61995CC0345_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
A - Introduction
1 The case which now comes before the Court by way of an action brought by the French Republic (hereinafter the `applicant') is the latest in a line of litigation concerning the seat of the European Parliament (1) (hereinafter the `defendant').
The action is directed against the defendant's decision laying down the calendar of sessions for 1996. (2)
Unlike in many previous years and occasioned by an amendment to the original proposal of the Conference of Presidents, (3) only one five-day plenary session was fixed for October 1996.
Since traditionally no sessions of the Parliament are held in August, the number of five-day plenary sessions to be duly held in Strasbourg was thus reduced for 1996 to 11.
2 The applicant regards the fixing of this number of sessions as infringing the decision by representatives of governments of the Member States on the location of the seats of the institutions and of certain bodies and departments of the European Communities, (4) which was taken in Edinburgh on 12 December 1992 (hereinafter the `Edinburgh Decision').
Article 1 of the Edinburgh Decision provides, inter alia, that `the European Parliament shall have its seat in Strasbourg where the twelve periods of monthly plenary sessions, including the budget session, shall be held.' (5)
3 The applicant regards as a further ground of action the corresponding increase in `additional plenary sessions' in Brussels to eight sessions of two half-days each. Certainly, the Edinburgh Decision does provide that `additional plenary sessions shall be held in Brussels.' None the less, the applicant regards the reduction of five-day plenary sessions in Strasbourg and the simultaneous increase in additional plenary sessions in Brussels as calling in question the establishment as a matter of principle of the seat of the European Parliament in Strasbourg. (6)
The alleged illegality of the contested Parliament decision is revised by the applicant under the head of claim of lack of competence.
Furthermore, the contested decision is said to be unlawful for infringement of essential formal requirements.
The President of the Parliament ought to have discerned the unlawful nature of amendment No 9, whose adoption led to the reduction to 11 of the 12 five-day plenary sessions proposed by the Conference of Presidents and, consequently, under Article 125 of the Rules of Procedure of the Parliament, should have prevented the amendment from proceeding.
Finally, the applicant takes the view that the contested decision is vitiated by inadequate reasoning which by itself entails illegality.
4 For its part, the defendant is of the view that the contested decision is in all respects lawful.
It contends in that connection that the Edinburgh Decision itself, if taken literally, is unlawful.
However, the wording of the Edinburgh Decision allows the possibility of an interpretation in conformity with the Treaty.
In no event, however, may the contested Parliament decision be unlawful on the ground of any alleged incompatibility with the Edinburgh Decision.
5 The Grand Duchy of Luxembourg was granted leave to intervene in support of the applicant.
6 The applicant claims that the Court should:
- annul the decision of the European Parliament of 20 September 1995 laying down the working calendar;
- order the defendant to pay the costs.
7 The defendant contends that the Court should:
- dismiss the action;
- order the applicant to pay the costs.
8 The parties' submissions will be reverted to in the context of the legal appraisal.
B - Opinion
I -
Admissibility
9 The defendant raised no express objection of inadmissibility.
None the less, the Court is bound to examine of its own motion the admissibility of the action. (7)
10 Under Article 173 of the EC Treaty the Court is to review the `acts of the European Parliament intended to produce legal effects vis-à-vis third parties'.
There could therefore be a problem of admissibility if the contested decision did not produce `legal effects vis-à-vis third parties.'
That ground of inadmissibility, as formulated in those terms, has hitherto been consistently applied by the Court (8) in regard to acts of the European Parliament amenable to review.
This criterion was, however, expressly included in Article 173 of the EC Treaty only on the adjustment and amendment of the Treaty by the Maastricht Treaty.
11 It might therefore be wondered whether the admissibility requirement is to be defined differently than prior to the Treaty amendment.
The fact that it was sought to strengthen the internal autonomy of the institution could militate in favour of a stricter construction of the criterion of admissibility.
On the other hand, it might be that the sole purpose of the Treaty amendment was simply to codify the earlier case-law (9) on determination and application of the admissibility criterion.
12 The similarity of the formulations militates in my view in favour of the latter interpretation.
In the interests of a comprehensive legal protection the bars to admissibility should, in my view, not be placed too high. That need not undermine the internal autonomy of the institution, since according to settled case-law (10) it is only at the stage of the examination of the merits that there is a review of the limits within which an act of the institution must be deemed to be a measure of internal organization, thus escaping annulment by the Court of Justice in annulment proceedings.
A generous application of the admissibility criteria thus in no way prejudges the well-foundedness of the contested Parliament decision.
13 This view of the matter is borne out by the Court's case-law on the admissibility of annulment proceedings against acts of the European Parliament.
In the judgment in Weber (11) it is, for example, stated with reference to earlier case-law that:
`As regards the admissibility of the claim for annulment, the Court observes that the European Economic Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter and with the Treaty, which established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions ...'. (12)
14 On the limits of the review of legality by the Court of Justice thus circumscribed, it further states that measures which `relate only to the internal organization of the work of the Parliament' cannot be challenged in an action for annulment. (13)
The Court describes these as follows:
`That class of measures includes measures of the Parliament which either do not have legal effects or have legal effects only within the Parliament as regards the organization of its work and are subject to review procedures laid down in its Rules of Procedure.' (14)
15 In reply to a question at the hearing as to the actual legal effects of the contested decision, the representative of the applicant pointed both to the legally binding obligation to hold a specific plenary session at a specified place, on the one hand, and to the appreciable factual consequences entailed by the presence of members of the institution at a given place, on the other.
16 At first sight the working calendar of an institution must be deemed to be a measure of its internal organization.
However, my view of the matter is that the legally binding obligation to hold plenary sessions at a specified time at a specified place, or unexpectedly not to do so, is none the less capable of producing external effects.
Quite irrespective of the right and duty of members of the institution to be present at the specified place together with the requisite administrative infrastructure, in order to perform their Parliamentary duties, and regardless of the members' claims immediately deriving therefrom against the institution, the necessary infrastructure preparations also give rise indirectly to obligations to third parties.
17 If one departs from this concrete view of the matter and contemplates it on a more abstract plain, it appears that the applicant regards the decision on the seat as having been called in question by the contested decision, that is to say as an interference in a competence which, according to the Treaty, is reserved to the `governments of the Member States'. (15)
18 Accordingly, the contested decision is in my view capable of creating legal effects vis-à-vis third parties. A distinct question is whether the defendant acted within its competence; a reply to that question must necessarily be reserved to the examination of the merits.
19 Before I turn to an examination of the well-foundedness of the action I would, however, like to touch on a further aspect of admissibility.
I have in mind the problem area which may be described as the `general interest in bringing an action'.
20 The applicant's claim is directed, as to its practical consequences, against the fact that the Parliament refrained from holding a five-day plenary session in Strasbourg from 7 to 11 October 1996, contrary to the original proposal.
Should the contested decision turn out to be unlawful that actual session can no longer take place.
This circumstance cannot, however, affect the admissibility of the action.
From a formal point of view the Member States are privileged applicants who have neither to show any cause of action nor legal interest to be protected. (16)
It must also be remembered that the legal scope of the claim goes well beyond a mere assessment concerning the holding of the plenary session in question. The solution of the dispute involves a clarification as a matter of principle of the limits of the autonomy enjoyed by the defendant for the purposes of organizing its work. The considerable extent of the dispute, which goes beyond the working calendar for 1996, becomes apparent when it is realized that the Court currently has before it another action brought by the applicant against the defendant seeking the annulment of the Parliament's decision laying down the working calendar for 1997. (17)
21 The action must therefore be regarded as being entirely admissible.
II - Substance
1. Lack of competence
22 In order to demonstrate the illegality of the contested decision the applicant raises several pleas.
The first and most important is the defendant's alleged lack of competence.
The Parliament's decision is said to conflict with the Edinburgh Decision since henceforth 11 five-day plenary sessions in Strasbourg have been decided upon, whilst in the Edinburgh Decision 12 plenary sessions were expressly mentioned.
By thus departing from the mandatory provisions of the Edinburgh Decision the defendant is said to have acted ultra vires.
In the Edinburgh Decision the Member States fulfilled their duty under the Treaty to establish the seats of the institutions. (18)
The Edinburgh Decision cannot be called in question.
Such a possibility is excluded if only for procedural reasons. Decisions adopted pursuant to Article 216 of the Treaty by the representatives of the governments of the Member States are sui generis acts which are not capable of being contested either in annulment proceedings under Article 173 of the Treaty or by way of an objection of inapplicability under Article 184 of the EC Treaty.
This view of the matter, it is said, is in accordance with the Court's case-law.
However, the applicant concedes that the Edinburgh Decision may be judicially interpreted.
23 The defendant takes the view that the contested decision was adopted within the limits of its competences.
The legal dispute does not turn, after all, on determination of the seat but on the Parliament's right of internal self-autonomy.
The contested decision cannot therefore be regarded as an infringement of the Edinburgh Decision.
In so far as the Edinburgh Decision, on a literal construction, is to provide the yardstick for assessing the contested decision, the defendant takes the view that the Edinburgh Decision is for its part unlawful.
In fact, immediately after the Edinburgh Decision was adopted, it expressed this view of the matter on 16 December 1992 in the form of a resolution. (19)
24 In view of the consequences of that alleged illegality the defendant considers that the Edinburgh Decision should be examined as an incidental issue in the context of this legal dispute.
That examination could result in a finding that the Edinburgh Decision is invalid, at any rate in part, in so far as it unlawfully curtails the defendant's right of self-autonomy in matters of organization guaranteed by the Treaty. (20)
None the less, the defendant considers it possible that the Edinburgh Decision may be interpreted in such a manner as to be in conformity with the Treaty.
25 The Edinburgh Decision, regardless of the manner in which it is in the end to be construed, is decisive for the assessment of the legality of the contested decision. Since the views of the parties range from intangibility of the decision to its partial invalidity the legal nature and content of the decision must first be clarified.
26 The parties agree that a decision by representatives of the governments of the Member States within the meaning of Article 216 of the EC Treaty is not in principle an act open to challenge under Article 173 of the Treaty.
The Court of Justice so held in Joined Cases C-181/91 and C-248/91 (21) in which it stated that:
`It is clear from the wording of that provision that acts adopted by representatives of the Member States acting, not in their capacity as members of the Council, but as representatives of their governments, and thus collectively exercising the powers of the Member States, are not subject to judicial review by the Court.' (22)
27 Similarly clear is the wording of Article 184 of the Treaty which enables regulations to be examined as an ancillary issue, with the result in a proper case that they may be declared inapplicable.
28 In my view, that does not, however, mean that acts adopted under the Treaty by representatives of the governments of the Member States escape all review of legality.
The European Community is governed by the rule of law. (23)
In that connection the Court is required under Article 164 of the Treaty to ensure observance of the law in the interpretation and application of the Treaty. Article 216 of the EC Treaty - behind which stands the `constitutive legislature of the Community', that is to say the Member States - confers on the governments of the Member States a clearly defined mandate.
In my view it is a fundamental requirement of the rule of law that observance of the limits of that mandate should not as a matter of principle be exempt from judicial review.
29 In that connection I cannot share the view expressed by the parties that the appointment of Commissioners or members of the Court (24) can never be judicially reviewed. It is conceivable that in the appointment of Commissioners no national of one or other Member State is appointed, or a national of a non-Member State is appointed or the period of office is set at fewer than five years.
Comparable situations are conceivable in the case of the appointment of members of the Court.
It would be to leave the door wide open to manipulation if such decisions in conflict with Treaty provisions were irreversible. (25)
30 It is not in doubt that a decision of representatives of governments of the Member States under Article 216 of the Treaty is not an act of the Community institutions as described, for example, in Article 189 of the EC Treaty.
I also concede that such a decision ranks higher than those acts.
This factor is appropriately recognized by the fact that they are exempt from review under Articles 173 and 184 of the Treaty which means that their continued existence is far more secure than decisions adopted under secondary Community law.
None the less, such a decision must observe the limits laid down in the Treaty if it is not to be open to a finding of illegality.
In my view the question can only be as to the procedural consequences arising out of the potential illegality of such a decision.
31 However, preference is to be given to an interpretation in conformity with the Treaty over any other solution. Such an approach appears to me to be straightforward and is also considered to be a possibility by all the parties to the present proceedings.
Therefore, it falls to examine whether the Edinburgh Decision is capable of an interpretation in conformity with the Treaty.
Manifestly, the Edinburgh Decision deals essentially with the fixing of 12 plenary sessions to be held in Strasbourg.
However, this purely arithmetical view only provides an abbreviated view of the problems.
The point of departure must be the decision in principle to establish the seat of the Parliament in Strasbourg.
The question then arises to what extent the decision on the seat requires a specified number of plenary sessions to be held in that place.
Finally, in that context the significance of the expressly mentioned budget session must be examined.
Following on from an evaluation of the interrelationship between seat, plenary sessions and the budget session, it will be necessary to analyse the nature of `additional plenary sessions'.
32 The legal basis of the Edinburgh Decision is to be found in Article 216 of the EC Treaty, Article 77 of the ECSC Treaty and Article 189 of the EAEC Treaty. (26)
The competence conferred thereby is not unlimited.
Its limits are to be found both in Article 142 of the EC Treaty, Article 25 of the ECSC Treaty and Article 112 of the EAEC Treaty, (27) which codify the Parliament's internal power of organization, and in Article 5 of the EC Treaty, the obligation on Member States to cooperate.
33 The natural tension between these provisions already came to the fore in the earlier disputes concerning the seat of the Parliament (28) and was assessed in the judgments delivered in those proceedings.
Although those earlier judgments were given only concerning the provisional determination of the seats of the institutions the principles established in those cases may also serve as a basis for the solution of the present case, since the provisional determination of the seat was made in exercise of the competence under Article 216 of the Treaty. Moreover, the Court did not deem the provisional nature of the decisions to detract in any way from their binding effect. (29)
In accordance with this case-law, the point of departure as a matter of principle is that in taking decisions, the governments of the Member States must respect the Parliament's power to regulate its own internal organization.
`They must ensure that such decisions do not impede the due functioning of the Parliament.' (30)
34 In purely abstract terms the establishment of an institution's future calendar of work doubtless comes within the internal organization of the institution.
That is otherwise when seen against the background of the Edinburgh Decision in which the place and number of specified sessions are laid down.
The fixing of the seat of the Parliament in Strasbourg under that decision does not give rise to any reservations in law.
It is only because several places of work are maintained that the determination of the seat requires to be further specified. In accordance with the Parliament's previous practice based on the decision of the representatives of the Member States of 8 April 1965, (31) as regards the organization of its work, the governments of the Member States defined the seat of the European Parliament as the place in which `the 12 periods of monthly plenary sessions, including the budget session, shall be held.'
35 The question arises, then, whether this formulation in fact sought to fix the number of sessions and the agenda of one of these sessions, or whether the terms used should be construed as meaning that the seat of the Parliament is characterized by the fact that plenary sessions are regularly held in that place.
36 In order to assess this question appropriately, it must be borne in mind that over the course of the years the Parliament has developed a cyclical method of working in order to perform its tasks.
The defendant has given a very clear and detailed account of the development of the Parliament's method of working up to and including the current situation.
Sessions of the Parliament are held in a sequence which alternates between weeks reserved for the political groups, weeks of plenary sessions lasting five days in principle, (32) weeks for committee meetings and a week of a combined nature.
37 Traditionally, no sessions are held in the month of August.
Moreover, in election years no plenary sessions are held in the month of June.
The fact that, none the less, the Parliament has in the past frequently achieved a total of 12 plenary weeks per year may be accounted for by the fact that in such years two plenary weeks are arranged for the month of October.
38 As regards solely the number of plenary weeks held annually, the practice of approximately the past 10 years may be presented as follows:
In the election years of 1984 and 1989 11 plenary sessions were held; in the 1994 election year only 10.
In the years 1985-1998, 1990 and 1991 there were in each year 12 plenary weeks, two of them in October.
In 1992 and 1993 only 11 plenary weeks were held since in the October of those years there was only one plenary week, which was also the case in the 1994 election year.
In the calendar for 1995 provision was made finally for 12 plenary weeks again.
39 In interpreting the Edinburgh Decision, which is a political compromise, regard must be had first to the wording of the agreement.
It makes reference to `the 12 periods of monthly plenary sessions' (33) and does not for example state that `the number of the plenary sessions to be held there is set at 12.'
The first formulation which I have cited indicates that the representatives of the governments of the Member States were referring to an existing practice in the Parliament's method of working. That view of the matter is corroborated by the remaining provisions.
Both the holding of additional periods of plenary sessions and committee meetings in Brussels are in accordance with previous practice which, moreover, was upheld in the Court's earlier case-law on the seat of the Parliament. (34)
40 Against the background of the practice outlined above, the figure 12 for the plenary sessions to be held in the course of a year is by no means to be construed as an absolute figure.
Were one none the less to take the formulation literally, the next obstacle to be surmounted would be the term `monthly'.
It may be questioned whether the representatives of the governments of Member States actually wished to oblige the Parliament to meet in August as well and in the month of June in election years.
In my view that is very unlikely.
41 Even if one were to adopt the point of view put forward by the applicant at the hearing to the effect that the figure 12 could be achieved by holding a second plenary session in October, there is no support for that view in the wording of the decision, which makes express mention of `monthly' plenary sessions.
Nor is the regularly recurring special case of election years reflected in the wording of the decision.
For those reasons, I am of the view that the terms in which the Edinburgh Decision is couched are not to be taken literally but are to be interpreted flexibly, regard being had to previous practice in the organization of the Parliament's work and the requirements arising therefrom.
The figure 12 is therefore to be viewed neither as a minimum requirement nor as an upper ceiling.
42 Viewed from this angle the express mention made of the budget session also appears in a particular light.
As the Parliament's representative credibly explained at the hearing, at most secondary importance is attached to the fixing of a date for the budget session.
Even if in the past the budget was traditionally debated during one of the October sessions, the duration and extent of the debates in no way justifies a plenary session week being defined as a `budget session'.
In light of the Community's financial perspectives decided at the Council meeting in Edinburgh and valid until 1999, the debate on the budget in the Parliament has lost further significance.
Since then, only a half-day out of a five-day plenary session has been set aside for debating the budget.
43 If one considers the practice of the Parliament, (35) statistically itemized according to subject-matter for past years, it becomes clear that even before 1992 there was certainly no clear predominance of budget resolutions in the course of one of the October sessions.
44 Although the express mention made of the budget session in the Edinburgh Decision may have some justification in view of the fact that it is a naturally recurring event, as is the date of the session in the course of a calendar year, (36) there is no correlation with the actual importance of the session.
On a proper construction, the Edinburgh Decision therefore leaves scope for flexibility in the establishment of the Parliament's programme of work. Consequently, the determination of the seat is given concrete form in the decision when it states that the regular plenary weeks are to be held in that place, without however laying down in a binding manner the number, the timetable or the purpose of those periods of sessions.
45 A limit to this relative freedom of action is to be drawn at the point where the decision in principle concerning the seat, including definition of the seat as the place where the regular plenary weeks are held, might be called in question.
It must be assumed that the focal point of the plenary activity is linked with Strasbourg. The functioning of the institution must be organized in such a way that Strasbourg is the focus of plenary activity.
46 The applicant is therefore right to assert that the Edinburgh Decision imposed on the defendant certain directions concerning the organization of its work.
These mandatory guidelines may also be regarded as a minimum requirement justified by the fact that the place of the institution's seat needs to be particularly specified owing to the maintenance of several places of work.
47 The applicant is also of the view that the decision in principle on the seat is called in question not only by the reduction in the defendant's calendar of work for 1996 of plenary weeks from 12 to 11 but also by the fact that the number of additional plenary sessions in Brussels was correspondingly increased.
48 An examination of earlier practice in the fixing of additional plenary sessions in Brussels makes it clear that by arranging for eight sessions of two half-days the number of additional plenary sessions hitherto fixed in the course of a year is exceeded.
On the other hand it should be borne in mind that the absolute duration of the session, calculated in units of half a day, corresponds to the additional plenary sessions held in the course of 1995 (37) and is relatively insignificant by comparison to the plenary weeks held in Strasbourg. (38)
49 For the purposes of assessing the lawfulness of fixing additional plenary sessions regard must also be had, in this context, first, to the wording of the Edinburgh Decision.
There it is simply stated: `The periods of additional plenary sessions shall be held in Brussels.' This formulation does not allow any conclusion to be drawn as to any numerical restriction of possible additional plenary sessions.
50 It should be pointed out that from a purely terminological point of view there is no question, unlike in the second paragraph of Article 139 of the Treaty, of `extraordinary sessions'.
The Parliament may meet in `extraordinary session', as described in that article, at the request of a majority of its members or at the request of the Council or of the Commission.
As the defendant's representative confirmed at the hearing, use is scarcely ever made of this provision.
51 Nor is there any indication to be had from the wording of the Edinburgh Decision that, as required by the judgment in France v Parliament, additional plenary sessions should be designated as being of an exceptional nature (39) or as special plenary sessions. (40)
52 The term `additional plenary sessions' therefore implies, in my view, that these must be plenary sessions held outside the regularly held plenary weeks.
This view of the matter finds support in the practice adopted under the currency of the decision of 8 April 1965 on the provisional location of certain institutions. (41)
That the representatives of the governments of the Member States were guided by previous practice in drawing up the Edinburgh Decision has already been demonstrated.
53 Substantive grounds to do with the proper functioning of the Parliament also militate in favour of construing additional plenary sessions as plenary sessions outside the regularly held plenary weeks.
The maintenance of three working places for the Parliament by the Edinburgh Decision and the express designation of Brussels as the meeting place for committees means that the holding of shorter plenary sessions in Brussels, the place in which the committees meet and the political groups are located, (42) is the obvious if not indeed the only practicable solution.
54 A glance at the 1996 calendar of meetings at issue shows that all eight short plenary sessions in Brussels are fixed in weeks in which meetings of committees and political groups had previously been arranged.
55 It may, in my view, be concluded from all the foregoing that no numerical limitation of `additional plenary sessions' in Brussels may be inferred from the wording and meaning of the Edinburgh Decision.
The sole yardstick is observance of the principle that the regular plenary weeks must take place in Strasbourg.
Under this view of the matter the Edinburgh Decision must be regarded as being in conformity with the Treaty and, secondly, the contested decision must be deemed to be consistent with the Edinburgh Decision.
2. Infringement of essential formal requirements
(a) Duties of the President of the Parliament under Article 125 of the Rules of Procedure of the European Parliament
56 The applicant submits that the President of the Parliament ought to have recognized amendment No 9 to the contested decision as being unlawful and should have prevented it from proceeding under Article 125(3) of the Rules of Procedure of the European Parliament. (43)
The grounds of inadmissibility in the case of amendments set out in Article 125(1) are, it is submitted, not exhaustive. In any event a Treaty infringement would constitute a substantive ground of inadmissibility.
57 The defendant, on the other hand, takes the view that only manifestly inadmissible amendments may be prevented by the President under Article 125(3) of the Rules of Procedure.
Since the defendant none the less proceeds on the assumption that the contested decision is lawful and that amendment No 9 was therefore by no means manifestly inadmissible, the President of the Parliament was not at liberty to prevent the amendment from being moved.
58 To the extent to which it may be assumed on the basis of the foregoing considerations that the contested decision is substantively lawful the following considerations are purely hypothetical.
59 Amendment No 9 at issue here is worded as follows: `October, week 41.
Delete part session from 7th to 11th.' The acceptance of this amendment essentially led to the content complained of by the applicant.
On the supposition that the fixing of only 11 plenary weeks in the calendar of meetings for 1996 was unlawful, the question arises, then, whether the President of the Parliament ought to have rejected the amendment as inadmissible.
60 Article 125(3) of the Rules of Procedure states: `The President shall decide whether amendments are admissible.'
The grounds giving rise to inadmissibility of an amendment are enumerated in paragraph 1 of the provision in the following terms:
`No amendment shall be admissible if:
(a) it does not directly relate to the text which it seeks to amend;
(b) it seeks to delete or replace the whole of a text;
(c) where it seeks to delete part of a text, its purpose can be achieved by holding a split vote pursuant to Rule 116; ...;
(d) it seeks to amend more than one of the individual articles or paragraphs of the text to which it relates. This provision shall not apply to compromise amendments;
(c) it is established that the wording in at least one of the official languages of the text it is sought to amend does not call for amendment; ...'.
61 Under Article 125(2) an amendment lapses `if it is inconsistent with decisions previously taken on the text during the same vote.'
62 In the interpretations of Article 125 adopted pursuant to Article 162 of the Rules of Procedure it is stated: `The President's decision pursuant to paragraph 3 concerning the admissibility of amendments is not based exclusively on the provisions of paragraphs 1 and 2 of this rule but on the provisions of the rules in general.' (44)
63 It is apparent from a reading of the grounds of inadmissibility that they concern predominantly formal assessment criteria.
Even with the additional application of the interpretations on Article 125, which refer to the Rules of Procedure in their entirety, there is no authority for the proposition that the President of the Parliament is to conduct a general review of legality.
As to the meaning and purpose of the President's powers of examination under Article 125(3) of the Rules of Procedure, I consider that these do not extend to a comprehensive legal review.
64 A consideration of the tasks of the President of the Parliament as defined in the Rules of Procedure in Article 19 shows that the functions conferred on him are primarily those relating to order and organization.
Article 19(1) and (2) provide for example:
`1. The President shall direct all the activities of Parliament and its bodies under the conditions laid down in these rules.
He shall enjoy all the powers necessary to preside over the proceedings of Parliament and to ensure that they are properly conducted.
2. The duties of the President shall be to open, suspend and close sittings; to ensure observance of these rules, maintain order, call upon speakers, close debates, put matters to the vote and announce the results of votes; and to refer to committees any communications that concern them.'
65 Paragraph 3 of that provision militates, in my view, against the conferring of any substantive power of appraisal by the President.
It provides:
`3. The President may speak in a debate only to sum up or to call speakers to order.
Should he wish to take part in a debate, he shall vacate the Chair and shall not reoccupy it until the debate is over.'
66 Under Article 19(4) the President has representational tasks which are not of significance in the present context.
67 Article 125(1) of the Rules of Procedure clearly defines the criteria on the basis of which an amendment may be examined for its admissibility.
Even the reference in general terms to the provisions of the Rules of Procedure permits no inference to be drawn as to a general power or review on the part of the President of the Parliament.
The Rules of Procedure are a collection of organizational provisions of the Parliament which are not intended or apt to provide a yardstick for a substantive legal appraisal of the acts of the institution.
In my view any such power of review would be hardly consistent with the sovereignty of Parliament.
68 Another view of the matter could be taken only under circumstances where one proceeds on the basis of a manifestly unlawful act.
The question arises, then, whether the President of the institution is to be compelled to close his eyes to the substantive illegality of an act in order to rest content with a formal examination.
Since the amendment at issue cannot be said to manifest illegality on the face of it, for the purposes of the present proceedings this question does not need to be examined further.
What is to be noted is that a formal right of examination in order to ensure compliance with the Rules of Procedure is conferred on the President of the Parliament.
Since no provision of the Rules of Procedure has been shown to have been infringed, nor may such infringement be presumed, it may be stated that the President of the Parliament had no cause to prevent the contested amendment No 9 from proceeding on the ground of inadmissibility under Article 125(3) of the Rules of Procedure.
(b) Inadequacy of statement of reasons
69 The third and final plea raised by the applicant goes to infringement of essential formal requirements in the form of an inadequate statement of reasons.
It is not disputed that the decision determining the calendar of meetings 1996 is not accompanied by a statement of reasons.
70 The defendant is nevertheless of the opinion that the decision does not require to be accompanied by a statement of reasons.
First, it is an act of its internal organization which only under exceptional circumstances is capable of infringing rights of third parties.
Secondly, the work calendar of an institution is comprehensible on the face of it.
The reasoning for a decision fixing the calendar of the periods of sessions is so evident that a written statement of reasons is supererogatory.
71 Article 190 of the EC Treaty imposes an obligation to provide a statement of reasons expressly in the case of regulations, directives and decisions.
These are the classic forms of legislative action of the Community legislature.
They are characterized by the fact that they are intended to produce binding effects.
The contested Parliament decision cannot be formally characterized under any of the legal acts listed in Article 190 of the Treaty, nor is it per se intended to produce effects vis-à-vis third parties.
In my view, the defendant is right to contend that the fixing of the calendar of meetings for the coming calendar year is self-evident and that the contested decision therefore required no further substantiation.
72 Consequently, the pleas raised by the applicant must therefore be rejected in their entirety with the result that the action must fail.
Costs
73 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the applicant has been unsuccessful, it must be ordered to pay the costs.
Under Article 69(4) a Member State which has intervened in the proceedings is to bear its own costs.
C - Conclusion
74 In light of the foregoing considerations I propose that the Court should:
(1) dismiss the action.
(2) order the applicant to pay the costs.
(3) order the intervener to bear its own costs.
(1) - Judgments in Case 230/81 Luxembourg v Parliament [1983] ECR 255, Case 108/83 Luxembourg v Parliament [1984] ECR 1945, Joined Cases 358/85 and 51/86 France v Parliament [1988] ECR 4821 and Joined Cases C-213/88 and C-39/89 Luxembourg v Parliament [1991] ECR I-5643.
(2) - Decision of 20 September 1995 (OJ 1995 C 269, p. 55).
(3) - Proposal of the Conference of Presidents of 14 September 1995 (OJ 1995 C 269, p. 19).
(4) - OJ 1992 C 341, p. 1.
(5) - Emphasis added.
(6) - Article 1(a), first sentence, of the Edinburgh Decision which states: `The European Parliament shall have its seat in Strasbourg.'
(7) - Judgment in Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraph 19.
(8) - See Case 294/83 (cited in footnote 7, paragraph 25); Joined Cases 385/85 and 51/86 (cited in footnote 1, paragraph 13), Joined Cases C-213/88 and C-39/89 (cited in footnote 1, paragraph 16).
(9) - See footnote 8.
(10) - See judgments in Luxembourg v Parliament (cited in footnote 1, paragraph 30); France v Parliament (cited above in footnote 1, paragraph 15) and in Luxembourg v Parliament (cited above at footnote 1, paragraphs 16 and 24).
(11) - Case C-314/91 Weber v Parliament [1993] ECR I-1093.
(12) - Case C-314/91 (cited in footnote 11, paragraph 8).
(13) - Case C-314/91 (cited above in footnote 11, paragraph 9).
(14) - Case C-314/91 (cited in footnote 11, paragraph 10); emphasis added.
(15) - See Article 216 of the EC Treaty, Article 77 of the ECSC Treaty and Article 189 of the EAEC Treaty.
(16) - See also in this connection Case 230/81 (cited in footnote 1, paragraph 24).
(17) - See Case C-267/96 (OJ 1996 C 269, p. 21).
(18) - See Article 216 of the EC Treaty, Article 77 of the ECSC Treaty and Article 189 of the EAEC Treaty.
For the sake of simplicity reference will be made below predominantly to the provisions of the EC Treaty.
(19) - OJ 1992 C 21, p. 105; see also minutes of the sitting of 20 April 1993 (OJ 1993 C 150, p. 26 et seq).
(20) - Article 142 of the EC Treaty, Article 25 of the ECSC Treaty and Article 112 of the EAEC Treaty.
For the sake of simplicity reference will be made below predominantly to the provisions of the EC Treaty.
(21) - Joined Cases C-181/91 and C-248/91 Parliament v Council and Commission [1993] ECR I-3685.
(22) - Paragraph 12 of the judgment; emphasis added.
(23) - See Case 294/83 (loc. cit., paragraph 23).
(24) - See Articles 157, 158 and 167 of the EC Treaty.
(25) - I concede that, as regards the appointment of Commissioners, the collaboration of the Parliament under Article 158 of the EC Treaty provides a certain corrective. This was, however, introduced only by the Maastricht Treaty and does not completely defuse this problematical situation.
(26) - For the sake of simplicity reference will from now on be made only to Article 216 of the EC Treaty.
(27) - For the sake of simplicity reference will from now on be made only to Article 142 of the EC Treaty.
(28) - See footnote 1.
(29) - It is stated, for example, in Case 230/81 (cited in footnote 1), at paragraph 38: `In accordance with the abovementioned mutual duties of sincere cooperation, the decisions of the Parliament in turn must have regard to the power of the governments of the Member States to determine the seat of the institutions and to the provisional decisions taken in the meantime.' (emphasis added).
See in this connection also the judgment in Joined Cases C-213/88 and C-39/89 (quoted at footnote 1, paragraph 52).
(30) - Case 230/81 (cited in footnote 1, paragraph 37); see also Joined Cases 358/85 and 51/86 (cited in footnote 1, paragraph 35).
(31) - Decision of the representatives of governments of the Member States concerning the provisional location of certain institutions and departments of the Communities (OJ 1967 L 152, p. 18).
(32) - For the sake of simplicity these will be referred to hereinafter as `plenary weeks'.
(33) - Emphasis added.
(34) - Case 230/81 (cited in footnote 1); Joined Cases 358/85 and 51/86 (cited in footnote 1).
(35) - 25th General Report on the Activity of the European Communities 1991, p. 425; 26th General Report on the Activity of the European Communities 1992, p. 406; 27th General Report on the Activity of the European Communities 1993, p. 395; General Report on the Activity of the European Union 1994, p. 453; General Report on the Activity of the European Union 1995, p. 461.
(36) - The first and second reading of the budget regularly takes place in the last quarter of a calendar year.
(37) - Four sessions of four half-days, that is to say 16 half-days in the year.
(38) - 10 half-days per week; for 1995 this means 12 x 10 half-days, that is to say 120 half-days in the year and, in regard to the 1996 calendar of sessions, 11 x 10 half-days, that is to say 110 half-days in the year.
(39) - Joined Cases 358/85 and 51/86 (quoted at footnote 1, paragraphs 36 and 40).
(40) - Joined Cases 358/85 and 51/86 (cited at footnote 1, paragraphs 40 and 41).
(41) - Decision of the representatives of governments of the Member States on the provisional location of certain institutions and departments of the Communities (OJ 1967 L 152, p. 18).
(42) - See the admission by the defendant's representative at the hearing that the political groups are established in Brussels.
(43) - OJ 1995 L 293, p. 1.
(44) - Emphasis added.