European Parliament v Council of the European Union.
Date: 2015-12-23
15. Furthermore, the Council submits that, although the Court has accepted that the interest in bringing proceedings can continue to exist when the alleged unlawfulness is liable to recur in the future independently of the circumstances of the case in question, this is not the case here, since the Council has already taken the measures necessary to comply with the judgments in Parliament v Council  (C‑317/13 and C‑679/13, EU:C:2015:223) and also Parliament v Council  (C‑540/13, EU:C:2015:224), and that it removed the unlawfulness of the contested decision from the European Union’s legal order.
Findings of the Court
16. In so far as the Council relies on the repeal and replacement of the contested decision by Implementing Decision 2015/1875, it should be noted that the repeal of the contested act, effected after the bringing of the action, does not in itself mean that the Courts of the European Union must declare that there is no need to adjudicate for lack of purpose or for lack of interest in bringing proceedings at the date of the delivery of the judgment (judgment in Xeda International and Pace International v Commission C‑149/12 P, EU:C:2013:433, paragraph 32 and the case-law cited).
17. Nevertheless, as the Council points out, it is apparent from the Court’s settled case-law that an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of bringing the action, failing which the action will be inadmissible. That purpose of the action must continue to exist, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate; this presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (see judgment in Abdulrahim v Council and Commission , C‑239/12 P, EU:C:2013:331, paragraph 61 and the case-law cited).
18. The Court concluded that, where the contested measure has ceased to have effect in the course of proceedings, its task is to assess in the light of the specific circumstances the applicant’s interest in bringing proceedings, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained (see, to that effect, judgment in Abdulrahim v Council and Commission , C‑239/12 P, EU:C:2013:331, paragraphs 62 and 65).
20. The European Parliament’s right of action, laid down in the second paragraph of Article 263 TFEU, like the right of action of the Member States laid down in the same provision, is not conditional on proof of an interest in bringing proceedings (see, to that effect, judgment in Parliament v Council , C‑355/10, EU:C:2012:516, paragraph 37).
22. That said, the Court was able to determine that there was no need to adjudicate in cases initiated by Member States when, following the annulment or withdrawal of the contested act, those States obtained the result their action was intended to achieve (see, to that effect, order in Germany v Commission , C‑46/96, EU:C:1997:103, paragraph 6, as well as judgments in Italy v Commission , C‑372/97, EU:C:2004:234, paragraph 37, and Italy v Commission , C‑138/03, C‑324/03 and C‑431/03, EU:C:2005:714, paragraph 25).
29. That conclusion cannot be called in question by the fact that the Parliament requests the Court, should it annul the contested decision, to retain the effects of the latter until it is replaced by a new decision, since it is for the Court to rule on the consequences of an annulment without being bound by the proposals formulated to that end by the parties and that, in any event, an institution may legitimately seek to obtain a declaration of illegality even where the effects of the act annulled remain unaffected in their entirety (see, to that effect, judgment in Council v Parliament , C‑284/90, EU:C:1992:154, paragraph 36).
35. It should be noted, as a preliminary point, that proper 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).
37. It is apparent from settled case-law of the Court that the legal basis of a measure determines the procedure to be followed in adopting that measure (see, to that effect, 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).
38. In the present case, while if there is disagreement between the parties over the legal basis actually used by the Council to adopt the contested decision, it is clearly apparent from the wording of that decision that it is based on Article 8(3) of Decision 2005/387 (see by analogy, judgment in Parliament v Council , C‑317/13 and C‑679/13, EU:C:2015:223, paragraphs 28 to 31).
39. It follows from the case-law of the Court that, for as long as it is not repealed, annulled or amended, Article 8(3) of Decision 2005/387 continues, by virtue of Article 9 of Protocol (No 36) on transitional provisions, to produce its legal effects, after the entry into force of the Treaty of Lisbon, and that, consequently, it permits the adoption of implementing measures in accordance with the procedure it establishes (see, to that effect, judgment in Parliament v Council , C‑317/13 and C‑679/13, EU:C:2015:223, paragraph 57 and 65).
40. 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 (judgment in Parliament v Council , C‑317/13 and C‑679/13, EU:C:2015:223, paragraph 50).
41. The repeal of Article 39(1) EU by the Treaty of Lisbon cannot call in question that obligation to consult the Parliament since, firstly, 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 and, secondly, 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, to that effect, judgment in Parliament v Council , C‑317/13 and C‑679/13, EU:C:2015:223, paragraphs 45, 49 and 67).