CELEX: 61992CC0041
Language: en
Date: 1993-03-24 00:00:00
Title: Opinion of Mr Advocate General Darmon delivered on 24 March 1993. # The Liberal Democrats v European Parliament. # Actions against Community institutions for failure to act - Act of the Parliament - Uniform electoral procedure - No need to give a decision. # Case C-41/92.

OPINION OF ADVOCATE GENERAL
      DARMON
      delivered on 24 March 1993 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               In this action, the Liberal Democrats, a political party in Great Britain, (‘the applicant’), seek a declaration from the Court that the European Parliament (‘the Parliament’) has failed to act in accordance with its obligations under the first subparagraph of Article 138(3) of the EEC Treaty (
                     1
                  ) and Article 7(1) of the Act concerning the election of the representatives of the Assembly by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (
                     2
                  ) (‘the Act’) through its failure to submit to the Council a proposal for the election of members of the Parliament in accordance with a uniform procedure in all Member States.
            
         
               2. 
            
            
               By a letter of 4 October 1991, the applicant called on the Parliament to remedy its failure to act. No reply to that letter was forthcoming.
            
         
               3. 
            
            
               The first subparagraph of Article 138(3) of the EEC Treaty provides that:
               ‘The European Parliament shall draw up proposals for elections by direct universal suffrage in accordance with a uniform procedure in all Member States.’
            
         
               4. 
            
            
               Article 7(1) of the Act provides that:
               ‘Pursuant to Article 21(3) of the Treaty establishing the European Coal and Steel Community, Article 138(3) of the Treaty establishing the European Economic Community and [Article] 108(3) of the Treaty establishing the European Atomic Energy Community, the Assembly shall draw up a proposal for a uniform electoral procedure.’
            
         
               5. 
            
            
               According to the applicant, the failure of which it accuses the defendant, inasmuch as it obstructs the adoption of a uniform electoral procedure, prevents the applicant from being represented in the Parliament.
            
         
               6. 
            
            
               The Parliament argues that the application is inadmissible for the following three reasons:
               
                        —
                     
                     
                        there was no failure to act inasmuch as the Parliament has satisfied the obligation imposed on it by the first subparagraph of Article 138(3);
                     
                  
                        —
                     
                     
                        the proposals which the Parliament is required to draw up have no legal effect vis-à-vis the applicant; for that reason, any failure by the Parliament to comply with that obligation cannot be penalized by the application of Article 175 of the EEC Treaty;
                     
                  
                        —
                     
                     
                        finally, the applicant lacks locus standi as it cannot demonstrate that it has a direct and individual interest in bringing the action.
                     
                  
         
               7. 
            
            
               Although the Parliament did not raise a separate plea of inadmissibility based on the absence of capacity to be a defendant in the matter, the Court may of its own motion ascertain whether there is such an absence in respect of a failure to act, as it did in its judgment in Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament with regard to the Parliament's capacity as defendant in an action for annulment. (
                     3
                  )
            
         
               8. 
            
            
               Let us assess the scope of this issue. In relations between the Community institutions, the action for failure to act is a particularly effective tool.
            
         
               9. 
            
            
               In cases where it is used by the Parliament, it has been described as the ‘king of actions’ (
                     4
                  ) inasmuch as it constitutes a ‘method of exerting pressure’ during the legislative process characterized by the dominant role of the Council.
            
         
               10. 
            
            
               Can the Parliament, therefore, without being subject to judicial review, fail to deliver an opinion or fail to submit a proposal in a decision-making process where those are required?
            
         
               11. 
            
            
               To phrase it differently, the Parliament's capacity to initiate proceedings in respect of failure to act confers of itself on that institution an active role in the review of legality, (
                     5
                  ) even though the Council remains the principal Community legislature. Conversely, recognition of the Parliament's capacity to have proceedings initiated against it is tantamount to subjecting its inaction to inescapable judicial control.
            
         
               12. 
            
            
               The Treaty on European Union, which extends the procedures for cooperation and assent of the European Parliament and introduces a new procedure for joint decisionmaking, increases for that very reason the possibility of paralysis. This indicates the interest which exists in securing a decision that proceedings may be brought against the Parliament in the matter of failure to act.
            
         
               13. 
            
            
               The laconic nature of the relevant texts, coupled with the Parliament's restricted powers in the original Treaties, has led the Court, particularly over the past decade, to reinforce the ‘various aspects of the European Parliament's involvement in judicial proceedings’. (
                     6
                  ) The Court has accepted since 1964 that acts of the Parliament may be the subject of a preliminary reference. (
                     7
                  ) The Parliament may also be required to supply information to the Court under the second paragraph of Article 21 of the Statute of the Court of Justice of the EEC. After recognizing the Parliament's right of intervention, (
                     8
                  ) the Court upheld its power to initiate proceedings in cases of failure to act, (
                     9
                  ) as well as ruling that its acts could be subject to an application for annulment under Article 173. (
                     10
                  ) Finally, the Court has accepted, within certain limits, that the Parliament has capacity to bring actions for annulment of the measures of other institutions. (
                     11
                  )
            
         
               14. 
            
            
               The Court today has the opportunity to complete this interpretative process by ruling that, subject to certain conditions, actions may be brought against the Parliament for failure to act.
            
         
               15. 
            
            
               Article 175 of the EEC Treaty provides as follows:
               ‘Should the Council or Commission, in infringement of this Treaty, fail to act, the Member States and the other institutions of the Community may bring an action before the Court of Justice to have the infringement established. (
                     12
                  )
               ....
               Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court of Justice that an institution of the Community has failed to address to that person any act other than a recommendation or an opinion.’ (
                     13
                  )
            
         
               16. 
            
            
               In its judgment in the ‘common transport policy’ case, (
                     14
                  ) in which it held that the Parliament could bring an action for failure to act, the Court pointed out that the Parliament was one of the ‘institutions of the Community’ (
                     15
                  ) and stated in that regard that:
               ‘... the first paragraph of Article 175 ... expressly gives a right of action for failure to act against the Council and Commission inter alia to “the other institutions of the Community”. It thus gives the same right of action to all the Community institutions. It is not possible to restrict the exercise of that right by one of them without adversely affecting its status as an institution under the Treaty, in particular Article 4(1)’. (
                     16
                  )
            
         
               17. 
            
            
               This reasoning is eminently applicable by analogy to the third paragraph of Article 175. How, after all, can the phrase ‘institution(s) of the Community’ have two separate meanings within the same article?
            
         
               18. 
            
            
               The Court's case-law on the Parliament's involvement in judicial proceedings is largely based on the principle of institutional balance: each Community institution must be able to exercise fully the powers conferred on it by the Treaty with due regard for those of the other institutions. It is with a view to maintaining this institutional balance that the Court reviews the observance of each institution's prerogatives. (
                     17
                  )
            
         
               19. 
            
            
               In its judgment in Les Verts, the Court ruled that:
               ‘... An interpretation of Article 173 of the Treaty which excluded measures adopted by the European Parliament from those which could be contested would lead to a result contrary both to the spirit of the Treaty as expressed in Article 164 and to its system. Measures adopted by the European Parliament in the context of the EEC Treaty could encroach on the powers of the Member States or of the other institutions, or exceed the limits which have been set to the Parliament's powers, without it being possible to refer them for review by the Court. It must therefore be concluded that an action for annulment may lie against measures adopted by the European Parliament intended to have legal effect vis-à-vis third parties.’ (
                     18
                  )
            
         
               20. 
            
            
               The Court thereby confirmed that the Parliament could be a defendant in an action for annulment.
               
            
         
               21. 
            
            
               Dealing with the same legal remedy, and for the purpose of establishing (within certain limits) the Parliament's capacity to bring actions, the Court ruled in its judgment in the ‘Chernobyl’ case (
                     19
                  ) that:
               ‘Observance of the institutional balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions. It also requires that it should be possible to penalize any breach of that rule which may occur.
               The Court, which under the Treaties has the task of ensuring that in the interpretation and application of the Treaties the law is observed, must therefore be able to maintain the institutional balance and, consequently, review the observance of the Parliament's prerogatives when called upon to do so by the Parliament, by means of a legal remedy which is suited to the purpose which the Parliament seeks to achieve.’ (
                     20
                  )
            
         
               22. 
            
            
               Specifying its own function in this regard, the Court, in anticipation of the issue which arises in the present case, pointed out in more general terms that:
               ‘However, it is the Court's duty to ensure that the provisions of the Treaties concerning the institutional balance are fully applied and to see to it that the Parliament's prerogatives, like those of the other institutions, cannot be breached without it having available a legal remedy, among those laid down in the Treaties, which may be exercised in a certain and effective manner.’ (
                     21
                  )
            
         
               23. 
            
            
               From this I conclude that Community law does not guarantee a coherent system of legal protection through a ‘complete system of legal remedies’ (
                     22
                  ) and that the prerogatives of the other institutions — as well as of the Member States — would be breached if they were unable to bring actions against the Parliament for failure to act. What would be the point of the Court's recognition of actions for annulment against measures of the Parliament if that institution could, through inaction, escape all control?
            
         
               24. 
            
            
               I would for that reason propose that the Court should rule that actions may be brought against the Parliament for failure to act.
            
         
               25. 
            
            
               An action for failure to act, however, cannot be allowed in respect of every abstention on the part of the Parliament.
            
         
               26. 
            
            
               In its judgment in Les Verts, the Court put forward the principle that:
               ‘... the general scheme of the Treaty is to make a direct action available against “all measures adopted by the institutions ... which are intended to have legal effects”’. (
                     23
                  )
            
         
               27. 
            
            
               With regard to annulment, the action is available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects. (
                     24
                  ) The Court also restated that principle in its judgment in the ‘Comitology’ case. (
                     25
                  )
            
         
               28. 
            
            
               The Court has also ruled that:
               ‘... in the system of legal remedies provided for by the Treaty there is a close relationship between the right of action given in Article 173, which allows unlawful measures of the Council and Commission to be declared void, and that based on Article 175, which may lead to a finding that the failure by the Council or Commission to adopt certain measures is contrary to the Treaty’. (
                     26
                  )
            
         
               29. 
            
            
               It follows that the criterion of legal effects is of crucial significance in the present context. Any omission by a Community institution to adopt a measure having legal effects, irrespective of its nature, constitutes a failure to act within the meaning of Article 175.
            
         
               30. 
            
            
               An examination of the competence and powers of the Parliament, which demonstrates the need to accept that actions may be brought against that institution for failure to act, must also make it possible to restrict the practical scope of such actions.
            
         
               31. 
            
            
               An action for failure to act normally seeks, through the establishment of the failure and the obligation to put an end to it, (
                     27
                  ) the adoption of a decision which ought to have been taken but which, in infringement of the Treaty, has not yet been taken. With regard to the adoption of binding rules, the Parliament does not in principle have the power of initiation, which is the prerogative of the Commission, or the direct power to take decisions, which is exercised by the Council and Commission.
            
         
               32. 
            
            
               In addition, it occurs frequently in cases where the failure on the part of the Parliament is of such a kind as to inhibit the functioning of the institutions that the Treaty counters the risk of such paralysis by providing that in instances of prolonged inaction the failure to act may be disregarded and the decision in question adopted. This, for example, is the case with regard to the cooperation procedure under the second subparagraph of Article 149(2)(b) and budgetary matters covered by Article 203(4) and (6). (
                     28
                  ) In cases of this kind, recourse to Article 175 loses its entire raison d'être. The Treaty laid down in advance the consequences of failure to act on the part of the Parliament. (
                     29
                  )
            
         
               33. 
            
            
               In the same way, no action for failure to act is possible where the Parliament has failed to adopt a measure in an area in which it exercises a discretionary power. An omission in such a case will not constitute failure to act because it will not be ‘in infringement of [the] Treaty’. (
                     30
                  ) The same also applies, for instance, with regard to motions of censure.
            
         
               34. 
            
            
               Nevertheless, the expansion of the Parliament's role in the preparation of Community decisions that followed in particular from the Single European Act, which introduced joint decision procedures in a number of areas, (
                     31
                  ) may increase the risk for certain procedures of paralysis resulting from inaction on the part of the institution.
            
         
               35. 
            
            
               Even before the Single Act, in legislative matters where the Treaties provide for the Parliament to be consulted (Article 43(2), Article 100, etc.), a request for an opinion submitted to it by the Council and which remained unanswered did not satisfy the condition of consultation: the Court requires the Parliament to express its opinion. (
                     32
                  ) Consequently, the absence of an opinion prevents the Council from adopting a regulation and thereby blocks the legislative process. Reference might also be made to the absence of a vote on discharge in respect of the implementation of the budget (Article 206b of the Treaty) or the absence of a decision by the President of the Parliament declaring that the budget has been finally adopted (Article 203(7)).
            
         
               36. 
            
            
               It is for that reason necessary to provide that an action for failure to act may be brought against the Parliament in order to put an end to such a situation.
            
         
               37. 
            
            
               In the case where proceedings for a failure to act may be brought against an institution which fails to ‘act’, that is to say, to adopt a measure producing legal effects, it must also be possible to bring such proceedings against the institution which, at an earlier stage, fails to adopt a measure, the performance of which is a precondition to the action of the former. Such failure to act itself produces legal effects.
            
         
               38. 
            
            
               I wish to quote at this point from the Court's case-law on budgetary procedure. In its judgment in Case 34/86 Council v Parliament, (
                     33
                  ) the Court ruled that:
               ‘... If it were not possible to refer the acts of the budgetary authority for review by the Court, the institutions of which that authority is composed could encroach upon the powers of the Member States or of the other institutions or exceed the limits which have been set to their own powers.’ (
                     34
                  )
            
         
               39. 
            
            
               Commenting on the grounds of that judgment, Advocate General Mischo has noted that:
               ‘Just as the Court must be able to verify whether an institution is encroaching upon the powers of the other institutions or of the Member States by adopting certain measures, it should also be empowered to do so where an institution's failure to act is liable to bring about the same result and hinder the exercise by the other institutions or the Member States of their respective powers.’ (
                     35
                  )
            
         
               40. 
            
            
               The Court did accept obiter in its judgment in the ‘Comitology’ case that the Parliament can bring proceedings for failure to act in respect of the Council's omission to present a draft budget. (
                     36
                  ) In the absence of such a draft, the Parliament is not in a position to exercise the powers conferred on it by Article 203(4) to (8) of the Treaty.
            
         
               41. 
            
            
               Admittedly, where the Parliament is not acting in an area in which the Treaties authorize or oblige it to act, it is not encroaching upon the powers of the other institutions. On the other hand, however, it may be preventing those institutions from exercising their powers.
            
         
               42. 
            
            
               The view should therefore be taken that an action against the Parliament for failure to act may in principle be brought before the Court provided that the measure, adoption of which is sought, produces legal effects.
            
         
               43. 
            
            
               The Parliament, it will be recalled, has raised three pleas of inadmissibility.
            
         
               44. 
            
            
               The first of these, which involves the question whether the Parliament did or did not ‘draw up proposals for elections by direct universal suffrage in accordance with a uniform procedure’ within the meaning of the first subparagraph of Article 138(3) of the Treaty is, in my opinion, not one relating to admissibility but is rather an issue of substance touching on the very existence of the failure to act.
            
         
               45. 
            
            
               It was for that reason that the parties were requested, for the purposes of the hearing, to limit their observations to the following points:
               
                        (1)
                     
                     
                        Does the proposal adopted by the Parliament pursuant to the above provision have legal effects?
                     
                  
                        (2)
                     
                     
                        To what extent is the applicant directly and individually concerned?
                     
                  
         
               46. 
            
            
               I shall examine each of these two points in turn.
            
         
               47. 
            
            
               Do the ‘proposals’ referred to in the first subparagraph of Article 138(3) have the characteristics of measures producing legal effects?
            
         
               48. 
            
            
               The three-stage procedure set out in that provision is unusual in more than one respect. It has already been used to bring about the Council Decision of 20 September 1976, cited above, and the Act of the same date annexed thereto ‘concerning the election of the representatives of the Assembly by direct universal suffrage’.
            
         
               49. 
            
            
               Article 138 imposes an obligation on the Parliament to draw up ‘proposals’ in order to make possible elections by direct universal suffrage in accordance with a uniform procedure in all Member States. (
                     37
                  )
            
         
               50. 
            
            
               As the institution to which those proposals are addressed, the Council, acting unanimously, is required to lay down appropriate provisions, which it shall recommend (
                     38
                  ) to Member States for adoption in accordance with their respective constitutional requirements.
            
         
               51. 
            
            
               It has been pointed out in academic writing that this case is one of a special procedure involving at the same time implementation and revision of the Treaty. It is remarkable in this regard that the Act, Article 1 of which provides for the election of members of the European Parliament by direct universal suffrage (without any mention of ‘in accordance with the procedure fixed by each Member State’) and Article 2 for a new allocation for each Member State of the number of representatives in the Assembly, has had the effect of causing paragraphs 1 and 2 of Article 138 to lapse, and, in particular, that this lapse is expressly provided for in Article 14 of the Act itself.
            
         
               52. 
            
            
               The Act thus complements the Treaty and is a measure of primary law.
            
         
               53. 
            
            
               Constituting an exceptional case under the Treaty, it is the Parliament which here enjoys the power of initiative; this, as Mr Verges points out, is logical since the Assembly is ‘directly concerned by the change in its system of recruitment’. (
                     39
                  )
            
         
               54. 
            
            
               As it deals only with the ‘election of the representatives of the Assembly by direct universal suffrage’, the Act leaves incomplete the tasks allocated to the Parliament and Council by Article 138(3).
            
         
               55. 
            
            
               Having thus recourse to the ‘technique of progressive application’, (
                     40
                  ) it nevertheless prescribes in Article 7 (
                     41
                  ) (though without laying down a deadline) that this task must be completed by the drawing up of a ‘proposal for a uniform electoral procedure’.
            
         
               56. 
            
            
               The drawing up of this ‘proposal’ (
                     42
                  ) (it should be noted that Article 7 of the Act uses the singular and not the plural, as in Article 138) and, in the light of the latter, the Council's adoption of the ‘provisions’ will produce their full effects in respect of the first and, subsequently, the second subparagraphs of Article 138(3), which then ought for that reason to lapse in the same way as paragraphs 1 and 2 of that same article are declared by Article 14 of the Act to have lapsed.
            
         
               57. 
            
            
               The Parliament's proposals are not binding on the Council. It is remarkable that in an area such as the adoption of a single electoral system, affecting the constitutional rules of the Member States and for that reason coming under their exclusive competence, the procedure set out in Article 138(3) makes it possible to reconcile the objective of harmonization of legislation with respect for the competence exercised by the Member States.
            
         
               58. 
            
            
               As Mr Vergès also points out, the ‘provisions’ laid down by the Council are for that reason measures sui generis which cannot be treated as decisions within the meaning of the first paragraph of Article 189 (they do not have any legal effect until they have been adopted by the Member States in accordance with their constitutional rules) or as conventions for amendments to the Treaty concluded under Article 236 (here there is a decision taken unilaterally by the Council rather than a text resulting from an intergovernmental conference). (
                     43
                  )
            
         
               59. 
            
            
               The provisions referred to in Article 138(3) cannot therefore be regarded as lacking in legal effect in the same way as an opinion or a recommendation under the third paragraph of Article 175 or the fifth paragraph of Article 189 of the Treaty. As soon as the provisions have been ratified, all national bodies, including the legislature, have a duty to comply with the provisions as adopted.
            
         
               60. 
            
            
               However, in order to ascertain whether the ‘proposals’ referred to in the first subparagraph of Article 138(3) have legal effects which allow a person instituting proceedings for failure to act to avail himself of them, it must be borne in mind that in such a matter the conditions laid down by Article 175 — and by the Court's own case-law — vary depending on whether the proceedings are brought by a Member State or a Community institution, on the one hand, or by an individual, on the other.
            
         
               61. 
            
            
               Let us examine the first case.
            
         
               62. 
            
            
               The requirement that there be legal effects is necessary for two fundamental reasons:
               
                        (a)
                     
                     
                        
                           the structure of the Community judicial system; as the Court's judgment in the ‘AETR’ case made clear, (
                              44
                           ) measures which have no legal effect do not come within the scope of review of Community legality; (
                              45
                           )
                     
                  
                        (b)
                     
                     
                        
                           the coherence of legal remedies; (
                              46
                           ) this is shown by the following example: the express refusal to adopt a recommendation cannot be contested on the basis of Article 173. (
                              47
                           ) As M. and D. Waelbroek point out, ‘if actions for failure to act could be brought against the institutions or the Member States in respect of nonobligatory measures, all that the defendant institution would have to do in order to avoid an action would be to refuse expressly to adopt a recommendation or opinion’. (
                              48
                           )
                     
                  
         
               63. 
            
            
               Where an institution fails to take a preparatory measure necessary for the adoption by another institution of a definitive measure producing legal effects, that failure itself produces legal effects inasmuch as it prevents the adoption of the definitive measure. It is this which, as I have pointed out, justifies the action for failure to act.
            
         
               64. 
            
            
               Thus, in the context of Article 152 of the Treaty, where the Commission fails to submit a proposal to the Council following a request by the latter, the Council will find itself unable to act in the absence of this vital preliminary step. It may bring proceedings against the Commission for failure to act on the ground that the latter has not adopted the proposal within the stipulated period, (
                     49
                  ) even though that proposal does not per se produce legal effects.
            
         
               65. 
            
            
               As Mr Joliét has pointed out, regarding the Commission rather than the Parliament, when the adoption of a measure requires the cooperation of two institutions, ‘proceedings brought against inaction on the part of the Council would serve no purpose if they could not also be directed against the Commission's failure to initiate the procedure’. (
                     50
                  )
            
         
               66. 
            
            
               The ‘proposals’drawn up by the Parliament under the first subparagraph of Article 138(3) produce specific legal effects vis-à-vis the Council since without them the Council cannot exercise the powers conferred on it by the second subparagraph. As Messrs Vandersanden and Barav have pointed out, (
                     51
                  )‘preparatory measures are to be treated as part of the end measure capable of being the subject-matter of an action for annulment in cases where the mere fact of inaction interrupting the procedure would produce definitive legal effects’.
            
         
               67. 
            
            
               It is clear that the Parliament's ‘proposals’ have the effect of enabling, even more so of obliging, the Council to act. Since it is not bound as to the substance, the Council may depart from the content of those proposals. On the other hand, the Parliament's failure to act produces legal effects vis-à-vis the Council inasmuch as it makes it impossible for the Council to fulfil the task assigned to it.
            
         
               68. 
            
            
               There would thus be a disregard for the Council's prerogatives if it were unable in such a case to institute proceedings for failure to act.
            
         
               69. 
            
            
               Does the Parliament's failure to draw up proposals, however, produce legal effects vis-à-vis the applicanti Does this condition governing admissibility of an action for failure to act differ when the action is based on the third paragraph of Article 175?
            
         
               70. 
            
            
               This latter provision can itself be distinguished from that in the first paragraph of the same article in so far as the failure to adopt a measure such as a recommendation or an opinion cannot form the subject-matter of an action for failure to act brought by a natural or legal person.
            
         
               71. 
            
            
               Should the action in the present case be declared inadmissible solely on the ground that the Parliament could not in any event have adopted, vis-à-vis the applicant, any measure other than a recommendation or an opinion within the meaning of the third paragraph of Article 175 of the Treaty, as the Court ruled in its judgment in Italsolar, (
                     52
                  ) which involved an action against the Commission for failure to act?
            
         
               72. 
            
            
               I believe that I have demonstrated that the Parliament's failure to draw up ‘proposals’ does produce legal effects and that consequently such proposals cannot be treated as recommendations or opinions within the meaning of the above provision. Similarly, the measure adopted by the Council, even if described as ‘provisions’, the adoption of which is ‘recommended’, can produce legal effects if the implementation of a uniform electoral system by all the Member States depends primarily on the introduction of that measure. Respect for the entente communautaire appears to me to exclude any other harmonization procedure.
            
         
               73. 
            
            
               However, is the Parliament's adoption of the ‘proposal’ capable as such of producing legal effects vis-à-vis individuals}
               
            
         
               74. 
            
            
               In its judgment in Lord Bethell, (
                     53
                  ) the Court ruled that:
               ‘... the applicant, for his application to be admissible, must be in a position to establish either that he is the addressee of a measure of the Commission having specific legal effects with regard to him, which is, as such, capable of being declared void, or that the Commission, having been duly called upon to act in pursuance of the second paragraph of Article 175, has failed to adopt in relation to him a measure which he was legally entitled to claim by virtue of the rules of Community law’. (
                     54
                  )
            
         
               75. 
            
            
               An individual cannot therefore complain that the particular institution in question failed to address to him an act if it was not under any obligation to do so. (
                     55
                  ) It is necessary that the act should produce legal effects in respect of that individual.
               
            
         
               76. 
            
            
               This condition, however, cannot be strictly applied.
            
         
               77. 
            
            
               Thus, in its judgment in Asia Motor, (
                     56
                  ) the Court of First Instance, ruling in an urgent action for failure to act brought by the companies in question (who had made a complaint pursuant to Article 3 of Regulation No 17) (
                     57
                  ) against the Commission by reason of the latter's failure to adopt a provisional decision on the basis of Article 6 of Regulation No 99/63/EEC, (
                     58
                  ) declared the action admissible even though the ‘Article 6 letter’did not constitute a definitive decision on the complaint.
            
         
               78. 
            
            
               The adoption of such a decision enables the undertaking in question to submit any observations which it may have. It is consequently a preparatory measure which has no legal effects vis-à-vis the undertaking and therefore cannot form the subject-matter of an action for annulment under Article 173 of the Treaty. (
                     59
                  ) On the other hand, non-adoption deprives the undertaking of the opportunity to present its observations and for that reason produces, so far as that undertaking is concerned, legal effects which are capable of justifying an action for failure to act.
            
         
               79. 
            
            
               Was not the basis for this solution in any case already present in the Court's judgments in Deutscher Komponistenverband eV v Commission (
                     60
                  ) and GEMA v Commissioni (
                     61
                  )
            
         
               80. 
            
            
               There is therefore in my view no doubt that individuals may in certain cases bring proceedings for failure to act in respect of the non-adoption of a measure even though such measure could not be contested under Article 173 of the Treaty, particularly where the measure in question is preparatoiy in nature.
            
         
               81. 
            
            
               Thus, the mere fact that the ‘proposals’ referred to in the first subparagraph of Article 138(3), had they had been drawn up by the Parliament, could not have been the subject-matter of an action for annulment by an individual unless they produced legal effects in his regard cannot in itself render inadmissible an action for failure to act in respect of the non-adoption of such measures. We here encounter once again the idea that, although the measure adopted does not create legal effects, its non-adoption may do so.
            
         
               82. 
            
            
               Any examination of whether the non-adoption of the measure has a legal effect vis-à-vis the applicant is an examination into whether the latter's personal rights have been detrimentally affected by the failure in that regard. Only the provisions laid down by the Council or, more correctly, the consequential national measures are capable of affecting its legal position. I am unable to identify any direct connecting link between the absence of Liberal Democrat representation in the Parliament and the failure to act of which the latter institution stands accused. The concatenation of causes seems to me to be too hypothetical and too uncertain: in order to succeed in its contention that the Parliament's failure produces legal effects with regard to it, the applicant would have to be able to demonstrate that the system of proportional representation, as a uniform electoral system, would, beyond any shadow of doubt, be in turn proposed by the Parliament, recommended by the Council and adopted by the Member States.
            
         
               83. 
            
            
               The first plea of inadmissibility, based on the absence of legal effects vis-à-vis the applicant, would thus be sufficient to dismiss the application. Notwithstanding this, I believe that the second plea in law may also usefully be examined.
            
         
               84. 
            
            
               The question in this regard is the following: what interpretation is to be placed on the words ‘to address to that person’ in the third paragraph of Article 175 of the Treaty? Can the applicant, as a natural or legal person, argue that the act in question is addressed to it?
            
         
               85. 
            
            
               It is obvious that, when acting within the framework of Article 138, the Parliament is not required to address its proposals, whatever they may be, to the applicant.
            
         
               86. 
            
            
               The Court, however, will not take the view that an applicant must necessarily be the addressee of the act in respect of the non-adoption of which it has brought the action against the Community institution in question.
            
         
               87. 
            
            
               In its judgment in Case C-107/91 ENU v Commission, (
                     62
                  ) the Portuguese company ENU, which was experiencing major difficulties in disposing of the uranium concentrate which it produced, complained that the Commission, inter alia, had failed to order the Supply Agency (
                     63
                  ) to put into operation, as a matter of urgency, a special scheme providing an immediate solution to ENU's problem in disposing of its uranium stocks. The Commission argued that if it had been adopted, the measure would have had to be addressed to the Agency rather than to ENU.
            
         
               88. 
            
            
               The Court pointed out that:
               ‘such a decision, even if it had been addressed to the Agency, would have directly and individually concerned the applicant, which for that reason could have contested it before the Court on the basis of the second paragraph of Article 146 of the EAEC Treaty.
               It follows that the applicant must be in a position to bring the matter before the Court under the third paragraph of Article 148 for the purpose of contesting the failure to adopt the decision requested. If such a possibility does not exist, the right conferred by the second paragraph of Article 53 would have no means of legal enforcement.’ (
                     64
                  )
            
         
               89. 
            
            
               The Court has thus given a broad interpretation to the words ‘has failed to address to that person any act’, the purpose being to confer legal protection on any person who, while not being the formal addressee of the act in question, is in fact concerned by that act in the same way as the actual addressee. The criterion to be applied in order to establish whether a non-privileged applicant has sufficient legal interest in bringing proceedings for a failure to act is the same as that which the Court applies in the case of actions for annulment: just as he must be directly and individually concerned by the act which he seeks to have annulled, so the applicant must be directly and individually concerned by the failure to act. (
                     65
                  )
            
         
               90. 
            
            
               This broad interpretation seems to me to be dictated by the necessary coherence of the legal remedies. A person who is directly and individually concerned by an act which is not addressed to him may contest it under the second paragraph of Article 173. That individual may also bring an action if the institution merely fails to reply.
            
         
               91. 
            
            
               Points 5 and 6 of the Court's judgment in Holtz & Willemsen (
                     66
                  ) are particularly illuminating in this regard:
               ‘By the third paragraph of Article 175 any natural or legal person may, under the conditions laid down in the first and second paragraphs of the same article, complain to the Court of Justice that the Council or the Commission has, in infringement of the Treaty, “failed to address to that person any act other than a recommendation or an opinion”.
               It appears that the action commenced by the applicant has the object of procuring a provision of a general regulatory character having the same legal scope as Regulation No 1336/72, and not an act concerning it directly and individually.’ (
                     67
                  )
            
         
               92. 
            
            
               In that case, an undertalung complained that the Council had failed to adopt a decision granting an additional subsidy for colza and rape seed processed in oil mills in the German Land of Nordrhein-Westfalen and that the Commission had failed to submit to the Council a proposal in that regard.
            
         
               93. 
            
            
               In dismissing the application, the Court pointed out that the proposal demanded from the Commission was ‘an intrinsic part of the procedure for the preparation of the regulation’ and was for that reason not ‘capable of falling in the category of acts which by the third paragraph of Article 175 can be addressed to the applicant’. (
                     68
                  )
            
         
               94. 
            
            
               It seems to me that that solution is perfectly capable of being applied to the case at present under examination.
            
         
               95. 
            
            
               Finally, an individual who is not the addressee of a decision can be individually concerned by that decision only if it affects him by reason of certain attributes which are peculiar to him, or by reason of circumstances in which he is differentiated from all other persons, and by virtue of these factors distinguishes him individually just as in the case of the person addressed. (
                     69
                  )
            
         
               96. 
            
            
               The applicant's interest is not in the adoption of a uniform procedure as such, but rather in the adoption of the system of proportional representation. I have already mentioned that the Council is at liberty not to recommend such a system. In addition, the system ultimately adopted will affect all political parties within the Community and not the applicant considered individually.
            
         
               97. 
            
            
               To sum up, then, the Parliament's failure (assuming it to have been established) to draw up a ‘proposal’ produces legal effects only vis-à-vis the Council, which is thereby prevented from laying down the ‘appropriate provisions’ under the second subparagraph of Article 138(3) of the Treaty, and vis-à-vis the Member States, which are thus faced with a delay in the submission to them of the recommendation for the adoption of a uniform system.
            
         
               98. 
            
            
               Irrespective of its political significance, however, that failure does not produce any legal effect vis-à-vis a natural or legal person who, furthermore, cannot under any circumstances argue that the act was addressed to him.
            
         
               99. 
            
            
               For the above reasons I propose that the Court should declare inadmissible the action for failure to act brought by the Liberal Democrats and that that party should accordingly be ordered to pay the costs of the proceedings.
            
         (
            *1
         )	Original language: French.
      (
            1
         )	See also Article 21(3) of the ECSC Treaty and Article 108(3) of the EAEC Treaty.
      (
            2
         )	OJ 1976 L 278, p. 1.
      (
            3
         )	Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament [1986] ECR 1339, at paragraph 19.
      (
            4
         )	Lcnaerts in Le Parlement européen et la Cour tie Justice des Communautés européennes. University of Strasbourg, 1987, p. 19.
      (
            5
         )	See Isaac, ‘L'insertion du Parlement européen dans le système juridictionnel des communautés européennes’, AFDI, 1986, p. 795.
      (
            6
         )	Sec my contribution to the Mélanges Rotdorns, p. 75. Sec also point 3 et scq. of mv Opinion in Case 302/87 Parliament v Council [1988] ECR 5615.
      (
            7
         )	Case 101/63 Wagner v Fobrmann and Kncr [1964] ECR 195.
      (
            8
         )	Case 138/79 Roquette Frères v Council [1980] ECR 3333 and in Case 139/79 Maizena v Council [1980] ECR 3393.
      (
            9
         )	Case 13/83 Parliament v Council [1985] ECR 1513 (common transport policy).
      (
            10
         )	Les Verts, cited above.
      (
            11
         )	Case C-70/88 Parliament v Council [1990] ECR I-2041 (Chernobyl).
      (
            12
         )	First paragraph; my emphasis. It is worth pointing out that the Treaty on European Union of 7 February 1992 expressly recognizes the capacity of the Parliament to be the defendant in actions brought against it for failure to act: ‘Should the European Parliament, the Council or the Commission, in infringement of this Treaty, fail to act, the Member States and the other institutions of the Community may bring an action before the Court of Justice to have the infringement established’ (Title II, Article G, E (54)).
      (
            13
         )	Third paragraph; my emphasis.
      (
            14
         )	See footnote 9 above.
      (
            15
         )	This term is defined in Article 4(1) of the Treaty and expressly includes the Parliament. In addition, the Parliament is mentioned in first place in Part Five of the Treaty dealing with the institutions of the Community.
      (
            16
         )	Paragraph 17. It should be noted that this formula is substantially identical to that used in paragraph 19 of the judgments in Cases 138/79 and 139/79, cited above.
      (
            17
         )	Sec paragraphs 21 and 22 of üle judgment in Case C-70/88 Parliament v Council (‘Chernobyl’), cited above.
      (
            18
         )	Paragraph 25; my emphasis.
      (
            19
         )	Cited above in footnote 11.
      (
            20
         )	Paragraphs 22 and 23; my emphasis.
      (
            21
         )	Paragraph 25; my emphasis.
      (
            22
         )	Sec point 6 in the Opinion of Advocate General Van Gerven in the ‘Chernobyl’ case [1990] ECR I-2041. at I-2057.
      (
            23
         )	Paragraph 24; my emphasis.
      (
            24
         )	See judgment in Case 22/70 Commission v Council [1970] ECR 263 (‘AETR’), at paragraph 42.
      (
            25
         )	Judgment in Case 302/87 Parliament v Council [1988] ECR 5615, at paragraph 20. On this point, see also paragraph 4 of the Opinion delivered by Advocate General Van Gerven on 13 January 1993 in Case C-314/91 Beate Weber v Parliament [1993] ECR I-1093.
      (
            26
         )	Paragraph 36 of the judgment in the ‘common transport policy’ case, cited above.
      (
            27
         )	Article 176 of the Treaty.
      (
            28
         )	Sec also the second subparagraph of Article 189b(2) of the Treaty on European Union signed at Maastricht on 7 February 1992.
      (
            29
         )	See Joliét, Le droit institutionnel dei Communautés européennes, 1981, p. 152
      (
            30
         )	This is the reason why the Court has consistently declared as inadmissible actions for failure to act brought against the Commission on the ground that that institution has omitted to bring an action for failure to fulfil obligations, an area in which the Commission has a discretion. In this connection, see the judgments in Case 48/65 Lattiche and Others v Commission [1966] ECR 19 and Case 247/87 Star Fruit Company v Commission [1989] ECR 291, at paragraphs 11 and 12, and the orders in Case C-371/89 Emrich v Commission [1990] ECR I-1555 and Case C-72/90 Asia Motor France v Commission [1990] ECR I-2181. See also paragraph 48 of the judgment in the ‘common transport policy’ case, cited above, in which the Court stated that: ‘under Article 175 the Court must find that there has been an infringement of the Treaty if the Council or the Commission fails to act when under an obligation to do so’ (my emphasis).
      (
            31
         )	Sec points 30 to 32 of my Opinion in the ‘Comitology’ case, cited above.
      (
            32
         )	Paragraphs 34 to 36 of the judgment in Case 138/79, cited above.
      (
            33
         )	Case 34/86 [1986] ECR 2155.
      (
            34
         )	At paragraph 12.
      (
            35
         )	Opinion in Case 377/87 Parliament v Council [1988] ECR 4017, at point 36.
      (
            36
         )	At paragraph 16.
      (
            37
         )	The first subparagraph of Article 138(3) provides that ‘the European Parliament shall draw up proposals ...’ (my emphasis).
      (
            38
         )	A form of words which is identical on this point is used in the third paragraph of Article 201 of the Treaty.
      (
            39
         )	In Megret and Others, Le droit de la Communauté européenne, volume 9, article 138. point 9.
      (
            40
         )	Ibid., point 24.
      (
            41
         )	See paragraph 4 above.
      (
            42
         )	A resolution was voted on by the Parliament on 10 March 1993 in which the Council was requested to adopt ‘a uniform election procedure based on the principle of proportional representation’. To date, no such resolution has been officially communicated to the Court or published. This point may constitute a new element with regard to the substance (possible existence of a failure to act). It cannot have any bearing on the issue of admissibil-ity.
      (
            43
         )	Op. cit., point 17.
      (
            44
         )	Judgment cited above, at paragraphs 38 to 42.
      (
            45
         )	See A. Barav, ‘Considérations sur la spécificité du recours en carence’, RTDE 1975, p. 59; ‘It is not clear why measures which cannot be contested by any other means of legal redress should be capable of being contested through an action for failure to act’.
      (
            46
         )	See M. and D. Waelbroek, Encyclopédie Dalloz, ‘Failure to act’, No 26 and No 27.
      (
            47
         )	Case 15/70 Chevalley v Commission [1970] ECR 975.
      (
            48
         )	Ibid.
      (
            49
         )	Sec, in this connection, J. V. Louis, Les règlements de la Communisme économique européenne, 1969, p. 7.
      (
            50
         )	Jolict, op. cit., p. 154.
      (
            51
         )	Contentieux communautaire, 1977, p. 230.
      (
            52
         )	Case C-257/90 Italsolar v Commission [1993] ECR I-9, at paragraphs 28 to 31.
      (
            53
         )	Case 246/81 Lord Bethell v Commission [1982] ECR 2277, at paragraph 13.
      (
            54
         )	At paragraph 13.
      (
            55
         )	See also the judgments in Case 6/70 Borromeo Arese and Others v Commission [1970] ECR 815, at paragraphs 6 and 7, and in Case 15/70 Chevalley v Commission, cited above, at paragraphs 10 and 11.
      (
            56
         )	Case T-28/90 Asia Motor France and Others v Commission [1992] ECR II-2285, at paragraph 29.
      (
            57
         )	First Regulation implementing Articles 85 and 86 of the Treaty, OJ, English Special Edition 1959-1962, p. 87.
      (
            58
         )	‘Where the Commission, having received an application pursuant to Article 3(2) of Regulation No 17, considers that on the basis of the information in its possession there are insufficient grounds for granting the application, it shall inform the applicants of its reasons and fix a time-limit for them to submit any further comments in writing’. Regulation of the Commission of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17, OJ, English Special Edition 1963-1964, p. 47.
      (
            59
         )	Case 60/81 IBM Corporation v Commission [1981) ECR 2639, at paragraph 21; Case T-64/89 Amomec v Commission [1990] ECR II-367, at paragraph 49.
      (
            60
         )	Case 8/71 [1971] ECR 705. See the Opinion delivered in that case by Advocate General Roemer (at p. 715): ‘... there is nothing to preclude regarding as acts certain procedural measures, such as the grant of the right to be heard in cartel proceedings following an application to that effect, since it places those concerned in a certain legal position in the proceedings and has legal effects (for example, the fact that in subsequent legal proceedings matters may not be relied upon if thev could have been raised at the hearing and might possibly have influenced the decision of the Commission)’.
      (
            61
         )	Case 125/78 [1979] ECR 3173, at paragraphs 19 to 21.
      (
            62
         )	Case C-107/91 [1993] ECR I-599.
      (
            63
         )	Provided for under Article 52 of the EAEC Treaty.
      (
            64
         )	Paragraphs 17 and 18; my emphasis.
      (
            65
         )	See the judgments in Cbevalley, cited above, at paragraph 6, and in Lora Bethell, also cited above, at paragraph 16.
      (
            66
         )	Case 134/73 Holtz & Willemsen v Coimai [1974] ECR 1.
      (
            67
         )	My emphasis.
      (
            68
         )	Point 5 of the judgment.
      (
            69
         )	Case 25/62 Phumann v Commission [1963] ECR 95, in particular at pages 106 and 107, and in Case 75/84 Metro SB-Großmnrkte v Commission [1986] ECR 3021, a! paragraph 20.