UNCLOS shall be invited by ITLOS to present written statements on the question(s) raised in the request for an advisory opinion.
9. Article 138(1) of the ITLOS rules of procedure provides for ITLOS to ‘give an advisory opinion on a legal question if an international agreement related to the purposes of [UNCLOS] specifically provides for the submission to [ITLOS] of a request for such an opinion’. Article 138(3) provides that, in such circumstances, ITLOS ‘shall apply mutatis mutandis Articles 133 to 137’.
EU law
Treaty on European Union
10. Article 13(2) TEU provides: ‘Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation.’
11. The second sentence of Article 16(1) TEU states that the Council is to ‘carry out policy-making and coordinating functions as laid down in the Treaties’. The remainder of Article 16 lays down the general rules governing Council action. In particular, Article 16(3) provides that ‘[t]he Council shall act by a qualified majority except where the Treaties provide otherwise’.
12. Article 17(1) TEU provides:
‘The Commission shall promote the general interest of the [EU] and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of [EU] law under the control of the Court of Justice of the [EU]. ... It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the [EU]’s external representation. …’
Treaty on the Functioning of the European Union
13. External action by the EU is regulated by Part V TFEU, Title V of which relates to international agreements. Within that title, Articles 216 and 217 TFEU empower the EU to conclude agreements with one or more third countries or international organisations, and Article 218 TFEU sets out the procedure in accordance with which such agreements must be negotiated and concluded. Its relevant provisions read as follows:
‘1. Without prejudice to the specific provisions laid down in Article 207 [common commercial policy], agreements between the [EU] and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.
2. The Council shall authorise the opening of the negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.
3. The Commission … shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and … nominating the [EU] negotiator …
4. The Council may address directives to the negotiator …
5. The Council, on a proposal from the negotiator, shall adopt a decision authorising the signing of the agreement …
6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.
7. When concluding an agreement, the Council may, by way of derogation from paragraphs 5, 6 and 9, authorise the negotiator to approve on the [EU]’s behalf modifications to the agreement where it provides for them to be adopted by a simplified procedure or by a body set up by the agreement. The Council may attach specific conditions to such authorisation.
8. The Council shall act by a qualified majority throughout the procedure.
However, it shall act unanimously [in specified circumstances].
9. The Council, on a proposal from the Commission …, shall adopt a decision … establishing the positions to be adopted on the [EU]’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.
10. The European Parliament shall be immediately and fully informed at all stages of the procedure.
11. [This subparagraph contains the procedure for obtaining the opinion of the Court as to whether an agreement envisaged is compatible with the Treaties and the consequences of an adverse opinion.]’
14. The first, second and sixth paragraphs of Article 263 TFEU provide:
‘The Court of Justice of the [EU] shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the [EU] intended to produce legal effects vis-à-vis third parties.
It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.
…
The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.’
15. Article 264 TFEU provides that, if the action is well founded, the Court of Justice is to declare the act concerned to be void and may, if it considers necessary, state which of the effects of the act which it has declared void are to be considered as definitive.
16. Article 335 TFEU provides: ‘In each of the Member States, the [EU] shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. To this end, the [EU] shall be represented by the Commission. However, the [EU] shall be represented by each of the institutions, by virtue of their administrative autonomy, in matters relating to their respective operation.’
UN Fish Stocks Agreement
17. By Council Decision 98/414/EC, (3) the EU concluded the Agreement implementing the provisions of UNCLOS relating to the conservation and management of straddling stocks and highly migratory fish stocks (‘the UN Fish Stocks Agreement’). Article 3 of Decision 98/414 states:
‘Where the Community initiates a dispute settlement procedure as provided for by the [UN Fish Stocks Agreement], it shall be represented by the Commission. Before taking any action the Commission shall consult the Member States, taking into account binding procedural time limits.’
18. ITLOS is amongst the jurisdictions before which such proceedings may be lodged.
Statute and Rules of Procedure of the Court of Justice
19. Article 21 of the Statute of the Court of Justice of the European Union (‘the Statute’) states, inter alia, that an application before the Court ‘… shall be accompanied, where appropriate, by the measure of which the annulment is sought …’.
20. Articles 120 and 122 of the Rules of Procedure of the Court of Justice require an application to state, inter alia, the subject-matter of the dispute and the form of order sought, and to be accompanied, in particular, by the measure the annulment of which is sought.
21. Article 150 states: ‘On a proposal from the Judge-Rapporteur, the Court may at any time of its own motion, after hearing the parties and the Advocate General, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case.’
Background to the dispute
22. On 28 March 2013, ITLOS received a request for an advisory opinion from the Sub-Regional Fisheries Commission (‘the SRFC’), an intergovernmental organisation for fisheries cooperation established by the Convention of 29 March 1985 between Cape Verde, The Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and Sierra Leone. (4) The EU has concluded fisheries partnership agreements with five of the SRFC States and, with two of them, protocols granting fishing access in return for a financial contribution.
23. That request, registered as Case No 21, concerns questions relating essentially to the rights, obligations and liabilities of flag States, international agencies and coastal States in cases of illegal, unreported and unregulated (‘IUU’) fishing and with regard to ensuring the sustainable management of shared stocks and stocks of common interest.
24. On 24 May 2013, ITLOS invited the Contracting Parties to UNCLOS to present their written statements on the questions submitted by 29 November 2013 at the latest, and decided to hold oral proceedings.
25. Within the Council, the request for an advisory opinion was discussed on several occasions in two working parties: the Law of the Sea Working Party (‘COMAR’), essentially with regard to issues of jurisdiction and admissibility; and the Working Party on Internal and External Fisheries Policy (‘FISH’), with regard to the substance of the questions. During the initial discussions in COMAR between April and July 2013, the Commission indicated that its services were considering whether the EU should intervene in Case No 21 and undertook to consult the Council as appropriate.
26. On 5 August 2013, the Commission adopted an explicit decision (5) to submit written statements on behalf of the EU to ITLOS in Case No 21 and to participate in the oral proceedings (Article 1). It instructed its legal service to give effect thereto (Article 2). In that decision, recital 9 mentioned Article 335 TFEU as the legal basis for the Commission’s participation on behalf of the EU and recital 11 specified that, under the principle of sincere cooperation, the Commission should inform the Council via its competent working group.
27. During meetings of FISH on 12 September 2013 and COMAR on 17 September 2013, the Commission reaffirmed that it would submit written observations on behalf of the EU and argued that, in accordance with Article 335 TFEU, no prior approval by the Council was needed for the Commission to act. At the FISH meeting, the Council Presidency stated that it was necessary for the Council to approve the content of the submission made on behalf of the EU and invited the Commission to submit a draft written statement to the Council no later than the end of October 2013.
28. On 22 October 2013, the Commission sent the Council’s working parties a first working document indicating the main lines of the text to be submitted to ITLOS. The introductory paragraph to that document cited the decision of 5 August 2013 in which the Commission had decided to submit observations on behalf of the EU in Case No 21, reiterating that the Council’s working parties would be informed in accordance with the principle of sincere cooperation. The Commission also stressed that it looked forward to taking the fullest account of any suggestion and advice from the Member States in order to make the EU’s case more solid.
29. That document was examined by FISH and COMAR on 24 and 30 October 2013 respectively, when the Commission repeated that it would not submit any draft statement for prior approval by the Council. Revised versions of the document were discussed during FISH meetings on 15 and 22 November 2013. On 27 November 2013, on the basis of a report prepared by FISH, the Permanent Representatives Committee (‘Coreper’) discussed the matter. The Member States’ delegations and the Presidency insisted that it was for the Council, in accordance with its policy-making functions under Article 16 TEU, to decide whether the EU should submit observations and, if so, to endorse their content. Furthermore, if the Council could not endorse any position regarding such a submission on behalf of the EU, no EU position existed and no submission could be made. The Commission stressed that no Council approval was required and that it would submit a written statement to ITLOS.
30. On 29 November 2013, having taken account of comments received from a number of Member States, the Commission submitted the written statement on behalf of the EU and communicated a copy to the Council’s Secretariat via email. Between 18 and 29 November 2013, in their capacity as States Parties to UNCLOS, seven Member States had submitted their written statements to ITLOS.
31. Subsequently, after the lodging of the application in the present case, the Commission submitted a further written statement on 13 March 2014 in a second round of written proceedings and took part in the oral proceedings on 2 to 5 September 2014. ITLOS delivered its advisory opinion on 2 April 2015.
Procedure, pleas and forms of order sought
32. In its application lodged on 10 February 2014, the Council advances two pleas in law. In its first plea, the Council contends that the task of deciding on the EU’s position in international judicial proceedings falls within its competence under Article 218(9) TFEU or, in any event, under Article 16(1) TEU. Accordingly, the Council submits that the Commission should have obtained its prior approval before transmitting a written statement on behalf of the EU to ITLOS. In its second plea, the Council accuses the Commission of having disregarded the duty of mutual sincere cooperation in Article 13(2) TEU.
33. The Council therefore asks the Court to ‘annul the Commission’s decision of 29 November 2013 to submit a “Written statement by the European Commission on behalf of the [EU]” to [ITLOS] in Case [No] 21’ and to order the Commission to pay the costs. It specifies that it does not request the annulment of the Commission’s statement.
34. The Commission asks the Court to reject the application and to order the Council to bear the costs. In the alternative, it requests the Court to maintain the effects of its decision until a new decision has been taken within a reasonable time.
35. The Austrian, Czech, Finnish, French, Greek, Lithuanian, the Netherlands and Spanish Governments have submitted statements in intervention in support of the Council. At the hearing on 14 April 2015, oral argument was presented by the representatives of the parties, the Czech, French, Netherlands, Spanish and United Kingdom Governments (the latter also supported the Council). On that occasion, the Council stated that, if the contested decision were annulled, it did not object to the Commission’s request for maintaining its effects until a new decision was adopted. At the hearing, issues relating to admissibility were also canvassed.
Assessment
36. As I have stated, I consider the Council’s action to be inadmissible – for reasons, which I shall set out below, relating to the absence of a reviewable act challenged in good time. The admissibility of an action is a matter which it falls to the Court to examine of its own motion. (6) In principle, and in all logic, it must be examined before turning to the substance of the case. However, the issue has on occasion been bypassed where, although the admissibility of the action appeared doubtful, the Court considered it desirable to give a ruling on the merits. (7)
37. I do not propose such a course of action in the present case, as I consider that the rules on admissibility should be applied uniformly and not in a discretionary manner. However, I recognise that the parties wish to have a clear ruling on the important issue of the extent of their respective competences and obligations, as laid down by the Treaties, in a situation such as that which has given rise to the dispute. I shall therefore turn to those matters after having set out my reasoning, which I consider should prevail, on admissibility.
Admissibility
38. The Council’s application is based on Articles 263 and 264 TFEU; it seeks review by the Court of the legality of an act of the Commission and a declaration that the act is void. Article 21 of the Statute and Articles 120 and 122 of the Court’s Rules of Procedure apply to such proceedings.
39. In its application, the Council seeks annulment of ‘the Commission’s decision of 29 November 2013’ to submit a written statement to ITLOS on behalf of the EU in Case No 21. The application is not accompanied by that ‘decision’ in any form, merely by evidence that the written statement was in fact submitted to ITLOS on 29 November 2013 and that the Council was informed of the submission on the same day.
40. However, it is the decision to submit a written statement that is exclusively and explicitly the act which the Council seeks to have annulled. The Council expressly states, in a footnote to the form of order sought in its application and again in its reply, that it does not seek the annulment of the Commission’s statement to ITLOS.
41. If a decision to submit a written statement was in fact taken by the Commission on 29 November 2013, it can only have been, it would appear, an implicit decision, since it has not been shown to have been expressed in any document or even oral utterance.
42. It seems clear to me, however, that no such decision was taken. On 5 August 2013, the Commission did take an explicit, reasoned decision to submit a written statement to ITLOS in Case No 21 and instructed its legal service to give effect to that decision. No further decision was required in order to submit that statement. Nor is there any evidence in the case-file that any such decision was taken, whether embodied in written form or not. There is no shred of an indication that the Commission decided on 29 November 2013 to do anything which it had not already decided to do in that earlier decision. There is only the unchallenged fact that the statement was indeed submitted, and an email from the Commission informing the Council of that statement.
43. If no decision was taken on 29 November 2013, it cannot be annulled – nor can its effects be maintained until a new decision is taken. The absence of a reviewable act is an absolute bar to proceeding with a case, within the meaning of Article 150 of the Court’s Rules of Procedure. (8) The same is true, a fortiori, of the absence of any act whatever.
44. The purpose of the procedure under Articles 263 and 264 TFEU is to obtain a finding that an act having legal effects is (or is not) void. Such a finding would be pointless, and a waste of judicial time, if it could itself have no tangible effect. The procedure is not designed to deliver solely an abstract statement of the law governing relations between the institutions, although of course such statements are likely to be an integral part of the reasoning necessary to rule on the validity of an act. (9) The annulment procedure cannot be used in order to obtain such a ruling in the absence of any act whose annulment is capable of affecting any legal position. Consequently, the institutions should examine attentively their procedural positions before submitting applications to the Court which may not meet the requirements of the Treaties, the Statute or the Rules of Procedure.
45. It seems to me, however, that the Council’s aim is to challenge the Commission’s decision of principle to submit a written statement to ITLOS without having first obtained the Council’s approval. That would appear to imply that it should have sought the annulment of the decision of 5 August 2013, in which that decision of principle was taken.
46. If the Council had done so, in accordance with the sixth paragraph of Article 263 TFEU, the two-month time-limit for bringing proceedings (‘extended on account of distance by a single period of 10 days’, pursuant to Article 51 of the Court’s Rules of Procedure) would have run from the day on which the decision of 5 August 2013 came to its knowledge.
47. According to the Commission, that decision was not notified or communicated to the Council. However, the Council was clearly and explicitly informed of it and of its essential content in the introductory paragraph of the Commission’s first working document of 22 October 2013, (10) which was discussed in the Council working group meetings of FISH and COMAR on 24 and 30 October 2013 respectively, by which time the Council necessarily had knowledge of the decision of 5 August 2013. Any possible doubt as to the Commission’s interpretation of that decision and how it intended to implement it also evaporated as a result of those meetings. The Commission’s position was clear and unambiguous: it would not submit any draft statement for prior approval by the Council.
48. The Council did not seek annulment of the decision of 5 August 2013 within 2 months and 10 days of the latest possible date on which it can have had knowledge of that decision, and did not lodge its application in the present proceedings until 10 February 2014.
49. None the less, I am well aware that both parties to the action earnestly desire a ruling on their respective competences and prerogatives, as do all the intervening Member States. I also acknowledge that such a determination of the law is of cardinal importance for the conduct of the EU’s external representation, and that the Court has in the past addressed comparable substantive issues even where there were strong indications of inadmissibility. I shall therefore turn now to examine the substantive issues which arise in circumstances such as those of the present case, but in doing so I shall not address my reasoning to the question whether the Commission’s decision to submit a written statement to ITLOS in Case No 21 should be annulled – a question which I consider cannot be answered in these proceedings, for the reasons I have given.
Substance
Preliminary remarks
50. I need first to address two preliminary aspects of this case: whether it is necessary to resolve whether the EU has exclusive or shared competence in relation to the questions raised before ITLOS; and the exact scope of the Council’s complaint.
51. First, as regards exclusive or shared competence: the Council accepts that the questions posed concern, at least in part, matters falling within the EU’s exclusive competence regarding conservation of marine biological resources under the Common Fisheries Policy within the meaning of Article 3(1)(d) TFEU. However, the Council maintains that the preliminary issue of whether ITLOS has jurisdiction to deliver advisory opinions falls entirely within the competence of the Member States. The Commission submits that the EU has exclusive competence in relation to the questions posed; and that the EU is also competent to take a position on the extent of ITLOS’ jurisdiction.
52. It is common ground that the EU, as a Contracting Party to UNCLOS, may express itself before ITLOS. (11) As the French Government has rightly pointed out, the central question in the present case is whether the Commission or the Council is competent to decide on the EU’s position before that tribunal. That question is unrelated to the question of the division of powers between the EU and the Member States; and the Council has raised no complaint on that score. I therefore suggest that the Court need not address the latter issue.
53. Second, what is the exact scope of the Council’s complaint?
54. Put as simply as possible: the Council requests the Court to decide which institution is entrusted, under the Treaties, with the task of deciding on (as distinct from expressing) the EU’s position before ITLOS in advisory proceedings.
55. The Council does not claim that its prerogatives include representing the EU before ITLOS or in any other international judicial proceedings. It accepts that that task falls to the Commission by virtue of Article 335 TFEU (read either alone or in conjunction with Article 17(1) TEU). (12) That is distinct, however, from the question of which institution is competent to decide on the position which is then expressed by the Commission on behalf of the EU before a judicial body such as ITLOS.
56. In the remainder of this Opinion, I shall first look in turn at whether (i) Article 218(9) TFEU applies to the submission of written statements in international judicial proceedings in which the EU has standing; and (if not) whether (ii) Article 16(1) TEU constitutes a legal basis for reserving competence to the Council to decide on the submission of such statements. I shall then examine the duty of sincere cooperation. Finally, I shall address the scope and limits of Article 335 TFEU, on which the Commission has relied as a legal basis for submitting the written statement to ITLOS.
First part of the first plea: Article 218(9) TFEU
57. By the first part of its first plea, the Council claims that the Commission infringed its prerogatives under Article 218(9) TFEU according to which the Council is to establish, on a proposal from the Commission, the position to be adopted on the EU’s behalf in a body set up by an agreement when that body is called upon to adopt acts having legal effects. The Council submits that ITLOS, including when it is requested to deliver an advisory opinion, is a ‘body’ within the meaning of that provision and adopts acts having legal effects (even if those effects are not binding). Moreover, the Council maintains that, since the entry into force of the Treaty of Lisbon, Article 218(9) TFEU, unlike its predecessor Article 300(2) EC, no longer constitutes a lex specialis in relation to the procedure for the negotiation, signature and conclusion of international agreements, but should rather be read as a stand-alone provision.
58. The Commission contests the application of Article 218(9) TFEU to the EU’s interventions in international judicial proceedings. It interprets that provision as applying to rule-making bodies exercising treaty-making and/or quasi-legislative functions which are established by an international agreement in order to allow that agreement to be developed by taking a series of decisions within the framework of the agreement. The term ‘body’ in Article 218(9) TFEU does not cover bodies exercising judicial functions because such functions do not involve the creation of new rules. Moreover, the phrase ‘in a body’ clearly indicates that positions expressed by the EU before a court fall outside the scope of Article 218(9) TFEU.
59. I shall first examine the wording of Article 218(9) TFEU before turning to its drafting history, context and objectives.
60. Article 218(9) TFEU only applies where a position is to be adopted on the EU’s behalf ‘in a body set up by an agreement’ and, in principle, ‘when that body is called upon to adopt acts having legal effects’.
61. In my opinion, the first part of the Council’s first plea must fail because when the EU participates in international judicial proceedings, such as ITLOS advisory proceedings, it is not taking a position in the body (however it may be characterised) that has been called upon to settle disputes falling within its jurisdiction or deliver an opinion on purely interpretative questions.
62. In such circumstances, neither the EU nor any other party having standing to appear before such a body takes part in the formation that deliberates. Nor does it participate in the adoption of a judgment or any other type of judicial decision. Rather, a party expresses its position on the matter put to the body through (oral and/or written) submissions ‘to’ (or ‘before’) that body with the objective of influencing the outcome of the proceedings.
63. The rules of the World Trade Organisation (‘the WTO’) dispute settlement system helpfully illustrate the dividing line between the situation where the position on the EU’s behalf is taken ‘in’ a body (to which Article 218(9) TFEU applies) and the situation where it is not. Whereas all WTO Members, including the EU, are represented and take part in the decision-making processes of the Dispute Settlement Body (‘the DSB’), including when the DSB adopts panel and Appellate Body reports (so that they become legally binding), (13) they do not participate in the panels’ and the Appellate Body’s exercise of their (respective) jurisdiction.
64. This interpretation is consistent with the Court’s judgment in Case C‑399/12 (‘the OIV case’). The Court there held that Article 218(9) TFEU applies in the context of recommendations, relating to the Common Agricultural Policy, to be voted on at the General Assembly of the International Organisation of Vine and Wine (‘the OIV’), despite the fact that the EU (unlike its Member States) cannot formally participate in the governing body of the OIV because it is not an OIV Member. The Court specifically recalled its case-law according to which, where an area of law falls within a competence of the EU, the fact that the EU does not take part in the international agreement in question does not prevent it from exercising that competence by establishing, through its institutions, a position to be adopted on its behalf in the body set up by that agreement, in particular through the Member States which are party to that agreement acting jointly in its interest. (14) The EU’s position concerning the recommendations to be adopted by the OIV General Assembly was thus to be expressed ‘in’ that body by the Member States acting collectively in the EU’s interest.
65. Whilst the phrase ‘when that body is called upon to adopt acts having legal effects’ provides context for reading the phrase ‘in a body set up by an agreement’ (because it makes it clear that the scope of Article 218(9) TFEU is confined to situations in which that body adopts acts having legal effects), it cannot be used to argue that Article 218(9) TFEU also applies when the EU participates in international judicial proceedings. I accept that judgments and other judicial decisions may very well be ‘acts having legal effects’. Whilst in Treaty terminology, the word ‘act’ is not typically used to designate the outcome of judicial proceedings, (15) the Court itself has already used the term ‘acte juridictionnel’ to describe a court decision. (16) Moreover, whilst an advisory opinion does not have exactly the same legal effects as a binding judicial decision on the interpretation and application of an international agreement (or any other rule of international law which is part of the applicable law governing a dispute and for which jurisdiction is established), I agree with the Commission that Article 218(9) TFEU does not specify that the legal effects of an act must be binding. That was also the position of the Court in the OIV case where it accepted that (non-binding) OIV recommendations could influence decisively the content of EU legislation regulating the common organisation of the market in wine markets and that such recommendations, in particular by reason of their incorporation into EU law, had legal effects. (17) I would therefore be prepared to consider that an advisory opinion of ITLOS is capable of constituting an ‘act having legal effects’ because it contains an interpretation by the body which has authority to do so and informs the meaning of the obligations assumed under UNCLOS and other agreements which ITLOS has jurisdiction to interpret, such as the UN Fish Stocks Agreement.
66. However, this wide reading of ‘acts having legal effects’, read in isolation, cannot alter the meaning of ‘in a body set up by an agreement’ so as to include situations in which the EU does not participate in a body’s adoption of such acts.
67. I also note that Article 218(7) TFEU allows, ‘by way of derogation’ from Article 218(9), for further simplification of the procedure, by giving the Council power to authorise the negotiator to approve, on the EU’s behalf, modifications to the agreement where it provides for them to be adopted by a simplified procedure or by a body set up by the agreement.
68. That derogation makes good sense if the acts referred to in Article 218(9) TFEU are to be negotiated by the Contracting Parties ‘in’ the body set up by the agreement. But the context is clearly one of negotiating and approving texts that will have legal effects, rather than that of international judicial proceedings in which such acts are interpreted.
69. The reading of ‘in a body’ which I propose is also confirmed by the drafting history of Article 218(9) TFEU.
70. That history shows that Article 218(9) TFEU was included because many bilateral or multilateral international agreements, through which the EU assumed obligations vis-à-vis third States or other international organisations, established bodies entrusted with implementing the agreements and empowered to adopt decisions having (binding) legal effects for the Contracting Parties. An early example is the EEC-Turkey Association Council, (18) whose decisions concerning the rights of Turkish workers are, according to the Court, capable of having direct effect within the EU legal order. (19) The status of those decisions is therefore generally assimilated to that of the underlying international agreements; and they may consequently be considered as an additional source of EU law. (20)
71. Before the entry into force of the Treaty of Amsterdam, no specific Treaty provision established a procedure for deciding on the (then) EC’s position in such decision-making bodies. Unless ad hoc arrangements were adopted between the institutions, the procedure in Article 228 EC for concluding international agreements was typically used. (21)
72. This situation was considered unsatisfactory, because the procedure for concluding international agreements required prior assent or prior consultation of the European Parliament and was therefore rather elaborate. The Commission therefore suggested using a simplified procedure, limiting the involvement of the European Parliament, so as to enable more effective EU participation in decision-making bodies created by international agreements. (22) The Treaty of Amsterdam partly achieved this objective by amending Article 228 EC (which became Article 300 EC) and adding a second subparagraph to Article 300(2) EC (which is the predecessor to Article 218(9) TFEU). This set up a simplified procedure, in which no assent or consultation of the European Parliament was required for the Council to decide on ‘the positions to be adopted on behalf of the Community in a body set up by an agreement… when that body was called upon to adopt decisions having legal effects …’. However, the material scope of the second subparagraph of Article 300(2) EC was confined to association agreements concluded by the EU. Furthermore, the consultation or assent of the European Parliament was still required when association councils were called upon to adopt ‘decisions supplementing or amending the institutional framework of the agreement’.
73. The Treaty of Nice extended the material scope of the provision, so that the simplified procedure could be used to decide on the position to be adopted by the Community in bodies set up by any international agreement. That remains the current situation.
74. I cannot therefore accept that Article 218(9) is a stand-alone provision, as the Council suggests. Its drafting history clearly shows that it forms an integral part of the rules applicable to the conclusion of international agreements. Its purpose remains identical to that of Article 300(2) EC. It enables the EU to use a simplified procedure to take part in the decision-making process of bodies set up under an international agreement that are called upon to adopt acts having legal effects, unless the acts in question supplement or amend the institutional framework of the agreement (in which case the European Parliament’s prior involvement is required). (23)
75. The reading that I propose on the basis of both the text and the drafting history of Article 218(9) TFEU is, thus, confirmed by the overall scheme of that provision.
76. Finally, I draw attention to certain legal and practical consequences that would follow from concluding that Article 218(9) TFEU does apply to the submission of statements in international legal proceedings.
77. First, since on that reading, provisions currently found in EU secondary legislation which authorise the Commission to initiate dispute settlement procedures after merely consulting or informing Member States would no longer be permissible.
78. Amongst the provisions thereby invalidated would be Article 3 of Decision 98/414 (24) and Article 13 of Council Regulation (EC) No 3286/94, as amended (the Trade Barriers Regulation: ‘the TBR’). (25) More generally, the discretion that the Commission currently enjoys to lodge WTO proceedings and to participate therein would obviously be fettered. (26)
79. Second, since judicial proceedings are subject to the observance of strict procedural time-limits (unlike the situation that normally pertains when negotiating acts to be adopted in decision-making bodies), there is a risk that the Council may not manage to reach a qualified majority (27) regarding the EU’s position rapidly enough to enable action to be taken on the EU’s behalf. That would tend to reduce the EU’s ability to influence the interpretation and application of international agreements to which it is a signatory. That result would appear to run counter to the Court’s existing approach to the EU’s involvement as an international actor, exemplified in the OIV case. (28)
80. I conclude that, because the EU does not participate in the decision-making process in international judicial proceedings, Article 218(9) TFEU is not intended to cover the situation in which the EU submits written or oral statements in such proceedings. It is therefore unnecessary to consider in greater detail the remaining conditions for the application of Article 218(9) TFEU. (29) I therefore propose that the first part of the Council’s first plea be dismissed.
Second part of the first plea: Article 16(1) TEU
81. The Council contends that, pursuant to Article 16(1) TEU, it is responsible for defining the EU’s policies. The Commission’s function, under Article 17 TEU, is to execute those policies once defined and, in that context, to ensure (where necessary) the EU’s external representation. Although the Council accepts that it is for the Commission to represent the EU before ITLOS in accordance with Article 335 TFEU, which is a specific reflection of Article 17(1), sixth sentence, TEU, it falls within the Council’s exclusive prerogatives to determine whether the EU should express a position and, if so, to settle the content or at least the broad lines of such a position. As a result, by submitting written statements to ITLOS without the Council’s approval, the Commission infringed the Council’s prerogatives under Article 16(1) TEU. The Commission responds that the Council disregards the distinction between external representation for political purposes (to which the sixth sentence of Article 17(1) TEU applies and in relation to which Article 16(1) may be relevant if no EU policy has yet been defined) and the EU’s representation before an international tribunal (to which the second sentence of Article 17(1) TEU applies in connection with Article 335 TFEU).
82. As I see it, whether this part of the Council’s first plea is successful depends, first, on whether deciding on the EU’s position in international judicial proceedings is a question of policy-making and, second, on whether carrying out such functions is ‘laid down in the Treaties’.
83. As regards the first of those conditions, the Council, supported by some of the intervening Member States, contends that the decision to submit a written statement to ITLOS was a political decision. The EU was under no obligation to participate in the proceedings. Since the correct answer to the request for an advisory opinion cannot be objectively and neutrally deduced from the relevant texts (in particular, UNCLOS), any submissions by the EU involve political choices, including as regards the preliminary issues as to the general jurisdiction of ITLOS and the admissibility of the request for an advisory opinion.
84. I accept that any act of an EU institution, especially in external relations, can have political consequences. Likewise, submissions made in (international) judicial proceedings are, by their very nature, intended to influence the decision resulting from those proceedings. Depending on the rules governing the international judicial proceedings, a party having standing to intervene may, for example, question jurisdiction, express doubts as to the admissibility of some or all of the questions raised, suggest answers to some or all of those questions, or focus on one argument rather than another.
85. However, as I see it, this does not necessarily mean that submissions made in international judicial proceedings fall within the Council’s ‘policy-making functions’ under Article 16(1) TEU. (30)
86. In the present case, the Council had already exercised its ‘policy-making’ role within the framework of UNCLOS before the Commission submitted a written statement to ITLOS.
87. First, the EU became a party to both UNCLOS and the fisheries partnership agreements with five of the SRFC States described above in accordance with procedures in which the Council played to the full the role reserved to it by the Treaties. (31) It has consequently, in particular, agreed to be bound by their dispute settlement provisions (32) and, more generally, by arrangements concerning the jurisdiction to interpret them. Under Article 216(2) TFEU, these international agreements are binding on the EU and form an integral part of EU law. (33)
88. Second, the EU has adopted a wide range of internal rules which cover the substantial aspects of those agreements. In particular, as the Commission has pointed out, provisions of Council (EC) Regulation No 1005/2008 relevant to IUU fishing, such as those defining ‘illegal fishing’, are constructed upon the basis of pre-existing international rules. (34)
89. These are the ‘policy-making’ choices which the Council has made in accordance with Article 16(1) TEU and the specific procedural rules in the Treaties which protect the Council’s prerogatives with respect to the negotiating, signing and conclusion of international agreements.
90. The subsequent clarification and application of existing commitments of the EU under international law through international judicial proceedings, including ITLOS advisory proceedings, represent in most cases merely the consequences of the Council’s earlier ‘policy’ choices and thus do not require defining a new policy.
91. Although that is the situation here, I would be reluctant to accept that this will always be the case. Thus, it is not unforeseeable that, in the context of international judicial proceedings in which the EU has standing, the EU might need to take a position on an issue that is not yet covered either by existing EU commitments under international law which are to be interpreted (and applied) in those proceedings or by any other rules of international law on which the EU has already taken a position. In such circumstances, the Council’s prerogatives would need to be respected. However, it seems to me that the ITLOS proceedings at issue here, and the submissions made by the EU, concerned matters arising within the operation of UNCLOS and the UN Fish Stocks Agreement.
92. As regards the second condition on which this part of the Council’s plea depends, it seems to me that, in any event, the Council cannot rely on the second sentence of Article 16(1) TEU in isolation from any other provision in the Treaties.
93. I read the phrase ‘as laid down in the Treaties’ as meaning necessarily that the Council’s policy-making functions cannot be exercised without a separate provision (or, where relevant, a series of provisions) in the Treaties creating that power, thus respecting the principle of conferral.
94. I do not think, however, that the absence of another provision in the Treaties laying down the role of the Council with respect to the adoption of specific instruments through which the EU acts externally – and through which EU policies may be given effect – is an obstacle to the Council exercising its prerogatives under Article 16(1) TEU to decide on EU policies in external relations where no sufficient policy yet exists. If that were the case, the EU might be seriously hampered in its efforts to act effectively. In fact, the Treaties do not contain separate provisions on many instruments of external action through which the EU, having international legal personality, may act. (35) Effective external action by the EU must nevertheless be able to use a variety of instruments and in so doing, the Council’s prerogatives must be respected.
95. I add that, where the Treaties have laid down the procedural rules within which the Council is to act with respect to a particular instrument of EU external action, the Council cannot use Article 16(1) TEU to undermine those rules. (36) The Court has confirmed that it follows from Article 13(2) TEU that the rules regarding the manner in which the EU institutions are to arrive at their decisions are laid down in the Treaties and are not at the disposal of the Member States or of the institutions themselves. (37)
96. That said, as I have already explained above, deciding on the EU’s position in international judicial proceedings did not here require the Council to exercise these prerogatives further.
97. I conclude that the second part of the Council’s first plea should be dismissed.
Second plea: Article 13(2) TEU
98. By its second plea, the Council contends that the Commission’s course of action clearly violates the principle of sincere cooperation set out in the second sentence of Article 13(2) TEU. The Council submits that the Commission failed: (i) to present, under Article 218(9) TFEU, a proposal for a Council decision establishing the EU’s position to be expressed before ITLOS, (ii) to cooperate with the Council as regards establishing the content of the statement to be made and (iii) to take account of the Council’s view that, in the absence of an EU position agreed by the Council, no written statement could be submitted to ITLOS, by announcing at the Coreper meeting of 27 November 2013 that it would proceed with submitting the statement and then doing exactly that two days later. For its part, the Commission stresses that it kept the Council fully informed throughout and, so far as possible, took into account detailed comments from individual Member States when preparing the written statement that it submitted to ITLOS.
99. The duty of mutual sincere cooperation under the second sentence of Article 13(2) TEU applies within the limits of the powers conferred on each institution by the Treaties. It is therefore not such as to add to or reduce those powers. (38) Thus, where the Treaties provide that the Commission is competent to act without the Council’s approval, the Commission’s duty to cooperate with the Council cannot extend as far as precluding the Commission from so acting.
100. As I see it, the first and third parts of the Council’s second plea are predicated on the assumption that, on a correct reading of Article 218(9) TFEU, the Commission required the Council’s prior authorisation in order to lodge written submissions in the ITLOS advisory proceedings and no level of consultation or sincere cooperation could remedy that breach. However, if — as I have concluded — Article 218(9) TFEU did not require the Commission to obtain such prior authorisation, the Commission cannot have failed in its duty of sincere cooperation by not taking steps to obtain it.
101. As regards the second part, I consider that the facts available show that, during the preparation of the statement, the Commission did, indeed, consult the Member States and the Council, and took their comments into account (including those relating to ITLOS’s jurisdiction) (39) before lodging the written statement on behalf of the EU within the time-limit specified by ITLOS.
102. For these reasons, I therefore conclude that the second plea should also be dismissed.
Additional issue: Article 17(1) TEU and Article 335 TFEU
103. If Article 16(1) TEU and Article 218(9) TFEU do not apply, the Council’s application should be dismissed: at least under those provisions, the Council had already taken the relevant position; and it was not competent to decide on the submission of the written statement at issue. But does that conclusion also imply that the decision to submit that statement was properly based, as the Commission contends, on Article 335 TFEU (read together with Article 17(1) TEU) and therefore fell within the Commission’s competence? Or, if Article 335 TFEU does not apply, was the Commission nevertheless competent, under Article 17(1) TEU, to take that decision? I shall address those questions now.
104. As I see it, given that the relevant EU position already exists, it is then the task of the Commission, pursuant to Article 17(1) TEU, to execute that position by giving effect to it and representing that position on the international scene (including in international judicial proceedings). After all, it is the task of the Commission to promote the general interest of the EU and to ensure the application of the Treaties and of measures adopted by the institutions pursuant to them. (40)
105. If Article 335 TEU is simply the specific expression, in respect of representing the EU, of the general principle laid down in Article 17(1) TEU, Article 335 TFEU, read together with Article 17(1) TEU, would give the Commission competence to decide on written statements such as those at issue in this case.
106. The Court in Reynolds Tobacco has already accepted that Article 282 EC (now Article 335 TFEU) is, despite the phrase ‘[i]n each of the Member States’ in that provision, ‘… the expression of a general principle and states that the Community has legal capacity and is, to that end, to be represented by the Commission’. (41) The Court there relied also on the fact that the Commission must ensure that the Treaty provisions and the measures taken pursuant thereto are applied (Article 211 EC, now the second sentence of Article 17(1) TEU). As a result, the Court dismissed an appeal against a judgment of the Court of First Instance (42) which had declared inadmissible the annulment proceedings lodged by cigarette manufacturers against a Commission decision to initiate proceedings before the courts of a third State (the USA) concerning these manufacturers’ alleged involvement in a system of smuggling in the territory of the European Community. The Commission had commenced those US proceedings without prior approval by the Council. (43)
107. In Reynolds Tobacco, the Commission’s competence under those provisions was thus to decide, without the Council’s prior approval, to commence proceedings before the courts of a third State and to define the scope and the substance of the legal action brought. The Court appeared to accept that all those elements constitute ‘representation’ of the EU by the Commission. As I see it, that necessarily implies that the Court did not regard the role of the Commission, as one of the EU’s main political institutions, to be comparable to that of a lawyer (the Commission) representing his client (the EU).
108. The Court made it clear that the EU’s representation by the Commission exists to give effect to the legal personality of the EU by acting in legal proceedings. Unlike the Council and the Austrian Government, I see no valid reason why the extent of the Commission’s competence thus to represent the EU should differ depending on the forum before which the EU participates as a party to the judicial proceedings.
109. Nor am I convinced by the Council’s contention that, contrary to the situation in Reynolds Tobacco, the written statements submitted by the Commission to ITLOS do not pertain to its role as ‘guardian of the Treaties’ under the second sentence of Article 17(1) TEU.
110. True, in Reynolds Tobacco the civil action in the United States sought essentially to obtain compensation from the tobacco companies in respect of their alleged participation in smuggling cigarettes within the European Community, thereby eluding the payment of custom duties and VAT. The Commission was therefore acting to protect the integrity of the customs union and the financial interests of the European Community. (44)
111. However, the fact that, when submitting written statements to ITLOS in Case No 21, the Commission did not seek to obtain similar immediate practical consequences for the functioning of the internal market and the budget of the EU does not mean that it was not acting in accordance with its mandate under the second sentence of Article 17(1) TEU.
112. First, whilst ITLOS advisory proceedings are necessarily different in nature from a civil action seeking the payment of financial compensation for loss, both may generate outcomes that have consequences for the EU. Both may therefore require the Commission to take ‘appropriate initiatives’ and to ‘promote the general interests of the [EU]’.
113. Second, the Court has already confirmed that the Commission’s remit as ‘guardian of the Treaties’ includes ensuring the correct implementation by a third State of the obligations it has assumed under an agreement concluded with the EU, using the means provided for by the agreement or by the decisions taken pursuant thereto, (45) including the procedure for settling disputes. (46) Consistent therewith, I see no reason of principle for excluding representation in international judicial proceedings from the Commission’s competence.
114. Third, the questions submitted to ITLOS for its advisory opinion concerned the interpretation of an international agreement concluded by the EU (UNCLOS), the EU’s bilateral fisheries agreements with third States (in particular, with five members of the SRFC) and the UN Fish Stocks Agreement. All these international instruments form an integral part of the EU legal order and are binding on the institutions. Moreover, the specific questions put related to the issue of concurrent coastal State jurisdiction and flag State jurisdiction to secure sound conservation of marine biological resources, particularly in the context of the fight against IUU fishing – an area in which the EU has adopted specific secondary legislation on the basis of pre-existing international rules. (47) The fact that, in the course of such proceedings, additional aspects may be raised relating to general issues (here, the jurisdiction of ITLOS to give advisory opinions and the admissibility of the questions referred) is inherent in any legal proceedings.
115. I therefore consider that Article 335 TFEU, taken in conjunction with the second sentence of Article 17(1) TEU, provided the Commission with an adequate legal basis for submitting written and oral statements to ITLOS on behalf of the EU.
Conclusion
116. In light of all the foregoing considerations and of Articles 138 and 140 of the Court’s Rules of Procedure concerning the allocation of costs, I propose that the Court should:
– dismiss the action of the Council of the European Union;
– order the Council to pay its own costs and those of the European Commission;
– order the Austrian, Czech, Finnish, French, Greek, Lithuanian, Netherlands, Portuguese, Spanish and the United Kingdom Governments to bear their own costs.