European Commission v Council of the European Union (C-161/20)

Contents

Judgment of the Court (Grand Chamber)5 April 2022^note(Action for annulment — Council decision, contained in the act of the Permanent Representatives Committee (Coreper) of 5 February 2020, endorsing the submission to the International Maritime Organisation (IMO) concerning the introduction of life cycle guidelines to estimate well-to-tank greenhouse gas emissions of sustainable alternative fuels — Article 17(1) TEU — External representation of the European Union — Transmission of that submission to the IMO by the Member State holding the Presidency of the Council, on behalf of the Member States and the Commission)In Case C‑161/20,ACTION for annulment under Article 263 TFEU, brought on 14 April 2020,European Commission, represented initially by J.-F. Brakeland, S.L. Kalėda, W. Mölls and E. Georgieva, and subsequently by J.-F. Brakeland, S.L. Kalėda and E. Georgieva, acting as Agents,vCouncil of the European Union, represented by N. Rouam, K. Michoel, T. Haas and A. Norberg, acting as Agents,supported by:Kingdom of Belgium, represented by S. Baeyens and P. Cottin, acting as Agents, and by V. Van Thuyne and W. Timmermans, advocaten,Czech Republic, represented by M. Smolek, J. Vláčil, D. Czechová, K. Najmanová and L. Březinová, acting as Agents,Kingdom of Denmark, represented initially by J. Nymann-Lindegren, M. Jespersen, V. Pasternak Jørgensen and M. Søndahl Wolff, and subsequently by V. Pasternak Jørgensen and M. Søndahl Wolff, acting as Agents,Federal Republic of Germany, represented by D. Klebs and J. Möller, acting as Agents,Hellenic Republic, represented by S. Chala, acting as Agent,French Republic, represented by J.-L. Carré, T. Stéhelin and A.-L. Desjonquères, acting as Agents,Kingdom of the Netherlands, represented by M.K. Bulterman, H.S. Gijzen and J.M. Hoogveld, acting as Agents,Republic of Finland, represented by H. Leppo, acting as Agent,Kingdom of Sweden, represented by O. Simonsson, J. Lundberg, C. Meyer-Seitz, A.M. Runeskjöld, M. Salborn Hodgson, H. Shev, H. Eklinder and R. Shahsavan Eriksson, acting as Agents,THE COURT (Grand Chamber),composed of K. Lenaerts, President, A. Prechal, C. Lycourgos, E. Regan, S. Rodin, I. Jarukaitis, N. Jääskinen and I. Ziemele, Presidents of Chambers, J.-C. Bonichot, M. Safjan, P.G. Xuereb, N. Piçarra, L.S. Rossi (Rapporteur), A. Kumin and N. Wahl, Judges,Advocate General: M. Szpunar,Registrar: M. Longar, Administrator,having regard to the written procedure and further to the hearing on 7 September 2021,after hearing the Opinion of the Advocate General at the sitting on 25 November 2021,gives the following

Judgment

1By its application, the European Commission seeks annulment of the decision of the Council of the European Union contained in the act of the Permanent Representatives Committee (Coreper) of 5 February 2020, endorsing the submission to the International Maritime Organisation (IMO) concerning the introduction of life cycle guidelines to estimate well-to-tank greenhouse gas emissions of sustainable alternative fuels, with a view to its transmission to the IMO by the Presidency of the Council on behalf of the Member States and the Commission (‘the contested decision’).

Legal context

Resolution 65/276

2Resolution 65/276 of the United Nations General Assembly of 3 May 2011 (‘Resolution 65/276’) states:‘The General Assembly,…Acknowledging that it is for each regional organisation to define the modalities of its external representation,Recalling its resolution 3208 (XXIX) of 11 October 1974, by which it granted observer status to the European Economic Community,Recalling also that, consistent with the relevant legal provisions, the European Union has replaced the European Community and is a party to many instruments concluded under the auspices of the United Nations and an observer or participant in the work of several specialised agencies and bodies of the United Nations,…1. …2. Decides to adopt the modalities set out in the annex to the present resolution for the participation of the representatives of the European Union, in its capacity as observer, in the sessions and work of the General Assembly and its committees and working groups, in international meetings and conferences convened under the auspices of the Assembly and in United Nations conferences;…’

Instruments relating to the IMO

3The IMO, established by the Convention on the International Maritime Organisation, signed in Geneva on 6 March 1948 (United Nations Treaty Series, Vol. 289, p. 3), in the version relevant to the present proceedings (‘the IMO Convention’), is a specialised agency of the United Nations with responsibility, inter alia, for the prevention of marine and atmospheric pollution by ships.

4Article 4 of the IMO Convention provides:‘Membership in the Organisation shall be open to all States, subject to the provisions of Part III.’

5All the Member States are parties to the IMO Convention.

6The European Union, however, is not a party to that convention.

7Article 25(a) of that convention provides:‘The [IMO] Council may enter into agreements or arrangements covering the relationship of the Organisation with other organisations …’

8According to Article 66 of that convention:‘The [IMO] may, on matters within its scope, cooperate with other intergovernmental organisations which are not specialised agencies of the United Nations, but whose interests and activities are related to the purposes of the [IMO].’

9On 28 June 1974, the Commission, by an exchange of letters between its President and the Secretary-General of the IMO, entered into a cooperation arrangement with the IMO under Article 229 of the EEC Treaty (‘the 1974 Cooperation Arrangement’). That arrangement, which is still in force, essentially provides that the Secretariat of the IMO and the Commission will cooperate and consult with each other on matters of common interest in accordance with arrangements to be made from time to time between them, will exchange information and will keep each other fully informed of all projected activities and programmes of work which may be of interest to either party. In addition, under that arrangement, the Secretariat of the IMO is to invite the Commission to send observers to conferences convened by the IMO and to meetings of IMO organs which may have a bearing on subjects of interest to the European Union.

10In addition to its principal organs, the Assembly, the Council and the Secretariat, the IMO has five committees, including the Marine Environment Protection Committee (‘MEPC’) and the Maritime Safety Committee, which have decision-making powers in the implementation of conventions adopted under the auspices of the IMO or for which the IMO is otherwise responsible.

11The revised document concerning the organisation and method of work of the Maritime Safety Committee and the MEPC and their subsidiary bodies (MSC-MEPC.1/Circ.5/Rev.1 of 13 June 2018; ‘the MSC-MEPC circular’) provides, in point 1.5, entitled ‘Objectives’:‘The provisions of this document are aimed at achieving the following objectives:…6 to ensure maximum possible participation by all Member States and by organisations with observer status in the work of the Committees and their subsidiary bodies; ……’

12In accordance with Rule 5(3) of the Rules of Procedure of the MEPC, the Secretary-General of that committee is to invite to be represented by observers at each session of that committee at which matters of direct concern to them are on the agenda other intergovernmental organisations with which an agreement or special arrangement has been made, and non-governmental international organisations with which the IMO has established relationships.

Background to the dispute

13The conventions concluded under the auspices of the IMO include the International Convention for the Prevention of Pollution from Ships, signed in London on 2 November 1973, as supplemented by two protocols adopted in 1978 and 1997 (‘the Marpol Convention’). All the Member States are parties to that convention, whereas the European Union is not.

14Under the Marpol Convention, the IMO adopted a number of mandatory measures for the reduction of emissions of greenhouse gases (GHG) from international shipping. Further measures are currently envisaged.

15The MEPC is the decision-making body responsible for the implementation of the Marpol Convention.

16The IMO Council endorsed a decision by the MEPC to establish an Intersessional Working Group on Reduction of GHG Emissions from Ships (‘the ISWG-GHG’), which is required to report to the MEPC during its sessions.

17The MEPC instructed the ISWG-GHG to consider concrete proposals to encourage the uptake of alternative low-carbon and zero-carbon fuels, including proposals for the development of life cycle GHG/carbon intensity guidelines for all relevant types of fuels and incentive schemes for the use of such alternative fuels.

18In connection with that task, at its meeting on 11 to 15 November 2019, the ISWG-GHG invited ‘interested Member States and international organisations to cooperate and submit proposals for draft guidelines on life cycle GHG/carbon intensity for all relevant types of fuels’.

19On 20 December 2019, the Commission sent to the Council a staff working document entitled ‘Union submission to the seventh meeting of the [ISWG-GHG] of the IMO in London from 23 to 27 March 2020 on the introduction of lifecycle guidelines to estimate well-to[-]tank greenhouse gas (GHG) emissions of sustainable alternative fuels to incentivise the uptake of sustainable alternative fuels at global level’ (SWD(2019) 456 final).

20In that working document, the Commission indicated that the submission contained in the annex thereto fell under external exclusive EU competence and that it was presented to the Council with a view to establishing the EU position for its transmission to the IMO. Furthermore, footnote 1 to that working document stated as follows: ‘The submission of proposals or information papers to the IMO, on issues falling under external exclusive EU competence, are acts of external representation. Such submissions are to be made by an EU actor who can represent the Union externally under the Treaty, which for non-[common foreign and security policy (CFSP)] issues is the Commission or the EU Delegation in accordance with Article 17(1) TEU and Article 221 TFEU’.

21Lastly, the subheading of the submission itself mentioned that it was ‘submitted by the European Commission on behalf of the European Union’.

22On 31 January 2020, the Council’s ‘Shipping’ working group decided to propose to Coreper that the document be submitted to the IMO not on behalf of the European Union but in the name of the 27 Member States and of the Commission. Moreover, after having amended, in particular, the subheading of the Commission’s draft submission, it invited Coreper to endorse the amended submission, with a view to its transmission to the IMO by the Presidency of the Council.

23On 5 February 2020, by the contested decision, Coreper endorsed the amended submission (‘the submission at issue’), with a view to its transmission by the Presidency of the Council to the IMO on behalf of the Member States and the Commission.

24By an email of 7 February 2020, the Republic of Croatia, which held the Presidency of the Council at that time, sent the submission at issue to the IMO on behalf of the 27 Member States and the Commission.

Forms of order sought and procedure before the Court

25The Commission claims that the Court should annul the contested decision and maintain the effects of that decision, and order the Council to pay the costs.

26The Council contends that the Court should dismiss the action and order the Commission to pay the costs. In the alternative, in the event that the contested decision is annulled, the Council contends that the Court should maintain the effects of that decision.

27By decisions of the President of the Court of 15 September, 24 September, 25 September, 1 October, 6 October, 8 October and 13 October 2020, the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the French Republic, the Kingdom of the Netherlands, the Republic of Finland and the Kingdom of Sweden were granted leave to intervene in support of the form of order sought by the Council.

The action

The Court’s jurisdiction

28The Hellenic Republic submits in essence that the Commission’s action is based on the premiss, disputed by the Council, that the European Union has observer status at the IMO. Accordingly, in order to rule on this action, the Court would, as a preliminary issue, have to interpret the IMO Convention in order to determine whether or not the European Union has that status. Yet the Court does not have jurisdiction in that respect, since that convention is not part of EU law.

29In that regard, it is sufficient to note first that, as the Advocate General stated in essence in points 44 to 46 of his Opinion, the Hellenic Republic does not dispute the challengeable nature, for the purposes of Article 263 TFEU, of the contested decision. Moreover, the Court has previously declared admissible an action for annulment brought against a decision of Coreper to submit a reflection paper to a commission established by an international agreement, in so far as such a decision is intended to produce legal effects (see, to that effect, judgment of 20 November 2018, Commission v Council (Antarctic MPAs), C‑626/15 and C‑659/16, EU:C:2018:925, paragraphs 59 to 67).

30Secondly, the Hellenic Republic does not dispute that the pleas relied on by the Commission in support of its action relate to the infringement of the Treaties, such infringement being one of the grounds set out in the second paragraph of Article 263 TFEU for bringing an action for annulment in which the Court has jurisdiction.

31Admittedly, the Court does not, in principle, have jurisdiction to review the legality of acts of EU law in the light of provisions of an international agreement to which the European Union is not a party (see, to that effect, judgment of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraph 52 and the case-law cited).

32However, in accordance with settled case-law, when the European Union decides to exercise its powers they must be exercised in observance of the relevant international law (judgments of 24 November 1992, Poulsen and Diva Navigation, C‑286/90, EU:C:1992:453, paragraph 9, and of 20 November 2018, Commission v Council (Antarctic MPAs), C‑626/15 and C‑659/16, EU:C:2018:925, paragraph 127).

33It follows that the Court must take account, in the context of its jurisdiction under, in particular, Article 263 TFEU, of the relevant rules of international law to the full extent necessary in order to dispose of the case before it.

34In this instance, in order to dispose of the present case, it is necessary for the Court to take account of the IMO Convention in order to determine whether or not the European Union has a status within that organisation.

35In those circumstances, the Court has jurisdiction to rule on the Commission’s action.

Substance

36In support of its action, the Commission puts forward two pleas in law. The first plea alleges a breach of Article 3(2) TFEU and, therefore, of the exclusive external competence which the European Union is to have under that provision, in so far as the act to be adopted by a body established by an international agreement ‘may affect common rules or alter their scope’. The second plea alleges a breach of the sixth sentence of Article 17(1) TEU and, therefore, of the institutional prerogatives of the Commission.

37The second plea must be examined first of all.

The second plea in law

–Arguments of the parties

38In support of its second plea, the Commission claims that since the contested decision does not relate to the CFSP, it has the power of external representation of the European Union in accordance with the sixth sentence of Article 17(1) TEU in the present case. It is for that reason, and bearing in mind the exclusive competence of the European Union in the matters covered by the submission at issue, that the Commission had proposed that that submission be presented as being made ‘by the European Commission on behalf of the European Union’.

39The Commission adds that neither the rules applicable to the cooperation with the IMO, including the 1974 Cooperation Arrangement, read in the light of Resolution 65/276, nor the MSC-MEPC circular, in particular point 1.5.6 thereof, precluded that submission from being presented on behalf of the European Union.

40On the contrary, as regards, first, Resolution 65/276, this acknowledges the new institutional framework of the European Union following the entry into force of the Treaty of Lisbon. The resolution specifically states that ‘it is for each regional organisation to define the modalities of its external representation’. Given the general nature of that acknowledgement, the fact that that resolution does not apply to the specialised agencies of the United Nations has no bearing on its relevance for the purposes of ascertaining the position of the European Union and its institutions vis-à-vis those specialised agencies. Moreover, by a joint note verbale of 27 November 2009, the Council and the Commission informed the IMO of the legal consequences stemming from the entry into force of the Treaty of Lisbon, namely that, from 1 December 2009, ‘the European Union will exercise all rights and assume all obligations of the European Community, including its status in the Organisation’ and that ‘consequential changes to representation arrangements will be communicated in due course’.

41Secondly, point 1.5.6 of the MSC-MEPC circular expressly allows for participation by organisations with observer status in the work of the MEPC.

42Yet the Commission notes that, following the adoption of the contested decision, the submission at issue was sent to the IMO by the Presidency of the Council on behalf of the ‘Member States and the Commission’, not on behalf of the European Union.

43In addition, the Council had erred in its view that the European Union’s competence was exclusive only for part of the submission at issue and that the latter had therefore to be regarded as being mixed in nature. If, moreover, the reference to the ‘Commission’ had to be understood as an indirect reference to the European Union, the contested decision would have prevented the Commission from ensuring the European Union’s external representation in respect of that part of that submission.

44In any event, the power of representation of the European Union conferred on the Commission by the Treaties would imply that the Presidency of the Council can never legally represent the European Union or exercise the latter’s external competences. Given that the transmission to the IMO, by email, of the submission at issue constitutes an act of external representation, that act was in breach of Article 17(1) TEU.

45The mere fact that the European Union is not a member of an international organisation in no way authorises a Member State, acting individually in the context of its participation in that international organisation, to assume obligations likely to affect EU rules promulgated for the attainment of the objectives of the Treaty.

46Moreover, according to the Commission, the changes introduced by the Treaty of Lisbon, which gave rise, in particular, to Article 1, Article 17(1) and Article 47 TEU as well as to Article 220 TFEU, affect the way in which the European Community, which became the European Union, participates in the work of the United Nations specialised agencies. In particular, from the entry into force of the Treaty of Lisbon, the European Union has exercised all rights and assumed all obligations of the European Community, including those related to the latter’s status in the international organisations with which the Commission maintained relations pursuant to Article 229 of the EEC Treaty (subsequently Article 302 TEC). Furthermore, those legal changes have since been generally recognised at international level. Indeed, the most prominent manifestation of such recognition is Resolution 65/276.

47According to the Council, supported by the intervening Member States, the second plea in law is unfounded.

–Findings of the Court

48By its second plea, the Commission submits that, in the present case, Article 17(1) TEU confers exclusive competence on the Commission for ensuring the external representation of the European Union, meaning that it was for that institution to transmit the submission at issue to the IMO. It further argues that, since that submission was made in relation to a matter falling under the exclusive competence of the European Union, it should have been presented on behalf of the European Union, and not on behalf of the Member States and the Commission.

49In that regard, it must be stated at the outset that, in so far as the Commission’s argument might be construed as a complaint about the fact that the contested decision authorised the Presidency of the Council to transmit the submission at issue to the IMO not only on behalf of the Member States but also on behalf of the Commission, even though the Commission had objected to this, that argument would be manifestly out of time, having first been put forward only in the reply. Accordingly, it must be considered to be inadmissible.

50As to the substance of the present plea, in the first place, it must be recalled that, according to the actual wording of the sixth sentence of Article 17(1) TEU, with the exception of the CFSP and other cases provided for by the Treaties, which are not relevant to the present case, the Commission is to ensure the external representation of the European Union.

51That provision makes no distinction as to whether the European Union exercises its exclusive external competence in accordance with Article 3(2) TFEU or exercises an external competence that is shared with the Member States, whether together with them or in reliance by the Council on the possibility of the required majority being obtained for the European Union to exercise that external competence alone (see, to that effect, judgment of 20 November 2018, Commission v Council (Antarctic MPAs), C‑626/15 and C‑659/16, EU:C:2018:925, paragraph 126).

52It follows that the Commission’s competence to represent the European Union in the latter’s exercise of its external competence does not depend on the exclusive or shared nature of that external competence, which relates only to internal EU rules that do not bind third States or other international organisations.

53In the second place, while it is true that, as the Commission essentially maintains, the Treaties limit its competence to ensure the European Union’s external representation only in accordance with the derogations expressly mentioned in Article 17(1) TEU, the fact remains that, as has already been recalled in paragraph 32 of the present judgment, when the European Union, as a subject of international law, decides to exercise its powers they must be exercised in observance of the relevant international law.

54First, it is apparent from Article 4 of the IMO Convention that only States may accede to it. Thus, while all the EU Member States are members of the IMO, the European Union itself is not.

55Secondly, it is true that, in accordance with Article 25(a) of that convention, the IMO Council may enter into agreements or arrangements covering the relationship of the IMO with other organisations, and that, according to Article 66 of that convention, the IMO may, on matters within its scope, cooperate with other intergovernmental organisations which are not specialised agencies of the United Nations, but whose interests and activities are related to the purposes of the IMO.

56It is in that context moreover that the Commission entered into the 1974 Cooperation Arrangement with the IMO on the basis of Article 229 of the EEC Treaty, that arrangement providing, inter alia, for the Commission to be able to participate as an observer in the work of the IMO and enabling the Commission, therefore, to transmit, in its own name, submissions to that organisation.

57However, it is common ground that neither the Community nor the Union which replaced it entered into an arrangement with the IMO; accordingly, the European Union does not have any status within the IMO.

58It is apparent from the documents in the case file and the arguments put forward at the hearing that the IMO bodies consider, on the basis of the legislation applicable to that organisation, that only intergovernmental organisations with which the IMO has made an agreement may participate in its work, including by lodging submissions concerning the adoption of legal acts. It was on the basis of that consideration that, on 14 February 2005, the Secretary-General of the IMO declined a submission presented by the Kingdom of the Netherlands, on behalf of the Community, in response to an invitation by the IMO to intergovernmental organisations, on the ground that the Community was not a member of the IMO and did not have observer status within that organisation.

59In that context, it is certainly the case, first, that point 1.5.6 of the MSC-MEPC circular provides for the active participation of organisations with observer status in the work of the MEPC; secondly, that, in accordance with Rule 5(3) of the Rules of Procedure of the MEPC, intergovernmental organisations other than the IMO with which an agreement or special arrangement has been made, and non-governmental international organisations with which the IMO has established relationships, may be represented in that committee by observers; and, thirdly, that the submission at issue was transmitted to the IMO in response to the invitation of the ISWG-GHG mentioned in paragraph 18 of the present judgment, which was addressed to ‘interested Member States and international organisations’. Nevertheless, those circumstances do not mean that the European Union, which was not an international organisation with observer status at the IMO and with which the IMO had not entered into any agreement or special arrangement, as has been noted in paragraph 57 of the present judgment, was entitled to make the submission at issue in its own name.

60It follows that, unlike the Commission, which entered into the 1974 Cooperation Arrangement with the IMO, the European Union does not have any basis on which it might itself be able to participate in the work of the institutions and committees of that organisation.

61Moreover, the Commission recognised, in its recommendation to the Council in order to authorise the Commission to open and conduct negotiations with the IMO on the conditions and arrangements for accession by the European Community (SEC(2002) 381 final), that the Community did not have the right to participate in the work of the IMO and that it was therefore in the interest of the Community to accede to the IMO Convention.

62The Commission nevertheless argues that the entry into force of the Treaty of Lisbon, with, in particular, the introduction of the third paragraph of Article 1 and Article 47 TEU as well as Article 220 TFEU, means that the European Union was entitled to act in its own name within the IMO.

63In that regard, first, the third paragraph of Article 1 and Article 47 TEU provide, respectively, that the European Union is to replace and succeed the European Community and that it is to have legal personality. That legal consequence related to the Treaty of Lisbon was communicated to the IMO by the Council and the Commission by a joint note verbale of 27 November 2009 and was taken into account in United Nations General Assembly Resolution 65/276.

64However, apart from the fact that, as the United Nations Secretary-General confirmed in a note of 1 June 2011, that resolution does not apply to the specialised agencies of the United Nations, neither that resolution nor, owing in particular to its unilateral nature, the note verbale of 27 November 2009 can in any event have conferred on the European Union a status within the IMO which the European Community did not have.

65Secondly, as regards Article 220 TFEU, it is true that that provision empowers the European Union to establish ‘all appropriate forms of cooperation with the organs of the United Nations and its specialised agencies’, while Article 229 of the EEC Treaty conferred on the Commission the task of ‘ensur[ing] the maintenance of all appropriate relations with the organs of the United Nations and of its specialised agencies’.

66However, the adoption of Article 220 TFEU did not have the effect that the European Union replaced the Commission as a party to the cooperation agreements made by the Commission pursuant to Article 229 of the EEC Treaty, such as the 1974 Cooperation Arrangement. While, in accordance with the third paragraph of Article 1 TEU, the European Union replaced and succeeded the Community upon the entry into force of the Treaty of Lisbon, neither that provision nor any other provision of the Treaties provided for the European Union to be able to replace the Commission.

67In the third place, the fact that the European Union is not a member of the IMO and has not entered into specific arrangements with the IMO that would enable it to participate in the work of that organisation does not preclude its external competence from actually being exercised in that area.

68For those purposes, first, it must be ensured that the European Union is able to exercise its internal competence and that, in so doing, it defines its own position in accordance with the procedure applicable to the area concerned.

69Secondly, where the European Union is not a member of an international organisation and is therefore precluded by the relevant international law from exercising its external competence within that organisation, that competence may be exercised, inter alia, by the Member States acting jointly, under the duty of sincere cooperation referred to in Article 4(3) TEU, in the interest of the European Union. In that context, the Member States cannot be prevented from transmitting submissions to that organisation, whether these concern areas falling under the exclusive competence of the European Union or a competence which it shares with the Member States (see, to that effect, Opinion 2/91 (ILO Convention No 170), of 19 March 1993, EU:C:1993:106, paragraph 5; judgment of 12 February 2009, Commission v Greece, C‑45/07, EU:C:2009:81, paragraph 31; and Opinion 1/13 (Accession of third States to the Hague Convention), of 14 October 2014, EU:C:2014:2303, paragraph 44).

70In the present case, it is common ground that, following a proposal of the Commission, the Council endorsed the European Union’s submission to the IMO, a submission neither the arrangements for approval nor the content of which are disputed by the Commission, as the latter confirmed at the hearing.

71However, that submission, for the reasons set out in paragraphs 53 to 66 of the present judgment, and irrespective of whether it falls under the exclusive or shared competence of the European Union, could not in any event be presented to the IMO in the name of the European Union without an infringement of the rules governing the work of that organisation. The Council was therefore fully entitled to consider that the submission at issue was required to be presented by the Member States in their own names, acting jointly in the interest of the European Union.

72As regards, in the fourth and last place, the Commission’s argument that the Republic of Croatia could not transmit the submission at issue without infringing the external competence of the European Union and the Commission’s power of external representation, it is true that the mere fact that the European Union is not a member of an international organisation does not authorise a Member State, acting individually in the context of its participation in an international organisation, to assume obligations likely to affect EU rules promulgated for the attainment of the objectives of the Treaty (judgment of 12 February 2009, Commission v Greece, C‑45/07, EU:C:2009:81, paragraph 30).

73However, in the present case, it is apparent from the email sent to the IMO by the Republic of Croatia on 7 February 2020 that the Republic of Croatia, acting on behalf of the Member States and the Commission, did no more than transmit to the IMO the submission of the Member States and the Commission that is at issue.

74Admittedly, given the relationship established by the Commission with the IMO under the 1974 Cooperation Arrangement and in so far as the relevant international law does not appear to preclude it, the Member States would have been able to give the Commission the task of ensuring their representation in their joint exercise, in the interest of the European Union, of an external competence which the European Union was precluded from exercising under the applicable rules of the IMO Convention.

75However, there is no provision in the Treaties that requires the Member States to give the Commission the task of ensuring their representation, even where the relevant international law does not preclude it.

76Indeed, as the Advocate General stated, in essence, in point 84 of his Opinion, aside from the exceptions expressly referred to in Article 17(1) TEU, that provision confers on the Commission exclusive competence to ensure only the representation of the European Union and not that of the Member States, including when they are acting jointly in the interest of the European Union.

77It must therefore be held that the Member States remain free to decide on a case-by-case basis on the modalities of their own external representation, including when acting jointly in the interest of the European Union. For those purposes, there is nothing to prevent those States from mandating, from among themselves, the Member State which holds the Presidency of the Council, in so far as that Member State is acting neither individually nor in the name of the European Union.

78In the light of all of the foregoing, the second plea must be rejected.

The first plea in law

79The Commission puts forward its first plea only in order to establish that the European Union had exclusive competence in the present case and that, therefore, the submission at issue should have been presented on behalf of the European Union.

80However, for the reasons indicated in paragraphs 51, 52 and 54 of the present judgment, regardless of the nature – exclusive or shared – of the external competence of the European Union in respect of the submission at issue, the European Union could not in any event itself have presented that submission to the IMO in accordance with the relevant international law.

81Consequently, as the Advocate General also noted, in essence, in point 97 of his Opinion, the first plea in law is ineffective and must therefore be rejected.

82Since neither plea in law has been upheld, the action must be dismissed.

Costs

83Article 138(1) of the Rules of Procedure of the Court of Justice provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Council, in accordance with the form of order sought by the Council.

84In addition, under Article 140(1) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs. Consequently, the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the French Republic, the Kingdom of the Netherlands, the Republic of Finland and the Kingdom of Sweden shall bear their own costs.

Operative part

On those grounds, the Court (Grand Chamber) hereby:

1.Dismisses the action;

2.Orders the European Commission to bear its own costs and to pay those incurred by the Council of the European Union;

3.Orders the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the French Republic, the Kingdom of the Netherlands, the Republic of Finland and the Kingdom of Sweden to bear their own costs.

Delivered in open court in Luxembourg on 5 April 2022.