European Parliament v Council of the European Union.
Date: 1996-03-26
13. It should be recalled  in limine  that the Court has consistently held that the use of Article 235 as the legal basis for a measure is justified only where no other provision of the Treaty gives the Community institutions the necessary power to adopt the measure in question (see, in particular, Case 45/86  Commission  v  Council  [1987] ECR 1493, paragraph 13, and Case C-350/92  Spain  v  Council  [1995] ECR I-1985, paragraph 26).
14. It should further be recalled that in the context of the organization of the powers of the Community the choice of the legal basis for a measure must be based on objective factors which are amenable to judicial review.  Those factors include in particular the aim and content of the measure (see, in particular, Case C-300/89  Commission  v  Council  [1991] ECR I-2867, paragraph 10, and Case C-426/93  Germany  v  Council  [1995] ECR I-3723, paragraph 29).
24. As for the argument based on previous practice, suffice it to say that a mere practice on the part of the Council cannot derogate from the rules laid down in the Treaty and therefore cannot create a precedent binding on the Community institutions with regard to the correct legal basis (see, in particular, Case 68/86  United Kingdom  v  Council  [1988] ECR 855, paragraph 24).  Moreover, the CADDIA, INSIS and TEDIS programmes, referred to by the Council, were established before Title XII on trans-European networks was introduced by the Treaty on European Union, hence before Article 129d entered into force.
32. As has been mentioned in paragraphs 22 and 23 of this judgment, the decision ' s main aim is to ensure the interoperability of national networks by means of operational measures of a technical nature.  Whilst it is true that the decision also serves objectives of the internal market, those objectives are merely ancillary in relation to the main objective, with the result that Article 100a cannot constitute the proper legal basis for its adoption.  In this regard, it should be recalled that the Court has already held that the mere fact that the establishment or the functioning of the internal market is affected is not sufficient for Article 100a of the Treaty to apply (see, in particular, Case C-70/88  Parliament  v  Council  [1991] ECR I-4529, paragraph 17).
33. In addition, it should be noted that, according to the very wording of Article 129b, to which Article 129c refers, trans-European networks are intended,  inter alia , to achieve the objectives referred to in Article 7a, namely the establishment of the internal market.  As far as the interoperability of networks in relation to the establishment of the internal market in particular is concerned, the second indent of Article 129c(1) constitutes a more specific provision than Article 100a.  Consequently, even though the second indent of Article 129c(1) also covers objectives pursued by Article 100a, the existence of Article 100a cannot be used as an argument for restricting the scope of that provision.
40. In view of the particular circumstances of the case and for important reasons of legal certainty, comparable to those which arise where certain regulations are annulled, there appears to be justification for the Court ' s exercising the power expressly conferred upon it by the second paragraph of Article 174 of the EC Treaty where a regulation is annulled and indicating the effects of the annulled decision which must be conserved.  Consequently, the effects of the Commission decisions already adopted pursuant to the annulled decision should be maintained until such time as a decision adopted on the appropriate legal basis enters into force.