C-230/81

THE COURT

composed of: J. Mertens de Wilmars, President, P. Pescatore, A. O'Keeffe and U. Everling (Presidents of Chambers), Lord Mackenzie Stuart, G. Bosco, O. Due, K. Bahlmann and Y. Galmot, Judges,

Advocate General: G. F. Mancini Registrar: P. Heim

gives the following

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JUDGMENT

2. At a conference held on the entry In order to choose the seat they have into force of the ECSC Treaty on 24 and decided to meet again before 1 June 25 July 1952 the Ministers for Foreign 1958 ... Affairs of the six founder Member States of the Coal and Steel Community declared that the High Authority and the In the meantime the Commissions will Court of Justice would begin their work meet when convened by their Presidents. in Luxembourg, the Assembly would Since no definitive or provisional seat has hold its first meeting in Strasbourg and been fixed the Governments recommend the ultimate decision on the seat would the Commissions to hold their meetings be taken in the light of the results of the at Val Duchesse (Brussels) or in Luxem­ negotiations which would be undertaken bourg for practical considerations and in on the status of the Saar. view of the material facilities.

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The Councils of Ministers of the two On 8 April 1965 when the above- Communities and the Office of the mentioned Treaty was signed the Investment Bank will meet as called upon Governments of the Member States by their Presidents. adopted pursuant to Article 37 thereof a decision which entered into force on the same date as the Treaty, namely 1 July The Assembly will meet in Strasbourg. 1967 (Official Journal 1967, 152, p. 18), and provided inter alia as follows :

j »

"Article 1

Following that decision the Assembly Luxembourg, Brussels and Strasbourg continued to hold its plenary sittings in shall remain the provisional places of Strasbourg and its General Secretariat work of the institutions of the continued to function in Luxembourg. As Communities." regards committee meetings the practice gradually began to be established of frequently holding them in Brussels "Article 4 where the Members of the Councils and the Commissions of the two Communi­ The General Secretariat of the Assembly ties and the administrative apparatus of and its departments shall remain in the institutions were to be found. Luxembourg."

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Subsequently for practical reasons all caused to the French Government at the sittings of the Parliament of short practice adopted by the Parliament of duration were generally held in Luxem­ holding each year a number of part- bourg. sessions in Luxembourg including for the first time in 1973 long part-sessions.

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By letter dated 22 September 1978 sent and the cost of its activities and wishing to the President of the Parliament the to see the provisional arrangements French Minister for Foreign Affairs concerning its places of work brought to protested against the draft calendar of an end, it requested the Governments of sessions drawn up by the enlarged the Member States to take a decision by Bureau of the Parliament for the first 15 June 1981 at the latest and declared half of 1979 and stated that Strasbourg that "if the Governments of the Member was the sole meeting place for the States have not reached a decision by the Assembly and that the practice which above date, it would have no option but had provisionally developed of holding to take the necessary steps to improve its certain part-sessions in Luxembourg was working conditions." contrary to the decisions taken by the Governments of the Member States; he insisted that at least three out of five On 12 January 1981 the Parliament meetings should be held in Strasbourg. adopted a resolution rejecting the calendar of part-sessions put forward by the Bureau for the first half of 1981 and providing for two part-sessions in Luxem­ At the sitting of the Parliament on bourg; it decided to submit the calendar 13 February 1978 its President issued a of part-sessions for 1981 to a vote of all declaration on what had been done to its Members and to hold the July 1981 ensure that the Parliament elected by part-session in Strasbourg. direct universal suffrage had normal working conditions in the current places of work and stressed the contacts with In accordance with that resolution a the competent authorities in Strasbourg proposal in relation to the calendar and and Luxembourg and the solutions being places for part-sessions of the Parliament studied in Brussels in order to provide for 1981 was submitted to the Par­ the premises and facilities necessary for liament. That proposal was that part- plenary sittings in Strasbourg and Luxem­ sessions should be held exclusively in bourg and for meetings of the Strasbourg during the second half of committees and political groups in 1981. It was adopted by the Parliament Brussels. at a plenary sitting on 13 March 1981.

to the difficulties encountered by the it did not call in question the rights or Assembly in fulfilling the duties assigned duties of the Governments of the to it by the Treaties by reason of the Member States on the subject but dispersal of the places in which it carried referred to the difficulties resulting from on its activities the representatives of the the dispersal of the places of work in Governments of the Member States met three different locations; it considered together at a conference on the seat of that disregard by the Governments of the the institutions of the Community which Member States of the time-limit of terminated on 30 June 1981 with the 15 June 1981 forced it to improve its following agreement: own working conditions and it asserted its right to meet and work in the place of its choice. The resolution then states that " 1 . The Governments of the Member the Parliament: States find that, in accordance with Article 216 of the Treaty, they alone are empowered to determine the seat of the institutions of the Community. " 1 . Calls on the Governments of the Member States to comply with their obligation under the Treaties and at 2. The decision of the Governments of long last fix a single seat for the the Member States taken at their institutions of the Community and meeting at Maastricht on 23 and asks for a conciliation procedure to 24 March 1981 to maintain the status be opened in good time on this quo in regard to the provisional matter; places of work comes within the exercise of that power. It is without prejudice to establishing the seat of the institutions." 2. Believes it is essential to concentrate its work in one place;

that, with that end in view, the certain arguments contained in the fullest possible use should be rejoinder of the Parliament without made of the latest means of prejudice to the question whether those telecommunication both for matters constituted a new issue within personal contacts and for the meaning of Article 42 (2) of the document transmission, Rules of Procedure. The Parliament did not consider it necessary to answer those that the most advanced further observations of the Luxembourg techniques must also be used to Government. facilitate cooperation between the institutions, while road, rail and air links between the main Upon hearing the report of the Judge- centres of activity of the Rapporteur and the views of the Community must be improved, Advocate General the Court decided to open that oral procedure without any that under the guidance of the preparatory inquiry. It did however put President and enlarged Bureau, to the Parliament a question concerning the appropriate bodies of Par­ the buildings at its disposal in Luxem­ liament shall determine the bourg, Strasbourg and Brussels and the measures to be taken and changes in the number of staff assigned evaluate their costs; before the thereto; the Parliament answered in end of the year, they shall writing. present to Parliament a report accompanied by appropriate proposals." 2. The Grand Duchy of Luxembourg claims that the Court should :

Declare null and void, on grounds of II — Written procedure and lack of competence and infringement of conclusions essential procedural requirements, the act of the- Assembly of the European · Communities of 7 July 1981, "Resol­ 1. By application lodged on 7 August ution on the Seat of the Institutions of 1981 the Grand Duchy of Luxembourg the European Community and in brought an action based primarily on particular of the European Parliament" ; Article 38 of the ECSC Treaty and in the alternative and in so far as necessary on Article 173 of the EEC Treaty and Make an appropriate order as to costs. Article 146 of the EAEC Treaty to challenge the resolution adopted by the The European Parliament contends that Parliament on 7 July 1981. the Court should:

1. The availability of redress against measures of the Parliament (b) The Luxembourg Government emphasizes that Article 38 of the ECSC Treaty has remained unchanged after the entry into force of the Treaties of Rome (a) In the view of the Parliament the and Article 2 of the Convention of 25 action is inadmissible because neither March 1957 on certain Institutions Article 38 of the ECSC Treaty, relied Common to the Communities. The on primarily by the Luxembourg ECSC, EEC and EAEC Treaties apply Government, nor Article 173 of the EEC concurrently. Recourse to Article 38 is Treaty and Article 146 of the EAEC therefore excluded only in respect of Treaty, pleaded in the alternative, give a measures relating specifically and right of action against the Parliament in exclusively to the EEC or EAEC. For this case. decisions the subject-matter of which is of an institutional nature the application of Article 38 must retain a general scope since decisions concerning the function­ The power to declare an act of the ing of the Assembly are indivisible and Assembly void as provided in Article 38 the fact that henceforth a single of the ECSC Treaty has not been institution is involved is not capable of adopted in the EEC and EAEC Treaties destroying an existing means of action. and Article 173 of the EEC Treaty and Article 146 of the EAEC Treaty do not provide an action against measures of the Parliament. To enlarge the EEC and As regards the admissibility of the action EAEC Treaties by analogy to give the on the basis of Article 173 of the EEC Court power to declare measures of the Treaty and Article 146 of the EAEC Parliament void would be unacceptable Treaty, the Luxembourg Government and would presuppose inter alia challenges the argument that the authors recognition of the right of the Par­ of those Treaties deliberately intended to liament itself to bring an action pursuant exempt the Parliament from any review to the same provisions. of legality for that argument neglects the organic and fundamental provisions contained identically in Article 31 of the ECSC Treaty, Article 164 of the EEC By the resolution in question, and on the Treaty and Article 136 of the EAEC basis of the power of the Parliament, Treaty which make the Court the answerable to itself alone, to organize guardian of legality in the most absolute the way in which it fulfils its tasks sense. For the Court to have jurisdiction (Article 142 of the EEC Treaty, Article over measures of the Parliament would 112 of the EAEC Treaty and Article 25 not be excessive or abnormal. Several of thè ECSC Treaty) the Parliament has national constitutional systems in the made a single and identical use of its Community allow review of the measures

That result is not affected by the role of (c) In answer the Parliament states that the Court in ensuring that the law is as regards the applicability of Article 38 observed. The Court exercises its review of the ECSC Treaty in view of the only by using the means expressly independence of the legal systems a provided by the Treaties. It has always direct action challenging the three recognized that principle for it has Communities cannot be based on a single always specified the rule in the Treaty Treaty. Enlargement or amendment of giving it jurisdiction in a given case. the system of judicial review embodied in Judicial protection of those concerned in the Treaties of Rome would not be relation to measures of the. Parliament is justified. The authors of the Treaties of not wanting but it must' be achieved by Rome knowingly omitted to provide for other kinds of procedure. In that respect the possibility of a direct action against the Parliament cites the possibility of ah the Parliament. Judicial protection is action for damages under the second both wider and more precise in the paragraph of Article 215 of the EEC Treaties of Rome than in the ECSC Treaty.

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2. The legal nature of the contested tenancy agreements for the purpose of resolution moving all the departments were rejected. The ultimate resolution falls entirely within the framework of the decision of the representatives of the (a) The Parliament observes that the Governments on the provisional places of contested resolution is not an act within work of 8 April 1965 of which it the meaning of Article 38 of the ECSC represents the application and it does not Treaty, neither is it a measure which therefore have an independent legal may be challenged under Article 173 of character. the EEC Treaty or Article 146 of the EAEC Treaty.

Even if it is accepted that measures of In the present case the nature of the internal organization may be the subject resolution as a decision has been further of an action, comparison of the confirmed by the fact that it has now amendments put forward to the draft of been followed by specific measures of the contested resolution with its ultimate implementation. The Luxembourg wording illustrates the absence of any Government refers in that respect to an legal effect. Thus amendments seeking a information mission entrusted by the clear decision of the Parliament in favour Bureau of the Parliament to Mr Vice- of a specific principal place of work or President Dankert during which the inviting the Bureau to cancel existing General Secretariat, the Secretariat of

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confirmation of the status quo decided Strasbourg "pending a final decision on upon by the European Council at Maas­ a single meeting place of the European tricht and confirmed on 30 June 1981 by Parliament". The fixing of meeting the Conference of the Governments of places is a measure of the Parliament's the Member States on the seat of the normal internal organization. The mere institutions, for Luxembourg is no longer fact that the decision on the fixing of the mentioned in Paragraph 3 (a) or (b) of part-sessions mentions only Strasbourg the resolution and the decision is made and not Luxembourg does not make a to review the operation of the Secretariat measure of internal organization binding and its technical branches to meet the and capable of having legal effects. The requirements of the establishment of the case-law of the Court confirms that the Parliament in Brussels and Strasbourg. Parliament possesses such an area of internal autonomy. In that respect the Parliament challenges the interpretation of that case-law by the Luxembourg Government.

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Member States and it is not responsible implies the power to designate the places for the fact that no conclusion has been of work. In adopting temporary reached. provisions and in determining several places of work in the absence of common agreement on the designation of a seat the Governments allowed Community work to proceed and acted, as the Heads of State and of Government last recalled on 30 June B — Substance 1981, within the framework of the powers reserved to them by the Treaties. The Governments of the Member States have always been opposed to any fragmentation of their powers. To fix the 1. Lack of competence place of work moreover would inevitably prejudge the decision on the seat. The ending of such a situation cannot be unilaterally decreed or determined by an institution without powers to do so. By its resolution of 7 July 1981 the Par­ (a) The Luxembourg Government bases liament arrogated to itself a right which its action above all on the ground of lack has always been recognized as belonging of competence. It observes that the exclusively to the Governments and it contested resolution is a decision on the had recourse to unilateral action. The seat of the institutions and in particular new rules adopted by the Parliament of the Parliament. That matter comes compromise the application of successive within the exclusive powers of the decisions of the Governments of the Governments of the Member States. Member States and in particular the maintenance and operation in Luxem­ bourg of the General Secretariat of the Assembly and its branches.

The Parliament as an institution and representative of the citizens of the (b) The Parliament observes that the title Communities must require the Member of the contested resolution is only States to observe the provisions of the indicative. The resolution should be Treaties by asking them to proceed considered from the point of view of its without further delay to fix the seat of substance. The Parliament has always the Communities. From the point of view recognized the powers of the of procedure it is for the Commission to Governments of the Member States in take the measures necessary to ensure relation to the seat as is confirmed by that the provisions of the Treaties in Rule 10 (1) of its rules of procedure relation to the seat are observed by the which reads: "Parliament shall hold its Member States. plenary sittings and meetings at the place fixed as its seat under the provisions of the Treaties." In rejecting the pre­ liminary question the Parliament gave no interpretation of the wording of the (c) The Luxembourg Government states resolution but simply reasserted its right in reply that in adopting the contested to discuss freely the organization of its resolution the Parliament has acted in work. relation to the seat. The Parliament's lack of competence to take a decision on that subject is absolute, irrespective of the existence and content of decisions of the Member States on the subject. In fixing the meeting places of the agencies of the Parliament the disputed resolution kept within the scope of the decision of the Governments of the In addition the disputed resolution Member States of 1965 providing that infringes the decisions taken by the Luxembourg, Brussels and Strasbourg governments, which made genuine and should remain the temporary places of very formal, albeit partial, use of their work of the institutions of the powers, as recently as 30 June 1981. Community. The contested resolution makes no mention of the determination of the "seat". No executive measure about the place of work or the organ­ The content of the decision of the ization of the work can prejudge the Member States was the maintenance of ultimate choice of the seat of the the status quo. The status quo involves institutions. Contrary to what the Luxem­ both a legal content based on the main­ bourg Government claims the disputed tenance of certain previous decisions and resolution involves no decision regarding a factual content manifesting itself in the location of the General Secretariat of declarations, attitudes and interpretations the Parliament. As regards Parliamentary of the parties concerned and above all meetings in Luxembourg another the specific realities of the situation.

Confirmation of the factual position by As regards the Secretariat and its the competent authority gives it in its branches a review of their operation is to turn all the force of law. The legal take place on the basis of part-sessions position regarding the status quo is based and meetings which, without exception, on the decision of 1965 in relation to the are to take place outside the place where provisional places of work of the the Secretariat operates. In spite of the institutions and the location of the careful wording and seemingly anodyne General Secretariat of the Assembly in nature of the measures listed in the Luxembourg and other formal factors, resolution measures of implementation such as the letter from the President of have already been put in hand, thus the Council to the President of the Par­ confirming the surreptitious transfers liament of 22 September 1977 and the which have previously taken place and declaration made by the President of the involving the dismantling and gradual Parliament at the session of the Assembly transfer of the Secretariat. The Luxem­ on 13 February 1978. The factual bourg Government refers in that respect position regarding the status quo to the measures taken by the Vice- concerns the establishment of the Sec­ Presidents Mr Dankert and Mr Žagari, retariat and its branches in Luxembourg to which it has already referred in its from the beginning, the holding of part- arguments on the legal nature of the sessions in Strasbourg and Luxembourg disputed resolution. and the holding of committee meetings in Brussels. Finally as regards Luxem­ bourg as a place of work, the status quo may be defined as meaning that Luxem­ bourg is the sole place of work of the (d) In the view of the Parliament the Secretariat and its branches and one of contested resolution does not determine the three meeting places of the Par­ the seat of the institutions; the part liament. referring to the seat constitutes a request of a political nature addressed to the Governments of the Member States and recommending them to take certain measures. To claim that by including in the heading of a resolution the word The contested resolution for its part "seat" and requesting the Governments states that Strasbourg and Brussels are to take a decision with regard thereto the meeting places and that the Sec­ the Parliament exceeded its powers retariat must be reorganized on the basis would be to deny to the Parliament its of those two meeting places alone. fundamental power of discussion and expression of opinion.

which is confirmed by the case-law of liament itself within the scope of the the Court, is really the subject of the latitude allowed to it and the Parliament present case. Only the activity of the is therefore free also to decide to meet Parliament in session falls directly under solely in Strasbourg. As regards the the Treaties. On the other hand the construction of buildings by the Luxem­ decisions to set up committees and to bourg authorities the Parliament has provide itself with a Secretariat fall always expressed reservations with exclusively within its right to organize regard to future decisions and the itself. determination of a seat. The Luxem­ bourg Government has therefore not shown that there is any obligation on the Parliament to hold its plenary sitting» in Only exercise of the prerogatives Luxembourg. conferred on the Governments by Article 77 of the ECSC Treaty binds the Par­ liament. All the declarations of the Governments of the Member States in As regards the committee meetings in the matter have been expressed as being Brussels there is nothing in writing from provisional and without prejudice to the the Governments alluding thereto. The application of Article 77 of the ECSC President of the Council took formal Treaty, Article 216 of the EEC Treaty note in his letter of 22 September 1977 and Article 189 of the EAEC Treaty. It of the decision of the Parliament. That follows that the powers exercised were decision taken by the Parliament of its not those conferred by the said articles. own motion has never been challenged The decision of 8 April 1965 moreover by any Government. In that respect the has regard expressly to Article 37 of the disputed resolution merely confirms a Merger Treaty and that Treaty does not practice established since 1958. affect the Parliament.

and thus make it impossible to comply requisite rules inasmuch as it deliberated with the obligations imposed by Article 5 upon hearing only the report of its of the EEC Treaty. The Parliament, with Political Affairs Committee without a view to stressing that the Governments consulting its Legal Affairs Committee. must remain free to adopt a decision in (b) The Parliament emphasizes that no relation to the seat and even change, if specific formality and no qualified necessary, the present places of work, majority was required for the adoption has never committed itself without reser­ of the contested resolution. Breach of a vations with regard to the infrastructure formal rule cannot be based on the made available to it. Moreover the Par­ ground that the body which acted had liament intends to retain its full freedom no powers. By virtue of Rule 101 of the of action with regard to its autonomy Rules of Procedure no opinion of any affecting its organization and working. other committee was necessary in this case. Therefore the requisite formalities 2. Infringement of essential procedural were observed. requirements

(a) The Luxembourg Government further claims that there has been IV — Oral procedure infringement of essential procedural requirements since Article 77 of the The Grand Duchy of Luxembourg, ECSC Treaty requires that the represented by Jean Boulouis, André Governments of the Member States Elvinger and Francis Jacobs, and the should reach a decision on the matter of European Parliament, represented by the seat by common accord. In a case Francesco Pasetti-Bombardella, Alessan­ such as the· present there is & genuine dro Migliazza and Roland Bieber relationship between the infringement of presented oral argument at the sitting on essential procedural requirements and 20 October 1982. lack of powers. It may be asked further The Advocate General delivered his whether in adopting the disputed Opinion at the sitting on 7 December resolution the Parliament followed the 1982.

3 Following the decision taken by the Ministers for Foreign Affairs of the Member States on 25 July 1952 when the ECSC Treaty entered into force the High Authority and the Court of Justice began their work in Luxem­ bourg and the Assembly began to hold its plenary sessions in Strasbourg. Its Secretariat was however established in Luxembourg where the Council of the European Coal and Steel Community also met and had its offices, as did the High Authority. When the Ministers for Foreign Affairs met on 7 January 1958 on the entry into force of the EEC and EAEC Treaties they agreed to assemble in one and the same place all the European organizations of the six countries as soon as such concentration became practicable and in accordance with the provisions of the Treaties and then decided inter alia that the Assembly should meet in Strasbourg. When the Councils and Commissions provided for by the Treaties were established in Brussels, the committees and political groups of the European Parliament began the practice of holding a large number of their meetings there.

4 The Treaty establishing a Single Council and a Single Commission of the European Communities of 8 April 1965, which entered into force on 1 July 1967, resulted in a reorganization of the offices of those institutions and thus a transfer of staff from the High Authority of the ECSC to Brussels. Article 37 thereof provided that without prejudice to the application of Article 77 of the ECSC Treaty, Article 216 of the EEC Treaty and Article 189 of the EAEC Treaty, the representatives of the Governments of the Member States should "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."

Article 12 stipulates: "Subject to the preceding provisions, this decision shall not affect the pro­ visional places of work of the institutions and departments of the European Communities, as determined by the previous decisions of the Governments."

6 From July 1967 the Parliament established the practice of holding some of the part-sessions of the Parliament in Luxembourg and the number of days of the sittings of the Parliament in Luxembourg amounted even to some half of the total number of days of sittings for 1975 to 1978. At the request of the Parliament premises and facilities necessary for holding plenary sittings and meetings of committees and political groups were provided in the buildings constructed for the Parliament by the Luxembourg authorities. In 1971, 1973 and 1978 the French Government protested to the Parliament about the practice of holding part-sessions in Luxembourg.

7 Following the signing of the Act Concerning the Election of the Rep­ resentatives of the Assembly by Direct Universal Suffrage the President of the Parliament informed the President of the Council by letter dated 6 July 1977 of the operational problems with which the existence of three places of work confronted the Parliament in the light of its election by universal suffrage and the increase in the number of its members. In his answer of 22 September 1977 the President of the Council informed the Parliament that

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the Governments of the Member States considered that there was no cause for altering either in law or in practice the provisions then in force regarding the provisional places of work of the Assembly, namely Strasbourg and Luxembourg, where its Secretariat General and offices were established, the parliamentary committees being accustomed to meet in Brussels with the minimum of infrastructure necessary to ensure the working of such meetings.

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Member States met at the end of 1980 and the beginning of 1981 for a conference on the seat of the institutions of the Community. That conference found that there were still divergences of view and that of the various imperfect solutions the most satisfactory was the status quo, that is to say the designation of a number of provisional places of work. On 23 and 24 March 1981 the Heads of State and of Government of the Member States met as the European Council in Maastricht and unanimously decided to confirm the status quo in regard to the provisional places of work of the European institutions. The conference on the seat of the institutions took note of that decision and ended-on 30 June 1981 by reaffirming the >position of the Governments of the Member States to the effect that the determination of •the seat of the institutions was their exclusive responsibility. It moreover observed that the decision taken in Maastricht was an exercise of that responsibility and did not prejudge determination of the seat of the institutions.

i2 On 7 July 1981 the Parliament adopted the contested resolution. In that resolution it states in particular that it does not call in question the rights or duties of the Governments of the Member States in this regard, that the difficulties resulting from the dispersal of its places of work in three different towns make it essential to concentrate its work in one place and that disregard by the Governments of the Member States of the time-limit of 15 June 1981 requires it to improve its own working conditions. After asserting its right "to meet and work where it chooses" the Parliament calls, in the resolution, on the Governments of the Member States to comply with their obligation under the Treaties in fixing a single seat for the institutions, expresses the belief that it is essential to concentrate its work in one place and

that, with that end in view, the fullest possible use should be made of the latest means of telecommunication both for personal contacts and for document transmission,

that the most advanced techniques must also be used to facilitate cooperation between the institutions, while road, rail and air links between the main centres of activity of the Community must be improved,

that under the guidance of the President and enlarged Bureau, the appropriate bodies of Parliament shall determine the measures to be taken and evaluate their costs; before the end of the year, they shall present to Parliament a report accompanied by appropriate proposals".

Admissibility

13 The Parliament has put forward several objections of inadmissibility against the action brought by the Grand Duchy of Luxembourg for a declaration that the resolution is void and those objections must be considered first.

1. Right of action in respect of measures of the Parliament

i7 The first paragraph of Article 173 of the EEC Treaty and the first paragraph of Article 146 of the EAEC Treaty provide that the Court "shall review the legality of acts of the Council and the Commission" and for that purpose it has jurisdiction in actions "brought by a Member State, the Council or the Commission". There is no express provision in those articles for active or passive participation of the Parliament in the proceedings before the Court.

is Pursuant to the Convention on Certain Institutions common to the European Communities of 25 March 1957 the powers and jurisdiction which the three Treaties confer upon the Parliament and the Court are to be exercised "in accordance with those Treaties". The differences existing in that respect in the various Treaties have thus not been erased by the creation of those common institutions.

i9 Since the single Parliament is an institution common to the three Communities it necessarily acts in the field of the three Treaties including that of the ECSC Treaty when it adopts a resolution relating to its operation as an institution and the organization of its Secretariat. It follows that the jurisdiction of the Court and the proceedings provided by the first paragraph

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of Article 38 of the Treaty are applicable to measures such as the contested resolution which relate simultaneously and indivisibly to the spheres of the three Treaties.

20 Since the first paragraph of Article 38 of the ECSC Treaty applies in the present case, there is no need to consider the question whether the principles appertaining to observance of the law and review in that respect by the Court as embodied in Article 164 of the EEC Treaty and Article 136 of the EAEC Treaty require that Article 173 of the EEC Treaty and Article 146 of the EAEC Treaty be interpreted as meaning that the Parliament may be a party to proceedings before the Court.

Council void "on application by a Member State or the High Authority". In contrast to the provisions giving undertakings and associations legal remedies such as the second paragraph of Article 33 of the ECSC Treaty, the exercise of the right of action by a Member State or the High Authority is not subject to any additional condition involving proof of an interest or capacity to bring proceedings,

25 It follows that the right of action given by the first paragraph of Article 38 is available to each of the Member States individually and the admissibility of an action brought pursuant to that article cannot depend on the participation of other Member States or the Commission in the proceedings before the Court.

26 Any failure of the Member States as a whole to use their powers cannot therefore exclude the admissibility of an action claiming that the Parliament has usurped those powers. Moreover where questions concerning the institutional structure of the Community are involved the admissibility of an action by a Member State cannot depend on any prior omissions or errors on the part of the Governments of the Member States.

n That objection must therefore also be dismissed.

3. The legal nature of the contested resolution

28 According to the Parliament the contested resolution is not an act within the meaning of Article 38 of the ECSC Treaty because it concerns only its internal organization and that of its departments and therefore has no legal effect. It is alleged to be a measure arising from the Parliament's power to determine its own internal organization, which moreover keeps completely within the limits outlined by the decisions of the Governments of the Member States.

32 The Luxembourg Government observes in the first place that the Parliament has no power to take decisions in relation to the seat of the institution since that matter is reserved to the Member States. By reason both of its title and of its content the contested resolution relates to the seat of the Parliament, a matter which lies completely outside the powers of the Parliament independently of the existence and content of decisions of the Member States in the matter. Moreover the contested resolution infringes the decisions adopted by the Governments, in exercise of the powers reserved to them, in relation to the provisional places of work of the institutions. In abandoning the established practice of holding part-sessions in Luxembourg the Parliament infringed the decision confirming the status quo taken by the Heads of State and of Government of the Member States at Maastricht on 23 and 24 March 1981 and at the conference on the seat of the institutions of the Community on 30 June 1981. In providing for a change in the operation of the Secretariat and the departments of the Parliament on the basis of part-sessions in Strasbourg and meetings of the committees and political groups in Brussels the Parliament infringed Article 4 of the decision of 8 April 1965.

33 The Parliament contends that the Governments of the Member States have made no use of their power to fix the seat and there can therefore be no usurpation of that power. In any event the contested resolution constitutes on the one hand a request of a political nature addressed to the Governments of the Member States recommending them to adopt certain measures in relation to the seat and on the other hand a measure of organization of its

36 It is common ground that the Governments of the Member States have not yet discharged their obligation to determine the seat of the institutions in accordance with the provisions of the Treaties. Nevertheless, as is apparent from the above-mentioned facts, the Governments of the Member States have at different times taken decisions fixing the provisional places of work of the institutions on the basis of that same power and, as regards the decision of 8 April 1965, on the basis of the power expressly provided for in

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the aforesaid Article 37 of the Treaty establishing a Single Council and a Single Commission of the European Communities.

37 It must nevertheless be emphasized that when the Governments of the Member States make provisional decisions they must in accordance with the rule imposing on Member States and the Community institutions mutual duties of sincere cooperation, as embodied in particular in Article 5 of the EEC Treaty, have regard to the power of the Parliament to determine its internal organization. They must ensure that such decisions do not impede the due functioning of the Parliament.

38 Furthermore the Parliament is authorized, pursuant to the power to determine its own internal organization given to it by Article 25 of the ECSC Treaty, Article 142 of the EEC Treaty and Article 112 of the EAEC Treaty, to adopt appropriate measures to ensure the due functioning and conduct of its proceedings. However, in accordance with the above-mentioned mutual duties of sincere cooperation, the decisions of the Parliament in turn must have regard to the power of the Governments of the Member States to determine the seat of the institutions and to the provisional decisions taken in the meantime.

43 It is true that as from 1967 the Parliament adopted the practice of holding up to half its plenary sittings in Luxembourg. It is on that practice and the decision taken in 1981 to maintain the status quo that the Luxembourg Government relies in claiming that the decision to hold all the plenary sittings in Strasbourg is contrary to the decisions of the Governments of the Member States in the matter.

44 It is appropriate nevertheless to observe that the practice had been decided upon by the Parliament of its own motion and had never been approved either expressly or by implication by the Member States. On the contrary the French Government several times denied that the practice was compatible with the decisions of the Member States and requested that it be changed. The Luxembourg Government is therefore wrong in alleging that the practice had created a custom in its favour supplementing the decisions of the Member States in the matter and requiring the Parliament to hold part of its plenary sittings in Luxembourg.

45 That assessment is not affected by the conclusions of the conference on the seat of the institutions which took place in 1981. In view of the differences existing with regard to its conclusions and the absence of any alteration in

LUXEMBOURG v PARLIAMENT

the decisions taken previously, the declaration to maintain the status quo with which the conference ended can be understood only as an expression of the intention not to change the previous legal position. That declaration does not therefore prevent the Parliament from abandoning a practice which it had begun of its own motion.

so In the third place the contested resolution refers in Paragraph 3 (c) to the operation of the Secretariat and technical services of the Parliament which it states must be reviewed to meet the requirements of holding the part-sessions in Strasbourg and the meetings of the committees and political groups in Brussels, particularly with a view to avoiding the need for a substantial number of staff of the Parliament to travel constantly.

JUDGMENT OF 10. 2. 1983 — CASE 230/81

si In that respect it is appropriate to emphasize first of all that the Governments of the Member States resolved in Article 4 of the decision of 8 April 1965 that "the General Secretariat of the Assembly and its departments shall remain in Luxembourg".

52 In view of the fact that meetings of the committees and political groups were held in Brussels the Parliament established the practice of assigning a number of its officials and other employees there. The President of the Council expressed the point of view of the Governments of the Member States in a letter of 22 September 1977 when he took formal note that the Parliament maintained in Brussels the minimum level of staffing required for the holding of such meetings.

53 In the light of the duty incumbent upon the Member States on the one hand and the Parliament on the other, in exercising these powers, to have regard to the powers of the other the aforesaid Article 4 must be interpreted as meaning that is does not stand in the way of certain measures of the Par­ liament which are necessary for the purposes of its proper functioning.

57 Although some of the recitals to the disputed resolution and the circum­ stances of its adoption and certain opinions expressed during the par­ liamentary debates may tend to indicate that the resolution in fact intends at least a partial transfer of the staff of the General Secretariat to the other places of work, it is necessaiy to bear in mind also the content of the last three explanatory subparagraphs of Paragraph 3 (c), which relate in particular to the use of the means of telecommunication, the most advanced techniques to facilitate cooperation between the institutions and the improvement of road, rail and air links between the main centres of activity of the Community. In the light of those three subparagraphs and the declarations of the representatives of the Parliament during the proceedings before the Court the statement that the operation of the Secretariat and the other departments "must be reviewed" must not be understood as meaning that it embodies a decision on specific measures or in particular upon a transfer of staff. The decision relating to specific measures was left for sub­ sequent consideration and its adoption will be possible only after the powers specified above have been taken into account.

ss On the basis of that interpretation it must be declared that Paragraph 3 (c) of the contested resolution does not infringe the decisions of the Governments of the Member States in the matter or in particular Article 4 of the aforesaid decision of 8 April 1965. It is thus not beyond the powers of the Parliament.

63 It follows from the foregoing that the application must be dismissed.

Costs

64 According to Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading. Nevertheless according to Article 69 (3) where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the parties bear their own costs in whole or in part.

65 In this case such an exceptional circumstance is present by virtue of the fact that certain matters in the contested resolution and certain circumstances surrounding its adoption might give rise to reasonable doubts. It is therefore appropriate to make use of the powers provided by Article 69 (3) of the Rules of Procedure and to order the parties to bear their own costs.

LUXEMBOURG v PARLIAMENT

On those grounds,

Mackenzie Stuart Bosco Due Bahlmann Galmot

P. Heim J. Mertens de Wilmars Registrar President

OPINION OF MR ADVOCATE GENERAL MANCINI DELIVERED ON 7 DECEMBER 1982 »

Mr President, importance: the first concerns the review Members of the Court, which the Court of Justice may effect — in direct actions — of measures of the 1. The case to be decided by the Court Parliament; it is then necessary to is concerned principally with two establish what powers, if any, the Par­ problems, both of great constitutional liament has in deciding where its offices

I — Translated from the Italian.