Commission of the European Communities v Council of the European Communities.
Date: 1991-06-11
10 It must first be observed that in the context of the organization of the powers of the Community the choice of the legal basis for a measure may not depend simply on an institution' s conviction as to the objective pursued but must be based on objective factors which are amenable to judicial review (see the judgment in Case 45/86 Commission v Council [1987] ECR 1493, paragraph 11). Those factors include in particular the aim and content of the measure.
13 It follows that, according to its aim and content, as they appear from its actual wording, the directive is concerned, indissociably, with both the protection of the environment and the elimination of disparities in conditions of competition.
15 In order to give effect to the fundamental freedoms mentioned in Article 8a, harmonizing measures are necessary to deal with disparities between the laws of the Member States in areas where such disparities are liable to create or maintain distorted conditions of competition. For that reason, Article 100a empowers the Community to adopt measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States and lays down the procedure to be followed for that purpose.
17 As the Court held in Case 165/87 Commission v Council [1988] ECR 5545, paragraph 11, 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. However, that ruling is not applicable to the present case.
18 One of the enabling provisions at issue, Article 100a, requires recourse to the cooperation procedure provided for in Article 149(2) of the Treaty, whereas the other, Article 130s, requires the Council to act unanimously after merely consulting the European Parliament. As a result, use of both provisions as a joint legal basis would divest the cooperation procedure of its very substance.
19 Under the cooperation procedure, the Council acts by a qualified majority where it intends accepting the amendments to its common position proposed by the Parliament and included by the Commission in its re-examined proposal, whereas it must secure unanimity if it intends taking a decision after its common position has been rejected by the Parliament or if it intends modifying the Commission' s re-examined proposal. That essential element of the cooperation procedure would be undermined if, as a result of simultaneous reference to Articles 100a and 130s, the Council were required, in any event, to act unanimously.
20 The very purpose of the cooperation procedure, which is to increase the involvement of the European Parliament in the legislative process of the Community, would thus be jeopardized. As the Court stated in its judgments in Case 138/79 Roquette Frères v Council [1980] ECR 3333 and Case 139/79 Maizena v Council [1980] ECR 3393, paragraph 34, that participation reflects a fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly.
21 It follows that in the present case recourse to the dual legal basis of Articles 100a and 130s is excluded and that it is necessary to determine which of those two provisions is the appropriate legal basis.
22 It must be observed in the first place that, pursuant to the second sentence of Article 130r(2) of the Treaty, "environmental protection requirements shall be a component of the Community' s other policies". That principle implies that a Community measure cannot be covered by Article 130s merely because it also pursues objectives of environmental protection.
23 Secondly, as the Court held in its judgments in Cases 91/79 and 92/79 Commission v Italy [1980] ECR 1099 (paragraph 8) and 1115 (paragraph 8), provisions which are made necessary by considerations relating to the environment and health may be a burden upon the undertakings to which they apply and, if there is no harmonization of national provisions on the matter, competition may be appreciably distorted. It follows that action intended to approximate national rules concerning production conditions in a given industrial sector with the aim of eliminating distortions of competition in that sector is conducive to the attainment of the internal market and thus falls within the scope of Article 100a, a provision which is particularly appropriate to the attainment of the internal market.