Keywords
Summary

Keywords

1 Actions for annulment - Actionable measures - Measures intended to have legal effects - Commission communication purporting to explain the consequences, in a particular sphere, of the provisions of the Treaty but creating new obligations for the Member States

(EC Treaty, Art. 173; Commission Communication 94/C 360/08)

2 Freedom to provide services - Freedom of establishment - Free movement of capital - Measures intended to promote the effective exercise of rights flowing therefrom - Exclusive competence of the Council - Commission communication, intended to produce legal effects of its own, on an internal market for pension funds - Measure adopted by authority lacking the necessary competence

(EC Treaty, Arts 57(2) and 66; Commission Communication 94/C 360/08)

Summary

3 An action for annulment is available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects. This is so in the case of a Commission communication, published in the C series of the Official Journal, on an internal market for pension funds, where that communication is not confined to explaining the Treaty provisions, applicable to pension institutions, on freedom to provide services, freedom of establishment and free movement of capital, but lays down obligations with which the Member States must comply and which cannot be regarded as inherent in those provisions, and is thus intended to have legal effects of its own, distinct from those provided for by the Treaty. In that respect, the fact that the communication has not been notified to the Member States is irrelevant.

4 In the absence, in the Treaty, of any provision conferring such a power on the Commission, and in view of the fact that, in any event, only the Council is empowered, under Articles 57(2) and 66 of the Treaty, to issue directives for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking up and pursuit of activities as self-employed persons, the Commission has no competence to adopt an act imposing on Member States obligations not provided for in the Treaty provisions on freedom to provide services, freedom of establishment and free movement of capital.

It is therefore necessary to annul Commission Communication 94/C 360/08 on an Internal Market for Pension Funds, which is not confined to clarifying the correct application of the Treaty provisions but is intended to have legal effects of its own, distinct from those already provided for by those provisions.