A. The relevant directives on judicial cooperation in criminal matters

2 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ 2011 L 101, p. 1), applicable to all Member States, with the exception of the Kingdom of Denmark, provides in Article 1:

3 Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ 2011 L 335, p. 1, and corrigendum OJ 2012 L 18, p. 7), applicable to all Member States, with the exception of the Kingdom of Denmark, states in Article 1:

4 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (OJ 2012 L 315, p. 57), applicable to all Member States, with the exception of the Kingdom of Denmark, states in recital 11 thereof:

B. The relevant directives relating to the common asylum policy

5 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12), which is applicable to all the Member States, with the exception of the Kingdom of Denmark and Ireland, states in Article 3(4)(a) and (5):

6 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44), which is applicable to all Member States, with the exception of the Kingdom of Denmark and Ireland, provides in Article 3(3)(a) and (b):

1. (a) bilateral and multilateral agreements between the [European Union] or the [European Union] and its Member States, on the one hand, and third countries, on the other;

2. (b) bilateral agreements already concluded between a Member State and a third country before the date of entry into force of this Directive’.

7 Under Article 13 of that directive:

8 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98), which is applicable to all Member States, with the exception of the Kingdom of Denmark and Ireland, provides in Article 4:

1. 1. ‘This Directive shall apply without prejudice to more favourable provisions of:

   1. (a) bilateral or multilateral agreements between the [European Union] or the [European Union] and its Member States and one or more third countries;

   2. (b) bilateral or multilateral agreements between one or more Member States and one or more third countries.

2. 2. This Directive shall be without prejudice to any provision which may be more favourable for the third-country national, laid down in the [European Union] acquis relating to immigration and asylum.

3. 3. This Directive shall be without prejudice to the right of the Member States to adopt or maintain provisions that are more favourable to persons to whom it applies provided that such provisions are compatible with this Directive.

4. 4. With regard to third-country nationals excluded from the scope of this Directive in accordance with Article 2(2)(a), Member States shall:

   1. (a) ensure that their treatment and level of protection are no less favourable than as set out in Article 8(4) and (5) (limitations on use of coercive measures), Article 9(2)(a) (postponement of removal), Article 14(1)(b) and (d) (emergency health care and taking into account needs of vulnerable persons), and Articles 16 and 17 (detention conditions) and

   2. (b) respect the principle of non-refoulement.’

9 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9), which succeeded Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12) and is applicable to all the Member States, with the exception of the Kingdom of Denmark and Ireland, provides, in Article 3:

10 Directive 2004/83 – which, although repealed by Directive 2011/95, continues to apply to Ireland – provides in Article 1:

11 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60), which is applicable to all the Member States, with the exception of the Kingdom of Denmark and Ireland, provides in Article 5:

12 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13) – which, although repealed by Directive 2013/32, continues to be apply to Ireland – states in Article 1:

13 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96), which is applicable to all the Member States, with the exception of the Kingdom of Denmark and Ireland, provides in Article 4:

C. The Staff Regulations of Officials of the European Union and the Condition of Employment of Other Servants of the European Union

14 Regulation No 31 (EEC) 11, (EAEC) laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and of the European Atomic Energy Community (OJ, English Special Edition, Series I 1959-1962, p. 135), as last amended by Council Regulation (EU) No 1416/2013 of 17 December 2013 (OJ 2013 L 353, p. 24), states, inter alia, in the second recital thereof, that the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union are intended to ‘enable [the officials and other servants of the European Union] to discharge their duties in conditions which will ensure maximum efficiency’.

A. Analysis of the Istanbul Convention

15 The Istanbul Convention, the final text of which was adopted by the Committee of Ministers of the Council of Europe on 7 April 2011, was opened for signature on 11 May 2011 at the 121st session of that committee in Istanbul (Turkey). That convention, which entered into force on 1 August 2014, includes a preamble, 81 articles, divided into 12 chapters and an annex on privileges and immunities which apply to the members of the ‘Group of experts on action against violence against women and domestic violence’ (‘GREVIO’) referred to in Article 66 of that convention.

16 In its preamble, the Istanbul Convention refers to, inter alia, the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, the Council of Europe Convention on Action against Trafficking in Human Beings. the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (United Nations Treaty Series, vol. 1249, p. 13) and international humanitarian law, in particular the Convention relative to the Protection of Civilian Persons in Time of War, signed in Geneva on 12 August 1949 (United Nations Treaty Series, vol. 75, p. 287).

17 That preamble recognises that violence against women is a manifestation of historically unequal power relations between women and men, which have led to domination over, and discrimination against, women by men, the structural nature of violence against women as gender-based violence, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.

18 Pursuant to Article 1 of that convention, in Chapter I thereof, entitled ‘Purposes, definitions, equality and non-discrimination, general obligations’, the purposes of the Istanbul Convention are, inter alia, to protect women against all forms of violence, and to prevent, prosecute and eliminate such violence, to contribute to the elimination of all forms of discrimination against women and to design a comprehensive framework, policies and measures of protection and assistance. That provision also states that that convention establishes a specific monitoring mechanism.

19 Under Article 3(c) of that convention, the term ‘gender’ means the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men. In accordance with point (f) of that article, the term ‘women’ includes girls under the age of 18.

20 In accordance with Articles 5 and 6 of the Istanbul Convention, the parties to that convention undertake to act in order to prevent, investigate, punish and provide reparation for acts of violence covered by that convention and to include a gender perspective in the implementation and evaluation of the impact of the provisions of that convention.

21 Under Articles 7, 8, 10 and 11 of the Istanbul Convention, set out in Chapter II thereof, entitled ‘Integrated policies and data collection’, the parties to that convention undertake, inter alia, to implement State-wide effective, comprehensive and coordinated policies to prevent and combat all forms of violence covered by that convention, to allocate appropriate financial and human resources for that purpose, to designate official bodies responsible for the coordination, implementation, monitoring and evaluation of policies, to collect disaggregated relevant statistical data at regular intervals on cases of all forms of violence covered by the scope of that convention and to support research concerning the root causes and effects, incidences and conviction rates of the forms of violence covered by that convention.

22 Chapter III of the Istanbul Convention, entitled ‘Prevention’, includes inter alia Articles 12 to 16 thereof, which set out the obligations on the parties to that convention to promote changes in the social and cultural patterns of behaviour with a view to eradicating prejudices, customs, traditions and all other practices which are based on the idea of the inferiority of women or on stereotyped roles for women and men, to prevent all forms of violence covered by that convention, to put the specific needs of vulnerable persons and victims at the centre of measures taken, to ensure that culture, custom, religion, tradition or so-called ‘honour’ shall not be considered as justification for any acts of violence, to promote or conduct, on a regular basis and at all levels, awareness-raising campaigns or programmes, to include teaching material on issues such as equality between women and men, non-stereotyped gender roles, mutual respect, non-violent conflict resolution in interpersonal relationships, gender-based violence against women and the right to personal integrity in education, sports, cultural and leisure facilities and the media and to set up programmes aimed at teaching perpetrators of domestic violence to adopt non-violent behaviour.

23 Chapter IV of the Istanbul Convention, entitled ‘Protection and support’, provides, in Articles 18 to 28 thereof, that the parties to that agreement are to take the necessary measures to protect all victims from any further acts of violence, including mechanisms for effective cooperation between all relevant state agencies, adequate and timely information on available support services and legal measures, legal and psychological counselling, financial assistance, health care and social services, information on individual/collective complaints mechanisms, appropriate, easily accessible shelters in sufficient numbers, round-the-clock telephone helplines free of charge, rape crisis or sexual violence referral centres for victims, age-appropriate psychosocial counselling for child witnesses of violence and the necessary measures to ensure that the confidentiality rules imposed on certain professionals do not constitute an obstacle to their reporting to the competent organisations of a serious act of violence committed or expected.

24 Chapter V of the Istanbul Convention, entitled ‘Substantive law’, contains, first, Articles 29 to 32 thereof, under which the parties undertake to provide victims with adequate civil remedies against the perpetrator and against State authorities that have failed in their duty to take the necessary preventive or protective measures, in order to obtain, within a reasonable time, adequate compensation from perpetrators for any offences or from the State for serious bodily injury or impairment of health, to the extent that the damage is not covered by other sources. Those provisions also require that, in the determination of custody and visitation rights of children, incidents of violence are taken into account and that marriages concluded under force may be annulled or dissolved without undue financial or administrative burden placed on the victim.

25 Secondly, Chapter V includes Articles 33 to 48 of that convention, by which the parties to that convention undertake to ensure that the following conduct is criminalised and punishable by effective, proportionate and dissuasive sanctions: inter alia, the commission, attempt to commit, aiding or abetting the commission of impairing a person's psychological integrity through coercion or threats, threatening conduct directed at another person, causing her or him to fear for her or his safety, acts of physical violence, non-consensual acts of a sexual nature with a person, forcing an adult or a child to enter into a marriage, excising, infibulating or performing any other mutilation to a woman's genitals, performing an abortion on a woman without her prior consent, performing surgery which terminates a woman's capacity to naturally reproduce without her consent and any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which violates the dignity of a person, in particular when it creates an intimidating, hostile, degrading, humiliating or offensive environment.

26 It is also provided, in Article 44(4) of the Istanbul Convention, that jurisdiction for the prosecution of the offences established in accordance with Articles 36 to 39 of that convention, namely those concerning sexual violence, forced marriage, genital mutilation, forced abortion and forced sterilisation is not to be subordinated to the condition that the prosecution can only be initiated following the reporting by the victim of the offence or the laying of information by the State of the place where the offence was committed. Under Article 46 of that convention, the commission of acts against a former or a current spouse or cohabiting person, vulnerable persons or children, inter alia, constitute aggravating circumstances. Article 48(1) of the Istanbul Convention provides that the parties to that convention are to take the necessary measures to prohibit mandatory alternative dispute resolution processes in relation to all forms of violence covered by the scope of that convention.

27 Chapter VI of the Istanbul Convention, entitled ‘Investigations, prosecution, procedural law and protective measures’, contains Articles 49 to 58 thereof, according to which the parties are to ensure that the responsible law enforcement agencies respond promptly and appropriately by offering adequate and immediate protection to victims of violence, in particular by ensuring that investigations and judicial proceedings are carried out without undue delay, by employing preventive operational measures and by carrying out an assessment of the lethality risk, the seriousness of the situation and the risk of repeated violence.

28 Furthermore, the parties to the Istanbul Convention are to provide that appropriate restraining or protection orders are available without undue financial or administrative burdens placed on the victim, inter alia in situations of immediate danger, by ordering a perpetrator of domestic violence to vacate the residence of the victim. Victims must be protected from retaliation and be informed when the perpetrator escapes or is released. They must be informed of their rights and the services at their disposal, be provided with appropriate support, including legal assistance and free legal aid, and allowed the possibility to be heard in such a way that contact between victims and perpetrators is avoided, inter alia by enabling victims to testify without being physically present. Under Articles 54 and 56 of the Istanbul Convention, the competent authorities are to protect the privacy and the image of the victim, inter alia by ensuring that evidence relating to the sexual history and conduct of the victim is permitted only when it is relevant and necessary.

29 Article 56(2) of that convention provides that a child victim and child witness of violence against women is to be afforded special protection measures and Article 58 of that convention provides that the statute of limitation for initiating any legal proceedings with regard to the offences established in accordance with Articles 36 to 39 thereof are to continue for a period of time that is sufficient and commensurate with the gravity of the offence in question, to allow for the efficient initiation of proceedings after the victim has reached the age of majority.

30 In Chapter VII of the Istanbul Convention, entitled ‘Migration and asylum’, Article 59 thereof lays down, first, the obligation for the parties to that convention to ensure that victims whose residence status depends on that of the spouse or partner are granted, in the event of particularly difficult circumstances, an autonomous residence permit and the obligation to take the measures necessary to ensure that victims may obtain the suspension of expulsion proceedings in relation to that residence status. That article then provides for the issue of a renewable residence permit to victims where their stay is necessary owing to their personal situation or for the purpose of their cooperation in investigation or criminal proceedings. Finally, under that article, victims of forced marriage brought into another country for the purpose of the marriage and who, as a result, have lost their residence status must be able to regain this status.

31 Under Article 60 of the Istanbul Convention, gender-based violence against women must be recognised as a form of persecution within the meaning of Article 1(A)(2), of the 1951 Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, and as a form of serious harm giving rise to subsidiary protection. In addition, in accordance with Article 60 thereof, the parties to the Istanbul Convention must ensure that a gender-sensitive interpretation is given to each of the grounds of the Convention relating to the Status of Refugees in assessing whether to grant refugee status, and that measures are taken to develop gender-sensitive reception procedures and support services for asylum-seekers as well as gender guidelines and gender-sensitive asylum procedures.

32 Under Article 61 of the Istanbul Convention, victims of violence against women who are in need of protection cannot be returned under any circumstances to any country where their life would be at risk or where they might be subjected to torture or inhuman or degrading treatment or punishment.

33 Chapter VIII of that convention, entitled ‘International co-operation’, contains Articles 62 to 65, which provide that the parties to that convention undertake inter alia to cooperate in civil and criminal matters for the purpose of preventing, combating and prosecuting all forms of violence covered by that convention; protecting and providing assistance to victims; carrying out investigations or proceedings concerning the offences and enforcing civil and criminal judgments, to ensure that victims of an offence established and committed in the territory of a party to the Istanbul Convention other than the one where they reside may make a complaint before the competent authorities of their State of residence and to consider the Istanbul Convention to be the legal basis for mutual legal assistance in criminal matters, extradition or enforcement of civil or criminal judgments.

34 Articles 63 and 64 of the Istanbul Convention encourage the parties to that convention to forward information which might assist in preventing criminal offences or in initiating or carrying out investigations and to transmit without delay information according to which a person is at immediate risk of being subjected to acts of violence for the purpose of ensuring that appropriate protection measures are taken, while respecting the protection of personal data, as provided for in Article 65 of that convention.

35 In Chapter IX of the Istanbul Convention, entitled ‘Monitoring mechanism’, Article 66 of that convention establishes GREVIO, tasked with monitoring the implementation of that convention. In accordance with Article 68 of that convention, the parties there are to submit, based on a questionnaire prepared by GREVIO, a report on legislative and other measures giving effect to the provisions of the Istanbul Convention, for consideration by GREVIO, which is to consider the report submitted with the representatives of the party concerned. It may also receive information on that implementation from non-governmental organisations and civil society, and is to take due consideration of the information available from other instruments and bodies. GREVIO may also organise country visits, and may be assisted by specialists during those visits. GREVIO is to prepare a report on the party to the Istanbul Convention subject to evaluation, intended to enable the Committee of the Parties, established in Article 67 of that convention, to adopt recommendations addressed to that party.

36 In Chapter X of the Istanbul Convention, entitled ‘Relationship with other international instruments’, Article 71 thereof states that that convention is not to affect obligations arising from other international instruments and that the parties to that convention may conclude agreements for purposes of supplementing or strengthening its provisions or facilitating the application of the principles embodied in it.

37 Chapter XII, entitled ‘Final clauses’, of that convention contains Articles 73 to 81 thereof. Under Article 73 of the Istanbul Convention, the provisions of that convention are not to prejudice provisions under which more favourable rights are or would be accorded.

38 Article 75 of that convention provides that it is open for signature by the Member States of the Council of Europe, the non-member States which have participated in its elaboration and the European Union and that it is subject to ratification.

39 Under Article 77 of that convention, any State or the European Union may, at the time of signature or when depositing its instrument of ratification, specify the territory or territories to which the Istanbul Convention is to apply and any party may, at any later date, extend the application of that convention to any other territory on whose behalf it is authorised to give undertakings, or withdraw such declarations.

40 Article 78 of the Istanbul Convention states that no reservation may be made in respect of any provision of that convention, with the exception of the possibility for any State or the European Union to declare that it reserves the right not to apply or to apply only in specific cases or conditions the provisions laid down in Article 30(2); Article 44(1)(e), (3) and (4); Article 55(1) in respect of Article 35 regarding minor offences; Article 58 in respect of Articles 37, 38 and 39 and Article 59 of the Istanbul Convention and the right to provide for non-criminal sanctions, instead of criminal sanctions, for the behaviours referred to in Articles 33 and 34 of that convention.

B. The proposals for decisions on the signing and conclusion of the Istanbul Convention

41 On 4 March 2016, the European Commission submitted to the Council both its proposal for a Council decision on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence (COM(2016) 111 final; ‘the proposal for a signature decision’) and its proposal for a Council decision on the conclusion, by the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence (COM(2016) 109 final; ‘the proposal for a conclusion decision’). The latter proposal, the content of which is essentially identical to that of the proposal for a signature decision, is worded as follows:

Taken as a whole, although the [Istanbul] Convention has several components, its predominant purpose lies in the prevention of violent crimes against women, including domestic violence, and the protection of victims of such crimes. It therefore appears appropriate to base the Decision on the competences of the Union under Title V TFEU and in particular on Article 82(2) and Article 84 thereof. The provisions of the [Istanbul] Convention on other matters are ancillary or, for example for data protection, incidental to the measures that constitute the focus of [that convention]. As a consequence, for the [European Union] to exercise its competences over the entirety of [that convention] and excluding elements over which it would have no competence, the main legal bases are Article 82(2) and Article 84 TFEU.’

C. Signature decision 2017/865

42 The first citation in the preamble to Council Decision (EU) 2017/865 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to matters related to judicial cooperation in criminal matters (OJ 2017 L 131, p. 11; ‘signature decision 2017/865’), is worded as follows:

43 Recitals 1 to 11 of that decision state:

1. (1) ‘The Union participated alongside the Member States as an observer in the negotiation of the [Istanbul Convention] …

2. (2) In accordance with Article 75 of the [Istanbul] Convention, the Convention is open for signature by the Union.

3. (3) The [Istanbul] Convention creates a comprehensive and multifaceted legal framework to protect women against all forms of violence. It seeks to prevent, prosecute and eliminate violence against women and girls and domestic violence. It covers a broad range of measures, from data collection and awareness raising to legal measures on criminalising different forms of violence against women. It includes measures for the protection of victims and the provision of support services, and addresses the gender-based violence dimension in matters of asylum and migration. The [Istanbul] Convention establishes a specific monitoring mechanism in order to ensure effective implementation of its provisions by the Parties.

4. (4) The signing of the [Istanbul] Convention on behalf of the Union will contribute to the realisation of equality between women and men in all areas, which is a core objective and value of the Union to be realised in all its activities in accordance with Articles 2 and 3 [TEU], Article 8 [TFEU] and Article 23 of the Charter of Fundamental Rights of the European Union. Violence against women is a violation of their human rights and an extreme form of discrimination, entrenched in gender inequalities and contributing to maintaining and reinforcing them. By committing to the implementation of the [Istanbul] Convention, the Union confirms its engagement in combating violence against women within its territory and globally, and reinforces its current political action and existing substantial legal framework in the area of criminal procedural law, which is of particular relevance for women and girls.

5. (5) Both the Union and its Member States have competence in the fields covered by the [Istanbul] Convention.

6. (6) The [Istanbul] Convention should be signed on behalf of the Union as regards matters falling within the competence of the Union in so far as [that convention] may affect common rules or alter their scope. This applies, in particular, to certain provisions of [that convention] relating to judicial cooperation in criminal matters and to the provisions of [that convention] relating to asylum and non-refoulement. The Member States retain their competence in so far as the [Istanbul] Convention does not affect common rules or alter the scope thereof.

7. (7) The Union also has exclusive competence to accept the obligations set out in [that convention] with respect to its own institutions and public administration.

8. (8) Since the competence of the Union and the competences of the Member States are interlinked, the Union should become a Party to [that convention] alongside its Member States, so that together they can fulfil the obligations laid down by the [Istanbul] Convention and exercise the rights vested in them in a coherent manner.

9. (9) This Decision concerns the provisions of [that convention] on judicial cooperation in criminal matters in so far as those provisions may affect common rules or alter their scope. It does not concern Articles 60 and 61 of [that convention], which are addressed by a separate Council decision on signing to be adopted in parallel with this Decision.

10. (10) Ireland and the United Kingdom are bound by Directives [2011/36 and 2011/93] and are therefore taking part in the adoption of this Decision.

11. (11) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, [the Kingdom of] Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application.’

44 Article 1 of that decision provides:

D. Signature decision 2017/866

45 The first citation in the preamble to Council Decision (EU) 2017/866 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to asylum and non-refoulement (OJ 2017 L 131, p. 13; ‘signature decision 2017/866’) is worded as follows:

46 Recitals 1 to 8 and 11 of that decision are identical to those recitals of signature decision 2017/865. Recitals 9 and 10 of signature decision 2017/866 state:

47 Article 1 of signature decision 2017/866 provides:

A. Facts and procedure

48 The Parliament observes that, on 4 March 2016, the Commission adopted both the proposal for a signature decision, citing Article 218(5) TFEU as the procedural legal basis and Article 82(2) and Article 84 TFEU as the substantive legal basis, and the proposal for a conclusion decision, citing Article 218(6) TFEU as the procedural legal basis and the same substantive legal basis as that of the proposal for a signature decision.

49 In authorising the signing of the Istanbul Convention by the European Union, the Council replaced those substantive legal bases with Article 78(2) , Article 82(2) and Article 83(1) TFEU.

50 In addition, on 11 May 2017, it adopted two separate decisions for the purposes of that authorisation, namely, signature decision 2017/865, based on Article 82(2) and Article 83(1) TFEU, and signature decision 2017/866, based on Article 78(2) TFEU.

51 Although the Istanbul Convention was signed on behalf of the European Union on 13 June 2017, the Council has not yet adopted any decision on the conclusion of that convention by the European Union, since, according to the Parliament, the Council seems to want to make the adoption of such a decision contingent on securing the prior ‘common accord’ of all the Member States.

B. The appropriate legal bases for concluding the Istanbul Convention

52 Having regard to the aims of the Istanbul Convention, relating to the protection of victims of violence against women and the prevention of such violence, as set out in Articles 1, 5 and 7 and specified in Chapters III and IV thereof, the Parliament submits that the Commission was justified in considering those aspects to be the two main components of that convention.

53 The Parliament therefore has doubts, in the first place, about the reasons justifying the Council's decision not to use Article 84 TFEU as the legal basis for the adoption of signature decisions 2017/865 and 2017/866 and the addition of Article 78(2) and Article 83(1) TFEU as legal bases for, respectively, signature decision 2017/866 and signature decision 2017/865.

54 As regards Article 78(2) TFEU, the Parliament states that that legal basis concerns only the area of asylum, covered by Articles 60 and 61 of the Istanbul Convention alone, and therefore questions whether the latter articles can properly be regarded as a separate, main component of that convention, or if those articles are not rather the manifestation, in the particular area of asylum, of the broader concern to protect all victims of violence against women, with the result that they are merely auxiliary provisions which do not call for the use of Article 78(2) TFEU as part of the substantive legal basis for those signature decisions.

55 As regards Article 83(1) TFEU, the Parliament submits that that provision limits the competence of the European Union to certain areas of criminal law, which do not include violence against women. Violence against women thus fall within the competence of the European Union only in the context of human trafficking, sexual exploitation of women and children and organised crime.

56 Accordingly, since the Member States have retained their competence in most of the areas of substantive criminal law addressed by the Istanbul Convention and the components of that convention which concern aspects of that law for which the European Union is competent appear secondary, they do not necessitate the addition of Article 83(1) TFEU as a basis for signature decisions 2017/865 and 2017/866.

C. Division of each of the acts on the signing and on the conclusion of the Istanbul Convention into two separate decisions

57 The Parliament submits that the fact that Ireland could invoke the provisions of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU (‘Protocol No 21’), in relation to Articles 60 and 61 of the Istanbul Convention, cannot in itself justify the choice of Article 78(2) TFEU as a legal basis for the act on the signing of that convention. Accordingly, if Articles 60 and 61 cannot be regarded as a separate, main component of that convention, the use of Article 78(2) TFEU is unnecessary and the division of the act on the signing of that convention into two separate decisions is unjustified.

58 In addition, the Parliament maintains that Articles 60 and 61 of the Istanbul Convention are in any event largely covered by common rules which apply to Ireland, since Directives 2004/83 and 2005/85 were repealed only as regards those Member States which are bound by Directives 2011/95 and 2013/32. Accordingly, even if the addition of Article 78(2) TFEU as a legal basis were justified, the question arises as to the necessity of splitting the decision on the signing of that convention into two separate decisions.

D. The practice of ‘common accord’ of the Member States

59 The Parliament states that the ‘mixed’ nature of the Istanbul Convention – the subject matter of which falls, in part, within the competences of the European Union and, in part, within those reserved for the Member States – is not disputed. However, Article 218(6) TFEU provides, as regards the conclusion of an international agreement on behalf of the European Union, for a Council decision adopted by a qualified majority after obtaining the consent of Parliament. The Parliament thus questions the Council's approach of ensuring, before concluding the Istanbul Convention, that all the Member States consent to be bound by it.

60 The Parliament acknowledges in that regard that it is essential to ensure close cooperation between the Member States and the EU institutions in the negotiation, conclusion and the fulfilment of the commitments entered into, but submits that waiting for a ‘common accord’ of all the Member States for the conclusion of that convention goes beyond such cooperation and amounts to applying, in practice, an unanimity rule within the Council despite the fact that, under the TFEU, only the qualified majority rule applies.

61 The Parliament also submits that the present situation differs from that in which the Council had merged the decisions of the European Union and of the Member States into a ‘hybrid’ act, since, in this case, there is no decision at all until the ‘common accord’ of the Member States has been secured. The Parliament notes, however, that the ‘common accord’ approach appears to be a general practice of the Council and not a requirement applied only in the present case.

A. Facts and procedure

B. Admissibility of the request for an Opinion

C. Substance of the request for an Opinion

A. Admissibility of the request for an Opinion

192 Under Article 218(11) TFEU, a Member State, the Parliament, the Council or the Commission may obtain the opinion of the Court as to whether an envisaged agreement is compatible with the Treaties.

193 In the first place, it is settled case-law of the Court that that provision has the aim of forestalling complications which would result from legal disputes concerning the compatibility with the Treaties of international agreements that are binding upon the European Union. A possible decision of the Court, after the conclusion of an international agreement that is binding upon the European Union, to the effect that such an agreement is, by reason either of its content or of the procedure adopted for its conclusion, incompatible with the provisions of the Treaties would inevitably provoke serious difficulties, not only in the internal EU context, but also in that of international relations, and might give rise to adverse consequences for all interested parties, including third countries (Opinion 1/15 (EU-Canada PNR Agreement), of 26 July 2017, EU:C:2017:592, paragraph 69).

194 Having regard to the function of the procedure provided for in Article 218(11) TFEU, which is to forestall, by a prior referral to the Court, possible complications at EU level and at international level which would result from the invalidation of an act concluding an international agreement, the mere risk of such invalidation suffices for the referral to the Court to be allowed (Opinion 1/15 (EU-Canada PNR Agreement), of 26 July 2017, EU:C:2017:592, paragraph 74).

195 However, that procedure is not intended specifically to protect the interests and rights of the Member State or EU institution which has requested the Opinion, which may bring an action for annulment of the Council's decision to conclude the agreement and may in that context apply for interim relief (see, to that effect, Opinion 3/94 (Framework Agreement on Bananas), of 13 December 1995, EU:C:1995:436, paragraphs 21 and 22).

196 Nor is that procedure intended to solve difficulties associated with implementation of an envisaged agreement which falls within shared EU and Member State competence (Opinion 2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, paragraph 17).

197 In the second place, it is apparent from the case-law that it must be possible, therefore, for all questions that are liable to give rise to doubts as to the substantive or formal validity of the agreement with regard to the Treaties to be examined in the context of the procedure provided for in Article 218(11) TFEU. A judgment on the compatibility of an agreement with the Treaties may in that regard depend, inter alia, not only on provisions concerning the powers, procedure or organisation of the institutions of the European Union, but also on provisions of substantive law (Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 70).

198 However, as regards EU internal rules, the fact that they constitute internal EU law precludes them from forming the subject matter of the present opinion procedure, which can only relate to international agreements which the European Union is proposing to conclude (Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 149).

199 In the third place, it should be borne in mind that the choice of the appropriate legal basis for the Council decision on the conclusion of the envisaged agreement has constitutional significance, since, having only conferred powers, the European Union must link the acts which it adopts to provisions of the TFEU which actually empower it to adopt such acts. Consequently, proceeding on an incorrect legal basis is liable to invalidate the act concluding the agreement itself, and so vitiate the European Union's consent to be bound by the agreement it has signed (see, to that effect, Opinion 2/00 (Cartagena Protocol on Biosafety), of 6 December 2001, EU:C:2001:664, paragraph 5, and Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraphs 71 and 72).

200 That is so in particular where the Treaty does not confer on the European Union sufficient competence to ratify the agreement in its entirety, a situation which entails examining the allocation as between the European Union and the Member States of the powers to conclude the envisaged agreement, 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 EU institutions (see, to that effect, Opinion 2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, paragraph 5).

201 In the fourth place, the Court has observed that the measure authorising the signature of an international agreement and the measure concluding it are two distinct legal acts giving rise to fundamentally distinct legal obligations for the parties concerned, the second measure being in no way a confirmation of the first. Accordingly, failure to bring an action for annulment of the first measure does not preclude such an action against the measure concluding the envisaged agreement or render inadmissible a request for an Opinion raising the question whether the agreement is compatible with the Treaty (Opinion 2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, paragraph 11).

202 Moreover, the fact that certain questions may be dealt with by means of other remedies, in particular by bringing an action for annulment, does not constitute an argument which precludes the Court from being asked for a preliminary Opinion under Article 218(11) TFEU (Opinion 2/00 (Cartagena Protocol on Biosafety), of 6 December 2001, EU:C:2001:664, paragraph 12).

203 The procedure for obtaining an opinion must permit any question capable of submission for judicial consideration to be settled provided that such questions are consonant with the purpose of that procedure (Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014, EU:C:2014:2303, paragraph 54).

204 In the fifth place, it should be noted that the possibility of submitting a request for an Opinion under Article 218(11) TFEU does not require, as a precondition, a final agreement between the institutions concerned. The right accorded to the Council, the Parliament, the Commission and the Member States to ask the Court for its Opinion can be exercised individually, without any coordinated action and without waiting for the final outcome of any related legislative procedure (Opinion 1/09 (Agreement creating a Unified Patent Litigation System) of 8 March 2011, EU:C:2011:123, paragraph 55).

205 Accordingly, the fact that the adoption of the agreement concerned cannot occur until after consulting, and obtaining the approval of, the Parliament, and that the adoption of any related legislative measures within the European Union will be subject to a legislative procedure involving that institution, has no effect on the power accorded to it, under Article 218(11) TFEU, to request an Opinion from the Court (Opinion 1/09 (Agreement creating a Unified Patent Litigation System) of 8 March 2011, EU:C:2011:123, paragraphs 55 and 56).

206 It is in the light of that case-law that it is necessary to examine whether the questions referred by the Parliament are admissible.

207 In the present case, as regards, in the first place, the admissibility of part (a) of the first question, it must be pointed out that, contrary to Hungary's submissions, it is intended to identify the appropriate legal basis for the adoption of an EU measure concluding the Istanbul Convention, which corresponds to the purpose of the opinion procedure, in the light of the case-law referred to in paragraphs 193, 195, 197, 199 and 200 above.

208 In so far as Hungary nevertheless calls into question the usefulness of the present proceedings, since an accession to that convention by both the European Union and the Member States is necessary in the two situations referred to by the Parliament in the context of part (a) of the first question, it suffices to note that, if an inappropriate legal basis were chosen for the conclusion of that convention by the European Union, the validity of the measure concluding the agreement could subsequently be called into question in the course of proceedings before the Court, thus giving rise to the difficulties which the opinion procedure is specifically intended to prevent, as noted in paragraph 193 above.

209 As regards the arguments of the Republic of Poland and Hungary that part (a) of the first question in the request for an Opinion calls into question the Council's political choice to accede in part to the Istanbul Convention, it should be noted that that circumstance, if it were established, would be such as to influence the scope of the ‘agreement envisaged’ in respect of which the appropriate legal basis for the conclusion of that convention must be identified. Since, as pointed out in paragraphs 199 and 200 above, a request for an Opinion may have as its subject matter, inter alia, the choice of the appropriate legal basis for the conclusion of an envisaged international agreement, that circumstance is therefore capable only of influencing the answer to part (a) of the first question, without being able to call into question the admissibility of that question.

210 As regards the circumstance raised by Hungary that the Parliament will participate subsequently in the procedure for concluding the Istanbul Convention and could, if necessary, refuse to give its consent at that stage, it is sufficient to note that it follows from the case-law referred to in paragraphs 204 and 205 above that that circumstance in no way precludes that institution from initiating the present proceedings.

211 In so far as Hungary submits that the first question is premature and hypothetical since it concerns a future EU measure concluding the Istanbul Convention, the content of which has not yet been finalised, it should be noted that the opinion procedure – in view of its objective of forestalling the complications at international and EU levels which would arise from a decision of the Court finding that an international agreement concluded by the European Union is incompatible with the Treaties – allows the Court to hear a request for an Opinion where the subject matter of the envisaged agreement is known, even though there are a number of alternatives still open and differences of opinion on the drafting of the texts concerned, if the documents submitted to the Court make it possible for the Court to form a sufficiently certain judgment on the question raised (Opinion 1/09 (Agreement creating a Unified Patent Litigation System) of 8 March 2011, EU:C:2011:123, paragraph 53 and the case-law cited).

212 In the present case, the Court not only has the text of the Istanbul Convention, but the request for an Opinion also provides sufficient information concerning both the conduct of the procedure for accession to that convention which was followed up to the time when that request was lodged and the positions taken by the Parliament, the Council and the Commission with regard to that accession, with the result that the Court is able to form a sufficiently certain judgment on the envisaged agreement in respect of which the appropriate legal basis for the conclusion of that convention by the European Union must be identified.

213 Nor can the Court accept the claim made by the Council, Ireland and Hungary that the Parliament, by its request for an Opinion, calls into question the choice of legal basis for signature decisions 2017/865 and 2017/866, and thus circumvents the time limits for bringing an action for annulment of those decisions. First, part (a) of the first question does not refer to those decisions and, secondly, as noted in paragraph 201 above, failure to bring an action for annulment of a decision authorising the signing of an agreement does not preclude the admissibility of a request for an Opinion concerning the compatibility of that agreement with the Treaties.

214 In the light of the foregoing considerations, it must be held that part (a) of the first question is admissible.

215 In the second place, as regards the admissibility of part (b) of the first question, it should be noted at the outset that, in so far as it concerns the division of the act concluding the Istanbul Convention into two decisions, that question concerns the procedure for concluding that convention and, accordingly, the formal compatibility with the Treaties of the European Union's accession to that convention. In accordance with the considerations set out in paragraph 197 above, such a question is admissible since it corresponds to the purpose of the opinion procedure.

216 However, part (b) of the first question is not admissible in so far as it concerns the division of the act authorising the signature of the Istanbul Convention by the European Union into two decisions.

217 It is common ground that the signature of the Istanbul Convention by the European Union, which was authorised by signature decisions 2017/865 and 2017/866, was performed on 13 June 2017, that is to say, more than two years before the present request for an Opinion was lodged, and has therefore been in effect since that date.

218 In those circumstances, even if a measure authorising the signature of an international agreement could, as such, be the subject of a request for an Opinion, it must be noted that the preventive intent of Article 218(11) TFEU can, in any event, no longer be achieved as regards such a measure if the question of its compatibility with the Treaties is brought before the Court only after its adoption (see, by analogy, Opinion 3/94 (Framework Agreement on Bananas) of 13 December 1995, EU:C:1995:436, paragraph 19).

219 In that respect, Ireland, Hungary and the Council observe, correctly, that the Parliament could have challenged signature decisions 2017/865 and 2017/866 by means of an action for annulment and that compliance with the requirement to inform the Parliament laid down in Article 218(10) TFEU is intended, inter alia, to put that institution in a position to review the Council's action in good time.

220 Consequently, part (b) of the first question is admissible only in so far as it pertains to the measure concluding the Istanbul Convention on behalf of the European Union.

221 In the third place, as regards the admissibility of the second question, concerning a practice of ‘common accord’ of the Member States prior to the conclusion of a mixed agreement, it is necessary to reject at the outset the Hellenic Republic's objection that the Parliament has not sufficiently identified harmful conduct on the part of the Council. That question does not seek to identify such conduct, but rather to ascertain whether the conclusion of the Istanbul Convention by the European Union is compatible with the Treaties, and in particular with Article 218 TFEU, in the absence of a ‘common accord’ of all the Member States to be bound by that convention in the fields falling within their competences.

222 It also follows that, contrary to the submissions of the Republic of Bulgaria, the Kingdom of Spain, Hungary and the Council, that question does not relate to the Council's Rules of Procedure, mentioned in paragraph 82 above, the Council's schedule or its internal procedures, to public international law, or to the sovereign rights of the Member States, but rather concerns the procedural requirements stemming from the Treaties, in particular Article 218 TFEU, as regards the conclusion of the Istanbul Convention.

223 As the Republic of Finland has pointed out, if it were necessary, under the Treaties, to wait for such a ‘common accord’, the conclusion of the Istanbul Convention by the European Union, prior to such an accord, would be liable to be invalidated, thereby giving rise to the difficulties which the opinion procedure is specifically intended to forestall, as noted in paragraph 193 above.

224 It also follows that the second question is not intended to establish, as would be possible by an action for failure to act under Article 265 TFEU, that the Council failed to act in breach of the Treaties and the Kingdom of Spain, Hungary, the Slovak Republic and the Council cannot therefore validly claim that the second question involves an abuse of the opinion procedure.

225 The Council's objection that, once the ‘common accord’ of all the Member States to be bound by the Istanbul Convention in the fields falling within their competences has been established, the conclusion of that convention will take place in strict compliance with the procedural requirements of the Treaties must also be rejected. That assertion is not capable of resolving the question whether the practice of ‘common accord’ is consistent with the procedures expressly laid down by the Treaties and cannot therefore bar the admissibility of that question.

226 Lastly, in so far as Ireland, the Hellenic Republic, the Kingdom of Spain, Hungary and the Council submit that the second question is premature and hypothetical, it suffices to recall, as is apparent from paragraph 211 above, that a request for an Opinion may be made to the Court where the subject matter of the envisaged agreement is known, even though there are a number of alternatives still open and differences of opinion on the drafting of the texts concerned, if the documents submitted to the Court make it possible for the Court to form a sufficiently certain judgment on the question raised.

227 Since the subject matter of the envisaged agreement is known, the existence of the practice of ‘common accord’ is not denied either by the Member States participating in the present proceedings or by the Council and the Council emphasises that it envisages concluding the Istanbul Convention on behalf of the European Union only once that ‘common accord’ is established, the second question cannot be regarded as inadmissible on the ground that it is allegedly premature or hypothetical.

228 In the light of the foregoing considerations, the request for an Opinion is admissible, with the exception of part (b) of the first question, in so far as it relates to the signature of the Istanbul Convention by the European Union.

B. The practice of ‘common accord’ of the Member States

229 By the second question, which it is appropriate to examine first, the Parliament asks, in essence, whether the Treaties allow or require the Council to wait, before concluding the Istanbul Convention on behalf of the European Union, for the ‘common accord’ of the Member States to be bound by that convention in the fields falling within their competences.

230 It should be recalled that the founding treaties of the European Union, unlike ordinary international treaties, established a new legal order, possessing its own institutions, for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only those States but also their nationals (see, inter alia, Opinion 1/09 (Agreement creating a Unified Patent Litigation System) of 8 March 2011, EU:C:2011:123, paragraph 65; Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 157, and judgment of 28 April 2015, Commission v Council, C–28/12, EU:C:2015:282, paragraph 39).

231 Furthermore, the Member States have, by reason of their membership of the European Union, accepted that relations between them as regards the matters covered by the transfer of powers from the Member States to the European Union are governed by EU law, to the exclusion, if EU law so requires, of any other law (Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 193, and judgment of 28 April 2015, Commission v Council, C–28/12, EU:C:2015:282, paragraph 40).

232 In addition, the rules regarding the manner in which the EU institutions arrive at their decisions are laid down in the Treaties and are not at the disposal of the Member States or of the institutions themselves (judgment of 28 April 2015, Commission v Council, C–28/12, EU:C:2015:282, paragraph 42 and the case-law cited).

233 Thus, as provided in Article 13(2) TEU, each institution must act within the limits of the powers conferred on it by the Treaties, and in conformity with the procedures, conditions and objectives set out in them.

234 As regards in particular international agreements which the European Union is competent to conclude in the fields of its activity, Article 218 TFEU, in order to satisfy requirements of clarity, consistency and rationalisation, lays down a single procedure of general application concerning, in particular, the negotiation and conclusion of such agreements, except where the Treaties lay down special procedures (see, to that effect, judgment of 4 September 2018, Commission v Council (Agreement with Kazakhstan), C–244/17, EU:C:2018:662, paragraph 21 and the case-law cited).

235 The Court has observed that, precisely because of its general nature, that procedure must take account of the specific features which the Treaties lay down in respect of each field of EU activity, particularly as regards the powers of the institutions, and that it is designed to reflect externally the division of powers between the institutions that applies internally, in particular by establishing symmetry between the procedure for adopting EU measures internally and the procedure for adopting international agreements in order to guarantee that the Parliament and the Council enjoy the same powers in relation to a given field, in compliance with the institutional balance provided for by the Treaties (judgment of 4 September 2018, Commission v Council (Agreement with Kazakhstan), C–244/17, EU:C:2018:662, paragraph 22 and the case-law cited).

236 Article 218(1) TFEU thus requires that agreements between the European Union and third countries or international organisations which, in accordance with Article 216(2) TFEU, are binding upon the institutions of the European Union and on Member States once they have been concluded, are to be negotiated and concluded in accordance with the procedure laid down in the relevant paragraphs of Article 218 TFEU.

237 In that regard, in accordance with Article 218(2) and (6) TFEU, the decision concluding such agreements is to be adopted by the Council, where appropriate after obtaining the consent or consulting the Parliament. No competence is granted to the Member States for the adoption of such a decision.

238 In addition, it follows from Article 218(8) TFEU that, as regards a decision such as that mentioned in the previous paragraph, the Council is to act by a qualified majority in the event that such a decision does not correspond to any of the situations in which the second subparagraph of Article 218(8) TFEU requires a unanimous vote (see, to that effect, judgment of 2 September 2021, Commission v Council (Agreement with Armenia), C–180/20, EU:C:2021:658, paragraph 30 and the case-law cited).

239 In the present case, it is common ground between the parties to the present proceedings, first of all, that the Istanbul Convention is, assuming it is concluded, to be a mixed agreement, concluded as such by the European Union and the Member States, next, that the Council's decision concluding that convention on behalf of the European Union may be adopted only after obtaining the consent of the Parliament and, lastly, that, in accordance with the provisions of the first subparagraph of Article 218(8) TFEU, it is by qualified majority that the Council is, in that scenario, to act in adopting that decision, since it does not correspond to any of the situations for which the second subparagraph of Article 218(8) requires a unanimous vote.

240 The contracting parties to a mixed agreement concluded with third countries are, first, the European Union and, secondly, the Member States. When such an agreement is negotiated and concluded, each of those parties must act within the framework of the competences which it has while respecting the competences of any other contracting party (judgment of 28 April 2015, Commission v Council, C–28/12, EU:C:2015:282, paragraph 47).

241 It is true that the Court has acknowledged that, where it is apparent that the subject matter of an agreement falls partly within the competence of the European Union and partly within that of the Member States, it is essential to ensure close cooperation between the Member States and the EU institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into (judgment of 28 April 2015, Commission v Council, C–28/12, EU:C:2015:282, paragraph 54 and the case-law cited).

242 However, that principle cannot justify the Council setting itself free from compliance with the procedural rules and voting arrangements laid down in Article 218 TFEU (judgment of 28 April 2015, Commission v Council, C–28/12, EU:C:2015:282, paragraph 55).

243 The Court has thus specified that it is not permissible to bring together in a single decision, or adopt under a single procedure, two different acts, one of which entails a consensus of the representatives of the Member States, and therefore their unanimous agreement, whereas the other must be adopted in accordance with Article 218(8) TFEU, which provides that the Council must act, on behalf of the European Union, by a qualified majority (see, to that effect, judgment of 28 April 2015, Commission v Council, C–28/12, EU:C:2015:282, paragraph 52).

244 In the present case, it is admittedly common ground that the practice of ‘common accord’ does not lead to two different acts – one being the result of a consensus of the Member States while the other is adopted by the European Union – being brought together in a single hybrid decision, such as the one annulled in the judgment cited in the previous paragraph.

245 However, in so far as that practice entails that the establishment of the ‘common accord’ of the Member States to be bound by a mixed agreement in the fields falling within their competences is a prerequisite, in the Council's view, for initiating the conclusion procedure laid down in Article 218(2), (6) and (8) TFEU, it results in the addition to that procedure of a step which is not provided for in the Treaties and which is therefore inconsistent with the case-law referred to in paragraph 232 above and with the considerations in paragraphs 237 to 243 above.

246 More specifically, as rightly pointed out by the Republic of Austria, the Republic of Finland, the Parliament and the Commission, in so far as that practice makes the initiation of that procedure contingent upon a consensus of the representatives of the Member States, and therefore on their unanimous agreement – whereas Article 218(2), (6) and (8) TFEU envisages the conclusion by the European Union of an international agreement as an autonomous act of the European Union which is adopted by the Council acting by a qualified majority, where appropriate after obtaining the consent of or consulting the Parliament – it establishes a hybrid decision-making process which is incompatible with the requirements set out in those provisions and contrary to the case-law resulting from the judgment of 28 April 2015, Commission v Council (C–28/12, EU:C:2015:282).

247 If the practice of ‘common accord’ were to have a scope such as that set out in paragraph 245 above, the European Union's ability to conclude a mixed agreement would depend entirely on each Member State's willingness to be bound by that agreement in the fields falling within their competences and, therefore, on the Member States’ sovereign choices in those fields.

248 In accordance with Article 218(2), (6) and (8) TFEU, where the conclusion of an international agreement is proposed to the Council, it is for the Council alone to decide on the conclusion of that agreement, acting, in principle, by a qualified majority and, where appropriate, after obtaining the consent of or consulting the Parliament. It has also been held in that respect that the Council may, in that situation, decide that the European Union should exercise alone the external competence that it shares with the Member States in the field of activity concerned, provided that the required majority to do so is obtained within the Council (see, to that effect, judgment of 5 December 2017, Germany v Council, C–600/14, EU:C:2017:935, paragraph 68).

249 It follows that the Treaties not only do not require the Council to wait, before concluding the Istanbul Convention on behalf of the European Union, for the ‘common accord’ of the Member States to be bound by that convention in the fields falling within their competences, but that they prohibit it from making the initiation of the procedure for concluding that convention, set out in Article 218(2), (6) and (8) TFEU, contingent on the prior establishment of such a ‘common accord’.

250 That being said, the conclusion of an international agreement by the European Union depends on whether the Council is able to obtain the required majority.

251 Furthermore, as the Advocate General observed in point 200 of his Opinion, the Treaties do not lay down any period of time within which the Council is required to adopt a decision concluding such an agreement.

252 It follows that, within the limits of the procedure laid down in Article 218(2), (6) and (8) TFEU and subject to the consent of the Parliament, where it is required, both the decision whether or not to act on the proposal to conclude an international agreement, and, if so, to what extent, and the choice of the appropriate time to adopt such a decision fall within the Council's political discretion.

253 It follows that, in so far as it acts in accordance with its Rules of Procedure and the effectiveness of Article 218(2), (6) and (8) TFEU is guaranteed, nothing precludes the Council from extending its discussions in order to achieve, inter alia, the greatest possible majority with a view to concluding an international agreement, the majority required for a broader exercise of the external competences of the European Union or, in the case of mixed agreements, closer cooperation between the Member States and the EU institutions in the process of concluding that agreement, which may involve waiting for the ‘common accord’ of the Member States.

254 Such close cooperation between the Member States and the EU institutions during the process of concluding a mixed agreement, such as the Istanbul Convention, required by the principle mentioned in paragraphs 241 and 242 above, in particular where the provisions of that agreement falling within the competences of the European Union and those falling within the competences of the Member States are inextricably linked, allows account to be taken, as the Council has pointed out, where necessary by means of an extended discussion, of institutional and political considerations liable to affect the perceived legitimacy and effectiveness of the European Union's external action.

255 In that regard, it is important, however, to note that, in accordance with Article 218(8) TFEU, that political discretion is to be exercised, in principle, by a qualified majority, so that such a majority within the Council may, at any time and in accordance with the rules laid down in the Council's Rules of Procedure, including those conferring on any Member State and the Commission the right to request the opening of a voting procedure and governing the transparency of that procedure, pursuant to Article 15(3) TFEU, require the closure of discussions and the adoption of the decision concluding the international agreement. The Council must therefore exercise that discretion on a case-by-case basis and having regard to the current state of discussions within the Council, in full compliance with the requirements laid down in Article 218(2), (6) and (8) TFEU.

256 Those findings, and in particular the finding that the Council cannot, in disregard of the procedure for concluding an international agreement laid down in Article 218(2), (6) and (8) TFEU, make the conclusion by the European Union of the Istanbul Convention contingent on the ‘common accord’ of the Member States to be bound by that convention in the fields falling within their competences, are not invalidated by the arguments of the Republic of Bulgaria, the Czech Republic, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, Hungary, the Slovak Republic and the Council alleging that the conclusion of that convention by the European Union in the absence of such a ‘common accord’ would be incompatible with the principles of conferral, sincere cooperation, legal certainty, unity in the external representation of the European Union, autonomy of the European Union and respect by the European Union for the national identity of Member States nor by the arguments of those Member States and the Council concerning the risk that the European Union might incur international liability if that convention were concluded without the accession of all the Member State to that convention in the fields falling within their competences.

257 In the first place, those Member States and the Council cannot reasonably argue that, if one or more Member States do not accede to the Istanbul Convention in the fields falling within their competences, the accession of the European Union to that convention would impinge upon the competences of those Member States and, consequently, infringe the principles of conferral, sincere cooperation, legal certainty and unity in the external representation of the European Union.

258 Indeed, it was noted in paragraph 240 above that, inter alia, when negotiating and concluding a mixed agreement, the European Union and the Member States must act within the framework of their competences, while respecting the competences of any other contracting party.

259 It follows that the conclusion of a mixed agreement by the European Union and the Member States in no way implies that the Member States exercise, in that event, competences of the European Union or that the European Union exercises competences of those States; rather, each of those parties acts exclusively within its sphere of competence, without prejudice to the power of the Council, referred to in paragraph 248 above, to decide that the European Union should exercise alone a competence that it shares with the Member States in the field of activity concerned, provided that the required majority to do so is obtained within the Council.

260 That is also the case where some Member States decide not to conclude a mixed agreement which the European Union decides to conclude, solely on the basis of the competences conferred on it.

261 As regards the Istanbul Convention, as the Czech Republic, the Kingdom of Denmark, the Kingdom of Spain, the Republic of Austria and the Commission have submitted, and as the Advocate General noted in point 217 of his Opinion, the Council of Europe is aware of the limited nature of the European Union's competences, with the result that there is no reason to assume that Article 75 of that convention, where it states that the convention is open for signature by, inter alia and specifically, the ‘European Union’, envisages an accession of the European Union exceeding its competences.

262 In that respect, the Court has held that, by the choice of legal bases for the decision concluding the international agreement, the European Union also gives indications to the other parties to that agreement as regards, first, the legal scope of that decision, secondly, the extent of EU competence in relation to that agreement and, lastly, the division of competences between the European Union and its Member States, a division which must also be taken into account at the stage of implementation of the agreement at EU level (see, to that effect, judgments of 10 January 2006, Commission v Council, C–94/03, EU:C:2006:2, paragraph 55; of 1 October 2009, Commission v Council, C–370/07, EU:C:2009:590, paragraph 49; and of 25 October 2017, Commission v Council (WRC–15), C–687/15, EU:C:2017:803, paragraph 58).

263 Furthermore, as the Kingdom of Belgium, the Czech Republic, Ireland, the Hellenic Republic, the Republic of Austria, the Republic of Finland, the Parliament and the Commission submitted at the hearing before the Court, it appears that the Council and the Parliament can opt to submit a declaration concerning the competences of the European Union at the time of its accession to the Istanbul Convention, which would make it possible, should such a declaration be made, to further specify, on an indicative basis, the limits of its competences.

264 Accordingly, it has in no way been established, in the present proceedings, that the conclusion of the Istanbul Convention by the European Union in the absence of a ‘common accord’ of the Member States to be bound by that convention in the fields falling within their competences would be such as to impinge upon the competences of those Member States.

265 In the second place, the same is true of the arguments, in particular those of the Republic of Bulgaria, Hungary and the Slovak Republic, that such an accession of the European Union would entail a breach by the European Union of its duty of sincere cooperation and of the obligation, set out in Article 4(2) TEU, to respect the national identity of the Member States, inherent in their fundamental political and constitutional structures, in that it may give rise to a situation in which those Member States must, in order to ensure compliance with the European Union's international commitments, implement measures contrary to their Constitutions.

266 It must be noted that, by that line of argument, those Member States seek to call into question the compatibility of the European Union's conclusion of the Istanbul Convention with the European Union's obligations referred to in the preceding paragraph. Any incompatibility between that conclusion and those obligations could be established only after a specific examination of the obligations which the European Union might assume following the conclusion of the Istanbul Convention, which is not covered by the present request for an Opinion and therefore does not fall within the scope of the present proceedings.

267 In the third place, the French Republic and the Council maintain that the conclusion of the Istanbul Convention by the European Union in the absence of a ‘common accord’ of the Member States to be bound by that convention in the fields falling within their competences is not compatible with the autonomy of EU law, since it would entail externalising, inter alia to GREVIO, an internal EU issue relating to the division of competences between the European Union and its Member States.

268 It is true that the Court has held that it may be incompatible with the Treaties to entrust an international court with the task of assessing the rules of EU law governing the division of powers between the European Union and its Member States as well as the criteria for the attribution of their acts or omissions, in order to adopt a final decision in that regard which would be binding both on the Member States and on the European Union (Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraphs 224, 231 and 234). However, it should be noted that the Court made that finding specifically in relation to decisions of an international court which are final and binding on the European Union and its Member States and in the context of a detailed examination of the substantive compatibility of the envisaged agreement with the Treaties, envisaging the situation in which both the European Union and all its Member States are bound by the agreement in question.

269 It follows that the question whether, as the French Republic and the Council maintain, that finding can be transposed to a situation in which, first, the European Union, but not one of its Member States, is bound by the Istanbul Convention and, secondly, a body such as GREVIO is involved, exercising the powers set out in paragraph 35 above, requires a precise examination of the substantive compatibility of the Istanbul Convention with the Treaties, which is not covered by the present request for an Opinion and does not therefore fall within the scope of the present proceedings.

270 In the fourth place, the Republic of Bulgaria, the Czech Republic, the Kingdom of Spain, the French Republic, Hungary and the Council submit that the full implementation of the international commitments that the European Union would take on by concluding the Istanbul Convention is possible, in law and in fact, only where all the Member States participate in those commitments and infer from this that, in the absence of a ‘common accord’ of the Member States, the European Union would not able to guarantee the proper fulfilment of its commitments which would relate to the entirety of that convention, with the result that the European Union would risk incurring liability at the international level for an act or omission in respect of which it has no competence.

271 In that regard, it is true that, in accordance with settled case-law, when the European Union decides to exercise its powers they must be exercised in observance of international law (judgment of 20 November 2018, Commission v Council (Antarctic MPAs), C–626/15 and C–659/16, EU:C:2018:925, paragraph 127 and the case-law cited).

272 However, it follows from the very wording of Article 218(11) TFEU that the opinion procedure concerns the compatibility with the Treaties of international agreements that the European Union intends to conclude. It follows that that procedure does not concern the compatibility with public international law of the conclusion of an international agreement by the European Union or, accordingly, the consequences that might arise from a future infringement of that law in the implementation of that agreement. In particular, the potential liability which the European Union might incur at the international level when implementing the Istanbul Convention, because it could not properly fulfil its commitments, would not, as such, be capable of calling into question the validity of the decision by which the Council concluded that convention on behalf of the European Union.

273 In addition, as pointed out in paragraphs 258 and 264 above, it has not been established that, by concluding the Istanbul Convention in the absence of a ‘common accord’ of the Member States to be bound by that convention in the fields falling within their competences, the European Union would take on commitments exceeding the scope of its own competences.

274 In the light of all the foregoing considerations, the answer to the second question is that, subject to full compliance, at all times, with the requirements laid down in Article 218(2), (6) and (8) TFEU, the Treaties do not prohibit the Council, acting in conformity with its Rules of Procedure, from waiting, before adopting the decision concluding the Istanbul Convention on behalf of the European Union, for the ‘common accord’ of the Member States to be bound by that convention in the fields falling within their competences. However, the Treaties do prohibit the Council from adding a further step to the conclusion procedure laid down in that article by making the adoption of the decision concluding that convention contingent on the prior establishment of such a ‘common accord’.

C. The appropriate legal bases for the conclusion of the Istanbul Convention

275 By part (a) of its first question, the Parliament asks, in essence, whether the appropriate legal bases for the adoption of the Council act concluding the Istanbul Convention on behalf of the European Union are Article 82(2) and Article 84 TFEU or whether that act should be based on Article 78(2), Article 82(2) and Article 83(1) TFEU.

276 In view of the arguments put forward by the parties to the proceedings in the context of part (a) of the first question, it is necessary at the outset to clarify the subject matter and the scope of the examination that must be carried out in order to answer that question.

277 As noted in paragraphs 234 to 239 above, in accordance with Article 218(2), (6) and (8) TFEU, the decision concluding the Istanbul Convention must be adopted by the Council, acting by a qualified majority, after obtaining the consent of the Parliament.

278 Consequently, within the limits of the questions raised in the present request for an Opinion, it is, in the first place, for the Council and the Parliament to specify to the Court the scope of the ‘agreement envisaged’, within the meaning of Article 218(11) TFEU, which is the subject matter of the present proceedings and in respect of which it is necessary to identify the legal basis on which any Council act concluding that agreement on behalf of the Union must be based.

279 In that regard, it is common ground, first of all, that neither the Council nor the Parliament envisages an accession of the European Union to the parts of the Istanbul Convention which do not fall within the competences of the European Union.

280 Next, although the Council has stated that it wished to limit the accession of the European Union to that convention solely to the aspects thereof for which the European Union has exclusive external competence and that signature decisions 2017/865 and 2017/866 reflected the legal bases it had identified in that context, it must be noted that part (a) of the first question in the request for an Opinion does not present such a limitation, since, in that question, the Parliament envisages a conclusion of that convention founded on the legal bases referred to in that question, irrespective of whether or not the European Union has exclusive competence in that regard, under Article 3(2) TFEU.

281 Lastly, in so far as the Parliament and the Commission refer to the possibility of an accession to the Istanbul Convention covering all the parts of that convention falling within the European Union's competences, the Council has maintained that the majority required within the Council for such an accession could not be achieved. It follows that such an accession is at this stage hypothetical and cannot therefore serve as a reference for the purpose of defining the ‘agreement envisaged’ in the light of which part (a) of the first question in the request for an Opinion must be answered.

282 In those circumstances, it is for the Court to examine part (a) of the first question in the request for an Opinion by starting from the premiss that the scope of the ‘agreement envisaged’, within the meaning of Article 218(11) TFEU, is defined by the terms of that question and by the content of signature decisions 2017/865 and 2017/866.

283 As regards the arguments of the Commission and several Member States that such an envisaged agreement, which entails a partial accession of the European Union to the Istanbul Convention, limited to only some EU competences, would run counter to the objectives and the very wording of that convention, and in particular Article 78 thereof, it has been noted in paragraph 272 above that the opinion procedure concerns the compatibility of an envisaged agreement with the Treaties and not the compatibility of such an agreement with public international law, in particular as regards the conditions laid down in that agreement concerning accession thereto.

284 In accordance with settled case-law of the Court, the choice of the legal basis for an EU act, including one adopted in order to conclude an international agreement, must rest on objective factors amenable to judicial review, which include the aim and the content of that measure (Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 76; judgments of 4 September 2018, Commission v Council (Agreement with Kazakhstan), C–244/17, EU:C:2018:662, paragraph 36, and of 20 November 2018, Commission v Council (Antarctic MPAs), C–626/15 and C–659/16, EU:C:2018:925, paragraph 76).

285 If the examination of an EU act reveals that it pursues two aims or that it has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the act must be founded on a single legal basis, namely, that required by the main or predominant aim or component. Exceptionally, if it is established, however, that the act simultaneously pursues a number of objectives, or has several components, which are inextricably linked without one being incidental to the other, such that various provisions of the Treaties are applicable, such a measure will have to be founded on the various corresponding legal bases (Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 77, and judgment of 4 September 2018, Commission v Council (Agreement with Kazakhstan), C–244/17, EU:C:2018:662, paragraph 37).

286 As regards, in particular, an international agreement which pursues several purposes or has several components, it is necessary, therefore, to verify whether the provisions of that agreement which pursue an objective or which constitute a component of that agreement are a necessary adjunct to ensure the effectiveness of the provisions of those agreements which pursue other purposes or which constitute other components or whether they are ‘extremely limited in scope’ (see, to that effect, Opinion 1/08 (Agreements modifying the Schedules of Specific Commitments under the GATS) of 30 November 2009, EU:C:2009:739, paragraph 166). In each of those cases, the existence of that objective or component does not justify it being specifically reflected in the substantive legal basis of the decision to sign or conclude that agreement on behalf of the European Union.

287 In addition, the criteria in respect of which the incidental nature of a purpose or component of an act may be determined include the number of provisions devoted to it, in comparison with the act's provisions as a whole, and the nature and scope of those provisions (see, to that effect, judgments of 11 June 2014, Commission v Council, C–377/12, EU:C:2014:1903, paragraph 56, and of 4 September 2018, Commission v Council (Agreement with Kazakhstan), C–244/17, EU:C:2018:662, paragraphs 44 and 45).

288 However, recourse to a dual legal basis is precluded where the procedures laid down for each legal basis are incompatible with each other (Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 78).

289 In the present case, as regards the context of the act concluding the envisaged agreement, as identified in paragraph 282 above, it is apparent from recitals 1 to 3 of signature decisions 2017/865 and 2017/866 that the European Union participated alongside the Member States as an observer in the negotiation of the Istanbul Convention, that the latter is, in accordance with Article 75 thereof, open for signature by the European Union and that it creates a comprehensive and multifaceted legal framework to protect women against all forms of violence. With regard to the latter point, it is stated in those recitals that that convention:

1. – seeks to prevent, prosecute and eliminate violence against women and girls and domestic violence;

2. – covers a broad range of measures, from data collection and awareness raising to legal measures on criminalising different forms of violence against women;

3. – includes measures for the protection of victims and the provision of support services;

4. – addresses the gender-based violence dimension in matters of asylum and migration, and

5. – establishes a specific monitoring mechanism in order to ensure effective implementation of its provisions by the parties thereto.

290 That analysis is confirmed by the content of the Istanbul Convention, as summarised in paragraphs 15 to 40 above.

291 As regards the purpose of the act concluding the envisaged agreement, recitals 4 of signature decisions 2017/865 and 2017/866 state that the conclusion of the Istanbul Convention by the European Union:

1. – will contribute to the realisation of equality between women and men in all areas, which is a core objective and value of the Union to be realised in all its activities in accordance with Articles 2 and 3 TEU, Article 8 TFEU and Article 23 of the Charter of Fundamental Rights, and

2. – will allow the European Union to confirm its engagement in combating violence against women within its territory and globally, and reinforces its current political action and existing substantial legal framework in the area of criminal procedural law, which is of particular relevance for women and girls.

292 However, it follows from recitals 6 and 7 of those signature decisions that the act concluding the envisaged agreement will seek to achieve those cross-cutting objectives only as regards the provisions of the Istanbul Convention which both fall within the competences of the European Union and relate to (i) judicial cooperation in criminal matters, (ii) asylum and non-refoulement or (iii) institutions and public administration of the European Union. Although Article 1 of those signature decisions does not refer to the latter aspect relating to the institutions and public administration of the European Union, the Council nevertheless stated, in response to a question from the Court, that it is still envisaged that the act concluding that convention will relate to that aspect.

293 That limited purpose of the act concluding the envisaged agreement is confirmed by the substantive legal basis referred to both in signature decisions 2017/865 and 2017/866, namely Article 78(2), Article 82(2) and Article 83(1) TFEU, and in part (a) of the first question in the request for an Opinion, which mentions those same provisions and Article 84 TFEU.

294 It is therefore appropriate to take as a premiss, in answering part (a) of the first question in the request for an Opinion, that the content of the act concluding the envisaged agreement will relate to the provisions of the Istanbul Convention which are linked to judicial cooperation in criminal matters, asylum and non-refoulement and the obligations of the institutions and public administration of the European Union, in so far as those provisions fall within the competence of the European Union (‘the part of the Istanbul Convention covered by the envisaged agreement’).

295 As regards, in the first place, judicial cooperation in criminal matters, first, it should be recalled that Articles 44, 47 and 48 in.Chapter V, Articles 49, 50 and 54 to 58 in.Chapter VI, and Articles 62 to 65 in.Chapter VIII of the Istanbul Convention, as is apparent in particular from the summary of those chapters in paragraphs 25 to 29, 33 and 34 above, concern territorial jurisdiction in relation to the criminal prosecution of offences referred to in that convention; the taking into account of convictions handed down in the territory of another party to that convention; the prohibition of alternative dispute resolution processes; the need for effective, swift and, if necessary, ex officio or ex parte investigations, prosecutions and judicial proceedings, taking into consideration the rights of the victim at all stages; appropriate protection, information, assistance and legal aid for victims; admissible evidence, the right of the victim to be heard and the protection of witnesses; the statute of limitation for offences; cooperation in criminal matters for the purposes of preventing, combating and prosecuting all forms of violence, protecting and assisting victims, conducting investigations or proceedings concerning offences and enforcing criminal judgments; the possibility for victims of an offence committed on the territory of a party to the Istanbul Convention to make a complaint before the competent authorities of their State of residence; mutual legal assistance in criminal matters; extradition or enforcement of criminal judgments; the sharing of information which might be of assistance in preventing criminal offences or in initiating or carrying out investigations and information that a person is at immediate risk of being subjected to acts of violence; and respect for the protection of personal data.

296 As submitted by the Parliament, the Council and the Commission, as well as several Member States which are parties to the present proceedings, those provisions fall to a large extent within the competence of the European Union referred to in Article 82(2) TFEU, under which the European Union, to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, may establish minimum rules concerning, inter alia, admissibility of evidence between Member States, the rights of individuals in criminal proceedings and the rights of victims of crime. In view of the number and scope of those provisions, it must therefore be concluded that Article 82(2) TFEU should be one of the legal bases of the act concluding the envisaged agreement.

297 Secondly, Articles 7, 8, 10 and 11 in.Chapter II, Articles 12 to 16 in.Chapter III, Articles 18 to 28 in.Chapter IV, Articles 51 to 53 in.Chapter VI and Articles 62 and 63 in.Chapter VIII of the Istanbul Convention oblige the parties to that convention, inter alia, to implement effective, comprehensive and coordinated national policies to prevent and combat all forms of violence, to allocate adequate financial and human resources; to designate official bodies responsible for the coordination, implementation, monitoring and evaluation of policies; to collect statistical data; to support research on the root causes, effects, frequency and conviction rates of violence; to promote changes to eradicate all practices based on the idea of the inferiority of women or on stereotyped roles for women and men; to prevent all forms of violence covered by that convention; to place the specific needs of vulnerable persons and victims at the centre of their measures, ensure that culture, custom, religion, tradition or so-called ‘honour’ are not considered as justification for any acts of violence; to conduct awareness-raising programmes; to establish programmes aimed at teaching perpetrators of domestic violence to adopt non-violent behaviour; to take the necessary measures to protect all victims from any further acts of violence, including mechanisms for effective cooperation between all relevant state agencies, adequate and timely information on available support services and legal measures, legal and psychological counselling, financial assistance, health and social services, information on individual/collective complaint mechanisms, appropriate, easily accessible shelters in sufficient numbers, free-of-charge telephone hotlines, crisis centres for victims of rape and sexual violence, age-appropriate psychosocial counselling for child witnesses of violence; to take the necessary measures to ensure that the confidentiality rules do not constitute an obstacle to the reporting of a serious act of violence committed or anticipated; to provide for preventive operational measures; to carry out a risk assessment for victims; to ensure that barring orders and restraining orders may be adopted; to provide for appropriate protection, information, assistance and legal aid for victims; to ensure cooperation in criminal matters for the purpose of preventing, combating and prosecuting all forms of violence, protecting and assisting victims, conducting investigations or proceedings concerning offences and enforcing criminal judgments; to provide for the sharing of information which might be of assistance in preventing criminal offences or in initiating or carrying out investigations and information that a person is at immediate risk of being subjected to acts of violence.

298 As submitted by, inter alia, the Parliament and the Commission, those obligations fall, to a large extent, within the field of crime prevention in respect of which Article 84 TFEU confers on the European Union the power to establish measures to promote and support the action of Member States. In view of the number and scope of the provisions cited in the preceding paragraph, which include, as the Advocate General observed in point 158 of his Opinion, obligations which are, to a large extent, independent of those summarised in paragraph 295 above, it must be concluded that that aspect of the envisaged agreement is not purely incidental to those obligations and is not ‘extremely limited’ in scope. It follows that Article 84 TFEU should also be one of the legal bases of the act concluding the envisaged agreement.

299 Thirdly, Articles 33 to 48 in.Chapter V of the Istanbul Convention concern, in particular, the contracting parties’ undertaking to ensure that the following conduct is criminalised and punishable by effective, proportionate and dissuasive sanctions: the commission, attempt to commit, aiding or abetting the commission of impairing a person's psychological integrity through coercion or threats, threatening conduct directed at another person, causing her or him to fear for her or his safety, acts of physical violence, non-consensual acts of a sexual nature, forcing an adult or a child to enter into a marriage, excising, infibulating or performing any other mutilation to a woman's genitals, performing an abortion on a woman without her prior consent, performing surgery which terminates a woman's capacity to naturally reproduce without her consent and any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which violates the dignity of a person, in particular when it creates an intimidating, hostile, degrading, humiliating or offensive environment.

300 In that regard, Article 83(1) TFEU confers on the European Union the competence to establish minimum rules concerning the definition of criminal offences and sanctions in, inter alia, the area of trafficking in human beings and sexual exploitation of women and children,

301 As the Commission, inter alia, has argued and as the Advocate General noted, in essence, in point 155 of his Opinion, the overlap between, on the one hand, the obligations laid down in the Istanbul Convention, as set out in paragraph 299 above, and, on the other hand, the scope of action open to the European Union under Article 83(1) TFEU is so narrow that it must be concluded that the obligations set out in that part of the convention which fall within that scope of action are ‘extremely limited’ in scope for the European Union and that, accordingly, that provision should not be one of the legal bases of the act concluding the envisaged agreement.

302 In the second place, as regards asylum and non-refoulement, referred to in Chapter VII of the Istanbul Convention, it follows from the summary of Articles 59 to 61 of that convention, set out in paragraphs 30 to 32 above, that those provisions provide, in essence, obligations relating to the grant of autonomous and renewable residence permits; the recovery of residence status lost as a result of a forced marriage; the suspension of expulsion proceedings; the grant of subsidiary protection; the application of a gender-sensitive interpretation to each of the grounds of the Convention Relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, vol. 189, p. 150), in assessing whether to grant refugee status, and the prohibition of refoulement in certain circumstances.

303 As is common ground between the participants in the present proceedings, those obligations fall within the scope of Article 78(2) TFEU.

304 As the Advocate General observed in points 160 to 162 of his Opinion, although the Istanbul Convention contains only three articles relating to the matters mentioned in paragraph 302 above, they form a separate chapter of that convention and lay down specific and substantive obligations requiring, where necessary, the amendment of the law of the parties to that convention on those matters. In those circumstances, that aspect cannot be regarded as being incidental or ‘extremely limited’ in scope, within the meaning of the case-law cited in paragraphs 285 and 286 above, with the result that Article 78(2) TFEU should be one of the legal bases for the act concluding that envisaged agreement.

305 In the third place, it is common ground, first of all, that a significant part of the obligations relating to the adoption of preventive measures, established by Articles 7, 8, 10 and 11 in.Chapter II, Articles 12 to 16 in.Chapter III, Articles 18 to 28 in.Chapter IV, Articles 51 to 53 in.Chapter VI and Articles 62 and 63 in.Chapter VIII of the Istanbul Convention, as summarised in point 297 above, are, in essence, binding on the European Union as regards the staff in its administration and as regards the members of the public visiting the premises and buildings of its institutions, agencies and bodies. Next, the same is true of a number of obligations arising from Articles 49, 50 and 56 in.Chapter VI and from Articles 63 to 65 in.Chapter VIII of that convention, as summarised in paragraph 295 above. Lastly, it appears that additional obligations, such as those set out in Article 30 of that convention, relating to the payment of adequate compensation to victims of violence, may be binding on the European Union with regard specifically to its public administration.

306 As was, in essence, envisaged by the Council in recital 7 of signature decisions 2017/865 and 2017/866, such obligations fall within the scope of Article 336 TFEU.

307 As the Advocate General observed in point 164 of his Opinion, unlike the fields covered by Article 82(2) and Article 84 TFEU, as regards its public administration, the European Union should not confine itself to establishing minimum requirements or supporting measures, but should itself ensure that the obligations described in paragraph 305 above are fully satisfied.

308 It follows that, in the light of the number of provisions concerned and the scope of the obligations assumed in that respect by the European Union with regard to its public administration and the limited number of matters covered by the envisaged agreement, that component of the envisaged agreement is neither purely incidental nor ‘extremely limited’ in scope and that Article 336 TFEU should, consequently, be one of the legal bases for the act concluding that agreement.

309 In the fourth place, as regards the obligations imposed on the European Union, which follow from Articles 66 to 70 in.Chapter IX and Article 74 in.Chapter XII of the Istanbul Convention, relating to the monitoring mechanism and the dispute settlement mechanism, it is sufficient to note that the competence of the European Union to enter into international commitments includes competence to couple those commitments with institutional provisions. Their presence in the agreement has no effect on the nature of the competence to conclude it. Those provisions are of an ancillary nature and therefore fall within the same competence as the substantive provisions which they accompany (see, to that effect, Opinion 2/15 (Free Trade Agreement with Singapore) of 16 May 2017, EU:C:2017:376, paragraph 276 and the case-law cited).

310 It must also be stated, as the Advocate General noted in point 165 of his Opinion, that the identification of multiple appropriate legal bases in the present Opinion does not conflict with the case-law mentioned in paragraph 288 above, given that the procedure for adopting the decision concluding the envisaged agreement is the same, under Article 218 TFEU, for all of those legal bases, all of which provide, internally, for the use of the ordinary legislative procedure.

311 In the light of all the foregoing considerations, the answer to part (a) of the first question in the request for an Opinion is that the appropriate substantive legal basis for the adoption of the Council act concluding, on behalf of the European Union, the part of the Istanbul Convention covered by the envisaged agreement, within the meaning of Article 218(11) TFEU, is made up of Article 78(2), Article 82(2) and Articles 84 and 336 TFEU.

D. Division of the act concluding the Istanbul Convention into two separate decisions

312 In the light of the conclusions in paragraphs 228 and 294 above, it must be considered that, by part (b) of the first question in the request for an Opinion, the Parliament asks, in essence, whether it is necessary or possible to divide the act concluding, on behalf of the European Union, the part of the Istanbul Convention covered by the envisaged agreement into two separate decisions.

313 As is apparent from the request for an Opinion and the observations submitted to the Court, that question is linked to the applicability of Protocol No 21 as regards Ireland, as a result of the identification, inter alia, of Article 78(2), Article 82(2) and Article 84 TFEU, in Title V of Part Three of the TFEU, as appropriate legal bases for the conclusion of that agreement. In addition, although the Republic of Bulgaria referred to the potential relevance to that question of Protocol No 22 also, the Council submitted that the application of that protocol did not give rise to any particular difficulty in the present case.

314 As regards Protocol No 21, it can be seen from signature decisions 2017/865 and 2017/866 that, on the basis of that protocol, Ireland intended not to take part in the conclusion, by the European Union, of the part of the Istanbul Convention relating to asylum and non-refoulement, while participating in the conclusion of other parts of that convention.

315 As is apparent from recital 10 of signature decision 2017/865 and from the arguments of Ireland and the Council, that distinction between those different parts of the Istanbul Convention arises from the fact that Ireland is bound by Directives 2011/36 and 2011/93, whereas it is not bound by Directives 2011/95 and 2013/32.

316 In that regard, it should be noted that, under Article 1 of Protocol No 21, Ireland ‘[does] not take part in the adoption by the Council of proposed measures under Title V of Part Three of the [TFEU]’.

317 Under Article 2 of that protocol, ‘none of the provisions of Title V of Part Three of the [TFEU], no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Union pursuant to that Title, and no decision of the Court of Justice interpreting any such provision or measure shall be binding upon or applicable in’ Ireland and ‘no such provision, measure or decision shall in any way affect the competences, rights and obligations’ of that Member State. In addition, ‘no such provision, measure or decision shall in any way affect the Community or Union acquis nor form part of Union law as they apply’ to Ireland.

318 However, under Article 3 of that protocol, Ireland ‘may notify … that it wishes to take part in the adoption and application of any such proposed measure, whereupon that [Member] State shall be entitled to do so’.

319 Under Article 4 of Protocol No 21, ‘Ireland may at any time after the adoption of a measure by the Council pursuant to Title V of Part Three of the [TFEU] notify its intention … that it wishes to accept that measure’.

320 Article 4a(1) of Protocol No 21 specifies that its provisions ‘apply for … Ireland also to measures proposed or adopted pursuant to Title V of Part Three of the [TFEU] amending an existing measure by which [it is] bound’.

321 As the Advocate General observed in points 186 to 189 of his Opinion, it follows from Articles 1 to 4a of Protocol No 21 that it cannot be considered that Ireland's participation in Directives 2011/36 and 2011/93 automatically implies that that Member State is obliged to participate in the conclusion by the European Union of the corresponding part of the Istanbul Convention. Subject to the procedure laid down in Article 4a(2) of that protocol, the application of which is not envisaged in the present procedure, those provisions unequivocally state that, unless it notifies its wish to participate in the adoption and application of the proposed measure, Ireland participates neither in initial measures falling under Title V of Part Three of the TFEU nor in measures, falling under that same title, amending an existing measure by which it is bound.

322 That interpretation is supported by a systematic reading of Protocol No 21, from which it is clear that Article 2 thereof cannot be read or applied independently of Article 1 of that protocol. The rule laid down in Article 2 of Protocol No 21, that, in consequence of Article 1 and subject to Articles 3, 4 and 6 of that protocol, Ireland is not bound by the measures, provisions and decisions referred to therein is intrinsically linked to the rule laid down in Article 1 that that Member State is not to take part in the adoption of measures pursuant to Title V of Part Three of the TFEU, and therefore neither of those rules can be understood without the other (see, by analogy, Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraphs 115 and 116).

323 It would therefore be contrary to the objective of Protocol No 21 both to allow Ireland to take part in the adoption of an EU act without being bound by that act and to accept that that Member State should be bound by such an EU act without having participated in its adoption (see, to that effect and by analogy, Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 116).

324 The Court has also held that Protocol No 21 is not capable of having any effect whatsoever on the question of the correct legal basis for the adoption of the decision concerned (Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 108).

325 The rule identified by the case-law of the Court – that it is the substantive legal basis of a measure that determines the procedures to be followed in adopting that measure – applies not only to the procedures laid down for adopting an internal act but also to those applicable to the conclusion of international agreements (judgment of 24 June 2014, Parliament v Council, C–658/11, EU:C:2014:2025, paragraph 57).

326 Consequently, the appropriate legal bases for the conclusion of the envisaged agreement determine the applicability of Article 1 of Protocol No 21 and, by virtue of that provision, whether or not Ireland participates in the adoption of the act concluding that specific agreement. That in turn determines, under Article 2 of that protocol, whether that act concluding the agreement is to be binding on Ireland and, accordingly, whether the provisions of the Istanbul Convention covered by the envisaged agreement are applicable to that Member State.

327 Those intrinsic links between Articles 1 and 2 of Protocol No 21 and the fact that none of the provisions of that protocol envisages partial participation in a measure precludes selective participation in a single measure covered by those articles. That finding is supported by the wording of Article 3 of that protocol, which envisages only the possibility for Ireland to notify its wish to take part in the adoption and application of the ‘proposed measure’.

328 It follows that Protocol No 21 does not authorise a division of the act concluding the envisaged agreement into two decisions in order to enable Ireland to participate in the adoption of one of the two decisions but not in the other, even though, like signature decisions 2017/865 and 2017/866, each of the decisions concluding the agreement would concern measures falling within Title V of Part Three of the TFEU and which therefore fall within the scope of that protocol.

329 Such a division of an act concluding an envisaged agreement into two or more decisions would, moreover, run counter both to the case-law referred to in paragraphs 285 to 287 above and to the wording of Article 13(2) TEU, according to which the institutions must act, inter alia, in conformity with the procedures, conditions and objectives set out in the Treaties, and with the case-law mentioned in paragraph 232 above, according to which the rules regarding the manner in which the EU institutions arrive at their decisions are laid down in the Treaties and are not at the disposal of the Member States or of the institutions themselves.

330 That being said, as the Advocate General pointed out in point 182 of his Opinion, if it is established that the act concluding an international agreement pursues several objectives or has several components which are inseparably linked, without one being incidental to the other, with the result that different legal bases are applicable to that act, a difference in the voting rules within the Council may result in the incompatibility of those legal bases (see, to that effect, Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 109).

331 In such a situation, it may be necessary to adopt two or more decisions for the purpose of adopting an act concluding an envisaged international agreement (see, to that effect, judgment of 2 September 2021, Commission v Council (Agreement with Armenia), C–180/20, EU:C:2021:658, paragraph 40).

332 It follows that there may be situations which give rise to an objective need to divide a measure concluding an envisaged agreement into two or more decisions.

333 That may be the case, inter alia, if such a division is intended to take account of the circumstance that Ireland is not taking part in the measures envisaged in respect of the conclusion of an international agreement which fall within the scope of Protocol No 21, whereas other measures envisaged in respect of that conclusion do not fall within that scope.

334 That may also be the case if such a division is intended to take account of the circumstance that the Kingdom of Denmark is not taking part in the measures envisaged in respect of the conclusion of an international agreement which fall within the scope of Protocol No 22, whereas other measures envisaged in respect of that conclusion do not fall within that scope.

335 It should be borne in mind, in that regard, that Protocol No 22 is intended, as is apparent from the third to fifth recitals of the preamble thereto, to establish a legal framework which allows Member States to pursue the development of their cooperation in the area of freedom, security and justice through the adoption, without the Kingdom of Denmark taking part, of measures which do not bind that Member State, whilst affording that Member State the option of participating in the adoption of measures in that area and of being bound by them under the conditions set out in Article 8 of that protocol. To that end, the first paragraph of Article 1 of Protocol No 22 states that the Kingdom of Denmark is not to take part in the adoption by the Council of proposed measures pursuant to Title V of Part Three of the TFEU, while Article 2 of that protocol provides that the Kingdom of Denmark is not bound by such measures (see, to that effect, Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraphs 111 and 112).

336 In the present case, it follows from the answer to part (a) of the first question that the substantive legal basis for the act concluding the envisaged agreement includes Article 336 TFEU, which does not fall under Title V of Part Three of the TFEU nor, accordingly, within the scope of Protocols No 21 and No 22. In those circumstances, an objective need to divide the act concluding that agreement may be established, in order to take account of the circumstance that Ireland or the Kingdom of Denmark is not participating in that conclusion, in so far as it entails the exercise by the European Union of its external competences under Article 78(2), Article 82(2) and Article 84 TFEU.

337 Consequently, the answer to part (b) of the first question in the request for an Opinion is that Protocols No 21 and No 22 justify the division of the Council act concluding, on behalf of the European Union, the part of the Istanbul Convention covered by the envisaged agreement into two separate decisions only in so far as that division is intended to take account of the circumstance that Ireland or the Kingdom of Denmark is not participating in the measures adopted in respect of the conclusion of that agreement which fall within the scope of those protocols, considered in their entirety.