Case C‑286/14

European Parliament

v

European Commission

‛Action for annulment — Article 290 TFEU — Concepts of ‘amending’ and ‘supplementing’ — Regulation (EU) No 1316/2013 — Article 21(3) — Scope of the power conferred on the European Commission — Need to adopt a separate legislative act — Delegated Regulation (EU) No 275/2014’

Summary — Judgment of the Court (Fifth Chamber), 17 March 2016

Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Annulment of Regulation No 275/2014 amending Annex I to Regulation No 1316/2013 establishing the Connecting Europe Facility — Risk of undermining legal certainty on account of the effect on the work programmes based on Regulation No 1316/2013 — Maintenance of the effects of the annulled act

When reviewing the legality of acts under Article 263 TFEU, the Court of Justice and the General Court of the European Union have jurisdiction in actions brought on grounds of lack of competence, infringement of essential procedural requirements, infringement of the FEU Treaty or of any rule of law relating to its application, or misuse of powers. A plea in law alleging infringement of a provision of a regulation concerning the scope of empowerment given to the Commission to adopt delegated acts on the basis of that provision is a substantive issue and, for that reason, admissible. (see paras 17, 18)

It follows from Article 290(1) TFEU that a legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act. In that regard, it follows from the wording ‘to supplement or amend’ that the two categories of delegated powers laid down in Article 290(1) TFEU are clearly distinguished. The delegation of a power to supplement a legislative act is meant only to authorise the Commission to flesh out that act. Where the Commission exercises that power, its authority is limited, in compliance with the entirety of the legislative act adopted by the legislature, to development in detail of non-essential elements of the legislation in question that the legislature has not specified. By contrast, the delegation of a power to amend a legislative act aims to authorise the Commission to modify or repeal non-essential elements laid down by the legislature in that act. In cases where the Commission exercises that power, it is not required to act in compliance with the elements that the authority conferred on it aims precisely to amend. The differences between the two categories of delegated powers referred to in Article 290(1) TFEU preclude the Commission from being granted the power to determine the nature of the delegated power conferred on it. Under those conditions, and in order to ensure the transparency of the legislative process, that provision requires the legislature to determine the nature of the delegation that it intends to confer on the Commission. (see paras 30, 40-42, 46)

As regards the delegation conferred on the Commission in Article 21(3) of Regulation No 1316/2013 establishing the Connecting Europe Facility, by empowering the Commission to adopt delegated acts detailing funding priorities in the transport sector, that provision authorises the Commission to supplement that regulation, within the meaning of Article 290 TFEU. In Parts I and III to V of Annex I to that regulation, the legislature itself sets out a list of pre-identified projects on the core network in the transport sector, terms, conditions and procedures of financial instruments under the Connecting Europe Facility, indicative percentages for specific transport objectives and a list of general orientations to be taken into account when setting award criteria, while expressly empowering the Commission, in Article 21(1), (2), (5) and (6) of that regulation to amend those elements. Unlike those elements, the funding priorities to be included in the work programmes referred to in Article 17 of Regulation No 1316/2013 were not laid down by the legislature itself in that regulation. By leaving that question open in that regulation, the legislature conferred on the Commission the task of detailing those priorities in a delegated act. (see paras 47-49)

For reasons of regulatory clarity and transparency of the legislative process, the Commission may not, in the context of the exercise of a power to supplement a legislative act within the meaning of Article 290(1) TFEU, add an element to the actual text of that act. Such an incorporation would be liable to create confusion as to the legal basis of that element, given that the actual text of a legislative act contains an element arising from the exercise, by the Commission, of a delegated power which does not entitle it to amend or repeal that act. An element adopted by the Commission in the exercise of its power to supplement a legislative act, but which forms an integral part of that act, may not, consequently, be replaced or deleted under that power which led to its adoption, since such interventions require a power to amend that act within the meaning of Article 290(1) TFEU. By contrast, when the Commission supplements a legislative act by adopting a separate act, it may, in so far as necessary, amend that act without being required to amend the legislative act itself. Accordingly, as regards the delegation conferred on the Commission in Article 21(3) of Regulation No 1316/2013 establishing the Connecting Europe Facility, in order to supplement that regulation, within the meaning of Article 290 TFEU, the Commission was required, when exercising that power, to adopt an act separate from that regulation. By adding, by means of Article 1 of Regulation No 275/2014, a Part VI to Annex I to Regulation No 1316/2013, the Commission infringed that obligation, thereby failing to have regard to the difference between the two categories of delegated powers provided for in Article 290(1) TFEU. Such an infringement entails annulment of Regulation No 275/2014. (see paras 53, 55, 56, 59, 61)