European Parliament v Council of the European Union.
Date: 1997-10-02
9 It should be noted at the outset that, in contrast with adaptations resulting directly from the Act of Accession, which do not constitute acts of the institutions and are not, therefore, open to a review of legality, adaptations adopted pursuant to acts of the institutions are subject as such to the review of legality provided for in the Treaty (Joined Cases 31/86 and 35/86 LAISA and Another v Council [1988] ECR 2285, paragraph 17).  Since the present action has been brought by the Parliament in respect of adaptations introduced by a decision of the Council, and for the purpose of defending Parliament's prerogatives, it must be held admissible.
The scope ratione temporis of Article 169 of the Act of Accession
12 Although the French-language version of Article 169 provides that adaptations thereunder must be made prior to accession - `avant l'adhésion' - the fact remains that all the other language versions place that temporal restriction not on recourse to Article 169 but on the date of adoption of the acts to be amended (`De fornødne tilpasninger af institutionernes retsakter fra før tiltrædelsen; Erfordern vor dem Beitritt erlassene Rechtsakte der Organe aufgrund des Beitritts eine Anpassung; Ïôáí ðñÜîåéò ôùí ïñãÜíùí ðñéí ôç ðñïó÷þñçóç ÷ñåéÜæïíôáé ðñïóáñìïãÞ óõíåðåßá áõôÞò; En caso de que los actos de las instituciones previos a la adhesión requieran una adaptación como consecuencia de ésta; Más gá gníomhartha na n-institiúidí arna ndéanamh roimh an aontachas a oiriúnú de thoradh an aontachais; Quando gli atti delle istituzioni precedenti all'adesione richiedono adattamenti in conseguenza dell'adesione; Indien besluiten van de Instellingen van vóór de toetreding in verband met de toetreding moeten worden aangepast; Quando os actos das Instituições, anteriores à adesão, devam ser adaptados em virtude da adesão; Jos toimielinten ennen liittymistä antamia säädöksiä on mukautettava liittymisen johdosta; Sådana anpassningar av institutionernas rättsakter som behövs inför anslutningen; Where acts of the institutions prior to accession require adaptation by reason of accession').
13 The Court has consistently held that the need for a uniform interpretation requires that, in the event of a divergence between the various language versions, the provision in question should be construed by reference to the purpose and general scheme of the rules of which it forms part (see, inter alia, Case C-72/95 Kraaijeveld and Others v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403, paragraph 28).
14 Article 169 forms part of Title II of Part Five of the Act of Accession, which is entitled `Applicability of the acts of the institutions'.  Thus the sole purpose of the adaptations made on the basis of Article 169 is to extend to the new Member States the application of Community measures which have not been adapted by the Act of Accession itself.  No other amendments can, therefore, be based on Article 169 of that Act.
15 In this case, only two aspects of Decision No 3092/94 required adjustment in order to extend its application to the new Member States: the number of hospitals had to be altered so as to reflect the population of the new Member States and, accordingly, the financial assistance had to be increased proportionately.  By raising the number of hospitals from 54 to 65, and the level of Community funding from ECU 2.5 million to ECU 2.808 million, the Council complied with the criteria laid down in Decision No 3092/94.  The contested Decision therefore adhered to the framework laid down for adaptations within the meaning of Article 169.
16 The Parliament maintains, however, that the aim of Article 2(3) of the Treaty of Accession was to enable the Community institutions to adopt, during the transitional period, all the measures necessary to ensure that the new Member States were fully integrated by the time of accession.  Clearly, therefore, that provision did not envisage the adoption of retroactive measures such as the contested Decision.
17 Furthermore, given the basic principle, alluded to primarily in Article 2 of the Act of Accession, that the entire acquis communautaire must be accepted as binding, it is inconceivable in the Parliament's view that a provision contained in Part Five of the Act of Accession could be the means of introducing a mechanism for derogating from the ordinary rules of law, whereby - notwithstanding the fact that all major acts compulsorily take effect from the date of accession - certain institutions would still be free to make adaptations at any time subsequently, that is to say, they would be able to amend Community measures which had been adopted prior to accession and which had not been identified at the time of accession.
18 In that regard the first point to note is that, under Article 2(3) of the Treaty of Accession, the Community institutions `may' adopt before accession certain measures referred to in, inter alia, Article 169 of the Act of Accession.  Consequently, Article 2(3) does not place any restriction on the use of Article 169 after the entry into force of the Treaty of Accession, but merely authorizes its use before that date.
19 Secondly, the principle that the acceding State must accept all acts adopted by the institutions prior to the time when its accession takes effect (see Joined Cases 39/81, 43/81, 85/81 and 88/81 Halyvourgiki v Commission [1982] ECR 593, paragraph 12) is not called in question by acts adopted after accession on the basis of Article 169. As is clear from paragraph 14 above, Article 169 may be relied on  solely for the enactment of adaptations designed merely to render the measures concerned applicable in the new Member States, to the exclusion of all other amendments.  The application of the acquis communautaire in accordance with Article 2 of the Act of Accession does not therefore mean that Article 169 ceases to apply upon the entry into force of the Treaty of Accession.
20 As regards the Parliament's assertion that such an interpretation would lead to the unrestricted application of Article 169, suffice it to note that, in any event, the contested Decision was adopted within a reasonable period after the entry into force of the Treaty of Accession.
21 Lastly, in so far as Article 169(1), second sentence, of the Act of Accession lays down that adaptations thereunder are to enter into force as from the date of accession, thereby endowing acts adopted subsequently with retroactive effect, it is settled law that, although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected (see Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 45).
22 In the present case, since the objective pursued was the uniform application of the acquis communautaire throughout the Union, it was necessary to give effect to the adaptation measures as from the date of accession, even if they were adopted subsequently.  In the absence of any allegation by the Parliament that the principle of legal certainty or the protection of legitimate expectations has been infringed, the first plea in law must be rejected.
The scope ratione materiae of Article 169 of the Act of Accession
26 Acts of the Council, without further qualification, are those adopted by that institution, either alone or together with the Parliament under the co-decision procedure.  It is clear from the various provisions of the EC Treaty (see, inter alia, Article 56(2), second sentence; Article 100a(1), second sentence; and Article 129a(2), on which Decision No 3092/94 is based) that acts adopted jointly by the Council and the Parliament are regarded as acts of the Council.  Consequently, the reference in Article 169(2) of the Act of Accession to acts of the Council also embraces those which the Council has adopted jointly with the Parliament.