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5. Article I, headed 'General Principles', 6. Article 2, headed 'Definitions', provides: provides:

'1. For the purposes of this Agreement: ' 1 . A common set of energy-efficiency specifications and a common logo shall be used by the Parties for the purpose of establishing consistent targets for manu- facturers, thereby maximising the effect of their individual efforts on the supply of and demand for such product types. (a) ...

2. The Parties shall use the Common Logo for the purpose of identifying qualified (b) "Common Logo" means the US-regis- energy-efficient product types listed in tered certification mark designated in Annex C. Annex A and owned by [the United States Environmental Protection Agency];

3. The Parties shall ensure that common specifications encourage continuing improvement in efficiency, taking into (c) ... account the most advanced technical prac- tices on the market.

I I I— Facts 7. Annex A sets out the common logo while Annex B establishes the guidelines for use of the logo and of the Energy Star name. Annex C lays down the respective specifications for products covered by the agreement. Specifications are set out for the following product types: computers, moni- tors, printers, fax machines, mailing 9. The American Environmental Protection machines, copiers, scanners and multifunc- Agency ('the EPA') set up the Energy Star tion devices. Program in 1992. At first covering pri- marily office equipment, it has since been extended to household appliances, heating and cooling equipment, consumer elec- tronics, home office equipment, water- coolers, house construction, lighting, windows, ventilating fans, emergency exit signs, roofing material, transformers, traf- (2) Regulation (EC) No 2422/2001 of the fic lights and other products and services. 4 European Parliament and of the Council of Under that programme, provisions con- 6 November 2001 on a Community energy cerning energy consumption of products efficiency labelling programme for office and in relation to services are laid down. equipment 2 They set non-binding standards. Manufac- turers of the relevant products can par- ticipate in the programme on a voluntary basis. The Energy Star logo was created for the identification of products which adhere to the provisions.

8. The Energy Star Agreement was trans- 3 — COM(2000) 18 final of 28 January 2000, Proposal for a posed into Community law by Regulation Regulation of the European Parliament and of the Council on a Community energy efficiency labelling programme for office and communication technology equipment (OJ 2000 C 150 E, p. 73). 4 — Sec the overview on the internet at www.energystar.gov/ 2 — OJ 2001 L 332, p. 1. products.

(1) The Commission 11. The Council unanimously adopted that proposal on 14 December 2000, 6but on the basis of Article 175(1) EC. The agree- ment was signed in Washington on 19 December 2000. 13. The Commission contests the legal basis chosen for the decision of 14 May 2001. In its submission the agree- ment, in accordance with its aim and content, seeks to facilitate trade. It enables manufacturers to market their products in 12. By Decision 2001/469/EC of 14 May both the European and the American 2001, the decision challenged in the present market using one single label obtainable through one single registration. Manufac- turers of office equipment are thereby 5 — Proposal for a Council Decision concerning the conclusion spared the costs which would result from on behalf of the European Community of an agreement the use of two different labels, each with its between the United States of America and the European Community on the co-ordination of energy-efficient label- own requirements and registration pro- ling programmes (COM(1999) 328 final of 1 July 1999: OJ 1999 C 274 E, p. 16). The text of the original proposal cedure. Article 133 EC must therefore be cited Articles 130 EC and 300(2) EC as the legal basis. However, the Commission subsequently corrected this, the legal basis for the contested decision. stating that Articles 133 EC and 300(2) EC were meant. In its discussions the Council assumed that the Commission proposal was based on Articles 133 EC and 300(2) EC, as is apparent from Council document 8663/00 submitted as 7 — Council Decision 2001/469/EC of 14 May 2001 concerning Annex 3 to the application. The examination which follows the conclusion on behalf of the European Community of the is therefore to be carried out on that premiss. Agreement between the Government of the United States of 6 — Decision of 14 December 2000, item 8 in the list of A points America and the European Community on the coordination of the Council agenda (Council document 14408/00) of energy-efficient labelling programs for office equipment submitted as Annex 4 to the application. (OJ 2001 L 172, p. 1).

18. Its view is not precluded by the fact that the agreement also promotes environ- 15. The preamble to the agreement spec- mental protection. Where trade agreements ifies that the latter's purpose is constituted also take account of environmental aspects, by the contracting parties' endeavour to that merely reflects Article 6 EC which maximise energy savings and environ- declares that the task of protecting the mental benefits by stimulating the supply environment applies across Community of and demand for energy-efficient prod- policies and activities. Referring to case- ucts. However, this reflects only the law of the Court of Justice, 8the Commis- rationale for the setting up of the Energy sion puts forward a broad interpretation of Star Program by the EPA and not the aim the concept of commercial policy within of the agreement to create a joint label for the meaning of Article 133 EC. Since both markets by coordinating the various unilaterally adopted environmental provi- labelling programmes. sions have a potentially restrictive effect on trade, trade agreements increasingly also deal with environmental aspects. As the case-law has indeed already confirmed, 9 the fact that regard is also had to environ- mental aspects in such agreements does not however mean that they can no longer be concluded on the basis of Article 133 EC. It cites in support of its view the Agreement 16. The Commission also bases its view on the title of the agreement, which speaks of the 'coordination of... labelling programs'. 8 — In particular Opinion 1/78 concerning the International In addition the Commission refers to the Agreement on Natural Rubber [1979]ECR 2871, para- graph 45, and the judgment in Case 45/86 Commission v wording of the 13th and 14th recitals in the Council [1987] ECR 1493, paragraph 19. preamble to its proposal for Regulation 9 — The Commission relies on Case C-62/88 Greece v Council [1990] ECR I-1527, paragraphs 18, 19 and 20, Case No 2422/2001 by which the agreement C-300/89 Commission v Council [1991] ECR I-2867, paragraph 22, and Case C-405/92 Mondiet [1993] ECR was transposed into Community law. I-6133, paragraphs 26, 27 and 28.

22. The Commission submits purely in the 20. The fact that the provisions at issue are alternative that Article 175(1) EC is not non-binding does not prevent the con- under any circumstances a possible legal basis for concluding an international agree- ment. That provision grants authority for 10 — OJ 1994 L 336, p. 40, approved by Council Decision the adoption of internal legal measures 94/800/EC of 22 December 1994 concerning the con- only. In the context of the chapter concern- clusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1). 11 — The statement is annexed to Council document 8421/01 of 12 — Regulation (EC) No 1980/2000 of the European Parlia- 3 May 2001 which was lodged as Annex 6 to the ment and of the Council of 17 July 2000 on a revised application. Community eco-label award scheme (OJ 2000 L237, p. 1).

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ing environmental protection, international 26. In its submission, the aim and subject- agreements are instead to be based on matter of the agreement are the reduction Article 174(4) EC, as the Court has already of energy consumption by stimulating the decided. 13 supply of and demand for energy-efficient office equipment. It therefore considers Article 175(1) EC to be the correct legal basis.

23. At the hearing the Commission also set out its view on Opinion 2/00. In its sub- mission, the present case differs from that of the Opinion inasmuch as, unlike the 27. It relies in support of its interpretation Cartagena Protocol, the Energy Star Agree- on the preamble to the agreement, accord- ment was not negotiated within the frame- ing to which the contracting parties are work of an agreement relating to environ- endeavouring '... to maximise energy sav- mental protection. Consequently, the ings and environmental benefits...'. Court's findings in Opinion 2/00 do not preclude the view that the Energy Star Agreement is to be approved on the legal basis provided by Article 133 EC.

33. The Council likewise supports its view 30. Besides, the agreement expressly allows by referring to Community practice with the contracting parties to introduce further regard to international agreements. It states energy-efficiency programmes alongside that numerous agreements have already the Energy Star Program. This confirms been concluded on the basis of Article 175 that the agreement does not result in the EC although they also concern trade issues. facilitation of trade since it does not in any It refers to the Vienna Convention for the way preclude the existence of a multiplicity protection of the ozone layer and the of labels. Montreal Protocol on substances that deplete the ozone layer, 1 6the Convention on the control of transboundary move- ments of hazardous wastes and their dis- posal (the Basel Convention) 17 and the Washington Convention on international trade in endangered species of wild fauna and flora. The latter was implemented in 31. The Council concludes that the agree- the Community by the adoption of Regu- ment is trade-neutral. Article XI(4) indeed lation (EEC) No 3626/82, since replaced by provides that neither party is to hinder the Regulation (EC) No 338/97 which was import, export, sale or distribution of any based on Article 175 EC. 18 In contrast to product because it bears energy-efficiency the present case, the agreements cited by marks of the management entity of the the Commission concern the establishment other party. of mandatory and not merely voluntary standards. There is, however, a substantial

difference between those two categories. ruary 1999. 20 The preamble to that The fact that the legal basis provided by decision makes express reference to the Article 133 EC has not been applied to the Energy Star Program and envisages revision creation of other voluntary standards of the criteria specified in the decision in shows that the Commission's argument order to adapt the energy requirements to that voluntary standards may constitute technological innovation, market develop- barriers to trade is incorrect. ments and that programme. It is the Council's understanding that, as a result of the conclusion of the Energy Star Agree- ment, it did not become necessary to renew that decision under the new scheme which w a s i n t r o d u c e d by R e g u l a t i o n No 1980/2000, 21 a measure likewise adopted on the basis of Article 175 EC. 34. The content of the agreement also shows that it is primarily concerned with energy conservation. Article IV stipulates that consumers are to be educated about the logo and its significance. Under Articles IV, V and VIII, provision is to be made for checks and measures in respect of enforce- 36. Furthermore, only the view that envi- ment of the proper use of the logo. The r o n m e n t a l - p r o t e c t i o n measures are provisions on cooperation between the involved is compatible with the introduc- contracting parties and the mutual recog- tion by Member States of eco-labelling of nition of registrations effected by them their own, such as the Blue Angel, the Swan (Articles VI, VIII, IX and X, and Article or the GEA-label. This shows that the V) likewise serve solely to achieve the aim Community and the Member States share of reducing energy consumption. competence in this field. If the introduction of eco-labelling were a commercial-policy measure, the Community would have exclusive competence and it would be unlawful for the Member States to act in this field.

EC. A c c o r d i n g to t h a t c a s e - l a w , hand, a measure simultaneously pursues Article 174 EC is confined to defining the objectives which are inseparably linked objectives of environmental policy whereas without one being secondary and indirect Article 175 EC constitutes the legal basis in relation to the other, it may by way of for Community legal measures adopted to exception be founded on the various cor- put that policy into effect. The Council responding legal bases. 26 regards Opinion 2/00 23 as confirming its view as to the choice of legal basis for approving the Energy Star Agreement. Furthermore, that Opinion contains a clear rejection of Article 174 EC as a possible legal basis. 39. The Commission and the Council agree on those principles but disagree as to the outcome of their application to the present case. While the Commission considers that a commercial-policy measure is at issue, the Council regards the agreement as an envi- ronmental-policy measure.

V — Assessment

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traditional aspects of external trade. 27 The general observations regarding the choice open nature of the concept of commercial of legal basis. The aim and content of the policy within the meaning of Article 133 Energy Star Agreement must therefore be EC was confirmed in Opinion 1/94 on the examined below. WTO Agreement. 28 It may also be true that more and more international trade agreements pursue a variety of objectives, one of which is environmental protection. However, the finding that the Court has given a wide interpretation to the concept of commercial policy within the meaning of Article 133 EC can yield no more than a finding that the adoption of a commercial- policy measure is not precluded simply (1) Wording and history of the Energy Star because account is taken of other aspects, Agreement for example environmental protection. It alone cannot result in the categorisation of the Energy Star Agreement as a commer- cial-policy measure.

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entities provided for by the agreement (in tracting parties concluded the agreement in accordance with Article III 30 they are the order to maximise energy savings and Commission and the EPA). The other environmental benefits. That aim is to be management entity recognises the regis- achieved by means of stimulating the tration and hence the right of the manu- demand for and supply of energy-efficient facturer in question to use the logo on his products. The Commission and the Council products which meet the standards. Manu- agree that the preamble emphasises above facturers are entitled to offer for sale all the aim of saving energy. However, the products bearing the Energy Star logo on Commission regards it as merely substanti- both the European and the American ating the rationale for the American Energy market. This supports the view that the Star Program, and not as establishing the Energy Star Agreement is a commercial- aim of the Energy Star Agreement. policy measure.

45. However, this interpretation does not yet take into account that the coordination of labelling programmes for energy-effi- cient products is at issue. The labelling is 48. It may be stated in support of the intended to stimulate the demand for and Commission's view that the agreement has supply of energy-efficient products. That is recourse to the logo and standards of the to result in energy savings, for which EPA. To that extent it might well be correct reason this aspect of the title provides that the preamble expresses the objective of justification for regarding the agreement the American Energy Star Program. as primarily an environmental-policy meas- ure.

50. The preamble links the declaration of the description, set out in the same sen- the aim of saving energy with the means, tence, of the subject-matter of the agree- namely stimulating the demand for and ment. The means decided upon in the supply of energy-efficient products. The agreement for achieving the aim of reduc- means is intended to influence the market ing energy consumption is the establish- behaviour of persons offering for sale or ment of common specifications with regard seeking to buy office equipment and to that to the energy consumption of certain items extent have an effect on the market for of office equipment together with the use of office equipment. Such equipment is manu- a common logo. Through the use of that factured and put on sale throughout the logo, consumers are to be able to identify world. To that extent the means agreed which of the products offered for sale are upon in the Energy Star Agreement relates energy-efficient and make their choice to trade in office equipment. This element accordingly (see Article I(4)). As already in the preamble consequently emphasises stated, this agreed means relates to trade in the commercial-policy dimension of the office equipment. agreement. Accordingly, the preamble like- wise cannot provide a clear answer to the question whether the agreement is an environmental-policy or a commercial-pol- icy measure. 53. The foregoing observations clearly show that the agreement pursues the long- term objective of contributing to environ- mental protection; however, the means 51. The aim of the agreement is also employed for that purpose and laid down addressed in Article I, which deals with by the contracting parties in the agreement the agreement's general principles. Under relates to trade. Article 1(1), the contracting parties are to use common energy-efficiency specifi- cations and a common logo for the purpose of establishing targets for manufacturers, thereby maximising the effect of their individual efforts on the supply of and 54. In accordance with the case-law cited demand for energy-efficient products. That at the outset, the question thus arises as to reflects the endeavour to reduce energy whether one of those two aims constitutes consumption and thereby help to protect the agreement's primary aim or whether the environment. This too supports the both are inseparably linked so that the proposition that the agreement is a measure decision approving the agreement is to have designed to enhance environmental protec- a dual legal basis. tion.

56. The situation is similar here. The present case is concerned in the long term with a reduction in energy consumption and therefore with environmental protec- tion. The means by which that aim is to be achieved is, however, a trade-related meas- ure. On the basis of the judgment in Case C-42/97 it should thus be concluded that 58. The common logo which is used was Article 133 EC is the appropriate legal likewise already in existence when the basis for the contested Council decision. agreement was concluded. Recourse is had to the 'Energy Star' certification mark which is owned by the EPA (Article 11(b)). 31 — Council Decision 96/664/EC of 21 November 1996 on the adoption of a multiannual programme to promote the linguistic diversity of the Community in the information society (OJ 1996 L 306, p. 40). The legality of the decision 33 — Commission Decision 2001/686/EC of 22 August 2001 was confirmed in Case C-42/97 Parliament v Council, establishing the ecological criteria for the award of the cited in footnote 25. Community eco-label to personal computers (OJ 2001 32 — See paragraphs 62 and 63 of the judgment. L 242, p. 4, in particular p. 7, footnote 1).

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61. The Council submits by reference to the non-binding nature of the provisions set 62. Confirmation for the view that non- 34 — COM(1999) 328 final of 1 July 1999 (cited in footnote 5), binding labelling rules too relate to trade is p. 16, paragraph 3. provided by the WTO Agreement on Tech-

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nical Barriers to Trade. 35 Under that ent not only on whether manufacturers agreement, whether a measure is an decide to register but in addition on con- obstacle to trade does not depend on sumers' purchasing decisions. The fact that whether the relevant provision is manda- compliance with the specifications is vol- tory. The agreement applies to both man- untary thus rather indicates that environ- datory and non-binding provisions. In mental protection was not to the fore when accordance with Annex I to the agreement, the agreement was concluded. Whether provisions with which compliance is man- environmental protection is in fact pro- datory are referred to as 'technical regu- moted by the agreement depends solely on lations' whereas those with which com- the will and behaviour of consumers and pliance is not mandatory are referred to as manufacturers. To that extent, it must be 'standards'. Both types of provision can found that the Energy Star Agreement has a govern product characteristics or product direct impact on trade only and an indirect labelling. The preamble to the agreement impact at most on environmental protec- expresses the desire of the contracting tion. parties that technical regulations and stan- dards, including packaging, marking and labelling requirements, and procedures for assessment of conformity with technical regulations and standards should not create unnecessary obstacles to international trade. That implies that non-binding label- ling provisions too may in principle con- stitute obstacles to international trade.

follows from the examples listed in international agreements. The Commission Article 133 EC. compares the Energy Star Agreement with agreements concerning mutual recognition of technical standards which have been based on Article 133 EC. The Council counters by stating that those agreements 67. This interpretation of the agreement as concern mandatory standards and refers in primarily a commercial-policy measure is support of its own argument to various borne out by the preparatory documents environmental agreements which in its for the adoption of the contested decision. submission also related to trade issues. In the explanatory memorandum accom- panying its proposal for the decision, the Commission stated that the best approach was to introduce the American Energy Star Program in the Community. It explained that the Energy Star logo was the 'de facto' required standard for office equipment sold on the United States market. In addition, 70. As already explained, the fact that the the Energy Star requirements were becom- energy-efficiency specifications are not ing the applicable standard world-wide and binding does not prevent the Energy Star therefore in the Community as well. 36 Agreement from being classified as a trade- related measure. This objection on the part of the Council is therefore not persuasive.

68. It therefore follows from an analysis of the wording and history of the Energy Star Agreement that, in accordance with the content of its provisions, it is primarily a commercial-policy measure. Its impact on environmental protection is at most indi- rect and long-term. 71. In the Energy Star Agreement, uniform specifications are laid down for certain items of office equipment. In that regard the agreement seems entirely comparable in content with the agreements concerning technical standards referred to by the Commission. (2) Comparison with Community practice in relation to international agreements

73. It should, however, be pointed out that all the agreements cited by the Council were negotiated in an environmental-policy context. They were primarily concerned with environmental protection and touched 75. The Council refers in support of its on trade issues in an ancillary or subsidiary view to Regulation No 880/92 3 9 which has manner at most. Opinion 2/00 on the meanwhile been replaced by Regulation Cartagena Protocol expressly emphasises No 1980/2000. 40 By the adoption of Regu- the environmental-policy context in which lation No 880/92, a Community eco-label the protocol was negotiated. 38 In that promoting products which have a reduced regard there is a fundamental difference environmental impact during their entire between the agreements cited by the Coun- life cycle was introduced. As in the case of cil and the Energy Star Agreement. The the Energy Star logo, products are pro- latter was not negotiated in the context of moted in that the label is intended to direct an environmental agreement, on the basis consumers' attention to them. That is of such an agreement or within the frame- intended to contribute to the more efficient work of a conference concerning the use of resources and a high level of environment. No specific international con- environmental protection (see the first and text for the Energy Star Agreement is fourth recitals in the preamble to Regu- discernible. lation N o 1980/2000 and Article 1 thereof). Both regulations were adopted as environmental measures on the basis of 37 — Proposal for a Council Decision concerning the conclusion, what is now Article 175 EC. on Behalf of the Community, of the Cartagena Protocol on Biosafety (COM (2002) 127 final of 13 March 2002; 0 1 2 0 0 2 C 181 E, p. 258) and Council Decision 2002/628/EC of 25 June 2002 (OJ 2002 L 201, p. 48). 38 — Opinion 2/00, cited in footnote 22, paragraphs 26, 27 and 39 — Cited in footnote 19. 28. 40 — Cited in footnote 12.

78. It is to be noted first as a matter of principle with regard to the reference to Regulations No 880/92 and No 1980/2000 that the choice of Article 175 EC as the legal basis for those regulations does not predetermine the choice of legal basis for 77. The Community eco-label can also be the decision at issue in the present case used for computers. First the Commission approving the Energy Star Agreement. The adopted, on the basis of Regulation present case is concerned with defining the No 880/92, Decision 1999/205/EC in scope of Articles 133 EC and 175 EC. As which ecological criteria were laid down Community practice in relation to inter- for personal computers. 42 The preamble to national agreements shows, the Commu- that decision refers to the negotiations nity has in the past concluded agreements concerning the Energy Star Agreement on the basis of both provisions. The fact and envisages the possibility of the that Article 175 EC has been chosen as the decision's being revised in the light of the legal basis for an internal Community agreement. The decision was indeed sub- measure is not in itself sufficient to show sequently superseded by Commission that the same legal basis must be used when Decision 2001/686/EC 43 which is based approving an international agreement gov- on Regulation No 1980/2000. In that erning comparable matters. Article 133 decision, which was adopted after the entry EC, which relates to external trade, can into force of the Energy Star Agreement but never form the legal basis for a measure before the adoption of Regulation whose effects are internal to the Commu- No 2422/2001 which transposed the nity. Article 95 EC perhaps fulfils a com- parable function in respect of internal trade. However, the decision whether measures which are contained in inter- 41 — Sec the overview on the internet at www.energystar.gov/ products. national agreements ratified on the basis 42 — Commission Decision 1999/205/EC of 26 February 1999 of Article 133 EC are to be implemented establishing ecological criteria for the award of the Community eco-label to personal computers (OJ 1999 L 70, p. 46). 43 — Commission Decision 2001/686/EC of 22 August 2001, cited in footnote 33. 44 — See OJ 2001 L 242, p. 7, footnotes 1, 3 and 4.

81. There is, however, a difference between 79. It must also be pointed out that, in Regulations No 880/92 and addition to the regulations mentioned by No 1980/2000, on the one hand, and the Council, there are further Community Directive 92/75, on the other, inasmuch as legal measures which deal with the label- the regulations, like the Energy Star Agree- ling of electrical appliances and their ment, set up a voluntary labelling system energy consumption but are not based on whereas the directive introduces a manda- Article 175 EC. Directive 92/75/EEC on tory labelling system. None the less, as the indication by labelling and standard already explained (see point 61 et seq.), the product information of the consumption of question whether a measure relates to trade energy and other resources by household does not turn on whether it establishes appliances 45 was adopted on the basis of mandatory or voluntary standards. Both Article 100a of the EC Treaty, that is to say Regulations No 880/92, No 1980/2000 the precursor of Article 95 EC. Like Regu- and No 2422/2001, which set up a volun- lations No 880/92 and No 1980/2000, it tary system, and Directive 92/75, which too pursues the objective of saving energy prescribes mandatory labelling, make it by stimulating demand for energy-efficient clear in their respective preambles that they products (see the fourth recital in its pre- relate to trade. amble).

80. Accordingly, there are internal Com- 82. It can accordingly be stated by way of munity legal measures which pursue an intermediate conclusion that comparison of objective comparable to that of the Energy the Energy Star Agreement with Regu- lations No 880/92 and No 1980/2000 and with Directive No 92/75 confirms that an 45 — Council Directive 92/75/EEC of 22 September 1992 on the agreement concerning the use of a uniform indication by labelling and standard product information of the consumption of energy and other resources by label constitutes in the first place a trade- household appliances (OJ 1992 L 297, p. 16). related measure.

84. Article 133 EC establishes exclusive 86. By way of summary, the Energy Star Community competence in respect of exter- Agreement contains aspects relating both to nal trade. 46 The introduction of an eco- trade and to environmental protection. The label by Member States does not relate to agreement of common energy-efficiency the external trade of the Community, but specifications for certain items of office possibly to intra-Community trade. In that equipment, of a common logo for the regard, such rules could raise the question labelling of such products which comply of their compatibility with Article 28 EC. with the specification and of a procedure However, so long as no Community har- for the mutual recognition of registrations monisation measure has been adopted, has a direct impact on trade, since trade in there is no prohibition in law of such those products is facilitated. On the other action by Member States in so far as the hand, agreement on those matters has only requirements of the free movement of an indirect impact on the environment goods are observed. That applies in par- since energy savings depend on how manu- ticular where, as in the cases referred to by facturers and consumers actually behave. The Energy Star Agreement therefore pri- marily relates to trade and the decision approving it thus had to be based on 46 —Case C-83/94 Leifer and Others [1995] ECR I-3231, paragraph 13. Article 133 EC.

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(6) In the alternative: the applicability of the two management entities (the Commis- Article 174 EC sion and the EPA) entrusted with coor- dinating the programmes (see in particular Articles V(4), VI, IX and X). However, the agreement's content extends beyond those issues of administrative organisation in that the agreement provides for uniform energy- efficiency specifications, a uniform logo 87. Purely in the alternative, should the and the mutual recognition of registrations. Court not follow the foregoing analysis but regard the Energy Star Agreement as a primarily environmental measure, it is also necessary to consider briefly the issue, upon which the parties disagree, as to whether in that case Article 174 EC or Article 175 EC constitutes the appropriate legal basis for the decision approving the agreement.

V I I — Conclusion

93. On the basis of the foregoing arguments, I propose that the Court should:

(1) annul Council Decision 2001/469/EC of 14 M a y 2001 concerning the conclusion on behalf of the European Community of the Agreement between the Government of the United States of America and the European Community on the coordination of energy-efficient labelling programs for office equipment;

(2) order the Council to pay the costs.

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