European Parliament v Council of the European Union.
Date: 2015-04-16
17. It should be noted that, under Article 120(c) of the Court’s Rules of Procedure and the case-law relating thereto, an application initiating proceedings must state the subject-matter of the dispute, the pleas in law and arguments relied on and a summary of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita  or fail to rule on a claim (see, to that effect, judgment in United Kingdom  v Council , C‑209/13, EU:C:2014:283, paragraph 30 and the case-law cited).
21. Accordingly, since it is the legal basis of a measure that determines the procedures to be followed in adopting that measure (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), it is appropriate to examine in the first place the first plea in Case C‑317/13 and the second plea in Case C‑679/13, alleging that a repealed or invalid legal basis was chosen.
The first plea in Case C‑317/13 and the second plea in Case C‑679/13, alleging that a repealed or invalid legal basis was chosen
The first part of the first plea in Case C‑317/13 and of the second plea in Case C‑679/13, alleging that a repealed legal basis was chosen
– Arguments of the parties
28. It must be noted that those decisions do not refer to Article 34 EU and that in their recital they refer expressly to the FEU Treaty and to Article 8(3) of Decision 2005/387 as the legal bases.
29. It cannot therefore be concluded, having regard to the text of the contested decisions, which must, in principle, if they are to satisfy the obligation to state reasons, indicate the legal basis on which they are founded (see, to that effect, judgment in Commission  v Council , C‑370/07, EU:C:2009:590, paragraphs 39 and 55), that those decisions are based on Article 34 EU.
30. Moreover, it should be noted that there is nothing else in the contested decisions to indicate that the Council intended to use Article 34 EU as the legal basis of those decisions.
31. In particular, the reference in Article 8(3) of Decision 2005/387 to Article 34(2)(c) EU is, in that regard, irrelevant, in so far as the Council’s explicit choice not to refer to that provision in the contested decisions but instead to the FEU Treaty and to Article 8(3) of Decision 2005/387 indicates clearly that the contested decisions are based on the latter provision itself.
40. According to settled case-law of the Court, the choice of legal basis for a European Union measure must rest on objective factors that are amenable to judicial review; these include the aim and content of that measure (judgment in Commission  v Parliament and Council , C‑43/12, EU:C:2014:298, paragraph 29 and the case-law cited).
42. 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, 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 judgment in Parliament  v Council , C‑133/06, EU:C:2008:257, paragraphs 54 to 56).
43. That approach, which was adopted by the Court in the judgment in Parliament  v Council  (C‑133/06, EU:C:2008:257) in relation to a secondary legal basis for the adoption of legislative acts, must also be applied to the legal bases provided for in secondary legislation which make it possible to adopt measures for the implementation of that legislation by strengthening or easing the detailed rules for the adoption of such measures laid down in the Treaties.
45. In that context, given that the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see, by analogy, judgments in Gualtieri  v Commission , C‑485/08 P, EU:C:2010:188, paragraph 26; Schindler Holding and Others  v Commission , C‑501/11 P, EU:C:2013:522, paragraph 31; and Schaible , C‑101/12, EU:C:2013:661, paragraph 50), the legality of Article 8(3) of Decision 2005/387 must be assessed in the light of the provisions that governed, at the time that decision was adopted, 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.
48. None the less, it is established case-law that the wording of secondary EU legislation must be interpreted, in so far as possible, in a manner consistent with the provisions of the Treaties (judgment in Efir , C‑19/12, EU:C:2013:148, paragraph 34 and the case-law cited).
49. Accordingly, given, first, that the requirement to interpret secondary legislation in compliance with primary law follows from the general principle of interpretation that a provision must be interpreted, as far as possible, in such a way as not to affect its validity (see, to that effect, judgments in Sturgeon and Others , C‑402/07 and C‑432/07, EU:C:2009:716, paragraphs 47 and 48, and review of Commission  v Strack , C‑579/12 RX-II, EU:C:2013:570, paragraph 40), and, second, that the legality of Article 8(3) of Decision 2005/387 must be assessed, for the reasons set out in paragraph 45 above, in particular in the light of Article 39(1) EU, the former provision must be interpreted in a manner consistent with the latter.
50. As a consequence, Article 8(3) of Decision 2005/387 must be interpreted, in accordance with Article 39(1) EU, as permitting the Council to adopt an act for the purpose of submitting a new psychoactive substance to control measures only after it has consulted the Parliament. It follows that the Parliament’s argument that the fact that the former provision does not specify that it must be consulted implies that it introduces rules for the adoption of implementing measures that are slacker by comparison with the rules under the procedure laid down for that purpose in the EU Treaty must be rejected.
51. With regard to the Parliament’s arguments to the effect that Article 8(3) of Decision 2005/387 is incompatible with the rules of procedure 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, following the entry into force of that treaty, to acts adopted on the basis of the EU Treaty before that date.
57. It follows from the foregoing 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 for the implementation of 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 a procedure established by that provision.
58. In those circumstances, the fact that Article 8(3) of Decision 2005/387 might lay down detailed rules for the adoption of implementing measures that are strengthened or eased by comparison with the procedure laid down for that purpose in the FEU Treaty cannot mean that that provision constitutes an invalid secondary legal basis which should be disapplied following a plea of illegality.
59. As a consequence and in those circumstances, without there being any need to rule on the admissibility of the second part of the first plea in Case C‑317/13 or of the second plea in Case C‑679/13, the second part of those pleas must be rejected as unfounded (see, by analogy, judgments in France  v Commission , C‑233/02, EU:C:2004:173, paragraph 26, and Komninou and Others  v Commission , C‑167/06 P, EU:C:2007:633, paragraph 32), and those pleas must therefore be rejected in their entirety.
The second plea in Case C‑317/13 and the first plea in Case C‑679/13, alleging breach of an essential procedural requirement
Arguments of the parties
63. It should be noted that due consultation of the Parliament in the cases provided by the applicable rules of EU law constitutes an essential procedural requirement, disregard of which renders the measure concerned void (see, to that effect, judgments in Parliament  v Council , C‑65/93, EU:C:1995:91, paragraph 21, and Parliament  v Council , C‑417/93, EU:C:1995:127, paragraph 9).
65. It is apparent from the considerations set out at paragraphs 50 to 57 above that Article 8(3) of Decision 2005/387, interpreted in accordance with Article 39(1) EU, continues to produce its legal effects until it is repealed, annulled or amended and permits the adoption of implementing measures in accordance with a procedure established by that provision. Therefore, the Council is required to consult the Parliament before submitting a new psychoactive substance to control measures.
67. In the light of the considerations set out at paragraph 49 above, the repeal of Article 39(1) EU after the adoption of Article 8(3) of Decision 2005/387 cannot remove the requirement to interpret that provision in accordance with Article 39(1) EU.
68. 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 Decision 2005/387 which is maintained after the entry into force of the Treaty of Lisbon pursuant to Article 9 of the Protocol on Transitional Provisions, as interpreted at paragraph 57 above.