Opinion of the Advocate General — ECLI:EU:C:2016:411
Date: 2016-06-07
Language of the case: French
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment - successful

Summary — Judgment of the Court (Third Chamber) of 22 September 2016 1. EU Treaties — Transitional provisions — Maintenance of the effects of acts adopted on the basis of the EU Treaty — Inconsistent with the rules of procedure applicable after the entry into force of the Lisbon Treaty — No effect (Arts 82(1)(d) TFEU and 87(2)(a) TFEU; Protocol No 36 annexed to the EU Treaty and the FEU Treaty, Art. 9; Council Decision 2008/615, Art. 25) 2. Police cooperation — Judicial cooperation in criminal matters — Decision 2008/615 on the stepping up of cross-border cooperation — Establishment of a legal base providing for the adoption of implementing measures on the basis of detailed rules different from those laid down in the Treaties — Not permissible (Arts 34(2)(a) to (c) EU and 39(1) EU; Council Decision 2008/615, Art. 25(2)) 3. Actions for annulment — Contested act — Assessment of legality in the light of the information available at the time of adoption of the measure (Art. 263 TFEU) 4. Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Annulment of the decisions on the launch of automated data exchange with regard to vehicle registration data and dactyloscopic data — Risk of prejudice to public order and public security — Maintenance of the effects of the annulled decision until the entry into force of a new act intended to replace it (Art. 264, second para., TFEU; Council Decisions 2014/731, 2014/743, 2014/744 and 2014/911) 1. Article 9 of the Protocol (No 36) on transitional provisions, annexed to the EU Treaty and the FEU Treaty, must be interpreted as meaning that a provision of an act duly adopted on the basis of the EU Treaty before the entry into force of the Treaty of Lisbon, which lays down detailed rules for the adoption of measures implementing that act, continues to produce its legal effects until it is repealed, annulled or amended, and permits the adoption of implementing measures in accordance with the procedure that it defines. It follows that the entry into force of the Treaty of Lisbon does not, in itself, preclude the adoption of acts falling under the former ‘third pillar’, such as decisions adopted under the procedure defined in Article 25 of Decision 2008/615 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime. Consequently, the argument that such acts must necessarily be based on Article 82(1)(d) and Article 87(2)(a) TFEU cannot succeed. (see paras 43, 44) 2. By requiring that measures necessary to implement Decision 2008/615 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, at the level of the European Union be adopted by the Council by means of a unanimous decision, whilst Article 34(2)(c) EU provided that such measures had to be adopted by the Council acting by a qualified majority, Article 25(2) of that decision unlawfully lays down detailed rules for the adoption of measures that are more stringent in comparison with the procedure laid down for that purpose by the Treaties. Since the rules regarding the manner in which the EU institutions arrive at their decisions are laid down in the Treaties and are not within the discretion of the Member States or of the institutions themselves, the Treaties alone may, in particular cases, empower an institution to amend a decision-making procedure established by the Treaties. Accordingly, to acknowledge that an institution can establish secondary legal bases for the adoption of legislative acts or implementing measures, whether for the purpose of strengthening or easing the detailed rules for the adoption of an act, would be tantamount to according that institution a legislative power which exceeds that provided for by the Treaties. In that regard, it follows from Article 34(2)(c) EU and from Article 39(1) EU that the Council, voting unanimously on the initiative of any Member State or of the Commission, may adopt legislative acts with any aim that is consistent with those of Title VI of the EU Treaty, with the exception, however, of the areas referred to in Article 34(2)(a) and (b) EU, and, voting by majority, may adopt the measures necessary for the implementation of those acts at EU level. Consequently, Article 25(2) of Decision 2008/615 must be interpreted as providing for the adoption, by the Council voting unanimously, of measures to implement that decision. (see paras 47, 49, 69, 72) 3. See the text of the decision. (see para. 48) 4. See the text of the decision. (see paras 76-78)