European Parliament v Council of the European Union.
Date: 2012-09-05
37. According to settled case-law of the Court, the right of action available to the Member States, Parliament, the Council and the Commission, provided for in the second paragraph of Article 263 TFEU, is not conditional on proof of an interest in bringing proceedings (see, to that effect, Italy  v Council , paragraph 6; Commission  v Council , paragraph 3; Case C-378/00 Commission  v Parliament and Council  [2003] ECR I-937, paragraph 28; Case C-370/07 Commission  v Council [2009] ECR I-8917, paragraph 16; and Joined Cases C-463/10 P and C-475/10 P Deutsche Post and Germany  v Commission [2011] ECR I-9639, paragraph 36).
38. It is also apparent from the case-law of the Court that the exercise of that right is not conditional on the position taken, at the time when the measure in question was adopted, by the institution or Member State bringing the action (see, to that effect, Italy  v Council , paragraph 6, and Commission  v Parliament and Council , paragraph 28).
64. According to settled case-law, the adoption of rules essential to the subject-matter envisaged is reserved to the legislature of the European Union (see, to that effect, Germany  v Commission , paragraph 36; Case C-104/97 P Atlanta  v European Community  [1999] ECR I-6983, paragraph 76; and C-356/97 Molkereigenossenschaft Wiedergeltingen  [2000] ECR I-5461, paragraph 21). The essential rules governing the matter in question must be laid down in the basic legislation and may not be delegated (see, to that effect, Case C-156/93 Parliament  v Commission  [1995] ECR I-2019, paragraph 18; Parliament  v Council , paragraph 23; Case C-48/98 Söhl & Söhlke  [1999] ECR I-7877, paragraph 34; and Case C-133/06 Parliament  v Council  [2008] ECR I-3189, paragraph 45).
65. Thus, provisions which, in order to be adopted, require political choices falling within the responsibilities of the European Union legislature cannot be delegated.
66. It follows from this that implementing measures cannot amend essential elements of basic legislation or supplement it by new essential elements.
67. Ascertaining which elements of a matter must be categorised as essential is not – contrary to what the Council and the Commission claim – for the assessment of the European Union legislature alone, but must be based on objective factors amenable to judicial review.
68. In that connection, it is necessary to take account of the characteristics and particularities of the domain concerned.
76. First, the adoption of rules on the conferral of enforcement powers on border guards, referred to in paragraphs 74 and 75 above, entails political choices falling within the responsibilities of the European Union legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments. Depending on the political choices on the basis of which those rules are adopted, the powers of the border guards may vary significantly, and the exercise of those powers require authorisation, be an obligation or be prohibited, for example, in relation to applying enforcement measures, using force or conducting the persons apprehended to a specific location. In addition, where those powers concern the taking of measures against ships, their exercise is liable, depending on the scope of the powers, to interfere with the sovereign rights of third countries according to the flag flown by the ships concerned. Thus, the adoption of such rules constitutes a major development in the SBC system.
77. Second, it is important to point out that provisions on conferring powers of public authority on border guards – such as the powers conferred in the contested decision, which include stopping persons apprehended, seizing vessels and conducting persons apprehended to a specific location – mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.