Opinion of Advocate General Van Gerven
Mr President,
Members of the Court,
1. This case raises once again the question whether the Parliament may bring an action for annulment before this Court under Article 173 of the EEC Treaty and/or the identically worded Article 146 of the EAEC Treaty.
2. In the Comitology judgment the Court held that an application for annulment brought by the Parliament against a Council decision of general application was inadmissible. I shall consider in this Opinion whether the approach adopted in that judgment is applicable without qualification to a case such as this one. In this case the Parliament is challenging a Council regulation on the ground that the regulation was adopted without resorting to the cooperation procedure, thus breaching the Parliament's prerogatives. Although argument was put forward in the Comitology case, and answered by the Court, concerning the breach of the Parliament's prerogatives (in particular its right of supervision over the Commission), the emphasis in that case was principally on the Parliament's role as defender of Community law, and more particularly of the institutional balance laid down in the Treaties.
Division of powers between the institutions also subject to judicial review
3. There is no doubt that in Article 169 et seq. of the EEC Treaty (and in Article 136 et seq. of the Euratom Treaty) the intention was to have powers divided between the institutions referred to in the first paragraph of Article 4(1) of the EEC Treaty (and Article 3(1) of the Euratom Treaty) in such a way as to be subject to not only political, but also judicial review. Such a system is based on the idea that both the institutions and the Member States, which each have their own task to fulfil within the institutional structure set up by the Treaty and which each represent a particular aspect of the Community interest, may, if they wish, bring disputes regarding conflict of powers before the Community court. That also applies to the legislature itself, that is to say the Council, to which was granted at the outset the legislative powers which in a classical constitutional system would normally belong to the parliament.
The jus standi of the Parliament in the case-law of the Court of Justice
4. Another point I would like to remind you of, and of which you are doubtless already aware, is that the case-law of the Court of Justice shows a tendency to extend the Parliament's right to bring actions. The stages in which that has been achieved are so well known that I need merely summarize them: acts of the Parliament may be the subject of a reference for a preliminary ruling seeking their interpretation or a review of their validity; the Parliament is generally entitled to intervene in cases before the Court of Justice; it may bring an action for failure to act under Article 175 of the EEC Treaty; it may be asked to provide information to the Court both in direct actions and in the course of references for preliminary rulings; actions may be brought to have acts of the Parliament declared void. In the Comitology, case Advocate General Darmon rightly pointed out that in all those cases except the last there was some relevant indication in the Treaty provisions which enabled the Court of Justice to extend their application to the Parliament by means of an interpretation of them. As far as applications to have acts of the Parliament declared void are concerned, however, the Court was not able to refer to such a provision but found that no obstacle to its interpretation : see the judgment in Les Verts.
The Comitology judgment
5. Anyone who has followed the case-law of the Court of Justice from the moment of the entry into force of the EEC Treaty will undoubtedly have noticed to what extent the Court has concentrated, and still does concentrate, on ensuring, in many different ways, that there is an adequate and coherent system of legal protection. In that context, the Comitology judgment is somewhat surprising. The Court rejected in its judgment both the arguments relating to the parallelism of legal remedies, in particular that of the action for failure to act and the action for annulment — although in a previous judgment the Court had emphasized the close link between them — and those regarding the connection between the Parliament's capacity to be sued and its capacity to sue. What was particularly surprising was that the Court based its rejection of the argument that the Parliament's right to bring an action for failure to act was paralleled by a right to bring an action for annulment on a very broad interpretation of Article 175 — that is to say, by equating (paragraph 17 of the decision) an express refusal to act with a prolonged failure to act — in order to fill (to some extent) a gap in the system of legal protection. That interpretation went further than the Court's previous case-law would have led one to suppose and also departs from the rules contained in the ECSC Treaty (on which the Court relied, however, to draw argument by analogy on the question of the link between the capacity to sue and the capacity to be sued).
The requirement that there be an adequate and coherent system of legal protection
6. The distinction I have just outlined between the interpretation of the Treaty with a view to ensuring that there is an adequate and coherent system of legal protection and its interpretation in a manner which might interfere with the delicate political balance between the institutions is in my view an essential one. Whereas the first is the inalienable task of the courts, the second falls to the (primary) legislature. That explains why the Court did not accept, in the Comitology judgment, arguments seeking to have the institutional balance adjusted, particularly after the rejection of the Commission proposal to which I have just adverted, whereas in Les Verts it did in fact accept argument concerning the guarantee of legal protection by means, as it pointed out, of a complete system of legal remedies and procedures laid down by the Treaty for the benefit of third parties who consider that they have been harmed by mandatory acts of the Parliament. The Court did so on the ground that
7. Since this case concerns the Parliament's power by itself and on its own initiative to bring an action for annulment in order to safeguard its own powers (of cooperation) and that alone, I shall restrict my consideration of the question whether it is desirable for the Court to qualify the Comitology judgment to that context. Consequently, my Opinion will relate to paragraphs 25 to 27 inclusive of that judgment, and, subsequently, to paragraphs 8 to 10 thereof. I shall regard the remaining paragraphs of the judgment, to the effect that the Parliament has no unlimited right to bring actions for annulment, as beyond discussion.
The Parliament's capacity to bring an action in order to safeguard its powers
8. When I speak of (the Parliament's) capacity to bring an action (la qualité pour ester en justice) I distinguish that from (the Parliament's) general legal capacity (la capacité d'ester en justice). The second of those phrases refers to the capacity to be invested with rights, which usually goes hand in hand, in the case of a party to proceedings, with (a more or less marked form of) legal personality (which I shall explain further in paragraph 17, below). The first has to do with the question whether a particular rule of law, in this case the Treaty, expressly or impliedly confers a right to appear before the courts, either as a plaintiff or as a defendant.
9. I would like to point out that the emphasis in the question as I have just stated it lies not on the link between the Parliament's capacity to sue and its capacity to be sued (that is to say, between the Parliament as plaintiff and the Parliament as defendant) — a question which has to do with institutional equilibrium, a subject which I have already dealt with and to which I do not wish to revert here (see paragraphs 5 and 6, above) — but on the existence (or absence) of the Parliament's capacity to bring an action challenging the acts of other institutions in the light of the requirement of adequate legal protection. In other words, if the Parliament is recognized as having the capacity to bring an action in that case it is not because it must be permitted to bring actions now that the Les Verts judgment has confirmed that it has capacity to stand as a defendant, in order to put it on the same footing as the Council and the Commission; it is because the Parliament must be permitted to bring actions in order to be able to defend its rights, powers and prerogatives adequately itself, in the same way as other persons or institutions.
The need to interpret Article 173 of the EEC Treaty in the light of the requirement of legal protection
10. Let me say at once that I see no reason why the answer to that question should not be the same for an institution as it is for individuals.
11. Nor is there any written provision which may be relied upon as against the Parliament, since the judgment in Les Verts. As I mentioned before, the first paragraph of Article 173 does not refer to the Parliament, whether as one of the institutions subject to review by the Court of Justice or as one of those with a right of appeal, and does not even contain a general reference which could be interpreted as including the Parliament. As regards the institutions subject to the Court's powers of review, the Court saw no reason not to include acts of the Parliament among the acts subject to its review under the principle of legal protection for injured third parties. In other words, where the provisions are silent the Court has interpreted them in the light of the overriding requirement that the most suitable legal protection be provided. Should not that approach also be applied, when seeking to remedy a similar gap in a provision, whenever the aim is to give institutions a degree of legal protection similar to that enjoyed by individuals, and whenever that means that they must be able to defend their own rights, powers and prerogatives? It should also be noted that the association concerned in Les Verts was a political party, in other words an association with a public law vocation, and that the rights at issue there were also not merely subjective rights, but claims to electoral funds.
12. In my view, a more convincing argument than the preceding observations is that in a community of law it must be possible for anyone with the capacity to perform legal acts to assert their individual rights, powers and prerogatives themselves, as and when they see fit, before the courts. That appears to me to be a general principle of law, that is to say, the expression of the fundamental right to legal protection (as defined above, paragraph 6) which, as just indicated, extends to public authorities and institutions provided that the institutional framework allows, as it does in the European Community, conflicts regarding the distribution of powers between the institutions to be brought before the courts.
13. In support of their argument that the Parliament has the capacity to bring an action for annulment, the institution's representatives and those of the Commission rightly emphasized during the oral procedure that if political negotiations have been unsuccessful in settling a legal conflict of powers, it is essential to be able to bring the matter before the courts. In a community such as the European one (especially since the adoption of the European Act), where there is a subtle balance between on the one hand the powers of the Community institutions as between themselves and on the other the powers of the Community and of the Member States, which gives rise, and will continue to give rise, to delicate questions regarding the distribution of powers, the definitive resolution of such conflicts should be a matter for the Court. Were the Court to decline such jurisdiction, even in part, it would be failing in its duty as ultimate guardian of the law, a duty which the Treaties have conferred on the Court, not on the Commission (compare Article 164 and the first indent of Article 155 of the EEC Treaty).
14. I have already referred (in paragraph 6, above, in fine) to the fact that in the Comitology case the Court did not reject the argument that the Parliament's prerogatives should be protected by the courts. To that extent, what I suggest does not conflict with the Court's previous judgment. In fact for the reasons stated above I do not think that the approach suggested in that judgment, of leaving to others the right to obtain that protection by means of an action for annulment — that is, the most effective form of legal protection — is a good solution. As I have already said that solution would also encourage endeavours to find ways of bringing a conflict before the courts by other means, ways which would make extreme interpretations (as in the case of an action for failure to act: above, paragraph 5) or undesirable distortions of the procedure (footnote 26) unavoidable. In my view, the direct approach, according to which the Parliament should enjoy a limited right to bring proceedings under Article 173 of the EEC Treaty in order to safeguard its own rights, powers and prerogatives, is certainly the most acceptable one from the point of view of providing adequate legal protection and the administration of justice. It is also the only solution which can provide a complete remedy where there has been failure to fulfil an essential procedural requirement.
15. For those reasons I have come to the conclusion that the Parliament must be recognized as having the capacity to bring an action for annulment before the Court under Article 173 of the EEC Treaty (or Article 146 of the EAEC Treaty) whenever it is necessary to safeguard its rights, powers or prerogatives (see also paragraph 19, below).
The legal basis for the Parliament's capacity to bring an action
16. The question which must be answered now is whether the Parliament's capacity to bring an action under Article 173 to safeguard its rights, powers or privileges, in favour of which I have just argued, derives from the first or from the second paragraph of Article 173.
17. The fact that under the second paragraph of Article 173 only legal (and natural) persons are entitled to bring actions and that only such persons are deemed to have general capacity — as distinct from the capacity to bring an action (see paragraph 8, above) — does not seem to me to constitute a real obstacle. There is, after all, in many legal systems evidence of a general tendency to interpret the concept of legal person in a pragmatic way, allowing the courts to decide on the basis of the way in which positive law structures the legal sphere of a particular organ or institution that within a specific legal relationship that organ or institution has (to a greater or lesser degree) legal personality.
18. A more serious objection to the use of the second paragraph of Article 173 is the requirement it lays down that the decision or act challenged must be of direct and individual concern to the applicant. Precisely on that point, however, there has been a marked change of emphasis in the case-law of the Court of Justice. In the past the requirement was always that persons other than those to whom a measure is addressed may claim to be individually concerned only if the measure affected them personally in the same way as the addressee by reason of certain attributes or circumstances special to them. Subsequently, however, the Court explained, in cases concerning subsidies and dumping, competition and government aid, that the requirement of legal protection constituted the principal basis for determining who may bring an action for annulment: it applies in fact to those who have participated in the procedure which led to the adoption of the contested act. Thus in Timex the Court considered that regulations introducing an anti-dumping duty, in so far as they were applicable generally to all the traders affected by the provisions, were indeed legislative in nature and scope but that at the same time such a regulation is a decision which is of direct and individual concern to the applicant, having regard to the part played by it in the procedure which led to the adoption of the regulation. In a later case, Cofaz, this time to do with government aid, the Court clarified its position in the following terms:
19. Although I am therefore of the opinion that the second paragraph of Article 173 may serve to provide the Parliament with a jas standi, I nevertheless consider the first paragraph of Article 173 to be more appropriate, inasmuch as that paragraph deals with the right of action of bodies of public law. If the Court shares that preference, the result will be that a special category of Community institutions, that is to say, the Parliament, must be included under that provision whose right to bring an action may be exercised only for the purpose of safeguarding their rights, powers or prerogatives. In fact I do not see why that restrictive interpretation of the first paragraph of Article 173 should present more difficulties than the extensive one given by the Court to the second paragraph of Article 173 in the cases discussed in the preceding paragraph.
Conclusion
20. On those grounds I conclude that the Parliament's action must be declared admissible under Article 173 of the EEC Treaty and/or Article 146 of the EAEC Treaty, pursuant to the first (or alternatively the second) paragraph thereof. Costs should be reserved.
1 Original language: Dutch.
2 For the sake of convenience I shall refer henceforth solely to Article 173 of the EEC Treaty.
3 Judgment of 27 September 1988 in Case 302/87 Parliament v Council [1988] ECR 5615.
4 Council Regulation (Euratom) No 3954/87 of 22 December 1987 laying down maximum permitted levels of radioactive contamination of foodstuffs and of feeding-stuffs following a nuclear accident or any other case of radiological emergency (the so-called Chernobyl regulation, OJ 1987, L 371, p. 11).
5 Judgment of 26 March 1987 in Case 45/86 Commission v Council [1987] ECR 1493, paragraph 11, judgment of 23 February 1988 in Case 68/86 United Kingdom v Council [1988] ECR 855, paragraph 24
6 Judgment of 22 May 1985 in Case 13/83 Parliament v Council [1985] ECR 1513, at p. 1556, paragraph 18: The fact that the European Parliament is at the same time the Community institution whose task is to exercise political review of the activities of the Commission, and to a certain extent those of the Council, is not capable of affecting the interpretation of the provisions of the Treaty on the right of action of the institutions. But see also paragraph 12 of the Comitotogy judgment, which seems to conflict with this, or at least reduces its impact.
7 The following consideration in the judgment of the Court of 10 July 1986 in Case 149/85 Wybot [1986] ECR 2403 is relevant to the kind of dispute before us today: In accordance with the balance of powers between the institutions provided for by the Treaties, the practice of the European Parliament cannot deprive the other institutions of a prerogative granted to them by the Treaties themselves (paragraph 23).
8 For references and a general discussion, see most recently the Opinion of Advocate General Darmon of 26 May 1988 in the Comitology case, [1988] ECR 5615, at p. 5627.
9 Judgment of 23 April 1986 in Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraphs 24 and 25, confirmed in the judgment of 3 July 1986 in Case 34/86 Council v Parliament [1986] ECR 2155, paragraph 5.
10 See Article 49 of the Statute of the Court of Justice (EEC, Euratom, ECSC) as last amended by Council Decision (ECSC, EEC, Euratom) 88/591 of 24 October 1988 (OJ 1989, C 215, p. 1).
11 Particularly as regards the Parliament's right to intervene in proceedings before the Court of Justice and to bring an action for failure to act. See the judgments of 29 October 1980 in Cases 138/79 Roquette Frères and 139/79 Maizena [1980] ECR 3333 and 3393, paragraph 19, and of 22 May 1985 in Case 13/83, cited in footnote 5, at paragraph 17.
12 Judgment of 17 February 1977 in Case 66/76 CFDT v Council [1977] ECR 305, paragraph 8 (regarding applications by individuals for the annulment of decisions of the Council under the ECSC Treaty). The decision was confirmed in the judgment of 11 July 1984 in Case 222/83 Municipality of Differdange s Commission [1984] ECR 2889 (in which it was held that local authorities have no right of action under Article 33 of the ECSC Treaty).
13 An example: in the second English version (just published, revised by L. W. Gormley) of the standard work by P. J. G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities, 1989, the authors describe the natural development of the principle of the Parliament's jus standi before the Court, on pp. 143 et seg, with the conclusion (obviously drafted prior to the judgment in the Comitology case) that: there is no escaping the fact that bringing cases before the Court is both a manifestation and consequence of active parliamentary participation in the political life of the Community (p. 145). As a result of the judgment in the Comitology case the authors were obliged to add a qualifying note to that footnote at the last minute.
14 See the judgment of 18 November 1970 in Case 15/70 Chevalley [1970] ECR 975, paragraph 6. Admittedly, the Court expressed that consideration in connection with the definition of an act which could be the subject-matter of an application under Articles 173 and 175.
15 For a thoroughgoing analysis of the Comitology judgment, on this point and others, and of the previous case-law of the Court, see M. Thill, Le défaut de qualité du Parlement européen pour agir en annulation au titre de l'article 173 du traité CEE: l'arrêt de la Cour de Justice du 27 septembre 1988 et ses implications sur d'autres aspects du contentieux communautaire, Cahiers de droit européen, 1989, p. 367, at pp. 375 to 382.
16 See the declaration made by Commission member Mr Ripa di Meana to the Parliament on 9 October 1986. The Commission's proposal was published in the Bulletin of the Parliament, OJ 100.805/Addendum 2 of 10.10.1985, p. 25
17 According to a declaration made by Commission President Mr J. Delors subsequently to the Parliament, the Council was not unanimous on that point, some of the national delegations to the conference of representatives of the governments of the Member States pointed out during the discussion of the proposal that les institutions communautaires etaient sous l'emprise d'une constitution évolutive et qu'un jour la jurisprudence donnerait de facto ce droit au Parlement See the Minutes of the sitting of 26 October 1988 (provisional edition), pp. 194 to 197.
18 J. Weiler, Pride and Prejudice — Parliament v Council, European Law Review, 1989, p. 334, at p. 345
19 See paragraphs 23 and 24 of the decision in Les Verts, cited in footnote 8, and in particular the interpretation given thereto in the Comitology judgment, in paragraph 20.
20 Les Verts judgment, cited in footnote 8, at paragraph 23.
21 Here, and elsewhere, I use this broad formulation in order to show that the nature of the rights, in the widest sense of the term, is irrelevant.
22 As to the distinction between capacite and qualité to appear before the courts under the EEC Treaty (and also interêt, a concept which in this case consists of defending the party's own right sec paragraph 6, above), sec the no longer recent but still informative aniele by C Cambier, Le droit de procedure principe et element régulateur de l'autorité des (uges dans les Communautés européenes, which appeared in De individuele rechtsbescherming m de Europese Gemeenschappen, 1967, p 117 Compare with the aniele by J Boulouis, La qualité du parlement européen pour agir en annulation, Rev. M Comm., 1989, p 119
23 A point already alluded to by Advocate General Darmon in his Opinion prior to the Comitology ludgment (paragraphs 32 and 33)
24 See, for example, the judgment of 15 October 1987 in Case 222/86 Heylens [1987] ECR 4097, in particular paragraph 14.
25 See for example the recent judgments of 21 September 1989 in Joined Cases 46/87 and 227/88 Hoechst [1989] ECR 2859, paragraph 17 et seg., of 17 October 1989 in Case 85/87 Dow Benelux [1989] ECR 3137, paragraph 28 et seq. and of 18 October 1989 in Case 374/87 Orkem [1989] ECR 3283, paragraph 30 et seq.
26 Sec footnote 18.
27 Read the comments by Thill referred to in footnote 14, at p. 387. In the absence of anything better, he mentions the possibility for the Parliament, by means of an action for failure to act brought against the Commission, to force that institution if necessary (that is, if it has failed to initiate one itself) to bring an action for annulment in order to safeguard the Parliament's rights and prerogatives. That one must resort to such tortuous and, from the point of view of procedural economy, undesirable stratagems is sufficient to show that the Parliament should be allowed to bring actions for annulment itself.
28 Judgment of 8 October 1974 in Case 175/73 Union syndicale v Council [1974] ECR 917
29 Judgment of 28 October 1982 in Case 135/81 [1982] ECR 3799.
30 Judgment of 4 October 1983 in Case 191/82 [1983] ECR 2913.
31 For further cases see the commentary by Mr Thill already referred to in footnote 14, at pp. 371 and 372.
32 See for example the judgments of 15 July 1963 in Case 25/62 Plaumann [1963] ECR 925, at p. 107 and of 14 July 1983 in Case 231/82 Spijker [1983] ECR 2559, paragraph 8.
33 Judgment of 20 March 1985 in Case 264/82 [1985] ECR 849, paragraphs 12 and 16. For a brief but accurate review of the cases see R. Lauwaars and C. Timmermans, Europees Gemeenschapsrecht in kort bestek, 1989, pp. 115 to 118.
34 judgment of 28 January 1986 in Case 169/84 Cofaz v Commission [1986] ECR 391.
35 Another example of a case in which the Parliament's own powers were not at issue is the case on the common transport policy (cited in footnote 5), in which the Parliament asked the Court (admittedly under Article 175 of the EEC Treaty) to declare that the Council's failure to introduce a common transport policy was in breach of the Treaty.