61981J0230

1 . APPLICATION FOR ANNULMENT OF A MEASURE - MEASURES OF THE EUROPEAN PARLIAMENT - MEASURE RELATING SIMULTANEOUSLY AND INDIVISIBLY TO THE SPHERES OF THE THREE TREATIES - REMEDIES AVAILABLE AGAINST SUCH A MEASURE - LEGAL BASIS

( ECSC TREATY , ART . 38 , FIRST PARAGRAPH )

2.APPLICATION FOR ANNULMENT OF A MEASURE - MEASURES OF THE EUROPEAN PARLIAMENT - APPLICATION BY A MEMBER STATE BASED ON ARTICLE 38 OF THE ECSC TREATY - CONDITIONS OF ADMISSIBILITY

( ECSC TREATY , ART . 38 , FIRST PARAGRAPH )

3.EUROPEAN COMMUNITIES - SEAT OF THE INSTITUTIONS - DETERMINATION - POWER OF THE MEMBER STATES - EXERCISE - OBLIGATION

( ECSC TREATY , ART . 77 ; EEC TREATY , ART . 216 ; EAEC TREATY , ART . 189 )

4.EUROPEAN COMMUNITIES - SEAT OF THE INSTITUTIONS - DETERMINATION - POWER OF THE MEMBER STATES - POWER OF THE EUROPEAN PARLIAMENT TO DETERMINE ITS INTERNAL ORGANIZATION - CONDITIONS FOR EXERCISE - RECIPROCAL OBLIGATION TO RESPECT THE POWERS OF THE OTHER - SCOPE

( ECSC TREATY , ART . 25 ; EEC TREATY , ARTS 5 AND 142 ; EAEC TREATY , ART . 112 ; MERGER TREATY , ART . 37 )

5.EUROPEAN COMMUNITIES - SEAT OF THE INSTITUTIONS - DETERMINATION - POWER OF THE MEMBER STATES - NO EFFECT UPON THE POWER OF DISCUSSION OF THE EUROPEAN PARLIAMENT

( ECSC TREATY , ART . 25 ; EEC TREATY , ARTS 5 AND 142 ; EAEC TREATY , ART . 112 ; MERGER TREATY , ART . 37 )

6.EUROPEAN COMMUNITIES - EUROPEAN PARLIAMENT - LOCATION OF PLENARY SESSIONS - DETERMINATION - MANIFESTATION OF INTENTION BY THE MEMBER STATES - PRACTICE INTRODUCED BY THE EUROPEAN PARLIAMENT OF ITS OWN MOTION - EFFECT

( ECSC TREATY , ART . 25 ; EEC TREATY , ARTS 5 AND 142 ; EAEC TREATY , ART . 112 ; MERGER TREATY , ART . 37 ; DECISION OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES OF 8 APRIL 1965 , ART . 1 )

7.EUROPEAN COMMUNITIES - SEAT OF THE INSTITUTIONS - MAINTENANCE BY THE EUROPEAN PARLIAMENT OF THE INFRASTRUCTURE ESSENTIAL FOR ITS VARIOUS PLACES OF WORK - CONDITIONS

( ECSC TREATY , ART . 25 ; EEC TREATY , ARTS 5 AND 142 ; EAEC TREATY , ART . 112 ; MERGER TREATY , ART . 37 ; DECISION OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES OF 8 APRIL 1965 , ART . 4 )

1 . SINCE THE EUROPEAN PARLIAMENT IS AN INSTITUTION COMMON TO THE THREE COMMUNITIES IT NECESSARILY ACTS IN THE FIELD OF THE THREE TREATIES INCLUDING THAT OF THE ECSC TREATY WHEN IT ADOPTS A RESOLUTION RELATING TO ITS OPERATION AS AN INSTITUTION AND THE ORGANIZATION OF ITS SECRETARIAT . IT FOLLOWS THAT THE JURISDICTION OF THE COURT AND THE PROCEEDINGS PROVIDED FOR BY THE FIRST PARAGRAPH OF ARTICLE 38 OF THE ECSC TREATY ARE APPLICABLE TO MEASURES SUCH AS THE CONTESTED RESOLUTION WHICH RELATE SIMULTANEOUSLY AND INDIVISIBLY TO THE SPHERES OF THE THREE TREATIES .

2.THE FIRST PARAGRAPH OF ARTICLE 38 OF THE ECSC TREATY WHICH PROVIDES THAT THE COURT MAY DECLARE AN ACT OF THE ASSEMBLY OR OF THE COUNCIL VOID ' ' ON APPLICATION BY A MEMBER STATE OR THE HIGH AUTHORITY ' ' DOES NOT SUBJECT THE EXERCISE OF THE RIGHT OF ACTION BY A MEMBER STATE OR THE HIGH AUTHORITY TO ANY ADDITIONAL CONDITION INVOLVING PROOF OF AN INTEREST OR CAPACITY TO BRING PROCEEDINGS .

IT FOLLOWS THAT THE RIGHT OF ACTION GIVEN BY THAT PROVISION IS AVAILABLE TO EACH OF THE MEMBER STATES INDIVIDUALLY AND THE ADMISSIBILITY OF AN ACTION BROUGHT PURSUANT TO THAT ARTICLE CANNOT DEPEND ON THE PARTICIPATION OF OTHER MEMBER STATES OR THE COMMISSION IN THE PROCEEDINGS BEFORE THE COURT .

3.ACCORDING TO ARTICLE 77 OF THE ECSC TREATY AND ALSO ARTICLE 216 OF THE EEC TREATY AND ARTICLE 189 OF THE EAEC TREATY IT IS FOR THE GOVERNMENTS OF THE MEMBER STATES TO DETERMINE THE SEAT OF THE INSTITUTIONS . IN GIVING THE MEMBER STATES THAT POWER THOSE PROVISIONS MAKE THEM RESPONSIBLE FOR SUPPLEMENTING IN THAT RESPECT THE SYSTEM OF INSTITUTIONAL PROVISIONS PROVIDED FOR BY THE TREATIES IN ORDER THUS TO ENSURE THE WORKING OF THE COMMUNITIES . IT FOLLOWS THAT THE MEMBER STATES HAVE NOT ONLY THE RIGHT BUT ALSO THE DUTY TO EXERCISE THAT POWER .

4.WHEN THE GOVERNMENTS OF THE MEMBER STATES MAKE DECISIONS FIXING THE PROVISIONAL PLACES OF WORK OF THE INSTITUTIONS THEY MUST , IN ACCORDANCE WITH THE RULE IMPOSING ON MEMBER STATES AND THE COMMUNITY INSTITUTIONS MUTUAL DUTIES OF SINCERE COOPERATION , AS EMBODIED IN PARTICULAR IN ARTICLE 5 OF THE EEC TREATY , HAVE REGARD TO THE POWER OF THE EUROPEAN PARLIAMENT TO DETERMINE ITS INTERNAL ORGANIZATION AND ENSURE THAT SUCH DECISIONS DO NOT IMPEDE THE DUE FUNCTIONING OF THE PARLIAMENT .

FURTHERMORE , WHILST THE PARLIAMENT IS AUTHORIZED , PURSUANT TO THE POWER TO DETERMINE ITS OWN INTERNAL ORGANIZATION GIVEN TO IT BY ARTICLE 25 OF THE ECSC TREATY , ARTICLE 142 OF THE EEC TREATY AND ARTICLE 112 OF THE EAEC TREATY , TO ADOPT APPROPRIATE MEASURES TO ENSURE THE DUE FUNCTIONING AND CONDUCT OF ITS PROCEEDINGS , THE DECISIONS OF THE PARLIAMENT IN TURN MUST , IN ACCORDANCE WITH THE SAME MUTUAL DUTIES OF SINCERE COOPERATION , HAVE REGARD TO THE POWER OF THE GOVERNMENTS OF THE MEMBER STATES TO DETERMINE THE SEAT OF THE INSTITUTIONS AND TO THE PROVISIONAL DECISIONS TAKEN IN THE MEANTIME .

5.THE POWER OF THE GOVERNMENTS OF THE MEMBER STATES TO DETERMINE THE SEAT OF THE INSTITUTIONS DOES NOT AFFECT THE RIGHT INHERENT IN THE EUROPEAN PARLIAMENT TO DISCUSS ANY QUESTION CONCERNING THE COMMUNITIES , TO ADOPT RESOLUTIONS ON SUCH QUESTIONS AND TO INVITE THE GOVERNMENTS TO ACT .

THE PARLIAMENT CANNOT BE CONSIDERED TO HAVE EXCEEDED ITS POWERS SOLELY BECAUSE IT HAS ADOPTED A RESOLUTION ' ' ON THE SEAT OF THE INSTITUTIONS OF THE EUROPEAN COMMUNITY AND IN PARTICULAR OF THE EUROPEAN PARLIAMENT ' ' , DEALING WITH THE QUESTION OF ITS PLACE OF WORK .

6.ARTICLE 1 OF THE DECISION ON THE PROVISIONAL LOCATION OF CERTAIN INSTITUTIONS AND DEPARTMENTS OF THE COMMUNITIES AND THE DECLARATIONS ADOPTED BY THE MINISTERS FOR FOREIGN AFFAIRS ON THE ENTRY INTO FORCE OF THE TREATIES CLEARLY SHOWED THE INTENTION OF THE GOVERNMENTS OF THE MEMBER STATES THAT THE ' ' ASSEMBLY WILL MEET IN STRASBOURG ' ' .

THE PRACTICE SUBSEQUENTLY ADOPTED BY THE PARLIAMENT OF ITS OWN MOTION , WITHOUT THE EXPRESS OR IMPLIED APPROVAL OF THE MEMBER STATES , OF HOLDING UP TO HALF ITS PLENARY SESSIONS IN LUXEMBOURG CANNOT BE REGARDED AS HAVING CREATED A CUSTOM SUPPLEMENTING THE DECISIONS OF THE MEMBER STATES IN THE MATTER AND REQUIRING THE PARLIAMENT TO HOLD SOME OF ITS PLENARY SESSIONS IN LUXEMBOURG .

THE DECLARATION MADE BY THE GOVERNMENTS OF THE MEMBER STATES AT THE END OF THE CONFERENCE ON THE SEAT OF THE INSTITUTIONS WHICH WAS HELD IN 1981 TO THE EFFECT THAT THE STATUS QUO SHOULD BE MAINTAINED CAN BE UNDERSTOOD ONLY AS AN EXPRESSION OF THE INTENTION NOT TO CHANGE THE PREVIOUS LEGAL POSITION AND THEREFORE DOES NOT PREVENT THE PARLIAMENT FROM ABANDONING A PRACTICE WHICH IT HAD BEGUN OF ITS OWN MOTION .

7.IN THE ABSENCE OF A SEAT OR EVEN A SINGLE PLACE OF WORK , THE PARLIAMENT MUST BE IN A POSITION TO MAINTAIN IN THE VARIOUS PLACES OF WORK OUTSIDE THE PLACE WHERE ITS SECRETARIAT IS ESTABLISHED THE INFRASTRUCTURE ESSENTIAL FOR ENSURING THAT IT MAY FULFIL IN ALL THOSE PLACES THE TASKS WHICH ARE ENTRUSTED TO IT BY THE TREATIES .

NEVERTHELESS ANY DECISION TO TRANSFER THE GENERAL SECRETARIAT OF THE PARLIAMENT OR THE OTHER DEPARTMENTS , WHOLLY OR PARTIALLY , DE JURE OR DE FACTO , WOULD CONSTITUTE A BREACH OF ARTICLE 4 OF THE DECISION ON THE PROVISIONAL LOCATION OF CERTAIN INSTITUTIONS AND DEPARTMENTS OF THE COMMUNITIES AND OF THE ASSURANCES WHICH THAT DECISION WAS INTENDED TO GIVE TO THE GRAND DUCHY OF LUXEMBOURG PURSUANT TO ARTICLE 37 OF THE TREATY ESTABLISHING A SINGLE COUNCIL AND SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES .

IN CASE 230/81

GRAND DUCHY OF LUXEMBOURG , REPRESENTED BY ITS AGENT , JOSEPH WEILAND , DIRECTOR OF INTERNATIONAL ECONOMIC RELATIONS AT THE MINISTRY OF FOREIGN AFFAIRS , ASSISTED BY ANDRE ELVINGER OF THE LUXEMBOURG BAR , JEAN BOULOIS , PROFESSOR AT THE UNIVERSITY OF LAW , ECONOMICS AND SOCIAL SCIENCES , PARIS , AND FRANCIS JACOBS OF THE MIDDLE TEMPLE , BARRISTER , WITH AN ADDRESS FOR SERVICE AT THE CHAMBERS OF ANDRE ELVINGER ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY ITS SECRETARY GENERAL , HANS-JOACHIM OPITZ , FRANCESCO PASETTI-BOMBARDELLA , DIRECTOR GENERAL , AND ITS LEGAL ADVISOR , ROLAND BIEBER , ACTING AS AGENTS , ASSISTED BY ALESSANDRO MIGLIAZZA , PROFESSOR AT THE UNIVERSITY OF MILAN , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF THE SECRETARY GENERAL OF THE EUROPEAN PARLIAMENT , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE RESOLUTION OF THE EUROPEAN PARLIAMENT OF 7 JULY 1981 ON THE SEAT OF THE INSTITUTIONS OF THE EUROPEAN COMMUNITY AND IN PARTICULAR THAT OF THE EUROPEAN PARLIAMENT ( OFFICIAL JOURNAL , C 234 , P . 22 ), IS VOID ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 7 AUGUST 1981 THE GRAND DUCHY OF LUXEMBOURG BROUGHT AN ACTION UNDER ARTICLE 38 OF THE ECSC TREATY , AND IN THE ALTERNATIVE ARTICLE 173 OF THE EEC TREATY AND ARTICLE 146 OF THE EAEC TREATY , FOR A DECLARATION THAT THE RESOLUTION OF THE EUROPEAN PARLIAMENT OF 7 JUNE 1981 ON THE SEAT OF THE INSTITUTIONS OF THE EUROPEAN COMMUNITY AND IN PARTICULAR THE EUROPEAN PARLIAMENT ( OFFICIAL JOURNAL , C 234 , P . 22 , OF 14 SEPTEMBER 1981 ) WAS VOID .

2 ACCORDING TO ARTICLE 77 OF THE ECSC TREATY , ARTICLE 216 OF THE EEC TREATY AND ARTICLE 189 OF THE EAEC TREATY THE SEAT OF THE INSTITUTIONS OF THE COMMUNITY IS TO BE DETERMINED BY COMMON ACCORD OF THE MEMBER STATES . THE LATTER HOWEVER HAVE TAKEN NO DECISION DETERMINING THE SEAT OF THE EUROPEAN PARLIAMENT AND THE OTHER INSTITUTIONS AND HAVE CONFINED THEMSELVES TO DETERMINING PROVISIONAL PLACES OF WORK .

3 FOLLOWING THE DECISION TAKEN BY THE MINISTERS FOR FOREIGN AFFAIRS OF THE MEMBER STATES ON 25 JULY 1952 WHEN THE ECSC TREATY ENTERED INTO FORCE THE HIGH AUTHORITY AND THE COURT OF JUSTICE BEGAN THEIR WORK IN LUXEMBOURG AND THE ASSEMBLY BEGAN TO HOLD ITS PLENARY SESSIONS IN STRASBOURG . ITS SECRETARIAT WAS HOWEVER ESTABLISHED IN LUXEMBOURG WHERE THE COUNCIL OF THE EUROPEAN COAL AND STEEL COMMUNITY ALSO MET AND HAD ITS OFFICES , AS DID THE HIGH AUTHORITY . WHEN THE MINISTERS FOR FOREIGN AFFAIRS MET ON 7 JANUARY 1958 ON THE ENTRY INTO FORCE OF THE EEC AND EAEC TREATIES THEY AGREED TO ASSEMBLE IN ONE AND THE SAME PLACE ALL THE EUROPEAN ORGANIZATIONS OF THE SIX COUNTRIES AS SOON AS SUCH CONCENTRATION BECAME PRACTICABLE AND IN ACCORDANCE WITH THE PROVISIONS OF THE TREATIES AND THEN DECIDED INTER ALIA THAT THE ASSEMBLY SHOULD MEET IN STRASBOURG . WHEN THE COUNCILS AND COMMISSIONS PROVIDED FOR BY THE TREATIES WERE ESTABLISHED IN BRUSSELS , THE COMMITTEES AND POLITICAL GROUPS OF THE EUROPEAN PARLIAMENT BEGAN THE PRACTICE OF HOLDING A LARGE NUMBER OF THEIR MEETINGS THERE .

4 THE TREATY ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES OF 8 APRIL 1965 , WHICH ENTERED INTO FORCE ON 1 JULY 1967 , RESULTED IN A REORGANIZATION OF THE OFFICES OF THOSE INSTITUTIONS AND THUS A TRANSFER OF STAFF FROM THE HIGH AUTHORITY OF THE ECSC TO BRUSSELS . ARTICLE 37 THEREOF PROVIDED THAT WITHOUT PREJUDICE TO THE APPLICATION OF ARTICLE 77 OF THE ECSC TREATY , ARTICLE 216 OF THE EEC TREATY AND ARTICLE 189 OF THE EAEC TREATY , THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES SHOULD ' ' LAY DOWN THE PROVISIONS REQUIRED IN ORDER TO SETTLE CERTAIN PROBLEMS PECULIAR TO THE GRAND DUCHY OF LUXEMBOURG WHICH ARISE OUT OF THE CREATION OF A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES . ' '

5 ON THE BASIS OF THAT ARTICLE THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES ADOPTED ON THE SIGNING OF THE AFORESAID TREATY THE DECISION ON THE PROVISIONAL LOCATION OF CERTAIN INSTITUTIONS AND DEPARTMENTS OF THE COMMUNITIES ( OFFICIAL JOURNAL , 152 , 1967 , P . 18 ), WHICH ENTERED INTO FORCE ON THE SAME DATE AS THE TREATY OF 8 APRIL 1965 . ARTICLE 1 OF THE DECISION PROVIDES THAT

' ' LUXEMBOURG , BRUSSELS AND STRASBOURG SHALL REMAIN THE PROVISIONAL PLACES OF WORK OF THE INSTITUTION OF THE COMMUNITIES . ' '

THE DECISION PROVIDED FOR THE HOLDING IN LUXEMBOURG OF CERTAIN MEETINGS OF THE COUNCIL AND THE ESTABLISHMENT IN LUXEMBOURG OF CERTAIN COMMUNITY INSTITUTIONS , BODIES AND DEPARTMENTS . AS REGARDS THE EUROPEAN PARLIAMENT ARTICLE 4 PROVIDES THAT

' ' THE GENERAL SECRETARIAT OF THE ASSEMBLY AND ITS DEPARTMENTS SHALL REMAIN IN LUXEMBOURG . ' '

ARTICLE 12 STIPULATES :

' ' SUBJECT TO THE PRECEDING PROVISIONS , THIS DECISION SHALL NOT AFFECT THE PROVISIONAL PLACES OF WORK OF THE INSTITUTIONS AND DEPARTMENTS OF THE EUROPEAN COMMUNITIES , AS DETERMINED BY THE PREVIOUS DECISIONS OF THE GOVERNMENTS . ' '

6 FROM JULY 1967 THE PARLIAMENT ESTABLISHED THE PRACTICE OF HOLDING SOME OF THE PART-SESSIONS OF THE PARLIAMENT IN LUXEMBOURG AND THE NUMBER OF DAYS OF THE SITTINGS OF THE PARLIAMENT IN LUXEMBOURG AMOUNTED EVEN TO SOME HALF OF THE TOTAL NUMBER OF DAYS OF SITTINGS FOR 1975 TO 1978 . AT THE REQUEST OF THE PARLIAMENT PREMISES AND FACILITIES NECESSARY FOR HOLDING PLENARY SITTINGS AND MEETINGS OF COMMITTEES AND POLITICAL GROUPS WERE PROVIDED IN THE BUILDINGS CONSTRUCTED FOR THE PARLIAMENT BY THE LUXEMBOURG AUTHORITIES . IN 1971 , 1973 AND 1978 THE FRENCH GOVERNMENT PROTESTED TO THE PARLIAMENT ABOUT THE PRACTICE OF HOLDING PART-SESSIONS IN LUXEMBOURG .

7 FOLLOWING THE SIGNING OF THE ACT CONCERNING THE ELECTION OF THE REPRESENTATIVES OF THE ASSEMBLY BY DIRECT UNIVERSAL SUFFRAGE THE PRESIDENT OF THE PARLIAMENT INFORMED THE PRESIDENT OF THE COUNCIL BY LETTER DATED 6 JULY 1977 OF THE OPERATIONAL PROBLEMS WITH WHICH THE EXISTENCE OF THREE PLACES OF WORK CONFRONTED THE PARLIAMENT IN THE LIGHT OF ITS ELECTION BY UNIVERSAL SUFFRAGE AND THE INCREASE IN THE NUMBER OF ITS MEMBERS . IN HIS ANSWER OF 22 SEPTEMBER 1977 THE PRESIDENT OF THE COUNCIL INFORMED THE PARLIAMENT THAT THE GOVERNMENTS OF THE MEMBER STATES CONSIDERED THAT THERE WAS NO CAUSE FOR ALTERING EITHER IN LAW OR IN PRACTICE THE PROVISIONS THEN IN FORCE REGARDING THE PROVISIONAL PLACES OF WORK OF THE ASSEMBLY , NAMELY STRASBOURG AND LUXEMBOURG , WHERE ITS SECRETARIAT GENERAL AND OFFICES WERE ESTABLISHED , THE PARLIAMENTARY COMMITTEES BEING ACCUSTOMED TO MEET IN BRUSSELS WITH THE MINIMUM OF INFRASTRUCTURE NECESSARY TO ENSURE THE WORKING OF SUCH MEETINGS .

8 AFTER ITS ELECTION BY DIRECT UNIVERSAL SUFFRAGE THE PARLIAMENT HELD ITS FIRST PART-SESSIONS BETWEEN JULY 1979 AND JUNE 1980 IN STRASBOURG . AFTER COMPLETION OF A NEW LARGE HEMICYCLE IN LUXEMBOURG , BUILT AT THE REQUEST OF THE PARLIAMENT , FOUR PART-SESSIONS WERE HELD IN LUXEMBOURG BETWEEN JUNE 1980 AND FEBRUARY 1981 .

9 ON 20 NOVEMBER 1980 THE PARLIAMENT ADOPTED A RESOLUTION STATING THAT IT WAS CONCERNED WITH THE PHYSICAL CONDITIONS AND FINANCIAL COST OF ITS OPERATIONS AND ANXIOUS THAT AN END SHOULD BE PUT TO THE PROVISIONAL ARRANGEMENTS FOR ITS PLACES OF WORK ; THE PARLIAMENT THEREFORE REQUESTED THE GOVERNMENTS OF THE MEMBER STATES TO TAKE A DECISION REGARDING ITS SEAT BY 15 JUNE 1981 AT THE LATEST AND STATED THAT IN DEFAULT THEREOF THE PARLIAMENT WOULD HAVE NO OTHER CHOICE BUT TO MAKE THE NECESSARY PROVISIONS ITSELF TO IMPROVE ITS CONDITIONS OF WORK .

10 ON 12 JANUARY 1981 THE PLENARY ASSEMBLY OF THE PARLIAMENT REJECTED THE CALENDAR OF PART-SESSIONS DRAWN UP BY ITS BUREAU ON THE GROUND THAT THE CALENDAR PROVIDED FOR TWO PART-SESSIONS IN LUXEMBOURG DURING THE FIRST SIX MONTHS . IT DECIDED TO SUBMIT THE CALENDAR OF PART-SESSIONS FOR 1981 TO A VOTE OF THE PLENARY ASSEMBLY AND TO HOLD THE JULY PART-SESSION IN STRASBOURG . PURSUANT TO THAT RESOLUTION A PROPOSAL FOR THE CALENDAR AND PLACES OF SESSION FOR 1981 INVOLVING PART-SESSIONS EXCLUSIVELY IN STRASBOURG DURING THE SECOND HALF OF 1981 WAS SUBMITTED TO THE PARLIAMENT AND APPROVED BY IT ON 13 MARCH 1981 .

11 FOLLOWING A MEMORANDUM FROM THE FRENCH GOVERNMENT WHICH EMPHASIZED THE DIFFICULTIES ENCOUNTERED BY THE ASSEMBLY IN CARRYING OUT ITS DUTIES ENTRUSTED TO IT BY THE TREATIES BY REASON OF THE DISPERSAL OF THE PLACES OF WORK IN WHICH IT OPERATED THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES MET AT THE END OF 1980 AND THE BEGINNING OF 1981 FOR A CONFERENCE ON THE SEAT OF THE INSTITUTIONS OF THE COMMUNITY . THAT CONFERENCE FOUND THAT THERE WERE STILL DIVERGENCES OF VIEW AND THAT OF THE VARIOUS IMPERFECT SOLUTIONS THE MOST SATISFACTORY WAS THE STATUS QUO , THAT IS TO SAY THE DESIGNATION OF A NUMBER OF PROVISIONAL PLACES OF WORK . ON 23 AND 24 MARCH 1981 THE HEADS OF STATE AND OF GOVERNMENT OF THE MEMBER STATES MET AS THE EUROPEAN COUNCIL IN MAASTRICHT AND UNANIMOUSLY DECIDED TO CONFIRM THE STATUS QUO IN REGARD TO THE PROVISIONAL PLACES OF WORK OF THE EUROPEAN INSTITUTIONS . THE CONFERENCE ON THE SEAT OF THE INSTITUTIONS TOOK NOTE OF THAT DECISION AND ENDED ON 30 JUNE 1981 BY REAFFIRMING THE POSITION OF THE GOVERNMENTS OF THE MEMBER STATES TO THE EFFECT THAT THE DETERMINATION OF THE SEAT OF THE INSTITUTIONS WAS THEIR EXCLUSIVE RESPONSIBILITY . IT MOREOVER OBSERVED THAT THE DECISION TAKEN IN MAASTRICHT WAS AN EXERCISE OF THAT RESPONSIBILITY AND DID NOT PREJUDGE DETERMINATION OF THE SEAT OF THE INSTITUTIONS .

12 ON 7 JULY 1981 THE PARLIAMENT ADOPTED THE CONTESTED RESOLUTION . IN THAT RESOLUTION IT STATES IN PARTICULAR THAT IT DOES NOT CALL IN QUESTION THE RIGHTS OR DUTIES OF THE GOVERNMENTS OF THE MEMBER STATES IN THIS REGARD , THAT THE DIFFICULTIES RESULTING FROM THE DISPERSAL OF ITS PLACES OF WORK IN THREE DIFFERENT TOWNS MAKE IT ESSENTIAL TO CONCENTRATE ITS WORK IN ONE PLACE AND THAT DISREGARD BY THE GOVERNMENTS OF THE MEMBER STATES OF THE TIME-LIMIT OF 15 JUNE 1981 REQUIRES IT TO IMPROVE ITS OWN WORKING CONDITIONS . AFTER ASSERTING ITS RIGHT ' ' TO MEET AND WORK WHERE IT CHOOSES ' ' THE PARLIAMENT CALLS , IN THE RESOLUTION , ON THE GOVERNMENTS OF THE MEMBER STATES TO COMPLY WITH THEIR OBLIGATION UNDER THE TREATIES IN FIXING A SINGLE SEAT FOR THE INSTITUTIONS , EXPRESSES THE BELIEF THAT IT IS ESSENTIAL TO CONCENTRATE ITS WORK IN ONE PLACE AND

' ' . . .

3 . DECIDES , PENDING A FINAL DECISION ON A SINGLE MEETING PLACE OF THE EUROPEAN PARLIAMENT ,

( A ) TO HOLD ITS PART-SESSIONS IN STRASBOURG ,

( B)TO ORGANIZE THE MEETINGS OF ITS COMMITTEES AND POLITICAL GROUPS AS A GENERAL RULE IN BRUSSELS ,

( C)THAT THE OPERATION OF THE SECRETARIAT AND TECHNICAL SERVICES OF PARLIAMENT MUST BE REVIEWED TO MEET THE REQUIREMENTS SET OUT IN ( A ) AND ( B ) ABOVE , PARTICULARLY WITH A VIEW TO AVOIDING THE NEED FOR A SUBSTANTIAL NUMBER OF STAFF OF PARLIAMENT TO TRAVEL CONSTANTLY ,

THAT , WITH THAT END IN VIEW , THE FULLEST POSSIBLE USE SHOULD BE MADE OF THE LATEST MEANS OF TELECOMMUNICATION BOTH FOR PERSONAL CONTACTS AND FOR DOCUMENT TRANSMISSION ,

THAT THE MOST ADVANCED TECHNIQUES MUST ALSO BE USED TO FACILITATE COOPERATION BETWEEN THE INSTITUTIONS , WHILE ROAD , RAIL AND AIR LINKS BETWEEN THE MAIN CENTRES OF ACTIVITY OF THE COMMUNITY MUST BE IMPROVED ,

THAT UNDER THE GUIDANCE OF THE PRESIDENT AND ENLARGED BUREAU , THE APPROPRIATE BODIES OF PARLIAMENT SHALL DETERMINE THE MEASURES TO BE TAKEN AND EVALUATE THEIR COSTS ; BEFORE THE END OF THE YEAR , THEY SHALL PRESENT TO PARLIAMENT A REPORT ACCOMPANIED BY APPROPRIATE PROPOSALS ' ' .

ADMISSIBILITY

13 THE PARLIAMENT HAS PUT FORWARD SEVERAL OBJECTIONS OF INADMISSIBILITY AGAINST THE ACTION BROUGHT BY THE GRAND DUCHY OF LUXEMBOURG FOR A DECLARATION THAT THE RESOLUTION IS VOID AND THOSE OBJECTIONS MUST BE CONSIDERED FIRST .

1 . RIGHT OF ACTION IN RESPECT OF MEASURES OF THE PARLIAMENT

14 IN THE PARLIAMENT ' S VIEW THE ACTION IS INADMISSIBLE BECAUSE NEITHER ARTICLE 38 OF THE ECSC TREATY NOR ARTICLE 173 OF THE EEC TREATY OR ARTICLE 136 OF THE EAEC TREATY GIVES A RIGHT OF ACTION IN RESPECT OF THE MEASURES OF THE PARLIAMENT IN THE PRESENT CASE . AS REGARDS ARTICLE 38 OF THE ECSC TREATY THAT IS SO BECAUSE IN ADOPTING THE CONTESTED RESOLUTION THE PARLIAMENT MADE A SINGLE AND INDIVISIBLE USE OF ITS POWERS UNDER THE THREE TREATIES SO THAT THE RESOLUTION CANNOT BE DECLARED VOID SOLELY IN RESPECT OF THE ECSC TREATY . THE PARLIAMENT MOREOVER REFERRED TO THE PRINCIPLE OF THE SEPARATION OF POWERS AND EMPHASIZED THAT THE CONTESTED RESOLUTION WAS BASED ON THE SOVEREIGN POWER OF THE PARLIAMENT TO ORGANIZE THE WAY IN WHICH IT PERFORMS ITS TASKS .

15 IN THE VIEW OF THE LUXEMBOURG GOVERNMENT RECOURSE TO ARTICLE 38 OF THE ECSC TREATY IS EXCLUDED ONLY IN RELATION TO MEASURES RELATING SPECIFICALLY AND EXCLUSIVELY TO A FIELD WITHIN THE EEC OR EAEC TREATIES . FURTHER ARTICLE 173 OF THE EEC TREATY AND ARTICLE 136 OF THE EAEC TREATY ON WHICH THE APPLICATION IS BASED IN THE ALTERNATIVE SHOULD BE GIVEN A WIDE INTERPRETATION IN THE LIGHT OF THE INCREASED POWERS OF THE PARLIAMENT IN ORDER TO AVOID LACUNAE IN THE LEGAL PROTECTION PROVIDED BY THE COURT .

16 THE FIRST PARAGRAPH OF ARTICLE 38 OF THE ECSC TREATY PROVIDES THAT ' ' THE COURT MAY , ON APPLICATION BY A MEMBER STATE OR THE HIGH AUTHORITY , DECLARE AN ACT OF THE ASSEMBLY OR OF THE COUNCIL TO BE VOID . ' ' THE POWER OF A MEMBER STATE TO BRING AN ACTION BEFORE THE COURT AGAINST MEASURES OF THE PARLIAMENT RELATING TO THAT TREATY IS NOT THEREFORE OPEN TO DOUBT . NEVERTHELESS THAT POWER IS RESTRICTED BY THE THIRD PARAGRAPH OF ARTICLE 38 OF THE ECSC TREATY TO GROUNDS BASED ON LACK OF COMPETENCE OR INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT .

17 THE FIRST PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY AND THE FIRST PARAGRAPH OF ARTICLE 146 OF THE EAEC TREATY PROVIDE THAT THE COURT ' ' SHALL REVIEW THE LEGALITY OF ACTS OF THE COUNCIL AND THE COMMISSION ' ' AND FOR THAT PURPOSE IT HAS JURISDICTION IN ACTIONS ' ' BROUGHT BY A MEMBER STATE , THE COUNCIL OR THE COMMISSION ' ' . THERE IS NO EXPRESS PROVISION IN THOSE ARTICLES FOR ACTIVE OR PASSIVE PARTICIPATION OF THE PARLIAMENT IN THE PROCEEDINGS BEFORE THE COURT .

18 PURSUANT TO THE CONVENTION ON CERTAIN INSTITUTIONS COMMON TO THE EUROPEAN COMMUNITIES OF 25 MARCH 1957 THE POWERS AND JURISDICTION WHICH THE THREE TREATIES CONFER UPON THE PARLIAMENT AND THE COURT ARE TO BE EXERCISED ' ' IN ACCORDANCE WITH THOSE TREATIES ' ' . THE DIFFERENCES EXISTING IN THAT RESPECT IN THE VARIOUS TREATIES HAVE THUS NOT BEEN ERASED BY THE CREATION OF THOSE COMMON INSTITUTIONS .

19 SINCE THE SINGLE PARLIAMENT IS AN INSTITUTION COMMON TO THE THREE COMMUNITIES IT NECESSARILY ACTS IN THE FIELD OF THE THREE TREATIES INCLUDING THAT OF THE ECSC TREATY WHEN IT ADOPTS A RESOLUTION RELATING TO ITS OPERATION AS AN INSTITUTION AND THE ORGANIZATION OF ITS SECRETARIAT . IT FOLLOWS THAT THE JURISDICTION OF THE COURT AND THE PROCEEDINGS PROVIDED BY THE FIRST PARAGRAPH OF ARTICLE 38 OF THE TREATY ARE APPLICABLE TO MEASURES SUCH AS THE CONTESTED RESOLUTION WHICH RELATE SIMULTANEOUSLY AND INDIVISIBLY TO THE SPHERES OF THE THREE TREATIES .

20 SINCE THE FIRST PARAGRAPH OF ARTICLE 38 OF THE ECSC TREATY APPLIES IN THE PRESENT CASE , THERE IS NO NEED TO CONSIDER THE QUESTION WHETHER THE PRINCIPLES APPERTAINING TO OBSERVANCE OF THE LAW AND REVIEW IN THAT RESPECT BY THE COURT AS EMBODIED IN ARTICLE 164 OF THE EEC TREATY AND ARTICLE 136 OF THE EAEC TREATY REQUIRE THAT ARTICLE 173 OF THE EEC TREATY AND ARTICLE 146 OF THE EAEC TREATY BE INTERPRETED AS MEANING THAT THE PARLIAMENT MAY BE A PARTY TO PROCEEDINGS BEFORE THE COURT .

21 THAT OBJECTION MUST THEREFORE BE DISMISSED .

2 . THE CAPACITY OF THE GRAND DUCHY OF LUXEMBOURG TO BRING AN ACTION

22 THE PARLIAMENT HAS CONTENDED THAT THE ACTION IS INADMISSIBLE BECAUSE IT HAS BEEN BROUGHT BY A SINGLE MEMBER STATE WHEREAS THE RIGHT TO DETERMINE THE SEAT BELONGS TO ALL THE GOVERNMENTS OF THE MEMBER STATES ACTING BY COMMON ACCORD . SUCH AN ACTION MUST , IT CLAIMS , BE BROUGHT BY ALL THE MEMBER STATES OR , IN DEFAULT , BY THE COMMISSION . MOREOVER THE BRINGING OF AN ACTION IS BARRED BY THE PRINCIPLE OF ESTOPPEL INASMUCH AS THE FAILURE OF THE MEMBER STATES , INCLUDING LUXEMBOURG , TO DO EVERYTHING NECESSARY TO REACH AGREEMENT ON THE SEAT OF THE PARLIAMENT PREVENTS LUXEMBOURG FROM HAVING RECOURSE TO LEGAL PROCEEDINGS .

23 THE LUXEMBOURG GOVERNMENT EMPHASIZES THAT ACCORDING TO ARTICLE 38 OF THE ECSC TREATY THE MEMBER STATES DO NOT HAVE TO ADDUCE ANY EVIDENCE OF THEIR CAPACITY OR THEIR INTEREST IN BRINGING PROCEEDINGS . IN ANY EVENT EACH MEMBER STATE IS ENTITLED TO BRING PROCEEDINGS AND THUS ENTITLED INDIVIDUALLY TO BRING PROCEEDINGS BEFORE THE COURT . THE DOCTRINE OF ESTOPPEL IN INTERNATIONAL LAW IS NOT APPLICABLE IN COMMUNITY LAW . FURTHER THE LUXEMBOURG GOVERNMENT CANNOT BE HELD RESPONSIBLE FOR ANY FAILURE ON THE PART OF THE GOVERNMENTS OF THE MEMBER STATES SINCE THE INCONCLUSIVENESS OF THE DISCUSSIONS IN WHICH IT HAS ACTIVELY TAKEN PART IS NOT ATTRIBUTABLE TO IT .

24 IT MUST BE EMPHASIZED THAT THE FIRST PARAGRAPH OF ARTICLE 38 OF THE ECSC TREATY PROVIDES THAT THE COURT MAY DECLARE AN ACT OF THE ASSEMBLY OR OF THE COUNCIL VOID ' ' ON APPLICATION BY A MEMBER STATE OR THE HIGH AUTHORITY ' ' . IN CONTRAST TO THE PROVISIONS GIVING UNDERTAKINGS AND ASSOCIATIONS LEGAL REMEDIES SUCH AS THE SECOND PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY , THE EXERCISE OF THE RIGHT OF ACTION BY A MEMBER STATE OR THE HIGH AUTHORITY IS NOT SUBJECT TO ANY ADDITIONAL CONDITION INVOLVING PROOF OF AN INTEREST OR CAPACITY TO BRING PROCEEDINGS .

25 IT FOLLOWS THAT THE RIGHT OF ACTION GIVEN BY THE FIRST PARAGRAPH OF ARTICLE 38 IS AVAILABLE TO EACH OF THE MEMBER STATES INDIVIDUALLY AND THE ADMISSIBILITY OF AN ACTION BROUGHT PURSUANT TO THAT ARTICLE CANNOT DEPEND ON THE PARTICIPATION OF OTHER MEMBER STATES OR THE COMMISSION IN THE PROCEEDINGS BEFORE THE COURT .

26 ANY FAILURE OF THE MEMBER STATES AS A WHOLE TO USE THEIR POWERS CANNOT THEREFORE EXCLUDE THE ADMISSIBILITY OF AN ACTION CLAIMING THAT THE PARLIAMENT HAS USURPED THOSE POWERS . MOREOVER WHERE QUESTIONS CONCERNING THE INSTITUTIONAL STRUCTURE OF THE COMMUNITY ARE INVOLVED THE ADMISSIBILITY OF AN ACTION BY A MEMBER STATE CANNOT DEPEND ON ANY PRIOR OMISSIONS OR ERRORS ON THE PART OF THE GOVERNMENTS OF THE MEMBER STATES .

27 THAT OBJECTION MUST THEREFORE ALSO BE DISMISSED .

3 . THE LEGAL NATURE OF THE CONTESTED RESOLUTION

28 ACCORDING TO THE PARLIAMENT THE CONTESTED RESOLUTION IS NOT AN ACT WITHIN THE MEANING OF ARTICLE 38 OF THE ECSC TREATY BECAUSE IT CONCERNS ONLY ITS INTERNAL ORGANIZATION AND THAT OF ITS DEPARTMENTS AND THEREFORE HAS NO LEGAL EFFECT . IT IS ALLEGED TO BE A MEASURE ARISING FROM THE PARLIAMENT ' S POWER TO DETERMINE ITS OWN INTERNAL ORGANIZATION , WHICH MOREOVER KEEPS COMPLETELY WITHIN THE LIMITS OUTLINED BY THE DECISIONS OF THE GOVERNMENTS OF THE MEMBER STATES .

29 IN THE VIEW OF THE LUXEMBOURG GOVERNMENT THE PARLIAMENT INTENDED BY THE CONTESTED RESOLUTION TO SUBSTITUTE ITS OWN ACTION FOR THAT OF THE GOVERNMENTS OF THE MEMBER STATES IN RELATION TO THE SEAT . IT MOREOVER DENIES THAT MEASURES RELATING TO INTERNAL ORGANIZATION THEREBY ESCAPE REVIEW BY THE COURT .

30 IN THAT RESPECT IT MUST BE OBSERVED THAT A DETERMINATION OF THE LEGAL EFFECT OF THE CONTESTED RESOLUTION IS INSEPARABLY ASSOCIATED WITH CONSIDERATION OF ITS CONTENT AND OBSERVANCE OF THE RULES ON COMPETENCE . IT IS THEREFORE NECESSARY TO PROCEED TO CONSIDERATION OF THE SUBSTANCE OF THE CASE .

SUBSTANCE

31 IN SUPPORT OF ITS ACTION THE LUXEMBOURG GOVERNMENT PUTS FORWARD , IN ACCORDANCE WITH ARTICLE 38 OF THE ECSC TREATY , TWO SUBMISSIONS BASED ON LACK OF COMPETENCE AND INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS .

1 . LACK OF COMPETENCE

32 THE LUXEMBOURG GOVERNMENT OBSERVES IN THE FIRST PLACE THAT THE PARLIAMENT HAS NO POWER TO TAKE DECISIONS IN RELATION TO THE SEAT OF THE INSTITUTION SINCE THAT MATTER IS RESERVED TO THE MEMBER STATES . BY REASON BOTH OF ITS TITLE AND OF ITS CONTENT THE CONTESTED RESOLUTION RELATES TO THE SEAT OF THE PARLIAMENT , A MATTER WHICH LIES COMPLETELY OUTSIDE THE POWERS OF THE PARLIAMENT INDEPENDENTLY OF THE EXISTENCE AND CONTENT OF DECISIONS OF THE MEMBER STATES IN THE MATTER . MOREOVER THE CONTESTED RESOLUTION INFRINGES THE DECISIONS ADOPTED BY THE GOVERNMENTS , IN EXERCISE OF THE POWERS RESERVED TO THEM , IN RELATION TO THE PROVISIONAL PLACES OF WORK OF THE INSTITUTIONS . IN ABANDONING THE ESTABLISHED PRACTICE OF HOLDING PART-SESSIONS IN LUXEMBOURG THE PARLIAMENT INFRINGED THE DECISION CONFIRMING THE STATUS QUO TAKEN BY THE HEADS OF STATE AND OF GOVERNMENT OF THE MEMBER STATES AT MAASTRICHT ON 23 AND 24 MARCH 1981 AND AT THE CONFERENCE ON THE SEAT OF THE INSTITUTIONS OF THE COMMUNITY ON 30 JUNE 1981 . IN PROVIDING FOR A CHANGE IN THE OPERATION OF THE SECRETARIAT AND THE DEPARTMENTS OF THE PARLIAMENT ON THE BASIS OF PART-SESSIONS IN STRASBOURG AND MEETINGS OF THE COMMITTEES AND POLITICAL GROUPS IN BRUSSELS THE PARLIAMENT INFRINGED ARTICLE 4 OF THE DECISION OF 8 APRIL 1965 .

33 THE PARLIAMENT CONTENDS THAT THE GOVERNMENTS OF THE MEMBER STATES HAVE MADE NO USE OF THEIR POWER TO FIX THE SEAT AND THERE CAN THEREFORE BE NO USURPATION OF THAT POWER . IN ANY EVENT THE CONTESTED RESOLUTION CONSTITUTES ON THE ONE HAND A REQUEST OF A POLITICAL NATURE ADDRESSED TO THE GOVERNMENTS OF THE MEMBER STATES RECOMMENDING THEM TO ADOPT CERTAIN MEASURES IN RELATION TO THE SEAT AND ON THE OTHER HAND A MEASURE OF ORGANIZATION OF ITS INTERNAL ADMINISTRATION ADOPTED IN CONFORMITY WITH ARTICLE 142 OF THE EEC TREATY , ARTICLE 112 OF THE EAEC TREATY AND ARTICLE 25 OF THE ECSC TREATY . THAT MEASURE OF INTERNAL ORGANIZATION RESPECTS THE DECISIONS OF THE GOVERNMENTS OF THE MEMBER STATES ON THE PROVISIONAL PLACES OF WORK AND IN PARTICULAR , AS REGARDS PLENARY SESSIONS , THE DECLARATIONS OF THE MINISTERS FOR FOREIGN AFFAIRS OF 25 JULY 1952 AND 7 JANUARY 1958 . THE HOLDING OF THE MEETINGS OF COMMITTEES AND POLITICAL GROUPS IN BRUSSELS FOLLOWS A PRACTICE ESTABLISHED IN AN AREA WHICH IS NOT GOVERNED BY ANY PROVISIONS IN WRITING . IN THE CONTESTED RESOLUTION THE PARLIAMENT TOOK NO DECISION ON THE LOCATION OF THE GENERAL SECRETARIAT AND DEALT ONLY WITH THE PROPER FUNCTIONING OF THE INSTITUTION AND THE USE OF CERTAIN MODERN TECHNOLOGY . MOREOVER THIS QUESTION DOES NOT CONCERN THE SEAT OF THE INSTITUTION BUT THE INTERNAL ORGANIZATION OF THE PARLIAMENT IN RESPECT OF WHICH THE PARLIAMENT IS ENTITLED AND EVEN REQUIRED TO ADOPT MEASURES IN ACCORD WITH GOOD ADMINISTRATION .

( A ) COMPETENCE IN RELATION TO THE SEAT AND PLACES OF WORK

34 IN ORDER TO GIVE A DECISION ON THIS ISSUE IT IS NECESSARY FIRST OF ALL TO CONSIDER THE RESPECTIVE POWERS OF THE GOVERNMENTS OF THE MEMBER STATES AND THE PARLIAMENT ON THE SUBJECT .

35 IN THAT RESPECT IT IS NECESSARY TO OBSERVE THAT ACCORDING TO ARTICLE 77 OF THE ECSC TREATY AND ALSO OF ARTICLE 216 OF THE EEC TREATY AND ARTICLE 189 OF THE EAEC TREATY IT IS FOR THE GOVERNMENTS OF THE MEMBER STATES TO DETERMINE THE SEAT OF THE INSTITUTIONS . IN GIVING THE MEMBER STATES POWER TO DETERMINE THE SEAT THOSE PROVISIONS MAKE THEM RESPONSIBLE FOR SUPPLEMENTING IN THAT RESPECT THE SYSTEM OF INSTITUTIONAL PROVISIONS PROVIDED FOR BY THE TREATIES IN ORDER THUS TO ENSURE THE WORKING OF THE COMMUNITIES . IT FOLLOWS THAT THE MEMBER STATES HAVE NOT ONLY THE RIGHT BUT ALSO THE DUTY TO EXERCISE THAT POWER .

36 IT IS COMMON GROUND THAT THE GOVERNMENTS OF THE MEMBER STATES HAVE NOT YET DISCHARGED THEIR OBLIGATION TO DETERMINE THE SEAT OF THE INSTITUTIONS IN ACCORDANCE WITH THE PROVISIONS OF THE TREATIES . NEVERTHELESS , AS IS APPARENT FROM THE ABOVE-MENTIONED FACTS , THE GOVERNMENTS OF THE MEMBER STATES HAVE AT DIFFERENT TIMES TAKEN DECISIONS FIXING THE PROVISIONAL PLACES OF WORK OF THE INSTITUTIONS ON THE BASIS OF THAT SAME POWER AND , AS REGARDS THE DECISION OF 8 APRIL 1965 , ON THE BASIS OF THE POWER EXPRESSLY PROVIDED FOR IN THE AFORESAID ARTICLE 37 OF THE TREATY ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES .

37 IT MUST NEVERTHELESS BE EMPHASIZED THAT WHEN THE GOVERNMENTS OF THE MEMBER STATES MAKE PROVISIONAL DECISIONS THEY MUST IN ACCORDANCE WITH THE RULE IMPOSING ON MEMBER STATES AND THE COMMUNITY INSTITUTIONS MUTUAL DUTIES OF SINCERE COOPERATION , AS EMBODIED IN PARTICULAR IN ARTICLE 5 OF THE EEC TREATY , HAVE REGARD TO THE POWER OF THE PARLIAMENT TO DETERMINE ITS INTERNAL ORGANIZATION . THEY MUST ENSURE THAT SUCH DECISIONS DO NOT IMPEDE THE DUE FUNCTIONING OF THE PARLIAMENT .

38 FURTHERMORE THE PARLIAMENT IS AUTHORIZED , PURSUANT TO THE POWER TO DETERMINE ITS OWN INTERNAL ORGANIZATION GIVEN TO IT BY ARTICLE 25 OF THE ECSC TREATY , ARTICLE 142 OF THE EEC TREATY AND ARTICLE 112 OF THE EAEC TREATY , TO ADOPT APPROPRIATE MEASURES TO ENSURE THE DUE FUNCTIONING AND CONDUCT OF ITS PROCEEDINGS . HOWEVER , IN ACCORDANCE WITH THE ABOVE-MENTIONED MUTUAL DUTIES OF SINCERE COOPERATION , THE DECISIONS OF THE PARLIAMENT IN TURN MUST HAVE REGARD TO THE POWER OF THE GOVERNMENTS OF THE MEMBER STATES TO DETERMINE THE SEAT OF THE INSTITUTIONS AND TO THE PROVISIONAL DECISIONS TAKEN IN THE MEANTIME .

39 WHAT IS MORE , IT MUST BE EMPHASIZED THAT THE POWERS OF THE GOVERNMENTS OF THE MEMBER STATES IN THE MATTER DO NOT AFFECT THE RIGHT INHERENT IN THE PARLIAMENT TO DISCUSS ANY QUESTION CONCERNING THE COMMUNITIES , TO ADOPT RESOLUTIONS ON SUCH QUESTIONS AND TO INVITE THE GOVERNMENTS TO ACT .

40 IT FOLLOWS THAT THE PARLIAMENT CANNOT BE CONSIDERED TO HAVE EXCEEDED ITS POWERS SOLELY BECAUSE IT HAS ADOPTED A RESOLUTION ' ' ON THE SEAT OF THE INSTITUTIONS OF THE EUROPEAN COMMUNITY AND IN PARTICULAR OF THE EUROPEAN PARLIAMENT ' ' AND DEALING WITH THE QUESTION OF THE PLACE OF WORK . IN ORDER TO DETERMINE WHETHER THE PARLIAMENT HAS ACTED ULTRA VIRES IN ADOPTING THE CONTESTED RESOLUTION THE CONTENT THEREOF , QUA DECISIONS , MUST BE EXAMINED AND IN PARTICULAR ITS THIRD PARAGRAPH IN THE LIGHT OF THE ABOVE-MENTIONED DUTY TO HAVE REGARD TO THE RESPECTIVE POWERS OF THE MEMBER STATES OR THE PARLIAMENT IN THE MATTER .

( B ) PLENARY SITTINGS

41 IN THE FIRST PLACE THE CONTESTED RESOLUTION DECIDES IN PARAGRAPH 3 ( A ) THAT PENDING A FINAL DECISION ON A SINGLE MEETING PLACE OF THE EUROPEAN PARLIAMENT PART-SESSIONS WILL BE HELD IN STRASBOURG .

42 IN THAT RESPECT IT MUST BE OBSERVED THAT ALTHOUGH THE HOLDING OF SESSIONS OF THE PARLIAMENT IS NOT EXPRESSLY MENTIONED IN THE DECISION OF 8 APRIL 1965 , ARTICLE 1 THEREOF STATES THAT ' ' LUXEMBOURG , BRUSSELS AND STRASBOURG SHALL REMAIN THE PROVISIONAL PLACES OF WORK OF THE INSTITUTIONS OF THE COMMUNITY ' ' . AT THE TIME THE HOLDING OF THE PLENARY SITTINGS OF THE PARLIAMENT WAS THE ONLY ACTIVITY OF THE COMMUNITY INSTITUTIONS WHICH REGULARLY TOOK PLACE IN STRASBOURG . THE DECLARATIONS ADOPTED BY THE MINISTERS FOR FOREIGN AFFAIRS ON THE ENTRY INTO FORCE BOTH OF THE ECSC TREATY AND THE EEC AND EAEC TREATIES HAD ALREADY CLEARLY SHOWN THE INTENTION OF THE GOVERNMENTS OF THE MEMBER STATES THAT THE ' ' ASSEMBLY WILL MEET IN STRASBOURG ' ' .

43 IT IS TRUE THAT AS FROM 1967 THE PARLIAMENT ADOPTED THE PRACTICE OF HOLDING UP TO HALF ITS PLENARY SITTINGS IN LUXEMBOURG . IT IS ON THAT PRACTICE AND THE DECISION TAKEN IN 1981 TO MAINTAIN THE STATUS QUO THAT THE LUXEMBOURG GOVERNMENT RELIES IN CLAIMING THAT THE DECISION TO HOLD ALL THE PLENARY SITTINGS IN STRASBOURG IS CONTRARY TO THE DECISIONS OF THE GOVERNMENTS OF THE MEMBER STATES IN THE MATTER .

44 IT IS APPROPRIATE NEVERTHELESS TO OBSERVE THAT THE PRACTICE HAD BEEN DECIDED UPON BY THE PARLIAMENT OF ITS OWN MOTION AND HAD NEVER BEEN APPROVED EITHER EXPRESSLY OR BY IMPLICATION BY THE MEMBER STATES . ON THE CONTRARY THE FRENCH GOVERNMENT SEVERAL TIMES DENIED THAT THE PRACTICE WAS COMPATIBLE WITH THE DECISIONS OF THE MEMBER STATES AND REQUESTED THAT IT BE CHANGED . THE LUXEMBOURG GOVERNMENT IS THEREFORE WRONG IN ALLEGING THAT THE PRACTICE HAD CREATED A CUSTOM IN ITS FAVOUR SUPPLEMENTING THE DECISIONS OF THE MEMBER STATES IN THE MATTER AND REQUIRING THE PARLIAMENT TO HOLD PART OF ITS PLENARY SITTINGS IN LUXEMBOURG .

45 THAT ASSESSMENT IS NOT AFFECTED BY THE CONCLUSIONS OF THE CONFERENCE ON THE SEAT OF THE INSTITUTIONS WHICH TOOK PLACE IN 1981 . IN VIEW OF THE DIFFERENCES EXISTING WITH REGARD TO ITS CONCLUSIONS AND THE ABSENCE OF ANY ALTERATION IN THE DECISIONS TAKEN PREVIOUSLY , THE DECLARATION TO MAINTAIN THE STATUS QUO WITH WHICH THE CONFERENCE ENDED CAN BE UNDERSTOOD ONLY AS AN EXPRESSION OF THE INTENTION NOT TO CHANGE THE PREVIOUS LEGAL POSITION . THAT DECLARATION DOES NOT THEREFORE PREVENT THE PARLIAMENT FROM ABANDONING A PRACTICE WHICH IT HAD BEGUN OF ITS OWN MOTION .

46 IT FOLLOWS THAT THE DECISION OF THE PARLIAMENT TO HOLD IN FUTURE ALL PLENARY SITTINGS IN STRASBOURG IS NOT CONTRARY TO THE DECISIONS OF THE GOVERNMENTS OF THE MEMBER STATES IN THE MATTER AND IS NOT BEYOND THE POWERS OF THE PARLIAMENT .

( C ) THE HOLDING OF MEETINGS OF COMMITTEES AND POLITICAL GROUPS IN BRUSSELS

47 IN THE SECOND PLACE THE DISPUTED RESOLUTION RECORDS IN PARAGRAPH 3 ( B ) THE DECISION TO ORGANIZE THE MEETINGS OF COMMITTEES AND POLITICAL GROUPS OF THE PARLIAMENT AS A GENERAL RULE IN BRUSSELS .

48 IN THAT RESPECT IT MUST BE OBSERVED THAT THE PRACTICE OF THE PARLIAMENT , DEVELOPED IN THE EXERCISE OF ITS INDEPENDENT POWERS , TO HOLD MEETINGS OF ITS COMMITTEES AND POLITICAL GROUPS IN BRUSSELS HAS NEVER BEEN CALLED IN QUESTION BY ANY MEMBER STATE .

49 IN THOSE CIRCUMSTANCES IT IS APPROPRIATE TO DECLARE THAT THE PARLIAMENT IN CONFIRMING THAT PRACTICE IN PARAGRAPH 3 ( B ) OF THE CONTESTED RESOLUTION HAS NOT EXCEEDED ITS POWERS .

( D ) THE LOCATION OF THE GENERAL SECRETARIAT AND OTHER DEPARTMENTS

50 IN THE THIRD PLACE THE CONTESTED RESOLUTION REFERS IN PARAGRAPH 3 ( C ) TO THE OPERATION OF THE SECRETARIAT AND TECHNICAL SERVICES OF THE PARLIAMENT WHICH IT STATES MUST BE REVIEWED TO MEET THE REQUIREMENTS OF HOLDING THE PART-SESSIONS IN STRASBOURG AND THE MEETINGS OF THE COMMITTEES AND POLITICAL GROUPS IN BRUSSELS , PARTICULARLY WITH A VIEW TO AVOIDING THE NEED FOR A SUBSTANTIAL NUMBER OF STAFF OF THE PARLIAMENT TO TRAVEL CONSTANTLY .

51 IN THAT RESPECT IT IS APPROPRIATE TO EMPHASIZE FIRST OF ALL THAT THE GOVERNMENTS OF THE MEMBER STATES RESOLVED IN ARTICLE 4 OF THE DECISION OF 8 APRIL 1965 THAT ' ' THE GENERAL SECRETARIAT OF THE ASSEMBLY AND ITS DEPARTMENTS SHALL REMAIN IN LUXEMBOURG ' ' .

52 IN VIEW OF THE FACT THAT MEETINGS OF THE COMMITTEES AND POLITICAL GROUPS WERE HELD IN BRUSSELS THE PARLIAMENT ESTABLISHED THE PRACTICE OF ASSIGNING A NUMBER OF ITS OFFICIALS AND OTHER EMPLOYEES THERE . THE PRESIDENT OF THE COUNCIL EXPRESSED THE POINT OF VIEW OF THE GOVERNMENTS OF THE MEMBER STATES IN A LETTER OF 22 SEPTEMBER 1977 WHEN HE TOOK FORMAL NOTE THAT THE PARLIAMENT MAINTAINED IN BRUSSELS THE MINIMUM LEVEL OF STAFFING REQUIRED FOR THE HOLDING OF SUCH MEETINGS .

53 IN THE LIGHT OF THE DUTY INCUMBENT UPON THE MEMBER STATES ON THE ONE HAND AND THE PARLIAMENT ON THE OTHER , IN EXERCISING THESE POWERS , TO HAVE REGARD TO THE POWERS OF THE OTHER THE AFORESAID ARTICLE 4 MUST BE INTERPRETED AS MEANING THAT IS DOES NOT STAND IN THE WAY OF CERTAIN MEASURES OF THE PARLIAMENT WHICH ARE NECESSARY FOR THE PURPOSES OF ITS PROPER FUNCTIONING .

54 IT FOLLOWS THAT IN THE ABSENCE OF A SEAT OR EVEN A SINGLE PLACE OF WORK , THE PARLIAMENT MUST BE IN A POSITION TO MAINTAIN IN THE VARIOUS PLACES OF WORK OUTSIDE THE PLACE WHERE ITS SECRETARIAT IS ESTABLISHED THE INFRASTRUCTURE ESSENTIAL FOR ENSURING THAT IT MAY FULFIL IN ALL THOSE PLACES THE TASKS WHICH ARE ENTRUSTED TO IT BY THE TREATIES . WITHIN THOSE LIMITS THE ESTABLISHMENT OF SUCH AN INFRASTRUCTURE OUTSIDE THE PLACE WHERE THE SECRETARIAT IS LOCATED MAY THEREFORE BE CONSIDERED COMPATIBLE WITH THE ABOVE-MENTIONED PRINCIPLES GOVERNING THE RESPECTIVE POWERS IN THE MATTER .

55 IT SHOULD NEVERTHELESS BE ADDED THAT THE TRANSFERS OF STAFF MUST NOT EXCEED THE LIMITS MENTIONED ABOVE SINCE ANY DECISION TO TRANSFER THE GENERAL SECRETARIAT OF THE PARLIAMENT OR THE OTHER DEPARTMENTS , WHOLLY OR PARTIALLY , DE JURE OR DE FACTO , WOULD CONSTITUTE A BREACH OF ARTICLE 4 OF THE DECISION OF 8 APRIL 1965 AND OF THE ASSURANCES WHICH THAT DECISION WAS INTENDED TO GIVE TO THE GRAND DUCHY OF LUXEMBOURG PURSUANT TO ARTICLE 37 OF THE AFORESAID TREATY ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES .

56 THE CONTESTED RESOLUTION , IN SO FAR AS IT PROVIDES THAT THE OPERATION OF THE SECRETARIAT AND THE TECHNICAL SERVICES ' ' MUST BE REVIEWED ' ' TO MEET THE REQUIREMENTS OF THE CONDUCT OF THE ACTIVITIES OF THE PARLIAMENT IN STRASBOURG AND BRUSSELS , MUST BE EXAMINED IN THE LIGHT OF THE CONSIDERATIONS SET OUT ABOVE IN ORDER TO DETERMINE WHETHER IT HAS REGARD TO THE LIMITS WHICH ARE PLACED ON THE POWER OF THE PARLIAMENT TO DETERMINE ITS OWN INTERNAL ORGANIZATION .

57 ALTHOUGH SOME OF THE RECITALS TO THE DISPUTED RESOLUTION AND THE CIRCUMSTANCES OF ITS ADOPTION AND CERTAIN OPINIONS EXPRESSED DURING THE PARLIAMENTARY DEBATES MAY TEND TO INDICATE THAT THE RESOLUTION IN FACT INTENDS AT LEAST A PARTIAL TRANSFER OF THE STAFF OF THE GENERAL SECRETARIAT TO THE OTHER PLACES OF WORK , IT IS NECESSARY TO BEAR IN MIND ALSO THE CONTENT OF THE LAST THREE EXPLANATORY SUBPARAGRAPHS OF PARAGRAPH 3 ( C ), WHICH RELATE IN PARTICULAR TO THE USE OF THE MEANS OF TELECOMMUNICATION , THE MOST ADVANCED TECHNIQUES TO FACILITATE COOPERATION BETWEEN THE INSTITUTIONS AND THE IMPROVEMENT OF ROAD , RAIL AND AIR LINKS BETWEEN THE MAIN CENTRES OF ACTIVITY OF THE COMMUNITY . IN THE LIGHT OF THOSE THREE SUBPARAGRAPHS AND THE DECLARATIONS OF THE REPRESENTATIVES OF THE PARLIAMENT DURING THE PROCEEDINGS BEFORE THE COURT THE STATEMENT THAT THE OPERATION OF THE SECRETARIAT AND THE OTHER DEPARTMENTS ' ' MUST BE REVIEWED ' ' MUST NOT BE UNDERSTOOD AS MEANING THAT IT EMBODIES A DECISION ON SPECIFIC MEASURES OR IN PARTICULAR UPON A TRANSFER OF STAFF . THE DECISION RELATING TO SPECIFIC MEASURES WAS LEFT FOR SUBSEQUENT CONSIDERATION AND ITS ADOPTION WILL BE POSSIBLE ONLY AFTER THE POWERS SPECIFIED ABOVE HAVE BEEN TAKEN INTO ACCOUNT .

58 ON THE BASIS OF THAT INTERPRETATION IT MUST BE DECLARED THAT PARAGRAPH 3 ( C ) OF THE CONTESTED RESOLUTION DOES NOT INFRINGE THE DECISIONS OF THE GOVERNMENTS OF THE MEMBER STATES IN THE MATTER OR IN PARTICULAR ARTICLE 4 OF THE AFORESAID DECISION OF 8 APRIL 1965 . IT IS THUS NOT BEYOND THE POWERS OF THE PARLIAMENT .

59 THE SUBMISSION OF LACK OF COMPETENCE IS THUS UNFOUNDED .

2 . INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS

60 THE LUXEMBOURG GOVERNMENT HAS FURTHER RELIED ON INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS INASMUCH AS THE GOVERNMENTS OF THE MEMBER STATES HAVE NOT GIVEN THEIR ASSENT TO ANY DECISION ON THE SUBJECT OF THE SEAT NOR DID THE PARLIAMENT CONSULT ITS LEGAL COMMITTEE BEFORE ADOPTING THE CONTESTED RESOLUTION .

61 IN THAT RESPECT IT SUFFICES TO OBSERVE THAT IN THE PRESENT CASE THE LUXEMBOURG GOVERNMENT HAS NOT ESTABLISHED THE INFRINGEMENT OF ANY ESSENTIAL PROCEDURAL REQUIREMENTS WHICH MUST BE OBSERVED BY THE PARLIAMENT BEFORE IT ADOPTS A RESOLUTION SUCH AS THAT IN DISPUTE .

62 THAT SUBMISSION IS THEREFORE UNFOUNDED .

63 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATION MUST BE DISMISSED .

COSTS

64 ACCORDING TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . NEVERTHELESS ACCORDING TO ARTICLE 69 ( 3 ) WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS , OR WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL , THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .

65 IN THIS CASE SUCH AN EXCEPTIONAL CIRCUMSTANCE IS PRESENT BY VIRTUE OF THE FACT THAT CERTAIN MATTERS IN THE CONTESTED RESOLUTION AND CERTAIN CIRCUMSTANCES SURROUNDING ITS ADOPTION MIGHT GIVE RISE TO REASONABLE DOUBTS . IT IS THEREFORE APPROPRIATE TO MAKE USE OF THE POWERS PROVIDED BY ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE AND TO ORDER THE PARTIES TO BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .

DELIVERED IN OPEN COURT IN LUXEMBOURG ON 10 FEBRUARY 1983 .