C-11/00

COMMISSION v ECB

OPINION OF ADVOCATE GENERAL JACOBS delivered on 3 October 2002 1

Contents

Introduction I-7156

Background I-7157

The relevant Community provisions I-7159

Identification of the issues I-7171

Does Regulation No 1073/1999 apply to the ECB? I-7172

Is the contested decision contrary to Regulation No 1073/1999? I - 7176

Summary of the arguments I-7176

Admissibility I-7178

Substance I-7178

1 — Original language: English.

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OPINION OF MR JACOBS — CASE C-11/00

Consultation pursuant to Article 105(4) EC I-7193 Independence I-7199 Proportionality I-72O8 Admissibility under Article 241 EC I-7211 Conclusion I-7214

Introduction breach of an essential procedural require- ment, and violation of the independence of the ECB and the principle of propor- tionality.

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Background their action aimed at protecting the finan- cial interests of the Community against fraud, but did not grant the Community any new legislative powers. However, the Treaty of Amsterdam substantially amended that provision, granting the Com- munity explicit competence to take 'the 3. It is well known that substantial necessary measures in the fields of the amounts of Community funds are lost each prevention of and fight against fraud'. year as a result of fraud and other irregu- larities committed by natural and legal persons. In the year 2000 the Commission and the competent authorities of the Member States dealt with 6 915 new cases of fraud and other irregularities with an 5. Prior to the entry into force of the Treaty estimated budgetary impact of 2 030 mil- of Amsterdam, the Communities adopted lion eur. 4 The Community institutions various measures aimed at combating fraud have responded to this problem by adopt- committed by recipients of Community ing a number of legislative measures aimed funds in the Member States on the basis specifically at combating fraud. 5 of Article 308 EC. 7 In essence, those measures grant the Commission the right to carry out on-the-spot checks and inspec- tions in the Member States, and oblige the Member States to lay down effective, pro- portionate and dissuasive penalties and to cooperate in cases involving cross-border fraud. 8

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In order to strengthen the protection of the Community's financial interests and, per- haps, in response to criticisms levelled at UCLAF 9 the Commission proposed in 1998 the establishment of a new and independent anti-fraud service to be known as the Anti-Fraud Office or Office de Lutte Anti-Fraude (OLAF). 10 While the Com- mission initially proposed to establish OLAF — and to lay down detailed provi- sions for its operation — by a regulation 8. Within the ECB, two administrative based on Article 308 EC, OLAF was structures share the task of combating eventually established by a decision. 11 fraud and other irregularities.

D-IA pean Community, of a decision laying has since November 1999 15 shared that responsibility with an anti-fraud commit- tee. The anti-fraud committee — which was established by the decision of the Governing Council challenged by the Com- mission in the present case — is respon- sible for the regular monitoring of the 9 — See, in particular, Court of Auditors Special Report No 8/98 functions of D-IA . 16 on the Commission's services specifically involved in the fight against fraud, notably the 'unité de coordination de la lutte anti-fraude' (UCLAF) together with the Commission's replies, OJ 1998 C 230, p. 1.

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COMMISSION v ECB

The relevant Community provisions favouring an efficient allocation of resources, and in compliance with the principles set out in Article 4.

Provisions of the EC Treaty

2. The basic tasks to be carried out through the ESCB shall be: 9. Article 8 EC provides:

'A European System of Central Banks — to define and implement the monetary (hereinafter referred to as "ESCB") and a policy of the Community; European Central Bank (hereinafter referred to as "ECB") shall be established in accordance with the procedures laid down in this Treaty; they shall act within the limits of the powers conferred upon them by this Treaty and by the Statute of the ESCB and of the ECB (hereinafter — to conduct foreign exchange operations referred to as "Statute of the ESCB") consistent with the provisions of annexed thereto.' Article 111;

The ECB may submit opinions to the appropriate Community institutions or bodies or to national authorities on matters in its fields of competence.

'1. The ECB shall have the exclusive right to authorise the issue of banknotes within 5. The ESCB shall contribute to the smooth the Community.... conduct of policies pursued by the compet- ent authorities relating to the prudential supervision of credit institutions and the stability of the financial system.

6. The Council may, acting unanimously on a proposal from the Commission and 2. Member States may issue coins subject 17 — Article 4 of the Statute contains a provision identically to approval by the ECB of the volume of worded to Article 105(4) EC. the issue....'

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COMMISSION v ECB

12. Article 108 EC provides: 18 2. Member States shall take the same measures to counter fraud affecting the financial interests of the Community as they take to counter fraud affecting their own financial interests.

18 — Article 7 or the Statute contains an identically worded provision.

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14. Article 287 EC provides: istrative investigations for the purpose of strengthening the fight against fraud, cor- ruption and any other illegal activity adversely affecting the Community's finan- cial interests, as well as any other act or 'The members of the institutions of the activity by operators in breach of Commu- Community, the members of committees, nity provisions. and the officials and other servants of the Community shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in par- ticular information about undertakings, The Office shall be responsible for carrying their business relations or their cost com- out internal administrative investigations ponents.' intended:

(a) to combat fraud, corruption and any other illegal activity adversely affecting The decision establishing OLAF the Community's financial interests,

15. OLAF was established by Commission Decision No 1999/352 of 28 April 1999 ('Decision No 1999/352'), 19 adopted on (b) to investigate serious facts linked to the the basis of Article 162 of the EC Treaty performance of professional activities (now Article 218 EC), Article 16 of the which may constitute a breach of ECSC Treaty and Article 131 of the obligations by officials and servants of Euratom Treaty. the Communities likely to lead to disciplinary and, in appropriate cases, criminal proceedings or an analogous breach of obligations by Members of the institutions and bodies, heads of the 16. With regard to the 'Tasks of the bodies or members of staff of the Office', Article 2 of Decision No 1999/352 institutions and bodies not subject to provides, in so far as relevant: the Staff Regulations of Officials of the European Communities and the Con- ditions of Employment of Other Ser- vants of the Communities.

The regulation concerning investigations carried out by OLAF 17. According to Article 4 of Decision No 1999/352:

20. Regulation No 1073/1999 20 was adopted on the basis of Article 280 EC. 'A Surveillance Committee shall be estab- lished, the composition and powers of which shall be laid down by the Commu- nity legislature. This Committee shall be responsible for the regular monitoring of 21. Article 1 of Regulation No 1073/1999, the discharge by the Office of its investi- entitled 'Objectives and task', provides: gative function.'

18. Article 6(4) of Decision No 1999/352 provides: '1. In order to step up the fight against fraud, corruption and any other illegal activity affecting the financial interests of

'Commission decisions concerning its inter- 20 — Cited m note 3. Council Regulation (Euratom) nal organisation shall apply to the Office in No 1074/1999, cited in note 12, lays down with effect for the Euratom Treaty substantially identical provisions. so far as they are compatible with the However, that regulation is not at issue in the present case.

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'1. In the areas referred to in Article 1, the Office shall carry out administrative inves- tigations within the institutions, bodies, offices and agencies (hereinafter "internal 3. Within the institutions, bodies, offices investigations"). and agencies established by, or on the basis of, the Treaties (hereinafter "the institu- tions, bodies, offices and agencies"), the Office shall conduct administrative investi- gations for the purpose of: These internal investigations shall be car- ried out subject to the rules of the Treaties, in particular the Protocol on privileges and immunities of the European Communities, and with due regard for the Staff Regu- lations under the conditions and in accord- ance with the procedures provided for in — fighting fraud, corruption and any this Regulation and in decisions adopted by other illegal activity affecting the finan- each institution, body, office and agency. cial interests of the European Commu- The institutions shall consult each other on nity, the rules to be laid down by such decisions.

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COMMISSION' v ECB

4. The institutions, bodies, offices and agencies shall be informed whenever employees of the Office conduct an inves- (b) the procedures to be observed by the tigation on their premises or consult a Office's employees when conducting document or request information held by internal investigations and the guaran- such institutions, bodies, offices and tees of the rights of persons concerned agencies. by an internal investigation.'

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23. According to Article 5 of Regulation and with the decisions referred to in the No 1073/1999, 'internal investigations second subparagraph of Article 4(1). shall be opened by a decision of the Director of the Office, acting on his own initiative or following a request from the institution, body, office or agency within which the investigation is to be conducted'. 5. Investigations shall be conducted con- tinuously over a period which must be proportionate to the circumstances and complexity of the case.

24. Article 6 of Regulation No 1073/1999, entitled 'Investigations procedure', pro- vides: 6. The Member States shall ensure that their competent authorities, in conformity with national provisions, give the necessary support to enable the Office's employees to '1. The Director of the Office shall direct fulfil their task. The institutions and bodies the conduct of investigations. shall ensure that their members and staff afford the necessary assistance to enable the Office's agents to fulfil their task; the offices and agencies shall ensure that their managers and staff do likewise.' 2. The Office's employees shall carry out their tasks on production of a written authorisation showing their identity and their capacity. 25. Under Article 7 of Regulation No 1073/1999, entitled 'Duty to inform the Office':

3. The institutions, bodies, offices and agencies, and, in so far as national law allows, the Member States shall also send the Office any other document or infor- mation considered pertinent which they hold relating to the fight against fraud, corruption and any other illegal activity affecting the Communities' financial inter- 4. Reports drawn up following an internal ests.' investigation and any useful related docu- ments shall be sent to the institution, body, office or agency concerned. The institution, body, office or agency shall take such action, in particular disciplinary or legal, 26. Article 8 of Regulation No 1073/1999 on the internal investigations, as the results lays down rules aimed at protecting the of those investigations warrant, and shall confidentiality of information and protec- report thereon to the Director of the Office, tion of data obtained in the course of within a deadline laid down by him in the investigations. findings of his report.'

27. Article 9 of Regulation No 1073/1999, 28. Articles 11, 12 and 14 of Regulation so far as is relevant, provides: No 1073/1999 lay down rules concerning the tasks of the Supervisory Committee, the tasks of the Director and the right to complain against acts adversely affecting officials or other servants of the Commu- '1. On completion of an investigation car- nities adopted by the Office in the course of ried out by the Office, the latter shall draw internal investigations.

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OPINION OF MR JACOBS — CASE C-11/00

The lnterinstitutional agreement concern- The contested decision ing internal investigations by OLAF

30. The parties agreed, in particular, to 'adopt common rules consisting of the implementing measures required to ensure the smooth operation of the investigations carried out by the Office within their institution' and to 'draw up such rules 33. The first and third recitals of the and make them immediately applicable by preamble to the contested decision state adopting an internal decision in accordance that the ECB attaches great importance to with the model attached to this Agreement the protection of the Communities' finan- and not to deviate from that model save cial interests and its own financial interests. where their own particular requirements According to the fourth and sixth recital of make such deviation a technical necessity'. the preamble, the ECB aims to combat fraud and other illegal activities detrimen- tal to its financial interests while maintain- ing the current distribution and balance of responsibilities between the ECB and the institutions of the European Communities and while taking account of the indepen- 31. The Agreement states moreover that dence of the ECB and the fact that the ECB '[t]he other institutions, and the bodies and has its own budget and its own financial offices and agencies established by or on resources separate from those of the Euro- the basis of the EC Treaty or the Euratom pean Communities. The eighth recital of Treaty, are hereby invited to accede to this the preamble states that 'combating fraud Agreement by forwarding a declaration and other illegal activities detrimental to addressed jointly to the Presidents of the the financial interests of the ECB is a core signatory institutions'. 22 — Protocol annexed to the EC Treaty. 23 — Decision No 1999/726/EC, cited in note 2. Hereinafter 'the 21 — Cited in note 13. contested decision'.

35. According to Article 1(7), the anti- fraud committee may, where appropriate, instruct D-IA with regard to the perform- 38. Under Article 1(3) to (5) of the con- ance of its activities. tested decision, the anti-fraud committee is

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composed of three outside independent Article 6 of the Treaty on European Union, persons, appointed by the Governing and the Protocol on the privileges and Council for a renewable term of three immunities of the European Commu- years, who in carrying out their duties nities;25 and that information obtained in must neither seek nor take instructions the course of fraud investigations is to be from the decision-making bodies of the subject to professional secrecy. 26 ECB, from institutions or bodies of the European Communities, from any govern- ment or from any other institution or body.

25 —Article 5(1). 24 — Article 4. 26 — Article 7.

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COMMISSION v ECB

Procedure and claims of the parties intervened in support of the Commission. They put forward arguments substantially similar to those of the Commission. I will mention their interventions only where 43. The Commission asks the Court, pur- relevant and, in particular, in so far as they suant to Article 230 EC, to annul the differ from the Commission's arguments. It contested decision and to order the ECB to should also be noted that the parties in the pay the costs. Its essential submission is present case have submitted highly detailed that the contested decision is contrary to, in arguments and that those arguments will be particular, Article 4 of Regulation set out only so far as is necessary for the No 1073/1999. consideration of the issues which arise.

47. The ECB submits that the Court should interpret the provisions of the Regulation so as to exclude the ECB from its scope. It considers that Regulation No 1073/1999 does not define its scope ratione personae 50. It is clear from Articles 1(3), 4(1) and in very precise terms. Since the Regulation (6), 5 (second paragraph), 6(6), 7(1), (2) would, according to the ECB, be invalid for and (3), 9(4), 10(3) and 14 (second para- lack of legal basis, breach of an essential graph) that the Regulation applies to 'the procedural requirement, and violation of institutions, bodies, offices and agencies the independence of the ECB and the established by, or on the basis of, the principle of proportionality if it applied to Treaties'. The seventh recital of the pre- the ECB, the Court should adopt an inter- amble states that 'OLAF must be able to pretation which would render the Regu- conduct internal investigations in all 28 the lation consistent with the Treaty. More institutions, bodies, offices and agencies specifically, the ECB argues that the term established by, or on the basis of, the EC 'bodies' which appears in, inter alia, and Euratom Treaties'. Article 1 of the Regulation must be inter- preted as meaning bodies whose financial interests are — unlike those of the ECB — linked directly to the budget of the Com- munity.

52. Since the wording is clear, it is in principle unnecessary and undesirable to go further. And, even so, in the present case the drafting history of the Regulation tends to support the view that it applies to the ECB. The preamble to the Commission's 54. I consider, for those reasons, that proposal for Regulation No 1073/1999 29 Regulation No 1073/1999 applies to the stated that the OLAF 'must be able to ECB. conduct internal investigations in the Insti- tutions and other bodies established by or on the basis of the EC and Euratom Treaties...'. 30 While the level and intensity of consultations which took place is not entirely clear from the file, it is common ground that members of the staff of the ECB argued against the application of the proposed regime to the ECB during meet- 55. The ECB contests that conclusion on ings with representatives of the Council. the grounds that it cannot be considered to The Parliament and the Council did not, be a 'body' established by, or on the basis however, change the Commission's pro- of, the EC Treaty within the meaning of the posal in accordance with the ECB's argu- Regulation given the particular position it ments. 31 On the contrary, the Council enjoys under the Treaty. While the ECB inserted in the seventh recital of the pre- accepts that it does not 'exist in a legal amble the word 'all', thus reaffirming the world totally distinct from that of the broad scope ratione personae envisaged by Community', and that the Community the Commission's proposal legislature may adopt general measures applicable to the ECB, it draws attention, in particular, to the fact (i) that the ECB is 29 — COM (1999) HO Final. 30 — The sixth recital of the preamble. 31 — The Parliament suggested the following formulation of the 32 — Press release of 8 October 1999, annexed to the Commis- relevant recital in the preamble: 'in the Institutions, bodies sion's application. and organs established by or on the basis of the EC and 33 — European Parliament resolution on the Commission Euratom Treaties' (emphasis added). See Legislative resol- annual report 2000 on the protection of the Communities' ution embodying Parliament's opinion on the amended financial interests and the fight against fraud and on the proposal for a Council regulation concerning investi- Commission communication on protecting the Commun- gations conducted by the Fraud Prevention Office, ities' financial interests. Fight against fraud. Action plan for OJ 1999 C 279, p. 280. 2001-2003, adopted on 29 November 2001, paragraph 4.

not a Community institution within the Community mentioned in Article 2 EC, the meaning of Article 7 EC; 34 (ii) that the EC ECB was established by Article 8 of the EC Treaty has conferred upon the ECB legal Treaty, and all of the provisions governing personality distinct from the legal person- its constitutional position were placed in ality of the European Community; 35 (iii) the EC Treaty and in the Statute, which as a that the ECB has its own internal decision- protocol to that Treaty forms part of making bodies; 36 (iv) that those bodies primary Community law. 42 have been granted original powers under the Treaty to adopt legally binding meas- ures; 37 (v) that the accounts of the ECB are not to be examined by the Court of Auditors; 38 and (vi) that the ECB is to act independently of the Community institu- tions in the execution of its tasks. 39 58. Second, it may be recalled that Article 105(1) EC provides that '[w]ithout prejudice to the objective of price stability, the ESCB shall support the general econ- omic policies in the Community with a view to contributing to the achievement of the objectives of the Community as laid down in Article 2'. That provision cor- 56. I am unconvinced by that argument for responds to Article 4 EC, placed in Part essentially three reasons. One of the Treaty ('Principles'), which provides that '[f]or the purposes set out in Article 2, the activities of the Member States and the Community shall include... the adoption of an economic policy' and that '[concurrently with the fore- going...these activities shall include the... 57. First, while the Member States con- definition and conduct of a single monetary sidered the possibility of establishing the policy and exchange-rate policy the pri- provisions on monetary policy and the mary objective of both of which shall be to ESCB in a separate 'monetary pillar' under maintain price stability and, without preju- the Treaty on European Union, 40 they dice to this objective, to support the general chose to integrate those matters in the EC economic policies in the Community, in Treaty. 41 The establishment of a monetary accordance with the principle of an open union was thus added to the tasks of the market economy with free competition'.

60. It follows, as the Commission points 61. It may be added that the ECB might out, from those considerations that the have contended, as a subsidiary argument, ECB forms an integral part of the Commu- that Regulation No 1073/1999 is to be nity framework. The particular position of interpreted as applying to the ECB, but the ECB within that framework — which only in so far as the ECB actually manages distinguishes it from, on the one hand, the Community budget funds. 49 That argu- institutions and, on the other hand, the ment could not however — as the Com- agencies and offices created by secondary mission pointed out at the hearing — have Community law — cannot, in my view, succeeded in any event. Community funds lead to the conclusion that the ECB is not a account, according to the explanations of body forming part of the Community. 46 the parties, for only about 3-4% of the The ECB is subject to the general principles annual budget of the ECB and consist, of law which form part of Community law essentially, of Community tax deducted by and promotes the goals of the Community the ECB from the salaries of its staff. To set out in Article 2 EC through the limit the powers of OLAF to the control of implementation of the tasks and duties laid those funds would be unrealistic and dif- upon it. 47 It may therefore be described as ficult to realise in practice. It would more- the Central Bank of the European Com- over entirely undermine the effectiveness of Regulation No 1073/1999 as regards the ECB. In the absence of firm support in the 4 3 — A r t i c l e s 2 3 0 , 2 3 2 , 2 3 4 , 2 3 7 , 2 4 1 and 2 3 5 EC in wording or the legislative history, that conjunction with Article 288 EC, and Articles 14.2, 35 and 36 of the Statute. interpretation therefore cannot be 44 — Article 27.1 of the Statute. accepted. 45 — Article 248 EC and Article 27.2 of the Statute. 46 — See similarly R. Smits, The European Central Bank (1997), p. 9 3 , describing the ESCB as an 'organ of the Commu- nity'. 48 — See R. Torrent, 'Whom is the European Central Bank the 4 7 — See similarly F. Amtenbrink and J. de H a a n , 'The central bank of?: Reaction to Zilioli and Selmayer', European Central Bank: an independent specialized organ- Common Market Law Review 1999, p. 1229, at p. 1231. ization of Community law — a comment', Common Compare C. Zilioli and M . Selmayr, cited in note 4 0 , p. 30; Market Law Review 2002, p. 6 5 , at p. 68. The ECB itself M . Selmayr, 'Die EZB als Neue Gemeinschaft: ein Fall für has described its role as being that of contributing to the den EuGH?', Europa-Blätter 1999, p. 170. achievement of the objectives of the Community through 4 9 — At a late stage in the proceedings, the ECB declared its its mandate to maintain price stability. See ECB Monthly willingness to submit itself, motu proprio, to the powers of Bulletin, October 2000, 'The ECB's relations with institu- OLAF — and to adopt a decision under Article 4 of the tions and bodies of the European Community', pp. 49 to Regulation to that effect — with regard exclusively to 64, at p. 52. such funds.

Summary of the arguments 65. In that regard, the Commission points out that the preamble to the contested decision explicitly distinguishes between 63. According to the Commission, the measures taken on the basis of Article 280 contested decision is contrary to Regulation EC to combat fraud and other illegal No 1073/1999 in two respects. activities detrimental to the Communities' financial interests and measures applicable to the ECB, stressing that the independence of the ECB is provided for by the Treaty and that the ECB has its own budget and its own financial resources separate from 64. First, the Commission recalls that those of the European Communities. The Article 4(1) of Regulation No 1073/93 contested decision thus formalises the provides that '[i]n the areas referred to in opinion of the ECB, which it expressed on Article 1, the Office shall carry out admin- several occasions during the legislative istrative investigations within the institu- process leading to the adoption of Regu- tions, bodies, offices and agencies'. 50 How- lation No 1073/1999, that only the ECB ever, according to the eighth recital of the has the power to decide if, by whom and preamble to the contested decision, 'com- how investigations of the activities of its bating fraud and other illegal activities members of staff are to be conducted. The detrimental to the financial interests of view that the system of investigations the ECB is a core function of the Direc- envisaged by the contested decision is torate for Internal Audit' which 'is respon- intended as an alternative to investigations sible for conducting administrative investi- conducted by OLAF is furthermore, gations within the ECB to this end'. More- according to the Commission, borne out over, under Article 2 of the contested by the fact that the only provision for contact between the two systems is Article 1(9) of the contested decision under 50 — The Commission relies on the French version of the which the anti-fraud committee is to 'be Regulation which refers to Hes enquêtes' rather than responsible for the relations with the simply 'investigations'.

Supervisory Committee of... OLAF' in preamble and in Article 2. 51The only new accordance with 'principles [to be] estab- element in the contested decision is the lished by a decision of the ECB'. creation of the anti-fraud committee, aimed at increasing the independence of D-IA and at strengthening its ability to combat fraud. In taking that particular step, the ECB did not violate Regulation No 1073/1999 since the Regulation cannot be interpreted as granting OLAF a monopoly on the inves- 66. Second, the Commission states that tigation of fraudulent activities within the Article 4(1) of Regulation No 1073/1999 Community institutions and bodies. obliges all institutions, bodies, offices and agencies established by or on the basis of the EC Treaty to adopt a decision which — according to Article 4(6) — is to include rules concerning the duty to cooperate with and supply information to OLAF, the pro- cedures to be observed by OLAF when conducting internal investigations and the guarantees of the rights of persons con- cerned by such investigations. The con- tested decision does not, however, lay 68. To the Commission's second argument down the terms and conditions under the ECB responds that Article 4 of Regu- which OLAF is to carry out internal lation No 1073/1999 does not oblige the investigations within the ECB. Indeed, it institutions and bodies to adopt rules con- provides that staff of the ECB must inform cerning the modalities of internal investi- the anti-fraud committee or D-IA of any gations to be conducted by OLAF. fraud or illegal activities detrimental to the Article 4(1) does not explicitly provide that financial interests of the ECB, without the institutions and bodies must adopt such laying down a parallel obligation to inform rules; the second sentence of Article 4(1) OLAF of such activities. merely envisages that the 'institutions shall consult each other on the rules to be laid down'. It thus appears from the wording of Article 4(1) that the institutions and bodies are free to abstain from adopting such a decision, and to take other appropriate measures to combat fraud. In its view, that argument is supported by the fact that the 67. The ECB submits that the contested parties to the Interinstitutional Agreement decision is not contrary to Regulation considered it necessary to include therein a No 1073/1999. In reply to the Commis- provision obliging the signatory institutions sion's first argument — according to and bodies to adopt such a decision. The which the eighth recital of the preamble ECB adds that Article 4 does not lay down to and Article 2 of the contested decision a time-limit for the adoption of a decision negates the powers of OLAF — the ECB by the institutions and bodies. states that the contested decision is essen- tially declaratory of the state of affairs which existed prior to its adoption, as is 51 —Combating fraud 'is' a core function of D-IA which 'is' confirmed by the use of the indicative in the responsible for conducting administrative investigations.

70. The Commission essentially submits that the contested decision is in substance a decision of the ECB not to cooperate with OLAF in accordance with the provisions of Regulation No 1073/1999 and, in particu- lar, not to adopt the decision mentioned in Article 4(1) and (6) of the Regulation. 72. It is true, as the Commission points out, Thus, the Commission seeks to demon- that the French version of Regulation strate that the contested decision is a No 1073/1999 envisages that OLAF is to negative decision which may be reviewed carry out Hes enquêtes internes', 53 and that in proceedings pursuant to Article 230 the Italian and Greek versions contain EC. 52 The admissibility of the Commis- similar phrases which might, perhaps, be sion's second argument is thus inextricably read as suggesting that OLAF is to be linked with the substance of the case and I responsible for all internal investigations. therefore propose to consider it in that However, the other language versions do context. not support that interpretation. For example, the English version merely states that OLAF shall 'carry out administrative 52 — See, in particular, Case 42/71 Nordgetreide v Commission investigations within the institutions, [1972] ECR 105, paragraph 4 of the judgment and Joined Cases T-79/96, T-260/97 and T-117/98 Cantar v Com- mission and Council [2000] ECR 11-2193, paragraph 92 and the case-law cited there. See also T.C. Hartley, The Foundations of European Community Law (4th ed., 53 — Article 4 and the seventh recital of the preamble, emphasis 1998), pp. 335 to 337, 380 and 381. added.

73. In my view, the creation by the ECB of an internal system aimed at fighting fraud is therefore not per se contrary to Regu- 75. However, the matter does not end lation No 1073/1999. there. The institutions and bodies of the Community are bound by Regulation No 1073/1999 and therefore obliged to abstain from action which would under- mine its effectiveness. As the Council points out, the Regulation does not impose an obligation of result to be achieved by each 74. Secondly, it is clear, as the ECB points institution or body by whatever means it out, that the contested decision does not might consider appropriate; it requires explicitly 'negate' the powers conferred them to cooperate with OLAF in good upon OLAF by Regulation No 1073/1999. faith so that OLAF may carry out the task The contested decision provides that 'com- laid upon it by the legislature. bating fraud... is a core function' of D-IA which 'is responsible for conducting admin- istrative investigations within the ECB to this end'. Thus, the contested decision does not state that D-IA is 'solely' responsible

77. First, Article 2 — according to which both from the preamble and from its D-IA is 'responsible for investigating and text — that it is in substance a negative reporting on all issues related to the decision not to adopt the implementing prevention and detection of fraud and other decision envisaged in Article 4 of Regu- illegal activities' 55 — appears to express lation No 1073/1999. the desire of the Governing Council of the ECB to ensure that investigations are carried out exclusively by the ECB anti- fraud system. It would be unrealistic to believe that members of staff — with the exception, perhaps, of a few courageous individuals — would cooperate with 80. Whilst the preamble to the contested OLAF in defiance of such a managerial decision acknowledges that 'all available policy. means must be fully deployed' to combat fraud, 56 it also states that the deployment of those means must be subject to 'main- taining the current distribution and balance of responsibilities between the ECB and the institutions of the European Commu- 78. Secondly, according to Article 5 of the nities'. 57 As the ECB has explained to the contested decision staff of the ECB (i) Court, D-IA was responsible for fraud 'shall... inform the anti-fraud committee investigations within the ECB when the or the Directorate for Internal Audit of any contested decision was adopted. The pre- fraud or illegal activities' and (ii) 'must in amble may thus be seen to reflect the no way suffer inequitable or discriminatory resolve of the ECB not to change the status treatment as a result of having contributed quo by adopting a decision pursuant to to the activities of the anti-fraud committee Article 4 aimed at facilitating the conduct or the Directorate for Internal Audit of investigations by OLAF. referred to in this Decision'. By stating that ECB staff are obliged to inform the ECB anti-fraud system (and not OLAF) and, more importantly, by omitting to state that staff may not suffer adverse consequences as a result of contributing to the activities of OLAF, that provision is liable to dis- 81. The first recital of the preamble to the courage ECB staff from informing and contested decision states that 'the ECB, cooperating with OLAF. together with the institutions of the Euro- pean Communities and the Member States, attaches great importance to... efforts to combat fraud'. The second recital recalls that 'the Cologne European Council in June 1999 considered it eminently desirable that the ECB should join the institutions of the 79. Above all, however, it is clear in my European Communities in efforts to com- view from the contested decision itself —

84. The view that the contested decision is in substance a decision not to comply with Article 4 of Regulation No 1073/1999 is also borne out by its substantive provisions.

82. That interpretation of the preamble is 85. It will be recalled that Article 1(9) of confirmed by the sixth recital which states the contested decision provides that 'Itļhe that the ECB is independent from the anti-fraud committee shall be responsible institutions and has its own budget and for the relations with the [OLAF] Super­ financial resources separate from those of visory Committee'. No other provision is European Communities. It may, as the made for cooperation with OLAF in the Commission points out, be inferred from contested decision. The only point of con­ that recital alone that the ECB considers its tact between the ECB system and OLAF is position within the Treaty system to differ thus at a general level; the contested from that of the other institutions and decision does not envisage cooperation at bodies to such an extent that it is not, and the operational level or the adoption of a could not be, required to comply with decision laying down the modalities for Regulation No 1073/1999. investigations to be carried out by OLAF.

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COMMISSION v ECB

carried out... under the conditions and in Regulation aims, essentially, to combat accordance with the procedures provided fraud by granting OLAF powers to conduct for... in decisions adopted by each institu­ investigations within the institutions and tion, body, office and agency' and that bodies of the Community whilst fully according to Article 4(6) 'the decision to be respecting the rights of the individuals adopted by each institution, body, office or 59 affected. In order to achieve that aim it agency as provided for in paragraph 1, shall will — as is also clear from the pre­ in particular include rules concerning' the amble 60 — be necessary to amend the duty to cooperate with OLAF, the pro­ Staff Regulations. 61 Acknowledging, how­ cedures to be observed by OLAF and the ever, that reform of the Staff Regulations is rights of persons concerned. a lengthy process, the legislature provided for the adoption by the institutions and bodies of the Community of decisions laying down rules concerning the duty to cooperate with OLAF, the procedures to be observed by OLAF and the rights of persons concerned. If the adoption of those decisions were not obligatory, the aim of the regulation — effective fraud preven­ 91. The natural meaning of 'in decisions tion with respect for individual rights — adopted' and 'the decision to be adopted' is might be seriously jeopardised in the short in my view clear — in English and in the or medium term. other language versions of Article 4( 1 ) and 4(6): those phrases are not permissive and must be understood as laying down an obligation to act. 58 That interpretation is, as the Commission points out, confirmed by the 10th recital of the preamble which states that 'the institutions, bodies, offices and agencies must lay down the terms and conditions under which... internal investi­ 93. As explained above, the Commission gations are conducted'. initially proposed to establish OLAF and to lay down the rules for its operations by a regulation based on Article 308 EC. 6 2 Article 3(2) of the proposed regulation provided that '[e]very institution or body may confer on [OLAF] the task of carrying out administrative investigations internal to

that institution or body... by way of a Parliament implicitly acknowledged that decision laying down the conditions and Article 4 of the Regulation is not manda- rules under which internal investigations tory. It appears from the Explanatory are to be conducted'. 63 Thus, the proposal Memorandum issued by the Commission envisaged that the institutions and bodies that the purpose of the 'Interinstitutional could choose whether to adopt a decision Agreement was to 'prevent wide diver- which would enable OLAF to carry out gencies in the rules laid down by [the] internal investigations. 64 Since Regulation decisions' 66 to be adopted under Article 4 No 1073/1999 does not provide that the of the Regulation, by providing a model institutions 'may' adopt a decision pur- decision to be adapted to the particular suant to Article 4, it appears that the situation of each institution. That is more- legislature intended Article 4 to be obliga- over confirmed by the preamble to the tory. That inference is borne out by the agreement which states that internal 'inves- Explanatory Memorandum issued con- tigations should be carried out under comitantly with the proposal for Regu- equivalent conditions in all the Community lation No 1073/1999 in which the Com- institutions, bodies and offices and mission stated that '[c]ontrary to the provi- agencies' 67 and that the parties have 'con- sions of Article 3(2) of the original pro- ferred for the purpose of drawing up posal, the institution and bodies can no common rules for that purpose'. 68 longer choose whether or not to confer this task on [OLAF]'. 65

Article 4 does not lay down a time-limit Admissibility within which the institutions and bodies must adopt a decision. As I have explained, the contested decision must be interpreted as a decision of principle not to adopt such a decision. Nor can it be objected that the 98. According to the Commission, that contested decision is essentially declara- submission should be declared inadmiss- tory. By establishing the anti-fraud com- ible. It considers that the ECB — which mittee, laying down procedural rules and was aware that the Regulation was providing for (strictly limited) relations intended to apply to it — should have with OLAF, the contested decision went challenged Regulation No 1073/1999 pur- beyond stating what was at the time of its suant to Article 230 EC. Under the third adoption the role of D-IA within the ECB. paragraph of that article, the ECB has standing to challenge a regulation for the purpose of protecting its prerogatives. The ECB denies that it was aware that the Regulation applied to it and recalls that according to the wording of Article 241 EC, 'any party' may challenge 'a regu- lation' 'notwithstanding the expiry of the Should Regulation No 1073/1999 be time-limit laid down in the fifth paragraph declared inapplicable pursuant to of Article 230 EC'. Article 241 EC?

101. The ECB submits that Regulation No 1073/1999 is invalid in so far as it was adopted on the basis of Article 280 EC. Its detailed arguments in that regard fall in two parts.

— The first submission: measures to com- bat fraud in the Member States 103. The Commission resists those argu- ments. It argues that Article 280 EC grants the Community legislature a broad power by providing for the adoption of all 'necess- ary measures' and that Article 280(4) must 102. The ECB submits, first of all, that be read in the light of Article 280(1) EC Article 280(4) EC grants the Community which states that 'the Community and the the power only to take measures aimed at Member States shall counter fraud... enhancing the ability of the authorities of through measures to be taken in accord- the Member States to combat fraud and ance with this Article'. To limit Article 280 other irregularities; that provision is not EC to measures aimed at assisting fraud concerned with fraud and other irregular- prevention might also undermine its effec- ities occurring within the Community insti- tiveness (effet utile) since, in order to obtain tutions themselves. Regulation a complete picture of the activities of No 1073/1999 is therefore invalid in so economic agents and authorities in the far as it extends the powers of OLAF to the Member States in the course of external institutions and bodies of the European investigations, it may be necessary to Community. In that regard the ECB points investigate also the activities of members out that Article 280(1) and (4) EC refers and staff of the Community institutions only to measures aimed at combating fraud and bodies.

104. I cannot accept the ECB's submission. measures aimed at combating fraud within the Community institutions themselves. That argument is of relevance for the interpretation of Article 280(4) EC, which must be interpreted in the light of Article 280 EC as a whole. 105. It is true, as the Council stated in its intervention, that the wording of Article 280 EC appears at first sight to be concerned with measures aimed at strengthening the efforts of the Member States to combat fraud rather than with fraud occurring within the Community institutions themselves. Moreover, the fact that Article 280 EC envisages the adoption of 'necessary measures' is hardly relevant since, as the ECB points out, that phrase 108. Secondly, Article 280(4) EC provides merely begs the question for what purpose that 'the Council... shall adopt... meas- those measures may be adopted — to ures... with a view to affording effective combat fraud within the institutions or in and equivalent protection in the Member the Member States? States'. The reference to 'equivalent pro- tection in the Member States' is significant; it lays down a requirement which must be fulfilled by all measures aimed at combat- ing fraud in the Member States. However, it is important to note that Article 280(4) EC does not provide that the Community 106. A more careful analysis of the word- may act 'only' with a view to affording ing, structure and history of Article 280 EC equivalent protection in the Member leads, however, to the conclusion that the States. Thus, the fact that Article 280 EC Community may adopt measures concern- lays down a requirement (of equivalence) ing fraud prevention within the institutions to be met by certain types of measures and bodies. (applicable to fraud prevention in the Member States) cannot, in my view, be taken to mean that the legislature is pre- cluded from adopting other measures (aimed at fighting fraud within the institu- tions and bodies). I consider, for the same reason, that the last sentence of 107. First, it will be recalled that according Article 280(4) EC — which states that to Article 280(1), '[t]he Community and the measures adopted 'shall not concern the Member States shall counter fraud... the application of national criminal law' — through measures to be taken in accord- must be understood as a requirement which ance with this Article'. There is, in my applies when the Community adopts meas- view, some force in the Commission's ures aimed at fighting fraud in the Member argument that by referring to the Commu- States; it is not to be inferred from that nity and the Member States, Article 280( 1 ) phrase that other measures cannot be EC appears to envisage the adoption of adopted.

109. Thirdly, and more importantly, competence under Article 280(4) EC — Article 280 EC explicitly provides that the was intended to exclude such measures. measures adopted must grant 'effective' protection of the financial interests of the Community against fraud and other irregu- larities. It would be difficult for the legis- lature to meet that requirement if it were precluded from taking action aimed at combating fraud within the Community institutions and bodies. In order to obtain a complete picture of the activities of econ- omic agents and authorities in the Member States it may, as the Commission points out, be necessary to investigate the activ- 111. I am encouraged in that view by the ities of members and staff of the Commu- travaux préparatoires to the Treaty of nity institutions and bodies. The fact that Amsterdam. 69 It emerges from those docu- certain institutions and bodies might estab- ments that Article 280(4) EC was inserted lish internal anti-fraud systems indepen- into the Treaty amidst concerns over fraud dently of measures adopted under and other misuse of Community funds in Article 280 EC is not a convincing objec- the Member States 70 as well as within the tion to that argument, since it is not certain Community institutions. Thus, in its that all institutions and bodies would Opinion of 28 February 1996 entitled establish such systems or that such systems 'Reinforcing Political Union and Preparing would be as effective. for Enlargement', the Commission empha- sised that '[f]raud against the Community's financial interests must be combated effec- tively. This cannot be done without a firm commitment by the Member States as well as the institutions. The Commission pro- poses that the Union give itself an appropri- ate legal basis'. 71 In 'A Strategy for Europe', Final report from the Chairman of the Reflection Group on the 1996 Inter- governmental Conference 72 it was stated that '[t]he Group wants the Community institutions to be more effective in combat- ing fraud' and that '[a]ll institutions and 110. It would, moreover, be paradoxical in my view if the Community had the power to regulate a sensitive area of Member State 69 — Available at the 1996 IGC retrospective database, competence — namely the investigation of http://europa.eu.int/en/agenda/igc-home/key-doc.html. potentially serious criminal offences — 70 — See, e.g., Report on the Operation of the Treaty on European Union Presented by the European Commission, but were entirely precluded from laying 10 May 1995, paragraphs 66-68; Resolution on Parlia- down general rules for the investigation of ment's opinion on the convening of the Intergovernmental Conference, paragraph 22; Resolution [of the European acts of its own staff on the basis of Parliament] on the functioning of the Treaty on European Union with a view to the 1996 Intergovernmental Con- Article 280 EC, and it seems implausible ference — Implementation and development of the that the revision of Article 209a of the EC Union, paragraph 36. Treaty effected by the Treaty of Amster- 71 — Paragraph 11, emphasis added. 72 — Reflection Group's Report, Messina 2 June 1995, Brussels dam — specifically the addition of the 5 December 1995, Part Two: An Annotated Agenda.

113. According to the ECB, Regulation No 1073/1999 is invalid in so far as it applies to the ECB. In that regard, it points 112. Finally, it must be borne in mind that out that Article 280 EC is placed in Title II the Court of Justice has not adopted a strict of Part Five of the EC Treaty which lays and literal approach to the interpretation of down rules governing the budget of the enabling provisions in the Treaty, 76 and it European Community. Since the Treaty is well established that '[t]he Community must be given a systematic interpretation, the notion of 'the financial interests of the Community' in Article 280 EC cannot be 73 — Paragraph 133, emphasis added. 74 — Key priority VII, emphasis added. different from that of 'the budget' of the 75 — Point 3.1, emphasis added. See also point 1.6 winch European Community mentioned in emphasised 'the need to make the necessary efforts to combat fraud against the Community's financial interests Article 268 EC. It follows that Article 280 through both the management methods of the Institutions, EC enables the Community to take meas- especially the Commission, and national administrations, and by all parties in the matter of strengthening controls ures aimed only at protecting the Commu- designed to prevent fraud'. 76 — See, in particular, Case (I-295/90 Parliament v Council [1992] ECU I-4193; Case C-426/93 Germany v Council [1995] ECR I-3723; Case C-268/94 Portugal v Council 7 7 — Opinion 2/94 [1996] ECR I-1759, paragraph 25. See also [1996] ECR I-6177; Case C-84/94 United Kingdom v Joined Cases 281/85, 283/85 to 285/85 and 287/85 Council [1996] ECR I-5755; Case C-377/98 Netherlands v Germany and others v Commission [1987] ECR 3203. Parliament and Council [2001] ECR I-7079, paragraph 15 of the judgment. "8 — See similarly U. Mager, cited in note 58, at p. 189.

nity against fraud and other illegal activ- not justify the submission of all the activ- ities which entail a loss of revenue or an ities of the ECB to the powers of OLAF. increase in expenses occurring on the budget of the Community. The ECB is however financially independent of the budget of the European Community. It has its own budget governed by Chapter IV of the Statute ('Financial provisions') 79 and the more detailed rules laid down by the Council of Governors pursuant to Article 12.3 of the Statute. 80 According to Article 26.2 of the Statute that budget is drawn up by the Executive Board in

That view the Community budget, those funds are of is consistent with Article 248 EC under minor importance in relation to the tasks which the powers of the Court of Auditors entrusted to the ECB, and they therefore do are not limited to items of revenue and expenditure on the budget of the Commu- nity. It is also supported by legislative practice. Thus, Regulation No 2988/95 on the protection of the European Commun- 79 — Articles 26 to 33 of the Statute. ities' financial interests 84 defines 'irregu- 80 — Article 12.3 provides that '[t]he Governing Council shall larity' as 'any infringement of a provision adopt Rules of Procedure which determine the internal organisation of the ECB and its decision-making bodies'. of Community law resulting from an act or Based on that provision, the ECB has adopted the Rules of omission by an economic operator, which procedure of the European Central Bank as amended on 22 April 1999, OJ 1999 L 125, p. 34, which lay down in has, or would have, the effect of prejudic- Articles 15 and 16 provisions for the budgetary procedure and for reporting and annual accounts. ing the general budget of the Communities 81 — Such principles were, according to the ECB, laid down by a or budgets managed by them, either by decision of the Council of Governors of 1 December 1998 and amended by a further decision of the Council of reducing or losing revenue accruing from Governors of 15 December 1999. own resources collected directly on behalf 82 — The assets of the ECB are (i) its capital which is subscribed by the national central banks pursuant to Article 28 of the of the Communities, or by an unjustified Statute, (ii) its foreign reserve assets provided by the national central banks under Article 30 of the Statute and item of expenditure'. 85 That provision (iii) monetary income resulting from the performance of shows that the financial interests of the the ESCB's monetary policy function by the ECB and the national central banks and allocated in accordance with Community may be, and have been, under- Article 32 of the Statute. stood as covering more than the budget of 83 — The ECB refers to Article 33.2 of the Statute which the Communities. provides that '[i]n the event of a loss incurred by the ECB, the shortfall may be offset against the general reserve fund

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115. In any event, the Commission argues case-law that different expressions utilised that even if a distinction were to be drawn within the same Title of the Treaty must be between, on the one hand, the budget of the given the same meaning. The fact that Community and, on the other hand, the Article 280 EC is placed in Title II of Part financial interests of the ECB, the ECB Five of the EC Treaty is therefore, in my would fall w i t h i n the scope of view, not a convincing argument for the Article 280(4) EC and measures adopted ECB's claim that the notion of 'the finan- pursuant to it. That is so because the ECB cial interests of the Community' must be manages certain Community resources understood as equivalent to that of 'the including, in particular, Community tax budget of the Community'. On the which it deducts from the salaries, wages contrary, the existence of two different and pensions of the members of the Gov- expressions in different provisions of the erning Council, the General Council and same Title would appear to suggest that a the staff of the ECB. 86 The fact that those different meaning was intended. Moreover, resources constitute a small part of the when Article 280(4) EC in that Title was budget of the ECB is irrelevant since it is for introduced by the Treaty of Amsterdam — the Community legislature to decide with a view to adoption of strengthened whether the fact that a body manages measures against fraud — it was entirely Community funds justifies the adoption of natural for that provision to be placed with measures to combat fraud within that the financial provisions in Title II of Part body. V. It cannot be inferred from the fact that it was placed there that the Treaty draftsmen intended it to be limited in scope to the budget of the Communities dealt with in the preceding provisions of that Title. Nor is there any suggestion in the travaux 116. I am unconvinced by the ECB's sub- préparatoires to the Treaty of Amsterdam missions. that the choice to place Article 280(4) EC in that Title was intended to limit the scope of Article 280(4) EC, or to shelter the ECB from measures against fraud.

affecting its assets. Moreover, the source of 120. I would not however give much the assets in question is not decisive in my weight, for the purpose of the present case, view; ensuring the proper use of all funds to the definitions laid down in those held by the institutions, bodies, offices or measures. While legislative practice may agencies of the Community must be be relevant for determining the scope of regarded, in my view, as forming part of Community competences, 90 it must be the financial interests of the Community borne in mind that Regulation No 2988/95 and may thus be the subject of measures was adopted on the basis of Article 235 of adopted on the basis of Article 280(4) EC. the EC Treaty (now Article 308 EC), not Article 280 EC. Moreover, that Regu- lation — and the Convention referred to by the ECB — were drafted at a time when the ECB had not been established. The fact that, at that point, the 'financial interests of the Community' were defined in terms which might be interpreted as excluding the financial interests of bodies, such as the ECB, whose capital and budget are either entirely or essentially separate from the budget of the Community cannot deter- mine the interpretation to be given to 119. The ECB considers that interpretation Article 280 EC today. to be inconsistent with legislative practice. It argues that, contrary to what the Com- mission contends, the provisions of Regu- lation No 2988/95 show that the financial interests of the Community cannot extend beyond the budget of the Community and, perhaps, the budget of certain offices and agencies whose assets are derived from that 121. The question, then, is whether Regu- budget and who have a loss guarantee lation No 1073/1999 may be regarded as a linked to it. It also refers to the Convention measure aimed at protecting the 'financial drawn up on the basis of Article K.3 of the interests of the Community' in so far as it Treaty on European Union, on the pro- aims to prevent fraud and other illegalities tection of the European Communities' from adversely affecting the budget and financial interests, 88 which provides that assets of the ECB. 'fraud affecting the European Commun- ities' financial interests shall consist of... in respect of expenditure, any intentional act or omission... which has as its effect the misappropriation or wrongful retention of funds from the general budget of the European Communities or budgets man- aged by, or on behalf of, the European 122. I would answer that question in the Communities'. 89 affirmative. The fact that there is, as the

125. I accordingly conclude that Regu- 123. The ECB objects to that conclusion by lation No 1073/1999 was adopted on the pointing out that the provisions concerning correct legal basis. the institutional position of the ECB are to be found in Article 8 EC, Title VII of Part Three of the Treaty and in the Statute. Part Five of the Treaty — Title I of which lays down institutional provisions for the five Community institutions, the Economic and Social Committee, the Committee of the Regions and the European Investment Bank and Title II of which contains financial Consultation pursuant to Article 105(4) EC provisions (including Article 280 EC) — does not contain a chapter on the ECB. According to the ECB, the structure of the Treaty reflects a deliberate choice by the Treaty draftsmen which the Court of Jus- 126. The ECB submits that if Regulation tice should respect when interpreting No 1073/1999 is to be interpreted as Article 280(4) EC. 92 — It appears from the Annual Accounts of the ECB and Consolidated Balance Sheet of the Eurosystem 2001 that in the year ending 31 December 2001, the ECB had a total net income of EUR 2 124 963 526 and that it made a profit of EUR 1 821 819 922. The accounts were published in the Annual R e p o r t 2 0 0 1 of the ECB, a v a i l a b l e at http://www.ecb.int. 93 — According to Article 28 of the Statute, the capital of the 124. I disagree. The structural interpre- ECB is ECU 5 000 million and may be increased by decision of the Governing Council. According to tation of the Treaty favoured by the ECB Article 30.1 of the Statute, the ECB is to be provided by cannot prevail over the clear wording of the national central banks with foreign reserve assets up to an amount equivalent to ECU 50 000 million. It appears from the Annual Accounts of the ECB and Consolidated Balance Sheet of the Eurosystem 2001, cited in note 92, that by the end of 2001 the total assets of the ECB were 91 — See paragraphs 55 to 60. EUR 68 061 170 826.

127. More specifically, the ECB argues that Regulation No 1073/1999 falls within 'its fields of competence' because it directly 129. The Commission resists those argu- affects the power of the ECB to organise its ments. It asks whether the obligation to internal affairs which it has been granted consult the ECB laid down in Article 105(4) by Article 12.3 of the Statute, 94 as com- EC is not limited to measures which con- plemented by the principle of implied cern the essential substantive matters for powers, 95 and its power to 'lay down the which the ECB is responsible, in particular conditions of employment of the staff of the Community monetary policy. Accord- the ECB' under Article 36 of the Statute. In ing to its wording, Article 105(4) EC does that context it points out that the Commu- not apply to all measures which may have nity legislature consulted the predecessor to consequences for the ECB. The Commis- the ECB (the European Monetary Institute, sion considers moreover that the ECB has hereinafter the 'EMI') on the proposal for been consulted in so far as it was invited to Regulation No 1197/98 96 which extended and did take part in preparatory work the application of the tax regime applicable carried out in the Council, where it to Community staff 97 to the salaries, wages expressed its views orally and in writing. and emoluments of the members of the The fact that Regulation No 1073/1999 Governing Council and the General Coun- does not refer explicitly to the views of the cil and the staff of the ECB. ECB expressed during the preparatory phase is a question of form which cannot affect the validity of the Regulation. 94 — Cited in note 80. 95 — In that regard, the ECB refers to Germany v Commission, cited in note 77. 98 — The procedure for adoption of opinions of the ECB was, at 96 — Cited in note 86. the material time, laid down in ECB Administrative 97 — As laid down in Regulation No 260/68, OJ 1968 L 56, p. 8, Circular 4/98, which has been supplied to the Court by subsequently amended on several occasions. the ECB.

134. In order to answer that question it is, as the ECB points out, not sufficient to 132. Second, there can be no doubt that the observe that a measure may affect the ECB consultation envisaged by Article 105(4) in some way without falling within the EC is additional to the consultation scope of Article 105(4) EC. It is necessary requirements laid down in specific enabling to interpret the wording of Article 105(4) provisions of the Treaty. The fact that EC, in the light of its context and purpose, Article 280(4) EC does not provide for in order to determine whether it applies to consultation of the ECB is therefore, as the a measure — such as Regulation ECB stated in response to the submissions No 1073/1999 — which aims to combat of the Netherlands Government, not rel- fraud and other irregularities by, in par- ticular, laying down rules for the conduct of internal investigations. 99 — See, with regard to the obligation to consult the European Parliament, Case 138/79 Roquette Frères [1980] ECR 3333; Case C-21/94 Parliament v Council [1995] ECR I-1827, paragraph 17 or the judgement. See, with regard to 101 — It is not entirely clear whether it is for the Commission, the obligationor the High Authority to consult the Council the Council or, perhaps, the Parliament to consult the and the Consultative Committee under the ECSC Treaty, ECB under Article 105(4) EC. See R. Smits, cited in note Case 1/54 France v High Authority [1954-56) ECR 1, át 46, p. 212. Compare J. Cloos et al., Le Traité de p. 15 and Case 2/54 Italy v High Authority [ 1954-56] ECR Maastricht: genèse, analyse, commentaires (2nd ed., 37, at p. 52, confirmed by Case 6/54 Netherlands v High 1994), p. 254, and J. Rideau, Droit institutionnel de Authority [1954-56] ECR 103, at p. 112. l'Union et des Communautés européennes (3rd ed., 100 — See, in that regard, T. Hartley, The Foundations of 1999), p. 614, arguing that it is for the Council to European Community Low 14th ed., 1998), p. 412. consult.

136. However, that reading of the text of Article 105(4) EC cannot, in my view, be reconciled with a systematic interpretation of the Treaty. Article 105 EC is placed in Chapter 2 (Monetary policy) of Title VII of Part Three of the Treaty. Article 105, the opening article of the Chapter, is divided into six paragraphs. After setting out, in the first paragraph, the objectives of the ESCB, the second paragraph provides a list of the basic tasks to be carried out through the 138. I am encouraged in that view by the ESCB. Following the third paragraph, travaux préparatoires to Article 105(4) EC. which merely clarifies the content of the The draft treaty amending the Treaty third indent of paragraph 2, the fourth establishing the European Economic Com- paragraph provides for consultation of the munity with a view to achieving economic ECB. and monetary union, which was presented by the Commission in 1991, 104 envisaged consultation of the ECB on 'any draft Community legislation... on monetary, pru- dential supervision, banking or financial

140. The interpretation which I have sug- gested is also consistent with the purpose of Article 105(4) EC. The consultation envis- aged by that provision aims, in my view, to ensure that the legislature is well informed when it adopts measures relating to sub- jects of which the ECB has particular knowledge or expertise, in particular, mon- etary policy. 107 Thus, the involvement of 139. It cannot be objected against that the ECB under Article 105(4) EC seeks to view that Article 105(4) EC refers, in the enhance the quality of Community legis- plural, to the 'fields' of competence of the lation to the advantage of the European ECB. While Article 117(6) EC provided — polity as a whole; it is not designed to until the establishment of the ECB — for protect the interests of the ECB, or to give consultation of the EMI on proposed the ECB a voice over all measures which Community acts within its 'field of com- are capable of affecting its internal organi- petence'. The use of the singular in that sation. provision reflected the fact that the tasks of the EMI were limited; under Article 117(2) and (3) EC its role was, essentially, to prepare the third phase of monetary union. The tasks laid upon the ECB by the

142. The fact that the Council consulted compilation and dissemination of monet- the EMI on the proposal for Regulation ary, financial, banking and balance of No 1197/98 does not affect that con- payments statistics, (iv) clearing and pay- clusion. The Council is entitled to consult ment systems, in particular for cross-border institutions and bodies of the Community transactions, and (v) rules applicable to even where it is not obliged to do so. 08 Its financial institutions in so far as they decision to consult the EMI is therefore not influence the stability of financial institu- relevant for determining the scope of tions and markets. It cannot, in my view, be Article 105(4) EC. Moreover, the ECB has inferred from the reference to legislation refrained, rightly in my view, from arguing concerning 'the status and powers of that the consultation which took place national central banks' that legislation created a legitimate expectation that the concerning investigation of fraud and other ECB would be consulted on other measures irregularities committed by members and relating to internal organisation and con- staff of central banks fall within the 'field ditions of employment of staff. of competence' of the EMI or, by analogy, the 'fields of competence' of the ECB.

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action. Thus, OLAF is no more capable of points out, clear that the independence thus influencing the decision-making of the ECB established is not an end in itself; it serves a than the internal anti-fraud system of the specific purpose. By shielding the decision- ECB. making process of the ECB from short-term political pressures the principle of indepen- dence aims to enable the ECB effectively to pursue the aim of price stability and, without prejudice to that aim, support the economic policies of the Community as 148. In order to determine whether the required by Article 105(1) EC. 115 application of the provisions of Regulation No 1073/1999 to the ECB would violate its independence, it is necessary to consider the purpose and the essential features of that independence as provided for in the Treaty and the Statute. 113

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institutions and bodies in the performance Governors are to be appointed (by the of its tasks. 118 The institutions and bodies competent national authorities) for a of the Community — with the notable period of no less than five years. 124 exception of the Court of Justice — do Security of tenure is assured since a not have the power to approve, suspend, member of the Executive Board may be annul or defer decisions of the ECB, nor are compulsorily retired (by the Court of Jus- the institutions entitled to vote during the tice on an application by the Governing meetings of the Executive Board and the Council or the Executive Board) only if he Governing Council. 119 Moreover, the no longer fulfils the conditions required for Treaty has granted the ECB powers to the performance of his duties or if he has adopt regulations, decisions, recommen- been guilty of serious misconduct. 125 dations and opinions considered necessary Equally strict conditions apply where the to carry out certain tasks 120 and, as has authorities of a Member State seek to already been mentioned, to lay down its relieve a central bank Governor, and own rules of procedure for its internal member of the Governing Council, of his organisation and the terms of employment functions. 126 Moreover, the members of of its staff. 121 the Executive Board must perform their duties on a full-time basis and are generally precluded from engaging in any other occupation. 127

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155. As is evident from this summary, the the President of the Council may submit a Treaty and the Statute confer upon the ECB motion for deliberation by the Governing a high level of independence which is Council. 137 Moreover, the Treaty provides equivalent to, or perhaps greater 131 than, mechanisms through which the European the independence of the national central Parliament may exercise a degree of banks which prevailed prior to the reforms influence on the decision-making of the undertaken at national level in order to ECB. The Parliament is to be consulted on comply with the requirements for entry into the appointment of members of the Execu- the Monetary Union. 132 However, the tive Board. 138 The President of the ECB principle of independence does not imply must present an annual report on the a total isolation from, or a complete activities of the ESCB and on the monetary absence of cooperation with, the institu- policy of both the previous and the current tions and bodies of the Community. The year to the Parliament which may hold a Treaty prohibits only influence which is general debate on that basis. 139 In addi- liable to undermine the ability of the ECB tion, the competent committees of the to carry out its tasks effectively with a view Parliament may organise hearings of the to price stability, and which must therefore President of the ECB and the other be regarded as undue. 133 members of the Executive Board. 140

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monetary policy; 1 4 5and (v) delegate — considered. The ECB presents, in sub- and lay down conditions for — the exer- stance, two arguments. First, it contends cise of powers to the ECB. 146 that the powers conferred upon OLAF by Regulation No 1073/1999 might, by put- ting the members of its governing bodies under pressure, actually undermine the ability of the ECB to implement the tasks and exercise the powers conferred upon by it by the Treaty independently. Second, it 158. Those provisions — which establish maintains that the powers of OLAF under (i) a limited degree of democratic account- the Regulation might be seen to undermine ability for the achievement by the ECB of the ability of the ECB to act independently. the tasks laid upon it by the Treaty 147 and (ii) a degree of co-operation between the Community institutions, which are respon- sible under Chapter 1 of Title VII for the economic policy of the Community, and the ECB, which is responsible for the monetary policy of the Community — may be contrasted with those provisions 160. I disagree with the first of those of the Treaty which make it clear that the arguments. The ECB has, as the Commis- ECB is, as are all other Community insti- sion points out, failed to explain how the tutions, bodies, offices and agencies, sub- exercise of the powers of OLAF under ject to the principle of the rule of law. 148 Regulation No 1073/1999 could in practice The ECB is thus subject to the jurisdiction affect the decision-making process of the of the European Court of Justice and bound ECB. Nor could it, in my view, have by Community law. 149 provided such an explanation.

lation No 1073/1999 refers to OLAF as an responsible for directing the investigations entity which has been 'established among of OLAF 156and acts as appointing auth- [the Commission's] own departments'. 152 ority for its staff. 157While the Director is It is however clear from the provisions of nominated by the Commission, for a period Decision No 1999/352 and Regulation of five years, the nomination is subject to No 1073/1999 that OLAF is not an ordi- the approval of the Supervisory Committee nary department of the Commission either. and consultations with the European Par- liament and the Council. 158The Commis- sion can take disciplinary action against the Director only by reasoned decision after consulting the Supervisory Committee. 159 The Supervisory Committee consists of five independent outside persons who possess 162. According to Article 3 of Decision the qualifications required for appointment No 1999/352 OLAF 'shall exercise [its] in their respective countries to senior posts powers of investigation in complete inde- relating to the areas of activity of pendence'. Article 12(3) of Regulation OLAF, 160appointed for a period of three No 1073/1999 states, more precisely, that years 16 1by common accord of the Euro- 'the Director shall neither seek nor take pean Parliament, the Council and the instructions from any government or any Commission. 162 institution, body, office or agency in the performance of his duties with regard to the opening and carrying out of external and internal investigations or to the draft- ing of reports following such investi- gations'. 153 164. In accordance with the independence of OLAF envisaged by Decision No 1 9 9 9 / 3 5 2 and R e g u l a t i o n No 1073/1999, it is for the Director alone to decide whether to initiate internal inves- tigations in particular cases. Thus, investi- gations can be opened only by a decision of the Director who may act at the request of 163. In order to render the independence of an institution or body or at his own OLAF effective, Decision No 1999/352 and Regulation No 1073/1999 provide, in par- ticular, that OLAF is to be headed by a Director 154and that its activities are to be monitored and assisted by a Supervisory Committee. 155 The Director is solely 156 —Second paragraph of Article 5(1) of Decision No 1999/352; Article 6(1) of Regulation No 1073/1999. 152— Fourth recital. 157 — Article 6(1) of Decision No 1999/352. 153—See also the 18th recital of the preamble to the 158 — The first paragraph of Article 5(1) of Decision Regulation. No 1999/352; Article 12(2) of Regulation No 1073/1999. The period of nomination may be 154 — The first paragraph of Article 5(1) of Decision renewed once. No 1999/352; Article 12(1) of Regulation No 1073/1999. 159 — Article 12(4) of Regulation No 1073/1999. 155 —Article 4 of Decision No 1999/352; Article 11 of Regulation No 1073/1999. For a detailed account of 160 — Article 11(2) of Regulation No 1073/1999. the activities of the Supervisory Committee, see OLAF 161 —Article 11(3) of Regulation No 1073/1999. The period Supervisory Committee Report July 2000-September may be renewed once. 2001, 11 October 2001. 162 — Article 11(2) of Regulation No 1073/1999.

166. That view is, as the Council points out, supported by the fact that OLAF does not exercise continuous control over the financial management of the ECB; it acts only where there are, exceptionally, grounds for suspecting that fraud or other 167. Moreover, the ECB might, as the irregularities within the meaning of Regu- Commission and the Netherlands Govern- lation No 1073/1999 have occurred. And ment point out, exclude access to infor- even then, OLAF does not have the power to take disciplinary or legal action where an internal investigation reveals the existence 165 —Under Article 7 of Regulation No 1073/1999 the institutions and bodies of the Community are obliged to forward to OLAF information relating to possible cases of fraud, corruption and other illegal activities. 166 — Article 4(2) and (6) of Regulation No 1071/1999. 163 — Article 5 of Regulation No 1073/1999. See also the 12th recital of the preamble to the Regulation, which states 167 — Article 4(2) of Regulation No 1073/1999. that 'to ensure that the Office is independent in carrying 168 — Article 4(2) of Regulation No 1073/1999. out the tasks conferred on it by this Regulation, its Director must be given the power to open an investi- 169 — Article 9(4) of Regulation No 1073/1999. gation on his own initiative'. 170 — Article 10(2) of Regulation No 1073/99. 164 — Article 12(3) of Regulation No 1073/1999. 171 — Article 9(4) of Regulation No 1073/99.

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170. It may well be true, as the ECB states, information held or created in the course that economic operators cannot be of legal proceedings. 177 expected to be fully aware of the institu- tional arrangements which guarantee OLAF a high degree of operational inde- pendence from the Commission, and that some operators might therefore suspect, 168. What, then, of the second argument of erroneously, that the Commission would be the ECB that the powers conferred upon in a position to put pressure on the ECB via investigations, or the threat of investi- gations, by OLAF. However, other oper- 172 — See further below at paragraph 186. ators might feel reassured to know that, 173 — Commission Decision of 2 June 1999 concerning the albeit independent, the ECB is subject to terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any the same system of external, specialised and illegal activity detrimental to the Communities' interests, independent control of its financial dealings OJ 1999 L 149, p. 57; Council Decision of 25 May 1999 concerning the terms and conditions for interna! investi- as other Community institutions and gations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' bodies. Indeed, it would seem to me that interests; OJ 1999 L 149, p. 36; European Parliament the reputation of the ECB might suffer Decision of 18 November 1999 on the amendment to the Rules of Procedure following the Interinstitutional Agree- considerable damage if accusations of fraud ment of 25 May 1999 on the internal investigations conducted by the European Anti-Fraud Office (OLAF) directed at members of its management or and, annexed thereto, European Parliament Decision staff could not be cleared through an concerning the terms and conditions for internal investi- gations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' investigation carried out by a body outside interests, OJ 1999 L 202, p. 1. the ECB itself. 174 — Decision de la Cour de Justice du 26 octobre 1999 relative aux conditions et modalités des enquêtes internes en matière de lutte contre la fraude, la corruption et toute activité illégale préjudiciable aux intérêts des Commun-

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180 — It appears that in most Member States the investigation of fraud falls within the jurisdiction of the ordinary police and/or prosecution services. However, in some States that task is entrusted to a specialised department within the prosecution service or the police. In other Member States 173. The argument that the powers of a body outside the prosecution service and police OLAF are liable to undermine the per- exercises functions essentially similar to those of the police with regard to fraud. ceived independence of the ECB must also, 181 — That applies to, at least, Belgium, Denmark, Finland, as the Council points out, be assessed in the France, Germany, Greece, Italy, Netherlands, Portugal, S p a i nand Sweden. light of the situation in the Member States. 182 — That applies to, at least, Austria, Finland, France, Germany, Ireland, the Netherlands, Spain and (with the exception of those tasks that arc relevant to the missions of the ESCB) Portugal. In States where no provision is made for control by a public auditing body, the accounts 178 — See above, paragraphs 148 to 158. of the central bank arc generally audited by independent 179 — For an o v e r v i e w , and further references, sec external auditors. That applies to Denmark, Ireland, F. Amtenbrink, cited i n note 116, pp. 11 to 26. Luxembourg, Portugal and the United Kingdom.

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national central banks envisaged in Proportionality Article 108 EC. 183 Nor is there is any evidence that investigations of the national central banks by external bodies have adversely affected their reputation on the financial markets or their ability to imple- 176. That brings me to the last objection of ment an effective monetary policy aimed at invalidity raised by the ECB in the present price stability. case. It submits that Regulation No 1073/1999 is contrary to the principle of proportionality in so far as it applies to the ECB. Three essential arguments are made in support of that submission.

178. Second, the ECB considers that the scheme envisaged by R e g u l a t i o n 175. I would accordingly reject the ECB's No 1073/1999 is unsuited to the specific submission that the application of Regu- nature of its activities. The majority of the lation No 1073/1999 to the ECB violates tasks of the ECB are extremely market- the principle of independence enshrined in sensitive and therefore subject to strict Article 108 EC. requirements of confidentiality. Given the risk that information obtained by OLAF in the course of internal investigations might 183 — See EMI Report 'Progress Towards Convergence 1996', leak, the ECB would therefore be forced to November 1996, pp. 100 to 104; EMI Convergence Report 1998, cited in note 111, pp. 12 and 13 and 291 to exclude from the scope of OLAF investi- 295; ECB Convergence Report 2000, pp. 65, 69 to 72; ECB Convergence Report 2002, pp. 40 and 44 to 46. gations all information pertaining to the Those reports are available at http://www.ecb.int. execution of its basic tasks listed in

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COMMISSION v ECB

180. In reply to those arguments, the Commission recalls that the Community 182. I cannot accept the ECB's sub- legislature considered it necessary, in order missions. to strengthen the fight against fraud, to establish a single independent and special- ised service for all the institutions, bodies, offices and agencies of the Community. The fact that in doing so the legislature did not take account of the existence of dif- ferent internal and external controls for each of those institutions, bodies, offices 183. It is not for the Court of Justice to and agencies cannot be regarded as dispro- substitute its judgment for that of the portionate. The existence of those various Community legislature when reviewing controls will certainly affect the way in the lawfulness of general measures. The which internal inquiries are carried out in Court will annul such measures only if it is practice, but it is not a convincing argu- clearly established that they are, as a whole ment for excluding the application of or as regards certain aspects, dispropor- Regulation No 1073/1999 altogether. tionate. The issue in the present case is therefore not whether the different internal and external controls to which the ECB is subject are adequate, but whether by establishing a general system of external and independent control the legislature 181. According to the Commission, the clearly exceeded what is necessary in order specific nature of the tasks entrusted to to combat fraud.

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OPINION OF MR JACOBS — CASE C-11/00

185. With regard to the specific nature of the tasks entrusted to the ECB, I agree with the Commission that those are issues which must be resolved, following a constructive dialogue between the parties consonant with the principle of loyal cooperation, 184 in the decision to be adopted by the ECB Such information may not be communi- under Article 4(1) and (6) of Regulation cated to persons other than those within the No 1073/1999. institutions of the European Communities or in the Member States whose functions require them to know, nor may it be used 184 —Article 10 EC. for purposes other than to prevent fraud,

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corruption or any other illegal activity', 185 the Council that that system — which and which obliges the Director of the allows the specific tasks and situation of Office and the members of the Supervisory each institution, body, office or agency to Committee to ensure that Article 287 EC is be taken into account — strikes an appro- applied. 186 priate and proportionate balance between the exigencies of institutional organisa- tional autonomy and effective fraud pre- vention. 188

187. Moreover, while the inability of OLAF to carry out investigations within 189. I accordingly conclude that Regu- the national central banks in its own name lation No 1073/1999 is not contrary to might reduce the effectiveness of Regu- the principle of proportionality in so far as lation No 1073/1999 to some extent, the it applies to the ECB. ECB has not provided precise explanations to support its assertion that OLAF would as a result of that limitation of its powers be unable to complete its task with regard to the ECB itself.

191. The view that an institution or body may invoke the invalidity of a regulation as a defence in an action seeking the annul- ment of a measure adopted by that institu- tion or body for violating the regulation in 192. All those arguments must, however, question is, as the ECB stresses, supported be weighed against important consider- by the wording of Article 241 EC according ations of principle. The time-limit for to which 'any party' may in proceedings in instituting proceedings laid down in the which 'a regulation' is at issue 'invoke fifth paragraph of Article 230 EC aims to before the Court of Justice [its] inapplica- guarantee legal certainty within the Com- bility', and it might be considered contrary munity. To interpret Article 241 EC as to the principle of legality if, faced with a opening up an additional possibility of regulation alleged by the defendant institu- review for applicants who would have been tion or body to be illegal in certain respects, able to institute proceedings for annulment the Court were to declare that that institu- as of right, but have omitted to do so, tion or body had acted unlawfully, or failed would run counter to that aim and might to fulfil its obligations, without examining encourage delaying tactics. It may be the allegations and merely pointed out that recalled in that regard that the Court held they could have been made in proceedings for annulment. Moreover, while the Court of Justice has never explicitly ruled that a 191 — See, in that regard, the Opinion of Advocate General Member State may invoke the invalidity of Darmon in Case C-258/89 Commission v Spain [1991] ECR1-3977, paragraphs 15 to 21. See also, favouring this a regulation as a defence in an infringement view, the Opinions of Advocate General Roemer in Case 32/65 Italy v Council and Commission [1966] ECR 389, action under Article 226 EC, it has never at p. 414; Advocate General Slynn in Case 181/85 France v Commission [1987] ECR 689, pp. 702 to 704; Advocate General Mancini in Case 204/86 Greece v Council [1988] ECR 5323, paragraph 6; and A. Barav, 'The exception of illegality in Community law: a critical 190 — According to the case-law, it is for the Court to decide analysis', Common Market Latv Review 1974, p. 366; whether in the circumstances of the case the proper P. Dubois, 'L'exception d'illégalité devant la Cour de administration of justice justifies the dismissal of an Justice des Communautés européennes', Cahiers de droit action on the merits without ruling on the objection of européen 1978, p. 411; H. Schermers and D. Waelbroeck, inadmissibility raised by the Commission, see judgment Judicial Protection in the European Communities (5th ed. of 26 February 2002 in Case C-23/00 P Comici! v 1992), paragraphs 467 and 531; K. Lenaerts & D. Arts, Boehringer. Procedural Latv of the European Union (1999), p. 223.

194. None the less, and placing particular emphasis on the clear wording of Article 241 EC, which creates a remedy (if only an incidental one), I tentatively conclude that the ECB's second plea in law — to the effect that Regulation No 1073/1999 should be declared inappli- 193. That argument might be thought cable — is admissible. In that context, it is consistent with the purpose of Article 241 in my view irrelevant whether or not the EC. In Simmenthal the Court held that ECB was aware that the Regulation applied Article 184 of the EC Treaty (now to it. 197 There is no basis in the text of Article 241 EC) 'gives expression to a Article 241 EC for limiting its scope by general principle conferring upon any party reference to the subjective knowledge of the to proceedings the right to challenge, for person, Member State, institution or body the purpose of obtaining the annulment of seeking to invoke it, and that would, in any a decision of direct and individual concern event, be a difficult test to apply in practice. to that party, the validity of previous acts of the institutions which form the legal 196 — See similarly G. Behr, 'Judicial remedy of private parties against normative acts of the European Communities: the 192 — C a s e C-188/92 [1994] ECR I-833. Sec also Case role of the exception of illegality'. Common Market Lair Review 1966, p. 7; R. Joliet, Le droit institutionnel des C-178/95 WIHO [1997] ECR I-585; Case C-239/99 Nach, Communautés européennes. Le contentieux (1981), Europe [2001] ECR I-1197. pp. 132 and 133; J. Usher, 'The Interrelationship of 193 — Paragraph 16 of the judgment. Articles 173, 177 and 184 EEC', European Law Renew 194 — Paragraph 17 of the lodgment. 1979 p. 36. 195 — See similarly my Opinion i n Nacht, cited in note 192, at 1 9 7 — See similarly the Opinion of Advocate Genera! Slynn in paragraph 69. Case 181/85, cited m note 191, p. 703.

(3) order the European Parliament, the Council and the Kingdom of the Netherlands to bear their own costs.

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