C-271/94

2. Before appraising the arguments put for­ ward by the parties, it is worth mentioning the procedural events underlying the adop­ tion of the contested measure. 3. It should first be stated that the proper identification of the legal basis for the

* Original language: Italian. 1 — OJ 1994 L 183, p. 42. 2 — OJ 1993 C 87, p. 10.

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contested decision obviously serves to deter­ follows from the very wording of Article mine the procedure which had to be fol­ 235 that its use as the legal basis for a meas­ lowed in the course of its adoption, from the ure is justified only where no other provi­ point of view of the powers vested in the sion of the Treaty gives the Community institutions involved in the legislative process institutions the necessary power to adopt the 5 and from that of the different majority votes measure in question'. It is therefore a resid­ required in order to approve the measure. uary provision which may be relied upon Article 235, as we know, provides for a mere only if there are no other, more specific consultation procedure, whilst the third enabling provisions. In defending its choice paragraph of Article 129d arid Article 100a of Article 235, the Council starts out from require the cooperation and the co-decision the very premiss that in this case there was procedure, respectively, to be followed. It no other provision conferring Community follows, as the Court has consistently held, 3 competence other than the general, second­ that if it finds that the wrong legal basis was ary provision of Article 235. The Council chosen, the Court will not merely declare adds that the preceding programmes having a that the decision is vitiated by a purely for­ similar content, CADDIA, 6 T E D I S , 7 and mal defect but that there has been an breach INSIS, 8 were also based on Article 235. The of an essential procedural requirement inval­ Council maintains that this is further confir­ idating the measure. mation that Article 235 was the proper legal basis for the adoption of the Edicom decision.

5 — See, for example, Commission ν Council, cited in footnote 3, paragraph 13. 6 — Council Decision 85/214/EEC of 26 March 1985 concerning the coordination of the activities of the Member States and 5. Having said that, we can now turn to the the Commission related to the implementation of a long- merits. The Edicom decision, as I have term programme for the use of telematics for Community information systems concerned with imports/exports and the already mentioned, is based on Article 235. management and financial control of agricultural market organizations (OJ 1985 L 96, p. 35). As the Court has consistently held, 'it 7 — Council Decision 87/499/EEC of 5 October 1987 introduc­ ing a communications network Community programme on trade electronic data interchange systems (TEDIS) (OJ 1987 L 285, p. 35). 8 — Council Decision 82/869/EEC of 13 December 1982 relating 3 — See, among many other cases, Case 45/86 Commission ν to the coordination of the activities of the Member States Council [1987] ECR 1493, paragraph 12, and Case and Community institutions with a view to assessing the C-62/88 Greece ν Council [1990] ECR I-1527, paragraph 10. need for, and preparing proposals for setting up, a Commu­ 4 — See Case C-187/93 Parliament ν Council [1994] ECR I-2857, nity inter-institutional information system (OJ 1982 L 368, paragraph 14. p. 40).

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7. Let us now consider the Edicom decision in the light of that criterion. One initial con­ sideration is as follows. For present pur­ poses, the establishment of the internal mar­ The Court's inquiry must therefore be con­ ket has complied with two fundamental ducted in conformity with the legal order as requirements which are equally important it is now in force, without being influenced but have to be appropriately reconciled with each other: securing, by reference to the functioning of the internal market and also the management of the common policies, an 9 — See the judgment cited in footnote 3. 10 — See Case 131/86 United Kingdom ν Council [1988] ECR appropriate exchange of information as 905, paragraph 29, and Case 68/86 United Kingdom ν Council [1988] ECR 855, paragraph 24. between undertakings, national administra­ 11 — Then again, there is no merit in the Council's objection tive authorities and the competent Commu­ that, in any event, Article 100 on the establishment of the common market was in force at that time. By this argu­ nity institutions and, on the other hand, ment, the Council seeks to show that the programmes in eliminating, following the abolition of inter­ question had no teleological link with the establishment and functioning of the common market and jumps to the con­ nal frontiers, potential obstacles to free clusion that the only way to introduce them was via Article movement arising out of the formalities or 235. But — a n d it is scarcely necessary to point this out — the Council ignores the fact that the aforementioned requirements with which economic opera­ programmes were not adopted on the basis of Article 100 for a compelling reason concerning only the type of tors have to comply owing to their having to legislative measures to be adopted, and certainly not their content or their aims in the context of the establishment of collect data for statistical purposes on the the common market: the programmes required the adop­ size of the transactions which they carry out tion of a decision and Article 100 merely provides for the adoption of directives. in goods as between the Member States.

9. Having said this, we can now take a closer look at the content of the contested decision. The first paragraph of Article 1 provides for the implementation of 'a set of measures, hereinafter referred to as "Edicom" (Elec- 12 — These requirements constitute the rationale of the INSIS, CADDIA and TEDIS programmes and also of Council tronic Data Interchange on Commerce), (...) Decision 82/607/EEC of 28 July 1982 concernine the coor- dination of the actions of the Member States andthe Com- to facilitate the conversion of regional, mission related to activities preparatory to a long-term pro- national and Community systems towards gramme for the use of telematics for Community information systems concerned with imports/exports and interoperable systems at European level, as a the management and financial control of agricultural market organizations (OJ 1982 L 247, p. 25), Council Regulation first stage, for the collection of returns on (EEC) N o 3330/91 of 7 November 1991 on the statistics relating to the trading of goods between Member States the trading of goods between Member States (Intrastat) (OJ 1991 L 316, p. 1), Council Regulation (EEC) from businesses, the validation and pre- N o 854/93 of 5 April 1993 on transit statistics and storage statistics relating to the trading of goods between Member processing of such returns and the dissemi- States (OJ 1993 L 90, p. 1) and, lastly, the contested nation of the statistics derived therefrom'. decision. The preambles to those measures are eloquent in this regard. The second paragraph then goes on to 13 — See the sixth recita! in the preamble to the Intrastat regu- lation, cited in the previous footnote. 14 — See, in this connection, the legislation cited in footnote 12, Council Decision 87/95/EEC of 22 December 1986 on standardization in the field of information technology and 15 — The third recital in the preamble refers expressly to Article telecommunications (OJ 1987 L 36, p. 31) and Council 34 of Regulation N o 3330/91, which provides that the con- Decision 91/353/EEC of 7 June 1991 adopting a specific ditions should be created for increased use of automatic programme of research and technological development in data processing and electronic data transmission for the the field of telematic systems of general interest (1990 to purpose of facilitating the task of the parties responsible for 1994) (OJ 1991 L 192, p. 18). providing information.

— making software and services suppliers aware of the requirements of national and Community statistics.' ' — the design, development and promotion of software for the collection, validation and transmission of statistical infor­ mation, and assistance to Member States in making that software available to businesses, Essentially, it can be stated in the light of the aim and content of the decision that the Community intended to lay the technical foundations for the development of telematic networks which are compatible with each other and therefore interoperable. This was — the design, development and promotion the point to be clarified. It now has to be of software for the acceptance, valida­ determined whether the proper basis for the tion, processing and dissemination of contested measure could have been the third data, providing assistance for, and mak­ paragraph of Article 129d or Article 100a. ing that software available to the regional, national and Community bod­ ies responsible for collecting statistical information, and where necessary the upgrading of equipment, Applicability of Article 129d

— the design, development and promotion of formats for the exchange of infor­ 10. The Parliament claims that the decision mation, on the basis of European and at issue should have been based on the third

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In response, the Parliament argues that the powers relating to the interoperability of It is scarcely necessary to point out in the networks are independent, that is to say, not first place that the Council slips into an dependent upon the prior establishment of obviously ambiguous situation when, in the 'guidelines' provided for by the first order to rule out the applicability of indent of Article 129c(l). Article 129d, it refers to and quotes verbatim the Commission's observation that the pro- visions of Title XII are concerned with the creation of networks, which, the Council maintains, is not the case here. This point is not easy to comprehend. The Commission For my part, I am persuaded by the Parlia- does not dispute that the present case ment's point of view. To my mind, that the involves the creation of a trans-European measures to ensure the interoperability of network; in contrast, it was seeking to point national networks are independent is clear out — as will be considered later — that that from the wording of Article 129b, which sets network is not the principal objective of the out the objectives of Community action in contested measure, but is merely a means of this sphere. Alongside its reference to the establishing the internal market. Conse- 'establishment and development of trans- quently, the Commission was seeking to European networks' (paragraph 1), Article argue in favour of the applicability of Article 129b expressly provides for further, distinct 100a and not, as the Council seems to have Community action aimed at 'promoting the in mind, against the involvement of a 'trans- interconnection and interoperability of European network'. national networks' (paragraph 2). This shows

has to relate to the 'establishment and deve­ the establishment of a 'trans-European net­ lopment' of new networks and to the cre­ work' requires action of a structural nature, ation of a trans-European network via the competence is divided between the Member 16 connection of existing national networks. States and the Community. The Community Since, contrary to what the Council con­ is called upon to establish a framework pro­ tends, trans-European networks are none gramme not only covering the objectives, other — and can be none other — than con­ priorities and broad lines of measures envis­ nections between individual national net­ aged, but also identifying specific projects of works, both the cases contemplated by Arti­ common interest (first indent of Article cle 129b are concerned with a 'trans- 129c(l)). Subsequently, it will fall to the European network', as envisaged by Title Member States to create the infrastructure XII of the Treaty. Consequently, the differ­ necessary in order to carry out those projects ence between those independent, separate and, in any event and more generally, to pur­ provisions of Article 129b is as follows: the sue the aims laid down at Community level. first refers to cases in which it is necessary to Moreover, it can readily be appreciated, make good a lack of infrastructure, which given the complexity of the subject-matter, has to be established or developed by action why the Treaty has taken account of the which might be termed structural inasmuch requirement for the establishment ex novo of as it sets out to establish the missing net­ a network and the development of existing works; in contrast, the second is intended to networks to have been preceded and pre­ take effect where the national networks — pared for by a framework of guidelines, later to constitute the 'trans-European net­ guiding criteria and projects of common work' — already exist and it is merely a mat­ interest: implementing activity on the part of ter of inter-connecting them. the Member States has to fit into that overall framework when it has to be coordinated and, where appropriate, also co-financed. It is provided that the Member States must coordinate their respective implementing activities or that the Commission may, 'in close cooperation with the Member State, take any useful initiative to promote such coordination' (Article 129c(2)). Next, in par­ allel with competence in respect of planning and coordination, the Community is also empowered to contribute towards the What competence does Article 129c confer financing of projects of common interest on the Community institutions in order to identified in the framework of guidelines pursue these aims? It vests in the Commu­ (third indent of Article 129c(l)). It is above nity two types of powers, one type relating all in the latter respect that implementing to planning, the other being of an opera­ action is made, of necessity, to depend on the tional nature, which correspond to the two cases in which action may be taken set out in

planning measures which have to proceed to the different eventuality in which the such action, since only projects of common national networks already exist, but have to interest, identified in the guidelines, may be made technically compatible so that they qualify, according to the express provision can be integrated into a single trans- set out in the third indent, for financial sup- European network. This is a case in which port from the Community. This clearly the Community does not have to identify shows the subordinate relationship which planning objectives using the special legisla- exists, within the system set out in Article tive procedure laid down to that end: Article 129c(l), between actual exercise of the com- 129b(2) provides, directly, in advance and petence provided for in the third indent and once for all, for Community action chiefly of the prior establishment of guidelines. a technical nature for the interconnection of the national networks. In other words, the second indent of Article 129c(l) sets out an autonomous power to take action, because it refers to a single, specific case, provided for in Article 129b(2), in which Community The case is different, however, where action is directed towards, not establishing national networks already exist and it is or developing missing networks — in which merely a question of connecting them. This case it is necessary to set objectives and iden- eventuality, which is that contemplated by tify projects of common interest — but, Article 129b(2), brings to the forefront the more narrowly, to linking up existing competence expressly and precisely based on national networks. 19 the second indent of Article 129c(l), where it is provided that the Community is to take action in order to ensure 'the interoperability of the networks, in particular in the field of technical standardization'. This power — which is of closer concern to us — is there- fore not designed to vest in the Community general executive competence to implement 11. That is not all. Even if the Council's programmes, objectives and projects of com- argument that any Community action is mon interest established pursuant to the first dependent upon guidelines within the mean- indent. That competence, it should be borne ing of the first indent of Article 129c(l) hav- in mind, is vested in the Member States. 18 In ing first been established were accepted, it contrast, the Community competence is only would have to be recognized that the plan- to 'ensure the interoperability of the net- ning context contemplated by that provision works' and therefore remains confined only may already ensue from earlier legislation and, more generally, from action undertaken and already defined by the Community in

the sector. It is not necessary for the frame­ European networks', and it did so with work programme to have been specially particular reference to telematic systems for established ex novo where it already forms the collection and circulation of statistical part of the acquis communautaire and is data. There is no doubt that the rules laid commensurate with the aims indicated as down by the contested decision achieve an being essential in the first indent of Article objective which has been clearly defined as a 129c(l), in so far as it sets out sufficiently priority by measures previously adopted by clearly 'the objectives, priorities and broad the Community, as emerges from their pre­ lines of measures envisaged in the sphere of ambles. Decision 91/353 is particularly sig­ trans-European networks'. Where those fac­ nificant in this connection, specifying as it tors which I have just described are present, does trans-European networks dealing with there will be no need further to define the statistics in the field of telematic systems in framework programme upon which, on this areas of general and priority interest. More­ view, operational action on the part of the over, that decision specifically acknowledges Community is dependent: if there were to be the pre-eminent requirement for national further definition, it would give rise to a networks to be interoperable in order to sur­ needless, unjustified delay in pursuing the mount 'the problems due to the incompati­ objectives which are laid down as being pri­ bility of existing national systems (...) and ority objectives and hence are to be attained differing procedures and methods'. This fully without delay. In my view, the power to justifies the conclusion which I reached establish the programme —• even considering above. 'The objectives, priorities and broad it from the point of view of the whole field lines of measures envisaged' had already in which it may legitimately be exercised — been set forth. All that remained was to could not, however, paralyse operational adopt the operational measures necessary for action on the part of the Community, pro­ the purposes of the interoperability of net­ vided that it falls within a framework of works. clearly predetermined guidelines and criteria.

Applicability of Article 100a 12. Let us consider, following the clarifica- tions made so far, the question whether the Edicom decision may in fact be described as a measure designed 'to ensure the interoper- ability of the networks' as is required by the second indent of Article 129c(1). The answer must be that it may be so described. The conclusion which I believe I should com- mend to the Court is precisely confirmed by the very wording of the decision. Article 1, and I quote, defines Edicom measures as 13. However, the above conclusions do not being designed 'to facilitate the conversion of dispense me from having to explain why I regional, national and Community systems cannot agree with the Commission and the towards interoperable systems at European Parliament on the other possible legal basis level (...)'. In describing, by way of examples, for the decision, which the Commission the possible range of Community action, argues for under its main head of claim and Article 3 contemplates a series of varied the Parliament under its claim in the alterna- activities which share the common require- tive, namely Article 100a of the Treaty. Arti- ment of being intended to create the techni- cle 100a confers legislative competence on cal conditions in order for the individual the Community with respect to 'the approx- national networks to be able to make up the imation of the provisions laid down by law, trans-European telematic network, once they regulation or administrative action in Mem- have been made compatible and interopera- ber States which have as their object the ble. Interoperability of networks is therefore establishment and functioning of the internal the essential objective of the contested market'. decision.

based on Article 100a. 1 In particular, albeit — frankly unacceptable — consequence that recognizing that the Edicom measure aims to every case in which action by the Commis ensure the interoperability of national sion serves — even indirectly — the aims of telematic networks, the Commission claims the common market would be brought that the main aim of the measure is to guar within the ambit of Article 100a. The antee the functioning of the common market: Court's case-law states otherwise.

Advocate General Tesauro rightly drew attention in Commis sion ν Council 25 to the fact that measures to 14. In my view, the Commission's argument be adopted pursuant to Article 100a must lay should not be upheld. It would result in the down rules 'specifically on the conditions of competition or trade within the Communi ty'. Conversely, Article 100a is not applicable 21 — A further argument put forward by the intervener in favour where 'the measure in question, in pursuing of the applicability in this case of Article 100a is worth a mention in order to refute it. It refers to Article 34 of Regu particular aims falling within the scope of a lation No 3330/91 (Intrastat) adopted on the basis of Arti cle 100a, which empowers the Commission to 'create the specific Community action or policy, has conditions for increased use of automatic data processing ancillary repercussions on market condi and electronic data transmission'. The Commission claims that that provision authorized it to adopt, by means of mea

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ensure interoperability of telematic networks measure to be adopted. This is precisely for statistics relating to the trading of goods the case here. In view of its specific nature, between Member States. The effect which therefore, Article 129c had to be the sole that decision has on the sphere covered by legal basis for the adoption of the decision in Article 100a is only the indirect effect of question. facilitating the functioning of the internal market. The immediate object of the measure is, however, to create the technical pre­ conditions in order, as has been seen, to ensure interoperability of the national net­ 15. In conclusion, the decision at issue works. It was a matter of creating the condi­ should have been adopted pursuant only to tions for a trans-European telematic network the third paragraph of Article 129d, which is and nothing else; in relation to that direct the only provision which is specifically rele­ purpose of the decision, the Treaty provides vant in this case. The Council was not enti­ for a specific Community policy and Com­ tled to adopt it on the basis of Article 235. munity action, governed by a particular legal Consequently, the contested measure did not basis. The provisions laid down therein con­ have the proper legal basis and should there­ sequently prevail over any others for the fore be annulled. purposes considered in this case.

Preservation of the effects of the Edicom decision

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PARLIAMENT ν C O U N C I L

consist of the fact that the Member State For my part, I consider that the parties' would be unable to have statistics on intra- request should be granted. I consider that to Community trade in goods available to them annul the Edicom decision ab initio would through telematics. It would therefore be be seriously detrimental to the measures — necessary to revert to the collection of infor­ which, moreover, are of considerable impor­ mation using forms. Consequently, in view tance — which the Commission has already of the disturbance which would follow the taken and would also seriously and unjustifi­ retroactive annulment of the contested ably harm economic operators, the Member decision and of the need to guarantee conti­ States and the Community itself. I therefore nuity in the Community public service, the propose that the Court should declar;., pur­ Council and the Commission ask the Court suant to the second paragraph of Arti­ to rule that the contested decision should cle 174, 2 9 that the effects of the contested preserve its effects until such time as a new decision should be regarded as definitive decision founded on an appropriate legal until such time as a new decision is adopted basis enters into effect. 28 pursuant to the proper legal basis.

Conclusions

In view of the foregoing, I propose that the C o u r t should:

— annul Council Decision 94/445/EC of 11 J u l y 1994 o n inter-administration telematic n e t w o r k s for statistics relating t o t h e trading of goods between M e m b e r States ( E d i c o m ) ;

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OPINION OF MR LA PERGOLA — CASE C-271/94

— declare that the effects of that decision are preserved until such time as a new decision is adopted pursuant to the proper legal basis;

— order the Council to pay the costs, with the exception of those borne by the Commission.

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