Case C‑540/13

European Parliament

v

Council of the European Union

‛Action for annulment — Police and judicial cooperation in criminal matters — Setting of the date on which an earlier decision is to take effect — Determination of the legal basis — Legal framework applicable following the entry into force of the Treaty of Lisbon — Transitional provisions — Secondary legal basis — Consultation of Parliament’

Summary — Judgment of the Court (Fourth Chamber), 16 April 2015

1. Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Unambiguous wording of the form of order sought by the applicant

   (Rules of Procedure of the Court of Justice, Art. 120(c))

2. Police cooperation — Judicial cooperation in criminal matters — Decision 2013/392 fixing the date of effect of Decision 2008/633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences — Legal basis — Article 18(2) of Decision 2008/633 — Repeal of Article 34 EU — No effect on the legality of Decision 2013/392

   (Art. 34 EU; Council Decisions 2008/633, Art. 18(2), and 2013/392)

3. Acts of the institutions — Procedure for adoption — Treaty rules — Mandatory nature — Whether an institution can establish secondary legal bases — No such possibility

4. Police cooperation — Judicial cooperation in criminal matters — Decision 2008/633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences — Interpretation of Article 18(2) of that decision — Interpretation in accordance with the provisions of the EU Treaty which governed, at the time that decision was adopted, the adoption of a measure such as Decision 2013/392 fixing the date of effect of Decision 2008/633 — Whether the Council is under an obligation to consult the Parliament before adopting a measure such as Decision 2013/392 — Repeal of Article 39(1) EU — No effect

   (Art. 39(1) EU; Council Decisions 2008/633, Art. 18(20), and 2013/392)

5. Police cooperation — Judicial cooperation in criminal matters Decision 2008/633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences — Article 18(2) of that decision — Whether compatible with the procedural rules applicable after the entry into force of the Treaty of Lisbon — Transitional provisions — Interpretation

   (Protocol No 36 annexed to the EU, FEU and EAEC Treaties, Art. 9; Council Decisions 2008/633, Art. 18(2), and 2013/392)

6. Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Decision 2013/392 fixing the date of effect of Decision 2008/633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences — Risk that access to that system will be hindered and the maintenance of public order jeopardised — The effects of the annulled decision to be maintained until the entry into force of a new act intended to replace it

   (Art. 264, second para., TFEU; Council Decisions 2008/633 and 2013/392)

1.  See the text of the decision.

   (see para. 9)

2.  As regards the legal basis for the adoption of Decision 2013/392 fixing the date of effect of Decision 2008/633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences, that decision does not refer to Article 34 EU and, in its recitals, it refers expressly to the FEU Treaty and to Article 18(2) of Decision 2008/633.

   It cannot therefore be concluded, having regard to the wording of Decision 2013/392, which must, in principle, if it is to satisfy the obligation to state reasons, indicate the legal basis on which the decision is founded, that the decision is based on Article 34 EU.

   In particular, the claim that Article 34(2)(c) EU constituted the only possible legal basis for the adoption of a measure such as Decision 2013/392, even if it were established, is, in that regard, irrelevant, in so far as the Council’s explicit choice to refer in Decision 2013/392, not to that provision but to the FEU Treaty and to Article 18(2) of Decision 2008/633, clearly indicates that Decision 2013/392 is based on the latter provision itself.

   It follows that the repeal of Article 34 EU by the Treaty of Lisbon does not have the effect of depriving Decision 2013/392 of a legal basis.

   (see paras 18, 19, 21, 22)

3.  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.

   That approach must be applied not only in relation to secondary legal bases for the adoption of legislative acts but also 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.

   While it is true that the Treaties provide that the Parliament and the Council lay down some of the rules relating to the exercise by the Commission of its powers of implementation, the fact nevertheless remains that the specific rules relating to the adoption of implementing measures laid down in the Treaties are binding on the institutions in the same way as the rules relating to the adoption of legislative acts and cannot therefore be negated by acts of secondary legislation.

   (see paras 32-34)

4.  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, the legality of Article 18(2) of Decision 2008/633 633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences must be assessed in the light of the provisions that governed, at the time that decision was adopted, the adoption of a measure such as Decision 2013/392 fixing the date of effect of Decision 2008/633, namely Article 34(2)(c) EU and Article 39(1) EU.

   It follows from those provisions that the Council, acting, as the case may be, unanimously or by qualified majority, and after consulting the Parliament, adopts decisions for the purposes consistent with the objectives of Title VI of the EU Treaty, other than those referred to in Article 34(2)(a) and (b) EU, and the measures necessary for the implementation of those decisions.

   None the less, the wording of secondary EU legislation must be interpreted, in so far as possible, in a manner consistent with the provisions of the Treaties.

   Accordingly, given, first, that the requirement to interpret secondary legislation in such a way that it complies 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, second, that the legality of Article 18(2) of Decision 2008/633 must be assessed in particular in the light of Article 39(1) EU, the former provision must be interpreted in a manner consistent with the latter.

   As a consequence, Article 18(2) of Decision 2008/633 must be interpreted, in accordance with Article 39(1) EU, as permitting the Council to adopt an act for the purpose of setting the date on which that decision is to take effect only after it has consulted the Parliament.

   Moreover, the repeal of Article 39(1) EU after the adoption of Article 18(2) of Decision 2008/633 cannot remove the requirement to interpret that provision in accordance with Article 39(1) EU.

   (see paras 35-40, 57)

5.  With regard to the compatibility of Article 18(2) of Decision 2008/633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences with the rules of procedure applicable after the entry into force of the Treaty of Lisbon, Protocol (No 36) 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.

   Accordingly, Article 9 of that protocol provides that the legal effects of such acts are to be preserved until those acts are repealed, annulled or amended in implementation of the Treaties.

   That article must be interpreted in the light of the first recital in the preamble to that protocol, which states that it is necessary to lay down transitional provisions in order to organise the transition from the institutional provisions of the Treaties applicable prior to the entry into force of the Treaty of Lisbon to the provisions contained in that Treaty.

   Accordingly, given that the Treaty of Lisbon substantially altered the institutional framework for police and judicial cooperation in criminal matters, Article 9 of the Protocol on Transitional Provisions must be understood as being intended, inter alia, to ensure that acts adopted in the context of that cooperation may continue to be applied effectively, notwithstanding the change to the institutional framework for such cooperation.

   If the argument were accepted that the repeal by the Treaty of Lisbon of specific procedures for the adoption of measures in the field of police and judicial cooperation in criminal matters would make it impossible to adopt such measures in accordance with the conditions laid down by general acts adopted under that cooperation before those acts had been amended so as to adapt them to the Treaty of Lisbon, that would have the effect of complicating or even preventing the effective application of such acts, thus jeopardising the attainment of the objectives pursued by the authors of the Treaty.

   Furthermore, the interpretation of Article 9 of the Protocol on Transitional Provisions advocated by the Parliament, to the effect that that article merely implies that acts in the field of police and judicial cooperation in criminal matters are not automatically repealed following the entry into force of the Treaty of Lisbon, would deprive that article of any practical effect.

   As a consequence, 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 other measures continues to produce its legal effects until it is repealed, annulled or amended, and permits the adoption of such measures in accordance with the procedure established by that provision.

   In those circumstances, the fact that Article 18(2) of Decision 2008/633 might lay down detailed rules for the adoption of a measure such as Decision 2013/392 fixing the date of effect of Decision 2008/633 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 regarded as inapplicable by way of exception.

   (see paras 41-48)

6.  Under the second paragraph of Article 264 TFEU, the Court may, if it considers it necessary to do so, state which of the effects of an act which it has declared void are to be considered definitive.

   To declare Decision 2013/392 fixing the date of effect of Decision 2008/633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences void without providing that its effects are to be maintained is liable to hinder access to that system and thus jeopardise the maintenance of public order.

   It is therefore necessary to maintain the effects of Decision 2013/392 until the entry into force of a new act intended to replace it.

   (see paras 62-64)

Case C‑540/13

European Parliament

v

Council of the European Union

‛Action for annulment — Police and judicial cooperation in criminal matters — Setting of the date on which an earlier decision is to take effect — Determination of the legal basis — Legal framework applicable following the entry into force of the Treaty of Lisbon — Transitional provisions — Secondary legal basis — Consultation of Parliament’

Summary — Judgment of the Court (Fourth Chamber), 16 April 2015

1. Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Unambiguous wording of the form of order sought by the applicant

   (Rules of Procedure of the Court of Justice, Art. 120(c))

2. Police cooperation — Judicial cooperation in criminal matters — Decision 2013/392 fixing the date of effect of Decision 2008/633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences — Legal basis — Article 18(2) of Decision 2008/633 — Repeal of Article 34 EU — No effect on the legality of Decision 2013/392

   (Art. 34 EU; Council Decisions 2008/633, Art. 18(2), and 2013/392)

3. Acts of the institutions — Procedure for adoption — Treaty rules — Mandatory nature — Whether an institution can establish secondary legal bases — No such possibility

4. Police cooperation — Judicial cooperation in criminal matters — Decision 2008/633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences — Interpretation of Article 18(2) of that decision — Interpretation in accordance with the provisions of the EU Treaty which governed, at the time that decision was adopted, the adoption of a measure such as Decision 2013/392 fixing the date of effect of Decision 2008/633 — Whether the Council is under an obligation to consult the Parliament before adopting a measure such as Decision 2013/392 — Repeal of Article 39(1) EU — No effect

   (Art. 39(1) EU; Council Decisions 2008/633, Art. 18(20), and 2013/392)

5. Police cooperation — Judicial cooperation in criminal matters Decision 2008/633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences — Article 18(2) of that decision — Whether compatible with the procedural rules applicable after the entry into force of the Treaty of Lisbon — Transitional provisions — Interpretation

   (Protocol No 36 annexed to the EU, FEU and EAEC Treaties, Art. 9; Council Decisions 2008/633, Art. 18(2), and 2013/392)

6. Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Decision 2013/392 fixing the date of effect of Decision 2008/633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences — Risk that access to that system will be hindered and the maintenance of public order jeopardised — The effects of the annulled decision to be maintained until the entry into force of a new act intended to replace it

   (Art. 264, second para., TFEU; Council Decisions 2008/633 and 2013/392)

1.  See the text of the decision.

   (see para. 9)

2.  As regards the legal basis for the adoption of Decision 2013/392 fixing the date of effect of Decision 2008/633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences, that decision does not refer to Article 34 EU and, in its recitals, it refers expressly to the FEU Treaty and to Article 18(2) of Decision 2008/633.

   It cannot therefore be concluded, having regard to the wording of Decision 2013/392, which must, in principle, if it is to satisfy the obligation to state reasons, indicate the legal basis on which the decision is founded, that the decision is based on Article 34 EU.

   In particular, the claim that Article 34(2)(c) EU constituted the only possible legal basis for the adoption of a measure such as Decision 2013/392, even if it were established, is, in that regard, irrelevant, in so far as the Council’s explicit choice to refer in Decision 2013/392, not to that provision but to the FEU Treaty and to Article 18(2) of Decision 2008/633, clearly indicates that Decision 2013/392 is based on the latter provision itself.

   It follows that the repeal of Article 34 EU by the Treaty of Lisbon does not have the effect of depriving Decision 2013/392 of a legal basis.

   (see paras 18, 19, 21, 22)

3.  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.

   That approach must be applied not only in relation to secondary legal bases for the adoption of legislative acts but also 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.

   While it is true that the Treaties provide that the Parliament and the Council lay down some of the rules relating to the exercise by the Commission of its powers of implementation, the fact nevertheless remains that the specific rules relating to the adoption of implementing measures laid down in the Treaties are binding on the institutions in the same way as the rules relating to the adoption of legislative acts and cannot therefore be negated by acts of secondary legislation.

   (see paras 32-34)

4.  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, the legality of Article 18(2) of Decision 2008/633 633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences must be assessed in the light of the provisions that governed, at the time that decision was adopted, the adoption of a measure such as Decision 2013/392 fixing the date of effect of Decision 2008/633, namely Article 34(2)(c) EU and Article 39(1) EU.

   It follows from those provisions that the Council, acting, as the case may be, unanimously or by qualified majority, and after consulting the Parliament, adopts decisions for the purposes consistent with the objectives of Title VI of the EU Treaty, other than those referred to in Article 34(2)(a) and (b) EU, and the measures necessary for the implementation of those decisions.

   None the less, the wording of secondary EU legislation must be interpreted, in so far as possible, in a manner consistent with the provisions of the Treaties.

   Accordingly, given, first, that the requirement to interpret secondary legislation in such a way that it complies 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, second, that the legality of Article 18(2) of Decision 2008/633 must be assessed in particular in the light of Article 39(1) EU, the former provision must be interpreted in a manner consistent with the latter.

   As a consequence, Article 18(2) of Decision 2008/633 must be interpreted, in accordance with Article 39(1) EU, as permitting the Council to adopt an act for the purpose of setting the date on which that decision is to take effect only after it has consulted the Parliament.

   Moreover, the repeal of Article 39(1) EU after the adoption of Article 18(2) of Decision 2008/633 cannot remove the requirement to interpret that provision in accordance with Article 39(1) EU.

   (see paras 35-40, 57)

5.  With regard to the compatibility of Article 18(2) of Decision 2008/633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences with the rules of procedure applicable after the entry into force of the Treaty of Lisbon, Protocol (No 36) 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.

   Accordingly, Article 9 of that protocol provides that the legal effects of such acts are to be preserved until those acts are repealed, annulled or amended in implementation of the Treaties.

   That article must be interpreted in the light of the first recital in the preamble to that protocol, which states that it is necessary to lay down transitional provisions in order to organise the transition from the institutional provisions of the Treaties applicable prior to the entry into force of the Treaty of Lisbon to the provisions contained in that Treaty.

   Accordingly, given that the Treaty of Lisbon substantially altered the institutional framework for police and judicial cooperation in criminal matters, Article 9 of the Protocol on Transitional Provisions must be understood as being intended, inter alia, to ensure that acts adopted in the context of that cooperation may continue to be applied effectively, notwithstanding the change to the institutional framework for such cooperation.

   If the argument were accepted that the repeal by the Treaty of Lisbon of specific procedures for the adoption of measures in the field of police and judicial cooperation in criminal matters would make it impossible to adopt such measures in accordance with the conditions laid down by general acts adopted under that cooperation before those acts had been amended so as to adapt them to the Treaty of Lisbon, that would have the effect of complicating or even preventing the effective application of such acts, thus jeopardising the attainment of the objectives pursued by the authors of the Treaty.

   Furthermore, the interpretation of Article 9 of the Protocol on Transitional Provisions advocated by the Parliament, to the effect that that article merely implies that acts in the field of police and judicial cooperation in criminal matters are not automatically repealed following the entry into force of the Treaty of Lisbon, would deprive that article of any practical effect.

   As a consequence, 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 other measures continues to produce its legal effects until it is repealed, annulled or amended, and permits the adoption of such measures in accordance with the procedure established by that provision.

   In those circumstances, the fact that Article 18(2) of Decision 2008/633 might lay down detailed rules for the adoption of a measure such as Decision 2013/392 fixing the date of effect of Decision 2008/633 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 regarded as inapplicable by way of exception.

   (see paras 41-48)

6.  Under the second paragraph of Article 264 TFEU, the Court may, if it considers it necessary to do so, state which of the effects of an act which it has declared void are to be considered definitive.

   To declare Decision 2013/392 fixing the date of effect of Decision 2008/633 concerning access for consultation of the Visa Information System by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences void without providing that its effects are to be maintained is liable to hinder access to that system and thus jeopardise the maintenance of public order.

   It is therefore necessary to maintain the effects of Decision 2013/392 until the entry into force of a new act intended to replace it.

   (see paras 62-64)