In Case C-417/93,
European Parliament, represented by C. Pennera, Head of Division in the Legal Service, assisted by E. Perillo, of the Legal Service, acting as Agents, with an address for service in Luxembourg at the Secretariat of the European Parliament, Kirchberg,
applicant,
v
Council of the European Union, represented by A.A. Dashwood, Director in the Legal Service, and M.C. Giorgi, Legal Adviser, acting as Agents, with an address for service in Luxembourg at the office of B. Eynard, Manager of the Legal Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer, Luxembourg,
defendant,
APPLICATION for the annulment of Council Regulation (Euratom, EEC) No 2053/93 of 19 July 1993 concerning the provision of technical assistance to economic reform and recovery in the independent States of the former Soviet Union and Mongolia (OJ 1993 L 187, p. 1),
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, F.A. Schockweiler, P.J.G. Kapteyn, C. Gulmann and P. Jann (Presidents of Chambers), G.F. Mancini, C.N. Kakouris (Rapporteur), J.C. Moitinho de Almeida, J.L. Murray, D.A.O. Edward, J.-P. Puissochet, G. Hirsch and L. Sevón, Judges,
Advocate General: P. Léger,
Registrar: L. Hewlett, Administrator,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 24 January 1995, at which the Council was represented by M.C. Giorgi and J.-P. Jacqué, Director in the Legal Service,
after hearing the Opinion of the Advocate General at the sitting on 14 February 1995,
gives the following
Judgment
1 By application lodged at the Court Registry on 12 October 1993, the European Parliament brought an action under Article 173 of the EEC Treaty for a declaration that Council Regulation (Euratom, EEC) No 2053/93 of 19 July 1993 concerning the provision of technical assistance to economic reform and recovery in the independent States of the former Soviet Union and Mongolia (OJ 1993 L 187, p. 1) was void.
2 The contested measure followed Council Regulation (EEC, Euratom) No 2157/91 of 15 July 1991 concerning the provision of technical assistance to economic reform and recovery in the Union of Soviet Socialist Republics (OJ 1991 L 201, p. 2). The technical assistance programme established by Regulation No 2157/91, generally called TACIS (hereinafter "the TACIS programme"), was implemented for 1991 and 1992.
3 On 25 November 1992 the Commission, considering that the situation of the countries which formerly constituted the Soviet Union and that of certain bordering States necessitated continuation of the TACIS programme, drew up a proposal (COM (92) 475 final) for a Council Regulation (EEC, Euratom) concerning the provision of technical assistance to economic reform and recovery in the independent States of the former Union of Soviet Socialist Republics and Mongolia, covering the following three years (OJ 1993 C 48, p. 13).
4 That proposal was sent by the Commission to the Council on 15 January 1993 and communicated to the Parliament for information on the same day. The Commission indicated that its proposal was to a large extent inspired by Regulation No 2157/91, cited above, and that it was keeping departures from that regulation to a minimum.
5 The proposal in question, based on Articles 235 of the EEC Treaty and 203 of the Euratom Treaty so that consultation of the Parliament was mandatory, was sent to the Parliament by the Council on 5 March 1993. The Council formally requested the Parliament to implement the urgent procedure.
6 After a period of repeated examination of the proposal by the responsible committee of the Parliament and after long discussions in plenary sitting attended by representatives of the Council and the Commission and repeated postponement of the vote in Parliament, the latter rejected the proposal by resolution of 14 July 1993.
7 On 19 July 1993 the Council adopted the contested regulation.
The first plea in law
8 In support of its application, the Parliament submits, first, that the obligation to consult laid down by Articles 235 of the EEC Treaty and 203 of the Euratom Treaty was not complied with in this case by the Council. Admittedly, the Parliament' s opinion was requested, but that consultation was a mere sham or fiction since the Commission' s proposal immediately became the subject-matter of discussions in the Council, not just before the opinion was delivered but even before the proposal had been officially referred to the Parliament. By the time it was officially referred to the Parliament, discussions within the Council were in fact so far advanced that the subject-matter of the consultation was a proposal which by then was out-of-date and obsolete. Although at that point the Council had not yet formally adopted the text of the regulation, its decision on the substance had already been taken. Such conduct constitutes not only an infringement of an essential procedural requirement but also a misuse of powers and a breach of the duty of cooperation in good faith between institutions.
9 The Court has consistently held that due consultation of the Parliament in the cases provided for by the Treaty constitutes an essential formal requirement disregard of which means that the measure concerned is void (Case 138/79 Roquette Frères v Council [1980] ECR 3333, paragraph 33).
I10 In the context of the consultation procedure, however, nothing in Community law requires the Council to abstain from any consideration of a Commission proposal or from any search for a general approach or even for a common position within the Council before the Parliament' s opinion is delivered provided that it does not adopt its final position before being apprised of the opinion. Furthermore, such a prohibition is not called for by any institutional or procedural objective.
11 On the contrary, an approach such as that for which the Council is criticized in this case reflects the legitimate concern to make good use of the period during which it is awaiting the Parliament' s opinion in order to prepare its own position and thus to avoid unnecessary delay. It is only if the Council definitively adopts its position before receiving the Parliament' s opinion that there is a failure to comply with the obligation to consult.
12 It appears from submissions made at the hearing that the Parliament does not object to the Council' s starting work in parallel with it after referring the matter to the Parliament, but complains that in this case the Council in fact definitively adopted its position even before requesting its opinion.
13 According to the documents before the Court, the Council started examining the Commission' s proposal before it was officially referred to the Parliament. A Council working party called "former USSR" sent a document reflecting its work to date on the proposal in question to the Committee of Permanent Representatives (COREPER) on 4 March 1993, which was the day before referral to the Parliament. However, it was not until 24 March 1993 that that proposal was examined for the first time by COREPER on the basis of the abovementioned document. As for the Council, it examined the proposal for the first time on 5 April 1993 and was able to note "a wide convergence of views" within the Council. It also agreed to re-examine the proposal after receiving the Parliament' s opinion.
14 It is clear from this summary of events that the Council had not adopted its definitive position on the Commission' s proposal before the Parliament' s opinion was sent to it.
15 Since the Parliament has not adduced any evidence to the contrary, the first plea in law must be rejected as unfounded.
The second plea in law
16 The Parliament submits that in this case the text of the regulation finally adopted by the Council differed on four points from the text of the Commission' s proposal on which it was consulted. Since those amendments are substantial, the Parliament should have been reconsulted. Since it was not, the contested regulation should be annulled.
17 The Court has consistently held that the duty to consult the Parliament in the cases provided for by the Treaty includes a requirement that the Parliament be reconsulted on each occasion on which the text finally adopted, viewed as a whole, departs substantially from the text on which the Parliament has already been consulted (Case C-65/90 Parliament v Council [1992] ECR I-4593, paragraph 16, and Case C-388/92 Parliament v Council [1994] ECR I-2067). Each amendment referred to by the applicant must therefore be considered.
18 First, the Parliament notes that Article 2 of the final text of the regulation was not included in the Commission' s proposal, which constitutes an amendment touching the very substance of the text on which it was consulted. That article provides that the States concerned are to benefit from TACIS assistance in so far as they do not benefit from financial and technical assistance given by way of assistance to the developing countries in Latin America and Asia pursuant to Regulation (EEC) No 443/92 of 25 February 1992 (OJ 1992 L 52, p. 1).
19 According to the documents before the Court, the provision at issue, which specifically concerns the situation of Mongolia, is intended to avoid multiple Community aid. Far from calling in question the arrangements put in place by the TACIS programme, it is a specific addition which cannot be considered to be a substantial amendment to the Commission' s proposal necessitating reconsultation of the Parliament.
20 Secondly, the Parliament notes that an Annex II, relating to the areas to which TACIS assistance should be given as a priority, was added to the final text of the regulation. Those areas which, in the Commission' s proposal, were set out in Article 3(3) were, in the final text, laid down in Article 4(3), which refers to Annex II. The Parliament argues that the annex at issue meticulously details the areas in which TACIS assistance is to be given and thus goes beyond the scope of the corresponding provision in the proposal.
21 That argument cannot be followed. It is clear from Article 4(3) of the final text of the regulation read in conjunction with the annex at issue that the latter lists the indicative areas in which TACIS assistance should particularly be given. The annex, which is not exhaustive, does not alter the scope of Article 3(3) of the original proposal. Consequently, reconsultation of the Parliament was not required.
22 Thirdly, the Parliament observes that a final sentence was added to Article 6(4) of the Commission' s proposal, which became Article 7(4) of the final text. That new sentence imposes a condition of reciprocity on the participation of undertakings from third countries in co-financed projects. According to the Parliament, such a condition, of major political significance for third countries, constitutes a substantial amendment to the proposal necessitating reconsultation.
23 The Parliament' s position on the addition of the sentence at issue cannot be accepted either. The condition of reciprocity in question is a specific criterion in accordance with the usual practice in the area and affects neither the general scheme of the TACIS programme nor even the principle of the participation of undertakings from third countries in co-financed projects.
24 The last amendment pointed out by the Parliament concerns the type of committee designated to assist the Commission in the implementation of the TACIS programme. Whereas Article 7 of the Commission' s proposal provided for a management committee conforming to Procedure II(b) set out in Article 2 of Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1987 L 197, p. 33), the Council finally opted in Article 8 of the regulation for a regulatory committee conforming to Procedure III(a) of that decision. According to the Parliament, the type of committee chosen is of crucial importance so that the amendment to the Commission' s proposal must be regarded as substantial.
25 The committee provided for by the regulation in question is required to play a significant role in the implementation of the TACIS programme. Consequently, the choice of one type of committee or another, in so far as it involves different decision-making procedures and a different division of powers between the Commission and the Council, may have a decisive influence on the operation of the arrangements in question.
26 However, in this case the overall balance of the powers allocated to the Commission and the Council is not decisively affected by the choice between the two types of committee at issue so that the amendment to the Commission' s proposal is not substantial. Reconsultation of the Parliament was accordingly not necessary on this point either.
27 Consequently this plea in law must also be rejected.
The third plea in law
28 The second subparagraph of Article 7(2) of the contested regulation provides:
"Service contracts shall, as a general rule, be awarded by restricted invitations to tender and by private treaty for operations up to ECU 300 000. This amount may be revised by the Council on the basis of a Commission proposal, account being taken of experience gained in similar cases."
29 The Parliament submits that at the very least the second sentence of that provision must be annulled. It is unlawful for legislation which cannot be adopted without consulting the Parliament to provide for amendment during its implementation without consulting the Parliament on the proposal to amend. Such a procedure for amendment, differing from that required for the adoption of the original legislation, leads to an erosion of the Parliament' s prerogatives.
30 As the Court has held, in particular in relation to the common agricultural policy, the procedure by which the Council adopts regulations relating to a Community policy, on a proposal from the Commission and after consulting the Parliament, applies solely to the basic regulations containing the essential elements of the matter to be dealt with and the provisions implementing those regulations may be adopted by the Council according to a different procedure (Case 25/70 Einfuhr- und Vorratsstelle v Koester [1970] ECR 1161, paragraph 6, and Case 46/86 Romkes v Officier van Justitie [1987] ECR 2671, paragraph 16).
31 That principle is applicable in particular in the present case where, on the basis of Article 235 of the EEC Treaty and Article 203 of the Euratom Treaty, the Council has power to adopt the regulation at issue on a proposal from the Commission and after consulting the Parliament.
32 In this case, the provision added to the second subparagraph of Article 7(2) of the disputed regulation cannot be regarded as essential for the TACIS assistance programme. It affects neither the principle of awarding service contracts in the context of the TACIS programme by restricted invitations to tender and by private treaty nor, a fortiori, the general scheme of the regulation at issue. Since it simply provides for the possibility of revision, account being taken of experience gained, of the threshold beyond which that method of awarding the contracts in question may no longer be used, the contested provision is merely part of the arrangements for implementing the TACIS programme.
33 Consequently, the Council was entitled to consider that the revision of the threshold in question fell within its implementing powers, which are not subject to the procedure laid down by the articles in the EEC and Euratom Treaties on the basis of which the contested regulation was adopted. That plea in law is accordingly also unfounded.
34 Since none of the pleas in law of the applicant can be upheld, the application must be dismissed.
Costs
35 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party' s pleadings. Since the Parliament has been unsuccessful, it must be ordered to pay the costs.
On those grounds,
THE COURT
hereby:
1. Dismisses the application;
2. Orders the Parliament to pay the costs.
