62000CC0378_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I ─ Introduction
1.
This case concerns so-called
"comitology"
. Comitology is a term which is understood as referring to a decision-making procedure in which committees consisting of representatives of the Member States, under the chairmanship of a representative of the Commission, support and advise the Commission in the implementation of tasks conferred on it by the Community legislature. In that way the Commission can, pragmatically, count on the necessary assistance of national experts in matters with a high technical content. At the same time, the Member States maintain a degree of control over the way in which the Commission implements its tasks and, in certain circumstances, the Council can also be involved in the implementing measures.
2.
The Commission's application is for the partial annulment of Regulation (EC) No 1655/2000 of the European Parliament and of the Council of 17 July 2000 concerning the Financial Instrument for the Environment (LIFE) (hereinafter
"the LIFE-regulation"
or
"the contested regulation"
).
(2)
It claims that the Court should annul the LIFE regulation in so far as the adoption of measures for the implementation of the LIFE-programme is made subject to the regulatory procedure under Article 5 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (hereinafter
"the second comitology decision"
or
"the Decision"
).
(3)
3.
Under the third indent of Article 202 EC the Council may impose certain prior requirements in respect of the Commission's implementing powers. The second comitology decision was adopted on the basis of that provision and replaced the first comitology decision of the Council of 1987.
(4)
The second comitology decision simplified the so-called
"regulatory"
and
"management"
procedures. In addition, Article 2 of the decision introduced certain criteria for the choice of procedure for the adoption of implementing measures. The present dispute revolves around the application of those criteria.
4.
The Commission submits that the implementing measures in the LIFE-programme are in the nature of management measures because of the considerable implications for the budget. It claims that the Community legislature has wrongly chosen the regulatory procedure on the basis of the selection criteria in Article 2 of the second comitology decision. Although the Commission accepts that the selection criteria are not binding, it submits that the Community legislature has failed to give effect to the legal consequences of Article 2 in that it has not given an adequate statement of reasons for the derogating choice of procedure in the LIFE-regulation.
5.
The Parliament and the Council submit that the Commission is adopting an incorrect interpretation of Article 202 EC and dispute that the criteria in Article 2 of the Decision have any legal effect. The Community legislature is completely free to depart from the selection criteria in its choice of comitology procedure and does not have to extend the necessary statement of reasons to cover that choice. In the alternative, the Council submits that there is in fact an adequate statement of reasons for the choice of the regulatory procedure in the LIFE-regulation.
6.
The Commission's action comes as no surprise. In a statement made upon the adoption of the LIFE-regulation, the Commission in fact already indicated its intention to take action before the Court of Justice in connection with the comitology procedure. The choice of the regulatory procedure or the management procedure determines the Commission's freedom of action in the implementing process as against the Parliament and the Council. The Court's judgment is also of fundamental importance for the balance between the institutions of the Union, particularly as regards the relationship between the legislative and executive powers.
II ─ Legal background
7.
The legal background to this case is rather extensive. Not only is it necessary to take into account the contested regulation and the second comitology decision, but also the associated declarations and the Treaty.
A ─
The EC Treaty
8.
Article 202 EC concerns the tasks of the Council and provides as follows:
"To ensure that the objectives set out in this Treaty are attained the Council shall, in accordance with the provisions of this Treaty:
─
confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down. The Council may impose certain requirements in respect of the exercise of these powers. The Council may also reserve the right, in specific cases, to exercise directly implementing powers itself. The procedures referred to above must be consonant with principles and rules to be laid down in advance by the Council, acting unanimously on a proposal from the Commission and after obtaining the Opinion of the European Parliament.
"
B ─
The second comitology decision
9.
As already stated, the second comitology decision replaced the Council's first comitology decision of 1987. The decision is based in particular on the third indent of Article 202 EC.
10.
According to the fifth recital in its preamble, the first purpose of the Decision is, with a view to achieving greater consistency and predictability in the choice of type of committee, to provide for criteria relating to the choice of committee procedures, it being understood that such criteria are of a non-binding nature.
11.
According to the ninth recital, the second purpose of the Decision is to simplify the requirements for the exercise of implementing powers conferred on the Commission and to improve the involvement of the European Parliament in those cases where the basic instrument conferring implementation powers on the Commission was adopted in accordance with the procedure laid down in Article 251 EC.
12.
According to the tenth recital, the Decision aims, thirdly, to improve information to the European Parliament. The eleventh recital states that its fourth purpose is to improve information to the public concerning committee procedures.
13.
Article 2 contains the criteria for the choice of the type of comitology procedure.
It states as follows:
"The choice of procedural methods for the adoption of implementing measures shall be guided by the following criteria:
(a)
management measures, such as those relating to the application of the common agricultural and common fisheries policies, or to the implementation of programmes with substantial budgetary implications, should be adopted by use of the management procedure;
(b)
measures of general scope designed to apply essential provisions of basic instruments, including measures concerning the protection of the health or safety of humans, animals or plants, should be adopted by use of the regulatory procedure; where a basic instrument stipulates that certain non-essential provisions of the instrument may be adapted or updated by way of implementing procedures, such measures should be adopted by use of the regulatory procedure;
(c)
without prejudice to points (a) and (b), the advisory procedure shall be used in any case in which it is considered to be the most appropriate.
"
14.
In Articles 3 to 6 inclusive of the second comitology decision, four procedures are specified: the
"advisory procedure"
(Article 3); the
"management procedure"
(Article 4); the
"regulatory procedure"
(Article 5) and the
"safeguard procedure"
(Article 6). In the present case, the procedures under Article 4 and Article 5 are of particular significance:
"Article 4
Management procedure
1.
The Commission shall be assisted by a management committee composed of the representatives of the Member States and chaired by the representative of the Commission.
2.
The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time-limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 205(2) of the Treaty, in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.
3.
The Commission shall, without prejudice to Article 8, adopt measures which shall apply immediately. However, if these measures are not in accordance with the opinion of the committee, they shall be communicated by the Commission to the Council forthwith. In that event, the Commission may defer application of the measures which it has decided on for a period to be laid down in each basic instrument but which shall in no case exceed three months from the date of such communication.
4.
The Council, acting by qualified majority, may take a different decision within the period provided for by paragraph 3.
Article 5
Regulatory procedure
1.
The Commission shall be assisted by a regulatory committee composed of the representatives of the Member States and chaired by the representative of the Commission.
2.
The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time-limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 205(2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the Committee shall be weighted in the manner set out in that Article. The chairman shall not vote.
3.
The Commission shall, without prejudice to Article 8, adopt the measures envisaged if they are in accordance with the opinion of the committee.
4.
If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken and shall inform the European Parliament.
5.
If the European Parliament considers that a proposal submitted by the Commission pursuant to a basic instrument adopted in accordance with the procedure laid down in Article 251 of the Treaty exceeds the implementing powers provided for in that basic instrument, it shall inform the Council of its position.
6.
The Council may, where appropriate in view of any such position, act by qualified majority on the proposal, within a period to be laid down in each basic instrument but which shall in no case exceed three months from the date of referral to the Council.
If within that period the Council has indicated by qualified majority that it opposes the proposal, the Commission shall re-examine it. It may submit an amended proposal to the Council, re-submit its proposal or present a legislative proposal on the basis of the Treaty.
If on the expiry of that period the Council has neither adopted the proposed implementing act nor indicated its opposition to the proposal for implementing measures, the proposed implementing act shall be adopted by the Commission.
"
15.
Besides Article 5(5) of the Decision, Article 8 also provides for the involvement of the Parliament in the adoption of implementing measures. If the Parliament indicates, in a resolution setting out the grounds on which it is based, that draft implementing measures, the adoption of which is contemplated and which have been submitted to a committee pursuant to a basic instrument adopted under Article 251 EC, would exceed the implementing powers provided for in the basic instrument, the Commission is to re-examine the draft measures. Taking the resolution into account and within the time limits of the procedure under way, the Commission may submit new draft measures to the committee, continue with the procedure or submit a proposal to the European Parliament and the Council on the basis of the Treaty.
16.
According to Article 7(1) of the Decision, each committee is to adopt its own rules of procedure on the basis of standard rules which are to be published in the
Official Journal of the European Communities
.
(5)
Article 7(2) provides that the principles and conditions on public access to documents applicable to the Commission are to apply to the committees. In Article 7(3), (4) and (5) obligations are placed on the Commission to provide information to the Parliament, to publish an annual list of committees which assist it, and to report on the working of the committees.
17.
Upon the adoption of the second comitology decision, the Council and the Commission made the following declaration:
(6)
"The Commission and the Council agree that provisions relating to committees assisting the Commission in the exercise of implementing powers provided for in application of Decision 87/373/EEC should be adjusted without delay in order to align them with Articles 3, 4, 5 and 6 of Decision 1999/468/EC in accordance with the appropriate legislative procedures.
Such adjustment should be made as follows:
─
current procedure I would be turned into the new advisory procedure;
─
current procedures II(a) and II(b) would be turned into the new management procedure;
─
current procedures III(a) and III(b) would be turned into the new regulatory procedure.
A modification of the type of committee provided for in a basic instrument should be made, on a case by case basis, in the course of normal revision of legislation, guided
inter alia
by the criteria provided for in Article 2.
Such adjustment or modification should be made in compliance with the obligations incumbent on the Community institutions.
It should not have the effect of jeopardising attainment of the objectives of the basic instrument or the effectiveness of Community action.
"
C ─
The LIFE-regulation
18.
According to Article 1 of the contested regulation, the general objective of LIFE is to contribute to the implementation, updating and development of Community environment policy and of environmental legislation, in particular as regards the integration of the environment into other policies, and to sustainable development in the Community. For that purpose it establishes a Financial Instrument for the Environment
"LIFE"
which contains procedural rules for the award of financial support to projects which contribute to this general objective.
19.
Article 8 of the LIFE-regulation sets out,
inter alia
, the financial framework:
"Duration of the third phase and budgetary resources
1.
LIFE shall be implemented in phases. The third phase shall start on 1 January 2000 and shall end on 31 December 2004. The financial framework for the implementation of the third phase for the period 2000 to 2004 is hereby set at EUR 640 million.
2.
The budgetary resources allocated to the actions provided for in this Regulation shall be entered in the annual appropriations of the general budget of the European Union. The available annual appropriations shall be authorised by the budgetary authority within the limits of the financial perspective.
...
"
20.
Recital 20 states as follows:
"The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission."
21.
Article 11 of the contested regulation provides as follows:
"Committee
1.
The Commission shall be assisted by a committee (hereinafter referred to as
"the Committee"
).
2.
Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
The period referred to in Article 5(6) of Decision 1999/468/EC shall be set at three months.
3.
The Committee shall adopt its rules of procedure.
"
22.
Two declarations by the Commission and one by the Council are appended to the LIFE-regulation, which are published together with the regulation in the Official Journal.
"Statement by the Commission
The Commission notes the agreement of the European Parliament and the Council to provide for a regulatory procedure when considering the choice of projects, as opposed to the management procedure proposed by the Commission in the modified proposal following Parliament's second reading.
The Commission insists, as it stated in the time of the adoption of the Common Position, on the importance of applying the criteria of Article 2 of Council Decision 1999/468/EC of 28 June 1999, laying down the procedures for the exercise of implementing powers conferred on the Commission.
The Commission believes that, the choice of projects being a measure with substantial budgetary implications, this should follow the management procedure.
The Commission considers that to ignore the terms of Article 2 of Decision 1999/468/EC in a case as clear as this is contrary to both the spirit and the letter of the Council Decision.
The Commission must therefore reserve its position in this matter, including its right to take appropriate future action before the Court.
Statement by the Council
The Council notes the statement by the Commission regarding the choice of the committee procedure for the adoption, by the Commission, of implementing measures under the LIFE Regulation.
In choosing the regulatory procedure contained in Article 5 of Council Decision 1999/468/EC of 28 June 1999, laying down the procedures for the exercise of implementing powers conferred on the Commission, the Council took into account the experience gained with the regulatory procedure under the LIFE instrument during the first (since 1992) and second phase (since 1996) and the nature of the LIFE instrument, which plays a vital role in the protection of the environment within the Community and contributes to the implementation and development of Community environmental policy.
The Council recalls that the criteria laid down in Article 2 of Decision 1999/468/EC are legally non-binding and of an illustrative nature. The Council considers that the scope of implementing powers in this Regulation fully justify having recourse to a regulatory procedure.
Statement by the Commission
...
"
23.
The LIFE-regulation builds on the first two phases which had been provided for in Regulation (EEC) No 1973/92 of 21 May 1992 (LIFE-I), as fundamentally amended by Regulation (EC) No 1404/96 of 15 July 1996 (LIFE-II).
(7)
The two latter regulations are repealed by the contested regulation.
III ─ Procedure
24.
The application was received at the Court Registry on 13 October 2000.
25.
The Commission claims that the Court should:
1.
annul the LIFE-regulation in so far as it makes the adoption of measures for the implementation of the LIFE-programme subject to the regulatory procedure under Article 5 of the second comitology decision;
2.
maintain the effects of the abovementioned regulation until its amendment, which should take place as soon as possible after the judgment of the Court;
3.
order the defendants to pay the costs.
26.
The Parliament and the Council contend that the application should be dismissed and that the Commission should be ordered to pay the costs.
27.
By order of 30 April 2001 the President of the Court granted the United Kingdom of Great Britain and Northern Ireland leave to intervene in support of the form of order sought by the Parliament and the Council. A hearing took place on 4 June 2002.
IV ─ Pleas in law and main arguments of the parties
28.
The
Commission
observes first of all that the principles and rules referred to in Article 202 EC are
"organic"
in nature. This follows expressly from the fact that, for the purposes of Article 202 EC, the requirements for the exercise of the implementing powers
"must be consonant"
within the principles and rules laid down in advance by the Council. It follows from this that any basic instrument of the Community legislature, even in the framework of the co-decision procedure, must comply with the rules as so laid down.
29.
In support of its application the Commission submits two pleas. These allege, first, infringement of Article 2 of the second comitology decision and, second, infringement of the letter and spirit of that decision.
30.
In its plea alleging infringement of Article 2 of the second comitology decision, the Commission claims that there was a failure to apply the criteria set out in that provision. In providing that programmes with substantial budgetary implications should be adopted by use of the management procedure, Article 2(a) clearly intends that the implementation of those programmes should be subject to that procedure. The implementing measures to be adopted under the LIFE-regulation are, in the Commission's view, classic management measures for which the management procedure is provided in other Community programmes.
(8)
31.
Next, the Commission submits that the legal consequences of Article 2 of the second comitology decision and the obligations flowing from that provision have been ignored. The fifth recital in the preamble to the second comitology decision states that the criteria are of a non-binding nature. However, Article 2 cannot be deprived of all legal effect, it being a legal provision not a political declaration. If the Council had merely wished to give the criteria in question purely indicative significance, it could merely have refrained from setting out the criteria in Article 2 and have set them out in a declaration or in the minutes of its meeting of 28 June 1999.
32.
Only specific grounds can therefore justify a decision by the legislature to depart in a particular case from the procedure provided for, and a statement of reasons must be given for its decision to choose a procedure other than that indicated. Even if statement made by the Council upon the adoption of the LIFE-regulation could be taken into account, that statement does not, according to the Commission, satisfy the obligation to state reasons. The Council's argument, based on experience gained, can justify the application of the regulatory procedure only if it is assumed that the criteria of the second comitology decision have no binding effect of any kind and can be completely ignored. According to the Commission, such a
"statement of reasons"
is contrary to the declaration of the Council and of the Commission upon the adoption of the second comitology decision, according to which the criteria of Article 2 should be taken into account. Likewise the Commission contests the argument based on the nature of the LIFE-regulation. It submits that the purpose of the LIFE-programme is to finance projects on a voluntary basis. The programme does not contain any obligations for the Member States or measures of general scope within the meaning of Article 2(b) of the second comitology decision.
33.
In its plea alleging infringement of the letter and spirit of the second comitology decision the Commission submits that the choice of the regulatory procedure for the implementation of the LIFE-programme is contrary to the express aim of the second comitology decision, namely to clarify the committee procedures. The first comitology decision did not contain any criteria and the choice of procedure was at the entire discretion of the legislature. That approach resulted in a lack of transparency and, as a result, constant difficulties between the institutions. It is precisely the aim of the second comitology decision to put an end to those difficulties. By failing to apply the criteria and making the LIFE-programme subject to the regulatory procedure, the Community legislature has once again created a situation of unpredictability and inconsistency.
34.
The Commission recognises that the aim of predictability and consistency can be achieved also by means of non-binding criteria.
However, in a clear case such as that of the LIFE-programme, those criteria should be applied.
A statement of reasons must be given for any different approach and no such statement has been given in the present case.
The Commission submits that under the scheme of the second comitology decision the Community legislature cannot act in the same way as under the previous 1987 decision which did not contain any criteria for the choice of procedure.
35.
Based on the wording and scheme of the second comitology decision, the Commission argues that there is a distinction between the implementing measures which must be subject to the management procedure or the advisory procedure, and the more general measures which are on the borderline between implementation and regulation and to which the regulatory procedure of Article 5 of the second comitology decision therefore applies. According to the Commission, that provision relates in particular to measures concerning the protection of health and safety, relatively new policy areas for the Community which call for rapid adaptation to technical and scientific progress. On the other hand, with regard to more traditional Community areas such as the common agricultural and fisheries policies, where the legislature has already laid down a precise framework, implementing measures are subject to the management procedure.
36.
Contrary to what the Council claims in its statement following the adoption of the contested regulation, it follows from this that the nature of the LIFE-instrument and the scope of application of the implementing measures entrusted to the Commission are not consistent with the area of application of the regulatory procedure as defined in Article 2(b) of the second comitology decision.
37.
Moreover, the Commission considers that the regulatory procedure is not appropriate for implementation of the LIFE-programme. The fact that by virtue of Article 5 of the second comitology decision the Council can object to any proposal by the Commission in that procedure, so that ultimately no implementing decision is taken, is contrary to the notion of efficient decision-taking, which is precisely the basis of the management procedure.
38.
The Commission submits that Article 11 of the contested regulation conflicts with the second comitology decision and must therefore be annulled. However, in order not to compromise the practical implementation of the LIFE-programme, it submits that the effects of that provision should be maintained in force until its amendment. That amendment should take place as soon as possible after the judgment of the Court.
39.
The
Parliament
contends, first, that the Commission incorrectly interprets Article 202 EC. It disputes the claim that the second comitology decision is organic in nature and thus binds the Community legislature when it adopts a basic instrument.
40.
There is no indication whatsoever that Article 202 EC requires that the Council, from the very outset and generally, must commit itself to the choice of a particular committee procedure. According to the Parliament, the Commission's proposed interpretation of Article 202 EC would restrict democratic control of the executive power. Yet the Commission claims that Article 202 EC can form the legal basis for an instrument of secondary law which restricts the margin of discretion of the Community legislature in its choice of procedure for the adoption of a particular implementing measure. In the context of the co-decision procedure under Article 251 EC the term
"Council"
also includes the Parliament.
(9)
As a result, an organ of the legislative authority, namely the Parliament, would have its participation in the co-decision procedure restricted under the second comitology decision, which was adopted in the context of a decision-making procedure which provided solely for mere consultation of the Parliament.
41.
The correct interpretation of the relevant provisions of Article 202 EC is, according to the Parliament, that the Council, which in the present case acts together with the Parliament, may make the exercise of the Commission's implementing powers subject to certain
procedures
. The term
"requirements"
in Article 202 EC refers to the possibility for the Community legislature to choose one of the possible procedural alternatives according to the circumstances of each case.
42.
The Parliament also finds that the Commission's stance is inconsistent inasmuch as, on the one hand, it claims that the criteria of Article 2 are not legally binding and, on the other, that the failure by the Community legislature to comply with those criteria leads to the nullity of the contested decision. If the criteria are not binding ─ which the Commission accepts ─ that cannot result in there being a legal obligation on the Community legislature to give a statement of reasons for any decision in which it departs from those criteria.
43.
Second, the Parliament contends that the legal significance which the Commission accords to the criteria of Article 2 of the second comitology decision cannot be discerned in the wording, spirit or scheme of the decision.
44.
The Parliament notes that, in the original version proposed by the Commission, Article 2 of the draft second comitology decision was drafted in terms which gave binding force to the criteria for the choice of committee procedure. The final wording of the recitals and the provisions of the decision adopted by the Council, and the joint declaration by the Council and the Commission show clearly, however, that the Community legislature did not intend to make the criteria legally binding.
45.
Contrary to the Commission's submission, the mere fact that the criteria of Article 2 of the second comitology decision are set out in a binding legal instrument does not mean that the criteria are in themselves binding.
(10)
46.
Third, the Parliament contends that an alleged infringement of Article 2 of the second comitology decision cannot in any event lead to annulment of the contested regulation. The Commission's line of reasoning amounts to an assertion that the regulation is unlawful because the regulatory procedure was chosen in place of the management procedure. In its judgment in Case C-417/93
Parliament
v
Council
the Court had to decide whether the Council's replacement of a management committee by a regulatory committee was a material amendment of the Commission's proposal, on which the Parliament should have been consulted. The Court held that the overall balance of the powers allocated to the Commission and the Council was not decisively affected by the choice between the two types of committee in question.
(11)
Since the management and regulatory procedures were not fundamentally amended by the second comitology decision, that case-law must, the Parliament submits, also be applied to the present case.
(12)
47.
Moreover, the Parliament submits that the difference between the two procedures is minimal in terms of institutional balance between the institutions. Even an infringement of Article 2 of the second comitology decision would not be sufficiently serious to justify annulling the contested regulation.
48.
In its defence the
Council
refers, first of all, to the fact that, in its initial proposal for the contested regulation, the Commission provided for procedure III(a), within the meaning of the first comitology decision, which is in line with the current regulatory procedure. After the entry into force of the second comitology decision, the Commission changed its view. It did not, however, publicise its proposal and the Commission is seeking, through its present action, to achieve a result which it could not have achieved by legislative means using its prerogatives under Article 250 EC. Such conduct is not in accordance with the spirit of good faith cooperation between the institutions.
49.
With regard to the pleas in law submitted by the Commission, the Council contends that the legislature complied with the letter and spirit of the second comitology decision, the criteria set out in Article 2 being non-binding and the legislature being free to depart from them.
50.
As regards predictability and consistency in the choice between committee procedures, the Council did not, when adopting the second comitology decision, opt for binding criteria, as the Commission understood. It was feared that a rigid scheme would lead to significant disputes before the courts on account of the haziness of the criteria as a result of the use of terms such as
"substantial budgetary implications"
or
"essential provisions of basic instruments"
. For those reasons the final text differs from the proposal. It is clear from the examples cited by the Commission of programmes in which the management procedure has been adopted that, in general, the Community legislature is guided by the criteria in Article 2 of the second comitology decision.
51.
Although, according to the Council, the Commission accepts that the criteria in question are not binding, it assumes, in its interpretation of Article 2 of the second comitology decision, that the Council may depart from those criteria only in specific cases. In so doing it bases itself on the wording of Article 202 EC, but without referring to it. The Council submits, however, that two different cases are involved. In Article 202 EC the Treaty itself provides that the Council is to confer implementing powers on the Commission and that only
"in specific cases"
may it reserve the right to exercise those powers directly. From that circumstance the Court
(13) inferred an obligation to state reasons, which is laid down in Article 1 of the second comitology decision. In Article 2 of the second comitology decision there is, on the other hand, no reference whatsoever to any specific cases at all. The simple explanation for this is that Article 2 of the decision, unlike Article 202 EC, does not lay down any principle which may be departed from only in specific cases. No purpose can be inferred from that other than the intention of the author of the decision to exclude any binding effect whatsoever. It is thus open to the Council to depart from the criteria set out in Article 2. If a specific statement of reasons were required in the event of a choice which derogates from those criteria, then the Council would have expressly provided for it in the decision.
52.
As regards the statement of reasons in the contested regulation, the Council observes that a sound statement of reasons is in any event given for the choice of a regulatory committee. That statement is to be found in recital 20 in the preamble and was included in the minutes and published in the Official Journal. That shows that the Council took into account previous experience and the nature of the instrument. Experience with the implementing measures under the two previous programmes had shown that the regulatory procedure allows efficient implementation of the programmes without extra delays. The nature of the instrument, which concerns the entire area of the environment, is such that it has a bearing on questions relating, for example, to the organisation of the territory of the Member States or the management of water sources, and the instrument therefore affects inhabitants of the areas concerned. That is an additional reason why the Council considered it is necessary to refrain from applying to the LIFE-programme the same implementing rules as,
inter alia
, those in the examples given by the Commission concerning third countries, the promotion of certain activities, or the increase in mobility of nationals of the Member States. In those circumstances the Council considers that the statement of reasons in the contested regulation for the choice of a regulatory committee is adequate, even though, it submits, it is under no obligation to give such a statement.
53.
The Government of the
United Kingdom of Great Britain and Northern Ireland
confines its observations to the issue of the nature of the obligations on the Council under Article 2 of the second comitology decision. It contends that it is clear from the wording and legislative history of that decision that those criteria are non-binding. The only legal obligation on the Community legislature is to take those guidelines into account. Otherwise the Council is free to choose the procedure which it thinks appropriate.
V ─ Appraisal
A ─Introduction
54.
The Commission is asking the Court to rule on the lawfulness of the inclusion of the regulatory procedure in the LIFE-regulation. That ruling must be on the basis of two pleas in law, relating to the scope of the second comitology decision and the criteria set out in Article 2 thereof. Although formally separate pleas, their content is connected and they should therefore be considered together. In these proceedings the question is also raised by the Parliament, even if only implicitly, as to whether the second comitology decision is, in its turn, indeed compatible with Article 202 EC. In my view, the content of the second comitology decision cannot indeed be considered separately from the interpretation given to the third indent of Article 202 EC.
55.
This leads me to adopt the following scheme for my Opinion in this case, which is the first in which the Court has expressly been asked to express a view on the second comitology decision. I will first give a global overview of the history of and reasons for the comitology system (Section B). Next, I will investigate the nature and scope of the delegating provision in Article 202 EC (Section C). I will then go on to consider the legal significance of the criteria set out in Article 2 of the second comitology decision and the substance of the obligation to state reasons to which the Commission refers (Section D). Finally, with the aid of all that, it will then be possible, in the light of the content of the LIFE-regulation, to assess whether the Commission's action is well founded (Sections E and F).
56.
Strictly, the Council's observation that, by means of the present proceedings, the Commission is seeking to achieve what it could not achieve using its legislative prerogatives under Article 250 EC can be regarded as an objection of inadmissibility. As the Commission also submits, that argument cannot, in my view, call the admissibility of the application into question. Under the second paragraph of Article 230 EC it is open to the Commission to bring an action for annulment of an act of the Parliament and of the Council if it considers that the conditions set out in that provision for the bringing of an action are satisfied. As a privileged person, the Commission is not required to give more detailed reasons for doing so. Just like the Council and the Member States, the Commission does not need to prove an interest in bringing proceedings.
(14)
The Commission's reasons for bringing the present action are therefore not relevant to the issue of admissibility.
B ─
The history of the comitology system
57.
"Comitology" (15) developed in the Community administration during the first half of the 1960s. Committee procedures arose in the course of implementing the common agricultural policy. Initially the powers of the committees were laid down on an ad hoc basis. In the second half of the 1960s a degree of streamlining occurred as a result of the fact that the procedures in which committees occurred crystallised into a number of principal procedures. From that period onwards, committee procedures emerged also in other policy areas, such as food safety, transport, customs, financial services and the environment.
(16)
In 1996 it was estimated that there were more than 600 committees assisting the Commission and the Council.
(17)
58.
Overall the committees are of considerable importance in the daily practice of Community administration. The real influence of a particular committee on Community decision-making depends on a number of factors. First of all, it is connected with the scope of the powers which the Community legislature has delegated to the Commission, any powers which the legislature has reserved to itself in the basic instrument also being significant. In addition, as in the present case, the powers granted to the committees in the various procedures play a role. A committee can be influential if the Council gives broad implementing powers to the Commission in a basic instrument and links it with a
"weighty"
procedure such as the regulatory procedure. By way of concrete example reference can be made to the important advisory function of the Standing Committee on Foodstuffs in connection with the marketing and control of foodstuffs in the Community.
(18)
The Standing Veterinary Committee is also well known in connection with the adoption of urgent measures to restrict production and trade in the livestock sector in the case of BSE, swine fever or foot and mouth disease. The Commission adopts those measures after taking the advice of this influential committee. In addition, the present case shows that the committees play a prominent role in connection with the designation of public and private projects eligible for Community financing.
59.
Initially the committees were set up on an extra-statutory basis. However, the committee procedures quickly received the conditional approval of the Court of Justice. The case-law has laid down a framework of conditions regarding the content and scope of delegation by the Council. Thus the Council must lay down in the basic instrument the basic elements of the matter to be dealt with.
(19)
It can nevertheless delegate to the Commission general powers to establish implementing rules without having to specify the most important elements of the delegated powers.
(20)
Once the Council has delegated implementing powers, the Commission is authorised, within the limits of the relevant regulatory framework, to take all necessary and appropriate measures for its implementation.
(21)
Case-law has also laid down criteria for the lawful transfer of implementing powers to agencies.
(22)
60.
As regards the present case, it is also significant that the Court ensures that a balance between the institutions is guaranteed and that the previously agreed procedures are complied with. In its defence the Council has referred to the judgment in
Commission
v
Council
in which it is observed that it has a special obligation to state reasons where it has reserved the right to exercise implementing powers directly.
(23)
Also illustrative is the judgment of 10 February 1998 in
Germany
v
Commission
. In that case the Court annulled a Commission decision implementing a basic instrument on the ground that the Commission had failed to fulfil an essential procedural requirement. The necessary advice of the relevant standing committee had been drawn up without the German Permanent Representative having received in good time, in German, the draft to be voted upon and despite a formal request from Germany to postpone the vote. The Court rejected the Commission's submission that it was merely a minor formal error because the English version had been sent on time and the German version had been sent with only minimal delay.
(24)
61.
Although the positive aspects of the committee procedures have been broadly recognised, there has nevertheless been criticism. The comitology mechanism has made it possible for the Council to delegate many implementing powers to the Commission in policy areas in which a large number of decisions must be taken, instead of taking those decisions itself. That prevents the Council from becoming overloaded. From the outset there has been criticism of this practice because the result may be to deprive the basic instrument for the most part of its substance. In addition the prerogatives of the Parliament, as co-legislator, may become an issue. The comitology mechanism gives the Council an opportunity to lay down in the basic instrument general rules concerning subjects which are then elaborated via a committee procedure and implemented without the Parliament being able to exercise further influence on them. This objection has become more persuasive as the influence of the Parliament in the legislative process has increased.
(25)
Moreover, there has been criticism of the complex and non-transparent nature of the committee procedures, through which the exercise of political and legal control over the activities of the committees is rendered more difficult. Thirdly, objections in principle were possible against a committee procedure in which the Council can exercise its veto over the measures adopted by the Commission without itself having to adopt replacement measures (the so-called
"contra-filet"
).
(26)
Under this procedure the necessary measures may never be adopted.
62.
In reaction to this criticism the 1986 European Act gave a basis in the Treaty for the involvement of committees. The third indent of Article 145 of the EC Treaty (now the third indent of Article 202 EC) provides that the Council may impose certain
"requirements"
in respect of the exercise by the Commission of implementing powers, which must be consonant with the
"principles and rules"
to be laid down in advance by the Council, acting unanimously on a proposal from the Commission and after obtaining the opinion of the European Parliament. The Council established these
"principles and rules"
in 1987 in the first comitology decision.
(27)
63.
The first comitology decision substantially codified the procedures which then existed. According to the second paragraph of Article 1 of that decision the Council could impose requirements in respect of the exercise of the powers concerned, which had to be in conformity with the procedures set out in Articles 2 and 3. The two provisions contained a total of seven procedures: the advisory committee procedure, the management committee procedure (with two variants), the regulatory committee procedure (with two variants) and the safeguard procedure (with two variants). The alternatives at the Council's disposal were therefore limited to the abovementioned procedures,
(28)but the Council was otherwise free to choose a particular procedure.
64.
Through the introduction of the co-decision procedure in what is now Article 251 EC, the Treaty on European Union gave an impulse to discussion on the lack of influence of the European Parliament over comitology. Where decision-making takes place in accordance with the procedure of Article 251 EC, the Parliament may oppose the inclusion in a basic instrument of a committee procedure or the choice of a particular variant if it takes the view that its influence would be impaired. (29)
The Council, the European Parliament and the Commission found a solution to this sensitive problem by concluding an inter-institutional agreement on 20 December 1994 which was intended to provide a temporary solution to the problem while awaiting a definitive solution at the 1996 Intergovernmental Conference.
(30)
However, the Conference ultimately only produced a declaration in which the Commission was called upon to submit to the Council by the end of 1998 at the latest a proposal for the amendment of the first comitology decision.
(31)
The Commission submitted its proposal already by 16 July 1998
(32)and the Council adopted the second comitology decision on 28 June 1999.
65.
It is apparent from the recitals that in adopting the second comitology decision the Council intended to bring about the following changes in comparison with the first decision:
─
the introduction of non-binding criteria for the choice of the type of committee procedure in the event of implementing measures, with a view to achieving greater consistency and predictability;
─
an improvement in the Parliament's involvement in those cases where the basic instrument is adopted in accordance with the procedure laid down in Article 251 EC, and in general to improve information to the Parliament;
─
an improvement in information to the public concerning committee procedures.
66.
In the present case the choice at issue is between the management procedure and the regulatory procedure, within the meaning of the second comitology decision. Those procedures are the successors to the management committee procedures and the regulatory committee procedures under the first comitology decision.
67.
The
"lighter"
version of the regulatory committee procedure, Procedure III(a), was chosen in the predecessors to the current LIFE-regulation.
(33)
Under this procedure the committee advised on the Commission's draft of the implementing measures to be taken. If the intended measures did not accord with the advice of the committee, or if within the period provided for no advice had been given, the Commission was required to submit a proposal to the Council. The Council then decided by a qualified majority of votes. If the Council had not adopted any decision after three months at most, the Commission's power of decision revived: the so-called
"filet "
. The
"weightier"
regulatory committee procedure, Procedure III(b) contained the
"contra-filet "
, in which the Council could ultimately decide against the planned measures upon a simple majority of votes, without substituting its own decision.
68.
The management committee procedure under the first comitology decision in the
"light"
version of Procedure II(a) was also characterised by the fact that where the Commission's measure did not accord with the opinion of the committee, the Council could, acting by a qualified majority, within a given period ─ of not more than one month ─ substitute its own measure for the measure decided upon by the Commission. If the committee could not agree upon an opinion because the required majority of votes had not been attained, the Council was not, however, authorised to overrule the Commission's proposed decision. The difference from the
"weightier"
Procedure II(b) lay,
inter alia
, in the fact that the period within which the Council could adopt a different decision in the event of a derogating opinion was not to exceed three months. Furthermore, under variant (b), in the event of a derogating opinion the Commission had to defer application of the measures for a specified period, while under variant (a) it had a power to do so.
69.
When the management procedure, as set out in Article 4 of the second comitology decision, is compared with its predecessors in the first comitology decision, it is striking that to a large extent it corresponds to the management mechanism in the first comitology decision. In essence, the Commission is authorised to adopt the planned decision if a different opinion is given by the committee and the Council fails to take a decision within three months at most, or if the committee has not given any opinion within a fixed period. The variant in which the maximum decision-making period for the Council was one month has been dropped. A difference from the old management procedures is that the Commission decides whether the application of the measure is to be suspended for a period of up to three months, whereas under the old Procedure II(b) the Commission was compelled to defer application of the measures. In that regard the Commission's latitude is greater than under the first comitology decision.
70.
There are more differences between the regulatory committee procedures within the meaning of the first comitology decision and the current regulatory procedure under Article 5 of the second comitology decision, which is stated to be applicable in the contested regulation. On the one hand, the
"contra-filet "
procedure applies whereby the Council can exercise the decisive vote not to accept the measures proposed by the Commission, now standard for all types of legislation. Previously, the lighter Procedure III(a) which applied under the first LIFE-regulation still contained the
filet
mechanism. On the other hand, under the regulatory procedure the Commission has also obtained more latitude, because, from its point of view, the
contra-filet
mechanism has been made more flexible. Thus, ultimately the Council can block the implementing measures proposed by the Commission only with a qualified majority, whereas previously under Procedure III(b), decision-taking required a simple majority of votes. Moreover, the Commission can always submit a proposal to the Community legislature, whether or not it has been amended. A further difference is that now the participation of the Parliament in the comitology decision has been formalised.
71.
All in all, the differences between the two procedures, when compared with the equivalent procedures in the first comitology decision, have been reduced. There is, however, still a clear difference between the management procedure and the regulatory procedure. The Parliament, in its written observations, and the representative of the Council at the hearing have, in my view, wrongly played down the differences between the two procedures which still exist. From the Commission's point of view, the regulatory procedure offers less latitude than the management procedure,
inter alia
, as a result of the greater involvement of the Parliament and in particular as a result of the
contra-filet
mechanism, which exists exclusively under the regulatory procedure.
C ─
Nature and scope of the delegation provision in Article 202 EC
72.
In these proceedings the Commission submits that the
"requirements"
and the
"principles and rules"
of Article 202 EC are organic in nature; they bind the Community legislature and secondary legislation must therefore comply with them. The Commission's claim is contested above all by the Parliament, which contends that Article 202 EC only created the power to make the implementation of rules subject to certain procedures.
73.
In the judgment in
Germany
v
Commission
of 27 October 1992 the Court held that Decision 87/373, as a measure of secondary law, cannot add to the rules of the Treaty.
(34)
It is also evident in this connection that the requirements of the second comitology decision cannot alter what is provided in Article 202 EC.
74.
A reading of the third indent of Article 202 EC leads one to assume that, when the Council is regulating the issue of implementing measures in a basic instrument,
(35)it may choose from a number of alternatives. The exceptional situation is where the Council, in specific cases, exercises certain implementing powers itself (self-authorisation).
(36)
The main rule is that the Council must grant the Commission power to implement the rules.
Under the strict wording of the provision it is not excluded that the Council should delegate powers to the Commission without imposing any further requirements.
That possibility is, however, no longer relevant, since the Council has made the delegation of powers to the Commission subject to
"certain requirements"
which must be consonant with the
"principles and rules"
which it has previously laid down.
(37)
75.
The third indent of Article 202 EC is characterised by the use of open legal rules and undefined legal concepts, which are to be fleshed out by the Council and, in the present case, by the Court.
76.
In particular, the Treaty does not define the extent of the power of delegation. There is no definition of the concept of
"implementation"
. As noted above, the case-law considers that the rules laid down by the Council may be general in nature and it suffices that the Council lays down the essential elements of the matters to be regulated.
(38)
The power of delegation is not, however, unlimited; the Council is not permitted to transfer the implementing power derived under the Treaty to the Commission without any control.
77.
Still less does the Treaty provide guidelines as to the content and scope of the
"requirements"
which the Council may impose in respect of the exercise of those powers. The requirements must merely be consonant with the
"principles and rules"
to be laid down in advance by the Council. In my view, it is clear from this that if the Council imposes requirements, it must itself comply with the
"principles"
and
"rules"
when choosing the committee procedures. When drawing up those principles and rules the Council may, however, restrict its power of assessment differently, that is to say, to a greater or lesser degree.
78.
As the Parliament submits, it is not possible to infer from the third indent of Article 202 EC any compulsory choice of a particular committee procedure in a basic instrument. Conversely, that provision does not preclude a situation in which the Council commits itself, on the basis of the obligation to impose the above requirements, to make a choice between a restrictive number of types of procedure. (39)
That must also apply, a fortiori, to the determination of criteria on the basis of which the procedural choice is prescribed. From a textual point of view, the use of the word
"rules"
implies that substantive criteria can be laid down which are to serve as the basis for the choice by the Community legislature of a particular type of procedure. What is more, in light of the legislative history and purpose of the third indent of Article 202 EC it is obvious that this provision gives the Council the power to do so. Moreover, there is nothing to preclude the criteria in such a
sui generis
organic decision
(40)from also binding the Council.
79.
I consider that the Parliament cannot validly argue that it is not possible to regard the second comitology decision as
"organic"
in nature on the ground that to do so would infringe the principle of democratic control of the executive power. It is clear that the influence of the Parliament is limited in regard to the adoption of the decisions which the Council bases on the third indent of Article 202 EC. After all, it is merely the
"opinion"
of the Parliament which is sought in the procedure for laying down the
"requirements"
which the Council may establish, acting unanimously, for the exercise of the implementing powers by the Commission. However much it is to be regretted, from the point of view of democratic legitimacy, that the third indent of Article 202 EC has not yet been amended, those drafting of the Treaty clearly chose to give the Parliament merely a modest role in establishing the requirements for the delegation of implementing powers to the Commission.
80.
Control by the Parliament over implementing measures to be taken by the Commission is not, however, completely ruled out. If the basic instrument is adopted in the framework of the co-decision procedure, the Parliament can exercise its prerogatives. Against that background, the Community institutions agreed in 1994 upon the modus vivendi set out in the interinstitutional agreement. That also explains the increased involvement of the Parliament in the second comitology decision in cases in which the basic instrument under which the Commission acquires decision-making powers is adopted in accordance with the procedure under Article 251 EC.
81.
Moreover, the Parliament is not wholly without powers, for one further reason. If the Council has laid down criteria for the choice of comitology procedure, the Parliament can check in advance what procedure is apparent and can take it into account as co-legislator already at the stage of the basic instrument's conception. In that way, the inclusion of selection criteria contributes to an improvement in democratic control.
82.
For the foregoing reasons, I am of the opinion that the second comitology decision is
"organic"
in nature and is, in so far as is here relevant, compatible with the third indent of Article 202 EC. In my view, under that provision the Council is empowered to lay down rules and principles which restrict the number of comitology procedures to be taken into account, and to define criteria for the choice of the committee procedure.
D ─
The legal significance of the criteria in Article 2 of the second comitology decision
83.
Against that background, it is necessary to examine the legal effects of the criteria for the choice of committee procedure in the second comitology decision.
84.
None of the parties concerned dispute that when the Community legislature is choosing a particular type of comitology, it may depart from the criteria in Article 2 of the second comitology decision. Even the Commission accepts in its application that the criteria are non-binding. The arguments in that respect are indeed convincing.
85.
If we look first of all at the wording of Article 2, then the use of the conditional mood in most of the language versions provides an indication that the criteria for
the choice of the management or regulatory procedure are non-binding. (41)
86.
A more decisive argument is that the fifth recital in the preamble to the second comitology decision unambiguously states that the criteria are
"non-binding"
. Although the preamble to a Community act has no binding legal force and cannot be relied on as a ground for derogating from the actual provisions of the act in question,
(42)it is settled law that the preamble is an important factor in the interpretation of the operative part.
(43)
It appears to me that the recital does not differ from the provisions of the decision. There is, after all, a difference in principle between the substantive content of the norm and the degree to which that norm is legally binding. The recital must, moreover, be read in the context of the origin of the second comitology decision. In the original proposal the Commission appeared to be proceeding on the basis of binding criteria,
(44)but the Council did not agree to that the version.
87.
The statement by the Council and the Commission upon the adoption of the second comitology decision also confirms that the criteria of Article 2 of that decision are not intended to be binding. It is stated that the adaptation or amendment of the existing comitology procedures will have to take place on a
"case-by-case"
basis in the context of the normal review of legislation, applying
"inter alia "
the criteria of Article 2.
(45)
As the Council and the Parliament have rightly submitted, it was clearly the intention to adapt the basic instruments to the provisions of the second comitology decision, but it is not necessary for the criteria of Article 2 to be decisive in that regard. Nor does the binding nature of the criteria follow from the wording and scope of the third indent of Article 202 EC.
"Principles and rules"
do not have to be binding in all cases, since non-binding criteria too may, as the Commission has accepted, contribute to the aims of the second comitology decision, which is based on that provision. The Commission's argument, in its reply, that it would have been better overall not to have included any criteria than to include criteria in a statement is not, for those reasons, convincing.
(46)
88.
Whatever the case, it does not alter the fact that the Court must rule on the question whether, and if so, to what extent, the inclusion of the criteria in Article 2 of the second comitology decision has legal consequences. In these proceedings there are two conflicting views. On the one hand, the Council and the Parliament submit that there is no need for a statement of reasons or for a specific statement of reasons for a choice which derogates from those criteria, because the Community legislature is completely free to depart from the criteria in Article 2 when choosing the committee procedure. On the other hand, the Commission submits that it is necessary to provide a specific statement of reasons for such a choice.
89.
I do not agree with the view expressed by the Council and the Parliament.
90.
For a start, it cannot be denied that even indicative norms in an otherwise binding decision may have a degree of legal effect.
(47)
In that sense, the Commission has rightly pointed out that the inclusion in a decision of criteria for the making of a choice undoubtedly has resulted in a degree of
"legal significance"
, just as other aspects of comitology are also brought within the scope of the law.
(48)
91.
The legal significance of the criteria should, moreover, not be determined solely from the wording of Article 2 and the fifth recital in the preamble to the decision. In my view, its significance is also determined by the purpose of the decision as such, which is to achieve greater consistency and predictability in the choice of type of committee. In addition, the simplification of those procedures and the involvement of the Parliament in the implementation of the decision express the desire for increased transparency and an improvement in democratic safeguards. Against that background, the Community legislature must account for the choice of a particular committee procedure. It is also against that background that its choice must be assessed.
92.
As is apparent from the above, the legal framework for the committee procedures reflect advances in the development of the law. The considerable confusion of the 1960s and 1970s has in the meantime been replaced by a Treaty framework under which the committee procedures have been codified and criteria formulated to serve as a guideline for the choice of those procedures. This transformation has taken place under the influence of changing views as to the requirements which a modern-day administration must satisfy. The idea has developed that democratic control is called for also in the implementation phase. By restricting the possibilities for choice and indicating those choices, the costs of decision-making are, moreover, reduced. The improvement of consistency, predictability and transparency and the simplification of the committee procedures have reached, for the moment, their end-point in the second comitology decision. (49)
93.
As a result of the increasing legal framework surrounding committee procedures, the original very wide freedom in matters of policy has been replaced by an adherence of the Community legislature to the
"principles and rules"
provided for in the Treaty. The scope and intensity of that adherence differs, however, according to the subject matter. Most striking is the adherence to a choice of a limited number of committee procedures if the measures implementing a basic instrument are to be carried out by the Commission with the support of a committee. Nowadays it is accepted that in a basic instrument the only procedure which may be adopted for the taking of implementing measures is one of the four procedures listed in the second comitology decision. Likewise, that decision lays down,
inter alia
, binding rules regarding the rules of procedure for each committee and for public access to the documents of the committees.
94.
There has also been a change in regard to the criteria for the choice of procedure for establishing implementing measures. Under the first comitology decision the Council was completely free to decide. As there were no specific criteria, there was no legal necessity for the Community legislature to give a statement of reasons for the choice of a particular committee procedure. However, with the establishment of the second comitology decision, that practice is now at an end.
95.
First of all, it is established that the Council is free to decide whether or not to apply the criteria in Article 2 for the choice of the management procedure, the regulatory procedure or the advisory procedure. Those criteria are non-binding.
96.
The criteria are, however, not completely free of obligation. There is thus a potential tension between the purpose of the second comitology decision and the non-binding nature of the selection criteria. The Commission has correctly noted that under the scheme of the second comitology decision the Community legislature can therefore no longer act as under the first comitology decision, which did not contain any criteria for the choice of procedure. The second comitology decision forces the legislature to account for its decision not to follow the criteria. That accounting takes place in the statement of reasons for its decision.
97.
If the legislature did not have to give any reasons at all for its choice of a particular committee procedure derogating from those criteria, that would deprive Article 2 of the decision of any substance. That view is fully in accordance with my earlier comments regarding the development towards greater transparency and consistency in the involvement of committees. The criteria also aim outwardly to offer a firm footing for the choice of a particular committee procedure in the basic legislation. The fact that they are laid down in a binding decision which is
"organic"
in nature gives rise to certain expectations in that regard. Moreover, the criteria fulfil the obligation laid down in the third indent of Article 202 EC to lay down rules in advance. A departure from these criteria ─ non-binding norms which are moreover essential for the purposes of an otherwise binding decision ─ cannot be interpreted otherwise than restrictively.
98.
The reduction in the number of possible committee procedures and the simplification of those procedures in accordance with the type of decision-making increases the effect which must be attributed to those selection criteria. The more a procedure is attuned to the type of the decision-making in which it is applied, the more the choice of another procedure becomes anomalous. A thorough statement of reasons for it becomes all the more necessary. In point 81 of this Opinion I have already stated that the selection criteria also place the Parliament in a better position to fulfil its role as co-legislator. For that reason too, the criteria should be handled carefully.
99.
The duty to give a statement of reasons for a choice which departs from those criteria is, moreover, in accordance with the case-law in which the Court has made the Council's power of delegation in the area of implementing measures subject to a framework of conditions. By way of illustration, I would point to the judgment in Case 16/88
Commission
v
Council
, in which the Court held that in the
"specific cases"
in which the Council may itself exercise directly implementing powers the Council
"must state in detail the grounds"
for such a decision.
(50)
The Court clearly assumes that in authorised, exceptional cases there is a qualified duty to state reasons. For the reasons stated above, there is a similar obligation where the Council opts for a type of committee procedure that is not in line with the criteria in Article 2 of the second comitology decision.
100.
If it must be assumed that the selection criteria in Article 2 of the decision produce a degree of legal effect, as a result of which there is at least an obligation to state reasons for a choice which derogates from them, that statement of reasons must be such as is capable of, if only marginal, review by the Community court. That characterises the obligation to state reasons still further, in the sense that derogating choices cannot be covered by standard formulas. The statement of reasons must cover the specific factual or functional reasons for the derogation. If that were not so, the derogating choices would be removed from the control of the Community court.
101.
Only if the requirement for a statement of reasons is satisfied, can the Council lawfully depart from the criteria laid down in Article 2 of the decision. If that requirement is not adequately satisfied, then, in my view, the Court should annul the arrangement in question. That is the consequence of a breach of such an essential procedural requirement.
(51)
102.
At the hearing the Council questioned whether such an obligation to state reasons must follow from the general provisions of Article 253 EC, or whether it concerns a specific obligation which must be inferred from Article 2 of the second comitology decision, possibly in conjunction with Article 202 EC.
103.
In my opinion, it is a specific obligation which can nevertheless be inferred from the general duty to state reasons under Article 253 EC. It is settled law that the statement of reasons under that provision must be adapted to the measure at issue and disclose in a clear and unequivocal fashion the reasons of the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to carry out its review. The question whether the statement of reasons is sound must be assessed not only on the basis of its content but also of the context of the decision and of all the legal rules governing the matter in question. Other factors which the Court takes into account in that connection are the circumstances of the case, the content of the decision, the nature of the pleas put forward and the interest which the persons concerned may have in securing a more detailed interpretation.
(52)
104.
The requirement for a sound statement of reasons in accordance with Article 253 EC is thus flexible and the substance of that obligation may vary according to the circumstances of the case.
Applied to the present situation, it is obvious that the more the actual choice of committee procedure diverges from the choice indicated by Article 2 of the second comitology decision, the higher the requirements which the statement of reasons must satisfy.
105.
In that connection it is necessary to reject the argument that the criteria have increased transparency because they nevertheless in any event provide a guideline for the choice of procedure for the adoption of implementing measures.
There is transparency only if the criteria are followed in practice.
In my view, if the guidelines are applied arbitrarily, they do not provide a material contribution to that objective of the second comitology decision.
106.
The other arguments submitted by the Parliament and the Council in order to challenge the Commission's view must also be rejected.
107.
The Parliament's submission that the Commission's view represents a paradox because, on the one hand, it accepts that the criteria are not legally binding but, on the other, claims that a failure by the Community legislature to comply with the criteria must result in an annulment, fails to address the special function of the requirement for a statement of reasons.
Although the selection criteria set out in Article 2 of the second comitology decision are not mandatory, in the sense that the Community legislature may in fact depart from them, the legislature must nevertheless provide a proper statement of reasons for doing so.
The sanction for breach of that legal obligation is annulment.
108.
The Council submits that if it had in fact intended there to be a specific obligation to state reasons in cases in which the criteria in Article 2 of the second comitology decision had not been applied, it would have stated so in the decision.
Influenced by the case-law of the Court, a specific obligation of that kind is to be found in Article 1 of the second comitology decision for cases where the Council exercises implementing powers itself.
However, in my view, the obligation to state reasons and the requirements to be satisfied in that regard are determined by the subject matter and nature of the measure for which a statement of reasons must be given.
There is no requirement that the obligation must be specifically set out in a Community decision.
Its basis is found in Article 253 EC.
This is not affected by the fact that in Article 1 of the second comitology decision the Council codified the Court's case law to the effect that there is an enhanced obligation to state reasons where the Council exercises implementing powers itself directly.
109.
Consequently it is necessary to examine the Council's argument that the criteria in Article 2 are so vague that it is difficult to conceive of a proper statement of reasons.
If that is intended to be a serious argument on the part of the Council, it would disqualify the very decision it had adopted, by virtue of its non-binding and unmanageable nature.
The argument is also erroneous.
Notwithstanding the use of terms such as
"with substantial budgetary implications"
or
"essential provisions of basic instruments"
, the differences in the situations for which the various committee procedures are intended are clear.
That is not disputed in the present case.
Where implementing measures primarily concern the administration of programmes, the management procedure or, possibly, the advisory procedure are applicable.
If the implementing measures occupy the transitional zone between implementation and regulation, the regulatory procedure is the most appropriate.
It is precisely to be expected of the Council, the institution which laid down the criteria, and which has the exclusive power to do so, that it should explain, by reference to these properly selected rules, why it has opted for an obviously derogating choice.
(53)
110.
I share the Commission's view that the argument which the Parliament bases on the judgment in
Parliament
v
Council
in order to show that a breach of Article 2 of the second comitology decision cannot in any event lead to the annulment of the LIFE-regulation is not compelling.
In that case, a Commission proposal to amend the TACIS programme for aid to the former Soviet Union and some neighbouring countries provided for a management procedure within the meaning of procedure II(b) of Decision 87/373.
The Council ultimately opted for a regulatory procedure within the meaning of procedure III(a) of the first comitology decision.
The TACIS regulation concerned was based on provisions of the Treaty which gave the Parliament a right to be consulted.
The Court held that the overall balance of the powers allocated to the Commission and the Council was not decisively affected by the choice between the two types of committee at issue, so that the amendment to the Commission proposal was not substantial and it was accordingly not necessary to re-consult the Parliament.
(54)
111.
The present case does not, however, concern an alleged defect in the legislative procedure.
The question here is whether a breach of the obligation to state reasons constitutes breach of an essential procedural requirement which can lead to nullity and, and, in my opinion, the answer to that question is that it can.
At the material time in Case C-417/93, such a breach could not have been in issue, because the first comitology decision did not contain selection criteria for the procedure for implementing measures.
E ─
Is the choice of committee procedure in the LIFE-regulation in accordance with the criteria of the second comitology decision and, if not, is the obligation to state reasons satisfied?
112.
Having regard to the foregoing, it is therefore necessary to examine whether the Community legislature, when adopting the LIFE-regulation, chose the committee procedure in accordance with the non-binding selection criteria in Article 2 of the second comitology decision.
If it did not, the question then arises as to whether the obligation to state reasons for the derogating choice has been satisfied.
113.
In that regard, the background to the committee procedure in the LIFE-regulation will first be considered in more detail.
114.
At issue here is the delegation of implementing powers with implications for the Community budget.
The LIFE-regulation contains procedural rules relating to the grant of financial aid to projects which contribute to the implementation and development of the Community environment policy and of environmental legislation.
The Community legislature has assigned a central role to the Commission in connection with the award of the funds.
115.
The legality of the delegation to the Commission of authority to take implementing measures with budgetary implications is not at issue.
In
Commission
v
Council
the Court held that under the third indent of Article 2 EC the Council is entitled to authorise the Commission to take individual decisions where those decisions have financial implications.
(55)
116.
The LIFE-regulation lays down the financial means for the third phase, which runs from 31 December 1999 to 31 December 2004.
For the budgetary authority, that establishment of those means in the budgetary procedure is in principle certain.
In Article 8 the financial framework for the implementation of the third phase is specifically set at EUR 640 million.
The same article provides for the budgetary resources to be entered into the general budget of the European Union.
The budgetary authority authorises the amount of annual appropriations available for each budgetary year.
(56)
117.
The full LIFE-programme consists of three thematic components: LIFE-nature (Article 3), LIFE-environment (Article 4) and LIFE-third countries (Article 5), which each have specific objectives.
Article 2 contains the general criteria; thereafter the regulation indicates in regard to each component what specific criteria are to be satisfied by projects if they are to be eligible for support.
There is also an indication, in regard to each component, of the form of financial support, the maximum percentage rate of finance and whether any own contribution is expected of the beneficiary.
118.
The committee procedure plays a role in the selection of projects eligible for Community financing.
That procedure is broadly as follows:
─
Proposals for projects to be financed are forwarded to the Commission by the Member States.
The Commission sends the Member States a 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) .
(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 alre ady 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 i t 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 Assessm ent 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 an d 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 9/58Meroni
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
vCouncil
, 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-240/90Germany
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
Counci
l [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 37/71Jamet
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.