7.

I am in favour of the interpretation granting the greatest measure of protection. I am well aware that, interpreted literally, Article 173 does not provide for judicial review of the decisions of the Parliament. I none the less believe that such an interpretation would conflict with the general scheme of the Treaties and I consider that there is sufficient support in the Court's case-law and in academic works for the opposite view. Let us begin with the case-law. There is no doubt that it supports in principle the Court's power to rule on the validity and lawfulness of acts of the Parliament. Let me refer for example to the judgment of 15 September 1981 in Case 208/80 (Lord Bruce of Donington v Aspden [1981] ECR 2205). In that case, which was brought under Article 177 of the EEC Treaty, the Court examined and by implication held to be lawful the rules adopted by the Parliament to govern the reimbursement of expenses and the indemnities paid to its members. The judgment of 10 February 1983 in Case 230/81 (Luxembourg v Parliament [1983] ECR 255) is even more significant however. The Parliament raised an objection of inadmissibility in an action brought by Luxembourg against a decision concerning its seat and places of work. The Grand Duchy responded by proposing that the Court adopt a wide interpretation of Article 173 on the basis of ‘the increased powers of the Parliament’ and in order ‘to avoid lacunae in the legal protection provided by the Court’ (paragraph 15). The Court resolved the problem by deciding that it had jurisdiction under Article 38 of the ECSC Treaty in regard to measures which relate ‘simultaneously and indivisibly to the spheres of the three Treaties’ (paragraph 19). The Court therefore took the view that there was no need to consider the question whether the principles appertaining to observance of Community law required that Article 173 of the EEC Treaty and Article 146 of the EAEC Treaty be interpreted as meaning that the Parliament acts may be attacked before the Court (paragraph 20). I would however draw the Court's attention to a sentence which strikes me as highly significant. After referring to Articles 173 and 146, the judgment points out that ‘there is no express provision in those articles for active or passive participation of the Parliament in the proceedings before the Court’. Am I wrong in saying that the emphasis in that obiter dictum is on the adjective ‘express’? I would not think so. It must therefore be accepted that the decision under consideration undeniably points in the direction of the interpretation which I favour. That is not all. The attention of those who rely on the letter of Article 173 must be drawn to the wide interpretation which the Court has always adopted of the rules concerning its own powers. Thus, in the judgment of 15 July 1963 in Case 25/62 (Plaumann v Commission [1963] ECR 95), the Court stated with regard to Article 173 that ‘provisions ... regarding the right of interested parties to bring an action must not be interpreted restrictively. Therefore, the Treaty being silent on the point, a limitation in this respect may not be presumed’ (p. 107). Also, in the judgment of 31 March 1971 in Case 22/70 (Commission v Council [1971] ECR 263), the Court decided that the objective of the action for annulment ‘is to ensure, as required by Article 164, observance of the law in the interpretation and application of the Treaty. It would be inconsistent with this objective to interpret the conditions under which the action is admissible ... restrictively ...’ (paragraphs 40 and 41). In the same context, reference may be made to the judgment of 15 June 1976 in Case 110/75 (Mills v EIB [1976] ECR 955). As the Court will be aware, Article 179 of the EEC Treaty gives the Court jurisdiction in disputes between the Community and its servants. However, the European Investment Bank is a legal person distinct from the Community (combined effect of Articles 129 and 210). It was not therefore unreasonable to believe that the said rule was not applicable to its employees. The judgment decided otherwise: ‘The staff of the Bank are ... placed in a special legal situation identical to that of the staff of the institutions of the Community’. That identical situation permits them to bring actions before the Court. The judgment of 17 February 1977 in Case 66/76 (CFDT v Council [1977] ECR 305) is even more important. The French trade union federation was seeking the annulment of a decision of the Council designating representative organizations to nominate candidates for the consultative committee of the ECSC; however, since it was aware that the ECSC Treaty did not permit private individuals to challenge acts of the Council, it relied on Article 31 of that Treaty, which requires the Court to ensure that the law is observed. Although it declared the action inadmissible, the Court accepted that ‘the principles upon which the applicant relies call for a wide interpretation of the provisions concerning the institution of proceedings ... with a view to ensuring individuals' legal protection’. For our purposes, of course, that is the only point that counts. In a system of judicial protection that is much less cohesive and affords much less protection than that established by the EEC Treaty, a declaration of inadmissibility was in fact inevitable. Finally, another judgment no less worthy of citation is that delivered on 26 May 1982 in Case 44/81 (Germany v Commission [1982] ECR 1855). In that case, the Court declared inadmissible an application by the Federal Republic of Germany for an order for payment directed against the Commission. It observed however that the Member State could have acted under Article 173 or 175 and for that reason added that the failure to provide for the type of action brought by it did not constitute ‘a lacuna which must be filled in order to ensure that persons concerned have effective protection for their rights’ (paragraph 7). Thus, another important obiter dictum is to be found in that case. Its meaning seems to me to be that the obligation to observe the law takes precedence over the strict terms of the written law. Whenever required in the interests of judicial protection, the Court is prepared to correct or complete rules which limit its powers in the name of the principle which defines its mission. After that long, yet necessary and certainly illuminating review, let us turn our attention to academic opinion. In my opinion, the most significant contribution that it has made to the resolution of the problem before the Court is that it highlights the transitory and nonbinding nature of the reasons for which the Parliament was excluded from the list of institutions whose acts may be challenged. It has been pointed out that in the original scheme of the EEC and EAEC Treaties the only institutions entitled to adopt measures capable of having legal effects were the Council and the Commission. The Parliament could certainly compel the Commission to resign by approving the motion provided for in Article 144 of the EEC Treaty and Article 114 of the EAEC Treaty, but the political character of that act overshadows its legal character to such a degree that it was inappropriate (or pointless) to provide a right of action against the body competent to adopt it. However, there have been changes since then, particularly in regard to the budget. Until 1975, the budget was approved by a decision of the Council, that is to say by an act which could unquestionably be attacked. Today, the budget is adopted by the Council and the Parliament together. May it be concluded from that that the measures concerned are not subject to review by the Court? Certainly not. On the contrary, the change which took place in the procedure for approving the budget is the fact which more than any other demonstrates that the reasons for which the authors of the Treaty drafted Article 173 without mentioning the Parliament no longer exist. Moreover, as has been seen, the exclusion of the Parliament was not deliberate. For example, it did not flow from the nature of the Parliament. It was much more the implicit consequence of the largely ceremonial functions then attributed to it. It derived in fact, if I may be permitted a procedural metaphor, from the presumption that review of its acts was superfluous. However, it is clear that such a presumption is rebutted when judicial review is shown to be indispensable and when, in addition, the survival of the presumption compromises the very concept of legality in the Community system. To complete the picture, all that now remains to be dealt with is the objection raised by the Parliament, principally at the hearing, to the effect that it would be inconsistent to allow proceedings to be brought against it without allowing it to bring proceedings itself. Let me say first of all that in my opinion it is going too far to attempt to forge so close a link between the two types of proceedings (in the context of Article 173, for example, such a link does not exist with regard to the Member States; and I would also cite the position of the regions with regard to review of the constitutionality of their acts in Italian law). I would add however that the reasons which led me to argue that decisions of the Parliament may be attacked before the Court also support the proposition that the Parliament may attack the acts of other institutions, and I note that the Court's case-law also offers a small measure of support for that argument. Permit me to refer the Court first of all to the two ‘Isoglucose’ judgments (judgments of 29 October 1980 in Case 138/79 Roquette Frères v Council [1980] ECR 3333 and Case 139/79 Maizena v Council [1980] ECR 3393 respectively). The Council contested the Parliament's right to intervene voluntarily in a case before the Court by claiming that such a power must be equated with a right of action. However, the Court decided that the Parliament's intervention was admissible on the basis of Article 37 of the Statute of the Court and thus by implication rejected the objection. The next judgment in point is that of 22 May 1985 in Case 13/83 (Parliament v Council). Brought before the Court by an application under Article 175, the Council pleaded the inadmissibility of the action on the basis of a schematic interpretation of the Treaty. It stated that, while Article 175 gives a right of action ‘to Member States and the other institutions of the Community’, it is also true, as the Court emphasized in the judgment of 18 November 1970 in Case 15/70 (Chevalleyv Commission [1970] ECR 975), that that provision and Article 173 ‘merely prescribe one and the same method of recourse’. If, therefore, the Treaty does not permit the Parliament to challenge acts of the Council and the Commission, it cannot permit it to bring an action before the Court for a declaration that one of those institutions has unlawfully failed to act. As the Court will be aware, that objection was not accepted on the grounds that the action for failure to act is independent and that all the Community institutions are entitled to bring it. The obstacle represented by the Chevalley judgment was thus removed; it is therefore possible to argue that since the rules concerning jurisdiction must be interpreted widely, the Council's argument can be rejected. It is thus Article 173 which must be read in a way which accords with the more widely drafted Article 175.