Opinion of Mr Advocate General Léger delivered on 14 February 1995. - European Parliament v Council of the European Union. - Technical assistance to the independent States of the former Soviet Union and to Mongolia - Consultation of the Parliament. - Case C-417/93.



European Court reports 1995 Page I-01185



Opinion of the Advocate-General

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1. By application lodged on 12 October 1993, the European Parliament (hereinafter "the Parliament") seeks the annulment of Council Regulation (Euratom, EEC) No 2053/93 of 19 July 1993 concerning the provision of technical assistance to economic reform and recovery in the independent States of the former Soviet Union and Mongolia. (1)

2. The case seeks a ruling from the Court on two key questions in the relationship between the Parliament and the Council. Is the requirement for genuine consultation of Parliament satisfied where the Council deliberates on a proposal for a Commission regulation before the Parliament delivers its opinion, and adopts that regulation four days after the latter' s opinion? Can the Council study the proposal and suggest amendments before the matter has even been referred to the Parliament for its opinion?

3. Regulation No 2053/93 was adopted in the following circumstances.

4. The TACIS assistance programme was established for 1991 and 1992 by Council Regulation (EEC, Euratom) No 2157/91 of 15 July 1991. (2)

5. On 25 November 1992, the Commission adopted a proposal for a regulation [COM (92) 475 final] (3) enabling the technical assistance programme to the new independent States to be continued on the basis of indicative programmes for a three-year period. (4) The legal basis of that proposal, like that of Regulation No 2157/91, was Article 235 of the EEC Treaty and Article 203 of the EAEC Treaty.

6. That proposal was sent by the Commission to the Council on 15 January 1993 and communicated to the Parliament for information on the same day.

7. Following study by a Council working party called "former USSR", a document was submitted to COREPER on 4 March 1993. (5) The Council considered the proposal for a regulation on 5 April 1993 and noted "a wide convergence of views". (6) It was agreed to reconsider the proposal when the Parliament had delivered its opinion.

8. On 5 March 1993, the Council sent the Commission' s proposal to the Parliament for its opinion. It requested that the opinion be delivered at the April sitting. (7)

9. On 12 March 1993, the President of the Parliament referred the proposal to the relevant committees for consideration.

10. On 23 March 1993, the Council confirmed the step it had taken and sought to implement the urgent procedure provided for in Article 75 of the Rules of Procedure of the Parliament. (8) That request was rejected on 20 April 1993. (9)

11. A draft report (10) was considered on 26 April 1993 by the "External Economic Relations" committee (hereinafter "the REX committee") which unanimously adopted a draft legislative resolution on 5 May 1993.

12. On 27 May 1993, the Parliament adopted almost all the amendments proposed by the REX committee. (11) The rapporteur however had the vote on the draft legislative resolution postponed pursuant to Article 40(2) (12) of the Parliament' s Rules of Procedure, (13) "In view of the Council' s position ...". (14)

13. On 16 June 1993, the Council again requested that the urgent procedure be used, if necessary by convening an extraordinary session, so that the opinion could be delivered in June.

14. On 22 June 1993, the Parliament agreed to that request.

15. After a final referral back to committee on 24 June 1993, the legislative resolution concluding the consultation procedure was adopted on 14 July 1993: the Commission' s proposal was rejected. (15)

16. The Council finally adopted Regulation No 2053/93 on 19 July 1993.

17. The application for annulment is based on three pleas in law:

° the circumstances of the procedure for consulting the Parliament were unlawful. The consultation procedure was fictitious and took place in breach of Article 5 of the EEC Treaty;

° the Parliament should have been reconsulted;

° Regulation No 2053/93 is unlawful in that it provides that it may be amended at the Council' s discretion, without the involvement of the Parliament.

18. I will consider those three pleas in turn.

I ° The unlawfulness of the consultation procedure

19. It has been stated that "the Parliament is the only one of the institutional participants in the consultation procedure (political institutions (16) and Member States) not to be present at Council meetings". (17)

20. That indicates the importance for inter-institutional balance of respecting the Parliament' s prerogatives in the consultation procedure, even if that procedure is no longer, since the Single European Act, the only means by which the Parliament can make its voice heard in the legislative process.

21. The case-law of the Court of Justice has established three principles:

° consultation is an essential formality;

° consultation must be genuine;

° the legislative process is not discretionary.

22. The application for annulment which culminated in the judgment in Roquette Frères v Council (18) concerned a regulation adopted by the Council without following the consultation procedure.

23. The Court made the following succinct statement:

"The consultation provided for in the third subparagraph of Article 43(2), as in other similar provisions of the Treaty, is the means which allows the Parliament to play an actual part in the legislative process of the Community. Such power represents an essential factor in the institutional balance intended by the Treaty. Although limited, it reflects at Community level the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly. Due consultation of the Parliament in the cases provided for by the Treaty therefore constitutes an essential formality disregard of which means that the measure concerned in void". (19)

24. The Court has applied that principle not only where there had been no consultation but also where there had been insufficient consultation. (20)

25. Even though in practice the Commission normally sends a copy of its proposals for regulations to the Parliament for information, (21) the latter may be formally requested to give an opinion by the Council alone. The requirement for consultation is not satisfied simply by submitting such a request. "... observance of that requirement implies that the Parliament has expressed its opinion." (22) The pure and simple rejection by the Parliament of the proposal is an opinion within the meaning of the Treaty. (23)

26. The consultation must be genuine. It must be such as "... to affect the substance of the measure adopted". (24) The Parliament must be able to influence the content of legislative measures adopted by the Council. It follows that the Council must await the Parliament' s opinion before adopting the measure.

27. Even though the adoption of an opinion by the Parliament is not subject to any time constraints, I consider that its powers are not unlimited: in my view it follows from paragraph 36 of the judgment in Roquette Frères v Council, cited above, that the Council may act notwithstanding the absence of the Parliament' s opinion if it establishes that it has "... exhausted all the possibilities of obtaining the preliminary opinion of the Parliament", if the latter is not to be given a right of veto. (25)

28. It can be seen that consultation, where it is required, gives rise to obligations both on the Council and on the Parliament. (26)

29. Finally, the legislative process is not discretionary. It is not left to the discretion of the Member States or the institutions: (27)

"In accordance with the balance of powers between the institutions provided for by the Treaties, the practice of the European Parliament cannot deprive the other institutions of a prerogative granted to them by the Treaties themselves". (28)

30. The Court held in United Kingdom v Council (29) 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". (30)

31. Those three principles illustrate the application of a general principle of cooperation in good faith between institutions, based on the fact that the latter are united in the attainment of the common objectives set by the Treaty (31) and interlinked in the decision-making process.

32. That principle is present in Article 5 of the EEC Treaty which applies to the Member States ° but which also imposes on the Community institutions reciprocal duties of cooperation in good faith with the Member States (32) ° and in Article 162 of the Treaty (33) which governs the relations between the Council and the Commission.

33. The Court has applied it to the relations between the Council, the Commission and the Parliament in the context of the budgetary procedure, based essentially, according to the judgment in Greece v Council, (34) on "inter-institutional dialogue". (35)

34. Even though the powers of the Parliament are not as extensive for the purposes of the consultation procedure as they are for the purposes of the budgetary procedure, that dialogue is equally indispensable. That is particularly so in the context of Article 235 of the EEC Treaty which provides for the Council to legislate in areas in which the Treaty has not conferred on it the power to act. The parameters within which the legislature may act are not as clearly laid down there as they are, for example, in relation to the common agricultural policy to which the consultation procedure also applies (Article 43(2) of the EEC Treaty).

35. Has there been such a dialogue in this case?

36. It has not been denied that the Parliament was consulted on the Commission' s proposal for the regulation. The only issue is the circumstances of that consultation. They give rise to three questions which I will consider in turn.

A ° May the Council deliberate on the proposal for the regulation before receiving the Parliament' s opinion but after sending the request for the opinion to the latter?

B ° May the Council deliberate on the proposal for the regulation before even sending the request for the opinion to the Parliament?

C ° Has the Council in this case cooperated in good faith with the Parliament?

° A °

37. May the Council deliberate on the Commission' s proposal before the Parliament has given its opinion? What are the Council' s powers while awaiting the Parliament' s opinion?

38. It is clear from Article 235 of the Treaty that the Council acts after consulting the Parliament on a proposal from the Commission. May it discuss the document before that consultation?

39. With the passage of time and the increase in the Community' s legislative activities, the practice of the legislative process requiring consultation of the Parliament has developed significantly.

40. As early as 16 October 1973, in a communication addressed to the Parliament, the Council undertook to facilitate the consultation procedure:

"The Council has adopted internal measures designed to ensure that the decision to consult the European Parliament on a proposal from the Commission can be made within the shortest possible time (in principle one week after receipt of the Commission proposal) ... In addition, the Council has adopted internal measures designed to ensure that the opinions of the European Parliament can be considered in the best conditions". (36)

41. From 1986, two trends were reflected in questions to the President by several Members of the European Parliament. (37) On the one hand, it seems that the various Commission proposals are discussed simultaneously in the Council and the Parliamentary committees. It seems that such a practice is not exceptional: "In practice, work on a Commission proposal begins immediately within Council bodies, without waiting for the Parliament' s Opinion, but the final decision cannot be taken until the Opinion has been received and considered by the Council". (38) The effect is that the Parliament' s discussions are based on Commission texts which have been superseded. On the other hand, it is said that the Council increasingly adopts provisional decisions, "pending the Parliament' s opinion". The figures quoted in the replies by the President of the Parliament to Mr de Vries' s questions (39) show that that practice has unquestionably become widespread. (40)

42. By a resolution of 10 October 1990, (41) the Parliament "1. Call[ed] on the Council to adhere to the procedures laid down in the Treaties and to refrain from conducting political agreements before having considered Parliament' s opinions".

43. On 21 November 1990, the Parliament adopted a resolution on the obligation for the Council to await Parliament' s opinion (42) in which it noted that "in numerous cases" the Council had begun work on a Commission proposal before the Parliament had delivered its opinion and that it had even concluded political agreements in advance.

44. Is this practice compatible with the Parliament' s rights under the consultation procedure?

45. It would be futile to wish to constrain the Council to await the Parliament' s opinion on a Commission proposal before starting any study, discussion or consideration of the proposal in question. (43) In my view, the practice is justified for legal reasons and for reasons of legislative policy.

46. I have the following points in relation to the latter:

° the inevitable delays in the procedure for consulting the Parliament;

° the latter' s limited acceptance of the urgent procedure in Article 97 of its Rules of Procedure (formerly Article 75);

° the necessity for prompt legislation in all the areas where regulations are laid down for a limited period or must be periodically renewed;

° the time needed, in areas where unanimity is required, to work towards a compromise within the Council;

° enrichment of the discussions within the Parliament' s committees before which the Council representative will, if relevant, have to be in a position to describe his institution' s position.

47. Such a practice is more fundamentally justified by legal reasons.

48. First, nothing requires the Council to abstain from acting until the Parliament' s opinion has been delivered. (44)

49. Secondly, and above all, the consultation procedure does not confer on the Parliament the right to give an opinion on the latest version of the text prepared by the Council. In essence, that text is flexible and changing until the adoption of the definitive regulation. Although it precludes the Council from finally adopting an act before receiving the Parliament' s opinion, that procedure at no time requires that the text on which the Parliament gives its opinion and the text as it is after the Council has worked on it should correspond exactly. The Parliament gives its opinion on the Commission' s proposal. It is precisely that which distinguishes the consultation procedure from the legislative co-decision procedure where "agreement on a joint text" (45) is sought or from the cooperation procedure where the Parliament is consulted not only on the Commission' s proposal but also on the "common position" adopted by the Council. (46) Finally, and in contrast to the assent procedure under which the Council may not adopt a measure different from that on which the opinion was given, the consultation procedure permits it to depart from the text submitted to the Parliament.

50. In order to ensure that the Parliament is genuinely consulted, guarantees have been established both by the Treaty and by the case-law of the Court of Justice and parliamentary practice.

51. Before adopting the opinion, the Commission in principle keeps the relevant committee of the Parliament regularly informed of the principal trends of the Council' s discussions, in particular where those discussions are moving away from its initial proposal, in accordance with the code of conduct which it presented to the Parliament in February 1990. (47)

52. If the Parliament approves the proposal for a regulation without amendment and if there are no substantial amendments in the final version of the regulation as a result of the preliminary discussions within the Council, the Court has held, in Tunnel Refineries v Council, (48) that that regulation may be adopted without reconsulting Parliament once the latter has delivered its opinion.

53. The Parliament must be reconsulted if the Council retains substantial amendments in the version of the document which is finally adopted, as the Court has consistently held in relation to reconsultation. (49) There is no reconsultation for minor amendments to the text.

54. If the Council makes amendments to the proposal in the course of the preliminary discussions, the Commission may use its prerogative to submit an amended proposal to the Council which forwards it to the Parliament, thus enabling the latter to debate on the basis of an up-to-date document and to have some influence on the Council' s deliberations. As long as the proposal has not been decided upon by the Council, the Commission may amend it throughout the process leading up to the adoption of a Community act, pursuant to Article 189a(2) of the EC Treaty, (50) but neither the Council nor the Parliament may force it do so. That possibility was seen by Wyatt and Dashwood: "... the Commission may alter its proposal in order to facilitate decision-making within the Council". (51)

55. In that event, the Parliament therefore need not, strictly speaking, be "reconsulted" (not having yet issued its opinion) but is consulted on an amended proposal. That is exactly what the Parliament proposed in its resolution of 21 November 1990 (52) on the obligation to await the Parliament' s opinion in the cooperation procedure:

"[The Parliament] Stresses ... that practices introduced for the completion without delay of the internal market on 1 January 1993 frequently require almost simultaneous consideration of legislative proposals by the European Parliament and the Council and therefore requests the Commission to take advantage of the opportunity given to it by Article 149(3) of the Treaty and to formally submit a modified proposal before first reading by the European Parliament to take account of the work done by the Council if the latter leads to the Commission deciding to modify substantially the initial proposal, thereby permitting the European Parliament to deliver an opinion on a legislative proposal without being overtaken by events".

56. To that effect the Parliament, at its sitting on 15 September 1993, (53) adopted a new Rule 56 of its Rules of Procedure which provides:

"Modification of a proposal by the Commission

1. If the committee responsible, during its examination of a Commission proposal, becomes aware that the Council intends to amend substantially this proposal, it shall formally ask the Commission whether it intends to modify its proposal.

2. If the Commission declares that it intends to modify its proposal, the committee responsible shall postpone its examination of this proposal until it has been informed about the new proposal or amendments by the Commission.

3. During the examination of a Commission proposal in the committee responsible, the Commission may also on its own initiative table amendments to its proposal directly in the committee.

4. If the Commission declares, following a request under paragraph 1, that it does not intend to modify its proposal, the committee responsible shall proceed with its examination of the proposal. The declaration of the Commission shall be annexed to the report and shall be considered by Parliament as binding on the Commission even after the completion of the first reading.

5. If, following a Commission declaration under paragraph 4, the Council, notwithstanding the position of the Commission, proceeds to a decision which substantially modifies the original Commission proposal, the President of Parliament shall remind the Council of its obligation to consult Parliament again."

57. Note that by the wording of that rule the Parliament implicitly accepts that the Council may, before receiving the Parliament' s opinion, debate a Commission proposal.

58. The procedure laid down by that article in my view serves to safeguard the Parliament' s prerogatives. Because the Commission presents an amended proposal, the Parliament will be consulted on a document which takes account of any changes arising from negotiations within the Council and it may exert a real influence on the latter' s deliberations.

59. The Parliament is not however dependent on the Commission. The fact that the latter, if it does not see fit to present an amended proposal, takes no action does not obviate the need for the Parliament to be reconsulted where there has been substantial amendment.

60. But to confer on the Parliament the right, in the name of genuine consultation, to be consulted on the latest draft after the Council has worked on it, whatever the importance of the latter' s amendments to the proposal, in my view undermines the consultation procedure and turns it into a type of cooperation procedure.

61. Let me repeat, it is on the Commission' s proposal that the opinion must be given, on the understanding that the Parliament will be informed of any substantial amendments to that proposal which the Council may initiate, whether by a new Commission proposal or by way of reconsultation.

62. On the other hand, the Council' s position cannot be definitive and is necessarily subject to amendment for so long as the opinion of the Parliament has not been delivered. (54)

63. I consider that the constitutional principle of cooperation in good faith between institutions is respected by the "inter-institutional dialogue" to which the Court referred in Greece v Commission, cited above.

64. To conclude, on that first point I consider that the Council and the Parliament can consider the proposal simultaneously, on the understanding that reconsultation is required if the preliminary discussions and political agreements within the Council have culminated in substantial amendments in the regulation finally adopted.

65. It may be seen that the reply to the first plea in law depends on whether there has been substantial amendment. That plea is thus linked to the second, concerning reconsultation by the question common to both: did the Council substantially amend the Commission' s initial proposal?

° B °

66. What is the position when the Council deliberates on the Commission' s proposal and amends it even before referring it to the Parliament? May it send the Parliament a request for consultation based on a text which does not reflect its own most recent deliberations?

67. The constitutional principle of cooperation in good faith between institutions requires that the text of the proposal submitted to the Parliament for its opinion and that considered by the Council be identical.

68. What is the position, in the light of that principle, when the Council and the Parliament have received an identical text but, when the Parliament receives the Commission' s initial proposal from the Council, that text has already been amended within the Council?

69. I have three comments on this.

70. First, such a question would not arise if the Council sent the request for an opinion to the Parliament as soon as it received the Commission' s proposal or before starting to consider it. (55)

71. Secondly, since as I have shown the opinion of the Parliament concerns the Commission proposal and not the latest version of the text being deliberated within the Council, the Community rules of legislative procedure do not mean that the Council cannot start discussing the proposal before the request for the opinion has even been sent, provided that it always keeps open the option of modifying its provisional stance in the light of the Parliament' s opinion. It cannot therefore at that stage adopt a definitive text.

72. In this case,

° before the request for the Parliament' s opinion was sent on 5 March 1993, the proposal had been considered neither by COREPER (which considered it for the first time on 24 March 1993) nor by the Council (which was to consider it first on 5 April 1993). As at 5 March 1993, there was a working draft drawn up by the "former USSR" group which was called a provisional report and the text of the regulation "reflecting the group' s work to date";

° the text prepared by the "former USSR" group on 4 March 1993, that is to say on the day before referral to the Parliament, was not a final version: the question of applying the TACIS regulation to Mongolia had not been settled. (56) The list in Annex II of the areas to be given priority in technical assistance had not been definitively decided and was subject to numerous qualifications. The proposed committee was a management committee and four Member States expressed a wish for a type III procedure. (57) The final regulation followed that formula.

73. It accordingly seems exaggerated to claim that on 5 March 1993 the proposal "... was no longer current ..." (58) or "... that before referral to the Parliament, discussions within the Council had made that text obsolete". (59)

74. Thirdly, the amendments to the proposal considered within the Council before the request for an opinion was sent do not affect the lawfulness of the procedure since, like amendments made after sending the request, they will give rise to reconsultation if they are substantial and if they are included in the final regulation.

75. The limits to the Council' s power to deliberate on the proposal even before the Parliament examines it are to be found in the abuse of the law which would be committed if it were to leave the latter in total ignorance of the changes made to the text by the Council. It is that issue which I must now consider.

° C °

76. I consider that there was cooperation in good faith between institutions which gave the Parliament the means of knowing the Council' s position on the principal points of disagreement, given that:

° it seems that the Council never had any intention of dispensing with the opinion of the European Parliament; (60)

° the REX committee was aware that the Council intended to add an Annex II listing the sectors to be given priority in assistance and even incorporated it as part of amendment no 20 which it moved. It also knew that the Council was considering establishing a regulatory committee; (61)

° the Parliament was informed of the Council' s intended amendment on the question of comitology by the Commission' s representative at the debate. (62) It was moreover the Council' s position on that question (63) which led the Parliament to deliver a negative opinion; (64)

° the Council was represented at the discussion before the Parliament on 26 and 27 May 1993.

77. I will make one final point. It is not certain that the Parliament did everything in its power to influence the Council' s decision:

° the Council would of necessity have redebated the text if amendments had been submitted to it. The Commission would also have been able to accept any amendments by submitting an amended proposal. (65) The Council could not have departed from it except unanimously. (66) The Parliament preferred to deliver an opinion which simply rejected the Commission' s proposal outright;

° the Parliament would also, in delivering its opinion, have been able to initiate the conciliation procedure provided for by the joint declaration of 4 March 1975, (67) which was moreover recommended in the draft legislative resolution drawn up by the REX committee, at paragraph 4. The principal point of friction between the Council and the Parliament here is known to have concerned comitology. In a resolution of 23 October 1986, the European Parliament had specifically expressed the wish to be able to "... demand the opening of the conciliation procedure with the Council if the Council wishes to provide for a committee procedure in a legal act". (68)

78. I accordingly consider that the consultation of the Parliament was not fictitious and that its prerogatives were not infringed, provided that the amendments decided on by the Council were not substantial, in which case reconsultation was required. That is precisely the subject matter of the second plea in law.

II ° The obligation to reconsult

79. The obligation to reconsult the Parliament is not laid down by the Treaty. The Court however has held:

"... the duty to consult the European Parliament in the course of the legislative procedure, in the cases provided for by the Treaty, includes a requirement that the Parliament be reconsulted on each occasion when the text finally adopted, viewed as a whole, departs substantially from the text on which the Parliament has already been consulted, except where the amendments essentially correspond to the wish of the Parliament itself". (69)

80. According to the Parliament, four substantial amendments were made to the Commission' s proposal:

° concerning the beneficiaries of TACIS assistance (Article 2);

° concerning the material scope of the regulation with the addition of an Annex II;

° by adding a new condition of reciprocity (Article 7(4));

° as to comitology (Article 7). The Council replaced the management committee by a regulatory committee.

81. The first point is a technical provision intended to prevent Mongolia from falling simultaneously within the scope of financial and technical aid under Regulation (EEC) No 443/92 (70) and TACIS assistance. That provision simply enabled Mongolia, which already benefited from assistance programmes, to be maintained in the TACIS programme. (71) Mongolia is included in the beneficiaries of the TACIS programme both in the proposal for a regulation and in the regulation itself. The addition of the new Article 2 in the latter text simply enabled overlapping aid to be avoided. In its opinion of 20 April 1993, the budget committee "... considers it important that Mongolia is among the beneficiaries, in the light of its situation and its need for aid, comparable to that of several independent States, and of that State' s wish to put in place a democratic political system". (72) In paragraph 4 of its explanatory memorandum, the report of the REX committee suggests quite directly that Mongolia should not be able to aggregate the aid to developing countries in Asia under Regulation No 443/92 and that under the TACIS programme. (73)

82. The new Article 2 alters the arrangements for the assistance to Mongolia. It does not affect the substance of the regulation.

83. On the second point, the addition of Annex II did not require a fresh consultation of the Parliament. Annex II lists "in particular" the "indicative" (74) areas which are priority subjects for technical assistance. That list is by way of example and is not exhaustive. It replaces Article 3(3) of the Commission proposal which provided:

"Technical assistance shall give priority to the fields of human resources development; support for enterprises, including financial services; food production, distribution and marketing; energy and transport".

84. That provision, which is not exhaustive either, excludes none of the areas referred to in Annex II.

85. Moreover, that annex is practically identical to amendment no 24 creating an Annex Ia, adopted by the Parliament on 27 May 1993. (75)

86. Replacing Article 3(3) of the proposal by Article 4(3) of and Annex II to the regulation amounts to altering the method of defining the material scope of the regulation. Even though Annex II cites by way of example more areas, it does not substantially modify the scope. It is a "change of method rather than of substance", within the meaning of paragraph 23 of the judgment in Buyl and Others v Commission, cited above.

87. On the third point, it will be noted that the introduction of a condition of reciprocity simply reflects settled practice in the matter and conflicts with neither the principles nor the scheme of the TACIS programme.

88. Let me dwell on the much more delicate question of comitology. Article 7 of the Commission proposal provided for a type II(b) (76) management committee: the Commission is to adopt measures which are to apply immediately. If they are not in accordance with the opinion of the committee, the Commission is to defer their application for six weeks, during which period the Council, acting by a qualified majority, may take a different decision which will replace that of the Commission.

89. Article 8 of Regulation No 2053/93 provides for a type III(a) regulatory committee: if the committee gives no opinion or a negative opinion, the Commission is obliged to transform its draft into a proposal to the Council. If the latter takes no decision, the Commission becomes competent again and transforms its proposal into a decision.

90. There is, in my view, a substantial difference between the committee of an advisory nature in Procedure I and the committees provided for by Procedures II and III, since the first excludes any decision-making power of the Council.

91. There is also a substantial difference between committees of type II(a), II(b) and III(a) on the one hand and type III(b) on the other. The latter procedure alone can lead to a deadlock, since the Council can block any decision by simple majority.

92. On the other hand, the type II(a), II(b) and III(a) procedures differ from one another only on minor points, such as time-limits, and by virtue of the fact that, in the latter case, the Council' s decision is taken on the Commission' s proposal, which strengthens the Commission' s position since the Council may depart from that proposal only by acting unanimously. (77) They have in common the fact that in the absence of a decision by the Council, executive power returns to the Commission which is to act.

93. I conclude that there are no differences between the type II(b) management committee and the type III(a) regulatory committee which could be described as substantial amendments of the regulation reaching "... the very heart of the rules enacted ...". (78)

94. I accordingly consider that there was no substantial amendment of the Commission' s proposal in the regulation finally adopted.

95. There was no other reason requiring the Parliament to be reconsulted. It is essential to note at this point that the Council' s proposal to introduce a type III committee was known to the Parliament (79) and that the question of comitology was absolutely central to the debates before the Parliament, (80) since several members of the Parliament attributed delays in making finance available and in taking decisions to the existence of a management committee in the 1991-1992 TACIS programme. (81) It was the point of contention between the Council and the Parliament which was ultimately to lead the latter to reject the proposal.

96. The Council representative at the debate was questioned on that issue. (82)

97. But at the end of the debate, the Parliament, which was not unaware of the Council' s intentions, chose to reject in toto the proposal for a regulation. Nothing therefore came of the adoption of the amendment providing for an advisory committee proposed by the REX committee.

98. The two first pleas in law must therefore be rejected.

III ° The inherent illegality of Regulation No 2053/93

99. For the Parliament, "... it is quite simply unlawful for an instrument adopted with the mandatory consultation of the Parliament to provide that it may be modified in the course of its application without that formality being respected afresh". (83)

100. The second subparagraph of Article 7(2) of the disputed regulation provides:

"Services contracts shall, as a general rule, be awarded by restricted invitations to tender and by private treaty for operations up to ECU 300 000. This amount may be revised by the Council on the basis of a Commission proposal, account being taken on experience gained in similar cases."

101. The Parliament submits that respect for its prerogatives requires that it be consulted before such a revision is adopted, since it is a regulation based on Article 235 of the Treaty.

102. There is a certain hierarchy within Community legislation. Basic regulations adopted directly pursuant to procedures laid down by the Treaty must be contrasted with regulations for implementation or execution adopted either by the Commission with the authorization of the Council by virtue of the third indent of Article 155 of the EEC Treaty or by the Council itself by virtue of the third indent of Article 145 thereof. The procedure for the adoption of such regulations is laid down by the basic regulation.

103. The hierarchical relationship between those two categories of instrument means that the implementing regulation may neither modify nor disregard the principles laid down by the basic regulation. The first may not go beyond the bounds of implementing the principles of the second. (84) "The delegated power is ... only a power of implementation and not a power of primary application of a Treaty provision". (85)

104. The Court has confirmed the Council' s power of delegation in numerous decisions concerning the common agricultural policy:

"Both the legislative scheme of the Treaty, reflected in particular by the last indent of Article 155, and the consistent practice of the Community institutions establish a distinction, according to the legal concepts recognized in all the Member States, between the measures directly based on the Treaty itself and derived law intended to ensure their implementation. It cannot therefore be a requirement that all the details of the regulations concerning the common agricultural policy be drawn up by the Council according to the procedure in Article 43. It is sufficient for the purposes of that provision that the basic elements of the matter to be dealt with have been adopted in accordance with the procedure laid down by that provision. On the other hand, the provisions implementing the basic regulations may be adopted according to a procedure different from that in Article 43, either by the Council itself or by the Commission by virtue of an authorization complying with Article 155". (86)

105. The Court has held, in relation to that article, that it follows from the context of the Treaty in which it must be placed and also from practical requirements that the concept of implementation must be given a wide interpretation. (87)

106. The delegation to the Commission of the power to adopt implementing regulations is also common in the field of public contracts. (88)

107. The Single European Act, by amending Article 145 of the Treaty, limited the Council' s power to confer implementing powers on itself:

"... 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". (89)

108. The Parliament is represented neither on the committees which are involved within the Commission (90) nor in certain procedures by which the Council reserves implementing powers, such as that provided for in Article 7 of Regulation No 2053/93. That system is not without logic. While it is normal for the Parliament to be "... consulted each time that a political option is defined, it is also obvious that it has no role where a simple management measure is taken". (91) The ancillary or subordinate character of the implementing procedure justifies less formality in deciding on it. The possibility of delegating is thus one element in the balance of power between the Parliament and the other institutions which may find in it a way of excluding the Parliament from the legislative process. (92) Thus from as early as 1967 (93) the Parliament sought to be consulted on all instruments made pursuant to basic regulations which significantly affect the political, economic or legal effects of those regulations. In a resolution relating to the Community procedures for implementing secondary Community legislation, (94) the Parliament called for a strict limitation of the powers of committees, "bodies not provided for by the Treaty".

109. None the less, by virtue of Article 145 of the Treaty it is unquestionably lawful for the Council to delegate implementing powers to itself even though the procedure for adopting implementing regulations is not governed by the same rules as that concerning the basic regulation.

110. But, specifically, does Article 7 of the regulation at issue concern procedures for implementing or applying the basic regulation or does it affect the fundamental principles underlying that instrument?

111. Is setting the threshold above which service contracts cannot be awarded by restricted invitations to tender or by private treaty a procedure for implementing or applying Regulation No 2053/93?

112. I have two points to make on this.

113. The second subparagraph of Article 7(2) of Regulation No 2053/93 was included in the former Regulation No 2157/91 which provided for the same method of revision of the threshold of 300 000 ECU. (95)

114. In both cases, the procedure for revising the threshold excluding the Parliament did not feature in the Commission proposal and was added by the Council.

115. The power delegated to the Council affects only the procedures for awarding service contracts. Admittedly, the choice of the procedure comprising direct agreement and restricted invitations to tender enables the decision-making progress to be speeded up and the reduction of the threshold below which the Commission may deal by direct agreement makes the system more efficient. However, the second subparagraph of Article 7(2) calls in question neither the principles nor the scheme of the regulation and does not go beyond "implementing powers", (96) which alone may be delegated.

116. The third plea in law must therefore also be rejected.

117. I accordingly conclude that the application should be dismissed in whole.

(*) Original language: French.

(1) ° OJ 1993 L 187, p. 1.

(2) ° Regulation concerning the provision of technical assistance to economic reform and recovery in the Union of Soviet Socialist Republics (OJ 1991 L 201, p. 2).

(3) ° OJ 1993 C 48, p. 13.

(4) ° Article 5(1).

(5) ° See the Council' s replies to the written questions of the Court.

(6) ° Ibidem.

(7) ° Annex 2 to the application.

(8) ° Annex 3 to the application.

(9) ° OJ 1993 C 150, p. 26.

(10) ° Drawn up by the MEP Henry Chabert.

(11) ° OJ 1993 C 176, p. 178.

(12) ° Now Article 105(1) of the Rules of Procedure of the Parliament as amended by the Treaty on European Union (OJ 1993 C 268, p. 51).

(13) ° See OJ, Annex, No 3-431, Debates of the European Parliament, 1993-1994 Session, p. 344, and OJ 1993 C 255, p. 81.

(14) ° OJ 1993 C 176, p. 152.

(15) ° See OJ, Annex, No 3-433, Debates of the European Parliament, 1993-1994 Session, p. 191 and OJ 1993 C 255, p. 81.

(16) ° Even though it does not have a right as such, the Commission is invited to attend sessions of the Council (Article 4(2) of the Rules of Procedure of the Council). That occurred in this case.

(17) ° Paragraph 16 of the Parliament' s observations on the United Kingdom' s statement of intervention in Case C-65/93 Parliament v Council, pending.

(18) ° Case 138/79 [1980] ECR 3333.

(19) ° Paragraph 33.

(20) ° Judgments in Case C-65/90 Parliament v Council [1992] ECR I-4593 and Case C-388/92 Parliament v Council [1994] ECR I-2067.

(21) ° The Commission undertook to do this by a communication of 30 May 1973 cited by R. Bieber: Article 137 in Kommentar zum EWG-Vertrag, Groeben, Thiesing, Ehlermann, 4th edition, p. 4132. That was done in the case being considered.

(22) ° Paragraph 34 of the judgment in Roquette Frères v Council, cited above.

(23) ° See R. Bieber: Legislative Procedure for the Establishment of the Single Market 25 Common Market Law Review (1988) 711, 716.

(24) ° Paragraph 20 of the judgment in Case 165/87 Commission v Council [1988] ECR 5545.

(25) ° See on this point Case C-65/93 Parliament v Council, cited in note 17 above.

(26) ° See as to this points 28 and 29 of the Opinion of Advocate General Jacobs in Case C-316/91 Parliament v Council [1994] ECR I-625: The Parliament' s participation in the legislative process is not to be seen only as a prerogative but also as a responsibility with which the Parliament is entrusted and which it cannot waive (point 28).

(27) ° On this point see point 48 of the Opinion of Advocate General Darmon in Case C-388/92 Parliament v Council, cited in note 20 above.

(28) ° Judgment in Case 149/85 Wybot v Faure [1986] ECR 2391, paragraph 23.

(29) ° Case 68/86 [1988] ECR 855.

(30) ° Paragraph 38 of the judgment.

(31) ° Article 4.

(32) ° Judgment in Case 230/81 Luxembourg v Parliament [1983] ECR 255, paragraph 37, and order in Case C-2/88 Imm. Zwartveld and Others [1990] ECR I-3365, paragraph 17. See also the Opinion of Advocate General Mancini in Case 204/86 Greece v Council [1988] ECR 5323, 5349 and point 56 of the Opinion of Advocate General Jacobs in Case C-284/90 Council v Parliament [1992] ECR I-2277.

(33) ° Article 15 of the Merger Treaty. It may be thought that, if the Parliament had had in 1965 the powers which it has today, the need for collaboration between the Parliament and the other institutions would have been mentioned.

(34) ° Cited in note 32 above, at paragraph 16.

(35) ° See also, on the collaboration between the Commission and the Council in the context of Article 58 of the ECSC Treaty, the judgment in Case 244/81 Kloeckner-Werke v Commission [1983] ECR 1451.

(36) ° European Parliament Bulletin, No 34/73 of 19 October 1973, pp. 4 and 5.

(37) ° See Annex 5 to the application.

(38) ° Wyatt and Dashwood, European Community Law, 1993, p. 37.

(39) ° Annex 5 to the application.

(40) ° See also Jacobs and Corbett: The European Parliament, 1990, p. 166: The most serious difficulty for Parliament, however, arises where Council takes a decision in principle or subject to Parliament' s opinion before this opinion has been delivered (11 times in 1986, eight in 1987, 12 in 1988, seven in 1989).

(41) ° Resolution on relations between the European Parliament and the Council (OJ 1990 C 284, p. 58).

(42) ° OJ 1990 C 324, p. 125.

(43) ° See, on this point, the statements of the then President of the Council before the European Parliament on 9 October 1990 (OJ, Annex, No 3-394, Debates of the European Parliament, Session 90-91, p. 79).

(44) ° The phenomenon also occurs at the first reading stage in the cooperation procedure: the Council bodies on the one hand and the Parliamentary committees on the other consider legislative proposals at the same time.

(45) ° Article 189b of the EC Treaty.

(46) ° Article 189c of the EC Treaty.

(47) ° See OJ, Annex, No 3-386, Debates of the European Parliament, 1990-1991 Session, p. 32; EC Bulletin, 1/2-1990, point 1.6.6, and EC Bulletin, 4-1990, point 1.6.1.

(48) ° Case 114/81 [1982] ECR 3189.

(49) ° See, for example, Case C-388/92 Parliament v Council, cited in note 20 above.

(50) ° Which replaced Article 149(3) of the EEC Treaty, repealed by the Treaty on European Union. The Commission may also withdraw its proposal for a regulation. See point 6 of the resolution on the proposal for a Council Regulation on the termination of service of officials of 10 October 1985 (OJ 1985 C 288, p. 103).

(51) ° Op. cit., p. 47.

(52) ° Cited in note 42 above, p. 127.

(53) ° OJ 1993 C 268, p. 66 (Rule 36G).

(54) ° See on this point the Council' s reply of 1 April 1985 to Written Question No 1907/84 of Mr de Vries (OJ 1985 C 118, p. 12).

(55) ° The Council undertook, in its communication of 16 October 1973, cited above, to do this within one week. The legal value and binding nature of that undertaking would be questionable even if its terms were not so vague. On that point, see J.-P. Jacqué: La pratique des institutions communautaires et le développement de la structure institutionelle communautaire , in Die Dynamik des Europaeischen Gemeinschaftsrechts ° The dynamics of EC-law, R. Bieber and G. Ress, editors, 1987.

(56) ° See point 6 of the provisional report.

(57) ° Note 19 of the text of the regulation (version of 4 March 1993).

(58) ° Paragraph 15 of the application.

(59) ° Paragraph 4 of the reply.

(60) ° See the COREPER document of 1 April 1993, submitted to the Court: Pending the Opinion of the European Parliament, COREPER has examined the Commission proposal, with the following results. COREPER suggests that Council confirm these results, with the proviso that it will be requested to give its final views once Parliament has delivered its Opinion (emphasis added).

(61) ° See paragraph 5 of the explanatory memorandum in the Chabert report, annexed to the Council' s defence. See also the Rapporteur' s statement during the debate on 24 June 1993 (OJ 1993, Annex, No 3-432, Debates of the European Parliament, 1993-1994 Session, p. 323).

(62) ° Sir Leon Brittan stated at the debate on 26 May 1993: Finally I turn to the question of comitology. I want to make it quite clear that as far as the Commission is concerned we originally put forward the suggestion of a management committee. The Council has sought to insist on a regulatory committee (OJ 1993, Annex, No 3-431, p. 151).

(63) ° Which was the only really contentious issue: see the statement of 26 May 1993 of Rapporteur Chabert (OJ 1993, Annex, No 3-431, Debates of the European Parliament, 1993-1994 Session, p. 177).

(64) ° See the statement of Rapporteur Chabert at the debate on 14 July 1993 (OJ 1993, Annex, No 3-433, pp. 190 and 191).

(65) ° The Commission' s representative had moreover announced, during the parliamentary debates, that he was prepared to incorporate most of the Parliament' s amendments (OJ 1993, Annex, No 3-431, Debates of the European Parliament, 1993-1994 Session, p. 175). On the crucial role of Parliament' s advocate which the Commission may play in the consultation procedure, see P. Raworth: A Timid Step Forwards: Maastricht and the Democratisation of the European Community 19 European Law Review (1994) 16, 20.

(66) ° Article 189a(1) of the Treaty.

(67) ° Joint Declaration of the European Parliament, the Council and the Commission (OJ 1975 C 89, p. 1). See also Article 63 of the Rules of Procedure of the Parliament.

(68) ° Resolution closing the procedure for consultation of the European Parliament on the proposal from the Commission of the European Communities to the Council for a Regulation laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1986 C 297, p. 94, paragraph 4).

(69) ° Paragraph 16 of the judgment in Case C-388/92 Parliament v Council, cited in note 20 above. See also the judgments in Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 178, and Case 817/79 Buyl and Others v Commission [1982] ECR 245, paragraphs 16 and 23.

(70) ° Council Regulation of 25 February 1992 on financial and technical assistance to, and economic cooperation with, the developing countries in Asia and Latin America (OJ 1992 L 52, p. 1).

(71) ° See the Council' s defence, paragraph 21.

(72) ° Annex to the Council' s defence. See the letter from the president of the Budget Committee to the president of the REX committee dated 20 April 1993 and its proposed amendment no 7.

(73) ° Ibidem.

(74) ° Article 4(3) of Regulation No 2053/93.

(75) ° OJ 1993 C 176, p. 184.

(76) ° Variant II(b) of Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1987 L 197, p. 33) (the comitology decision).

(77) ° See on this point C. Blumann: Dictionnaire juridique des Communautés européennes, A. Barav and C. Philip, editors, Comitology, p. 197.

(78) ° Case C-388/92 Parliament v Council, cited in note 20 above, at paragraph 19.

(79) ° See OJ 1993, Annex, No 3-433, p. 191, and point 72 above.

(80) ° See the drafts of amendment no 18 of the REX committee report and no 7 of the opinion of the committee for budgetary control and points 4 and 5 of the explanatory memorandum of the REX committee report.

(81) ° See the statement by Mr Nielsen, MEP: As for the management committee, it is far too bureaucratic and impenetrable. Let us get a consultative committee going which will be able to speed and streamline the decision-making process as well as the practical implementation of the projects (OJ 1993, Annex, No 3-431, Debates of the European Parliament, 1993-1994 session, p. 160). See also the statement by Rapporteur Chabert during the debate (OJ 1993, Annex, No 3-431, Debates of the European Parliament, 1993-1994 Session, p. 169).

(82) ° Ibidem, p. 177.

(83) ° Paragraph 36 of the application.

(84) ° See the judgment in Case 230/78 Eridania [1979] ECR 2749, paragraph 9 et seq.

(85) ° Jozeau-Marigné report on the legal problems of consultation with the European Parliament, 8 August 1967, document 110, paragraph 24.

(86) ° Judgment in Case 30/70 Scheer v Einfuhr- und Vorratsstelle Getreide [1970] ECR 1197, paragraph 15. See also the judgments in Case 25/70 Einfuhr- und Vorratsstelle Getreide v Koester, Berodt & Co. [1970] ECR 1161, Case 46/86 Romkes [1987] ECR 2671, Case 203/86 Spain v Council [1988] ECR 4563 and Case C-240/90 Germany v Commission [1992] ECR I-5383.

(87) ° Paragraph 10 of the judgment in Case 23/75 Rey Soda v Cassa Conguaglio Zucchero [1975] ECR 1279.

(88) ° See, for example, Article 31 of Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1990 L 297, p. 1) and Article 30b of Council Directive 89/440/EEC of 18 July 1989 amending Directive 71/305/EEC concerning coordination of procedures for the award of public works contracts (OJ 1989 L 210, p. 1).

(89) ° Judgment in Case 16/88 Commission v Council [1989] ECR 3457, paragraph 10.

(90) ° See Decision 87/373, cited in note 75 above, and Ch. Reich: Le Parlement européen et la comitologie , Revue du marché commun, No 336, 1990, p. 319.

(91) ° Jozeau-Marigné report, cited in note 84 above, p. 5.

(92) ° See the Haensch report, European Parliament, Session documents, 7 July 1986, doc. A2-78/86.

(93) ° See the resolution of 17 October 1967 (OJ 1967, 268, p. 7).

(94) ° Resolution published in the OJ 1968, C 108, p. 37.

(95) ° Second subparagraph of Article 6(2).

(96) ° Article 145 of the EC Treaty.