European Parliament v Council of the European Union.
Date: 2009-09-03
40. According to settled case-law, Article 308 EC may be used as the legal basis for a measure only where no other provision of the EC Treaty gives the Community institutions the necessary power to adopt it (Case C‑84/94 United Kingdom  v Council  [1996] ECR I‑5755, paragraph 48; Case C‑22/96 Parliament v Council  [1998] ECR I-3231, paragraph 22; and Case C‑436/03 Parliament  v Council  [2006] ECR I-3733, paragraph 36 and the case-law cited).
41. That legal basis is designed to fill the gap where no specific provisions of the Treaty confer on the Community institutions express or implied powers to act, if such powers appear none the less to be necessary to enable the Community to carry out its functions with a view to attaining one of the objectives laid down by the Treaty (Opinion 2/94 [1996] ECR I‑1759, paragraph 29, and Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation  v Council and Commission  [2008] ECR I‑0000, paragraph 211).
42. In the context of the organisation of the powers of the Community, the choice of the legal basis for a measure must rest on objective factors amenable to judicial review, including, in particular, the aim and the content of the measure (Case C‑338/01 Commission v Council  [2004] ECR I‑4829, paragraph 54 and the case-law cited, and Opinion 2/00 [2001] ECR I‑9713, paragraph 22 and the case-law cited).
45. Under the first paragraph of Article 159 EC, the objectives of that Community policy, as specified in Article 158 EC, are to be taken into account by the Member States and the Community when formulating and implementing Community policies. The Community is also required to support the realisation of those objectives, in particular by the action which it takes through the Structural Funds. In the same context, it may, under certain conditions, act on the basis of the third paragraph of Article 159 EC by means of specific action outside those Funds.
52. This finding is also confirmed by the legal framework within which the contested regulation is situated, in particular by the Anglo-Irish Agreement, which forms the basis of the IFI Agreement. While the principal objective of the Anglo-Irish Agreement is the promotion of peace and reconciliation between the two communities in Northern Ireland, the objective pursued by the area of activity within which the IFI Agreement falls is, as is stated in Article 10(a) of the Anglo-Irish Agreement, the promotion of regional economic and social development.
67. In that regard, as has been stated at paragraph 41 of the present judgment, Article 308 EC is designed to fill the gap where no specific provisions of the EC Treaty confer on the Community institutions express or implied powers to act, if such powers appear none the less to be necessary to enable the Community to carry out its functions with a view to attaining one of the objectives laid down by the Treaty. In addition, as follows from Article 308 EC, recourse to that provision demands that the action envisaged should relate to the ‘operation of the common market’ (see Kadi and Al Barakaat International Foundation  v Council and Commission , paragraph 200).
69. It follows from the foregoing that, as the contested regulation pursues objectives set out in Articles 2 EC and 3(1)(k) EC and in Title XVII of the EC Treaty, without that title by itself conferring on the Community the power to realise those objectives, the Community legislature ought to have had recourse to both the third paragraph of Article 159 EC and Article 308 EC (see, to that effect, Case 242/87 Commission  v Council  [1989] ECR 1425, paragraphs 6 and 37, and Kadi and Al Barakaat International Foundation  v Council and Commission , paragraphs 211 to 214), while complying with the legislative procedures laid down therein, that is to say, both the ‘co‑decision’ procedure referred to in Article 251 EC and the requirement that the Council should act unanimously.
The request that the effects of the contested regulation be maintained