European Parliament v Council of the European Union.
Date: 2012-07-19
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.
48. Differences of that kind are such as to render those procedures incompatible.
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).
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.
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.
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’.
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.
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).