Commission of the European Communities v European Parliament and Council of the European Union.
Date: 2003-01-21
28.  Article 230 EC draws a clear distinction between the right of action available to the Community institutions and the Member States on the one hand and that available to natural or legal persons on the other,   inter alia   by giving the Commission the right to bring an action for annulment in order to challenge the legality of any measure adopted jointly by the Parliament and the Council, without making the exercise of that right conditional on proof of an interest in bringing proceedings (see, to that effect, Case 45/86   Commission   v   Council   [1987] ECR 1493, paragraph 3).  Neither is exercise of that right conditional on the position taken by the Commission at the time when the measure in question was adopted (see, by analogy, as regards positions taken by representatives of the Member States sitting in Council when a regulation is adopted, Case 166/78   Italy   v   Council   [1979] ECR 2575, paragraph 6).
29.  Secondly, as the Advocate General observed at points 136 and 137 of his Opinion, the choice of committee procedure made in Article 11(2) of Regulation No 1655/2000 can be severed from the other provisions of that regulation, so that an action for partial annulment of Regulation No 1655/2000, in so far as it prescribes recourse to a regulatory committee, is possible.
30.  It follows from the foregoing that the application is admissible.
Substance
34.  In that connection, it must be remembered that absence of reasons or inadequacy of the reasons stated goes to an issue of infringement of essential procedural requirements within the meaning of Article 230 EC, and constitutes a plea distinct from a plea relating to the substantive legality of the contested measure, which goes to infringement of a rule of law relating to the application of the Treaty within the meaning of that article (see, to that effect, Case C-367/95 P   Commission   v   Sytraval and Brink's France   [1998] ECR I-1719, paragraph 67, and Case C-265/97 P   VBA   v   Florimex and Others   [2000] ECR I-2061, paragraph 114).
39.  In that regard, it should be noted that, as a measure of secondary legislation, the second comitology decision, like the first, cannot add to the rules of the Treaty (see Case C-240/90   Germany   v   Commission   [1992] ECR I-5383, paragraph 42).
40.  None the less, it follows from the third indent of Article 202 EC, on the basis of which the second comitology decision was adopted, that the Council is empowered to lay down principles and rules with which the manner of exercising the implementing powers conferred on the Commission must comply.  Those principles and those rules must therefore be observed when measures conferring implementing powers on the Commission are adopted, and Article 202 EC must be held to refer both to measures adopted by the Council alone and to measures adopted by the Council together with the Parliament under the co-decision procedure (see, to that effect, Case C-259/95   Parliament   v   Council   [1997] ECR I-5303, paragraph 26).
51.  In that regard, the Court has held that, even though an act adopted by a Community institution does not lay down a rule of law which that institution is bound to observe, but merely lays down a rule of conduct indicating the practice to be followed, that institution may not depart from it without giving the reasons which have led it to do so (see, to that effect, Case 148/73   Louwage   v   Commission   [1974] ECR 81, paragraph 12; Case 190/82   Blomefield   v   Commission   [1983] ECR 3981, paragraph 20; Case 343/82   Michael   v   Commission   [1983] ECR 4023, paragraph 14; and Joined Cases 129/82 and 274/82   Lux   v   Court of Auditors   [1984] ECR 4127, paragraph 20).
66.  First, the statement of reasons for a Community measure must appear in that measure (see, to that effect, Case C-291/98 P   Sarrió   v   Commission  [2000] ECR I-9991, paragraphs 73 and 75) and, second, it must be adopted by the author of the measure (see, to that effect, Case C-137/92 P   Commission   v   BASF and Others   [1994] ECR I-2555, paragraph 67), so that, in the present case, a declaration adopted by the Council alone cannot in any event serve as a statement of reasons for a regulation adopted jointly by the Parliament and the Council, such as Regulation No 1655/2000.
68.  However, such a statement, which amounts to no more than a reference to the applicable Community instrument, does not constitute a sufficient statement of reasons (see, to that effect, Case 185/85   Usinor   v   Commission   [1986] ECR 2079, paragraph 21).  It does not make clear the specific reasons for the choice of the regulatory procedure in the case of Regulation No 1655/2000, where that choice does not appear to comply with the criteria for guidance defined in Article 2 of the second comitology decision.