Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. This Opinion is concerned with Cases 358/85 and 51/86 brought by the French Republic against the European Parliament, which the Court joined by order of 8 July 1987 for the purposes of the oral procedure and judgment. In the applications in question (of 19 November 1985 and 20 February 1986) the French Republic asks the Court to declare void the Resolution on meeting facilities in Brussels adopted by the Parliament on 24 October 1985 (Official Journal C 343, 31.12.1985, p. 84).

2. I shall now summarize the facts. On 22 October 1985, the President of the Plenary Session stated that numerous requests had been lodged for debates on topical and urgent subjects pursuant to Rule 48 (1) of the Rules of Procedure, in the version in force at that time. Among those requests was that of Mr von der Vring and 36 other Members relating to meeting facilities in Brussels (Doc. B 2-1120/85). Under the powers conferred on him by the Rules of Procedure, the President did not include the matter on the agenda for the sitting scheduled to be held on 24 October 1985. Accordingly, 21 Members opposed that decision in writing, giving their reasons and calling for a vote by roll-call. On 23 October the motion was carried (by 108 votes in favour, 33 against and 7 abstentions) and on the following day the resolution was adopted after a brief debate by 132 votes in favour, 113 against and 13 abstentions.

3. A few words on the procedure before the Court. First, on 25 March 1986 the Parliament lodged an objection of inadmissibility with regard to the second application (Case 51/86) on the ground of lis pendens in view of the proceedings instituted by the application of 20 November 1985. By order of 15 October 1986 the Court decided to reserve its decision on the objection of admissibility for the final judgment. I shall consider that objection and the other objections put forward by the Parliament in the written procedure and at the hearing in section 4.

4. I shall now turn to the objections of inadmissibility raised by the Parliament, one of which — to the effect that acts of the Parliament cannot be challenged under Article 173 of the EEC Treaty or Article 146 of the EAEC Treaty — was withdrawn during the oral procedure.

5. The Parliament also maintains that both the applications are inadmissible because they are directed against a measure which, in two respects, is not of a decision-making character. Firstly, the resolution of 24 October 1985 concerned the purchase of a building. However, it follows from Article 211 of the EEC Treaty that the relevant contract can be concluded only in so far as it is authorized by the Commission. Since authorization has not yet been given, the contested measure is not capable of having legal effects vis-à-vis third parties.

6. When I considered the objection relating to lis pendens I pointed out that France's action was based on three grounds: infringement of essential procedural requirements, lack of competence and breach of the principle of proportionality. In asserting that essential procedural requirements have been infringed the French Government maintains, referring inter alia to a number of criticisms voiced in the Parliamentary debate, that the subjectmatter of Mr von der Vring's motion lacked topicality and urgency. Consequently it was not eligible to be adopted by the procedure set out in Rule 48 (1) of the Parliament's Rules of Procedure.

7. The target of the second submission is the decision to construct a building in Brussels containing a meeting room providing seating for 600 people. According to the French Republic, the aim is to make it possible to hold part-sessions in Brussels and, since the agreements between the Member States — that is to say the only authorities competent to take decisions in that field — provide that part-sessions must be held in Strasbourg, that objective vitiates the act embodying it on the ground of lack of competence. The French Government argues that the contested resolution would be unlawful in any event even if it merely sought to improve the situation in which the Parliament works in Brussels by providing the committees and political groups with more adequate facilities; if so, the construction of such a spacious building would infringe the principle of proportionality.

8. The Parliament's counter arguments became steadily more radical as time went on. In its pleadings, it conceded that it was under a duty to hold its part-sessions in Strasbourg, although it considered that it was entitled to depart from that rule; but at the hearing its counsel denied that there were legally significant — or in any event pertinent — measures which required it to organize its part-sessions at a specific place and, in particular, in Strasbourg. Obviously, the first argument must be held to be the alternative one and the second the principal one.

9. It is not hard to reach a decision on the arguments summarized above, since the problems which they raise have already been largely resolved by the Court's previous decisions on the Parliament's places of work.

10. Does its alternative argument merit a different fate? As I have already observed in my Opinion in Case 230/81 the decision to hold certain sessions away from Strasbourg is in general terms lawful because the Parliament enjoys powers of self-regulation based either on the general principles governing the working of all public organizations or on the provisions of the Treaties empowering the Parliament to draw up its own rules of procedure and to lay down therein a precept like Rule 10. However, it must fulfil two conditions: the first is that particular circumstances exist which justify the decision and which are based on the operative requirements of the institution; the second is that the number of part-sessions held in other locations should not be such as to constitute a practice contrary to the agreements between the governments.

11. As a result of the conclusions which I have just reached there is no need for me to give separate consideration to the claim made by the French Republic in reply that the resolution infringes the principle of proportionality. In the light of the information given at the hearing by the Agent of the French Government and, above all, in the light of his statement that France is not asking the Court to assess the financial consequences of the contested measure, it seems in any event that the claim does not constitute a new ground, which would be inadmissible, but merely an argument supplementing the ground of lack of competence. Essentially the French Republic seeks to show simply that the needs of the parliamentary bodies operating in Brussels and the dimensions of the building provided for in the resolution are not commensurate with each other as they ought to be, and, as has now been shown, its observation is correct.

12. In view of all the foregoing I propose that, in ruling on the actions brought by the French Republic against the European Parliament by applications lodged at the Court Registry on 20 November 1985 and 20 February 1986, the Court should decide as follows:

1 Translated from the Italian.