C-345/95

A — Introduction by representatives of governments of the Member States on the location of the seats of the institutions and of certain bodies and departments of the European Communi- ties, 4 which was taken in Edinburgh on 12 December 1992 (hereinafter the 'Edinburgh Decision'). Article 1 of the Edinburgh 1. The case which now comes before the Decision provides, inter alia, that 'the Euro- Court by way of an action brought by the pean Parliament shall have its seat in Stras- French Republic (hereinafter the 'applicant') bourg where the twelve periods of monthly is the latest in a line of litigation concerning plenary sessions, including the budget ses- the seat of the European Parliament : (here- sion, shall be held.' 5 inafter the 'defendant'). The action is directed against the defendant's decision lay- ing down the calendar of sessions for 1996. 2 Unlike in many previous years and occa- sioned by an amendment to the original pro- posal of the Conference of Presidents, 3 only one five-day plenary session was fixed for October 1996. Since traditionally no sessions of the Parliament are held in August, the number of five-day plenary sessions to be duly held in Strasbourg was thus reduced for 3. The applicant regards as a further ground 1996 to 11. of action the corresponding increase in 'addi- tional plenary sessions' in Brussels to eight sessions of two half-days each. Certainly, the Edinburgh Decision does provide that 'addi- tional plenary sessions shall be held in Brus- sels.' None the less, the applicant regards the reduction of five-day plenary sessions in Strasbourg and the simultaneous increase in 2. The applicant regards the fixing of this additional plenary sessions in Brussels as number of sessions as infringing the decision calling in question the establishment as a matter of principle of the seat of the Euro- pean Parliament in Strasbourg. 6 The alleged * Original language: German. 1 — Judgments in Case 230/81 Luxembourg v Parliament [1983] ECR 255, Case 108/83 Luxembourg v Parliament [1984] ECR 1945, Joined Cases 358/85 and 51/86 France v Parlia- ment [1988] ECR 4821 and Joined Cases C-213/88 and 4 — OJ 1992 C 341, p. 1. C-39/89 Luxembourg v Parliament [1991] ECR 1-5643. 5 — Emphasis added. 2 — Decision of 20 September 1995 (OJ 1995 C 269, p. 55). 6 — Article 1(a), first sentence, of the Edinburgh Decision which 3 — Proposal of the Conference of Presidents of 14 September sutes: The European Parliament shall have its seat in Stras- 1995 (OJ 1995 C 269, p. 19). bourg.'

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B — Opinion institution could militate in favour of a stricter construction of the criterion of admissibility. On the other hand, it might be that the sole purpose of the Treaty amend- ment was simply to codify the earlier case- I — Admissibility law 9 on determination and application of the admissibility criterion.

9. The defendant raised no express objection of inadmissibility. None the less, the Court is bound to examine of its own motion the admissibility of the action. 7 12. The similarity of the formulations mili- tates in my view in favour of the latter inter- pretation. In the interests of a comprehensive legal protection the bars to admissibility 10. Under Article 173 of the EC Treaty the should, in my view, not be placed too high. Court is to review the 'acts of the European That need not undermine the internal Parliament intended to produce legal effects autonomy of the institution, since according vis-à-vis third parties'. There could therefore to settled case-law 10 it is only at the stage of be a problem of admissibility if the contested the examination of the merits that there is a decision did not produce 'legal effects vis- review of the limits within which an act of à-vis third parties.' That ground of inadmis- the institution must be deemed to be a meas- sibility, as formulated in those terms, has ure of internal organization, thus escaping hitherto been consistently applied by the annulment by the Court of Justice in annul- C o u r t 8 in regard to acts of the European ment proceedings. A generous application of Parliament amenable to review. This crite- the admissibility criteria thus in no way pre- rion was, however, expressly included in judges the well-foundedness of the contested Article 173 of the EC Treaty only on the Parliament decision. adjustment and amendment of the Treaty by the Maastricht Treaty.

'As regards the admissibility of the claim for annulment, the Court observes that the European Economic Community is based on the rule of law, inasmuch as neither its Mem- 15. In reply to a question at the hearing as to ber States nor its institutions can avoid a the actual legal effects of the contested review of the question whether the measures decision, the representative of the applicant adopted by them are in conformity with the pointed both to the legally binding obliga- basic constitutional charter and with the tion to hold a specific plenary session at a Treaty, which established a complete system specified place, on the one hand, and to the of legal remedies and procedures designed to appreciable factual consequences entailed by permit the Court of Justice to review the the presence of members of the institution at legality of measures adopted by the institu- a given place, on the other. tions ...'. I2

17. If one departs from this concrete view of however, affect the admissibility of the the matter and contemplates it on a more action. From a formal point of view the abstract plain, it appears that the applicant Member States are privileged applicants who regards the decision on the seat as having have neither to show any cause of action nor been called in question by the contested legal interest to be protected. 1 6 It must also decision, that is to say as an interference in a be remembered that the legal scope of the competence which, according to the Treaty, claim goes well beyond a mere assessment is reserved to the 'governments of the Mem- concerning the holding of the plenary ses- ber States'. 15 sion in question. The solution of the dispute involves a clarification as a matter of prin- ciple of the limits of the autonomy enjoyed by the defendant for the purposes of orga- nizing its work. The considerable extent of the dispute, which goes beyond the working 18. Accordingly, the contested decision is in calendar for 1996, becomes apparent when it my view capable of creating legal effects vis- is realized that the Court currently has à-vis third parties. A distinct question is before it another action brought by the whether the defendant acted within its com- applicant against the defendant seeking the petence; a reply to that question must neces- annulment of the Parliament's decision lay- sarily be reserved to the examination of the ing down the working calendar for 1997. 17 merits.

21. The action must therefore be regarded as being entirely admissible. 19. Before I turn to an examination of the well-foundedness of the action I would, however, like to touch on a further aspect of admissibility. I have in mind the problem area which may be described as the 'general interest in bringing an action'. II — Substance

several pleas. The first and most important is decision cannot therefore be regarded as an the defendant's alleged lack of competence. infringement of the Edinburgh Decision. In The Parliament's decision is said to conflict so far as the Edinburgh Decision, on a literal with the Edinburgh Decision since hence- construction, is to provide the yardstick for forth 11 five-day plenary sessions in Stras- assessing the contested decision, the defen- bourg have been decided upon, whilst in the dant takes the view that the Edinburgh Edinburgh Decision 12 plenary sessions Decision is for its part unlawful. In fact, were expressly mentioned. By thus departing immediately after the Edinburgh Decision from the mandatory provisions of the Edin- was adopted, it expressed this view of the burgh Decision the defendant is said to have matter on 16 December 1992 in the form of a acted ultra vires. In the Edinburgh Decision resolution. 19 the Member States fulfilled their duty under the Treaty to establish the seats of the insti- tutions. l s The Edinburgh Decision cannot be called in question. Such a possibility is excluded if only for procedural reasons. Decisions adopted pursuant to Article 216 of 24. In view of the consequences of that the Treaty by the representatives of the gov- alleged illegality the defendant considers that ernments of the Member States are sui gen- the Edinburgh Decision should be examined eris acts which are not capable of being con- as an incidental issue in the context of this tested either in annulment proceedings under legal dispute. That examination could result Article 173 of the Treaty or by way of an in a finding that the Edinburgh Decision is objection of inapplicability under Article 184 invalid, at any rate in part, in so far as it of the EC Treaty. This view of the matter, it unlawfully curtails the defendant's right of is said, is in accordance with the Court's self-autonomy in matters of organization case-law. However, the applicant concedes guaranteed by the Treaty. 20 None the less, that the Edinburgh Decision may be judi- the defendant considers it possible that the cially interpreted. Edinburgh Decision may be interpreted in such a manner as to be in conformity with the Treaty.

the legal nature and content of the decision 28. In my view, that does not, however, must first be clarified. mean that acts adopted under the Treaty by representatives of the governments of the Member States escape all review of legality. The European Community is governed by the rule of law. 23 In that connection the Court is required under Article 164 of the Treaty to ensure observance of the law in the interpretation and application of the Treaty. 26. The parties agree that a decision by rep- Article 216 of the EC Treaty — behind resentatives of the governments of the Mem- which stands the 'constitutive legislature of ber States within the meaning of Article 216 the Community', that is to say the Member of the EC Treaty is not in principle an act States — confers on the governments of the open to challenge under Article 173 of the Member States a clearly defined mandate. In Treaty. The Court of Justice so held in my view it is a fundamental requirement of Joined Cases C-181/91 and C-248/91 21 in the rule of law that observance of the limits which it stated that: of that mandate should not as a matter of principle be exempt from judicial review.

if such decisions in conflict with Treaty pro- the fixing of 12 plenary sessions to be held in visions were irreversible. 25 Strasbourg. However, this purely arithmeti- cal view only provides an abbreviated view of the problems. The point of departure must be the decision in principle to establish the seat of the Parliament in Strasbourg. The question then arises to what extent the decision on the seat requires a specified 30. It is not in doubt that a decision of rep- number of plenary sessions to be held in that resentatives of governments of the Member place. Finally, in that context the significance States under Article 216 of the Treaty is not of the expressly mentioned budget session an act of the Community institutions as must be examined. Following on from an described, for example, in Article 189 of the evaluation of the interrelationship between EC Treaty. I also concede that such a seat, plenary sessions and the budget session, decision ranks higher than those acts. This it will be necessary to analyse the nature of factor is appropriately recognized by the fact 'additional plenary sessions'. that they are exempt from review under Articles 173 and 184 of the Treaty which means that their continued existence is far more secure than decisions adopted under secondary Community law. None the less, such a decision must observe the limits laid down in the Treaty if it is not to be open to 32. The legal basis of the Edinburgh a finding of illegality. In my view the ques- Decision is to be found in Article 216 of the tion can only be as to the procedural conse- EC Treaty, Article 77 of the ECSC Treaty quences arising out of the potential illegality and Article 189 of the EAEC Treaty. 26 The of such a decision. competence conferred thereby is not unlim- ited. Its limits are to be found both in Article 142 of the EC Treaty, Article 25 of the ECSC Treaty and Article 112 of the EAEC Treaty, 27 which codify the Parliament's internal power of organization, and in Article 5 of the EC Treaty, the obligation on 31. However, preference is to be given to an Member States to cooperate. interpretation in conformity with the Treaty over any other solution. Such an approach appears to me to be straightforward and is also considered to be a possibility by all the parties to the present proceedings. Therefore, it falls to examine whether the Edinburgh Decision is capable of an interpretation in 33. The natural tension between these provi- conformity with the Treaty. Manifestly, the sions already came to the fore in the earlier Edinburgh Decision deals essentially with disputes concerning the seat of the Parlia-

ment 2 S and was assessed in the judgments ment in Strasbourg under that decision does delivered in those proceedings. Although not give rise to any reservations in law. It is those earlier judgments were given only con- only because several places of work are cerning the provisional determination of the maintained that the determination of the seat seats of the institutions the principles estab- requires to be further specified. In accord- lished in those cases may also serve as a basis ance with the Parliament's previous practice for the solution of the present case, since the based on the decision of the representatives provisional determination of the seat was of the Member States of 8 April 1965, 31 as made in exercise of the competence under regards the organization of its work, the Article 216 of the Treaty. Moreover, the governments of the Member States defined Court did not deem the provisional nature of the seat of the European Parliament as the the decisions to detract in any way from place in 'which 'the 12 periods of monthly their binding effect.29 In accordance with plenary sessions, including the budget ses- this case-law, the point of departure as a sion, shall be held.' matter of principle is that in taking decisions, the governments of the Member States must respect the Parliament's power to regulate its own internal organization. 'They must ensure that such decisions do not impede the due functioning of the Parliament.' 30 35. The question arises, then, whether this formulation in fact sought to fix the number of sessions and the agenda of one of these sessions, or whether the terms used should be construed as meaning that the seat of the Parliament is characterized by the fact that plenary sessions are regularly held in that place.

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weeks reserved for the political groups, one plenary week, which was also the case in weeks of plenary sessions lasting five days in the 1994 election year. In the calendar for principle, 32 weeks for committee meetings 1995 provision was made finally for 12 ple- and a week of a combined nature. nary weeks again.

37. Traditionally, no sessions are held in the 39. In interpreting the Edinburgh Decision, month of August. Moreover, in election which is a political compromise, regard must years no plenary sessions are held in the be had first to the wording of the agreement. month of June. The fact that, none the less, It makes reference to 'the 12 periods of the Parliament has in the past frequently monthly plenary sessions' 33 and does not for achieved a total of 12 plenary weeks per year example state that 'the number of the ple- may be accounted for by the fact that in such nary sessions to be held there is set at 12.' years two plenary weeks are arranged for the The first formulation which I have cited month of October. indicates that the representatives of the gov- ernments of the Member States were refer- ring to an existing practice in the Parlia- ment's method of working. That view of the matter is corroborated by the remaining pro- visions. Both the holding of additional peri- ods of plenary sessions and committee meet- ings in Brussels are in accordance with 38. As regards solely the number of plenary previous practice which, moreover, was weeks held annually, the practice of approxi- upheld in the Court's earlier case-law on the mately the past 10 years may be presented as seat of the Parliament. 34 follows:

41. Even if one were to adopt the point of view put forward by the applicant at the hearing to the effect that the figure 12 could be achieved by holding a second plenary ses- 43. If one considers the practice of the Par- sion in October, there is no support for that liament, 35 statistically itemized according to view in the wording of the decision, which subject-matter for past years, it becomes makes express mention of 'monthly' plenary clear that even before 1992 there was cer- sessions. N o r is the regularly recurring spe- tainly no clear predominance of budget reso- cial case of election years reflected in the lutions in the course of one of the October wording of the decision. For those reasons, I sessions. am of the view that the terms in which the Edinburgh Decision is couched are not to be taken literally but are to be interpreted flex- ibly, regard being had to previous practice in the organization of the Parliament's work and the requirements arising therefrom. The figure 12 is therefore to be viewed neither as 44. Although the express mention made of a minimum requirement nor as an upper the budget session in the Edinburgh ceiling. Decision may have some justification in view of the fact that it is a naturally recurring event, as is the date of the session in the course of a calendar year, 36 there is no cor- relation with the actual importance of the session. O n a proper construction, the Edin-

42. Viewed from this angle the express men- 35 — 25th General Report on the Activity of the European Com- munities 1991, p. 425; 26th General Report on the Activity tion made of the budget session also appears of the European Communities 1992, p. 406; 27th General in a particular light. As the Parliament's rep- Report on the Activity of the European Communities 1993, p. 395; General Report on the Activity of the European resentative credibly explained at the hearing, Union 1994, p. 453; General Report on the Activity of the European Union 1995, p. 461. at most secondary importance is attached to 36 — The first and second reading of the budget regularly takes the fixing of a date for the budget session. place in the last quarter of a calendar year.

48. An examination of earlier practice in the fixing of additional plenary sessions in Brus- sels makes it clear that by arranging for eight 45. A limit to this relative freedom of action sessions of two half-days the number of is to be drawn at the point where the additional plenary sessions hitherto fixed in decision in principle concerning the seat, the course of a year is exceeded. O n the including definition of the seat as the place other hand it should be borne in mind that where the regular plenary weeks are held, the absolute duration of the session, calcu- might be called in question. It must be lated in units of half a day, corresponds to assumed that the focal point of the plenary the additional plenary sessions held in the activity is linked with Strasbourg. The func- course of 1995 37 and is relatively insignifi- tioning of the institution must be organized cant by comparison to the plenary weeks in such a way that Strasbourg is the focus of held in Strasbourg. 38 plenary activity.

46. The applicant is therefore right to assert that the Edinburgh Decision imposed on the 49. For the purposes of assessing the lawful- defendant certain directions concerning the ness of fixing additional plenary sessions organization of its •work. These mandatory regard must also be had, in this context, first, guidelines may also be regarded as a mini- to the wording of the Edinburgh Decision. mum requirement justified by the fact that There it is simply stated: 'The periods of the place of the institution's seat needs to be additional plenary sessions shall be held in particularly specified owing to the mainte- Brussels.' This formulation does not allow nance of several places of work. any conclusion to be drawn as to any numerical restriction of possible additional plenary sessions.

50. It should be pointed out that from a drawing up the Edinburgh Decision has purely terminological point of view there is already been demonstrated. no question, unlike in the second paragraph of Article 139 of the Treaty, of 'extraordinary sessions'. The Parliament may meet in 'extraordinary session', as described in that article, at the request of a majority of its members or at the request of the Council or of the Commission. As the defendant's rep- resentative confirmed at the hearing, use is 53. Substantive grounds to do with the scarcely ever made of this provision. proper functioning of the Parliament also militate in favour of construing additional plenary sessions as plenary sessions outside the regularly held plenary weeks. The main- tenance of three working places for the Par- liament by the Edinburgh Decision and the express designation of Brussels as the meet- ing place for committees means that the 51. N o r is there any indication to be had holding of shorter plenary sessions in Brus- from the wording of the Edinburgh Decision sels, the place in which the committees meet that, as required by the judgment in France v and the political groups are located, 42 is the Parliament, additional plenary sessions obvious if not indeed the only practicable should be designated as being of an excep- solution. tional nature 3 9 or as special plenary ses- sions. 40

54. A glance at the 1996 calendar of meet- 52. The term 'additional plenary sessions' ings at issue shows that all eight short ple- therefore implies, in my view, that these nary sessions in Brussels are fixed in weeks must be plenary sessions held outside the in which meetings of committees and politi- regularly held plenary weeks. This view of cal groups had previously been arranged. the matter finds support in the practice adopted under the currency of the decision of 8 April 1965 on the provisional location of certain institutions. 41 That the representa- tives of the governments of the Member States were guided by previous practice in

(a) Duties of the President of the Parliament under Article 125 of the Rules of Procedure of the European Parliament

59. Amendment N o 9 at issue here is worded as follows: October, week 41. Delete part session from 7th to 11th.' The acceptance of this amendment essentially led to the content complained of by the appli- 56. The applicant submits that the President cant. On the supposition that the fixing of of the Parliament ought to have recognized only 11 plenary weeks in the calendar of amendment N o 9 to the contested decision meetings for 1996 was unlawful, the question as being unlawful and should have prevented arises, then, whether the President of the it from proceeding under Article 125(3) of Parliament ought to have rejected the the Rules of Procedure of the European Par- amendment as inadmissible. liament. 43 The grounds of inadmissibility in the case of amendments set out in Article 125(1) are,, it is submitted, not exhaustive. In any event a Treaty infringement would con- stitute a substantive ground of inadmissi- bility. 60. Article 125(3) of the Rules of Procedure states: 'The President shall decide whether 43 — OJ 1995 L 293, p. 1. amendments are admissible.'

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The grounds giving rise to inadmissibility of 61. Under Article 125(2) an amendment an amendment are enumerated in paragraph lapses 'if it is inconsistent with decisions pre- 1 of the provision in the following terms: viously taken on the text during the same vote.'

' N o amendment shall be admissible if:

66. Under Article 19(4) the President has representational tasks which are not of sig- nificance in the present context. ' 1 . The President shall direct all the activities of Parliament and its bodies under the condi- tions laid down in these rules. He shall enjoy all the powers necessary to preside over the proceedings of Parliament and to ensure that they are properly conducted. 67. Article 125(1) of the Rules of Procedure clearly defines the criteria on the basis of which an amendment may be examined for its admissibility. Even the reference in gen- eral terms to the provisions of the Rules of Procedure permits no inference to be drawn 2. The duties of the President shall be to as to a general power or review on the part open, suspend and close sittings; to ensure of the President of the Parliament. The Rules observance of these rules, maintain order, of Procedure are a collection of organiza- call upon speakers, close debates, put matters tional provisions of the Parliament which are to the vote and announce the results of votes; not intended or apt to provide a yardstick and to refer to committees any communica- for a substantive legal appraisal of the acts of tions that concern them.' the institution. In my view any such power of review would be hardly consistent with the sovereignty of Parliament.

65. Paragraph 3 of that provision militates, in my view, against the conferring of any substantive power of appraisal by the Presi- 68. Another view of the matter could be dent. It provides: taken only under circumstances where one proceeds on the basis of a manifesdy unlaw- ful act. The question arises, then, whether the President of the institution is to be com- pelled to close his eyes to the substantive illegality of an act in order to rest content '3. The President may speak in a debate only with a formal examination. Since the amend- to sum up or to call speakers to order. ment at issue cannot be said to manifest ille- Should he wish to take part in a debate, he gality on the face of it, for the purposes of

Costs

70. The defendant is nevertheless of the opinion that the decision does not require to be accompanied by a statement of reasons. First, it is an act of its internal organization which only under exceptional circumstances is capable of infringing rights of third parties. 73. Under Article 69(2) of the Rules of Pro- Secondly, the work calendar of an institution cedure the unsuccessful party is to be is comprehensible on the face of it. The rea- ordered to pay the costs. Since the applicant soning for a decision fixing the calendar of has been unsuccessful, it must be ordered to the periods of sessions is so evident that a pay the costs. Under Article 69(4) a Member written statement of reasons is supereroga- State which has intervened in the proceed- tory. ings is to bear its own costs.

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C — Conclusion

74. In light of the foregoing considerations I propose that the Court should: