Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 13 July 2023 (1)

Case C‑551/21

European Commission

v

Council of the European Union

(Action for annulment – Decision (EU) 2021/1117 – Implementing Protocol to the Fisheries Partnership Agreement between the Gabonese Republic and the European Community (2021-2026) – Signing, on behalf of the European Union, and provisional application – Power to sign – Authorisation by the President of the Council – Signing by the Permanent Representative of the Portuguese Republic and Chair of the Committee of Permanent Representatives of the Governments of the Member States (Coreper) – Article 13(2) and sixth sentence of Article 17(1) TEU – Article 218(2) and (5), Articles 220 and 221 TFEU – Commission’s power to ensure the Union’s external representation – Council’s competence to conclude international treaties – Principle of sincere cooperation between the EU institutions – Articles 296 and 297 TFEU – Duty to state reasons – Publication of the authorisation decision)

Table of contents

I.      Introduction

1.        By this action brought under Article 263 TFEU, the European Commission seeks the annulment of Article 2 of Council Decision (EU) 2021/1117 of 28 June 2021 on the signing, on behalf of the European Union, and provisional application of the Implementing Protocol to the Fisheries Partnership Agreement between the Gabonese Republic and the European Community (2021-2026) (2) (‘the contested decision’). Under that provision, the President of the Council is authorised to designate the person(s) empowered to sign the Protocol on behalf of the European Union. In addition, it seeks the annulment of the authorisation, which is based on that provision, of the Permanent Representative of the Portuguese Republic and Chair of the Committee of Permanent Representatives of the Governments of the Member States (Coreper) by the President of the Council to sign the Protocol on behalf of the European Union (‘the contested authorisation’).

2.        The Commission alleges, in essence, that the Council exceeded the limits of its competence and thereby infringed its power to ensure the Union’s external representation under the sixth sentence of Article 17(1) TEU. Article 218(5) TFEU empowers it only to authorise, by decision, the signing of an agreement and, if necessary, its provisional application before entry into force, but not to mandate the signing by a representative. This instead falls within the competence of the Commission.

3.        These questions have not yet been clarified in the Court’s case-law. They concern the preservation of the institutional balance within the European Union in connection with the procedure for the conclusion of international agreements with third States or international organisations as it has stood since the entry into force of the Treaty of Lisbon. The legal practice of the Council at issue did exist long before that. However, it is being challenged for the first time by the Commission in this action, in particular on the ground that the legal situation changed with the Treaty of Lisbon. It is of fundamental importance to clarify the competences in question not only within the institutional framework of the European Union but also from the perspective of third States and international organisations.

II.    Legal framework

A.      The two Vienna Conventions

4.        Article 7 of the Vienna Convention of 23 May 1969 on the Law of Treaties (3) (‘the Vienna Convention on the Law of Treaties’), under the heading ‘Full powers’, provides as follows:

‘1.      A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:

(a)      he produces appropriate full powers; or

(b)      it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.

2.      In virtue of their functions and without having to produce full powers, the following are considered as representing their State:

(a)      Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;

(b)      heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;

(c)      representatives accredited by States to an international conference or to an international organisation or one of its organs, for the purpose of adopting the text of a treaty in that conference, organisation or organ.’

5.        Article 10 of the Vienna Convention on the Law of Treaties, which has the heading ‘Authentication of the text’, provides:

‘The text of a treaty is established as authentic and definitive:

(a)      by such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; or

(b)      failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text.’

6.        Article 11 of the Vienna Convention on the Law of Treaties, which has the heading ‘Means of expressing consent to be bound by a treaty’, states:

‘The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.’

7.        The Vienna Convention on the Law of Treaties applies only to treaties between States. The Vienna Convention of 21 March 1986 on the Law of Treaties between States and International Organisations or between International Organisations (‘the Vienna Convention on the Law of Treaties between International Organisations’), which has not entered into force, contains, in Articles 10 and 11, largely similar provisions governing the authentication of the text and the conclusion of treaties. It does not, however, provide in its Article 7 for any power of representation in virtue of functions in respect of international organisations.

B.      European Union law

1.      TEU

8.        Article 13(2) TEU states:

‘Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation.’

9.        Under the second subparagraph of Article 15(6) TEU:

‘The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.’

10.      Article 17(1) TEU provides inter alia:

‘… With the exception of the common foreign and security policy, and other cases provided for in the Treaties, [the Commission] shall ensure the Union’s external representation. …’

11.      Article 27(2) TEU states:

‘The High Representative shall represent the Union for matters relating to the common foreign and security policy. He shall conduct political dialogue with third parties on the Union’s behalf and shall express the Union’s position in international organisations and at international conferences.’

2.      TFEU

12.      Article 218 TFEU provides, inter alia, as follows:

‘1.      Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.

2.      The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.

3.      The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team.

4.      The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted.

5.      The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.

6.      The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.

Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement:

(a)      after obtaining the consent of the European Parliament in the following cases:

…

(b)      after consulting the European Parliament in other cases …

7.      When concluding an agreement, the Council may, by way of derogation from paragraphs 5, 6 and 9, authorise the negotiator to approve on the Union’s behalf modifications to the agreement where it provides for them to be adopted by a simplified procedure or by a body set up by the agreement. The Council may attach specific conditions to such authorisation.

…

10.      The European Parliament shall be immediately and fully informed at all stages of the procedure.

11.      A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.’

13.      Article 220 TFEU states:

‘1.      The Union shall establish all appropriate forms of cooperation with the organs of the United Nations and its specialised agencies, the Council of Europe, the Organisation for Security and Cooperation in Europe and the Organisation for Economic Cooperation and Development.

The Union shall also maintain such relations as are appropriate with other international organisations.

2.      The High Representative of the Union for Foreign Affairs and Security Policy and the Commission shall implement this Article.’

14.      Article 221 TFEU provides:

‘1.      Union delegations in third countries and at international organisations shall represent the Union.

2.      Union delegations shall be placed under the authority of the High Representative of the Union for Foreign Affairs and Security Policy. They shall act in close cooperation with Member States’ diplomatic and consular missions.’

III. Background to the dispute

15.      On a proposal from the Commission, on 22 October 2015 the Council authorised it to open negotiations with the Gabonese Republic, on behalf of the European Union, in order to conclude a new Implementing Protocol to the Fisheries Partnership Agreement between the Gabonese Republic and the European Community (2021-2026) (the Protocol). That agreement had been concluded in 2007 and provided Community fishermen with fishing opportunities in the waters falling within the sovereignty of the Gabonese Republic. (4)

16.      After those negotiations had been successfully concluded, the Protocol was initialled on 10 February 2021.

17.      On 19 May 2021, the Commission submitted to the Council its Proposal for a decision on the signing, on behalf of the European Union, and provisional application of the Protocol.

18.      Article 2 of the Proposal for a decision reads as follows:

‘The Council Secretariat General shall establish the instrument of full powers to sign the … Protocol, subject to its conclusion, for the person indicated by the Commission.’

19.      The Council rejected the wording submitted in Article 2 of the Proposal for a decision and thereupon adopted the contested decision.

20.      The contested decision reads as follows:

 ‘Article 1

The signing, on behalf of the Union, of the … Protocol … is hereby authorised, subject to [its] conclusion.

 Article 2

The President of the Council is hereby authorised to designate the person(s) empowered to sign the Protocol on behalf of the Union.

 Article 3

The Protocol shall be applied on a provisional basis as from the date of its signature … pending the completion of the procedures necessary for its entry into force.’

21.      By the contested authorisation of 28 June 2021, the President of the Council granted full powers to Mr Nuno Brito, Permanent Representative of the Portuguese Republic to the European Union and Chair of the Committee of Permanent Representatives of the Governments of the Member States (Coreper), and authorised him alone to sign the Protocol on behalf of the European Union.

22.      On 30 June 2021, the General Secretariat of the Council informed the Commission and the Member States by document ST 10307/21 that the signing of the Protocol had taken place and that, pursuant to its Article 24, it applied from 29 June 2021.

IV.    Procedure before the Court and forms of order sought

23.      By document lodged at the Court Registry on 7 September 2021, the Commission brought the present action for annulment.

24.      The Commission claims that the Court should:

–        annul Article 2 of the contested decision;

–        annul the contested authorisation;

–        order the Council to pay the costs.

25.      The Council contends that the Court should:

–        dismiss the action as inadmissible;

–        in the alternative, dismiss the action as unfounded;

–        order the Commission to pay the costs;

–        in the alternative, should the Court grant the claims for annulment, state pursuant to the second paragraph of Article 264 TFEU that the effects of the contested decision and of the contested authorisation are to be considered as definitive.

26.      By order of 26 January 2022, the President of the Court of Justice granted the Czech Republic, the French Republic, Hungary, the Kingdom of the Netherlands and the Portuguese Republic leave to intervene in support of the form of order sought by the Council.

27.      By order of 3 March 2022, the President of the Court of Justice granted the High Representative of the Union for Foreign Affairs and Security Policy (the High Representative) leave to intervene in support of the form of order sought by the Commission.

28.      The Commission, the High Representative, the Council, the Czech Republic, France and Portugal submitted written observations and took part in the hearing held on 8 March 2023. Hungary and the Netherlands only submitted written observations.

V.      Assessment

29.      The Council contests both the admissibility and the substance of the action for annulment.

A.      Admissibility

30.      The Council, supported by Hungary, the Netherlands and Portugal, claims that the action for annulment is inadmissible, in essence, on the ground that the authorisation at issue under Article 2 cannot be severed from the remainder of the contested decision. Its annulment would be liable to alter the substance of that decision.

31.      This is disputed by the Commission, supported by the High Representative.

32.      According to settled case-law, the partial annulment of an EU act is possible only in so far as the elements whose annulment is sought may be severed from the remainder of the act. This is the case only where the partial annulment does not affect the spirit and substance of that act. Review of whether the contested provisions are severable requires consideration of their scope. Only in this way is it possible to assess whether their annulment would alter the spirit and substance of the legal act at issue. This is an objective assessment which is not linked to the (subjective) political intention of the institution which adopted that act. (5)

33.      In Article 1 of the contested decision, the Council authorises the signing of the Protocol and, in Article 3 thereof, it orders that the Protocol is to be applied on a provisional basis. Article 2 authorises the President of the Council to designate the person empowered to sign the Protocol.

34.      The provisions of Articles 1 and 3 of the contested decision thus reflect the (political) decision by the Council to approve the Protocol negotiated by the Commission on the basis of its content and to bring it into force on a provisional basis. The authorisation under Article 2 of the decision to designate the person who is to be granted full powers to sign the Protocol, however, concerns the manner in which the (foreign policy) intention of the European Union vis-à-vis the Gabonese Republic is to be expressed and implemented. Viewed objectively, it cannot be assumed that the legal question of who is to be granted full powers as the representative of the European Union to sign the Protocol could have influenced the Council’s decision whether by the signing it approves the Protocol and orders its provisional application.

35.      It would also have been conceivable for the authorisation and grant of full powers to sign to have taken place subsequently in a separate act. This shows that the provisions of Articles 1 and 3 of the contested decision could persist without Article 2 thereof.

36.      A possible annulment of Article 2 would therefore neither divest Articles 1 and 3 of the contested decision of their regulatory content nor modify that content. Nor would it a fortiori alter the spirit or substance of that decision.

37.      Article 2 of the contested decision is therefore severable from the remainder of the act and may be the subject matter of an action.

38.      It is immaterial in that regard that Article 2 of the contested decision has already been implemented and the Protocol has been signed with binding effect under international law. The dispute has not been resolved because there is a genuine risk of recurrence. On the basis of the legal opinion expressed by the Council, there is no doubt that it would continue to adopt acts comparable with Article 2 of the contested decision in future. (6)

39.      Lastly, the Council’s claim, supported by Hungary, that in the application the Commission identified and attached only the information note from the General Secretariat of the Council of 30 June 2021, but not the contested authorisation of 28 June 2021, must be rejected. That authorisation was neither published nor attached to that information note. Rather, it was communicated to the Commission only in the written procedure as an annex to the Council’s defence.

40.      Consequently, the plea of inadmissibility raised by the Council must be rejected.

B.      Substance

41.      The Commission puts forward two pleas in support of its action. The Council, first, infringed the Commission’s competences (see 1) and, second, infringed its duties to state reasons and to publish the contested decision (see 2).

1.      First plea in law

42.      The first plea in law is divided into two parts, an infringement of the Commission’s competence (sixth sentence of Article 17(1) TEU in conjunction with Article 13(1) and (2) TEU) (first part) and of the principle of sincere cooperation (Article 4(3) TEU) (second part). I will deal with both parts together.

(a)    Unclarified relationship between Article 17 TEU and Article 218 TFEU

43.      The provision made in Article 2 of the contested decision constitutes an infringement of the Treaties within the meaning of the second paragraph of Article 263 TFEU only if the Council should have left it to the Commission pursuant to Article 218(2) and (5) TFEU in conjunction with the sixth sentence of Article 17(1) TEU to designate a representative for the purpose of signing the Protocol. Under Article 218 TFEU the Council does have significant competences in the procedure for the conclusion of international agreements. (7) Under the sixth sentence of Article 17(1) TEU, however, the Commission has the competence, subject to other rules of the Treaties, to ensure the Union’s external representation.

44.      The crucial point at issue is therefore whether the power to designate the person authorised to sign international agreements on behalf of the European Union falls within the Commission’s competence to ensure the Union’s external representation within the meaning of the sixth sentence of Article 17(1) TEU or the Council’s competences in connection with the conclusion of such agreements under Article 218 TFEU.

45.      The answer to this question does not follow explicitly from those Treaty provisions, which have the same legal value, (8) but must be determined by means of interpretation. That interpretation must focus on the relationship between the rules contained in Article 218(2) and (5) TFEU, on the one hand, and the sixth sentence of Article 17(1) TEU, on the other. That relationship has not really been clarified thus far in case-law.

46.      With regard to the sixth sentence of Article 17(1) TEU, the Court has merely found that the Commission’s power of external representation does not entitle it to sign a non-binding addendum to an agreement even if it reflects a Union position or policy already established by the Council. Instead, the Commission requires the Council’s prior approval for that purpose. (9) However, the question at issue here as to whether after authorisation of the signing by the Council the Commission is empowered in general to sign a binding agreement with third States or to designate the person authorised to do so was not settled.

47.      In this case it must be examined in particular whether it can be inferred from the sixth sentence of Article 17(1) TEU that the Commission – as it claims – has the exclusive competence to designate the person having full powers to sign international agreements such as the contested Protocol. To that end, I will first consider the meaning of the concept of ‘the Union’s external representation’, having regard to international law in particular (see b). I will then explain the connection between the sixth sentence of Article 17(1) TEU, on the one hand, and Article 218(2) and (5) TFEU, on the other, taking into account the objectives of those provisions (see c).

(b)    Sixth sentence of Article 17(1) TEU – concept of ‘the Union’s external representation’

48.      EU law does not define the meaning of the concept of ‘the Union’s external representation’. In particular, it does not expressly regulate whether representation includes the signing of international agreements.

49.      Furthermore, there is nothing in the drafting history of the sixth sentence of Article 17(1) TEU to indicate that the authors of the Treaties wished to expand competences in connection with the conclusion of international agreements in favour of the Commission or to limit them to the detriment of the Council. There are no informative travaux préparatoires in this regard. An identical provision governing competence had been included in Article I-26(1) of the Treaty establishing a Constitution for Europe, (10) although the travaux préparatoires do not provide any information regarding the reasons or aims for introducing it or its regulatory content.

50.      Usually, however, a characteristic of representation in a legal sense is that the representative is given full powers by the party represented to take certain actions. (11) These include making declarations of intent. The signing of an international agreement is prima facie  such a declaration of intent.

(1)    Interpretation in the light of international law

51.      This understanding is confirmed by the respective Articles 10 and 11 of the Vienna Convention on the Law of Treaties and of the Vienna Convention on the Law of Treaties between International Organisations. It is evident from those provisions that the signing of such an agreement can establish its definitive text or express consent to be bound by it. In both cases, signing thus reflects a declaration of intent which is typically covered by the power of representation.

52.      The first Vienna Convention applies only to treaties between States and, while the second Convention was signed by the European Union, it has not entered into force. Both Conventions nevertheless largely reflect customary international law. Their provisions can therefore be drawn on as guidance in the interpretation of EU law. (12)

53.      On that basis, the Commission and the High Representative even take the view that the two Vienna Conventions indicate that the sixth sentence of Article 17(1) TEU directly establishes a power of representation for the Commission to sign international agreements.

54.      The question whether a representative of a State is empowered to make a declaration of intent to other States is regulated in the two Vienna Conventions. These draw a distinction, with regard to the two signing functions referred to in Articles 10 and 11 thereof, between persons who have been granted full powers or are entitled to represent, on the one hand, and persons who may be considered as representing their State in virtue of their functions, on the other. A person having full powers must produce ‘appropriate full powers’ or entitlement to represent a State must be apparent from the practice of the States concerned or from other circumstances. (13) Furthermore, certain office holders such as Heads of State, Heads of Government and Ministers for Foreign Affairs are considered as representing their State in virtue of their functions. (14)

55.      For international organisations, however, the Vienna Convention on the Law of Treaties between International Organisations provides only for grant of full powers or entitlement to represent on the basis of the circumstances, but not a power of representation in virtue of functions. (15) It seems that a deliberate decision was taken not to introduce a provision governing a power of representation in virtue of functions in respect of international organisations in order to take account, in particular, of the considerable differences in their structure and rules of representation. (16)

56.      The fact that no provision is made for representation in virtue of functions in the case of international organisations militates against the idea that the sixth sentence of Article 17(1) TEU might directly establish a power of external representation for the Commission.

57.      Nor does a power of external representation for the Commission follow from the practice pursued by the European Union and the States. (17) This has been repeatedly confirmed by the parties to the proceedings. Rather, as is clear from the documentation submitted by the Council, since the entry into force of the Treaty of Lisbon it has maintained its consistent practice whereby it alone designates and authorises a representative to sign international agreements with third States, who is generally the Permanent Representative of the Member State holding the Council Presidency. (18) Only in isolated cases does the Council also grant full powers to a member or official from the Commission services, in addition to one of its representatives, for that purpose. (19) The same holds for the High Representative in matters relating to the CFSP. (20) This consistent practice, which is not expressly regulated in the Treaties (see below, point 71 et seq.) cannot, however, create a precedent that is binding on the EU institutions such as to preclude representation by the Commission. (21)

58.      In accordance with this understanding in the light of international law and this consistent practice, the contested decision also proceeds on the assumption that no full powers or power of external representation for the Commission exists or even follows inherently from the sixth sentence of Article 17(1) TEU, but these powers must first be granted by the Council pursuant to Article 218(2) and (5) TFEU. Accordingly, under Article 2 of that decision, the ‘President of the Council is … authorised to designate the person(s) empowered to sign the Protocol on behalf of the Union’.

59.      Lastly, the insertion of the sixth sentence of Article 17(1) TEU by the Treaty of Lisbon, which entered into force on 1 December 2009, cannot be considered in this respect to be among the other circumstances which establish full powers. (22) It is doubtful whether an amendment of the internal law of a party can constitute such a circumstance. An indication to the contrary is given by the principle enshrined in Article 27 of the two Conventions that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

60.      The question whether the sixth sentence of Article 17(1) TEU requires the Commission or the person designated by it to be authorised to sign thus relates only to the internal EU level. Specifically, it has no bearing on whether the signing of the Protocol by the representative who is granted full powers by the Council was able to produce legal effects in respect of the Gabonese Republic or was irrelevant in the absence of a power of representation. (23)

61.      International law, in particular the two Vienna Conventions, does not therefore provide any information, contrary to the view taken by the Commission and the High Representative, on how the power to sign international agreements is allocated between the Council and the Commission.

(2)    Interpretation in the light of Articles 220 and 221 TFEU

62.      Articles 220 and 221 TFEU might also be relevant to the interpretation of the sixth sentence of Article 17(1) TEU. Article 221(1) TFEU in particular expressly mentions that its delegations ‘represent the Union’.

63.      The provisions of Articles 220 and 221 TFEU have laid down new rules governing inter alia the European Union’s relations with international organisations and third countries since the Treaty of Lisbon, allocating those competences between the Commission and the High Representative. While not being a distinct EU institution for the purposes of Article 13(1) TEU, but a Member of the Commission, the High Representative does have special, distinct competences as a representative of the European Union, particularly in matters relating to the CFSP (Article 18 and Article 27(2) TEU). (24)

64.      Despite the use of the term ‘represent’, Articles 220 and 221 TFEU do not concern the representation of the European Union in the preparation of international agreements, let alone the power to sign such agreements, but merely its diplomatic or consular representation and cooperation with international organisations.

65.      This does not mean, however, that the sixth sentence of Article 17(1) TEU, which was also inserted by the Treaty of Lisbon, and the concept of ‘the Union’s external representation’ contained therein cannot be construed more broadly (see above, point 50). Just as Article 27(2) TEU in conjunction with Articles 220 and 221 TFEU transferred external representation in matters relating to the CFSP fully to the High Representative, the sixth sentence of Article 17(1) TEU could also have expanded the Commission’s competences in connection with the conclusion of international agreements.

(3)    Interim conclusion

66.      Consequently, neither the wording of the sixth sentence of Article 17(1) TEU nor its interpretation in the light of international law or of Articles 220 and 221 TFEU establishes a power of external representation for the Commission to sign international agreements on behalf of the European Union. However, the competence in respect of signing is covered prima facie at the internal EU level by the concept of ‘the Union’s external representation’.

(c)    Article 218(2) and (5) TFEU – authorisation by the Council to sign

67.      The Commission’s competences under the sixth sentence of Article 17(1) TEU exist, however, only subject to ‘other cases provided for in the Treaties’. Such a proviso could follow from Article 218(2) and (5) TFEU and the Council’s competences to conclude international agreements provided for therein.

(1)    Arguments of the parties

68.      According to the Commission and the High Representative, it is clear from the wording, the scheme and the purpose of Article 218(5) TFEU in particular that that provision regulates at the internal EU level only which institution, namely the Council, is to express consent for the negotiated agreement and its signing. The question of who signs such an agreement, however, relates to the Union’s external representation. This is regulated in the more specific provision contained in the sixth sentence of Article 17(1) TEU and, outside the scope of the CFSP, is conferred on the Commission.

69.      The Council, by contrast, interprets Article 218(5) TFEU as covering the competence not only for the authorisation of the signing, but also for the signing itself. The decision to authorise the signing forms a legal continuum with the authorisation to designate the signatory. Article 218(5) TFEU is therefore the more comprehensive provision and more specific than the sixth sentence of Article 17(1) TEU.

70.      In order to answer the question as to which of these two views is correct, I will interpret Article 218 TFEU having regard to its wording and the scheme of its provisions. The drafting history of that article is not instructive for the purposes of the interpretation. (25)

(2)    Assessment

71.      According to the Court’s case-law, Article 218 TFEU constitutes, as regards the conclusion of international agreements, an autonomous and general provision of constitutional scope, in that it confers specific powers on the EU institutions. With a view to establishing a balance between those institutions, it provides, in particular, that agreements between the European Union and one or more third States are to be negotiated by the Commission, in compliance with the negotiating directives drawn up by the Council, and then concluded by the Council, either after obtaining the consent of the European Parliament or after consulting it. The power to conclude such agreements is, however, conferred on the Council subject to the powers vested in the Commission in this field. (26)

72.      The latter proviso in favour of the powers vested in the Commission was contained originally in Article 228(1) of the EEC Treaty (27) and later in Article 300(2) of the EC Treaty, but is not present in Article 218 TFEU. The introduction of the sixth sentence of Article 17(1) TEU reversed the rule/exception relationship, as now the Commission’s powers in this field exist subject to other rules of the Treaties, in particular Article 218 TFEU.

73.      Article 218(2) TFEU stipulates in a general provision inter alia that the Council is to ‘authorise’ the signing of agreements and conclude them. The concept of the conclusion of agreements could encompass the signing.

74.      However, the authorisation of the signing is specifically regulated in Article 218(5) TFEU. Under that provision, the Council must adopt ‘a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force’. Furthermore, under Article 218(6) TFEU, the Council must adopt ‘a decision concluding the agreement’.

75.      Article 218(5) TFEU could be construed to mean that the Council must ‘authorise’ the signing by a person authorised by it. This interpretation would be consistent with the Council’s argument that there is a ‘legal continuum’ between the authorisation of the signing required by Article 218(2) and (5) TFEU and the designation of the person authorised to do so.

76.      It would also take account of the ‘hybrid’ nature of the Council. The Council, in contrast with the other EU institutions, is neither homogenous nor structured in a clear, permanent hierarchy. Rather, under Article 16(2) TEU it is composed of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote, but does not represent the Council as an institution. Such representation is generally provided, as in the present case, by the Member State holding the Council Presidency by rotation in accordance with Article 16(9) TEU. (28) However, in the absence of a general institutional power of representation, it requires an express decision in the individual case.

77.      This interpretation would not mean, moreover, that the Council could not also grant full powers to another institution to sign an international treaty if it considered this appropriate; it would not be obliged to do so, however. As already mentioned in point 57, this sometimes happens in practice.

78.      This interpretation nevertheless fails to find sufficient support either in the wording or in the scheme of the rules laid down in Article 218 TFEU.

79.      Paragraphs (2), (5) and (6) of Article 218 TFEU distinguish between the Council’s competence to conclude an agreement, on the one hand, and its authorisation of the signing of the agreement, on the other. Accordingly, the signing cannot per se be an element of the Council’s competence to conclude international agreements.

80.      In addition, these provisions leave open the question as to who designates the person who signs an international agreement on behalf of the European Union. The fact that the Council merely ‘authorises’ the signing by decision indicates that the signing does not fall within its own competence and that the person granted full powers for that purpose does not have to be designated by the Council itself.

81.      This is also supported by an interpretation of Article 218(2) and (5) TFEU in the light of Article 218(3) TFEU, as advocated by the Commission and the High Representative.

82.      Under Article 218(3) TFEU, outside the scope of the CFSP, the Council, on a recommendation from the Commission, is to adopt a decision authorising the opening of negotiations and nominating the Union negotiator or the head of the Union’s negotiating team. As is recognised in the Court’s case-law (see above, point 68), those individuals generally come from the Commission’s services which prepared the recommendations for the envisaged agreement. The Commission and the High Representative draw from the fact that, under that provision, the Council nominates only the negotiator or the head of the negotiating team (from the Commission) the plausible inference that, in the absence of provision to such effect in Article 218(5) TFEU, it cannot be empowered also to designate the person who is granted full powers to sign the agreement.

83.      Compelling reasons therefore suggest that in such cases the Commission alone may be authorised, pursuant to the sixth sentence of Article 17(1) TEU and in the exercise of its competence in relation to the Union’s external representation, to sign an international agreement or to designate the person empowered to do so.

84.      In the absence of a competence for the Council under Article 218 TFEU to designate the person empowered to sign an international agreement, that power thus falls within the scope of the Commission’s competence to ensure the Union’s external representation under the sixth sentence of Article 17(1) TEU.

(d)    Interim conclusion

85.      The first plea in law must therefore be upheld without there being any need to examine the other arguments put forward by the Commission and the High Representative, in particular regarding a purported infringement of the duty of sincere cooperation under Article 4(3) TEU.

2.      Second plea in law

86.      By the second plea in law, the Commission alleges an infringement of the duties to state reasons and to publish the contested decision in accordance with the second paragraph of Article 296 and Article 297 TFEU (first part) and the duty of sincere cooperation between institutions, based here on the second sentence of Article 13(2) TEU (second part).

87.      This plea in law is manifestly unfounded in its first part.

88.      First, as was stated in points 33 and 34, the regulatory content of Articles 1 to 3 of the contested decision is clear from the wording of those provisions. Second, the authorisation to sign an agreement with a third State is not subject to any duty of publication, as is implicitly acknowledged by the Commission itself in the reply.

89.      The first part of the second plea in law therefore cannot be upheld.

90.      The second part of that plea in law, however, is well founded. As is evident for the reasons explained in connection with the first plea in law, by exceeding the limits of its competence the Council infringed the second sentence of Article 13(2) TEU to the detriment of the Commission.

91.      The action brought by the Commission must therefore be upheld.

92.      The Council’s claim, put forward in the alternative, that the effects of the contested decision and of the contested authorisation are to be maintained pursuant to the second paragraph of Article 264 TFEU, must be dismissed, however.

93.      Pursuant to the second paragraph of Article 264 TFEU, the Court may, if it considers this necessary, state which of the effects of the act which it has declared void are to be considered as definitive. The case-law, on grounds of legal certainty, has deemed this necessary in particular when the immediate effects of the annulment would give rise to serious negative consequences for the parties concerned. (29)

94.      The Council, however, has neither identified any such parties nor set out which serious negative consequences they would have to bear in the event of an annulment. Rather, it confined itself to making a vague reference to legal certainty and to the European Union’s credibility as an international actor.

95.      As the Commission submits and the Council also acknowledges, the annulment of the contested decision and of the contested authorisation relates only to the internal EU level. It has no bearing on the legal effects of the signing of the Protocol and thereby on the proper continuation of the Fisheries Partnership Agreement with the Gabonese Republic. Indeed, the established absence of power of representation by the Council’s representative is not a manifest violation of a rule of fundamental importance within the meaning of Article 46 of both Vienna Conventions that could challenge the validity of the Protocol under international law. Moreover, a subsequent confirmation of the Council’s representative’s signature on behalf of the European Union, within the meaning of Article 8 of both Vienna Conventions, would be sufficient to safeguard legal certainty externally.

VI.    Costs

96.      Under Article 138(1) of the Rules of Procedure of the Court of Justice, 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 Council has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Commission.

97.      Under Article 140(1) of the Rules of Procedure, the Czech Republic, the French Republic, Hungary, the Kingdom of the Netherlands, the Portuguese Republic and the High Representative of the Union for Foreign Affairs and Security Policy are to bear their own costs.

VII. Conclusion

98.      I propose that the Court should:

(1)      Annul Article 2 of Council Decision (EU) 2021/1117 of 28 June 2021 on the signing, on behalf of the European Union, and provisional application of the Implementing Protocol to the Fisheries Partnership Agreement between the Gabonese Republic and the European Community (2021-2026);

(2)      Annul the authorisation, granted by the President of the Council on 28 June 2021, of the Permanent Representative of the Portuguese Republic and Chair of the Committee of Permanent Representatives of the Governments of the Member States (Coreper) to sign that Protocol on behalf of the European Union;

(3)      Order the Council of the European Union to bear its own costs and to pay those incurred by the European Commission;

(4)      Order the Czech Republic, the French Republic, Hungary, the Kingdom of the Netherlands, the Portuguese Republic and the High Representative of the Union for Foreign Affairs and Security Policy to bear their own costs.

1      Original language: German.

2      OJ 2021 L 242, p. 3.

3      United Nations Treaty Series, Vol. 1155, p. 331.

4      Council Regulation (EC) No 450/2007 of 16 April 2007 on the conclusion of the Fisheries Partnership Agreement between the Gabonese Republic and the European Community (OJ 2007 L 109, p. 1).

5      See, to that effect, judgment of 22 November 2022, Commission v Council (Accession to the Geneva Act) (C‑24/20, EU:C:2022:911, paragraphs 47 and 48 and the case-law cited).

6      With regard to the admissibility of actions brought by institutions against measures which had already been implemented or were no longer in force at the time when the actions were brought, see judgment of 24 November 2022, Parliament v Council (Technical measures relating to fishing opportunities) (C‑259/21, EU:C:2022:917, paragraphs 45 to 48 and the case-law cited).

7      See below, point 67 et seq.

8      See the third paragraph of Article 1 TEU and Article 1(2) TFEU.

9      See judgment of 28 July 2016, Council v Commission (C‑660/13, EU:C:2016:616, paragraphs 34 to 38).

10      OJ 2004 C 310, p. 1.

11      See, for example, Article 119(1) and (2) of the Rules of Procedure of the Court of Justice.

12      See, to that effect, judgments of 25 February 2010, Brita (C‑386/08, EU:C:2010:91, paragraphs 40 to 43); of 27 February 2018, Western Sahara Campaign UK (C‑266/16, EU:C:2018:118, paragraphs 47 and 48); and of 26 February 2019, N Luxembourg 1 and Others (C‑115/16, C‑118/16, C‑119/16 and C‑299/16, EU:C:2019:134, paragraph 90).

13      Article 7(1)(a) and (b) of the two Vienna Conventions.

14      Article 7(2) of the two Vienna Conventions.

15      Article 7(3)(a) and (b) of the Vienna Convention on the Law of Treaties between International Organisations.

16      Paragraph 7 et seq., in particular paragraph 12 of the Commentary on Article 7 of the draft Vienna Convention on the Law of Treaties between International Organisations following the thirty-third session of the International Law Commission (ILC), Yearbook of the International Law Commission, 1981, Vol. II, Part Two, pp. 129 and 130.

17      See Article 7(1)(b) of the Vienna Convention on the Law of Treaties; see also Article 7(3)(b) of the Vienna Convention on the Law of Treaties between International Organisations.

18      See also, in relation to fisheries policy for example, the Sustainable Fisheries Partnership Agreement between the European Union, of the one part, and the Government of Greenland and the Government of Denmark, of the other part (OJ 2021 L 175, p. 3); the Sustainable Fisheries Partnership Agreement between the European Union and the Republic of Seychelles (OJ 2020 L 60, p. 5); and the Protocol on the implementation of the Fisheries Partnership Agreement between the European Community and the Republic of Guinea-Bissau (2019-2024) (OJ 2019 L 173, p. 3).

19      See, for example, the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7) and the Agreement on civil aviation safety between the European Union and Japan (OJ 2020 L 229, p. 4).

20      See, for example, the Framework Agreement between the European Union and the United Nations for the Provision of Mutual Support in the context of their respective missions and operations in the field, signed on 29 September 2020 in New York (OJ 2020 L 389, p. 2), which was signed only by a representative of the Council. There was joint signature by a representative of the Council and the High Representative in the case of the Voluntary Partnership Agreement between the European Union and the Socialist Republic of Viet Nam on forest law enforcement, governance and trade (OJ 2019 L 147, p. 3). See also, however, the Agreement between the European Union and the Government of the Socialist Republic of Viet Nam establishing a framework for the participation of Viet Nam in European Union crisis management operations (OJ 2019 L 276, p. 3), which was signed by the High Representative alone.

21      See judgment of 25 October 2017, Commission v Council (WRC‑15) (C‑687/15, EU:C:2017:803, paragraphs 41 and 42 and the case-law cited).

22      See Article 7(1)(b) of the Vienna Convention on the Law of Treaties and Article 7(3)(b) of the Vienna Convention on the Law of Treaties between International Organisations.

23      See Article 8 of the two Vienna Conventions.

24      Under the predecessor provision in Article 26 TEU (Treaty of Amsterdam), the Secretary-General of the Council still held the function of High Representative.

25      See, in particular, the predecessor provision in the first subparagraph of Article 300(2) TEC, which is similar to Article 218(5) TFEU.

26      Judgment of 16 July 2015, Commission v Council (C‑425/13, EU:C:2015:483, paragraph 62).

27      See judgment of 9 August 1994, France v Commission (C‑327/91, EU:C:1994:305, paragraph 28).

28      See Article 15 of the Council’s Rules of Procedure, as amended by Council Decision 2009/937/EU of 1 December 2009 (OJ 2009 L 325, p. 35).

29      Judgment of 1 March 2022, Commission v Council (Agreement with the Republic of Korea) (C‑275/20, EU:C:2022:142, paragraphs 54 and 55, and the case-law cited).

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