WRITTEN QUESTION P-2932/00

by Gilles Savary (PSE) to the Commission

(11 September 2000)

Subject: Article 308 (ex-235) of the EC Treaty

Article 308 (ex-235) of the EC Treaty stipulates that:

if action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.

With reference to Community legislation adopted on the basis of Article 235 before certain powers relating to new policy areas were introduced into the Treaty by the Single Act and the Maastricht Treaty:

Can Article 308 (ex-235) be considered an adequate legal basis for general legislation relating to aspects of local, social and cultural life in the Member States?

Has the Court of Justice of the European Communities considered and ruled on the scope of this article of the Treaty, and any limits thereon, in the past?

What definition, if any, has the Court of Justice given of the term common market, specifically with regard to the use of Article 308 (ex-235) as the legal basis for Community legislation?

Are there any other provisions in the Court's rulings on the use of Article 308 (ex-235) as the legal basis for Community legislation which would give legal certainty to any such texts that would nowadays be adopted under a different legal basis in the light of the new Community powers introduced by the Single Act and the Maastricht Treaty?

Answer given by Mr Prodi on behalf of the Commission

(31 October 2000)

It results from Article 308 (former Article 235) of the EC Treaty as interpreted by the Court of Justice, in particular in Opinion 2/94 of 28 March 1996 ([1996] ECR I-1759 paragraphs 29 and 30), that this provision is designed to fill the gap where no specific provisions of the Treaty confer on the Community institutions express or implied powers to act, if such powers appear none the less to be necessary to enable the Community to carry out its functions with a view to attaining one of the objectives laid down by the Treaty.

Article 308 does not set any restriction on the scope of the acts which can be adopted under this provision provided that they are necessary to attain the objectives of the EC Treaty and that the EC Treaty has made no provision for powers to act to that effect. As the Court has emphasised, in particular in its judgment of 12 November 1996 (Case C-84/94 United Kingdom v. Council [1996] ECR I-5755, paragraph 48), Article 308 may be used as the legal basis for a measure only where no other Treaty provision confers on the Community institutions the necessary power to adopt it.

The extension of the scope of Community law resulting from the amendment of the Treaties and the creation of new legal bases do not raise any problem of legal certainty. Acts regularly adopted remain applicable as long as they have not been repealed.

It is clear from the above that where the content of an act adopted under Article 308 has to be amended and it now falls under a new legal basis in the EC Treaty, it is for the legislator to adopt a new act on the basis of the relevant new provision and to repeal the act previously adopted under Article 308.