European Parliament v Council of the European Union.
Date: 2015-09-10
17. Since the legal basis of an act determines the procedure to be followed for its adoption (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, C‑658/11, EU:C:2014:2025, paragraph 57), the second and third pleas in law should be examined first: the choice of a repealed or invalid legal basis, and the choice of a legal basis relating to implementing measures for the adoption of a legislative decision.
Second and third pleas in law: choice of a repealed or invalid legal basis and choice of a legal basis relating to implementing measures for the adoption of a legislative decision
First part of the second plea in law: choice of a repealed legal basis
– Arguments of the parties
23. The contested decision does not refer to Article 34 EU and the citations in its preamble expressly cite Article 26(1)(a) of the Europol Decision and Articles 5 and 6 of Decision 2009/934.
24. It cannot therefore be considered, 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, judgments in Commission  v Council , C‑370/07, EU:C:2009:590, paragraphs 39 and 55; Parliament  v Council , C‑317/13 and C‑679/13, EU:C:2015:223, paragraph 29; and Parliament  v Council , C‑540/13, EU:C:2015:224, paragraph 19), that the decision is based on Article 34 EU.
25. Moreover, it should be noted that there is nothing else in the contested decision to indicate that the Council intended to use Article 34 EU as the legal basis of the decision.
26. In particular, the fact 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 irrelevant in that regard, in so far as the Council’s explicit choice to refer in the contested decision not to that provision but to Article 26(1)(a) of the Europol Decision and Articles 5 and 6 of Decision 2009/934 indicates clearly that the contested decision is based on the latter provisions as such (see, by analogy, judgment in Parliament  v Council , C‑540/13, EU:C:2015:224, paragraph 21).
27. It must be observed that, although Articles 5 and 6 of Decision 2009/934 do not relate to amending the list referred to in Article 26(1)(a) of the Europol Decision (‘the list’) and could not therefore validly be used as legal basis for the contested decision, the reference to those articles in the citations of that decision is in any event a purely formal defect at the most, in so far as that reference had no effect on the content of the decision or the procedure for its adoption (see, to that effect, United Kingdom  v Council , C‑81/13, EU:C:2014:2449, paragraphs 65 to 67).
41. According to settled case-law of the Court, the choice of the legal basis of an EU act must rest on objective factors that are amenable to judicial review, including the aim and content of the act (judgment in Commission  v Parliament and Council , C‑43/12, EU:C:2014:298, paragraph 29 and the case-law cited).
43. 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 (see, to that effect, judgments in Parliament  v Council , C‑133/06, EU:C:2008:257, paragraphs 54 to 56; Parliament  v Council , C‑317/13 and C‑679/13, EU:C:2015:223, paragraphs 42 and 43; and Parliament  v Council , C‑540/13, EU:C:2015:224, paragraphs 32 and 33).
46. According to settled case-law of the Court, the adoption of the essential rules of a matter such as that at issue in the present case is reserved to the EU legislature, and those rules must be laid down in the basic legislation. It follows that the provisions laying down the essential elements of the basic legislation, the adoption of which requires political choices falling within the responsibilities of the EU legislature, cannot be delegated or appear in implementing acts (see, to that effect, judgment in Parliament  v Council , C‑355/10, EU:C:2012:516, paragraphs 64 to 66).
47. Identifying the elements of a matter which must be categorised as essential must be based on objective factors amenable to judicial review, and requires account to be taken of the characteristics and particular features of the field concerned (see, to that effect, judgment in Parliament  v Council , C‑355/10, EU:C:2012:516, paragraphs 67 and 68).
53. Admittedly, the transmission of personal data, which may be authorised by agreements concluded pursuant to Article 23 of the Europol Decision, may interfere with the fundamental rights of the persons concerned, and some of those interferences may be so serious that intervention by the EU legislature becomes necessary (see, to that effect, judgment in Parliament  v Council , C‑355/10, EU:C:2012:516, paragraph 77).
59. 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 26(1)(a) of the Europol Decision must be assessed in the light of the provisions that, at the time when that decision was adopted, governed the implementation of general acts in the field of police and judicial cooperation in criminal matters, namely Article 34(2)(c) EU and Article 39(1) EU (see, by analogy, judgments in Parliament  v Council , C‑317/13 and C‑679/13, EU:C:2015:223, paragraph 45, and Parliament  v Council , C‑540/13, EU:C:2015:224, paragraph 35).
60. It follows from those provisions that the Council, acting by a qualified majority and after consulting the Parliament, is to enact the measures necessary for the implementation of decisions adopted in connection with the title relating to police and judicial cooperation in criminal matters.
61. However, the parties disagree on the interpretation of the rules laid down in Article 34(2)(c) EU as regards the question whether the adoption of those implementing measures requires a prior initiative of a Member State or the Commission.
62. It should be observed here that that provision distinguishes between the decisions which the Council, acting unanimously, may adopt and the measures necessary to implement those decisions at the level of the Union which the Council, acting by a qualified majority, adopts.
63. In that context, the words ‘on the initiative of any Member State or of the Commission’ must be understood, having regard to the syntax of the sentences making up that provision, as relating only to the basic acts which the Council, acting unanimously, may adopt.
64. It thus follows from the wording of that provision that it must be construed as meaning that an initiative of a Member State or the Commission is not necessary for the adoption of implementing measures such as the contested decision.
65. That interpretation is supported by the context of Article 34(2)(c) EC, which must be taken into account for the interpretation of that provision (see, to that effect, judgment in M’Bodj , C‑542/13, EU:C:2014:2452, paragraph 34 and the case-law cited).
66. As regards the provisions applicable specifically to police and judicial cooperation in criminal matters after the entry into force of the Treaty of Lisbon, Articles 76 TFEU and 291 TFEU make an initiative of a Member State or the Commission a requirement for the adoption only of legislative acts, not of implementing measures.
68. As regards the Parliament’s arguments that Article 26(1)(a) of the Europol Decision is incompatible with the procedural rules 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, after the entry into force of that Treaty, to acts adopted on the basis of the EU Treaty before that date (see, to that effect, judgments in Parliament  v Council , C‑317/13 and C‑679/13, EU:C:2015:223, paragraph 51, and Parliament  v Council , C‑540/13, EU:C:2015:224, paragraph 41).
70. 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 measures implementing that act continues to produce its legal effects until it is repealed, annulled or amended, and permits the adoption of implementing measures in accordance with the procedure it defines (judgments in Parliament  v Council , C‑317/13 and C‑679/13, EU:C:2015:223, paragraph 57, and Parliament  v Council , C‑540/13, EU:C:2015:224, paragraph 47).
72. Similarly, the Parliament’s arguments aiming to show that Article 26(1)(a) of the Europol Decision lays down detailed rules for the adoption of implementing measures that are strengthened or eased by comparison with the procedure laid down for that purpose by the FEU Treaty cannot lead to the conclusion that that provision constitutes an invalid secondary legal basis which should be regarded as inapplicable by way of exception (see, by analogy, judgments in Parliament  v Council , C‑317/13 and C‑679/13, EU:C:2015:223, paragraph 58, and Parliament  v Council , C‑540/13, EU:C:2015:224, paragraph 48).
73. 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 or of the third plea, they must be rejected as unfounded (see, to that effect, judgments in Parliament  v Council , C‑317/13 and C‑679/13, EU:C:2015:223, paragraph 59, and Parliament  v Council , C‑540/13, EU:C:2015:224, paragraph 49 and the case-law cited), and those pleas must therefore be rejected in their entirety.
First plea in law: breach of essential procedural requirements
Arguments of the parties
82. As regards, secondly, the conditions of consulting the Parliament, it should be recalled 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 act concerned void (judgments in Parliament  v Council , C‑317/13 and C‑679/13, EU:C:2015:223, paragraph 63, and Parliament  v Council , C‑540/13, EU:C:2015:224, paragraph 53 and the case-law cited).
86. 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 the Europol Decision which is maintained after the entry into force of the Treaty of Lisbon, pursuant to Article 9 of the Protocol on transitional provisions (see, by analogy, judgments in Parliament  v Council , C‑317/13 and C‑679/13, EU:C:2015:223, paragraph 68, and Parliament  v Council , C‑540/13, EU:C:2015:224, paragraph 58).
91. In those circumstances, it has not been shown that the Council’s error prevented the effective participation of the Parliament in the procedure in question or interfered with the conditions in which the Parliament performs its duties (see, to that effect, judgments in Parliament  v Council , C‑392/95, EU:C:1997:289, paragraph 14, and Parliament  v Council , C‑658/11, EU:C:2014:2025, paragraph 81).
92. That conclusion is not called into question by the Court’s decision in Parliament  v Council  (C‑316/91, EU:C:1994:76).
93. The Court indeed found in that judgment that the incorrect choice of a legal basis which did not provide for the Parliament to be consulted was such as to infringe the Parliament’s prerogative constituted by the right to be consulted when primary law so provides, even if optional consultation took place (judgment in Parliament  v Council , C‑316/91, EU:C:1994:76, paragraph 14).
95. The conclusion the Court reached in that case was, moreover, based partly on the fact that the alleged error as to the legal basis had the result of excluding the application of a provision which allowed the Parliament to obtain, on request, recourse to the conciliation procedure (judgment in Parliament  v Council , C‑316/91, EU:C:1994:76, paragraph 18), which was not the case here.
96. Furthermore, the Court has also held that the incorrect substitution of a legal basis requiring the Parliament to be consulted for a legal basis not requiring such consultation was a purely formal defect (judgment in Commission  v Council , 165/87, EU:C:1988:458, paragraph 20). The fact that the Council is mistaken as to the legal framework within which it consults the Parliament is thus not such as to affect the content of the decision adopted following the procedure in question.