Opinion of Advocate General Darmon delivered on 24 March 1993
1 Original language: French.
2 See also Article 21(3) of the ECSC Treaty and Article 108(3) of the EAEC Treaty.
3 OJ 1976 L 278, p. 1.
4 Case 294/83 Parti écologiste Les Verts v European Parliament [1986] ECR 1339, at paragraph 19.
5 Lcnaerts in Le Parlement européen et la Cour tie Justice des Communautés européennes. University of Strasbourg, 1987, p. 19.
6 See Isaac, L'insertion du Parlement européen dans le système juridictionnel des communautés européennes, AFDI, 1986, p. 795.
7 Sec my contribution to the Mélanges Rotdorns, p. 75. Sec also point 3 et scq. of mv Opinion in Case 302/87 Parliament v Council [1988] ECR 5615.
8 Case 101/63 Wagner v Fobrmann and Kncr [1964] ECR 195.
9 Case 138/79 Roquette Frères v Council [1980] ECR 3333 and in Case 139/79 Maizena v Council [1980] ECR 3393.
10 Case 13/83 Parliament v Council [1985] ECR 1513 (common transport policy).
11 Les Verts, cited above.
12 Case C-70/88 Parliament v Council [1990] ECR I-2041 (Chernobyl).
13 First paragraph; my emphasis. It is worth pointing out that the Treaty on European Union of 7 February 1992 expressly recognizes the capacity of the Parliament to be the defendant in actions brought against it for failure to act: Should the European Parliament, the Council or the Commission, in infringement of this Treaty, fail to act, the Member States and the other institutions of the Community may bring an action before the Court of Justice to have the infringement established (Title II, Article G, E (54)).
14 Third paragraph; my emphasis.
15 See footnote 9 above.
16 This term is defined in Article 4(1) of the Treaty and expressly includes the Parliament. In addition, the Parliament is mentioned in first place in Part Five of the Treaty dealing with the institutions of the Community.
17 Paragraph 17. It should be noted that this formula is substantially identical to that used in paragraph 19 of the judgments in Cases 138/79 and 139/79, cited above.
18 Sec paragraphs 21 and 22 of üle judgment in Case C-70/88 Parliament v Council (Chernobyl), cited above.
19 Paragraph 25; my emphasis.
20 Cited above in footnote 11.
21 Paragraphs 22 and 23; my emphasis.
22 Paragraph 25; my emphasis.
23 Sec point 6 in the Opinion of Advocate General Van Gerven in the Chernobyl case [1990] ECR I-2041. at I-2057.
24 Paragraph 24; my emphasis.
25 See judgment in Case 22/70 Commission v Council [1970] ECR 263 (AETR), at paragraph 42.
26 Judgment in Case 302/87 Parliament v Council [1988] ECR 5615, at paragraph 20. On this point, see also paragraph 4 of the Opinion delivered by Advocate General Van Gerven on 13 January 1993 in Case C-314/91 Beate Weber v Parliament [1993] ECR I-1093.
27 Paragraph 36 of the judgment in the common transport policy case, cited above.
28 Article 176 of the Treaty.
29 Sec also the second subparagraph of Article 189b(2) of the Treaty on European Union signed at Maastricht on 7 February 1992.
30 See Joliét, Le droit institutionnel dei Communautés européennes, 1981, p. 152
31 This is the reason why the Court has consistently declared as inadmissible actions for failure to act brought against the Commission on the ground that that institution has omitted to bring an action for failure to fulfil obligations, an area in which the Commission has a discretion. In this connection, see the judgments in Case 48/65 Lattiche and Others v Commission [1966] ECR 19 and Case 247/87 Star Fruit Company v Commission [1989] ECR 291, at paragraphs 11 and 12, and the orders in Case C-371/89 Emrich v Commission [1990] ECR I-1555 and Case C-72/90 Asia Motor France v Commission [1990] ECR I-2181. See also paragraph 48 of the judgment in the common transport policy case, cited above, in which the Court stated that: under Article 175 the Court must find that there has been an infringement of the Treaty if the Council or the Commission fails to act when under an obligation to do so (my emphasis).
32 Sec points 30 to 32 of my Opinion in the Comitology case, cited above.
33 Paragraphs 34 to 36 of the judgment in Case 138/79, cited above.
34 Case 34/86 [1986] ECR 2155.
35 At paragraph 12.
36 Opinion in Case 377/87 Parliament v Council [1988] ECR 4017, at point 36.
37 At paragraph 16.
38 The first subparagraph of Article 138(3) provides that the European Parliament shall draw up proposals ... (my emphasis).
39 A form of words which is identical on this point is used in the third paragraph of Article 201 of the Treaty.
40 In Megret and Others, Le droit de la Communauté européenne, volume 9, article 138. point 9.
41 Ibid., point 24.
42 See paragraph 4 above.
43 A resolution was voted on by the Parliament on 10 March 1993 in which the Council was requested to adopt a uniform election procedure based on the principle of proportional representation. To date, no such resolution has been officially communicated to the Court or published. This point may constitute a new element with regard to the substance (possible existence of a failure to act). It cannot have any bearing on the issue of admissibil-ity.
44 Op. cit., point 17.
45 Judgment cited above, at paragraphs 38 to 42.
46 See A. Barav, Considérations sur la spécificité du recours en carence, RTDE 1975, p. 59; It is not clear why measures which cannot be contested by any other means of legal redress should be capable of being contested through an action for failure to act.
47 See M. and D. Waelbroek, Encyclopédie Dalloz, Failure to act, No 26 and No 27.
48 Case 15/70 Chevalley v Commission [1970] ECR 975.
49 Ibid.
50 Sec, in this connection, J. V. Louis, Les règlements de la Communisme économique européenne, 1969, p. 7.
51 Jolict, op. cit., p. 154.
52 Contentieux communautaire, 1977, p. 230.
53 Case C-257/90 Italsolar v Commission [1993] ECR I-9, at paragraphs 28 to 31.
54 Case 246/81 Lord Bethell v Commission [1982] ECR 2277, at paragraph 13.
55 At paragraph 13.
56 See also the judgments in Case 6/70 Borromeo Arese and Others v Commission [1970] ECR 815, at paragraphs 6 and 7, and in Case 15/70 Chevalley v Commission, cited above, at paragraphs 10 and 11.
57 Case T-28/90 Asia Motor France and Others v Commission [1992] ECR II-2285, at paragraph 29.
58 First Regulation implementing Articles 85 and 86 of the Treaty, OJ, English Special Edition 1959-1962, p. 87.
59 Where the Commission, having received an application pursuant to Article 3(2) of Regulation No 17, considers that on the basis of the information in its possession there are insufficient grounds for granting the application, it shall inform the applicants of its reasons and fix a time-limit for them to submit any further comments in writing. Regulation of the Commission of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17, OJ, English Special Edition 1963-1964, p. 47.
60 Case 60/81 IBM Corporation v Commission [1981) ECR 2639, at paragraph 21; Case T-64/89 Amomec v Commission [1990] ECR II-367, at paragraph 49.
61 Case 8/71 [1971] ECR 705. See the Opinion delivered in that case by Advocate General Roemer (at p. 715): ... there is nothing to preclude regarding as acts certain procedural measures, such as the grant of the right to be heard in cartel proceedings following an application to that effect, since it places those concerned in a certain legal position in the proceedings and has legal effects (for example, the fact that in subsequent legal proceedings matters may not be relied upon if thev could have been raised at the hearing and might possibly have influenced the decision of the Commission).
62 Case 125/78 [1979] ECR 3173, at paragraphs 19 to 21.
63 Case C-107/91 [1993] ECR I-599.
64 Provided for under Article 52 of the EAEC Treaty.
65 Paragraphs 17 and 18; my emphasis.
66 See the judgments in Cbevalley, cited above, at paragraph 6, and in Lora Bethell, also cited above, at paragraph 16.
67 Case 134/73 Holtz & Willemsen v Coimai [1974] ECR 1.
68 My emphasis.
69 Point 5 of the judgment.
70 Case 25/62 Phumann v Commission [1963] ECR 95, in particular at pages 106 and 107, and in Case 75/84 Metro SB-Großmnrkte v Commission [1986] ECR 3021, a! paragraph 20.