Keywords
Summary

Keywords

1. Actions for annulment — Commission's right to bring proceedings — Position taken by the Commission at the time the contested measure was adopted — Not relevant — (Art. 230 EC)

2. Actions for annulment — Pleas in law — Absence or inadequacy of reasons stated — Plea distinct from that relating to substantive legality — (Art. 230 EC)

3. Acts of the institutions — Regulations — Basic regulations and implementing regulations — Implementing powers conferred by the Council — Principles and rules for the exercise of implementing powers laid down in the second comitology decision — Non-binding nature of the criteria relating to the choice of procedures under the decision — (Art. 202 EC; Council Decision 1999/468, Art. 2)

4. Acts of the institutions — Statement of reasons — Obligation — Scope — Measure departing from an indicative rule of conduct — (Art. 253 EC; Council Decision 1999/468, Art. 2)

5. Acts of the institutions — Statement of reasons — Obligation — Scope — (Art. 253 EC)

Summary

1. Article 230 EC gives the Commission the right to bring an action for annulment in order to challenge the legality of any measure adopted jointly by the Parliament and the Council, without making the exercise of that right conditional on the position taken by the Commission at the time when the measure in question was adopted.

see para. 28

2. In the context of an action for annulment, the absence of reasons or inadequacy of the reasons stated goes to an issue of infringement of essential procedural requirements within the meaning of Article 230 EC, and constitutes a plea distinct from that relating to the substantive legality of the contested measure, which goes to infringement of a rule of law relating to the application of the Treaty within the meaning of that article.

see para. 34

3. As a measure of secondary legislation, Decision 1999/468 laying down the procedures for the exercise of implementing powers conferred on the Commission (the second comitology decision) cannot add to the rules of the Treaty.

None the less, it follows from the third indent of Article 202 EC, on the basis of which the second comitology decision was adopted, that the Council is empowered to lay down principles and rules with which the manner of exercising the implementing powers conferred on the Commission must comply. Those principles and those rules must therefore be observed when measures conferring implementing powers on the Commission are adopted, both for measures adopted by the Council alone and measures adopted by the Council together with the Parliament under the co-decision procedure. Under those principles and rules, the Council is empowered to lay down the methods for choosing between the various procedures to which the Commission's exercise of the implementing powers conferred on it may be subject, since it is specified that the Council may define binding criteria or limit itself to defining criteria for guidance.

From its wording and from the fifth recital in the preamble to the decision it follows that Article 2 of the decision cited above lays down mere criteria for guidance, which is also confirmed by a joint declaration of the Council and the Commission at the time the decision was adopted.

see paras 39-47

4. Even though an act adopted by a Community institution does not lay down a rule of law which that institution is bound to observe but merely lays down a rule of conduct indicating the practice to be followed, that institution may not depart from it without giving the reasons which have led it to do so.

That is true in the case of Article 2 of Decision 1999/468 laying down the procedures for the exercise of implementing powers conferred on the Commission (the second comitology decision), in the light of the purpose of that provision. Therefore, when the Community legislature departs, in the choice of committee procedure, from the criteria which are laid down in Article 2 of that decision, it must state the reasons for that choice. According to the fifth recital in the preamble to the decision, the criteria for the choice of committee procedure were defined with a view to achieving greater consistency and predictability in the choice of type of committee. Such an objective would be jeopardised if the Community legislature could, when adopting a basic instrument conferring implementing powers on the Commission, depart from the criteria defined in the second comitology decision without having to state the reasons which led it to do so.

see paras 51-55

5. The statement of reasons for a Community measure must appear in that measure and must be adopted by the author of the measure, so that in the present case a declaration adopted by the Council alone cannot in any event serve as a statement of reasons for a regulation adopted jointly by the Parliament and the Council, such as Regulation No 1655/2000 concerning the Financial Instrument for the Environment (LIFE).

see para. 66