Federal Republic of Germany v Council of the European Union.
Date: 1995-11-09
19 Moreover, the expression "for the performance of the tasks entrusted to it" in Article 213 shows that that provision vests in the Commission general competence to collect any information needed to that end, with the result that, contrary to the view expressed by the German Government, the Council is not obliged to base such acts on the various Treaty provisions which confer specific tasks on the Commission. Furthermore, as the Advocate General points out in point 24 of his Opinion, it would be illogical, to say the least, for the Council to be obliged to adopt a series of measures relating to the collection of information in accordance with differing procedural rules, especially since some types of information cover several of the Commission' s fields of activity.
20 In addition, it is also because of the general nature of the Commission' s power with regard to the collection of information that Article 213 appears in Part Six of the Treaty entitled "General and final provisions" and it is uncontested that Part Six contains other provisions which confer legislative competence.
21 As for the argument based on the Council' s previous practice, suffice it to say that a mere practice on the part of the Council cannot derogate from the rules laid down in the Treaty and cannot therefore create a precedent binding on the institutions (see, for example, the judgment in Case 68/86 United Kingdom v Council [1988] ECR 855, paragraph 24).
29 Next, in accordance with well-established case-law (see, in particular, the judgment in Case C-155/91 Commission v Council [1993] ECR I-939, paragraph 7), in the context of the organization of the powers of the Community, the choice of a legal basis for a measure must be based on objective factors which are amenable to judicial review. Those factors include, in particular, the aim and content of the measure.
33 It is clear from the factors set out above that, according to its aim and content, the main purpose of the Regulation is to establish business registers with a view to enabling the Commission efficiently to collect the information necessary for the performance of the various tasks entrusted to it by the Treaty. Whilst it cannot be denied that the Regulation will also have effects on the establishment and functioning of the internal market, those effects are merely ancillary to the main aim described above, with the result that, contrary to the view of the German Government, Article 100a of the EEC Treaty cannot constitute the proper legal basis for the adoption of the Regulation. As the Court has already held, the mere fact that an act may affect the establishment or functioning of the internal market is not sufficient to justify using that provision as the basis for the act (see, in particular, the judgment in Commission v Council, cited above, paragraphs 18 and 19).
34 As for the argument based on the Council' s previous practice, suffice it to refer to the case-law cited in paragraph 21 of this judgment to the effect that a mere practice on the part of the Council cannot derogate from the rules laid down in the Treaty and cannot therefore create a precedent binding on the institutions.
42 According to the Court' s case-law, in order to establish whether a provision of Community law complies with the principle of proportionality, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it (see, for example, the judgment in Joined Cases 279/84, 280/84, 285/84 and 286/84 Walter Rau Lebensmittelwerke and Others v Commission [1987] ECR 1069, paragraph 34).