Keywords
Summary

Keywords

1. International agreements - Conclusion - Preliminary Opinion of the Court - Purpose - Division of powers between the Community and the Member States - Choice of legal basis for the measure concluding an international agreement

(Art. 300(6) EC)

2. International agreements - Conclusion - Preliminary Opinion of the Court - Failure to bring an action against the measure authorising signature of an envisaged agreement - No effect on the admissibility of a request for an Opinion relating to the measure concluding the agreement

(Art. 300(6) EC)

3. International agreements - Conclusion - Preliminary Opinion of the Court - Purpose - Solution of difficulties associated with implementation of an envisaged agreement - Excluded

4. International agreements - Agreement falling in part within the competence of the Community and in part within that of the Member States - Need for close cooperation in negotiating, concluding and complying with the agreement

5. Acts of the institutions - Choice of legal basis - Criteria - Community act pursuing a twofold purpose or having a twofold component - Reference to the main or predominant purpose or component

6. International agreements - Conclusion - Cartagena Protocol on Biosafety - Instrument falling principally within environmental policy - Legal basis - Article 175(1) EC - Shared Community and Member State competence

(Arts 174(4) EC and 175 EC)

Summary

1. The opinion of the Court may be obtained, pursuant to Article 300(6) EC, in particular on questions concerning the division between the Community and the Member States of competence to conclude a given agreement with non-member countries. The choice of the appropriate legal basis has constitutional significance. Since the Community has conferred powers only, it must tie an international agreement to a Treaty provision which empowers it to approve such a measure. To proceed on an incorrect legal basis is therefore liable to invalidate the act concluding the agreement and so vitiate the Community's consent to be bound by the agreement it has signed. That is so in particular where the Treaty does not confer on the Community sufficient competence to ratify the agreement in its entirety, a situation which entails examining the allocation as between the Community and the Member States of the powers to conclude the agreement that is envisaged with non-member countries, or where the appropriate legal basis for the measure concluding the agreement lays down a legislative procedure different from that which has in fact been followed by the Community institutions. Invalidation of the measure concluding the agreement because of an error as to its legal basis is liable to create, both at Community level and in the international legal order, complications which the special procedure of a prior reference to the Court, laid down in Article 300(6) EC, is specifically designed to forestall.

(see paras 3, 5-6)

2. The measure authorising signature of an international agreement and the measure concluding it are two distinct legal acts giving rise to fundamentally distinct legal obligations for the parties concerned, the second measure being in no way confirmation of the first. Accordingly, failure to bring an action for annulment of the first measure does not preclude such an action against the measure concluding the envisaged agreement or render inadmissible a request for an Opinion raising the question whether the agreement is compatible with the Treaty. In any event, the fact that certain questions may be dealt with by means of other remedies, in particular by bringing an action for annulment under Article 230 EC, does not constitute an argument which precludes the Court from being asked for a preliminary Opinion under Article 300(6) EC.

(see paras 11-12)

3. The procedure under Article 300(6) EC is not intended to solve difficulties associated with implementation of an envisaged agreement which falls within shared Community and Member State competence.

(see para. 17)

4. Where it is apparent that the subject-matter of an international agreement falls in part within the competence of the Community and in part within that of the Member States, it is important to ensure close cooperation between the Member States and the Community institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into. That obligation to cooperate flows from the requirement of unity in the international representation of the Community.

(see para. 18)

5. Under the system governing the powers of the Community, the choice of the legal basis for a measure, including one adopted in order to conclude an international agreement, does not follow from its author's conviction alone, but must rest on objective factors which are amenable to judicial review. Those factors include in particular the aim and the content of the measure. If examination of a Community measure reveals that it pursues a twofold purpose or that it has a twofold component and if one is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the measure must be founded on a single legal basis, namely that required by the main or predominant purpose or component. By way of exception, if it is established that the measure simultaneously pursues several objectives which are inseparably linked without one being secondary and indirect in relation to the other, the measure may be founded on the corresponding legal bases.

(see paras 22-23)

6. Even if the control procedures set up by the Cartagena Protocol on Biosafety are applied most frequently, or at least in terms of market value preponderantly, to trade in living modified organisms, the fact remains that the Protocol is, in the light of its context, its aim and its content, an instrument intended essentially to improve biosafety and not to promote, facilitate or govern trade. The fact that numerous international trade agreements pursue multiple objectives and the broad interpretation of the concept of common commercial policy under the Court's case-law are not such as to call into question the finding that the Protocol is an instrument falling principally within environmental policy, even if the preventive measures are liable to affect trade relating to living modified organisms.

It follows that conclusion of the Cartagena Protocol on behalf of the Community must be founded on a single legal basis, specific to environmental policy.

Since the Cartagena Protocol does not merely establish .arrangements for cooperation. regarding environmental protection, but lays down, in particular, precise rules on control procedures relating to transboundary movements, risk assessment and management, handling, transport, packaging and identification of living modified organisms, Article 175(1) EC is the appropriate legal basis for conclusion of the Protocol on behalf of the Community.

In addition, since the harmonisation achieved at Community level in the Protocol's field of application covers in any event only a very small part of such a field, the Community and its Member States share competence to conclude the Protocol.

(see paras 37, 40, 42-44, 46-47)