European Parliament v Council of the European Union.

• Jurisdiction: European Union
• Celex Number: 62013CC0317
• ECLI: ECLI:EU:C:2015:34
• Court: Court of Justice (European Union)
• Docket Number: C-540/13
• Date: 22 January 2015
• Procedure Type: Recours en annulation - fondé

OPINION OF ADVOCATE GENERAL

WAHL

delivered on 22 January 2015 ( 1 )

Joined Cases C‑317/13 and C‑679/13

European Parliament

v

Council of the European Union

Case C‑540/13

European Parliament

v

Council of the European Union

‛Action for annulment — Legal basis — Police and judicial cooperation in criminal matters — Implementing measures — No consultation of the Parliament — Impact of the entry into force of the Treaty on the Functioning of the European Union — Transitional provisions — Article 9 of Protocol No 36 — Objective — Legal effects’

1. The entry into force of the Treaty of Lisbon brought about significant changes in the institutional landscape of the European Union, which forms the legal background for the enacting of measures pertaining to EU cooperation in police and criminal justice (former Title VI of the EU Treaty) (also ‘the third pillar’). Traditionally, the third pillar was characterised by intergovernmental decision-making and the European Parliament enjoyed only peripheral significance. With ‘Lisbonisation’, however, the third pillar was incorporated into the supranational EU framework and, consequently, the applicable decision-making procedures were realigned with those of other fields of EU policy. The extension to this area of the ordinary legislative procedure (formerly ‘the co-decision procedure’) has thus in general strengthened the Parliament’s position as the co-legislator, whose competences in this field are now on a par with those of the Council.

2. The present actions for annulment brought by the Parliament are manifestations of the complexities of that transformation process. More specifically, the cases under consideration turn on the proper construction of Article 9 of Protocol No 36 ( 2 ) on transitional provisions, annexed to the Treaties. In accordance with that provision, the legal effects of measures adopted under the third pillar prior to the entry into force of the Treaty of Lisbon are to be preserved until the relevant acts are repealed, annulled or amended. In the light of the interpretation adopted, the Court has the opportunity to determine the parameters for assessing the legality of measures adopted by the Council after the entry into force of the Treaty of Lisbon on the basis of acts falling within the scope of Article 9 of Protocol No 36.

I – Legal framework

A – Protocol No 36

3. Article 9 of Protocol No 36 provides: ‘The legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties. The same shall apply to agreements concluded between Member States on the basis of the Treaty on European Union.’

B – Relevant decisions

1. The 2005 Decision ( 3 )

4. The 2005 Decision was adopted on the basis of the EU Treaty pre-Lisbon and, in particular, on the basis of Articles 29, 31(1)(e) and 34(2)(c) EU. In other words, the decision was adopted on the basis of the third pillar and concerns the field of police and judicial cooperation in criminal matters.

5. In accordance with Article 1 of the 2005 Decision, that decision establishes a mechanism to enable the exchange of information on new psychoactive substances. It also puts in place a risk-assessment mechanism to determine the need to apply control measures in relation to those substances. More generally, the 2005 Decision establishes a mechanism intended to ensure a quick and coordinated response by Member States to new psychoactive substances which are deemed to constitute a risk (to public health or otherwise).

6. Article 8 of the 2005 Decision lays down the procedure for the application to specific new psychoactive substances of control measures already applied in Member States in relation to narcotic and psychotropic substances. Article 8(3) states that the decision to apply control measures to a new psychoactive substance is to be taken by the Council, by qualified majority, on the basis of Article 34(2)(c) EU.

7. Under Article 9 of the 2005 Decision, once a decision to that effect has been taken by the Council, it falls on the Member States to take the necessary measures in accordance with national law to ensure that control measures and criminal penalties are applied in relation to the new substances.

8. The actions in Joined Cases C‑317/13 and C‑679/13 concern decisions ( 4 ) that the Council has taken on the basis of Article 8(3) of the 2005 Decision.

2. Implementing Decision 1

9. Implementing Decision 1 concerns 4-methylamphetamine, which is a synthetic ring-methylated derivative of amphetamine. The preamble to the decision states that it was adopted on the basis of the FEU Treaty and Article 8(3) of the 2005 Decision.

3. Implementing Decision 2

10. Implementing Decision 2 concerns a synthetic derivative of indole, which arguably has hallucinogenic effects. As in the case of Implementing Decision 1, the preamble to the decision states that it was adopted on the basis of the FEU Treaty and Article 8(3) of the 2005 Decision.

4. The VIS ( 5 ) Decision

11. The VIS Decision ( 6 ) was adopted on the basis of the EU Treaty pre-Lisbon and, in particular, on the basis of Articles 30(1)(b) and 34(2)(c) EU. Similarly to the 2005 Decision, the VIS Decision was thus adopted on the basis of the third pillar and concerns the field of police and judicial cooperation in criminal matters.

12. The VIS is a system for the exchange of visa data between Member States. One of the expressly stated aims of the system is to enhance internal security and to combat terrorism. To ensure that that aim is achieved, the Council considered it necessary to grant access to the data available in the VIS to the designated Member State authorities responsible for internal security as well as to Europol. To that end, the VIS Decision was adopted to complement the VIS Regulation. ( 7 )

13. Given the complexities in setting up the system for access, it was decided that the VIS Decision would take effect at a later date, to be determined by the Council. Article 18(2) of the VIS Decision thus states that the decision is to take effect from a date to be determined by the Council once the Commission has informed the Council that the VIS Regulation has entered into force and is fully applicable.

5. The Date Decision

14. The action in Case C‑540/13 concerns the decision ( 8 ) taken by the Council to fix the date of application of the VIS Decision.

15. Upon being informed by the Commission that the VIS Regulation was fully applicable, the Council adopted the Date Decision on the basis of the FEU Treaty and Article 18(2) of the VIS Decision. In accordance with Article 1 of the Date Decision, the VIS Decision was to take effect on 1 September 2013.

II – Procedure and forms of order sought

16. By orders of the President of the Court of 8 October 2013 and 28 April 2014, the Republic of Austria was granted leave to intervene in support of the Council in Cases C‑317/13 and C‑679/13. By order of the President of the Court of 27 March 2014, those two cases were joined for the purposes of the oral procedure and the judgment.

A – Joined Cases C‑317/13 and C‑679/13

17. By its actions, the Parliament claims that the Court should: — annul the implementing decisions at issue; — maintain the effects of those decisions until they are replaced with new acts adopted in the prescribed manner; and — order the Council to pay the costs.

18. The Council contends — supported by the Republic of Austria — that the Court should: — dismiss the actions; — reject the plea of illegality ( 9 ) regarding the 2005 Decision as inadmissible or, at the very least, as unfounded; — order the Parliament to pay the costs; and — in the alternative, in the event that the Court annuls the implementing decisions at issue, maintain the effects of those decisions until they are replaced with new acts.

B – Case C‑540/13

19. By its action, the Parliament claims that the Court should: — annul the Date Decision; — maintain the effects of the decision until such time as it is replaced with a new act adopted in the prescribed manner; and — order the Council to pay the costs.

20. The Council contends that the Court should: — dismiss the action as inadmissible or, at the very least, as unfounded; — order the Parliament to pay the costs; and — in the alternative, in the event that the Court annuls the Date Decision, maintain the effects of that decision until it is replaced with a new act.

C – Joined Cases C‑317/13 and C‑679/13, and Case C‑540/13

21. The Parliament and the Council presented oral argument at the joint hearing held on 5 November 2014 for all the three cases under consideration.

III – Analysis

A – Preliminary issues

1. The main arguments put forward by the parties

22. In Joined Cases C‑317/13 and C‑679/13, the Parliament contests the legality of the implementing decisions at issue, alleging that in each case the Council had used the wrong legal basis. Case C‑540/13, on the other hand, concerns a decision by which the Council, acting in accordance...