Commission v Poland (Protocole n° 36) (Appeal - Annulment - Council's voting rules – Qualified majority - Judgment) [2022] EUECJ C-207/21P (14 July 2022)

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(Appeal – Annulment of Implementing Decision (EU) 2017/1442 – Article 16(4) and (5) TEU – Article 3(2) and (3) of Protocol (No 36) on transitional provisions – Application ratione temporis – Council’s voting rules – Qualified majority)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 April 2021,

European Commission, represented by Ł. Habiak, K. Herrmann, R. Tricot and C. Valero, acting as Agents,

Kingdom of Sweden, represented initially by H. Eklinder, J. Lundberg, C. Meyer-Seitz, A. Runeskjöld, M. Salborn Hodgson, R. Shahsavan Eriksson, H. Shev and O. Simonsson, and subsequently by H. Eklinder, C. Meyer-Seitz, A. Runeskjöld, M. Salborn Hodgson, R. Shahsavan Eriksson, H. Shev and O. Simonsson, acting as Agents,

composed of C. Lycourgos, President of the Chamber, S. Rodin (Rapporteur), J.‑C. Bonichot, L.S. Rossi and O. Spineanu-Matei, Judges,

after hearing the Opinion of the Advocate General at the sitting on 10 March 2022,

1 By the present appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 27 January 2021, Poland v Commission (T‑699/17, EU:T:2021:44; ‘the judgment under appeal’), by which the General Court annulled Commission Implementing Decision (EU) 2017/1442 of 31 July 2017 establishing best available techniques (BAT) conclusions, under Directive 2010/75/EU of the European Parliament and of the Council, for large combustion plants (OJ 2017 L 212, p. 1; ‘the decision at issue’).

‘4. As from 1 November 2014, a qualified majority shall be defined as at least 55% of the members of the Council [of the European Union], comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the [European] Union.

A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.

The other arrangements governing the qualified majority are laid down in Article 238(2) [TFEU].

5. The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions.’

3 Protocol (No 36) on transitional provisions (‘Protocol No 36’) contains, in Title II, entitled ‘Provisions concerning the qualified majority’, Article 3, which is worded as follows:

‘1. In accordance with Article 16(4) [TEU], the provisions of that paragraph and of Article 238(2) [TFEU] relating to the definition of the qualified majority in the European Council and the Council shall take effect on 1 November 2014.

2. Between 1 November 2014 and 31 March 2017, when an act is to be adopted by qualified majority, a member of the Council may request that it be adopted in accordance with the qualified majority as defined in paragraph 3. In that case, paragraphs 3 and 4 shall apply.

3. Until 31 October 2014, the following provisions shall remain in force, without prejudice to the second subparagraph of Article 235(1) [TFEU].

For acts of the European Council and of the Council requiring a qualified majority, members’ votes shall be weighted as follows:

4 Article 13 of Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (OJ 2010 L 334, p. 17), entitled ‘BAT reference documents and exchange of information’, provides in paragraphs 1, 5 and 6:

‘1. In order to draw up, review and, where necessary, update BAT reference documents, the Commission shall organise an exchange of information between Member States, the industries concerned, non-governmental organisations promoting environmental protection and the Commission.

5. Decisions on the BAT conclusions shall be adopted in accordance with the regulatory procedure referred to in Article 75(2).

6. After the adoption of a decision in accordance with paragraph 5, the Commission shall without delay make the BAT reference document publicly available and ensure that BAT conclusions are made available in all the official languages of the [European] Union.’

5 Article 14 of that directive, entitled ‘Permit conditions’, provides in paragraph 3:

6 Article 75 of Directive 2010/75, entitled ‘Committee procedure’, is worded as follows:

2. Where reference is made to this paragraph, Articles 5 and 7 of [Council] Decision 1999/468/EC [of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23)] shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at 3 months.’

7 Article 5 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13), entitled ‘Examination procedure’, provides in paragraphs 1 and 2:

‘1. Where the examination procedure applies, the committee shall deliver its opinion by the majority laid down in Article 16(4) and (5) [TEU] and, where applicable, Article 238(3) TFEU, for acts to be adopted on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in those Articles.

2. Where the committee delivers a positive opinion, the Commission shall adopt the draft implementing act.’

8 Under the first paragraph of Article 12 of that regulation, ‘Decision 1999/468/EC is hereby repealed’.

‘Where basic acts adopted before the entry into force of this Regulation provide for the exercise of implementing powers by the Commission in accordance with Decision 1999/468/EC, the following rules shall apply:

(c) where the basic act makes reference to Article 5 of Decision 1999/468/EC, the examination procedure referred to in Article 5 of this Regulation shall apply …;

(e) where the basic act makes reference to Articles 7 and 8 of Decision 1999/468/EC, Articles 10 and 11 of this Regulation shall apply.’

10 The background to the dispute is set out in paragraphs 8 to 15 of the judgment under appeal and can be summarised as follows.

11 On 9 March 2017, the Commission, in its capacity as chair of the committee established under Article 75 of Directive 2010/75 (‘the committee’), submitted to the committee a draft implementing decision establishing BAT conclusions, under that directive, for large combustion plants and, on 23 March 2017, invited the members of that committee to a meeting scheduled for 28 April 2017, the purpose of which was to proceed to a vote on the opinion relating to that draft implementing decision.

12 On 30 March 2017, the Republic of Poland requested that the committee take a vote on that opinion in accordance with the voting rules laid down in Article 3(3) of Protocol No 36.

13 On 4 April 2017, the Legal Service of the Council sent to the Committee of Permanent Representatives of the Member States an opinion according to which, in essence, in order for a vote on a draft act to be conducted in accordance with the rules applicable before the entry into force of the Treaty of Lisbon, two conditions had to be met, namely, first, the Member State would have had to submit a request to that effect by 31 March 2017 at the latest and, secondly, the vote, which is the subject matter of that request, would also have had to take place before that date.

14 On 10 April 2017, the Commission’s Directorate-General for the Environment refused the Republic of Poland’s request of 30 March 2017 on the ground that the vote on the opinion was scheduled for 28 April 2017, that is to say, after 31 March 2017, the date provided for in Article 3(2) of Protocol No 36.

15 On 28 April 2017, the members of the committee voted in order to adopt an opinion on an amended draft implementing decision. The vote took place pursuant to the voting rules laid down in Article 16(4) TEU and not those laid down in Article 3(3) of Protocol No 36. The vote resulted in a favourable opinion of the committee with regard to that draft text following the positive vote of 20 Member States representing 65.14% of the population of the European Union and 71.43% of the members of that committee. Eight Member States, including the Republic of Poland, cast a negative vote.

16 On 31 July 2017, the Commission adopted the decision at issue, which establishes the BAT conclusions for large combustion plants and imposes, inter alia, emission levels associated with those BATs in respect of emissions of nitrogen oxides (NOx), mercury (Hg) and hydrogen chloride (HCl).

17 By application lodged at the Court Registry on 11 October 2017, the Republic of Poland brought an action for annulment of the decision at issue.

18 By documents lodged at the Court Registry on 4 January 2018 and 15 January 2018, Hungary and the Republic of Bulgaria applied for leave to intervene in support of the form of order sought by the Republic of Poland. By documents lodged at the Court Registry on 16 January 2018 and 25 January 2018, the Kingdom of Belgium, the French Republic and the Kingdom of Sweden applied for leave to intervene in support of the form of order sought by the Commission. By decisions of 19 February 2018 and 21 February 2018, the President of the Third Chamber of the Court (former composition) granted those applications.

19 In support of its action, the Republic of Poland relied on five pleas in law.

20 By the judgment under appeal, the General Court upheld the first plea, alleging infringement of the provisions applicable in relation to a qualified majority, and annulled the decision at issue without examining the other pleas raised by the Republic of Poland.

21 More specifically, in the context of the analysis of the first plea, the General Court examined the scope of Article 3(2) of Protocol No 36 and whether, in order to be able to benefit from the application of the qualified-majority rules provided for in Article 3(3) thereof, which correspond to those laid down by the Treaty of Nice, it sufficed for a Member State to make a request to that effect between 1 November 2014 and 31 March 2017 or whether it was necessary that the decision concerned should also be adopted during that period.

22 In that regard, the General Court, in the first place, in paragraphs 35 and 36 of the judgment under appeal, examined the wording of Article 3(2) of Protocol No 36 and concluded that no language version of that provision made it possible to remove the uncertainty as to its precise scope.

23 In the second place, in paragraph 37 of that judgment, the General Court analysed the drafting history of Article 3(2) of that protocol by examining whether the mandate given to the Intergovernmental Conference which convened with the aim of preparing a draft text of a treaty amending the EU Treaty and the EC Treaty provided any indication which made it possible to clarify the wording of that provision. It concluded that the wording in that mandate was very similar to that of that provision, so that it also did not make it possible to overcome the ambiguity as to the precise scope of the latter.

24 In the third place, the General Court, in paragraphs 38 to 42 of the judgment under appeal, examined whether a teleological interpretation made it possible to determine that scope. In that regard, the General Court observed, first of all, that the objective of Protocol No 36 was, according to its sole recital, ‘to organise the transition from the institutional provisions of the Treaties applicable prior to the entry into force of the Treaty of Lisbon to the provisions contained in that Treaty’.

25 Next, the General Court also observed that Article 3(2) of Protocol No 36 conferred on a Member State the right to request, during the period from 1 November 2014 to 31 March 2017, the application of the rules relating to the definition of the qualified majority laid down in Article 3(3) of that protocol, which correspond to those of the Treaty of Nice. In addition, it found that that right necessarily implied that, following the submission of a request to that effect by a Member State, the vote was to be organised in accordance with those rules, even when that vote took place after 31 March 2017. The General Court took the view that that interpretation alone was capable of ensuring that a Member State was able effectively to exercise the right in question during the entirety of that period, up to the last day of the prescribed period.

26 Lastly, the General Court concluded that any interpretation to the contrary would render ineffective the express setting of a period from 1 November 2014 to 31 March 2017 to exercise the right in question, and would significantly reduce the period in which a vote in accordance with the rules of the Treaty of Nice could actually be requested by a Member State. That court took the view that such an interpretation would mean that a request made at the end of that period would, in practice, be too late to trigger the application of those rules. The Member States would therefore be forced, as the case may be, to make their request much earlier, depending on the – unpredictable – date of the vote, thus depriving the Member States of the possibility of requesting a vote in accordance with the said rules up to the last day of the period laid down in Article 3(2) of Protocol No 36.

27 Accordingly, the General Court held that it followed from a teleological interpretation of Article 3(2) of that protocol that the provisions laid down in Article 3(3) thereof could be applied to a vote held even after 31 March 2017, on condition that their application was requested by a Member State before that date.

28 In the fourth place, the General Court took the view, in paragraphs 43 to 52 of the judgment under appeal, that that interpretation was also supported by a contextual interpretation of Article 3(2) of Protocol No 36. In that regard, the General Court identified and then analysed the three periods relating to the entry into force of the rules relating to the definition of the qualified majority laid down in Article 16(4) TEU.

29 First of all, the General Court observed that, during the period from 1 December 2009 to 31 October 2014, the rules relating to the definition of the qualified majority laid down in Article 3(3) of Protocol No 36, which correspond to those of the Treaty of Nice, applied. Next, it noted that, during the period from 1 November 2014 to 31 March 2017, a member of the Council could request, under Article 3(2) of Protocol No 36, that an act be adopted in accordance with those rules of the Treaty of Nice, failing which the definition of the qualified majority laid down in Article 16(4) TEU applied. Lastly, the General Court stated that, during the period as from 1 April 2017, the qualified majority is defined as provided for in Article 16(4) TEU, without the possibility of requesting a different method for calculating votes.

30 The General Court rejected the Commission’s argument that Article 3(2) of Protocol No 36 was an exception to the rule laid down in Article 16(4) TEU. It concluded that Article 3(2) of that protocol was a transitional provision, as was confirmed by the sole recital of Protocol No 36 as well as by the wording of the title of that protocol and by that of Article 16(5) TEU. In that regard, the General Court observed that its interpretation of Article 3(2) of Protocol No 36, set out in paragraph 27 above, first, complied with the requirement, resulting from settled case-law, according to which a transitional provision must be interpreted strictly and, secondly, was essential in order for a Member State to be able to exercise effectively the right, referred to in paragraph 25 above, up to the last day of the period provided for in Article 3(2) of that protocol.

31 In the fifth and last place, the General Court noted, in paragraphs 53 to 56 of the judgment under appeal, that that interpretation was supported by the principle of legal certainty and that the interpretation advocated by the Commission would not only give rise to a lack of predictability since it would entail, at the end of the transitional period, uncertainty as regards the application in time of the qualified majority as defined in Article 3(3) of Protocol No 36, but could also lead to a circumvention of Article 3(2) of that protocol by setting the date of the vote at a date after 31 March 2017.

32 Taking the view that the rules relating to the definition of the qualified majority laid down in Article 3(3) of Protocol No 36 ought to have been applied at the time of the vote, on 28 April 2017, on the draft decision at issue and that a failure to comply with voting arrangements constitutes an infringement of an essential procedural requirement within the meaning of Article 263 TFEU, the General Court annulled the decision at issue. Moreover, on grounds of legal certainty and in order to prevent a lack of continuity or a decline in the implementation of policies conducted or supported by the European Union, the General Court decided to maintain the effects of the decision at issue until the entry into force, within a reasonable period which could not exceed 12 months from the date of delivery of the judgment under appeal, of a new act intended to replace that decision and adopted in accordance with the qualified-majority rules laid down in Article 3(3) of that protocol.

– reject the first plea in law in the action referred to in paragraph 17 above;

– refer the case back to the General Court for a decision on the second to fifth pleas in law in that action, which were not examined at first instance; and

– reserve the costs relating to the action at first instance and to the appeal.

35 In the alternative, should the Court uphold the appeal and set aside the judgment under appeal, the Republic of Poland claims that the Court should refer the case back to the General Court for a decision on the second to fifth pleas in law in the action referred to in paragraph 17 above.

36 By separate document submitted at the Court Registry at the time when its appeal was lodged, the Commission requested that the present case be determined pursuant to the expedited procedure provided for in Articles 133 to 136 of the Rules of Procedure of the Court of Justice, applicable to appeals pursuant to Article 190(1) of those rules.

37 In support of that request, the Commission observed that, as a result of the General Court’s decision to maintain the effects of the decision at issue until the entry into force of a new act within a period which could not exceed 12 months from the date of delivery of the judgment under appeal, the BATs set out in the decision at issue could apply only until 27 January 2022. In the light of the legal uncertainty thus created as to the conditions for the operation of large combustion plants and in view of the number of operators concerned and the sums invested, it was, in the Commission’s view, necessary to know quickly the outcome of the present appeal and thus to ascertain whether it was in fact necessary to adopt a new act before 27 January 2022. If the Court of Justice were to uphold the appeal, there would be no need to adopt a new implementing decision on the BATs for those plants.

38 It follows from Article 133 of the Rules of Procedure that, at the request of the applicant or the defendant, the President of the Court may, where the nature of the case requires that it be dealt with within a short time, after hearing the other party, the Judge-Rapporteur and the Advocate General, decide that a case is to be determined pursuant to the expedited procedure referred to in those rules.

39 It follows, first of all, from settled case-law that neither the legal uncertainty surrounding the lawfulness or interpretation of an act nor the large number of persons or legal situations potentially concerned are capable, as such, of constituting exceptional circumstances capable of justifying a case being determined pursuant to that procedure (order of the President of the Court of 7 April 2016, Council v Front Polisario, C‑104/16 P, not published, EU:C:2016:232, paragraph 7 and the case-law cited).

40 As regards, next, the fact that the need for the adoption of a new act depends on the outcome of the appeal proceedings, it must be borne in mind that the mere interest of those subject to EU law in determining as quickly as possible the scope of their rights under EU law, while legitimate, is also not such as to establish the existence of an exceptional circumstance capable of justifying a case being determined pursuant to the expedited procedure (see, to that effect, judgment of 28 April 2022, Caruter, C‑642/20, EU:C:2022:308, paragraph 23 and the case-law cited).

41 Lastly, it is settled case-law that economic interests, as important and legitimate as they may be, are not capable of justifying, in themselves, use of that procedure (order of the President of the Court of 16 March 2017, Abanca Corporación Bancaria, C‑70/17, not published, EU:C:2017:227, paragraph 13 and the case-law cited).

42 In those circumstances, on 7 July 2021, the President of the Court decided, after hearing the Judge-Rapporteur and the Advocate General, not to grant the request for an expedited procedure.

43 In support of its appeal, the Commission relies on a single ground of appeal, divided into two parts, alleging, first, infringement of Article 16(5) TEU and, secondly, infringement of Article 16(4) TEU.

44 The Commission submits that the interpretation of Article 3(2) of Protocol No 36 adopted by the General Court in paragraphs 42, 56 and 57 of the judgment under appeal infringes Article 16(5) TEU.

45 In that regard, the Commission argues that, contrary to what the General Court found in paragraph 49 of the judgment under appeal, the wording of Article 16(5) TEU does not raise any doubts as to its interpretation. It submits that that provision does not provide for any transitional period after 31 March 2017, so that, after that date, it is no longer possible to apply the provisions of Protocol No 36 relating to the definition of the qualified majority. However, the interpretation adopted by the General Court would oblige the Commission to apply those provisions after 31 March 2017.

46 The Commission submits that, irrespective of the fact that both the provisions of Article 16 TEU and those of Protocol No 36 are provisions of primary EU law, Article 16 TEU is fundamental in nature, since it defines the subject matter of the rules set out in that protocol and its period of application. It takes the view that the General Court erred in law in that it did not interpret Article 3(2) of Protocol No 36 in such a way as to ensure that that provision is consistent with Article 16(5) TEU.

47 Furthermore, the Commission is of the opinion that a strict interpretation of the transitional provisions and the general principle of legal certainty confirm that the General Court erred in law. In that regard, it notes that procedural rules are applicable on the date on which they enter into force and that it is otherwise only if the new rule is accompanied by special provisions which specifically lay down its conditions of temporal application. Thus, the period of application of transitional provisions should be interpreted strictly in order to reduce the delay in the application of the new provisions.

48 According to the Commission, the question of which qualified majority is to be applied to a vote cannot be artificially separated from the date of that vote, since the method of calculating that majority is one of the elements of the voting arrangements. In its view, the General Court confined itself to analysing, in paragraph 48 of the judgment under appeal, Article 3(2) of Protocol No 36, relying solely on the fact that the Member State concerned had submitted a request under that provision before 31 March 2017. However, the Commission claims that the General Court failed to take account of the effects of that request, namely the application of Article 3(3) of that protocol after 31 March 2017, that is to say, after the date expressly provided for in Article 16(5) TEU. Accordingly, the Commission takes the view that the General Court adopted a broad interpretation of a transitional provision, in this instance Article 3(2) of Protocol No 36, and of the period of validity of Article 3(3) thereof, to which that transitional provision refers.

49 As regards the general principle of legal certainty, the Commission submits that the General Court did not take into account the point of view of all the parties concerned when it interpreted Article 3(2) of Protocol No 36. The Commission argues that, in addition to all the Member States participating in a vote of the committee, the Commission, which is the author of the draft act to be voted on, is also one of the parties concerned, whose rights and obligations stem from a correct definition of the qualified majority at the time of that vote. The Commission notes, first, that it is the chair of the committee and is, in that capacity, responsible for the organisation and conduct of such a vote and, secondly, that it is the addressee of the committee’s opinion, to which the adoption of a draft implementing act or of the other measures referred to in Article 5 of Regulation No 182/2011 is subject.

50 However, in the Commission’s view, the General Court erred in law in taking into account, in paragraphs 53 to 55 of the judgment under appeal, only the interests of a Member State submitting a request under Article 3(2) of Protocol No 36. In that regard, it submits that, in paragraph 55 of the judgment under appeal, the General Court failed to take into account the interest of the Commission and of the other Member States participating in the vote in question from being able to rely on a clearly defined timeframe as regards the application of the transitional provisions. The Commission concludes that the inconvenience resulting from the need for a Member State to take specific measures in sufficient time to ensure the effectiveness of a request submitted under the provision in question should not prevail over the interests of the other parties to the committee procedure and of other persons subject to EU law.

51 The Commission takes the view that the interpretation adopted by the General Court undermines the general principle of legal certainty in that it means that, since the adoption of the Treaty of Lisbon and of Protocol No 36, persons subject to EU law have been unable to predict the period of application of the qualified majority defined in accordance with the rules of the Treaty of Nice. In its view, contrary to that interpretation, the interpretation that the last vote according to that qualified majority could take place on 31 March 2017 is based on a specific date, referred to in Article 16(5) TEU, and complies with the requirement of predictability in that it enables that institution to draw up a draft act with a view to attaining that majority.

52 In addition, the Commission submits that the General Court erred in law in holding, in paragraph 54 of the judgment under appeal, that an interpretation of Article 3(2) of Protocol No 36 which made the application of that provision dependent on the date of the request referred to in that provision was limited in time on the ground that the deliberations leading to the vote brought that application to an end. In its view, that interpretation undermines legal certainty in so far as, by merely defining the period of application of the provision in question, the General Court did not take into account the prolonged validity for an indefinite period of Article 3(3) of Protocol No 36. The Commission argues that the duration of the procedure preceding the date of the final vote depends on numerous external factors which are unforeseeable.

53 The Commission observes that, although the judgment under appeal concerns the voting procedure in the committee, the interpretation of Article 3(2) of Protocol No 36 adopted by the General Court also concerns the voting procedure in the Council in the context of the legislative procedure. That interpretation would mean that a request for a vote in accordance with the qualified majority as defined by the Treaty of Nice as soon as the Commission has initiated a legislative procedure would bind the Council for all votes on the text covered by that procedure, irrespective of the actual number of votes in the Council under Article 294 TFEU and the actual duration of the legislative procedure, which sometimes extends over several years.

54 The Commission takes the view that such an interpretation also poses practical problems on the ground that the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union influences the calculation of the qualified majority as defined in Article 3(3) of Protocol No 36.

55 It adds that the General Court’s reasoning in paragraph 55 of the judgment under appeal, according to which the interpretation advocated by the Commission could lead to a circumvention of Article 3(2) of that protocol by setting the date of a vote after 31 March 2017, is purely speculative.

57 Under Article 16(5) TEU, the transitional provisions relating to the definition of the qualified majority which were applicable until 31 October 2014 and those which were applicable from 1 November 2014 to 31 March 2017 are laid down in Protocol No 36. Article 3(2) of that protocol provides that, between 1 November 2014 and 31 March 2017, when an act is to be adopted by qualified majority, a member of the Council may request that it be adopted in accordance with the qualified majority as defined in Article 3(3) thereof, namely that defined in the EU Treaty prior to the entry into force of the Treaty of Lisbon.

58 In the judgment under appeal, the General Court concluded that Article 3(2) of Protocol No 36 was to be interpreted as meaning that, in order for a draft act to be adopted in accordance with the qualified-majority rules laid down in Article 3(3) of that protocol, it sufficed that the application of those rules be requested by a Member State between 1 November 2014 and 31 March 2017, without it being necessary that the vote on the draft act in question also take place between those dates.

59 By so doing, the interpretation adopted by the General Court did not infringe Article 16(5) TEU.

60 That provision refers, as regards, inter alia, the definition of the qualified majority applicable between 1 November 2014 and 31 March 2017, to Protocol No 36. It is apparent from the wording of Article 3(2) of that protocol that any member of the Council could, during that entire period and therefore until 31 March 2017 inclusive, request the application of the qualified majority as defined in Article 3(3) thereof.

61 Nothing in the wording of Article 16(5) TEU, nor in that of Article 3(2) of Protocol No 36, precludes a vote in accordance with the qualified majority as defined in Article 3(3) of that protocol from taking place after 31 March 2017, provided that a request to that effect was submitted between 1 November 2014 and 31 March 2017. In that regard, it should be noted that the setting of the date of such a vote is, to a very large extent, beyond the control of the individual members of the Council.

62 It is true, as the Commission has observed, that Article 16(5) TEU and the protocol to which it refers should be applied in a manner which observes the general principles of EU law, including the principle of legal certainty, and which ensures, by a strict interpretation of the transitional arrangement laid down in Article 3(2) of that protocol, that the applicability of that arrangement is not extended beyond the period from 1 November 2014 to 31 March 2017.

63 However, contrary to the Commission’s submission, the scope conferred by the General Court on those provisions meets those requirements.

64 As regards, first, the general principle of legal certainty, it must be borne in mind that that principle requires that rules of law be clear and precise and that their application be foreseeable for those subject to the law (judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 223 and the case-law cited).

65 In that regard, it must be stated that, as the Advocate General observed in point 56 of his Opinion, the General Court’s assessment of the scope of Article 3(2) of Protocol No 36 clarifies that provision in a manner which ensures the predictability of the applicable voting arrangements. According to that assessment, when a request under Article 3(2) of that protocol was submitted between 1 November 2014 and 31 March 2017, all the parties concerned were in a position to know the voting arrangements as soon as that request was made. By contrast, the interpretation advocated by the Commission would deprive Article 3(2) of Protocol No 36 of part of its effectiveness since even a request submitted during the period referred to in that provision would not ensure that a vote within the committee would be organised in accordance with the rules of the Treaty of Nice. Consequently, the parties concerned would not be in a position to know the applicable voting arrangements until a voting date is set by the chair of the committee, which would, in breach of the principle of legal certainty, make the application of those rules subject to the discretion of that chair.

66 Secondly, as the Advocate General observed in point 54 of his Opinion, the assessment of the General Court does not have the effect of indefinitely prolonging the transitional period between 1 November 2014 and 31 March 2017, provided for in Article 16(5) TEU and Article 3(2) of Protocol No 36. According to that assessment, only requests submitted on 31 March 2017 at the latest and concerning a draft EU act already proposed but not yet approved could trigger the application of the voting rules laid down in Article 3(3) of that protocol. The possibility that the vote on such a draft act could take place after 31 March 2017 is inherent in the transitional arrangement provided for in Article 3(2) of Protocol No 36, which is based on the date of submission of the request for the application of those voting rules and not on the date on which that vote takes place. It is thus clear that the General Court adopted a strict interpretation of that transitional arrangement by resorting to a reading which is faithful to the wording of Protocol No 36, to which Article 16(5) TEU refers. It cannot therefore be alleged that the General Court extended the period of the arrangement in question beyond that which follows inherently from what was set out by the authors of the Treaty of Lisbon in that protocol.

67 Those considerations cannot, as the Advocate General stated in points 58 and 59 of his Opinion, be called into question by the Commission’s argument relating to the consequences of the withdrawal of the United Kingdom from the European Union. It is sufficient, in that regard, to state that neither an event subsequent to the adoption and entry into force of Protocol No 36 as well as to the vote which led to the adoption of the decision at issue nor the practical consequences of that withdrawal are relevant circumstances for the purpose of interpreting the provisions of that protocol.

68 It follows from the foregoing that the interpretation of Article 3(2) of Protocol No 36 adopted by the General Court in paragraphs 42, 56 and 57 of the judgment under appeal does not infringe Article 16(5) TEU.

69 It follows from all the foregoing considerations that the first part of the single ground of appeal must be rejected as unfounded.

70 The Commission submits that the interpretation of Article 3(2) of Protocol No 36 adopted by the General Court in paragraphs 42, 56 and 57 of the judgment under appeal limits the effectiveness of Article 16(4) TEU.

71 In that regard, the Commission notes that that provision lays down a general rule, namely the definition of the qualified majority applicable as from 1 November 2014, and that it is only in the cases referred to in the third subparagraph of Article 16(4) TEU that the ‘other arrangements’ laid down in Article 238(2) TFEU apply, by way of derogation from that general rule, as from that date. In the Commission’s view, the transitional provisions of Protocol No 36 are applicable until 31 March 2017. If it had been otherwise, Article 16(4) TEU would have expressly defined those transitional provisions as ‘other arrangements’.

72 In addition, the Commission submits that, in accordance with Article 3(1) of Protocol No 36, Article 16(4) TEU took effect on 1 November 2014. Furthermore, it notes that Article 3(3) of that protocol states that the qualified majority defined by the Treaty of Nice is to apply until 31 October 2014, without prejudice to the second subparagraph of Article 235(1) TFEU, which refers to Article 16(4) TEU. Consequently, in the Commission’s view, it follows from the wording of Article 3(1) and (3) of Protocol No 36 that the non-application of the qualified majority defined in Article 16(4) TEU after 1 November 2014, on the basis of Article 3(2) of that protocol, cannot limit the effectiveness of Article 16(4) TEU. However, the Commission takes the view that the interpretation of Article 3(2) of Protocol No 36 adopted by the General Court infringes Article 16(4) TEU in that it has the effect of extending the applicability of Article 3(3) of that protocol even beyond 31 March 2017.

73 The Commission submits that an interpretation of Article 3(2) and (3) of Protocol No 36 permitting the application of the qualified majority defined by the Treaty of Nice after 31 March 2017 also limits the effectiveness of Article 16(4) TEU in that that interpretation is contrary to the objectives of the latter provision.

74 In that regard, the Commission submits that the purpose of Article 16(4) TEU was to establish a new qualified-majority voting system within the Council, requiring a majority of the Member States and of the population of the European Union to be obtained. Thus, it takes the view that the qualified-majority system provided for in the Treaty of Nice was much more complex and less democratic, so that, by introducing a criterion which directly takes into account the population of the Member States, the new definition of the qualified majority set out in Article 16(4) TEU had the effect of enhancing the democratic legitimacy of the decisions adopted by the Council. The Commission submits that that new definition made it possible to achieve the objective of the European Union of founding its functioning on representative democracy.

75 The Commission takes the view that limiting the effectiveness of Article 16(4) TEU entails a restriction of the principle of democracy, which, according to settled case-law, is one of the fundamental values on which the European Union is founded. In the Commission’s view, the General Court set against the objective in question the individual interest of a single Member State in benefiting, after 31 March 2017, following a request made on 30 March 2017, from a qualified majority which is more favourable to it, based on weighted votes which do not reflect the democratic representation of Union citizens.

76 In addition, the Commission argues that the specific purpose of Article 16(5) TEU in conjunction with Article 3(2) of Protocol No 36 was not to maintain the rules relating to the definition of the qualified majority which were applicable before the entry into force of the Treaty of Lisbon for a practically indefinite period, but to delay, until 31 March 2017, the full application of those relating to the new definition of that majority, which are set out in Article 16(4) TEU, in order to protect the interest of Member States whose relative weight in votes has been reduced by the rules of the Treaty of Lisbon.

77 The Commission submits that the three periods referred to in paragraph 45 of the judgment under appeal also form part of such a logic of deferred application of the rules relating to the new general definition of the qualified majority contained in Article 16(4) TEU, the first period being characterised by the fact that those rules were not applicable at all; the second period, by the fact that those rules were applicable subject to the possibility of derogating from them in the event of a prior request from a Member State; and the third period – which, unlike the former two periods, cannot be classified as a ‘transitional’ period – by the fact that those rules are applicable automatically, systematically and without exception.

78 Accordingly, the Commission takes the view that the interpretation of Article 3(2) of Protocol No 36 adopted by the General Court in paragraphs 42, 56 and 57 of the judgment under appeal disrupts those three periods by introducing de facto, after 31 March 2017, a third transitional period of indefinite duration. The Commission concludes that, in view of the objective of Article 16(4) TEU, which was to establish a definition of the qualified majority as a general rule, any restrictive interpretation of the temporal scope of that rule, such as that adopted by the General Court in paragraphs 40 and 41 of the judgment under appeal, must be regarded as constituting a limitation of its full effectiveness.

80 As a preliminary point, it is necessary to reject the Commission’s argument that the interpretation of Article 3(2) of Protocol No 36 adopted by the General Court limits the effectiveness of Article 16(4) TEU since that argument is based on the contention, rejected in the context of the examination of the first part of the Commission’s single ground of appeal, that that interpretation has the effect of extending the applicability of Article 3(3) of Protocol No 36 beyond 31 March 2017.

81 As regards the Commission’s argument relating to the principle of democracy, it is true that Article 10(1) TEU provides that the functioning of the Union is to be founded on the principle of representative democracy, which gives concrete form to the value of democracy referred to in Article 2 TEU (judgment of 19 December 2019, Junqueras Vies, C‑502/19, EU:C:2019:1115, paragraph 63 and the case-law cited).

82 However, as the Advocate General observed in points 63 and 64 of his Opinion, the Commission’s argument relating to the importance of Article 16(4) TEU for the democratic legitimacy of EU acts is, in itself, irrelevant to the interpretation of Article 3(2) of Protocol No 36. The adoption of that protocol reflects the clearly expressed intention of the drafters of the Treaty of Lisbon to ensure a flexible transition to the rules relating to the definition of the qualified majority set out in Article 16(4) TEU. It cannot be alleged that the General Court failed to have regard, in its assessment of the scope of Article 3(2) of Protocol No 36, to the principle of representative democracy when in fact, by that assessment, the General Court ensured, by adopting a strict interpretation of the transitional rules and in accordance with the principle of legal certainty, that any member of the Council had the right to submit, during the entire period from 1 November 2014 to 31 March 2017, the request referred to in Article 3(2) thereof.

83 It follows from the foregoing that the interpretation of Article 3(2) of Protocol No 36 adopted by the General Court in paragraphs 42, 56 and 57 of the judgment under appeal does not infringe Article 16(4) TEU.

84 It follows that the second part of the single ground of appeal must be rejected as unfounded.

85 Since both parts of the single ground of appeal have been rejected as unfounded, the appeal must be dismissed in its entirety.

86 Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs. Article 138(1) of those rules, applicable to appeal proceedings pursuant to Article 184(1) thereof, 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.

87 In the present case, since the Republic of Poland has applied for costs and the Commission has been unsuccessful in its single ground of appeal, the Commission must be ordered to bear its own costs and to pay those incurred by that Member State.

2. Orders the European Commission to bear its own costs and to pay those incurred by the Republic of Poland.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Poland (Protocole n° 36) (Appeal - Annulment - Council's voting rules – Qualified majority - Judgment) [2022] EUECJ C-207/21P (14 July 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/C20721P.html Cite as: [2022] EUECJ C-207/21P, [2023] 1 CMLR 20, EU:C:2022:560, ECLI:EU:C:2022:560

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