Keywords
Summary

Keywords

1. Actions for annulment — Right of the Parliament to bring an action — Conditions of admissibility — Safeguarding its prerogatives — Involvement in the legislative process — Infringement as a result of the Council ' s choice of the legal basis for a measure of secondary legislation — Admissibility — (EEC Treaty, Art. 173)

2. Acts of the institutions — Choice of legal basis — Criteria

3. International agreements — Community agreements — Conclusion — EEC-United States Agreement on government procurement — Agreements on services not confined to trans-frontier supply — Agreement going beyond the confines of the common commercial policy — Concluded and implemented on the basis of Article 113 of the Treaty only — Unlawful — (EEC Treaty, Art. 113; Council Decisions 93/323 and 93/324)

4. Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Case of a decision approving an international agreement — (EEC Treaty, Art. 174, second para.)

Summary

1. An action for annulment brought by the Parliament against an act of the Council or the Commission is admissible provided that the action seeks only to safeguard its prerogatives and that it is founded only on submissions alleging their infringement. Consequently, an action will lie on the ground that the sole legal basis wrongly used for the contested measures was an article which does not require the procedure involving cooperation with the Parliament, thereby excluding articles requiring that procedure.

2. In the context of the organization of the powers of the Community, the choice of the legal basis for a measure must be based on objective factors which are amenable to judicial review. Those factors include in particular the aim and content of the measure.

3. Decision 93/323 approves an agreement in the form of a Memorandum of Understanding between the Community and the United States of America on government procurement. That agreement provides that public contracts are no longer to be open only to the acquisition of products and any services ancillary to their supply, as was provided for by the GATT Multilateral Agreement on Government Procurement, and applies in particular to contracts for which the principal object is the obtaining of one or more services, including maintenance and repair, transport, computer, advertising and accounting services. As for Decision 93/324, it aims to extend the benefit of the provisions of Directive 90/531 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors to the United States of America.

Since the types of service provision covered by both decisions cannot be reduced to the sole hypothesis of a trans-frontier supply involving no movement of persons, but relate also to supplies made thanks to a commercial presence or the presence of natural persons on the territory of the other Contracting Party, the two decisions exceed the scope of Article 113 of the Treaty. Since, however, they were adopted on the basis of that article alone, they must be annulled.

4. Since simply to annul Decision 93/323 concerning the conclusion of an Agreement in the form of a Memorandum of Understanding between the Community and the United States of America on government procurement and Decision 93/324 concerning the extension of the benefit of the provisions of Directive 90/531 in respect of the United States of America would be liable adversely to affect the exercise of the rights arising under those decisions and given that the agreement in question has expired, there are important reasons of legal certainty, comparable to those which arise where certain regulations are annulled, which warrant the Court ' s exercising the power conferred upon it by the second paragraph of Article 174 of the Treaty where a regulation is annulled and deciding to maintain in force all the effects of the decisions which have been annulled.