C-360/93

PARLIAMENT ν COUNCIL

J U D G M E N T O F T H E COURT (Sixth Chamber) 7 March 1996 *

In Case C-360/93,

European Parliament, represented by Johann Schoo and José Luis Rufas Quin- tana, of its Legal Service, acting as Agents, with an address for service in Luxem- bourg at the General Secretariat of the European Parliament, Kirchberg,

applicant,

ν

JUDGMENT OF 7. 3. 1996 — CASE C-360/93

and by

United Kingdom of Great Britain and Northern Ireland, represented by John E. Collins, of the Treasury Solicitor's Department, acting as Agent, with an address for service at the British Embassy, 14 Boulevard Roosevelt,

interveners,

APPLICATION for the annulment of Council Decision 93/323/EEC of 10 May 1993 concerning the conclusion of an Agreement in the form of a Memorandum of Understanding between the European Economic Community and the United States of America on government procurement (OJ 1993 L 125, p. 1) and Council Decision 93/324/EEC of 10 May 1993 concerning the extension of the benefit of the provisions of Directive 90/531/EEC in respect of the United States of America (OJ 1993 L 125, p. 54),

T H E COURT (Sixth Chamber),

PARLIAMENT ν COUNCIL

Judgment

1 By application lodged at the Court Registry on 20 July 1993, the European Par­ liament brought an action under the first paragraph of Article 173 of the EEC Treaty for the annulment of Council Decision 93/323/EEC of 10 May 1993 con­ cerning the conclusion of an Agreement in the form of a Memorandum of Under­ standing between the European Economic Community and the United States of America on government procurement (OJ 1993 L 125, p. 1, 'Decision 93/323') and Council Decision 93/324/EEC of 10 May 1993 concerning the extension of the benefit of the provisions of Directive 90/531/EEC in respect of the United States of America (OJ 1993 L 125, p. 54, 'Decision 93/324').

2 Council Directive 90/531/EEC of 17 September 1990 on the procurement proce­ dures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1990 L 297, p. 1, 'Directive 90/531') was adopted on the basis of the last sentence of Article 57(2) and Articles 66, 100a and 113 of the EEC Treaty.

3 Article 29 of that directive reads as follows:

'1. This Article shall apply to tenders comprising products originating in third countries with which the Community has not concluded, multilaterally or bilater­ ally, an agreement ensuring comparable and effective access for Community under­ takings to the markets of those third countries. It shall be without prejudice to the obligations of the Community or its Member States in respect of third countries.

5. For the purposes, in this Article, of determining the proportion referred to in paragraph 2 of products originating in third countries, those third countries to which the benefit of the provisions of this Directive has been extended by a Coun- cil Decision in accordance with paragraph 1 shall not be taken into account.

6. The Commission shall submit an annual report to the Council (for the first time in the second half of 1991) on progress made in multilateral or bilateral negotia- tions regarding access for Community undertakings to the markets of third coun- tries in the fields covered by this Directive, on any result which such negotiations may have achieved, and on the implementation in practice of all the agreements which have been concluded.

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The Council, acting by a qualified majority on a proposal from the Commission, may amend the provisions of this Article in the light of such developments.'

4 On 10 May 1993 the Council adopted Decisions 93/323 and 93/324 on the basis of Article 113 of the Treaty.

9 Pursuant to those commitments, Article 1 of Decision 93/324 extends the benefit of the provisions of Directive 90/531 to tenders comprising products originating in the United States made for the award of a supply contract by contracting entities listed in Annex 3 to the Agreement.

10 The European Parliament bases its action on infringement of the Treaty and its essential procedural requirements in so far as Decisions 93/323 and 93/324 are based solely on Article 113 of the Treaty notwithstanding the existence of articles specific to the fields envisaged. As regards more particularly Decision 93/324, the Parliament maintains that it has the effect of amending Directive 90/531, which was adopted in cooperation with the Parliament on the basis of Articles 57, 66 and 100a, in addition to Article 113, which at present is the sole legal basis used for Decision 93/324.

1 1 The Council considers that Article 113 of the Treaty is the proper legal basis for the adoption of Decisions 93/323 and 93/324, since the commitments set out in Article 2(1) and the last clause of Article 3(1) of the Agreement are ancillary to the commitment contained in the first clause of Article 3(1), which is intended only to regulate the Community's external trade within the meaning of Article 113.

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PARLIAMENT ν COUNCIL

12 As to whether Decisions 93/323 and 93/324 constitute an amendment of Directive 90/531, as the Parliament claims, or an extension of the benefit of that directive to a third country, as referred to in Article 29(5) of the directive, the directive has, in the Council's contention, no bearing on the validity of those decisions.

Admissibility

17 The Court points out in limine that, as it has consistently held (see, in particular, Case C-187/93 Parliament ν Council [1994] ECR 1-2857, paragraph 14), an action for annulment brought by the Parliament against an act of the Council or the Commission is admissible provided that the action seeks only to safeguard its pre­ rogatives and that it is founded only on submissions alleging their infringement.

18 In this case, the Parliament argues that Decisions 93/323 and 93/324 should have been adopted on the basis, not only of Article 113, but also of Article 57(2) and Articles 66 and 100a of the Treaty, which, before the Treaty on European Union entered into force, provided, unlike Article 113, for the procedure involving coop­ eration with it. In maintains that, by adopting those decisions on the basis of Arti­ cle 113 alone, the Council infringed that prerogative.

19 It must therefore be held that the Parliament's application is admissible.

20 The Parliament claims, pursuant to the third paragraph of Article 37 of the Statute of the Court, that the Commission's application to intervene, for which it was given leave by order of the President of the Court of 8 November 1993, should be declared inadmissible in so far as it advocates an interpretation of Article 113 of the Treaty which is radically opposed to the Council's.

21 That objection of inadmissibility must be rejected.

25 To that end, the Agreement provides that public contracts in the two Contracting Parties are no longer to be open only to the acquisition of products and any ser­ vices ancillary to their supply, as was provided for by the GATT Multilateral Agreement on Government Procurement, approved by Council Decision 80/271/EEC of 10 December 1979 concerning the conclusion of the Multilateral Agreements resulting from the 1973 to 1979 trade negotiations (OJ 1980 L 71, p. 1), on the basis of Article 113 of the Treaty.

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JUDGMENT OF 7. 3. 1996 — CASE C-360/93

26 On the contrary, according to Article 1(1) of the Agreement, it applies to contracts for goods, works and other services awarded by entities included in Annexes 1 and 2 and to contracts for goods and works awarded by entities listed in Annexes 3 and 4 to the Agreement. According to the second subparagraph of Article 1 (2) of the Agreement, the expression 'other services' refers to contracts for which the principal object is the obtaining of one or more of the services included in Annexes 5 and 6, which include, among other things, maintenance and repair, transport, computer, advertising and accounting services.

27 It follows that the Agreement is also concerned, on an independent basis, with the provision of services.

28 As for Decision 93/324, according to the second and third recitals in its preamble, it aims to extend the benefit of the provisions of Directive 90/531 to the govern- ment procurement contracts covered by the Agreement.

32 The Council has asked the Court to limit the effects of a possible annulment of the decisions and the Parliament has not opposed this request.

33 In this connection, the Court observes that if Decisions 93/323 and 93/324 were simply annulled, this would be liable adversely to affect the exercise of the rights arising under them.

34 Account must also be taken of the fact that the Agreement expired on 30 May 1995.

35 In those circumstances, there are important reasons of legal certainty, comparable to those which arise where certain regulations are annulled, which warrant the Court's exercising the power conferred upon it by Article 174(2) of the EEC Treaty where a regulation is annulled and indicating the effects of the decisions which must be conserved.

36 In the specific circumstances of this case, all the effects of the annulled decisions should be conserved.

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1. Annuls Council Decision 93/323/EEC of 10 May 1993 concerning the con- clusion of an Agreement in the form of a Memorandum of Understanding between the European Economic Community and the United States of America on government procurement and Council Decision 93/324/EEC of 10 May 1993 concerning the extension of the benefit of the provisions of Directive 90/531/EEC in respect of the United States of America;

2. Maintains in force the effects of the annulled decisions;

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3. Orders the Council to pay the costs;

4. Orders the Commission and the United Kingdom to bear their own costs.