Opinion of Advocate General Van Gerven delivered on 30 November 1989

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.