C-378/00

COMMISSION v PARLIAMENT AND COUNCIL

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 3 October 2002 1

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are in the nature of management measures tal importance for the balance between the because of the considerable implications for institutions of the Union, particularly as the budget. It claims that the Community regards the relationship between the legis- legislature has wrongly chosen the regula- lative and executive powers. tory procedure on the basis of the selection criteria in Article 2 of the second comitol- ogy decision. Although the Commission accepts that the selection criteria are not binding, it submits that the Community legislature has failed to give effect to the legal consequences of Article 2 in that it has not given an adequate statement of reasons for the derogating choice of procedure in I I — Legal background the LIFE-regulation.

7. The legal background to this case is 5. The Parliament and the Council submit rather extensive. Not only is it necessary to that the Commission is adopting an incor- take into account the contested regulation rect interpretation of Article 202 EC and and the second comitology decision, but dispute that the criteria in Article 2 of the also the associated declarations and the Decision have any legal effect. The Com- Treaty. munity legislature is completely free to depart from the selection criteria in its choice of comitology procedure and does not have to extend the necessary statement of reasons to cover that choice. In the alternative, the Council submits that there is in fact an adequate statement of reasons for the choice of the regulatory procedure in the LIFE-regulation. A — The EC Treaty

— confer on the Commission, in the acts plify the requirements for the exercise of which the Council adopts, powers for implementing powers conferred on the the implementation of the rules which Commission and to improve the involve- the Council lays down. The Council ment of the European Parliament in those may impose certain requirements in cases where the basic instrument conferring respect of the exercise of these powers. implementation powers on the Commission The Council may also reserve the right, was adopted in accordance with the pro- in specific cases, to exercise directly cedure laid down in Article 251 EC. implementing powers itself. The pro- cedures referred to above must be consonant with principles and rules to be laid down in advance by the Coun- cil, acting unanimously on a proposal from the Commission and after obtain- 12. According to the tenth recital, the ing the Opinion of the European Par- Decision aims, thirdly, to improve infor- liament.' mation to the European Parliament. The eleventh recital states that its fourth pur- pose is to improve information to the public concerning committee procedures.

B — The second comitology decision

13. Article 2 contains the criteria for the 9. As already stated, the second comitology choice of the type of comitology procedure. decision replaced the Council's first comi- It states as follows: tology decision of 1987. The decision is based in particular on the third indent of Article 202 EC.

'The choice of procedural methods for the 10. According to the fifth recital in its adoption of implementing measures shall preamble, the first purpose of the Decision be guided by the following criteria: is, with a view to achieving greater con- sistency and predictability in the choice of type of committee, to provide for criteria relating to the choice of committee pro- cedures, it being understood that such criteria are of a non-binding nature. (a) management measures, such as those relating to the application of the com- mon agricultural and common fisheries policies, or to the implementation of programmes with substantial budget- 11. According to the ninth recital, the ary implications, should be adopted by second purpose of the Decision is to sim- use of the management procedure;

2. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a (c) without prejudice to points (a) and (b), time-limit which the chairman may lay the advisory procedure shall be used in down according to the urgency of the any case in which it is considered to be matter. The opinion shall be delivered by the most appropriate.' the majority laid down in Article 205(2) of the Treaty, in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.

14. In Articles 3 to 6 inclusive of the second comitology decision, four procedures are specified: the 'advisory procedure' (Article 3); the 'management procedure' 3. The Commission shall, without preju- (Article 4); the 'regulatory procedure' dice to Article 8, adopt measures which (Article 5) and the 'safeguard procedure' shall apply immediately. However, if these

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measures are not in accordance with the matter. The opinion shall be delivered by opinion of the committee, they shall be the majority laid down in Article 205(2) of communicated by the Commission to the the Treaty in the case of decisions which Council forthwith. In that event, the Com- the Council is required to adopt on a mission may defer application of the meas- proposal from the Commission. The votes ures which it has decided on for a period to of the representatives of the Member States be laid down in each basic instrument but within the Committee shall be weighted in which shall in no case exceed three months the manner set out in that Article. The from the date of such communication. chairman shall not vote.

European Parliament and the Council on but which shall in no case exceed three the basis of the Treaty. months from the date of referral to the Council.

16. According to Article 7(1) of the If within that period the Council has Decision, each committee is to adopt its indicated by qualified majority that it own rules of procedure on the basis of opposes the proposal, the Commission standard rules which are to be published in shall re-examine it. It may submit an the Official Journal of the European Com- amended proposal to the Council, re-sub- munities.5 Article 7(2) provides that the mit its proposal or present a legislative principles and conditions on public access proposal on the basis of the Treaty. to documents applicable to the Commis- sion are to apply to the committees. In Article 7(3), (4) and (5) obligations are placed on the Commission to provide information to the Parliament, to publish If on the expiry of that period the Council an annual list of committees which assist it, has neither adopted the proposed imple- and to report on the working of the menting act nor indicated its opposition to committees. the proposal for implementing measures, the proposed implementing act shall be adopted by the Commission.'

— current procedures III(a) and III(b) would be turned into the new regula- tory procedure. 19. Article 8 of the LIFE-regulation sets out, inter alia, the financial framework:

A modification of the type of committee provided for in a basic instrument should be made, on a case by case basis, in the course of normal revision of legislation, 'Duration of the third phase and budgetary guided inter alia by the criteria provided for resources in Article 2.

Such adjustment or modification should be 1. LIFE shall be implemented in phases. made in compliance with the obligations The third phase shall start on 1 January incumbent on the Community institutions. 2000 and shall end on 31 December 2004. It should not have the effect of jeopardising The financial framework for the implemen- attainment of the objectives of the basic tation of the third phase for the period instrument or the effectiveness of Commu- 2000 to 2004 is hereby set at EUR 640 nity action.' million.

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2. The budgetary resources allocated to the 2. Where reference is made to this para- actions provided for in this Regulation shall graph, Articles 5 and 7 of Decision be entered in the annual appropriations of 1999/468/EC shall apply, having regard to the general budget of the European Union. the provisions of Article 8 thereof. The available annual appropriations shall be authorised by the budgetary authority within the limits of the financial perspec- tive.

COMMISSION v PARLIAMENT AND COUNCIL

The Commission insists, as it stated in the In choosing the regulatory procedure con- time of the adoption of the Common tained in Article 5 of Council Decision Position, on the importance of applying 1999/468/EC of 28 June 1999, laying down the criteria of Article 2 of Council Decision the procedures for the exercise of imple- 1999/468/EC of 28 June 1999, laying down menting powers conferred on the Commis- the procedures for the exercise of imple- sion, the Council took into account the menting powers conferred on the Commis- experience gained with the regulatory pro- sion. cedure under the LIFE instrument during the first (since 1992) and second phase (since 1996) and the nature of the LIFE instrument, which plays a vital role in the protection of the environment within the The Commission believes that, the choice Community and contributes to the imple- of projects being a measure with substantial mentation and development of Community budgetary implications, this should follow environmental policy. the management procedure.

The Council recalls that the criteria laid The Commission considers that to ignore down in Article 2 of Decision 1999/468/EC the terms of Article 2 of Decision are legally non-binding and of an illus- 1999/468/EC in a case as clear as this is trative nature. The Council considers that contrary to both the spirit and the letter of the scope of implementing powers in this the Council Decision. Regulation fully justify having recourse to a regulatory procedure.

The Commission must therefore reserve its position in this matter, including its right to take appropriate future action before the Statement by the Commission Court.

24. The application was received at the Court Registry on 13 October 2000. 27. By order of 30 April 2001 the President of the Court granted the United Kingdom of Great Britain and Northern Ireland leave to intervene in support of the form of order sought by the Parliament and the Council. A hearing took place on 4 June 2002. 25. The Commission claims that the Court should:

1. annul the LIFE-regulation in so far as it IV — Pleas in law and main arguments of makes the adoption of measures for the the parties implementation of the LIFE-pro- gramme subject to the regulatory pro- cedure under Article 5 of the second comitology decision; 28. The Commission observes first of all that the principles and rules referred to in Article 202 EC are 'organic' in nature. This follows expressly from the fact that, for the purposes of Article 202 EC, the require- 2. maintain the effects of the abovemen- ments for the exercise of the implementing tioned regulation until its amendment, powers 'must be consonant' within the which should take place as soon as principles and rules laid down in advance possible after the judgment of the by the Council. It follows from this that Court; any basic instrument of the Community legislature, even in the framework of the co-decision procedure, must comply with 7 — OJ L 206, p. 1, and OJ L 181, p. 1. the rules as so laid down.

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29. In support of its application the Com- Council had merely wished to give the mission submits two pleas. These allege, criteria in question purely indicative sig- first, infringement of Article 2 of the second nificance, it could merely have refrained comitology decision and, second, infringe- from setting out the criteria in Article 2 and ment of the letter and spirit of that have set them out in a declaration or in the decision. minutes of its meeting of 28 June 1999.

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33. In its plea alleging infringement of the mission argues that there is a distinction letter and spirit of the second comitology between the implementing measures which decision the Commission submits that the must be subject to the management pro- choice of the regulatory procedure for the cedure or the advisory procedure, and the implementation of the LIFE-programme is more general measures which are on the contrary to the express aim of the second borderline between implementation and comitology decision, namely to clarify the regulation and to which the regulatory committee procedures. The first comitology procedure of Article 5 of the second decision did not contain any criteria and comitology decision therefore applies. the choice of procedure was at the entire According to the Commission, that provi- discretion of the legislature. That approach sion relates in particular to measures con- resulted in a lack of transparency and, as a cerning the protection of health and safety, result, constant difficulties between the relatively new policy areas for the Com- institutions. It is precisely the aim of the munity which call for rapid adaptation to second comitology decision to put an end technical and scientific progress. On the to those difficulties. By failing to apply the other hand, with regard to more traditional criteria and making the LIFE-programme Community areas such as the common subject to the regulatory procedure, the agricultural and fisheries policies, where Community legislature has once again the legislature has already laid down a created a situation of unpredictability and precise framework, implementing measures inconsistency. are subject to the management procedure.

ultimately no implementing decision is implementing measure. In the context of taken, is contrary to the notion of efficient the co-decision procedure under Article 251 decision-taking, which is precisely the basis EC the term 'Council' also includes the of the management procedure. Parliament. 9As a result, an organ of the legislative authority, namely the Parlia- ment, would have its participation in the co-decision procedure restricted under the second comitology decision, which was 38. The Commission submits that adopted in the context of a decision-mak- Article 11 of the contested regulation con- ing procedure which provided solely for flicts with the second comitology decision mere consultation of the Parliament. and must therefore be annulled. However, in order not to compromise the practical implementation of the LIFE-programme, it submits that the effects of that provision should be maintained in force until its amendment. That amendment should take 41. The correct interpretation of the rel- place as soon as possible after the judgment evant provisions of Article 202 EC is, of the Court. according to the Parliament, that the Council, which in the present case acts together with the Parliament, may make the exercise of the Commission's imple- menting powers subject to certain pro- 39. The Parliament contends, first, that the cedures. The term 'requirements' in Commission incorrectly interprets Article 202 EC refers to the possibility for Article 202 EC. It disputes the claim that the Community legislature to choose one of the second comitology decision is organic the possible procedural alternatives accord- in nature and thus binds the Community ing to the circumstances of each case. legislature when it adopts a basic instru- ment.

43. Second, the Parliament contends that 46. Third, the Parliament contends that an the legal significance which the Commis- alleged infringement of Article 2 of the sion accords to the criteria of Article 2 of second comitology decision cannot in any the second comitology decision cannot be event lead to annulment of the contested discerned in the wording, spirit or scheme regulation. The Commission's line of rea- of the decision. soning amounts to an assertion that the regulation is unlawful because the regula- tory procedure was chosen in place of the management procedure. In its judgment in Case C-417/93 Farliament v Council the Court had to decide whether the Council's replacement of a management committee by a regulatory committee was a material amendment of the Commission's proposal, 44. The Parliament notes that, in the orig- on which the Parliament should have been inal version proposed by the Commission, consulted. The Court held that the overall Article 2 of the draft second comitology balance of the powers allocated to the decision was drafted in terms which gave Commission and the Council was not binding force to the criteria for the choice decisively affected by the choice between of committee procedure. The final wording the two types of committee in question. 11 of the recitals and the provisions of the Since the management and regulatory pro- decision adopted by the Council, and the cedures were not fundamentally amended joint declaration by the Council and the by the second comitology decision, that Commission show clearly, however, that case-law must, the Parliament submits, also the Community legislature did not intend be applied to the present case. 12 to make the criteria legally binding.

47. Moreover, the Parliament submits that 50. As regards predictability and consist- the difference between the two procedures ency in the choice between committee is minimal in terms of institutional balance procedures, the Council did not, when between the institutions. Even an infringe- adopting the second comitology decision, ment of Article 2 of the second comitology opt for binding criteria, as the Commission decision would not be sufficiently serious to understood. It was feared that a rigid justify annulling the contested regulation. scheme would lead to significant disputes before the courts on account of the haziness of the criteria as a result of the use of terms such as 'substantial budgetary implications' or 'essential provisions of basic instru- ments'. For those reasons the final text differs from the proposal. It is clear from the examples cited by the Commission of programmes in which the management procedure has been adopted that, in gen- 48. In its defence the Council refers, first of eral, the Community legislature is guided all, to the fact that, in its initial proposal for by the criteria in Article 2 of the second the contested regulation, the Commission comitology decision. provided for procedure 111(a), within the meaning of the first comitology decision, which is in line with the current regulatory procedure. After the entry into force of the second comitology decision, the Commis- sion changed its view. It did not, however, 51. Although, according to the Council, the publicise its proposal and the Commission Commission accepts that the criteria in is seeking, through its present action, to question are not binding, it assumes, in its achieve a result which it could not have interpretation of Article 2 of the second achieved by legislative means using its comitology decision, that the Council may prerogatives under Article 250 EC. Such depart from those criteria only in specific conduct is not in accordance with the spirit cases. In so doing it bases itself on the of good faith cooperation between the wording of Article 202 EC, but without institutions. referring to it. The Council submits, how- ever, that two different cases are involved. In Article 202 EC the Treaty itself provides that the Council is to confer implementing powers on the Commission and that only 'in specific cases' may it reserve the right to exercise those powers directly. From that circumstance the Court 13 inferred an obli- gation to state reasons, which is laid down in Article 1 of the second comitology 49. With regard to the pleas in law sub- decision. In Article 2 of the second comi- mitted by the Commission, the Council tology decision there is, on the other hand, contends that the legislature complied with the letter and spirit of the second comitol- ogy decision, the criteria set out in Article 2 13 — In its defence the Council does not indicate which judg- being non-binding and the legislature being ment it is referring to here, but it is evident that reference is being made implicitly to the judgment in Case 16/88 free to depart from them. Commission v C o u n c i l [1989] ECR 3457.

no reference whatsoever to any specific or the increase in mobility of nationals of cases at all. The simple explanation for this the Member States. In those circumstances is that Article 2 of the decision, unlike the Council considers that the statement of Article 202 EC, does not lay down any reasons in the contested regulation for the principle which may be departed from only choice of a regulatory committee is in specific cases. No purpose can be adequate, even though, it submits, it is inferred from that other than the intention under no obligation to give such a state- of the author of the decision to exclude any ment. binding effect whatsoever. It is thus open to the Council to depart from the criteria set out in Article 2. If a specific statement of reasons were required in the event of a choice which derogates from those criteria, 53. The Government of the United King- then the Council would have expressly dom of Great Britain and Northern Ireland provided for it in the decision. confines its observations to the issue of the nature of the obligations on the Council under Article 2 of the second comitology decision. It contends that it is clear from the wording and legislative history of that 52. As regards the statement of reasons in decision that those criteria are non-binding. the contested regulation, the Council The only legal obligation on the Commu- observes that a sound statement of reasons nity legislature is to take those guidelines is in any event given for the choice of a into account. Otherwise the Council is free regulatory committee. That statement is to to choose the procedure which it thinks be found in recital 20 in the preamble and appropriate. was included in the minutes and published in the Official Journal. That shows that the Council took into account previous experi- ence and the nature of the instrument. Experience with the implementing meas- ures under the two previous programmes had shown that the regulatory procedure V — Appraisal allows efficient implementation of the pro- grammes without extra delays. The nature of the instrument, which concerns the entire area of the environment, is such that it has a bearing on questions relating, for example, to the organisation of the terri- A — Introduction tory of the Member States or the manage- ment of water sources, and the instrument therefore affects inhabitants of the areas concerned. That is an additional reason 54. The Commission is asking the Court to why the Council considered it is necessary rule on the lawfulness of the inclusion of to refrain from applying to the LIFE-pro- the regulatory procedure in the LIFE-regu- gramme the same implementing rules as, lation. That ruling must be on the basis of inter alia, those in the examples given by two pleas in law, relating to the scope of the Commission concerning third coun- the second comitology decision and the tries, the promotion of certain activities, criteria set out in Article 2 thereof.

Although formally separate pleas, their argument cannot, in my view, call the content is connected and they should there- admissibility of the application into ques- fore be considered together. In these pro- tion. Under the second paragraph of ceedings the question is also raised by the Article 230 EC it is open to the Commis- Parliament, even if only implicitly, as to sion to bring an action for annulment of an whether the second comitology decision is, act of the Parliament and of the Council if in its turn, indeed compatible with it considers that the conditions set out in Article 202 EC. In my view, the content that provision for the bringing of an action of the second comitology decision cannot are satisfied. As a privileged person, the indeed be considered separately from the Commission is not required to give more interpretation given to the third indent of detailed reasons for doing so. Just like the Article 202 EC. Council and the Member States, the Com- mission does not need to prove an interest in bringing proceedings. 14 The Commis- sion's reasons for bringing the present action are therefore not relevant to the issue of admissibility. 55. This leads me to adopt the following scheme for my Opinion in this case, which is the first in which the Court has expressly been asked to express a view on the second comitology decision. I will first give a global overview of the history of and reasons for the comitology system (Section B). Next, I will investigate the nature and scope of the delegating provision in B — The history of the comitology system Article 202 EC (Section C). I will then go on to consider the legal significance of the criteria set out in Article 2 of the second comitology decision and the substance of the obligation to state reasons to which the 57. 'Comitology' 15developed in the Com- Commission refers (Section D). Finally, munity administration during the first half with the aid of all that, it will then be of the 1960s. Committee procedures arose possible, in the light of the content of the in the course of implementing the common LIFE-regulation, to assess whether the agricultural policy. Initially the powers of Commission's action is well founded (Sec- the committees were laid down on an ad tions E and F). hoc basis. In the second half of the 1960s a degree of streamlining occurred as a result of the fact that the procedures in which committees occurred crystallised into a number of principal procedures. From that 56. Strictly, the Council's observation that, by means of the present proceedings, the 1 4— See, tor example, to that effect Case 131/86 Uniteti Commission is seeking to achieve what it Kingdom v C o u n c i l [1988] ECR 905, p. 6. could not achieve using its legislative pre- 15 — Sec in this regard recently, K. Lenaerts and A. Verhoeven, Towards a Legal Framework tor Executive Rule-Making rogatives under Article 250 EC can be in the EU? The Contribution of the New Comitology regarded as an objection of inadmissibility. Decision, Common Market Law Review 37 (2000), pp. 645-686. For extensive references to literature on As the Commission also submits, that comitology, see footnote 1 of that article.

58. Overall the committees are of consider- able importance in the daily practice of Community administration. The real influence of a particular committee on Community decision-making depends on a number of factors. First of all, it is con- nected with the scope of the powers which the Community legislature has delegated to the Commission, any powers which the legislature has reserved to itself in the basic instrument also being significant. In addi- 59. Initially the committees were set up on tion, as in the present case, the powers an extra-statutory basis. However, the granted to the committees in the various committee procedures quickly received the procedures play a role. A committee can be conditional approval of the Court of Jus- influential if the Council gives broad tice. The case-law has laid down a frame- implementing powers to the Commission work of conditions regarding the content in a basic instrument and links it with a and scope of delegation by the Council. 'weighty' procedure such as the regulatory Thus the Council must lay down in the procedure. By way of concrete example basic instrument the basic elements of the reference can be made to the important matter to be dealt with. 19 It can never- advisory function of the Standing Com- theless delegate to the Commission general powers to establish implementing rules without having to specify the most import- 16 — Not only the Commission but also the Council was ant elements of the delegated powers. 20 assisted by committees of national experts, for example Once the Council has delegated implement- concerning the second and third pillars of the Union Treaty. For a broad overview of the various committees, see the contributions of R.H. Pedler and G.F. Schaefer (Eds.), Shaping European Law and Policy. The Role of Committees and Comitology in the Political Process, European Institute of Public Administration, Maastricht, 18—As, for example, in the case of 'novel foods', see 1996. Regulation (EC) No 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel 17 — P. van der Knaap, Government by Committee: A Legal foods and novel food ingredients (OJ 1997 L 43, p. 1). Typology, Quantitative Assessment and Institutional Repercussions of Committees in the European Union, in: 19 — See, for example, Case 230/78 Eridania [1979] ECR 2749, Shaping European Law and Policy. The Role of Com- paragraph 7. mittees and Comitology in the Political Process, cited 20 —See in particular Case 25/70 Koster [1978] ECR 1161, above, p. 83. paragraph 9.

61. Although the positive aspects of the committee procedures have been broadly recognised, there has nevertheless been criticism. The comitology mechanism has made it possible for the Council to delegate many implementing powers to the Com- 60. As regards the present case, it is also mission in policy areas in which a large significant that the Court ensures that a number of decisions must be taken, instead balance between the institutions is guaran- of taking those decisions itself. That pre- teed and that the previously agreed pro- vents the Council from becoming over- cedures are complied with. In its defence loaded. From the outset there has been the Council has referred to the judgment in criticism of this practice because the result Commission v Council in which it is may be to deprive the basic instrument for observed that it has a special obligation to the most part of its substance. In addition state reasons where it has reserved the right the prerogatives of the Parliament, as co- to exercise i m p l e m e n t i n g p o w e r s legislator, may become an issue. The comi- directly. 23 Also illustrative is the judgment tology mechanism gives the Council an of 10 February 1998 in Germany v Com- opportunity to lay down in the basic mission. In that case the Court annulled a instrument general rules concerning sub- Commission decision implementing a basic jects which are then elaborated via a instrument on the ground that the Com- committee procedure and implemented mission had failed to fulfil an essential without the Parliament being able to exer- procedural requirement. The necessary cise further influence on them. This objec- advice of the relevant standing committee tion has become more persuasive as the had been drawn up without the German influence of the Parliament in the legislative Permanent Representative having received process has increased. 25 Moreover, there in good time, in German, the draft to be has been criticism of the complex and voted upon and despite a formal request non-transparent nature of the committee from Germany to postpone the vote. The procedures, through which the exercise of political and legal control over the activities

of the committees is rendered more dif existed. According to the second paragraph ficult. Thirdly, objections in principle were of Article 1 of that decision the Council possible against a committee procedure in could impose requirements in respect of the which the Council can exercise its veto over exercise of the powers concerned, which the measures adopted by the Commission had to be in conformity with the pro without itself having to adopt replacement cedures set out in Articles 2 and 3. The two measures (the so-called 'contra-filet'). 26 provisions contained a total of seven pro Under this procedure the necessary meas cedures: the advisory committee procedure, ures may never be adopted. the management committee procedure (with two variants), the regulatory com mittee procedure (with two variants) and the safeguard procedure (with two vari ants). The alternatives at the Council's disposal were therefore limited to the

64. Through the introduction of the co- mously on a proposal from the Commis decision procedure in what is now sion and after obtaining the opinion of the Article 251 EC, the Treaty on European European Parliament. The Council estab Union gave an impulse to discussion on the lished these 'principles and rules' in 1987 in lack of influence of the European Parlia the first comitology decision. 27 ment over comitology. Where decision making takes place in accordance with the procedure of Article 251 EC, the Parlia ment may oppose the inclusion in a basic instrument of a committee procedure or the choice of a particular variant if it takes the

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lem while awaiting a definitive solution at — an improvement in the Parliament's the 1996 Intergovernmental Conference. 30 involvement in those cases where the However, the Conference ultimately only basic instrument is adopted in accord- produced a declaration in which the Com- ance with the procedure laid down in mission was called upon to submit to the Article 251 EC, and in general to Council by the end of 1998 at the latest a improve information to the Parliament; proposal for the amendment of the first comitology decision. 31 The Commission submitted its proposal already by 16 July 1998 32 and the Council adopted the sec- ond comitology decision on 28 June 1999. — an improvement in information to the public concerning committee pro- cedures.

66. In the present case the choice at issue is between the management procedure and the regulatory procedure, within the mean- ing of the second comitology decision. 65. It is apparent from the recitals that in Those procedures are the successors to the adopting the second comitology decision management committee procedures and the the Council intended to bring about the regulatory committee procedures under the following changes in comparison with the first comitology decision. first decision:

of decision revived: the so-called 'filet'. The comitology decision. In essence, the Com- 'weightier' regulatory committee pro- mission is authorised to adopt the planned cedure, Procedure III(b) contained the decision if a different opinion is given by 'contra-filet', in which the Council could the committee and the Council fails to take ultimately decide against the planned meas- a decision within three months at most, or ures upon a simple majority of votes, if the committee has not given any opinion without substituting its own decision. within a fixed period. The variant in which the maximum decision-making period for the Council was one month has been dropped. A difference from the old man- agement procedures is that the Commission decides whether the application of the 68. The management committee procedure measure is to be suspended for a period of under the first comitology decision in the up to three months, whereas under the old 'light' version of Procedure 11(a) was also Procedure 11(b) the Commission was com- characterised by the fact that where the pelled to defer application of the measures. Commission's measure did not accord with In that regard the Commission's latitude is the opinion of the committee, the Council greater than under the first comitology could, acting by a qualified majority, decision. within a given period — of not more than one month — substitute its own measure for the measure decided upon by the Commission. If the committee could not agree upon an opinion because the required majority of votes had not been attained, the Council was not, however, authorised to overrule the Commission's proposed 70. There are more differences between the decision. The difference from the 'weight- regulatory committee procedures within ier' Procedure II(b) lay, inter alia, in the fact the meaning of the first comitology that the period within which the Council decision and the current regulatory pro- could adopt a different decision in the event cedure under Article 5 of the second of a derogating opinion was not to exceed comitology decision, which is stated to be three months. Furthermore, under variant applicable in the contested regulation. On (b), in the event of a derogating opinion the the one hand, the ' contra-filet' procedure Commission had to defer application of the applies whereby the Council can exercise measures for a specified period, while the decisive vote not to accept the measures under variant (a) it had a power to do so. proposed by the Commission, now stan- dard for all types of legislation. Previously, the lighter Procedure 111(a) which applied under the first LIFE-regulation still con- tained the filet mechanism. On the other hand, under the regulatory procedure the 69. When the management procedure, as Commission has also obtained more lati- set out in Article 4 of the second comitol- tude, because, from its point of view, the ogy decision, is compared with its prede- contra-filet mechanism has been made cessors in the first comitology decision, it is more flexible. Thus, ultimately the Council striking that to a large extent it corresponds can block the implementing measures pro- to the management mechanism in the first posed by the Commission only with a

73. In the judgment in Germany v Com- 71. All in all, the differences between the mission of 27 October 1992 the Court held two procedures, when compared with the that Decision 87/373, as a measure of equivalent procedures in the first comitol- secondary law, cannot add to the rules of ogy decision, have been reduced. There is, the Treaty. ,4 It is also evident in this however, still a clear difference between the connection that the requirements of the management procedure and the regulatory second comitology decision cannot alter procedure. The Parliament, in its written what is provided in Article 202 EC. observations, and the representative of the Council at the hearing have, in my view, wrongly played down the differences between the two procedures which still exist. From the Commission's point of view, the regulatory procedure offers less 74. A reading of the third indent of latitude than the management procedure, Article 202 EC leads one to assume that, inter alia, as a result of the greater involve- when the Council is regulating the issue of ment of the Parliament and in particular as implementing measures in a basic instru- a result of the contra-filet mechanism, ment, , 5 it may choose from a number of which exists exclusively under the regula- alternatives. The exceptional situation is tory procedure. where the Council, in specific cases, exer- cises certain implementing powers itself (self-authorisation). 36 The main rule is that the Council must grant the Commission power to implement the rules. Under the

75. The third indent of Article 202 EC is characterised by the use of open legal rules and undefined legal concepts, which are to be fleshed out by the Council and, in the present case, by the Court. 78. As the Parliament submits, it is not possible to infer from the third indent of Article 202 EC any compulsory choice of a particular committee procedure in a basic 76. In particular, the Treaty does not define instrument. Conversely, that provision does the extent of the power of delegation. not preclude a situation in which the There is no definition of the concept of Council commits itself, on the basis of the 'implementation'. As noted above, the obligation to impose the above require- case-law considers that the rules laid down ments, to make a choice between a restrict- by the Council may be general in nature ive number of types of procedure. 39 That and it suffices that the Council lays down must also apply, a fortiori, to the deter- the essential elements of the matters to be mination of criteria on the basis of which regulated. 38 The power of delegation is the procedural choice is prescribed. From a not, however, unlimited; the Council is not textual point of view, the use of the word permitted to transfer the implementing 'rules' implies that substantive criteria can power derived under the Treaty to the be laid down which are to serve as the basis Commission without any control. for the choice by the Community legis- lature of a particular type of procedure. What is more, in light of the legislative 77. Still less does the Treaty provide guide- history and purpose of the third indent of lines as to the content and scope of the Article 202 EC it is obvious that this 'requirements' which the Council may provision gives the Council the power to impose in respect of the exercise of those do so. Moreover, there is nothing to pre- powers. The requirements must merely be clude the criteria in such a sui generis organic decision 40 from also binding the Council. 37 — The Commission's obligation to exercise implementing powers is, moreover, laid down in the fourth indent of Article 211 EC: 'In order to ensure the proper functioning and development of the common market, the Commission 39 — It can be inferred from Commission v Council, cited in shall... exercise the powers conferred on it by the Council footnote 13, in which the validity of Decision 87/367 was for the implementation of the rules laid down by the not in issue, that the Court implicitly endorses this view latter.' thus far. 38 — See point 59 above. 40 — This instrument is not referred to in Article 249 EC.

80. Control by the Parliament over imple- menting measures to be taken by the D — The legal significance of the criteria Commission is not, however, completely in Article 2 of the second comitology ruled out. If the basic instrument is adopted decision in the framework of the co-decision pro- cedure, the Parliament can exercise its prerogatives. Against that background, the Community institutions agreed in 1994 83. Against that background, it is necessary upon the modus vivendi set out in the to examine the legal effects of the criteria interinstitutional agreement. That also for the choice of committee procedure in explains the increased involvement of the the second comitology decision. Parliament in the second comitology decision in cases in which the basic instru- ment under which the Commission acquires decision-making powers is adopted in accordance with the procedure 84. None of the parties concerned dispute under Article 251 EC. that when the Community legislature is

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choosing a particular type of comitology, it after all, a difference in principle between may depart from the criteria in Article 2 of the substantive content of the norm and the the second comitology decision. Even the degree to which that norm is legally Commission accepts in its application that binding. The recital must, moreover, be the criteria are non-binding. The arguments read in the context of the origin of the in that respect are indeed convincing. second comitology decision. In the original proposal the Commission appeared to be proceeding on the basis of binding crite- ria, 44 but the Council did not agree to that the version. 85. If we look first of all at the wording of Article 2, then the use of the conditional mood in most of the language versions provides an indication that the criteria for the choice of the management or regulatory procedure are non-binding. 41

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criteria follow from the wording and scope 89. I do not agree with the view expressed of the third indent of Article 202 EC. by the Council and the Parliament. 'Principles and rules' do not have to be binding in all cases, since non-binding criteria too may, as the Commission has accepted, contribute to the aims of the second comitology decision, which is based on that provision. The Commission's argu- ment, in its reply, that it would have been better overall not to have included any 90. For a start, it cannot be denied that criteria than to include criteria in a state- even indicative norms in an otherwise ment is not, for those reasons, convinc- binding decision may have a degree of legal ing. 46 effect. 47 In that sense, the Commission has rightly pointed out that the inclusion in a decision of criteria for the making of a choice undoubtedly has resulted in a degree of 'legal significance', just as other aspects of comitology are also brought within the scope of the law. 48

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93. As a result of the increasing legal 95. First of all, it is established that the framework surrounding committee pro- Council is free to decide whether or not to cedures, the original very wide freedom in apply the criteria in Article 2 for the choice matters of policy has been replaced by an of the management procedure, the regula- adherence of the Community legislature to tory procedure or the advisory procedure. the 'principles and rules' provided for in the Those criteria are non-binding.

49 — The development in the law is not yet complete. Thus, the involvement of the Parliament and interested third parties has not yet been fully recognised and there are no rules on 96. The criteria are, however, not com- the use of self-authorisation by the Council. See in that regard, Lenaerts and Verhoeven, cited above, p. 686. pletely free of obligation. There is thus a

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99. The duty to give a statement of reasons 97. If the legislature did not have to give for a choice which departs from those any reasons at all for its choice of a criteria is, moreover, in accordance with particular committee procedure derogating the case-law in which the Court has made from those criteria, that would deprive the Council's power of delegation in the Article 2 of the decision of any substance. area of implementing measures subject to a That view is fully in accordance with my framework of conditions. By way of illus- earlier comments regarding the develop- tration, I would point to the judgment in ment towards greater transparency and Case 16/88 Commission v Council, in consistency in the involvement of commit- which the Court held that in the 'specific tees. The criteria also aim outwardly to cases' in which the Council may itself offer a firm footing for the choice of a exercise directly implementing powers the particular committee procedure in the basic Council 'must state in detail the grounds' legislation. The fact that they are laid down for such a decision. 50 The Court clearly in a binding decision which is 'organic' in assumes that in authorised, exceptional nature gives rise to certain expectations in cases there is a qualified duty to state that regard. Moreover, the criteria fulfil the reasons. For the reasons stated above, there obligation laid down in the third indent of is a similar obligation where the Council Article 202 EC to lay down rules in opts for a type of committee procedure that advance. A departure from these crite- is not in line with the criteria in Article 2 of ria — non-binding norms which are more- the second comitology decision. over essential for the purposes of an otherwise binding decision — cannot be interpreted otherwise than restrictively. 5 0— Cited in footnote 13, paragraph 10.

104. The requirement for a sound state- ment of reasons in accordance with Article 253 EC is thus flexible and the substance of that obligation may vary 102. At the hearing the Council questioned according to the circumstances of the case. whether such an obligation to state reasons Applied to the present situation, it is must follow from the general provisions of obvious that the more the actual choice of Article 253 EC, or whether it concerns a committee procedure diverges from the specific obligation which must be inferred choice indicated by Article 2 of the second from Article 2 of the second comitology

52 — See my Opinion in Case C-321/99 P ARAP and Others v 51 — See that connection, inter alia, Germany v Commission, Commission, ECR 1-4287, point 193 and the case-law cited in footnote 24. cited there.

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comitology decision, the higher the require- nity legislature may in fact depart from ments which the statement of reasons must them, the legislature must nevertheless satisfy. provide a proper statement of reasons for doing so. The sanction for breach of that legal obligation is annulment.

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unmanageable nature. The argument is also case, a Commission proposal to amend the erroneous. Notwithstanding the use of TACIS programme for aid to the former terms such as 'with substantial budgetary Soviet Union and some neighbouring coun- implications' or 'essential provisions of tries provided for a management procedure basic instruments', the differences in the within the meaning of procedure 11(b) of situations for which the various committee Decision 87/373. The Council ultimately procedures are intended are clear. That is opted for a regulatory procedure within the not disputed in the present case. Where meaning of procedure 111(a) of the first implementing measures primarily concern comitology decision. The TACIS regulation the administration of programmes, the concerned was based on provisions of the management procedure or, possibly, the Treaty which gave the Parliament a right to advisory procedure are applicable. If the be consulted. The Court held that the implementing measures occupy the transi- overall balance of the powers allocated to tional zone between implementation and the Commission and the Council was not regulation, the regulatory procedure is the decisively affected by the choice between most appropriate. It is precisely to be the two types of committee at issue, so that expected of the Council, the institution the amendment to the Commission pro- which laid down the criteria, and which has posal was not substantial and it was the exclusive power to do so, that it should accordingly not necessary to re-consult the explain, by reference to these properly Parliament. 54 selected rules, why it has opted for an obviously derogating choice. 53

E — ¡s the choice of committee procedure in the LIFE-regulation in accordance with the criteria of the second comitology decision and, if not, is the obligation to state reasons satisfied? 115. The legality of the delegation to the Commission of authority to take imple- menting measures with budgetary impli- cations is not at issue. In Commission v Council the Court held that under the third indent of Article 2 EC the Council is entitled to authorise the Commission to take individual decisions where those decisions have financial implications. 55 112. Having regard to the foregoing, it is therefore necessary to examine whether the Community legislature, when adopting the LIFE-regulation, chose the committee pro- cedure in accordance with the non-binding selection criteria in Article 2 of the second comitology decision. If it did not, the 116. The LIFE-regulation lays down the question then arises as to whether the financial means for the third phase, which obligation to state reasons for the deroga- runs from 31 December 1999 to ting choice has been satisfied. 31 December 2004. For the budgetary authority, that establishment of those means in the budgetary procedure is in principle certain. In Article 8 the financial framework for the implementation of the third phase is specifically set at EUR 640 million. The same article provides for the budgetary resources to be entered into the general budget of the European Union. The 113. In that regard, the background to the budgetary authority authorises the amount committee procedure in the LIFE-regu- lation will first be considered in more detail. 55 — Cited in f o o t n o t e 13, paragraphs 16 to 18.

— Proposals for projects to be financed 57 — See Article 3(4) and (6); Article 4(5) and (9); Article 5(4) are forwarded to the Commission by and (6) of the LIFE-regulation. the Member States. The Commission 58 — See Article 3(7); Article 4(10); Article 5(7) of the LIFE- regulation. For the application of Article 11 of the LIFE-regulation the relevant committee for LIFE-nature is that of Article 20 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and 56 — Candidate countries may also take part in the programme, wild flora and fauna, OJ 1992 L 206, p. 7, as amended. In although they normally bear the costs of tneir partici- the original version this concerned procedure 111(a) of the pation; however, in certain cases the Community may first comitology decision. In the applicable 'repair regu- supplement the national contributions of the countries lation' it was provided that this procedure was to be concerned. Article 6(5) of the regulation states that in replaced by the regulatory procedure within the meaning certain cases the committee procedure is to be applied of the second comitology decision (see OJ 2002 C 75 E, according to the type of project proposed. p. 409).

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Communities and the specific criteria all the specific technical conditions of to be met are to be set out there. 59 the approved projects. The list of pro- posals accepted is to be sent to the Member States. 60

59 — See Article 3(8) and Article4(8) of the LIFE-regulation. No committee is consulted in the framework of LIFE-third 60 —See Article 5(7), Article 4(9) and Article 5(8) of the countries, see Article 5(9) of the LIF E -regulation. LIFE-regulation.

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120. Now that we have reached the stage The Council and the Parliament do not of an actual assessment of the pleas raised dispute this. Relatively small yearly expen­ by the Commission, the first question is diture may, when taken together over many whether the Community legislature estab­ years, amount to a large financial lished the correct committee procedure in burden. 62 And in comparison with the the light of the criteria of Article 2 of the appropriations for related Community pol­ second comitology decision. I agree with icy areas, such as consumer affairs and the Commission that, objectively, in the public health, the planned expenditure for framework of the LIFE-regulation the the LIFE-programme is considerably management procedure should have been higher. 63 chosen instead of the regulatory procedure. To my mind, the case concerns the 'im­ plementation of programmes with substan­ tial budgetary implications' within the meaning of Article 2(a) of the second comitology decision.

122. Moreover, the LIFE-regulation con­ cerns classical implementing measures con­ sisting of the establishment of approval criteria, the selection of projects and the 121. It is quite clear that the establishment actual award of funds. They are preemi­ of a total sum of EUR 640 million, which nently measures suitable for the manage­ amounts to a yearly average of EUR 108 ment procedure, as is also provided for in million, results —• both absolutely and other Community programmes. In its relatively in terms of the percentage of pleadings the Commission has referred to total expenditure for environmental pro­ programmes concerning 64 co-operation with tection or even the subsection to which the a third country, the promotion of the 65 environmental budget belongs — in 'sub­ efficient use of energy, and the pro- stantial' implications for the 'budget'. 61

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motion of mobility in education. 66 designed to apply essential provisions of Contrary to the Council's view, those basic instruments' within the meaning of programmes are comparable to the LIFE- Article 2(b) of the second comitology programme. After all, they are cases of decision. financial programmes with a yearly budget which corresponds more or less to that of the LIFE-programme and in which the task of the relevant committees is also to sup- port the Commission in the process of distributing the funds. The fact that the LIFE-programme may relate to the entire area of the environment and may influence matters which directly affect the inhabit- 124. I find that, applying the criteria of ants of the Member States, does not seem Article 2 of the decision, the wrong pro- to me to be relevant when determining the cedure, that is to say the regulatory pro- nature of the implementing measures. cedure, was chosen, when the management procedure was indicated. The second ques- tion is then whether the obligation to state the reasons for the choice of the regulatory procedure has been satisfied.

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126. I point out in this connection, first of decision to choose the regulatory pro- all, that transparency is not improved cedure, in derogation from the criteria. where the underlying reasons for a decision must be inferred from an exchange of declarations by those involved in the decision-making process. In addition, the Parliament, as co-legislator, did not express 128. The reference to the 'continuation of a view concerning the Commission's state- the existing practice' is unconvincing as ment, when the need for a joint declaration statement of reasons for the selection of the of the Council and of the Parliament would regulatory procedure. The context has have been evident. That in itself affects the changed as a result of the fact that, plausibility of the Council's statement as a approximately one year before adopting 'statement of reasons' for the derogating the LIFE-regulation, the Council adopted choice of committee. The submission made the second comitology decision. That by the Council's representative at the decision included for the first time criteria hearing, to the effect that the Parliament for choosing the procedure for the adoption had implicitly agreed to the statement made of implementing measures. The Court has and may have refrained from making an recently stated that if the circumstances of express statement on account of its delicate the case differ, the statement of reasons position in this procedure, does not seem to cannot be the same. 68 It can therefore be me to be credible. In my view, it cannot demanded of the Community legislature justify the failure of the Parliament — the that it adequately state the reasons for its co-legislator — to express its point of choice of the regulatory procedure instead view. of the management procedure.

130. Since, in my view, the LIFE-regulation 134. In that connection a complication was adopted in breach of the obligation to arises which has not been mentioned by state reasons, there are grounds for the any of the parties. It is conceivable that the Court to annul the measure because it Court cannot grant the Commission's infringes an essential procedural require- request because the choice of procedure ment. for implementing measures is an essential part of the regulation. In such a case the LIFE-regulation would then have to be annulled in its entirety. It is settled case-law that annulment in part is possible only in so far as the part to which that annulment relates is not an inextricable part of the F — The annulment (in part) of the LIFE- measure as a whole, so that the measure, regulation without the part whose annulment is sought, can no longer produce legal effects. 69 However, if the Court were to annul the LIFE-regulation in its entirety, it 131. The Parliament has submitted that would be ruling ultra petita, because the any infringement of Article 2 of the second scope of the annulment by it may not go comitology decision could not in any event further than is sought by the applicant. 70 lead to annulment of the contested regu- Annulment of the other parts of the LIFE- lation, inter alia because the difference regulation is not the subject matter of the between the two procedures is quite mini- dispute before the Court. 71 In other words, mal. in such a case the Court would have to declare it inadmissible.

136. However important I find the choice 138. Moreover, overall it would not be in of correct committee procedure to be, it the interests of any of the institutions and seems to me that the Court does not have to parties concerned for there to be an declare itself incompetent on the ground unnecessary delay in the implementation that it would have to find that the LIFE- of the LIFE-programme. Precisely in order regulation is void in its entirety. The choice to prevent the frustration of that pro- of the regulatory procedure in Article 11 gramme, the Commission requests the can, in my view, be detached from the other Court to maintain the effects of the LIFE- provisions of the disputed regulation. 72 regulation until it has been amended. The Council and the Parliament have not con- tested that request.

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VI — Conclusion

140. On the basis of the foregoing I propose that the Court should:

(1) annul Regulation (EC) No 1655/2000 in so far as the adoption of measures to implement the LIFE-programme is made subject to the regulatory procedure under Article 5 of Decision 1999/468 and no adequate statement of reasons is given for that choice;

(2) maintain in force the effects of the regulation annulled in part until fresh provision has been made in that regard;