Case C‑632/20 P

Kingdom of Spain

v

European Commission

Judgment of the Court (Grand Chamber), 17 January 2023

(Appeal – External relations – Stabilisation and Association Agreement between the European Union and the European Atomic Energy Community, of the one part, and Kosovo, of the other part – Electronic communications – Regulation (EU) 2018/1971 – Body of European Regulators for Electronic Communications (BEREC) – Article 35(2) – Participation of the regulatory authority of Kosovo in that body – Concepts of ‘third country’ and ‘third State’ – Competence of the European Commission)

1. Appeal – Grounds – Error of law – Commission decision authorising the participation of the national regulatory authority of Kosovo in the Body of European Regulators for Electronic Communications (BEREC) – Concepts of third country and third State – Interpretation – Differences between the various language versions – Inadequate statement of reasons

   (Statute of the Court of Justice, Art. 36; European Parliament and Council Regulation 2018/1971, Art. 35(2))

   (see paragraphs 37-41, 43-47)

2. Appeal – Grounds – Grounds of a judgment vitiated by an infringement of EU law – Operative part well founded for other legal reasons – Rejection

   (Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.)

   (see paragraph 48)

3. International agreements – Technical cooperation – Electronic communications – Body of European Regulators for Electronic Communications (BEREC) – Participation of regulatory authorities of third countries – Third country – Concept – Territorial entity outside the European Union – Not recognised as an independent State by the European Union – Kosovo – Included

   (Arts 212 and 216 to 218 TFEU; European Parliament and Council Regulation 2018/1971, Art. 35(2))

   (see paragraphs 50-53, 64)

4. International agreements – Technical cooperation – Electronic communications – Body of European Regulators for Electronic Communications (BEREC) – Participation of the regulatory authorities of third countries in that body – Agreement with the European Union to that effect – Concept – Agreement entered into between the European Union and another subject of public international law – Agreement containing provisions used as a basis for cooperation between the European Union and the third country concerned in the field of electronic communications – Stabilisation and Association Agreement between the European Union and Kosovo – Included

   (Stabilisation and Association Agreement between the European Union and the European Atomic Energy Community, of the one part, and Kosovo, of the other part, Art. 111; European Parliament and Council Regulation 2018/1971, Art. 35(2))

   (see paragraphs 54-57, 59-61, 80-85, 87, 93)

5. International agreements – Technical cooperation – Electronic communications – Body of European Regulators for Electronic Communications (BEREC) – Participation of the regulatory authorities of third countries in that body – Third country – Concept – Entities subject to international law which may have rights and obligations – Kosovo – Included – No implicit recognition by the European Union of Kosovo as an independent State

   (Stabilisation and Association Agreement between the European Union and the European Atomic Energy Community, of the one part, and Kosovo, of the other part, Art. 111; European Parliament and Council Regulation 2018/1971, Art. 35(2))

   (see paragraphs 69-72, 86)

6. International agreements – Technical cooperation – Electronic communications – Body of European Regulators for Electronic Communications (BEREC) – Participation of regulatory authorities of third countries – Working arrangements applying to that participation – Determination procedure – Requirement for compliance with the provisions of agreements entered into with the European Union for the purposes of that participation – Commission’s power to establish such arrangements unilaterally – None

   (Art. 17 TEU; European Parliament and Council Regulation 2018/1971, Art. 35(2), second subpara.)

   (see paragraphs 109-125)

7. Actions for annulment – Judgment annulling a measure – Effects – Limitation by the Court – Commission decision authorising the participation of the national regulatory authority of Kosovo in the Body of European Regulators for Electronic Communications (BEREC) – Effects of that decision maintained until replacement of that decision within a reasonable period – Justification on grounds of serious negative consequences

   (Art. 264, second para., TFEU; European Parliament and Council Regulation 2018/1971, Art. 35(2))

   (see paragraphs 133-137)

Résumé

Between 2001 and 2015, the European Union signed stabilisation and association agreements (SAA) with six countries of the Western Balkans, including Kosovo. In that context, the European Commission recommended actions to, inter alia, align the legislation of those countries with EU legislation and incorporate the Western Balkans into existing regulatory bodies, such as the Body of European Regulators for Electronic Communications (BEREC) established by Regulation 2018/1971. ( 1 ) In order to establish a closer relationship between the national regulatory authorities (NRAs) of the European Union and of the Western Balkans, the Commission adopted six decisions, on 18 March 2019, concerning the participation in BEREC of the NRAs of the countries of the Western Balkans. The decisions in question include a decision by which the Commission allowed the NRA of Kosovo to participate in the Board of Regulators and working groups of BEREC and in the Management Board of the BEREC Office (‘the decision at issue’). ( 2 )

The Kingdom of Spain brought an action for annulment of the decision at issue on the ground of the Commission’s infringement of Article 35 of Regulation 2018/1971. ( 3 ) It claimed, in essence, that that decision misconstrued the concept of ‘third country’ used in that provision, which could not relate to Kosovo as Kosovo is not a sovereign State. That action was dismissed in its entirety by the General Court in its judgment of 23 September 2020, Spain v Commission ( 4 ) (‘the judgment under appeal’).

On appeal by the Kingdom of Spain, the Grand Chamber of the Court of Justice sets aside the judgment of the General Court and annuls the decision at issue, on the ground that the General Court erred in law in finding ( 5 ) that the power to draw up working arrangements applying to the participation of NRAs of third countries in BEREC, within the meaning of the second subparagraph of Article 35(2) of Regulation 2018/1971, lies unilaterally with the Commission under Article 17 TEU.

Findings of the Court

As regards, in the first place, the concept of ‘third country’ used in Article 35 of Regulation 2018/1971, the Court of Justice considers first of all that it is not possible to determine the meaning of that concept on the basis of a literal interpretation of the Treaties. In addition, not all the language versions of the EU and FEU Treaties use the terms ‘third State’ and ‘third country’ together. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all the languages of the European Union and, where there is any divergence between those various versions, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part. The wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision. In the present case, the General Court, proceeding on the basis that the provisions of the FEU Treaty relating to ‘third countries’ allow international agreements to be concluded with entities ‘other than States’, considered that the scope of the concept of ‘third country’, within the meaning of Article 35(2), went beyond sovereign States alone. That premiss was, however, established without the General Court taking into account the differences between the language versions of the EU and FEU Treaties, the wording of which does not support the conclusion that there is a difference in meaning between the words ‘third country’ and ‘third State’. Moreover, since the words ‘third country’ do not appear in all the language versions of Regulation 2018/1971, only the equivalent of the term ‘third State’ being used in some of them, the Court of Justice finds that the General Court’s reasoning was vitiated by an error of law.

Since the operative part of the judgment under appeal may, however, be well founded on other legal grounds, the Court of Justice goes on to examine whether the General Court was entitled to conclude that the Commission had not infringed Article 35 of Regulation 2018/1971 by treating Kosovo in the same way as a ‘third country’ within the meaning of that provision. In that regard, for the purposes of ensuring the effectiveness of Article 35(2) of Regulation 2018/1971, a territorial entity situated outside the European Union which the European Union has not recognised as an independent State must be capable of being treated in the same way as a ‘third country’ within the meaning of that provision, without infringing international law. In the case of Kosovo, the International Court of Justice concluded that the adoption, on 17 February 2008, of the Kosovo declaration of independence had not violated general international law, United Nations Security Council resolution 1244 (1999) or the applicable constitutional framework. ( 6 ) Furthermore, as the first footnote to the decision at issue indicates, the treatment of Kosovo as a third country referred to above does not affect the individual positions of the Member States as to whether Kosovo has the status of an independent State that is claimed by its authorities. Accordingly the Court of Justice holds that Kosovo may be treated in the same way as a ‘third country’, within the meaning of Article 35(2) of Regulation 2018/1971, without infringing international law.

As regards, moreover, the integration of ‘third countries’ into the participation scheme provided for in Article 35(2) of Regulation 2018/1971, the Court of Justice recalls that, according to that provision, the participation of the NRAs of such countries is subject to two cumulative conditions, consisting, first, in the existence of an ‘agreement’ entered into with the European Union and, second, in the fact that that agreement was entered into ‘to that effect’. The European Union has entered into several agreements with Kosovo, thus recognising its capacity to conclude such agreements. They include the Kosovo SAA, ( 7 ) which provides, in Article 111, that the cooperation established in relation to electronic communications networks and services is primarily to focus on priority areas related to the EU acquis in that field, and that the parties are to strengthen that cooperation. The Kosovo SAA must therefore also be regarded as having been concluded for the purposes of permitting the participation of the NRA of Kosovo in the bodies of BEREC, in so far as Article 111 of that agreement relates to the adoption of the EU acquis and to strengthening cooperation between the parties in the area of electronic communications networks and services. Lastly, the Court of Justice notes that, in accordance with its objective of cooperation, Article 35(2) of Regulation 2018/1971 opens up certain BEREC bodies to the participation of NRAs of third countries with primary responsibility in the field of electronic communications. In the light of the above, the General Court did not err in law when it concluded that the Commission had not infringed, in the decision at issue, Article 35(2) of Regulation 2018/1971 by finding that Kosovo was to be treated as a ‘third country’ within the meaning of that provision.

As regards, in the second place, the General Court’s interpretation of the consequences of the lack of an EU position on the status of Kosovo under international law, the decision at issue does not infringe the Kosovo SAA and Regulation 2018/1971 merely because it establishes cooperation with the NRA of Kosovo by implementing those acts and does not entail recognition of Kosovo as a third State. Consequently, the Commission’s adoption of the decision at issue cannot be interpreted as entailing the implicit recognition by the European Union of Kosovo’s status as an independent State.

As regards, in the third place, the ground of appeal alleging that the General Court wrongly held that the cooperation referred to in Article 111 of the Kosovo SAA corresponded to the participation envisaged in Article 35(2) of Regulation 2018/1971, the Court of Justice rules that ground to be unfounded, finding, in particular, that that provision of the Kosovo SAA does constitute an agreement ‘to that effect’, within the meaning of Regulation 2018/1971. Article 35(1) of that regulation envisages various degrees and forms of closer and less close cooperation, by means, inter alia, of working arrangements with the NRAs of third countries. By contrast, the participation of the NRA of Kosovo in BEREC bodies cannot be equated with the incorporation of that NRA into that EU body. Moreover, the participation of the NRA of Kosovo in BEREC does not allow Kosovo to contribute to the development of EU sectoral legislation on electronic communications.

The Court of Justice nevertheless upholds, in the fourth place, the Kingdom of Spain’s appeal in so far as it relates, in essence, to the Commission’s lack of competence. The Court notes, first of all, that the decision at issue could not be taken on the basis of Article 17 TEU by virtue of the Commission’s executive or external representation functions, the Commission being intended to exercise only a supervisory function in the context of the adoption of the working arrangements in question. In particular, it is apparent from Article 35(2) of Regulation 2018/1971 that the purpose of the working arrangements is not the external representation as such of the European Union, but specifying, in particular, the nature, extent and manner in which the NRAs of third countries which have entered into agreements with the European Union to that effect will participate in the work of EU bodies. Next, the fact that Article 35(2) of Regulation 2018/1971 does not, unlike paragraph 1 of that provision, mention that BEREC and the BEREC Office are to establish working arrangements ‘subject to prior approval by the Commission’ does not mean that the power to establish such arrangements with the NRAs of third countries lies with the Commission. That finding is not called into question by the fact that the participation in the work of BEREC and the BEREC Office referred to in that provision is a closer form of cooperation with the NRAs of third countries than that established under Article 35(1) of that regulation. Lastly, the fact that the Commission could unilaterally decide on certain working arrangements for participation in the work of BEREC and the BEREC Office, without their agreement, is not compatible with BEREC’s independence and would go beyond the supervisory function assigned to the Commission by the regulation. Thus, by holding that the power to draw up working arrangements applying to the participation of NRAs of third countries, including the NRA of Kosovo, lay with the Commission, the General Court failed to have regard to the division of powers between, on the one hand, the Commission and, on the other hand, BEREC and the BEREC Office, as well as to the rules guaranteeing the independence of BEREC laid down by the regulation. Such arrangements should be agreed between BEREC and the BEREC Office, on one side, and the competent authorities of those third countries, on the other, and be authorised jointly, as is apparent from Regulation 2018/1971, ( 8 ) by the Board of Regulators and the Director of the BEREC Office. While making clear that that power does not lie with the Council, the Court of Justice concludes that the General Court erred in law in ruling ( 9 ) that the Commission had a unilateral power to draw up those arrangements.

While setting aside, in consequence, the judgment under appeal and annulling the decision at issue, the Court of Justice nevertheless rules, in view of the necessity of the arrangements at issue, that the effects of the annulled decision are to be maintained until that decision is replaced by a new act.

( 1 ) Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009 (OJ 2018 L 321, p. 1).

( 2 ) Commission Decision of 18 March 2019 on the participation of the National Regulatory Authority of Kosovo in the Body of European Regulators for Electronic Communications (OJ 2019 C 115, p. 26).

( 3 ) According to that provision, entitled ‘Cooperation with Union bodies, third countries and international organisations’: ‘(1) In so far as necessary in order to achieve the objectives set out in this Regulation and carry out its tasks, and without prejudice to the competences of the Member States and the institutions of the Union, BEREC and the BEREC Office may cooperate with competent Union bodies, offices, agencies and advisory groups, with competent authorities of third countries and with international organisations. To that end, BEREC and the BEREC Office may, subject to prior approval by the Commission, establish working arrangements. Those arrangements shall not create legal obligations. (2) The Board of Regulators, the working groups and the Management Board shall be open to the participation of regulatory authorities of third countries with primary responsibility in the field of electronic communications, where those third countries have entered into agreements with the Union to that effect. Under the relevant provisions of those agreements, working arrangements shall be developed specifying, in particular, the nature, extent and manner in which the regulatory authorities of the third countries concerned will participate without the right to vote in the work of BEREC and of the BEREC Office, including provisions relating to participation in the initiatives carried out by BEREC, financial contributions and staff to the BEREC Office. As regards staff matters, those arrangements shall, in any event, comply with the Staff Regulations. …’

( 4 ) Judgment of 23 September 2020, Spain v Commission (T‑370/19, EU:T:2020:440).

( 5 ) See paragraphs 77 and 82 of the General Court’s judgment of 23 September 2020, Spain v Commission (T‑370/19, EU:T:2020:440).

( 6 ) Advisory opinion of the International Court of Justice of 22 July 2010, Accordance with international law of the unilateral declaration of independence in respect of Kosovo (ICJ Reports 2010, p. 403).

( 7 ) Stabilisation and Association Agreement between the European Union and the European Atomic Energy Community, of the one part, and Kosovo, of the other part (OJ 2016 L 71, p. 3; ‘the Kosovo SAA’).

( 8 ) Article 9(i) and Article 20(6)(m) of Regulation 2018/1971.

( 9 ) Judgment of the General Court of 23 September 2020, Spain v Commission (T‑370/19, EU:T:2020:440, paragraphs 77 and 82).