European Parliament v Council of the European Union.
Date: 2008-11-06
26. The Council considers that it is clear, from an examination of its aim and content, that the sole purpose of the contested decision is to establish a financial cooperation measure with third countries, by means of a Community instrument.
34. According to settled case‑law, the choice of the legal basis for a Community measure must rest on objective factors amenable to judicial review, which include the aim and content of that measure (see, to that effect, inter alia, Case C‑300/89 Commission  v Council (‘Titanium dioxide’)  [1991] ECR I-2867, paragraph 10, and Case C‑338/01 Commission  v Council  [2004] ECR I‑4829, paragraph 54), and not on the legal basis used for the adoption of other Community measures which might, in certain cases, display similar characteristics (see, to that effect, Case 131/86 United Kingdom  v Council  [1988] ECR 905, paragraph 29, and Case C‑91/05 Commission  v Council  [2008] ECR I‑0000, paragraph 106). In addition, where the Treaty contains a more specific provision that is capable of constituting the legal basis for the measure in question, the measure must be founded on that provision (see, to that effect, Case C‑338/01 Commission  v Council , paragraph 60, and Case C‑533/03 Commission  v Council  [2006] ECR I‑1025, paragraph 45).
35. If examination of a measure reveals that it pursues two aims or that it has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the measure must be founded on a single legal basis, namely that required by the main or predominant aim or component (see, to that effect, inter alia, Case C‑155/91 Commission  v Council  [1993] ECR I‑939, paragraphs 19 and 21; Case C‑36/98 Spain  v Council  [2001] ECR I‑779, paragraph 59; Case C‑338/01 Commission  v Council , paragraph 55; and Case C‑91/05 Commission  v Council , paragraph 73).
36. With regard to a measure that simultaneously pursues a number of objectives, or that has several components, which are inseparably linked without one being incidental to the other, the Court has held that, where various provisions of the Treaty are therefore applicable, such a measure will have to be founded, exceptionally, on the various corresponding legal bases (see, to that effect, Case C‑211/01 Commission  v Council  [2003] ECR I‑8913, paragraph 40, and Case C‑91/05 Commission  v Council , paragraph 75).
37. None the less, the Court has previously held, in particular in paragraphs 17 to 21 of the judgment in Titanium dioxide , that recourse to a dual legal basis is not possible where the procedures laid down for each legal basis are incompatible with each other (see also, to that effect, Joined Cases C‑164/97 and C‑165/97 Parliament  v Council  [1999] ECR I‑1139, paragraph 14; Case C‑338/01 Commission v Council , paragraph 57; Case C‑94/03 Commission  v Council [2006] ECR I‑1, paragraph 52; and Case C‑178/03 Commission  v Parliament and Council  [2006] ECR I‑107, paragraph 57).
74. In that regard, it is necessary, however, to point out that, as is clear from the case‑law cited in paragraph 34 above, it is not possible to determine the legal basis for a measure in the light of the legal basis used for the adoption of other Community measures which might, in certain cases, display similar characteristics.
76. In the present case, it should be noted that, unlike the situation that gave rise to the judgment in Titanium dioxide , the Council acts by a qualified majority both under the procedure referred to in Article 179 EC and under that laid down in Article 181a EC.
77. Admittedly, in the context of Article 179 EC, the Parliament exercises the legislative function through co‑decision with the Council, while Article 181a EC – the sole legal basis used for the adoption of the contested decision – provides only for consultation of the Parliament by the Council.
78. However, the importance of the Parliament’s role in the Community legislative process should be noted. As the Court has already stated, participation by the Parliament in that process is a reflection, at the Community level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly (see, to that effect, Titanium dioxide , paragraph 20 and the case‑law cited, and Case C‑65/93 Parliament  v Council  [1995] ECR I‑643, paragraph 21).
79. In that regard, in contrast to the situation in Titanium dioxide , in the circumstances of the present case the use of a dual legal basis consisting of Articles 179 EC and 181a EC would not encroach upon the Parliament’s rights (see, to that effect, Case C‑94/03 Commission  v Council , paragraph 54, and Commission  v Parliament and Council , paragraph 59). The use of Article 179 EC involves greater participation by the Parliament since it provides for the adoption of the measure by the ‘co‑decision’ procedure. Moreover, it was not stated before the Court that such a dual legal basis would not be possible, from the point of view of legislative technique.
87. Under the second paragraph of Article 231 EC, the Court may, if it considers this necessary, state which of the effects of a regulation which it has declared void are to be considered definitive. That provision is also capable of being applied, by analogy, to a decision where there are important grounds of legal certainty, comparable to those which arise in the case of annulment of certain regulations, justifying exercise by the Court of the power conferred on it, in this context, by the second paragraph of Article 231 EC (see to that effect, inter alia, Case C‑271/94 Parliament  v Council  [1996] ECR I‑1689, paragraph 40; Case C‑106/96 United Kingdom  v Commission  [1998] ECR I‑2729, paragraph 41; and Case C‑22/96 Parliament  v Council  [1998] ECR I‑3231, paragraphs 41 and 42).