WRITTEN QUESTION E-0561/00

by Christopher Huhne (ELDR) to the Commission

(29 February 2000)

Subject: EU respect for powers and responsibilities

Please indicate in the occasions on which the European Court of Justice has found the Union to be acting ultra vires (i.e. exceeding its powers).

Supplementary answer given by Mr Prodi on behalf of the Commission

(28 November 2000)

As the Honourable Member is aware, Article 46 (ex Article L) of the Treaty on European Union confers only very limited jurisdiction on the Court of Justice to review acts taken by the institutions of the Union. Consequently, the Court has not held that the Union has acted ultra vires.

As for the Community, on the other hand, the Court of Justice, together with the Court of first instance, enjoys broad jurisdisdiction to ensure that the Community and its institutions act within the powers conferred on them by the Treaties. Judicial control is exercised through different forms of action: direct actions by which other institutions, Member States or individuals with standing may seek annulment of legally binding acts (Article 230, ex Article 173, EC Treaty for example), actions for damages brought by individuals (Article 235, ex Article 178, EC Treaty and Article 288, ex Article 215, EC Treaty for example) as well as indirectly when domestic courts refer questions to the Court of Justice on the validity of Community acts. As a matter of fact, from 1953 to 1999, the Court has been seised of 4049 direct actions and 4157 preliminary references. The Court of first instance has been seised of 3199 actions since its creation until the end of 1999 (including personnel cases). Article 230 EC provides that lack of competence of an institution is a ground for annulment of the act it has adopted. The Court of first instance has held that a plea of lack of competence is a matter of public interest and can be raised by the Court of its own motion, even when the plaintiff has not raised it(1). Notwithstanding that principle, the majority of cases in which the plea of lack of competence is raised concern the power of a particular institution to adopt the act impugned and not the competence of the Community as a whole.

Early examples of cases in which the Court held that the Community as a whole lacked the power to adopt the act challenged are to be found in Case 20/59 Italy v. High Authority(2) and Case 25/59 Netherlands v. High Authority(3). A more recent example is to be found in Case C-376/98 Germany v. Parliament and Council(4) where the Court set certain limits on the powers of the Community to regulate tobacco advertising(5).

Of particular importance is the jurisdiction of the Court under Article 300 (6) EC to give an opinion on whether an international agreement envisaged is compatible with the Treaty. In its opinion in C-1/91 of 14 December 1991 the Court held that the system of judicial supervision which the draft EEA Agreement proposed to establish was incompatible with the EEC Treaty(6). In its opinion in C-1/94 of 15 November 1994, the Court held that the Community did not have sole competence to conclude all parts of the agreement establishing the World Trade Organisation concerning trade in services (GATS) and the trade related aspects of intellectual property rights including trade in counterfeit goods (TRIPs)(7). Thus, the Community is required either to change the content of the agreement envisaged or to amend the Treaty under Article 48 (ex Article N) of the Treaty on European Union.

The Commission regrets the delay in giving this supplementary answer.

(1) Judgment of the Court of first instance in joined cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89 BASF and others v. Commission, ECR [1992] II-315, point 31.

(2) ECR [1960] p. 325.

(3) ECR [1960] p. 355.

(4) Unpublished, judgment of 5 October 2000.

(5) At point 99 of the judgment.

(6) ECR [1991] I-6079.

(7) ECR [1994] I-5267.