CELEX: 61985CJ0281
Migration policy
Competence of the Community

Grounds
1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON :
17 SEPTEMBER 1985, BY THE FEDERAL REPUBLIC OF GERMANY,
18 SEPTEMBER 1985, BY THE FRENCH REPUBLIC,
20 SEPTEMBER 1985, BY THE KINGDOM OF THE NETHERLANDS,
23 SEPTEMBER 1985, BY THE KINGDOM OF DENMARK,
23 SEPTEMBER 1985, BY THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,
THE ABOVEMENTIONED MEMBER STATES BROUGHT AN ACTION PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION DECISION 85/381/EEC OF 8 JULY 1985 SETTING UP A PRIOR COMMUNICATION AND CONSULTATION PROCEDURE ON MIGRATION POLICIES IN RELATION TO NON-MEMBER COUNTRIES ( OFFICIAL JOURNAL 1985, L 217, P . 25 ) IS VOID .
2 DECISION 85/381/EEC SETS UP A PRIOR COMMUNICATION AND CONSULTATION PROCEDURE ON MIGRATION POLICIES IN RELATION TO NON-MEMBER COUNTRIES . UNDER ARTICLE 1 THE MEMBER STATES ARE TO INFORM THE COMMISSION AND THE OTHER MEMBER STATES OF THEIR DRAFT MEASURES AND DRAFT AGREEMENTS WITH REGARD TO WORKERS FROM NON-MEMBER STATES AND MEMBERS OF THEIR FAMILIES RELATING TO THE FOLLOWING AREAS : ENTRY, RESIDENCE AND EMPLOYMENT, INCLUDING ILLEGAL ENTRY, RESIDENCE AND EMPLOYMENT; THE ACHIEVEMENT OF EQUAL TREATMENT IN LIVING AND WORKING CONDITIONS, WAGES AND ECONOMIC RIGHTS; THE PROMOTION OF INTEGRATION INTO THE WORKFORCE, SOCIETY AND CULTURAL LIFE; AND THE VOLUNTARY RETURN OF SUCH PERSONS TO THEIR COUNTRIES OF ORIGIN . UNDER ARTICLE 2 THAT NOTIFICATION PROCEDURE MAY BE FOLLOWED BY CONSULTATION BETWEEN THE MEMBER STATES AND THE COMMISSION, ARRANGED BY THE COMMISSION . THE CONSULTATION PROCEDURE MAY BE INITIATED BY A MEMBER STATE OR BY THE COMMISSION . UNDER ARTICLE 3 THE OBJECTIVES OF THE CONSULTATION PROCEDURE ARE, INTER ALIA, TO FACILITATE THE MUTUAL EXCHANGE OF INFORMATION AND THE IDENTIFICATION OF PROBLEMS OF COMMON INTEREST AND, AS A RESULT, THE ADOPTION OF A COMMON POSITION BY THE MEMBER STATES; TO ENSURE THAT THE AGREEMENTS AND MEASURES ARE IN CONFORMITY WITH COMMUNITY POLICIES AND ACTIONS; AND TO EXAMINE THE DESIRABILITY OF MEASURES, AIMED, IN PARTICULAR, AT ACHIEVING PROGRESS TOWARDS THE HARMONIZATION OF NATIONAL LEGISLATION ON FOREIGNERS AND THE INCLUSION OF A MAXIMUM OF COMMON PROVISIONS IN BILATERAL AGREEMENTS .
3 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER DESCRIPTION OF THE FACTS AND THE CLAIMS AND SUBMISSIONS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
ADMISSIBILITY
4 THE COMMISSION QUESTIONED THE ADMISSIBILITY OF THE ACTION BROUGHT BY THE KINGDOM OF THE NETHERLANDS, ON THE GROUND THAT ON THE DATE WHEN THE PERIOD FOR COMMENCING PROCEEDINGS EXPIRED, THE ORIGINAL OF THE APPLICATION HAD NOT BEEN LODGED AT THE COURT REGISTRY, ONLY A TELEX MESSAGE HAVING BEEN SENT BY THAT DATE .
5 IT IS UNNECESSARY TO DECIDE WHETHER AN APPLICATION SENT BY TELEX SATISFIES THE FORMAL REQUIREMENTS SET OUT IN ARTICLE 37 ( 1 ) OF THE RULES OF PROCEDURE AND WHETHER TRANSMISSION BY TELEX IS COMPATIBLE WITH THE EXISTENCE OF THE RULES ON THE EXTENSION OF TIME-LIMITS ON ACCOUNT OF DISTANCE PROVIDED FOR IN ARTICLE 81 ( 2 ) OF THE RULES OF PROCEDURE, SINCE ON THE DATE WHEN THE TELEX MESSAGE WAS RECEIVED AT THE REGISTRY THE PERIOD OF TIME ALLOWED FOR COMMENCING PROCEEDINGS HAD ALREADY EXPIRED . AS THE COURT HELD IN ITS JUDGMENT OF 15 JANUARY 1987 IN CASE 152/85 MISSET V COUNCIL, (( 1987 )) ECR 223, WHERE THE PERIOD OF TIME ALLOWED FOR COMMENCING PROCEEDINGS IS EXPRESSED IN CALENDAR MONTHS, THAT PERIOD EXPIRES AT THE END OF THE DAY IN THE LAST MONTH THEREOF WHICH BEARS THE SAME NUMBER AS THE DAY OF THE OCCURRENCE OF THE EVENT WHICH CAUSED TIME TO START RUNNING, THAT IS TO SAY THE DAY OF NOTIFICATION . SINCE THE CONTESTED DECISION WAS NOTIFIED TO THE NETHERLANDS PERMANENT REPRESENTATIVE ON 11 JULY 1985, THE PERIOD OF TWO MONTHS WITHIN WHICH PROCEEDINGS FOR A DECLARATION THAT A MEASURE IS VOID MUST BE INSTITUTED PURSUANT TO THE THIRD PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY EXPIRED AT MIDNIGHT ON 11 SEPTEMBER 1985 AND HENCE THE PERIOD FOR BRINGING PROCEEDINGS, INCLUDING THE SIX DAYS' EXTENSION ON ACCOUNT OF DISTANCE FOR THE NETHERLANDS PROVIDED FOR IN ANNEX II TO THE RULES OF PROCEDURE, EXPIRED AT MIDNIGHT ON 17 SEPTEMBER 1985 . HOWEVER, EVEN THE TELEX MESSAGE FROM THE KINGDOM OF THE NETHERLANDS WAS NOT RECEIVED AT THE COURT UNTIL 18*SEPTEMBER 1985 .
6 THE APPLICATION OF THE KINGDOM OF THE NETHERLANDS MUST THEREFORE BE DECLARED INADMISSIBLE AS BEING OUT OF TIME .
7 HOWEVER, IT DOES NOT APPEAR FROM THE DOCUMENTS BEFORE THE COURT THAT THE PERIOD FOR COMMENCING PROCEEDINGS WAS NOT COMPLIED WITH IN THE CASE OF THE ACTIONS BROUGHT BY THE OTHER MEMBER STATES .
SUBSTANCE
8 THE APPLICANT MEMBER STATES RAISED TWO SUBMISSIONS IN SUPPORT OF THEIR CLAIM THAT THE CONTESTED DECISION SHOULD BE DECLARED VOID, NAMELY LACK OF COMPETENCE ON THE PART OF THE COMMISSION TO ADOPT THE DECISION AT ISSUE AND INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS, TO WIT FAILURE TO CONSULT THE ECONOMIC AND SOCIAL COMMITTEE BEFOREHAND AND INSUFFICIENT STATEMENT OF REASONS FOR THE DECISION .
THE COMPETENCE OF THE COMMISSION
9 THE APPLICANT MEMBER STATES MAINTAIN THAT NEITHER ARTICLE 118 NOR ANY OTHER TREATY PROVISION EMPOWERS THE COMMISSION TO ADOPT A BINDING DECISION IN A FIELD WHICH, MOREOVER, FALLS WITHIN THEIR EXCLUSIVE JURISDICTION . THE FRENCH REPUBLIC MAINTAINS THAT MATTERS RELATING TO THE CONDITIONS OF ENTRY, RESIDENCE AND EMPLOYMENT OF NATIONALS OF NON-MEMBER COUNTRIES AFFECT THE MEMBER STATES' SECURITY AND GO SUBSTANTIALLY BEYOND THE SOCIAL FIELD REFERRED TO IN ARTICLE 118 .
10 IN THAT CONNECTION IT SHOULD BE BORNE IN MIND THAT THE FIRST PARAGRAPH OF ARTICLE 118 OF THE EEC TREATY CONFERS ON THE COMMISSION "THE TASK OF PROMOTING CLOSE COOPERATION BETWEEN MEMBER STATES IN THE SOCIAL FIELD ". ITS SECOND PARAGRAPH PROVIDES THAT, TO THAT END, THE COMMISSION IS TO ACT IN CLOSE CONTACT WITH THE MEMBER STATES BY MAKING STUDIES, DELIVERING OPINIONS AND ARRANGING CONSULTATIONS .
11 THE FIRST SUBMISSION RAISES TWO SEPARATE QUESTIONS, THAT IS TO SAY WHETHER COLLABORATION BETWEEN MEMBER STATES IN THE SOCIAL FIELD, AS PROVIDED FOR IN THE FIRST PARAGRAPH OF ARTICLE 118, EXTENDS TO MIGRATION POLICIES IN RELATION TO NON-MEMBER COUNTRIES, AND SECONDLY WHETHER THE ARRANGEMENT OF CONSULTATIONS, A TASK CONFERRED ON THE COMMISSION BY THE SECOND PARAGRAPH OF ARTICLE 118, EMPOWERS THE LATTER TO ISSUE BINDING MEASURES . THOSE TWO QUESTIONS SHOULD BE CONSIDERED IN TURN .
12 THE FIRST PARAGRAPH OF ARTICLE 117 OF THE EEC TREATY, WHICH APPEARS IN CHAPTER 1, "SOCIAL PROVISIONS", OF TITLE II, "SOCIAL POLICY", MAKES IT THE DUTY OF THE MEMBER STATES TO PROMOTE IMPROVED WORKING CONDITIONS AND AN IMPROVED STANDARD OF LIVING FOR WORKERS, SO AS TO MAKE POSSIBLE THEIR HARMONIZATION WHILE THE IMPROVEMENT IS BEING MAINTAINED . UNDER THE SECOND PARAGRAPH OF ARTICLE 117 SUCH A DEVELOPMENT IS TO ENSUE NOT ONLY FROM THE FUNCTIONING OF THE COMMON MARKET, WHICH IS TO FAVOUR THE HARMONIZATION OF SOCIAL SYSTEMS, BUT ALSO FROM THE PROCEDURES PROVIDED FOR BY THE TREATY AND FROM THE APPROXIMATION OF NATIONAL LEGISLATION .
13 IT IS WITH THAT APPROXIMATION IN MIND THAT ARTICLE 118 GIVES THE COMMISSION THE TASK OF PROMOTING CLOSE COOPERATION BETWEEN MEMBER STATES IN THE SOCIAL FIELD, PARTICULARLY IN MATTERS RELATING TO EMPLOYMENT AND WORKING CONDITIONS .
14 CONSEQUENTLY, WHILST ARTICLE 118 OF THE EEC TREATY DOES NOT ENCROACH UPON THE MEMBER STATES' POWERS IN THE SOCIAL FIELD IN SO FAR AS THE LATTER IS NOT COVERED BY OTHER PROVISIONS OF THE TREATY, SUCH AS, FOR EXAMPLE, THE PROVISIONS ON THE FREE MOVEMENT OF WORKERS, THE COMMON AGRICULTURAL POLICY OR THE COMMON TRANSPORT POLICY, IT NEVERTHELESS PROVIDES THAT THOSE POWERS MUST BE EXERCISED IN THE FRAMEWORK OF COOPERATION BETWEEN MEMBER STATES, WHICH IS TO BE ORGANIZED BY THE COMMISSION .
15 THE ESSENCE OF THE ARGUMENTS PUT FORWARD BY THE APPLICANT MEMBER STATES IS THAT MIGRATION POLICY IN RELATION TO NON-MEMBER COUNTRIES IS NOT PART OF THE SOCIAL FIELD ENVISAGED BY ARTICLE 118 OR, ALTERNATIVELY, THAT IT FALLS ONLY PARTLY WITHIN THAT FIELD .
16 AS REGARDS THE APPLICANTS' MAIN ARGUMENT IT MUST BE OBSERVED THAT THE EMPLOYMENT SITUATION AND, MORE GENERALLY, THE IMPROVEMENT OF LIVING AND WORKING CONDITIONS WITHIN THE COMMUNITY ARE LIABLE TO BE AFFECTED BY THE POLICY PURSUED BY THE MEMBER STATES WITH REGARD TO WORKERS FROM NON-MEMBER COUNTRIES . IN THE PREAMBLE TO DECISION 85/381/EEC THE COMMISSION RIGHTLY CONSIDERS THAT IT IS IMPORTANT TO ENSURE THAT THE MIGRATION POLICIES OF MEMBER STATES IN RELATION TO NON-MEMBER COUNTRIES TAKE INTO ACCOUNT BOTH COMMON POLICIES AND THE ACTIONS TAKEN AT COMMUNITY LEVEL, IN PARTICULAR WITHIN THE FRAMEWORK OF COMMUNITY LABOUR MARKET POLICY, IN ORDER NOT TO JEOPARDIZE THE RESULTS .
17 AS EARLY AS 1974, IN ITS RESOLUTION OF 21 JANUARY 1974 CONCERNING A SOCIAL ACTION PROGRAMME ( OFFICIAL JOURNAL 1974, C 13, P . 1 ), THE COUNCIL RECOGNIZED THAT THE MIGRATION POLICIES PURSUED BY THE MEMBER STATES AFFECT THE COMMUNITY' S SOCIAL POLICY, IN PARTICULAR IN VIEW OF THEIR INFLUENCE ON THE COMMUNITY EMPLOYMENT MARKET AND ON COMMUNITY WORKERS' EMPLOYMENT CONDITIONS . IN THAT RESOLUTION IT ACKNOWLEDGED THE NEED, AND EXPRESSED THE POLITICAL RESOLVE, TO PROMOTE CONSULTATION ON IMMIGRATION POLICIES VIS-A-VIS NON-MEMBER COUNTRIES . IT REITERATED THAT VIEW IN ITS RESOLUTION OF 9*FEBRUARY 1976 ON AN ACTION PROGRAMME FOR MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES ( OFFICIAL JOURNAL 1976, C 34, P . 2 ) AND IN ITS RESOLUTION OF 27*JUNE 1980 ON GUIDELINES FOR THE COMMUNITY LABOUR-MARKET POLICY ( OFFICIAL JOURNAL 1980, C 168, P.*1 ), WHICH IS REFERRED TO IN THE COMMISSION' S DECISION . THE DECISION ALSO REFERS TO THE RESOLUTION ON GUIDELINES FOR A COMMUNITY POLICY ON MIGRATION ALREADY APPROVED BY THE COUNCIL, WHICH WAS TO BE FORMALLY ADOPTED ON 16 JULY 1985 ( OFFICIAL JOURNAL 1985, C 186, P . 3 ).
18 IT MUST THEREFORE BE HELD THAT THE ARGUMENT THAT MIGRATION POLICY IN RELATION TO NON-MEMBER STATES FALLS ENTIRELY OUTSIDE THE SOCIAL FIELD, IN RESPECT OF WHICH ARTICLE 118 PROVIDES FOR COOPERATION BETWEEN THE MEMBER STATES, CANNOT BE ACCEPTED .
19 THE MERITS OF THE APPLICANT MEMBER STATES' ALTERNATIVE ARGUMENT TO THE EFFECT THAT THE CONTESTED DECISION COVERS MATTERS FALLING OUTSIDE THE SOCIAL FIELD WITHIN THE MEANING OF ARTICLE 118 NOW FALLS TO BE CONSIDERED . THE MEMBER STATES ARGUE THAT DECISION 85/381/EEC AIMS TO INTRODUCE A CONSULTATION PROCEDURE IN THE CULTURAL FIELD IN SO FAR AS IT REFERS, IN PARTICULAR, TO THE "INTEGRATION INTO ... CULTURAL LIFE" OF WORKERS FROM NON-MEMBER COUNTRIES .
20 THAT OBJECTION REFERS TO ARTICLE 1 OF THE CONTESTED DECISION, WHICH INCLUDES IN THE COMMUNICATION AND CONSULTATION PROCEDURE THE "PROMOTION OF INTEGRATION INTO THE WORKFORCE, SOCIETY AND CULTURAL LIFE" OF MIGRANT WORKERS FROM NON-MEMBER COUNTRIES AND MEMBERS OF THEIR FAMILIES .
21 THE PROMOTION OF THE INTEGRATION INTO THE WORKFORCE OF WORKERS FROM NON-MEMBER COUNTRIES MUST BE HELD TO BE WITHIN THE SOCIAL FIELD WITHIN THE MEANING OF ARTICLE 118, IN SO FAR AS IT IS CLOSELY LINKED TO EMPLOYMENT . THIS ALSO APPLIES TO THEIR INTEGRATION INTO SOCIETY, HAVING REGARD TO THE OBJECTIVES PURSUED BY THE CONTESTED DECISION, INASMUCH AS THE DRAFT MEASURES IN QUESTION ARE THOSE CONNECTED WITH PROBLEMS RELATING TO EMPLOYMENT AND WORKING CONDITIONS, AND THERE IS NO REASON TO CONSIDER THAT THE DECISION INTENDED TO GIVE A DIFFERENT MEANING TO THAT CONCEPT .
22 AS REGARDS THE CULTURAL INTEGRATION OF IMMIGRANT COMMUNITIES FROM NON-MEMBER COUNTRIES, WHILST THIS MAY BE LINKED, TO AN EXTENT, WITH THE EFFECTS OF MIGRATION POLICY, IT IS AIMED AT IMMIGRANT COMMUNITIES IN GENERAL WITHOUT DISTINCTION BETWEEN MIGRANT WORKERS AND OTHER FOREIGNERS, AND ITS LINK WITH PROBLEMS RELATING TO EMPLOYMENT AND WORKING CONDITIONS IS THEREFORE EXTREMELY TENUOUS .
23 MOREOVER, MIGRATION POLICY IS CAPABLE OF FALLING WITHIN THE SOCIAL FIELD WITHIN THE MEANING OF ARTICLE 118 ONLY TO THE EXTENT TO WHICH IT CONCERNS THE SITUATION OF WORKERS FROM NON-MEMBER COUNTRIES AS REGARDS THEIR IMPACT ON THE COMMUNITY EMPLOYMENT MARKET AND ON WORKING CONDITIONS .
24 AS A RESULT, IN SO FAR AS DECISION 85/381/EEC INCLUDES THE PROMOTION OF CULTURAL INTEGRATION AS A WHOLE AMONG THE SUBJECTS FOR CONSULTATION IT GOES BEYOND THE SOCIAL FIELD IN WHICH, UNDER ARTICLE 118, THE COMMISSION HAS THE TASK OF PROMOTING COOPERATION BETWEEN MEMBER STATES .
25 THE FRENCH REPUBLIC' S ARGUMENT THAT THE WHOLE AREA OF POLICY ON FOREIGN NATIONALS FALLS OUTSIDE THE SOCIAL FIELD INASMUCH AS IT INVOLVES QUESTIONS OF PUBLIC SECURITY FOR WHICH THE MEMBER STATES ALONE ARE RESPONSIBLE CANNOT BE ACCEPTED . WHILST IT IS TRUE THAT PURSUANT TO THEIR RULES GOVERNING FOREIGN NATIONALS MEMBER STATES MAY TAKE MEASURES WITH REGARD TO WORKERS WHO ARE NATIONALS OF NON-MEMBER COUNTRIES - EITHER BY ADOPTING NATIONAL RULES OR BY NEGOTIATING INTERNATIONAL INSTRUMENTS - WHICH ARE BASED ON CONSIDERATIONS OF PUBLIC POLICY, PUBLIC SECURITY AND PUBLIC HEALTH AND WHICH ARE, AS SUCH, THEIR SOLE RESPONSIBILITY, THIS DOES NOT MEAN THAT THE WHOLE FIELD OF MIGRATION POLICY IN RELATION TO NON-MEMBER COUNTRIES FALLS NECESSARILY WITHIN THE SCOPE OF PUBLIC SECURITY .
26 THE ARGUMENT RAISED BY THE FRENCH REPUBLIC AND THE FEDERAL REPUBLIC OF GERMANY TO THE EFFECT THAT THE DUTY OF NOTIFICATION IS LIABLE TO JEOPARDIZE THE REQUIREMENTS OF SECRECY AND CONFIDENTIALITY, PARTICULARLY IN NEGOTIATIONS WITH NON-MEMBER COUNTRIES, MUST LIKEWISE BE REJECTED SINCE THERE IS NO IMPERATIVE REQUIREMENT FOR THE DRAFTS TO BE NOTIFIED UNTIL SUCH TIME AS THEY ARE PUBLISHED . MOREOVER, UNDER ARTICLE 4 OF THE DECISION THE MEMBER STATES ARE REQUIRED TO TAKE ALL NECESSARY STEPS TO SAFEGUARD THE CONFIDENTIAL NATURE OF THE INFORMATION EXCHANGED, WHICH MUST COVER INFORMATION COMMUNICATED VOLUNTARILY BEFORE PUBLICATION .
27 SINCE THE CONTESTED DECISION FALLS ONLY PARTLY OUTSIDE THE SOCIAL FIELD COVERED BY ARTICLE 118, IT MUST BE CONSIDERED WHETHER THE SECOND PARAGRAPH OF ARTICLE 118, WHICH PROVIDES THAT THE COMMISSION IS TO ACT, INTER ALIA, BY ARRANGING CONSULTATIONS, GIVES IT THE POWER TO ADOPT A BINDING DECISION WITH A VIEW TO THE ARRANGEMENT OF SUCH CONSULTATIONS .
28 IN THAT CONNECTION IT MUST BE EMPHASIZED THAT WHERE AN ARTICLE OF THE EEC TREATY - IN THIS CASE ARTICLE 118 - CONFERS A SPECIFIC TASK ON THE COMMISSION IT MUST BE ACCEPTED, IF THAT PROVISION IS NOT TO BE RENDERED WHOLLY INEFFECTIVE, THAT IT CONFERS ON THE COMMISSION NECESSARILY AND PER SE THE POWERS WHICH ARE INDISPENSABLE IN ORDER TO CARRY OUT THAT TASK . ACCORDINGLY, THE SECOND PARAGRAPH OF ARTICLE 118 MUST BE INTERPRETED AS CONFERRING ON THE COMMISSION ALL THE POWERS WHICH ARE NECESSARY IN ORDER TO ARRANGE THE CONSULTATIONS . IN ORDER TO PERFORM THAT TASK OF ARRANGING CONSULTATIONS THE COMMISSION MUST NECESSARILY BE ABLE TO REQUIRE THE MEMBER STATES TO NOTIFY ESSENTIAL INFORMATION, IN THE FIRST PLACE IN ORDER TO IDENTIFY THE PROBLEMS AND IN THE SECOND PLACE IN ORDER TO PINPOINT THE POSSIBLE GUIDELINES FOR ANY FUTURE JOINT ACTION ON THE PART OF THE MEMBER STATES; LIKEWISE IT MUST BE ABLE TO REQUIRE THEM TO TAKE PART IN CONSULTATIONS .
29 INDEED, THE COLLABORATION BETWEEN MEMBER STATES REQUIRED BY ARTICLE 118 IS ONLY POSSIBLE WITHIN THE FRAMEWORK OF ORGANIZED CONSULTATIONS . IN THE ABSENCE OF ANY ACTION TO INITIATE IT THAT COLLABORATION MIGHT REMAIN A DEAD LETTER, EVEN THOUGH PROVISION IS MADE FOR IT IN THE TREATY . SINCE THE COMMISSION WAS SPECIFICALLY GIVEN THE TASK OF PROMOTING SUCH COLLABORATION AND ARRANGING IT, IT IS ENTITLED TO INITIATE CONSULTATION PROCEDURES WITHIN THE SOCIAL FIELD REFERRED TO IN ARTICLE 118 .
30 IT MUST BE BORNE IN MIND THAT THAT POWER OF THE COMMISSION MUST BE CONFINED TO ARRANGING A PROCEDURE FOR THE NOTIFICATION OF INFORMATION AND CONSULTATION AND THAT IN THE PRESENT STAGE OF DEVELOPMENT OF COMMUNITY LAW THE SUBJECT-MATTER OF THE NOTIFICATION AND CONSULTATION FALLS WITHIN THE COMPETENCE OF THE MEMBER STATES . IT MUST ALSO BE POINTED OUT THAT THE POWER WHICH THE COMMISSION SEEKS TO EXERCISE UNDER ARTICLE 118 IS SIMPLY A PROCEDURAL ONE TO SET UP THE NOTIFICATION AND CONSULTATION MACHINERY WHICH IS TO RESULT IN THE ADOPTION OF A COMMON POSITION ON THE PART OF THE MEMBER STATES .
31 CONSEQUENTLY, SINCE ARTICLE 118 PROVIDES A SPECIFIC BASIS FOR THE COMMISSION' S DECISION THERE IS NO NEED TO CONSIDER WHETHER THE OUTCOME SOUGHT BY THE DECISION IN QUESTION MIGHT HAVE BEEN ACHIEVED THROUGH OTHER GENERAL PROVISIONS OF THE TREATY OR OTHER PROCEDURES NECESSITATING ACTION ON THE PART OF OTHER INSTITUTIONS .
32 NOW THAT IT HAS BEEN ESTABLISHED THAT THE COMMISSION IS EMPOWERED UNDER ARTICLE 118 TO ADOPT A BINDING DECISION VIS-A-VIS THE MEMBER STATES ESTABLISHING A COMMUNICATION AND CONSULTATION PROCEDURE, IT MUST BE CONSIDERED WHETHER THE CONTESTED DECISION DOES NOT GO BEYOND THE LIMITS OF SUCH A PROCEDURE, AS THE APPLICANT MEMBER STATES CLAIM .
33 THE MEMBER STATES MAINTAIN THAT THE DECISION DOES NOT MERELY ARRANGE A CONSULTATION PROCEDURE, BUT, BY ASSIGNING AN AIM TO THAT CONSULTATION, SEEKS TO DETERMINE ITS OUTCOME AND HENCE EXCEEDS THE COMMISSION' S POWERS, WHICH ARE OF A PROCEDURAL NATURE . THE SECOND INDENT OF ARTICLE 3 OF THE CONTESTED DECISION PROVIDES, IN FACT, THAT THE PURPOSE OF THE CONSULTATION PROCEDURE IS TO ENSURE THAT THE AGREEMENTS AND MEASURES COMMUNICATED ARE IN CONFORMITY WITH COMMUNITY POLICIES IN THE FIELDS COVERED BY THE DECISION, INCLUDING POLICY ON DEVELOPMENT AID .
34 SINCE THE COMMISSION HAS A POWER OF A PURELY PROCEDURAL NATURE TO INITIATE A CONSULTATION PROCEDURE IT CANNOT DETERMINE THE RESULT TO BE ACHIEVED IN THAT CONSULTATION AND CANNOT PREVENT THE MEMBER STATES FROM IMPLEMENTING DRAFTS, AGREEMENTS AND MEASURES WHICH IT MIGHT CONSIDER NOT TO BE IN CONFORMITY WITH COMMUNITY POLICIES AND ACTIONS .
35 AS A RESULT, IN SO FAR AS THE SECOND INDENT OF ARTICLE 3 LAYS DOWN A PRECISE OBLIGATION ON THE MEMBER STATES AND IS INTENDED TO DEBAR THEM FROM ADOPTING NATIONAL MEASURES OR CONCLUDING AGREEMENTS THAT THE COMMISSION CONSIDERS NOT TO BE IN CONFORMITY WITH COMMUNITY POLICIES AND ACTIONS, IT MUST BE REGARDED, AS THE APPLICANT MEMBER STATES RIGHTLY ARGUE, AS EXCEEDING THE SCOPE OF THE COMMISSION' S POWERS UNDER ARTICLE 118 .
36 AS A RESULT OF THE FOREGOING THE APPLICANT MEMBER STATES ARE ENTITLED TO SUCCEED IN THEIR REQUEST THAT THE CONTESTED DECISION BE DECLARED VOID IN SO FAR AS THE COMMISSION LACKED COMPETENCE
( A ) TO EXTEND, BY MEANS OF ARTICLE 1, THE SCOPE OF THE CONSULTATION PROCEDURE TO COVER MATTERS RELATING TO THE CULTURAL INTEGRATION OF WORKERS FROM NON-MEMBER STATES AND MEMBERS OF THEIR FAMILIES; AND
( B ) TO PROVIDE, IN THE SECOND INDENT OF ARTICLE 3, THAT THE OBJECTIVE OF THE CONSULTATION IS TO ENSURE THAT THE NATIONAL DRAFT MEASURES AND AGREEMENTS ARE IN CONFORMITY WITH COMMUNITY POLICIES AND ACTIONS .
COMPLIANCE WITH ESSENTIAL PROCEDURAL REQUIREMENTS
( I)*FAILURE TO CONSULT THE ECONOMIC AND SOCIAL COMMITTEE
37 THE MEMBER STATES ARGUE THAT, EVEN IF THE DECISION FALLS WITHIN THE COMPETENCE OF THE COMMISSION, IT SHOULD BE DECLARED VOID INASMUCH AS IT WAS ADOPTED WITHOUT PRIOR CONSULTATION OF THE ECONOMIC AND SOCIAL COMMITTEE . THAT FORMALITY IS LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 118 AS REGARDS OPINIONS ADOPTED BY THE COMMISSION AND, IT IS ARGUED, MUST BE COMPLIED WITH A FORTIORI WHEN THE COMMISSION ADOPTS A DECISION, IN WHICH EVENT IT SHOULD CERTAINLY BE REGARDED AS AN ESSENTIAL PROCEDURAL REQUIREMENT .
38 IN THAT CONNECTION IT IS APPROPRIATE TO OBSERVE THAT THE FUNCTION OF THE ECONOMIC AND SOCIAL COMMITTEE, WHICH IS MADE UP OF REPRESENTATIVES OF SOCIO-ECONOMIC GROUPS, IS TO ADVISE THE COUNCIL AND COMMISSION ON THE SOLUTIONS TO BE ADOPTED WITH REGARD TO PRACTICAL PROBLEMS OF AN ECONOMIC AND SOCIAL NATURE AND TO DELIVER OPINIONS BASED ON ITS SPECIFIC COMPETENCE AND KNOWLEDGE .
39 ACCORDINGLY, THE THIRD PARAGRAPH OF ARTICLE 118 MADE IT OBLIGATORY TO CONSULT THE ECONOMIC AND SOCIAL COMMITTEE, NOT IN THE CASE OF STUDIES AND THE ARRANGEMENT OF CONSULTATIONS, BUT SOLELY IN THE CASE OF THE OPINIONS BY WHICH THE COMMISSION MAY PROPOSE THE IMPLEMENTATION OF PRACTICAL MEASURES, ON WHICH IT IS USEFUL TO ASCERTAIN THE VIEWS OF THE SOCIO-ECONOMIC GROUPS . THIS IS NOT THE CASE WHEN THE COMMISSION DECIDES TO COMPILE INFORMATION OR ORGANIZE A MEETING, FOR THE DECISIONS INVOLVED THEN ARE PURELY PREPARATORY AND PROCEDURAL AND, BY DEFINITION, DO NOT TOUCH ON SUBSTANTIVE QUESTIONS WHICH ARE LIABLE TO INVOLVE THE ECONOMIC AND SOCIAL COMMITTEE IN MAKING AN ASSESSMENT OF A SOCIO-ECONOMIC NATURE .
40 CONSEQUENTLY, THE SUBMISSION THAT THE DECISION SHOULD BE DECLARED VOID ON THE GROUND THAT THE ECONOMIC AND SOCIAL COMMITTEE WAS NOT CONSULTED MUST BE DISMISSED .
( II)*THE STATEMENT OF REASONS
41 THE SUBMISSION THAT THE DECISION SHOULD BE DECLARED VOID ON THE GROUND THAT IT LACKED A PROPER STATEMENT OF REASONS IN SO FAR AS IT REFERS TO THE RESOLUTION OF 16 JULY 1985, WHICH HAS NO BINDING EFFECT AND THEREFORE CANNOT PROVIDE A VALID LEGAL BASIS, MUST BE REJECTED SINCE THE LEGAL BASIS IS PROVIDED BY ARTICLE 118, WHICH IS REFERRED TO IN THE DECISION . MOREOVER, THE RESOLUTION IN QUESTION HAD NOT BEEN FORMALLY ADOPTED WHEN THE DECISION WAS TAKEN .
42 CONSEQUENTLY, THE CONTESTED DECISION MUST BE DECLARED VOID IN SO FAR AS THE COMMISSION LACKED COMPETENCE
( A ) TO EXTEND, BY MEANS OF ARTICLE 1, THE SCOPE OF THE COMMUNICATION AND CONSULTATION PROCEDURE TO COVER MATTERS RELATING TO THE CULTURAL INTEGRATION OF WORKERS FROM NON-MEMBER STATES AND MEMBERS OF THEIR FAMILIES; AND
( B ) TO PROVIDE, IN THE SECOND INDENT OF ARTICLE 3, THAT THE OBJECTIVE OF THE CONSULTATION IS TO ENSURE THAT THE NATIONAL DRAFT MEASURES AND AGREEMENTS ARE IN CONFORMITY WITH COMMUNITY POLICIES AND ACTIONS .
43 THE REMAINDER OF THE APPLICATIONS IS DISMISSED .
Decision on costs
COSTS
44 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 3 ), THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS, OR WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL . SINCE THE APPLICATION BROUGHT BY THE KINGDOM OF THE NETHERLANDS HAS BEEN DECLARED INADMISSIBLE, THE KINGDOM OF THE NETHERLANDS MUST BE ORDERED TO PAY THE COSTS RELATING TO THAT APPLICATION . SINCE THE SUBMISSIONS MADE BY THE MEMBER STATES IN THE OTHER APPLICATIONS AND BY THE PARTIES INTERVENING IN SUPPORT OF THEIR CONCLUSIONS HAVE BEEN ACCEPTED IN PART ONLY, IT IS NOT APPROPRIATE TO ORDER THE COMMISSION TO BEAR THE WHOLE OF THE COSTS BUT EACH OF THE PARTIES, INCLUDING THE INTERVENERS, MUST BE ORDERED TO BEAR THE COSTS THAT IT HAS INCURRED .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
( 1 ) DECLARES THAT THE APPLICATION BROUGHT IN CASE 284/85 BY THE KINGDOM OF THE NETHERLANDS IS INADMISSIBLE AS BEING OUT OF TIME;
( 2 ) ORDERS THE KINGDOM OF THE NETHERLANDS TO PAY THE COSTS;
( 3 ) DECLARES VOID COMMISSION DECISION 85/381/EEC OF 8 JULY 1985 SETTING UP A PRIOR COMMUNICATION AND CONSULTATION PROCEDURE ON MIGRATION POLICIES IN RELATION TO NON-MEMBER COUNTRIES IN SO FAR AS THE COMMISSION LACKED COMPETENCE
TO EXTEND, BY MEANS OF ARTICLE 1, THE SCOPE OF THE COMMUNICATION AND CONSULTATION PROCEDURE TO COVER MATTERS RELATING TO THE CULTURAL INTEGRATION OF WORKERS FROM NON-MEMBER STATES AND MEMBERS OF THEIR FAMILIES, AND
TO PROVIDE, IN THE SECOND INDENT OF ARTICLE 3, THAT THE OBJECTIVE OF THE CONSULTATION IS TO ENSURE THAT THE DRAFT NATIONAL MEASURES AND AGREEMENTS ARE IN CONFORMITY WITH COMMUNITY POLICIES AND ACTIONS;
( 4 ) DISMISSES THE REMAINDER OF THE APPLICATIONS;
( 5 ) ORDERS EACH OF THE PARTIES AND THE INTERVENERS IN CASES 281, 283, 285 AND 287/85 TO BEAR ITS OWN COSTS .