C-302/87

Mr President, differently construed by the parties before Members of the Court, the Court and by legal writers, particularly in regard to its potential evolution. After taking different positions, altered according to the circumstances of the previous cases, 1. On 5 November 1987, on the basis of the Council and the Parliament no longer Article 91 of the Rules of Procedure, the challenge that case-law. In this action, the Council raised an objection of inadmissi- Council is merely disputing the inferences bility to the action for annulment brought which the Parliament draws from the on 2 October 1987 by the European Court's case-law. The Parliament, for its Parliament against the Council's decision of part, in a Resolution of 9 October 1986, 2 13 July 1987 laying down the procedures welcomed the outcome of the Court's for the exercise of implementing powers decisions and considered that this implied conferred on the Commission, 1 a decision recognition of its capacity to bring actions generally known as the 'comitology' under Article 173 of the Treaty and, decision. At the same time, it asked the therefore, that the present action is Court to rule on its objection as a matter of admissible. urgency. The procedure moved at a rapid pace. On 9 December 1987, the Parliament submitted its observations on the objection 3. Leaving aside staff cases and cases of inadmissibility. On 20 January 1988, the decided under the ECSC Treaty, what is the Court decided to hear the parties on the present position as regards the Parliament's question of the admissibility of the involvement in judicial proceedings? application at a hearing fixed for two months later, on 24 March 1988. The time has now come to deliver my Opinion. (i) Measures adopted by the European Parliament may be the subject of a reference for a preliminary ruling. 3 2. Essentially, the Council denies the European Parliament's capacity to bring an action for annulment. It is that fundamental (ii) In the 'Isoglucose' judgments of 29 question, the constitutional significance of October 1980 4the Court held that the which escapes no one, which must be European Parliament has a general decided for the first time by the Court. In right to intervene under the first addressing myself to that question, I take as paragraph of Article 37 of the Statute my starting point the acquis jurisprudentiel on the various aspects of the European 2 — O J C 283, 10.11.1986, p. 85. Parliament's involvement in judicial 3 — Judgment of 12 May 1964 in Case 101/63 Wagner v Fohrman and Krier [1964] ECR 195; judgment of 15 proceedings, but I am aware that the September 1981 in Case 208/80 Lord Bruce of Donington v case-law on that subject remains Aspden [1981] ECR 2205; judgment of 10 July 1986 in Case 149/85 Wybot v Faure [1986] ECR 2391; Case controversial and that it is slightly 131/87 Commission v Council, pending before the Court, see order of 30 September 1987. 4 — Case 138/79 Roquette Frires SA v Council [1980] ECR * Translated from the French. 3333 and Case 139/79 Maizena GmbH v Council[1980] 1 — 87/373/EEC, OJ L 197, 18.7.1987, p. 33. ECR 3393.

5. The first matter concerns Article 177 of (iv) The Parliament may be required by the the Treaty which provides that: 'The Court Court, under the second paragraph of of Justice shall have jurisdiction to give Article 21 of the Statute of the Court preliminary rulings concerning: . . . (b) the of Justice of the EEC, to supply it with validity and interpretation of acts of the information both in direct actions 8and institutions of the Community'. Although in proceedings for preliminary rulings. 9 some doubts have been expressed regarding the admissibility of a reference for an assessment of the validity of a measure (v) Finally, in its judgment of 23 April because of its kinship with and affinity to 1986 in Parti écologiste 'Les · Verts' v judicial review within the framework of an European Parliament, 10 the Court held action for annulment, 12 those doubts have that the Parliament could be made a been dispelled since the judgment in 'Les defendant in an action for annulment Verts'. 13 based on Article 173 of the Treaty. 11

PARLIAMENT v C O U N C I L

OPINION OF MR DARMON — CASE 302/87

time was ripe, become a tetralogy through Article 175 of the Treaty, the institution recognition of the Parliament's légitimation concerned has two months in which to active in actions for annulment. 'define its position' in regard to the request made to it. If it does not do this within two 9. In replying to that question, I attach little months, the applicant may within a further importance to the recognition in the period of two months bring an action before 'Isoglucose' judgments of the European the Court to have the failure to act estab- Parliament's right to intervene.

10. On the other hand, some 'technical' in its decisions between the legal nature of features of the manner of prosecuting the the measure sought and the legal nature of action for failure to act, which, according to the act by which the institution defined its the Court's decision in the 'Common position with regard to that measure: if the transport policy' case, may be brought by measure sought may be the subject of an the Parliament, and some of the reasons on action for annulment, so may the definition which the judgment in 'Les Verts' is based of the institution's position.

p. 10. Vandersanden: Le droit de ta Communauté économique 18 — See, for example, J.-C. Masclet: 'Le Parlement européen européenne, Vol. 10: La Cour de justice, les actes des devant ses juges', Revue du marché commun, 1983, p. 518, institutions, Book 1, éditions de l'université de Bruxelles, particularly at p. 521. 1983, p. 171.

15. I myself consider that the question of the Parliament's légitimation active, which is 13. The close affinity between the actions undoubtedly related to that of its legit- for failure to act and for annulment is imation passive, does not, however, arise in undoubtedly of such a nature as to justify exactly the same terms. In considering that the recognition of the European question, it is necessary to refer back to the Parliament's right to bring an action for reasoning in the Court's judgment in 'Les annulment against acts adopting negative Verts' in order to see to what extent that positions in regard to requests it makes to reasoning may be transposed to the question the Council or the Commission provided of the Parliament's légitimation active. that the measure sought could itself have been challenged before the Court. However, a general right of the Parliament to bring 16. Let me first recall, as did Mr Advocate General Mancini, that in the judgment of 20 — See G. Isaac, op. cit.: Annuaire français de droit interna- 10 February 1983 in Grand Duchy of tional, 1986, p. 794 particularly at p. 809. Sec also similar remarks by M. Waelbroeck at the round-table discussion Luxembourg v European Parliament organized by the Centre d'études internationales et euro- péennes of tne Universitc Robert Schuman, Strasbourg, on concerning the Parliament's seat and place 10 April 1987 on the subject: 'Le Parlement europeen et la of work, the Court observed that: Cour de justice des Communautés européennes', p. 24. It should also be noted that the other institution and the Member States, as privileged applicants, might bring an action before the Court in order to obtain a declaration that the institution which had previously been called upon to act by the Parliament had failed to do so. Article 175 of 'there is no express provision in [the articles the Treaty does not require, at least expressly, that the applicant before the Court (at least the institutions and the of the EEC and EAEC Treaties concerning Member States) should necessarily be the one which initially called on the institution to act. actions for annulment] for active or passive 21 — Judgment of 18 November 1970 in Case 15/70 Chevalley v Commission [1970] ECR 975, at p. 979, paragraph 6. 22 — Case 294/83, cited above, at p. 1351.

17. As regards the Parliament's capacity to be made a defendant, the same conclusion was reached in the judgment in 'Les Verts', 'An interpretation of Article 173 of the in which the Court pointed out that: Treaty which excluded measures adopted by the European Parliament from those which could be contested would lead to a result 'The European Parliament is not expressly contrary both to the spirit of the Treaty as mentioned among the institutions whose expressed in Article 164 and to its system. measures may be contested . . . '. 25 Measures adopted by the European Parliament in the context of the EEC Treaty could encroach on the powers of the Member States or of the other institutions, However, although in the first of those or exceed the limits which have been set to cases the objection of inadmissibility raised the Parliament's powers, without its being by the Parliament as defendant, which at possible to refer them for review by the that time argued that it had no légitimation Court.' passive, was rejected on the ground that the first paragraph of Article 38 of the ECSC Treaty applied, making it unnecessary for the Court to interpret Articles 173 of the Thus, EEC Treaty and 146 of the EAEC Treaty, 26 that approach was not possible in the second. The Ecology Party's action was brought solely on the basis of Article 173, a '. . . an action for annulment may lie against provision which, as I have already pointed measures adopted by the European out, does not refer to the Parliament, and Parliament intended 'to have legal effects this led the Court to explore the extent to vis-à-vis third parties'. 28 which the Parliament's légitimation passive could be deduced from other factors.

22. There were other grounds for the Court's decision in 'Les Verts', which the 23. On the other hand it is true that the parties have not failed to invoke, but the Court decided in 'Les Verts' that relevance of which seems to me to be less certain. First, although it is true that in the ERTA case, the first interinstitutional case brought before the Court, the Court stated 'the Treaty established a complete system of that: legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions'.29 'Article 173 treats as acts open to review by the Court all measures adopted by the institutions which are intended to have legal force', 30 However, that observation concerned the organization of legal remedies so as to afford private persons effective judicial protection. It did not concern the question it must be emphasized that in that case the of the Parliament's capacity to bring actions Court did not have to take into before the Court. The context of the consideration the identity of the defendant judgment in Foto-Frost, 32 in which that institution. In that case, the Court had to same observation was reiterated, provides decide the question whether an action for further reinforcement of that conclusion. annulment could be brought against a measure (the proceedings of the Council) which is not included in the list contained in Article 189 of the Treaty. It was on the 24. The Court's recognition of the légit- basis of that consideration, in conjunction imation passive of the Parliament is quite with the observation that, having regard to 31 — Case 22/70, cited above, at p. 277, paragraph 41. In the task of the Court under Article 164, the another context, in order to reject the argument that conditions under which the action is decisions addressed to the Member States cannot be the subject of an action for annulment brought by an indi- admissible could not be interpreted vidual, the Court had already decided, inter alia, in the judgment of 15 July 1963 in Case 25/62 Plaumann 6 Co. v Commission [1963] ECR 95, at p. 107, that, 'moreover 29 — Case 294/83, cited above, at p. 1365, paragraph 23. provisions of the Treaty regarding the right of interested 30 — Judgment of 31 March 1971 in Case 22/70 Commission v parties to bring an action must not be interpreted restric- Council [1971] ECR 263, at p. 276, paragraph 39. P a r tof tively'. that paragraph was included in paragraph 24 of the 32 — Judgment of 22 October 1987 in Case 314/85 [1987] ECR judgment in 'Les Verts'. 4199, paragraph 16.

25. Given the various aspects of the 29. Look how far it has come since 1958! Parliament's involvement in judicial In the resolution adopted at its first session, proceedings, as they emerge from the the Assembly emphasized 'the need to find case-law of the Court, what is the Council's an evocative name' and chose the title objection to the European Parliament's 'Parliamentary Assembly', 33 which gave way capacity to bring an action for annulment? four years later to the name 'European Parliament'. 34 The Single European Act 35 recognizes that title and reinforces that institution's role, in particular by estab- lishing cooperation and joint decision- making procedures in certain domains. 26. As the Court will recall, the Council's argument is twofold: it considers firstly that the existing case-law does not give the Parliament a right to bring an action under 30. Although elected by direct universal Article 173 and secondly that neither the suffrage, 36 the Parliament has not acquired spirit nor the scheme of the Treaty supports the status of a veritable legislative chamber. an interpretation of Article 173 which Nevertheless, it has become increasingly would make it possible to include the more intensively involved in the preparation Parliament among potential applicants. of Community decisions. In that regard, reference should be made to the Budget Treaties of 1970 and 1975 and to the two Joint Declarations of the European Parliament, the Council and the 27. The Parliament draws precisely the Commission of 4 March 1975 37 and 30 June opposite conclusions from the same 1982, 38 the first dealing with the estab- considerations. In its view, its legitimation- lishment of a conciliation procedure and the active results necessarily from the Court's second with various measures to improve case-law concerning its status in litigation. the budgetary procedure. Similarly, mention Furthermore, it considers that neither the may be made of the Solemn Declaration on spirit nor the scheme of the Treaty European Union signed in Stuttgart on 19 precludes the recognition of such capacity. June 1983, 39 which expanded the range of cases in which the Parliament is informed

31. One of the institutions to which Article 4 of the EEC Treaty entrusts the implemen- tation of the objectives laid down therein, 'Measures adopted by the Council or the the body composed of representatives of the Commission in the context of the EEC European peoples, was originally granted Treaty could encroach upon the powers of only a consultative role and powers of the Member States or of the European deliberation and supervision. Very largely Parliament, or exceed the limits which have excluded at the outset from the Community been set to the powers of the institution decision-making process, the Parliament has which adopted them, without its being always claimed the right to have a more possible to refer them for review by the active role in that process. It is undeniable Court.' that, through successive reforms, there has been a gradual but genuine strengthening of the role of the Parliament even though this has not fully satisfied the Parliament's aspir- It is true that any privileged party may ations. always initiate proceedings for review by the Court of challengeable acts, but the protection of the Parliament's powers must not depend upon an action which could not be brought by the party principally 32. This development of the European concerned. Parliament's role could not fail to have an impact on its position in regard to litigation. It is that development which to a large extent provides the basis for the légitimation 34. It is undeniable that the Parliament's passive solution. However, although the right to intervene in cases before the Court subjection of measures adopted by the and its right to bring an action for failure to European Parliament to judicial review by act are not subject to the requirement that way of an action for annulment is the the intervention or action should be for the necessary consequence of the increase in its purpose of defending an interest of its own. powers, that fact, on its own, is not In both cases, however, the right involved is sufficient to justify its légitimation active. expressly provided for in written On the other hand, the requirement of Community law. That fact would justify judicial protection is decisive and, having recognition of the European Parliament's regard to the institutional structure of the capacity to bring an action for annulment, Community and the respective roles of the but within stricter limits, namely where its bodies of which it is composed, one should action is intended to protect rights or be careful not to draw any analogy with the powers of its own. Even where a 'definition national parliaments, which in this regard of position' by an institution called upon to would be irrelevant. act by the Parliament is involved, the latter's right to bring an action for annulment 40 — Minutes of the Council of 24 and 25 February 1964, p. 26. should be limited to the case I have 41 — Memorandum of the Council of 15 October 1973. described. By causing an institution to