C-259/95
ECLI:EU:C:1997:166
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PARLIAMENT v C O U N C I L
OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 20 March 1997 *
1. In these proceedings, the Parliament seeks By the contested decision, the Council annulment of Council Decision No amended Decision N o 3092/94/EC intro- 95/184/EC of 22 May 1995 amending ducing a Community system of information Decision N o 3092/94/EC introducing a on home and leisure accidents. 3 That system Community system of information on home involved, inter alia, the designation of 54 and leisure accidents 1 (hereinafter 'the con- hospitals across the Community for the col- tested decision'). Its ground of challenge lection of data, for which purpose Commu- concerns the procedure for enacting that nity funding was made available and allo- decision, which was adopted by the Council cated between the various Member States. — without the Parliament's participation — O n the accession of Austria, Finland and on the basis of Article 169 of the Act of Sweden, the decision had to be adapted so as Accession of Austria, Finland and Sweden. 2 to extend it to the new Member States. To The Parliament maintains that the that end, Decision 95/184/EC was adopted, co-decision procedure laid down in Article raising the total number of hospitals 189b of the EC Treaty should have been fol- involved to 65 and accordingly increasing the lowed. level of Community funding to E C U 2.808 million.
The Council, supported in its submissions by the Commission and the Kingdom of The Council decided to adopt the contested Sweden, which have intervened in the pro- decision in accordance with the simplified ceedings, contends that the action should be procedure laid down in Article 169 of the dismissed. Act of Accession, which provides as follows:
2. Before evaluating the parties' arguments, ' 1 . Where acts of the institutions prior to it would be useful to sketch the background accession require adaptation by reason of to this case. accession, and the necessary adaptations have not been provided for in this Act or its Annexes, those adaptations shall be made in
* Original language: Italian. 1 — OJ 1995 L 120, p. 36. 2 — OJ 1994 C 241, p. 21. 3 — OJ 1994 L 331, p. 1.
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accordance with the procedure laid down by Accordingly, the action satisfies the condi- paragraph 2. Those adaptations shall enter tions for admissibility laid down by the third into force as from accession. paragraph of Article 173 of the Treaty, since it has been brought by the Parliament for the purpose of protecting its institutional pre- rogatives and is based on the alleged breach of those prerogatives.
2. The Council, acting by a qualified major- ity on a proposal from the Commission, or the Commission, according to which of these two institutions adopted the original acts, 4. As to the merits, the Parliament argues shall to this end draw up the necessary texts.' that the Council was not empowered to adopt the contested decision on the basis of Article 169 of the Act of Accession. Its argu- ment in support of that plea is twofold: first, recourse to the Article 169 procedure was possible only before the Treaty of Accession However, the Parliament maintains that the entered into force; secondly, that procedure conditions for using that procedure were not is available only for the adaptation of mea- satisfied. The decision to be amended was sures adopted by the Council or by the based on Article 129a of the Treaty and Commission, whereas the measure to be adopted in accordance with the co-decision adapted in this case was a matter for the procedure. According to the Parliament, the Council and the Parliament jointly and same procedure should therefore have been therefore fell outside the scope of Article followed for the adoption of the contested 169. I shall now consider both strands of the decision. Parliament's argument in greater detail.
3. It should be noted at the outset that the 5. The Parliament's first point, as indicated correct identification of the procedure to be above, is that the Council was not empow- followed has major implications, in cases ered to use the procedure provided for under such as this, for the Parliament's institutional Article 169 of the Act of Accession once the prerogatives: Article 169 of the Act of Acces- Treaty of Accession had entered into force. sion provides for the adaptation to be That view is based essentially on the word- enacted by the Council alone, albeit acting ing of the French-language version of Article by a qualified majority, whereas Article 189b 169, according to which 'lorsque les actes des of the Treaty provides for the Parliament to institutions doivent, avant l'adhésion, être play a significant role in the decision-making adaptés du fait de l'adhésion et que les adap- process. Thus, if the choice of procedure tations nécessaires n'ont pas été prévues dans were shown to be incorrect, this would not le présent acte ou ses annexes, ces adapta- simply amount to a formal defect but would tions sont effectuées selon la procédure pré- constitute grounds for declaring the con- vue au paragraphe 2 ...'. In the Parliament's tested decision unlawful for failure to com- view, the phrase 'avant l'adhésion' places a ply with essential procedural requirements. specific temporal limitation on recourse to
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the simplified procedure, that is to say, that ance with the procedure laid down by para- procedure had to be used prior to accession, graph 2'. 4 not subsequently, as is the case here. This approach — according to the Parliament — is substantiated by Article 2 of the Treaty of Accession itself which, after providing that the Treaty is to enter into force on 1 January 1995, states in the third paragraph that 'not- Given this discrepancy between the various withstanding paragraph 2, the institutions of language versions, it should be recalled that the Union may adopt before accession the the Court has on earlier occasions ruled out measures referred to in [... Article] 169 of the the possibility of considering one version of Act of Accession [...]'. The Parliament con- the text in isolation, making it clear that a cludes from its scrutiny of these provisions text should be interpreted on the basis of that the rationale behind Article 169 is that 'both the real intention of its author and the of providing a simplified method for adapt- aim he seeks to achieve, in the light in par- ing Community measures which were ticular of the versions in all ... languages'. 5 already in existence in the period between Accordingly, the crucial factor in my view is the signing of the Treaty of Accession and its that, apart from the French version, all the entry into force. O n expiry of that period, others place a temporal restriction (the date adaptations rendered necessary by the acces- of accession) not on recourse to Article 169 sion of new Member States have to be intro- but on the acts to be amended — that is to duced by means of the normal procedures say, measures requiring adaptation must have laid down by the Treaty. been enacted prior to accession — and it would seem to me wholly unreasonable to accord authority to the one language version which differs from all the others.
To my mind, that argument is not convinc- ing. As the Council, the Commission and the Moreover, that is the only approach consis- Kingdom of Sweden have rightly pointed tent with the objectives of Article 169, which out, the textual interpretation on which the provides a stand-by mechanism, as it were, Parliament's argument depends is borne out for use when adaptations are required and solely by the French-language version of yet have not been provided for by either the Article 169 of the Act of Accession. All the Treaty or the Act of Accession. The con- other language versions, however, point to a tracting parties thus sought to offer the different meaning. For instance, the Italian version reads 'quando gli atti delle istituzioni precedenti all'adesione richiedono adatta- menti ...', these 'sono effettuati secondo la 4 — Sec, by way of illustration, the Spanish version, which is to the same effect: '1. En caso de que los actos de Lis institu- procedura di cui al paragrafo 2'. Similarly, ciones previos a ia adhesión requieran una adaptación como consecuencia de ésta y no se hayan previsto en la presente the English-language version provides that Acta o en sus Anexos las necesarias adaptaciones, dichas 'where acts of the institutions prior to acces- adaptaciones se harán con arreglo al procedimiento estable- cido en el apartado 2. [...]'; likewise the Portuguese version: sion require adaptation by reason of acces- 'Quando os actos das Instituições, anteriores à adesão, devam ser adaptados em virtude da adesão, e as adaptações neces- sion, and the necessary adaptations have not sárias não estiverem previstas no presente Acto ou nos been provided for in this Act or its Annexes, Anexos, estas serão efectuadas nos termos do procedimento previsto no n° 2. [...]'. those adaptations shall be made in accord- 5 — See Case 55/87 Mokscl [1988] ECR 3845, paragraph 15.
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Community institutions a flexible and rapid to in Article . . . 169 of the Act of Accession procedure for undertaking adaptations which [. . .]'. The rule is clear: the institutions may — 'escaped' notice during negotiations but are not must — have recourse to Article 169 nevertheless essential if a particular Commu- before accession. It is merely an enabling nity measure is to be applicable in the new provision and does not in any way preclude Member States. Obviously a situation of this the use of the Article 169 procedure after kind can also arise after the Treaty of Acces- accession. What is more, the rationale behind sion entered into force. It was considered Article 2 is easy to understand: the Treaty preferable in such cases to use the simplified entered into force on 1 January 1995, but the procedure set out in Article 169, rather than intention was that the Community institu- the normal procedures for amendment laid tions should be able, even before that date, down by the Treaty. That decision, which is to make the necessary adaptations.
An based on considerations of procedural appropriate derogation was therefore needed economy, thus makes it possible to ensure in order to permit 'advance' use of the sim- forthwith, with no hiatus, the uniform appli- plified procedure under Article 169, which cation of Community measures in all the would not otherwise have been possible Member States. O n the other hand, the sim- since the institutions obviously could not plified procedure is not available in all cases avail themselves of a procedure laid down in where an existing measure is to be amended; a provision which had not yet entered into rather, its use is confined to adaptations of a force. strictly technical nature and does not affect, by way of derogation, the legislative scope of the measure in question. In my view, that places in proper perspective the Parliament's fears concerning the alleged breach of its Accordingly, neither Article 2 of the institutional prerogatives. Treaty of Accession nor the wording of Article 169 6 supports the inference that the use by the Council of the simplified pro- cedure for enacting adaptations was restricted ratione temporis. It is a moot point whether the procedure provided for in Article 169 may be used at any time after the Treaty of Accession's entry into force, or whether recourse to that provision would be lawful only within a brief period thereafter. However, that question has no bearing on
6. The Parliament's reliance on Article 2 of the present dispute, since Decision 95/184 the Treaty of Accession is similarly mis- was adopted on 22 May 1995, that is, reason- placed. The Parliament infers from that pro- ably soon after the Treaty of Accession vision that it restricted the use of the pro- cedure under Article 169 once the Treaty of Accession had entered into force. As the Council and the interveners have rightly 6 — On the contrary, it could be argued that the wording of Article 169 supports an interpretation which is quite the pointed out, the rationale underlying Article opposite of that proposed by the Parliament. It contemplates 2 of the Treaty of Accession is quite differ- the possibility of enacting adaptations 'by reason of acces- sion', not 'with a view to' accession.
The expression ent. The Treaty entered into force on 1 Janu- employed obviously suggests that accession would already have taken place, and that therefore the relevant Treaty ary 1995; in derogation from that provision, would already have entered into force. In other words, the however, 'the institutions of the Union may structure of Article 169 implies that the adaptations would come about as a consequence of accession, and that the pro- adopt before accession the measures referred cedure for their enactment would thus post-date accession.
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entered into force. In any event, in the light stand in need of adaptation if they are to of the objectives of Article 169 and of the apply in those States as well. fact that its scope is confined to adaptations which are merely of a technical nature, so to speak, I take the view that even if that provi- sion had been applied later the Parliament's allegation would not in any event have been justified. One last point. The contested decision was adopted on 22 May 1995 but, under Article 169, it has retrospective effect; that is to say, it takes effect as from 1 January 1995, the date on which the Treaty of Accession entered into force. I agree with the Commis- sion that this is not contrary to the principle 7. The Parliament points out, however, that of legal certainty. The Court has affirmed if the procedure under Article 169 were to be that in general that principle 'precludes a available after the Treaty of Accession Community measure from taking effect from entered into force, this would contravene the a point in time before its publication', but principle that, on entering the Community, has also stated that 'it may exceptionally be Member States must accept the acquis com- otherwise where the purpose to be achieved munautaire in its entirety as it stands at the so demands and where the legitimate expec- date of accession. Accordingly, if existing tations of those concerned are duly Community measures could be amended respected'. 8 In my view, those conditions are indefinitely, that fundamental principle satisfied here. In the first place, the expecta- would be undermined. However, I do not tions of the parties have not been damaged in find this argument persuasive, either. Of any way; secondly, the purpose to be course, States acceding to the Union must achieved was that of ensuring, as from acces- accept the existing body of Community leg- sion, the uniform application of the acquis islation. 7 That principle is not threatened in communautaire throughout the Union. That this case, however, by the use of the simpli- is why, not only does Article 169 not pre- fied procedure after the Treaty of Accession clude adaptation of acts of the institutions- has entered into force. O n the contrary, that after accession, but it also provides that such procedure is the very mechanism enabling adaptations may take effect from the Treaty the acquis communitaire to take full effect in of Accession's entry into force. the new Member States, especially where — and this is the case here — existing measures
7 — That principle is clearly enunciated by the Court in Joined Cases 39/81, 43/81, 85/81 and 88/81 Halyvourgiki v Com- mission [1982] ECR 593, paragraph 12: 'the acceding Sate accepts all the measures adopted by the institutions prior to 8. The Parliament also challenges Decision the time when its accession takes effect'. However, as the Commission has correcdy pointed out, the principle laid 95/184 from another angle. In its view, the down by the Court in that judgment clearly relates to the situation where the conditions for actual implementation of simplified procedure under Article 169 could the measure in question can already be discerned with suffi- cient precision from the measure itself. Instead, that case-law has absolutely no bearing on the problem before the Court here, namely the question whether existing measures may be adapted even after the Treaty of Accession has entered into 8 — Sec Case 235/82 Ferriere San Carlo v Commission [1983] force. ECR 3949, paragraph 9.
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only be used to adapt measures adopted by EC Treaty attributes in more than one place the Commission or by the Council, whereas to the Council alone. I 0 This suggests that the contested decision amends a measure — the reference in Article 169(2) to acts of the Decision 3092/94 — which had been Council was in fact intended to embrace acts adopted at the time by both the Council and adopted jointly by the Council and the Par- the Parliament. That view is based exclus- liament. The objective of Article 169 is to ively on the wording of Article 169 which, make a rapid procedure available whereby according to the Parliament, does not envis- the full and uniform application of Commu- age — and therefore precludes — the possi- nity measures can be extended to the new bility of using a simplified procedure to Member States; that fundamental require- adapt measures which have been jointly ment obviously covers measures adopted by adopted by the Council and the Parliament the co-decision procedure. in accordance with the co-decision pro- cedure.
This argument leaves me a little confused. As the Council, the Commission and the King- 9. In conclusion, it seems to me that use of dom of Sweden have all pointed out, Article the simplified procedure in question is sub- 169 provides for the possibility of adapting ject to three conditions. First, the measures any act 'of the institutions' to meet require- requiring adaptation must pre-date accession; ments arising from the accession of new secondly, the adaptations required must not Member States. Admittedly, the contracting be envisaged by the Act of Accession or its parties may have framed Article 169 in terms annexes; and, thirdly, the reason for using which — in so far as Article 169(2) provides that procedure must be to ensure the align- that adaptations are to be made by either the ment of the measure in question so as to Council or the Commission, according to enable it to be applied in the new Member which of those two institutions adopted the States as well. In other words, as I explained original acts — are less than appropriate, above, the amendment must not involve a .since, a rigori, a decision adopted on the significant change to the substantive content basis of Article 189b of the Treaty could be of the measure in question but only a minor regarded as an act of both the Parliament consequential adjustment in response to the and the Council. 9 However, neither the needs arising as a result of accession. wording nor the rationale of Article 169 sug- gests that the contracting parties wished to exclude from its scope measures adopted under the aforementioned procedure — mea- sures, moreover, which are jointly adopted by the two institutions, but which even the
In the present case, it seems to me that all three conditions were satisfied. The 9 — See, for example, the wording of Article 173, first paragraph: "The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis- 10 — See, for example, Arts 129a(2), 54(2), 56(2) and 100a of the à-vis third parties'. EC Treaty.
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contested decision was designed to adapt a 10. The Council, the Commission and the Community measure which pre-dated acces- Kingdom of Sweden also ask the Court, in sion; no such adaptation was provided for in the event that the contested decision is the Act of Accession or its annexes; the annulled, to rule that this should in any amendments made merely enabled the con- event be without prejudice to any decisions tested measure to be given practical effect in adopted by the Commission under Article 7 the new Member States. Furthermore, the of Decision 3092/94 regarding financial assis- latter point, which in my view is crucial, has tance for the hospitals in the new Member not been challenged by the Parliament on States. They point out that, in addition to the cogent grounds. At the hearing, the Parlia- practical difficulties which would be caused ment merely pointed out that the Council, in by annulment with retroactive effect, sums adopting the decision at issue, enjoyed a of money have already been given to four margin of discretion as regards the choice of Swedish and three Finnish hospitals on the basis of the contested decision. the criteria on which to base its adaptation of Decision 3092/94, so that the Parliament's views regarding the choice of those criteria should also have been heard under the co-decision procedure. However, that is not the case. Only two aspects of Decision 3092/94 required adjustment in order to extend its application to the new Member States as well: the number of hospitals involved in the collection of data was raised The Parliament, for its part, 'defers to the from 54 to 65, and Community funding was wisdom of the Court', although it is in prin- accordingly increased to E C U 2.808 million. ciple opposed to the request for application As the Commission has pointed out, the of Article 174. Council adapted the measure on the basis of the criteria used in Decision 3092/94, fixing the number of hospitals in the new States so as to reflect the population and increasing the financial assistance proportionately. Fur- thermore, those criteria had been approved by the Parliament itself, since Decision 3092/94 was adopted at the time by the co-decision procedure. To my mind, there- fore, it cannot be seriously maintained that In my view, the Court should accede to the the contested decision was anything other parties' request. Annulment of the contested than a simple adaptation within the meaning decision ex tunc would seriously damage of Article 169 or that it incorporates discre- action already undertaken by the Commis- tionary choices which introduce new ele- sion with regard to the new Member States, ments and therefore entail recourse to the and aimed essentially at protecting consum- co-decision procedure. In conclusion, there- ers. I therefore propose that the Court rule fore, I believe that in using the procedure ex Article 174, second paragraph, that the provided for by Article 169, the Council effects of the decisions adopted by the Com- respected the substantive limits set by that mission on the basis of Article 7 of Decision 3092/94, as amended by the contested provision. decision, are to be treated as definitive.
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Conclusion
In the light of the foregoing, I propose that the Court:
— dismiss the action brought by the Parliament;
— in the event that Decision N o 95/184/EC is annulled, declare that the effects of the decisions adopted by the Commission on the basis of Article 7 of Decision N o 3092/94/EC are definitive;
— order the Parliament to pay the costs, with the exception of those incurred by the Commission and the Kingdom of Sweden.
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