European Parliament v Council of the European Union.
Date: 2016-09-22
37


First of all, it must be held that it is clear from the text of the contested decisions that they are based on Article 25 of Decision 2008/615 and on Article 20 of Decision 2008/616 (see, by analogy, the judgments of 16 April 2015, Parliament v Council, C‑317/13 and C‑679/13, EU:C:2015:223, paragraphs 28 to 31, and of 10 September 2015, Parliament v Council, C‑363/14, EU:C:2015:579, paragraphs 23 to 26), the latter article, moreover, merely specifying the conditions governing the adoption of the decisions referred to in Article 25 of Decision 2008/615.
38


According to settled case-law of the Court, the choice of legal basis for an EU measure must rest on objective factors that are amenable to judicial review; these include the aim and content of that measure (judgment of 6 May 2014, Commission v Parliament and Council, C‑43/12, EU:C:2014:298, paragraph 29 and the case-law cited).
41


As regards the Parliament’s argument that the procedure set out in Article 25(2) of Decision 2008/615 could no longer be applied after the Treaty of Lisbon had entered into force, it must be recalled that the Protocol on transitional provisions includes provisions dealing specifically with the legal rules applicable, after that Treaty had entered into force, to acts adopted on the basis of the EU Treaty before that date (judgment of 10 September 2015, Parliament v Council, C‑363/14, EU:C:2015:579, paragraph 68 and the case-law cited).
43


The Court has held that that article must be interpreted as meaning that a provision of an act duly adopted on the basis of the EU Treaty before the entry into force of the Treaty of Lisbon, which lays down detailed rules for the adoption of other measures, continues to produce its legal effects until it is repealed, annulled or amended, and permits the adoption of those measures in accordance with the procedure which it defines (see, to that effect, judgments of 16 April 2015, Parliament v Council, C‑540/13, EU:C:2015:224, paragraph 47, and of 10 September 2015, Parliament v Council, C‑363/14, EU:C:2015:579, paragraph 70).
47


According to the Court’s case-law, as the rules regarding the manner in which the EU institutions arrive at their decisions are laid down in the Treaties and are not within the discretion of the Member States or of the institutions themselves, the Treaties alone may, in particular cases, empower an institution to amend a decision-making procedure established by the Treaties. Accordingly, to acknowledge that an institution can establish secondary legal bases for the adoption of legislative acts or implementing measures, whether for the purpose of strengthening or easing the detailed rules for the adoption of an act, is tantamount to according that institution a legislative power which exceeds that provided for by the Treaties (judgment of 10 September 2015, Parliament v Council, C‑363/14, EU:C:2015:579, paragraph 43 and the case-law cited).
48


In that regard, since the lawfulness of an EU act must be assessed on the basis of the facts and the law as they stood at the time when the act was adopted, the lawfulness of Article 25(2) of Decision 2008/615 must be assessed in the light of the provisions which governed the adoption of measures, such as the contested decisions, at the time when that decision was adopted, namely Article 34(2)(c) and Article 39(1) EU (see, to that effect, judgments of 16 April 2015, Parliament v Council, C‑540/13, EU:C:2015:224, paragraph 35, and of 10 September 2015, Parliament v Council, C‑363/14, EU:C:2015:579, paragraph 59).
49


It follows from those provisions that the Council, voting unanimously on the initiative of any Member State or of the Commission, may adopt legislative acts with any aim that is consistent with those of Title VI of the EU Treaty, with the exception, however, of the areas referred to in Article 34(2)(a) and (b) EU, and, voting by majority, may adopt the measures necessary for the implementation of those acts at EU level (see, to that effect, judgment of 10 September 2015, Parliament v Council,C‑363/14, EU:C:2015:579, paragraphs 60 to 66). In both cases, those measures can be adopted only after the Parliament has been consulted (see, to that effect, judgment of 16 April 2015, Parliament v Council, C‑540/13, EU:C:2015:224, paragraph 36).
57


This finding is supported by the context in which Article 25(2) of Decision 2008/615 is set, which must be taken into account for the purpose of interpreting that provision (see, to that effect, judgment of 18 December 2014, M’Bodj, C‑542/13, EU:C:2014:2452, paragraph 34).