C-22/96

PARLIAMENT v COUNCIL

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 23 September 1997 *

1. Through the present action, the European 'guidelines' for trans-European data commu­ Parliament seeks annulment of Council nications networks between administra­ Decision 95/468/EC of 6 November 1995 on 2 tions; the second concerned a multiannual a Community contribution for telematic Community programme to support the interchange of data between administrations implementation of trans-European networks in the Community (IDA).1 The ground of for the interchange of data between adminis­ challenge concerns the legal basis of that 3 trations (hereafter 'the IDA project'). Both decision, which was adopted under Article proposals initially indicated Article 235 as 235 of the EC Treaty. The Parliament argues the legal basis for a decision. With the com­ that the contested measure should instead ing into force of the Treaty of Maastricht, have been based on Article 129d. The Com­ the legal basis was however changed to mission, intervening in the proceedings in Article 129d; in particular, reference was support of the applicant, also submits that made to the first paragraph of that article — the decision should be annulled on the which provides for use of the so-called 'co- ground that the second of the abovemen- decision' procedure — as regards the defini­ tioned articles constitutes the appropriate tion of guidelines, and to the third paragraph legal basis for the decision at issue. — which requires use of the cooperation procedure — with regard to the IDA multi- annual programme. The Council, however, notwithstanding the Parliament's negative opinion, adopted the contested decision on the basis of Article 235. 2. Before going into the arguments put for­ ward by the parties, it is worth recalling the procedural steps leading to the adoption of the decision.

being the decision at. issue here. It is true 4 trans-European networks, which both the that the final document differs significantly Parliament and the Commission argue is the from the mere combination of the two origi­ legal basis for adoption of the contested nal proposals. However, in substance the measure, are not capable of application in the contested decision incorporates both propos­ present case. According to the Council, the 5 contested decision provided for a financial als. contribution to certain projects in the field of telematic transmission of data between administrations; the Community contribu­ tion to trans-European networks, as pro­ vided under Article 129c(1), third indent, is however made dependent upon the defini­ tion of the framework programme provided 3. Now to the merits of the action. The con­ for in the first indent of the same article. In tested decision, as indicated above, was the present case, it is argued, those guidelines adopted on .the basis of Article 235. The had not been established. The Council there­ Court has consistently held that 'the use of fore maintains that it did not adopt the IDA Article 235 as the legal basis for a measure is decision on the basis of Article 129d, since justified only where no other provision of there had been no prior adoption of 'guide­ the Treaty gives the Community institutions lines' nor identification of 'projects of com­ the necessary power to adopt the measure in mon interest', which constitute the manda­ 6 question'. Article 235 is therefore a residu­ tory reference framework for all Community ary provision, to which recourse can be financial contributions. Nor can the con­ made only in the absence of other more spe­ tested measure be said — again, according to cific enabling provisions. In defending its the Council — to lay down 'guidelines' choice of that article, the Council starts out within the meaning of Article 129c(1), first from the very premiss that, in the case in indent, or to provide for measures ensuring question, there was no support for Commu­ 'the interoperability of the networks' in nity powers other than the general and sec­ accordance with the second indent of that ondary basis provided by Article 235. same article. Hence the need, it says, to base the decision at issue on Article 235.

ability (second indent); Community contri­ Whereas a Community contribution is nec­ bution for projects so identified (third essary, » the sixth recital underscores the indent). Thus presented, the decision has its need to lay down 'the conditions ... under proper legal basis in Title XII of the Treaty which the implementation of certain specific and not in Article 235. projects is eligible for Community support'.

Regarding the content of the contested meas­ 4. The criterion to be followed in resolving ure, Article 1 is worded as follows: 'The pur­ the case at issue is that set out in the Court's pose of this Decision is to determine the 7 settled case-law: it is the aim and content of Community contribution to certain projects the contested measure which must be con­ in the field of telematic interchange of data sidered in appraising whether or not the between administrations with a view to Council was entitled to adopt the measure facilitating cooperation between them. For on the basis of Article 235. I explain below this purpose, a list of projects is laid down the reasons why I agree with the applicant for 1995, 1996 and 1997 for which a specific that the contested measure falls under the need is hereby recognised along with the scope of Title XII of the Treaty, on trans- need for a Community contribution to ren­ European networks. der them operational throughout the Com­ munity'.

The aim pursued by the decision at issue is The projects which are recognised as requir­ described in its preamble. It seeks, through ing 'Community support' are listed in

5. If the aim and the content of the decision are taken into account, it is clear that the 12 — Article 2(1): 'The following are hereby recognised as action of the Community legislature is projects for telematic exchange of data between administra­ tions requiring Community supports within the sphere of trans-European — practical introduction of electronic mail on the basis of telematic networks. The fact that the ninth X.400, — improvement in the telematic interchange of data among recital indicates that the 'main purpose' of Member States and between Member States and the Community institutions, the decision 'is to facilitate cooperation — facilitating the Community decision-making process, between administrations' is not, in my opin­ i. e. mainly the communication and management of offi­ cial documents, ion, decisive. This, in fact, is merely the con­ — progress in the field of the following horizontal activi­ sequence of the creation of telematic net­ ties: — provision of generic services such as message trans­ works. The direct purpose of the measure is, fer, file transfer and data base access, basically, to promote telematic techniques — data structure and reference model involving defini­ tion of common architecture rules, standardisation for the interchange of data on the function­ activities and practical implementation, in particular NSPP (National Service Pilot Projects), ing of the internal market, and the Treaty — legal and contractual framework and quality control, — support for preparatory measures for telematic inter­ provides for a specific Community policy change of data of the European Environmental and action, under a separate title, in relation Agency, the Office for Harmonisation in the Internal Market (Trade Marks and Designs), the European to it. Moreover, it seems to me natural that Agency for the Evaluation of Medicinal Products, the European Monitoring Centre on Drug and Drug the creation of interoperable networks Addiction and the Translation Centre for the Bodies should 'serve' other aims and should pro­ of the Union, upon the request of these bodies ...' 13 — Article 2(1), sixth indent: 'customs and taxes: VIES/Sites, mote, in this case, cooperation between Excises Control, Quota, Scent-CIS/Fiscal, Tarie, EBTI, administrations. The fact remains, however, Transit; fisheries: Fides; agriculture: Animo, Physan, Shift; social security: Sosenet, Eures; Public procurement: Simap; health: CARE (early warning system and pharmacovigi- lance), Reitox; statistics: SISR/DSIS (including Extracom and SERT); commercial policy: SIGL; competition policy: Fourcom; culture: ITCG (illegal traffic of cultural goods)'. 15 — See Article 5(1). 14 — The Commission is assisted by a committee and must fol­ low the procedure laid down in Article 4. 16 — See Article 5(2).

However, there is nothing to prevent the programmes from being laid down in the same regulatory act as that which provides 6. In this respect, one fact seems certain: one for the financing. The sole purpose of Article aspect of the decision bears upon the Com­ 129c(1) is to allow objectives identified at munity financing of trans-European programme level, and which, so to speak, telematic networks. This point is undisputed follow a planning rationale, to benefit from and is, after all, admitted by the Council the financial support of the Community. itself; the defendant institution does not, in There is no need for the programme frame­ fact, dispute that financing exists for projects work to be defined in advance by a separate in the field of trans-European telematic net­ decision instead of being defined at the same works, but it argues that such projects were time as the decision that provides for Com­ not included in the previous series of 'guide­ munity financial support. The legislature lines' within the meaning of the first indent of Article 129c(1). For this reason, basing the contested decision on the third indent of that provision is precluded. 17 — Cited in footnote 6 above, in particular at paces I-1697 and I-1698.

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OPINION OF MR LA PERGOLA — CASE C-22/96

Technological progress and the complexity and quantity of data to be transmitted also require that information be interchanged by means of telematic tech niques. 7. As I have already stated, the decision has its origin in the Commission's proposal on 1 the establishment of 'guidelines'. 8All the elements which qualify the 'guidelines' within the meaning of the first indent of Article 129c(1) are to be found in the decision at issue. Pursuant to this article, the guidelines cover 'the objectives, priorities and broad lines of measures envisaged in the sphere of trans-European networks; these guidelines shall identify projects of common It further emerges from the preamble to the

. .'. The seventh recital then stresses that 'if indicated under Article 4 of the proposal; — Article 2(1), fourth indent (common architecture rules, there were no such Community contribu standardisation activities): sec Article 3 , fifth and sixth tion, exchanges of information between the indents and Article 4, horizontal activities, first indent; — Article 2(1), fourth indent (legal framework): the Com different administrative systems concerned at mission had proposed that this aspect be regulated in the framework of the second proposal for a decision (IDA); national and Community level would be the Council instead considered it to be a question of a likely not to be satisfactorily carried out'.

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PARLIAMENT v COUNCIL

imposed by the ongoing development of Furthermore, in my view, the decision at telematic technologies — for the proper issue has certain aspects which may be functioning of the internal market. described as action 'necessary to ensure the interoperability of the networks,' as is pro­ vided for in the second indent of Article 129c(1). This conclusion appears to result not only from the recitals of the decision, which underscore the need to ensure the interoperability of the national telematic sys­ 20 tems, but also from the clear wording of The 'broad lines of the measures envisaged' the decision itself. First of all, pursuant to appear in Article 5 of the decision. Paragraph the fourth indent of Article 4(3)(a), the spe­ (1) of this provision specifies the 'types of cial procedure instituted by that same article action' which may be undertaken in imple­ is to be followed for the 'adoption of com­ menting 'the projects recognised under mon rules and procedures for bringing about Article 2'. Paragraph (2) goes on to define technical and administrative interoperabil­ 'the framework conditions' which should be ity'. This confirms that the action instituted satisfied 'in the case of Community contri­ by the decision at issue also relates to the butions'. interoperability of the networks. The provi­ sions of Article 5(1) go along the same lines: among the actions the Community may undertake to implement 'projects of com­ mon interest', identified under Article 2, mention is made of those relating to the 'pre­ sentation of technical network solutions to enable communication between the adminis­ trations' autonomous information systems' Finally, the 'projects of common interest' are and to the 'preparation and validation of identified in Article 2, which lists all the ini­ common rules for a communications archi­ tiatives 'recognised as projects ... requiring tecture'. Lastly, interoperability is one of the Community support'. conditions to be satisfied in the case of Com­ 21 munity contributions.

9. In conclusion, in view of the foregoing, it cial support. Under the circumstances, I is my opinion that the content of the con­ believe that precedence of choice should go tested decision is covered by the Community to the co-decision procedure, which enables powers provided for in the first, second and the Parliament to be more incisively involved third indents of Article 129c(1). In effect, the in the elaboration of the measure. decision establishes 'guidelines', ensures the 'interoperability of the networks' and pro­ vides for a financial contribution from the Community. The decision at issue should, therefore, have been adopted pursuant to Article 129c(1) and the Council was not entitled to adopt it on the basis of Article 10. The Commission further requested that 235. Consequently, the contested measure the Court partially annul the decision at did not have the proper legal basis and issue, and specifically Article 2(2) thereof. should therefore be annulled. However, as the decision should be annulled in its entirety for want of due legal basis, the request for partial annulment is redundant.

It remains to be established which procedure should have been followed to adopt the con­ tested decision. The thrust of the Court's case-law is that 'where an institution's power 11. Finally, a few words on the request for is based on two provisions of the Treaty, it is the effects of the decision to be maintained in bound to adopt the relevant measures on the accordance with the second paragraph of 22 basis of the two relevant provisions'. Article 174 of the EC Treaty. The Council in fact asks the Court that, in the event that the decision is annulled, its effects should none the less be maintained. The Commission has, for its part, associated itself with this request. The Parliament, on the other hand, takes the 25 opposite view.

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PARLIAMENT v COUNCIL

In support of this request, it is submitted from causing serious harm to economic that an annulment with retroactive effect of operators, Member States, and to the Com­ the contested decision would seriously munity itself. It remains to be determined, hinder the proper course of cooperation however, which effects of the decision should between national administrations with regard be considered as definitive. The parties, and to the functioning of the internal market. It the Commission in particular, have explained is stressed in particular that programmes of the reasons for which the effects arising from essential importance such as VIES and action already undertaken on the basis of the ANIMO could no longer be pursued if the decision at issue should be maintained. decision at issue were annulled ex tunc. Nothing has been said, however, with regard to the other effects. Consequently, by anal­ ogy with the Court's ruling in Parliament v 2b Council, I propose that the Court declare that only the effects of measures already I consider that the Court should use the adopted on the basis of the contested power conferred upon it by the second para­ decision are to be maintained. graph of Article 174 so as to prevent retroac­ tive annulment of the contested decision

Conclusion

In the light of the foregoing, I propose that the Court :

— annul Council Decision 95 / 468 / EC of 6 November 1995 on a Community contribution for telematic interchange of data between administrations in the Community ( IDA );