C-65/93

PARLIAMENT v COUNCIL

OPINION OF ADVOCATE GENERAL TESAURO delivered on 13 December 1994 *

1. In this action, the European Parliament At issue therefore is the institutional balance seeks the annulment of Council Regulation intended by the Treaty, which requires that, (EEC) No 3917/92 of 21 December in exercising its own powers, an institution 1992 extending into 1993 the application of must respect the limits on those attributed to Regulations (EEC) Nos 3831/90, 3832/90, the other institutions. 3833/90, 3834/90, 3835/90 and 3900/91 applying generalized tariff prefer­ ences for 1991 in respect of certain products originating in developing countries, and add­ ing to the list of beneficiaries of such prefer­ ences, ' on the ground that it was adopted without first consulting the Parliament as required by the Treaty. 2. For a better understanding of the parties' arguments, it will be helpful to recall briefly how, and in accordance with what timescale, the regulation in question came to be adopted.

4. At the Parliament's sitting of 30 October 1992 the proposal was referred to the Com­ mittee on Development for detailed consid­ eration and to four other committees for 3. In that context, the Commission pro­ their opinion. posed to the Council, once again, that the system in force be extended until 31 Decem­ ber 1993. However, the proposal included a number of new countries in the list of bene­ ficiaries, partly in order to take account of developments in the former USSR, and partly to align the Community list of the least developed countries with that of the United Nations. In view of the introduction On 17 November 1992 the Parliament of the single market, the Commission also decided in plenary session to debate the pro­ suggested replacing the tariff quotas divided posal as a matter of urgency, and to consider among the Member States by fixed duty-free it on 20 November 1992. On that date, how­ amounts for the whole Community. ever, the Chairman of the Committee on Development took the view, in particular, that the entry of East European countries on the list of beneficiaries of generalized prefer­ ences significantly altered the Community concept of developing countries and requested that the proposal be referred back to committee for further examination.

Consideration of the Committee on Devel­ preferences must be adopted sufficiently opment's report was thus placed on the early to enable it to enter into force on agenda for the plenary session of 18 Decem- 1 January 1993; ber 1992. At that session, however, before discussion of the matter had started, the President received a request for the sitting to be adjourned pursuant to Rule 106 of the 3 Rules of Procedure. Parliament agreed to the request, with the result that discussion of the remaining matters on the agenda, includ­ Whereas it appears, after consultation of the ing the resolution proposed by the Commit­ President of the European Parliament, that it tee on Development, was postponed until would be impossible to hold an extraordi­ 18 January 1993. nary session of the European Parliament to enable it to adopt its opinion in good time to allow the adoption and publication of the regulation before the end of 1992;

5. It became clear in the consultations which followed between the offices of the General Secretary of the Council and the President of the Parliament that it would be impossible to Whereas, in these exceptional circumstances, convene an extraordinary session of the Par­ the regulation should be adopted in the liament before the end of 1992. On absence of an opinion of the European Par­ 21 December 1992, therefore, the Council liament'. adopted the contested regulation, stating the reasons for failure to consult the Parliament in the following terms:

7. Finally, the regulation in question was First, the Council purported to set a time- published in the Official Journal of the Euro- limit on the consultation period without pean Communities No L 396 of 31 Decem­ being empowered to do so by the relevant ber 1992, but the Journal was not in fact provisions of the Treaty. That was certainly issued by the Publications Office until not the purpose of the facility granted to the 28 January 1993. It is to the latter date, Council to request the Parliament to exam­ therefore, that reference must be made for its ine a proposal under the urgency procedure entry into force. However, it was from 1 Janu­ by virtue of Rule 75 of its internal rules, or ary 1993 that the regulation was made to to convene an extraordinary session under take effect. Article 139 of the Treaty. In both cases, the Parliament's right to assess the situation dif­ ferently from the Council and to find that alleged grounds of urgency do not exist remain unaffected. It is, moreover, beyond dispute that no time-limit is fixed for the for­ mulation of the opinion and, therefore, there 8. In the light of the above, the Parliament is no obligation on the Parliament to act seeks the annulment of the contested regula­ within the time indicated or to do so in an tion. In support of its claim, it first cites the extraordinary session. 'Isoglucose' cases, which state that the obli­ gation to consult the Parliament, where pro­ vision for such consultation is made, is 'con­ stitutional' in character, inasmuch as it represents an essential factor in the institu­ 4 tional balance intended by the Treaty. Con­ sultation of the Parliament therefore consti­ tutes an essential 'formal' requirement, disregard of which renders the measure adopted void. In that regard, the judgments state that 'observance of that requirement implies that the Parliament has expressed its opinion. It is impossible to take the view that the requirement is satisfied by the Council's 5 simply asking for the opinion.' 10. In the present case, moreover, the Coun­ cil has not even demonstrated that action was urgent in order to avoid a legal vacuum. In fact there was no obligation to adopt the contested regulation before the end of 1992, as the defendant alleges. The suspension, under the generalized preference system, of 9. The Parliament bases its contentions on customs duties laid down in the Common two lines of argument in particular. Customs Tariff, is merely an option which the Community may exercise in favour of developing countries, but without being legally obliged to do so. That is confirmed 4 — The two judgments in question are those in Case by the preamble to the four main regulations 138/79 Roquette Frères v Council [1980] ECR 3333, espe­ cially paragraphs 32 to 37, and Case 139/79 Maizena v of 1990 that were extended, which stress the Coimai [1980] ECR 3393, especially paragraphs 33 to 38. 'temporary and non-binding nature of the 5 — Ibid., paragraphs 33-34 and 34-35 respectively.

12. Turning to the Parliament's second line 6 — See the fifth recital in the preamble to Council Regulation (EEC) No 3831/90 of 20 December 1990 applying general­ of argument, the Council maintains that the ized tariff preferences for 1991 in respect of certain industrial urgency and the need to act before a certain products originating in developing countries (OJ 1990 L 370, p . 1); the fifth recital in the preamble to Council Regulation date are apparent from the fact that a regula­ (EEC) No 3832/90 of 20 December 1990 applying general­ ized tariff preferences for 1991 in respect oftextile products tion establishing general preferences originating in developing countries (OJ 1990 L 370, p. 39); the fourth recital in the preamble to Council Regulation produces three-way effects: in relation to (EEC) No 3833/90 of 20 December 1990 applying general­ developing countries, for which the system ized tariff preferences for 1991 in respect of certain agricul­ tural products originating in developing countries (OJ constitutes the principal means of aid in 1990 L 370, p. 86); and the eighth recital in the preamble to Council Regulation (EEC) No 3834/90 of 20 December the field of trade; in relation to economic 1990 reducing for 1991 the levies on certain agricultural operators in Member States, who use the products originating in developing countries (OJ 1990 L 370, p. 121). quantitative limits laid down therein when 7 — In its rejoinder, the Council raises doubts as to the need to importing from those countries and who consult the Parliament in the present case, inasmuch as, since the regulation fell solely within the Community's commer­ base their commercial organization also on cial policy, it ought properly to have been based on Article their ability to use the preferences from 113 of the Treaty alone. However, without entering into the merits of the question, I do not believe that a problem con­ cerning the legal basis of die regulation may be raised by the Council at this stage of the proceedings, especially since ref­ erence to Article 43 was already made in the proposal which the Council itself submitted for consultation. 8 — See footnote 4.

A legal vacuum in the Community system of generalized preferences, resulting from any delay in adopting the measure providing for them, would therefore cause tangible damage to the exports of beneficiary non-member countries and also to economic operators in 15. In the first place, I do not think argu­ the Member States, who would be deprived ments in favour of the Council can be of a legal instrument on which they were deduced from the 'Isoglucose' judgments, entitled to rely in planning their activities. which have frequently been referred to. On That could involve the Council in liability, that occasion, the Court was emphatic that or at least leave it open to a declaration of the consultation procedure, where provided failure to act. Moreover, as already indicated for by the Treaty, 'is the means which allows in the preamble to the regulation, a legal the Parliament to play an actual part in the vacuum of that kind would also risk legislative process of the Community. (...) seriously harming the Community's Although limited, it reflects at Community relations with the developing countries. level the fundamental democratic principle that the peoples should take part in the exer­ cise of power through the intermediary of a 9 representative assembly.'

13. Finally, the Council does not consider it would have been appropriate, as the Parlia­ ment suggests, to renew the existing Having thus established that consultation is 1992 scheme, without amendment, for a an essential formal requirement, as has short period pending its opinion. Such a already been noted above, the Court did not renewal, even for a short time, would have find it necessary in the circumstances of the been possible only on a proposal by the case to examine the validity of the Council's Commission and on the same legal bases as those used for the final regulation, and would, likewise, have necessitated consulta­ 9 — Judgments in Roquette Frères and Maizena, cited above, tion with the Parliament. paragraphs 33 and 34 respectively.

In that context, the Court has acknowledged that participation in the Community legisla­ 16. The 'Isoglucose' judgments clearly stated tive process, in the cases provided for and in that compliance with the obligation to con­ the forms laid down by the Treaty, comes sult the Parliament in the cases prescribed by within the Parliament's prerogatives, and has the Treaty implies that a lawful measure can­ therefore attributed to the Parliament the not be adopted unless an opinion on it is power to bring an action for the annulment obtained first. The question whether, in of a measure adopted by the Council and the exceptional circumstances such as the need Commission in breach of those preroga­ 13 for urgent action or a refusal to give the tives. The latter are infringed particularly if opinion requested, the Council is authorized the Council adopts a measure on a legal basis to adopt a given measure without awaiting which does not provide for prior consulta­ the outcome of the consultation 11has also tion of the Parliament, whereas the measure been answered sufficiently clearly in the sub­ concerned should have been adopted under a sequent case-law of the Court. provision of the Treaty which provides for such consultation. In such a case, it is irrele­ vant that optional consultation may never­ theless have taken place, since compliance with the procedure provided for by the Treaty may in no circumstances be left to the discretion of the institution enacting the 4 17. Let me recall, first, the judgment in Case measure. 1 1 68/86 United Kingdom v Council, 2 where the Court held that it was not possible, by a directive, to alter the provisions concerning the Council's detailed voting procedures in order subsequently to adopt a series of mea­ 18. With the same end in view, namely the constitutional safeguarding of the specific 10 — Ibid., paragraph 36. My italics. 11 — Even those authors who arc inclined to attribute such power to the Council recognize that the 'Isoglucosc' judg­ ments leave the question open: see, in that respect, Wyatt & 13 — Judgment in Case C-70/88 Parliament v Council [19901 Dashwood: 'European Community Law', London, 1993, I-2041. pp. 37 and 38. 14 — Judgment in Case C-316/91 Parliament v Coimai [1994] 12 — [1988] ECR 855, especially paragraphs 37 and 38. ECR I-625, especially paragraphs 12 to 17.

19. The central feature of this case-law, To accept the Council's argument in this which is quite unambiguous, is the Court's case, namely that it be given the power, even constant attention to the rigorous preserva­ if only in exceptional cases, to adopt a regu­ tion of the institutional balance, as it has lation without the prescribed opinion of the gradually evolved following amendments to Parliament, would in practice be to permit a the original text of the treaties. It is precisely derogation from the rules on the formation in order to ensure that balance, by means of of Community acts without provision for it an adequate and consistent system of legal being made in the Treaty, and thus to permit protection, taking particular account of the an alteration in the institutional balance out­ progressive strengthening of the Parliament's side the procedures and forms laid down for role, especially in the legislative process, that revision of the 'constitutional charter'. The the Court has repeatedly affirmed the latter's 17 rules are of course capable of change, and right to bring legal proceedings. special mechanisms might be introduced to allow legislation to be passed as a matter of urgency; since, however, as the Court has 15 — Judgment in Case C-65/90 Parliament v Council [1992] repeated with growing emphasis, this is a ECR I-4593, paragraph 16. For earlier authority, see the Community based on the rule of law, I con- judgment in Case 817/79 Buyl [1982] ECR 245, paragraphs 14 to 24. 16 — See the Opinion of Advocate General Jacobs in Case C-316/91 Parliament v Council, cited in footnote 14 above. 17 — Since the case-law is well-known, I refer here only to the judgment in Case 13/83 Parliament v Council [1985] ECR 18 — See the judgment in Case 294/83 Les Verts v Parliament 1513, which recognized the Parliament's right to bring an [1986] ECR 1339, especially paragraphs 23 and 24. That action under Article 175 for failure to act, and the judgment principle has often been repeated by the Court: see most in Case C-70/88, cited in footnote 13 above, in which, as recently, and with reference to the Parliament, the judgment already stated, the Parliament was allowed to bring an in Case C-314/91 Weber v Parliament [1993] 1-1093, para­ action for annulment under Article 173. graph 8.

sider that such an alteration of the rules is a the aim of that procedure is to strengthen the matter for the constitutional legislature Parliament's participation in the Community alone. legislative process, it would be paradoxical to allow a situation in which, within the sphere of mere consultation, the Parliament ended up wielding a more decisive power of inter­ vention, capable in fact of blocking an act, precisely because of the impossibility of imposing a time-limit on such consultation. 21. Significantly, such a possibility is today expressly provided for by Article 228 of the Treaty, but as a result of a change introduced by the Treaty on European Union; hence­ forth, when an opinion is to be formulated on an international agreement, the Council may impose a time-limit on the Parliament, according to the urgency of the matter; if the I would merely observe, as the Parliament time-limit passes without such opinion being has rightly objected, that the comparison can given, the Council may act. The point to at most be made between the consultation note is that the attribution of such a power procedure and the first stage of the coopera­ in a specific case in fact required the revision tion procedure, in the course of which the of the corresponding provision in the Treaty. Parliament is called upon to express its opin­ ion on the Commission's proposal; in that regard, significantly, no time-limit has been laid down. In the second stage, which has particular characteristics of its own, all the institutions are, by contrast, required to comply with a time-limit for their delibera­ 22. Nor am I swayed by the United King­ tions, including the Council, 20 whose failure dom's argument, to the effect that the system to take a decision within the prescribed time- makes it possible to impose a time-limit on limit entails 'non-adoption' of the act. the Parliament for the formulation of its opinion in the context of the consultation procedure. The United Kingdom argues that, when the cooperation procedure under Arti­ cle 149(2) and (3) of the Treaty (now Article 189c, following amendments introduced by the Maastricht Treaty) is to be applied, the Council may definitively adopt an act if the 23. That does not mean that the Council has Parliament has not taken a decision within no possibility of invoking any sanctions three months of the communication to it of against the Parliament's failure to act. An the common position of the Council. Since

In that respect, the Council argues that any delay in acting would have created a legal vacuum in the Community system of gener­ alized tariff preferences, which has always I do not thereby intend to deny that, in cases been renewed since its first application in of urgency, such a remedy might prove inef­ 1971, and would also have been incompatible fective. As I have already said, however, a with the principle of legal certainty. different solution would require an amend­ ment of the rules which govern the balance between the institutions, and which the Court has always held, and rightly held, to have constitutional force. Such an amend­ ment is therefore a matter for the legislature, and not for the Court.

27. Nor would the situation be any different if the Community were deemed to be inter­ nationally obliged to apply the tariff prefer­ ences to certain developing countries. In the first place, the Council itself recognizes that there is no legal obligation here in the strict 26. In my view, the Council's arguments on sense. In addition, the regulations which the that point are entirely lacking in substance. contested regulation was to extend expressly Whilst they doubtless serve to illustrate the provide that the system is not binding. 23

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certainty or of legitimate expectations have already said, mean only that the Com­ required the contested act to be adopted by a mon Customs Tariff applied. Moreover, non- certain date. In that regard, as already men­ adoption or delayed adoption of the con­ tioned, the Council argues that the economic tested regulation would not in any way have operators concerned and the beneficiary called into question situations and relation­ countries had good reason to expect that the ships regulated under the scheme previously scheme of generalized preferences would be in force, any more than, on the occasion of extended for 1993. There was nothing to previous extensions, it arose on the removal suggest that the system might be dismantled of any given country from the list of benefi­ or blocked without warning. Moreover, ciaries in relation to wholly or partially whilst tariff preferences are capable of sus­ duty-free exports of products which it had pension or modification at any time, a situa­ made before such removal. tion which economic operators could cer­ tainly not have expected to have to face, according to the Council, was that which threatened to arise at the beginning of 1993, namely a situation of uncertainty as to the date on which the contested regulation would enter into force and as to the possibil­ ity of making the necessary customs declara­ tions.

31. It has therefore not been proven that overriding urgency dictated that the con­ tested regulation should be adopted by a cer­ tain date and thus entitled the Council not to await the outcome of the consultation with 32. The Council's counter-argument, to the the Parliament. Moreover, whilst it is not effect that subsequent regularization of cus­ without significance that the Council would toms declarations made in the period in any event have been able to request the between 1 January and the date of the regu­ convening of an extraordinary session of the lation's actual entry into force would pose same Parliament for the beginning of Janu­ insurmountable technical and legal problems, ary 1993, the latter gave the opinion is belied by the fact that that is precisely requested with a 'delay' of only three weeks what has happened in practice; the regulation anyway. was not published and distributed until 28 January 1993. The Court has consistently held that 'a regulation must be regarded as published throughout the Community on the date borne by the issue of the Official Journal containing the text of that regulation. However, should evidence be produced that the date on which an issue was in fact avail­ able does not correspond to the date which That raises a decisive point. Even accepting appears on that issue, regard must be had to 27 the need (or the expediency) for the regula­ the date of actual publication.' It is there­ tion to enter into force on 1 January 1993, it fore indisputable that the application of the would have been quite possible, in compli­ act in question has in any case been retroac­ ance with the procedures laid down by the tive. Nor does it seem to me that those Treaty, for it to take effect from that date. 'insurmountable' difficulties in regularizing Although, generally speaking, the principle customs declarations after the event could of legal certainty precludes a Community measure from talcing effect from a point in

At the end of the day, the act had to be given 33. Moreover, the circumstance just referred retrospective effect anyway, a solution which to is significant for a further reason, and could well have been adopted so as to illustrates the paradoxical nature of the situa­ respect the constitutional prerogatives of the tion on which the Court is asked to give a Parliament as well, and not just to comply ruling. It would be unreasonable if overrid­ with the timetable for printing. ing urgency and the need to safeguard a fun­ damental Community interest enabled the Council to adopt a regulation in breach of the Parliament's 'constitutional' prerogatives, whilst, at the same time, those same condi­ tions were not imposed on the administra­ tion entrusted with the publication of acts, which may instead quietly proceed with their publication a month after the date, 34. In the event of the Court annulling the alleged to be 'imperative', on which the regu­ regulation in question, I consider neverthe­ lation in question was adopted and entered less that it should make use of its power into force. under the second paragraph of Article 174 of the Treaty, whereby, if it considers it appro­ priate to do so, it may state 'which of the effects of the regulation which it has declared void shall be considered as definitive'. Since the validity of the contested regulation was limited to 1993, the remedy for procedural defects in the formulation of the act is annul­ ment, but the opinion actually given shows In short, the circumstances of this case bor­ that the Parliament also agreed with the sub­ der on the farcical. Let the facts, pure and stance of the measures adopted, I consider simple, speak for themselves. We are told that overriding considerations of legal cer­ that the act — which, it should be noted, is tainty preclude implementing measures taken not a mere routine measure, but contains an on the basis of that regulation from being amendment to the class of the system's ben­ 28 called into question. eficiaries which is of clear political signifi­ cance — must enter into force on 1 January and no later, and that to that categorical imperative nothing less than obligatory con­ 28 — See the judgment in Joined Cases C-38/90 and sultation of the Parliament, which the Court C-151/90 Lomas and Others [1992] ECR 1-1781, para­ graphs 23 and 24, and the judgment in Case C-65/90 Par- has held to have constitutional force, has to liament v Council [1992] ECR 1-4593, paragraphs 22 to 24.

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