Joined Cases C‑317/13 and C‑679/13

European Parliament

v

Council of the European Union

‛Action for annulment — Police and judicial cooperation in criminal matters — New psychoactive substance subjected to control measures — Determination of legal basis — Legal framework applicable following the entry into force of the Treaty of Lisbon — Transitional provisions — Secondary legal basis — Consultation of Parliament’

Summary — Judgment of the Court (Fourth Chamber), 16 April 2015

Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Decision 2013/129 on subjecting 4-methylamphetamine to control measures — Implementing Decision 2013/496 on subjecting 5-(2-aminopropyl)indole to control measures — Risk of undermining the effectiveness of the control of the psychoactive substances concerned and the protection of public health — The effects of the annulled decisions to be maintained until the entry into force of new acts intended to replace them

Police cooperation — Judicial cooperation in criminal matters — Decision 2005/387 on the information exchange, risk-assessment and control of new psychoactive substances — Article 8(3) of that decision — Whether compatible with the procedural rules applicable after the entry into force of the Treaty of Lisbon — Transitional provisions — Interpretation

Police cooperation — Judicial cooperation in criminal matters — Decision 2005/387 on the information exchange, risk-assessment and control of new psychoactive substances — Interpretation of Article 8(3) of that decision — Interpretation in accordance with the provisions of the EU Treaty which governed, at the time that decision was adopted, the implementation of general acts in this field — Whether the Council is under an obligation to consult the Parliament before adopting a measure for the implementation of the decision concerned — Repeal of Article 39(1) EU — No effect

Police cooperation — Judicial cooperation in criminal matters — Decision 2013/129 on subjecting 4-methylamphetamine to control measures — Implementing Decision 2013/496 on subjecting 5-(2-aminopropyl)indole to control measures — Legal basis — Article 8(3) of Decision 2005/387 on the information exchange, risk-assessment and control of new psychoactive substances — Repeal of Article 34 EU — No effect on the legality of the decisions

Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Unambiguous wording of the form of order sought by the applicant

See the text of the decision. (see para. 17)

As regards the legal basis for the adoption of Decision 2013/129 on subjecting 4-methylamphetamine to control measures and Implementing Decision 2013/496 on subjecting 5-(2-aminopropyl)indole to control measures, those decisions do not refer to Article 34 EU and in their recitals they refer expressly to the FEU Treaty and to Article 8(3) of Decision 2005/387 on the information exchange, risk-assessment and control of new psychoactive substances. It cannot therefore be concluded, having regard to the text of those decisions, which must, in principle, if they are to satisfy the obligation to state reasons, indicate the legal basis on which they are founded, that those decisions are based on Article 34 EU. In particular, the reference in Article 8(3) of Decision 2005/387 to Article 34(2)(c) EU is, in that regard, irrelevant, in so far as the Council’s explicit choice not to refer to that provision in Decisions 2013/129 and 2013/496 but instead to the FEU Treaty and to Article 8(3) of Decision 2005/387 indicates clearly that Decisions 2013/129 and 2013/496 are based on the latter provision itself. It follows that the repeal of Article 34 EU by the Treaty of Lisbon does not have the effect of depriving Decisions 2013/129 and 2013/496 of a legal basis. (see paras 28, 29, 31, 32)

As the rules regarding the manner in which the EU institutions arrive at their decisions are laid down in the Treaties and are not within the discretion of the Member States or of the institutions themselves, the Treaties alone may, in particular cases, empower an institution to amend a decision-making procedure established by the Treaties. Accordingly, to acknowledge that an institution can establish secondary legal bases, whether for the purpose of strengthening or easing the detailed rules for the adoption of an act, is tantamount to according that institution a legislative power which exceeds that provided for by the Treaties. That approach must be applied non only in relation to a secondary legal basis for the adoption of legislative acts but also to the legal bases provided for in secondary legislation which make it possible to adopt measures for the implementation of that legislation by strengthening or easing the detailed rules for the adoption of such measures laid down in the Treaties. While it is true that the Treaties provide that the Parliament and the Council lay down some of the rules relating to the exercise by the Commission of its powers of implementation, the fact nevertheless remains that the specific rules relating to the adoption of implementing measures laid down in the Treaties are binding on the institutions on the same footing as the rules relating to the adoption of legislative acts and cannot therefore be negated by acts of secondary legislation. (see paras 42-44)

Given that the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted, the legality of Article 8(3) of Decision 2005/387 on the information exchange, risk-assessment and control of new psychoactive substances must be assessed in the light of the provisions that governed, at the time that decision was adopted, the implementation of general acts in the field of police and judicial cooperation in criminal matters, namely Article 34(2)(c) EU and Article 39(1) EU. It follows from those provisions that the Council, acting by qualified majority and after consulting the Parliament, enacts the measures necessary for the implementation of the decisions adopted in connection with the title relating to police and judicial cooperation in criminal matters. In that regard, it should be pointed out that the literal wording of Article 8(3) of Decision 2005/387 does not impose an obligation on the Council to consult the Parliament before adopting the measures for the implementation of that decision set out in that provision. None the less, the wording of secondary EU legislation must be interpreted, in so far as possible, in a manner consistent with the provisions of the Treaties. Accordingly, given, first, that the requirement to interpret secondary legislation in compliance with primary law follows from the general principle of interpretation that a provision must be interpreted, as far as possible, in such a way as not to affect its validity, and, second, that the legality of Article 8(3) of Decision 2005/387 must be assessed in particular in the light of Article 39(1) EU, the former provision must be interpreted in a manner consistent with the latter. As a consequence, Article 8(3) of Decision 2005/387 must be interpreted, in accordance with Article 39(1) EU, as permitting the Council to adopt an act for the purpose of submitting a new psychoactive substance to control measures only after it has consulted the Parliament. Moreover, the repeal of Article 39(1) EU after the adoption of Article 8(3) of Decision 2005/387 cannot remove the requirement to interpret that provision in accordance with Article 39(1) EU. (see paras 45-50, 67)

With regard to the compatibility of Article 8(3) of Decision 2005/387 on the information exchange, risk-assessment and control of new psychoactive substances with the rules of procedure applicable after the entry into force of the Treaty of Lisbon, Protocol (No 36) on Transitional Provisions includes provisions dealing specifically with the legal rules applicable, following the entry into force of that treaty, to acts adopted on the basis of the EU Treaty before that date. Accordingly, Article 9 of that protocol provides that the legal effects of such acts are to be preserved until those acts are repealed, annulled or amended in implementation of the Treaties. That article must be interpreted in the light of the first recital in the preamble to that protocol, which states that it is necessary to lay down transitional provisions in order to organise the transition from the institutional provisions of the Treaties applicable prior to the entry into force of the Treaty of Lisbon to the provisions contained in that Treaty. Accordingly, given that the Treaty of Lisbon substantially altered the institutional framework for police and judicial cooperation in criminal matters, Article 9 of the Protocol on Transitional Provisions must be understood as being intended, inter alia, to ensure that acts adopted in the context of that cooperation may continue to be applied effectively, notwithstanding the change to the institutional framework for such cooperation. If the argument were accepted that the repeal by the Treaty of Lisbon of specific procedures for the adoption of implementing measures in the field of police and judicial cooperation in criminal matters would make it impossible to adopt such measures before general acts adopted in connection with that cooperation had been amended so as to adapt them to the Treaty of Lisbon, that would have the effect of complicating or even preventing the effective application of such acts, thus jeopardising the attainment of the objectives pursued by the authors of the Treaty. Furthermore, an interpretation of Article 9 of the Protocol on Transitional Provisions to the effect that that article merely implies that acts in the field of police and judicial cooperation in criminal matters are not automatically repealed following the entry into force of the Treaty of Lisbon would deprive that article of any practical effect. As a consequence, a provision of an act duly adopted on the basis of the EU Treaty before the entry into force of the Treaty of Lisbon which lays down detailed rules for the adoption of measures for the implementation of that act continues to produce its legal effects until it is repealed, annulled or amended and permits the adoption of implementing measures in accordance with a procedure established by that provision. In those circumstances, the fact that Article 8(3) of Decision 2005/387 might lay down detailed rules for the adoption of implementing measures that are strengthened or eased by comparison with the procedure laid down for that purpose in the FEU Treaty cannot mean that that provision constitutes an invalid secondary legal basis which should be regarded as inapplicable by way of exception. (see paras 51-58)