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 IS VOID .
35 IN THAT RESPECT IT IS PERTINTENT TO POINT OUT THAT OBSERVANCE OF THAT REQUIREMENT IMPLIES THAT THE PARLIAMENT HAS EXPRESSED ITS OPINION . IT IS IMPOSSIBLE TO TAKE THE VIEW THAT THE REQUIREMENT IS SATISFIED BY THE COUNCIL ' S SIMPLY ASKING FOR THE OPINION . THE COUNCIL IS , THEREFORE , WRONG TO INCLUDE IN THE REFERENCE IN THE PREAMBLE TO REGULATION NO 1293/79 A STATEMENT TO THE EFFECT THAT THE PARLIAMENT HAS BEEN CONSULTED .
36 THE COUNCIL HAS NOT DENIED THAT CONSULTATION OF THE PARLIAMENT WAS IN THE NATURE OF AN ESSENTIAL PROCEDURAL REQUIREMENT . IT MAINTAINS HOWEVER THAT IN THE CIRCUMSTANCES OF THE PRESENT CASE THE PARLIAMENT , BY ITS OWN CONDUCT , MADE OBSERVANCE OF THAT REQUIREMENT IMPOSSIBLE AND THAT IT IS THEREFORE NOT PROPER TO RELY ON THE INFRINGEMENT THEREOF .
37 WITHOUT PREJUDICE TO THE QUESTIONS OF PRINCIPLE RAISED BY THAT ARGUMENT OF THE COUNCIL IT SUFFICES TO OBSERVE THAT IN THE PRESENT CASE ON 25 JUNE 1979 WHEN THE COUNCIL ADOPTED REGULATION NO 1293/79 AMENDING REGULATION NO 1111/77 WITHOUT THE OPINION OF THE ASSEMBLY THE COUNCIL HAD NOT EXHAUSTED ALL THE POSSIBILITIES OF OBTAINING THE PRELIMINARY OPINION OF THE PARLIAMENT . IN THE FIRST PLACE THE COUNCIL DID NOT REQUEST THE APPLICATION OF THE EMERGENCY PROCEDURE PROVIDED FOR BY THE INTERNAL REGULATION OF THE PARLIAMENT ALTHOUGH IN OTHER SECTORS AND AS REGARDS OTHER DRAFT REGULATIONS IT AVAILED ITSELF OF THAT POWER AT THE SAME TIME . FURTHER THE COUNCIL COULD HAVE MADE USE OF THE POSSIBILITY IT HAD UNDER ARTICLE 139 OF THE TREATY TO ASK FOR AN EXTRAORDINARY SESSION OF THE ASSEMBLY ESPECIALLY AS THE BUREAU OF THE PARLIAMENT ON 1 MARCH AND 10 MAY 1979 DREW ITS ATTENTION TO THAT POSSIBILITY .
38 IT FOLLOWS THAT IN THE ABSENCE OF THE OPINION OF THE PARLIAMENT REQUIRED BY ARTICLE 43 OF THE TREATY REGULATION NO 1293/79 AMENDING COUNCIL REGULATION NO 1111/77 MUST BE DECLARED VOID WITHOUT PREJUDICE TO THE COUNCIL ' S POWER FOLLOWING THE PRESENT JUDGMENT TO TAKE ALL APPROPRIATE MEASURES PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 176 OF THE TREATY .
Decision on costs
39 PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE PLEADINGS .
40 THE COUNCIL HAS BEEN UNSUCCESSFUL AND THE APPLICANT , ALBEIT NOT THE PARLIAMENT , HAS ASKED FOR AN