C-417/93

PARLIAMENT v COUNCIL

OPINION OF ADVOCATE GENERAL LÉGER delivered on 14 February 1995 *

1. By application lodged on 12 October 4. The TACIS assistance programme was 1993, the European Parliament (hereinafter established for 1991 and 1992 by Council 'the Parliament') seeks the annulment of Regulation (EEC, Euratom) No 2157/91 of Council Regulation (Euratom, EEC) No 15 July 1991. 2 2053/93 of 19 July 1993 concerning the pro­ vision of technical assistance to economic reform and recovery in the independent States of the former Soviet Union and Mon­ golia. 1 5. On 25 November 1992, the Commission adopted a proposal for a regulation [COM (92) 475 final] 3enabling the technical assis­ tance programme to the new independent States to be continued on the basis of indic­ 4 ative programmes for a three-year period. The legal basis of that proposal, like that of 2. The case seeks a ruling from the Court on Regulation No 2157/91, was Article 235 of two key questions in the relationship the EEC Treaty and Article 203 of the between the Parliament and the Council. Is EAEC Treaty. the requirement for genuine consultation of Parliament satisfied where the Council delib­ erates on a proposal for a Commission regu­ lation before the Parliament delivers its opin­ ion, and adopts that regulation four days after the latter's opinion? Can the Council 6. That proposal was sent by the Commis­ study the proposal and suggest amendments sion to the Council on 15 January 1993 and before the matter has even been referred to communicated to the Parliament for infor­ the Parliament for its opinion? mation on the same day.

9. On 12 March 1993, the President of the Parliament referred the proposal to the rele­ 13. On 16 June 1993, the Council again vant committees for consideration. requested that the urgent procedure be used, if necessary by convening an extraordinary session, so that the opinion could be deliv­ ered in June.

10. On 23 March 1993, the Council con­ firmed the step it had taken and sought to implement the urgent procedure provided for in Article 75 of the Rules of Procedure of the Parliament. 8That request was rejected 14. On 22 June 1993, the Parliament agreed on 20 April 1993. 9 to that request.

10 11. A draft report was considered on 15. After a final referral back to committee 26 April 1993 by the 'External Economic on 24 June 1993, the legislative resolution

5 — See the Council's replies to the written questions of the 11 — OJ 1993 C 176, p . 178. Court. 12 — Now Article 105(1) of the Rules of Procedure of the Parlia­ 6 — Ibidem. ment as amended by the Treaty on European Union (OJ 7 — Annex 2 to the application. 1993 C 268, p . 51). 8 — Annex 3 to the application. 13 — See OJ, Annex, No 3-431, Debates of the European Parlia- 9 — OJ 1993 C 150, p. 26. ment, 1993-1994 Session, p. 344, and OJ 1993 C 255, p . 81. 10 — Drawn up by the MEP Henry Chabert. 14 — OJ 1993 C 176, p . 152.

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— the Parliament should have been recon- 20. That indicates the importance for inter- sulted; institutional balance of respecting the Parlia­ ment's prerogatives in the consultation pro­ cedure, even if that procedure is no longer, since the Single European Act, the only means by which the Parliament can make its — Regulation No 2053/93 is unlawful in voice heard in the legislative process. that it provides that it may be amended at the Council's discretion, without the involvement of the Parliament. 16 —· Even though it does not have a right as such, the Commis­ sion is invited to attend sessions of the Council (Article 4(2) of the Rules of Procedure of the Council). That occurred in this case. 17 — Paragraph 16 of the Parliament's observations on the 15 — See OJ, Annex, No 3-433, Debates of the European Parlia- United Kingdom's statement of intervention in Case ment, 1993-1994 Session, p. 191 and OJ 1993 C 255, p. 81. C-65/93 Parliament v Council, pending.

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21. The case-law of the Court of Justice has similar provisions of the Treaty, is the means established three principles: which allows the Parliament to play an actual part in the legislative process of the Community. Such power represents an essential factor in the institutional balance intended by the Treaty. Although limited, it reflects at Community level the fundamental — consultation is an essential formality; democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assem­ bly. Due consultation of the Parliament in the cases provided for by the Treaty there­ — consultation must be genuine; fore constitutes an essential formality disre­ gard of which means that the measure con­ 19 cerned in void'.

the Parliament has expressed its opinion.' 28. It can be seen that consultation, where it The pure and simple rejection by the Parlia­ is required, gives rise to obligations both on 26 ment of the proposal is an opinion within the Council and on the Parliament. 23 the meaning of the Treaty.

29. Finally, the legislative process is not dis­ cretionary. It is not left to the discretion of 27 the Member States or the institutions:

26. The consultation must be genuine. It must be such as '... to affect the substance of 24 the measure adopted'. The Parliament must be able to influence the content of leg­ islative measures adopted by the Council. It 'In accordance with the balance of powers follows that the Council must await the Par­ between the institutions provided for by the liament's opinion before adopting the mea­ Treaties, the practice of the European Parlia­ sure. ment cannot deprive the other institutions of a prerogative granted to them by the Treaties 28 themselves'.

27. Even though the adoption of an opinion 30. The Court held in United Kingdom v 2 by the Parliament is not subject to any time Council '' that: constraints, I consider that its powers are not unlimited: in my view it follows from para­ graph 36 of the judgment in Roquette Frères ν Council, cited above, that the Council may act notwithstanding the absence of the Par­ liament's opinion if it establishes that it has '... the rules regarding the manner in which '... exhausted all the possibilities of obtaining the Community institutions arrive at their the preliminary opinion of the Parliament', if 25 the latter is not to be given a right of veto.

31. Those three principles illustrate the 34. Even though the powers of the Parlia­ application of a general principle of coopera- ment are not as extensive for the purposes of tion in good faith between institutions, based the consultation procedure as they are for on the fact that the latter are united in the the purposes of the budgetary procedure, attainment of the common objectives set by that dialogue is equally indispensable. That is the Treaty 31 and interlinked in the decision­ particularly so in the context of Article making process. 235 of the EEC Treaty which provides for the Council to legislate in areas in which the Treaty has not conferred on it the power to act. The parameters within which the legisla­ ture may act are not as clearly laid down there as they are, for example, in relation to the common agricultural policy to which the 32. That principle is present in Article 5 of consultation procedure also applies (Article the EEC Treaty which applies to the Mem­ 43(2) of the EEC Treaty). ber States — but which also imposes on the Community institutions reciprocal duties of cooperation in good faith with the Member 32 33 States — and in Article 162 of the Treaty which governs the relations between the Council and the Commission.

35. Has there been such a dialogue in this case?

B — May the Council deliberate on the pro- posal for the regulation before even sending 40. As early as 16 October 1973, in a com­ the request for the opinion to the Parliament? munication addressed to the Parliament, the Council undertook to facilitate the consulta­ tion procedure:

C — Has the Council in this case cooperated in good faith with the Parliament? 'The Council has adopted internal measures designed to ensure that the decision to con­ sult the European Parliament on a proposal from the Commission can be made within the shortest possible time (in principle one — A — week after receipt of the Commission pro­ posal) ... In addition, the Council has adopted internal measures designed to ensure that the opinions of the European Parliament 36 can be considered in the best conditions'.

37. May the Council deliberate on the Com­ mission's proposal before the Parliament has given its opinion? What are the Council's powers while awaiting the Parliament's opin­ ion? 41. From 1986, two trends were reflected in questions to the President by several Mem­ 37 bers of the European Parliament. On the one hand, it seems that the various Commis­ sion proposals are discussed simultaneously in the Council and the Parliamentary com­ mittees. It seems that such a practice is not 38. It is clear from Article 235 of the Treaty that the Council acts after consulting the Parliament on a proposal from the Commis­ 36 — European Parliament Bulletin, No 34/73 of 19 October sion. May it discuss the document before that 1973, pp. 4 and 5. consultation? 37 — See Annex 5 to the application.

38 — Wyatt and Dashwood, European Community Law, 1993, p . 37. 39 — Annex 5 to the application. — the inevitable delays in the procedure for 40 — See also Jacobs and Corbett: The European Parliament, consulting the Parliament; 1990, p. 166: 'The most serious difficulty for Parliament, however, arises where Council takes a decision "in princi­ ple" or "subject to Parliament's opinion" before this opin­ ion has been delivered (11 times in 1986, eight in 1987, 12 in 1988, seven in 1989).' 43 — See, on this point, the statements of the then President of 41 — Resolution on relations between the European Parliament the Council before the European Parliament on 9 October and the Council (OJ 1990 C 284, p. 58). 1990 (OJ, Annex, No 3-394, Debates of the European Par- 42 — OJ 1990 C 324, p. 125. liament, Session 90-91, p . 79).

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50. In order to ensure that the Parliament is 47. Such a practice is more fundamentally genuinely consulted, guarantees have been justified by legal reasons. established both by the Treaty and by the case-law of the Court of Justice and parlia­ mentary practice.

48. First, nothing requires the Council to abstain from acting until the Parliament's 44 opinion has been delivered. 51. Before adopting the opinion, the Commission in principle keeps the relevant

44 — The phenomenon also occurs at the first reading stage in the cooperation procedure: the Council bodies on the one hand and the Parliamentary committees on the other con­ 45 — Article 189b of the EC Treaty. sider legislative proposals at the same time. 46 — Article 189c of the EC Treaty.

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'[The Parliament] Stresses ... that practices 54. If the Council makes amendments to the introduced for the completion without delay proposal in the course of the preliminary of the internal market on 1 January 1993 discussions, the Commission may use its

50 — Which replaced Article 149(3) of the EEC Treaty, repealed by the Treaty on European Union. The Commission may 47 — See OJ, Annex, No 3-386, Debates of the European Parlia- also withdraw its proposal for a regulation. See point 6 of ment, 1990-1991 Session, p . 32; EC Bulletin, 1/2-1990, the resolution on the proposal for a Council Regulation on point 1.6.6, and EC Bulletin, 4-1990, point 1.6.1. the termination of service of officials of 10 October 48 — Case 114/81 [1982] ECR 3189. 1985 (OJ 1985 C 288, p. 103).

49 — See, for example, Case C-388/92 Parliament v Council, 51 — Op . cit., p . 47. cited in note 20 above. 52 — Cited in note 42 above, p. 127.

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1. If the committee responsible, during its examination of a Commission proposal, becomes aware that the Council intends to amend substantially this proposal, it shall formally ask the Commission 5. If, following a Commission declaration whether it intends to modify its proposal. under paragraph 4, the Council, notwith­ standing the position of the Commission, proceeds to a decision which substan­ 53 — OJ 1993 C 268, p. 66 (Rule 36G). tially modifies the original Commission

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proposal, the President of Parliament proposal, in my view undermines the consul­ shall remind the Council of its obligation tation procedure and turns it into a type of to consult Parliament again.' cooperation procedure.

57. Note that by the wording of that rule 61. Let me repeat, it is on the Commission's the Parliament implicitly accepts that the proposal that the opinion must be given, on Council may, before receiving the Parlia­ the understanding that the Parliament will be ment's opinion, debate a Commission pro­ informed of any substantial amendments to posal. that proposal which the Council may ini­ tiate, whether by a new Commission pro­ posal or by way of reconsultation.

58. The procedure laid down by that article in my view serves to safeguard the Parlia­ ment's prerogatives. Because the Commis­ 62. On the other hand, the Council's posi­ sion presents an amended proposal, the Par­ tion cannot be definitive and is necessarily liament will be consulted on a document subject to amendment for so long as the which takes account of any changes arising opinion of the Parliament has not been deliv­ 54 from negotiations within the Council and it ered. may exert a real influence on the latter's deliberations.

70. First, such a question would not arise if the Council sent the request for an opinion to the Parliament as soon as it received the Commission's proposal or before starting to 55 consider it. — B —

71. Secondly, since as I have shown the opinion of the Parliament concerns the 66. What is the position when the Council Commission proposal and not the latest ver­ deliberates on the Commission's proposal sion of the text being deliberated within the and amends it even before referring it to the Council, the Community rules of legislative Parliament? May it send the Parliament a procedure do not mean that the Council can­ request for consultation based on a text not start discussing the proposal before the which does not reflect its own most recent request for the opinion has even been sent, deliberations? provided that it always keeps open the option of modifying its provisional stance in the light of the Parliament's opinion. It cannot there­ fore at that stage adopt a definitive text.

55 — The Council undertook, in its communication of 16 Octo­ 67. The constitutional principle of coopera­ ber 1973, cited above, to do this within one week. The legal value and binding nature of that undertaking would he tion in good faith between institutions questionable even if its terms were not so vague. On that point, see J.-P. Jacqué: 'La pratique des institutions commu­ requires that the text of the proposal submit­ nautaires et le développement de la structure institutionelle ted to the Parliament for its opinion and that communautaire', in Die Dynamik des Europaischen Gemeinschaftsrechts — The dynamics of EC-law, R. Bieber considered by the Council be identical. and G. Ress, editors, 1987.

73. It accordingly seems exaggerated to 76. I consider that there was cooperation in claim that on 5 March 1993 the proposal '... good faith between institutions which gave

56 — See point 6 of the provisional report. 57 — Note 19 of the text of the regulation (version of 4 March 58 — Paragraph 15 of the application. 1993). 59 — Paragraph 4 of the reply.

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the Parliament the means of knowing the sion's representative at the debate. It Council's position on the principal points of was moreover the Council's position on 63 disagreement, given that: that question which led the Parliament 64 to deliver a negative opinion;

— it seems that the Council never had any — the Council was represented at the dis­ intention of dispensing with the opinion 60 cussion before the Parliament on 26 and of the European Parliament; 27 May 1993.

62 — Sir Leon Brittan stated at the debate on 26 May 1993: 60 — See the COREPER document of 1 April 1993, submitted to 'Finally I turn to the question of comitology. I want to the Court: 'Pending the Opinion of the European Parlia- make it quite clear that as far as the Commission is con­ ment, COREPER has examined the Commission proposal, cerned wc originally put forward the suggestion of a man­ with the following results. COREPER suggests that Coun­ agement committee. The Council has sought to insist on a cil confirm these results, with the proviso that it will he regulatory committee' (OJ 1993, Annex, No 3-431, Debates requested to give its final views once Parliament has deliv- of the European Parliament, 1993-1994 Session, p. 151). ered its Opinion' (emphasis added). 63 — Which was the only really contentious issue: see the state­ 61 — Sec paragraph 5 of the explanatory memorandum in the ment of 26 May 1993 of Rapporteur Chabert (OJ 1993, Chabert report, annexed to the Council's defence. Sec also Annex, No 3-431, Debates of the European Parliament, the Rapporteur's statement during the debate on 24 June 1993-1994 Session, p. 177). 1993 (OJ 1993, Annex, No 3-432, Debates of the European 64 — See the statement of Rapporteur Chabert at the debate on Parliament, 1993-1994 Session, p. 323). 14 July 1993 (OJ 1993, Annex, No 3-433, pp. 190 and 191).

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proposal. The Council could not have that its prerogatives were not infringed, pro­ departed from it except unanimously. vided that the amendments decided on by The Parliament preferred to deliver an the Council were not substantial, in which opinion which simply rejected the Com­ case reconsultation was required. That is pre­ mission's proposal outright; cisely the subject matter of the second plea in law.

78. I accordingly consider that the consulta­ '... the duty to consult the European Parlia­ tion of the Parliament was not fictitious and ment in the course of the legislative proce­ dure, in the cases provided for by the Treaty, includes a requirement that the Parliament be reconsulted on each occasion when the 65 — The Commission's representative had moreover announced, during the parliamentary debates, that he was prepared to text finally adopted, viewed as a whole, incorporate most of the Parliament's amendments (OJ 1993, departs substantially from the text on which Annex, No 3-431, Debates of the European Parliament, 1993-1994 Session, p. 175). On the crucial role of 'Parlia­ the Parliament has already been consulted, ment's advocate; which the Commission may play in the consultation procedure, see P. Raworth: 'A Timid Step For­ except where the amendments essentially wards: Maastricht and the Democratisation of the European correspond to the wish of the Parliament Community' 19 European Law Review (1994) 16, 20. 69 66 — Article 189a(1) of the Treaty. itself'. 67 — Joint Declaration of the European Parliament, the Council and the Commission (OJ 1975 C 89, p . 1). See also Article 63 of the Rules of Procedure of the Parliament. 68 — Resolution closing the procedure for consultation of the European Parliament on the proposal from the Commis­ 69 — Paragraph 16 of the judgment in Case C-388/92 Parliament sion of the European Communities to the Council for a v Council, cited in note 20 above. See also the judgments in Regulation laying down the procedures for the exercise of Case 41/69 ACF Chemiefarma v Commission [1970] ECR implementing powers conferred on the Commission (OJ 661, paragraph 178, and Case 817/79 Buyl and Others v 1986 C 297, p . 94, paragraph 4). Commission [1982] ECR 245, paragraphs 16 and 23.

83. On the second point, the addition of Annex II did not require a fresh consultation 81. The first point is a technical provision of the Parliament. Annex II lists 'in particu­ intended to prevent Mongolia from falling 74 lar' the 'indicative' areas which are priority simultaneously within the scope of financial and technical aid under Regulation (EEC) 7 No 443/92 0 and TACIS assistance. That 71 — Sec the Council's defence, paragraph 21. 72 — Annex to the Council's defence. See the letter from the president of the Budget Committee to the president of the HEX committee dated 20 April 1993 and its proposed 70 — Council Regulation of 25 February 1992 on financial and amendment no 7. technical assistance to, and economic cooperation with, the developing countries in Asia and Latin America (OJ 1992 73 — Ibidem. L 52, p. 1). 74 — Article 4(3) of Regulation No 2053/93.

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subjects for technical assistance. That list is tion amounts to altering the method of defin- by way of example and is not exhaustive. It ing the material scope of the regulation. Even replaces Article 3(3) of the Commission pro­ though Annex II cites by way of example posal which provided: more areas, it does not substantially modify the scope. It is a 'change of method rather than of substance', within the meaning of paragraph 23 of the judgment in Buyl and Others v Commission, cited above.

'Technical assistance shall give priority to the fields of human resources development; sup­ port for enterprises, including financial ser­ vices; food production, distribution and mar­ keting; energy and transport'.

89. Article 8 of Regulation No 2053/93 pro­ by acting unanimously. They have in com- vides for a type 111(a) regulatory committee: mon the fact that in the absence of a decision if the committee gives no opinion or a nega­ by the Council, executive power returns to tive opinion, the Commission is obliged to the Commission which is to act. transform its draft into a proposal to the Council. If the latter takes no decision, the Commission becomes competent again and transforms its proposal into a decision.

93. I conclude that there are no differences between the type 11(b) management commit­ tee and the type 111(a) regulatory committee 90. There is, in my view, a substantial differ­ which could be described as substantial ence between the committee of an advisory amendments of the regulation reaching '... 78 nature in Procedure I and the committees the very heart of the rules enacted ...'. provided for by Procedures II and III, since the first excludes any decision-making power of the Council.

94. I accordingly consider that there was no substantial amendment of the Commission's 91. There is also a substantial difference proposal in the regulation finally adopted. between committees of type 11(a), 11(b) and 111(a) on the one hand and type 111(b) on the other. The latter procedure alone can lead to a deadlock, since the Council can block any decision by simple majority.

95. There was no other reason requiring the Parliament to be reconsulted. It is essential to note at this point that the Council's pro­ posal to introduce a type III committee was 92. On the other hand, the type 11(a), 11(b) known to the Parliament 79 and that the and 111(a) procedures differ from one another only on minor points, such as time- limits, and by virtue of the fact that, in the latter case, the Council's decision is taken on 77 — Sec on this point C. Blumann: Dictionnaire juridique des Communautés européennes, A. Barav and C. Philip, editors, the Commission's proposal, which strength­ Comitology, p. 197.

80 — See the drafts of amendment no 18 of the REX committee report and no 7 of the opinion of the committee for bud­ getary control and points 4 and 5 of the explanatory mem­ orandum of the REX committee report. 81 — See the statement by Mr Nielsen, MEP: 'As for the manage­ 101. The Parliament submits that respect for ment committee, it is far too bureaucratic and impenetrable. its prerogatives requires that it be consulted Let us get a consultative committee going which will be able to speed and streamline the decision-making process as before such a revision is adopted, since it is a well as the practical implementation of the projects' (OJ 1993, Annex, No 3-431, Debutes of the European Parlia- regulation based on Article 235 of the Treaty. ment, 1993-1994 session, p . 160). See also the statement by Rapporteur Chabert during the debate (OJ 1993, Annex, No 3-431, Debates of the European Parliament, 1993- 1994 Session, p . 169). 82 — Ibidem, p . 177. 83 — Paragraph 36 of the application.

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102. There is a certain hierarchy within sions concerning the common agricultural Community legislation. Basic regulations policy: adopted directly pursuant to procedures laid down by the Treaty must be contrasted with regulations for implementation or execution adopted either by the Commission with the authorization of the Council by virtue of the third indent of Article 155 of the EEC Treaty or by the Council itself by virtue of the third indent of Article 145 thereof. The procedure for the adoption of such regula­ tions is laid down by the basic regulation.

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105. The Court has held, in relation to that 108. The Parliament is represented neither article, that it follows from the context of the on the committees which are involved within Treaty in which it must be placed and also the Commission nor in certain procedures from practical requirements that the concept by which the Council reserves implementing of implementation must be given a wide powers, such as that provided for in Article 87 interpretation. 7 of Regulation No 2053/93. That system is not without logic. While it is normal for the Parliament to be '... consulted each time that a political option is defined, it is also obvious that it has no role where a simple manage­ 91 ment measure is taken'. The ancillary or subordinate character of the implementing procedure justifies less formality in deciding 106. The delegation to the Commission of on it. The possibility of delegating is thus the power to adopt implementing regulations one element in the balance of power between is also common in the field of public con­ the Parliament and the other institutions 88 tracts. which may find in it a way of excluding the 92 Parliament from the legislative process. 93 Thus from as early as 1967 the Parliament sought to be consulted on all instruments made pursuant to basic regulations which significantly affect the political, economic or legal effects of those regulations. In a resolu­ tion relating to the Community procedures 107. The Single European Act, by amending for implementing secondary Community Article 145 of the Treaty, limited the Coun­ 94 legislation, the Parliament called for a cil's power to confer implementing powers strict limitation of the powers of committees, on itself: 'bodies not provided for by the Treaty'.

114. In both cases, the procedure for revis­ ing the threshold excluding the Parliament 110. But, specifically, does Article 7 of the did not feature in the Commission proposal regulation at issue concern procedures for and was added by the Council. implementing or applying the basic regula­ tion or does it affect the fundamental princi­ ples underlying that instrument?

115. The power delegated to the Council affects only the procedures for awarding ser­ vice contracts. Admittedly, the choice of the 111. Is setting the threshold above which procedure comprising direct agreement and service contracts cannot be awarded by restricted invitations to tender enables the restricted invitations to tender or by private decision-making progress to be speeded up treaty a procedure for implementing or and the reduction of the threshold below applying Regulation No 2053/93? which the Commission may deal by direct agreement makes the system more efficient. However, the second subparagraph of Arti­ cle 7(2) calls in question neither the princi­ ples nor the scheme of the regulation and 112. I have two points to make on this. does not go beyond 'implementing pow­ 96 ers', which alone may be delegated.

113. The second subparagraph of Article 7(2) of Regulation No 2053/93 was included 116. The third plea in law must therefore in the former Regulation No 2157/91 which also be rejected.

117. I accordingly conclude that the application should be dismissed in whole .

95 — Second subparagraph of Article 6(2). 96 — Article 145 of the EC Treaty.

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