DUAL LEGAL BASES IN EC ENVIRONMENTAL LAW REVISITED: NOTE ON THE JUDGMENTS OF THE EUROPEAN COURT OF JUSTICE IN THE CASES C‐94/03 (COMMISSION OF THE EUROPEAN COMMUNITIES V. COUNCIL OF THE EUROPEAN UNION) AND C‐178/03 (COMMISSION OF THE EUROPEAN COMMUNITIES V. EUROPEAN PARLIAMENT AND COUNCIL OF THE EUROPEAN UNION)

• DOI: http://doi.org/10.1111/j.1467-9388.2006.00526.x
• Published date: 01 November 2006
• Date: 01 November 2006
• Author: Dora Schaffrin

RECIEL 15 (3) 2006. ISSN 0962 8797

339

© 2006 The Author.

Journal compilation © 2006 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

Blackwell Publishing Ltd

ORIGINAL ARTICLE

RECIEL 15 (3) 2006Case Note

Case Note

DUAL LEGAL BASES IN EC

ENVIRONMENTAL LAW

REVISITED: NOTE ON

THE JUDGMENTS OF THE

EUROPEAN COURT OF

JUSTICE IN THE CASES

C-94/03 (

COMMISSION OF THE

EUROPEAN COMMUNITIES V.

COUNCIL OF THE EUROPEAN

UNION

) AND C-178/03

(

COMMISSION OF THE

EUROPEAN COMMUNITIES V.

EUROPEAN PARLIAMENT AND

COUNCIL OF THE EUROPEAN

UNION

)

BACKGROUND

In its settled jurisprudence, the European Court of

Justice (ECJ) has repeatedly held that:

(1) the choice of legal basis must be based on objec-

tive factors which are amenable to judicial

review and include, in particular, the aim and

content of the measure;

1

(2) if an act pursues a twofold purpose or it has a

twofold component, and if one of those is identi-

fiable as the main or predominant purpose or

component, whereas the other is merely incidental,

the act must be based on a single legal basis,

namely that required by the main or predominant

purpose or component;

2

(3) exceptionally, if, on the other hand, it is established

that the act 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, such an act

will have to be founded on the various corre-

sponding legal bases;

3

and that, by way of a counter-exemption:

(4) recourse to a dual legal basis is not possible

where the procedures laid down for each legal

basis are incompatible with each other or where

the use of two legal bases is liable to undermine

the rights of the Parliament.

4

As to the consequences of the use of an inappropriate

legal basis, the ECJ has held that purely formal defects

do not give rise to annulment and that ‘an error in the

citations of a Community act is no more than a purely

formal defect, unless it gives rise to irregularity in the

procedure applicable to the adoption of that act’.

5

As is clear from the use of the term ‘exceptionally’ and

the counter-exemption, the ECJ sees the use of a dual

legal basis as a fallback option only. Accordingly, in its

previous decisions, it has always found that one of

several possible legal bases should correctly have been

used alone. In two judgments rendered on 10 January

2006, the ECJ has now held, for the first time and

contrary to the opinion of Advocate-General Kokott,

that the application of its jurisprudence led to the

requirement of a dual legal basis and that the acts

in question, which had erroneously been based on a

single legal basis only, therefore, had to be annulled.

This case note gives an overview of the facts underlying

the judgments, the opinion of Advocate-General Kokott,

as well as the decision of the ECJ. The subsequent

analysis welcomes the decision.

FACTS

Both cases concerned actions for annulment under

Article 230 of the EC Treaty.

6

At stake was the validity

of Council Decision 2003/106/EC of 19 December

2002 concerning the approval, on behalf of the Euro-

pean Community, of the Rotterdam Convention on the

Prior Informed Consent Procedure for certain hazardous

chemicals and pesticides in international trade (‘the

Decision’)

7

in case C-94/03 and of Regulation (EC) No

1

Repeated in ECJ 20 January 2006, Case C-94/03,

Commission v.

Council

(unreported), at 34.

2

Ibid., at 35.

3

Ibid., at 36.

4

Ibid., at 52.

5

ECJ 14 December 2004, Case C-210/03,

The Queen, on the

application of Swedish Match AB, Swedish Match UK Ltd v.

Secretary of State for Health

[2004] ECR I-11893, at 44.

6

Subsequent articles are articles from the Treaty establishing the

European Community (Rome, 25 March 1957).

7

Council Decision 2003/106/EC of 19 December 2002 concerning

the approval, on behalf of the European Community, of the

Rotterdam Convention on the Prior Informed Consent Procedure for

certain hazardous chemicals and pesticides in international trade,

[2003] OJ L63/27.