conservation of marine biological resources related to fisheries, by submitting a
written contribution to the tribunal.
37 On the contrary, according to others, the
Commission could not invoke the exclusive competence, as the opinion dealt with
other issues, such as the liability and responsibility of member States. In a nutshell,
the question of the repartition of the competences between the Commission and the
Council in the context of competences related to the protection of marine environment remains particularly sensitive.
Second, the issue of the representative competence of the Union within other
international organizations emerged within the CCAMLR, which is also a mixed
agreement, for the purpose of the creation of a marine protected area. It is the
Commission, here, that introduced an action on partial annulation against the
decision of the Council on the approval of the submission of a document dealing
with the creation of a protected area in the Weddel sea.
38 The Commission claimed
that: “[a]s, in view of the aim, content and context, the envisaged establishment of a
marine protected area in the Weddell Sea falls within the exclusive Union competence for the conservation of marine biological resources, the Council committed an
error in law by imposing the submission on behalf of the Union and its Member
States and violated Article 3(1)d TFEU.”
39 The case was introduced on 23 November
2015.
40 A second action for annulment under Article 263(2) TFEU was introduced
by the Commission on 20 December 2016, about the decision of the Council of
10 October 2016 dealing with the establishment of the position of the European
Union for the 35th annual meeting of the CCAMLR, about the creation of three new
marine protected areas, in the Weddell sea, the Ross sea and the East Antarctic. The
37 Michel Morin stresses then the bad faith of member States: “en réalité, ce n’est pas le Conseil mais
la Commission qui avait des motifs d’introduire un recours, non contre le Conseil puisque celui-ci
n’a pas participé à l’instance devant le TIDM, mais contre tous les Etats membres qui ont adressé à
ce tribunal des exposés écrits puisque ce sont eux qui ont violé le principe d’attribution des
compétences au sein de l’UE.” Morin (2015), p. 4.
38 Commission Decision of 18.11.2015 concerning the lodging of an action for the partial annulment of the Council Decision of 11 September 2015, as reflected in point 65 of the summary minutes
of 23 September 2015 of the 2554th meeting of the Committee of Permanent Representatives, on the
endorsement of the submission, on behalf of the Union and its Member States, of a reflexion paper
to the Commission for the Conservation of Antarctic Marine Living Resources on the creation of a
future marine protected area in the Weddell Sea. European Commission, Decision C(2015) 8166.
39 Adding: “In addition, even if the envisaged measure would possibly fall within the shared
competence of the Union and the Member States (quod non), the Council failed to properly take
into account that a general decision had already been taken by the Union, i.e. the Union acting
alone, to support the establishment of marine protected areas, and that the envisaged measures may
affect existing Union measures.”
40 Case introduced 23 November 2015, European Commission v Council of the European Union,
Case C-626/15. The Commission invoked the fact that “by considering that competence in the
matter is shared and indicating, consequently, that the reflection document should be decided by
consensus and be submitted on behalf of the European Union and its Member States, the contested
decision is unlawful, in that it thus precludes the Commission from submitting that document on
behalf of the European Union alone, in breach of the European Union’s exclusive competence in the
matter (and of the Commission’s prerogatives to represent the European Union).”
388
P. Ricard
written contribution to the tribunal.
37 On the contrary, according to others, the
Commission could not invoke the exclusive competence, as the opinion dealt with
other issues, such as the liability and responsibility of member States. In a nutshell,
the question of the repartition of the competences between the Commission and the
Council in the context of competences related to the protection of marine environment remains particularly sensitive.
Second, the issue of the representative competence of the Union within other
international organizations emerged within the CCAMLR, which is also a mixed
agreement, for the purpose of the creation of a marine protected area. It is the
Commission, here, that introduced an action on partial annulation against the
decision of the Council on the approval of the submission of a document dealing
with the creation of a protected area in the Weddel sea.
38 The Commission claimed
that: “[a]s, in view of the aim, content and context, the envisaged establishment of a
marine protected area in the Weddell Sea falls within the exclusive Union competence for the conservation of marine biological resources, the Council committed an
error in law by imposing the submission on behalf of the Union and its Member
States and violated Article 3(1)d TFEU.”
39 The case was introduced on 23 November
2015.
40 A second action for annulment under Article 263(2) TFEU was introduced
by the Commission on 20 December 2016, about the decision of the Council of
10 October 2016 dealing with the establishment of the position of the European
Union for the 35th annual meeting of the CCAMLR, about the creation of three new
marine protected areas, in the Weddell sea, the Ross sea and the East Antarctic. The
37 Michel Morin stresses then the bad faith of member States: “en réalité, ce n’est pas le Conseil mais
la Commission qui avait des motifs d’introduire un recours, non contre le Conseil puisque celui-ci
n’a pas participé à l’instance devant le TIDM, mais contre tous les Etats membres qui ont adressé à
ce tribunal des exposés écrits puisque ce sont eux qui ont violé le principe d’attribution des
compétences au sein de l’UE.” Morin (2015), p. 4.
38 Commission Decision of 18.11.2015 concerning the lodging of an action for the partial annulment of the Council Decision of 11 September 2015, as reflected in point 65 of the summary minutes
of 23 September 2015 of the 2554th meeting of the Committee of Permanent Representatives, on the
endorsement of the submission, on behalf of the Union and its Member States, of a reflexion paper
to the Commission for the Conservation of Antarctic Marine Living Resources on the creation of a
future marine protected area in the Weddell Sea. European Commission, Decision C(2015) 8166.
39 Adding: “In addition, even if the envisaged measure would possibly fall within the shared
competence of the Union and the Member States (quod non), the Council failed to properly take
into account that a general decision had already been taken by the Union, i.e. the Union acting
alone, to support the establishment of marine protected areas, and that the envisaged measures may
affect existing Union measures.”
40 Case introduced 23 November 2015, European Commission v Council of the European Union,
Case C-626/15. The Commission invoked the fact that “by considering that competence in the
matter is shared and indicating, consequently, that the reflection document should be decided by
consensus and be submitted on behalf of the European Union and its Member States, the contested
decision is unlawful, in that it thus precludes the Commission from submitting that document on
behalf of the European Union alone, in breach of the European Union’s exclusive competence in the
matter (and of the Commission’s prerogatives to represent the European Union).”
388
P. Ricard