Opinion of the Advocate General — ECLI:EU:C:2007:551
Date: 2007-09-27
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Action for annulment - successful

Summary of the Judgment 1. Visas, asylum, immigration – Asylum policy – Procedures in Member States for granting and withdrawing refugee status (Art. 202 EC; Council Directive 2005/85, recitals 19 and 24) 2. Acts of the institutions – Procedure for adoption – Rules laid down in the Treaty – Mandatory nature (Art. 67(2), second indent, EC) 3. Visas, asylum, immigration – Asylum policy – Procedures in Member States for granting and withdrawing refugee status (Arts 63, first para., points 1 and 2(a), EC, 67(1) and (5) EC and 202 EC; Council Directive 2005/85) 1. Under Article 202 EC, when measures implementing a basic instrument need to be taken at Community level, it is the Commission which, in the normal course of events, is responsible for exercising that power. The Council must properly explain, by reference to the nature and content of the basic instrument to be implemented, why exception is being made to that rule. In that regard, the grounds set out in recitals 19 and 24 in the preamble to Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status, which relate respectively to the political importance of the designation of safe countries of origin and to the potential consequences for asylum applicants of the safe third country concept, are conducive to justifying the consultation of the Parliament in respect of the establishment of the lists of safe countries and the amendments to be made to them, but not to justifying sufficiently a reservation of implementing powers which is specific to the Council. (see paras 47-49) 2. The rules regarding the manner in which the Community institutions arrive at their decisions are laid down in the Treaty and are not at the disposal of the Member States or of the institutions themselves. The Treaty alone may, in particular cases such as that provided for in the second indent of Article 67(2) EC, empower an institution to amend a decision-making procedure established by the Treaty. To acknowledge that an institution can establish secondary legal bases, 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 Treaty. It would also enable the institution concerned to undermine the principle of institutional balance which requires that each of the institutions must exercise its powers with due regard for the powers of the other institutions. Furthermore, the existence of an earlier practice of establishing secondary legal bases cannot derogate from the rules laid down in the Treaty and cannot therefore create a precedent binding on the institutions. (see paras 54-57, 60) 3. In order to determine whether the future adoption and amendment of the lists of safe countries through legislation or any decision to apply the third indent of Article 202 EC, in the form of a delegation or reservation of implementing powers, fall within paragraphs (1) or (5) of Article 67 EC, it is necessary to assess whether, with the adoption of Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status, the Council has adopted Community legislation defining the common rules and basic principles governing the issues covered by points 1 and 2(a) of the first paragraph of Article 63 EC. Since Directive 2005/85 adopts detailed criteria enabling the lists of safe countries to be established subsequently, the Council has, by that legislative act, adopted ‘Community legislation defining the common rules and basic principles’ within the meaning of the first indent of Article 67(5) EC, and therefore the co-decision procedure is applicable. (see paras 63, 65-66)