Background
1. By this action, the European Parliament seeks the annulment of Council Decision 94/445/EC of 11 July 1994 on inter-administration
telematic networks for statistics relating to the trading of goods between Member States (Edicom).
(2)
It takes issue with the legal basis of the decision, which was adopted under Article 235 of the Treaty. Parliament argues
that the contested measure should have been adopted on the basis of the third paragraph of Article 129d or, in the alternative,
Article 100a. The Commission, which has intervened in support of Parliament, also claims that the decision should be annulled,
but reverses its order of preference for the choice of legal basis. It advocates Article 100a and, in the alternative, the
third paragraph of Article 129d. The particular interest of this case is that this is the first time that Article 129d ─
which was added by the Maastricht Treaty and is concerned with trans-European networks ─ has been raised before the Court.
2. Before appraising the arguments put forward by the parties, it is worth mentioning the procedural events underlying the adoption
of the contested measure.The Commission's original proposal of 12 March 1993 was based on Article 100a.
(3)
The Parliament, which was consulted by the Council in accordance with the procedure laid down by Article 100a, did not raise
any objections to the choice of legal basis. Subsequently, the Council consulted Parliament anew, maintaining that the decision
should be based on Article 235 rather than Article 100a.
Since the decision consists of a set of measures and does not embody any genuine harmonizing measures, the Council explained,
there were no powers other than those provided for in Article 235. For its part, the Parliament asserted that the proper basis for the proposed decision would have been the third paragraph
of Article 129d. At that time, it is well to point out, the Maastricht Treaty containing that provision on telematic networks
had already entered into force. The Council, however, stuck to its view that the Edicom decision had to be adopted on the
basis of Article 235.
Nature of the dispute, admissibility and relevance of the pleas entered
3. It should first be stated that the proper identification of the legal basis for the contested decision obviously serves to
determine the procedure which had to be followed in the course of its adoption, from the point of view of the powers vested
in the institutions involved in the legislative process and from that of the different majority votes required in order to
approve the measure. Article 235, as we know, provides for a mere consultation procedure, whilst the third paragraph of Article
129d and Article 100a require the cooperation and the co-decision procedure, respectively, to be followed. It follows, as
the Court has consistently held,
(4)
that if it finds that the wrong legal basis was chosen, the Court will not merely declare that the decision is vitiated by
a purely formal defect but that there has been an breach of an essential procedural requirement invalidating the measure.
4. It is also beyond doubt that the Parliament has brought this action in order to safeguard its own institutional prerogatives,
namely its right to more incisive involvement in the legislative process, and hence the action is admissible under the third
paragraph of Article 173.
(5)
Applicability of Article 235
5. Having said that, we can now turn to the merits. The Edicom decision, as I have already mentioned, is based on Article 235.
As the Court has consistently held,
it follows from the very wording of Article 235 that its use as the legal basis for a measure is justified only where no other
provision of the Treaty gives the Community institutions the necessary power to adopt the measure in question.
(6)
It is therefore a residuary provision which may be relied upon only if there are no other, more specific enabling provisions.
In defending its choice of Article 235, the Council starts out from the very premiss that in this case there was no other
provision conferring Community competence other than the general, secondary provision of Article 235. The Council adds that
the preceding programmes having a similar content, CADDIA,
(7)
TEDIS,
(8)
and INSIS,
(9)
were also based on Article 235. The Council maintains that this is further confirmation that Article 235 was the proper
legal basis for the adoption of the Edicom decision.
6. I would begin by observing that the Council is mistaken in attributing decisive importance to the fact that the aforementioned
Community action programmes were adopted on the basis of Article 235 and not other Treaty provisions. In the first place,
the correct legal basis for a measure must be identified in the light of objective factors, such as the aim and content of
the measure to be adopted. The Court has consistently held this to be the case.
(10)
A previous practice on the part of the institutions in similar cases is completely irrelevant and therefore cannot create
a precedent binding on the Community institutions with regard to the determination of the correct legal basis.
(11)
It is a fact, in any event, that the CADDIA and INSIS programmes go back to a time when neither the Single European Act
nor the Maastricht Treaty, which introduced into the Community legal order Article 100a and Article 129d, respectively, had
entered into force. Consequently, those provisions could not have been relied on in order to adopt the relevant programmes
simply because they had not yet come into existence.
(12)
The Court's inquiry must therefore be conducted in conformity with the legal order as it is now in force, without being influenced
by practice, which, moreover, does not have the importance attributed to it by the Council. The criterion to be used in properly
tackling and resolving this case can be no other, to my mind, than that set out in the case-law: the aim and content of the
Edicom decision have to be taken into account in order to assess whether or not the Council was entitled to adopt that measure
on the basis of Article 235.
The Edicom decision: aim and content
7. Let us now consider the Edicom decision in the light of that criterion. One initial consideration is as follows. For present
purposes, the establishment of the internal market has complied with two fundamental requirements which are equally important
but have to be appropriately reconciled with each other: securing, by reference to the functioning of the internal market
and also the management of the common policies, an appropriate exchange of information as between undertakings, national administrative
authorities and the competent Community institutions and, on the other hand, eliminating, following the abolition of internal
frontiers, potential obstacles to free movement arising out of the formalities or requirements with which economic operators
have to comply owing to their having to collect data for statistical purposes on the size of the transactions which they carry
out in goods as between the Member States.A good number of Community measures are designed to pursue those aims.
(13)
In particular, the task of eliminating all formalities, controls and documentation for goods in circulation between Member
States has been entrusted to a system of data collection which is described as direct because it is carried out at undertakings
rather than at the frontiers.
(14)
As for the techniques for carrying out the collection of data, the Community legislature has taken as its aim that of securing,
rapidly and exhaustively, information, which is also accessible to all interested users. It is specifically because of this
that there is the need for systems which are compatible with each other and hence have to be based on the use of automatic
data processing and electronic data transmission techniques.
(15)
8. The Edicom decision fits into the context described above.
(16)
Its purpose is described in its preamble. It seeks to improve
the circulation of statistical information with a view to the creation of the European information market (fourth recital). In referring to the
future Council Decision adopting a multiannual Community programme to support the implementation of trans-European information
networks for the interchange of data between administrations (IDA), the fifth recital states that
that Decision should be supplemented by measures of an operational character, particularly in the statistical sphere. It can be inferred from the overall system of the contested decision that it aims at securing interoperability of the national
telematic networks and thereby at facilitating their convergence into a single trans-European telematic network, designed
for the purposes of the collection of data and their transmission as between administrations.
9. Having said this, we can now take a closer look at the content of the contested decision. The first paragraph of Article
1 provides for the implementation of
a set of measures, hereinafter referred to as
Edicom (Electronic Data Interchange on Commerce), (...) to facilitate the conversion of regional, national and Community systems
towards interoperable systems at European level, as a first stage, for the collection of returns on the trading of goods between
Member States from businesses, the validation and pre-processing of such returns and the dissemination of the statistics derived
therefrom. The second paragraph then goes on to provide that
these systems shall be based on distributed information systems at regional, national and Community levels, the interoperability
of which shall be guaranteed by the development and use of harmonized standards and communication procedures.In particular, Edicom, which is to be carried out under the Commission's responsibility is described by Article 3 of the decision
as comprising in particular:
─
the design, development and promotion of software for the collection, validation and transmission of statistical information,
and assistance to Member States in making that software available to businesses,
─
the design, development and promotion of software for the acceptance, validation, processing and dissemination of data, providing
assistance for, and making that software available to the regional, national and Community bodies responsible for collecting
statistical information, and where necessary the upgrading of equipment,
─
the design, development and promotion of formats for the exchange of information, on the basis of European and international
standards, and making them available,
─
the design, documentation and promotion of the methods, procedures and agreements to be used in the exchange of information,
─
making software and services suppliers aware of the requirements of national and Community statistics.
Essentially, it can be stated in the light of the aim and content of the decision that the Community intended to lay the technical
foundations for the development of telematic networks which are compatible with each other and therefore interoperable. This
was the point to be clarified. It now has to be determined whether the proper basis for the contested measure could have
been the third paragraph of Article 129d or Article 100a.
Applicability of Article 129d
10. The Parliament claims that the decision at issue should have been based on the third paragraph of Article 129d. More specifically,
in view of the teleological and substantive aspects set out above, the Parliament argues that the Edicom decision falls within
the Community powers governed by the second indent of Article 129c(1), according to which the Community
shall implement any measures that may prove necessary to ensure the interoperability of the networks (...). For its part, the Council argues that the provisions contained in Title XII, Trans-European networks, do not apply in this
case.It is scarcely necessary to point out in the first place that the Council slips into an obviously ambiguous situation when,
in order to rule out the applicability of Article 129d, it refers to and quotes verbatim the Commission's observation that
the provisions of Title XII are concerned with the creation of networks, which, the Council maintains, is not the case here.
This point is not easy to comprehend. The Commission does not dispute that the present case involves the creation of a trans-European
network; in contrast, it was seeking to point out ─ as will be considered later ─ that that network is not the principal objective
of the contested measure, but is merely a means of establishing the internal market. Consequently, the Commission was seeking
to argue in favour of the applicability of Article 100a and not, as the Council seems to have in mind, against the involvement
of a
trans-European network.The parties' position differs above all when it comes to the interpretation of Article 129c. The defendant avers that Community
competence, as set out in that provision, should be deployed in a precise, logical order as well as in chronological order.
The measures, provided for in the second indent of Article 129c(1) designed to ensure the interoperability of networks, are
specifically made dependent upon the definition of the framework programme provided for in the first indent of that provision.
Consequently, the Council claims that it did not adopt the Edicom decision on the basis of Article 129d because there had
been no prior adoption of the
guidelines which should have created the mandatory reference framework for any measure in this area.In response, the Parliament argues that the powers relating to the interoperability of networks are independent, that is to
say, not dependent upon the prior establishment of the
guidelines provided for by the first indent of Article 129c(1).For my part, I am persuaded by the Parliament's point of view. To my mind, that the measures to ensure the interoperability
of national networks are independent is clear from the wording of Article 129b, which sets out the objectives of Community
action in this sphere. Alongside its reference to the
establishment and development of trans-European networks (paragraph 1), Article 129b expressly provides for further, distinct Community action aimed at
promoting the interconnection and interoperability of national networks (paragraph 2). This shows that the Community action has a dual aim: it has to relate to the
establishment and development of new networks and to the creation of a trans-European network via the connection of existing national networks.
(17)
Since, contrary to what the Council contends, trans-European networks are none other ─ and can be none other ─ than connections
between individual national networks, both the cases contemplated by Article 129b are concerned with a
trans-European network, as envisaged by Title XII of the Treaty. Consequently, the difference between those independent, separate provisions of
Article 129b is as follows: the first refers to cases in which it is necessary to make good a lack of infrastructure, which
has to be established or developed by action which might be termed structural inasmuch as it sets out to establish the missing
networks; in contrast, the second is intended to take effect where the national networks ─ later to constitute the
trans-European network ─ already exist and it is merely a matter of inter-connecting them.What competence does Article 129c confer on the Community institutions in order to pursue these aims? It vests in the Community
two types of powers, one type relating to planning, the other being of an operational nature, which correspond to the two
cases in which action may be taken set out in paragraphs 1 and 2 of Article 129b.
(18)
Where the establishment of a
trans-European network requires action of a structural nature, competence is divided between the Member States and the Community. The Community
is called upon to establish a framework programme not only covering the objectives, priorities and broad lines of measures
envisaged, but also identifying specific projects of common interest (first indent of Article 129c(1)). Subsequently, it
will fall to the Member States to create the infrastructure necessary in order to carry out those projects and, in any event
and more generally, to pursue the aims laid down at Community level. Moreover, it can readily be appreciated, given the complexity
of the subject-matter, why the Treaty has taken account of the requirement for the establishment
ex novo of a network and the development of existing networks to have been preceded and prepared for by a framework of guidelines,
guiding criteria and projects of common interest: implementing activity on the part of the Member States has to fit into that
overall framework when it has to be coordinated and, where appropriate, also co-financed. It is provided that the Member
States must coordinate their respective implementing activities or that the Commission may,
in close cooperation with the Member State, take any useful initiative to promote such coordination (Article 129c(2)). Next, in parallel with competence in respect of planning and coordination, the Community is also empowered
to contribute towards the financing of projects of common interest identified in the framework of guidelines (third indent
of Article 129c(1)). It is above all in the latter respect that implementing action is made, of necessity, to depend on the
planning measures which have to proceed such action, since only projects of common interest, identified in the guidelines,
may qualify, according to the express provision set out in the third indent, for financial support from the Community. This
clearly shows the subordinate relationship which exists, within the system set out in Article 129c(1), between actual exercise
of the competence provided for in the third indent and the prior establishment of guidelines.The case is different, however, where national networks already exist and it is merely a question of connecting them. This
eventuality, which is that contemplated by Article 129b(2), brings to the forefront the competence expressly and precisely
based on the second indent of Article 129c(1), where it is provided that the Community is to take action in order to ensure
the interoperability of the networks, in particular in the field of technical standardization. This power ─ which is of closer concern to us ─ is therefore not designed to vest in the Community general executive competence
to implement programmes, objectives and projects of common interest established pursuant to the first indent. That competence,
it should be borne in mind, is vested in the Member States.
(19)
In contrast, the Community competence is only to
ensure the interoperability of the networks and therefore remains confined only to the different eventuality in which the national networks already exist, but have to
be made technically compatible so that they can be integrated into a single trans-European network. This is a case in which
the Community does not have to identify planning objectives using the special legislative procedure laid down to that end:
Article 129b(2) provides, directly, in advance and once for all, for Community action chiefly of a technical nature for the
interconnection of the national networks. In other words, the second indent of Article 129c(1) sets out an autonomous power
to take action, because it refers to a single, specific case, provided for in Article 129b(2), in which Community action is
directed towards, not establishing or developing missing networks ─ in which case it is necessary to set objectives and identify
projects of common interest ─ but, more narrowly, to linking up existing national networks.
(20)
11. That is not all. Even if the Council's argument that any Community action is dependent upon guidelines within the meaning
of the first indent of Article 129c(1) having first been established were accepted, it would have to be recognized that the
planning context contemplated by that provision may already ensue from earlier legislation and, more generally, from action
undertaken and already defined by the Community in the sector. It is not necessary for the framework programme to have been
specially established
ex novo where it already forms part of the
acquis communautaire and is commensurate with the aims indicated as being essential in the first indent of Article 129c(1), in so far as it sets
out sufficiently clearly
the objectives, priorities and broad lines of measures envisaged in the sphere of trans-European networks. Where those factors which I have just described are present, there will be no need further to define the framework programme
upon which, on this view, operational action on the part of the Community is dependent: if there were to be further definition,
it would give rise to a needless, unjustified delay in pursuing the objectives which are laid down as being priority objectives
and hence are to be attained without delay. In my view, the power to establish the programme ─ even considering it from the
point of view of the whole field in which it may legitimately be exercised ─ could not, however, paralyse operational action
on the part of the Community, provided that it falls within a framework of clearly predetermined guidelines and criteria.In the case in question, the guidelines had been thoroughly defined. Community action was required only with regard to the
question of the interoperability of national networks. Indeed, the legislative context of the Edicom decision, principally
that resulting from the CADDIA, INSIS and TEDIS programmes, Regulation No 3330/91 and Decisions 91/353 and 82/607, had established
the objectives, priorities and broad lines of measures envisaged in the sphere of trans-European networks,
(21)
and it did so with particular reference to telematic systems for the collection and circulation of statistical data. There
is no doubt that the rules laid down by the contested decision achieve an objective which has been clearly defined as a priority
by measures previously adopted by the Community, as emerges from their preambles. Decision 91/353 is particularly significant
in this connection, specifying as it does trans-European networks dealing with statistics in the field of telematic systems
in areas of general and priority interest. Moreover, that decision specifically acknowledges the pre-eminent requirement
for national networks to be interoperable in order to surmount
the problems due to the incompatibility of existing national systems (...) and differing procedures and methods. This fully justifies the conclusion which I reached above.
The objectives, priorities and broad lines of measures envisaged had already been set forth. All that remained was to adopt the operational measures necessary for the purposes of the interoperability
of networks.In short, whether the powers provided for in the second indent of Article 129c(1) are independent or ─ as the Council says
─ dependent upon the establishment of a framework programme, the practical outcome in this case is still as I have described
it: the Community was competent to adopt operational measures designed to ensure the interoperability of national networks
without having first defined or awaited the
guidelines prescribed by the first indent of Article 129c(1).
12. Let us consider, following the clarifications made so far, the question whether the Edicom decision may in fact be described
as a measure designed
to ensure the interoperability of the networks as is required by the second indent of Article 129c(1). The answer must be that it may be so described. The conclusion
which I believe I should commend to the Court is precisely confirmed by the very wording of the decision. Article 1, and
I quote, defines Edicom measures as being designed
to facilitate the conversion of regional, national and Community systems towards interoperable systems at European level (...). In describing, by way of examples, the possible range of Community action, Article 3 contemplates a series of varied activities
which share the common requirement of being intended to create the technical conditions in order for the individual national
networks to be able to make up the trans-European telematic network, once they have been made compatible and interoperable.
Interoperability of networks is therefore the essential objective of the contested decision. Accordingly, the third paragraph of Article 129d and the second indent of Article 129c(1) afforded the legal basis on which
the Council could and should have relied in adopting the contested decision.
Applicability of Article 100a
13. However, the above conclusions do not dispense me from having to explain why I cannot agree with the Commission and the Parliament
on the other possible legal basis for the decision, which the Commission argues for under its main head of claim and the Parliament
under its claim in the alternative, namely Article 100a of the Treaty. Article 100a confers legislative competence on the
Community with respect to
the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their
object the establishment and functioning of the internal market.The Commission's argument is that because the contested decision relates to the attainment of the internal market it should
be based on Article 100a.
(22)
In particular, albeit recognizing that the Edicom measure aims to ensure the interoperability of national telematic networks,
the Commission claims that the main aim of the measure is to guarantee the functioning of the common market: the creation
of a telematic network is simply an instrument for pursuing that overriding aim and hence, in the intervener's view, required
the priority application of Article 100a.
(23)
14. In my view, the Commission's argument should not be upheld. It would result in the ─ frankly unacceptable ─ consequence that
every case in which action by the Commission serves ─ even indirectly ─ the aims of the common market would be brought within
the ambit of Article 100a. The Court's case-law states otherwise. The mere fact that the establishment or functioning of
the internal market is affected is not sufficient for Article 100a of the Treaty to apply.
(24)
More specifically, it appears from the Court's settled case-law that recourse to Article 100a is not justified where the
measure to be adopted has only the incidental effect of harmonizing market conditions within the Community.
(25)
In other words, in order for a measure to be based on Article 100a, its
object must necessarily and specifically be the establishment and functioning of the internal market. Advocate General Tesauro
rightly drew attention in
Commission v
Council
(26)
to the fact that measures to be adopted pursuant to Article 100a must lay down rules
specifically on the conditions of competition or trade within the Community. Conversely, Article 100a is not applicable where
the measure in question, in pursuing particular aims falling within the scope of a specific Community action or policy, has
ancillary repercussions on market conditions.In the light of this it is easy to hold that the conditions laid down by the Court for the application of Article 100a are
not fulfilled in this case. The Edicom decision seeks to ensure interoperability of telematic networks for statistics relating
to the trading of goods between Member States. The effect which that decision has on the sphere covered by Article 100a is
only the indirect effect of facilitating the functioning of the internal market. The immediate object of the measure is,
however, to create the technical pre-conditions in order, as has been seen, to ensure interoperability of the national networks.
It was a matter of creating the conditions for a trans-European telematic network and nothing else; in relation to that
direct purpose of the decision, the Treaty provides for a specific Community policy and Community action, governed by a particular
legal basis. The provisions laid down therein consequently prevail over any others for the purposes considered in this case.In any event, what the Commission fails to see in these proceedings is that Article 129b, which is expressly referred to in
Article 129c, is itself directed towards the attainment of the common market. Moreover, this is the central aim of the Treaty
and is pursued by several provisions in various respects. As regards the achievement of the internal market, Article 100a
and Article 129c are teleologically convergent. Both those provisions are intended to pursue the objectives laid down by
Article 7a. There is, however, a difference in terms of content as between them. Article 129c is more specific compared
with Article 100a, inasmuch as it governs the particular aspect of economic integration which relates to the creation of trans-European
telematic networks. According to the Court's case-law, where there is a specific legal basis, it must be the sole basis of
the measure to be adopted.
(27)
This is precisely the case here. In view of its specific nature, therefore, Article 129c had to be the sole legal basis
for the adoption of the decision in question.
15. In conclusion, the decision at issue should have been adopted pursuant only to the third paragraph of Article 129d, which
is the only provision which is specifically relevant in this case. The Council was not entitled to adopt it on the basis
of Article 235. Consequently, the contested measure did not have the proper legal basis and should therefore be annulled.
Preservation of the effects of the Edicom decision
16. In its pleadings in defence, the Council asks the Court that, if the Edicom decision
(28)
is annulled, its effects should be left unimpaired. For its part, the Commission associates itself with that request, arguing
that the retroactive annulment of the contested measure would irremediably damage the operational measures which have already
been taken pursuant to the Edicom decision. More specifically, it claims that that damage would consist of the fact that
the Member States would be unable to have statistics on intra-Community trade in goods available to them through telematics.
It would therefore be necessary to revert to the collection of information using forms. Consequently, in view of the disturbance
which would follow the retroactive annulment of the contested decision and of the need to guarantee continuity in the Community
public service, the Council and the Commission ask the Court to rule that the contested decision should preserve its effects
until such time as a new decision founded on an appropriate legal basis enters into effect.
(29)
For my part, I consider that the parties' request should be granted. I consider that to annul the Edicom decision
ab initio would be seriously detrimental to the measures ─ which, moreover, are of considerable importance ─ which the Commission has
already taken and would also seriously and unjustifiably harm economic operators, the Member States and the Community itself.
I therefore propose that the Court should declare, pursuant to the second paragraph of Article 174,
(30)
that the effects of the contested decision should be regarded as definitive until such time as a new decision is adopted
pursuant to the proper legal basis.
Conclusions
In view of the foregoing, I propose that the Court should:
─
annul Council Decision 94/445/EC of 11 July 1994 on inter-administration telematic networks for statistics relating to the
trading of goods between Member States (Edicom);
─
declare that the effects of that decision are preserved until such time as a new decision is adopted pursuant to the proper
legal basis;
─
order the Council to pay the costs, with the exception of those borne by the Commission.
See, among many other cases, Case 45/86
Commission v
Council [1987] ECR 1493, paragraph 12, and Case C-62/88
Greece v
Council [1990] ECR I-1527, paragraph 10.
Council Decision 85/214/EEC of 26 March 1985 concerning the coordination of the activities of the Member States and the Commission
related to the implementation of a long-term programme for the use of telematics for Community information systems concerned
with imports/exports and the management and financial control of agricultural market organizations (OJ 1985 L 96, p. 35).
Council Decision 87/499/EEC of 5 October 1987 introducing a communications network Community programme on trade electronic
data interchange systems (TEDIS) (OJ 1987 L 285, p. 35).
Council Decision 82/869/EEC of 13 December 1982 relating to the coordination of the activities of the Member States and Community
institutions with a view to assessing the need for, and preparing proposals for setting up, a Community inter-institutional
information system (OJ 1982 L 368, p. 40).
Then again, there is no merit in the Council's objection that, in any event, Article 100 on the establishment of the common
market was in force at that time. By this argument, the Council seeks to show that the programmes in question had no teleological
link with the establishment and functioning of the common market and jumps to the conclusion that the only way to introduce
them was via Article 235. But ─ and it is scarcely necessary to point this out ─ the Council ignores the fact that the aforementioned
programmes were not adopted on the basis of Article 100 for a compelling reason concerning only the type of legislative measures
to be adopted, and certainly not their content or their aims in the context of the establishment of the common market: the
programmes required the adoption of a decision and Article 100 merely provides for the adoption of directives.
These requirements constitute the rationale of the INSIS, CADDIA and TEDIS programmes and also of Council Decision 82/607/EEC
of 28 July 1982 concerning the coordination of the actions of the Member States and the Commission related to activities preparatory
to a long-term programme for the use of telematics for Community information systems concerned with imports/exports and the
management and financial control of agricultural market organizations (OJ 1982 L 247, p. 25), Council Regulation (EEC) No
3330/91 of 7 November 1991 on the statistics relating to the trading of goods between Member States (Intrastat) (OJ 1991 L
316, p. 1), Council Regulation (EEC) No 854/93 of 5 April 1993 on transit statistics and storage statistics relating to the
trading of goods between Member States (OJ 1993 L 90, p. 1) and, lastly, the contested decision. The preambles to those measures
are eloquent in this regard.
See, in this connection, the legislation cited in footnote 12, Council Decision 87/95/EEC of 22 December 1986 on standardization
in the field of information technology and telecommunications (OJ 1987 L 36, p. 31) and Council Decision 91/353/EEC of 7 June
1991 adopting a specific programme of research and technological development in the field of telematic systems of general
interest (1990 to 1994) (OJ 1991 L 192, p. 18).
The third recital in the preamble refers expressly to Article 34 of Regulation No 3330/91, which provides that the conditions
should be created for increased use of automatic data processing and electronic data transmission for the purpose of facilitating
the task of the parties responsible for providing information.
It is only too obvious that the latter hypothesis ─ which is the one of closest concern to us in this case ─ refers to existing
national networks, which simply have to be linked up: indeed, a question relating to the interconnection of networks can
only arise in so far as networks already exist.
It should be noted that Article 129d provides for different legislative procedures for those phases: the co-decision procedure
for guidelines and the cooperation procedure for other measures provided for in Article 129c(1).
It is interesting in this connection to compare the different rules laid down by Article 130s(3) in the field of the environment.
Article 130s(3) provides that, in a first stage, the Council is to adopt
general action programmes setting out priority objectives to be attained and that, subsequently, it
shall adopt the measures necessary for the implementation of these programmes. Consequently, the programmes necessarily have to be define in advance. This is not the case here: as appears from its
express provisions, the competence provided for in the second indent of Article 129c(1) is directed towards regulating the
separate, independent question of the interoperability of the existing networks, rather than at the implementation of the
programmes contemplated by the first indent.
Indeed, in truth, the requirement to
ensure the interoperability of the networks referred to in the second indent of Article 129c(1) arises solely with regard to the interconnection of existing national
networks where it is a question of making them into a unit: where provision is made for the establishment of new networks
and the development of existing ones, it may be assumed that that requirement is adequately taken into account and fulfilled,
first when the
guidelines are established, and subsequently in the context of the coordination activity entrusted to the Commission by Article 129c(2).
In addition, the Edicom programme is among the priority projects mentioned in the Commission's communication
Towards trans-European networks for a Community action programme, document No COM(90) 585 final of 10 December 1990. Although this is not conclusive in itself, it is significant for present
purposes.
A further argument put forward by the intervener in favour of the applicability in this case of Article 100a is worth a mention
in order to refute it. It refers to Article 34 of Regulation No 3330/91 (Intrastat) adopted on the basis of Article 100a,
which empowers the Commission to
create the conditions for increased use of automatic data processing and electronic data transmission. The Commission claims that that provision authorized it to adopt, by means of measures of its own, individual operational
measures of the kind subsequently laid down in the Edicom decision. In its view, this shows that Article 100a is the provision
on which the contested decision should have been based in so far as it was used as the basis for those measures. I am not
convinced by this reasoning. Even if we suppose ─ and the point is anything but clear ─ that what is provided for in the
Edicom decision essentially corresponds to the measures authorized by Article 34 of the Intrastat regulation, the fact remains
that the executive action for which Article 100a afforded the legal basis at the time when that regulation was adopted is
now covered by specific provisions of the later Maastricht Treaty: consequently, it is those provisions which govern Community
action where the technical means used for
automatic data processing and electronic data transmission, in the words of the Intrastat regulation, consist of telematic networks. We therefore return to the specific provision
and title of the Treaty which the Council failed to utilize as it should have. Moreover, the Court itself in Case 22/88
Vreugdenhil and Another v
Minister van Landbouw en Visserij [1989] ECR 2049, paragraphs 16 and 17, laid down the principle that the Commission cannot rely upon its implementing powers
in a particular sector
where the purpose of the provision in question lies outside that sphere but within a sector subject to an exhaustive set of
rules laid down by other provisions.
The Commission itself adds, however, that the third paragraph of Article 129d rather than Article 100a should apply in the
event that the aspect relating to telematic networks prevails.
See
United Kingdom v
Council , cited in footnote 10, paragraph 14 et seq., Case C-131/87
Commission v
Council [1989] ECR 3743, paragraph 25,
Parliament v
Council , cited in footnote 4, paragraph 24 et seq. and Case C-280/93
Germany v
Council [1994] ECR I-4973, paragraph 54.
No less than 128 operational measures are involved ─ some already brought to fruition ─ which, the Commission claims, have
considerably improved the system for the exchange of information by means of telematics between Member States and between
Member States and the Commission.
At the hearing, the Parliament did not oppose the application of the second paragraph of Article 174 in this case. However,
it asks that if the Court should rule that the effects of the Edicom decision should be preserved, they should be preserved
until the date of the Court's judgment annulling the contested decision and not until the ─ subsequent ─ adoption of a new
decision based on an appropriate legal basis. In this connection, the Commission objected ─ also at the hearing ─ that the
Parliament's proposed solution would be seriously detrimental to measures already carried out and under way and would also
cause a legal vacuum to arise in this area of paramount importance.
I would observe,
in limine , that the second paragraph of Article 174 may be applied only by analogy in this case, since that provision refers expressly
and solely to regulations. However, the Court has extended its scope to acts of different kinds (see Case C-295/90
Parliament v
Council [1992] ECR I-4193, paragraphs 26 and 27; see, in particular, the Opinion of Advocate General Jacobs in that case and the
case-law referred to therein). Consequently, the fact that a decision, and not a regulation, is involved does not preclude
the application of the second paragraph of Article 174 in this case. As for the possibility of preserving all the effects
of the annulled measure until such time as another measure is adopted pursuant to the proper legal basis, see
Commission v
Council , cited in footnote 3, paragraph 23, and in particular the Opinion of Advocate General Lenz.