OPINION 1/08

Subject-matter of the agreements at issue

96It is not disputed that, in accordance with the terms of Article XXI(2)(a) of the GATS, the compensatory adjustments in Annex II to the agreements at issue were the subject of an ‘agreement’ negotiated with the WTO members which declared themselves affected by the withdrawals and modifications of commitments proposed in Document S/SECRET/8.

97As regards the withdrawals and modifications of commitments proposed in Documents S/SECRET/8 and S/SECRET/9 and reproduced in Annex I(A) and Annex I(B) respectively to the agreements at issue, the Commission, in response to a question put by the Court, maintained at the hearing that they were not the subject of an agreement between the parties and that they should not therefore be taken into account by the Court in the procedure brought under Article 300(6) EC. First, WTO members have the right to withdraw or modify commitments even though other members are opposed to them doing so. Second, there were never any agreements on compensatory adjustments with regard to the commitments identified in Document S/SECRET/9.

98That argument, which is challenged by the Danish, Greek and Spanish Governments, Ireland, the Polish, Finnish and Swedish Governments and by the Council, cannot succeed.

99As the latter have pointed out, it must, first of all, be observed that the Joint Letter expressly provides that Annex I constitutes, together with that letter and Annex II, the agreement between the parties and that it also provides that the modifications and withdrawals proposed in Documents S/SECRET/8 and S/SECRET/9 are not to enter into force until the compensatory adjustments indicated in Annex II to the agreements at issue have entered into force.

100Next, as regards more specifically the modifications and withdrawals of commitments set out in Document S/SECRET/8 and included in Annex I(A) to the agreements at issue, it is apparent from Article XXI(2)(a) of the GATS that, in seeking agreement on compensatory adjustments, the various members involved must endeavour to maintain a general level of mutually advantageous commitments not less favourable to trade than that provided for in Schedules of specific commitments prior to such negotiations. The ‘compensatory adjustments’ negotiated are thus directly dependent on the withdrawals and modifications proposed and must, by way of consideration, contribute to re-establishing a balance which may have been upset by those withdrawals and modifications.

101It follows that, although the modifications and withdrawals of commitments proposed by a WTO member are initially unilaterally set by the member, once compensatory adjustments have been negotiated, those adjustments and the modifications and withdrawals become indissociably linked. That is borne out in particular by paragraph 6 of the Procedural Rules, which stipulates that any changes actually made to the Schedules following such an agreement are not to exceed the modifications or withdrawals initially notified and are to include any compensatory adjustment agreed upon in the negotiations.

102Finally, as regards more particularly the modifications and withdrawals of commitments set out in Document S/SECRET/9 and included in Annex I(B) to the agreements at issue, admittedly it is clear from the Joint Letter that they did not give rise either to an agreement on compensatory adjustments or to a request for arbitration. In such a case, it is apparent from Article XXI(3)(b) of the GATS and from paragraph 8 of the Procedural Rules that the member which has proposed such modifications and withdrawals is as a rule free to implement them unilaterally once the certification procedure is completed.

103In the present case, however, it is apparent that Documents S/SECRET/8 and S/SECRET/9 both pursue the same objective, namely the adjustment of the Schedules of commitments of the new Member States and the merging of those Schedules with the existing Schedule of commitments of the Community and its Member States following the accession of the new Member States to the Union, and that they form, in that light and as is shown in particular by the facts set out in paragraph 99 of this Opinion, an indissociable whole.

104Moreover, it is established that both the modifications and withdrawals of commitments included in Annex I and the compensatory adjustments included in Annex II are intended to be binding on the parties to the agreements at issue and on the other WTO members as well.

105It follows from all the foregoing that all those modifications, withdrawals and compensatory adjustments form the content of the agreements at issue, which must be taken into consideration in order to reply to the request for an Opinion.

Purpose of the questions put to the Court and the order in which they are to be examined

106The Commission’s request for an Opinion concerns, on the one hand, the question as to whether the Community is empowered to act alone to conclude the agreements at issue and, on the other, the choice of the appropriate legal basis for the act by which the Community will conclude those agreements. Concerning the latter point, the Opinion has the more specific object of determining whether the Community’s consent to be bound should, as the Commission maintains, be founded solely on Article 133(1) to (5) EC, in conjunction with Article 300(2) EC, or whether reference should also be made for that purpose to Article 133(6) EC and Articles 71 EC and 80(2) EC, in conjunction with Article 300(3) EC, as the Council proposes.

107It must be borne in mind that the procedure laid down in Article 300(6) EC is intended to make it possible to settle the question – prior to the conclusion of an agreement – as to whether the agreement is compatible with the Treaty. Article 300(6) EC thus has the aim of forestalling complications which would result from legal disputes concerning the compatibility with the Treaty of international agreements binding upon the Community (see, in particular, Opinion 1/75 [1975] ECR 1355, 1360).

108The procedure provided for in Article 300(6) EC must therefore be available for all questions capable of submission for judicial consideration, in so far as such questions give rise to doubt as to either the substantive or the formal validity of the agreement with regard to the Treaty (Opinion 1/75, p. 1361, and Opinion 2/92 [1995] ECR I‑521, paragraph 14). A judgment on the compatibility of an agreement with the Treaty may in that regard depend not only on provisions of substantive law but also on those concerning the powers, procedure or organisation of the institutions of the Community (Opinion 1/78 [1979] ECR 2871, paragraph 30).

109According to the settled interpretation of the Court, its opinion may in particular be obtained on questions concerning the division, between the Community and the Member States, of competence to conclude a given agreement with non-member countries. Article 107(2) of the Rules of Procedure supports that interpretation (see, most recently, Opinion 1/03 [2006] ECRI‑1145, paragraph 112).

110Moreover, it must be recalled that the choice of the appropriate legal basis has constitutional significance. Since the Community has conferred powers only, it must tie the agreement that it seeks to conclude to a Treaty provision which empowers it to approve such a measure. To proceed on an incorrect legal basis is therefore liable to invalidate the act concluding the agreement and so vitiate the Community’s consent to be bound by the agreement it has signed. That is so in particular where the Treaty does not confer on the Community sufficient competence to ratify the agreement in its entirety, a situation which entails examining the allocation as between the Community and the Member States of the powers to conclude the agreement that is envisaged with non-member countries, or where the appropriate legal basis for the measure concluding the agreement lays down a legislative procedure different from that which has in fact been followed by the Community institutions (Opinion 2/00 [2001] ECR I-9713, paragraph 5).

111As regards the order in which the two questions referred to the Court must be considered, the Court accepts that, as most of the interveners have stated and as the Commission itself indeed acknowledges, the character, whether exclusive or not, of Community competence to conclude the agreements at issue and the legal basis to which recourse must be had for that purpose are two questions which are closely linked.

112Indeed, whether the Community alone has competence to conclude an agreement or whether such competence is shared with the Member States depends inter alia on the scope of the provisions of Community law which are capable of empowering the Community institutions to participate in the agreement (see, to that effect, Opinion 2/92, paragraph 12).

113Thus it is appropriate to consider together (i) the question of which legal bases underpin the Community’s competence to conclude the agreements at issue and (ii) the question whether such Community competence is exclusive or whether, on the contrary, the Member States retain a share in competence to conclude those agreements.

The competence of the Community to conclude the agreements at issue and the legal bases for such conclusion

114As a preliminary point, it must be recalled that, in the present case, the agreements at issue amend the GATS and more specifically the Annex thereto which includes the Schedules of specific commitments of WTO members. The GATS is a mixed agreement concluded both by the Community and by its Member States. The single Schedule of commitments of the Community and its Member States – the modification of which is inter alia the purpose of the agreements at issue – sets out, like the Schedules of the other WTO members, a collection of specific commitments which contribute to the establishment of a multilateral balance between the commitments of the various WTO members.

115In those circumstances, it is important to make clear from the outset that the Schedule of commitments of the Community and its Member States cannot be modified as the result of unilateral action by the Member States, whether they act individually or together. For such modifications, the Community’s participation is essential.

116However, it does not necessarily follow from those circumstances that the same is true as far as the participation of the Member States in the agreements at issue is concerned. Indeed, whether the participation of the Member States is necessary depends, in this instance, on, inter alia, whether, by virtue of the amendments made to Article 133 EC by the Treaty of Nice, external Community competence has evolved in such a way as to justify the Community alone concluding the agreements at issue – a question which will be examined in this Opinion.

Concerning recourse to Article 133(1) and (5) EC, relating to the common commercial policy

117The competence of the Community to participate in conclusion of the agreements at issue under Article 133(1) and (5) EC is beyond doubt.

118First, it is not in dispute that those agreements contain provisions which concern inter alia services supplied under mode 1. As the Court held in paragraph 44 of Opinion 1/94, such a mode which covers cross-frontier supplies of services falls within the concept of the common commercial policy referred to in Article 133(1) EC. That provision, which, as the Court has consistently held, confers exclusive competence on the Community, has not been amended.

119Second, it follows from the first subparagraph of Article 133(5) EC, which was introduced by the Treaty of Nice, that the Community is now also competent to conclude, under the common commercial policy, international agreements relating to trade in services supplied under modes 2 to 4. Such modes of supply of services, which the GATS refers to as ‘consumption abroad’, ‘commercial presence’ and ‘presence of natural persons’ respectively and which were formerly outside the sphere of the common commercial policy (see Opinion 1/94, paragraph 47), now fall within it on the conditions laid down in Article 133(5) and (6) EC.

120Contrary to the submission of the Kingdom of Spain, nothing permits the inference that only trade in services through supplies made under mode 2, within the meaning of the GATS, is covered by the external Community competence thus established in the first subparagraph of Article 133(5) EC.

121First, it may be noted that, given both its general nature and the fact that it was concluded at world level, the GATS assumes, as regards in particular the concept of ‘trade in services’ (an expression used both by the GATS and by the first subparagraph of Article 133(5) EC), particular importance in the sphere of international action relating to trade in services.

122Second, the stipulation in the first subparagraph of Article 133(5) EC to the effect that the conclusion of agreements in the field of trade in services is now to fall within the common commercial policy ‘in so far as those agreements are not covered by [Article 133(1) to (4) EC]’ must particularly be read in the light of the context following Opinion 1/94, in which the Court – as has been recalled in paragraphs 118 and 119 of this Opinion – held that trade in the services supplied under mode 1 within the meaning of the GATS fell within the scope of Article 133(1) EC, to the exclusion of trade in the services supplied under modes 2 to 4 within the meaning of that agreement.

123In this case and as is clear from paragraphs 34 to 39 of this Opinion, it is moreover established that the agreements at issue, particularly the modifications, withdrawals and compensatory adjustments which they include in relation to both horizontal and sectoral commitments, concern to a very great extent trade in services provided under modes 2 to 4.

124Having regard to the foregoing, it may be concluded, in the context of the answer to be given to the second question raised in the request for an Opinion, that the Community has competence to conclude the agreements at issue in part under Article 133(1) EC and in part under Article 133(5) EC, so that the Community act concluding those agreements must be based inter alia on those two provisions.

Concerning recourse to the second subparagraph of Article 133(6) EC and the participation of the Member States in the conclusion of the agreements at issue

125In contrast to the Commission and the Parliament, which submit that conclusion of the agreements at issue falls within the exclusive competence of the Community, the Member States which have submitted observations and the Council take the view that the conclusion of those agreements requires the joint participation of the Community and its Member States. To explain why joint participation is necessary, they base their argument in particular (as is clear from paragraph 62 of this Opinion) on the second subparagraph of Article 133(6) EC.

126Two preliminary observations must be made.

127First, it must be recalled that concerns such as those expressed by the Commission relating to the need for unity and rapidity of external action and to the difficulties which might arise were the Community and the Member States to participate jointly in conclusion of the agreements at issue cannot change the answer to the question of competence. Replying to similar arguments advanced by the Commission in the procedure concerning the request for Opinion 1/94 relating to conclusion of the agreements annexed to the WTO agreement, the Court held that the resolution of the issue of the allocation of competence could not depend on problems which might possibly arise in administration of the agreements concerned (Opinion 1/94, paragraph 107; see also, to that effect, Opinion 2/00, paragraph 41). The same clearly holds for possible problems relating to the conclusion of agreements.

128Second, the fact, emphasised by the Commission, that the provisions in Annex I to the agreements at issue withdraw or modify commitments and accordingly result in service markets in the Member States being less open to suppliers of services from non-member countries and thus in a reduction in the external commitments with which the Member States have to comply, likewise cannot have any bearing on the determination of the rules establishing competence to make such withdrawals or modifications.

129Indeed, external competence whereby commitments may be made to determine the conditions on which suppliers of services from non-member countries may have access to a service market within the Community necessarily includes competence to abandon or reduce such commitments.

130Having made those preliminary points, it is now appropriate to consider the scope of the second subparagraph of Article 133(6) EC in order to ascertain whether that provision requires, as the Council and all the Member States which have expressed a view on this point have maintained, that the agreements at issue be concluded jointly by the Community and its Member States.

131In the interpretation of that provision, it should be borne in mind, as has already been pointed out in paragraph 110 of this Opinion, that the Community has, as is clear from Article 5 EC, conferred powers only.

132Furthermore, the first subparagraph of Article 133(5) EC, which establishes external Community competence in respect of international trade in services under modes 2 to 4, expressly provides that that competence is ‘without prejudice’ to Article 133(6) EC.

133For its part, the second subparagraph of Article 133(6) EC provides that ‘by way of derogation’ from the first subparagraph of Article 133(5) EC, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services are to fall within the shared competence of the Community and its Member States and are to be concluded jointly by the Member States and the Community.

134It is thus apparent from the very wording of those provisions that, in contrast to the agreements relating to trade in services which do not concern the services identified in the second subparagraph of Article 133(6) EC, agreements which relate to those services cannot be concluded by the Community acting alone, such conclusion requiring the joint participation of the Community and the Member States.

135The second subparagraph of Article 133(6) EC reflects a concern to prevent trade in such services being regulated by means of international agreements concluded by the Community alone under its external competence in commercial matters. Without in any way excluding a Community competence in that regard, the second subparagraph of Article 133(6) EC requires, however, that that competence which the Community in this instance shares with its Member States be exercised jointly by those States and the Community.

136It may be observed that, by providing in that way for common action by the Community and its Member States by virtue of their shared competence, the second subparagraph of Article 133(6) EC allows the interest of the Community in establishing a comprehensive, coherent and efficient external commercial policy to be pursued whilst at the same time allowing the special interests which the Member States might wish to defend in the sensitive areas identified by that provision to be taken into account. The requirement of unity in the international representation of the Community calls in addition for close cooperation between the Member States and the Community institutions in the process of negotiation and conclusion of such agreements (see, to that effect, inter alia, Opinion 2/00, paragraph 18 and case-law cited).

137In view of the foregoing, the various arguments put forward by the Commission and the Parliament to restrict the scope of the second subparagraph of Article 133(6) EC cannot succeed.

138As regards the contention of those institutions that that provision covers only agreements which concern exclusively or predominantly trade in services in the sectors referred to by it, the following points should be noted.

139Besides the fact that it finds no support in the wording of the second subparagraph of Article 133(6) EC, such an interpretation cannot be reconciled with the aim pursued by that provision which, as has been pointed out in paragraph 135 of this Opinion, seeks to preserve for the Member States an effective external competence in the sensitive areas covered by the provision.

140Indeed, one of the consequences of such an interpretation would be to remove from the sphere of application of the second subparagraph of Article 133(6) EC all the ‘horizontal’ agreements which concern trade in services as a whole. In addition, it would follow from that interpretation that international provisions with strictly the same object contained in an agreement and concerning the areas of sensitive services specified in the second subparagraph of Article 133(6) EC would fall within or outwith the shared competence of the Community and its Member States to which that provision refers depending solely on whether the contracting parties to the agreement decided to deal only with trade in such sensitive services or whether they agreed to deal at the same time with that trade and with trade in some other type of services or in services as a whole.

141For the same reasons, the fact, also highlighted by the Commission, that the third subparagraph of Article 133(5) EC provides that a Community act concluding a horizontal agreement requires unanimity within the Council insofar as such an agreement also concerns the second subparagraph of Article 133(6) EC likewise cannot support the conclusion that Community competence to conclude such an agreement must, contrary to the case of sectoral agreements which specifically concern the sensitive areas referred to in that second subparagraph, be exclusive in character.

142The third subparagraph of Article 133(5) EC articulates moreover a rule whose purpose is to state the manner in which Community competence must be exercised and not to specify the nature of that competence. Furthermore, the requirement for unanimity within the Council in relation to the adoption of a Community act concluding an agreement is not in any way incompatible with the fact that such conclusion falls within a competence which is shared with the Member States.

143As regards the argument which the Commission also espouses that it follows from the first subparagraph of Article 133(6) EC that the second subparagraph thereof is applicable only where provisions of an agreement would lead to harmonisation in the sensitive service sectors covered by that second subparagraph, the following points should be noted.

144As the Council and most of the Member States which have submitted observations have maintained, the premiss on which that argument is based, namely that the first subparagraph of Article 133(6) EC has the sole object of excluding external Community competence where the provisions of a proposed agreement lead to harmonisation of national laws or regulations in an area in which the Treaty rules out such harmonisation, cannot be inferred from that provision. Indeed, the case of harmonisation is mentioned in that provision only by way of example as use of the phrase ‘in particular’ shows.

145That conclusion alone serves to rule out the Commission’s interpretation which seeks, on that basis, to restrict the sphere of application of the second subparagraph of Article 133(6) EC to only those cases in which the provisions of a proposed agreement would lead to harmonisation in one of the service sectors identified in that second subparagraph.

146In those circumstances, and having regard, in particular, to the points made in paragraphs 131 to 136 of this Opinion and specifically to the actual wording of the second subparagraph of Article 133(6) EC and to the aim which it pursues, the interpretation advocated by the Commission in respect of the second subparagraph cannot follow from the content of the first subparagraph of Article 133(6) EC.

147In this instance, it is clear from the agreements at issue that the matters they cover include, as is stated in paragraph 36 of this Opinion, the extension to a number of new Member States of a sectoral limitation relating to educational services mentioned in the existing Schedule of commitments of the Community and its Member States and seeking to ensure that those services be covered by that Schedule only in so far as privately funded education services are concerned.

148As has been seen in paragraph 34 of this Opinion, the agreements also extend to all or some of the new Member States various horizontal limitations concerning market access and national treatment. Such horizontal limitations are, as a general rule, applicable in all the service sectors covered by the Schedule of commitments of the Community and its Member States, which include services that are mentioned in the second subparagraph of Article 133(6) EC, such as privately funded education services or certain social or health services.

149Thus, for example, the extension to the new Member States of the horizontal limitation relating to access under mode 3 to services regarded as public utilities at a national or local level which may be subject to public monopolies or to exclusive rights granted to private operators may, in particular, apply in relation to health services, as is expressly stated in the explanatory note relating to that limitation in the existing Schedule of commitments of the Community and its Member States.

150In those circumstances, it follows from the second subparagraph of Article 133(6) EC that the Community and the Member States have in this instance a shared competence to conclude the agreements at issue jointly. That finding suffices to answer the first question raised in the request submitted to the Court for an Opinion.

151It remains to point out, in view of the answer to be given to the second question raised in that request, that, since it is established that the second subparagraph of Article 133(6) EC governs the conclusion of the agreements at issue, that provision, which makes clear the shared nature of the Community competence in that regard and, in doing so, supplements the rule in the first subparagraph of Article 133(5) EC, must, like the latter provision, serve as a legal basis for the Community act concluding those agreements.

Concerning recourse to Articles 71 EC and 80(2) EC, relating to the common transport policy

152The Commission and the Parliament submit that Article 133(1) and (5) EC constitute the sole legal basis to which recourse must be had for the purposes of adoption of the Community act concluding the agreements at issue.

153Conversely, the Council and all the Member States which have intervened in these proceedings and which have expressed a view on this point contend that, since the agreements cover inter alia transport services – in particular maritime and air transport services – the Community act concluding the agreements must, in addition to Article 133(1), (5) and (6) EC, also be based on Articles 71 EC and 80(2) EC.

154In order to give an opinion on these divergent views, it is necessary, as all the governments and institutions which have submitted observations agree, to consider the third subparagraph of Article 133(6) EC, which specifically provides that the negotiation and conclusion of international agreements in the field of transport is to continue to be governed by the provisions of Title V of the Treaty and Article 300 EC.

155According to the Commission and the Parliament, the third subparagraph of Article 133(6) EC must be interpreted as being applicable only in the case of agreements which are exclusively, or at the very least predominantly, concerned with transport. In the view of those institutions, that is not the case of the agreements at issue, whose object is trade in services in general, transport services for their part being only ancillary or secondary within the agreements.

156In order to clarify the scope of the third subparagraph of Article 133(6) EC, it should, in the first place, be recalled that the first subparagraph of Article 133(5) EC, which, as has been stated above, confers external competence on the Community in respect of the common commercial policy in the field of trade in services supplied under modes 2 to 4, expressly states that that competence is ‘without prejudice to paragraph 6’.

157Second, it is highly unusual that a Treaty provision conferring external Community competence in a given field should resolve, as the third subparagraph of Article 133(6) EC does, a potential conflict of Community legal bases by specifically stating that another provision of the Treaty is to be preferred to it so far as concerns the conclusion of certain types of international agreements which are prima facie liable to be covered by one or other legal basis.

158Third, there is no doubt that the expression ‘international agreements in the field of transport’ covers, inter alia, the field of trade concerning transport services. It would make no sense to specify in the middle of a provision relating to the common commercial policy that agreements in the field of transport which are not related to trade in transport services fall within the transport policy and not the common commercial policy.

159Fourth, the provision stating that the negotiation and conclusion of agreements in the field of transport ‘shall continue’ to be governed by the provisions of the Treaty relating to transport policy reflects the intention that a form of status quo ante should be preserved in that field.

160It should be recalled in that regard that in Opinion 1/94, given precisely in relation to the conclusion of the GATS which the agreements at issue are to modify, the Court held that international agreements in transport matters were not covered by Article 113 of the EC Treaty (now, after amendment, Article 133 EC) making clear that that was the case irrespective of the fact that such agreements concern safety rules such as those at issue in Case 22/70 Commission v Council (‘ERTA’) [1971] ECR 263 or that they constitute, like the GATS, agreements of a commercial nature (see Opinion 1/94, paragraphs 48 to 53; see also, to that effect, Opinion 2/92, paragraph 27).

161In order to arrive at that conclusion, the Court pointed out, in particular, (in paragraph 48 of Opinion 1/94) that transport was the subject of a specific title of the Treaty, distinct from the title on the common commercial policy, and recalled in that regard that it followed from settled case-law that the Community has an implied external competence under the common transport policy.

162It follows from the foregoing that, before the entry into force of the Treaty of Nice, trade in services in transport matters remained wholly outside the common commercial policy. Even if supplied under mode 1, trade in such services thus continued, unlike other types of services, to be covered by the title of the Treaty relating to the common transport policy (Opinion 1/94, paragraph 53).

163Fifth, the interpretation proposed by the Commission, by virtue of which only agreements exclusively or predominantly relating to trade in transport services are covered by the third subparagraph of Article 133(6) EC, would to a large extent deprive that provision of its effectiveness. Indeed, the consequence of that interpretation would be that international provisions with strictly the same object and contained in an agreement would fall in some cases within transport policy and in some cases within commercial policy depending solely on whether the parties to the agreement decided to deal only with trade in transport services or whether they agreed to deal at the same time with that trade and with trade in some other type of services or in services as a whole.

164It is apparent, however, from all the foregoing that the third subparagraph of Article 133(6) EC seeks to maintain, with regard to international trade in transport services, a fundamental parallelism between internal competence whereby Community rules are unilaterally adopted and external competence which operates through the conclusion of international agreements, each competence remaining – as previously – anchored in the title of the Treaty specifically relating to the common transport policy.

165It may, moreover, be observed that the particularity of Community action in respect of transport policy is underlined in Article 71(1) EC, which specifies that the Council is required to establish the common transport policy taking into account ‘the distinctive features of transport’. Similarly, it may be noted that, with regard more specifically to the field of trade in services, Article 71(1)(b) EC expressly confers competence on the Community to lay down, for the purpose of implementing that policy, ‘the conditions under which non-resident carriers may operate transport services within a Member State’.

166As regards the case-law concerning the choice of legal basis by reference to the criterion of the principal and the incidental purpose of a Community act, to which the Commission has also referred in order to justify recourse to Article 133(1) and (5) EC alone when concluding the agreements at issue, it is sufficient, in this instance, to state that the provisions of the agreements at issue relating to trade in transport services cannot be held to constitute a necessary adjunct to ensure the effectiveness of the provisions of those agreements concerning other service sectors (see, in that regard, Opinion 1/94, paragraph 51) or to be extremely limited in scope (see, in that regard, Opinion 1/94, paragraph 67, and Case C‑268/94 Portugal v Council [1996] ECR I‑6177, paragraph 75).

167First, trade in transport services, like trade in the other types of services covered by the GATS or by the agreements at issue, falls within the very purpose of the GATS and of those agreements, which, moreover, have a direct and immediate effect on trade in each of the types of services thus affected, no distinction being possible in that regard between those types of services.

168Second, it is established that the agreements at issue include, in this instance, a relatively high number of provisions whose effect is to modify both horizontal and sectoral commitments made by the Community and its Member States under the GATS, as regards the terms, conditions and limitations on which the Member States grant (i) access to transport services markets, in particular air or maritime, to suppliers of services from other WTO members and (ii) national treatment.

169It is clear for example from paragraph 34 of this Opinion that Annex I(A) to the agreements at issue extends to various new Member States the horizontal limitation relating to access under mode 3 to services regarded as public utilities at a national or local level which may be subject to public monopolies or to exclusive rights granted to private operators. As is specifically made clear by the explanatory note relating to that horizontal limitation in the existing Schedule of commitments of the Community and its Member States, that limitation may affect, inter alia, transport services and services related and auxiliary to all modes of transport. Likewise, the horizontal restrictions relating in some cases to national treatment and in others to market access, with which paragraph 34 of this Opinion is also concerned, are as a rule applicable in the service sectors covered by that Schedule of the Community and its Member States, which include, for example, certain air transport services such as services for the repair and maintenance of aircraft, sales and marketing of transport services or computer reservations systems as well as road transport services for passengers or freight.

170Furthermore, as is clear from paragraphs 36 and 37 of this Opinion, Annex I(A) to the agreements at issue also includes a number of provisions relating to sectoral commitments concerning transport services, which in some cases involve extension of sectoral limitations to certain new Member States and in some cases introduce such limitations in their regard.

171Annex I(B) to the agreements at issue effects, as can be seen from paragraph 38 of this Opinion, various withdrawals of horizontal commitments previously given by the Republic of Malta and the Republic of Cyprus in relation to national treatment under mode 4, as well as the withdrawal of a sectoral commitment given by the Republic of Malta concerning maritime transport services for passengers and freight.

172With regard, finally to the legislative practice invoked by the Commission, it is sufficient to recall that a mere practice on the part of the Council cannot derogate from rules laid down in the Treaty and cannot therefore create a precedent binding on the Community institutions with regard to the correct legal basis (Opinion 1/94, paragraph 52). According to settled case‑law, the choice of the legal basis for a Community measure must rest on objective factors amenable to judicial review and not on the legal basis used for the adoption of other Community measures which might, in certain cases, display similar characteristics (see, inter alia, Case C‑155/07 Parliament v Council [2008] ECR I‑0000, paragraph 34 and case-law cited).

173On the basis of all the foregoing it must be concluded, in the context of the answer to be given to the second question raised in the request for an Opinion, that the ‘transport’ aspect of the agreements at issue falls, in accordance with the third subparagraph of Article 133(6) EC, within the sphere of transport policy and not that of the common commercial policy.

In conclusion, the Court (Grand Chamber) gives the following opinion:

1.The conclusion of the agreements with the affected members of the World Trade Organisation, pursuant to Article XXI of the General Agreement on Trade in Services (GATS), as described in the request for an Opinion, falls within the sphere of shared competence of the European Community and the Member States.

2.The Community act concluding the abovementioned agreements must be based both on Article 133(1), (5) and (6), second subparagraph, EC and on Articles 71 EC and 80(2) EC, in conjunction with Article 300(2) and (3), first subparagraph, EC.

[Signatures]