OPINION OF ADVOCATE GENERAL
WAHL
delivered on 22 January 2015 (1)
Joined Cases C‑317/13 and C‑679/13
European Parliament
v
Council of the European Union
Case C‑540/13
European Parliament
v
Council of the European Union
(Action for annulment — Legal basis — Police and judicial cooperation in criminal matters — Implementing measures — No consultation of the Parliament — Impact of the entry into force of the Treaty on the Functioning of the European Union — Transitional provisions — Article 9 of Protocol No 36 — Objective — Legal effects)
1.        The entry into force of the Treaty of Lisbon brought about significant changes in the institutional landscape of the European Union, which forms the legal background for the enacting of measures pertaining to EU cooperation in police and criminal justice (former Title VI of the EU Treaty) (also ‘the third pillar’). Traditionally, the third pillar was characterised by intergovernmental decision-making and the European Parliament enjoyed only peripheral significance. With ‘Lisbonisation’, however, the third pillar was incorporated into the supranational EU framework and, consequently, the applicable decision-making procedures were realigned with those of other fields of EU policy. The extension to this area of the ordinary legislative procedure (formerly ‘the co-decision procedure’) has thus in general strengthened the Parliament’s position as the co-legislator, whose competences in this field are now on a par with those of the Council.
2.        The present actions for annulment brought by the Parliament are manifestations of the complexities of that transformation process. More specifically, the cases under consideration turn on the proper construction of Article 9 of Protocol No 36 (2) on transitional provisions, annexed to the Treaties. In accordance with that provision, the legal effects of measures adopted under the third pillar prior to the entry into force of the Treaty of Lisbon are to be preserved until the relevant acts are repealed, annulled or amended. In the light of the interpretation adopted, the Court has the opportunity to determine the parameters for assessing the legality of measures adopted by the Council after the entry into force of the Treaty of Lisbon on the basis of acts falling within the scope of Article 9 of Protocol No 36.
I –  Legal framework
A –    Protocol No 36
3.        Article 9 of Protocol No 36 provides:
‘The legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties. The same shall apply to agreements concluded between Member States on the basis of the Treaty on European Union.’
B –    Relevant decisions
1.      The 2005 Decision (3)
4.        The 2005 Decision was adopted on the basis of the EU Treaty pre-Lisbon and, in particular, on the basis of Articles 29, 31(1)(e) and 34(2)(c) EU. In other words, the decision was adopted on the basis of the third pillar and concerns the field of police and judicial cooperation in criminal matters.
5.        In accordance with Article 1 of the 2005 Decision, that decision establishes a mechanism to enable the exchange of information on new psychoactive substances. It also puts in place a risk-assessment mechanism to determine the need to apply control measures in relation to those substances. More generally, the 2005 Decision establishes a mechanism intended to ensure a quick and coordinated response by Member States to new psychoactive substances which are deemed to constitute a risk (to public health or otherwise).
6.        Article 8 of the 2005 Decision lays down the procedure for the application to specific new psychoactive substances of control measures already applied in Member States in relation to narcotic and psychotropic substances. Article 8(3) states that the decision to apply control measures to a new psychoactive substance is to be taken by the Council, by qualified majority, on the basis of Article 34(2)(c) EU.
7.        Under Article 9 of the 2005 Decision, once a decision to that effect has been taken by the Council, it falls on the Member States to take the necessary measures in accordance with national law to ensure that control measures and criminal penalties are applied in relation to the new substances.
8.        The actions in Joined Cases C‑317/13 and C‑679/13 concern decisions (4) that the Council has taken on the basis of Article 8(3) of the 2005 Decision.
2.      Implementing Decision 1
9.        Implementing Decision 1 concerns 4-methylamphetamine, which is a synthetic ring-methylated derivative of amphetamine. The preamble to the decision states that it was adopted on the basis of the FEU Treaty and Article 8(3) of the 2005 Decision.
3.      Implementing Decision 2
10.      Implementing Decision 2 concerns a synthetic derivative of indole, which arguably has hallucinogenic effects. As in the case of Implementing Decision 1, the preamble to the decision states that it was adopted on the basis of the FEU Treaty and Article 8(3) of the 2005 Decision.
4.      The VIS (5) Decision
11.      The VIS Decision (6) was adopted on the basis of the EU Treaty pre-Lisbon and, in particular, on the basis of Articles 30(1)(b) and 34(2)(c) EU. Similarly to the 2005 Decision, the VIS Decision was thus adopted on the basis of the third pillar and concerns the field of police and judicial cooperation in criminal matters.
12.      The VIS is a system for the exchange of visa data between Member States.  One of the expressly stated aims of the system is to enhance internal security and to combat terrorism. To ensure that that aim is achieved, the Council considered it necessary to grant access to the data available in the VIS to the designated Member State authorities responsible for internal security as well as to Europol. To that end, the VIS Decision was adopted to complement the VIS Regulation. (7)
13.      Given the complexities in setting up the system for access, it was decided that the VIS Decision would take effect at a later date, to be determined by the Council. Article 18(2) of the VIS Decision thus states that the decision is to take effect from a date to be determined by the Council once the Commission has informed the Council that the VIS Regulation has entered into force and is fully applicable.
5.      The Date Decision
14.      The action in Case C‑540/13 concerns the decision (8) taken by the Council to fix the date of application of the VIS Decision.
15.      Upon being informed by the Commission that the VIS Regulation was fully applicable, the Council adopted the Date Decision on the basis of the FEU Treaty and Article 18(2) of the VIS Decision. In accordance with Article 1 of the Date Decision, the VIS Decision was to take effect on 1 September 2013.
II –  Procedure and forms of order sought
16.      By orders of the President of the Court of 8 October 2013 and 28 April 2014, the Republic of Austria was granted leave to intervene in support of the Council in Cases C‑317/13 and C‑679/13. By order of the President of the Court of 27 March 2014, those two cases were joined for the purposes of the oral procedure and the judgment.
A –    Joined Cases C‑317/13 and C‑679/13
17.      By its actions, the Parliament claims that the Court should:
–        annul the implementing decisions at issue;
–        maintain the effects of those decisions until they are replaced with new acts adopted in the prescribed manner; and
–        order the Council to pay the costs.
18.      The Council contends — supported by the Republic of Austria — that the Court should:
–        dismiss the actions;
–        reject the plea of illegality (9) regarding the 2005 Decision as inadmissible or, at the very least, as unfounded;
–        order the Parliament to pay the costs; and
–        in the alternative, in the event that the Court annuls the implementing decisions at issue, maintain the effects of those decisions until they are replaced with new acts.
B –    Case C‑540/13
19.      By its action, the Parliament claims that the Court should:
–        annul the Date Decision;
–        maintain the effects of the decision until such time as it is replaced with a new act adopted in the prescribed manner; and
–        order the Council to pay the costs.
20.      The Council contends that the Court should:
–        dismiss the action as inadmissible or, at the very least, as unfounded;
–        order the Parliament to pay the costs; and
–        in the alternative, in the event that the Court annuls the Date Decision, maintain the effects of that decision until it is replaced with a new act.
C –    Joined Cases C‑317/13 and C‑679/13, and Case C‑540/13
21.      The Parliament and the Council presented oral argument at the joint hearing held on 5 November 2014 for all the three cases under consideration.
III –  Analysis
A –    Preliminary issues
1.      The main arguments put forward by the parties
22.      In Joined Cases C‑317/13 and C‑679/13, the Parliament contests the legality of the implementing decisions at issue, alleging that in each case the Council had used the wrong legal basis. Case C‑540/13, on the other hand, concerns a decision by which the Council, acting in accordance with Article 18(2) of the VIS Decision, fixes the date of effect of that decision. In that case, too, the Parliament contests the legality of the decision, again alleging use of the wrong legal basis.
23.      Despite the obvious differences, the three cases are intimately linked. That is not only because, in all three cases, the contested decision is based on a decision adopted on the basis of the former third pillar. In all three cases, too, both sides have presented nearly identical arguments.
24.      Here, I must observe that the written observations of the Parliament, in particular, suffer from a lack of clarity and rigour. Nevertheless, I infer from the written observations and the arguments put forward at the hearing that the Parliament relies essentially on two pleas of law in support of its actions. Firstly, it claims that the Council has used the wrong legal basis for adopting the implementing decisions at issue, as well as for the Date Decision. According to the Parliament, the Council has had recourse to a repealed legal basis, or alternatively, to an invalid secondary legal basis. Secondly, in so doing, the Council has followed a decision-making procedure for which no provision was made in the FEU Treaty. (10)
25.      In that regard, the Parliament argues that, although Decisions 2013/129, 2013/496 and 2013/392 (collectively, ‘the contested decisions’) identify their legal bases through a general reference to the FEU Treaty and specific reference, in the first two cases, to Article 8(3) of the 2005 Decision and, in the third, to Article 18(2) of the VIS Decision, the contested decisions are in reality based on Article 34(2)(c) EU. (11) In view of the fact that Article 34(2)(c) EU was repealed with the entry into force of the Treaty of Lisbon, the contested decisions are therefore, according to the Parliament, based on an invalid legal basis. More specifically, the Parliament argues that neither Article 8(3) of the 2005 Decision nor Article 18(2) of the VIS Decision can be used as a legal basis for any of the contested decisions.
26.      According to the Parliament, the logical corollary of the repeal of Article 34(2)(c) EU is that the measures of secondary law which, on the basis of that provision, provide for the adoption of implementing decisions can no longer be applied. Article 9 of Protocol No 36 does not, in the view of the Parliament, affect that analysis. As that transitional provision is an exception to the general rules laid down in the FEU Treaty, it falls to be interpreted restrictively.
27.      The Council, supported by the Austrian Government in Joined Cases C‑317/13 and C‑679/13, disagrees. It argues that the contested decisions could validly be based, as the case may be, on Article 8(3) of the 2005 Decision or Article 18(2) of the VIS Decision, read in the light of Article 9 of Protocol No 36.
28.      What is more, at the close of the written procedure, considerable confusion existed as to whether the Parliament had also raised, in the alternative, a plea of illegality regarding, in particular, Article 8(3) of the 2005 Decision and Article 18(2) of the VIS Decision. That confusion was fuelled by the lengthy discussion concerning both the admissibility and substance of that plea as postulated by both parties in their written observations. (12) At the hearing, however, the Parliament clarified matters by stating that it did not call into question the legality of the basic decisions (or parts thereof), as such. It merely argued that, as a result of the repeal of Article 34(2)(c) EU and Article 39 EU, Article 8(3) of the 2005 Decision and Article 18(2) of the VIS Decision could no longer be used for the adoption of the contested decisions: in its view, recourse to those provisions for that purpose amounted to the use of an invalid secondary legal basis not provided for in the FEU Treaty.
2.      The main issues underlying the present cases
29.      In the present cases, the Court is requested to rule on questions of undoubted constitutional importance. Those questions touch upon the EU institutional system and the principle of institutional balance which is a cornerstone of the EU constitutional architecture. (13) More specifically, the cases under consideration raise an unprecedented institutional issue which stems from the complexities inherent in the Lisbonisation of the old intergovernmental third pillar governing criminal justice and police cooperation.
30.      Unlike the Schengen acquis, which was incorporated into the legal and institutional framework of the European Union without recourse to any particular transitional measures, (14) the Lisbonisation of the third pillar a decade later was designed to proceed in a more gradual manner. This is neatly illustrated by the fact that the FEU Treaty now contains specific transitional rules concerning acts adopted under the third pillar. Article 9 of Protocol No 36 lays down one of those rules.
31.      The key to resolving the present cases lies in determining the purview of Article 9 of Protocol No 36. Indeed, the actions brought by the Parliament stand or fall on the interpretation of that provision. The Parliament essentially argues that, without the support of Article 34(2)(c) EU, Article 8(3) of the 2005 Decision and Article 18(2) of the VIS Decision cannot serve as legal bases for the contested decisions. In its view, the general TFEU framework should apply and consequently there were only two possible options for validly adopting those decisions.
32.      Under the first option, if the contested decisions were considered to govern an essential element of the field regulated, they ought to have been adopted by means of the ordinary legislative procedure, in accordance with Article 83(1) TFEU in the case of the implementing decisions at issue, and in accordance with Articles 87 and 88 TFEU in the case of the Date Decision. Under the alternative option, if the contested decisions were regarded as governing non-essential elements, the basic decisions ought to have been amended (in accordance with the procedures laid down in the abovementioned provisions of the FEU Treaty) so as to specify whether recourse ought to be had, as the case may be, to a delegated or an implementing act as regards the adoption of the contested decisions, in accordance with Articles 290 and 291 TFEU. (15) Irrespective of whether the first option or the alternative were adopted, the Parliament would have acted as co-legislator.
33.      The Council, on the other hand, argues that it is empowered, precisely because of Article 9 of Protocol No 36, to continue to adopt (implementing) measures on the basis of acts to which Article 9 of Protocol No 36 falls to be applied; and that that remains the position, as long as those acts are not repealed, annulled or amended.
34.      At this juncture, an important clarification is called for. The Parliament implies that the contested decisions might not, in actual fact, be implementing measures, as those decisions could be seen as governing essential elements of the field regulated. (16) For the reasons set out in points 52 to 55 below, I do not share that viewpoint.
35.      Be that as it may, the distinction operated by the Court in its case-law as regards essential and non-essential elements (17) is not, in any event, relevant in the cases under consideration. This is because, as a result of the proposed interpretation, explained below, of Article 9 of Protocol No 36, the general TFEU framework does not fall to be applied in relation to the contested decisions. Consequently, there is no need to look into the two options described above.
36.      Accordingly, I will deal with the issues raised by the present cases by first considering Article 9 of Protocol No 36 in detail. On the basis of the proposed interpretation of Article 9 of Protocol No 36, I will then move on to assess briefly the arguments put forward by the parties in the three cases. As I will aim to illustrate, the need to ensure a smooth and orderly transition to the new institutional framework ought to guide the interpretation of Article 9 of Protocol No 36.
B –    The meaning of Article 9 of Protocol No 36
1.      To be construed narrowly or broadly?
37.      As already alluded to above, Article 9 of Protocol No 36 lays down the transitional regime for acts adopted on the basis of Titles V and VI of the EU Treaty pre-Lisbon. In accordance with that rule, the legal effects of those acts are to be preserved until they are repealed, annulled or amended in accordance with the Treaties. The parties agree that Article 9 falls to be applied in relation to the basic decisions. However, the common ground ends there.
38.      The Parliament maintains that Article 9 of Protocol No 36 has no bearing on the legality of acts such as the contested decisions, adopted post-Lisbon. In its view, the appropriate legal basis for the adoption of such decisions must be determined by reference to the general rules laid down in the FEU Treaty.
39.      Accordingly, the Parliament takes a restrictive stand (although it itself claims otherwise) on the interpretation of Article 9 of Protocol No 36 by maintaining that, as an exception to the general rule, that provision ought to be construed narrowly. More specifically, it argues that Article 9 of Protocol No 36 is merely designed to ensure that, despite the entry into force of the Treaty of Lisbon, acts adopted under the former third pillar are not automatically repealed. Those acts (such as framework decisions) continue to bind Member States as regards the objectives to be attained, without having any direct effect. The Parliament rejects nonetheless the idea that provisions laid down in acts falling within the remit of Article 9 which confer implementing powers on the Council (as is the case of Article 8(3) of the 2005 Decision and Article 18(2) of the VIS Decision) would continue to be applicable within the new constitutional landscape.
40.      The Council, by contrast, adopts a more extensive interpretation of Article 9 of Protocol No 36. It argues that all the provisions laid down in acts falling within the purview of Article 9 maintain their legal effects, including those providing for the adoption of implementing measures.
41.      Admittedly, Article 9 of Protocol No 36 is far from unambiguous. In fact, there is nothing that would, at the outset, definitively exclude the restrictive interpretation proposed by the Parliament or, for that matter, the broader construction favoured by the Council. Both have some merit. However, while the interpretation argued for by the Parliament would entail a quick transition to the new system, I believe it would lead to unreasonable consequences.
2.      Smooth transition to the new legal framework
42.      To my mind, Article 9 of Protocol No 36 must be read in the light of its context and, more specifically, by considering its overarching aim. Indeed, while transitional rules may pursue a number of different objectives, I would argue that they are generally intended to ensure an orderly and coherent transition to a new system. (18) In the particular context of the present case, I believe Article 9 of Protocol No 36 ought to be understood as a tool designed to ensure a smooth transition from one system to another.
43.      Although new rules may undoubtedly bring about significant changes for any given legal system, the very existence of transitional rules in the present context indicates, to my mind, that the draftsmen of the Treaty of Lisbon were not oblivious to the difficulties that may arise in the realignment process. This is neatly illustrated by Declaration No 50 annexed to the Treaties. (19) That declaration invites the institutions to seek to adopt, in appropriate cases and as far as possible within the five-year period referred to in Article 10(3) of Protocol No 36, legal acts amending or replacing pre-existing third pillar acts. (20)
44.      The declaration therefore clearly encourages the legislator to take the steps necessary to realign former third pillar measures with the new legal framework. To my way of thinking, however, that declaration, read together with Article 9 of Protocol No 36, which maintains the legal effects of acts adopted under the third pillar (without specifying time-limits), indicates that Article 9 of Protocol No 36 is intended to ensure a transition from the old intergovernmental system to the general EU framework as soon as possible, while accepting the constraints and specific characteristics of the legislative process. Indeed, had the draftsmen of the Treaty of Lisbon wished to ensure that the transition process was completed fully within a particular time-span, Article 9 would undoubtedly indicate (similarly to Article 10, for example) time-limits for doing so.
45.      It is therefore my opinion that, in order to construe Article 9 of Protocol No 36 properly, account should be taken of the particular circumstances leading to the Lisbonisation of the third pillar and the insertion of police and judicial cooperation in criminal matters into the broader EU framework. Indeed, transitional rules are arguably all the more important where changes in the constitutional architecture occur. In that context, it stands to reason that transitional measures such as those laid down in Protocol No 36 are designed to ensure a smooth transition to the new system (and ensure a degree of continuity). Accordingly, I believe that the underlying rationale of a provision such as Article 9 is to avoid unnecessary disruptions in the application of legal acts adopted under a framework which no longer exists.
46.      To be more specific, Article 8(3) of the 2005 Decision gives the Council the competence to make new psychoactive substances subject to control measures. Article 18(2) of the VIS Decision empowers the Council to fix the date on which the VIS Decision is to take effect. Both provisions thus confer (executive) powers on the Council. At the time of adoption of the basic decisions, that conferment was — as both parties accept — based on Article 34(2)(c) EU. Although admittedly possible, it would seem counterintuitive to claim, as the Parliament does, that the concept of ‘legal effects’ (21) referred to in Article 9 of Protocol No 36 refers only to some, but not all, of the legal effects entailed by the acts in question. According to that reading, the notion of ‘legal effects’ would not cover effects concerning the possibility of adopting the implementing measures necessary to ensure that acts adopted under the former third pillar continue to be effective or indeed, as is the case with the VIS Decision, to enable their application.
47.      It is worth emphasising that Article 9 makes no such distinction between different types of legal effects. In that context, I also find the argument put forward by the Council particularly convincing. If the restrictive (and somewhat selective) interpretation advanced by the Parliament concerning Article 9 of Protocol No 36 were accepted, it would entail the paralysis of a number of acts adopted pre-Lisbon that require constant updating if they are to fulfil their function. This would notably be the case if Article 8(3) of the 2005 Decision automatically ceased to produce effects post-Lisbon. The date of application of the VIS Decision would also be delayed considerably.
48.      It is also important to keep in mind that the legislator has only limited options when it comes to the enactment of new legislation (or the amendment of existing pieces of legislation). The choice to amend acts adopted on the basis of the old third pillar is one of policy that ought to remain just that. A restrictive interpretation of Article 9 of Protocol No 36 would in that respect put unwarranted strain on the legislative procedure and limit the choice available to the legislator as to which proposals it wishes to advance. Quite simply, it would result in a waste of resources. (22)
49.      The principle of institutional balance has certainly often been employed to strengthen the (originally only advisory) role of the Parliament within the legislative process. (23) Nevertheless, it goes without saying that that principle cannot be interpreted as conferring, by default, more powers on the Parliament to the detriment of other institutions. (24) Most fundamentally, that principle must be applied in such a way as to ensure that the distribution of powers between the institutions as set up by the Treaty (and, as is the case here, by Article 9 of Protocol No 36) is respected.
50.      That said, it is difficult not to support the idea of strengthening the involvement of the Parliament in the adoption of acts linked to the former third pillar. Indeed, this is in line with the more general aim of the Lisbonisation process of enhancing democratic accountability in this field. (25)
51.      However, as long as the act at issue has not been repealed, annulled or amended, Article 9 of Protocol No 36 continues to apply as a lex specialis, as compared with the general FEU Treaty rules. The same is true of the conferring of powers on the Council to take decisions on the basis of those acts.
3.      What constitutes an amendment?
52.      It could, of course, be argued (as the Parliament does in passing and without further elaborating on the point) that the contested decisions — and, in particular, the Date Decision — constitute amendments to the basic decisions. If true, this would trigger the application of the general FEU Treaty rules.
53.      That view presupposes an extremely generous understanding of what an amendment is. It would mean, in essence, that any (implementing) measure — which relies, for its legality, on an act of the former third pillar and to which Article 9 a priori falls to be applied — adopted post-Lisbon could be construed as an amendment of the basic act in question. (26)
54.      First, with regard to the implementing decisions at issue, those decisions do not in my view impact on the policy choices involved in putting in place a system for the exchange of information and assessment of risks related to new psychoactive substances, as laid down in the 2005 Decision. Rather, those decisions ensure that the 2005 Decision is applied effectively in relation to newly discovered substances. Albeit extending the application of the 2005 Decision to new substances, the implementing decisions at issue in no way amend the system set up by that decision.
55.      Secondly, as concerns the Date Decision, I would note that the fixing of a date of application for the VIS Decision does not affect the substantive content of the VIS Decision or the actual entry into force of that decision. That decision entered into force as early as 2008 as part of a package of measures which also includes the VIS Regulation. In that sense, unlike the date of entry into force, the fixing of a date of application simply constitutes a purely executive measure intended to ensure its full application across the European Union.
56.      Keeping in mind those observations, I will now assess the arguments put forward by the parties as regards the legal bases for the contested decisions.
C –    The legal bases for the contested decisions
57.      Somewhat unusually, the parties disagree not only as regards the validity of the legal bases used, but also as regards the actual legal bases for the contested decisions. Therefore, before the validity of the legal bases for the contested decisions can be assessed, it must first be determined on what bases the contested decisions were actually adopted.
58.      As its principal contention, the Parliament argues that the legal basis for the contested decisions is in fact the repealed Article 34(2)(c) EU. Although the Council disagrees on that point, both parties agree that Article 34(2)(c) EU cannot constitute a valid legal basis for the contested decisions because it was repealed when the Treaty of Lisbon entered into force in accordance with Article 1, point 51, of the Treaty of Lisbon. Indeed, within the current constitutional framework, there is no transitional measure to preserve the effects of that repealed provision during a transitional period. However, the parties draw strikingly different conclusions from that established fact.
59.      The first point to note is that the Court systematically examines the validity of the legal basis for an act by reference to the elements that may be inferred from the act at issue. As regards, further, the obligation to indicate clearly the legal basis for an EU measure, the Court has accepted that failure to specify a precise provision of the Treaty does not automatically constitute an infringement of essential procedural requirements in so far as the legal basis for a measure may be determined from other parts of that measure. (27)
60.      Neither Article 34(2)(c) EU nor, for that matter, the former EU Treaty is mentioned in the contested decisions (a point quite separate from the question whether that provision is mentioned in the basic decisions and what implications that might have for the legality of those decisions). (28) The contested decisions refer solely to the relevant provisions of the basic decisions (Article 8(3) of the 2005 Decision and Article 18(2) of the VIS Decision, as the case may be) and the FEU Treaty as a whole.
61.      Given the approach of the Court as described above with regard to the validity of the legal basis for an act and bearing in mind that the contested decisions merely refer to the relevant provisions of the basic decisions and the FEU Treaty, I have difficulty in seeing why Article 34(2)(c) EU would be of relevance here. That provision simply conferred on the Council, before the entry into force of the Treaty of Lisbon, the power to take measures to ensure the implementation of decisions taken on the basis of that same provision throughout the European Union. True, Article 8(3) of the 2005 Decision does indeed refer to that provision (while Article 18(2) of the VIS Decision does not). However, following the entry into force of the Treaty of Lisbon, that reference (or the absence thereof) has ceased to have any relevance in the context of the present analysis. Given that all three contested decisions were adopted after the entry into force of the Treaty of Lisbon, it is my conviction that the FEU Treaty constitutes the only relevant framework for assessing their legality (and the competence of the Council to adopt them).
62.      In that regard, there does not seem to be any doubt as to the legal basis actually employed for taking the contested decisions: as indicated in the preamble to each decision, the implementing decisions at issue were adopted on the basis of Article 8(3) of the 2005 Decision and the FEU Treaty, and the Date Decision on the basis of Article 18(2) of the VIS Decision and the FEU Treaty.
63.      Here, I must address the Parliament’s argument that the reference to the FEU Treaty (as a whole) is, in any event, too general to constitute an adequate legal basis. That vague reference would be a source of legal uncertainty.
64.      As a rule, an imprecise reference to the Treaty, such as the reference at issue here, would lead me to conclude that the contested decisions must be annulled. Indeed, failure to identify clearly the legal basis employed — as is in principle required by the Court — is difficult to reconcile with the principle of conferral. (29) However, in the particular context of the present cases, I have to disagree with the Parliament. Apart from Article 9 of Protocol No 36, no other provision of the FEU Treaty appears to be of relevance here.
65.      Although the Council could certainly have inserted a reference to Article 9 of Protocol No 36, the helpfulness of that reference remains questionable: indeed, that transitional provision lays down no substantive rule which could have been employed as a legal basis. Rather, it merely preserves the effects of secondary law acts belonging to the former third pillar until those acts have been repealed, replaced or annulled. In this particular context, it is precisely because of the ‘secondary’ legal bases — namely, Article 8(3) of the 2005 Decision and Article 18(2) of the VIS Decision — which substantiate the general reference to the FEU Treaty that that general reference to the Treaty can be accepted.
66.      As mentioned above, neither the 2005 Decision nor the VIS Decision has been amended to date. Therefore, the fact that the contested decisions make express reference to Articles 8(3) of the 2005 Decision and 18(2) of the VIS Decision, as the case may be, and to the FEU Treaty in general, constitutes in my view sufficient indication of the legal basis for the contested decisions.
67.      In the light of that finding, the interpretation adopted above with regard to Article 9 of Protocol No 36 will prove decisive in determining whether the Council could lawfully adopt the contested decisions on that basis.
68.      Given the interpretation proposed in point 51 above, I cannot accept the position argued for by the Parliament as regards the invalidity of the legal bases employed to adopt the contested decisions. In the light of my belief that the idea of a smooth transition ought to guide the interpretation of Article 9 of Protocol No 36, that provision must be understood as preserving all the effects of the provisions laid down in the acts falling within its scope. Therefore, as long as the basic decisions have not been amended, the competence conferred on the Council for the adoption of implementing measures maintains its full effect. Put differently, in order for the general EU rules to come into play, it would be necessary to amend the basic decisions. The power to propose the amendment — or, indeed, the replacement or repeal — of those acts remains, however, the prerogative of the Commission. As I have already explained, it is my conviction that the contested decisions do not constitute amendments to the basic decisions within the meaning of Article 9 of Protocol No 36.
69.      That is why I conclude that the contested decisions were adopted on the correct legal basis.
70.      A conclusion to that effect would alone be sufficient for the actions brought by the Parliament in the present cases to be dismissed as unfounded. For the sake of completeness, however, I will make the following observations in relation to two issues which have been extensively debated by the parties during the present proceedings: the use of a secondary legal basis and the fact that the Parliament was not consulted.
D –    Further issues: use of a secondary legal basis and consultation of the Parliament
71.      During the proceedings, the Parliament has repeatedly complained about not having been involved in the decision-making procedure, as it would have been under the regime in place before the entry into force of the Treaty of Lisbon, as well as under the general FEU Treaty framework. However, at the hearing it became clear that the Parliament had not sought to be consulted in the procedure leading to the adoption of the contested decisions as such. The argument relating to the absence of consultation was simply a means of demonstrating that the decision-making procedure followed by the Council in taking the contested decisions diverges from that which existed pre-Lisbon and which ought, in the view of the Parliament, to have been followed in order for the general FEU Treaty framework to be applied correctly. (30)
72.      At this juncture, it is necessary to call to mind briefly that, with the entry into force of the Treaty of Lisbon, Articles 34(2)(c) and 39 EU were repealed. As both parties observe, those provisions have thus ceased to produce any legal effects and cannot be used as yardsticks for pinning down the appropriate procedure for taking the contested decisions. Therefore — and especially in the light of the principle of tempus regit actum — it can hardly be argued that an obligation to consult the Parliament would continue to exist by dint of Article 39 EU. (31) That much seems clear. Nonetheless, considerable disagreement persists as to whether or not the repeal of the former EU Treaty means that Article 8(2) of the 2005 Decision and Article 18(2) of the VIS Decision now constitute invalid secondary legal bases, (32) especially as those provisions do not require consultation of the Parliament. (33)
73.      As has already been mentioned several times above, the fact that Article 34(2)(c) EU was repealed does not impact on the conferring of implementing powers under Article 8(3) of the 2005 Decision and Article 18(2) of the VIS Decision. This is because of Article 9 of Protocol No 36. That provision maintains the effects of those conferring provisions despite the repeal of the constitutional framework within which the 2005 Decision and the VIS Decision were adopted.
74.      Even at the risk of stating the obvious, it has to be said that that framework has been replaced by the FEU Treaty. However, Article 9 of Protocol No 36 forms an integral part of that treaty, hence of the new constitutional framework. (34) It is that provision of primary law that allows the continued use of implementing powers conferred on the Council before the entry into force of the Treaty of Lisbon, maintaining the effects, during the transitional period, of any existing conferment of implementing powers. Given the existence of Article 9, Article 8(3) of the 2005 Decision and Article 18(2) of the VIS Decision in no way deviate from the rules laid down by the FEU Treaty in such a way as to constitute invalid secondary legal bases.
75.      True, one could of course argue that the pre-Lisbon obligation to consult on the basis of Article 39 EU does not disappear simply because the constitutional framework changes. The survival of that obligation would be consistent with the objective of the Lisbonisation process to strengthen the involvement of the Parliament in the field of police and judicial cooperation in criminal matters.
76.      However, I believe that particular importance ought to be attached to Article 9 of Protocol No 36, which simply preserves the legal effects of existing secondary law instruments adopted on the basis of the former third pillar. Given the silence not only of that provision of primary law but also of the FEU Treaty in general as regards the obligation to consult the Parliament in relation to implementing measures adopted on the basis of powers previously conferred, I do not consider it appropriate to read such an obligation into the current FEU Treaty. This is all the more true because both Article 34(2)(c) and Article 39 EU have been repealed in accordance with Article 1, point 51, of the Treaty of Lisbon. (35) Accordingly, implementing decisions taken on the dual basis of third pillar acts and Article 9 of Protocol No 36 constitute, in the interim, a special type of measure that does not require the involvement of the Parliament for its adoption.
77.      I therefore conclude that the three actions brought by the Parliament in Joined Cases C‑317/13 and C‑679/13, and Case C‑540/13 ought to be dismissed as unfounded. Given that conclusion, there is no need to deal with the request made by both parties as regards the need to maintain the effects of the contested decisions until they are replaced by new acts.
E –    Costs
78.      Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the pleadings of the successful party. In all three cases, the Council has applied for costs and the Parliament has been unsuccessful.
79.      In accordance with Article 140(1) of the Rules of Procedure, Member States and institutions which have intervened in the proceedings are to bear their own costs. The Republic of Austria ought therefore to bear its own costs in Joined Cases C‑317/13 and C‑679/13.
IV –  Conclusion
80.      Having regard to all the above considerations, I propose that the Court:
–        dismiss the actions brought by the Parliament in Joined Cases C‑317/13 and C‑679/13, and in Case C‑540/13;
–        order the Parliament to pay the costs; and
–        order the Republic of Austria to bear its own costs.
1 – Original language: English.
2 – Article 9 is laid down in Title VII of that protocol, which concerns acts adopted on the basis of Titles V and VI of the pre-Lisbon version of the Treaty on European Union.
3 – Council Decision 2005/387/JHA of 10 May 2005 on the information exchange, risk-assessment and control of new psychoactive substances (OJ 2005 L 127, p. 32).
4 – Council Decision 2013/129/EU of 7 March 2013 on subjecting 4-methylamphetamine to control measures (OJ 2013 L 72, p. 11) (‘Implementing Decision 1’), and Council Implementing Decision 2013/496/EU of 7 October 2013 on subjecting 5-(2-aminopropyl)indole to control measures (OJ 2013 L 272, p. 44) (‘Implementing Decision 2’), (or, collectively, ‘the implementing decisions at issue’).
5 – Visa Information System. The VIS was established by Council Decision 2004/512/EC of 8 June 2004 establishing the Visa Information System (VIS) (OJ 2004 L 213, p. 5).
6 – Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences (OJ 2008 L 218, p. 129).
7 – Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short stay-visas (VIS Regulation) (OJ 2008 L 218, p. 60).
8 – Council Decision 2013/392/EU of 22 July 2013 fixing the date of effect of Decision 2008/633/JHA concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences (OJ 2013 L 198, p. 45), (‘the Date Decision’).
9 – The Parliament submits in the alternative that Article 8(3) of the 2005 Decision constitutes an invalid secondary legal basis. In its defence, the Council interprets that submission as constituting a plea of illegality within the meaning of Article 277 TFEU. While not expressly seeking a form of order to that effect in Case C‑540/13, a similar argument concerning the VIS Decision is made in the main text of the Council’s observations in that case.
10 – Despite the similarity of the pleas relied upon in all three cases, those pleas are presented in reverse order in Case C‑679/13 and Case C‑540/13, as compared with Case C‑317/13. The Parliament takes issue with the procedure followed, given that, under the rules in force before the entry into force of the Treaty of Lisbon, the Parliament was to be consulted in accordance with Article 39 EU when the Council adopted decisions under the third pillar.
11 – Article 34(2)(c) EU vested in the Council competence to adopt by a qualified majority measures necessary to implement at EU level decisions consistent with the objectives of Title VI of the EU Treaty, excluding any approximation of the laws and regulations of the Member States, taken under that provision.
12 – The origin of the confusion can, in fact, be traced back to the defence of the Council in Case C‑317/13. The Council construed the arguments put forward by the Parliament in its application in relation to those provisions as a plea of illegality within the meaning of Article 277 TFEU. However, the Parliament made no attempt whatsoever to clarify the issue in its reply or in its other written observations. On the contrary, the Parliament further contributed to the misunderstanding by providing the Court with lengthy explanations regarding, in particular, the reasons why the Parliament ought to have standing to contest the legality of the 2005 Decision and that of the VIS Decision (collectively, ‘the basic decisions’).
13 – For an overview of the evolution of the constitutional principle of institutional balance in the EU legal system, see Jacqué, J.-P., ‘The Principle of Institutional Balance’, 41(2004) Common Market Law Review, pp. 383 to 391. See also Curtin, D., ‘EU Constitution as Architecture — Separation of Powers in the Twenty-First Century’, in Reestman, J.-H., Schrauwen, A., van Montfrans, M., and Jans, J., De Regels en het spel — Opstellen over recht, filosofie, literatuur en geschiedenis aangeboden aan Tom Eijsbouts, TMC Asser Press, The Hague: 2011, pp. 123 to 133, at 126 et seq. For an early discussion of the principle in case-law, see judgment in Meroni v High Authority, Case 9/56, EU:C:1958:7.
14 – This was done following the signing of the Treaty of Amsterdam on 1 May 1999. In that context, the Council was to draw up a list of the elements of the Schengen measures that make up the acquis, setting out the corresponding legal basis for each of those elements in the Treaties (EC Treaty or the Treaty on European Union). This was done by Council Decision 1999/435/EC of 20 May 1999 concerning the definition of the Schengen acquis for the purpose of determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the acquis (OJ 1999 L 176, p. 1) and Council Decision 1999/436/EC of 20 May 1999 determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the Schengen acquis (OJ 1999 L 176, p. 17).
15 – In addition, under the alternative option, the basic decisions could also have been amended by inserting a provision concerning, in the case of the 2005 Decision, the application of the control measures to new psychoactive substances or, in the case of the VIS Decision, the date on which that decision was to take effect.
16 – Although, at the hearing, the Parliament frequently referred to the contested decisions as implementing measures.
17 – For this distinction in case-law, see, for example, judgment in Parliament v Council, C‑355/10, EU:C:2012:516, paragraphs 64 to 66. Accordingly, the adoption of rules pertaining to essential elements may not be delegated. See for some earlier references to that principle, judgments in Parliament v Commission, C‑156/93, EU:C:1995:238, paragraph 18 and case-law cited; Parliament v Council, C‑303/94, EU:C:1996:238, paragraph 23; Söhl & Söhlke, C‑48/98, EU:C:1999:548, paragraph 34; and Parliament v Council, C‑133/06, EU:C:2008:257, paragraph 45.
18 – In the context of the accession of new Member States to the European Union, the application of transitional measures to those States has given rise to a large body of case-law. In that situation, the overarching aim of transitional measures is to facilitate the transition from the existing regime in the new Member States to that resulting from the application of EU law. See, for example, judgments in Danisco Sugar, C‑27/96, EU:C:1997:563; Weidacher, C‑179/00, EU:C:2002:18; Parliament v Council, C‑413/04, EU:C:2006:741; and Poland v Commission, C‑336/09 P, EU:C:2012:386.
19 – Declaration concerning Article 10 of Protocol No 36 annexed to the final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007.
20 – Article 10 concerns the respective powers of the EU institutions in relation to pre-existing third pillar acts. Article 10(1) states, inter alia, that with respect to pre-existing third pillar acts, the powers of the Court are to remain the same as at the date of entry into force of that Treaty. In accordance with Article 10(2), the amendment of such an act brings to an end the special regime governing the jurisdiction of the Court. Finally, Article 10(3) limits the application in time of the transitional measure mentioned in paragraph 1. The special transitional regime is to cease to have effect five years after the date of entry into force of the Treaty of Lisbon, that is, on 1 December 2014.
21 – In a different context, the Court has also interpreted the concept of ‘acts having legal effects’ broadly to include recommendations adopted by an international organisation. See judgment in Germany v Council, C‑399/12, EU:C:2014:2258, paragraph 56 et seq.
22 – Declaration No 50 lends support to this view, given that it urges the institutions to realign former third pillar measures with the new framework, to the extent possible, during the five year transitional period applicable in relation to Article 10(1) of Protocol No 36.
23 – For seminal examples of this trend, see, for instance, judgments in Roquette Frères v Council, 138/79, EU:C:1980:249, and Parliament v Council, C‑70/88, EU:C:1990:217.
24 – See, to that effect, judgment in Wybot, 149/85, EU:C:1986:310, paragraph 23.
25 – See, more generally, judgment in Parliament v Council, C‑130/10, EU:C:2012:472, paragraph 81 and case-law cited. Not everybody shares this positive view about accountability. See, on a critical note, Charlemagne, ‘The will to power: The European Parliament would like you to know that it matters’, The Economist, 4 October 2014: ‘Armed with the superficially attractive argument that it is the only European institution directly accountable to voters, the parliament has accrued powers over the past few decades. Like a child receiving sweets, each goody it acquires feeds its demands for more.’
26 – However, I agree with the idea that even a very minor amendment (as long as it can actually be construed as constituting an amendment) suffices to trigger the application of the new rules. See, for the absence of a de minimis rule in this context and the problems as regards the criteria for identifying what constitutes an amendment, Peers, S., ‘Finally “Fit for Purpose”? The Treaty of Lisbon and the End of the Third Pillar Legal Order’, in Eeckhout, P., and Tridimas, T. (eds), 27(2008) Yearbook of European Law, pp. 47 to 64, at p. 55 et seq.
27 – See judgment in Commission v Council, C‑370/07, EU:C:2009:590, paragraph 56 and case-law cited. Such explicit reference is nonetheless required by the Court where, in its absence, the parties concerned and the Court are left uncertain as to the precise legal basis.
28 – As mentioned above, this issue was debated by the parties in their written pleadings, although it later transpired at the hearing that the Parliament had not intended to call into question the legality of the basic decisions or parts thereof.
29 – See judgment in Commission v Council, EU:C:2009:590, paragraph 56 et seq. For the principle of conferral, see, for instance, judgment in Parliament v Commission, C‑403/05, EU:C:2007:624, paragraph 49 and case-law cited. See also recently Opinion 1/13, EU:C:2014:2303, paragraph 74.
30 – See point 32 above.
31 – The Council notes, without being contradicted on this point by the Parliament, that before the adoption of the Lisbon Treaty, a decision similar to the implementing decisions at issue was taken only after the Parliament had been consulted in accordance with Article 39 EU.
32 – See judgment in Parliament v Council, EU:C:2008:257, paragraphs 54 to 57. There, the Court firmly rejected the possibility of employing legal bases that modify the procedures laid down in the Treaties.
33 – As regards Article 18(2) of the VIS Decision, the Parliament further argues that the absence of an expressly formulated voting rule in that provision amounts to a modification of the decision-making procedure provided for in the Treaties (in this context, as laid down in Article 34(2)(c) EU).
34 –      See Article 51 TEU.
35 – The same observation applies to the issue of the voting rules (or the absence thereof) in Article 18(2) of the VIS Decision and the alleged spill-over effect of the voting rules laid down in Article 34 EU. As long as the conferment of powers provided for in that provision of secondary law remains in force by dint of Article 9 of Protocol No 36, the relevant voting rule must, as the Council notes, be the rule referred to in Article 16(3) TEU. In accordance with that provision, the Council is to act by a qualified majority except where the Treaties provide otherwise. It is also worth noting that specific transitional provisions apply to qualified majority voting. Those rules, which were applied by the Council in relation to the Date Decision, are laid down in Protocol No 36.