CELEX: 62010CJ0130
Language: en
Date: 2012-07-19 00:00:00
Title: Judgment of the Court (Grand Chamber), 19 July 2012.#European Parliament v Council of the European Union.#Common foreign and security policy — Regulation (EU) No 881/2002 — Regulation (EU) No 1286/2009 — Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban — Freezing of funds and economic resources — Choice of legal basis — Articles 75 TFEU and 215 TFEU — Entry into force of the Treaty of Lisbon — Transitional provisions — CFSP common positions and decisions — Joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and from the Commission.#Case C‑130/10.

Reports of Cases
                                    JUDGMENT OF THE COURT (Grand Chamber)
                                                 19 July 2012 *
           (Common foreign and security policy — Regulation (EC) No 881/2002 — Regulation (EU)
      No 1286/2009 — Restrictive measures directed against certain persons and entities associated with
         Usama bin Laden, the Al-Qaeda network and the Taliban — Freezing of funds and economic
   resources — Choice of legal basis — Articles 75 TFEU and 215 TFEU — Entry into force of the Treaty
    of Lisbon — Transitional provisions — CFSP common positions and decisions — Joint proposal from
             the High Representative of the Union for Foreign Affairs and Security Policy and from
                                               the Commission)
   In Case C-130/10,
   ACTION for annulment under Article 263 TFEU, brought on 9 March 2010,
   European Parliament, represented initially by E. Perillo and K. Bradley, and subsequently by
   A. Auersperger Matić and U. Rösslein, acting as Agents, with an address for service in Luxembourg,
                                                                                                  applicant,
   v
   Council of the European Union, represented by M. Bishop and R. Szostak, acting as Agents,
                                                                                                 defendant,
   supported by:
   Czech Republic, represented by M. Smolek, E. Ruffer and K. Najmanová, acting as Agents,
   French Republic, represented by G. de Bergues and A. Adam, acting as Agents,
   Kingdom of Sweden, represented by A. Falk and C. Meyer-Seitz, acting as Agents,
   European Commission, represented by S. Boelaert and M. Konstantinidis, acting as Agents, with an
   address for service in Luxembourg,
                                                                                                interveners,
                                         THE COURT (Grand Chamber),
   composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot,
   A. Prechal, Presidents of Chambers, A. Rosas (Rapporteur), R. Silva de Lapuerta, K. Schiemann, E.
   Juhász, M. Berger, E. Jarašiūnas and C.G. Fernlund, Judges,
   * Language of the case: English.
EN
          ECLI:EU:C:2012:472                                                                              1
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                                             PARLIAMENT v COUNCIL
  Advocate General: Y. Bot,
  Registrar: L. Hewlett, Principal Administrator,
  having regard to the written procedure and further to the hearing on 7 December 2011,
  after hearing the Opinion of the Advocate General at the sitting on 31 January 2012,
  gives the following
                                                  Judgment
1 By its action, the European Parliament asks the Court to annul Council Regulation (EU) No 1286/2009
  of 22 December 2009 amending Regulation (EC) No 881/2002 imposing certain specific restrictive
  measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda
  network and the Taliban (OJ 2009 L 346, p. 42, ‘the contested regulation’).
  Legal context
2 On 16 January 2002, the United Nations Security Council (‘the Security Council’) adopted Resolution
  1390 (2002), setting out measures to be imposed against Usama bin Laden, members of the Al-Qaeda
  organisation and the Taliban and other individuals, groups, undertakings and entities associated with
  them. Paragraphs 1 and 2 of that resolution provide in particular for, essentially, the continuation of
  the measures for the freezing of funds imposed by Paragraph 4(b) of Resolution 1267 (1999) and
  Paragraph 8(c) of Resolution 1333 (2000). In accordance with paragraph 3 of Resolution 1390 (2002),
  those measures were to be reviewed by the Security Council 12 months after their adoption, at the
  end of which period the Council would either allow those measures to continue or decide to improve
  them.
3 Taking the view that action by the European Community was necessary in order to implement that
  resolution, on 27 May 2002 the Council adopted, on the basis of Article 15 EU, Common Position
  2002/402/CFSP concerning restrictive measures against Usama bin Laden, members of the Al-Qaeda
  organisation and the Taliban and other individuals, groups, undertakings and entities associated with
  them and repealing Common Positions 96/746/CFSP, 1999/727/CFSP, 2001/154/CFSP
  and 2001/771/CFSP (OJ 2002 L 139, p. 4). Article 3 of Common Position 2002/402 provides, inter
  alia, that the freezing of the funds and other financial assets or economic resources of the individuals,
  groups, undertakings and entities referred to in the list drawn up in accordance with Resolutions 1267
  (1999) and 1333 (2000) is to be continued.
4 On the same date, the Council, on the basis of Articles 60 EC, 301 EC and 308 EC, adopted Regulation
  (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and
  entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing
  Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to
  Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial
  resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9). Annex I to Regulation
  No 881/2002 contains the list of persons, entities and groups affected by the freezing of funds
  imposed by Article 2 of that regulation (‘the list’).
5 The contested regulation was adopted by the Council on 22 December 2009. It is based on
  Article 215(2) TFEU and refers to a joint proposal from the High Representative of the Union for
  Foreign Affairs and Security Policy (‘the High Representative’) and from the Commission. It amends
  Regulation No 881/2002 in response to the judgment of 3 September 2008 in Joined Cases
  2                                                                                     ECLI:EU:C:2012:472
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                                              PARLIAMENT v COUNCIL
   C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and
   Commission [2008] ECR I-6351, by introducing a listing procedure which ensures that the
   fundamental rights of the defence and in particular the right to be heard are respected. The revised
   procedure provides that the listed person, entity, body or group is to be informed of the reasons for
   listing, as instructed by the Committee of the Security Council established pursuant to UN Security
   Council Resolution 1267 (1999) so as to be given an opportunity of expressing a view on those
   reasons.
   Forms of order sought
6  The Parliament claims that the Court should:
   — annul the contested regulation;
   — maintain the effects of the contested regulation until the adoption of a new regulation; and
   — order the Council to pay the costs.
7  The Council contends that the Court should:
   — dismiss the application as unfounded, and
   — order the Parliament to pay the costs.
   Procedure before the Court
8  By order of the President of the Court of 10 August 2010, the Czech Republic, the Kingdom of
   Denmark, the French Republic, the Kingdom of Sweden and the Commission were granted leave to
   intervene in support of the forms of order sought by the Council.
9  By order of the President of the Court of 2 December 2010, the Kingdom of Denmark was removed
   from the register as an intervener, having requested to withdraw its intervention.
   The action
10 In support of its action for annulment, the Parliament raises two pleas in law. By the first and principal
   plea, it claims that the contested regulation is wrongly based on Article 215 TFEU, when the correct
   legal basis is Article 75 TFEU. By the second plea, raised in the alternative, it maintains that the
   conditions for recourse to Article 215 TFEU were not satisfied.
   The principal plea, alleging incorrect choice of legal basis
   Arguments of the parties
11 By its first plea, the Parliament maintains that the contested regulation could not validly be based on
   Article 215 TFEU. That plea is subdivided into two parts, the first relating to the aim and content of
   the regulation and the second to the general scheme of the Treaties.
   ECLI:EU:C:2012:472                                                                                       3
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                                              PARLIAMENT v COUNCIL
   – The aim and content of the contested regulation
12 The Parliament observes that the choice of legal basis for a European Union measure must rest on
   objective factors amenable to judicial review, including, in particular, the aim and content of the
   measure. In the light of the content and purpose of the contested regulation, its legal basis ought to
   be the same as that for Regulation No 881/2002, adopted on the basis of Articles 60 EC, 301 EC
   and 308 EC. Those articles having, however, been repealed or become inapplicable following the entry
   into force of the Treaty of Lisbon on 1 December 2009, the appropriate legal basis is Article 75 TFEU,
   concerning the prevention of terrorism and related activities.
13 As regards its content, for the most part the contested regulation merely reformulates or clarifies
   provisions of Regulation No 881/2002 or facilitates its application, but does not in any way change the
   nature of that regulation’s content. The only genuinely new substantive provisions are those on the
   listing procedure. The contested regulation is in the nature of a ‘framework for administrative
   measures’ within the meaning of Article 75 TFEU, in so far as it amends or adds to the legislative
   framework for the adoption and implementation of administrative measures to freeze the funds of the
   parties concerned.
14 With respect to the objective of the contested regulation, it is, like that of Regulation No 881/2002, to
   combat terrorism and the financing of terrorism, which is consistent with the objectives of Article 75
   TFEU. That is corroborated by paragraph 169 of Kadi and Al Barakaat International Foundation v
   Council and Commission, which states that the essential purpose and object of the latter regulation is
   to combat international terrorism, in particular to cut it off from its financial resources by freezing
   the economic funds and resources of persons or entities suspected of involvement in activities linked to
   terrorism. Furthermore, the Court held in paragraph 199 of that judgment that the position of the
   Court of First Instance of the European Communities, to the effect that Regulation No 881/2002
   pursued one of the objectives under the EU Treaty, as it stood before the Treaty of Lisbon, in the
   sphere of external relations including the common foreign and security policy (‘the CFSP’), runs
   counter to the very wording of Article 308 EC.
15 Given that it is not the purpose of Regulation No 881/2002 to achieve CFSP objectives, it is difficult to
   see how the contested regulation, adopted to ensure the application of the former regulation, could do
   so. The Parliament emphasises that the Council may have recourse to Article 215 TFEU only for
   measures that pursue CFSP objectives, more particularly when a decision intended to achieve the
   objectives of that policy makes provision for such recourse.
16 According to the Parliament, the Council’s position is not consistent with the facts or with reality, in so
   far as it is based on a distinction between international or ‘external’ terrorism, on the one hand, and
   ‘internal’ terrorism, on the other. The fight against terrorism must be international if it is to succeed.
   The only distinction that can be made in this context is between national measures to combat
   terrorism, and international anti-terrorism measures. It is not always possible to say with any certainty
   whether terrorist and related activities carried out within the European Union will create a threat
   within or without the European Union.
17 The Council, on the other hand, argues that, in the light of its objectives and its content, the contested
   regulation falls within the scope of the provisions of the Treaties relating to the European Union’s
   external action, and more specifically within the sphere of the CFSP. Article 215 TFEU constitutes the
   appropriate legal basis for that measure.
18 The purpose of that regulation, like that of Regulation No 881/2002, is to combat international
   terrorism and its financing in order to maintain international peace and security. In this regard, the
   Council refers to the wording of Security Council Resolution 1390 (2002) and of the contested
   regulation and cites Kadi and Al Barakaat International Foundation v Council and Commission.
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                                                PARLIAMENT v COUNCIL
19 The content of the contested regulation is consistent with that objective. Articles 7a and 7c, which that
   regulation inserts into Regulation No 881/2002, confirm that those regulations directly implement the
   listing decisions adopted by the Sanctions Committee and establish a system of interaction between the
   Sanctions Committee, the European Union and the individuals and entities listed.
20 In the Council’s view, Regulation No 881/2002 and the contested regulation do not in any way fall
   within the scope of the provisions intended to create an area of freedom, security and justice within
   the European Union. They govern matters that do not relate to border controls, internal security or
   the recognition of judicial and extra-judicial decisions.
21 The Council argues that the Treaties, as they stood before the Treaty of Lisbon entered into force, did
   not provide for any specific legal basis for the adoption of measures to freeze the funds of terrorists
   posing a threat to public security in the Member States, that is to say, ‘internal’ terrorists. The only
   legal bases for adopting such restrictive measures were Articles 60 EC, 301 EC and 308 EC, which
   applied only to ‘external’ terrorists in the context of the European Union’s external action.
22 It is clear from the structure and the wording of the Treaties, as amended by the Treaty of Lisbon, that
   the location of a purported threat and the political objectives of a listed person or group must be taken
   into consideration when deciding on the legal basis for a restrictive measure. Article 75 TFEU now
   provides a legal basis for adopting measures to freeze the funds of ‘internal’ terrorists, such as the
   individuals and groups whose names, marked with an asterisk, are included in the list annexed to
   Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific
   measures to combat terrorism (OJ 2001 L 344, p. 93). Conversely, if the threat relates primarily to one
   or more third States or to the international community in general, Article 215 TFEU is the appropriate
   legal basis. It would be unlawful for the European Union, on the basis of Title V of Part Three of the
   FEU Treaty, governing the area of freedom, security and justice, to adopt a measure freezing assets that
   contributed to the security of a third State but was not aimed at safeguarding internal security.
23 Furthermore, the Council, supported in substance by the Kingdom of Sweden, submits that the
   Parliament’s proposition fails to take account of those cases where, in the context of the fight against
   terrorism, the European Union seeks to adopt or impose restrictive measures other than the freezing of
   assets, such as a travel ban, in respect of persons or entities associated with ‘external’ terrorism.
24 The Kingdom of Sweden points out that the effect of the Parliament’s position would be that United
   Nations sanctions against terrorists would be implemented on different legal bases for different
   measures within one and the same system of sanctions. This cannot have been the intention of the
   European Union legislature, not least because such a system would involve the application of different
   decision-making procedures under the CFSP and the Union’s internal policy, respectively.
25 The Commission explains that, when proposing an amending act, it uses the provision or provisions
   that formed the basis for the adoption of the original act. Thus, the proposal for a Council Regulation
   amending Regulation No 881/2002, presented by the Commission on 22 April 2009 (COM(2009) 187
   final), referred to Articles 60 EC, 301 EC and 308 EC as its legal bases. Since that proposal was
   pending before the Council on 1 December 2009, the Commission was required to carry out a purely
   legal and technical examination of the consequences of the entry into force of the Treaty of Lisbon for
   that act. It came to the conclusion, endorsed by the High Representative, that Article 215(2) TFEU
   covers all relevant aspects of Articles 60 EC, 301 EC and 308 EC. That approach is consistent with
   the Court’s findings in Kadi and Al Barakaat International Foundation v Council and Commission.
26 With regard to the consequences of that judgment for the question of the legal basis, the Commission
   challenges the Parliament’s claim that an act based on Article 308 EC cannot pursue a CFSP objective.
   According to the Commission, the Court did not in that judgment deny that Articles 60 EC and 301
   EC were legal bases permitting the adoption of Community measures pursuing a CFSP objective. As
   regards Regulation No 881/2002, the Court identified a second, underlying Community objective
   ECLI:EU:C:2012:472                                                                                      5
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                                               PARLIAMENT v COUNCIL
   linked to the functioning of the common market to justify the inclusion of Article 308 EC as a third
   legal basis. Moreover, it confirmed that the EC Treaty required recourse to that provision for the
   imposition of restrictive measures in respect of natural or legal persons in cases where there is no link
   with the governing regime of a non-member State.
27 The Commission considers that Articles 215 TFEU and 75 TFEU cannot be used jointly as legal bases
   for the contested regulation. It is not possible to base an act on those two articles at the same time, for
   they lay down different procedural and decision-making conditions, including the condition relating to
   the application of the Protocol (No 21) on the position of the United Kingdom and Ireland in respect
   of the area of freedom, security and justice, annexed to the EU Treaty and the FEU Treaty, and the
   application of the Protocol (No 22) on the position of Denmark, annexed to those treaties. The
   Commission emphasises that one of the crucial differences between Articles 215 TFEU and 75 TFEU
   is to be found in the need of a link to decisions in the sphere of the CFSP, taken in the interests of
   international peace and security, whatever the precise geographical location or the scope of the
   terrorist threat at issue. When restrictive measures relating to terrorism must be adopted under the
   FEU Treaty following a CFSP decision further to a Security Council Resolution, Article 215 TFEU is
   the only possible legal basis.
   – The general scheme of the Treaties
28 According to the Parliament, the general scheme and the spirit of the Treaties may be taken into
   account for the purposes of interpreting their provisions. In this instance, they justify the choice of
   Article 75 TFEU as the legal basis for the contested regulation.
29 In the first place, the contested regulation is linked to the protection of individuals and groups. Since
   the entry into force of the Treaty of Lisbon, however, the European Union may adopt measures
   concerning fundamental rights only under the ordinary legislative procedure or with the consent of the
   Parliament. Article 215(2) TFEU is applicable only in respect of measures that do not raise issues of
   fundamental rights to the same extent.
30 In the second place, Article 75 TFEU empowers the European Union to adopt measures with regard to
   capital movements and payments, thus recognising that such measures may affect the proper
   functioning of the internal capital market and the provision of financial services. The Court
   acknowledged in paragraph 229 of Kadi and Al Barakaat International Foundation v Council and
   Commission that restrictive measures of an economic nature by their very nature offer a link to the
   operation of the common market. Furthermore, Regulation No 881/2002 itself refers, in recital 4 of its
   preamble, to the need to avoid, in particular, distortion of competition.
31 In the third place, the contested regulation is linked to the establishment of an area of freedom,
   security and justice. It assists in combating crime, especially terrorism and the financing of terrorism,
   which is one of the objectives of that space, as is apparent from, in particular, Article 3(2) TEU.
32 Last, the Parliament claims that there is no link between the contested regulation and the CFSP. Under
   Article 24(1) TEU, the CFSP is subject to specific rules and procedures. To give effect to those rules
   and procedures outside their ambit would run counter to the objectives set out in the second
   paragraph of Article 1 TEU and have the effect of depriving national parliaments of the application of
   the protocols on their role and on the application of the principles of subsidiarity and proportionality,
   and of denying the Parliament the application of the ordinary legislative procedure.
33 In support of its position, the Parliament refers also to paragraph 235 of Kadi and Al Barakaat
   International Foundation v Council and Commission in which the Court held that the inclusion of
   Article 308 EC in the legal basis of Regulation No 881/2002 was justified, for it enabled the
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                                              PARLIAMENT v COUNCIL
   Parliament to take part in the decision-making process relating to the measures at issue which are
   specifically aimed at individuals whereas, under Articles 60 EC and 301 EC, no role is provided for that
   institution.
34 The Parliament concludes that it would be contrary to European Union law for it to be possible to
   adopt measures having a direct impact on the fundamental rights of individuals and groups, on the
   internal market and on the fight against crime by means of a procedure which excludes the
   participation of the European Parliament, when the ordinary legislative procedure applies for the
   adoption of measures in those areas. The Treaty of Lisbon reflects the intention of the Member States
   to enhance the democratic nature of the European Union. It responds to an urgent need to provide for
   parliamentary scrutiny of listing practices. Recognising Article 215(2) TFEU as the correct legal basis
   for measures such as the contested regulation would, in practice, deprive Article 75 TFEU of much of
   its effectiveness. The Parliament also points out that Article 75 TFEU constitutes a more specific legal
   basis than Article 215 TFEU.
35 The Council submits that the arguments put forward by the European Parliament with respect to the
   general scheme of the Treaties do not constitute relevant criteria for determining the correct legal
   basis of the contested regulation.
36 The powers of the institutions are determined by the Treaties and vary according to the different fields
   of action of the European Union. The Parliament’s proposition amounts to a claim that procedures
   determine the choice of legal basis rather than the other way round. The fact that the role of the
   Parliament in the procedure varies is relevant only in exceptional circumstances. It is thus relevant in
   the case of an act which simultaneously pursues a number of objectives or has several components
   that are indissociably linked, without one’s being secondary to the other. In such circumstances, the
   corresponding different legal bases may be used, provided they are not incompatible. In order to
   determine whether they are compatible, it is necessary to consider whether the combination of those
   legal bases would be such as to undermine the Parliament’s rights. In this regard, the Council refers
   in particular to the judgment in Case C-155/07 Parliament v Council [2008] ECR I-8103.
37 The Council states that the choice of legal basis must rest on objective factors, in particular, the aim
   and the content of the measure. That principle was confirmed by Kadi and Al Barakaat International
   Foundation v Council and Commission. Although the Court observed, in paragraph 235 of that
   judgment, that recourse to Article 308 EC permitted the Parliament to take part in the
   decision-making process, the fact remains that that observation was made only in order to
   supplement the Court’s principal arguments, based on the objectives of the EC Treaty.
38 Furthermore, the Parliament’s argument to the effect that the European Union can adopt measures
   concerning respect for human rights only with the Parliament’s involvement is contradicted by
   Article 215(3) TFEU, which provides that ‘[t]he acts referred to in this Article shall include necessary
   provisions on legal safeguards’. That provision makes it clear that an act adopted under that article
   may potentially affect fundamental rights.
39 The Council submits too that the purpose of Article 215 TFEU is to enable the Council to adopt
   measures which are directly applicable to economic operators. That provision helps to ensure the
   proper functioning of the common market.
40 As regards the relationship of the contested regulation to the CFSP, the Council refers to the specific
   threat posed by Al-Qaeda. That regulation constitutes the framework within which the European
   Union performs its obligations under the Charter of the United Nations. It is not unreasonable to
   take account of the objective of the resolutions adopted by the Security Council in determining the
   appropriate legal basis.
   ECLI:EU:C:2012:472                                                                                     7
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41 Lastly, the Council points out that the Treaty of Lisbon has not affected the distinction between the
   CFSP and the area of freedom, security and justice. On the contrary, the importance of a line clearly
   delimiting those two fields was emphasised in the second paragraph of Article 40 TEU. In
   consequence, if the Court were to take the view that the contested regulation pursues an objective
   falling under the CFSP, Article 215(2) TFEU would be the only possible legal basis for its adoption.
   Findings of the Court
   – Preliminary observations
42 According to settled case-law, the choice of the legal basis for a Community measure must rest on
   objective factors amenable to judicial review, which include the aim and content of that measure (see,
   in particular, Parliament v Council, paragraph 34 and case-law cited).
43 If examination of a measure reveals that it pursues two aims or that it has two components and if one
   of those aims or components is identifiable as the main one, whereas the other is merely incidental, the
   measure must be founded on a single legal basis, namely, that required by the main or predominant
   aim or component (see, in particular, Parliament v Council, paragraph 35 and case-law cited).
44 With regard to a measure that simultaneously pursues a number of objectives, or that has several
   components, which are inseparably linked without one’s being incidental to the other, the Court has
   held that, where various provisions of the Treaty are therefore applicable, such a measure will have to
   be founded, exceptionally, on the various corresponding legal bases (see, in particular, Parliament v
   Council, paragraph 36 and case-law cited).
45 None the less, the Court has held also, in particular in paragraphs 17 to 21 of Case C-300/89
   Commission v Council [1991] ECR I-2867 (‘Titanium dioxide’), that recourse to a dual legal basis is
   not possible where the procedures laid down for each legal basis are incompatible with each other
   (see, in particular, Parliament v Council, paragraph 37 and case-law cited).
46 If it was in the context of the cooperation procedure that the Court found, in Titanium dioxide, an
   incompatibility between that procedure, provided for by one of the two legal bases concerned in that
   judgment, and the Council’s acting unanimously after merely consulting the European Parliament,
   provided for by the other, the Court has, nevertheless, in its subsequent decisions adopted a similar
   approach in connection with the procedure under Article 251 EC, known as ‘the co-decision
   procedure’ (see, to this effect, Case C-178/03 Commission v Parliament and Council [2006] ECR
   I-107, paragraphs 58 and 59, and Parliament v Council, paragraphs 76 to 79). Such an approach is still
   valid, after the entry into force of the Treaty of Lisbon, in the context of the ordinary legislative
   procedure.
47 In this instance, while Article 75 TFEU provides for application of the ordinary legislative procedure,
   which entails qualified majority voting in the Council and the Parliament’s full participation in the
   procedure, Article 215(2) TFEU, for its part, entails merely informing the Parliament. In addition,
   recourse to Article 215(2) TFEU, unlike recourse to Article 75 TFEU, requires a previous decision in
   the sphere of the CFSP, namely, a decision adopted in accordance with Chapter 2 of Title V of the EU
   Treaty, providing for the adoption of restrictive measures such as those referred to in that provision.
   As a general rule, adoption of such a decision calls for unanimous voting in the Council acting alone.
48 Differences of that kind are such as to render those procedures incompatible.
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49 It follows from the foregoing that, even if the contested regulation does pursue several objectives at the
   same time or have several components indissociably linked, without one’s being secondary to the other,
   the differences in the procedures applicable under Articles 75 TFEU and 215(2) TFEU mean that it is
   not possible for the two provisions to be cumulated, one with the other, in order to serve as a twofold
   legal basis for a measure such as the contested regulation.
   – The relationship between Articles 60 EC, 301 EC and 308 EC and Articles 75 TFEU and 215 TFEU
50 The parties are at one in considering that the legal basis of the contested regulation must, theoretically,
   correspond to that of Regulation No 881/2002, adopted on the basis of Articles 60 EC, 301 EC and 308
   EC.
51 In this regard, it must be held that, as a result of the amendments made to primary law after the
   Treaty of Lisbon entered into force, the content of Articles 60 EC, relating to restrictive measures
   with regard to capital movements and payments, and 301 EC on the interruption or reduction, in part
   or completely, of economic relations with one or more third countries, is mirrored in Article 215
   TFEU.
52 Indeed, that last article, included in the part of the FEU Treaty on external action by the Union,
   provides, like Article 301 EC, for the interruption or reduction, in part or completely, of economic
   relations with one or more third countries. It may be noted here that Articles 301 EC and 215(1)
   TFEU are worded in the same way. As regards Article 60 EC, which was applicable in those cases
   mentioned in Article 301 EC and which provided for the application of the procedure under that same
   article, Article 215(1) TFEU contains a reference to financial relations to cover the areas previously
   within the ambit of Article 60.
53 Furthermore, Article 215(2) TFEU allows the Council to adopt restrictive measures against natural or
   legal persons and groups or non-State entities, namely, measures that, before the Treaty of Lisbon
   entered into force, required Article 308 EC too to be included in their legal basis if their addressees
   were not linked to the governing regime of a third country (see, to that effect, Kadi and Al Barakaat
   International Foundation v Council and Commission, paragraph 216).
54 As regards Article 75 TFEU, its context and tenor differ from those of Articles 60 EC and 301 EC.
   Article 75 TFEU does not, in fact, refer to the interruption or reduction, in part or completely, of
   economic relations with one or more third countries. Incorporated in Part Three of the FEU Treaty
   on Union policies and internal actions, and more specifically in Title V thereof, entitled ‘Area of
   freedom, security and justice’, that article simply refers to the definition, for the purpose of preventing
   terrorism and related activities and combating the same, of a framework for administrative measures
   with regard to capital movements and payments, when this is necessary to achieve the objectives set
   out in Article 67 TFEU.
   – The ambit of Article 215 TFEU
55 It is necessary to examine the wording of Article 215 TFEU, the context of which that provision forms
   part and the objectives it pursues, in relation to those pursued by Article 75 TFEU, before determining,
   in the light of the purpose and content of the contested regulation, whether Article 215(2) TFEU
   constitutes the correct legal basis for the regulation.
56 Article 215 TFEU appears in Title IV, entitled ‘Restrictive measures’, of Part Five of the FEU Treaty on
   external action by the Union.
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57 Article 215(1) concerns the adoption of measures necessary for the interruption or reduction, in part
   or completely, of economic and financial relations with one or more third countries. In this context,
   Article 215(2) concerns the adoption by the Council of ‘restrictive measures […] against natural or
   legal persons and groups or non-State entities’, without specifically referring to the combating of
   terrorism and without limiting those measures to those measures alone that concern capital
   movements and payments.
58 Moreover, Article 215(2) TFEU, unlike Article 75 TFEU, provides, as mentioned at paragraph 47
   above, that it may not be used until a decision under the CFSP has provided for the adoption of
   restrictive measures against natural or legal persons, groups or non-State entities. For its part,
   Article 75 TFEU states that it may be used where necessary to achieve the objectives set out in
   Article 67 TFEU, that is to say, in connection with creating an area of freedom, security and justice.
59 In this regard, it is to be borne in mind that, at paragraph 197 of Kadi and Al Barakaat International
   Foundation v Council and Commission, the Court considered that a bridge had been constructed
   between the actions of the Community involving economic measures under Articles 60 EC and 301
   EC and the objectives of the EU Treaty, as it stood before the Treaty of Lisbon entered into force, in
   the sphere of external relations, including the CFSP. Article 215 TFEU expressly provides such a
   bridge, but this is not the case with Article 75 TFEU, which creates no link with decisions taken
   under the CFSP.
60 As regards combating terrorism and its funding, it is to be noted that there is nothing in Article 215
   TFEU to indicate that measures designed to combat them, taken against natural or legal persons,
   groups or non-State entities, could not constitute restrictive measures provided for in subparagraph 2
   of that article. It is to be observed here that, although neither Article 60 EC nor Article 301 EC
   referred expressly to combating terrorism, those two provisions did, none the less, constitute the legal
   basis for the adoption, before the Treaty of Lisbon entered into force, of restrictive measures designed
   to combat that phenomenon (see, inter alia, in this respect, the measures at issue in Kadi and Al
   Barakaat International Foundation v Council and Commission).
61 While admittedly the combating of terrorism and its financing may well be among the objectives of the
   area of freedom, security and justice, as they appear in Article 3(2) TEU, the objective of combating
   international terrorism and its financing in order to preserve international peace and security
   corresponds, nevertheless, to the objectives of the Treaty provisions on external action by the Union.
62 Article 21(2)(c) TEU, which forms part of Chapter 1 laying down general provisions on the Union’s
   external action in Title V of the EU Treaty, provides: ‘The Union shall define and pursue common
   policies and actions, and shall work for a high degree of cooperation in all fields of international
   relations, in order to … preserve peace, prevent conflicts and strengthen international security, in
   accordance with the purposes and principles of the United Nations Charter’. With more specific
   regard to the CFSP, it is to be noted that, according to the first subparagraph of Article 24(1) TEU,
   ‘[t]he Union’s competence in matters of [the CFSP] shall cover all areas of foreign policy and all
   questions relating to the Union’s security, including the progressive framing of a common defence
   policy that might lead to a common defence’.
63 Given that terrorism constitutes a threat to peace and international security, the object of actions
   undertaken by the Union in the sphere of the CFSP, and the measures taken in order to give effect to
   that policy in the Union’s external actions, in particular, restrictive measures for the purpose of
   Article 215(2) TFEU, can be to combat terrorism.
64 That assertion is borne out by, in particular, the tenor of Article 43(1) TEU, which makes it clear that
   all the tasks covered by the common security and defence policy ‘may contribute to the fight against
   terrorism, including by supporting third countries in combating terrorism in their territories’.
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65 It follows from the foregoing that Article 215(2) TFEU may constitute the legal basis of restrictive
   measures, including those designed to combat terrorism, taken against natural or legal persons,
   groups or non-State entities by the Union when the decision to adopt those measures is part of the
   Union’s action in the sphere of the CFSP.
66 As the Advocate General observed in point 69 of his Opinion, in so far as Articles 75 TFEU and 215
   TFEU relate to different European Union policies that pursue objectives which, although
   complementary, do not have the same scope, it would not seem possible to regard Article 75 TFEU as
   a more specific legal basis than Article 215(2) TFEU.
   – The purpose and tenor of the contested regulation
67 As is made clear in paragraphs 3 to 5 above, Regulation No 881/2002, amended by the contested
   regulation, constitutes one of the instruments by which the European Union put into effect an action
   decided upon within the Security Council and intended to preserve international peace and security
   (see, to this effect, the penultimate sentence in the preamble to Resolution 1390 (2002)), namely: the
   adoption of measures freezing the funds and economic resources of persons designated by the
   Sanctions Committee, with regard to whom the Union simply reproduces the list. It is common
   ground that terrorism involving persons and entities associated with Usama ben Laden, the Al-Qaeda
   network and the Taliban is a phenomenon of international proportions.
68 As the Court stated at paragraphs 169 and 184 of Kadi and Al Barakaat International Foundation v
   Council and Commission, the essential purpose and object of the contested regulation is to combat
   international terrorism. This objective of Regulation No 881/2002 is recalled in recital 11 in the
   preamble to the contested regulation, which states that ‘[t]he purpose of Regulation … No 881/2002 is
   to prevent terrorist crimes, including terrorist financing, in order to maintain international peace and
   security’.
69 As the Parliament has itself stressed, the contested regulation for the most part merely reformulates or
   clarifies provisions of Regulation No 881/2002 or makes them easier to apply, but does not in any way
   change the nature of the latter regulation’s content.
70 It is clear from recitals 4 to 9 in the preamble to the contested regulation that the latter falls within the
   same line of action as Regulation No 881/2002, supplementing that measure by having the more
   specific purpose of reconciling the fight against international terrorism with respect for fundamental
   rights, in accordance with Kadi and Al Barakaat International Foundation v Council and
   Commission.
71 To that end, the contested regulation introduces a listing procedure ensuring that the fundamental
   rights of the defence, in particular the right to be heard, are respected. Together with Common
   Position 2002/402, Regulation No 881/2002 and the contested regulation thus establish a system of
   interaction between the Security Council and the Union.
72 It follows from the foregoing that, in the light of its objectives and of its content, the contested
   regulation relates to a decision taken by the Union under the CFSP.
73 Contrary to what is maintained by the Parliament, the inclusion of Article 308 EC in the legal basis of
   Regulation No 881/2002 does not shake that conclusion. While it is true that a measure under the
   CFSP could not have had Article 308 EC for its sole basis, the fact remains that that article could, as
   held at paragraph 53 above, supplement the legal basis of a measure adopted in reliance on
   Articles 60 EC and 301 EC in order to cover the adoption of restrictive measures whose addressees
   were natural or legal persons, groups or non-State entities not linked to the governing regime of a
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   third country. A supplementary legal foundation of such a kind is, however, no longer necessary since
   Article 215(2) TFEU has expressly made it possible to adopt measures directed to such addressees on
   the basis of that provision.
74 Moreover, the Parliament’s argument that it is impossible to distinguish the combating of ‘internal’
   terrorism, on the one hand, from the combating of ‘external’ terrorism, on the other, does not appear
   capable of calling in question the choice of Article 215(2) TFEU as a legal basis of the contested
   regulation.
75 As is made clear at paragraph 65 above, Article 215(2) TFEU provides a sufficient legal basis for
   adopting, in response to a decision taken under the CFSP, restrictive measures taken in order to apply
   that policy to natural or legal persons, groups or non-State entities involved in acts of terrorism.
76 In the present case, it is to be emphasised that the contested regulation amends Regulation
   No 881/2002 which, as found at paragraph 67 above, constitutes one of the instruments by which the
   European Union put into effect an action decided upon within the Security Council and intended to
   preserve international peace and security. In addition, as observed at paragraph 72 above, in the light
   of both its objectives and its content, the contested regulation relates to a decision taken by the Union
   under the CFSP.
77 What is more, although, in connection with the second plea in law, the Parliament denies that
   Common Position 2002/402 can possibly amount to a decision under the CFSP for the purpose of
   Article 215(2) TFEU, it has not, however, called in question whether it was possible for that Common
   Position, having enabled adoption of Regulation No 881/2002 in accordance with Articles 60 EC
   and 301 EC, to be validly based on Title V of the EU Treaty, as it stood before the Treaty of Lisbon,
   that is to say, the title of that treaty concerning the CFSP.
78 Having regard to those factors, it suffices to find that Article 215(2) TFEU constitutes the appropriate
   legal basis for measures, such as those at issue in the present case, directed to addressees implicated in
   acts of terrorism who, having regard to their activities globally and to the international dimension of
   the threat they pose, affect fundamentally the Union’s external activity.
   – The consequences for the Parliament’s prerogatives of the choice between Articles 75 TFEU and 215
   TFEU
79 While it is true that choosing between Articles 75 TFEU and 215 TFEU as the legal basis for the
   contested regulation has consequences for the Parliament’s prerogatives, inasmuch as the former
   provides for recourse to the ordinary legislative procedure whereas, under the latter, the Parliament is
   merely informed, that fact cannot, however, determine the choice of legal basis.
80 As the Council argues, it is not procedures that define the legal basis of a measure but the legal basis of
   a measure that determines the procedures to be followed in adopting that measure.
81 Admittedly, participation by the Parliament in the legislative process is the reflection, at Union level, of
   the fundamental democratic principle that the people should participate in the exercise of power
   through the intermediary of a representative assembly (see, to that effect, Case 138/79 Roquette Frères
   v Council [1980] ECR 3333, paragraph 33, and Titanium dioxide, paragraph 20).
82 Nevertheless, the difference between Article 75 TFEU and Article 215 TFEU, so far as the Parliament’s
   involvement is concerned, is the result of the choice made by the framers of the Treaty of Lisbon
   conferring a more limited role on the Parliament with regard to the Union’s action under the CFSP.
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83 So far as concerns the Parliament’s argument that it would be contrary to Union law for it to be
   possible for measures to be adopted that impinge directly on the fundamental rights of individuals
   and groups by means of a procedure excluding the Parliament’s participation, it is to be noted that
   the duty to respect fundamental rights is imposed, in accordance with Article 51(1) of the Charter of
   Fundamental Rights of the European Union, on all the institutions and bodies of the Union. In
   addition, under both Article 75 TFEU and Article 215(3) TFEU, the acts referred to in those articles
   are to include necessary provisions on legal safeguards.
84 In consequence, a measure, such as the contested regulation, containing safeguards for the respect of
   the fundamental rights of the persons whose names appear in the list, may be adopted on the basis of
   Article 215(2) TFEU. The argument to the contrary, that such a measure may be adopted only on the
   basis of Article 75 TFEU, would, moreover, render Article 215(2) largely redundant, whereas the duty
   to respect fundamental rights bears also on Union measures giving effect to resolutions of the
   Security Council (see, to that effect, Kadi and Al Barakaat International Foundation v Council and
   Commission, paragraphs 285, 299 and 326).
85 In those circumstances, and having regard to all the foregoing considerations, it is to be concluded that
   the contested regulation was rightly based on Article 215(2) TFEU.
86 Consequently, the first plea in law must be rejected as unfounded.
   The second plea in law: failure to satisfy the conditions for recourse to Article 215 TFEU
87 Inasmuch as the contested regulation could validly be based on Article 215 TFEU, it is necessary to
   assess the arguments presented by the Parliament in support of its second plea in law, alleging failure
   to satisfy the conditions for recourse to that article.
   Arguments of the parties
88 The second plea is divided into two parts. The first concerns failure to comply with the condition
   relating to a joint proposal from the High Representative and the Commission, and the second
   concerns the fact that no decision under the CFSP was taken before the contested regulation was
   adopted.
   – No proposal compatible with the Treaties
89 According to the Parliament, when the contested regulation was adopted on 22 December 2009, there
   was no Commission that could legitimately submit a joint proposal with the High Representative, the
   term of office of the Commission appointed on 22 November 2004 having expired on 31 October
   2009 and the new Commission not taking office until 10 February 2010. Even if it had been
   acceptable, in the interests of the continuity of the work of that institution, for the Commission
   appointed in November 2004 to continue to perform certain tasks, its authority would have been
   confined to dealing with current business. It would not have been empowered to take a major
   political initiative amending the legal basis of a measure in such a way as to divest it of its legislative
   nature and to divest the Parliament and the national parliaments of any influence.
90 The Parliament considers that it cannot be argued that the proposal submitted by the Commission and
   the High Representative was merely the continuation of the proposal submitted by the Commission
   acting alone on 22 April 2009. Furthermore, the way in which the proposal was submitted was not in
   conformity with the role or the responsibilities of the High Representative, as laid down in the Treaty
   of Lisbon. It is inconceivable that a joint proposal as required under Article 215(2) TFEU could be
   replaced by a mere endorsement by the High Representative of a pre-existing Commission proposal,
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   adopted by that institution before the entry into force of the Treaty of Lisbon. Furthermore, the High
   Representative, as the person responsible for the CFSP, is required to provide an adequate statement of
   reasons for the joint proposal submitted.
91 The Council submits that when the term of office of the Commission, appointed in November 2004,
   expired on 31 October 2009, the Commission remained in office pending the appointment of a new
   Commission, in order to ensure the necessary continuity in the institution’s work, as indicated in
   recital 1 in the preamble to Decision 2010/80/EU of the European Council of 9 February 2010
   appointing the European Commission (OJ 2010 L 38, p. 7). The Parliament continued, during the
   interim period from 1 November 2009 to 10 February 2010, to deal with the Commission as if the
   latter remained legitimately in existence.
92 The Council stresses that the contested regulation was adopted on the basis of the proposal for a
   regulation of 22 April 2009 endorsed by the High Representative on 14 December 2009. That
   proposal remained valid after the expiry of the Commission’s term of office on 31 October 2009. The
   only effect of the entry into force of the Treaty of Lisbon was to alter the procedure governing the
   adoption of the contested regulation.
93 The Council observes that, on 2 December 2009, the Commission presented to the Parliament and the
   Council a communication on the consequences of the entry into force of the Treaty of Lisbon for
   ongoing interinstitutional decision-making procedures, including an indicative list of the pending
   proposals it had presented before the entry into force of the Treaty of Lisbon and indicating, for each
   of the proposals, the consequences of the entry into force of that treaty. The proposal presented by the
   Commission to the Council on 22 April 2009 was mentioned in that list, together with an indication
   that its legal basis was to change from the former Articles 60 EC, 301 EC and 308 EC to Article 215
   TFEU.
94 Even if it were to be conceded that the situation in which the Commission found itself is analogous to
   that provided for in the sixth paragraph of Article 246 TFEU on the voluntary resignation of all the
   Members of the Commission, the case-law of the Union judicature does not, in the Council’s view,
   support the conclusion that the Commission stepped outside the sphere of current business. In
   paragraph 96 of its judgment in Joined Cases T-228/99 and T-233/99 Westdeutsche Landesbank
   Girozentrale and Land Nordrhein-Westfalen v Commission [2003] ECR II-435, the General Court held
   that a decision on State aid adopted by the Commission after its members had collectively resigned did
   not constitute a new political initiative which thus exceeded the powers of a Commission that was
   restricted to dealing with current business. If that was the conclusion in respect of a new decision
   adopted by the Commission during the period in question, the same conclusion must a fortiori apply
   in circumstances in which a pre-existing proposal remained pending. In addition, the question arises
   whether the limitation to dealing with current business laid down in the second paragraph of
   Article 201 EC was applicable, given that the Parliament had not adopted a motion of censure on the
   Commission’s administration.
95 According to the Council, the joint proposal of the High Representative and the Commission was duly
   submitted. On 14 December 2009, the High Representative endorsed the Commission’s proposal of
   22 April 2009. It was neither necessary nor possible for her to present a separate statement of
   reasons. Nor was it possible for her to make unilateral additions to the statement of reasons set out in
   the preamble to the proposal.
   – No decision under the CFSP
96 According to the Parliament, the contested regulation does not contain any reference to a decision
   adopted in accordance with Chapter 2 of Title V of the EU Treaty, even though Article 215 TFEU
   provides for it. The preamble to that regulation refers to Common Position 2002/402, but the latter
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    does not constitute a decision within the meaning of that provision. A common position adopted
    before the entry into force of the Treaty of Lisbon cannot be treated in the same way as such a
    decision.
97  According to the Parliament, the Council’s arguments that the legal effects of that common position
    should be maintained, in accordance with the Protocol (No 36) on transitional provisions, annexed to
    the FEU, EU and EAEC Treaties and with what that institution calls the ‘principle of continuity of acts’,
    are irrelevant. There is nothing in that protocol, nor is there any principle of European Union law, to
    the effect that a common position may take the place of a decision adopted in accordance with
    Chapter 2 of Title V of the EU Treaty. The Council also disregards the fact that such a decision is
    itself amenable to judicial review by a party having the requisite legal standing and that the Court
    could even prohibit the Council from adopting measures under Article 215 TFEU.
98  The Council contends that Regulation No 881/2002, preceded by the adoption of Common Position
    2002/402, defines the specific provisions and procedures necessary to give effect to the freezing of
    funds. Even though it was decided to amend that regulation in response to Kadi and Al Barakaat
    International Foundation v Council and Commission, by adding to it provisions on procedural
    safeguards, it was not necessary to amend Common Position 2002/402 or to adopt a new decision
    under the CFSP to that effect. When a measure under the CFSP requiring the adoption of restrictive
    measures already exists, that measure not having been repealed, annulled or amended, it cannot be
    required that a new decision under the CFSP should be adopted under Chapter 2 of Title V of the EU
    Treaty. Such an approach would be contrary to the principle of continuity of acts laid down in
    Article 9 of the Protocol (No 36).
99  The Council also maintains that it does not follow from the fact that listed persons and entities may
    now bring an action for the annulment of decisions taken in the sphere of the CFSP imposing
    restrictive measures on them that any amendment to an existing regulation must necessarily be
    preceded by the adoption of a new CFSP decision.
    Findings of the Court
100 With regard, in the first place, to the lack of a proposal compatible with the Treaties, it is true that the
    Commission’s term of office ended on 31 October 2009 and that the Commission remained in office
    until 10 February 2010, pending the completion of the process of appointing the new Commission, in
    accordance with the provisions of the Treaty of Lisbon. The contested regulation was adopted between
    those two dates, namely, on 22 December 2009.
101 Nevertheless, even if, after the Commission’s term of office expired on 31 October 2009, that body’s
    powers were limited to dealing with current business, the institution could undertake the formal
    amendment of its proposal for a regulation of 22 April 2009 in respect of its legal basis.
102 As the Commission stresses, such a step was essential if the Union legislature was to continue with the
    pending procedure after the Treaty of Lisbon entered into force.
103 It may be observed here that, so far as concerns those legislative proposals of the Commission whose
    legal basis could not, in view of the nature and scope of the measures, simply be replaced by a new
    basis, the proposals were, in accordance with the communication of 2 December 2009 mentioned at
    paragraph 93 above, withdrawn and were to be replaced by new proposals.
104 As regards the Parliament’s argument that a joint proposal by the High Representative and the
    Commission was necessary, it is to be found that on 14 December 2009 the High Representative
    officially endorsed the proposal for a regulation of 22 April 2009.
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105 Article 215 TFEU requires no more than a joint proposal of the Commission and the High
    Representative, and does not make it necessary for the High Representative to present a separate
    statement of reasons or to supplement that in the Commission’s proposal.
106 With regard, in the second place, to the lack of a decision under the CFSP, it is appropriate to examine
    the question whether, in view of the entry into force of the Treaty of Lisbon, the contested regulation
    could be adopted on the basis of Common Position 2002/402, which served as the basis for Regulation
    No 881/2002.
107 It must be recalled that, in accordance with Article 9 of the Protocol (No 36), the legal effects of the
    acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the EU
    Treaty before the entry into force of the Treaty of Lisbon are to be preserved until those acts are
    repealed, annulled or amended in implementation of the Treaties.
108 The legal effects of Common Position 2002/402 have thus been preserved after the Treaty of Lisbon
    entered into force for so long as that measure is not repealed, annulled or amended.
109 As the Advocate General stated at point 102 of his Opinion, lest Article 9 of the Protocol (36) be
    rendered largely redundant, the fact that the EU Treaty no longer provides for common positions but
    for decisions in matters relating to the CFSP does not have the effect of rendering non-existent those
    common positions adopted under the EU Treaty before the Treaty of Lisbon entered into force.
110 In those circumstances, although the legal contexts of those two classes of legal acts are not the same,
    common positions not repealed, annulled or amended after the Treaty of Lisbon entered into force
    may be considered to correspond, for the purpose of implementing Article 215 TFEU, to the decisions
    adopted in accordance with Chapter 2 of Title V of the EU Treaty to which that article refers.
111 It follows that the second plea must be rejected as being unfounded.
112 None of the pleas put forward by the Parliament in support of its action being well founded, that
    action must, in consequence, be dismissed.
    Costs
113 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs
    if they have been applied for in the successful party’s pleadings. Since the Council has applied for costs
    and the Parliament has been unsuccessful, the latter must be ordered to pay the costs. Pursuant to the
    first subparagraph of that article, the interveners in these proceedings are to bear their own costs.
    On those grounds, the Court (Grand Chamber) hereby:
    1.    Dismisses the action;
    2.    Orders the European Parliament to pay the costs;
    3.    Orders the Czech Republic, the French Republic, the Kingdom of Sweden and the European
          Commission to bear their own costs.
    [Signatures]
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