Judgment of the Court of 28 November 1991. - Grand Duchy of Luxemburg v European Parliament. - Seat of the institutions and places of work of the European Parliament - Transfer of staff. - Joined cases C-213/88 and C-39/89.



European Court reports 1991 Page I-05643

Swedish special edition Page I-00473

Finnish special edition Page I-00505



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

1. Action for annulment of measures - Measures against which actiona may be brought - Measures intended to have legal effects - Resolution of the Parliament on the seat of the institutions and its principal place of work

(EEC Treaty, Art. 173; Resolution of the Parliament of 18 January 1989)

2. European Communities - Seat of the institutions - Determination - Power of the Member States - Power of the Parliament to determine its own internal organization - Conditions for exercise - Reciprocal obligation on the part of the Member States and the Community institutions to respect each other' s powers - Scope

(ECSC Treaty, Art. 25; EEC Treaty, Arts 5 and 142; EAEC Treaty, Art. 112)

3. European Communities - Seat of the institutions - Maintenance by the Parliament of essential infrastructure in its various places of work - Conditions

(ECSC Treaty, Art. 25; EEC Treaty, Arts 5 and 142; EAEC Treaty, Art. 112; Decision of the representatives of the Governments of the Member States of 8 April 1965, Art. 4)

4. Parliament - Power to determine its own internal organization - Determination of its policy regarding information - Discretion

5. Parliament - Power to determine its own internal organization - Determination of its needs in terms of staff and premises in its various places of work - Discretion

(Resolution of the Parliament of 18 January 1989)

Summary

1. In order to determine whether an action for the annulment of an act adopted by an institution will lie under Article 173 of the Treaty it is necessary to consider the nature of the act in question rather than its form and to determine whether it is intended to have legal effects.

The resolution on the seat of the institutions and the main place of work of the European Parliament, adopted by the latter on 18 January 1989, is an act against which an action for annulment can be brought. By designating the staff whose presence in Brussels is essential and instructing the competent bodies of the Parliament to take all appropriate steps for its implementation, that resolution is of a decision-making nature and may affect the guarantees provided for the Grand Duchy of Luxembourg in the relevant texts relating to the seat and places of work of the Parliament.

2. The Parliament is authorized to take appropriate measures to ensure the proper functioning and conduct of its proceedings by virtue of the power to determine its own internal organization conferred on it by Articles 25 of the ECSC Treaty, 142 of the EEC Treaty and 112 of the EAEC Treaty; however, under the rule imposing mutual duties of sincere cooperation on the Member States and the Community institutions, as embodied in particular in Article 5 of the EEC Treaty, its decisions must have regard to the powers of the Governments of the Member States to determine the seat of the institutions and the provisional decisions already taken in that regard in the meantime.

Although it is common ground that the Governments of the Member States have not yet discharged their obligation to determine the final seat of the institutions, that circumstance does not entail any widening of the discretion accorded to the Parliament in the exercise of the power to determine its own internal organization.

3. The Parliament must be in a position to maintain in the various places of work outside the place where its Secretariat is established the infrastructure essential for ensuring that it may fulfil in all those places the tasks which are entrusted to it by the Treaties.

However, any decision to transfer the Secretariat of the Parliament or the other departments, wholly or partially, de jure or de facto, would constitute a breach of Article 4 of the Decision of the Governments of the Member States on the provisional location of certain institutions and departments of the Communities and of the assurances which that decision was intended to give to the Grand Duchy of Luxembourg.

4. It is for each institution to determine the methods, ways and means of pursuing its information policy, subject to the limits imposed by Community law. The obligation to provide the public with information concerning the work of an institution is all the more essential in the case of a Parliament elected by direct universal suffrage, which participates in the legislative process on behalf of its electorate.

In view of the fact that the tasks assigned to the Central Press Office of the Parliament are manifestly associated with the political activities of the Parliament which are conducted in Brussels, where a large number of journalists are accredited, an enlargement of the press service in that city does not exceed the discretion accorded to the Parliament in the exercise of the power to determine its own internal organization.

5. Since it is for the Parliament to assess the staff which it needs to have at its disposal in order to carry out its tasks in Brussels, the transfers of staff working for committees and delegations, responsible for providing information and dealing with studies and research, as provided for in the Resolution of 18 January 1989, do not exceed the discretion accorded to it in the exercise of the power to determine its own internal organization. The same applies to the decisions regarding premises which are inherent in the decisions regarding transfers.

Parties

In Joined Cases C-213/88 and C-39/89,

Grand Duchy of Luxembourg, represented initially by Ronald Mayer and subsequently by Alphonse Berns, Directors of International Economic Relations at the Ministry of Foreign Affairs, acting as Agents, assisted by André Elvinger of the Luxembourg Bar, with an address for service in Luxembourg at the latter' s Chambers, 15 Côte d' Eich,

applicant,

v

European Parliament, represented by Francesco Pasetti-Bombardella and Jorge Campinos, Jurisconsults, assisted by Christian Pennera, a member of its Legal Department, acting as Agents, and by Michel Waelbroeck of the Brussels Bar, with an address for service in Luxembourg at the Secretariat of the European Parliament, Kirchberg,

defendant,

APPLICATION for the annulment of the Decision of the Bureau of the European Parliament of 1 and 2 June 1988 entitled "Information and public relations services in Brussels", the Decision of the said Bureau of 15 June 1988 entitled "Note on the medium-term forecasts of the activities of the European Parliament in the three normal places of work" and the Resolution of the European Parliament of 18 January 1989 on the seat of the Institutions and the main place of work of the European Parliament (Official Journal 1989 C 47, p. 88),

THE COURT,

composed of: O. Due, President, Sir Gordon Slynn, R. Joliet, F.A. Schockweiler, and P.J.G. Kapteyn (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida, G.C. Rodriguez Iglesias and M. Díez de Velasco, Judges,

Advocate General: C.O. Lenz,

Registrar: D. Louterman, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 31 January 1991,

after hearing the Opinion of the Advocate General at the sitting on 25 April 1991,

gives the following

Judgment

Grounds

1 By two applications lodged at the Court Registry on 1 August 1988 and 16 February 1989, the Grand Duchy of Luxembourg instituted proceedings pursuant to Articles 31 and 38 of the ECSC Treaty, Article 173 of the EEC Treaty and Article 146 of the EAEC Treaty for the annulment of the Decision of the Bureau of the European Parliament of 1 and 2 June 1988 concerning the information and public relations services in Brussels and the Decision of the said Bureau of 15 June 1988 entitled "Note on the medium-term forecasts of the activities of the European Parliament in the three normal places of work" (Case C-213/88) and of the Resolution of the European Parliament of 18 January 1989 on the seat of the Institutions and the main place of work of the European Parliament (Case C-39/89).

Application in Case C-213/88

2 The Decision of the Bureau of the Parliament of 1 and 2 June 1988 was adopted on the basis of a report from the Secretary-General of the Parliament, which was examined on 15 and 17 December 1987 and which aimed to introduce, at the request of the Enlarged Bureau, the measures necessary to improve the information services located in Brussels. It consists of several documents.

3 It appears from an extract of the minutes of the meeting of the Bureau of the Parliament of 1 June 1988 entitled "Information and public relations services in Brussels" (Doc. PE 122.508/BUR) that the Bureau noted the Report of 19 May 1988 by the Ad Hoc Working Party on Information entitled "Improving the information services in Brussels" (PE 122.503/BUR), endorsed the general guidelines laid down in that report and instructed the Secretary-General to take steps to implement the proposals adopted.

4 The report states that "the Central Press Office ... must remain quite separate from the Brussels Information Office" and that "in performing its duties, this service (that is to say the Central Press Office) may count on assistance from the sectors of the Publications Division transferred to Brussels". The Ad Hoc Working Party reached the conclusion that "a consistent improvement of information activities in Brussels will require the early transfer of a number of officials, pending subsequent developments". It considered, in particular, that "even if only on a transitional basis, some language sectors of the Publications Division currently based in Luxembourg must be transferred in stages, although the geographical unity of the teams must be maintained and normal activities kept at the same level". Following the transfer of the English-language sector of the Publications Division, approved by the Bureau on 15 December 1987 and operational as from 1 September 1988, the proposal envisaged the transfer on 1 January 1989 of the Portuguese-language sector, whose four officials had expressed their agreement in that regard. The transfer of other language sectors was also envisaged.

5 According to the report of the Ad Hoc Working Party:

"The transfer of staff to Brussels is subject to four basic constraints:

(a) the legal situation created by the Court of Justice' s ruling which forbids the transfer of entire services;

(b) the principle that transfers must be made on a voluntary basis (i.e. with the agreement of the officials concerned);

(c) the logistical situation in Brussels (availability of premises, technical equipment, etc.);

(d) the operational aspects (efficiency of the measures taken, safeguarding of the important activities carried out by the services to be transferred, etc.)."

6 The abovementioned Decision of 15 June 1988 consists of paragraph 4.1 of the minutes of the meeting of the Bureau of the Parliament, which is entitled "Note on the medium-term forecasts of the activities of the European Parliament in the three normal places of work".

7 In that document the Bureau first took cognizance of several notes by the Secretary General and the Directorate-General for Administration on the medium-term forecasts of the activities of the Parliament in the three places of work, on progress with the building projects under way in Brussels and Strasbourg and on progress with work on the premises to be used by the Parliament and its bodies in the normal places of work. It also took note of the extract from the minutes of the meeting of the Bureau empowering the Secretary-General to "seek additional offices and conference rooms in Brussels" and of the letter from the Chairman of the meeting of the parliamentary committee chairmen on the requirements of the various committees in Brussels.

8 By the same decision, the Bureau went on to approve the content of the Secretary-General' s Note of 6 June 1988 which suggests making "wider use of Article 37 of the Rules of Procedure (i.e. of the Parliament) which enables the power of decision ... to be delegated to the committees" and which proposes that "the number of conference rooms in Brussels be increased and that a conference room be fitted out which could hold several committees at the same time or one large committee empowered to take decisions on behalf of the House, which, however, would be required to ratify such decisions without debate".

9 Finally, after hearing a number of statements, in the same decision the Bureau in particular:

- opted for certain building projects in Brussels;

- empowered the Secretary-General to undertake all the measures required to ensure that the new premises were available to the Parliament during 1990, in accordance with the note he had submitted;

- approved the Secretary-General' s guidelines concerning the rationalization of the Parliament' s activities.

Application in Case C-39/89

10 In its Resolution of 18 January 1989, cited above, the Parliament noted that the Governments had still not discharged their obligation to determine the seat of the institutions of the Community in accordance with Articles 77 of the ECSC Treaty, 216 of the EEC Treaty and 189 of the EAEC Treaty. It considered that, in the absence of such a decision, in order to carry out the substantial additional tasks assigned to the Parliament by the Single European Act, combined with those resulting from previous Treaties giving the Parliament legislative, budgetary and supervisory roles, it was necessary to carry out a major reorganization and to reduce the current dispersal of its work and staff between the three working places. In particular, the Parliament:

"...

7. Resolves ... to make more satisfactory arrangements for carrying out its tasks, in accordance with its obligations under Community law and the self-evident right of a Parliament elected by direct universal suffrage;

...

9. Instructs its Bureau to make arrangements as soon as possible to enable the Parliament to have available all the staff and infrastructure needed for it to carry out its tasks efficiently and effectively in the places where its plenary sessions and other parliamentary meetings are held, taking account of the considerations set out in paragraphs 2 and 3;

10. Considers in particular that it is indispensable for its proper functioning for the Parliament to have in Brussels the staff dealing with the following activities:

- committees and delegations,

- information and public relations,

- studies and research,

as well as

- other staff whose principal role is to provide services directly to individual Members, and

- those staff whose supervisory or supporting roles require them to be in the same place as those referred to above;

11. Decides that, in order to carry out its expanded duties effectively, it has become necessary to hold additional and supplementary plenary sessions coinciding with one or more of the weeks devoted to committee or political group meetings;

...

16. Instructs its President, Secretary-General, Bureau, Enlarged Bureau and Quaestors to take speedily all appropriate steps, including staff consultations, to implement the above, notably by leasing or acquiring new premises and terminating the leases of buildings when they are no longer required;

17. Stresses the urgency of its situation and the need to make the changes foreseen in paragraphs 9, 10 and 11 as soon as facilities become available."

11 The Grand Duchy of Luxembourg seeks the annulment of that resolution in its entirety, but especially of paragraphs 7, 9, 10, 16 and 17 thereof, which are set out above.

12 Reference is made to the Report for the Hearing for a fuller account of the relevant provisions and the facts of the case, the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

Admissibility

Admissibility of the application in Case C-213/88

13 The Parliament contests the admissibility of the application on the grounds that the two decisions of the Bureau which are the subject of the application are measures of internal organization and that, in accordance with the consistent case-law of the Court, such acts cannot be the subject of an action for annulment. In that regard, it refers in particular to the order in Case 78/85 Group of the European Right v Parliament [1986] ECR 1753 and the judgment in Joined Cases 358/85 and 51/86 France v Parliament [1988] ECR 4821.

14 The Grand Duchy of Luxembourg points out that the Court had already rejected that argument in its judgments in Case 230/81 Luxembourg v Parliament [1983] ECR 255 and Case 108/83 Luxembourg v Parliament [1984] ECR 1945, which were concerned with resolutions of the Parliament on the seat and places of work. It adds that the judgments mentioned by the Parliament related in the one case to the establishment of a committee of enquiry and in the other to the organization of a topical and urgent debate and cannot therefore reflect a change in judicial attitude.

15 In order to determine whether an action for the annulment of an act will lie under the first paragraph of Article 173 of the Treaty, it must be borne in mind in the first place that, according to the established case-law of the Court, the nature of the act in question must be considered rather than its form and the act must be examined to establish whether it is intended to have legal effects (see the judgment in Case 114/86 United Kingdom v Commission [1988] ECR 5289, at paragraph 12).

16 However, the question whether the Decisions of 1 and 2 June 1988 and of 15 June 1988 relate exclusively to the internal organization of the departments and work of the Parliament and whether they have legal effects in relation to third parties is inseparably associated with consideration of their contents and hence with consideration of the substance of the application. It is therefore necessary to consider the substance of the application in Case C-213/88.

Admissibility of the application in Case C-39/89

17 The Parliament has raised an objection of inadmissibility on the grounds first that the application is imprecise and secondly that the contested act is in the nature of a resolution with no binding force.

The plea that the application is imprecise

18 The Parliament maintains that the application does not satisfy the requirements of Article 38(1) of the Rules of Procedure of the Court. It contends that a mere allegation that an institution lacks competence or is in breach of Treaty provisions is not sufficient to contest the legality of an act of that institution. To consider such an application admissible would, in its view, amount to a complete reversal of the burden of proof, requiring the defendant to prove that the adoption of the act in question did not in any way exceed its powers.

19 According to the Luxembourg Government, the application more than satisfies the formal requirements of Article 38(1), since it specifies the subject-matter of the dispute, namely the resolution as a whole but especially certain paragraphs thereof, and sets out in detail the grounds relied upon, namely misuse of powers by the Parliament and breach of the principle of proportionality. The applicant also considers that the Parliament' s reasoning is based on an error of law in that it relates to the question of proof of the allegations made in the application, which is wholly unconnected with the question whether the application was submitted in due form.

20 It is clear from the application that the requirements of Article 38(1) of the Rules of Procedure have been fulfilled since the application contains the name and address of the applicant, the designation of the opposite party, the subject-matter of the proceedings and a summary of the pleas in law, and the form of order sought.

21 It should also be noted that the contested resolution has been appended to the application, in accordance with Article 38(4) of the Rules of Procedure, and that the applicant was under no obligation to offer any supporting evidence in the absence of a specific challenge at that stage in the procedure. Consequently, there is no need to examine the question of the burden of proof raised by the Parliament since, as the Luxembourg Government emphasizes, the point at issue here is whether the application is in due form and not whether it is well founded.

22 This plea must therefore be rejected.

The plea concerning the nature of the contested act

23 The Parliament points out that in its judgment in Joined Cases 87 and 130/77, 22/83, 9 and 10/84 Salerno v Commission and Council [1985] ECR 2523, at paragraph 59, the Court stated that a resolution is not binding. According to the defendant, the contested resolution cannot be the subject of an action for annulment since it is not of a decision-making nature. It contends, on the assumption that the resolution has certain legal effects, that it falls strictly within the bounds of the Parliament' s power to determine its own internal organization, which is not subject to judicial review. Finally, it adds that the resolution at issue in the present case cannot have any legal effect in view of the lack of precision as to the exact number of proposals it contains.

24 It should be noted that a determination of the legal effect of the contested resolution is inseparably associated with consideration of its content (see the judgment in Case 230/81 [1983] ECR 255, at paragraph 30).

25 In that regard, it is sufficient to state that in the Salerno judgment, cited above, the resolution in question reflected the opinion of the Parliament on a Commission proposal for a regulation and constituted only one step in the procedure for drawing up Community rules, whereas the resolution in the present case specifies the measures considered essential for a major reorganization and a reduction in the current dispersal of the activities and staff of that institution between three places of work.

26 In particular, paragraph 10 of the resolution specifies the staff dealing with certain activities whose presence in Brussels the Parliament considers essential and paragraph 16 instructs the President, Secretary-General, Bureau and Quaestors to take speedily all appropriate steps to implement the resolution, particularly as regards premises.

27 It must therefore be stated that the contested resolution is of a decision-making nature and may, in certain circumstances, affect the guarantees provided for the Grand Duchy of Luxembourg in the relevant texts relating to the seat and places of work of the Parliament, as interpreted by the Court.

28 Accordingly this plea must also be rejected and, with it, the objection of inadmissibility in its entirety.

Substance

29 It must be borne in mind first of all that, by virtue of the power to determine its own internal organization conferred on it by Articles 25 of the ECSC Treaty, 142 of the EEC Treaty and 112 of the EAEC Treaty, the Parliament is authorized to take appropriate measures to ensure the proper functioning and conduct of its proceedings. However, under the rule imposing mutual duties of sincere cooperation on the Member States and the Community institutions, as embodied in particular in Article 5 of the EEC Treaty, the decisions of the Parliament must have regard to the powers of the Governments of the Member States to determine the seat of the institutions and the provisional decisions already taken in that regard in the meantime (judgment in Case 230/81, cited above, at paragraph 38).

30 Secondly, it must be remembered that Article 4 of the Decision of 8 April 1965 on the provisional location of certain institutions and departments of the Community (Official Journal 1967 L 152, p. 18) provides that "the General Secretariat of the Assembly and its departments shall remain in Luxembourg". It must also be emphasized that, in the aforesaid judgment, the Court stated that the Parliament must be in a position to maintain in the various places of work outside the place where its Secretariat is established the infrastructure essential for ensuring that it may fulfil in all those places the tasks which are entrusted to it by the Treaties. Within those limits the establishment of such an infrastructure outside the place where the Secretariat is located may therefore be considered compatible with the abovementioned principles governing the respective powers of the Member States and of the Parliament in the matter (judgment in Case 230/81, cited above, at paragraph 54). The Court added, however, that any decision to transfer the Secretariat of the Parliament or the other departments, wholly or partially, de jure or de facto, would constitute a breach of Article 4 of the Decision of 8 April 1965, cited above, and of the assurances which that decision was intended to give to the Grand Duchy of Luxembourg (judgment in Case 230/81, cited above, at paragraph 55).

31 It is in the light of those considerations that it is necessary to examine whether the contested decisions and resolution comply with the limits imposed on the Parliament' s power to determine its own internal organization.

Decision of 1 and 2 June 1988

32 The Luxembourg Government claims that the establishment of an autonomous service in Brussels, known as the Central Press Office, does not amount to the provision of infrastructure essential for carrying out, at that place of work, the tasks entrusted to the Parliament by the Treaty. It also considers that the transfer of the Portuguese-language sector of the Publications Division constitutes an illegal transfer of an administrative unit in breach of the aforesaid Decision of 8 April 1965 since it is part of a wider plan and does not meet the criterion that the infrastructure necessary for the functioning of the Parliament must be essential. The Luxembourg Government also emphasizes that the link established between the Central Press Office and the sectors of the Publications Division disregards by implication the fact that the Office for Official Publications is located in Luxembourg, as confirmed by Article 8 of the Decision of 8 April 1965.

33 The Parliament points out that, notwithstanding a possible lack of clarity on that point in the Decision of 1 and 2 June 1988, the Central Press Office has operated in Brussels since 1980 independently of the Information Office located in the same city. Hence, according to the defendant, the purpose of the decision is not to establish but to enlarge the said Office, which would otherwise no longer be able to perform its task of providing information, given the scope of the Parliament' s powers and the expansion in its activities in that city.

34 It should be noted that it is for each institution to determine the methods, ways and means of pursuing its information policy, subject to the limits imposed by Community law. The obligation to provide the public with information concerning the work of an institution is all the more essential in the case of a Parliament elected by direct universal suffrage, which participates in the legislative process on behalf of its electorate.

35 It should be added that the tasks assigned to the Central Press Office, as described in the aforesaid report of the Ad Hoc Working Party, are manifestly associated with the political activities of the Parliament which are conducted in Brussels, namely:

- to maintain contacts with accredited representatives of the European press in Brussels;

- to compile and publish day-to-day information on the work of the parliamentary committees and delegations;

- to administer the Press Review Service and the future EPISTEL database, the introduction of which is to be brought forward;

- to cooperate with the information services of the political groups;

- to organize the facilities and reception services for accredited journalists in the institution' s various places of work and to manage the Press Room in Brussels.

36 Consequently, and to the extent to which a substantial part of the Parliament' s activities take place in Brussels where a large number of journalists are accredited, it must be acknowledged that an enlargement of the press service in that city, which is necessary to enable it to discharge its task of providing information, does not exceed the discretion accorded to the Parliament in the exercise of the power to determine its own internal organization.

37 It follows that the transfer of the four officials of the Portuguese-language sector of the Publications Division to the Central Press Office must be regarded as commensurate with the need to enlarge the said Office.

38 Moreover, the argument advanced by the Luxembourg Government against the transfer of members of the Publications Division, based on the fact that the Office for Official Publications of the European Communities is located in Luxembourg, must be rejected. Making available to the Secretariat of the Parliament some of the services responsible for the reproduction and distribution of documents intended for or drawn up by the committees and political groups meets the need to provide an essential service at the place where the committees and political groups hold their sittings.

39 The claim in the application which seeks the annulment of the Decision of 1 and 2 June 1988 must therefore be rejected.

Decision of 15 June 1988

40 By the contested decision, the Bureau of the Parliament opted in favour of two building projects in Brussels and approved a note of 6 June 1988 from the Secretariat, according to which the Parliament is to seek in Brussels between 300 and 350 additional offices, two or three conference rooms with at least 200 to 250 seats in order to accommodate meetings of the large political groups and, if necessary, joint sessions of several parliamentary committees, as well as premises needed for the reproduction and distribution services. The building projects adopted by the Bureau in that decision are designed to meet those requirements.

41 The Luxembourg Government considers that even it the building projects adopted by the Bureau are justified by the need to accommodate a "large committee", they are in reality merely an extension of the decisions to transfer services and, as such, do not meet the need for essential infrastructure and are in breach of the principle of proportionality. In its view, the decision to set up a "large committee" is not a matter for the Bureau but for the Parliament itself and is therefore prospective and hypothetical.

42 It is apparent from the note of the Secretary-General and the decision of the Bureau that the Parliament' s objective is to make a sufficient number of offices and conference rooms available to the Members, the political groups and the Secretariat. The Parliament may pursue that objective in the exercise of the power to determine its own internal organization.

43 Moreover, as the Parliament has pointed out, the term "large committee" used by the Bureau in the contested decision and by the Secretary-General is connected with the procedure laid down in Article 37 of the Rules of Procedure of the Parliament, which has never attracted the slightest criticism from either the Member States or the Council. According to that provision, the Parliament sitting in plenary may refer a request for an opinion or for advice to the appropriate committee with the power to take a decision.

44 It must be emphasized that meetings at which the committee takes a decision are public, which means that sufficient places must be available for the public and, if necessary, the representatives of the press. A joint sitting of several parliamentary committees also entails the use of a large room. Recourse to such procedures clearly relates to the internal organization of the work of the Parliament and cannot therefore be the subject of judicial review (judgment in Joined Cases 358/85 and 51/86 France v Parliament [1988] ECR 4821, at paragraph 17).

45 The claim in the application which seeks the annulment of the Decision of 15 June 1988 must therefore be rejected, with the result that the application in Case C-213/88 must be dismissed in its entirety.

Resolution of the Parliament of 18 January 1989

46 The Luxembourg Government considers that by adopting the contested resolution the Parliament exceeded the limits of its powers, as defined by the Court in its aforesaid judgments in Case 230/81 and Case 108/83, and disregarded the fact that the Governments of the Member States have the power to determine the seat and provisional places of work of the institutions. In so doing, according to the Luxembourg Government, the Parliament infringed the provisions of the Treaties and the rules on their application, in particular Article 4 of the aforesaid Decision of 8 April 1965. At the same time, in the applicant' s view, the defendant contravened the principle of proportionality.

47 In that regard the Luxembourg Government claims that the establishment in Brussels of the entire staff working for the committees and delegations as well as the staff responsible for information and public relations, together with the transfer to Brussels of the staff dealing with studies and research activities, does not satisfy the criterion of "essential infrastructure" laid down by the Court. The same holds true, in the applicant' s view, for the other staff referred to in the final indents of paragraph 10 of the resolution. Furthermore, the incompatibility with the Treaties of the decisions to transfer staff means, according to the Luxembourg Government, that the measures taken to lease or acquire new premises and to terminate leases on premises no longer required are also incompatible with the Treaties.

48 The Parliament justifies the adoption of the contested measures on the grounds of the increase in its workload and its democratic responsibility, especially since the entry into force of the Single European Act. It notes that in practice the Members reside increasingly in Brussels in order to maintain contact with the Commission and the Council, so that the staff in or transferred to Brussels is essential for the proper functioning of the services listed in paragraph 10 of the resolution. It its view, it is for the Parliament to determine those officials whose assignment to Brussels is essential, while it is incumbent on the applicant to prove that the infrastructure so created is not essential.

49 The Parliament maintains, moreover, that proper functioning is a changing concept. Without calling in question the power of the Member States to determine the seat of the institution, it considers that the longer the Member States persist in their inaction, which is open to criticism in the light of Article 5 of the EEC Treaty, the more widely the scope of the Parliament' s power to determine its own internal organization, particularly as regards its places of work, must be interpreted.

50 In reply, the Luxembourg Government states that the legal system established by the Treaties does not provide for any redress against that alleged failure to act on the part of the Member States, which, moreover, cannot be blamed on one particular Government. It adds that, in any event, the partial exercise by the Member States of the powers vested in them by the Treaties to determine the seat of the institutions cannot lead to an increase in the powers of the Parliament.

51 By way of a preliminary remark, it should be pointed out in response to the Parliament' s arguments alleging a failure to act on the part of the Member States that in its judgment in Case 230/81 the Court established that the Governments of the Member States had at different times taken decisions fixing the provisional places of work of the institutions on the basis of Articles 77 of the ECSC Treaty, 216 of the EEC Treaty and 189 of the EAEC Treaty.

52 It is common ground that the Governments of the Member States have not yet discharged their obligation to determine the final seat of the institutions in accordance with the abovementioned provisions of the Treaties. However, as is also clear from the case-law cited above, that circumstance does not entail any widening of the discretion accorded to the Parliament in the exercise of the power to determine its own internal organization. Accordingly, the Parliament 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 already taken in that regard in the meantime.

53 It should be noted that the Parliament has acknowledged that the purpose of the resolution in question was not to provide for the transfer of directorates-general and that the measures proposed in it are to be applied only to the extent to which the services involved are essential for the proper functioning of the institution.

54 As regards the staff working for the committees and delegations, it should be remembered that in its earlier judgments the Court established that the practice of the Parliament to hold meetings of committees and political groups in Brussels had never been called in question by any Member State (judgment in Case 230/81, cited above, at paragraph 48). Therefore the Parliament is justified in taking the view that it is essential to have in Brussels the staff necessary for the holding of those meetings.

55 So far as concerns the staff responsible for information and public relations, it follows from the preceding considerations regarding the Central Press Office that it is justified for the units responsible for relations with the press and, more generally, for providing information to have the necessary staff at their disposal.

56 As regards the staff dealing with studies and research, the Parliament maintains that the services concerned work directly with the Members and that it is necessary for the latter to have at any time the necessary technical staff at their disposal and to have access to the library. It must be stated that it is for the Parliament to assess, in the exercise of the power to determine its own internal organization, the need to transfer to Brussels the staff required for the department in question to carry out its tasks.

57 So far as concerns the other staff referred to in paragraph 10 of the resolution, it is sufficient to point out that first of all they are persons whose principal role is to provide services directly to individual Members. Secondly, they are persons whose supervisory or supporting roles require them to work in the same place as the other services mentioned in paragraph 10 of the resolution. It must be stated that in both cases the persons concerned make up only a small part of the relevant category of the staff of the Parliament.

58 Consequently it must be held that the transfers of staff resulting from the contested resolution do not go beyond the discretion accorded to the Parliament in the exercise of the power to determine its own internal organization. It has not been established, therefore, that the scale of those transfers was such as to undermine the decisions of the Governments of the Member States and especially Article 4 of the Decision of 8 April 1965, cited above.

59 The decisions regarding premises which may ensue from the implementation of the resolution are only an ancillary aspect of the dispute, as the Luxembourg Government has expressly acknowledged, and are therefore not of such a kind as to call in question the legality of the contested resolution.

60 Accordingly, the argument based on the Parliament' s lack of competence is unfounded and must therefore be rejected.

61 It follows from the foregoing considerations as a whole that the application in Case C-39/89 must also be dismissed.

Decision on costs

Costs

62 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party' s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs.

Operative part

On those grounds,

THE COURT

hereby:

1. Dismisses the applications;

2. Orders the applicant to pay the costs.