Opinion of the Advocate General — ECLI:EU:C:2013:562
Date: 2013-09-12
Language of the case: English
Subject matter: Economic and monetary policy
Procedure: Action for annulment - unfounded
Origin: United Kingdom

summary of the Court’s case law on implementing powers see points 26 to 29 of the Opinion of Advocate General Mengozzi in Case C‑355/10 European Parliament v Council. 103 – Körner, S., Experience and Conduct. A Philosophical Enquiry into Practical Thinking (Cambridge University Press, Cambridge, 1980), p. 186. 104 – See the Opinion of Advocate General Kokott of 17 January 2013 in Case C‑583/11 P Inuit Tapiriit Kantami and Others v Parliament and Council, point 56. 105 – C-122/04 Commission v Parliament [2006] ECR I‑2001, paragraph 37 and case law cited. See also Article I‑37(4) of the Treaty establishing a Constitution for Europe, cited above in footnote 97, pursuant to which implementing acts of the Union could have been adopted as European implementing regulations or as European implementing decisions. 106 – Lenaerts and van Nuffel, op. cit., paragraph 17‑006. 107 – See also recitals 42 and 43 of Regulation No 236/2012. It is interesting to note that the Commission has expressed the view that it has ‘serious doubts whether the restrictions on its role when adopting delegated acts and implementing measures [in the financial services sector] are in line with Articles 290 and 291 TFEU’. See ‘Commission Statements’, Addendum to ‘I/A’ Item Note of the Agenda of the Council of the European Union, 10 November 2011, Council Document 15649/10 Add 1. 108 – For examples of cases in which the Court has decided questions of institutional balance and authority by reference to protection of the principle of democracy see Case C‑138/79 Roquette Frères v Council [1980] ECR 3333; Case 294/83 Les Verts v Parliament [1986] ECR 1339; Case C‑70/88 Parliament v Council [1990] ECR I‑2041; titanium dioxide, cited above in footnote 80. Before the Court of First Instance see Case T‑135/96 UEAPME v Council [1998] ECR II‑2335. 109 – It has also been observed that comitology procedures are not pertinent to the exercise of Article 290 TFEU powers. See Piris, J.C., ‘Les articles 290 et 291 du TFUE: Les compétences “déléguées” ou “conférées” à la Commission par le législateur européen. Les actes délégués et les actes d’exécution’, Publications de Congrès FIDE XXIII 2008-2009, pp. 247 to 251. 110 – See Article 17(8) TEU. 111 – Case C‑301/02 P Tralli v European Central Bank [2005] ECR I‑4071, paragraph 43, citing Meroni. 112 – Case 291/86 Central-Import Münster [1988] ECR I‑3679, paragraph 13; Tralli, paragraph 43. 113 – Case C‑355/10 Parliament v Council, paragraph 65, where the Court held that ‘provisions which, in order to be adopted, require political choices falling within the responsibilities of the European Union legislature cannot be delegated’. Unlike the Advocate General, the Court made a link between elements that are essential and those entailing policy choices. See Chamon, M., ‘How the concept of essential elements of a legislative act continues to elude the Court’, Common Market Law Review 50 (2013), pp. 849 to 860, p. 854. 114 – In fact, nor can the execution of an EU programme be delegated to an executive agency where this would involve ‘discretionary powers in translating political choices into action’. See recital 5 to Regulation No 58/2003 and Article 6(1) of Regulation No 58/2003.