Opinion of the Advocate-General



Opinion of the Advocate-General

1. In this case the Court of Justice is being asked to rule on a legal question of fundamental importance for the Community institutional system and the institutional balance which underpins it. The question is whether it is permissible under Community law to create secondary legal bases for the purpose of adopting legislative measures following a simplified procedure as opposed to that laid down by the Treaty. In other words, it is a matter of deciding whether it is legally possible to delegate legislative power within the Community legal order.

I – Legal background to the action

2. On the basis of the first paragraph of Article 230(1) EC, the European Parliament brought an action before the Court of Justice for the annulment, primarily, of Articles 29(1) and (2) and 36(3) of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (2) and, alternatively, of the whole of that directive.

3. The contested directive is based on point 1(d) of the first paragraph of Article 63 EC which provides: ‘The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:

1. measures on asylum … within the following areas:

…

(d) minimum standards on procedures in Member States for granting or withdrawing refugee status;’

4. Directive 2005/85 was adopted unanimously by the Council on a proposal from the Commission and after consulting the European Parliament, in accordance with Article 67(1) EC which provides: ‘During a transitional period of five years following the entry into force of the Treaty of Amsterdam, the Council shall act unanimously on a proposal from the Commission … and after consulting the European Parliament’.

5. The directive was in fact adopted more that five years after the entry into force of the Treaty of Amsterdam and the second indent of Article 67(2) EC provides:

‘After this period of five years:

…

– the Council, acting unanimously after consulting the European Parliament, shall take a decision with a view to providing for all or parts of the areas covered by this Title to be governed by the procedure referred to in Article 251 and adapting the provisions relating to the powers of the Court of Justice’.

6. However, as is apparent from the recital 4 in the preamble to Decision 2004/927/EC concerning the transition to co-decision procedures adopted by the Council on 22 December 2004 pursuant to the second indent of Article 67(2) (‘bridge decision’) (3), that decision does not affect the provisions of Article 67(5) EC. While Article 67(5) EC, by derogation from paragraph 1 thereto, provides for the adoption, in accordance with the procedure referred to in Article 251 EC of the measures provided for in Article 63(1) EC, that is only ‘provided that the Council has previously adopted, in accordance with paragraph 1 of this article, Community legislation defining the common rules and basic principles governing these issues’. The contested directive specifically aims to set out the common rules and basic principles governing the procedures in Member States for granting or withdrawing refugee status.

7. For that purpose, the contested provisions of Directive 2005/85 authorise the Council, acting by a qualified majority on a proposal from the Commission and after consultation of the European Parliament, to adopt and to amend, first, a minimum common list of third countries which are to be regarded by Member States as safe countries of origin, which is the object of Article 29(1) and (2) and, second, a common list of European safe third countries, which is the object of Article 36(3) (‘the lists of safe countries’). Those lists of safe countries are to be adopted by applying the criteria for the designation of safe third countries set out in Annex II to that directive and the criteria for the designation of European safe countries set out in Article 36(2) of the directive.

II – Merits of the action

8. By this action, the Parliament essentially alleges that the Council, by means of the contested provisions, created secondary legal bases which enable it to adopt and amend the lists of safe countries according to a procedure which derogates from that of the first indent of Article 67(5) EC, which, subject to conditions, provides for co-decision.

9. The Parliament formally submits four pleas in law supporting its claim for annulment: infringement of the Treaty stemming from disregard of Article 67(5) EC, the Council’s lack of competence, an insufficient statement of reasons constituting a breach of essential procedural requirements and a breach of the principle of cooperation in good faith. The first two pleas raise the central question in this case, which justified its assignment to the Grand Chamber, that of whether it is possible for the Community legislature to have recourse to secondary legal bases. I will first turn my attention to an assessment of the merits of those two pleas and, as the arguments put forward in support of each one are not easily dissociable, I will examine them together.

10. I would simply observe, as a preliminary point, that the reason for the Parliament’s alternative heads of claim that the directive should be annulled in its entirety is expressly the wish to avoid a finding of inadmissibility which would result from application of the case-law according to which an application for partial annulment is admissible only if the provisions the annulment of which is sought may be severed from the remainder of the measure. (4) That is so only where the annulment of the contested provisions would not alter the substance of the measure. (5) In the case submitted for our consideration, the annulment of the contested provisions clearly would not alter the substance of the contested directive, with the result that the principal heads of claim are admissible.

A – The pleas relating to infringement of the Treaty and lack of competence

11. According to the Parliament, by reserving to itself, by Articles 29(1) and (2) and 36(3) of the contested directive, the adoption and amendment of the lists of safe countries after mere consultation of the Parliament, the Council simultaneously infringed the provisions of the first indent of Article 67(5) EC which provides for the co-decision procedure and acted without the competence to do so; the Council is not authorised to establish, in a piece of secondary legislation, a legal basis for the adoption of successive acts of secondary legislation according to a procedure other than that laid down by the Treaty, where those acts of secondary legislation do not have the character of implementing measures. It is apparent that the two pleas are inseparable: if the Council had the competence to have recourse to secondary legal bases, it could not have infringed Article 67(5) EC; in that case, the lists of safe countries will be adopted correctly on the basis of secondary legal bases and not on the basis of the Treaty provisions.

12. That argument of the Parliament is based on two fundamental assumptions: that Article 67(5) EC requires the lists of safe countries to be adopted according to the co-decision procedure, inasmuch as the contested directive constituted the final stage in the determination by the legislature of the common rules and basic principles applicable to that issue the final element of the ‘necessary legislation’ to use the Parliament’s expression; the co-decision procedure is now necessary, since the adoption and amendment of the lists of safe countries cannot be the subject of measures of an executive nature. Those are the two assumptions which I shall touch on briefly even though, as I am going to demonstrate, it is not necessary to examine their relevance for the purpose of assessing the merits of the pleas of lack of competence and infringement of the Treaty.

1. Directive 2005/85 – the final stage of the necessary legislation?

13. The first indent of Article 67(5) EC provides that the Council is to adopt the measures provided for in Article 63(1) and (2)(a) EC in accordance with the co-decision procedure referred to in Article 251 EC provided that it has adopted ‘Community legislation defining the common rules and basic principles governing these issues’, that is to say governing the asylum policy provided for by Article 63(1) EC and some of the measures on refugees and displaced persons, those referred to in Article 63 2(a) (EC). According to the Parliament, the definition of the common rules and basic principles was completed by the adoption of the contested directive, with the result that the co-decision procedure henceforth applies in respect of the adoption of any subsequent measure on those matters, in particular in respect of the establishment of the lists of safe countries. The contested directive constitutes the final stage of the necessary legislation required by Article 67(5) EC for the transition to co-decision; the basic legal framework in respect of Article 63(1) and 2(a) EC is now complete, given the legislative measures already adopted. The Parliament mentions the following measures: Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, (6) a regulation based on Article 63(1)(a) EC; Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (7) based on Article 63(1)(b) EC; Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, (8) a directive based on Article 63(1)(c), (2)(a) and (3)(a) EC.

14. Secondly, the Parliament submits that if, as the Commission, which intervened in support of the form of order sought by the Parliament, believes to be the case, the initial adoption of the lists of safe countries still had to form part of the common rules required and, on that basis, come under the consultation procedure, it would certainly constitute the final stage thereof. Consequently, the subsequent amendment of those lists should follow the co-decision procedure, contrary to what the contested secondary legal bases provide. Failing that, the Council could delay indefinitely completion of the task of determining the common rules and basic principles and, therefore, the transition to the co-decision procedure.

15. The Council contends that ‘necessary legislation’ is a vague concept the meaning of which can be defined only by the legislature, in this case the Council. In the present case, the Council took the view that the establishment of the list of safe countries and the list of European safe countries forms part of the Community legislation defining the common rules and basic principles on asylum. Moreover, it endeavoured to adopt them in the actual body of the contested directive.

16. It is apparent that the parties are divided as regards that problem of categorisation. I would observe at the outset that it is obviously not possible to share the Council’s opinion as regards the absolute discretion it claims to have to decide on what forms part of the necessary legislation. It goes without saying that the interpretation and application of a concept which determines the legislative procedure applicable, and therefore in particular the extent of the Parliament’s participation in the decision-making process, which accordingly affects the institutional balance, must be subject to review by the Court, whose task it is to safeguard that institutional balance. (9) An examination of the merits of the pleas of lack of competence and infringement of the Treaty submitted by the Parliament does not, however, mean that the respective arguments have to be dealt with by determining whether the establishment or even the amendment of the lists of safe countries forms part of the necessary legislation or whether the contested directive constitutes its culmination. It suffices to point out that in any event the contested secondary legal bases provide for a decision-making process which derogates from that laid down in Article 67(5) EC, irrespective of the situation. The contested provisions provide for decisions to be taken by the Council by a qualified majority after consultation of the Parliament. Article 67(5) EC for its part lays down that the necessary legislation is to be adopted unanimously by the Council after consulting the Parliament and, once that legislation has been laid down, it provides for co-decision in respect of the adoption of subsequent acts. Consequently, if the contested directive is considered to constitute the final stage of the necessary legislation, the naming the safe countries should take place by way of co-decision; if that is not the case and the naming of the safe countries still forms part of the necessary legislation, this should be done by the Council acting unanimously after consulting the Parliament.

17. In other words, the only important question is that of establishing whether the Council may lawfully, in a legislative measure which it adopts in compliance with the procedure provided for to that effect by the Treaty, establish legal bases for the purpose of adopting subsequent measures in accordance with another procedure which is simplified in relation to that laid down by the Treaty. The answer would certainly be in the affirmative (10) if those subsequent measures were in the nature of implementing measures. (11) The question is thus whether the adoption and amendment of the lists of safe countries constitute implementing measures. In the event that they do, it is of little importance whether or not the contested directive is the last element of the necessary legislation, as the lists of safe countries could be adopted pursuant to a secondary legal basis according to a simplified procedure such as that chosen by the Council. However, the Parliament submits specifically that the naming of the safe countries comes under the competence of the Community legislature.

2. Do the lists of safe countries fall under the heading of executive matters?

18. Does the naming of safe countries not fall under the heading of executive rather than legislative matters? Measures which set out the ‘basic elements of the matter to be dealt with’ are known to be legislative in nature (12) and, for that reason, it is imperative that they be adopted by the Community legislature on the basis of the Treaty, following the procedure provided for therein for that purpose. In so far as the naming of safe countries must be carried out in accordance with the criteria laid down in the contested directive, more specifically in Annex II thereto so far as concerns the identification of safe third countries and in Article 36(2) thereof as regards the determination of European safe countries, can it still be considered to be one of ‘the basic elements of the matter to be dealt with’, that is, one of the basic elements of the minimum standards on procedures in Member States for granting or withdrawing refugee status within the meaning of Article 63(1)(d) EC? Even if all the parties to the proceedings before the Court agree to regard the lists of safe countries as measures of a legislative nature, there may be cause for hesitation.

19. In support of categorisation as implementing measures, it must be pointed out that both in the Commission’s initial proposal (13) and in its amended proposal, (14) it fell to the Member States to designate the safe countries on the basis of the criteria laid down in the directive. The Member States are in principle responsible for the implementation of Community law. Conversely, although the criteria for designation appear in the directive, the fact that the Council finally decided to adopt common lists of safe countries for the purpose of approximating the existing national lists and providing national legal systems which have not yet adopted measures to that effect with minimum lists militates in favour of categorisation as a legislative measure. The fact that the Council wished initially to incorporate the lists of safe countries in the contested directive and abandoned that idea only on account of the difficulty of reaching an agreement on those lists without delaying overmuch the adoption of the directive also militates in favour of that categorisation. (15) Finally, the scope of the consequences attached to those lists supports that view. In the context of asylum application procedures, the use of those lists determines the way in which the national authorities will deal with a large part of the applications and decides the extent of the procedural guarantees provided for by the directive. Pursuant to Article 25 of the directive, Member States may consider an application for asylum inadmissible and, therefore, are not required to examine whether the applicant qualifies as a refugee if that applicant comes from a safe third country; that presumption of the safety of that country is however rebuttable if the applicant presents serious counter-indications. Furthermore, pursuant to Article 36 of the directive, Member States may carry out no, or no full, examination of the asylum application where the applicant has entered or is seeking to enter illegally into its territory from a European safe third country. Moreover, the Council justifies consultation of the European Parliament, first, in respect of the establishment and amendment of the lists of safe third countries, on the ground of the ground of ‘the political importance’ of such an operation ‘in particular in view of the implications of an assessment of the human rights situation in a country of origin and its implications for the policies of the European Union in the field of external relations’ and, second, in respect of the designation of European safe third countries, on the ground of ‘the potential consequences for the applicant of a restricted or omitted examination’. (16)

20. It is, however, not necessary to resolve that question in the present case. Even if the naming of safe countries were not to constitute part of the ‘basic elements of the matter to be dealt with’ and the contested provisions were to be regarded as a reservation of implementing powers, it must be agreed that they do not comply with the conditions governing legality. Since the amendments made to Article 145 EC (now Article 202 EC) by the Single European Act, under the third indent of Article 202 EC, read in conjunction with the fourth indent of Article 211 EC, there is a ‘rule that, under the system established by the Treaty, when measures implementing a basic instrument need to be taken at Community level, it is the Commission which, in the normal course of events, is responsible for exercising that power’. (17) Together with the general obligation to state reasons laid down by Article 253 EC, this means that the Council ‘may reserve the right to exercise implementing powers directly only in specific cases, and it must state in detail the grounds for such a decision’. (18) That is borne out by Article 1(1) of the second ‘Comitology’ Decision, (19) which provides that ‘[o]ther than in specific and substantiated cases where the basic instrument reserves to the Council the right to exercise directly certain implementing powers itself, such powers shall be conferred on the Commission in accordance with the relevant provisions in the basic instrument’. In other words, the Council ‘must properly explain’ the reservation of implementing power ‘by reference to the nature and content of the basic instrument to be implemented or amended’. (20) It must therefore show that the nature and content of the implementing power are specific in character, so that it may reserve the right to exercise that power as an exception to the principle that the Commission has the relevant competence. (21)

21. It is true that, in view of Case C-257/01 Commission v Council , one may well wonder whether the designation of safe countries as far as asylum is concerned constitutes a specific case which may be the subject of a reservation of implementing powers. If, in fact, the contested provisions should be regarded as a reservation of implementing powers, it would be evident that there was a clear failure to provide any justification. Recitals 19 and 24 in the preamble to the contested directive are not conducive in any way to justifying such a reservation, but on the contrary, as I stated above, (22) give grounds for consultation of the Parliament in respect of the establishment of the lists and the amendments to be made to them.

22. It could, indeed, still be contended that even if the naming of safe countries does fall under the heading of executive matters, the Council had no intention, by the contested provisions, of reserving to itself implementing power. On the contrary, it wished to raise that matter qua legislator in order to deal with it under a simplified procedure founded on a secondary legal basis. While some national legal systems acknowledge the possibility that the legislature may encroach upon the executive sphere, others, conversely, grant to the executive power an exclusive and protected sphere of competence, just as they ensure that the law has its own sphere. The Community institutional system does not in principle prohibit the legislature from going beyond regulation of the basic elements of a matter and adopting provisions that are executive in nature. However, it is again not necessary to comment here on whether it is permissible under Community law for the legislature to encroach on executive matters. Even if it were necessary to analyse the contested provisions as an expression of the Council’s wish to deal with the question of the designation of safe countries, albeit following a simplified procedure, by way of legislation, one has to wonder whether it is lawful to have recourse to a secondary legal basis in order to adopt legislative measures.

3. The question of the legality of secondary legal bases

23. Is it possible to adopt legislative measures on a legal basis which is provided for, not in the original legislation, but in secondary legislation, following a procedure laid down by the latter which is simplified in relation to that provided for by the former? That is the fundamental legal issue in this case. The issue is none other than that of the permissibility, under the Community institutional system, of delegations of legislative power.

24. That question is not entirely without precedent. The legality of recourse to a secondary legal basis in order to carry out a legislative activity has already been brought before the Court. (23) Council Regulation (EC) No 820/97 of 21 April 1997 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products, (24) adopted by the Council on the basis of Article 43 of the EC Treaty (now, after amendment, Article 37 EC), provided in Article 19 thereof for the adoption by the Council by a qualified majority, on a proposal from the Commission, of the general rules for a beef-labelling system to apply as from 1 January 2000. On that basis, the Council had adopted a regulation, which was challenged by the Parliament on the ground of the illegality of the secondary legal basis; this the Council claimed, permitted the adoption, by means of a simplified decision-making procedure which did not provide for consultation of the European Parliament, not of an implementing measure, but of a legislative act within the context of the common agricultural policy, ignoring Article 37 EC. Pointing out that the contested regulation did not contain general rules for a compulsory beef-labelling system but aimed to prolong the optional labelling system beyond 31 December 1999, the Court concluded that this was not covered by the powers conferred by the basic regulation and that the regulation sought in fact to amend that basic regulation. It held that the basic regulation ‘could only be amended on a legal basis equivalent to that on which it had been adopted, that is to say, on the basis of the Treaty itself, and in conformity with the decision-making process provided for by the Treaty’. (25) Consequently, it ordered that the regulation be annulled for infringement of the parallelism of competences and procedures, without there being any ‘need to rule on the question whether the Council was able, without infringing the rules regarding the powers of the institutions, to confer on itself competence to adopt, by means of a decision taken by a qualified majority on a proposal of the Commission, the general rules for a compulsory beef labelling system’. (26) As we see, the issue remains open.

25. Some national legal systems sanction the possibility of delegating legislative power. Such is, for example, the case of France with Article 38 of the Constitution of 4 October 1958 (27) or of Italy with Article 76 of the Constitution of 27 December 1947. It must, however, be emphasised that very often such delegation can relate only to certain legislative matters, as is illustrated by Article 82 of the Spanish Constitution of 27 December 1978 or Articles 164 and 165 of the Portuguese Constitution of 2 April 1976.

26. The Treaty on European Union does not provide expressly for the delegation of legislative power, only the delegation of implementing powers is provided for in Article 202 EC. It must therefore be ascertained whether Community law authorises by implication, or at least does not preclude, the Community legislature from introducing, in an act which it adopts in compliance with the procedure provided for by the Treaty, a secondary legal basis empowering it to deal with certain aspects of a legislative matter by following a simplified procedure, rather than regulating the legislative matter in its entirety according to the procedure provided for by the Treaty.

27. In her Opinion in Parliament v Council of 13 December 2001, Advocate General Stix‑Hackl replied in the affirmative, taking the view, without however giving any further explanation, that a secondary legal basis ‘is, in principle, permissible provided that certain requirements are fulfilled’. (28) In support of the legality of recourse to secondary legal bases, the Council for its part, submits that there is a practice which has developed to that effect. It refers to a series of measures which were adopted before the contested directive and already contained secondary legal bases. Even if those precedents were actually relevant, the question is whether a practice constitutes merely the temporary result of circumstances and political compromises which lose their cogency once the balance of power changes, or whether it may give rise to a rule of law following a process of consolidation through custom. I would point out in that regard that the development of a custom requires a combination of two elements: a substantive element ( repetitio ), consisting of general and prolonged usage, of a line of consistent precedents, and a psychological element ( opinio juris necessitatis ), the belief on the part of those who comply with that usage that they are obeying a mandatory rule by so doing. Some academic legal writers (29) have shown themselves in favour of the acknowledgment by the Community legal order of the existence of Community customs where the conditions necessary for their emergence are met.

28. The Court itself has not yet formally ruled on that issue. Nevertheless, it has not appeared to manifest hostility thereto in principle. Although it has refused to take into account certain practices, or to go even further and detect in them a custom, that is because they do not satisfy the necessary constitutive conditions. (30) Furthermore, whilst it has not expressly categorised the practices referred to as customs, the Court has acknowledged the legality of a resolution of the Parliament to hold meetings of its committees and political groups in Brussels and the legality of the management committee procedure, because they corresponded respectively to a parliamentary practice which had not been called into question by the Member States (31) and to ‘a consistent practice of the Community institutions’. (32)

29. Nevertheless, the possible acknowledgment of the legal value of practices emanating either from the institutions or the Member States must in any event be strictly delimited. The status of rules of law may be conferred on practices which, combining the elements which go to make up a custom, have the effect of mitigating the terseness of the Treaties or helping to fill their lacunae in order to ensure the effectiveness of the decision-making process. While extra-statutory customs may thus be sanctioned, practices which run counter to the Treaties cannot under any circumstances be accepted. To accept customs contrary to the law would be to disregard the rigid nature of the founding Treaties, which may be revised only in accordance with the formal procedure laid down for that purpose. (33) The Court treats the founding Treaties as a constitutional charter giving rise to a legal order the subjects of which are the citizens of the European Union. (34) That reinforced legitimacy implies that the rules laid down by the Treaties ‘are not at the disposal of the Member States or of the institutions themselves’. (35) Thus, the Court has rejected the validity of precedents from both the institutions (36) and the Member States, (37) on the ground that a practice cannot derogate from or override the rules of the Treaty.

30. Consequently, I cannot share the view of the Council, supported by the French Government, that nothing in the Treaty precludes a measure which is adopted on the basis of a Treaty provision and under the procedure provided for therein from referring to the adoption of supplementary legislative measures under a simplified procedure. Recourse to secondary legal bases is precluded by the principle, laid down by Article 7 EC, that the institutions must act within the limits of their powers; ‘[e]ach institution shall act within the limits of the powers conferred upon it by this Treaty’. (38) It is the Treaties that lay down the procedures culminating in the adoption of legislative measures. An institution cannot therefore itself freely decide upon the way in which it exercises its powers and amend, with a view to the adoption of an act, the procedure laid down for that purpose by the Treaty. Only the Treaty may, if necessary, empower the Council to amend the decision-making process, as illustrated by bridging clauses such as the second indent of Article 67(2) EC or the second subparagraph of Article 175(2) EC. In other words, it follows from the principle that the institutions must act within the limits of their powers that certain powers are not available to them.

31. Furthermore, the legislative procedures laid down by the Treaties establish the extent to which each institution is to be associated with the taking of decisions and thus establishes an institutional balance. The fact that an institution amends the decision-making process thus causes it to undermine the principle of institutional balance, a principle upheld by the Court (39) which ‘means that each of the institutions must exercise its powers with due regard for the powers of the other institutions’ (40) and that it is not open to an institution to ‘deprive the other institutions of a prerogative granted to them by the Treaties themselves’. (41)

32. Moreover, it is because it affects the institutional balance that the Court attaches so much importance to the choice of legal basis. It is the choice of legal basis that determines the applicable decision-making procedure. The competent Community institution, the voting rules to which the adoption of the measure by the Council is subject and the extent of the Parliament’s participation in the adoption of the act are therefore dependent on that choice. In addition, any dispute as regards the choice of the appropriate legal basis does not have only purely formal significance. Where the legal basis propounded by an applicant provides for a decision-making procedure which is different from that required under the legal basis chosen by the author of the act, the choice of legal basis has ramifications for the determination of the content of the act. Consequently, that choice cannot be at the discretion of an institution, but must be based on objective factors which are amenable to judicial review, such as the aim and content of the measure. (42)

33. Likewise, a challenge to the recourse had to secondary legal bases does not have only a purely formal significance, since the purpose of establishing secondary legal bases is to make it possible to adopt acts of a legislative nature by way of a simplified procedure, as opposed to that provided for under the appropriate legal basis in the Treaty. In the present case, as I have already stated, the procedures for the taking of decisions provided for under the contested secondary legal bases (qualified majority within the Council and consultation of the Parliament) differ from the procedures laid down by Article 67(5) EC, the legal basis for which the Parliament and the Commission argue (unanimity within the Council and consultation of the Parliament if the designation of safe countries still formed part of the necessary legislation; qualified majority within the Council and co-decision if the contested directive should be regarded as the final stage of the necessary legislation).

34. The use of secondary legal bases cannot therefore be allowed, because it undermines the principle that the institutions must act within the limits of their powers and the principle of institutional balance. Furthermore, the Court’s reply to the applicant who complained that Council Directive 85/649/EEC of 31 December 1985 prohibiting the use in livestock farming of certain substances having a hormonal action had been adopted on the basis of Article 43 EC, and not in accordance with the procedure laid down by the secondary legal basis provided for that purpose, was that ‘the rules regarding the manner in which the Community institutions arrive at their decisions are laid down in the Treaty and are not at the disposal of the Member States or of the institutions themselves’. (43) The lesson to be drawn from that approach cannot be limited, as the Council claims, merely to censuring only secondary legal bases which have the effect of making the procedure provided for by the Treaty more cumbersome. (44) The Court’s reminder that it is imperative that the decision-making procedures provided for by the Treaty be complied with is clear and general in application.

35. Similarly, with regard to the Council’s argument in favour of the legality of secondary legal bases, which is drawn from the existence of a practice, I would point out that the Court of Justice, in consistently rejecting customs contrary to the law as part of the Community legal order, (45) has already refused to accept that precedents may be relied on to substantiate the Council’s preference for a basis other than the appropriate legal basis, on the ground that ‘a mere practice on the part of the Council cannot derogate from the rules laid down in the Treaty and therefore cannot create a precedent binding on the Community institutions with regard to the correct legal basis. (46)

36. In the light of all of these considerations, I propose that the Court should hold that the Council was not entitled to adopt, in the contested directive, the contested secondary legal bases with a view to the adoption of legislative measures under a simplified procedure as compared with that provided for by Article 67(5) EC. Consequently, the pleas of lack of competence and infringement of the Treaty raised by the Parliament should be upheld and the contested provisions should be annulled.

B – The pleas alleging an insufficient statement of reasons and a breach of the principle of cooperation in good faith

37. As the pleas of lack of competence and infringement of the Treaty are well-founded and entail the annulment of the contested provisions, there is no need to rule on the other two pleas submitted by the Parliament alleging an insufficient statement of reasons and a breach of the principle of cooperation in good faith.

III – Conclusion

38. On the grounds set out above, I propose that the Court should:

Annul Article 29(1) and (2) and Article 36(3) of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status.

(1) .

(2) – OJ 2005 L 326, p. 13.

(3) – OJ 2004 L 396, p. 45.

(4) – See Case C-29/99 Commission v Council [2002] ECR I-11221, paragraphs 45 and 46.

(5) – See Case C-239/01 Germany v Commission [2003] ECR I-10333, paragraphs 34 to 37.

(6) – OJ 2003 L 50, p. 1.

(7) – OJ 2003 L 31, p. 18.

(8) – OJ 2004 L 304, p. 12.

(9) – See Case C-70/88 Parliament v Council [1990] ECR I-2041, paragraphs 21 to 23.

(10) – Subject to certain conditions, see points 20 and 21 below of this Opinion.

(11) – See to that effect for example Case C-303/94 Parliament v Council [1996] ECR I‑2943, paragraph 23.

(12) – Case 25/70 Köster [1970] ECR 1161, paragraph 6; see also Case C‑240/90 Germany v Commission [1992] ECR I-5383, paragraph 36.

(13) – See Articles 21 and 30 of the Proposal for a Council directive on minimum standards on procedures in Member States for granting and withdrawing refugee status of 20 September 2000, OJ 2001 C 62 E, p. 231.

(14) – See Articles 27 and 30 of the amended Proposal for a Council directive on minimum standards on procedures in Member States for granting and withdrawing refugee status of 3 July 2002, OJ 2002 C 291 E, p. 143.

(15) – See paragraphs 9 to 11 of its defence.

(16) – Recitals 19 and 24 in the preamble to Directive 2005/85.

(17) – Case C-257/01 Commission v Council [2005] ECR I-345, paragraph 51.

(18) – Ibid., paragraph 50; see Case 16/88 Commission v Council [1989] ECR 3457, paragraph 10.

(19) – Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23).

(20) – Commission v Council , paragraph 51.

(21) – As Advocate General Léger has pointed out, the statement of reasons must state ‘why it is important that it is the Council rather than the Commission which, exceptionally is to exercise’ the implementing power in question (Opinion in Commission v Council , point 54).

(22) – See above, point 19 of this Opinion.

(23) – See Case C-93/00 Parliament v Council [2001] ECR I-10119.

(24) – OJ 1997 L 117, p. 1.

(25) – Ibid., paragraph 42.

(26) – Ibid., paragraph 45.

(27) – It must be stated again that that provision does not strictly speaking provide for a delegation of legislative power but more precisely an extension of the government’s regulatory power in the area of the law.

(28) – Case C-93/00, point 41.

(29) – See, for example, Jacqué, J.P., ‘La pratique des institutions communautaires et le développement de la structure institutionnelle communautaire’, in Bieber, R., and Ress, G., Die Dynamik des Europaïschen Gemeinschaftsrecht s, Nomos, Baden‑Baden 1987, p. 377; Bleckmann, A., ‘Zur Funktion des Gewohnheitsrechts im europäischen Gemeinschaftsrecht’, Europarecht, 1981, p. 101, as well as even certain Members of the Court: see, for example, Pescatore, P., L’ordre juridique des Communautés européennes: étude des sources du droit communautaire , Presses universitaires de Liège 1973, reprinted Bruylant 2006, see in particular p. 174.

(30) – See, for example, Case 230/81 Luxembourg v Parliament [1983] ECR 255, paragraph 44: although the plea alleging an infringement of the Parliament’s practice of holding part of its plenary sittings in Luxembourg which was relied on against a resolution of the Parliament by which it decided to hold all its plenary sittings in Strasbourg was rejected, that was because that practice could not have given rise to a custom as it had not been approved by the Member States but had, on the contrary, been challenged by France. In other words, there was no opinio juris .

(31) – Ibid., paragraphs 48 and 49.

(32) – See Köster , paragraph 6.

(33) – See Case 43/75 Defrenne [1976] ECR 455, paragraph 58.

(34) – See Opinion 1/91 [1991] ECR I-6079, paragraph 21. See also Case 26/62 van Gend en Loos [1963] ECR 1, 12.

(35) – Case 68/86 United Kingdom v Council [1988] ECR 855, paragraph 38.

(36) – See, inter alia, Case C-327/91 France v Commission [1994] ECR I-3641: in reply to a plea alleging that it did not have the competence to conclude the Agreement between the Commission and the United States regarding their respective competition laws, the Commission relied on a practice followed whereby it had competence to conclude administrative agreements. However, the Court rejected that argument on the ground that the power to conclude agreements had been conferred on the Council by Article 228 EC and that ‘a mere practice cannot override the provisions of the Treaty’ (paragraph 36). See also Case C-426/93 Germany v Council [1995] ECR I-3723, paragraph 21.

(37) – See Case 174/84 Bulk Oil [1986] ECR 559, paragraph 65.

(38) – That principle is also expressed in another way in Article 5 EU: ‘the European Parliament, the Council, the Commission, the Court of Justice and the Court of Auditors shall exercise their powers under the conditions and for the purposes provided for, on the one hand, by the provisions of the Treaties establishing the European Communities and of the subsequent Treaties and Acts modifying and supplementing them and, on the other hand, by the other provisions of this Treaty’.

(39) – As from 1958: see Case 9/56 Meroni v ECSC High Authority [1957-1958] ECR 133, 152; Köster , paragraph 9; and Case 138/79 Roquette v Council [1980] ECR 3333, paragraph 33.

(40) – Case 70/88 Parliament v Council , paragraph 22.

(41) – Case 149/85 Wybot [1986] ECR 2391, paragraph 23.

(42) – As is pointed out in settled case-law: see, for example, Case 45/86 Commission v Council [1987] ECR 1493, paragraph 11; Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraph 12; Case C-110/03 Belgium v Commission [2005] ECR I-2801, paragraph 78; Case C-176/03 Commission v Council [2005] ECR I-7879, paragraph 45; and Case C-94/03 Commission v Council [2006] ECR I-1, paragraph 34.

(43) – Case C‑68/86 United Kingdom v Council , paragraph 38.

(44) – In that case, the secondary legal basis replaced the qualified majority provided for by the Treaty with unanimous adoption by the Council.

(45) – See point 29 of this Opinion above.

(46) – See Case C-271/94 Parliament v Council [1996] ECR I-1689, paragraph 24; Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 19; and Case 68/86 United Kingdom v Council , paragraph 24.