Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

POIARES MADURO

delivered on 26 March 2009 ¹(1)

Case C-411/06

Commission of the European Communities

v

European Parliament

and

Council of the European Union

(Shipments of waste Legal basis for Regulation (EC) No 1013/2006)

1. On 2 October 2006, the Commission of the European Communities, acting pursuant to Article 230 EC, brought an action for annulment directed against Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste, (2) arguing that the choice of legal basis for its adoption was incorrect. According to the applicant, the regulation at issue ought to have had a dual legal basis, namely both Article 175(1) EC and Article 133 EC, whereas the drafters of the regulation based it solely on Article 175(1) EC.
2. The present case brought before the Court is the latest chapter in a long-running dispute between the Commission, on the one hand, and the European Parliament and the Council of the European Union, on the other, concerning the use of Articles 133 EC and 175(1) EC as the legal basis for a Community measure pursuing environmental objectives by regulating transboundary movements of waste. The relevant case-law, at least in the detail, does not shed much light on the issue. The defendants even believe that it may contain a contradiction and, in any event, reasoning weighing in favour of both sides of the argument in the present case. They have thus requested that the case be decided by the Grand Chamber, pursuant to the second subparagraph of Article 44(3) of the Rules of Procedure of the Court of Justice.

I On the need to consider whether the application is well founded

A Admissibility of the action

3. The Council has raised a preliminary objection that the action is inadmissible on the ground that the Commission, contrary to the requirements of Article 38(1)(c) of the Rules of Procedure of the Court of Justice, failed to state in its application which provisions of the contested regulation should, in its view, be based on Article 133 EC, which provisions on Article 175(1) EC and, as the case may be, which provisions on both those articles simultaneously.
4. Clearly, that objection of inadmissibility cannot succeed. The Commission's application contains a summary of the pleas in law and appears to be sufficiently clear and precise to enable the Council to prepare its defence and the Court to rule on the action. It sets out the reasons why the Commission believes that the conditions for use of a dual legal basis laid down by the case-law are satisfied. It is not necessary, in order to satisfy the requirements of Article 38(1)(c) of the Rules of Procedure, that the Commission identify which provisions of the contested regulation are related to which basis. In any event, the Commission stated in its application that, although Article 175(1) EC had been correctly used as the basis for most of the provisions of the contested regulation, the provisions under Titles IV to VI, relating to shipments of waste (import, export, transit) originating from or destined for non-member countries should have had Article 133 EC as their basis.

B The materiality of the plea put forward

5. It must be stated at the outset that the controversy surrounding the choice of appropriate legal basis does not, in the present case, relate merely to aspects of form; if it did, the plea for annulment would serve no purpose.
6. It is of course fully possible to argue that that controversy does not affect the institutional balance because, whether Article 175(1) EC alone is employed as a legal basis or Article 133 EC is added in, the procedure for adopting the contested regulation remains the same. Both provisions provide that the Council is to take decisions by qualified majority. It is true that Article 175 EC provides for co-decision and Article 133 EC, in conjunction with the first subparagraph of Article 300(3) EC, does not confer any right on the Parliament to participate in the decision-making process. A reading of the Court's case-law, however, seems to reveal a preference for the provision which associates the Parliament more closely with the adoption of the act when a choice is to be made between two bases the objectives of which are being pursued equally. (3) Following that logic, that preference must also determine the procedure to be followed if a dual legal basis is used, where each basis provides for a different decision-making process. (4) Although I entertain serious doubts as to the merits of that preference for decision-making procedures which maximise the participation of the Parliament, (5) it seems to me difficult to propose at this stage that that approach should be called into question, since that line of case-law has been recently reaffirmed. (6) In other words, even if an analysis were to lead to the conclusion that Article 133 EC should be joined to Article 175 EC when the latter has been used as the sole legal basis for the contested regulation, co-decision, provided for by the latter provision, would nevertheless remain the procedure to be followed for adopting the act. Since the alleged error as to legal basis has not affected the procedure to be followed, it cannot have influenced the determination of the content of the contested act. (7)
7. The choice between Articles 133 EC and 175 EC has significant repercussions on the distribution of competence between the Community and the Member States, however, as the former confers exclusive competence on the Community whilst the latter provides for shared competence. The choice of Article 175(1) EC as the sole legal basis for the contested regulation would thus lead to a restriction on the competence of the Community, thereby conferring competence on the Member States, including in the area of regulating exports and imports of waste, provided that and in so far as such an initiative on the part of the Member States would not be such as to affect the Community rules adopted in the area. According to the Commission, the exercise of that competence conferred on the Member States would thus inevitably lead to a distortion of competition on external markets between undertakings established in Member States and give rise to disturbances in the internal Community market.

II The merits of the action

8. The sole plea in law put forward for annulment alleges error as to the legal basis chosen: the Community legislature used Article 175 EC as the sole legal basis for the contested regulation, whereas the Commission claims that that provision should have been supplemented by Article 133 EC.
9. In response to that line of argument, it should be borne in mind at the outset that, according to settled case-law, the choice of legal basis for a Community measure must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the measure. (8) If the measure in question pursues a twofold purpose or has a twofold component, it must, as a rule, be based on the legal basis corresponding to the purpose and/or component identifiable as the main or predominant purpose or component. (9)
10. It is only exceptionally, where it established that the measure simultaneously pursues a number of objectives or has several components that are indissociably linked, without one being secondary and indirect in relation to the other, that such an act will have to be founded on the various corresponding legal bases. (10) However, even where the measure in question simultaneously pursues a number of objectives, or has several components, which are equal and indissociably linked, recourse to a dual legal basis is not possible in two cases: (i) where the dual basis chosen is to be found in a provision of the EC Treaty and in a provision of the EU Treaty, (11) and (ii) where the procedures laid down by the two legal bases are incompatible with each other and/or where the use of more than one legal basis is liable to undermine the rights of the Parliament. (12)
11. Relying on that case-law, the Commission argues that the contested regulation contains, by virtue of both its purpose and content, two indissociably linked components, one relating to the common commercial policy and one relating to environmental policy and that, consequently, a dual legal basis is necessary. It argues that the measure in question has as its purpose not only the regulation of shipments of waste within the Community for purely environmental purposes, but that it also contains, in Titles IV to VI, detailed rules governing extra-Community trade with non-member countries which affect imports of waste into the Community from non-member countries, exports of waste from the Community to non-member countries, and transits of waste through the Community, on the way from and to non-member countries. In other words and more succinctly, since the contested regulation also governs shipments of waste between the Community and non-member countries, Article 133 EC should have been added to Article 175 EC as a legal basis.

A On whether a dual legal basis may be allowed

12. The first question raised by the line of argument put forward by the Commission is whether the exceptional use of a dual legal basis is possible in a case such as the present, where one of the enabling provisions, Article 133 EC, confers on the Community exclusive competence to adopt the contested measure, whereas the other, Article 175 EC, confers merely shared competence to that end. The nature of the Community competence has a considerable effect on the residual competence of the Member States. The presence of exclusive Community competence precludes any legislative action by the Member States, except where they act as trustees of the common interest to avoid a legislative lacuna where the Community legislature has failed to act. (13) By contrast, where competence is shared, the Member States remain free to legislate in the field in question, as long as the national measures adopted do not interfere with the effectiveness of the Community rules adopted in the area. (14) A characteristic example of this conjunction of the legislative competences of the Community and the Member States in the event of shared competence is precisely Article 176 EC, which authorises the Member States, even where Community provisions have been adopted in the area, to adopt more stringent environmental protection measures, the only proviso being that they must be compatible with the Treaty. The question may therefore legitimately be asked, as it has been by the Council, the Parliament and the United Kingdom in the present case, whether the competence for adopting a given measure may be of an exclusive and shared nature simultaneously. How can the residual legislative competence of the Member States in the case of a shared competence by virtue of which a Community measure has been adopted still be applicable if that measure was jointly founded on exclusive Community competence?
13. As we know, the Court has allowed such a dual legal basis in two cases involving the same legal bases as those at issue in the present case. (15) Those two judgments must be read carefully, however. The Court was able to adopt that approach only because it was possible, even though the measures in question contained two equal and indissociably linked components, to draw a clear distinction between what in those measures fell within the exclusive competence of the Community provided for by Article 133 EC and what fell within the shared competence conferred on the Community by Article 175 EC. This is obviously the case where it is possible to isolate in the measure the provisions which are covered by one legal basis or the other. It is even conceivable that one and the same provision may have a dual legal basis, as long as it relates to different purposes. However, one and the same issue may not fall within exclusive competence and shared competence.
14. In the present case, joint recourse to Articles 133 EC and 175 EC as bases for the contested regulation is theoretically possible. As pointed out above, the Commission has identified the provisions which, in its view, ought to have been based on Article 133 EC, whilst the others were correctly based on Article 175 EC: they are the provisions of Titles IV to VI, relating to shipments of waste (import, export, transit) originating from or destined for non-member countries, which should have been based on Article 133 EC.
15. Moreover, the possibility of using Article 133 EC in conjunction with Article 175 EC cannot be ruled out on the ground that the procedures provided for by the two legal bases are incompatible and/or that the use of those two legal bases simultaneously would be liable to undermine the rights of the Parliament. (16) As I pointed out earlier, (17) the addition of Article 133 EC, which excludes the Parliament from the decision-making process, would not in any way modify the applicable legislative procedure. According to the case-law, co-decision, provided for by Article 175 EC, would remain applicable for the adoption of all the provisions of the measure.

B The relevance of the dual legal basis

16. It remains to be determined whether the analysis of the aims and content of the contested regulation reveals that it does in fact contain an environmental component and a commercial component which are equal and indissociably linked, without one being secondary and indirect in relation to the other. (18)
17. I am not convinced by the line of argument put forward by the applicant to demonstrate the point. It is true, as the applicant states, that the scope of application of the common commercial policy has traditionally (19) been interpreted generously, (20) so that a measure regulating trade with non-member countries remains a commercial policy measure, even if it also serves purposes relating to other areas, such as development policy, (21) foreign and security policy, (22) or environmental protection objectives. (23) This is all the more so in the last-mentioned area because the import of the principle of integration now enshrined in Article 6 EC (formerly set out in Article 130r(2) of the EC Treaty) is that environmental protection requirements must be integrated into the definition and implementation of all Community policies and activities. (24) Thus, the fact that the provisions of the contested regulation integrate environmental concerns certainly does not by itself mean that they cannot or should not be based on Article 133 EC. It would be otherwise only if the environmental purpose were shown to be predominant, with the commercial aspect being only incidental, in which case the contested measure would have to be based solely on Article 175(1) EC. (25) In fact it is clear both from an examination of the object and aim of the contested regulation and from its context that its environmental dimension is predominant.

1. The content and aim of the contested regulation

18. First of all, it is undeniable that the primary purpose pursued by the contested regulation is environmental. Recital 1 in the preamble to that regulation states: 'the main and predominant objective and component of this Regulation is the protection of the environment'. The remaining recitals confirm this. Apart from recitals 16 and 19, which refer to the proper functioning of the internal market, all of the recitals, albeit some more directly than others, bespeak environmental concerns. Recital 7 in particular emphasises generally 'the need to preserve, protect and improve the quality of the environment and human health'. Likewise, recital 42 reiterates that the objective of the regulation is 'to ensure protection of the environment when waste is subject to shipment'. Even in the passages relating to imports and exports of waste into and out of the Community, environmental concerns remain omnipresent. Thus, recital 28 states that it is 'in order to protect the environment of the countries concerned' that it is necessary to clarify the scope of the prohibition of exports of hazardous waste destined for recovery in a country to which the OECD Decision does not apply. Similarly, recital 33 states that waste imported into the Community must be managed throughout the period of shipment 'without endangering human health and without using processes or methods which could harm the environment'.
19. As to the object of the contested regulation, the Commission states that it lays down detailed rules governing external trade with non-member countries, and that those rules also apply to imports of waste originating from non-member countries into the Community, to exports of waste from the Community to non-member countries and to transits of waste through the Community, on the way to or from non-member countries. To that extent, it also falls within the scope of the common commercial policy.
20. However, the object of the regulation is to impose obligations of notification, procedure and control on shipments of waste, so that such shipments take place in conditions suitable for ensuring environmental protection. Those obligations are laid down in Title II of that regulation and may be summarised as follows. Under Article 3(1), shipments of all waste destined for disposal operations, and, inter alia, shipments of wastes listed in Annex IV to the contested regulation, if destined for recovery operations, are subject to the procedure of prior written notification and consent. Under that procedure of notification and consent, the notifier must provide evidence of the contract concluded by it with the consignee for the recovery or disposal of the notified waste (Articles 4(4) and 5 of the contested regulation) and of the establishment of a financial guarantee or equivalent insurance covering costs of transport, and of recovery or disposal and storage of the relevant waste (Articles 4(5) and 6 of the contested regulation). Where notification of a shipment of waste is submitted, the authorities may, relying on essentially environmental grounds, listed in Articles 11 and 12 of the contested regulation, impose conditions for their consent to the notified shipment or raise reasoned objections to such a shipment (Articles 9 to 12 of the contested regulation). Articles 22 to 25 impose an obligation to take back waste when a shipment cannot be completed as intended or when a shipment is illegal and lay down rules governing the costs of take-back.
21. Regarding the external aspects of the contested regulation, suffice it to note that, where they are not prohibited by the regulation for reasons of environmental protection, exports from the Community, imports of waste into the Community and transits of waste through the Community are subject to the same control procedures, pursuant to the provisions of Titles IV, V and VI respectively of that regulation.
22. Finally, the obligation arising from Article 49(1) of the contested regulation, imposed on the producer, notifier and other undertakings involved in a shipment of waste and/or its recovery or disposal, to take 'the necessary steps to ensure that any waste they ship is managed without endangering human health and in an environmentally sound manner throughout the period of shipment and during its recovery and disposal' highlights the homogeneity of the entire control system and its predominant objective of environmental protection. That obligation applies not only when the shipment takes place within the Community but also when waste is exported and imported.
23. Clearly, the prior written notification and consent procedure are at the heart of the scheme put in place by the contested regulation. It is, indeed, very similar to the prior authorisation procedures which the Court has termed a 'typical instrument of environmental policy'. (26) This is, furthermore, why the Commission recognises that, in so far as that scheme is provided for in Title II of the regulation to govern, primarily, intra-Community shipments of waste, the appropriate legal basis is Article 175(1) EC. Since, under Titles IV to VI of the regulation, it applies mutatis mutandis to extra-Community shipments of waste, I have difficulty seeing how the same control mechanism would no longer have as its object the prevention of harm to the environment which might be caused by those shipments. Conversely, if one were to accept the Commission's analysis, to the effect that the scheme introduced must be viewed as regulation of external trade in waste which therefore falls within the scope of the common commercial policy, then, logically, when applied to intra-Community shipments of waste, the same scheme is intended to ensure the free movement of that waste and should therefore, to that extent, have been based on Article 95 EC and not Article 175 EC.
24. Admittedly, as the Commission has rightly pointed out, waste qualifies as 'goods' within the meaning of Article 28 EC and may therefore be the subject-matter of commercial transactions. (27) However, the fact that the control procedures introduced by the regulation are applicable to commercial trade in waste and, therefore, liable to affect that trade, does not necessarily mean that their object is to promote, facilitate or govern that commercial trade, and thus cannot affect the finding, made on the basis of the analysis of the aim and content of the contested regulation, to the effect that it is an instrument the primary purpose of which is environmental protection, whilst its effect on trade is merely incidental and indirect; nor can a broad interpretation of the concept of common commercial policy affect that finding. (28) The regulation does not aim to define the characteristics that waste must have in order to be traded freely, but rather to lay down a harmonised system of procedures so that waste circulation may be limited, in order to ensure environmental protection. (29) If the Commission's interpretation were to be accepted, the specific provisions of the Treaty relating to environmental protection would be rendered largely meaningless since, as soon as it was established that a Community action was liable to affect commercial trade, the measure envisaged would have to fall within the scope of the common commercial policy. (30)
25. In any event, even if the Commission's assertion to the effect that Titles IV, V and VI of the contested regulation fall within the scope of the common commercial policy were correct, the addition of Article 133 EC as a legal basis would not be justified, as the predominance of an objective or component must be assessed having regard to the aim and content of the act as a whole. (31) In fact the examination of all the provisions of the contested regulation has shown that its predominant dimension is environmental.
26. Therein lies the fundamental difference from the situation in Energy Star. (32) The coordination of energy-efficient labelling programmes for office equipment established by the agreement at issue in that case aimed, primarily, at facilitating trade in that equipment by allowing manufacturers, under a procedure for the mutual recognition of registrations, to use a common logo to identify, for consumers, certain products meeting a common set of energy-efficiency specifications, which they intended to place on the American and Community markets. The reduction in energy consumption expected due to a shift in actual manufacturer and consumer behaviour resulting from the labelling programme was, in any event, merely an indirect effect.
27. The applicant however believes that the approach adopted by the Court concerning the choice of legal basis for the decision approving the Rotterdam Convention (33) and the regulation implementing that convention (34) can be of support to its line of argument. That international agreement introduced a prior informed consent procedure applicable to certain hazardous chemicals and pesticides very similar to the control procedures provided for in the contested regulation. The Court had, moreover, termed it a 'typical instrument of environmental policy'. (35) Nevertheless it had held that recourse to a dual legal basis comprising Articles 133 EC and 175 EC was necessary.
28. The Commission's line of argument could be countered with the legal basis chosen for the conclusion of the Cartagena Protocol: the Court had held that recourse to Article 175 EC alone was appropriate, in respect of the establishment of a very similar control procedure for living modified organisms, which it also viewed as a 'typical instrument of environmental policy'. (36) We should thus acknowledge, as do inter alia the Council and the United Kingdom, that there is a contradiction between the two approaches. The present case, which has been assigned to the Grand Chamber, thus offers an opportunity to put an end to that contradiction.
29. A careful reading of the judgments given in the two cases relating to the Rotterdam Convention shows that there is merely the appearance of a contradiction, however. Whatever view one may have of the merits of the Court's approach, (37) it is noteworthy that, in order to justify joint recourse to Articles 133 EC and 175 EC, the Court emphasised the explicit link established by the Rotterdam Convention between trade and the environment, as the control procedure provided for therein applies only to certain hazardous chemicals and pesticides which are traded internationally and the implementation thereof is governed by provisions which regulate directly trade in those goods. Such a link was lacking in the Cartagena Protocol, as the control mechanism established by that protocol was applicable to activities involving the handling of living modified organisms and therefore not just transboundary movements of those organisms for commercial purposes. (38)
30. In the present case, the prior written notification and consent procedure provided for by the contested regulation does not govern only extra-Community shipments of waste. It concerns first and foremost intra-Community shipments of waste. It must thus be concluded, in the light of a joint reading of the approaches adopted in the case involving the Cartagena Protocol and the cases on the Rotterdam Convention, that the predominant component of the contested regulation is environmental, in the absence of a sufficiently clear link between trade and the environment. The examination of both its aim and its object shows that it does not so much regulate trade in waste as ensure that its shipment takes place in conditions consonant with environmental protection. Consequently, the Community legislature was correct in employing Article 175 EC as the sole basis for the regulation.

2. The context of the contested regulation

31. The context is another factor to be taken into consideration in order to assess the relevance of the legal basis chosen to adopt a measure. (39) The conclusion, based on an analysis of the object and the aim of the contested regulation, to the effect that it should have been based on Article 175 EC alone, is confirmed by an examination of the context of the measure.
32. In the first place, the contested regulation was adopted in order to replace and update Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community, (40) on which it is largely based. That regulation had been based on Article 130s EEC (now, after amendment, Article 175 EC) and the Court, before which an action had been brought by the Parliament, which maintained that that measure ought to have been based jointly on Articles 100a EEC (now, after amendment, Article 95 EC) and 113 EEC (now, after amendment, Article 133 EC), had explicitly recognised the relevance of that legal basis. (41) Admittedly, for reasons relating to limitations on the Parliament's right of action, the Court had ruled only on the intra-Community dimension of Regulation No 259/93 and had not considered whether the aspects of that regulation concerning shipments of waste between the Community and non-member countries would have justified the addition of Article 113 EEC. However, the fact that the aspects of the regulation relating to intra-Community shipments of waste had been correctly based on Article 130s and not Article 100a argues against joint recourse to Article 113, since Regulation No 259/93, like the regulation at issue in the present case, merely extended the control mechanism it put in place for intra-Community shipments of waste to extra-Community shipments, which had been adopted on the basis of Article 130s.
33. In the second place, the contested regulation also aims to implement the obligations under the Convention on the control of transboundary movements of hazardous wastes and their disposal, signed in Basel on 22 March 1989 ('the Basel Convention'). It is common ground that the primary object of that convention is the 'environmentally sound management' of waste, in order to protect human health and the environment by reducing the production of hazardous waste whenever possible and by controlling rigorously their storage, transport, handling, re-use, recycling, recovery and final disposal through an 'integrated life cycle approach'. That convention was thus concluded on behalf of the Community by decision of the Council (42) on the basis of Article 130s of the EEC Treaty and classified as a multilateral environmental agreement by the WTO. The Commission is attempting incorrectly to play down the relevance of that precedent by emphasising the difference between the Basel Convention and the contested regulation, arguing that the convention relates exclusively to the disposal of hazardous waste, whereas the regulation covers all waste, be it hazardous or not, and irrespective of whether it is intended for disposal or recovery. As rightly observed by the United Kingdom and French Governments, a more careful reading of the text of that convention and, in particular, of Article 2(4) thereof and Annex IV thereto shows, in fact, that, contrary to what its title suggests, it also applies to post-shipment methods of handling waste, consisting in recovery, recycling or re-use and not just disposal. In any event, the fact that the contested regulation also applies to non-hazardous waste and to waste intended for recovery does not make it commercial or weaken its environmental dimension since waste, of whatever type it may be, is inherently harmful to the environment. (43)
34. Admittedly, the relevance of those precedents could be disputed on the grounds that a mere institutional practice cannot derogate from the rules laid down in the Treaty and therefore cannot create a precedent binding on the Community institutions with regard to the correct legal basis, (44) and that the legal basis for an act must be determined having regard to its own aim and content and not to the legal basis used for the adoption of other Community measures which might, in certain cases, display similar characteristics. (45) However, although in fact a mere institutional practice may not determine the choice of legal basis at the cost of an analysis of the aim and content of the act in question, it may be a relevant factor in the context of that measure and support the choice of legal basis resulting from an examination of its aim and content. Thus the Court has explicitly held that a dual legal basis consisting in Articles 133 EC and 175 EC was justified for Regulation (EC) No 304/2003 of the European Parliament and of the Council of 28 January 2003 concerning the export and import of dangerous chemicals (46) because it implemented at Community level the Rotterdam Convention which, according to a judgment of the same day, (47) also should have had that dual basis and because there was an obvious convergence between the provisions of the two acts. (48) Likewise, the Court explicitly supported the choice of Article 95 EC as the legal basis for a directive resulting from an analysis of its aim and content by finding that it amended an earlier directive based on the same provision. (49) In the present case, as we have seen, the contested regulation is intended to implement the Basel Convention and reproduces most of the provisions of Regulation No 259/1993, which it replaces.

III Conclusion

35. For the reasons set out above, I thus propose that the Court should dismiss the action for annulment brought by the Commission challenging Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste.

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1 Original language: French.

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2 OJ 2006 L 190, p. 1.

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3 This is one possible manner of construing Case C-300/89 Commission v Council [1991] ECR I-2867 (often referred to as the 'Titanium Dioxide' case).

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4 See, to that effect, Case C-178/03 Commission v Parliament and Council [2006] ECR I-107, paragraph 59; Case C-155/07 Parliament v Council [2008] ECR I-0000, paragraphs 77 to 83. See also the Opinion of Advocate General Kokott in Case C-178/03 Commission v Parliament and Council, points 63 and 64, and in Case C-155/07 Parliament v Council, points 90 and 91.

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5 This approach in the case-law in fact has no basis in the Treaty. Advocated, inter alia, by the Commission at the hearing, it starts with the premiss that any legal basis which increases the involvement of the Parliament in the decision-making process will strengthen the democratic nature of the European Community. Democracy can take a number of different forms, however, especially in the European Community. At Community level, democratic legitimacy is derived from two main sources: either the Council, in which the will of the peoples of Europe is expressed through the positions adopted by their respective governments, under the control of their national parliaments; or the European Parliament, the directly representative European institution, and the Commission, which is directly accountable to it. Directly democratic representativeness is undeniably a relevant gauge of European democracy, but it is not the only one. In particular, European democracy also entails achieving a delicate balance between the national and European dimensions of democracy, without either one necessarily prevailing over the other. This is why the European Parliament does not have the same power as national parliaments in the legislative process and, although an argument could be made for stronger powers for the European Parliament, it is for the peoples of Europe to make that decision through treaty amendment. The balance between the powers conferred on the European Parliament and the other institutions as expressed in the different legislative procedures has evolved over time and reflects the balance which the peoples of Europe have wanted between national and European means of giving legitimacy to the exercise of power at European level. To accept a general principle of preference for a legal basis which maximises the participation of the European Parliament in the decision-making process would be tantamount to altering the institutional and democratic balance laid down by the Treaty. I am well aware that this analysis leads to a prohibition in practice on cumulative legal bases: either both provisions provide for the same decision-making procedure and an error as to legal basis would be of merely formal significance and therefore of no import, subject to a possible incidence on the distribution of competence between the Community and the Member States; or they provide for different legislative procedures, which are therefore necessarily incompatible for the reasons I have just discussed, and they may not be combined.

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6 In Case C-155/07 Parliament v Council, cited in footnote 4 above, paragraphs 77 to 83. As to the timing and conditions for a shift in the case-law, see my remarks in points 28 to 30 of my Opinion in Joined Cases C-94/04 and C-202/04 Cipolla and Others [2006] ECR I-11421.

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7 See, to that effect, Case 165/87 Commission v Council [1988] ECR 5545, paragraph 19; Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453, paragraphs 98 to 111.

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8 See, for example, Case 45/86 Commission v Council [1987] ECR 1493, paragraph 11; Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraph 12; Joined Cases C-164/97 and C-165/97 Parliament v Council [1999] ECR I-1139, paragraph 12; Case C-269/97 Commission v Council [2000] I'2257, paragraph 43; Case C-110/03 Belgium v Commission [2005] ECR I-2801, paragraph 78; Case C-176/03 Commission v Council [2005] ECR I-7879, paragraph 45; Case C-94/03 Commission v Council [2006] ECR I-1, paragraph 34; and Case C-301/06 Ireland v Parliament and Council [2009] ECR I-0000, paragraph 60.

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9 See Case C-155/91 Commission v Council [1993] ECR I-939, paragraphs 19 and 21; Case C-42/97 Parliament v Council [1999] ECR I-869, paragraph 38; Case C-36/98 Spain v Council [2001] ECR I-779, paragraph 59; Case C-336/00 Huber [2002] ECR I-7699, paragraph 31; Case C-211/01 Commission v Council [2003] ECR I-8913, paragraph 39; Case C-338/01 Commission v Council [2004] ECR I-4829, paragraph 55; and Case C-178/03 Commission v Parliament and Council, cited in footnote 4 above, paragraph 42. See also Opinion 2/00 [2001] ECR I-9713, paragraph 23.

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10 See, inter alia, Case C-300/89 Commission v Council, cited in footnote 3 above, paragraphs 13 and 1; Case C-42/97 Parliament v Council, cited in footnote 9 above, paragraphs 38 and 43; Huber, cited in footnote 9 above, paragraph 31; Case C-281/01 Commission v Council [2002] ECR I-12049, paragraph 35; Case C-211/01 Commission v Council, cited in footnote 9 above, paragraph 40; British American Tobacco (Investments) and Imperial Tobacco, cited in footnote 7 above, paragraph 94; Case C-94/03 Commission v Council, cited in footnote 8 above, paragraphs 34 to 36; Case C-178/03 Commission v Parliament and Council, cited in footnote 4 above, paragraphs 41 to 43; Case C-91/05 Commission v Council [2008] ECR I-0000, paragraph 75; and Case C-155/07 Parliament v Council, cited in footnote 4 above, paragraph 36. See also Opinion 2/00, cited in footnote 9 above, paragraph 23.

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11 In this case, the Community legal basis must prevail: see, to that effect, Case C-91/05 Commission v Council, cited in footnote 10 above, paragraphs 76 and 77.

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12 See Case C-94/03 Commission v Council, cited in footnote 8 above, paragraph 52, and Case C-155/07 Parliament v Council, cited in footnote 4 above, paragraph 37 and case-law cited.

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13 See Case 804/79 Commission v United Kingdom [1981] ECR 1045. See also Gautier, Y., 'La compétence communautaire exclusive',Mélanges en l'honneur à Guy Isaac: 50 ans de droit communautaire, Vol. 1, Presses universitaires de Toulouse, 2004, p. 165.

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14 In particular, as long as the harmonisation effected at Community level does not cover all of the area in question, the Member States remain, to that extent, competent and free to act. It follows that if the conclusion of an agreement covering that area is envisaged, it will fall within the shared competence of the Community and the Member States (see Opinion 2/00, cited in footnote 9 above, paragraphs 45 to 47).

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15 See Case C-94/03 Commission v Council, cited in footnote 8 above, and Case C-178/03 Commission v Parliament and Council, cited in footnote 4 above.

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16 See Case C-94/03 Commission v Council, cited in footnote 8 above, paragraph 52, and Case C-155/07 Parliament v Council, cited in footnote 4 above, paragraph 37 and case-law cited.

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17 See above, point 6 of this Opinion.

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18 To use the terms of the case-law cited in footnote 10 of this Opinion.

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19 Although it is not boundless: see Opinion 1/94 [1994] ECR I-5267.

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20 See Opinion 1/78 [1979] ECR 2871, paragraph 45, and Case 45/86 Commission v Council, cited in footnote 8 above, paragraph 19.

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21 See Case 45/86 Commission v Council, cited in footnote 8 above, paragraphs 17 to 21.

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22 See Case C-70/94 Werner [1995] ECR I-3189, paragraph 10; Case C-83/94 Leifer and Others [1995] ECR I-3231, paragraph 10; and Case C-124/95 Centro'Com [1997] ECR I-81, paragraph 26.

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23 See Case C-62/88 Greece v Council [1990] ECR I-1527, paragraphs 18 to 20, and Case C-281/01 Commission v Council, cited in footnote 10 above, paragraphs 39 to 43.

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24 See Greece v Council, cited in footnote 23 above, paragraph 20, and Case C-300/89 Commission v Council, cited in footnote 3 above, paragraph 22.

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25 See, to that effect, Opinion 2/00, cited in footnote 9 above.

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26 Opinion 2/00, cited in footnote 9 above, paragraph 33, and Case C-94/03 Commission v Council, cited in footnote 8 above, paragraph 44.

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27 See Case C-2/90 Commission v Belgium [1992] ECR I-4431, paragraphs 22 to 28.

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28 See, to that effect, concerning the Cartagena Protocol, which put in place control procedures applicable to transboundary movements of living modified organisms, Opinion 2/00, cited in footnote 9 above, paragraphs 37 to 40.

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29 See, mutatis mutandis, for the same type of analysis supporting Article 130s of the EEC Treaty as a legal basis instead of Article 100a of the EEC Treaty, Case C-187/93 Parliament v Council [1994] ECR I-2857, paragraph 26.

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30 See Opinion 2/00, cited in footnote 9 above, paragraph 40.

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31 See British American Tobacco (Investments) and Imperial Tobacco, cited in footnote 7 above, paragraph 96.

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32 Case C-281/01 Commission v Council, cited in footnote 10 above.

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33 See Case C-94/03 Commission v Council, cited in footnote 8 above.

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34 See Case C-178/03 Commission v Parliament and Council, cited in footnote 4 above.

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35 Case C-94/03 Commission v Council, cited in footnote 8 above, paragraph 44.

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36 See Opinion 2/00, cited in footnote 9 above.

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37 Advocate General Kokott had concluded in both cases that Article 175 EC alone was the appropriate legal basis.

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38 See Case C-94/03 Commission v Council, cited in footnote 8 above, paragraphs 44 and 45.

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39 See explicitly, to that effect, Opinion 2/00, cited in footnote 9 above, paragraph 25.

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40 OJ 1993 L 30, p. 1.

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41 See Case C-187/93 Parliament v Council, cited in footnote 29 above.

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42 Council Decision 93/98/EEC of 1 February 1993 on the conclusion, on behalf of the Community, of the Convention on the control of transboundary movements of hazardous wastes and their disposal (OJ 1993 L 39, p. 1) (with text of the Basel Convention attached).

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43 See Case C-9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus [2002] ECR I-3533, paragraphs 36 and 45 to 51.

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44 See, for example, Case 68/86 United Kingdom v Council [1988] ECR 855, paragraph 24, and Case C-271/94 Parliament v Council [1996] ECR I-1689, paragraph 24. See also point 29 of my Opinion in Case C-133/06 Parliament v Council [2008] ECR I-0000, paragraph 29.

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45 See, inter alia, Case C-187/93 Parliament v Council, cited in footnote 29 above; Case C-94/03 Commission v Council, cited in footnote 8 above, paragraph 50; Case C-178/03 Commission v Parliament and Council, cited in footnote 4 above, paragraph 55; Case C-91/05 Commission v Council, cited in footnote 10 above, paragraph 106; and Case C-155/07 Parliament v Council, cited in footnote 4 above, paragraph 34.

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46 OJ 2003 L 63, p. 1.

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47 See Case C-94/03 Commission v Council, cited in footnote 8 above.

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48 See Case C-178/03 Commission v Parliament and Council, cited in footnote 4 above.

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49 See Case C-301/06 Ireland v Parliament and Council, cited in footnote 8 above, paragraphs 73 and 74.