European Parliament v Council of the European Union.

• Jurisdiction: European Union
• Celex Number: 62006CJ0133
• ECLI: ECLI:EU:C:2008:257
• Court: Court of Justice (European Union)
• Date: 06 May 2008
• Docket Number: C-133/06
• Procedure Type: Recours en annulation - fondé

Case C-133/06

European Parliament

v

Council of the European Union

(Action for annulment – Common policy on asylum – Directive 2005/85/EC – Procedures in Member States for granting and withdrawing refugee status – Safe countries of origin – European safe third countries – Minimum common lists – Procedure for adopting or amending the minimum common lists – Article 67(1) and first indent of Article 67(5) EC – No power)

Summary of the Judgment

1. Visas, asylum, immigration – Asylum policy – Procedures in Member States for granting and withdrawing refugee status

(Art. 202 EC; Council Directive 2005/85, recitals 19 and 24)

2. Acts of the institutions – Procedure for adoption – Rules laid down in the Treaty – Mandatory nature

(Art. 67(2), second indent, EC)

3. Visas, asylum, immigration – Asylum policy – Procedures in Member States for granting and withdrawing refugee status

(Arts 63, first para., points 1 and 2(a), EC, 67(1) and (5) EC and 202 EC; Council Directive 2005/85)

1. Under Article 202 EC, when measures implementing a basic instrument need to be taken at Community level, it is the Commission which, in the normal course of events, is responsible for exercising that power. The Council must properly explain, by reference to the nature and content of the basic instrument to be implemented, why exception is being made to that rule.

In that regard, the grounds set out in recitals 19 and 24 in the preamble to Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status, which relate respectively to the political importance of the designation of safe countries of origin and to the potential consequences for asylum applicants of the safe third country concept, are conducive to justifying the consultation of the Parliament in respect of the establishment of the lists of safe countries and the amendments to be made to them, but not to justifying sufficiently a reservation of implementing powers which is specific to the Council.

(see paras 47-49)

2. The rules regarding the manner in which the Community institutions arrive at their decisions are laid down in the Treaty and are not at the disposal of the Member States or of the institutions themselves. The Treaty alone may, in particular cases such as that provided for in the second indent of Article 67(2) EC, empower an institution to amend a decision-making procedure established by the Treaty.

To acknowledge that an institution can establish secondary legal bases, whether for the purpose of strengthening or easing the detailed rules for the adoption of an act, would be tantamount to according that institution a legislative power which exceeds that provided for by the Treaty. It would also enable the institution concerned to undermine the principle of institutional balance which requires that each of the institutions must exercise its powers with due regard for the powers of the other institutions.

Furthermore, the existence of an earlier practice of establishing secondary legal bases cannot derogate from the rules laid down in the Treaty and cannot therefore create a precedent binding on the institutions.

(see paras 54-57, 60)

3. In order to determine whether the future adoption and amendment of the lists of safe countries through legislation or any decision to apply the third indent of Article 202 EC, in the form of a delegation or reservation of implementing powers, fall within paragraphs (1) or (5) of Article 67 EC, it is necessary to assess whether, with the adoption of Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status, the Council has adopted Community legislation defining the common rules and basic principles governing the issues covered by points 1 and 2(a) of the first paragraph of Article 63 EC.

Since Directive 2005/85 adopts detailed criteria enabling the lists of safe countries to be established subsequently, the Council has, by that legislative act, adopted ‘Community legislation defining the common rules and basic principles’ within the meaning of the first indent of Article 67(5) EC, and therefore the co-decision procedure is applicable.

(see paras 63, 65-66)

JUDGMENT OF THE COURT (Grand Chamber)

6 May 2008 (*)

(Action for annulment – Common policy on asylum – Directive 2005/85/EC – Procedures in Member States for granting and withdrawing refugee status – Safe countries of origin – European safe third countries – Minimum common lists – Procedure for adopting or amending the minimum common lists – Article 67(1) and first indent of Article 67(5) EC – No power)

In Case C‑133/06,

APPLICATION for annulment under the first paragraph of Article 230 EC, brought on 8 March 2006,

European Parliament, represented by H. Duintjer Tebbens, A. Caiola, A. Auersperger Matić and K. Bradley, acting as Agents,

applicant,

supported by:

Commission of the European Communities, represented by C. O’Reilly, P. Van Nuffel and J.‑F. Pasquier, acting as Agents, with an address for service in Luxembourg,

intervener,

v

Council of the European Union, represented by M. Simm, M. Balta and G. Maganza, acting as Agents, with an address for service in Luxembourg,

defendant,

supported by:

French Republic, represented by G. de Bergues and J.‑C. Niollet, acting as Agents,

intervener,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Lenaerts, A. Tizzano and L. Bay Larsen (Rapporteur), Presidents of Chambers, J.N. Cunha Rodrigues, R. Silva de Lapuerta, T. von Danwitz and A. Arabadjiev, Judges,

Advocate General: M. Poiares Maduro,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 20 June 2007,

after hearing the Opinion of the Advocate General at the sitting on 27 September 2007,

gives the following

Judgment

1 By its application, the European Parliament seeks, primarily, the annulment of Articles 29(1) and (2) and 36(3) of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13; ‘the contested provisions’) and, alternatively, the annulment of that directive in its entirety.

2 By order of the President of the Court of Justice of 25 July 2006, the Commission of the European Communities and the French Republic were granted leave to intervene in support of the forms of order sought by the Parliament and the Council of the European Union respectively.

Legal context

Relevant provisions of the EC Treaty

3 The first paragraph of Article 63 EC in Title IV of the Treaty, headed ‘Visas, asylum, immigration and other policies related to free movement of persons’, provides:

‘The Council, acting in accordance with the procedure referred to in Article 67 [EC], shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:

(1) measures on asylum …, within the following areas:

…

(d) minimum standards on procedures in Member States for granting or withdrawing refugee status;

(2) measures on refugees and displaced persons within the following areas:

(a) minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection;

…’

4 Article 67 EC, as amended by the Treaty of Nice, provides:

‘1. During a transitional period of five years following the entry into force of the Treaty of Amsterdam, the Council shall act unanimously on a proposal from the Commission or on the initiative of a Member State and after consulting the European Parliament.

2. After this period of five years:

– the Council shall act on proposals from the Commission; the Commission shall examine any request made by a Member State that it submit a proposal to the Council;

– the Council, acting unanimously after consulting the European Parliament, shall take a decision with a view to providing for all or parts of the areas covered by this title to be governed by the procedure referred to in Article 251 [EC] and adapting the provisions relating to the powers of the Court of Justice.

…

5. By derogation from paragraph 1, the Council shall adopt, in accordance with the procedure referred to in Article 251 [EC]:

– the measures provided for in Article 63(1) and (2)(a) [EC] provided that the Council has previously adopted, in accordance with paragraph 1 of this Article, Community legislation defining the common rules and basic principles governing these issues,

…’

Secondary legislation prior to Directive 2005/85

5 Council Regulation (EC) No 343/2003 of 18 February 2003 establishing...