Case C‑595/14

European Parliament

v

Council of the European Union

‛Actions for annulment — Replacement of the contested decision in the course of the proceedings — Purpose of the action — Police and judicial cooperation in criminal matters — New psychoactive substance subjected to control measures — Legal framework applicable after the entry into force of the Treaty of Lisbon — Transitional provisions — Consultation of the European Parliament’

Summary — Judgment of the Court (Third Chamber), 23 December 2015

Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Annulment of Decision 2014/6688 on subjecting certain psychoactive substances to control measures — Risk of undermining the effectiveness of the control of the psychoactive substances concerned and the protection of public health — Effects of the annulled decision to be maintained

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

Actions for annulment — Actions of the Member States, the Parliament, the Council and the Commission — Admissibility not conditional on demonstrating an interest in bringing proceedings — Decision replacing the contested decision during the proceedings — Effects of the annulled decision to be maintained — Action retaining its purpose

Actions for annulment — Interest in bringing proceedings — Interest to be assessed at the time at which an action is brought — Repeal of the contested act in the course of the proceedings — Declaration that there is no need to adjudicate — Not permissible — Retention of the applicant’s interest in obtaining recognition of the contested act’s illegality

The repeal of a contested decision in the context of an action for annulment, which occurred after the lodging of the action, does not in itself place the court under an obligation to declare that there is no need to adjudicate for lack of purpose or for lack of interest in bringing proceedings at the date of the delivery of the judgment. Nevertheless, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the time at which the action is brought, failing which the action will be inadmissible. That objective of the dispute must, like the interest in bringing proceedings, persist until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it. It follows that, where the contested measure has ceased to have effect in the course of proceedings, it is for the Court to assess in the light of the specific circumstances the applicant’s interest in bringing proceedings, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained. (see paras 16-18)

The European Parliament’s right of action, laid down in the second paragraph of Article 263 TFEU, like the right of action of the Member States laid down in the same provision, is not conditional on proof of an interest in bringing proceedings. Therefore, the Court’s decision to give judgment or, on the contrary, to rule that there is no need to adjudicate in a case cannot logically be dependent on the assessment of the Parliament’s continuing interest in bringing proceedings in respect of the decision under appeal. That said, the Court is able to determine that there is no need to adjudicate in cases initiated by Member States when, following the annulment or withdrawal of the contested act, those States obtained the result their action was intended to achieve. Therefore, an appeal against Decision 2014/688 on subjecting certain psychoactive substances to control measures is admissible in that the replacement of that decision by Decision 2015/1875 on subjecting certain psychoactive substances to control measures allowed the past effects of the contested decision to remain and has therefore not resulted in effects equivalent to those which the annulment of the decision would, in principle, have had. In that respect, it is apparent from recital 35 and Article 2 of Decision 2015/1875 that it applies without prejudice to the obligations stemming from Decision 2014/688 as regards the period set for submitting the psychoactive substances concerned to control measures and to criminal penalties, that is, by 2 October 2015 at the latest. It follows that the Council neither sought to question the validity of those obligations, such as they stem from Decision 2014/688, nor establish retroactively the validity of those obligations on the basis of Decision 2015/1875. (see paras 20-23, 26)

As regards Decision 2005/387 on the information exchange, risk-assessment and control of new psychoactive substances, its Article 8(3) —which provides that it is possible for the Council to submit a new psychoactive substance to control measures — continues, by virtue of Article 9 of Protocol (No 36) on transitional provisions, to produce its legal effects, after the entry into force of the Treaty of Lisbon, for as long as it is not repealed, annulled or amended, and, consequently, it permits the adoption of implementing measures in accordance with the procedure it establishes. In this regard, 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. The repeal of Article 39(1) EU by the Treaty of Lisbon cannot call in question that obligation to consult the European Parliament since, firstly, 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, secondly, 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. Due consultation of the Parliament in the cases provided for by the applicable rules of EU law constitutes an essential procedural requirement, breach of which renders the measure concerned void. Consequently, a decision based on Article 8(3) of Decision 2005/387 which was adopted without the prior consultation of the Parliament must be annulled. (see paras 35, 39-42)