Keywords

Summary



Keywords

1 . ACTION FOR FAILURE TO ACT - RIGHT OF ACTION OF THE INSTITUTIONS - PARLIAMENT

( EEC TREATY , ARTS 4 ( 1 ) AND 175 , FIRST PARAGRAPH )

2 . ACTION FOR FAILURE TO ACT - INSTITUTION CALLED UPON TO ACT - DEFINITION OF POSITION FOR THE PURPOSES OF THE SECOND PARAGRAPH OF ARTICLE 175 OF THE EEC TREATY - MEANING

( EEC TREATY , ART . 175 , SECOND PARAGRAPH )

3 . ACTION FOR FAILURE TO ACT - FAILURE TO ACT - MEANING - MEASURES SUCH THAT THE OMISSION TO ADOPT THEM MAY AMOUNT TO A FAILURE TO ACT

( EEC TREATY , ARTS 175 AND 176 )

4 . FAILURE TO ACT - DEFENCE - DIFFICULTY IN FULFILLING THE INSTITUTION ' S OBLIGATION - IRRELEVANT

( EEC TREATY , ART . 175 )

5 . TRANSPORT - ESTABLISHMENT OF A COMMON POLICY - COUNCIL ' S DISCRETION - IMPLEMENTATION OF FREEDOM TO PROVIDE SERVICES - COUNCIL ' S OBLIGATION TO ACT

( EEC TREATY , ARTS 59 , 60 , 61 , 74 AND 75 )

6 . TRANSPORT - INTERNATIONAL AND NATIONAL TRANSPORT - IMPLEMENTATION OF FREEDOM TO PROVIDE SERVICES - COUNCIL ' S OBLIGATION TO ACT

( EEC TREATY , ART . 75 )

Summary

1 . THE FIRST PARAGRAPH OF ARTICLE 175 EXPRESSLY GIVES A RIGHT OF ACTION FOR FAILURE TO ACT AGAINST THE COUNCIL AND COMMISSION INTER ALIA TO ' THE OTHER INSTITUTIONS OF THE COMMUNITY ' . IT THUS GIVES THE SAME RIGHT OF ACTION TO ALL THE COMMUNITY INSTITUTIONS . IT IS NOT POSSIBLE TO RESTRICT THE EXERCISE OF THAT RIGHT BY ONE OF THEM WITHOUT ADVERSELY AFFECTING ITS STATUS AS AN INSTITUTION UNDER THE TREATY , IN PARTICULAR ARTICLE 4 ( 1 ).

THE FACT THAT THE EUROPEAN PARLIAMENT IS AT THE SAME TIME THE COMMUNITY INSTITUTION WHOSE TASK IS TO EXERCISE A POLITICAL REVIEW OF THE ACTIVITIES OF THE COMMISSION , AND TO A CERTAIN EXTENT THOSE OF THE COUNCIL , IS NOT CAPABLE OF AFFECTING THE INTERPRETATION OF THE PROVISIONS OF THE TREATY ON THE RIGHTS OF ACTION OF THE INSTITUTIONS .

ACCORDINGLY , THE EUROPEAN PARLIAMENT HAS THE CAPACITY TO BRING AN ACTION FOR FAILURE TO ACT .

2 . A REPLY TO A CALL TO ACT WHICH NEITHER DENIES NOR CONFIRMS THE ALLEGED FAILURE AND GIVES NO INDICATION OF THE INSTITUTION ' S VIEWS AS TO THE MEASURES WHICH IT IS REQUIRED TO TAKE , DOES NOT AMOUNT TO A DEFINITION OF POSITION FOR THE PURPOSES OF THE SECOND PARAGRAPH OF ARTICLE 175 OF THE TREATY .

3 . FOR THERE TO BE A FINDING OF FAILURE TO ACT UNDER ARTICLE 175 OF THE TREATY IT IS NECESSARY THAT THE OMISSION WITH WHICH THE COUNCIL OR COMMISSION IS CHARGED RELATES TO MEASURES THE SCOPE OF WHICH CAN BE SUFFICIENTLY DEFINED FOR THEM TO BE IDENTIFIED INDIVIDUALLY AND ADOPTED IN COMPLIANCE WITH THE COURT ' S JUDGMENT PURSUANT TO ARTICLE 176 .

4 . UNDER ARTICLE 175 THE COURT MUST FIND THAT THERE HAS BEEN AN INFRINGEMENT OF THE TREATY IF THE COUNCIL OR THE COMMISSION FAILS TO ACT WHEN UNDER AN OBLIGATION TO DO SO . ARTICLE 175 TAKES NO ACCOUNT OF HOW DIFFICULT IT MAY BE FOR THE INSTITUTION IN QUESTION TO COMPLY WITH THE OBLIGATION .

5 . ALTHOUGH IT IS TRUE THAT ITS DISCRETION IS LIMITED BY THE REQUIREMENTS WHICH STEM FROM THE ESTABLISHMENT OF THE COMMON MARKET AND BY CERTAIN PRECISE PROVISIONS IN THE TREATY SUCH AS THOSE LAYING DOWN TIME-LIMITS , THE FACT REMAINS THAT UNDER THE SYSTEM LAID DOWN BY THE TREATY IT IS FOR THE COUNCIL TO DETERMINE , IN ACCORDANCE WITH THE RELEVANT RULES OF PROCEDURE , THE AIMS OF AND MEANS FOR IMPLEMENTING A COMMON TRANSPORT POLICY .

NEVERTHELESS , WITH REGARD TO FREEDOM TO PROVIDE SERVICES THE COUNCIL DOES NOT HAVE THE DISCRETION ON WHICH IT MAY RELY IN OTHER AREAS OF THE COMMON TRANSPORT POLICY . SINCE THE RESULT TO BE ACHIEVED IS DETERMINED BY THE COMBINED EFFECT OF ARTICLES 59 , 60 , 61 AND 75 ( 1 ) ( A ) AND ( B ) OF THE TREATY , THE EXERCISE OF A CERTAIN MEASURE OF DISCRETION IS ALLOWED ONLY AS REGARDS THE MEANS EMPLOYED TO OBTAIN THAT RESULT , BEARING IN MIND , AS REQUIRED BY ARTICLE 75 , THOSE FEATURES WHICH ARE SPECIAL TO TRANSPORT .

6 . THE COUNCIL WAS REQUIRED TO EXTEND FREEDOM TO PROVIDE SERVICES TO THE TRANSPORT SECTOR BEFORE THE EXPIRY OF THE TRANSITIONAL PERIOD PURSUANT TO ARTICLE 75 ( 1 ) ( A ) AND ( 2 ) OF THE TREATY IN SO FAR AS THE EXTENSION RELATED TO INTERNATIONAL TRANSPORT TO OR FROM THE TERRITORY OF A MEMBER STATE OR ACROSS THE TERRITORY OF ONE OR MORE MEMBER STATES AND , WITHIN THE FRAMEWORK OF FREEDOM TO PROVIDE SERVICES IN THE TRANSPORT SECTOR , TO LAY DOWN , PURSUANT TO ARTICLE 75 ( 1 ) ( B ) AND ( 2 ), THE CONDITIONS UNDER WHICH NON-RESIDENT CARRIERS MAY OPERATE TRANSPORT SERVICES WITHIN A MEMBER STATE .