Opinion of the Advocate General — ECLI:EU:C:2015:645
Date: 2015-10-01
Language of the case: French
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment - successful

Summary of the meeting of European Convention Working Group IX on Simplification, 24 October 2002 (CONV 372/02, p. 3). 23 – Final Report of European Convention Working Group IX on Simplification (CONV 424/02, pp. 9 and 10). Even the most important discussions that took place between the institutions concerning the implementation of Article 290 TFEU seem to have been concerned primarily with the legislature’s ability to control the adoption of delegated acts, the consultation of national experts and the duration of the delegation of power (on the debate concerning control, see, for example, Brandsma, G. J., and Blom-Hansen, J., ‘Negotiating the Post-Lisbon Comitology System: Institutional Battles over Delegated Decision-Making’, Journal of Common Market Studies 2012, vol. 50, No 6, pp. 939-957, pp. 943-948). 24 – It is for the legislature alone to apply the criteria set out in Article 290 TFEU, which are cumulative, it being essential not only that the act be of general application but also that it amend or supplement certain non-essential elements of the legislative act. If either of those conditions is not met, then, according to the Communication from the Commission on the implementation of Article 290 TFEU, Article 290 TFEU may not be applied (Communication from the Commission to the European Parliament and the Council — Implementation of Article 290 of the Treaty on the Functioning of the European Union — 9 December 2009, COM(2009) 673 final, point 2.3). 25 – According to the principles of lex posterior and lexspecialis, a delegated act amending the basic act therefore replaces the relevant provisions of the basic act even though it is an act adopted by the Commission. 26 – COM(2009) 673 final, point 2.3 (emphasis added). 27 – Conversely, measures intended only to give effect to the existing rules of the basic instrument should not be deemed to be supplementary measures (COM(2009) 673 final, point 2.3, emphasis added). I would point out, however, that this case is primarily concerned with the distinction between delegate[ed] acts which supplement the basic act and implementing acts, which, as I noted earlier, is not an easy distinction to draw (see my Opinion in United Kingdom v Council and Parliament, C‑270/12, EU:C:2013:562, point 78). 28 – ‘Implementation of the Treaty of Lisbon. Delegated Acts (Article 290, Treaty on the Functioning of the European Union), Guidelines for the services of the Commission’ (‘2011 Commission Services Guidelines’), SEC(2011) 855. 29 – 2011 Commission Services Guidelines, paragraph 34. 30 – Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23). 31 – Council Decision of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 2006 L 200, p. 11). 32 – COM(2009) 673 final, point 2.1. See also the Opinion of Advocate General Mengozzi in Commission v Parliament and Council (C‑88/14, EU:C:2015:304). According to point 42 of that Opinion, under the comitology system established on the basis of Article 202 EC, the concept of ‘amendment’ of a basic act clearly also included the function of supplementing legislation (‘the addition of new ... elements’) within the single category of ‘implementing powers’. In accordance with Article 2(2) of Decision 1999/468, the regulatory procedure with scrutiny introduced by Decision 2006/512 had to be followed where power was conferred on the Commission to adopt measures of general scope designed to amend non-essential elements of a basic instrument by, inter alia, deleting some of those elements or by supplementing the instrumentby the addition of new non-essential elements. 33 – C‑88/14, EU:C:2015:304. 34 – Opinion of Advocate General Mengozzi in Commission v Parliament and Council (C‑88/14, EU:C:2015:304, point 43). 35 – Ibid. 36 – See points 40 and 42 of this Opinion. 37 – C‑88/14, EU:C:2015:499. 38 – Judgment in Commission v Parliament and Council (C‑88/14, EU:C:2015:499, paragraphs 43 and 44). 39 – See the third possible interpretation set out in point 34 of this Opinion. 40 – Opinion of Advocate General Mengozzi in Commission v Parliament and Council (C‑88/14, EU:C:2015:304, point 41). 41 – That terminological difficulty is clearly illustrated by the Commission assertion at the hearing that it ‘[had] amended the basic act by supplementing it’. 42 – See point 47 of this Opinion. 43 – On the legislature’s discretion to choose between Article 290 TFEU and Article 291 TFEU, see, mutatis mutandis, the judgment in Commission v Parliament and Council (C‑427/12, EU:C:2014:170, paragraph 40) and the Opinion of Advocate General Mengozzi in Commission v Parliament and Council (C‑88/14, EU:C:2015:304, points 36 and 37). 44 – An alternative proposition might be that the Commission must always interpret the delegating provision in order to ascertain the purpose for which the power was delegated to it. 45 – The Parliament gave the example of a provision in which the power to ‘adapt’ a particular, precisely defined article or part of an annex is delegated to the Commission in order to take account of a particular development. A delegation of this kind is found, for example, in Article 6(3) and Article 7(3) of Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 (OJ 2013 L 347, p. 608). 46 – It is interesting to note that, at the time when the contested regulation was adopted, the Parliament was of the view that the regulation’s shortcomings could have been dealt with by means of a corrigendum. On that basis, then, a delegated regulation amending the basic regulation could have been corrected in such a way as to become a delegating regulation supplementing the basic regulation. This, however, would have meant changing the structure of the entire contested regulation, inasmuch as the Part VI in question could not have been inserted directly into Annex I to the basic regulation but would have had to be adopted in a separate regulation of its own. It seems questionable to me whether such an amendment could have been made by means of a corrigendum at all. 47 – On the other hand, one might also ask what meaning is to be ascribed to the provision that ‘the Commission shall be empowered to adopt delegated acts in accordance with Article 26 to raise the ceiling set out in Article 14(2) up to 20%’ (emphasis added), contained in Article 21(4) of the basic regulation. If we were to adopt the Parliament’s interpretation, then, in this context, ‘raise’ too would, in principle, have to have the meaning of ‘supplementing’ the basic act, since, for the reasons given by the Parliament and in the absence of any explicit empowerment to that effect, it could not mean ‘amend’. In that event, the ceiling would have to be raised by means of a separate act. It is true, as the Parliament conceded at the hearing, that, in a particular case such as this, that term might also refer to the power to amend the article concerned. However, since the present case does not concern the interpretation of Article 21(4) of the basic regulation, that paragraph will not be discussed any further. 48 – I would point out that Article 290 TFEU requires that the objectives, content, scope and duration of the delegation of power be explicitly defined in the legislative acts. Moreover, the delegation of power may be made subject to conditions concerning the revocation of the delegation and the entry into force of the delegated acts. 49 – The Parliament further argues that the contested regulation jeopardises the flexibility of the system which the basic regulation seeks to establish, since the Commission cannot subsequently change the funding priorities if they are laid down in the annex to the basic regulation. To my mind, that argument is based on unsound hypotheses and for that reason requires no further examination. In my opinion, there is no reason to assume that the Commission cannot subsequently amend a delegated act which it has adopted in order to amend the basic act if the delegation of power is still in force. On the other hand, there is also no reason to assume that the Commission may amend a separate delegated act, that is to say one amending the basic act, if the delegation of power is no longer in force. 50 – In the preparatory work for a Constitution for Europe, for example, those two categories of delegated act were treated as being of equal status (see the Final Report of European Convention Working Group IX on Simplification (CONV 424/02, pp. 9 and 10)). 51 – The consolidated versions of EU acts serve to make it easier to access legislation, the EU institutions accepting no liability for their content. The authentic texts are published in the L series of the Official Journal of the European Union. 52 – See also the conclusion reached by the Court with respect to the effects of a delegating act in the judgment in Commission v Parliament and Council (C‑88/14, EU:C:2015:499, paragraph 42). 53 – This does not preclude the use of other, clearer terms in the text of the act. In the present case, for example, the delegation could have been formulated as follows: ‘The Commission shall be empowered to adopt delegated acts supplementing the basic regulation by detailing funding priorities’. 54 – I would recall that the Parliament takes the view that, apart from the special cases referred to in footnote 45 above, those terms refer in principle ‘to supplement’. 55 – One need look only at Regulation (EU) No 508/2014 of the European Parliament and of the Council of 15 May 2014 on the European Maritime Fisheries Fund and repealing Council Regulations (EC) No 2328/2003, (EC) No 861/2006, (EC) No 1198/2006, (EC) No 791/2007 and Regulation (EU) No 1255/2011 of the European Parliament and of the Council (OJ 2014 L 149, p. 1), where the words ‘identify’ (FI: yksilöidä, FR: déterminer), ‘specify’ (FI: määritellä, FR: préciser), ‘define’ or ‘establish’ (FI: vahvistaa or määrittää, FR: établir or définir) are used to describe the power delegated to the Commission (see Articles 32(4), 40(4), 72(4), 102(1), 105(4) and 107(1)). This shows the variety of terms used in one regulation alone. 56 – The scale of the risk, moreover, is apparent from the large number of delegated acts in many areas of EU law. A single basic act may contain references to dozens of delegated acts. See Berrod, F., and Mestre, C., ‘L’incidence des considérations organiques sur la distinction entre les actes délégués et les actes d’exécution’, RTD Eur, January-March 2015, p. 89. 57 – As was confirmed at the hearing, although the Parliament has expressed from the outset its dissatisfaction with the fact that the contested regulation adds no value to the basic regulation and that the allocation of funds in the contested regulation is not binding (see point 15 of this Opinion), this does not mean that it is raising a plea of nullity.