Joined Cases C‑626/15 and C‑659/16

European Commission

v

Council of the European Union

(Actions for annulment — Decision of the Permanent Representatives Committee (Coreper) — Decision approving the submission of a reflection paper to an international body — Admissibility — Challengeable act — Exclusive, shared or complementary competence of the European Union — Action of the European Union alone in an international body or participation of the Member States alongside it — Conservation of marine biological resources — Fisheries — Protection of the environment — Research — Marine protected areas (MPAs) — Antarctic Treaty — Convention on the Conservation of Antarctic Marine Living Resources — Weddell Sea and Ross Sea)

Summary — Judgment of the Court (Grand Chamber), 20 November 2018

1. Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Decision of Coreper approving the submission of a reflection paper to the Commission for the Conservation of Antarctic Marine Living Resources — Included

   (Art. 263 TFEU)

2. Council — Permanent Representatives Committee — Own powers — None — Powers of implementation — Judicial review — Scope

   (Art. 240(1) TFEU)

3. Acts of the institutions — Choice of legal basis — Criteria — EU measure pursuing a twofold aim or having a twofold component — Reference to the main or predominant aim or component — Inseparable aims or components — More than one legal basis — Exceptional

4. Fisheries — Conservation of the resources of the sea — Exclusive competence of the European Union — Limits — Necessity that the competence be exercised under the common fisheries policy

   (Arts 3(1)(d) TFEU and 4(2)(d) TFEU)

5. Fisheries — Conservation of the resources of the sea — Exclusive competence of the European Union — Limits — Competence to submit, on behalf of the European Union and its Member States, a reflection paper concerning the creation of a marine protected area to the Commission for the Conservation of Antarctic Marine Living Resources — Not included — Applicability of the shared competence regarding protection of the environment

   (Arts 3(1)(d) TFEU, 4(2)(e) TFEU and 11 TFEU)

6. International agreements — Conclusion — Competence of the European Union — Exclusive competence in respect of an agreement that may affect common rules or alter their scope — Subject matter — Applicability both to the negotiation of the agreement and to the procedure leading to the adoption by an international body of measures implementing the agreement

   (Art. 3(2) TFEU)

7. International agreements — Conclusion — Competence of the European Union — Exclusive competence in respect of an agreement that may affect common rules or alter their scope — Need for the common rules and the envisaged agreement to conflict — No such need — Burden of proof in respect of the claim that the exclusive nature of the competence has been disregarded

   (Art. 3(2) TFEU)

8. International agreements — Conclusion — Competence of the European Union — Competences shared with the Member States — Exercise by the European Union alone where the required majority is obtained within the Council — Lawfulness — Limits — Observance of international law — Ability of the European Union to act without the participation of the Member States within the Commission for the Conservation of Antarctic Marine Living Resources — Precluded

   (Art. 4(2)(e) TFEU)

1.  Any decision adopted by an institution, office, body or agency of the European Union, irrespective of its nature or form, which is intended to have legal effects constitutes a challengeable act for the purposes of Article 263 TFEU.

   That is so in the case of a decision of the Council, as contained in a conclusion of the Chairman of the Permanent Representatives Committee (Coreper), approving the submission, on behalf of the European Union and its Member States, to the Commission for the Conservation of Antarctic Marine Living Resources (‘the CCAMLR’) of a reflection paper relating to a future proposal to create a marine protected area. So far as concerns, first, the context of that decision, it was adopted with a view to persuading the CCAMLR to establish a marine protected area. Second, as to that decision’s content, in deciding that the reflection paper was to be submitted on behalf of the European Union and its Member States, Coreper obliged the Commission not to depart from that position in the exercise of its power to represent the European Union externally. Third, as regards the intention of the measure’s author, it is apparent from the minutes of the Coreper meeting at which that decision was adopted, which constitute material enabling that intention to be determined objectively, that the decision has the objective of establishing definitively the Council’s and, accordingly, the European Union’s position so far as concerns submission of the reflection paper to the CCAMLR on behalf of the European Union and its Member States, and not on behalf of the European Union alone.

   (see paras 59, 63-65)

2.  As set out in Article 240(1) TFEU, Coreper consists of the permanent representatives of the governments of the Member States of the European Union and is responsible for preparing the work of the Council and for carrying out the tasks assigned to it by the latter. Thus, the framers of the Treaties intended to make Coreper an auxiliary body of the Council, for which it carries out preparation and implementation work. Whilst the function of preparing the work of the Council and of carrying out the tasks assigned by it does not give Coreper the power to take decisions, a power which belongs, under the Treaties, to the Council, the fact remains that, as the European Union is a union based on the rule of law, a measure adopted by Coreper must be amenable to judicial review where it is intended, as such, to produce legal effects and therefore falls outside the framework of that preparation and implementation function.

   (see paras 60, 61)

3.  See the text of the decision.

   (see paras 76-78)

4.  So far as concerns the extent of the exclusive competence that the European Union possesses in respect of conservation of marine biological resources under Article 3(1)(d) TFEU, it must be held that only conservation of such resources which is undertaken under the common fisheries policy, and which is therefore inseparable from that policy, is referred to in Article 3(1)(d) TFEU. It is therefore only in so far as the conservation of marine biological resources is pursued under that policy that it falls within the exclusive competence of the European Union and is, consequently, as Article 4(2)(d) TFEU expressly states, excluded from the competence that the European Union and its Member States share in the area of agriculture and fisheries

   (see paras 82-84)

5.  In respect of a reflection paper relating to a future proposal to create a marine protected area in the Weddell Sea, three proposals concerning the creation or support for the creation of marine protected areas in the Antarctic and a proposal for the creation of a group of special areas, which are approved by Coreper for submission, on behalf of the European Union and its Member States, to the Commission for the Conservation of Antarctic Marine Living Resources, since fisheries constitute only an incidental purpose of that paper and of the envisaged measures and protection of the environment is the main purpose and component of that paper and those measures, the decisions approving the submission of the document do not fall within the exclusive competence of the European Union laid down in Article 3(1)(d) TFEU, but within the competence under Article 4(2)(e) TFEU regarding protection of the environment that it shares, in principle, with the Member States.

   That conclusion cannot be called into question by the fact that, under Article 11 TFEU, environmental protection requirements must be integrated into the definition and implementation of the European Union’s policies and activities, including the common fisheries policy. Whilst the European Union must comply with that provision when it exercises one of its competences, the fact remains that environmental policy is expressly referred to in the Treaties as constituting an autonomous area of competence and that, consequently, when the main purpose and component of a measure relate to that area of competence, the measure must also be regarded as falling within that area of competence.

   (see paras 100, 101)

6.  Under Article 3(2) TFEU the European Union has exclusive competence for the conclusion of an international agreement when its conclusion may affect common rules or alter their scope. Thus, in reserving exclusive competence for the European Union to adopt an agreement in the circumstances specified by that provision, the EU legislature seeks to prevent the Member States from being able, unilaterally or collectively, to undertake obligations with third States which may affect common rules or alter their scope. In the light of that objective, Article 3(2) TFEU must therefore be interpreted, in order to preserve its practical effect, as meaning that, although its wording refers solely to the conclusion of an international agreement, it also applies, at an earlier stage, when such an agreement is being negotiated and, at a later stage, when a body established by the agreement is called upon to adopt measures implementing it.

   (see paras 110-112)

7.  There is a risk that common EU rules may be adversely affected by international commitments undertaken by the Member States, or that the scope of the rules may be altered, such as to justify an exclusive external competence of the European Union under Article 3(2) TFEU where those commitments fall within the scope of those rules. However, a finding that there is such a risk does not presuppose that the area covered by the international commitments and that covered by the EU rules coincide fully. In particular, the scope of EU rules may be affected or altered by international commitments where the latter fall within an area which is already covered to a large extent by such rules. Furthermore, such a risk of common EU rules being affected may be found to exist where the international commitments at issue, without necessarily conflicting with those rules, may have an effect on their meaning, scope and effectiveness.

   It is for the party concerned to put forward evidence or arguments to establish that the exclusive nature of the external competence of the European Union on which it seeks to rely has been disregarded.

   (see paras 113-115)

8.  It is true that the mere fact that international action of the European Union falls within a competence shared between it and the Member States does not preclude the possibility of the required majority being obtained within the Council for the European Union to exercise that external competence alone. That said, when the European Union decides to exercise its powers they must be exercised in observance of international law.

   In the case of the Convention on the Conservation of Antarctic Marine Living Resources (‘the Canberra Convention’), exercise by the European Union of the external competence regarding protection of the environment, referred to in Article 4(2) TFEU, that excludes the Member States would be incompatible with international law. It is clear from reading Article VII(2)(c) of the Canberra Convention in conjunction with Article XXIX(2) thereof that a regional economic integration organisation, such as the European Union, can accede to that convention and become a member of the Commission for the Conservation of Antarctic Marine Living Resources (‘the CCAMLR’) only if its Member States are members. Consequently, the Canberra Convention does not grant regional integration organisations, such as the European Union, a fully autonomous status within the CCAMLR. Moreover, the European Union is one of the Contracting Parties to that convention to which the provisions of Article V(1) and (2) thereof are addressed, since it is not a party to the Antarctic Treaty. It follows, in particular, that it is required to acknowledge the special obligations and responsibilities of the Antarctic Treaty consultative parties, including of those of its Member States which have that status, whether or not they are members of the CCAMLR.

   In those circumstances, to permit the European Union to have recourse, within the CCAMLR, to the power which it has to act without the participation of its Member States in an area of shared competence regarding protection of the environment, when, unlike it, some of them have the status of Antarctic Treaty consultative parties, might well, given the particular position held by the Canberra Convention within the system of Antarctic agreements, undermine the responsibilities and rights of those consultative parties — which could weaken the coherence of that system of agreements and, ultimately, run counter to Article V(1) and (2) of the Canberra Convention.

   (see paras 126-130, 132, 133)