United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union.
Date: 2014-01-22
41. At pages 152 and 154 of Meroni v High Authority , the Court stated, in essence, that the consequences resulting from a delegation of powers are very different depending on whether it involves clearly defined executive powers the exercise of which can, therefore, be subject to strict review in the light of objective criteria determined by the delegating authority, or whether it involves a ‘discretionary power implying a wide margin of discretion which may, according to the use which is made of it, make possible the execution of actual economic policy’.
42. The Court also stated in that judgment that a delegation of the first kind cannot appreciably alter the consequences involved in the exercise of the powers concerned, whereas a delegation of the second kind, since it replaces the choices of the delegator by the choices of the delegate, brings about an ‘actual transfer of responsibility’. As regards the case which gave rise to Meroni  v High Authority , the Court held that the powers delegated by the High Authority to the bodies in question by Decision No 14-55 of 26 March 1955, establishing a financial arrangement for ensuring a regular supply of ferrous scrap for the common market, gave those bodies ‘a degree of latitude which implied a wide margin of discretion’, which could not be considered compatible with the ‘requirements of the Treaty’.
63. For the purposes of addressing the second plea in law, it should be recalled that the Court observed, at paragraph 20 of Romano , that it follows both from primary law concerning the powers conferred by the Council on the Commission for the implementation of rules established by the Council and from the judicial system created by the (EEC) Treaty that a body, such as that at issue in the case which gave rise to that judgment, that is, an administrative commission, may not be empowered by the Council to adopt acts ‘having the force of law’. According to the Court, whilst a decision of such a body may provide aid to institutions responsible for applying Union law, it is not of such a nature as to require those institutions to use certain methods or adopt certain interpretations when they come to apply Union rules. The Court concluded that the decision adopted by that administrative commission ‘did not bind’ the referring court.
78. Accordingly, for the purpose of addressing the third plea in law, the Court is called upon to adjudicate on whether the authors of the FEU Treaty intended to establish, in Articles 290 TFEU and 291 TFEU, a single legal framework under which certain delegated and executive powers may be attributed solely to the Commission or whether other systems for the delegation of such powers to Union bodies, offices or agencies may be contemplated by the Union legislature.
79. It should be noted in that regard that, while the treaties do not contain any provision to the effect that powers may be conferred on a Union body, office or agency, a number of provisions in the FEU Treaty none the less presuppose that such a possibility exists.
80. Under Article 263 TFEU, the Union bodies whose acts may be subject to judicial review by the Court include the ‘bodies, offices’ and ‘agencies’ of the Union. The rules governing actions for failure to act are applicable to those bodies pursuant to Article 265 TFEU. Article 267 TFEU provides that the courts and tribunals of the Member States may refer questions concerning the validity and interpretation of the acts of such bodies to the Court. Such acts may also be the subject of a plea of illegality pursuant to Article 277 TFEU.
81. Those judicial review mechanisms apply to the bodies, offices and agencies established by the EU legislature which were given powers to adopt measures that are legally binding on natural or legal persons in specific areas, such as the European Chemicals Agency, the European Medicines Agency, the Office for Harmonisation in the Internal Market (Trade Marks and Designs), the Community Plant Variety Office and the European Aviation Safety Agency.
82. As regards the present case, it should be noted that Article 28 of Regulation No 236/2012 vests ESMA with certain decision-making powers in an area which requires the deployment of specific technical and professional expertise.
83. However, that conferral of powers does not correspond to any of the situations defined in Articles 290 TFEU and 291 TFEU.
84. As indicated at paragraphs 2 to 4 above, the legal framework of Article 28 of Regulation No 236/2012 is established, inter alia, by Regulation No 1092/2010, the ESMA Regulation and Regulation No 236/2012. Those regulations form part of a series of regulatory instruments adopted by the EU legislature so that the Union may, in view of the integration of international financial markets and the contagion risk of financial crises, endeavour to promote international financial stability, as stated in recital 7 in the preamble to Regulation No 1092/2010.
85. Consequently, Article 28 of Regulation No 236/2012 cannot be considered in isolation. On the contrary, that provision must be perceived as forming part of a series of rules designed to endow the competent national authorities and ESMA with powers of intervention to cope with adverse developments which threaten financial stability within the Union and market confidence. To that end, those authorities must be in a position to impose temporary restrictions on the short selling of certain stocks, credit default swaps or other transactions in order to prevent an uncontrolled fall in the price of those instruments. Those bodies have a high degree of professional expertise and work closely together in the pursuit of the objective of financial stability within the Union.
86. Therefore, Article 28 of Regulation No 236/2012, read in conjunction with the other regulatory instruments adopted in that field identified above, cannot be regarded as undermining the rules governing the delegation of powers laid down in Articles 290 TFEU and 291 TFEU.
98. While, as is apparent from paragraph 64 above, Article 28 of Regulation No 236/2012 empowers EMSA to adopt measures of general application, in strictly circumscribed circumstances, the possibility cannot be ruled out that it may also be required, under the powers conferred on it by that provision, to take decisions directed at specific natural or legal persons.
102. First, by the expression ‘measures for the approximation’, the authors of the FEU Treaty intended to confer on the Union legislature, depending on the general context and the specific circumstances of the matter to be harmonised, discretion as regards the most appropriate method of harmonisation for achieving the desired result, especially in fields with complex technical features (see Case C‑66/04 United Kingdom  v Parliament and Council  [2005] ECR I‑10553, paragraph 45).
103. The Court has held in that regard that such discretion may be used in particular to choose the most appropriate method of harmonisation where the proposed approximation requires highly technical and specialist analyses to be made and developments in a specific field to be taken into account (see, to that effect, United Kingdom  v Parliament and Council , paragraph 46).
104. Moreover, in Case C‑217/04 United Kingdom  v Parliament and Council  [2006] ECR I‑3771, paragraph 44, the Court stated, inter alia, that the EU legislature may deem it necessary to provide for the establishment of an EU body responsible for contributing to the implementation of a process of harmonisation.
106. As the applicant maintains, inter alia, that Article 114 TFEU cannot serve as the legal basis for the adoption of measures that are legally binding on individuals, it should be recalled that, in Case C‑359/92 Germany  v Council  [1994] ECR I‑3681, paragraph 37, the Court held that, in certain fields, the approximation of general laws alone may not be sufficient to ensure the unity of the market. Consequently, the concept of ‘measures for the approximation’ of legislation must be interpreted as encompassing the EU legislature’s power to lay down measures relating to a specific product or class of products as well as, if necessary, individual measures concerning those products.
107. In that regard, the Court pointed out, at paragraph 44 of Case C‑217/04 United Kingdom  v Parliament and Council , that nothing in the wording of Article 114 TFEU implies that the addressees of the measures adopted by the EU legislature on the basis of that provision can only be Member States.
113. Second, with regard to the requirement laid down in Article 114 TFEU that harmonisation measures adopted by the EU legislature must have as their object the establishment and functioning of the internal market, it should be noted that the Court stated, at paragraph 42 of Case C‑217/04 United Kingdom  v Parliament and Council , that that provision may be used as a legal basis only where it is actually and objectively apparent from the legal act that its purpose is to improve the conditions for the establishment and functioning of the internal market.