Action brought on 14 March 2012 - European Commission v Council of the European Union

(Case C-137/12)

Language of the case: French

Parties

Applicant: European Commission (represented by: E. Cujo, I. Rogalski and R. Vidal Puig, agents)

Defendant: Council of the European Union

Form of order sought

Annul Council decision 2011/853/EU of 29 November 2011 on the signing, on behalf of the Union, of the European Convention on the legal protection of services based on, or consisting of, conditional access 

Order the Council of the European Union to pay the costs.

Pleas in law and main arguments

By its first plea, the Commission claims that Article 114 TFEU is not an appropriate legal basis for the adoption of the contested decision. According to the applicant, the decision should have been based on Article 207(4) TFEU which authorises the Council to conclude international agreements in the field of the common commercial policy, as defined in Article 207(1) TFEU. The present convention does not aim to 'improve the functioning of the internal market', its principal objective being to 'facilitate' or 'promote' the provision of services based on conditional access between the European Union and other European countries. It would have a direct and immediate effect on the provision of services based on conditional access and on the trade in illicit devices and on the services relating to those devices. Consequently, the convention falls within the scope of the common commercial policy.

By its second plea, the applicant claims that the European Union's exclusive external competence (Article 2(1) and 3(1) and (2) TFEU) has been infringed because the Council considered that the conclusion of the convention did not fall within the European Union's exclusive competence whereas the convention falls within the common commercial policy or, in any case, that the conclusion of the convention is capable of affecting common rules or of altering their scope.

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¹ - OJ 2011 L 336, p. 1.