Case C-540/13 concerned a dispute between the European Parliament and the Council of the European Union, where the Parliament brought an action against the Council before the European Court of Justice (CJEU) in an attempt to annul Council Decision 2013/392/EU.
Facts of the case
Decision 2013/392/EU was contested since it set the date on which an earlier Council Decision was to take effect, namely Council Decision 2008/633/JHA. The latter concerned the access for consultation of the Visa Information System (VIS) in order to exchange visa data between the Member States. The purpose was to combat terrorism. Due to the complexities of setting up such a system, the Council Decision of 2008 (the VIS Decision) provided that it should take effect on a date decided by the Council as soon as it had been notified by the Commission that Regulation (EC) No 767/2008, which concerned the VIS system, had entered into force. However, the Council Decision of 2013 stated that it was to take effect from 1 September 2013. The Parliament therefore claimed the contested Decision to be annulled.
The Parliament based their claim on two main pleas. Firstly, it criticized the Council for having applied an incorrect decision-making process for the adoption of Decision 2013/392/EU. The Parliament should have been involved in the adoption of the contested decision within the framework of a legislative procedure. Since it did not participate, the contested decision was a breach of an “essential procedural requirement”. Secondly, it criticized the Council for having either used a legal basis repealed by the Lisbon Treaty or a legal basis in secondary law which, according to the Court’s case-law, was unlawful. The pleas were, however, considered in a reverse order. Therefore, the second plea will be considered first.
Findings of the Court
In the first part of the second plea, the Parliament argued that the Council had chosen Article 34(2)(c) EU a legal basis that had been repealed by the Lisbon Treaty. Therefore, it could not be used as a legal basis for adopting any new acts (para.15). The CJEU stated that there is no referral to Article 34 EU in the contested decision, it rather expressly referred to the TFEU and Article 18(2) of the VIS Decision as the legal basis for the decision. The Court stated that the referral to the TFEU and Article 18(2) of the VIS Decision indicated that the decision was based on the latter provision (para. 21). Consequently, the repeal of Article 34 EU could not deprive the decision of a legal basis (para. 22).
In the second part of the second plea, the Parliament contested the legality of Article 18(2) (para. 24). The provision was claimed to be unlawful since the creation of a secondary legal basis which eases the detailed rules for adopting measures, such as the contested decision, was incompatible by comparison with the procedure laid down in the Treaties (para. 25).
The CJEU held that the legality of an EU act must be assessed according to the relevant facts and the law as they stood at the time they were adopted. Therefore, the legality of Article 18(2) was assessed according to the provisions that governed the contested decision at the time when it was adopted, namely Articles 34(2)(c) and 39(1) EU (para. 35). Article 18 of the VIS Decision was to be interpreted in accordance with Article 39 EU as permitting the Council to adopt such an act only after it has consulted the Parliament (para. 40).
The Court then referred to Article 9 of the Protocol (No 36) on Transnational Provisions, providing that the legal effects of certain acts adopted under the EU treaty should be preserved until they are repealed, even after the entry into force of the Lisbon Treaty (para. 42). Therefore, even if Article 18(2) of the VIS Decision made it easier to adopt a legislation in comparison to the procedural rules of the TFEU, it was not an invalid secondary legal basis (para. 48). Regarding the first plea, the Court stated that since Article 18 should be read in accordance with Article 39 EU (see para. 35), the Council was required to consult the Parliament (para. 55).
What is interesting in this judgment is that the CJEU did not completely follow the opinion presented by the Advocate General. Concerning the consultation of the Parliament, the opinion of Advocate General Wahl and that of the Court diverged. While the Court held that the Council should have consulted the Parliament, Wahl was of the opinion that it was not necessary. The Court reached its conclusion by interpreting the legal basis (Article 18(2)) in accordance with Article 39 EU, while Wahl considered Article 39 EU to no longer have any legal effect (para. 72). Wahl argued that this legal issue should be based on Article 9 of the Protocol No 36 instead of Article 39 EU. Article 9 of the Protocol No 36 provides that secondary EU legislation that has been adopted under the three pillar system continues to have legal effect. Since that provision does not refer to primary legislation, in particular to the TFEU and its former Article 39 concerning the obligation to consult the Parliament in relation to such measures adopted on the basis of powers previously conferred, it should not be read in the context of the current institutional framework. Wahl further concluded that implementing decisions taken under the three pillar system constitute, together with Article 9 of Protocol No 36, a special measure that does not need the involvement of the Parliament (para. 76).
The Lisbon Treaty provided that third pillar matters were included in the EU framework, thus extending the decision-making power of the Parliament to a wider range of EU policy areas (see the legislative powers here). The increasing role of the Parliament will also strengthen the influence of the citizens of the Member States. The Parliament represents the EU citizens and are directly chosen by them, so its legislative power would thus be a way for EU citizens to have “a say” on this matter. If the Parliament is not involved in the legislative procedure, its key role as promoting democracy is undermined and the institutional power would undoubtedly be unbalanced.
Furthermore, the fact that the Court and the Advocate General concluded differently can probably be explained by this democratic role of the Parliament within the EU. Moreover, since the case is of a highly constitutional matter, it would probably have been remarkable if the Court had established a case-law that allowed the Council to not consult the Parliament in a consultation procedure.
Finally, an interesting aspect of the case is the different dates of it. Eventually, the Court reached the conclusion that since the contested decision had already been adopted, the legal effects of it would remain until a new decision had been adopted. Further, the Parliament brought the case to the Court after the contested decision had been adopted, and since the decision only concerned the date of entry into force, there was only a formal issue that could be corrected. Perhaps the Parliament saw it as a matter of principle – the Council should not be making decisions without first consulting the Parliament. If the Council was allowed to do so once without some sort of consequences it might of course do it again.
by Sara Carlbom, Emilia Pettersson, Marcus Johansson