C-358/85

OPINION OF MR MANCINI — JOINED CASES 358/85 AND 51/86

O P I N I O N O F M R ADVOCATE GENERAL MANCINI delivered on 21 June 1988 *

Mr President, The cause of the contested measure, now as Members of the Court, at that time, lies in the governments' persistent failure to carry out their obli- gation to determine the seat of the Parliament and in the increasingly serious repercussions of that failure in terms of 1. This Opinion is concerned with Cases costs and organizational difficulties. Like 358/85 and 51/86 brought by the French the measures challenged by Luxembourg, Republic against the European Parliament, the Resolution of 24 October 1985 is symp- which the Court joined by order of 8 July tomatic of the great hardship to which the 1987 for the purposes of the oral procedure Member States' inertia puts the Parliament, and judgment. In the applications in and seeks to provide it with better working question (of 19 November 1985 and 20 conditions. However, in this instance the February 1986) the French Republic asks Parliament is seeking to attain that outcome the Court to declare void the Resolution 'on by creating the physical preconditions which meeting facilities in Brussels' adopted by will enable it also to hold part-sessions in the Parliament on 24 October 1985 (Official Brussels, an approach destined to bring it up Journal C 343, 31.12.1985, p. 84). against a major obstacle : all those — and first and foremost the French Government — who consider that such sessions may be held only in Strasbourg.

calling for a vote by roll-call. On 23 (4) to promote the development of October the motion was carried (by 108 Community-wide organizations by making votes in favour, 33 against and 7 the building available to them, charging a abstentions) and on the following day the suitable rental, and to make it available to resolution was adopted after a brief debate other organizations on a commercial basis, by 132 votes in favour, 113 against and 13 so as to reduce the overall cost and abstentions. maximize its utilization; and (5) to name the building after a Member of the first directly elected European Parliament or other leading European personality, the Bureau being instructed to decide upon the name. The resolution is made up of a preamble consisting of nine recitals and a conclusion divided into five items. In the preamble the Parliament observes, inter alia, that: (a) the largest meeting room in Brussels contains 187 seats and no significantly larger At its meeting on 12 November 1985 the conference room with full simultaneous enlarged Bureau took note of the resolution interpretation facilities for all nine and, at the same time, of four documents: Community languages exists in Brussels; (b) two protest notes sent by Mr Poos, the Minister for Foreign Affairs of following the increase in the number of Luxembourg, dated 25 October and 5 Members as a result of the accession of November 1985, a similar note, dated 30 Spain and Portugal, there is a danger that October 1985, from Mrs Lalumière, State the Parliament's political groups will no Secretary of the French Republic responsible longer be able to meet under normal for European Affairs, and the answer given conditions; (c) it is already impossible for on the same day by Mr Dumas, French two or more of the larger political groups to Minister for Foreign Affairs, to a question meet together; (d) there are no permanent asked in the Assemblée nationale. The facilities in Brussels for a special or Bureau decided not to express any opinion additional part-session to be held there thereon for the time being and asked the during a week largely devoted to committee Committee on Legal Affairs and Citizens' or group meetings; and (e) it is desirable to Rights and the Political Affairs Committee improve facilities for meetings of private for their views. Community-wide organizations.

explicit, stating that the resolution contained as Members of Parliament and in order to nothing which 'impinges formally on the put forward issues not touched on by the prerogative. . . of the Member States to Parliament in Cases 230/81 and 108/83 determine the seat of the Parliament. The which, unless they intervened, were likely possibility of providing a new room for once again not to be raised. holding a "special or additional part- session" is a matter to be decided by Parliament alone as part of the organization The French Republic opposed the inter- of its work and is not in breach of the vention of the five Members of Parliament. principle in force to the effect that ordinary It contended: (a) that their interest as part-sessions are held in Strasbourg' (28 co-authors of the resolution was merely

The key November 1985. By order of 15 October passage of the order (paragraph 9) is worth 1986 the Court decided to reserve its quoting in full: 'Since the action is directed decision on the objection of admissibility for against a measure adopted by an institution, the final judgment. I shall consider that the system of remedies established by the objection and the other objections put Treaties requires that the institution forward by the Parliament in the written concerned defend the validity of its measure procedure and at the hearing in section 4. before the Court and it is also for that institution to decide itself how to defend its interests in that regard. It would be incom- patible with that system to accept the existence of a right to intervene by persons acting solely in their capacity as members of

and integrity. In any event, they considered arguments in support of one party that they also had an interest in intervening constitutes the raison d'être of intervention

(see the judgment of 23 February 1961 in precautionary step, in case the first, which Case 30/59 De Gezamenlijke Steenkolen- was lodged before the contested resolution mijnen [1961] ECR 1, and the judgment of had been published, was held to be 22 March 1961 in Joined Cases 42 and premature and inadmissible on that ground. 49/59 Snupat vHigh Authority [1961] ECR In any event, the judgment in the

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 A r t i c l e173 of the EEC Treaty or Article 146 of the EAEC Treaty — was withdrawn What is to be made of those arguments? I during the oral procedure. would observe first of all that the contested act is a resolution of the European Parliament and hence can be challenged under Article 38 of the ECSC Treaty and — in view of the Court's interpretation My starting point will be the alleged of those provisions in the judgment of 23 concurrency of the proceedings in Cases April 1986 in Case 294/83 (Parti écologiste

The application in Case 51/86 EAEC Treaty provide that proceedings are has similar characteristics: the ground on to be instituted within two months of the publication or notification of the measure. which it is based — infringement of the Lastly, under Article 81 (1) of the Court's principle of proportionality — is also put Rules of Procedure, 'the period of time forward in Case 358/85, albeit in the reply. allowed for commencing proceedings against a measure adopted by an institution shall run from the day following the receipt by the person concerned of notification of the measure or, where the measure is The French Republic argues in response that published, from the 15th day after publi- it brought the second action solely as a

cation thereof in the Official Journal of the interested third parties may institute European Communities'. proceedings as soon as their notification comes to their attention; it is not necessary to await publication. Moreover, this is what the judgment in the Hoogovens Groep case says, if it is true, as I believe, that the It should also be borne in mind that, statement that a measure can be challenged according to the relevant provisions of the even before it is notified (paragraph 9) was Treaties (Article 25 of the ECSC Treaty, a lapse. It is indeed obvious that in the stage Article 142 of the EEC Treaty and Article before that formality is carried out (second 112 of the EAEC Treaty), 'the proceedings paragraph of Article 191 of the EEC of the European Parliament shall be Treaty) the measure is without effect and published in the manner laid down in its hence an action will not lie against it rules of procedure'. According to the latter because there is no interest in annulling it. 'the minutes of proceedings . . . shall be published within one month in the Official Journal of the European Communities' (Rule 89 (4) of the version in force at the material time; now it appears, unamended, as Rule If those findings are correct, the application 107 (4)). lodged by the French Government on 20 November 1985 against the resolution of 24 October 1985 should be held to be in time, despite the fact that the resolution was not published in the Official Journal until 31 Having said that, I would observe that the December 1985. measure at issue in Case 230/81 was chal- lenged within the time-limit laid down in Article 173 of the EEC Treaty and the measure at issue in Case 108/83 within that laid down in Article 38 of the ECSC Treaty, What, then, of the application lodged on 20 but both before they were published in the February 1986? In my view, it should be Official Journal, and yet the Parliament did declared inadmissible, not on the ground of not claim they were inadmissible nor did the lis pendens in view of the proceedings in Court hold them to be inadmissible of its Case 358/85, but because it was out of time. own motion.

November 1985. And it is obvious why. The resolution is appended to the application in Case 358/85, which reproduces the minutes of the sitting at which the Parliament In other words, although resolutions of the adopted it (PV 38 II Doc. PE 101.404, p. Parliament are usually general in nature, as 1). Consequently, as far as the French far as challenging them is concerned, they Republic is concerned, the two-month may be equated to individual decisions, that period began to run as from the date of that is to say to measures against which application; and there is no doubt that,

Consideration of that issue would take a long time and would necessitate in particular a detailed appraisal of the 6. When I considered the objection relating institutions' practice with regard to real to lis pendens I pointed out that France's property. However, in my judgment, such action was based on three grounds: an inquiry is not necessary for present infringement of essential procedural purposes because the nature of the title on requirements, lack of competence and the basis of which the Parliament is breach of the principle of proportionality. In intending to utilize the building remains asserting that essential procedural substantially open. A passage in the requirements have been infringed the French rejoinder in Case 358/85 makes this Government maintains, referring inter alia perfectly plain: 'The resolution does not to a number of criticisms voiced in the necessitate the outright purchase of the Parliamentary debate, that the subject- building . . . rental is also conceivable and matter of Mr von der Vring's motion lacked

OPINION OF MR MANCINI — JOINED CASES 358/85 AND 51/86

topicality and urgency. Consequently it was more adequate facilities; if so, the not eligible to be adopted by the procedure construction of such a spacious building set out in Rule 48 (1) of the Parliament's would infringe the principle of propor- Rules of Procedure. tionality.

Neither was any whether or not a given subject is topical or derogation contemplated in the judgment in not and whether it should or should not be Case 230/81. Admittedly, the Court did not debated as a matter of urgency constitute a criticize the practice introduced by the decision based on assessments which are not Parliament itself and never accepted by the subject to judicial review; and, as far as the governments of holding some sessions in views of the Members of Parliament who Luxembourg; but that was only because the voted against the resolution are concerned, I parties did not ask it if that practice was consider, as I stated in my Opinion in Case compatible with the rules on the 230/81, that when a measure originates in Parliament's places of work.

The French Government two biggest parliamentary groups (the argues that the contested resolution would Socialist Group and the Group of the be unlawful in any event even if it merely European People's Party, with a sought to improve the situation in which the membership of 165 and 115 respectively) Parliament works in Brussels by providing and the parliamentary committees (the the committees and political groups with smallest of which has a membership of 19

The French Government concludes by citing paragraph 38 of that judgment and stating that in the final analysis the resolution of 24 October 1985 infringed the requirement of But this is not all. The decision that the 'bona fide cooperation' under which the Parliament was to meet in Strasbourg was Parliament must 'have regard to the power based, not on political reasons or reasons of of the governments of the Member States to principle, but on solely practical grounds: determine the seat of the institutions and to when the Ministers took that decision the the provisional decisions taken in the mean Common Assembly of the ECSC had, time'. except on two occasions, invariably met in Strasbourg where it was able to use the hémicycle belonging to the Council of Europe. Moreover, the existence of such a 8. The Parliament's counter arguments hémicycle — no such facility being available became steadily more radical as time went at that time in Luxembourg or in on. In its pleadings, it conceded that it was Brussels — was the reason for the decision under a duty to hold its part-sessions in of 24 and 25 July 1952 that the Assembly Strasbourg, although it considered that it would hold its first session in Strasbourg. 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 There followed the decision of 8 April 1965 and, in particular, in Strasbourg. Obviously, of the Representatives of the governments the first argument must be held to be the of the Member States on the provisional alternative one and the second the principal location of certain institutions and one. departments of the Communities, and the agreement reached at Maastricht on 23 and 24 March 1981. Not only did the former not alter the non-legal character of the press So, let us start with the second. Among the release of 7 January 1958, it did not contain documents referred to the Parliament first any specific references to Strasbourg but

The Parliament bases a final argument in Now, the proprietor of the Strasbourg support of its principal argument on Rule 10 hemicycle is the Council of Europe and it is of its Rules of Procedure, to which I have therefore obvious that the calendar of already referred. It maintains that that rule sessions makes allowance for the latter's already appeared in the 1958 version of the needs and in particular for those of its Rules of Procedure and was applied on Consultative Assembly. This is the source of several occasions: the Parliament met away a number of organizational problems which from Strasbourg in 1956 (in Brussels), in have got worse since the entry into force of 1957 (in Rome), in the 1967 to 1981 period the Single Act, owing to the fact that the (in Luxembourg), in 1983 (again in procedures which it introduced may Brussels) and in 1985 (again in necessitate holding special or additional Luxembourg). Yet no objections were made sessions and therefore call for greater flexi- to that practice, except by the French bility in drawing up the calendar. The Government (4 February 1971, 26 January contested resolution seeks to satisfy those 1973, 21 September 1978 and 10 February very requirements, and it certainly cannot 1983); and it is obvious that the protests of be said that it does so in an excessive one Member State are not sufficient to manner, for it does not provide for ordinary prove that there is a practice supporting the sessions to be held in Brussels or even all claim of Strasbourg. special or additional sessions, but only special or additional sessions to be held during a week largely devoted to committee or group meetings.

In the first place, there is the question of the places of work of the institutions of the nature and value of the agreements between Community". At the time the holding of the the governments. I devoted a considerable plenary sittings of the Parliament was the part of my Opinion in Case 230/81 (parts only activity of the Community institutions 13 to 17) to this matter and the parties to which regularly took place in Strasbourg. this case have now taken up some of the The declarations adopted by the Ministers views which I expressed then, even if they for Foreign Affairs on the entry into force use them to reach the opposite results. I both of the ECSC Treaty and the EEC and maintained — and the Parliament now EAEC Treaties had already clearly shown repeats this view — that the declarations of the intention of the . . . Member States that 24 and 25 July 1952 and of 7 January 1958 the "Assembly will meet in Strasbourg'" (my are not of a binding nature because they emphasis). were made in documents whose form (press release) is not appropriate to manifest an intention to impose legal obligations. I further observed — an observation now taken up by the French Government — that Articles 1 and 2 of the decision of 8 April In my view that passage is conclusive. 1965 must be read with reference to the Arguments such as those to the effect that previous agreements, in which Strasbourg the Member States took that decision, not alone was designated as the Parliament's for political, but for logistical reasons (the place of work, and that as a result those fact that Strasbourg alone had a hemicycle) agreements acquired the legal significance are powerless against the outcome of that which they initially lacked. Lastly, I stated passage, namely that Strasbourg is the place that the Maastricht agreement confirmed chosen provisionally by the governments for the 1965 decision. The practice of holding the Parliament's plenary sessions. The certain sessions in Luxembourg was, I Parliament's main line of defence to the considered, subject to too many restrictions argument based on lack of competence must for it to affect a legal position founded on therefore be considered to have been over- formal decisions. turned.

But the contested resolution would also be unlawful if it were to be held that it was designed to improve the situation in which In the light of those criteria the contested the parliamentary groups and committees measure falls outside the competence of the operate. The figures and particulars Parliament and encroaches upon that of the provided by the French Republic are suffi- Member States. The Member States have ciently convincing in that regard. In any determined that part-sessions — be they event, the Parliament has not demonstrated ordinary, special, additional or, to use the before the Court that the construction of a term employed by the Treaties, extraor- meeting room capable of accommodating dinary — must take place in Strasbourg. It 600 persons constitutes what the Court has cannot be held that the construction of a termed the 'infrastructure essential' for room in Brussels with seating for 600 is ensuring that those bodies may fulfil the consistent with that rule, since its only aim tasks entrusted to them by the Treaties is to prevent the operation of the Parliament (judgment of 10 February 1983, paragraph from being upset by the non-availability of 54, and judgment of 10 April 1984, the hemicycle in Strasbourg for reasons paragraph 29). connected with the needs of the Council of Europe or for reasons of force majeure. Most of the work of the Parliament, as we know, In the final analysis it appears from takes place in Brussels. It is therefore much consideration of the contested resolution more likely that the impetus of that state of that the Parliament has not observed the affairs will end up by transforming the use limitations laid down by the provisional of the room from an occasional event — as decisions of the governments, as interpreted perhaps it would be in the beginning — into by the Court, on its power to hold part- a practice which would go from strength to sessions in places other than Strasbourg. strength. The resolution must therefore be declared void on the ground of lack of competence.

'The resolution of the European Parliament adopted on 24 October 1985 on meeting facilities in Brussels is declared void. The application in Case 51/86 is inadmissible;

The European Parliament is ordered to pay the costs in Case 358/85;

The French Republic is ordered to pay the costs in Case 51/86.'