Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The case to be decided by the Court is concerned principally with two problems, both of great constitutional importance: the first concerns the review which the Court of Justice may effect — in direct actions — of measures of the Parliament; it is then necessary to establish what powers, if any, the Parliament has in deciding where its offices are to be situated and where it is to work, having regard to the agreements hitherto arrived at in this matter by the Member States. The Court has already had occasion to consider the review of measures of the Parliament, in a restricted and specific context: I refer to the recent judgment of the Court in Lord Bruce of Donington v Aspden. It is, however, the first time, I think, that the Court has been requested to rule directly on this matter. On the other hand, no case-law exists on the agreements concerning the seat of the Parliament.

2. In this opinion I shall deal first of all with the numerous grounds of inadmissibility which have been advanced by the defendant. These grounds constitute objections which always, or almost always, involve complicated points of law. I shall then proceed to consider the substance of the dispute, that is to say, the two grounds of lack of competence and infringement of essential procedural requirements pleaded by the applicant. In this context I must above all review, in chronological order, the contents of the various agreements arrived at by the Member States with regard to location of the Parliament's place of work.

3. I shall begin by considering the procedural factors.

4. The second objection also relates to the status of the applicant, but is based on a different argument: the various Member States, it is said, may not individually challenge Community measures which infringe the right conferred upon them by the basic sources to decide the seat of the institutions. The right to challenge such measures belongs jointly to all the Member States and accordingly they may only exercise it jointly. In this case the Grand Duchy is the only State which has brought an action: it follows that this application must be considered inadmissible for want of title to sue.

5. In the same line of thought the Parliament puts forward a third argument. It assumes for the sake of argument that a Member State may institute court proceedings alone, although it is only a co-owner of the right which it is defending: in order that the Court may give judgment it is nevertheless indispensable that all the other co-owners of the same right should be joined to the proceedings. That is to say it constitutes a case in which a party must necessarily be joined to the proceedings by virtue of the nature of the matter in dispute. The Parliament goes on to argue that the rules governing procedure before the Court of Justice do not provide for joinder by order of the court but only for voluntary intervention and that, as will be seen, is subject to certain limitations. Accordingly, those rules do not contain the means of ensuring that all parties are joined. As a result of that lacuna, whenever the matter before the Court involves necessary joinder and all the parties concerned in the matter are not before the Court, the latter cannot give judgment properly, that is to say, in such a way as to satisfy the applicant's claim. The conclusion to be drawn in this case is clear: the Grand Duchy must fail in its action.

6. The Parliament next argues on a second ground that the applicant has no title to sue. It avers that Luxembourg was not entitled to take proceedings to protect the interests of the staff of the Parliament and that the application is therefore inadmissible. This objection — which, if I may say, is somewhat peculiar — is based on the fact that the applicant, in challenging the resolution of the Parliament, has submitted inter alia that it adversely affects the officials of that institution. It is clear that the defendant's argument is entirely unfounded. The fact is that Luxembourg has never asserted that it is taking proceedings in the interests of third parties : on the contrary, it has always declared that it has taken proceedings in exercise of its own right, as should be clear from what I stated earlier concerning title to sue. I accordingly refer to what was said on that point.

7. I shall now proceed to consider the objections of inadmissibility based on the characteristics which a Community measure must display if it is to be open to challenge. The objections in question are that the resolution is in the nature of a confirmation and that it is only of internal effect.

8. However, the Parliament challenges the admissibility of the application on yet another ground: the measure in question affects only its own administration and therefore may not be challenged.

9. However, the principal argument whereby the defendant institution maintains that the application is inadmissible is different: that argument is based on the nature of the contested measure. Its basis is beyond question: the measure of 7 July 1981, it is stated, concerns the organization of the work of the Parliament and is therefore concerned exclusively with the activities of that institution, without distinguishing between the various powers conferred upon it by each of the three Treaties. It adds that such a measure cannot correspond to the words act of the Assembly, contained in Article 38 of the ECSC Treaty, and cannot therefore be contested. The argument is based, on the. one hand, on the finding that neither the EEC Treaty nor the EAEC Treaty envisages, expressly at any rate, that measures of the Parliament may be challenged and, on the other hand, on the view that Article 38 of the ECSC Treaty only permits measures whose subject-matter comes within its scope to be challenged. On that basis it is clearly necessary, according to the defendant, to hold immune from challenge measures concerning matters common to the three Treaties, as, for example, those concerning the organization and work of the institutions.

10. Article 38 of the ECSC Treaty therefore gives the Court of Justice jurisdiction to entertain this application. The article is both necessary and sufficient for jurisdiction. It is thus unnecessary to deal with the argument which endeavours to provide additional ground for jurisdiction on the basis of Article 173 of the EEC Treaty by interpreting it widely. Furthermore, the applicant put forward that argument in the alternative.

11. I shall now proceed to consider the substance of the case. The Grand Duchy claims that the resolution of 7 July 1981 on the seat of the institutions of the European Community and in particular of the European Parliament is vitiated by lack of competence and infringement of essential procedural requirements. On the one hand, it is stated, the three Treaties provide that the decision on the seat of the institutions is to be taken by the governments of the Member States; on the other hand, it is added, in the procedure for approving the measure the Legal Affairs Committee was not consulted. The Court is empowered to take cognizance of both of the grounds of invalidity under the last paragraph of Article 38 of the ECSC Treaty, which, with reference to an application for a declaration that an act of the Assembly is void, provides that the only grounds for such application shall be lack of competence or infringement of an essential procedural requirement.

12. I now come to the issue of lack of competence. The applicant claims that when the Parliament adopted the resolution of 7 July 1981 it substituted itself for the governments of the Member States in the exercise of the powers reserved to them in choosing the seat of the institutions.

13. Now that I have dealt with these problems of definition I shall endeavour to describe the terms of the agreements concluded by the governments concerning the seat of the Parliament and the practice which has developed in this matter.

14. The location of the Parliament — this is the third stage — was subsequently defined seven years later within the framework of the negotiations for the establishment of a single Council and a single Commission of the European Communities. The agreement concluded at the ending of the negotiations (on 8 April 1965) provides in Article 37 that, without prejudice to the application of Article 77 of the ECSC Treaty, Article 216 of the EEC Treaty, Article 189 of the EAEC Treaty and Article 1 of the Protocol on the Statute of the European Investment Bank (the second paragraph of which states that: The seat of the Bank shall be determined by common accord of the Governments of the Member States), the representatives of the Governments of the Member States shall by common accord lay down the provisions required in order to settle certain problems peculiar to the Grand Duchy of Luxembourg which arise out of the creation of a single Council and a single Commission of the European Communities. The second and last paragraph of the same article adds: The decision of the representatives of the Governments of the Member States shall enter into force on the same date as this Treaty.

15. However, the Parliament endeavours to confer a narrow interpretation on that decision, emphasizing its connection with Article 37 of the Merger Treaty. Such a connection, it is agreed, would exclude the possibility that the Member States adopted the decision in exercise of the power to choose the seat of the institutions as laid down in the Treaties of Paris and of Rome: it is clear that a decision divorced from the Treaties would not be binding on the defendant institution (cf. p. 28 of the rejoinder, lodged on 23 February 1982). But there are many considerations which preclude the adoption of the argument thus summarized.

16. I shall now consider in what places the Parliament has functioned in the period extending from April 1965, the date of the decision with which I have just dealt, and the commencement of the fourth stage of the events in question, in March 1981, when the Heads of State and Heads of Government of the Member States, meeting in Maastricht as the European Council, set out their views on the seat of the institutions.

17. I shall shortly analyse the content and scope of that resolution. Let us first raise the point, having regard to the practice which has developed since 1965 and the agreements concluded at Maastricht and at the meeting at the end of June 1981, whether new facts have supervened which affect to some degree the provisional location of the Parliament as laid down in the decision of 1965 and in the preceding agreements (on this point, see in particular section 14, supra). I must state from the outset that in my view the legal position has not altered. The rights and duties of the Member States, on the one hand, and the position of the defendant institution, on the other, remain those clearly defined in the said decision.

18. It must now examine the resolution adopted by the Parliament on 7 July 1981 (Official Journal, C 234 of 14 September 1981, p. 22). In this connection, the first requirement is to review the various aspects of the resolution. Thereafter it will be necessary, in the light of the results of that review, to establish whether, or to what extent, the resolution is compatible with the agreements concluded by the Member States on the seat.

19. However, before we carry out that examination it is necessary to consider a question of a general nature. According to the applicant, in the resolution at issue the defendant institution has exceeded the power of organizing its own administration and its own work which it possesses, like all the other institutions. But in order to prove this the applicant invokes the context in which the resolution was adopted rather than its content. It urges that the minutes of the Parliament's proceedings should be consulted: they show clearly that the Parliament did not intend to abide by the agreements concluded by the governments, above all with regard to the redistribution of staff. I wish to state from the outset that this approach does not appear to me to be correct.

20. Paragraph 3 (a) sets out the Parliament's decision to hold its part-sessions in Strasbourg. These words imply that it is no longer intended to hold sessions in Luxembourg, at least until such time as an amendment to the measure in question is adopted. May it be said that that subparagraph constitutes a breach of the reservation of power to the Member States referred to in Article 77 of the ECSC Treaty, Article 216 of the EEC Treaty and Article 189 of the EAEC Treaty? I consider that it may not and I shall explain why.

21. Paragraph 3 (b) contains the decision to organize the meetings of ... committees and political groups as a general rule in Brussels.... Since I have accepted a wide definition of seat as the place (or places) where the institution has its own offices and usually works, I naturally consider that the location of such offices and work also falls within the powers of the governments. So in this respect also the resolution does not, in my view, depart from the agreements between the governments; I therefore consider that the submission of lack of competence pleaded by the Grand Duchy is unfounded.

22. Paragraph 3 (c) contains the following decisions: (i) to review the operation of the Secretariat and technical services... to meet the requirements set out in (a) and (b) above, particularly with a view to avoiding the need for a substantial number of staff of Parliament to travel constantly; (ii) to make use, with that end in view, of the latest means of telecommunication both for personal contacts and for document transmission; (iii) to use the most advanced techniques... to facilitate cooperation between the institutions, while road, rail and air links between the main centres of activity of the Community must be improved; (iv) to have the appropriate bodies of the Parliament determine under the guidance of the President and the enlarged Bureau the measures to be taken, to evaluate their costs and before the end of the year to present to the Parliament a report accompanied by appropriate proposals.

23. With regard to the first point the better view appears to me that the contested resolution constitutes a measure producing legal effects which have repercussions beyond the confines of the institution. In fact by adopting the resolution the Parliament has decided — I repeat decided, not merely considered — the transfer of staff from Luxembourg to other places, in particular Brussels. The administration was charged with determining (it must again be emphasized: determining, not merely considering) the measures necessary for that purpose and their costs, which, in my view, constitutes the implementation of a decision which has already been taken. Nor must we be misled by the fact that the number or the names of the staff to be transferred are not given and that Brussels is not expressly mentioned as the place of destination; these lacunas appear reasonable if it is considered that the Parliament is giving instructions of a general nature and that the administrative authorities are required to take specific measures to implement them. The same applies with regard to the report (mentioned in the fourth subparagraph) that the appropriate bodies must present to the Parliament: that and the subsequent decisions by the institution form part of a specific choice which has already been made definitively in the resolution in question. An enlightening factor in this matter appears in the sixteenth recital in the preamble, in which it is noted that the Parliament has always asserted its right to meet and work where it chooses.

24. Turning then to the second problem, I will remind the Court that the decision of 8 April 1965, Article 4 of which I have already quoted, was adopted by the governments in exercise of their power to determine the seats of the institutions. Clearly, any measure of the Parliament which involves posting staff from Luxembourg to other places must be appraised in the light of Article 4. However, that provision must not in my view, be interpreted inflexibly, because, amongst other reasons, the Parliament is no longer what it was in 1965 but has been made more representative and has seen its membership doubled.

25. On the basis of all the considerations which I have hitherto set out, I propose that the Court, in deciding the action brought by the Grand Duchy of Luxembourg against the Parliament of the European Communities by an application lodged at the Registry on 7 August 1981, should:

1 Translated from the Italian.