Commission of the European Communities v Council of the European Communities.
Date: 1988-09-27
6 In order to rule on the merits of the Commission' s action it is necessary to consider the Council' s power to adopt the contested decision, taking into account the two aspects covered by the Convention, namely tariff nomenclature on the one hand and statistical nomenclature on the other .
7 With regard to the first of those aspects, it appears from the terms of Article 28 of the Treaty, which is the legal basis for "any autonomous alteration or suspension of duties in the Common Customs Tariff", and Article 113 of the Treaty, which provides for a common commercial policy based on uniform principles, particularly in regard to changes in tariff rates and the conclusion of tariff and trade agreements, that neither of those two provisions expressly gives the Council power to establish a tariff nomenclature .
8 However, the establishment of a tariff nomenclature is indispensable to the application of customs duties . Without a system of classification of goods it would be impossible to ascribe them to particular tariff headings . It follows that the power given to the Council to make changes in rates necessarily implies, in the absence of express provision in the Treaty, power to establish and amend the nomenclature relating to the application of the Common Customs Tariff .
9 It follows from that observation that the Council has a general power in relation to tariff matters, which is based both on Article 28 and on Article 113 of the Treaty, inasmuch as it has that power irrespective of whether Common Customs Tariff duties are amended autonomously ( Article 28 ) or under tariff agreements or other measures of common commercial policy ( Article 113 ).
10 The Commission' s argument that the scope of Article 28 is covered by that of Article 113 of the Treaty must therefore be rejected .
11 It may be added that where an institution' s power is based on two provisions of the Treaty, it is bound to adopt the relevant measures on the basis of the two relevant provisions .
12 Such recourse to a dual legal basis is, moreover, consistent with an established practice of the Community institutions in tariff matters which has been endorsed by the fact that the Single European Act has aligned the procedural requirements of Article 28 with those of Article 113 of the Treaty .
13 Articles 28 and 113 of the Treaty thus together constitute the appropriate legal basis for the establishment of a tariff nomenclature and consequently for the conclusion of an international convention on that subject .
17 The Council' s argument must be rejected . The fact that the contested decision may affect another measure which is based on Article 235 does not necessarily imply recourse to that provision as a legal basis . Such recourse may be contemplated only if the institution in question cannot base its power on any other provision of the Treaty ( see the judgment of 26 March 1987 in Case 45/86 Commission v Council (( 1987 )) ECR 1493 ).
19 However, when the contested decision was adopted before the entry into force of the Single European Act, Article 28 of the Treaty, like Article 235, required unanimity in the Council; the illegality found to exist is therefore only a purely formal defect which cannot make the measure void .
20 It is true that in contrast to Article 28, Article 235 requires the European Parliament to be consulted, and such consultation, which took place in the present case, is likely to affect the substance of the measure adopted . Nevertheless, although disregard of the obligation to consult makes the measure concerned void ( judgment of 29 October 1980 in Case 138/79 Roquette Frères v Council (( 1980 )) ECR 3333 ), consultation of Parliament, which the Council is always entitled to do, cannot be regarded as unlawful even if it is not mandatory .