European Parliament v. Council, Joined Cases C‐164/97 and C‐165/97 (Legal Basis for Forest Protection Measures)

• Date: 01 November 1999
• Author: Nina Ost
• DOI: http://doi.org/10.1111/1467-9388.00220
• Published date: 01 November 1999

Volume 8 Issue 3 1999 Case Notes

Such an interpretation of Article 176 would mean that

the legal basis debate which has haunted many of the

earlier ‘environmental’ directives is far from over.

13

It is

only that the stakes in the game have changed. Whereas

in previous cases the legal basis was at stake because

of the decision making procedure and mainly the role of

the European Parliament therein, a new cause for poten-

tial disputes may now be the procedure to allow Member

States to take stricter measures.

Notes

1. Commission Decision 1999/5/EEC, O.J. L3, 7.1.99, at 13. See:

Roda Verheyen, ‘The European Commission on the Swedish

prohibition of cyclamate and certain colours in foodstuffs’,

RECIEL, 8:2 (1999) 218.

2. Council Directive 94/36/EEC on colours for use in foodstuffs, OJ

L237, 10.09.94, at 13.

3. The Directive was based on Article 100a EC Treaty. As of 1 May

1999 Article 100a has been amended and renumbered as Article

95 by the Treaty of Amsterdam.

4. n. 1 above.

5. This is consistent with previous case law. See inter alia Case

8/81 Becker, [1982] ECR 53; Cases C-246/94 to C-249/94 Coop-

erativa Agricola Zootecnica S. Antonio and others, [1996] ECR

I-4373.

6. The amended and renumbered Article now has a time limit of

6 months (Article 95(6) EC Treaty).

7. The ECJ further held that ‘The implementation of the notifi-

cation scheme under Article 100a(4) requires the Commission

and the Member State to cooperate in good faith’ (para 35).

8. Case C-41/93 France v. Commission, [1994] ECR I-1829.

9. n.7 above, at para 30.

10. Opinion of AG Antonio Saggio in case C-319/97, presented on

28 January 1999.

11. Article 100a(3) old EC Treaty. See also the opinion of the AG,

paras 20–24. The amended version in Article 95(3) now adds

‘taking account in particular of any new development based on

scientific facts’.

12. See for instance Article 6(6) of the European Parliament and

Council Directive 94/62/EC of 20 December 1994 on packaging

and packaging waste, OJ L 365 , 31.12.94, at 10.

13. See also Joined Cases C-164/97 and C-165/97, discussed in this

issue of RECIEL.

Written by: Lara Levis, trainee at Freshfields, London

European Parliament v.

Council, Joined Cases C-

164/97 and C-165/97 (Legal

Basis for Forest Protection

Measures)

Introduction

The protection of forests has been a matter of Com-

munity interest since the early 1980s. The Community’s

interest in forests can be explained by two facts. First,

wood constitutes an important resource; the European

Union is the second largest timber consumer in the

world. Second, forests cover about 24% of the Com-

munity territory, making the damage to and destruction

of woodland an issue of significant importance.

1

The two

main legislative measures to bring the Community’s for-

estry policy into effect concern the protection of forests

against atmospheric pollution and the protection of for-

Blackwell Publishers Ltd. 1999.

349

ests against fire.

2

On 25 February 1999 the European

Court of Justice (ECJ) decided that the Regulations

amending these two EC forestry Regulations should have

been adopted on the basis of the environmental pro-

visions rather than the provisions on the common agri-

cultural policy in the EC Treaty.

3

This judgment is the

latest in a series of cases on the choice of the legal basis

for Community legislation.

4

It illustrates that uncer-

tainties on the choice of the legal basis will remain, even

after the entry into force of the Amsterdam Treaty.

The ECJ’s judgment of 25 February 1999

In an application for annulment, the European Parlia-

ment contested the legal basis of the two Regulations

amending the EC forestry Regulations on the protection

of forests against atmospheric pollution and against fire.

The Regulations extended for a further period of five

years the duration of the existing Regulations that had

been adopted in January 1987. When extended for the

second time in 1997, the contested Regulations 307/97

and 308/97

5

were adopted on the basis of Article 43 of

the EC Treaty, the legal basis for the adoption of legis-

lation for the implementation of the Community’s agri-

cultural policy, rather than on the basis of Article 130s,

the legal basis for the adoption of environmental legis-

lation.

6

Recourse to a double legal basis (both Articles 43

and 130s), the approach which was taken in the original

Regulations, was not possible. The decision-making pro-

cedures foreseen by these provisions were no longer

compatible, after the Maastricht Treaty changed the

main decision-making procedure in Article 130s.

The choice of the legal basis for a particular Community

measure is in many cases essential to the preservation

of the European Parliament’s prerogatives. The ‘insti-

tutional balance intended by the Treaty’

7

is achieved by

the different decision-making procedures contained in

the EC Treaty. It is shifted in favour of the Parliament

when a particular legal basis provides for a procedure

endowing this institution with enhanced participatory

rights. The decision-making procedure that gives the

largest role to the European Parliament is the co-

decision procedure, which allows Parliament to propose

amendments and veto the adoption of the legislative pro-

posal. This co-operation procedure only gives Parlia-

ment the competence to propose non-binding amend-

ments. The consultation procedure only allows for an

advisory role for the European Parliament.

As a consequence of choosing Article 43 of the EC Treaty

as the legal basis, the Regulations had been adopted by

the Council through qualified majority voting under the

consultation procedure. The European Parliament

claimed that both Regulations should have been based

on Article 130s. The main legislative procedure in that

Article provided, at that time,

8

for the co-operation pro-

cedure, which would have given the European Parlia-

ment a much larger say in the adoption process.

In the present case, the Court followed the Parliament’s

assertion that, ‘by basing the Regulations on Article 43

of the EC Treaty although Article 130s was the appropri-

ate legal basis, the Council has infringed essential pro-