Opinion of Mr Advocate General La Pergola delivered on 20 March 1997. - European Parliament v Council of the European Union. - Annulment of Council Decision No 95/184/EC - Prerogatives of the Parliament. - Case C-259/95.



European Court reports 1997 Page I-05303



Opinion of the Advocate-General

1 In these proceedings, the Parliament seeks annulment of Council Decision No 95/184/EC of 22 May 1995 amending Decision No 3092/94/EC introducing a Community system of information on home and leisure accidents (1) (hereinafter `the contested decision'). Its ground of challenge concerns the procedure for enacting that decision, which was adopted by the Council - without the Parliament's participation - on the basis of Article 169 of the Act of Accession of Austria, Finland and Sweden. (2) The Parliament maintains that the co-decision procedure laid down in Article 189b of the EC Treaty should have been followed.

The Council, supported in its submissions by the Commission and the Kingdom of Sweden, which have intervened in the proceedings, contends that the action should be dismissed.

2 Before evaluating the parties' arguments, it would be useful to sketch the background to this case.

By the contested decision, the Council amended Decision No 3092/94/EC introducing a Community system of information on home and leisure accidents. (3) That system involved, inter alia, the designation of 54 hospitals across the Community for the collection of data, for which purpose Community funding was made available and allocated between the various Member States. On the accession of Austria, Finland and Sweden, the decision had to be adapted so as to extend it to the new Member States. To that end, Decision 95/184/EC was adopted, raising the total number of hospitals involved to 65 and accordingly increasing the level of Community funding to ECU 2.808 million.

The Council decided to adopt the contested decision in accordance with the simplified procedure laid down in Article 169 of the Act of Accession, which provides as follows:

`1. Where acts of the institutions prior to accession require adaptation by reason of accession, and the necessary adaptations have not been provided for in this Act or its Annexes, those adaptations shall be made in accordance with the procedure laid down by paragraph 2. Those adaptations shall enter into force as from accession.

2. The Council, acting by a qualified majority on a proposal from the Commission, or the Commission, according to which of these two institutions adopted the original acts, shall to this end draw up the necessary texts.'

However, the Parliament maintains that the conditions for using that procedure were not satisfied. The decision to be amended was based on Article 129a of the Treaty and adopted in accordance with the co-decision procedure. According to the Parliament, the same procedure should therefore have been followed for the adoption of the contested decision.

3 It should be noted at the outset that the correct identification of the procedure to be followed has major implications, in cases such as this, for the Parliament's institutional prerogatives: Article 169 of the Act of Accession provides for the adaptation to be enacted by the Council alone, albeit acting by a qualified majority, whereas Article 189b of the Treaty provides for the Parliament to play a significant role in the decision-making process. Thus, if the choice of procedure were shown to be incorrect, this would not simply amount to a formal defect but would constitute grounds for declaring the contested decision unlawful for failure to comply with essential procedural requirements.

Accordingly, the action satisfies the conditions for admissibility laid down by the third paragraph of Article 173 of the Treaty, since it has been brought by the Parliament for the purpose of protecting its institutional prerogatives and is based on the alleged breach of those prerogatives.

4 As to the merits, the Parliament argues that the Council was not empowered to adopt the contested decision on the basis of Article 169 of the Act of Accession. Its argument in support of that plea is twofold: first, recourse to the Article 169 procedure was possible only before the Treaty of Accession entered into force; secondly, that procedure is available only for the adaptation of measures adopted by the Council or by the Commission, whereas the measure to be adapted in this case was a matter for the Council and the Parliament jointly and therefore fell outside the scope of Article 169. I shall now consider both strands of the Parliament's argument in greater detail.

5 The Parliament's first point, as indicated above, is that the Council was not empowered to use the procedure provided for under Article 169 of the Act of Accession once the Treaty of Accession had entered into force. That view is based essentially on the wording of the French-language version of Article 169, according to which `lorsque les actes des institutions doivent, avant l'adhésion, être adaptés du fait de l'adhésion et que les adaptations nécessaires n'ont pas été prévues dans le présent acte ou ses annexes, ces adaptations sont effectuées selon la procédure prévue au paragraphe 2 ...'. In the Parliament's view, the phrase `avant l'adhésion' places a specific temporal limitation on recourse to the simplified procedure, that is to say, that procedure had to be used prior to accession, not subsequently, as is the case here. This approach - according to the Parliament - is substantiated by Article 2 of the Treaty of Accession itself which, after providing that the Treaty is to enter into force on 1 January 1995, states in the third paragraph that `notwithstanding paragraph 2, the institutions of the Union may adopt before accession the measures referred to in [... Article] 169 of the Act of Accession [...]'. The Parliament concludes from its scrutiny of these provisions that the rationale behind Article 169 is that of providing a simplified method for adapting Community measures which were already in existence in the period between the signing of the Treaty of Accession and its entry into force. On expiry of that period, adaptations rendered necessary by the accession of new Member States have to be introduced by means of the normal procedures laid down by the Treaty.

To my mind, that argument is not convincing. As the Council, the Commission and the Kingdom of Sweden have rightly pointed out, the textual interpretation on which the Parliament's argument depends is borne out solely by the French-language version of Article 169 of the Act of Accession. All the other language versions, however, point to a different meaning. For instance, the Italian version reads `quando gli atti delle istituzioni precedenti all'adesione richiedono adattamenti ...', these `sono effettuati secondo la procedura di cui al paragrafo 2'. Similarly, the English-language version provides that `where acts of the institutions prior to accession require adaptation by reason of accession, and the necessary adaptations have not been provided for in this Act or its Annexes, those adaptations shall be made in accordance with the procedure laid down by paragraph 2'. (4)

Given this discrepancy between the various language versions, it should be recalled that the Court has on earlier occasions ruled out the possibility of considering one version of the text in isolation, making it clear that a text should be interpreted on the basis of `both the real intention of its author and the aim he seeks to achieve, in the light in particular of the versions in all ... languages'. (5) Accordingly, the crucial factor in my view is that, apart from the French version, all the others place a temporal restriction (the date of accession) not on recourse to Article 169 but on the acts to be amended - that is to say, measures requiring adaptation must have been enacted prior to accession - and it would seem to me wholly unreasonable to accord authority to the one language version which differs from all the others.

Moreover, that is the only approach consistent with the objectives of Article 169, which provides a stand-by mechanism, as it were, for use when adaptations are required and yet have not been provided for by either the Treaty or the Act of Accession. The contracting parties thus sought to offer the Community institutions a flexible and rapid procedure for undertaking adaptations which `escaped' notice during negotiations but are nevertheless essential if a particular Community measure is to be applicable in the new Member States. Obviously a situation of this kind can also arise after the Treaty of Accession entered into force. It was considered preferable in such cases to use the simplified procedure set out in Article 169, rather than the normal procedures for amendment laid down by the Treaty. That decision, which is based on considerations of procedural economy, thus makes it possible to ensure forthwith, with no hiatus, the uniform application of Community measures in all the Member States. On the other hand, the simplified procedure is not available in all cases where an existing measure is to be amended; rather, its use is confined to adaptations of a strictly technical nature and does not affect, by way of derogation, the legislative scope of the measure in question. In my view, that places in proper perspective the Parliament's fears concerning the alleged breach of its institutional prerogatives.

6 The Parliament's reliance on Article 2 of the Treaty of Accession is similarly misplaced. The Parliament infers from that provision that it restricted the use of the procedure under Article 169 once the Treaty of Accession had entered into force. As the Council and the interveners have rightly pointed out, the rationale underlying Article 2 of the Treaty of Accession is quite different. The Treaty entered into force on 1 January 1995; in derogation from that provision, however, `the institutions of the Union may adopt before accession the measures referred to in Article ... 169 of the Act of Accession [...]'. The rule is clear: the institutions may - not must - have recourse to Article 169 before accession. It is merely an enabling provision and does not in any way preclude the use of the Article 169 procedure after accession. What is more, the rationale behind Article 2 is easy to understand: the Treaty entered into force on 1 January 1995, but the intention was that the Community institutions should be able, even before that date, to make the necessary adaptations. An appropriate derogation was therefore needed in order to permit `advance' use of the simplified procedure under Article 169, which would not otherwise have been possible since the institutions obviously could not avail themselves of a procedure laid down in a provision which had not yet entered into force.

Accordingly, neither Article 2 of the Treaty of Accession nor the wording of Article 169 (6) supports the inference that the use by the Council of the simplified procedure for enacting adaptations was restricted ratione temporis. It is a moot point whether the procedure provided for in Article 169 may be used at any time after the Treaty of Accession's entry into force, or whether recourse to that provision would be lawful only within a brief period thereafter. However, that question has no bearing on the present dispute, since Decision 95/184 was adopted on 22 May 1995, that is, reasonably soon after the Treaty of Accession entered into force. In any event, in the light of the objectives of Article 169 and of the fact that its scope is confined to adaptations which are merely of a technical nature, so to speak, I take the view that even if that provision had been applied later the Parliament's allegation would not in any event have been justified.

7 The Parliament points out, however, that if the procedure under Article 169 were to be available after the Treaty of Accession entered into force, this would contravene the principle that, on entering the Community, Member States must accept the acquis communautaire in its entirety as it stands at the date of accession. Accordingly, if existing Community measures could be amended indefinitely, that fundamental principle would be undermined. However, I do not find this argument persuasive, either. Of course, States acceding to the Union must accept the existing body of Community legislation. (7) That principle is not threatened in this case, however, by the use of the simplified procedure after the Treaty of Accession has entered into force. On the contrary, that procedure is the very mechanism enabling the acquis communitaire to take full effect in the new Member States, especially where - and this is the case here - existing measures stand in need of adaptation if they are to apply in those States as well.

One last point. The contested decision was adopted on 22 May 1995 but, under Article 169, it has retrospective effect; that is to say, it takes effect as from 1 January 1995, the date on which the Treaty of Accession entered into force. I agree with the Commission that this is not contrary to the principle of legal certainty. The Court has affirmed that in general that principle `precludes a Community measure from taking effect from a point in time before its publication', but has also stated that `it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected'. (8) In my view, those conditions are satisfied here. In the first place, the expectations of the parties have not been damaged in any way; secondly, the purpose to be achieved was that of ensuring, as from accession, the uniform application of the acquis communautaire throughout the Union. That is why, not only does Article 169 not preclude adaptation of acts of the institutions after accession, but it also provides that such adaptations may take effect from the Treaty of Accession's entry into force.

8 The Parliament also challenges Decision 95/184 from another angle. In its view, the simplified procedure under Article 169 could only be used to adapt measures adopted by the Commission or by the Council, whereas the contested decision amends a measure - Decision 3092/94 - which had been adopted at the time by both the Council and the Parliament. That view is based exclusively on the wording of Article 169 which, according to the Parliament, does not envisage - and therefore precludes - the possibility of using a simplified procedure to adapt measures which have been jointly adopted by the Council and the Parliament in accordance with the co-decision procedure.

This argument leaves me a little confused. As the Council, the Commission and the Kingdom of Sweden have all pointed out, Article 169 provides for the possibility of adapting any act `of the institutions' to meet requirements arising from the accession of new Member States. Admittedly, the contracting parties may have framed Article 169 in terms which - in so far as Article 169(2) provides that adaptations are to be made by either the Council or the Commission, according to which of those two institutions adopted the original acts - are less than appropriate, since, a rigori, a decision adopted on the basis of Article 189b of the Treaty could be regarded as an act of both the Parliament and the Council. (9) However, neither the wording nor the rationale of Article 169 suggests that the contracting parties wished to exclude from its scope measures adopted under the aforementioned procedure - measures, moreover, which are jointly adopted by the two institutions, but which even the EC Treaty attributes in more than one place to the Council alone. (10) This suggests that the reference in Article 169(2) to acts of the Council was in fact intended to embrace acts adopted jointly by the Council and the Parliament. The objective of Article 169 is to make a rapid procedure available whereby the full and uniform application of Community measures can be extended to the new Member States; that fundamental requirement obviously covers measures adopted by the co-decision procedure.

9 In conclusion, it seems to me that use of the simplified procedure in question is subject to three conditions. First, the measures requiring adaptation must pre-date accession; secondly, the adaptations required must not be envisaged by the Act of Accession or its annexes; and, thirdly, the reason for using that procedure must be to ensure the alignment of the measure in question so as to enable it to be applied in the new Member States as well. In other words, as I explained above, the amendment must not involve a significant change to the substantive content of the measure in question but only a minor consequential adjustment in response to the needs arising as a result of accession.

In the present case, it seems to me that all three conditions were satisfied. The contested decision was designed to adapt a Community measure which pre-dated accession; no such adaptation was provided for in the Act of Accession or its annexes; the amendments made merely enabled the contested measure to be given practical effect in the new Member States. Furthermore, the latter point, which in my view is crucial, has not been challenged by the Parliament on cogent grounds. At the hearing, the Parliament merely pointed out that the Council, in adopting the decision at issue, enjoyed a margin of discretion as regards the choice of the criteria on which to base its adaptation of Decision 3092/94, so that the Parliament's views regarding the choice of those criteria should also have been heard under the co-decision procedure. However, that is not the case. Only two aspects of Decision 3092/94 required adjustment in order to extend its application to the new Member States as well: the number of hospitals involved in the collection of data was raised from 54 to 65, and Community funding was accordingly increased to ECU 2.808 million. As the Commission has pointed out, the Council adapted the measure on the basis of the criteria used in Decision 3092/94, fixing the number of hospitals in the new States so as to reflect the population and increasing the financial assistance proportionately. Furthermore, those criteria had been approved by the Parliament itself, since Decision 3092/94 was adopted at the time by the co-decision procedure. To my mind, therefore, it cannot be seriously maintained that the contested decision was anything other than a simple adaptation within the meaning of Article 169 or that it incorporates discretionary choices which introduce new elements and therefore entail recourse to the co-decision procedure. In conclusion, therefore, I believe that in using the procedure provided for by Article 169, the Council respected the substantive limits set by that provision.

10 The Council, the Commission and the Kingdom of Sweden also ask the Court, in the event that the contested decision is annulled, to rule that this should in any event be without prejudice to any decisions adopted by the Commission under Article 7 of Decision 3092/94 regarding financial assistance for the hospitals in the new Member States. They point out that, in addition to the practical difficulties which would be caused by annulment with retroactive effect, sums of money have already been given to four Swedish and three Finnish hospitals on the basis of the contested decision.

The Parliament, for its part, `defers to the wisdom of the Court', although it is in principle opposed to the request for application of Article 174.

In my view, the Court should accede to the parties' request. Annulment of the contested decision ex tunc would seriously damage action already undertaken by the Commission with regard to the new Member States, and aimed essentially at protecting consumers. I therefore propose that the Court rule ex Article 174, second paragraph, that the effects of the decisions adopted by the Commission on the basis of Article 7 of Decision 3092/94, as amended by the contested decision, are to be treated as definitive.

Conclusion

In the light of the foregoing, I propose that the Court:

- dismiss the action brought by the Parliament;

- in the event that Decision No 95/184/EC is annulled, declare that the effects of the decisions adopted by the Commission on the basis of Article 7 of Decision No 3092/94/EC are definitive;

- order the Parliament to pay the costs, with the exception of those incurred by the Commission and the Kingdom of Sweden.

(1) - OJ 1995 L 120, p. 36.

(2) - OJ 1994 C 241, p. 21.

(3) - OJ 1994 L 331, p. 1.

(4) - See, by way of illustration, the Spanish version, which is to the same effect: `1. En caso de que los actos de las instituciones previos a la adhesión requieran una adaptación como consecuencia de ésta y no se hayan previsto en la presente Acta o en sus Anexos las necesarias adaptaciones, dichas adaptaciones se harán con arreglo al procedimiento establecido en el apartado 2. [...]'; likewise the Portuguese version: `Quando os actos das Instituições, anteriores à adesão, devam ser adaptados em virtude da adesão, e as adaptações necessárias não estiverem previstas no presente Acto ou nos Anexos, estas serão efectuadas nos termos do procedimento previsto no n_ 2. [...]'.

(5) - See Case 55/87 Moksel [1988] ECR 3845, paragraph 15.

(6) - On the contrary, it could be argued that the wording of Article 169 supports an interpretation which is quite the opposite of that proposed by the Parliament. It contemplates the possibility of enacting adaptations `by reason of accession', not `with a view to' accession. The expression employed obviously suggests that accession would already have taken place, and that therefore the relevant Treaty would already have entered into force. In other words, the structure of Article 169 implies that the adaptations would come about as a consequence of accession, and that the procedure for their enactment would thus post-date accession.

(7) - That principle is clearly enunciated by the Court in Joined Cases 39/81, 43/81, 85/81 and 88/81 Halyvourgiki v Commission [1982] ECR 593, paragraph 12: `the acceding State accepts all the measures adopted by the institutions prior to the time when its accession takes effect'. However, as the Commission has correctly pointed out, the principle laid down by the Court in that judgment clearly relates to the situation where the conditions for actual implementation of the measure in question can already be discerned with sufficient precision from the measure itself. Instead, that case-law has absolutely no bearing on the problem before the Court here, namely the question whether existing measures may be adapted even after the Treaty of Accession has entered into force.

(8) - See Case 235/82 Ferriere San Carlo v Commission [1983] ECR 3949, paragraph 9.

(9) - See, for example, the wording of Article 173, first paragraph: `The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-à-vis third parties'.

(10) - See, for example, Arts 129a(2), 54(2), 56(2) and 100a of the EC Treaty.