C-70/88
ECLI:EU:C:1989:604
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OPINION O F MR VAN GERVEN — CASE C-70/88
O P I N I O N OF MR ADVOCATE GENERAL VAN GERVEN delivered on 30 November 1989 *
Mr President, decision of general application was inad- Members of the Court, missible. I shall consider in this Opinion whether the approach adopted in that judgment is applicable without qualification to a case such as this one. In this case the Parliament is challenging a Council regu- lation 3 on the ground that the regulation 1. This case raises once again the question was adopted without resorting to the whether the Parliament may bring an action cooperation procedure, thus breaching the for annulment before this Court under Parliament's prerogatives. Although Article 173 of the EEC Treaty and/or the argument was put forward in the 'Comi- identically worded Article 146 of the EAEC tology' case, and answered by the Court, Treaty. 1 concerning the breach of the Parliament's prerogatives (in particular its right of super- vision over the Commission), the emphasis in that case was principally on the Parliament's role as defender of Community law, and more particularly of the institu- tional balance laid down in the Treaties. For more details concerning the precise subject-matter of the action, the circum- stances in which it was brought and — following the recent judgment of this Court in the 'Comitology' case 2— the course of the procedure as well as a summary of the arguments of the parties I refer to the Report for the Hearing. In view In this case the emphasis is entirely on the of the Court's decision to consider the Parliament's defence of its own prero- question of admissibility first and indepen- gatives, and that in a very particular fashion dently of the substance of the case, my in view of the fact that the Parliament opinion will naturally also deal exclusively stands unsupported in its case and is with that question. therefore wholly reliant on itself to defend its prerogatives. The argument put forward by the Parliament concerns the (allegedly) inappropriate legal basis adopted for the regulation at issue, namely Article 31 of the Euratom Treaty instead of Article 100a of 2. In the 'Comitology' judgment the Court the EEC Treaty, which has the consequence held that an application for annulment that the Parliament has been prevented from brought by the Parliament against a Council participating, as provided for in the latter
* Original language: Dutch. 3 — Council Regulation (Euratom) N o 3954/87 of 22 December 1987 laying down maximum permitted levels of 1 — For the sake of convenience I shall refer henceforth solely radioactive contamination of foodstuffs and of feeding- to Article 173 of the EEC Treaty. stuffs following a nuclear accident or any other case of 2 — Judgment of 27 September 1988 in Case 302/87 Parliament radiological emergency (the so-called Chernobyl regu- v C o u n c i l [1988]ECR 5615. lation, OJ 1987, L 371, p. 11).
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articleunder the cooperation procedure laid of Article 4(1) of the EEC Treaty (and down in Article 149(2) of the EEC Treaty, Article 3(1) of the Euratom Treaty) in such in drafting the regulation. Since the a way as to be subject to not only political, Commission does not agree with the but also judicial review. Such a system is Parliament as regards the choice of the legal based on the idea that both the institutions basis, it cannot reasonably be the spokesman and the Member States, which each have for the Parliament when it comes to their own task to fulfil within the institu- defending the latter's prerogatives. The tional structure set up by the Treaty and circumstances were different in the which each represent a particular aspect of 'Comitology' case, where the Commission the Community interest, may, if they wish, and the Parliament shared the same view bring disputes regarding conflict of powers vis-à-vis the Council. before the Community court. That also applies to the legislature itself, that is to say the Council, to which was granted at the outset the legislative powers which in a classical constitutional system would In view of that special situation the Court normally belong to the parliament. must consider to what extent the earlier decision may serve as a precedent, and if necessary qualify it, as regards the Parliament's right to take the initiative in defending its privileges by bringing an action for annulment before the Court (see paragraph 7, below). That feature enabling the division of powers to be safeguarded by the courts affects, in particular, the selection of the legal basis for acts adopted by one of the institutions. The Court has held that that choice must be Before examining the case itself I would like based on objective factors capable of being to draw your attention briefly to two reviewed by the Court. 4 In fact ensuring important aspects: in the first place, the that the legal basis is the correct one (the manner in which the EEC Treaty makes the subject of this case) is crucial to preserving institutional structure subject to judicial the balance of powers laid down in the control and in the second place the position Treaties as between the Community and the given to the Parliament in the case-law of Member States and as between the this Court. Community institutions inter se.
Division of powers between the institutions also subject to judicial review The choice made in the Treaties of having the scope of powers subject to review also by the courts, even when the legislature itself is affected thereby, is a choice which departs from that adopted in more than a 3. There is no doubt that in Article 169 et few Member States — especially those seq. of the EEC Treaty (and in Article 136 et seq. of the Euratom Treaty) the intention 4 — Judgment of 26 March 1987 in Case 45/86 Commission v was to have powers divided between the Council [1987] ECR 1493, paragraph 11, judgment of 23 February 1988 in Case 68/86 United Kingdom v Council institutions referred to in the first paragraph [1988] ECR 855, paragraph 24
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where there is no federal structure — but is The fact that I have commenced by empha- one which is undoubtedly well established in sizing this point does not mean that it will the Community legal order. In its judgment form the corner-stone of my Opinion. I of 22 May 1985 on the common transport merely wish to underline the fact that there policy the Court pointed out, moreover, is nothing in the institutional structure laid that the manner in which conflicts are to be down by the Treaty which justifies the settled by political means can have no conclusion a priori that there should be no influence on the manner in which conflicts judicial review of the powers of a single may be settled by judicial means. 5 organ or institution when other consider- ations are there to show that the Treaty provisions require such a review.
The jus standi of the Parliament in the case-law of the Court of Justice It is generally considered that the Parliament was not given such express recognition in the system of powers subject to judicial review as were the Council and the Commission because it originally enjoyed few real powers. Had the Parliament been given mandatory powers at 4. Another point I would like to remind the start, it would probably have been given you of, and of which you are doubtless as much express recognition in the system of already aware, is that the case-law of the judicial review under the Treaty as the Court of Justice shows a tendency to extend others. An indication of that is to be found the Parliament's right to bring actions. The in the fact that where the Parliament does stages in which that has been achieved are enjoy powers capable of having legal effects so well known that I need merely on others or has obtained them summarize them: 7 acts of the Parliament subsequently, the conflicts of powers which may be the subject of a reference for a might arise in connection therewith are to preliminary ruling seeking their interpre- be subject to review by the Court of tation or a review of their validity; the Justice. 6 Parliament is generally entitled to intervene in cases before the Court of Justice; it may 5 — Judgment of 22 May 1985 in Case 13/83 Parliament v bring an action for failure to act under Council [1985] ECR 1513, at p. 1556, paragraph 18: 'The fact that the European Parliament is at the same time the Article 175 of the EEC Treaty; it may be Community institution whose task is to exercise political review of the activities of the Commission, and to a certain asked to provide information to the Court extent those of the Council, is not capable of affecting the both in direct actions and in the course of interpretation of the provisions of the Treaty on the right of action of the institutions.' references for preliminary rulings; actions But see also paragraph 12 of the Comitotogy judgment, may be brought to have acts of the which seems to conflict with this, or at least reduces its impact. Parliament declared void. In the 'Comi- 6 — The following consideration in the judgment of the Court tology', case Advocate General Darmon of 10 July 1986 in Case 149/85 Wybot [1986] ECR 2403 is relevant to the kind of dispute before us today: 'In rightly pointed out that in all those cases accordance with the balance of powers between the institutions provided for by the Treaties, the practice of the European Parliament cannot deprive the other institutions 7 — For references and a general discussion, see most recently of a prerogative granted to them by the Treaties them- the Opinion of Advocate General Darmon of 26 May 1988 selves' (paragraph 23). in the 'Comitology' case, [1988] ECR 5615, at p. 5627.
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except the last there was some relevant indi- It should be noted that in the aforemen- cation in the Treaty provisions which tioned cases in which the Parliament was enabled the Court of Justice to extend their acknowledged to have a jus standi, the application to the Parliament by means of Court of Justice construed the division of an interpretation of them. As far as powers between the institutions laid down in applications to have acts of the Parliament the Treaties in such a manner as to ensure declared void are concerned, however, the that the legal procedures and remedies Court was not able to refer to such a available under the Treaties were as provision but found that no obstacle to its coherent and efficient as possible. interpretation : see the judgment in Les Admittedly, it regarded itself, in so doing, Verts.8 as bound by the principle of restrictive attribution of judicial powers, pursuant to which the Court may not extend its powers by creating new remedies: see the judgment of 17 February 1977 in CFDT.11 This case, however, is clearly distinguishable from the CFDT case, which concerned an association which could not possibly be entitled to bring an action under the ECSC Treaty, having regard to the restricted material scope of
that Treaty. This case is different: as we have seen, the Parliament has already been recognized as having jus standi before the To that summary there may now be added Court of Justice, and is asking in this case the (unrestricted) right of appeal which the to be allowed to bring an action to Parliament has against judgments of the safeguard the prerogatives accorded to it by Court of First Instance. The Statute of the the Treaty. Court of Justice, as amended, provides that an appeal may be brought against final decisions of the Court of First Instance inter alia by 'Community institutions', regardless of whether they intervened in the proceedings before that Court. 9 The Court of Justice has always refused to interpret the The 'Comitology' judgment term 'institutions' in the Treaty or in its statute otherwise than as including the Parliament: such an interpretation, it has said, would harm the institutional status (of the Parliament) laid down by the Treaty, in particular in Article 4(1) thereof. 10
5. Anyone who has followed the case-law 8 — Judgment of 23 April 1986 in Case 294/83 Les Verts v of the Court of Justice from the moment of Parliament [1986] ECR 1339, paragraphs 24 and 25, confirmed in the judgment of 3 July 1986 in Case 34/86 the entry into force of the EEC Treaty will Council v Parliament [1986] ECR 2155, paragraph 5. undoubtedly have noticed to what extent 9 — See Article 49 of the Statute of the Court of Justice (EEC, Euratom, ECSC) as last amended by Council Decision (ECSC, EEC, Euratom) 88/591 of 24 October 1988 (OJ 11 — Judgment of 17 February 1977 in Case 66/76 CFDT v 1989, C 215, p. 1). Council [1977] ECR 305, paragraph 8 (regarding 10 — Particularly as regards the Parliament's right to intervene applications by individuals for the annulment of decisions in proceedings before the Court of Justice and to bring an of the Council under the ECSC Treaty).
The decision was action for failure to act. See the judgments of 29 October confirmed in the judgment of 11 July 1984 in Case 222/83 1980 in Cases 138/79 Roquette Frères and 139/79 Maizena Municipality of Differdange s Commission [1984] ECR 2889 [1980] ECR 3333 and 3393, paragraph 19, and of 22 May (in which it was held that local authorities have no right of 1985 in Case 13/83, cited in footnote 5, at paragraph 17. action under Article 33 of the ECSC Treaty).
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the Court has concentrated, and still does question of the link between the capacity to concentrate, on ensuring, in many different sue and the capacity to be sued). 14 ways, that there is an adequate and coherent system of legal protection. In that context, the 'Comitology' judgment is somewhat surprising. 1 2The Court rejected in its judgment both the arguments relating Is one to conclude that the Court has to the parallelism of legal remedies, in abandoned in the 'Comitology' judgment its particular that of the action for failure to preoccupation with ensuring an adequate act and the action for and coherent system of legal protection? annulment — although in a previous Certainly not, as is already apparent from judgment the Court had emphasized the the deliberate decision I have just described close link between them 1 3 — and those to give Article 175 an extremely broad inter-
pretation. Subsequently, moreover, the regarding the connection between the judgment refers (in paragraph 20) as regards Parliament's capacity to be sued and its the relationship between the Parliament's capacity to sue. What was particularly capacity to sue and its capacity to be sued, surprising was that the Court based its expressly to the judgment in Les Verts, rejection of the argument that the recalling that the interpretation given in that Parliament's right to bring an action for case was based on the need for a complete system of legal remedies for individuals as failure to act was paralleled by a right to regards acts of Community institutions bring an action for annulment on a very which are capable of having legal effects for broad interpretation of Article 175 — that is them. to say, by equating (paragraph 17 of the decision) an express refusal to act with a prolonged failure to act — in order to fill (to some extent) a gap in the system of legal
protection. That interpretation went further than the Court's previous case-law would I see the judgment in the 'Comitology' case have led one to suppose and also departs rather as constituting a refusal to accede to the Parliament's request to alter the institu- from the rules contained in the ECSC tional balance in its favour in the context of Treaty (on which the Court relied, however, the capacity to bring an action for to draw argument by analogy on the annulment (and, in connection therewith, to establish a ¡ink between its capacity to sue 12 — An example: in the second English version (just published, and its capacity to be sued) (paragraph 19). revised by L. W. Gormley) of the standard work by P. J. G. Kapteyn and P. VerLoren van Themaat, Introduction to Had the Court accepted that proposal it the Law of the European Communities, 1989, the authors describe the natural development of the principle of the might have been interpreted as interference Parliament's jus standi before the Court, on pp. 143 et seg, by the Court in the very delicate question of with the conclusion (obviously drafted prior to the judgment in the 'Comitology' case) that: 'there is no institutional balance as between the escaping the fact that bringing cases before the Court is Community institutions endowed with legis- both a manifestation and consequence of active parliamentary participation in the political life of the
Community' (p. 145). As a result of the judgment in the 'Comitology' case the authors were obliged to add a qual- 14 — For a thoroughgoing analysis of the 'Comitology' ifying note to that footnote at the last minute. judgment, on this point and others, and of the previous case-law of the Court, see M. Thill, 'Le défaut de qualité 13 — See the judgment of 18 November 1970 in Case 15/70 du Parlement européen pour agir en annulation au titre de Chevalley [1970] ECR 975, paragraph 6. Admittedly, the l'article 173 du traité CEE: l'arrêt de la Cour de Justice du Court expressed that consideration in connection with the 27 septembre 1988 et ses implications sur d'autres aspects definition of an act which could be the subject-matter of an du contentieux communautaire', Cahiers de droit européen,
application under Articles 173 and 175. 1989, p. 367, at pp. 375 to 382.
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lative powers or prerogatives and thus as nizing in the judgment of 23 April 1986 in interference in the political decision-making Les Verts that actions could be brought process, even though the Court had against the Parliament — and thus its jus previously stated — although it impliedly standi as a defendant. 17 contradicted that in the 'Comitology' case — that the judicial settlement of conflicts must be considered separately from the political means of settling them (see paragraph 3, above, and footnote 5). The The requirement that there be an adequate risk of appearing to interfere was all the and coherent system of legal protection more real, as the Court pointed out (in paragraph 26), in view of the fact that the powers of the Parliament were considerably extended by the approval of the Single Act without there being a parallel alteration in 6. The distinction I have just outlined the rules governing the right of action under between the interpretation of the Treaty Article 173 of the EEC Treaty. When the with a view to ensuring that there is an Treaties were revised, the Council refused adequate and coherent system of legal expressly, in fact, to approve a proposal by protection and its interpretation in a manner the Commission to grant the Parliament the which might interfere with the delicate same unlimited right to bring actions for political balance between the institutions is annulment as that enjoyed by the Council in my view an essential one. Whereas the and the Commission. 15 16 first is the inalienable task of the courts, the second falls to the (primary) legislature. That explains why the Court did not accept, in the 'Comitology' judgment, arguments seeking to have the institutional balance adjusted, particularly after the rejection of However, it must be emphasized the Commission proposal to which I have immediately that that refusal is not to be just adverted, whereas in Les Verts it did in understood as meaning that the Court will fact accept argument concerning the in no case grant the Parliament jus standi guarantee of legal protection by means, as it under Article 173 of the EEC Treaty. The pointed out, of a complete system of legal Commission proposal to which I have just remedies and procedures laid down by the referred sought to have both the Treaty for the benefit of third parties who Parliament's capacity to sue and its capacity consider that they have been harmed by to be sued incorporated in the Treaty. The mandatory acts of the Parliament. 1 8The fact that it was not accepted (the Single Act Court did so on the ground that was signed in February 1986) did not prevent the Court of Justice from recog-
15 — See the declaration made by Commission member Mr Ripa di Meana to the Parliament on 9 October 1986. The 'the European Economic Community is a Commission's proposal was published in the Bulletin of the Parliament, OJ 100.805/Addendum 2 of 10.10.1985, Community based on the rule of law, p. 25 inasmuch as neither its Member States nor 16 — According to a declaration made by Commission President Mr J. Delors subsequently to the Parliament, the Council its institutions can avoid a review of the was not unanimous on that point, some of the national delegations to the conference of representatives of the governments of the Member States pointed out during the 17 — J. Weiler, 'Pride and Prejudice — Parliament v Council', discussion of the proposal that 'les institutions communau- European Law Review, 1989, p . 334, at p. 345 taires etaient sous l'emprise d'une constitution évolutive et 18 — See paragraphs 23 and 24 of the decision in Les Verts, qu'un jour la jurisprudence donnerait de facto ce droit au cited in footnote 8, and in particular the interpretation Parlement' See the Minutes of the sitting of 26 October given thereto in the 'Comitology' judgment, in 1988 (provisional edition), pp. 194 to 197. paragraph 20.
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question whether the measures adopted by particularly on the Commission to invoke them are in conformity with the basic that protection by means of an action under constitutional charter, the Treaty'. 1 9 Article 173 of the EEC Treaty (paragraph 27 of the judgment).
7. Since this case concerns the Parliament's In that context — and in this Opinion in power by itself and on its own initiative to general — I take legal protection to mean: bring an action for annulment in order to the possibility for any holder of a right, a safeguard its own powers (of cooperation) power or a prerogative 20 to have recourse and that alone, I shall restrict my to judicial authority on his own initiative, consideration of the question whether it is that is to say as and when he sees fit, in desirable for the Court to qualify the order to have that right, power or prero- 'Comitology' judgment to that context. gative protected. Consequently, my Opinion will relate to paragraphs 25 to 27 inclusive of that judgment, and, subsequently, to paragraphs 8 to 10 thereof. I shall regard the remaining paragraphs of the judgment, to the effect that the Parliament has no unlimited right to bring actions for annulment, as beyond That distinction has important practical discussion. consequences. Whereas establishing (or re-establishing) an institutional balance between the Council, the Commission and the Parliament — a matter which I consider is not the province of the courts — entails giving the Parliament as full a right of The Parliament's capacity to bring an action action as the Council and the Commission in order to safeguard its powers enjoy, that is not the case if the aim is to ensure that the Parliament enjoys effective legal protection. All that requires is a limited right of action, inasmuch as it is only necessary for the Parliament's own rights, powers and privileges to be safeguarded, 8. When I speak of (the Parliament's) that is to say to the extent that the capacity to bring an action ('la qualité pour Parliament has an interest personal to it in ester en justice') I distinguish that from (the bringing an action. I would point out — and Parliament's) general legal capacity ('la will discuss this point later (see paragraphs capacité d'ester en justice'). The second of 12 and 14, below) — that in the 'Comi- those phrases refers to the capacity to be tology' judgment the Court of Justice also invested with rights, which usually goes acknowledged the necessity for protection hand in hand, in the case of a party to by the courts of the Parliament's prero- proceedings, with (a more or less marked gatives, but placed responsibility quite form of) legal personality (which I shall explain further in paragraph 17, below). The 19 — Les Verts judgment, cited in footnote 8, at paragraph 23. first has to do with the question whether a 20 — Here, and elsewhere, I use this broad formulation in order particular rule of law, in this case the to show that the nature of the 'rights', in the widest sense of the term, is irrelevant. Treaty, expressly or impliedly confers a
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right to appear before the courts, either as a acts of other institutions in the light of the plaintiff or as a defendant. 21 requirement of adequate legal protection. In other words, if the Parliament is recognized as having the capacity to bring an action in that case it is not because it must be permitted to bring actions now that the Les Verts judgment has confirmed that it has In the judgment delivered in Les Verts, capacity to stand as a defendant, in order to the Court held that the first paragraph put it on the same footing as the Council of Article 173 of the Treaty gave and the Commission; it is because the the Parliament a locus standi as Parliament must be permitted to bring defendant — although the Parliament is not actions in order to be able to defend its expressly mentioned in that article — and rights, powers and prerogatives adequately based its decision on the need to provide the itself, in the same way as other persons or necessary legal protection for third-party institutions. 22 individuals who considered that their interests had been damaged by an act of the Parliament having legal consequences for
them. The question before us today is whether that legal protection — and, conse- quently, the Parliament's capacity to initiate an action itself — must be granted to an The relevant comparison here, as regards institution which considers that its powers the substance, is not that between the have been encroached upon by an act of Parliament's capacity to sue and its capacity another Community institution. to be sued but that between its capacity to bring actions for the annulment of acts of other Community institutions and the right enjoyed by individuals (inter alia) to bring proceedings challenging acts of Community
9. I would like to point out that the institutions, including the Parliament. In emphasis in the question as I have just other words, the Parliament's capacity to stated it lies not on the link between the sue is here compared to the capacity to sue Parliament's capacity to sue and its capacity enjoyed by (inter alia) individuals. to be sued (that is to say, between the Parliament as plaintiff and the Parliament as defendant) — a question which has to do with institutional equilibrium, a subject which I have already dealt with and to which I do not wish to revert here (see paragraphs 5 and 6, above) — but on the Admittedly, the issue of the Parliament's existence (or absence) of the Parliament's capacity to sue in this case raises the same capacity to bring an action challenging the difficulty of interpretation as there was in Les Verts regarding the Parliament's 21 — As to the distinction between capacite and qualité to appear capacity to be sued, inasmuch as both as before the courts under the EEC Treaty (and also interêt, a concept which in this case consists of defending the party's regards the capacity to sue under the second own right sec paragraph 6, above), sec the no longer sentence of the first paragraph of Article recent but still informative aniele by C Cambier, 'Le droit de procedure principe et element régulateur de l'autorité 173 and as regards the capacity to be sued des (uges dans les Communautés européenes', which appeared in De individuele rechtsbescherming m de Europese Gemeenschappen, 1967, p 117 Compare with the aniele by 22 — A point already alluded to by Advocate General Darmon J Boulouis, 'La qualité du parlement européen pour agir en in his Opinion prior to the 'Comitology' ludgment annulation', Rev. M Comm., 1989, p 119 (paragraphs 32 and 33)
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under the first sentence of that paragraph Rights, which provide that in civil and there is no express reference to the criminal matters there is a right to be heard Parliament, nor even to 'other institutions' by an independent judge and where rights (besides the Council and the Commission). or freedoms have been violated effective legal remedies must be available?23 In any event, the Court of Justice has held that even legal persons of private law may rely on similar rights or freedoms, adapted to their special situation, if not under the Convention then under general principles of The essential question which has arisen with law. 24 The fact that it appears to be estab- perfect clarity in this case is therefore this: lished that the Convention does not apply to should the Parliament be offered less public legal persons does not necessarily extensive legal protection than that enjoyed justify the conclusion a contrario that no by individuals (leaving aside the further legal remedy is available under the general question whether the latter are directly or legal principle of free access to the courts individually concerned, as to which more (see paragraph 12, below), provided that will be said in paragraph 17) whenever it is the institutional structure in the relevant necessary to safeguard through the courts legal order, like that in the Community (see own rights, powers or prerogatives? paragraph 3, above), is not opposed in principle to the courts' upholding the rights, powers or prerogatives accorded to such persons by laws or the Treaty.
The need to interpret Article 173 of the EEC Treaty in the light of the requirement of legal protection 11. Nor is there any written provision which may be relied upon as against the Parliament, since the judgment in Les Verts. As I mentioned before, the first paragraph of Article 173 does not refer to the Parliament, whether as one of the 10. Let me say at once that I see no reason institutions subject to review by the Court why the answer to that question should not of Justice or as one of those with a right of be the same for an institution as it is for appeal, and does not even contain a general individuals. reference which could be interpreted as including the Parliament. As regards the institutions subject to the Court's powers of review, the Court saw no reason not to include acts of the Parliament among the
23 — See, for example, the judgment of 15 October 1987 in Case 222/86 Heylens [1987] ECR 4097, in particular Surely it should not differ just because the paragraph 14. latter may be natural persons and only 24 — See for example the recent judgments of 21 September 1989 in Joined Cases 46/87 and 227/88 Hoechst [1989] natural persons are to be entitled to rely on ECR 2859, paragraph 17 et seg., of 17 October 1989 in Articles 6(1) and 13 of the European Case 85/87 Dow Benelux [1989] ECR 3137, paragraph 28 et seq. and of 18 October 1989 in Case 374/87 Orkem Convention for the Protection of Human [1989] ECR 3283, paragraph 30 et seq.
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acts subject to its review under the principle paragraph 14, below) in conflict with what of legal protection for injured third the Court held in the 'Comitology' case, but parties. 25 In other words, where the it is precisely on that limited point that I provisions are silent the Court has inter- would invite the Court to reconsider its preted them in the light of the overriding position. The Court stated in that case that requirement that the most suitable legal the Parliament was not entirely without protection be provided. Should not that protection in the matter of safeguarding its approach also be applied, when seeking to rights, powers or prerogatives. In the first remedy a similar gap in a provision, place, as provided for by Article 155 of the whenever the aim is to give institutions a EEC Treaty, the Commission has a duty to degree of legal protection similar to that ensure that the Parliament's prerogatives are enjoyed by individuals, and whenever that respected and must itself, if necessary, bring means that they must be able to defend their an action for annulment. Secondly, not only own rights, powers and prerogatives? It the Member States but also individuals may should also be noted that the association bring an action before the Court or have a concerned in Les Verts was a political party, request for a preliminary ruling submitted to in other words an association with a public it. I will not examine here the 'technical' law vocation, and that the rights at issue objections to that view. 26 I shall merely there were also not merely 'subjective point out that the legal protection that that rights', but claims to electoral funds. represents is limited and incomplete, inasmuch as the initiative for safeguarding the rights and prerogatives of the Parliament lies in the hands of the Commission, the Member States or indi- viduals; in other words, as regards the 12. In my view, a more convincing enforcement of its own rights the argument than the preceding observations is Parliament is subject to a sort of tutelage. That is a situation which I consider to be that in a community of law it must be highly unsatisfactory as regards the possible for anyone with the capacity to requirement of adequate legal protection. perform legal acts to assert their individual rights, powers and prerogatives themselves, as and when they see fit, before the courts. That appears to me to be a general principle of law, that is to say, the expression of the fundamental right to legal protection (as defined above, paragraph 6) which, as just indicated, extends to public authorities and institutions provided that the institutional 13. In support of their argument that the framework allows, as it does in the Parliament has the capacity to bring an European Community, conflicts regarding action for annulment, the institution's repre- the distribution of powers between the sentatives and those of the Commission institutions to be brought before the courts. rightly emphasized during the oral
26 — Read the comments by Thill referred to in footnote 14, at p. 387. In the absence of anything better, he mentions the possibility for the Parliament, by means of an action for failure to act brought against the Commission, to force that institution if necessary (that is, if it has failed to initiate one itself) to bring an action for annulment in I am aware that in saying that I am (in one order to safeguard the Parliament's rights and prero- limited, but important, respect — see gatives. That one must resort to such tortuous and, from the point of view of procedural economy, undesirable stratagems is sufficient to show that the Parliament should 25 — Sec footnote 18. be allowed to bring actions for annulment itself.
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procedure that if political negotiations have 14. I have already referred (in paragraph 6, been unsuccessful in settling a legal conflict above, in fine) to the fact that in the of powers, it is essential to be able to bring 'Comitology' case the Court did not reject the matter before the courts. In a the argument that the Parliament's prero- community such as the European one gatives should be protected by the courts. (especially since the adoption of the To that extent, what I suggest does not European Act), where there is a subtle conflict with the Court's previous judgment. balance between on the one hand the In fact for the reasons stated above I do not powers of the Community institutions as think that the approach suggested in that between themselves and on the other the judgment, of leaving to others the right to powers of the Community and of the obtain that protection by means of an action Member States, which gives rise, and will for annulment — that is, the most effective continue to give rise, to delicate questions form of legal protection — is a good regarding the distribution of powers, the solution. As I have already said that solution definitive resolution of such conflicts should would also encourage endeavours to find be a matter for the Court. Were the Court ways of bringing a conflict before the courts to decline such jurisdiction, even in part, it by other means, ways which would make would be failing in its duty as ultimate extreme interpretations (as in the case of an guardian of the law, a duty which the action for failure to act: above, paragraph Treaties have conferred on the Court, not 5) or undesirable distortions of the on the Commission (compare Article 164 procedure (footnote 26) unavoidable.
In my and the first indent of Article 155 of the view, the direct approach, according to EEC Treaty). which the Parliament should enjoy a limited right to bring proceedings under Article 173 of the EEC Treaty in order to safeguard its own rights, powers and prerogatives, is certainly the most acceptable one from the point of view of providing adequate legal protection and the administration of justice. It is also the only solution which can provide a complete remedy where there has been failure to fulfil an essential procedural The Commission's representatives were also requirement.
correct in pointing out that any other approach would be incompatible with the Commission's autonomous right of decision as to whether or not to initiate proceedings. It would also present the Commission with a conflict of interest whenever it was in disagreement with the Parliament as to the manner in which a conflict of powers was to be resolved: must it in such a case, in order to safeguard the Parliament's prerogatives, bring an action for annulment against the Council (or even against itself) challenging 15. For those reasons I have come to the a solution which it regards as correct and conclusion that the Parliament must be for which it may even have been recognized as having the capacity to bring
responsible? I do not think that that would an action for annulment before the Court be in the interests of the administration of under Article 173 of the EEC Treaty (or justice, which should avert conflicts of Article 146 of the EAEC Treaty) whenever interest. it is necessary to safeguard its rights, powers
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or prerogatives (see also paragraph 19, 17. The fact that under the second below). paragraph of Article 173 only legal (and natural) persons are entitled to bring actions and that only such persons are deemed to have general capacity — as distinct from the capacity to bring an action (see paragraph 8, above) — does not seem to me to constitute a real obstacle. There is, after all, in many The legal basis for the Parliament's capacity legal systems evidence of a general tendency to bring an action to interpret the concept of 'legal person' in a pragmatic way, allowing the courts to decide on the basis of the way in which positive law structures the legal sphere of a particular organ or institution that within a specific legal relationship that organ or institution has (to a greater or lesser degree) 16. The question which must be answered legal personality. now is whether the Parliament's capacity to bring an action under Article 173 to safeguard its rights, powers or privileges, in favour of which I have just argued, derives from the first or from the second paragraph of Article 173.
There is also clear evidence of that tendency in the case-law of this Court. As early as 1974, in Union syndicale,27 the Court held In favour of the first paragraph it may be that a staff trade union federation could not argued that it concerns the right of recourse be denied the capacity to bring an action, in of public law bodies (Member States and so far as its internal structure gave it the the Community institutions); in favour of necessary autonomy to be a responsible the second paragraph it may be said that it party to a legal relationship, and in so far as confers a limited right of recourse solely the union had been recognized by the where the applicant is directly concerned. Community institutions as a negotiating Let me say straight away that my preference party in consultations on collective staff is for the first paragraph of Article 173. The matters. On similar grounds the Court held Parliament can most appropriately be in Groupement des agences de voyages28 that assigned to the category of bodies of public a company in the course of formation, law having a locus standi who — even if they which under national law did not have legal are seeking to safeguard their own personality, could bring an action under the interests — do so for certain reasons of second paragraph of Article 173; and in general concern. However, I would first like Fediol I29 a trade union without legal to point out that in the light of the devel- personality was permitted to bring an action opment of the case-law of the Court of because the regulation which was being Justice the second paragraph of Article 173 27 — Judgment of 8 October 1974 in Case 175/73 Union is no less apt to found the Parliament's jus syndicale vCouncil [1974] ECR 917 standi. That will enable me best to explain 28 — Judgment of 28 October 1982 in Case 135/81 [1982] ECR 3799. how that jus standi is covered by the first 29 — Judgment of 4 October 1983 in Case 191/82 [1983] paragraph of Article 173. ECR 2913.
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challenged accorded to it a well-defined constituted the principal basis for deter- legal position. 30 mining who may bring an action for annulment: it applies in fact to those who have participated in the procedure which led to the adoption of the contested act. Thus in Timex the Court considered that regu- lations introducing an anti-dumping duty, in so far as they were applicable generally to Article 210 of the EEC Treaty, which states all the traders affected by the provisions, that the Community shall have legal were indeed 'legislative in nature and scope' personality, does not conflict with that but that at the same time such a regulation approach: it enables the Community to 'is a decision which is of direct and indi- claim legal personality within a limited vidual concern' to the applicant, having category of legal relationships, that is to regard to the part played by it in the say, in the international legal order. That procedure which led to the adoption of the article does not prevent the recognition of regulation. 3 2In a later case, Cofaz, 33this legal capacity, in the Community internal time to do with government aid, the Court legal order, for an institution or body which clarified its position in the following terms: has been given a specific legal position by rules of substantive, procedural or institu- tional law.
'Where a regulation accords applicant undertakings procedural guarantees entitling them to request the Commission to find an infringement of Community rules, those 18. A more serious objection to the use of undertakings should be able to institute the second paragraph of Article 173 is the proceedings in order to protect their requirement it lays down that the decision legitimate interests' (paragraph 23 of the or act challenged must be of direct and indi- decision). vidual concern to the applicant. Precisely on that point, however, there has been a marked change of emphasis in the case-law of the Court of Justice. In the past the requirement was always that persons other than those to whom a measure is addressed may claim to be individually concerned only In the light of those decisions it may be if the measure affected them personally in possible for the Parliament to rely on the the same way as the addressee by reason of second paragraph of Article 173. As I have certain attributes or circumstances special to pointed out already, however, that (limited) them. 3 1Subsequently, however, the Court right of action is also based on the explained, in cases concerning subsidies and requirement of legal protection necessary in dumping, competition and government aid, order to safeguard one's rights or powers, that the requirement of legal protection 32 — Judgment of 20 March 1985 in Case 264/82 [1985] ECR 30 — For further cases see the commentary by Mr Thill already 849, paragraphs 12 and 16. For a brief but accurate review referred to in footnote 14, at pp. 371 and 372. of the cases see R. Lauwaars and C. Timmermans, 31 — See for example the judgments of 15 July 1963 in Case Europees Gemeenschapsrecht in kort bestek, 1989, pp. 115 25/62 Plaumann [1963] ECR 925, at p. 107 and of 14 July to 118. 1983 in Case 231/82 Spijker [1983] ECR 2559, 33 — judgment of 28 January 1986 in Case 169/84 Cofaz v paragraph 8. Commission [1986] ECR 391.
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and in this case the Parliament is seeking to law. If the Court shares that preference, the defend its right of cooperation under Article result will be that a special 'category' of 100a(1). If in that context the Parliament Community institutions, that is to say, the argues that it was not sufficiently involved Parliament, must be included under that in the adoption of the regulation (the provision whose right to bring an action Parliament claims that it was entitled to may be exercised only for the purpose of cooperate, not merely to be consulted), then safeguarding their rights, powers or prero- it must be able to bring an action to protect gatives. In fact I do not see why that its 'legitimate interests', in the words of the 'restrictive' interpretation of the first judgment in Cofaz—just as the under- paragraph of Article 173 should present takings could, in the cases just discussed, in more difficulties than the 'extensive' one connection with 'procedural guarantees'. given by the Court to the second paragraph That also applies when the contested act is a of Article 173 in the cases discussed in the regulation which is also, as stated in Timex, preceding paragraph. at the same time a decision of direct and individual concern to the applicant in view of the part the latter is called upon to play in the procedure leading to the adoption of the regulation.
If that approach is adopted, there will certainly be difficulty — as often happens — in defining in practice the cases Admittedly, the cases just discussed in which the Parliament may be regarded as concerned undertakings which considered acting in order to safeguard its own sphere that their material interests had been of competence — even if there is no such harmed by the contents of the decision or difficulty in this case, I think, because it is by the refusal of the competent authorities clear that the Parliament's own interests are to initiate a procedure. It seems to me that affected by the alleged breach. If the Court for an institution of public law the breach of allows the Parliament's main action to an essential procedural requirement succeed, the Council will of course be affecting it is just as important or funda- obliged to have recourse to the procedure mental as is harm to the material interests of for cooperation with the Parliament; but an undertaking. there will certainly not always be such a direct interest in the annulment of a contested act. One has only to consider, for example, the possibility of the Parliament's arguing in a case that a Council regulation has no legal basis in the Treaty. 34 In the 'Comitology' case, too, as I have mentioned (paragraph 2, above), the Parliament's own 19. Although I am therefore of the opinion interest was not so evident. that the second paragraph of Article 173 may serve to provide the Parliament with a 34 — Another example of a case in which the Parliament's own jas standi, I nevertheless consider the first powers were not at issue is the case on the common transport policy (cited in footnote 5), in which the paragraph of Article 173 to be more appro- Parliament asked the Court (admittedly under Article 175 priate, inasmuch as that paragraph deals of the EEC Treaty) to declare that the Council's failure to introduce a common transport policy was in breach of the with the right of action of bodies of public Treaty.
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Conclusion
20. On those grounds I conclude that the Parliament's action must be declared admissible under Article 173 of the EEC Treaty and/or Article 146 of the EAEC Treaty, pursuant to the first (or alternatively the second) paragraph thereof. Costs should be reserved.
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