Commission of the European Communities v European Investment Bank.
Date: 2003-07-10
67.  As the Commission points out, Article 9.3(h) of the EIB Statute makes clear that it is the responsibility of the Board of Governors to approve the EIB's Rules of Procedure. The purpose of the Rules of Procedure is to organise the internal operation of the services in the interests of good administration (see,   inter alia  , Case C-69/89   Nakajima   v   Council   [1991] ECR I-2069, paragraph 49). It follows that, within the EIB, it is in principle the Board of Governors on which power is conferred to organise internal matters and which is, therefore, authorised to take the appropriate measures in order to ensure the internal operation of the EIB in conformity with the interests of its good administration (see, by analogy, Case C-58/94   Netherlands   v   Council   [1996] ECR I-2169, paragraph 37).
68.  The development by a Community institution or body of procedures for monitoring whether its internal operations are in order is designed,   inter alia  , to ensure that it functions smoothly.  The adoption of such measures consequently forms part of the institution's or body's internal organisation (see, in relation to measures intended to ensure the correct utilisation of funds made available to political groups in the Parliament, Case 294/83   Les Verts   v   Parliament   [1986] ECR 1339, paragraph 47), subject to the limits imposed by Community law in that regard (see, by analogy, Joined Cases C-213/88 and C-39/89   Luxembourg   v   Parliament   [1991] ECR I-5643, paragraph 34).
75.  Such an interpretation would also ignore the fact that the European Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions (see,   inter alia  , Case C-314/91   Weber   v   Parliament   [1993] ECR I-1093, paragraph 8, and the case law cited). It is appropriate to bear in mind in that regard that although it is not a European Community institution, the EIB none the less is a Community body established and endowed with legal personality by the EC Treaty (see, in particular, Case 110/75   Mills   v   EIB   [1976] ECR 955, paragraph 14, Case 85/86   Commission   v   EIB   [1988] ECR 1281, paragraph 24, and Case C-370/89   SGEEM and Etroy   v   EIB   [1992] ECR I-6211, paragraph 13) and it is on that account that the EIB is subject to judicial review by the Court, in particular as provided for in Article 237(b) EC.
Article 230 EC
82.  It is, however, sufficient to observe in relation to the last point that it is clear from the Court's case-law that the need for a complete and consistent review of legality requires Article 230 EC to be construed as not depriving the Court of jurisdiction to consider, in proceedings for the annulment of a measure based on a provision of the EC Treaty, a submission concerning the infringement of a rule of the Euratom Treaty (Case C-62/88   Greece   v   Council   [1990] ECR I-1527, paragraph 8).
Argument that the application seeks to establish a failure to act by the EIB
101.  It is true that under Article 266 EC the EIB has legal personality distinct from that of the Community, that it is administered and managed by organs of its own and that it has its own resources and its own budget. As the case-law of the Court makes clear, the EIB must, in order to perform the tasks assigned to it by Article 267 EC, be able to act in complete independence on the financial markets, like any other bank (Commission   v   EIB  , paragraph 28).
102.  Nevertheless, as the Court has also stated, the fact that the EIB has that degree of operational and institutional autonomy does not mean that it is totally separated from the Communities and exempt from every rule of Community law. It is clear in particular from Article 267 EC that the EIB is intended to contribute towards the attainment of the European Community's objectives and thus by virtue of the Treaty forms part of the framework of the Community. It follows that the position of the EIB is therefore ambivalent inasmuch as it is characterised, on the one hand, by independence in the management of its affairs, in particular in the sphere of financial operations, and, on the other, by a close link with the European Community as regards its objectives (Commission   v   EIB  , paragraphs 29 and 30).
104.  As the Advocate General has rightly pointed out at paragraph 120 of his Opinion, the EIB has, in particular, failed to establish that the investigative powers conferred on OLAF by the Community legislature are such as to affect its management and its power to take independent decisions as regards the grant of loans and guarantees and the financing thereof, in particular by recourse to capital markets. Nor has the EIB established that the existence of those powers has any effect on its reputation or its credibility as an independent body on the financial markets (see, by analogy, in relation to the application of Community tax to salaries paid by the EIB,   Commission   v   EIB  , paragraph 30).
123.  As regards more specifically the EIB, it may be noted in that respect that it was established by the EC Treaty and is a Community body whose task, as the first paragraph of Article 267 EC provides, is   "to contribute ... to the balanced and steady development of the common market in the interest of the Community"  . It follows that the EIB, by virtue of the EC Treaty, forms part of the framework of the Community (Commission   v   EIB  , paragraph 29).
125.  It is clear from the foregoing considerations that the expression   "financial interests of the Community"   in Article 280 EC is not restricted exclusively to the budget of the European Community in the strict sense but also covers the resources and expenditure of the EIB (see, by analogy, in relation to the applicability to the EIB of Article 179 of the EC Treaty (now Article 236 EC),   Mills   v   EIB  , cited above, paragraph 14).
135.  Quite apart from the fact that such a restriction of the Community's competence is not apparent from the wording of Article 280 EC, it would, as the Commission and all the interveners rightly maintain, scarcely be compatible with the objectives pursued by that article. It is not disputed that if the protection of the European Community's financial interests is to be rendered effective, it is essential that the deterrence of, and the fight against, fraud and other irregularities operate at all levels at which those interests are liable to be affected by such phenomena. Furthermore, it is often the case that phenomena fought in that way simultaneously involve actors at various levels.
143.  Second, contrary to the EIB's assertion, Article 183a EA does encapsulate an independent objective of protecting the financial interests of the European Atomic Energy Community (see, by analogy, Case C-209/97   Commission   v   Council   [1999] ECR I-8067, paragraph 29).
146.  It is appropriate, moreover, to observe in relation to the last point that, as is clear from settled case-law, Article 308 EC may be used as the legal basis for a measure only where no other provision of the EC Treaty confers on the Community institutions the necessary power to adopt it (see, in particular, Case 165/87   Commission   v   Council   [1988] ECR 5545, paragraph 17, and Case C-84/94   United Kingdom   v   Council   [1996] ECR I-5755, paragraph 48).  As is apparent from this judgment, the Community legislature was empowered to adopt Regulation No 1073/1999 on the basis of Article 280 EC.
161.  That having been said, it should be borne in mind that the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions should be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (see,   inter alia  , Case 137/85   Maizena   [1987] ECR 4587, paragraph 15, and Case C-491/01   British American Tobacco (Investments) and Imperial Tobacco   [2002] ECR I-11453, paragraph 122).
162.  With regard to judicial review of the conditions referred to in the previous paragraph, the Community legislature must be allowed a broad discretion in an area such as that involved in the present case, so that the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objectives which the competent institution is seeking to pursue (see, to that effect,   British American Tobacco (Investments) and Imperial Tobacco  , paragraph 123, and the case-law cited there).
174.  In that regard, it has consistently been held that the statement of reasons required by Article 253 EC must be adapted to the nature of the act in question.  Whilst that statement of reasons must show clearly and unequivocally the reasoning of the Community institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for it and the competent court to exercise its power of review, the institution is not required to go into every relevant point of fact and law.  The question as to whether the statement of reasons for a measure satisfies the requirements of Article 253 EC must be assessed with reference not only to the wording of the measure but also to its context and to the whole body of legal rules governing the matter in question.  Consequently, if the contested measure clearly discloses the essential objectives pursued by the institution, it would be excessive to require a specific statement of reasons for each of the technical choices made by the institution (see, in particular, Joined Cases C-27/00 and C-122/00   Omega Air and Others   [2002] ECR I-2569, paragraphs 46 and 47, and also   British American Tobacco (Investments) and Imperial Tobacco  , paragraphs 165 and 166).