C-25/94

2. This case is a further instance of inter- institutional controversies on the scope of the Community's external competence. It will be remembered that in the proceedings leading to Opinion 1/94 1 the Commission referred to the manner in which the Com- munity and the Member States are repre- sented in the FAO as being inadequate and 4. Before discussing the issues raised I will first describe the way in which the Commu- nity and the Member States are represented in the FAO. I will then turn to the negotia- * Original language: English. tion, adoption and contents of the Agree- 1 — Opinion 1/94 on The Agreement establishing the World Trade Organization [1994] ECR I-5267. ment.

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The Community and the Member States in relevant provision is Article II, which in its the FAO amended form reads partly as follows:

'1. ...

5. The FAO is a specialized agency of the United Nations dealing, as its name indi­ 2. ... cates, with questions of food and agricultural policy.

5. Each regional economic integration orga- nization applying for membership of the Organization shall, at the time of such appli- 9. Except as otherwise provided in this Arti- cation, submit a declaration of competence cle, a Member Organization shall have the specifying the matters in respect of which right to participate in matters within its com- competence has been transferred to it by its petence in any meeting of the Organization, Member States. including any meeting of the Council or other body, other than bodies of restricted membership referred to below, in which any of its Member States are entitled to partici- pate. A Member Organization shall not be eligible for election or designation to any such body, nor shall it be eligible for election 6. Member States of a Member Organization or designation to any body established shall be presumed to retain competence over jointly with other organizations. A Member all matters in respect of which transfers of Organization shall not have the right to par- competence have not been specifically ticipate in bodies of restricted membership declared or notified to the Organization. specified in the rules adopted by the Confer- ence.

7. Any change regarding the distribution of competence between the Member Organiza- tion and its Member States shall be notified by the Member Organization or its Member States to the Director-General, who shall cir- 10. Except as otherwise provided in this culate such information to the other Member Constitution or in rules set down by the Nations of the Organization. Conference, and Article III paragraph 4 not- withstanding, a Member Organization may exercise on matters within its competence, in any meeting of the Organization in which it is entitled to participate, a number of votes equal to the number of its Member States which are entitled to vote in such a meeting. 8. A Member Organization shall exercise Whenever a Member Organization exercises membership rights on an alternative basis its right to vote, its Member States shall not with its Member States that are Member exercise theirs, and conversely.

(2) Before any meeting of the Organization the Member Organization or its Member 2 — Sec also Antonio Tavares de Pinho, 'L'admission de la Com­ munauté économique européenne comme membre de States shall indicate which, as between the l'Organisation des Nations unies pour l'alimentation et l'agriculture (FAO)', RMCUE (1993), pp. 656 to 673; Rachel Member Organization and its Member Frid, 'The European Community — A Member of a Special- States, has competence in respect of any spe­ ized Agency of the United Nations', EJIL (1993), pp. 239 to 255. cific question to be considered in the

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13. Section 2 lays down the rules on inter- ventions and voting. Section 2.1 provides that where an item on the agenda concerns an area of exclusive Community competence 11. At the internal Community level the the Commission is to take the floor and vote. Council and the Commission worked out an Section 2.2 provides that where an item on arrangement, dated 19 December 1991, lay- the agenda concerns an area of national com- ing down rules and procedures for a smooth petence the Member States take the floor and coordination of the activities of the Commu- vote. Section 2.3 deals with cases of shared nity and its Member States in the FAO (the competence: 'Arrangement'). That Arrangement provides for coordination meetings at various levels, for mechanisms ensuring an adequate flow of information, for rules on interventions and voting at FAO meetings, and for rules on participation in drafting committees. Some of 'Where an agenda item deals with matters those provisions are particularly significant containing elements both of Member State for the present case. and of Community competence, the aim will be to achieve a common position by consen- sus. If a common position can be achieved:

12. Section 1.11 of the Arrangement pro- vides that, in preparation for the coordina- — the Presidency shall express the common tion meetings, the Commission shall position when the thrust of the issue lies

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in an area outside the exclusive compe­ The negotiation of the Agreement tence of the Community. Member States and the Commission may speak to sup­ port and/or to add to the Presidency statement. Member States will vote in accordance with the common position.

16. The need for measures aimed at discour­ aging such practices was voiced at several international conferences, and in November 1992, during its 102nd Session, the FAO 14. The Commission emphasizes in its appli­ Council asked the FAO Secretariat to orga­ cation that, if the Community's accession to nize the negotiation of an international the FAO is to be useful, it is necessary that agreement designed to address the problem. those procedures are correctly applied; oth­ A first draft of an 'Agreement on the flag­ erwise the Community risks being relegated ging of vessels fishing on the high seas to to the status of an observer with the right to promote compliance with internationally speak, which used to be its position before agreed conservation and management mea­ accession. The Commission also points to sures' was prepared by an informal expert the necessity to observe the general declara­ group in February 1993. A Commission tion of competence made to the F A O . 3

4 — See e. g. the facts of Case C-286/90 Poulsen and Diva Nav­ 3 — See paragraph 9 above. igation [1992] ECR I-6019.

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20. In the versions of the draft Agreement confirmed the decision of Coreper of submitted to the FAO Council and the FAO 21 October. The Commission then declared Conference there were no provisions on that the attribution of the right to vote to the flagging. Although the Commission says that Member States was likely to mislead the it therefore took the view that the draft other FAO Members as regards the division Agreement came within the Community's of competences between the Community exclusive competence, again it proposed to and the Member States, and that it was con­ send an indication of competence to the trary to the Arrangement. The Commission FAO Council and the FAO Conference stat­ also stated that it might bring the dispute ing ‘shared competence — Community before the Court of Justice. The Council vote’, in view of the fact that the issue of took note of those statements, considered flagging could re-emerge at the final stage of that the questions of substance concerning the negotiations. However on 21 Octo­ the division of competences and the right to ber 1993 Coreper again modified the Com­ vote in relation to the draft Agreement were mission's proposal, attributing the right to not settled and asked Coreper to re-examine vote to the Member States. The Commission those questions. then made clear that it would put the issue on the agenda of the Council meeting of 22 November 1993, but did transmit to the FAO the indication of competence as decided by Coreper in advance of the FAO Council meeting (starting on 2 November) and of the FAO Conference meeting (start­ ing on 6 November). Coreper re-examined 22. On 24 November 1993 the text of the the issue on 12 November, without changing draft Agreement was approved at the FAO its decision. Conference by a unanimous vote including the 12 votes of the Member States. By appli­ cation to the Court dated 20 Janu­ ary 1994 the Commission sought the annul­ ment of the Council decision of 22 November 1993.

seas'. 7 According to its preamble the Agree- They also state that: ment is based on the recognition of the right to engage in fishing on the high seas and on the duty incumbent on all States to take measures for the conservation of the living resources of the high seas. The preamble fur- ther recalls several international commit- 'the objective of this Agreement can be ments and declarations, and calls upon States achieved through specifying flag States' which do not participate in fisheries organi- responsibility in respect of fishing vessels zations or arrangements to join or enter into entitled to fly their flags and operating on understandings with such organizations or the high seas, including the authorization by with parties to such organizations or the flag State of such operations, as well as arrangements with a view to achieving com- through strengthened international coopera- pliance with international conservation and tion and increased transparency through the management measures. In the preamble the exchange of information on high seas fish- parties further express their consciousness of ing'. the duties of every State to exercise effec- tively its jurisdiction and control over vessels flying its flag. They state that:

24. Article I of the Agreement lays down a number of definitions. Article II essentially provides that the Agreement applies to all fishing vessels that are used or intended for fishing on the high seas, and specifies the possible exemptions to that rule.

fishing vessel so authorized shall fish in compliance with the requirements of this accordance with the conditions of the autho­ Agreement and to deprive offenders of the rization (Article 111(2)). The parties should benefits accruing from their illegal activities. satisfy themselves that they are able, taking Such sanctions shall, for serious offences, into account the links that exist between include refusal, suspension or withdrawal of them and the fishing vessel concerned, to the authorization to fish on the high seas.' exercise effectively their responsibilities (Article 111(3)). Where a fishing vessel ceases to be entitled to fly the flag of a party, the authorization to fish on the high seas granted by that party shall be deemed to have been cancelled (Article 111(4)). Article 111(5) essen­ tially provides that unless certain conditions are fulfilled no party shall authorize any fishing vessel previously registered in the ter­ ritory of another party that has undermined the effectiveness of international conserva­ tion and management measures to be used for fishing on the high seas. Article 111(6) 26. The second principal objective of the concerns the marking of fishing vessels. Arti­ Agreement is to ensure international cooper­ cle 111(7) requires each party to ensure that ation and adequate circulation of infor­ each fishing vessel entitled to fly its flag shall mation on fishing operations on the high provide it with such information on its oper­ seas. 9 Each party shall maintain a record of ations as may be necessary to enable the fishing vessels entitled to fly its flag and party to fulfil its obligations under the authorized to be used for fishing on the high Agreement. Lastly, Article 111(8), to which seas (Article IV). The parties shall cooperate the Council pays particular attention in its and in particular exchange information relat­ defence, reads: ing to activities of fishing vessels in order to assist the flag State in identifying those fish­ ing vessels flying its flag reported to have engaged in activities undermining interna­ tional conservation and management mea­ sures (Article V(1)). The parties shall also cooperate in undertaking investigatory mea­ sures when a fishing vessel is voluntarily in the port of a party other than its flag State (Article V(2)). They shall enter into coopera­ tive agreements or arrangements of mutual assistance on a global, regional, subregional or bilateral basis so as to promote the 'Each Party shall take enforcement measures achievement of the objectives of the Agree­ in respect of fishing vessels entitled to fly its ment (Article V(3)). Furthermore, Article VI flag which act in contravention of the provi­ lays down detailed requirements concerning sions of this Agreement, including, where the kinds of information to be made avail­ appropriate, making the contravention of able to the FAO. such provisions an offence under national legislation. Sanctions applicable in respect of such contraventions shall be of sufficient gravity as to be effective in securing 9 — Ibid., note 8.

28. Among the final provisions Article X on acceptance is the most significant for the purpose of this case. The Agreement is open to acceptance by any FAO Member or Asso- ciate Member, and by any non-member State that is a member of the United Nations 31. The first draft made by a group of (Article X(l)). On acceptance by regional experts and discussed by the FAO Commit- economic integration organizations the arti- tee on Fisheries in March 1993 was entitled cle provides: 'Agreement on the flagging of vessels fishing on the high seas to promote compliance with internationally agreed conservation and man- agement measures'. Article III of that draft dealt with registration of fishing vessels, requiring each party to maintain a register of fishing vessels and not to delete or register '4. When a regional economic integration vessels where there were grounds for believ- organization becomes a Party to this Agree- ing that those vessels were or would be used ment, such regional economic organization to undermine the effectiveness of interna- shall, in accordance with the provisions of tionally agreed conservation and manage- Article 11(7) of the FAO Constitution, as ment measures. Article IV of the draft dealt appropriate, notify such modifications or with allocation of flag. It essentially provided clarifications to its declaration of competence that no party should accord any fishing ves- submitted pursuant to Article 11(5) of the sel the right to fly its flag unless it was satis- FAO Constitution as may be necessary in fied (a) that there existed a genuine link light of its acceptance of this Agreement. between the vessel and the party concerned, Any Party to this Agreement may, at any and (b) that the vessel did not have the right time, request a regional economic integration to fly the flag of another State. organization that is a Party to this Agree- ment to provide information as to which, as between the regional economic integration organization and its Member States, is responsible for the implementation of any particular matter covered by this Agreement. The regional economic integration organiza- 32. In the draft submitted to the FAO tion shall provide this information within a Council and Conference in Novem- reasonable time.' ber 1993 those provisions on registration and

The arguments on admissibility

35. Against that background the Council submits three objections to the admissibility 33. The Council takes the view that the of the present application. Commission's application is inadmissible. It

U — Opinion 2/91 on Convention No 170 of the ILO [1993] 10 — Cf. Moore, op. cit., nole 5, p. 64. ECR I-1061, paragraph 12.

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36. First, the Council, the Commission and its Member States. Whether that vote was to the Member States acted in conformity with be cast by the Commission or by the repre­ the Arrangement. They conducted the nego­ sentatives of the Member States was a ques­ tiations on the Agreement on the basis of a tion of procedure or even protocol, which common position, and it was only the issue did not have any legal effects on the position of voting which, in the absence of consensus, of the Community or of the Commission in had to be decided by Coreper, in accordance the FAO. The question of competence will with the rules of the Arrangement. The only arise when it has to be decided whether decision taken by Coreper on 21 Octo­ the Community will accept the Agreement. ber 1993 was definitive, and confirmation of that decision by the Council was both unnecessary and impossible. The Arrange­ ment does not provide for an appeal to the Council because it is a pragmatic arrange­ ment, because the decisions are of a proce­ dural or even ceremonial nature, and because of constraints of time-table.

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Analysis of the admissibility that the Community had exclusive compe­ tence to negotiate and conclude the ERTA. It examined the nature of the Council proceed­ ings, stating (a) that in so far as they con­ cerned the objectives of the negotiation the proceedings were designed to lay down a 43. It is well established that all measures course of action binding on both the institu­ which have legal effects are reviewable under tions and the Member States and (b) that in Article 173 of the Treaty. In Commission ν the part of its conclusions relating to the Council (the 'ERTA' case) the Court held: 1 4 negotiating procedure the Council adopted provisions which were capable of derogating in certain circumstances from the procedure laid down by the Treaty regarding negotia­ tions with third countries and the conclusion of agreements. 16 The Court concluded that the proceedings 'had definite legal effects 'Since the only matters excluded from the both on relations between the Community scope of the action for annulment open to and the Member States and on the relation­ the Member States and the institutions are ship between institutions'. 17 "recommendations or opinions" — which by the final paragraph of Article 189 are declared to have no binding force — Arti­ cle 173 treats as acts open to review by the Court all measures adopted by the institu­ tions which are intended to have legal force.'

46. I have difficulty therefore in accepting 48. If however Coreper purported to take a the Council's submission that the definitive decision having legal effects, then such a decision in this case was taken by Coreper, decision must in my view be open to chal­ since on that view Article 173 of the Treaty, lenge under Article 173 of the Treaty. That which provides for review of acts of the consequence follows plainly from the need 21 Council, not of Coreper, would seem to pre­ to ensure observance of the rule of law. I clude judicial review. But it is in any event might add that any such challenge would be questionable whether Coreper should be likely to succeed on the substance, precisely regarded as having the power to take deci­ because Coreper will be held to have had no sions having legal effects, the functions of power to adopt the measure in question. But Coreper being limited, according to Arti­ even if the Coreper decision could itself be cle 151 of the Treaty, to 'preparing the work challenged, it seems to me that a Council of the Council' and to 'carrying out the tasks decision confirming a Coreper decision assigned to it by the Council'. would not be immune to challenge. Under the Treaty it is the Council decision, not the Coreper decision, which produces legal effects. Consequently a challenge to the Council decision could not be treated as inadmissible on the ground that it merely confirms an earlier decision of Coreper or that the challenge is out of time because the time-limit for challenging the earlier decision has expired.

Review cannot be excluded simply on issues of competence could be brought grounds of a fait accompli. before the Court under Article 228 of the Treaty. 22 ) Here however the Council's decision is without prejudice to the issue of competence to conclude (i. e. become a party to) the Agreement, as is emphasized both by the decision itself 23 and by the terms of the Arrangement. 24 That issue will only be set- tled when a decision is taken on whether the Agreement should be concluded by the Community or by the Member States, or by 50. I would therefore not reject the applica- both. tion as inadmissible on any of the grounds so far considered, and would be reluctant to reject the application as inadmissible at all if there were a genuine dispute of substance between the parties. If there were such a dis- pute, the Court should rule on it and should not be precluded from doing so by objec- tions of an excessively technical and formal- istic character. However the true problem in this case arises in my view from the fact that there is no genuine dispute of substance 52. It is significant also that in the 'ERTA' between the parties and that the difference case there might have been a difference in the between them is of a formal kind only. outcome of the negotiations if the Council had asked the Commission to negotiate. In the present case it is common ground that there would have been no difference in the outcome if Coreper (or the Council) had taken a different decision on voting. At the FAO Conference the Member States voted in accordance with the commonly agreed position, as the Community would have done. It is not suggested that any of the 51. It is unnecessary in my view to examine Member States acted to the detriment of the the question whether the contested measure Community's interest. If on 22 Novem- was capable of having legal effects. The ber 1993 the Council had agreed to adopt the 'ERTA' case may suggest that it was capable statement suggested by the Commission, the of having such effects, but in the present case voting on the Agreement would not have any such effects are entirely hypothetical. It undergone any change. Likewise the text of may be noted in passing that in the 'ERTA' the Agreement would have been exactly the case the main issue was that of competence to conclude the agreement. (Indeed the Commission's action in challenging the deliberations of the Council under Article 22 — That was only established in Opinion 1/75 on the Under- standing on a Local Cost Standard [1975] ECR 1355, at 173 of the Treaty might at that time have p. 1360. been thought the only way to raise the issue, 23 — See the last sentence of paragraph 21 above. 24 — See Section 1.13 of the Arrangement, cited at paragraph because it was not then established that 12 above.

same as the present text. Even if the Council in the absence of a dispute. Even in proceed­ had decided (which the Commission did not ings under Article 177 of the Treaty, where it propose) that the Commission was to vote is in principle for the national court which for the Community, and even if the FAO makes a reference to decide whether a ruling had accepted an alteration of the indication by the Court of Justice is necessary, the of competence, it seems that the outcome of Court of Justice has held that it is not its the voting would not have been different and function to rule on hypothetical questions, the text of the Agreement would have been and it has occasionally declined jurisdiction exactly the same. If the Court were to annul on that ground. 2 6 In direct actions, involving the Council's decision, that would have no contentious proceedings between the parties, practical consequences. The ruling might, it the question does indeed arise whether the is true, be relevant for other, future cases. applicant, even if it is a Community institu­ Even that is uncertain, since the solution in tion, has an interest in bringing proceedings. each case must depend on its particular cir­ That is so even with infringement proceed­ cumstances. In any event, even if the ings brought by the Commission under Arti­ decision were relevant for future cases, that cle 169 of the Treaty against a Member State. is in my view not sufficient for the action to Although the Court stated in Commission ν be admissible. France 27 that the Commission ‘does not have to show the existence of a legal inter­ est’, that means only that the Commission does not have to establish a specific interest of its own in obtaining a ruling on the par­ ticular infringement. 2 8 The existence of an interest is however often in issue in such proceedings. If for example before the com­ mencement of proceedings before the Court the Member State complies with the Com­ mission's reasoned opinion, the Commission may nevertheless proceed with the action, 53. It seems clear that, for its action to be but it may do so precisely because it has an admissible, the Commission must have some interest in doing so: 2 9 namely to ensure that real, direct interest in the outcome of the Community law is properly administered present case, and not merely a desire to and applied, 3 0 or to establish the Member obtain a decision from the Court which State's liability towards other Member States, might be relevant in other cases in the future. the Community or private persons. 31

54. Similar considerations apply in my view concerns the conservation and management to actions brought by the Commission under of fishing resources on the high seas, by Article 173 of the Treaty. If the Council has means of a licence regime and no longer by acted unlawfully the Commission may bring regulation of the allocation or changing of proceedings without establishing a specific the flag as initially envisaged. interest of its own in the outcome of the case. In that sense the Commission does not have to show an interest. 3 2 But it must be able to allege some genuine illegality with some actual consequences. The Court should not be asked for advisory opinions under Article 173 for the purpose of resolving dif­ ficulties which might arise in other cases in the future. 3 3 'The applicant must ... prove In these circumstances this draft agreement, that he has an interest in making his applica­ which also includes certain provisions on tion, which is an essential and fundamental assistance to developing countries, falls prerequisite for any legal proceedings.' 3 4 essentially, if not totally, within the exclusive competence of the Community and ought normally to have been approved in the Com­ munity's name by a vote of the Commission.

55. That there is no real dispute in the present case is illustrated by the Commis­ sion's own conduct. The Commission did not propose that the Council should alter the indication of competence at its meeting of 22 November 1993. That is clear from the In future, cases of this kind will have to be terms of the declaration proposed by the dealt with according to Section 2.1 or Section Commission, which were as follows: 2.3, as appropriate, of the FAO Arrange­ ment.'

56. It must also be borne in mind that, throughout the negotiations on the Agree­ ment, the Commission agreed with the indi­ cation of shared competence. It never sug­ gested that the negotiation should be treated in accordance with Section 2.1 of the Arrangement, concerning areas of exclusive Community competence. Even at the Coun­ cil meeting of 22 November it only stated that the Agreement came at least essentially within the Community's exclusive compe­ 58. The Commission seeks to rely essentially tence. The Council and the United Kingdom on the suggestion that other members of the Government are therefore right to emphasize FAO would be misled. But any other mem­ that there was no disagreement on the sub­ bers who were sufficiently interested can be stance. presumed to be aware of the impossibility (for reasons which I explain below) of changing the indication of competence in midstream. They can also be presumed to be aware of the fact that the Arrangement and its application are without prejudice to the question who should become a party to the Agreement, and thus to the issue of compe­ tence. Certainly they would be aware that a 57. That does not mean that review by the vote by the Member States did not exclude Court is excluded in all cases concerning the the Community from becoming a party: Community's participation in the activities indeed the Agreement, although voted on by of the FAO, or of other international organi­ the Member States and not by the Commu­ zations of which it is a member. If for exam­ nity, provides that the Community may ple the Council were to decide that the become a party to it. 3 5 Member States should vote on a matter exclusively within the Community's compe­ tence, then that decision would be review­ 35 — See Article X(4) of the Agreement, set out in paragraph able. The Commission did not suggest 28 above.

59. In conclusion, therefore, the position The substance throughout the negotiations was that it was agreed on all sides that Section 2.3 of the Arrangement applied. Moreover there was no dispute on the substance of the draft Agreement. There was a common position, and the same common position would have been supported by the Community or the Member States, whichever had the vote. Both the Community and the Member States were obliged to support the common pos- 61. The Commission claims that the Council ition. The Commission at no time sought to could not attribute the right to vote on the alter the indication of competence. It sought adoption of the Agreement to the Member only to obtain a statement of principle from States. That claim raises the following ques- the Council which might have been relevant tion. Is that Council decision, confirming the for future cases. Moreover the draft Agree- earlier decision of Coreper, to be reviewed ment as adopted preserved the possibility of on the basis of a fully-fledged examination of the Community exercising exclusive compe- the Community's competence to conclude tence in becoming party to the Agreement. It the Agreement, in its final form? I think not. follows that the decision in issue was not in It is obviously not possible for the Commu- fact contested by the Commission at the nity institutions to carry out such an exami- time, and moreover that that decision, which nation at every stage in the process of a related only to a particular vote in the course negotiation such as the one in issue. It is of the negotiations, had no bearing on any obvious also that organizing the representa- issue of substance between the parties. It tion of the Community and the Member seems clear therefore that the present case States in the FAO requires the adoption of discloses no genuine dispute between the practical arrangements on procedural ques- parties. tions. Because of the constraints on the par- ticipation of the Community and its Member States in the FAO, the Arrangement is of necessity pragmatic. In the light of those constraints, the objectives which the Member Nations of the FAO sought to achieve when making provision for the Community as a Member Organization would be frustrated if frequent challenges to a particular indication of competence were allowed. It is clear that if all indications of competence sent to the FAO were open to review there is a risk that the Community's participation in the activi- ties of the FAO would become unworkable. There has to be some provisional allocation of competence which does not prejudge the ultimate allocation of competence or the 60. It may nevertheless in any event be of decision on who concludes an agreement. interest to examine briefly the questions of The latter point is explicitly stated in the substance; moreover in my view an examina- Arrangement and was confirmed by the tion of the substance confirms the conclu- Council on 22 November 1993. sion which I have reached on admissibility.

64. It is established case-law that the Com­ munity has exclusive competence for adopt­ ing measures for the conservation of the resources of the sea. In Commission ν United 65. The Court had already held in Kramer Kingdom the Court stated: 36 that the Community was competent in respect of conservation measures on the high seas. The Court stated that the only way to ensure the conservation of the biological resources of the sea both effectively and equitably was through a system of rules binding on all the States concerned, includ­ '... since the expiration on 1 January 1979 of ing non-member countries. 3 7 In Mondiet the the transitional period laid down by Arti­ Court recalled its established case-law that, cle 102 of the Act of Accession, power to as regards fishing on the high seas, the Com­ adopt, as part of the common fisheries pol­ munity has the same rule-making power as icy, measures relating to the conservation of that held in accordance with international

36 — Case 804/79 [1981] ECR 1045, paragraphs 17 and 18 of the 37 — Joined Cases 3/76, 4/76 and 6/76 [1976] ECR 1279, para­ judgment. graphs 30 to 33 of the Judgment.

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law by the flag State or the State where the those resources. Consequently, Article 102 of ship is registered. And in Commission ν the Act of Accession may not be read as pro­ 39 Spain the Court held that: hibiting the Member States from adopting a measure such as that contained in the Irish legislation at issue in the main proceedings'.

'the Community has the power to take con­ servation measures both independently and 67. In Factortame and Others the Court in the form of contractual commitments with confirmed the above principle and went on non-member countries or under the auspices to state: 4 1 of international organizations'.

'... national rules requiring a minimum pro­ portion of the crews of fishing vessels of the Member State concerned to be EEC nation­ 68. It can thus be seen that the negotiation als are not, either by virtue of their subject- of the Agreement covered on the one hand matter or by virtue of their purpose, mea­ matters which are within the Community's sures relating to the conservation of fishery exclusive competence (conservation of the resources, since the application of such a resources of the sea) and on the other hand measure cannot in itself have any effect on matters within national competence (regis­ tration of vessels and the right to fly the flag of a Member State). It would therefore seem 38 — Case C-405/92 [1993] ECR I-6133, paragraph 12 of the judgment. 39 — Case C-258/89 [1991] ECR 1-3977, paragraph 9 of the judgment. 41 — Case C-221/89 [1991] ECR I-3905, paragraph 17 of the 40 — Case 223/86 [1988] ECR 83, paragraph 11 of the judgment. judgment.

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that the indication of shared competence, instance of the obligations flowing from which the Commission also accepted, was Article 5 of the Treaty. In Opinion 1/94 on correct. the Agreement establishing the World Trade 42 Organization the Court recalled that:

69. It is true that the final text of the Agree­ ment contains little on registration and flag­ ging. But the parties to this dispute agree '... where it is apparent that the subject- that it was not excluded, even at the final matter of an agreement or convention falls in round of negotiations, that the flagging issue part within the competence of the Commu­ could re-emerge. At the time of deciding on nity and in part within that of the Member the indication of competence it was therefore States, it is essential to ensure close coopera­ legitimate to take account of the flagging tion between the Member States and the dimension of the negotiation. Community institutions, both in the process of negotiation and conclusion and in the ful­ filment of the commitments entered into. That obligation to cooperate flows from the requirement of unity in the international representation of the Community ...'.

73. On the question of voting in areas of by the Community, except where that is shared competence the Arrangement may materially impossible, as for example in an not provide a definite answer for all cases. international organization of which the Voting by the Community depends on Community is not a member. In the FAO whether the 'thrust of the issue' lies within the Community is now fully equipped to the exclusive competence of the Community. exercise that competence. However, where If that is not the case the Member States are there is national competence on other aspects to vote. In cases such as the present it may of the proposed agreement, the Community however be difficult to define competence in should not of course exercise its right to vote terms of the 'thrust of the issue'. without first reaching a common position with all the Member States. That is further proof of the fact that the act of voting will often be merely procedural and that the vital issue is whether a common position can be 74. Although the point was not raised by the reached or not. Commission, and was therefore not dis- cussed by the parties, it could perhaps be argued that even when the subject-matter of the vote comes only partially within the Community's exclusive competence the right 75. On the facts of the present case it has to vote should be attributed to the Commu- not therefore been established in my view nity. It may be doubtful whether in cases of that the Council's decision should be partial exclusivity the Council has the discre- annulled. However, the considerations just tion to attribute the right to vote either to mentioned also reinforce my view that the the Community or to the Member States. present application should not be examined Exclusive Community competence, which is on the substance but should be rejected as exceptional, may as a rule only be exercised inadmissible.