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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Council (Advocate Generals opinion) [2014] EUECJ C-377/12 (23 January 2014)
URL: http://www.bailii.org/eu/cases/EUECJ/2014/C37712_O.html
Cite as: ECLI:EU:C:2014:29, [2014] EUECJ C-377/12, EU:C:2014:29
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OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 23 January 2014 (1)
Case C-377/12
European Commission
v
Council of the European Union
(Action for annulment – Decision 2012/272/EU – Development cooperation – Transport – Environment – Readmission of nationals of third countries – Legal basis under Title V of the FEU Treaty)
Table of contents
I – Introduction
II – Legal context
III – Background to the dispute
IV – The order sought by the parties and the procedure before the Court
V – Analysis
A – Arguments of the parties
B – The relevant case-law as it stands and the determination of the applicable criterion
C – Origins, content and general scheme of the PCA
D – Development cooperation in EU law and the categorisation of the PCA
E – The addition of legal bases concerning transport
F – The addition of the legal basis on the environment
G – The addition of the legal basis concerning the readmission of third-country nationals
1. The content of the PCA
2. Migration and development cooperation policy
3. Article 26 of the PCA in the light of previous practice
4. The current practice concerning readmission agreements
H – Maintenance of the effects of the annulled decision
VI – Costs
VII – Conclusion
I – Introduction
1. By this action, the European Commission requests the Court of Justice to annul Council Decision 2012/272/EU of 14 May 2012 on the signing, on behalf of the Union, of a framework agreement on partnership and cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part (2) (‘the contested decision’), in so far as the Council of the European Union added legal bases concerning transport, the readmission of third-country nationals and the environment.
II – Legal context
2. Article 26 of the framework agreement on partnership and cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part (‘the PCA’), (3) entitled ‘Cooperation on migration and development’ and included in Title V on cooperation on migration and maritime labour, is worded as follows:
‘(1) The Parties reaffirm the importance of the joint management of migratory flows between their territories. With a view to strengthening cooperation, the Parties shall establish a mechanism for comprehensive dialogue and consultation on all migration-related issues. Migration concerns shall be included in the national strategies/national development framework for economic and social development of countries of origin, transit and destination of migrants.
(2) Cooperation between the Parties shall be based on a specific needs-assessment conducted in mutual consultation and agreement between the Parties and be implemented in accordance with the relevant Union and national legislation in force. It will, in particular, focus on:
(a) the push-pull factors of migration;
(b) the development and implementation of national legislation and practices with regard to protection and rights of migrants, with a view to satisfying the provisions of applicable international instruments that guarantee respect for the rights of migrants;
(c) the development and implementation of national legislation and practices with regard to international protection with a view to satisfying the provisions of the Convention Relating to the Status of Refugees … and to ensure respect for the principle of non-refoulement;
(d) admission rules, as well as the rights and status of persons admitted, the provision of fair treatment and avenues for integration of lawfully residing non-nationals, education and training and measures against racism, discrimination, and xenophobia;
(e) the establishment of an effective and preventive policy to address the presence on their territory of a national of the other Party who does not fulfil, or no longer fulfils, the conditions of entry, stay or residence in the territory of the Party concerned; the smuggling of persons, and trafficking in human beings, including ways to combat networks of smugglers of persons and traffickers and to protect the victims of such activities;
(f) the return of persons as defined under paragraph 2, point (e) of this Article, under humane and dignified conditions, including the promotion of their voluntary and sustainable return to the countries of origin, and their admission/readmission in accordance with paragraph 3 of this Article. The return of such persons shall be with due regard to the Parties’ right to grant residence permits or authorisations to stay for compassionate and humanitarian reasons and the principle of non-refoulement;
(g) issues identified as being of mutual interest in the field of visas, travel documents and border control management;
(h) migration and development issues including human resources development, social protection, maximising benefits from migration, gender and development, ethical recruitment and circular migration, and the integration of migrants.
(3) Within the framework of cooperation in this area and without prejudice to the need to protect victims of human trafficking, the Parties further agree that:
(a) The Philippines shall admit back any of its nationals as defined under paragraph 2, point e) of this Article present in the territory of a Member State upon request by the latter, without undue delay once nationality has been established and due process in the Member State carried out;
(b) Each Member State shall readmit any of its nationals as defined under paragraph 2, point e) of this Article present in the territory of the Philippines upon request by the latter, without undue delay once nationality has been established and due process in the Philippines carried out;
(c) The Member States and the Philippines will provide their nationals with required documents for such purposes. Any request for admission or readmission shall be transmitted by the requesting state to the competent authority of the requested state.
Where the person concerned does not possess any appropriate identity documents or other proof of his/her nationality, the competent diplomatic or consular representation concerned shall be immediately requested by the Philippines or Member State to ascertain his/her nationality, if needed by means of an interview; and once ascertained to be a national of the Philippines or Member State, appropriate documents shall be issued by the competent Philippine or Member State authorities.
(4) The Parties agree to conclude as soon as possible an agreement for the admission/readmission of their nationals, including a provision on the readmission of nationals of other countries and stateless persons.’
3. Article 34 of the PCA, concerning the environment and natural resources provides:
‘(1) The Parties agree that cooperation in this area shall promote the conservation and improvement of the environment in pursuit of sustainable development. The implementation of the outcome of the WSSD and of relevant multilateral environmental agreements to which they are parties shall be taken into account in all activities undertaken by the Parties under this Agreement.
(2) The Parties agree on the need to conserve, and manage in a sustainable manner, natural resources and biological diversity as a basis for the development of current and future generations.
(3) The Parties agree to cooperate with a view to enhancing the mutual support for trade and environment policies, and the integration of environmental considerations into all sectors of cooperation.
(4) The Parties endeavour to continue their cooperation in the regional programmes on protection of the environment, specifically as regards:
(a) enhancing environmental awareness and local participation in environmental protection and sustainable development efforts, including participation of indigenous cultural communities/indigenous peoples and local communities;
(b) capacity-building on climate change adaptation and mitigation and energy efficiency;
(c) capacity-building for participating and implementing multilateral environment agreements including but not limited to biodiversity and biosafety;
(d) promoting environmentally friendly technologies, products and services, including through the use of regulatory and market-based instruments;
e) improving natural resources including forest governance and combating illegal logging and associated trade, and promoting sustainable natural resources including forest management;
(f) effective management of national parks and protected areas and the designation and protection of areas of biodiversity and fragile ecosystems, with due regard for local and indigenous communities living in or near these areas;
g) prevention of illegal transboundary movement of hazardous substances, hazardous wastes and other forms of waste;
(h) protection of coastal and marine environment and effective water resources management;
(i) protection and conservation of soils and sustainable land management, including rehabilitation of mined-out/abandoned mines;
(j) promoting capacity building in disaster and risk management;
(k) promoting Sustainable Consumption and Production patterns in their economies.
(5) The Parties shall encourage mutual access to their programmes in this field, in accordance with the specific terms of such programmes.’
4. Article 38 of the PCA, concerning transport, reads as follows:
‘1. The Parties shall endeavour to cooperate in all relevant areas of transport policy, including integrated transport policy, with a view to improving the movement of goods and passengers, promoting maritime and aviation safety and security, environmental protection, and increasing the efficiency of their transport systems.
2. Cooperation between the Parties in this area shall aim to promote:
(a) the exchange of information on their respective transport policies, regulations and practices, especially regarding urban and rural transport, maritime transport, air transport, transport logistics, and the interconnection and interoperability of multimodal transport networks as well as the management of roads, railways, ports, and airports;
(b) the exchange of views on the European Satellite Navigation Systems (in particular Galileo) with a focus on regulatory, industrial, and market development issues of mutual benefit;
(c) continuing the dialogue in the field of air transport services with a view to ensuring legal certainty without any undue delay to the existing bilateral air services agreements between individual Member States and the Philippines;
(d) continuing the dialogue on enhancing air transport infrastructure networks and operations for the fast, efficient, sustainable, safe and secure movement of people and goods, and promoting the application of competition law and economic regulation of the air industry, with a view to supporting regulatory convergence and enhancing doing business, and to examine possibilities for the further development of relations in the field of air transport. Air transport cooperation projects of mutual interest should be further promoted;
(e) dialogue in the field of maritime transport policy and services aiming in particular at promoting the development of the maritime transport industry including but not limited to:
(i) the exchange of information on legislation and regulations concerning maritime transport and ports;
(ii) the promotion of unrestricted access to the international maritime markets and trades on a commercial basis, the abstention from introducing cargo sharing clauses, the granting of national treatment and Most Favoured Nation (MFN) clauses for vessels operated by nationals or companies of the other Party and relevant issues related to door-to-door transport services involving the sea leg, taking into account the domestic laws of the Parties;
(iii) the effective administration of ports and the efficiency of maritime transport services; and
(iv) the promotion of maritime transport cooperation of mutual interest and of the area of maritime labour, education and training pursuant to Article 27;
(f) a dialogue on the effective implementation of transport security, safety and pollution prevention standards, notably as regards maritime transport, particularly including combating piracy, and air transport, in line with the relevant international conventions to which they are parties, and standards, including cooperation in the appropriate international fora aiming to ensure better enforcement of international regulations. To this end, the Parties will promote technical cooperation and assistance on issues related to transport safety, security and environmental consideration including but not limited to maritime and aviation education and training, search and rescue, and accidents and incidents investigation. The Parties will also focus on the promotion of environmentally-friendly modes of transport.’
III – Background to the dispute
5. On 25 November 2004, upon recommendation by the Commission, the Council authorised the Commission to negotiate a framework partnership agreement between the European Union, its Member States, and the Republic of the Philippines. Those negotiations commenced in Manila (the Philippines) in February 2009 and concluded at the beginning of June 2010. The agreement was finally initialled by the Commission and the Republic of the Philippines on 25 June 2010.
6. Accordingly, the Commission adopted, on 6 September 2010, a proposal for a Council decision on the signing of a framework agreement on partnership and cooperation between the European Union and its Member States, of the one part, and the Republic of the Phillipines, of the other part, (4) that proposal thus being based on Articles 207 TFEU and 209 TFEU in conjunction with Article 218(5) TFEU.
7. Following an agreement reached in the Committee of Permanent Representatives (Coreper) on 28 January 2011, (5) after an opinion of the Council Legal Service, the Council adopted the contested decision, by unanimity, and based it not only on Articles 207 TFEU and 209 TFEU, relating to trade and development, but also on Articles 91 TFEU and 100 TFEU, relating to transport, Article 79(3) TFEU, relating to readmission of third-country nationals, and Article 191(4) TFEU, relating to the environment, all in conjunction with Article 218(5) TFEU. (6)
8. Taking the view that the PCA does not contain obligations going beyond an objective linked to trade and development cooperation, the Commission considered the addition of Article 79(1) TFEU, 91 TFEU, 100 TFEU and 191(4) TFEU as legal bases for the contested decision as unnecessary and brought, on 6 August 2012, the present action on the basis of Article 263 TFEU.
IV – The order sought by the parties and the procedure before the Court
9. The Commission claims that the Court should:
– annul the contested decision;
– nevertheless, maintain the effects of the decision; and
– order the Council to pay the costs.
10. The Council contends that the Court should:
– dismiss the action, and
– order the Commission to pay the costs.
11. By orders of 29 November, 18 and 20 December 2012, and 25 January 2013, the President of the Court granted Ireland, the United Kingdom of Great Britain and Northern Ireland, the Federal Republic of Germany, the Czech Republic, the Hellenic Republic and the Republic of Austria, respectively, leave to intervene in support of the form of order sought by the Council.
12. The European Commission, the Council, the Federal Republic of Germany, Ireland, the Hellenic Republic and the United Kingdom were heard at the hearing which took place before the Court on 22 October 2013.
V – Analysis
A – Arguments of the parties
13. In support of its action, the Commission relies on a single plea in law, according to which the Council, by adding to the contested decision the disputed legal bases on transport, the environment and the readmission of third-country nationals, infringed the Treaty rules and the case-law of the Court concerning the choice of the legal basis.
14. The Commission is of the opinion that the PCA, although it covers a wide range of sectors, pursues a single objective which is the implementation of development cooperation within the meaning of Article 209 TFEU. The PCA must therefore be regarded as a development cooperation agreement within the meaning of the judgment in Portugal v Council. (7)
15. In support of its argument, the Commission claims, first, that the three policy sectors in dispute form part of the sectors covered both by the European consensus on development (8) and by the financing instrument for development cooperation. (9) Second, the Commission sets about to show, sector by sector, that the PCA does not contain obligations the extent of which is such that they in fact constitute objectives distinct from those of development cooperation. With regard to transport, the applicant claims that Article 38 of the PCA amounts to no more than a general commitment to cooperate. The same finding is made with regard to Article 34 of the PCA and the terms thereof concerning the environment, since they merely state general principles, guidelines and declarations of intent. Moreover, the link between development cooperation and sustainable development was stressed again in the outcome document of the Rio+20 conference. The Commission also considers that Article 26(3) and (4) of the PCA does not have the effect of transforming the agreement into a readmission agreement. On the contrary, the PCA deals with readmission as an aspect of development cooperation, the fight against illegal immigration being an objective of that cooperation. In any event, Article 26(3) and (4) of the PCA is no more than a declaration of the intention to conclude, in the future, a readmission agreement and merely restates the basic principles of international law, whereas readmission agreements (10) concluded by the European Union go much further by putting those principles into concrete terms and by laying down detailed rules on the readmission procedure, the scope, means of evidence etc. Finally, the Commission submits that Article 26 is a provision which enables cooperation to be expanded, of a kind comparable to that stated in Article 49 of the PCA, without changing the nature of the agreement in question. (11)
16. The Commission expresses, finally, its concerns about the unwarranted legal effects which may result from the unlawful addition of Article 79(3) TFEU to the legal bases of the contested decision. The insertion of that article would mean Protocols Nos 21 and 22 applied and thus result in the incompatibility of the procedures governing the adoption of the decision. Thus, that insertion triggers legal uncertainty, both internally – as regards the degree of the exercise of the competences of the European Union itself, under Article 3(2) and (4)2 TFEU, the extent of the respective powers of the EU institutions or the procedural consequences for the adoption of the contested decision – and externally because of the variable geometry in the application of the PCA, a matter which is difficult for the contracting third country to follow.
17. The Commission is anxious to obtain clarification from the Court on these various points so as to inform its current practice in the field but it nevertheless requests the Court, in the event that it should uphold its action, to maintain the effects of the contested decision.
18. Like, in essence, all the parties which intervened to support it, the Council, while it agrees with the Commission on the current case-law with regard to the choice of the legal basis, disputes, for its part, the categorisation of the PCA as a development cooperation agreement within the meaning of the Portugal v Council case-law. External relations between the European Union, its Member States and third countries now take the form of cooperation and partnership that is comprehensive in nature and that cannot be reduced to ‘development cooperation’ alone. That cooperation and partnership are comprehensive to the extent that it is not possible to distinguish, in the agreements which provide for them, a main field which prevails over one or more incidental fields. In those circumstances, it is not the judgment in Portugal v Council which applies but the Court’s classic case-law. (12) It is thus necessary to examine the nature of the commitments undertaken. A corresponding legal basis need be added only where a specific or substantial commitment is made.
19. With regard to the PCA, both its preamble and Article 2 of the PCA show that development cooperation is only one aspect among others of the comprehensive cooperation put in place by it. The PCA does not single out any specific area. In addition, Article 38 of the PCA contains specific obligations relating to transport which go far beyond the mere agreement to cooperate, are of a kind incompatible with the provisions on transport contained in the cooperation agreement between the European Community and the Republic of India on partnership and development (‘the agreement with the Republic of India’), (13) to which the judgment in Portugal v Council relates, and which are not concerned exclusively with the objective of development of the Republic of the Philippines. The insertion of another legal basis specifically related to transport is therefore necessary, in accordance with the requirements laid down by the Court. (14)
20. Regarding readmission, the Council states that the need to add Article 79(3) TFEU arises from the fact that Article 26(3) and (4) of the PCA contains clear legal obligations and even if it is only a matter of restating general principles which are already well established in international law, their inclusion in a bilateral agreement has direct legal consequences. In addition, the commitment in Article 26(4) of the PCA may be regarded as an obligation to use best endeavours, which gives the European Union significant leverage, in the field concerned, to obtain a result from the contracting third State. Similarly, the fact that Article 34(5) of the PCA provides for mutual access of the contracting parties to the programmes put in place by them in environmental matters justifies the addition of Article 191(4) TFEU to the legal bases of the contested decision, since that provision specifically provides for cooperation with third countries in this field. Article 34(2) of the PCA also contains a clear obligation, compliance with which can be pursued by legal means. Contrary to the agreement with the Republic of India which is central to the judgment in Portugal v Council, the PCA therefore contains specific obligations regarding the action to be taken for the protection of the environment.
21. The Council states that it did not deem it necessary to insert other legal bases because it did not identify, in the other provisions of the PCA, areas in which specific, substantial obligations were provided for. As for the alleged unwarranted legal effects, the Council notes that, in accordance with a well-established case-law principle, it is not procedures that define the legal basis of a measure but the legal basis of a measure that determines the procedure to be followed in adopting that measure. (15) In any event, the PCA mentions, in its preamble, the particular situation of the Member States to which Protocols Nos 21 and 22 apply, with the result that, if those Member States do not wish to be bound, qua Member States, by the international obligations covered by Article 79(3) TFEU, they may nevertheless be so bound as separate contracting parties to the mixed agreement. In other words, Article 26(3) of the PCA would not apply to the Member States covered by Protocols Nos 21 and 22 but could be made applicable to those States as a result of their ratification of the agreement as contracting parties. For the same reason, the adoption of separate decisions would not be necessary. Finally, more recently, the case-law of the Court concerning the compatibility of legal bases has been shown to be rather flexible. (16) The Council also shares the Commission’s position as to the necessity of maintaining the effects of the contested decision in the event of its annulment.
22. In its reply, the Commission maintains that the Portugal v Council case-law is also applicable to partnership and cooperation agreements and claims that the provisions and objectives of the PCA and of the agreement with the Republic of India are comparable. While, in accordance with Article 21 TEU, development cooperation agreements must pursue the objectives referred to in that provision, the fact remains that the predominant purpose of such agreements is development cooperation, which cannot be reduced to the mere grant of financial assistance to developing countries. The PCA is indeed an agreement with the predominant purpose of development cooperation, as is apparent inter alia from Title VI thereof. The objective of development is also present in Article 26. In addition, the multiannual programming documents for the Philippines, (17) adopted on the basis of Regulation No 1905/2006, confirm the multi-facetted dimension of development cooperation with that State. The Commission refers to the lack of coherence in the analysis by the Council, which did not regard it as useful to insert other legal bases. It then indicates that it disagrees with the argument that, because those Member States are also parties to the PCA, their common accord was necessary for the adoption of the contested decision, in so far as that decision was adopted by qualified majority and the procedure of adoption by common accord is completely extraneous to the Treaties. Finally, the Commission disputes the relevance of the judgment in Case C-166/07 Parliament v Council cited by the Council which, according to it, did not concern incompatible procedures.
23. In its rejoinder, the Council dwells on the profound changes in the nature of the agreements nowadays negotiated by the European Union with third countries, which now establish more extensive forms of cooperation and envisage effective implementation in the various sectors concerned. Convinced that those agreements differ in nature from that which was the subject of the judgment in Portugal v Council, it thus proposes that the Court take a different stance and considers that each sector must be considered independently of the existence of a programme of development aid. It also states that the obligations contained in the PCA will continue to apply even after the objectives related to development have been attained. It is not provided that the agreement is to expire once the Republic of the Phillipines has complied with the rules and standards laid down in the PCA. Following the same line of reasoning, the Council maintains that the recitals and provisions relating to the observance of human rights, of democratic principles and of the rule of law, and concerning the possible suspension of the agreement owing to the failure to respect such rights or principles, also serve to indicate that the PCA is not a measure that can be reduced to development cooperation policy. In relation to the three sectors under dispute, the Council maintains that the extent of the legal undertakings contained in the PCA requires the addition of the corresponding legal bases, which is not the case for the other sectors affected, marginally, by the agreement. In any event, the case-law concerning main and incidental elements cannot be applied to provisions falling within Title V of the FEU Treaty without disregarding Protocols Nos 21 and 22.
B – The relevant case-law as it stands and the determination of the applicable criterion
24. The parties argued at some depth whether the principle laid down by the Court in Portugal v Council was applicable to an agreement such as the PCA. The Council took the view in particular that since the PCA is not a development cooperation agreement, that case-law should not be applied.
25. As a preliminary point, I would like to place the Council’s objections to the application of Portugal v Council in perspective, in order to determine the legal basis of the contested decision. (18) In my opinion, the case-law principle enunciated by the Court in that judgment is merely a specific application, the other side of the same coin, as it were, that coin representing the rules to follow in order to determine the legal bases required for the adoption of a European Union measure.
26. The judgments relied on by the Council are those in which the Court stated that: (a) the choice of a legal basis for a measure may not depend simply on the conviction of its author but must on the contrary rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the measure; and (b) if examination of a measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of these is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the act must be based on a single legal basis – namely that of the predominant purpose – except where 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. (19)
27. In my opinion, the Court was not stating otherwise when it held, in relation to a development cooperation agreement, that the fact that such an agreement contains clauses concerning various specific matters cannot alter the characterisation of the agreement, which must be determined having regard to its essential object – principal or predominant to repeat the terms used in the case-law cited by the Council – and not in terms of individual clauses, provided that those clauses do not impose such extensive obligations concerning the specific matters referred to that those obligations in fact constitute objectives distinct from – and thus not of a secondary or indirect nature – those of development cooperation. (20)
28. Thus, in my opinion, contrary to what was implied by the Council, when determining the legal basis of a measure the test to be applied does not differ according to whether the policy framework is that of development cooperation or another policy.
29. The only nuance – to which I will also have occasion to return – is that development cooperation is defined so broadly at EU level that it is perhaps more difficult to show that, alongside the large number of sectors it can encompass, there remains an objective or there is more than one objective both distinct from those pursued by the development cooperation and inseparably linked to the measure in question.
30. That having been clarified, and the aim of the contested decision being to authorise the signature of the PCA, it is clear that that decision must be read in conjunction with that PCA. Thus it must now be examined whether the PCA amounts, in the light of its context, its objective and its content, to an agreement which has the predominant purpose of development cooperation and can only incidentally – on a secondary basis – have implications in the field of transport, environment or readmission of third-country nationals, or whether the PCA is an agreement in which development cooperation and transport, environment and readmission are inseparably connected.
C – Origins, content and general scheme of the PCA
31. It can be noted, immediately, even if the point is not decisive, (21) that, contrary to the international agreement at issue in Portugal v Council, (22) the PCA does not contain a reference, in its title, to development. The first impression is therefore that of the establishment of a scheme of comprehensive cooperation, as contended by the Council, not subject to limitation, since what is at issue is a framework and cooperation agreement. (23)
32. Made up of 58 articles, the PCA is divided into eight titles concerning, respectively, its nature and scope, political dialogue and cooperation, trade and investment, justice and security cooperation, cooperation on migration and maritime labour, economic and development cooperation and other sectors, the institutional framework, and, lastly, the final provisions.
33. Two major themes emerge from an examination of the preamble, each of which is subsumed within a scheme intended to maintain comprehensive mutual relations between the contracting parties (24) and foster the observance of democratic principles and of human rights. (25) First, the parties manifest their intention to derive mutual benefit from the PCA (26) by underlining areas of mutual interest and shared values. (27) That is expressed inter alia by concerns linked to the promotion of economic and social progress for their peoples and sustainable economic and social development, to the eradication of poverty and the achievement of the Millennium Development Goals, (28) to the promotion of sustainable development and of the combatting of climate change with enhanced cooperation in the field of justice and security, to cooperation in promoting migration and development and the implementation of minimum social standards, and to trade. (29) Second, according to the preamble, the contracting parties also focused on fields with a less evident socio-economic impact but which give expression to a certain number of commitments in order to ensure peace and international security. Thus, the fight against terrorism, against drug trafficking, against serious breaches of international humanitarian law, against weapons of mass destruction and the illicit trade in small arms and light weapons (30) is an abiding concern of the parties.
34. That combination of concerns is confirmed in the wording of the first two articles of the PCA, dealing respectively with the general principles and the aims of cooperation. With regard to the general principles, the commitment to promote sustainable development, to address the challenges of climate change and to contribute to the attainment of the Millennium Development Goals is mentioned shortly after the reference to democratic principles and to human rights as an essential element of the PCA. (31) With regard to Article 2 of the PCA, that provision lists no less than 11 categories of aims pursued by the cooperation and partnership established by the PCA, covering ‘all sectors of mutual interest’ (32) for which the parties undertake to hold a comprehensive dialogue and promote further cooperation between them. The term ‘development’ appears there only in point (h), which amounts to a kind of ‘catch-all’ provision listing ‘all other sectors of common interest’ not, until that point, mentioned in the text. Point (h) mentions no less than 22 different sectors, extending from development cooperation to statistics, while ranging over information and communication technology, cultural and interfaith dialogue and fisheries.
35. Article 29 of the PCA, which falls within Title VI on economic and development cooperation and other sectors, is exclusively concerned with development cooperation. Pursuant to that article, the primary goal of such cooperation is ‘to encourage sustainable development that will contribute to the reduction of poverty and to the attainment of internationally agreed development goals’. (33) The parties undertake to engage in regular dialogue on that topic with regard inter alia to the promotion of human and social development, the attainment of sustained inclusive economic growth, the promotion of environmental sustainability, the enhancement of capacities to integrate into the world economy and the international trading system, the promotion of public sector reform and compliance with the international principles governing the delivery and effectiveness of aid. (34)
36. Alongside that provision specifically concerned with development cooperation, some provisions refer, in isolation, to the concept of development, so that, with regard to certain fields covered by the PCA, the text incidentally links the progress envisaged or the objectives to be attained by the partnership with development. (35)
37. The objective of development of the contracting third country is therefore not fully set out in the PCA. This is evident from a quick comparison with the agreement with the Republic of India. (36) It is not, however, possible on the basis of that finding alone to hold that development cooperation is merely a secondary preoccupation of the PCA. The question must, on the contrary, be asked whether the PCA does not reflect the new approach henceforth taken by the European Union to development cooperation policy.
D – Development cooperation in EU law and the categorisation of the PCA
38. Since the Court has not had the opportunity to rule on development cooperation in the post-Lisbon context, its available case-law on that subject refers to Articles 177 EC to 181 EC and to the even earlier versions of those articles. Under those articles, development cooperation was defined as referring ‘not only to the sustainable economic and social development of those countries, their smooth and gradual integration into the world economy and the campaign against poverty, but also to the development and consolidation of democracy and the rule of law, as well as to respect for human rights and fundamental freedoms, whilst complying fully with their commitments in the context of the United Nations and other international organisations’. (37) The Court has, in addition, taken note of the new direction taken from 2000 onwards towards strengthening the multi-facetted character of development cooperation policy, launched by the Commission communication (38) and then confirmed by the European Consensus of 2006 and by Regulation No 1905/2006. (39) The Court has thus ruled that ‘[w]hile the objectives of current Community development cooperation policy should not be limited to measures directly related to the campaign against poverty, it is none the less necessary, if a measure is to fall within that policy, that it contributes to the pursuit of that policy’s economic and social development objectives’. (40) In addition, the Court has also held that ‘a concrete measure … may be adopted by the Community under its development cooperation policy only if that measure, by virtue both of its aim and its content, falls within the scope of the competences conferred by the EC Treaty on the Community in that field. That is not the case if such a measure, even if it contributes to the economic and social development of the developing country, has as its main purpose the implementation of [another policy sector]’. (41)
39. Article 208 TFEU states that ‘Union policy in the field of development cooperation shall be conducted within the framework of the principles and objectives of the Union’s external action’ and lays down that its primary objective ‘is the reduction and, in the long term, the eradication of poverty’, the European Union also being obliged to take ‘account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries’. Given the reference back to principles and objectives of the European Union’s external action, the reading of Article 208 TFEU must be supplemented by that of Article 21 TEU. In my view – and the parties are not of a different opinion – the case-law concerning those provisions thus remains relevant for the interpretation of Article 208 TFEU, even though that article confines itself to the reduction or eradication of poverty.
40. It must be conceded, as submitted by the Commission, that development cooperation as now defined by EU law is a multi-facetted policy. Within the meaning of the European consensus on development, (42) the essential objective of EU development cooperation is the eradication of poverty in the context of sustainable development, (43) the latter including ‘good governance, human rights and political, economic, social and environmental aspects’. (44) The Council’s position, in that regard, is somewhat surprising, since it maintains that the presence in the PCA of considerations relating to human rights and democratic principles and to the rule of law is additional proof that the PCA cannot be reduced to a development cooperation agreement. The Council itself has underlined the link between sustainable development and those rights and principles in the European consensus on development of which it is – at least in part – the author, (45) and even though the objective of that consensus was to provide ‘for the first time, a common vision that guides the action of the European Union, both at its Member States and Community levels’. (46)
41. When adopting that consensus, the European Union committed itself ‘to promoting policy coherence for development, based upon ensuring that the European Union shall take account of the objectives of development cooperation …, and that these policies support development objectives’. (47) The profoundly multi-facetted dimension is emphasised in so far as the eradication of poverty necessitates, according to the European consensus, the implementation of ‘many development activities from democratic governance to political, economic and social reforms, conflict prevention, social justice, promoting human rights and equitable access to public services, education, culture, health … the environment and sustainable management of natural resources, pro-poor economic growth, trade and development, migration and development, food security, children’s rights, gender equality and promoting social cohesion and decent work’. (48)
42. Thus, in the light of the case-law referred to above and the features of the European consensus on development and notwithstanding the very broad nature of cooperation established and the absence of more pronounced elaboration of the objectives of development of the contracting third party, it appears to me that the content of the PCA is substantially linked to the European Union’s development cooperation policy. The fact that the PCA does not contain any provision as to its own expiry once the Phillipines has complied with the rules and standards provided for in the PCA is irrelevant in that regard. (49)
43. According to the European consensus on development, the areas for European Union action are defined so broadly as to allow a link to development to be established in every case and no matter what the area concerned. (50) As correctly explained by the Council, the European Union’s practice in its relations with less developed countries has evolved significantly and has progressed from being a mere system of financial assistance to the establishment of comprehensive and more elaborate agreements in which reference to ‘mutual’ advantages is not mere diplomatic language and the relationship put in place is much less lopsided and is, thus, more balanced. It is, however, for that reason that, while I can certainly acknowledge the multi-facetted nature of development cooperation, I find it, by contrast, more difficult to regard the legal basis for development cooperation alone as sufficient when so many and varied areas are covered by the same agreement. I call, in that regard, for a certain vigilance, precisely because the determination of the appropriate legal basis ‘has constitutional significance’ (51) for the European Union.
44. Nonetheless, an agreement like the PCA may well affect a multitude of varied fields while remaining within the framework only of the objectives pursued by development cooperation, while the provisions which concern those diverse specific matters are limited to determining the framework for cooperation and are confined to determining the areas of cooperation and to specifying certain of its actions or aspects, whereas those provisions contain nothing that prescribes in concrete terms the manner in which cooperation in each specific area envisaged is to be implemented. (52)
45. In the light of those clarifications, it is nonetheless necessary in my opinion to examine whether, among the numerous and diverse areas envisaged by the PCA, its provisions concerning transport, the environment and the readmission of nationals of third States contribute, within the meaning of the case-law of the Court, ‘to the objectives of economic and social development’ of development cooperation policy and have the principal objective of implementing that policy or if, on the contrary, they prescribe in concrete terms the implementation of cooperation in those specific areas with the result that they constitute, in reality, distinct objectives which are neither secondary nor indirect in relation to the objectives of development cooperation.
E – The addition of legal bases concerning transport
46. Under Article 2(h) of the PCA, transport is among the other sectors of mutual interest referred to. Article 38(1) of the PCA confirms the parties’ intention to cooperate in sectors linked to transport policy, ‘with a view to improving investment opportunities and the movement of goods and passengers, promoting maritime and aviation safety and security, addressing the environmental impact of transport and increasing the efficiency of their transport systems’. The matters to be promoted in the context of cooperation concern the exchange of regulatory information on all means of transport, the exchange of views on European satellite navigation systems, the dialogue in the field of air transport and the continuation of the dialogue supposed to favour regulatory convergence, the dialogue in the field of maritime transport (by the exchange of information on legislation and regulations and the promotion of unlimited access to the international maritime markets, by the effective administration of ports and by the promotion of cooperation of common interest in the field) and, finally, a dialogue relating to the effective implementation of security, safety and pollution implementation standards.
47. Admittedly, as observed by the Council, the PCA is, on this point, more elaborate than the agreement with the Republic of India, which was at issue in Portugal v Council. (53) Nevertheless, no legal conclusion can be drawn from that state of affairs alone, without examining the content of Article 38 of the PCA.
48. First, I note that the transport sector is one of the dimensions of development cooperation policy as defined by the European consensus (54) and that the measures adopted in such a field can indeed be linked to that policy. Article 38 of the PCA is drafted in such a way that a link can easily be established with the objectives pursued by development cooperation. The cooperation which it puts in place has a double dimension, security- and environmental-related. One can easily see that ensuring that the contracting third country respects minimum international standards of transport safety and security should contribute both to the stabilisation and the sustainability of its travel networks and to that country’s smooth and gradual integration into the global economy in that sector.
49. Second, on my reading of Article 38 of the PCA, I take the view, contrary to what is submitted by the Council, that it does not prescribe in concrete terms how cooperation should be implemented in this sector nor allow the identification of any specific obligations on the parties to act, going beyond a mere general obligation to cooperate in the transport sector. I fail to detect any obligations more specific in nature than those contained in the remainder of the agreement, leaving aside the environment and the readmission of third country nationals, which I will examine later. Article 38 of the PCA, far less detailed than Article 91 TFEU, for example, is thus confined to providing for the exchange of information or of views and for dialogue. Article 38 of the PCA also cannot be compared with the provisions at issue in Opinion 1/08, relied upon by the Council, in relation to which the Court judged the addition of the legal basis on transport to be necessary. (55)
50. Thus, the matters expressed in that article, without giving rise to any specific legal obligations or constituting a distinct objective, are consistent with the objectives of development cooperation and fully linked to it. (56) It must therefore be concluded on that point that, as maintained by the Commission, the Council was wrong to insert Articles 91 TFEU and 100 TFEU relating to transport as legal bases of the contested decision.
F – The addition of the legal basis on the environment
51. Article 34 of the PCA concerns the environment and natural resources. That area of cooperation is presented as a sector of mutual interest within the meaning of Article 2(h) of the PCA. It should be noted that other provisions of the agreement refer to topics related to the environment. (57)
52. Cooperation must promote, under Article 34(1) of the PCA, the conservation and improvement of the environment in pursuit of sustainable development. Article 34(2) takes note of the need to conserve and manage in a sustainable manner natural resources and biological diversity. According to Article 34(3), the parties agree that environmental considerations must be integrated into all sectors of cooperation. Finally, Article 34(4) lists the matters in which cooperation is to be continued, or even strengthened, in regional programmes. That applies to awareness-raising with regard to environmental questions and the participation of indigenous populations in sustainable development efforts, capacity-building on climate change adaptation, capacity-building for participating in and implementing multilateral agreements, promotion of environmentally-friendly technologies, products and services, the improvement of natural resources, the management of national parks and protected areas, the prevention of illegal transboundary movement of hazardous waste, the protection of the marine and coastal environment and of the land, the promotion of capacity-building in disaster management and, finally, the promotion of sustainable consumption and production patterns. The PCA also provides that the parties are to encourage mutual access to their programmes. (58)
53. The Council considers that Article 34 of the PCA is a detailed provision without an equivalent in the agreement with the Republic of India at issue in Portugal v Council. It considers that Article 34(2) of the PCA at least contains a clear obligation, compliance with which can be pursued by legal means. Access to programmes and actions of the European Union falls within environmental cooperation with third countries which is provided for in Article 191(4) TFEU.
54. Like the Commission, I find the Council’s position unconvincing. First, Article 34 of the PCA is a provision which is explicitly horizontal since environmental considerations must be taken into account ‘in all activities undertaken by the Parties under this Agreement’. (59) Second, with regard to transport, the topics in relation to which cooperation must occur are merely listed. Contrary to the Council’s argument, I do not think that Article 34(2) of the PCA lays down a clear obligation. The Council submits that that provision is legally enforceable and argues on that basis alone that the addition of the corresponding legal basis can be justified.
55. For my part, I restrict myself to observing that the provisions contained in an international agreement have an undeniable legal effect and that the compliance with international obligations may, clearly, be obtained by using the appropriate mechanisms. The criterion of international enforceability is in my opinion in any event neither relevant or sufficient when deciding on the legal bases of a European Union measure. In addition, that second paragraph is worded in extremely general terms which in principle are indicative of mere declarations of intent. In that regard, I am not of the view that the content of Article 34 of the PCA departs significantly from that of Article 17 of the agreement with the Republic of India at issue in Portugal v Council. (60) Like the Commission, I note the natural link, to which Article 34(1) of the PCA draws attention, between the promotion and conservation of the environment, on the one hand, and sustainable development, on the other. (61) The eradication of poverty, the overriding objective of development cooperation within the meaning of Article 208 TFEU, also has ‘environmental dimensions’. (62) Finally, Article 34(5) of the PCA, when stating that the Parties are to ‘encourage access to their programmes’, does not lay down a legal obligation that is clearly identifiable as separable from development cooperation.
56. It must be concluded on that point that the Council wrongly inserted, as a legal basis for the contested decision, Article 191(4) TFEU relating to the environment, since Article 34 of the PCA does not have the effect of making the environment another essential element of the agreement in question.
G – The addition of the legal basis concerning the readmission of third-country nationals
57. I observe at the outset that the legal difficulties of a procedural nature – real or imaginary – relied on by the Commission cannot, in any event, influence the decision of the Court regarding the determination of the legal basis of the contested decision. First of all, according to settled case-law, it is not procedures that define the legal basis of a measure but the legal basis of a measure that determines the procedures to be followed in adopting that measure. (63)
58. In order to establish whether the insertion of a provision falling under Title V of the FEU Treaty, and thus resulting in the application of Protocols Nos 21 and 22, was necessary, (64) the exact content of the PCA on the subject of migration and readmission must first be rehearsed. Thereafter, I will focus on the relationship of those topics to development cooperation, in order to establish whether a link can be established between, first, the objectives pursued by development cooperation and, second, Article 26 of the PCA. I will then go on to show that the insertion of readmission clauses is part of an established practice which essentially serves the interest of the European Union and I will emphasise the considerable differences between the terms of Article 26 of the PCA and the readmission agreements recently concluded by the European Union. Finally, I shall return briefly to the subject of the effectiveness of Protocols Nos 21 and 22.
1. The content of the PCA
59. First, it should be noted that the preamble to the PCA states that the provisions of the agreement ‘which fall within the scope of Part III, Title V of the Treaty on the Functioning of the European Union bind the United Kingdom and Ireland as separate Contracting Parties, or alternatively, as part of the European Union, in accordance with the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union. The same applies to Denmark, in accordance with the Protocol annexed to those Treaties on the position of Denmark’.
60. Second, Article 26 of the PCA is part of Title V, which deals with cooperation on migration and maritime labour and is headed ‘Cooperation on Migration and Development’. Article 26(1) reaffirms the importance of the management of migratory flows and the parties’ intention to establish a mechanism for dialogue and consultation in all migration-related issues, which must inter alia be included in national development strategies. Cooperation in that field is based, under Article 26(2) of the PCA, on the push-pull factors of migration, the development and implementation of national legislation and practices with regard to protection and the rights of migrants, the development and implementation of legislation and national practices regarding international protection, admission rules and the rights and status of persons admitted, the establishment of a policy to prevent the presence on their territory of a national of the other party who does not fulfil or no longer fulfils the conditions of entry, stay or residence on the territory of the party concerned, the fight against the smuggling and trafficking in human beings, the return of persons under humane and dignified conditions, issues of mutual interest in the field of visas and security of travel documents and of border management and, finally migration and development issues.
61. Article 26(3) of the PCA imposes on each of the contracting parties the obligation to readmit their own nationals who are in a situation of illegal entry, stay or residence on the territory of one of the other parties. That readmission must be carried out upon request of the contracting party concerned ‘without undue delay once nationality has been established and due process … carried out’. Provision is also made for the making available of the necessary documents and for communication between the competent authorities of the requesting State and the requested State. Reference is also made to the case where a person is deprived of their identity document.
62. Finally, Article 26(4) of the PCA shows that the parties have agreed to conclude a readmission agreement as soon as possible, which must at least include a provision on the readmission of nationals of other countries concerned by the PCA and of stateless persons.
2. Migration and development cooperation policy
63. Under the terms of the European consensus on development, the attainment of the Millennium Development Goals requires the implementation of ‘many development activities … including migration and development’ (65) and an in-depth political dialogue will take place on ‘the fight against illegal migration’. (66) The concern is ‘to make migration a positive factor for development’, (67) which must constitute ‘the most effective long-term response to forced and illegal migration’ (68) and the Commission is also called upon inter alia to include migration and refugee issues in country and regional strategies and partnerships with interested countries. (69)
64. Regulation No 1905/2006 adopted by the European Parliament and by the Council on the basis only of Article 179(1) EC provides for implementation of thematic programmes including migration. Recital 16 refers to the objectives set out by the European Council in Brussels, namely to intensify Community financial assistance in areas concerning or related to migration in respect of its relations with third countries. That objective is set out in Article 5(2)(i) of Regulation No 1905/2006 which provides for ‘fostering cooperation and policy reform in the field of migration and asylum with partner countries and promoting capacity-building initiatives to ensure the formulation and implementation of pro-development migration policies to address the root causes of migration’. (70)
65. It thus seems a priori possible to consider that a measure which is intended to combat illegal immigration also contributes to the attainment of the objectives of development cooperation policy. It remains however to be established whether such a link can be established with regard to the aforesaid readmission clauses.
3. Article 26 of the PCA in the light of previous practice
66. The inclusion, in cooperation agreements concluded by the European Union, of provisions concerning the readmission of third-country nationals and providing for the subsequent conclusion of a readmission agreement is not new but is consistent, on the contrary, with previous practice. A Council document of 1999 on the consequences of the entry into force of the Treaty of Amsterdam (71) shows the Council’s intention, since 1995, to establish a link between the repatriation of persons unlawfully present on the territory of a Member State and the conclusion of European association and cooperation agreements, and indicates agreement on the clauses to be inserted in such agreements. The document of 1999 proposes to adapt the readmission clauses to the then new legal framework, stating that ‘the Community objectives in the area of immigration policy also include the repatriation of persons illegally resident in a Member State’. It is interesting to note that, at that time, readmission clauses are not described as serving an objective of development cooperation policy. (72)
67. It is true that Article 26 of the PCA, which is precisely that readmission clause, signals a marked change in the wording used in that agreement. The use of the present indicative suggests that, far from only listing the sectors of cooperation, Article 26 of the PCA clearly establishes obligations on the parties corresponding to specific legal obligations. That article is more detailed than the provisions concerning transport or the environment, to name but them. There is in my opinion in Article 26 a clear distinction between paragraphs 1 and 2 – which are rather in tune with the remainder of the PCA, that is to say provide for declarations of intent or undertakings to cooperate on specific subjects, but without really specifying the methods of cooperation or the results to be attained – and paragraphs 3 and 4. The latter are clearly different in that they lay down a clear and unambiguous obligation (73) and specifically anticipate the results to be achieved (‘the Phillipines shall admit back’, ‘each Member State shall readmit’) and the instruments to be used subsequently (74) in order to attain a clearly defined legal objective, which is that of extending the obligation to readmit to nationals of third countries and to stateless persons.
68. Thus, contrary to what is submitted by the Commission, the provisions contained in Article 26(3) and (4) of the PCA cannot be reduced to mere declarations of intent made in the context of development cooperation. It is not important whether those readmission principles merely restate the principles of customary international law, as it stands, because their presence in an multilateral agreement clearly has its own legal consequences. In addition, it should be pointed out that the extension of readmission to nationals of third States or to stateless persons is not mandated by international customary law. Article 26(4), by laying down the objective of that extension to be attained by an international agreement, thus goes beyond what is commonly admitted in this context.
69. That asymmetry, this split within Article 26 of the PCA, can be explained if regard is indeed had to the earlier practice to which I have just referred. It is public knowledge that the flow of migrants from the Phillipines to the European Union is much greater that the movement of Union citizens in the other direction. Thus, cooperation in migration matters is structured so as to reflect that lack of symmetry by focusing rather on the protection of migrants, by considering how to ensure equal treatment and the integration of non-nationals in a lawful situation or even how authorisation to reside might be granted for compassionate and humanitarian reasons. These main lines are the subject of Article 26(1) and (2) of the PCA.
70. By contrast, the balance is restored by Article 26(3) and (4) of the PCA which contain provisions which depart from the PCA’s first concern – steady progress in development in the Phillipines – to fulfil one of the European Union’s own objectives and to serve its interests: the commitment by the contracting third country to take back its own nationals who are illegally resident in European Union territory. In the Council’s own opinion, those readmission clauses included in various types of partnership agreements concluded by the European Union constitute important leverage, that is to say a means for the Council to obtain from the contracting third parties something in return which it would find difficult to obtain by other means, that is to say outwith the scope of cooperation, in this case development cooperation, offered by the European Union.
71. The vision promoted in Article 26(3) and (4) of the PCA is thus rather a defensive one which places European Union interests first. The idea is to protect the Union and its Member States from the deficiencies of the contracting third State with regard to management of migratory flows.
72. Admittedly, seen in that way, the link with the objectives pursued by development cooperation appears much more tenuous. Nevertheless, there would not be such a commitment without the overall cooperation put in place by the PCA, the focus of which is on the contracting third country’s development. Applying the case-law principles laid down in point 26 of this Opinion, and for the reasons which I have just rehearsed, it must be held that the readmission clause contained in Article 26(3) and (4) of the PCA, although it contains legal obligations, does not have the effect of making readmission an objective distinct from that pursued by the PCA but, on the contrary, constitutes in the specific context of the negotiation of the development cooperation agreements an objective which is not autonomous, and is thus of a secondary or indirect nature, which does not require the inclusion of its own legal basis.
73. The Council was therefore also wrong to add Article 79(3) TFEU to the legal bases of the contested decision.
74. The Council and the governments which intervened in its support justified their position concerning Article 79(3) TFEU by the need to preserve the effectiveness of Protocols Nos 21 and 22. I therefore now wish to show that, notwithstanding the absence of Article 79(3) TFEU from the legal basis of the contested decision, that effectiveness would be maintained and the Member States concerned by Protocols Nos 21 and 22 would still be able, in an appropriate case and, when the need arises, to assert their rights.
4. The current practice concerning readmission agreements
75. A review of current practice in the field of readmission agreements is useful in the current context in particular in order to ascertain what could be contained in the agreement to come. Two readmission agreements were concluded recently: with Georgia, (75) as mentioned by the Commission, and with Pakistan. (76) Those two agreements were concluded on the legal basis of Article 79(3) TFEU. They are similar in structure and content.
76. Those two agreements refer to the importance of the fight against illegal immigration and the need to put in place rapid and effective procedures on the basis of reciprocity. Readmission concerns both the contracting States’ own nationals and the nationals of third countries and stateless persons. The two agreements also lay down, in a precise and detailed way, the procedure to follow, inter alia concerning the content of the application, the conditions for its submission, the means of evidence for establishing nationality and regarding third-country nationals and stateless persons, the time-limits to be respected for applications, the transfer modalities and modes of transportation of the readmitted persons, the principles and procedures relating to transit operations, the determination of who bears the costs, the principles relating to data protection and contain a non-affectation clause with regard to international law. Those agreements are without doubt more comprehensive than the single provision of Article 26(3) and (4) of the PCA, which therefore cannot, as the Commission has correctly stated, alone be regarded as constituting a readmission agreement.
77. If, as I believe, Article 79(3) TFEU was wrongly included as a legal basis in the PCA, equally it must be stated firmly and unequivocally that the anticipated international agreement, provided for in Article 26(4) of the PCA, cannot be concluded on the basis of development cooperation but must be concluded on the basis of Article 79 TFEU. It is indeed when that agreement is concluded – namely when the European Union is preparing to adopt a measure based on a provision falling under Title V of the FEU Treaty – that the full effectiveness of Protocols Nos 21 and 22 will be ensured, together with the rights of the Member States concerned.
H – Maintenance of the effects of the annulled decision
78. In accordance with the wishes of the parties and in order not to further delay the entry into force of the PCA, the parties’ request should be granted and the Court should make use of the possibility offered to it by Article 264(2) TFEU and maintain the effects of the annulled decision until a new decision is adopted.
VI – Costs
79. Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for them, the applicant must be ordered to pay the costs. In addition, applying Article 140(1) of the Rules of Procedure, the interveners are to bear their own costs.
VII – Conclusion
80. On the basis of the above considerations, I propose that the Court should:
(1) Annul Council Decision 2012/272/EU of 14 May 2012 on the signing, on behalf of the Union, of the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Republic of the Philippines, of the other part;
(2) Maintain the effects of Decision 2012/272 until the adoption of a new decision;
(3) Order the Council of the European Union to pay the costs;
(4) Order the Czech Republic, the Federal Republic of Germany, Ireland, the Hellenic Republic, the Republic of Austria and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.
1 – Original language: French.
2 – OJ 2012 L 134, p. 3.
3 The wording of the provisions which are relevant for the purposes of the present proceedings is that which appears in Council document No 15616/10 of 21 January 2011 (for English version of the document see also document No 15616/10 COR 1 of 25 January 2011). In the course of the present proceedings, the Commission submitted a proposal for a Council decision on the conclusion of the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Republic of the Phillipines, of the other part (COM(2013) 925 final of 18 December 2013), a decision to which the PCA is to be annexed (COM(2013) 925 final Annex I). For the avoidance of doubt, there are some minor variations in the wording of the PCA, as it appears in that document, compared to the text of the PCA that can be found in Council document No 15616/10 of 21 January 2011, on which this Opinion is based.
4 – See COM(2010) 460 final of 6 September 2010.
5 – See document No 5882/11 of 28 January 2011.
6 – According to the Council, that insertion results from a more general reflection by it on the practice to be adopted in relation to international agreements concluded by the European Union and its Member States relating, at least in part, to the provisions of Title V of Part III of the FEU Treaty. On 18 April 2012, Coreper had invited the Council to include the legal bases relating to those provisions and to follow the same approach for the other three framework agreements on partnership being concluded. In a document of 8 May 2012 (doc. 9196/1/12 REV 1), the Council referred to the procedural consequences flowing, in its view, from such an insertion and annexed, inter alia, a declaration by the Commission indicating its disagreement with the insertion of the abovementioned legal bases.
7 – Case C-268/94 [1996] ECR I-6177, paragraph 39.
8 – Joint statement by the Council and the representatives of the governments of the Member States meeting within the Council, the European Parliament and the Commission on European Union Development Policy: ‘The European Consensus’ (OJ 2006 C 46, p. 1).
9 – Regulation (EC) No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation (OJ 2006 L 378, p. 41).
10 – The Commission refers here to the readmission agreement concluded between the European Union and Georgia on the readmission of persons residing without authorisation, the text of which is annexed to the Council decision of 18 January 2011 on the conclusion of that agreement (OJ 2011 L 52, p. 45).
11 – The Commission cites, in that regard, Portugal v Council (paragraph 47).
12 – The Council refers to Opinion 2/00 [2001] ECR I-9713, paragraph 22, and Case C-36/98 Spain v Council [2001] ECR I-779, paragraph 59, Case C-336/00 Huber [2002] ECR I-7699, paragraph 31, Case C-211/01 Commission v Council [2003] ECR I-8913, paragraphs 39 and 40, and Case C-338/01 Commission v Council [2004] ECR I-4829, paragraph 55.
13 – OJ 1994 L 223, p. 24.
14 – The Council refers here to Opinion 1/08 [2009] ECR I-11129.
15 – The Council cites, in that regard, Case C-130/10 Parliament v Council [2012] ECR, paragraph 80.
16 – The Council refers here to Case C-166/07 Parliament v Council [2009] ECR I-7135, paragraph 69.
17 – The Commission refers here to the EC-Philippines strategy paper 2007-2013 (available at http://eeas.europa.eu/philippines/csp/07_13_en.pdf) and the multi-annual indicative programme for the Philippines 2007-2010 (available at: http://eeas.europa.eu/philippines/csp/mip_07_10_en.pdf).
18 – The Council itself similarly altered its approach at the hearing before the Court.
19 – See case-law cited in footnote 12 above.
20 – Portugal v Council, paragraph 39.
21 – See, by analogy, Case C-42/97 Parliament v Council [1999] ECR I-869, paragraph 37).
22 – Which was a cooperation agreement on partnership and development (see footnote 13 of this Opinion. Italics added by the author).
23 – At the hearing and in support of its argument, the Council maintained that it did not accord the Commission a mandate to negotiate an agreement on development cooperation. The Commission disputed that assertion. The file before the Court fails however to provide any additional information concerning that mandate, which was referred to only at the oral hearing.
24 – Recital 2 of the PCA.
25 – Recital 4 of the PCA.
26 – Recitals 15 and 22 of the PCA.
27 – Ibid.
28 – See the resolution adopted by the United Nations on 8 September 2000 entitled 'The Millennium Declaration' (A/55/L.2). See paragraph 6 of the European consensus on development for the eight Millennium Development Goals.
29 – Recitals 5, 6, 17 to 19 and 21.
30 – See recitals 7 to 13 of the PCA respectively. With regard to the latter sector, the Court has already ruled that the fight against the proliferation of small arms and light weapons can be regarded as serving the objectives of development cooperation policy (Case C-91/05 Commission v Council [2008] ECR I-3651).
31 – Article 1(1) and (3) of the PCA. Regarding the concept of essential elements, see Article 53(5)(b) of the PCA.
32 – Introductory sentence of Article 2 of the PCA.
33 – Article 29(1) of the PCA.
34 – Article 29(2) of the PCA.
35 – The PCA refers inter alia to the promotion of growth and development (Article 12), to economic and social development (Articles 26, 28, 40) and to sustainable development (Articles 33 to 35).
36 – See, inter alia, recitals 7 to 10 and the fourth indent of the second subparagraph of Article 1(2) of the agreement with the Republic of India.
37 – Case C-403/05 Parliament v Commission [2007] ECR I-9045, paragraph 56, and Case C-91/05 Commission v Council, paragraph 65.
38 – Commission Communication to the Council and to the European Parliament 'The European Community's Development Policy' (COM(2000) 212 final of 26 April 2000).
39 – See Parliament v Commission, paragraphs 57 and 58 and Case C-91/05 Commission v Council, paragraph 66.
40 – Case C-91/05 Commission v Council [2008] ECR I-3651, paragraph 67.
41 – Ibid., paragraphs 71 and 72.
42 – See above, point 15 of this Opinion.
43 – See paragraphs 5 and 42 of the European consensus on development.
44 – Paragraph 7 of the European consensus on development.
45 – See paragraph 4 of the European consensus on development.
46 – Paragraph 3 of the European consensus on development.
47 – Paragraph 9 of the European consensus on development.
48 – Paragraph 12 of the European consensus on development.
49 – The agreement with the Republic of India was concluded for a period of five years and is automatically renewed on an annual basis (see Article 29 of the agreement with the Republic of India). It does not provide for its expiry from the moment when the development objectives are fulfilled. Article 57 of the PCA is on this point fully comparable to Article 29 of the agreement with the Republic of India, which the Court has nevertheless indeed held to be a development cooperation agreement.
50 – See paragraph 70 et seq. of the European consensus on development.
51 – Opinion 1/08, paragraph 110.
52 – See Portugal v Council, paragraph 45.
53 – See inter alia Article 4(3) of the agreement with the Republic of India.
54 – See paragraph 77 et seq. of the consensus.
55 – Opinion 1/08 related to the General Agreement on Trade in Services (‘GATS’) which covered, inter alia, transport services. Trade in services fell, according to the Court, within ‘the very purpose of the GATS and of those agreements, which, moreover, have a direct and immediate effect on trade in each of the types of services thus affected’ (point 167). In addition, the Court had held that the agreements in question contained ‘a relatively high number of provisions whose effect is to modify both horizontal and sectoral commitments made by the Community and its Member States’ (point 168) and that ‘provisions relating to sectoral commitments concerning transport services, which in some cases involve[d] extension of sectoral limitations to certain new Member States and in some cases introduce[d] such limitations in their regard’ (paragraph 170). It concluded from this that the aspect ‘transport’ of the GATS fell within the sphere of transport policy and not that of the common commercial policy. It is thus clear that Article 38 of the PCA does not have the same impact on the matter and that its legal effects are less pronounced.
56 – See Case C-91/05 Commission v Council, paragraph 65.
57 – See inter alia Articles 27(2), 29(2)(c) and 38(1) of the PCA.
58 – Article 34(5) of the PCA.
59 – See the final part of Article 34(1) of the PCA.
60 – Under the first subparagraph of Article 17(1) of the agreement with the Republic of India ‘[t]he contracting parties recognize the need to take account of environmental protection as an integral part of economic and development cooperation. Moreover, they underline the importance of environmental issues and their will to establish cooperation in protecting and improving the environment with particular emphasis on water, soil and air pollution, erosion, deforestation and sustainable management of natural resources, taking into account the work done in international fora’.
61 – Ensuring environmental sustainability is one of the eight objectives of the Millennium Development Goals: see paragraph 6 of the European consensus on development.
62 – Paragraph 12 of the European consensus on development.
63 – See Case C-130/10 Parliament v Council [2012] ECR, paragraph 80. In the context of the possible implementation of Protocols Nos 21 and 22, see point 40 of the Opinion of Advocate General Bot in Case C-43/12 Commission v Parliament, a case pending before the Court.
64 – The current practice is marked, as stated by the Commission, by much confusion. For example, the Council Decision of 24 July 2006 on the conclusion, on behalf of the European Community, of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention Against Transnational Organised Crime concerning the provisions of the Protocol, in so far as the provisions of this Protocol fall within the scope of Articles 179 and 181a of the Treaty establishing the European Community (OJ 2006 L 262, p. 24) was adopted on the basis of Articles 179 and 181a of the EC Treaty. The Council decision of 21 December 2011 on the signing, on behalf of the European Union, and provisional application of certain provisions of the Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Iraq, of the other part (OJ 2012 L 204, p. 18) was adopted on the basis of Articles 79(3) TFEU, 91 TFEU, 100 TFEU, 192(1) TFEU, 194 TFEU, 207 TFEU and 209 TFEU in conjunction with Article 218(5) TFEU. The Council decision of 14 May 2012 on the signing, on behalf of the Union, of the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and Mongolia, of the other part (OJ 2012 L 134, p. 4) was adopted on the basis only of Articles 79(3) TFEU, 207 TFEU and 209 TFEU in conjunction with Article 218(5) TFEU. The Council Decision of the same day on the signing, on behalf of the Union, of the Framework Agreement on Comprehensive Partnership and Cooperation between the European Union and its Member States, of the one part, and the Socialist Republic of Vietnam, of the other part (OJ 2012 L 137, p. 1) was, for its part, adopted on the basis only of Articles 79(3) TFEU, 91 TFEU, 100 TFEU, 207 TFEU and 209 TFEU in conjunction with Article 218(5) TFEU.
65 – Paragraph 12 of the European consensus on development.
66 – Paragraph 17 of the European consensus on development.
67 – Paragraph 38 of the European consensus on development.
68 – Paragraph 40 of the European consensus on development.
69 – See paragraph 110 of the European consensus on development.
70 – See also Article 16 of Regulation No 1905/2006.
71 – Consequences of the Treaty of Amsterdam on readmission clauses in Community agreements and in agreements between the European Community, its Member States and third countries – Adoption of a Council decision (Document 13409/99 of 25 November 1999).
72 – The Cotonou Agreement adopted, inter alia, on the basis of Article 300 EC, seems to be the first to have provided for a readmission clause on the basis of Article 300 EC in its ‘post-Amsterdam’ wording (see Article 13 of the Partnership Agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 (OJ 2000 L 317, p. 3)). The Court has however not ruled on that practice in general nor on Article 13 of the Cotonou Agreement in particular.
73 – See Article 26(3) of the PCA.
74 – See Article 26(4) of the PCA.
75 – Agreement between the European Union and Georgia on the readmission of persons residing without authorisation (OJ 2011 L 52, p. 47).
76 – Agreement between the European Community and the Islamic Republic of Pakistan on the readmission of persons residing without authorisation (OJ 2010 L 287, p. 52).
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