Opinion of the Advocate General — ECLI:EU:C:2002:561
Date: 2002-10-03
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Provisions governing the Institutions;Acts of the institutions
Procedure: Action for annulment - successful

summary of proposals received. (57) - Projects considered for financial support under LIFE-nature and LIFE-environment are subject to the committee procedure set out in Article 11 of the regulation. (58) - Article 11(2) states that Article 5 and 7 of the second comitology decision apply. As a result, the regulatory procedure within the meaning of that decision applies. - At the Commission's initiative, and after consulting the relevant committee, accompanying measures to be financed in the framework of LIFE-nature and LIFE-environment are to be the subject of calls for expressions of interest. These are to be published in the Official Journal of the European Communities and the specific criteria to be met are to be set out there. (59) - In accordance with Article 4(4), guidelines are to be established by the Commission, in the framework of LIFE-environment, for demonstration projects with application of the procedure in Article 11 - thus the regulatory procedure - and are to be published in the Official Journal of the European Communities. According to Article 4(4), the guidelines are to promote synergy between demonstration actions and the guiding principles of Community environmental policy with a view to sustainable development. - For LIFE-nature and LIFE-environment the Commission is to adopt an outline decision addressed to the Member States on the projects which have been accepted, and individual decisions are to be addressed to the beneficiaries laying down the amount of financial assistance, the financial procedures and controls, and the specific technical conditions of the project approved. For LIFE-third countries, the Commission is to conclude, in respect of the approved projects, a contract with the beneficiaries setting out the amount of financial assistance, the financial procedures and controls, and all the specific technical conditions of the approved projects. The list of proposals accepted is to be sent to the Member States. (60) 119. It is evident from this description that the LIFE regulation concerns, in the words of Article 1 of the second comitology decision, a classic basic instrument which imposes specific procedural requirements for the adoption of implementing measures. The regulation draws a clear distinction between the legislative part - setting out the purposes of the programme, the criteria for the award of financial assistance and the choice, in principle, for comitology - and the implementing measures in the form of the selection of the specific projects that are eligible for financing. The Community legislature has opted to delegate to the Commission the power to take implementing measures and the Commission must act in accordance with the regulatory procedure. The basic regulation does not give the Community legislature any possibility whatsoever, whether or not in special cases, to depart from the procedure laid down in the regulation for the award of financial assistance. There is thus no provision for self-authorisation. Only by amending the basic regulation itself can the delegating party revise the allocation of powers set out in the LIFE-regulation. 120. Now that we have reached the stage of an actual assessment of the pleas raised by the Commission, the first question is whether the Community legislature established the correct committee procedure in the light of the criteria of Article 2 of the second comitology decision. I agree with the Commission that, objectively, in the framework of the LIFE-regulation the management procedure should have been chosen instead of the regulatory procedure. To my mind, the case concerns the implementation of programmes with substantial budgetary implications within the meaning of Article 2(a) of the second comitology decision. 121. It is quite clear that the establishment of a total sum of EUR 640 million, which amounts to a yearly average of EUR 108 million, results - both absolutely and relatively in terms of the percentage of total expenditure for environmental protection or even the subsection to which the environmental budget belongs - in substantial implications for the budget. (61) The Council and the Parliament do not dispute this. Relatively small yearly expenditure may, when taken together over many years, amount to a large financial burden. (62) And in comparison with the appropriations for related Community policy areas, such as consumer affairs and public health, the planned expenditure for the LIFE-programme is considerably higher. (63) 122. Moreover, the LIFE-regulation concerns classical implementing measures consisting of the establishment of approval criteria, the selection of projects and the actual award of funds. They are preeminently measures suitable for the management procedure, as is also provided for in other Community programmes. In its pleadings the Commission has referred to programmes concerning co-operation with a third country, (64) the promotion of the efficient use of energy, (65) and the promotion of mobility in education. (66) Contrary to the Council's view, those programmes are comparable to the LIFE-programme. After all, they are cases of financial programmes with a yearly budget which corresponds more or less to that of the LIFE-programme and in which the task of the relevant committees is also to support the Commission in the process of distributing the funds. The fact that the LIFE-programme may relate to the entire area of the environment and may influence matters which directly affect the inhabitants of the Member States, does not seem to me to be relevant when determining the nature of the implementing measures. 123. The fact that, in accordance with Article 4 of the LIFE-regulation and with the application of the regulatory procedure, the Commission is to establish guidelines for demonstration projects has, in my view, no bearing on the choice for the management procedure. It concerns a practical guide which is intended to inform potential candidates of the type of projects which may be considered for LIFE-financing. The guidelines establish the conditions on the basis of which projects become eligible for financing. That is a necessary condition for non-arbitrary selection. In that sense they are closely connected to the implementation of the programme and cannot be regarded as measures of general scope designed to apply essential provisions of basic instruments within the meaning of Article 2(b) of the second comitology decision. 124. I find that, applying the criteria of Article 2 of the decision, the wrong procedure, that is to say the regulatory procedure, was chosen, when the management procedure was indicated. The second question is then whether the obligation to state the reasons for the choice of the regulatory procedure has been satisfied. 125. The recitals for the regulation do not contain any reasons for the choice by the Community legislature. The 20th recital refers merely to the fact that the committee procedure is being used to implement the regulation. Nor is there any explanation to be found in the operative part of the regulation. The only reasons given are in the Council's statement in reaction to the Commission's threat to commence proceedings before the Court of Justice. The essence of the Council's statement is that it took into account the experience gained with the regulatory procedure during the first two phases of the LIFE-programme and the nature of the LIFE instrument, which plays a vital role in the protection of the environment within the Community and contributes to implementation and development of Community environmental policy. 126. I point out in this connection, first of all, that transparency is not improved where the underlying reasons for a decision must be inferred from an exchange of declarations by those involved in the decision-making process. In addition, the Parliament, as co-legislator, did not express a view concerning the Commission's statement, when the need for a joint declaration of the Council and of the Parliament would have been evident. That in itself affects the plausibility of the Council's statement as a statement of reasons for the derogating choice of committee. The submission made by the Council's representative at the hearing, to the effect that the Parliament had implicitly agreed to the statement made and may have refrained from making an express statement on account of its delicate position in this procedure, does not seem to me to be credible. In my view, it cannot justify the failure of the Parliament - the co-legislator - to express its point of view. 127. The case-law of the Court suggests that, when Community measures are interpreted, account may be taken of statements made by the institutions if and in so far as the content of the statements is known to the persons concerned. (67) In the present case the statement was made known in the Official Journal. The statement thereby has a certain legal significance, but, in my opinion, it is not adequate to provide a sufficient statement of reasons for the decision to choose the regulatory procedure, in derogation from the criteria. 128. The reference to the continuation of the existing practice is unconvincing as statement of reasons for the selection of the regulatory procedure. The context has changed as a result of the fact that, approximately one year before adopting the LIFE-regulation, the Council adopted the second comitology decision. That decision included for the first time criteria for choosing the procedure for the adoption of implementing measures. The Court has recently stated that if the circumstances of the case differ, the statement of reasons cannot be the same. (68) It can therefore be demanded of the Community legislature that it adequately state the reasons for its choice of the regulatory procedure instead of the management procedure. 129. Still less does the reference to the nature of the instrument provide a valid statement of reasons. On the contrary, the nature of the LIFE-programme as a financing instrument implies precisely that the management procedure would have been the correct choice. The supplementary indication in the statement that the LIFE-instrument plays a vital role in the protection of the environment within the Community and contributes to the implementation and development of Community environmental policy relate more to the purposes of the legislative part of the contested regulation than to the nature of the implementing measures. 130. Since, in my view, the LIFE-regulation was adopted in breach of the obligation to state reasons, there are grounds for the Court to annul the measure because it infringes an essential procedural requirement. F - The annulment (in part) of the LIFE-regulation 131. The Parliament has submitted that any infringement of Article 2 of the second comitology decision could not in any event lead to annulment of the contested regulation, inter alia because the difference between the two procedures is quite minimal. 132. This argument is, however, untenable. Such a circumstance could not provide a basis for not annulling a provision on account of infringement of an essential procedural requirement. Moreover, there are, as indicated, indeed essential differences between the administrative procedure and the regulatory procedure provided for in the second comitology decision. 133. The Commission has claimed, however, that the Court should merely annul the LIFE-regulation in part, that is to say, in so far as that regulation lays down implementing measures in accordance with the regulatory procedure provided for in the second comitology decision. 134. In that connection a complication arises which has not been mentioned by any of the parties. It is conceivable that the Court cannot grant the Commission's request because the choice of procedure for implementing measures is an essential part of the regulation. In such a case the LIFE-regulation would then have to be annulled in its entirety. It is settled case-law that annulment in part is possible only in so far as the part to which that annulment relates is not an inextricable part of the measure as a whole, so that the measure, without the part whose annulment is sought, can no longer produce legal effects. (69) However, if the Court were to annul the LIFE-regulation in its entirety, it would be ruling ultra petita, because the scope of the annulment by it may not go further than is sought by the applicant. (70) Annulment of the other parts of the LIFE-regulation is not the subject matter of the dispute before the Court. (71) In other words, in such a case the Court would have to declare it inadmissible. 135. It is therefore necessary to examine whether the LIFE-regulation can be annulled in part, that is to say in so far as it provides for implementing measures to be taken in accordance with the regulatory procedure, without thereby amending the essential content of the regulation. More specifically, it must be asked whether the type of committee procedure is an inextricable part of the aims and organisation of the LIFE-programme. 136. However important I find the choice of correct committee procedure to be, it seems to me that the Court does not have to declare itself incompetent on the ground that it would have to find that the LIFE-regulation is void in its entirety. The choice of the regulatory procedure in Article 11 can, in my view, be detached from the other provisions of the disputed regulation. (72) 137. First of all, annulment in part of the choice of the regulatory procedure does not materially impair the legislative part of the regulation. (73) Although the LIFE-regulation contains specific procedural rules for the award of financial assistance to environmental projects, the aims of the programme and the general criteria and conditions for the award of assistance remain standing. Second, the finding of infringement of an essential procedural requirement on account of an inadequate statement of reasons does not automatically mean that the regulatory procedure as such cannot be used in the LIFE-programme. The Community legislature is free to depart from the criteria set out in Article 2 of the second comitology decision, provided that it provides a proper statement of reasons for so doing. 138. Moreover, overall it would not be in the interests of any of the institutions and parties concerned for there to be an unnecessary delay in the implementation of the LIFE-programme. Precisely in order to prevent the frustration of that programme, the Commission requests the Court to maintain the effects of the LIFE-regulation until it has been amended. The Council and the Parliament have not contested that request. 139. It is settled law that the annulment of measures by the Court is effective erga omnes and ex tunc. It must, nevertheless, be pointed out that under the second paragraph of Article 231 EC the Court is given the express power, in the case of the annulment of a regulation, to state which of the effects of the regulation are to be considered as definitive. In the case of the LIFE-programme many agreements have already been concluded and payments promised or made. For reasons of legal certainty, there are therefore grounds for the Court to rule that the annulment does not affect the validity of payments made and commitments already entered into. (74) I therefore propose that the Commission's request should be granted. (75) VI - Conclusion 140. On the basis of the foregoing I propose that the Court should: - annul Regulation (EC) No 1655/2000 in so far as the adoption of measures to implement the LIFE-programme is made subject to the regulatory procedure under Article 5 of Decision 1999/468 and no adequate statement of reasons is given for that choice; - maintain in force the effects of the regulation annulled in part until fresh provision has been made in that regard; - order the Council and the European Parliament to pay the costs. 1: - Original language: Dutch. 2: - OJ 2000 L 192, p. 1. 3: - OJ 1999 L 184, p. 23. 4: - Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1987 L 197, p. 33). 5: - See OJ 2001 C 38, p. 3. 6: - Published in OJ 1999 C 203, p. 1. 7: - OJ L 206, p. 1, and OJ L 181, p. 1. 8: - The Commission refers by way of example to the development programme for South Africa and the Altener, Save and Socrates programmes. See point V-E of this Opinion. 9: - Case C-259/95 Parliament v Council [1997] ECR I-5303, paragraph 26. 10: - According to the Parliament, the Commission does not consider itself bound by those criteria either, because, since the adoption of the second comitology decision, it has already proposed Community programmes with substantial budgetary implications in which the implementing measures would be adopted in accordance with the advisory procedure - and has done so without any specific statement of reasons. The Parliament refers in particular to the programme in the field of public health (proposal published in OJ 2000 C 337 E, p. 122) and the programme on equality of man and woman (original proposal published in OJ 2000 C 337 E, p. 96). 11: - Case C-417/93 Parliament v Council [1995] ECR I-1185, paragraph 26. 12: - In its written observations the Commission contests the argument based on Parliament v Council. 13: - In its defence the Council does not indicate which judgment it is referring to here, but it is evident that reference is being made implicitly to the judgment in Case 16/88 Commission v Council [1989] ECR 3457. 14: - See, for example, to that effect Case 131/86 United Kingdom v Council [1988] ECR 905, p. 6. 15: - See in this regard recently, K. Lenaerts and A. Verhoeven, Towards a Legal Framework for Executive Rule-Making in the EU? The Contribution of the New Comitology Decision, Common Market Law Review 37 (2000), pp. 645-686. For extensive references to literature on comitology, see footnote 2 of that article. 16: - Not only the Commission but also the Council was assisted by committees of national experts, for example concerning the second and third pillars of the Union Treaty. For a broad overview of the various committees, see the contributions of R.H. Pedler and G.F. Schaefer (Eds.), Shaping European Law and Policy. The Role of Committees and Comitology in the Political Process, European Institute of Public Administration, Maastricht, 1996. 17: - P. van der Knaap, Government by Committee: A Legal Typology, Quantitative Assessment and Institutional Repercussions of Committees in the European Union, in: Shaping European Law and Policy. The Role of Committees and Comitology in the Political Process, cited above, p. 83. 18: - As, for example, in the case of novel foods, see Regulation (EC) No 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients (OJ 1997 L 43, p. 1). 19: - See, for example, Case 230/78 Eridania [1979] ECR 2749, paragraph 7. 20: - See in particular Case 25/70 Köster [1978] ECR 1161, paragraph 9. 21: - See in particular Köster, cited in footnote 20, and Case 121/83 Franken [1984] ECR 2039, paragraph 13. 22: - The classic cases here are the judgments in Case 9/58 Meroni v High Authority [1958] ECR 133 (Meroni I) and in Case 10/58 Meroni II [1958] ECR 157. These cases concern interpretation of the ECSC Treaty. The Court stated inter alia that the balance of powers between the Community institutions which is characteristic of the institutional structure of the Community must be regarded as a fundamental guarantee (see p. 152). 23: - Cited in footnote 13, paragraph 10. 24: - Case C-263/95 Germany v Commission [1998] ECR I-441. 25: - See in particular the Resolution of the European Parliament of 16 December 1993 concerning the problems of comitology after the entry into force of the Treaty on European Union (OJ 1994 C 20, p. 176). At the hearing the Parliament's representative unambiguously stated that the Parliament is not a supporter of the wording of the third indent of Article 202 EC. See also point 64 of this Opinion. 26: - These objections emerged at the end of the 1960s when the Standing Veterinary Committee, established in 1968, operated in accordance with this contra-filet procedure. See P.J.G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities, Third Edition (Ed. L. Gormley), Kluwer Law International, London, 1998, pp. 392-393. 27: - A number of special committee procedures fall outside the scope of the comitology decisions, such as in the area of competition policy and Community trade policy. In these areas, the Treaty grants the Commission directly its own power of decision within the meaning of Article 211 EC. See Commission v Council, cited in footnote 13, paragraph 9, and footnote 37. 28: - See also the second recital in the preamble to Decision 87/373. 29: - That has also occurred. A well-known example given by legal writers is the Parliament's rejection of the common position of the Council on the application of open network provision to voice telephony (OJ 1994 C 261, p. 13). 30: - Modus vivendi of 20 December 1994 concerning the implementing measures for acts adopted in accordance with the procedure laid down in Article 189b of the EC Treaty (OJ 1996 C 102, p. 1, see in particular point 3). 31: - Declaration No 31 (OJ 1997 C 340, p. 1). 32: - OJ C 279, p. 5. 33: - See Article 13 of Regulation (EEC) No 1973/92, as amended by Regulation (EC) No 1404/96, cited in footnote 7. 34: - Case C-240/90 Germany v Commission [1992] ECR I-5383, paragraph 42, a case concerning the power to impose sanctions. 35: - Technically, the Parliament does not delegate implementing powers to the Commission. As the Parliament has noted, it follows from Parliament v Council, cited in footnote 9, that in cases in which the Parliament is acting as co-legislator the power of delegation is granted also to the Parliament. 36: - The Court has made this subject to the condition that whenever the Council exercises directly implementing powers itself, it must state in detail the grounds for such a decision, see Commission v Council, cited in footnote 13 above, paragraph 10. This technique of self-authorisation is used in particular in the agricultural sector. 37: - The Commission's obligation to exercise implementing powers is, moreover, laid down in the fourth indent of Article 211 EC: In order to ensure the proper functioning and development of the common market, the Commission shall ... exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter. 38: - See point 59 above. 39: - It can be inferred from Commission v Council, cited in footnote 13, in which the validity of Decision 87/367 was not in issue, that the Court implicitly endorses this view thus far. 40: - This instrument is not referred to in Article 249 EC. 41: - The beginning of Article 2 states that le choix ... s'inspire; the choice... shall be guided; bei der Wahl ... werden ... zugrundegelegt; la elección ... se inspirará. The management measures and the measures of general scope in Article 2 (a) and (b) of the second comitology decision, devraient être arrêtées; should be adopted; sollten erlassen werden; deberían aprobarse. The Dutch version uses the more definite, indicative mood and thereby creates rather more the impression that the drafters of the decision intended to make the choice of procedure for determining the implementing measures a binding one. At the beginning of Article 2 the Dutch version states that the procedure with regard to the choice (wordt) gebaseerd, and in Article 2(a) and (b) that the management measures and the measures of general scope worden ... vastgesteld. 42: - See for example Case C-162/97 Nilsson [1998] ECR I-7477, paragraph 54. 43: - See, that effect, for example Case C- 376/98 Germany v Parliament and Council [2000] ECR I-8419, paragraphs 90 and 91 and Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 44. 44: - The fourth recital in the preamble to the Commission's proposal stated as follows: The first purpose of the proposed amendments is to clarify the criteria determining the choice of one or other of the procedures provided for the adoption of implementing measures .... The proposal did not contain a recital in which the binding effect of the criteria was expressly excluded. 45: - The adjustment of committee procedures to the second comitology decision takes place to a large extent by means of repair regulations which provide for the adaptation of the provisions concerning the committees laid down in decisions adopted in accordance with the co-decision procedure under Article 251 EC and in accordance with the consultation procedure (qualified majority and unanimity). The proposals are published in OJ 2002, C 75 E, p. 385. 46: - The inclusion of non-binding norms in the operative part of an instrument that is in itself binding is, however, not be recommended from the point of view of the quality of legislation. See in that regard also point 39 of my Opinion in Case C-478/99 Commission v Sweden [2002] ECR I-4147. 47: - See, for example Commission v Sweden, cited in footnote 46. In that case the Court found that the implementation of a provision of a directive which refers to an annex with an indicative and non-exhaustive list of conditions which may be regarded as unfair does not necessarily have to be implemented in national legislation. To that extent, that list is therefore not binding. Nevertheless, the national authorities must, in order to achieve the aims of the directive, adopt a form and means which adequately ensure that the public can distinguish that list (see in particular paragraphs 21 and 22). 48: - It suffices to refer to the framework conditions laid down by the Court for the comitology system, see points 59 and 60 above. 49: - The development in the law is not yet complete. Thus, the involvement of the Parliament and interested third parties has not yet been fully recognised and there are no rules on the use of self-authorisation by the Council. See in that regard, Lenaerts and Verhoeven, cited above, p. 686. 50: - Cited in footnote 13, paragraph 10. 51: - See that connection, inter alia, Germany v Commission, cited in footnote 24. 52: - See my Opinion in Case C-321/99 P ARAP and Others v Commission, not yet published in the ECR, point 193 and the case-law cited there. 53: - In its proposals for Community legislation, the Commission must also of course take into account the duty of the Community legislature to state reasons. The Parliament's complaint that the Commission does not abide by the criteria in Article 2 in its proposals is irrelevant for that reason. Particularly where the views of the Commission, the Council and, on this occasion, the Parliament diverge, a good statement of reasons is indispensable for the Court if it is to be able to exercise its review function. 54: - Case C-417/93 Parliament v Council, cited in footnote 11, paragraph 24 to 26. 55: - Cited in footnote 13, paragraphs 16 to 18. 56: - Candidate countries may also take part in the programme, although they normally bear the costs of their participation; however, in certain cases the Community may supplement the national contributions of the countries concerned. Article 6(5) of the regulation states that in certain cases the committee procedure is to be applied according to the type of project proposed. 57: - See Article 3(4) and (6); Article 4(5) and (9); Article 5(4) and (6) of the LIFE-regulation. 58: - See Article 3(7); Article 4(10); Article 5(7) of the LIFE-regulation. For the application of Article 11 of the LIFE-regulation the relevant committee for LIFE-nature is that of Article 20 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and wild flora and fauna, OJ 1992 L 206, p. 7, as amended. In the original version this concerned procedure III(a) of the first comitology decision. In the applicable repair regulation it was provided that this procedure was to be replaced by the regulatory procedure within the meaning of the second comitology decision (see OJ 2002 C 75 E, p. 409). 59: - See Article 3(8) and Article 4(8) of the LIFE-regulation. No committee is consulted in the framework of LIFE-third countries, see Article 5(9) of the LIFE-regulation. 60: - See Article 3(7), Article 4(9) and Article 5(8) of the LIFE-regulation. 61: - In the general budget of the European Union the appropriations for the environment come under Subsection B4, which relates to Energy, Euratom nuclear safeguards and environment. In the 2002 budget year appropriations in the framework of that subsection were EUR 240.67 million in total, of which EUR 189.97 million were for title B4-3, Environment. Within the Title on the Environment there is, according to Chapter B4-3 2, a sum of EUR 140.6 million reserved for the LIFE-programme, almost 75% of the total environmental expenditure and around 60% of the appropriations in the subsection. In 2001 these percentages were 35% and 50% respectively. The LIFE-appropriations concerning the subsection third countries are included in Article B7-8 1 0. Those appropriations amount in the 2002 budgetary year to a total of EUR 6,903 million, i.e. around 50% of the total expenditure for Chapter B7-8 1, External Aspects of Environment Policy, around EUR 13,5 million. In 2001 that was approximately 37%. The general budget of the European Union for 2002 is published in OJ 2002, L 29. A slight distinction is appropriate here. For expenditure in the framework of projects in third countries comitology does not apply to the same extent as for pure Community projects. In my opinion, that does not alter the fact that the LIFE-programme has in any case substantial implications for the budget. 62: - Cf. Case C-189/97 Parliament v Council [1999] ECR I-4741, paragraph 29. This case concerns the question whether an agreement on fishing which the Community had concluded with Mauritania had substantial implications for the Community budget, in which case the consent of the Parliament was necessary in accordance with (now) the second paragraph of Article 300(3) EC. 63: - In the 2002 budgetary year the total planned expenditure on consumer policy and consumer health protection is EUR 22.5 million (subsection B5-1) and for culture and audiovisual media EUR 116.7 million (subsection B 3-2). The expenditure for the LIFE-programme amounts in this budgetary year - excluding funds for LIFE-third countries - to EUR 140.6 million. 64: - Regulation (EEC) No 1726/2000 of the European Parliament and of the Council of 29 June 2000 on development cooperation with South Africa (OJ 2000 L 198, p 1). According to Article 10 the financial framework for the implementation of this regulation in the period 2000-2006 is EUR 885.5 million. 65: - Decision No 646/2000/EC of the European Parliament and of the Council of 28 February 2000 adopting a multiannual programme for the promotion of renewable energy sources in the Community (Altener) (1998-2002) (OJ 2000 L 79, p 1). The financial framework for the implementation of this programme is, according to Article 1(3), EUR 77 million for the period indicated. 66: - Decision No 253/2000/EC of the European Parliament and of the Council of 24 January 2000 establishing the second phase of the Community action programme in the field of education Socrates (OJ 2000 L 28, p 1). The financial framework for the implementation of this programme in the period 2000-2006 amounts to EUR 1 850 million (Article 10). 67: - Case C-25/94 Commission v Council [1996] ECR I-1469, paragraph 38. 68: - Case C-228/99 Silos [2001] ECR I-8401, paragraphs 28 to 31. 69: - Case 37/71 Jamet v Commission [1972] ECR 483, paragraph 11; Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 256. 70: - Jamet v Commission, cited in footnote 69, paragraph 12, and Case C-239/99 Nachi Europe [2001] ECR I-1197, paragraph 24. 71: - See Case C-310/97 P Commission v AssiDomän Kraft Products AB [1999] ECR I-5363, paragraph 53. 72: - See to that effect also the judgment in Case 17/74 Transocean Marine Paint v Commission [1974] ECR 1063, paragraph 21. This case concerned the annulment in part of a decision which the Commission had adopted under the competition rules of, what is now, Article 81(3) EC on the ground that it infringed the applicant's right to be heard. 73: - See, a contrario, Germany v Parliament and Council, cited in footnote 43, paragraph 117. In that case the Court held that, because of the general nature of the prohibition established by the directive concerned, regarding advertising and sponsoring of tobacco products, it was not possible to annul the directive in part, since that would mean that the provisions of the directive had been amended by the Court. The Community legislature has exclusive competence to make such an amendment. 74: - See Case C-106/96 United Kingdom v Commission [1998] ECR I-2729, paragraph 42. 75: - When annulling a measure, the Court has no competence to order the Community legislature to decide in certain sense. See, for example, Case 15/85 Consorzio Cooperative d'Abruzzo v Commission [1987] ECR 1005, paragraph 18. It is evident that the Community legislature will either replace the regulatory procedure by the administrative procedure or give an adequate statement of reasons for choosing the regulatory procedure.