Case C-91/05, Commission v Council

The Commission of the European Communities asked the Court to annul Decision 2004/833 implementing Joint Action 2002/589 with a view to a European Union contribution to ECOWAS in the framework of the Moratorium on Small Arms and Light Weapons and to declare inapplicable, because of its illegality, Title II of Joint Action 2002/589 on the European Union’s contribution to combating the destabilising accumulation and spread of small arms and light weapons and repealing Action 1999/34.

The Grand Chamber of the Court of Justice held that it followed from Art. 46(f) EU that the provisions of the EC Treaty concerning the powers of the Court and the exercise of those powers were applicable to Art. 47 EU. Under Art. 47 EU, none of the provisions of the EC Treaty was to be affected by a provision of the Treaty on European Union. The Court held that it had jurisdiction to consider the action for annulment brought by the Commission under Art. 230 EC and, in that context, to consider the pleas invoked in accordance with Art. 241 EC in so far as they alleged an infringement of Art. 47 EU.

The Court held that a measure having legal effects adopted under Title V of the EU Treaty affected the provisions of the EC Treaty within the meaning of Art. 47 EU whenever it could have been adopted on the basis of the EC Treaty, it being unnecessary to examine whether the measure prevented or limited the exercise by the Community of its competences. The Court reiterated that if it was established that the provisions of a measure adopted under Titles V or VI of the EU Treaty, on account of both their aim and their content, had as their main purpose the implementation of a policy conferred by the EC Treaty on the Community, and if they could properly have been adopted on the basis of the EC Treaty, those provisions infringed Art. 47 EU.
(see Case C-176/03 Commission v Council [2005] and Case C-440/05 Commission v Council [2007]).

If examination of a measure revealed that it pursued a twofold aim or that it had a twofold component and if one of those was identifiable as the main one, whereas the other was merely incidental, the measure must be based on a single legal basis, namely that required by the main aim or component. With regard to a measure which simultaneously pursued a number of objectives or which had several components, without one being incidental to the other, such a measure would have to be founded, exceptionally, on the various corresponding legal bases. However, under Art. 47 EU, such a solution was impossible with regard to a measure which pursued a number of objectives or which had several components falling, respectively, within development cooperation policy and within the CFSP, and where neither one of those components was incidental to the other. Taking account of its aim and its content, the contested decision contained two components, neither of which could be considered to be incidental to the other, one falling within Community development cooperation policy and the other within the CFSP.

The Council therefore had infringed Art. 47 EU by adopting the contested decision on the basis of Title V of the EU Treaty, even though it also fell within development cooperation policy. The contested decision must therefore be annulled. As the decision must be annulled because of its own defects, the Court held that it was not necessary to examine the plea as to the alleged illegality of the contested joint action.

Text of Judgment