European Parliament v Council of the European Union.
Date: 2015-04-16
9. It should be noted that, under Article 120(c) of the Court’s Rules of Procedure and the case-law relating thereto, an application initiating proceedings must state the subject-matter of the dispute, the pleas in law and arguments relied on and a summary of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita  or fail to rule on a claim (see, to that effect, judgment in United Kingdom  v Council , C‑209/13, EU:C:2014:283, paragraph 30 and the case-law cited).
12. Accordingly, since it is the legal basis of a measure that determines the procedure to be followed in adopting that measure (judgments in Parliament  v Council , C‑130/10, EU:C:2012:472, paragraph 80, and Parliament  v Council , C‑658/11, EU:C:2014:2025, paragraph 57), it is appropriate to examine in the first place the second plea in law.
The second plea in law, alleging that a repealed or invalid legal basis was chosen
The first part of the second plea in law, alleging that a repealed legal basis was chosen
– Arguments of the parties
19. It cannot therefore be concluded, having regard to the wording of the contested decision, which must, in principle, if it is to satisfy the obligation to state reasons, indicate the legal basis on which the decision is founded (see, to that effect, judgment in Commission  v Council , C‑370/07, EU:C:2009:590, paragraphs 39 and 55), that the decision is based on Article 34 EU.
21. In particular, the claim that Article 34(2)(c) EU constituted the only possible legal basis for the adoption of a measure such as the contested decision, even if it were established, is, in that regard, irrelevant, in so far as the Council’s explicit choice to refer in the contested decision, not to that provision but to the FEU Treaty and to Article 18(2) of Decision 2008/633, clearly indicates that the contested decision is based on the latter provision itself.
30. According to settled case-law of the Court, the choice of legal basis for a European Union measure must rest on objective factors that are amenable to judicial review; these include the aim and content of that measure (judgment in Commission  v Parliament and Council , C‑43/12, EU:C:2014:298, paragraph 29 and the case-law cited).
32. 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, 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 (see judgment in Parliament  v Council , C‑133/06, EU:C:2008:257, paragraphs 54 to 56).
33. That approach, which was adopted by the Court in the judgment in Parliament v Council  (C‑133/06, EU:C:2008:257) in relation to a secondary legal basis for the adoption of legislative acts, must also be applied to the legal bases provided for in secondary legislation which make it possible to adopt measures for the implementation of that legislation by strengthening or easing the detailed rules for the adoption of such measures laid down in the Treaties.
35. In that context, given that the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see, by analogy, judgments in Gualtieri  v Commission , C‑485/08 P, EU:C:2010:188, paragraph 26; Schindler Holding and Others  v Commission , C‑501/11 P, EU:C:2013:522, paragraph 31; and Schaible , C‑101/12, EU:C:2013:661, paragraph 50), the legality of Article 18(2) of Decision 2008/633 must be assessed in the light of the provisions that governed, at the time that decision was adopted, the adoption of a measure such as the contested decision, namely Article 34(2)(c) EU and Article 39(1) EU.
36. It follows from those provisions that the Council, acting, as the case may be, unanimously or by qualified majority, and after consulting the Parliament, adopts decisions for the purposes consistent with the objectives of Title VI of the EU Treaty, other than those referred to in Article 34(2)(a) and (b) EU, and the measures necessary for the implementation of those decisions.
38. None the less, it is established case law that the wording of secondary EU legislation must be interpreted, in so far as possible, in a manner consistent with the provisions of the Treaties (judgment in Efir, C‑19/12, EU:C:2013:148, paragraph 34 and the case-law cited).
39. Accordingly, given, first, that the requirement to interpret secondary legislation in such a way that it complies with primary law follows from the general principle of interpretation that a provision must be interpreted, as far as possible, in such a way as not to affect its validity (see, to that effect, judgments in Sturgeon and Others , C‑402/07 and C‑432/07, EU:C:2009:716, paragraphs 47 and 48, and review of Commission v Strack , C‑579/12 RX-II, EU:C:2013:570, paragraph 40), and, second, that the legality of Article 18(2) of Decision 2008/633 must be assessed, for the reasons set out in paragraph 35 above, in particular in the light of Article 39(1) EU, the former provision must be interpreted in a manner consistent with the latter.
41. With regard to the Parliament’s arguments to the effect that Article 18(2) of Decision 2008/633 is incompatible with the rules of procedure applicable after the entry into force of the Treaty of Lisbon, it should be noted, in any event, that the Protocol on Transitional Provisions includes provisions dealing specifically with the legal rules applicable, following the entry into force of that treaty, to acts adopted on the basis of the EU Treaty before that date.
47. It follows from the foregoing 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 such measures in accordance with the procedure established by that provision.
48. In those circumstances, the fact that Article 18(2) of Decision 2008/633 might lay down detailed rules for the adoption of a measure such as the contested decision that are strengthened or eased by comparison with the procedure laid down for that purpose in the FEU Treaty cannot mean that that provision constitutes an invalid secondary legal basis which should be regarded as inapplicable by way of exception.
49. As a consequence and in those circumstances, without there being any need to rule on the admissibility of the second part of the second plea, that part of the plea must be rejected as unfounded (see, by analogy, judgments in France  v Commission , C‑233/02, EU:C:2004:173, paragraph 26, and Komninou and Others  v Commission , C‑167/06 P, EU:C:2007:633, paragraph 32), and the second plea must therefore be rejected in its entirety.
The first plea in law, alleging breach of an essential procedural requirement
Arguments of the parties
53. It should be noted that due consultation of the Parliament in the cases provided for by the applicable rules of EU law constitutes an essential procedural requirement, disregard of which renders the measure concerned void (see, to that effect, judgments in Parliament v Council , C‑65/93, EU:C:1995:91, paragraph 21, and Parliament v Council , C‑417/93, EU:C:1995:127, paragraph 9).
58. Similarly, the fact that Article 291 TFEU does not lay down any obligation to consult the Parliament is irrelevant, as the requirement to consult the Parliament is one of the legal effects of Decision 2008/633 which is maintained after the entry into force of the Treaty of Lisbon, pursuant to Article 9 of the Protocol on Transitional Provisions, as interpreted at paragraph 47 above.