C-16/88

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OPINION OF MR ADVOCATE GENERAL DARMON delivered on 30 June 1989 *

Mr President, (b) Community research coordination Members of the Court, programmes designed to enable the resources employed to be organized rationally, the results to be used effec­ tively and work to proceed in line with 1. In bringing an action for a declaration the objectives of the common fisheries that Article 6(4) of Council Regulation policy.' (EEC) No 3252/87 of 19 October 1987 on the coordination and promotion of research in the fisheries sector 1 is void, the Commission has asked the Court to resolve a difficult dispute between itself, supported by the Parliament, and the Council. The issue at the heart of this dispute is the scope of the power to implement the budget which I should also mention that, by a decision of Article 205 of the EEC Treaty confers on the same date as Regulation No 3252/87 the Commission. Reference must be made to and referring to Article 5 thereof, the a number of provisions in order to ensure a Council adopted Community research and proper understanding of the foundation of coordination programmes in the fisheries the dispute. sector for the period 1988-92. 2

2. Title II of Regulation No 3252/87, covering Articles 5 and 6, is headed 'Community research and research coordi­ nation programmes'. 4. Article 6 of Regulation No 3252/87, which concerns the implementation of the 3. Article 5, which concerns the drawing up programmes referred to in Article 5, is of those programmes, is worded as follows: worded as follows:

'Acting on a proposal from the Commission, the Council shall adopt, in accordance with the procedure laid down in Article 43 of the Treaty: '1 . The Commission shall ensure that the Community research programmes are carried out by concluding cost-sharing (a) Community research programmes in research contracts with research centres and areas of special importance for the institutes. common fisheries policy;

Inasmuch as the Commission's action seeks 5. It thus follows from Article 6(4) of the annulment of paragraph 4 of that Regulation No 3252/87, together with these article, on account of the reference to the other provisions, that the decisions adopted procedure provided for in Article 47 of by the Commission for the implementation Regulation (EEC) No 4028/86 of 18 of the Community programmes referred to 3 December 1986, the latter provision must in Article 5 of that regulation may, if they be set out in full. It reads as follows: are not in accordance with the opinion of the Standing Committee for the Fishing Industry, be replaced, within one month, by a decision of the Council adopted by a qualified majority. Let me add here that the '1 . Where the procedure laid down in this Standing Committee, established by Council article is to be followed, matters shall be Regulation (EEC) No 101/76 of 19 January 4 referred to the Standing Committee for the 1976, is, according to Article 11, composed Fishing Industry, by its chairman, either on 'of representatives of each Member State' his own initiative or at the request of the and chaired by 'a representative of the representative of a Member State. Commission'.

3 — Regulation (EEC) No 4028/86 on Community measures to 4 — Regulation (EEC) No 101/76 laying down a common improve and adapt structures in the fisheries and aqua- structural policy for the fishing industry (OJ L 20, culture sector (OJ L 376, 31.12.1986, p. 7). 28.1.1976, p. 19).

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6 Commission the power to implement Commission, known as the 'comitology' provisions which it has laid down by regu decision. According to Article 1 of that lation, sets certain limits to such implemen decision, the Council may impose tation by reserving a right to deal with a requirements in respect of the exercise of matter itself on condition that the implementing powers by the Commission management committee provided for by it 'which must be in conformity with the has given an adverse opinion. As the Court procedures set out in Articles 2 and 3'.

7. However, it may be considered that the Those procedures in fact constitute a codifi legal status of the management committee cation of the arrangements previously laid procedure has recently been modified as a down by legislative practice. result of the Single European Act. Although that procedure was originally the product of secondary legislation laid down by the Council, and its widespread use was based 8. Hence the management committee procedure now constitutes, like the advisory 5 — See the Opinion in Cases 11. 25, 26 and 30/70 [1970] ECR 1140, at p 1144 6 — OJ L 197, 18 7 1987. p 33

10. In any event, the Commission's application does not give rise to any controversy on that point or, more generally, on the possibility in principle for 12. It is unnecessary, in my view, to the Council to provide that the Commission consider at this juncture every aspect of the is to implement under a management arguments put forward in the proceedings committee procedure the rules which the by the parties and the intervener. As a result Council lays down, in accordance with the of the written procedure and the oral third indent of Article 145 of the Treaty. arguments presented at the hearing it is What the Commission disputes is that a possible to define the issue more narrowly. procedure of that type, applicable to the In my view, it amounts essentially to the measures it adopts from the implementation difference between the point of view held by of the rules which the Council lays down the Commission and the Parliament, on the within the meaning of Article 145, also one hand, and the Council's point of view applies to the measures which the on the other, with regard to the dividing Commission adopts for the implementation line between the implementation of the of the budget in accordance with Article budget within the meaning of Article 205 205. In its view, those measures reflect a and the implementation of the rules which specific power directly conferred upon it by the Council lays down within the meaning the Treaty and not a power conferred by of the third indent of Article 145. the Council for the implementation of the rules which it has laid down. Accordingly, a measure for the implementation of the budget by the Commission cannot be made subject to procedural rules of the kind asso­ ciated with management committees which, although in conformity with the third indent 13. The Council has informed the Court of Article 145, are inapplicable to measures that it did not hold an interpretation of the adopted not under Article 145 but under Treaty, as amended by the Single European Article 205. Act, according to which the implementation

of the rules laid down by it would go so far Council maintains that those measures are as to encompass their budgetary aspects. In connected with the implementation of rules its view, no confusion can arise between the which it has laid down, namely the implementation of the budget and the programmes adopted by Council Decision implementation of rules, and it therefore 87/534 of 19 October 1987. That difference acknowledges unreservedly that the of opinion reflects two general approaches requirements which it may, by virtue of the diametrically opposed to one another third indent of Article 145, impose in regarding the scope of the implementation respect of the implementation of the rules of the budget on the one hand and the which it has laid down cannot bind the implementation of rules on the other. Commission in its implementation of the

Conversely, implementation of rules could result only administrative implementation, that is to say from an express Treaty provision to that the application to individual situations of effect. As we know, no such provision rules laid down by the Council, and perhaps exists. amplified by the Commission, is connected with the implementation of the budget. Thus the implementation of the budget extends in general to all individual decisions which entail the use of budget appropri 14. Accordingly, the outcome of the action ations. The implementation of rules consists before the Court depends essentially on the exclusively in laying down the procedures scope of the power to implement the budget for their application, to the exclusion of any in relation to the scope of the power to individual measure entailing the utilization implement rules. As in a system of of appropriations. Consequently, the communicating vessels, the wider the second framework of a management committee is, the narrower the first becomes. That is procedure can apply only to legislative illustrated by the arguments put forward by implementation, that is to say the adoption the Commission and the Council. Whilst the of implementing rules, whilst individual Commission justifies its action on the measures involving the utilization of appro ground that the measures provided for in priations fall outside the scope of that Article 6(1) and (2) of Regulation No procedure. According to the Commission, 3252/87 for the implementation of fisheries the measures contemplated by Article 6(1) research programmes come within the scope and (2) of Regulation No 3252/87 fall of the implementation of the budget, the within the latter category.

16. The Council disagrees entirely. Its point extent to which committees have a role to of view rests on a comprehensive view of play we also delimit the possibility of direct the concept of the implementation of rules. implementation by the Council. The Council seems to suggest that the implementation of rules within the meaning of the third indent of Article 145 comprises all implementation by means of decisions, that is to say any measures involving the exercise of discretion, at both the legislative and the 18. It must be acknowledged that, at first individual level, whereas the implementation sight, this is a delicate decision.

Neither the decisions connected with 'specific actions' wording of the third indent of Article 145, or acts of day-to-day administration nor that of Article 205, nor that of any inherent in the internal functioning of the other Treaty provision provides manifest Commission. Thus the framework of a and immediate support for the management committee procedure can Commission's approach or that of the apply not only to the adoption by the Council with regard to the scope of the Commission of implementing rules but also provisions in question. to the adoption of individual decisions or measures involving some degree of

I am referring here essentially to the controversy, conducted more or less in undertones, concerning the 17. It is necessary to decide between those attitude(s) adopted by the Commission with two points of view. Moreover, I would regard to this problem before it came before point out that what is at stake here goes the Court. Neither the Council, in beyond the question of the limits to the role connection with this case, nor legal writers, of committees. Alongside the normal legal in a more general context, have failed to situation in which the Council entrusts the observe that the Commission had not always Commission with the implementation of the been unequivocally hostile to the use of rules which it lays down, the third indent of procedures involving recourse to committees Article 145 provides for a situation in which in circumstances comparable to those of this the Council reserves the right, in specific case. There is an element of truth in that cases, 'to exercise directly implementing observation.

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22. In that regard, it is difficult in my view 21. In any event, it is appropriate in my to describe as ideal the circumstances in view to regard the previous practice of the which, before the matter came before the Community institutions with regard to Court, the drawing-up and adoption of a committee procedures as of only relative number of Council regulations constituted a importance. The essential factor, from the pretext for the possibly unlawful use of Court's point of view, is not to sift through committee procedures. Whilst I have no several thousand regulations in order to desire to trace the historical process which the various pleadings submitted to the Court 7 — Regulation (EEC) No 355/77 on common measures to have made it possible to reconstruct, it improve the conditions under which agricultural products are processed and marketed (OJ L 51, 23.2 1977, p I) cannot be denied that recourse to 8 — OJ C 218. 24.9 1975, p 4 committees under a number of regulations

OPINION OF MR DARMON — CASE 16/88

23. To summarize, those different obser­ vations lead me to conclude that the 25. In the arguments adduced by the parties Commission's past attitude(s) have not before the Court, reference has been made affected the meaning — whatever it may to a budgetary term, namely 'commitment'. be — of the provisions of the Treaty, and In the midst of proceedings in which at have in no way deprived the Commission of times lofty considerations have been relied the right conferred upon it by the Treaty to upon, it may not have attracted much ask the Court to review the observance of attention. I believe, however, that it is a those provisions. concept of considerable interest with regard to the problems which have been raised before the Court, indeed one which is essential for the purpose of assessing the scope of the power to implement the budget 24. The fact remains that previous practices, within the meaning of Article 205. and the more or less erratic attitudes in that regard on the part of one or other of the institutions, have made legal analysis of the problem raised in relation to Article 205 by recourse to committee procedures in 26. In order to define the role of the term connection with the Commission's 'commitment' in the quest for a solution to implementing powers particularly difficult. this dispute, we must first recall that, That is borne out, in my view, by the according to the actual wording of the first

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paragraph of Article 205, 'the Commission budget. Section I of that title, which is shall implement the budget, in accordance headed 'General Provisions', contains with the provisions of the regulations made Article 17, whose first two paragraphs pursuant to Article 209, on its own responsi­ provide as follows: bility and within the limits of the appropri­ ations'. 'The budget shall be implemented in accordance with the principle that the auth­ Article 209 provides that orizing officers and accounting officers are different individuals.

OPINION OF MR DARMON — CASE 16/88

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This provision recorded and effected. The power to adopt draws the same distinction between the legal those substantive decisions is vested in the and accounting aspects of commitment as principal authorizing officers, that is to say that made by Mr Gaudemet and Mr the ministers, or in secondary authorizing Mounier, although there is no indication officers. Legal writers are careful to point whether the 'measure' of a legal nature out that a commitment may also arise from comes within the scope of the authorizing a judicial decision making the State liable officer's powers. for a debt, or from a parliamentary decision. However, Maurice Duverger, who refers in that regard to the possiblity of a 'law granting an individual pension to one who has served his country well, or to his 33. According to Article 32(2) of the widow', emphasizes that a 'parliamentary Financial Regulation, 'the decisions taken

Since narrower concept of commitment? I the decisions are, according to the actual consider that the Financial Regulation does wording of Article 32(2), 'decisions taken by the Commission', there is nothing to 14 — Finances publiques, Vol 1, 'Budget/Trésor', Ed. Mont- suggest that this provision validates the chrestien, coll Domat, Droit public, 5th edition, 1989, p 389. procedures provided for in certain Council 15 — Finances publiques, Themis, PUF, 8th edition, 1975, p 332 regulations, which enable the latter to

34. Title VII of the Financial Regulation contains special provisions applicable to research and investment appropriations. They include Article 88(2), which provides in its first subparagraph that 'the commitment appropriations within each 36. It seems useful to point out at this stage [multi-annual] tranche are intended to that quite aside from the place it occupies in enable the Commission to meet all the legal French positive law commitment of expen­ obligations which it may contract' and diture is a classic concept. In France itself, specifies in the second subparagraph that the four stages of commitment, validation, those commitment appropriations 'constitute authorization and payment have governed the upper limit of expenditure to which the the implementation of expenditure under Commission may commit itself during the the budget since well before the adoption of financial year in question for the implemen­ the Decree of 29 December 1962. tation of the operations to which the expen­ Furthermore, and its 'classicism' certainly diture relates'. In my view, it is worth has something to do with it, that concept noting the reference in subparagraph 1 to has been applied in other national legal the Commission's capacity to 'contract' in systems. In Belgium it forms part of an connection with a commitment. expenditure process broken down into five stages, namely commitment, the operative event, authorization, validation and payment. Under Belgian law, commitment would appear, so far as the State budget is concerned, to be virtually identical in scope 35. It follows from the examination of the to commitment under French budgetary few relevant provisions of the Financial law. Under Italian law too, the implemen­ Regulation regarding the scope of the term tation of public expenditure is carried out in 'commitment' that there is no evidence of four stages entitled 'l'impegno', 'la liqui-

dazione', 'l'ordinazione' and 'il paga view amongst the Member States taken into mento', that is to say commitment, vali consideration for the purpose of ascer dation, authorization and payment. taining the scope of commitment under Furthermore, in Italy commitment may take Community law. two main forms, namely contractual commitment and administrative commit ment, and it therefore covers the award of 38. Furthermore, going beyond questions of contracts or the adoption of unilateral terminology, it seems to me that the view decisions, in particular those granting according to which it is for the national allowances or subsidies. authority which implements the budget under the constitution actually to adopt decisions involving the utilization of appro priations is fairly widely held in Europe, regardless of the terms used in budgetary

same there. Under Spanish law, on the other offices. hand, while the implementation of the budget is defined as consisting of four stages also entitled commitment, validation, authorization and payment, the first stage is 39. Admittedly, it is an equally classic conceived in narrower terms inasmuch as it objection that the Community is based on does not include substantive decisions an institutional system SUi generis, whose involving the utilization of appropriations workings are not based in principle on and thus has a strictly financial character. 17 national constitutional models and cannot However, under most of the legal systems therefore be interpreted by analogy.

By referring to commitment of expenditure, the Financial Regulation to which Article 205 16 — Antonio Bonnati Manuale di contabilita di stato, 10th edition, Casa Editrice, Dott Eugenio Jovene, Naples, refers has embodied in the Community 1983, p 427 et seq. system an approach to the implementation 17 — Jose Juan Ferreiro Lapatza Curso de derecho financiero español, Marcial Pons, Madrid, 10th edition, 1988, p 802 of the budget which corresponds on the

40. I am well aware that such an interpre­ 41. Turning now to the Council regulation tation of the concept of implementation of one of whose provisions is directly criticized the budget runs counter to the arguments in this application, there is a point I wish to consistently advanced by the Council, and make regarding the origin of the actual which the latter has again put forward in dispute before the Court. I believe that, to these proceedings. Nevertheless, I consider some extent, it was inevitable that the that the resultant division of powers is Council should adopt the attitude which extremely well balanced and is capable by came to be embodied in Article 6(4) of and large of meeting the Council's Regulation No 3252/87. legitimate concerns. Although careful scrutiny of the applicable provisions must lead to the conclusion that the implemen­ tation of the budget, as a power vested in 42. The Commission had at first submitted the Commission, covers any measure which to the Council in 1980 an initial proposal involves entering into an individual for a regulation according to which the commitment, it is equally clear that it covers implementing rules, relating in particular to only such measures. This means that when the scientific priorities to be respected we arrive at the legislative stage, that is to within the framework of the common say the level at which rules or criteria are research programmes, the criteria for the laid down, we are no longer involved in the selection of research centres and institutes implementation of the budget. Any adoption invited to take part in specific actions and of rules, in my view, comes in principle the guidance of programmes during their within the scope of the third indent of implementation, were adopted in Article 145. After laying down basic rules in accordance with a management committee a given field, the Council entrusts the procedure, whilst the actual implementation Commission with the task of determining of the programmes by the Commission was the procedures for their implementation, not made subject to such a procedure but with the possibility of setting limits to such involved the assistance of an advisory legislative implementation by means of a committee. 18 In 1985 the Commission committee procedure. This means that the withdrew that proposal and submitted a Council is thus in a position to supervise the fresh proposal to the Council, according to entire legislative process and to be involved which the latter was to adopt Community to a certain extent in establishing the legis­ research programmes and research coordi­ lative framework as a whole within which nation programmes whilst the Commission the Commission, in its capacity as the institution responsible for implementing the 18 — OJ C243, 22.9.1980, p. 12.

was to ensure that the programmes were that any action taken under that provision carried out by concluding contracts and directly involves the utilization of appropri organizing seminars, conferences and study ations. However, there is no reason to draw trips with merely the assistance of an a distinction here since any individual advisory committee. 19 Since that new decisions not involving the utilization of scheme deprived it of the possibility of appropriations fall within the ambit of supervising, by means of a management management pure and simple and the in committee procedure, the establishment of volvement of a committee therefore serves criteria for the implementation of those no purpose whatever. programmes, it was natural that the Council should be tempted to exercise such super vision at the level of actual implementation. 44. As we have seen, the Commission, as It succumbed to that temptation by intro the body responsible for implementing the ducing the contested provision. In my view budget, has its own powers, which are this was inappropriate because it was incompatible with a management committee unlawful, but it was foreseeable. I am not procedure that enables that Council in aware of the precise context in which Regu certain circumstances to take the lation No 3252/87 was drawn up, but I Commission's place.

In my view, The aim of that provision, I would remind therefore, the applicant's claims should be the Court, is to make decisions adopted by upheld. the Commission under paragraphs 1 and 2 of Article 6 subject to a management committee procedure. Article 6(1) provides for the conclusion of cost-sharing research 45. Shorn of paragraph 4, Article 6 will to a contracts with research centres and certain extent constitute a declaratory institutes. Article 6(2) provides for the provision conferring upon the Commission a organization of seminars, conferences, study power to carry out programmes which it visits, exchanges of researchers and working derives directly from Article 205.

I therefore above. As for the measures referred to in suggest that the Court confine itself to paragraph 2, they consist largely of declaring that paragraph void. decisions or measures which also come within the scope of the implementation of the budget, even though it cannot be said 46. In the light of the foregoing analysis, I have not found it necessary to consider the 19 — OJ C312, 3.12 1985, p. 5 argument put forward by the Commission

and the Parliament relating to the excessive between the Council's argument and that narrowing of the latter's supervisory power, of the Commission. The Commission's the result of a restrictive view of the concept argument involves recognizing that it enjoys of implementation of the budget. Since the a sphere of activity which is shielded from Parliament, it has in substance been interference, whether direct or indirect, by asserted, can supervise only action taken by the Council. For its part, the Council's the Commission in budgetary matters, such argument leads to the consequence that the supervision may be rendered wholly inef­ determination of the extent of the fective whenever the Council retains a Commission's actual decision-making power power of substitution by means of a is left entirely to the discretion or the will of management committee procedure. Any the Council itself. According to the latter 'substitute' decision taken by the Council view no genuine decision-making is involved would then escape the supervision of the in the implementation of the budget and Parliament and the latter would be deprived thus there is no further scope for the of the role conferred upon it by the Treaty exercise by the Commission of a power to with regard to the implementation of the take substantive decisions with regard to the budget. utilization of authorized appropriations except in cases in which the Council may 47. I consider that argument to be highly consider it appropriate to confer upon it, significant in view of the questions of pursuant to the third indent of Article 145, principle which it raises. However, in so far an implementing power which is not subject as it focuses not so much on a direct and to a committee procedure, or to provide manifest infringement of a provision of the merely that the Commission is to be assisted Treaty as on a certain disregard of its impli­ by an advisory committee. In arriving at its cations, I consider that the finding of conclusion, the Court must, I think, illegality on the basis of Article 205 and the consider whether it is possible to uphold an third indent of Article 155, concentrating on interpretation of the Treaty that gives rise to the scope of the concept of budgetary a sort of 'potestative' situation in which one commitment, makes it unnecessary to institution would ultimately have the power ascertain whether or not that argument is to empty of their substance the powers of well founded. the other in the field in question. For my 48. I wish to make a final observation part, I cannot imagine that the authors of which is connected more, in a way, with the the Treaty could at one and the same time values expressed by the institutional law of have intended such a situation to come into the Communities than with its procedural existence and have provided that the rules. It seems to me that, from that point of Commission should have 'its own power of view, there is a fundamental difference decision' in this sphere.