C-388/92

3. On 4 March 1987, the Commission sub­ mitted to the Council a proposal for a regu­ 6. The Parliament received the proposal for lation laying down the conditions under consultation on 17 March 1987, and, after which non-resident carriers might operate considering the report of its Committee on national road passenger transport services 2 Transport, on 21 January 1988 adopted four within a Member State. amendments concerning (i) the definition of 'non-regular services' (Article 1), (ii) the postponement of the date of the regulation's entry into force (Article 2), (iii) the imposi­ tion of penalties in the event of violations by 4. Following the Court's judgment of 22 the carrier (Article 4), and (iv) the obligation May 1985 in the case of Parliament v Coun- placed on Member States to notify the Com­ cil ('Common transport policy'), 3that Com­ mission of the measures taken in implemen­ 7 tation of the regulation (Article 5).

* Original language: French. 1 — That article has been amended by Article G(16) of the Treaty 4 — Third recital. on European Union. Transport now falls within the cooper­ ation procedure laid down by Article 189c of the EC Treaty. 5 — Article 2, my italics. 2 — COM(87) 31 final (OJ 1987 C 77, p. 13) 6 — See Article 3. 3 — Case 13/83 Parliament v Council [1985] ECR 1513. 7 — OJ 1988 C 49, pp. 85, 121, 122.

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7. Because the Commission opposed those moreover, the Parliament states that it asked amendments, the vote on the Parliament's 13 to be reconsulted. draft legislative resolution was postponed. Finally, at its session on 10 March 1988, the Parliament approved the Commission's pro­ posal subject to three compromise amend­ 8 9 ments. The resolution, it should be noted in passing, mentions that the Parliament 10. In contrast with the Commission's orig­ 'requests the Council to notify Parliament inal proposal, the regulation expressly pro­ 14 should it intend to make substantial modifi­ vides for 'gradual implementation' of free­ 10 cations to the Commission's proposal'. dom of access.

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of 1995, the Council may extend the being reconsulted. That omission affected the scope of the regulation to other passenger validity of the regulation, which should transport services (Article 12); therefore be annulled.

— The reference to national rules and regu­ lations is limited to a number of specific points expressly listed (Article 4); 13. Before examining the merits, it should be noted that the Council does not dispute the 15 admissibility of the action, as it did in Case 16 C-65/90. The Court's jurisdiction to hear actions for annulment brought by the Parlia­ ment to safeguard its prerogatives, which — The carrier must hold an authorization, 17 was first accepted in the Chernobyl case confirming that he is authorized to oper­ and then confirmed in the Treaty on Euro­ ate road passenger transport services 18 pean Union, is no longer in dispute. under the relevant community legislation, and must also keep a control document (Article 5 and Annex I, Article 6 and Annex II);

14. Indeed, the Court has held that '... the — The Commission may adopt safeguard Parliament's prerogatives include, in particu­ measures after consulting an Advisory lar, where so provided for in the treaties, par­ Committee (Articles 8 and 9); ticipation in the legislative drafting pro­ 19 cess' and that '... regular consultation of the Parliament is one of the means allowing the Parliament to participate effectively in 20 the Community's legislative process ...'.

'... [ C ] onsultation... is the means which allows the Parliament to play an actual part in the legislative process of the Community. 18. As the Parliament has rightly pointed Such power represents an essential factor in 2 out, 4 it followsthat reconsultation must the institutional balance intended by the take place on the basis of Objective criteria, Treaty. Although limited, it reflects at Com­ namely comparison of the two texts'. munity level the fundamental democratic principle that the peoples should take part in the exercise of power through the intermedi­ ary of a representative assembly. Due consul­ tation of the Parliament in the cases provided for by the Treaty therefore constitutes an essential formality disregard of which means 21 that the measure concerned is void.' 19. Let there be no doubt as to what is at stake in this case. To place an extreme restriction on the reconsultation requirement would result in excluding the Parliament from the legislative procedure in cases where 17. The obligation to reconsult the Parlia­ the text finally adopted differed in substance ment is not provided for by the Treaty. 22 from the text on which the Parliament had Nevertheless, the Court took the view that: already been consulted. On the other hand, to apply the reconsultation requirement gen­ erally would lead to a systematic second reading and confusion between the consulta­ 21 — Case 138/79 Roquette Frères v Council [1980] ECR 3333, tion and cooperation procedures. at paragraph 33 of the judgment; Case 139/79 Maizena v Council [1980] ECR 3393, at paragraph 34 of the judgment. 22 — In a resolution on relations between the Parliament and the Council adopted on 9 July 1981, the Parliament'urges the Council to repeat its consultation of Parliament under the legislative procedure whenever the Commission amends its 23 — Case C-65/90, referred to above, at paragraph 16. See also original proposal on which Parliament has already delivered the judgment in Case 41/69 ACF Chemiefarma v Commis- an opinion and such amendments have not been considered sion [1970] ECR 661, at paragraph 178, and the judgment in by Parliament' (OJ 1981 C 234, p . 52, at paragraph 11(b)). Case 817/79 Buyl v Commission [1982] ECR 245, at para­ See also Article 62 of the Rules of Procedure of the Parlia­ graph 23. ment. 24 — At paragraph 9 of its reply.

26 — Article 2(1). 25 — See paragraph 25 of the application and paragraphs 20, 21 and 22 of the reply. 27 — Article 9.

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26. As far as regular services are concerned, 30. As I said in my Opinion in Case the disputed regulation restricts the scope of C-65/90, the existence of a substantial differ­ cabotage operations to nothing more than ence between an initial proposal and the reg­ specialized services for carrying workers, ulation finally adopted may result not only school pupils and students in frontier zones. from amendments on procedure or sub­ Cabotage can be extended to other regular stance, but also from provisions having dis­ passenger transport services only by a new 29 appeared from the definitive text. Council regulation on a proposal from the Commission, the latter being obliged to report to the Council in that respect 28 before 31 December 1995.

31. As for regular services, I regard their near-exclusion, and hence the extreme reduc­ 27. Thus, as far as regular services are con­ tion in the material and geographical scope cerned, cabotage, except on a minimal basis, of the regulation, as amendments which is excluded from the scope of the regulation 'affect the very essence of the enactment and 30 until a new text is adopted. must therefore be regarded as substantial'. It should be noted, moreover, that the Coun­ cil has not attempted to prove that such near-exclusion does not constitute a substan­ 31 tial amendment.

28. Concerning non-regular services, the ini­ tial proposal envisaged, as in the case of regu­ lar services, that carriers should, within a short period, be allowed unlimited access to operate national shuttle or occasional ser­ vices. The regulation as adopted delays the liberalization of such services until 1 Janu­ 32. As for non-regular services, the Council ary 1996 and, until that date, restricts cabo­ was certainly entitled to postpone the date of tage services in that area to 'closed-door entry into force without reconsultation, as tours'. the Parliament had itself proposed in its first amendment. In that respect, a period of three years to effect a complete liberalization of non-regular cabotage transport services would not appear to be substantially differ-

34. In the case of passenger transport as in the case of road haulage, the initial proposal espoused the principle of unrestricted free­ dom to carry out cabotage operations. 40. In an attempt to argue that the regula­ tion adopted accorded with the wishes of the Parliament, the Spanish Government, which has intervened in support of the Council, relies, wrongly in my view, on the opinions expressed by a number of parliamentary 35. In the case of road haulage, that prin­ committees. According to the Spanish Gov­ ciple was restricted by a system of quotas and ernment, those committees had drawn the temporary authorizations. The Court has Parliament's attention to the need to 'moder­ already held such a restriction to be substan­ 33 ate the proposed liberalization measure' tial amendment in its judgment in Case before the resolution was adopted. C-65/90.

41. But those opinions are in no way bind­ 36. Here, the material and geographical ing on the Parliament itself. They do not scope of cabotage passenger operations is represent the 'wishes' of that institution, severely restricted. The Court should there­ which can only arise from its legislative res­ fore draw the same conclusions. olutions, or the amendments it proposes, as the case may be. Thus, in its judgment in Case C-65/90, when examining whether amendments put forward by the Council corresponded to the Parliament's wishes, the 37. But did those substantial amendments, as the Council maintains, correspond to the Parliament's wishes, making reconsultation 32 — See paragraphs 6 and 7 above. unnecessary? 33 — Statement in intervention, p. 8.

42. In an attempt to demonstrate that near- 45. Without calling in question the manda- exclusion of regular services did not warrant tory nature of fresh consultation in cases of reconsultation of the Parliament, the Council substantial amendment and thus the institu­ states, first, that that amendment corre­ tional equilibrium intended by the treaties, sponded to the Parliament's wish that cabo­ the Council cannot dispense itself from tage operations by road be introduced pro­ reconsulting the Parliament whenever, in its gressively, and that that wish is evidenced by view, the latter has already expressed its the opinions expressed concerning cabotage opinion in a related legislative procedure. road haulage services during the procedure 35 for adopting Regulation No 4059/89 and 3 then Regulation (EEC) No 3118/93, 6 which 37 replaced it. Thus, the amendment corre­ sponded to 'policy guidelines advocated by 38 the Parliament itself'. 46. It would thereby be acting as judge of the question of relatedness, appropriating to its advantage an assessment which belongs to the Parliament alone. Contrary to what it maintains, the Council cannot therefore be allowed to 'bring back up-to-date the opin­ 43. But is the Council entitled, in order to 39 ion of the Parliament'. avoid reconsultation in a given legislative procedure, to take account of the opinion expressed by the Parliament in connection with the adoption of a different text, on the pretext that it considers that text to be related? Or, in other words, can the Council decide of its own initiative that such an area 47. Moreover, such conduct would open the is related to another area, and that the Parlia­ way to inevitable divergences as soon as the ment's opinion in the first case is also valid Council adopted a wide interpretation of the in the second? concept of relatedness. Is the opinion expressed by the Parliament in the context of the adoption of a regulation on the transport 34 — Paragraph 19. of goods valid in the context of the adoption 35 — Referred to in note 16 above. of a regulation on the transport of passen­ 36 — Council Regulation (EEC) No 3118/93 of 25 October 1993 gers? Is it for the Council to be the judge of laying down the conditions under which non-resident car­ riers may operate national road haulage services within a that? Member State (OJ 1993 L 279, p. 1). 37 — Paragraph 22 of the defence. The Spanish Government makes the same argument at page 12 of its statement in intervention. 38 — Paragraph 31 of the defence. 39 — Paragraph 25 of the defence.

49. Thus, there is no room here for an 'ele­ mentary principle of economy in procedure' which, in the Spanish Government's submis­ 53. The autonomy and specific character of sion, would allow the Council to refer in cer­ those two sectors and the need to seek tain cases to the opinion of the Parliament appropriate solutions to the problems posed 42 expressed in a related legislative procedure. by each of them are sufficiently shown by the fact that (i) the Commission presented distinct proposals for the different types of road transport, and (ii) the solutions adopted, even though their effect in both areas is to limit the scope of cabotage, are 50. But there is another objection, relating nevertheless divergent. In the one area, cabo­ to the subject-matter. tage was restricted by the establishment of a Community quota system, and, in the other, by material and geographical limitations on the scope of the regulation.

51. Admittedly, the implementation of cabo­ tage in road haulage is not unconnected with its implementation in relation to passenger transport. Adopted under Article 75(1)(b) of 54. Only if the Parliament had expressly referred, in the procedure for adopting the regulation now in question, to an opinion 40 — Case 68/86 United Kingdom v Council [1988] ECR 855, at paragraph 38. expressed in another procedure, would the 41 — Opinion in Case C-316/91 Parliament v Council, referred Council be able to rely on the latter. Other­ to in note 20 above, at paragraph 25. 42 — Statement in intervention, p. 11. wise, it was under a duty to reconsult the

58. In that respect, the Council states that — the obligation to produce an authoriza­ the Parliament 'was aware of the major diffi­ tion (Article 5); culties, technical as well as political, that would be raised in drawing up common

44 — Paragraph 7 of the defence. 45 — Ibid., paragraph 8. 43 — End of paragraph 27 and paragraph 29 of the defence. 46 — Paragraph 25 of the application.

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— the obligation to produce a control doc­ 63. As for penalties, it will be noted that the ument (Article 6); Parliament proposed to introduce them in its amendment to Article 4 of the proposal.

— the introduction of safeguard measures with the setting up of an Advisory Com­ mittee (Articles 8 and 9); 64. The limitation of the application of national legal provisions to certain areas (Article 4) also corresponds to a wish of the 48 Parliament.

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67. It is time for me to sum up. 69. Such annulment concerns the text 'viewed as a whole' and must affect the entire regulation.

70. Finally, I propose that, until a new regu­ lation is adopted, the provisions of the annulled regulation should remain effective 68. In my opinion, the substantial amend­ in accordance with the second paragraph of ments I have identified affected 'the scheme Article 174 of the EC Treaty. To give full 5 of the proposed regulation as a whole' 0and effect to the annulment would, paradoxically, required the Parliament to be reconsulted. make any form of cabotage in passenger The failure to reconsult it constitutes an transport operations totally impossible, infringement of essential formal require­ whereas the very purpose of the regulation ments entailing annulment of the regulation. was to open up that market.

71. I therefore propose that

(1) Council Regulation (EEC) No 2454/92 of 23 July 1992 laying down the con­ ditions under which non-resident carriers may operate national road passenger transport services within a Member State should be annulled;