OPINION OF MR ADVOCATE GENERAL delivered on 26 May 1988 *

PARLIAMENT v COUNCIL OPINION OF MR ADVOCATE GENERAL delivered on 26 May 1988 * DARMON Mr President, Members of the Court, 1. On 5 November 1987, on the basis of Article 91 of the Rules of Procedure, the Council raised an objection of inadmissibility to the action for annulment brought on 2 October 1987 by the European Parliament against the Council's decision of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission, 1 a decision generally known as the 'comitology' decision. At the same time, it asked the Court to rule on its objection as a matter of urgency. The procedure moved at a rapid pace. On 9 December 1987, the Parliament submitted its observations on the objection of inadmissibility. On 20 January 1988, the Court decided to hear the parties on the question of the admissibility of the application at a hearing fixed for two months later, on 24 March 1988. The time has now come to deliver my Opinion. 2. Essentially, the Council denies the European Parliament's capacity to bring an action for annulment. It is that fundamental question, the constitutional significance of which escapes no one, which must be decided for the first time by the Court. In addressing myself to that question, I take as my starting point the acquis jurisprudentiel on the various aspects of the European Parliament's involvement in judicial proceedings, but I am aware that the case-law on that subject remains controversial and that it is slightly * Translated from the French. 1 87/373/EEC, OJ L 197, 18.7.1987, p. 33. differently construed by the parties before the Court and by legal writers, particularly in regard to its potential evolution. After taking different positions, altered according to the circumstances of the previous cases, the Council and the Parliament no longer challenge that case-law. In this action, the Council is merely disputing the inferences which the Parliament draws from the Court's case-law. The Parliament, for its part, in a Resolution of 9 October 1986, 2 welcomed the outcome of the Court's decisions and considered that this implied recognition of its capacity to bring actions under Article 173 of the Treaty and, therefore, that the present action is admissible. 3. Leaving aside staff cases and cases decided under the ECSC Treaty, what is the present position as regards the Parliament's involvement in judicial proceedings? (i) Measures adopted by the European Parliament may be the subject of a reference for a preliminary ruling. 3 (ii) In the 'Isoglucose' judgments of 29 October 1980 4 the Court held that the European Parliament has a general right to intervene under the first paragraph of Article 37 of the Statute 2 OJC 283, 10.11.1986, p. 85. 3 Judgment of 12 May 1964 in Case 101/63 Wagner v Fohrman and Krier [1964] ECR 195; judgment of 15 September 1981 in Case 208/80 Lord Bruce of Donington v Aspden [1981] ECR 2205; judgment of 10 July 1986 in Case 149/85 Wybot v Faure [1986] ECR 2391; Case 131/87 Commission v Council, pending before the Court, see order of 30 September 1987. 4 Case 138/79 Roquette Frires SA v Council [1980] ECR 3333 and Case 139/79 Maizena GmbH v Council [1980] ECR 3393. 5627

OPINION OF MR DARMON CASE 302/87 of the Court of Justice of the EEC 5 without having to prove that it has an interest in the result of the case. (iii) In its judgment of 22 May 1985 in the 'Common transport policy' case 6 the Court held that the Parliament was also a privileged applicant entitled under Article 175 of the EEC Treaty to bring an action for failure to act. 7 (iv) The Parliament may be required by the Court, under the second paragraph of Article 21 of the Statute of the Court of Justice of the EEC, to supply it with information both in direct actions 8 and in proceedings for preliminary rulings. 9 (v) Finally, in its judgment of 23 April 1986 in Parti écologiste 'Les Verts' v European Parliament, 10 the Court held that the Parliament could be made a defendant in an action for annulment based on Article 173 of the Treaty. 11 5 The Parliament intervened in Joined Cases 281, 283 to 285 and 287/85 Federal Republic of Germany v Commission (Migration policy Competence of the Community), in which judgment was delivered on 9 July 1987, [1987] ECR 3203, and in Cases 131/87 and 16/88 Commission v Council, judgments of 16 November 1989 and of 24 October 1989, not yet published. 6 Case 13/83 Parliament v Council [1985] ECR 1513, at p. 1556. 7 The Parliament has brought another action against the Council for failure to act in Case 377/87, judgment of 12 July 1988, ECR 4017. 8 Judgment of 10 July 1986 in Case 270/84 Assunta Licata v Economic and Social Committee [1986] ECR 2305; judgment of 10 July 1986 in Case 149/85 Wybot v Faure, cited above, [1986] ECR 2391; judgment of 15 January 1987 in Case 152/85 Missetv Council[1987] ECR 223. 9 Judgment in Case 101/63 Wagner v Fohrman and in Case 208/80 Lord Bruce of Donnington v Aspden, cited above; Case 20/85 Roviello v Landesversicherungsanstalt Schwaben, judgment of 7 June 1988, ECR 2805. Under the second paragraph of Article 20 of the Statute of the Court of Justice, only 'the parties, the Member States, the Commission and, where appropriate, the Council, shall be entitled to submit statemenu of case or written observations' in proceedings for preliminary rulings. 10 Case 294/83 [1986] ECR 1339. That decision was confirmed by the order of 4 June 1986 in Case 78/85 Croup of the European Right v European Parliament [1986] ECR 1753 and by the judgment of 3 July 1986 in Case 34/86 Council v Parliament [1986] ECR 2155, concerning the budget. 11 It should be noted that in the two Cases 51/85 and 358/85 France v Parliament, which were joined by order of 8 July 1987, are currently pending before the Court. 4. It should be noted that, as regards references for preliminary rulings, intervention, failure to act and the submission of observations at the request of the Court (the last matter has never been at issue), the solution adopted by the Court is based on a literal interpretation of the relevant Community provisions. 5. The first matter concerns Article 177 of the Treaty which provides that: 'The Court of Justice shall have jurisdiction to give preliminary rulings concerning:... (b) the validity and interpretation of acts of the institutions of the Community'. Although some doubts have been expressed regarding the admissibility of a reference for an assessment of the validity of a measure because of its kinship with and affinity to judicial review within the framework of an action for annulment, 12 those doubts have been dispelled since the judgment in 'Les Verts'. 1 3 In the second case, the first paragraph of Article 37 of the Statute of the Court of Justice of the EEC provides that: 'Member States and institutions of the Community may intervene in cases before the Court'. In the third case, the first paragraph of Articie 175 of the EEC Treaty provides that: 'Should the Council or the Commission, in infringement of this Treaty, fail to act, the Member States and other institutions of the Community may bring an 12 G. Vandersanden and A. Barav: Contentieux communautaire, Brussels, E. Buylant, 1977, p. 304; R. Joliet: Le droit institutionnel des Communautés européennes, le contentieux, Faculté de droit, d'économie et de sciences sociales de Liège, 1981, p. 196. 13 G. Isaac: 'L'insertion du Parlement européen dans le système juridictionnel des Communautés européennes', in Annuaire français de droit international, 1986, p. 794, in particular at p. 797. 5628

PARLIAMENT v COUNCIL action before the Court of Justice to have the infringement established'. Finally, in the fourth case, the second paragraph of Article 21 of the Statute of the Court of Justice of the EEC provides that: 'The Court may also require the Member States and institutions not being parties to the case to supply all information which the Court considers necessary for the proceedings'. 6. In all of those cases, the expression 'institution' has been understood as including the European Parliament. Whilst no controversy arose, in that regard, over references for preliminary rulings or the submission of observations at the request of the Court, objections were however raised in regard both to intervention and to actions for failure to act. However, in the 'Isoglucose' judgments, the Court, agreeing with the Opinion of Mr Advocate General Reischl, held that: 'the first paragraph of that article provides that all the institutions of the Community have the right to intervene. It is not possible to restrict the exercise of that right by one of them without adversely affecting its institutional position as intended by the Treaty and in particular Article 4 (1)'. 1 4 Similarly, in the 'Common transport policy' judgment, the Court, following the Opinion of Mr Advocate General Lenz, stated that: 14 Cases 138 and 139/79 Roquette Frères and Maizena v Council, cited above, paragraph 19. '... the first paragraph of Article 175... expressly gives a right of action for failure to act against the Council and Commission inter alia to "the other institutions of the Community". It thus gives the same right of action to all the Community institutions. It is not possible to restrict the exercise of that right by one of them without adversely affecting its status as an institution under the Treaty, in particular Article 4 (1)'. 15 7. Thus, whenever the relevant provisions contained the expression 'institution', the Court interpreted it as including the European Parliament. This solution is reinforced by the fact that the Parliament is a Community institution which, like the Council, the Commission and the Court of Justice, has the duty of 'carrying out the tasks entrusted to the Community'. 1 6 However, it was not possible to have recourse to a literal interpretation where it was a question of deciding whether measures adopted by the European Parliament might be challenged before the Court by way of an action for annulment; the first paragraph of Article 173 of the EEC Treaty provides for judicial review by the Court only of acts adopted by the Council and the Commission. Another approach was therefore adopted. 8. It was in the context of the abovementioned litigation that the expressions legitimation active and légitimation passive made their appearance and became part of the vocabulary of Community law, the first referring to the capacity of the European Parliament to be an applicant in actions before the Court of Justice and the second to its capacity to be a defendant. It was thus 15 Case 13/83 European Parliament v Council, cited above, paragraph 17. 16 Article 4 (1) of the EEC Treaty. 5629

OPINION OF MR DARMON CASE 302/87 predictable and in fact inevitable that potential proponents of litigation between the institutions, and also legal writers, would raise the question whether the trilogy of intervention, légitimation active regarding failure to act and légitimation passive regarding annulment should not, when the time was ripe, become a tetralogy through recognition of the Parliament's légitimation active in actions for annulment. 9. In replying to that question, I attach little importance to the recognition in the 'Isoglucose' judgments of the European Parliament's right to intervene. Although some have argued that, once it is accepted that the Parliament has such a right, it would be illogical to deny it the right to bring an action for annulment and thus to obtain directly something which it could assist indirectly in obtaining by way of a declaration, 17 it should be pointed out that the right to intervene is not necessarily subordinate to the independent right to bring legal proceedings. 18 10. On the other hand, some 'technical' features of the manner of prosecuting the action for failure to act, which, according to the Court's decision in the 'Common transport policy' case, may be brought by the Parliament, and some of the reasons on which the judgment in 'Les Verts' is based combine to suggest that the Parliament should have the capacity to bring an action for annulment. In other words, certain aspects of the case-law which I have just mentioned seem to me to afford sufficiently cogent reasons for adopting a solution enabling the Parliament to protect its own institutional rights and powers in the 17 Sec, for example, K. Lenaerts: 'La position du Parlement Européen devant la Cour de justice à la lumière de la position du Congrès américain devant le juge fedéral', a paper delivered at the Conference organized by the Institut d'études européennes of the Université libre de Bruxelles, 24 to 26 September 1987, on the subject: 'Le Parlement européen dans l'évolution institutionnelle', roneoed text, p. 10. 18 See, for example, J.-C. Masclet: 'Le Parlement européen devant ses juges', Revue du marché commun, 1983, p. 518, particularly at p. 521. capacity of applicant in an action for annulment. 11. As is known, the first step for setting in motion proceedings for failure to act is the service of a notice calling upon the Council or the Commission to act. According to Article 175 of the Treaty, the institution concerned has two months in which to 'define its position' in regard to the request made to it. If it does not do this within two months, the applicant may within a further period of two months bring an action before the Court to have the failure to act established. If, on the other hand, the institution called upon to act defines its position within the prescribed period, an action for failure to act is no longer possible. However, the act by which the institution defines its position may be open to an action for annulment, at least where the measure sought could itself have been the subject of such an action if it had been adopted. 19 In order to determine, for the purpose of judicial proceedings, the nature of the definition of a position with regard to a failure to act, the Court has in fact drawn a parallel in its decisions between the legal nature of the measure sought and the legal nature of the act by which the institution defined its position with regard to that measure: if the measure sought may be the subject of an action for annulment, so may the definition of the institution's position. On the other hand, when the measure sought does not meet the criteria for classifying it as an act open to challenge, the definition of position in regard thereto may not be the subject of an action for annulment. 19 See, for example, the judgment of 8 March 1972 in Case 42/71 Nordgetreide GmbH & Co. KG v Commission [1972] ECR 105, at p. 110: 'Since the definition by the Commission of its position amounts to a rejection it must be appraised in the light of the object of the request to which it constituted a reply.' See G. Vandersanden and A. Barav: Contentieux communautaire, Brussels, Bruylant, 1977, p. 229 et seq.; R. Joliét: Le droit institutionnel des Communautés européennes, le contentieux, Faculté de droit, d'économie et de sciences sociales de Liège, 1981, p. 150. See also J. Mégret, W. Waelbroeck, J.-V. Louis, D. Vignes, J.-L. Dewost and G. Vandersanden: Le droit de ta Communauté économique européenne, Vol. 10: La Cour de justice, les actes des institutions, Book 1, éditions de l'université de Bruxelles, 1983, p. 171. 5630

PARLIAMENT v COUNCIL 12. Since the European Parliament is entitled to set in motion the procedure for failure to act and to bring an action before the Court of Justice under Article 175 of the Treaty, that right must not be rendered ineffective. It is difficult to see how the Parliament can effectively and usefully exercise that right if the institution called on to act needs only to adopt an explicitly negative position on the request made to it, making it impossible by that action alone for proceedings to be brought before the Court. 20 The coherence of the system of remedies provided for in the Treaty cannot accommodate such a situation. Indeed, in Chevalley v Commission 21 the Court held that Articles 173 and 175 of the Treaty provide for one and the same means of redress. However, that observation, made in relation to the concept of an act open to challenge, does not concern the nature of those two means of redress or the relationship between them. actions for annulment cannot be deduced from the 'mechanics' of the action for failure to act, even though it appears desirable that it should have such a right where rights or powers of its own are at stake. 14. Some legal writers argue that recognition of the légitimation passive of the European Parliament must entail recognition of its légitimation active. Echoing that view, Mr Advocate General Mancini, whilst denying that there was any necessary relationship between the two types of capacity, stated in his Opinion in 'Les Verts', that the reasons 'for which decisions of the Parliament may be attacked before the Court also support the proposition that the Parliament may attack the acts of other institutions'. 22 13. The close affinity between the actions for failure to act and for annulment is undoubtedly of such a nature as to justify the recognition of the European Parliament's right to bring an action for annulment against acts adopting negative positions in regard to requests it makes to the Council or the Commission provided that the measure sought could itself have been challenged before the Court. However, a general right of the Parliament to bring 20 See G. Isaac, op. cit.: Annuaire français de droit international, 1986, p. 794 particularly at p. 809. Sec also similar remarks by M. Waelbroeck at the round-table discussion organized by the Centre d'études internationales et européennes of tne Universitc Robert Schuman, Strasbourg, on 10 April 1987 on the subject: 'Le Parlement europeen et la Cour de justice des Communautés européennes', p. 24. It should also be noted that the other institution and the Member States, as privileged applicants, might bring an action before the Court in order to obtain a declaration that the institution which had previously been called upon to act by the Parliament had failed to do so. Article 175 of the Treaty does not require, at least expressly, that the applicant before the Court (at least the institutions and the Member States) should necessarily be the one which initially called on the institution to act. 15. I myself consider that the question of the Parliament's légitimation active, which is undoubtedly related to that of its legitimation passive, does not, however, arise in exactly the same terms. In considering that question, it is necessary to refer back to the reasoning in the Court's judgment in 'Les Verts' in order to see to what extent that reasoning may be transposed to the question of the Parliament's légitimation active. 16. Let me first recall, as did Mr Advocate General Mancini, that in the judgment of 10 February 1983 in Grand Duchy of Luxembourg v European Parliament concerning the Parliament's seat and place of work, the Court observed that: 'there is no express provision in [the articles of the EEC and EAEC Treaties concerning actions for annulment] for active or passive 21 Judgment of 18 November 1970 in Case 15/70 Chevalley v Commission [1970] ECR 975, at p. 979, paragraph 6. 22 Case 294/83, cited above, at p. 1351. 5631

OPINION OF MR DARMON CASE 302/87 participation of the Parliament in proceedings before the Court'. 23 I share Mr Mancini's sentiments about the special significance which should be attached to that observation and, in particular, to the adjective 'express'. 24 17. As regards the Parliament's capacity to be made a defendant, the same conclusion was reached in the judgment in 'Les Verts', in which the Court pointed out that: 'The European Parliament is not expressly mentioned among the institutions whose measures may be contested... '. 25 However, although in the first of those cases the objection of inadmissibility raised by the Parliament as defendant, which at that time argued that it had no légitimation passive, was rejected on the ground that the first paragraph of Article 38 of the ECSC Treaty applied, making it unnecessary for the Court to interpret Articles 173 of the EEC Treaty and 146 of the EAEC Treaty, 26 that approach was not possible in the second. The Ecology Party's action was brought solely on the basis of Article 173, a provision which, as I have already pointed out, does not refer to the Parliament, and this led the Court to explore the extent to which the Parliament's légitimation passive could be deduced from other factors. 18. After stressing that the fact that the European Parliament was not mentioned among the possible defendants in an action for annulment could be explained in historical terms by the fact that it did not 23 Case 230/81 [1983] ECR 255, at p. 282, paragraph 17. 24 - Opinion of Mr Advocate General Mancini in Case 294/83, cited above, at p. 1349. 25 Cited above, paragraph 24. 26 Case 230/81, cited above, paragraph 20. originally have the power to adopt measures intended to have legal effects vis-à-vis third parties, 27 the Court accepted that it could be a defendant. It seems to me that it did so essentially for two reasons. 19. First, the Court stated that: 'An interpretation of Article 173 of the Treaty which excluded measures adopted by the European Parliament from those which could be contested would lead to a result contrary both to the spirit of the Treaty as expressed in Article 164 and to its system. Measures adopted by the European Parliament in the context of the EEC Treaty could encroach on the powers of the Member States or of the other institutions, or exceed the limits which have been set to the Parliament's powers, without its being possible to refer them for review by the Court.' Thus, '... an action for annulment may lie against measures adopted by the European Parliament intended 'to have legal effects vis-à-vis third parties'. 28 20. Secondly, the Court stated that: '... the European Economic Community is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the 27 Case 294/83, cited above, at p. 1365, paragraph 24. 28 Case 294/83, cited above, at p. 1366, paragraph 25. 5632

PARLIAMENT v COUNCIL question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty'. 29 'so restrictively as to limit the availability of that procedure merely to the categories of measure referred to in Article 189', 31 21. In other words, the requirement that effective judicial protection be assured and the requirement that respect for the rule of law in the Community legal order be maintained seem to me to be the decisive reasons which led the Court to recognize the legitimation passive of the European Parliament. 22. There were other grounds for the Court's decision in 'Les Verts', which the parties have not failed to invoke, but the relevance of which seems to me to be less certain. First, although it is true that in the ERTA case, the first interinstitutional case brought before the Court, the Court stated that: 'Article 173 treats as acts open to review by the Court all measures adopted by the institutions which are intended to have legal force', 30 it must be emphasized that in that case the Court did not have to take into consideration the identity of the defendant institution. In that case, the Court had to decide the question whether an action for annulment could be brought against a measure (the proceedings of the Council) which is not included in the list contained in Article 189 of the Treaty. It was on the basis of that consideration, in conjunction with the observation that, having regard to the task of the Court under Article 164, the conditions under which the action is admissible could not be interpreted 29 Case 294/83, cited above, at p. 1365, paragraph 23. 30 Judgment of 31 March 1971 in Case 22/70 Commission v Council [1971] ECR 263, at p. 276, paragraph 39. Part of that paragraph was included in paragraph 24 of the judgment in 'Les Verts'. that the Court determined the nature of the contested proceedings without prejudging in that case the question of capacity of the Parliament to bring an action. Consequently, no real support can be found in the ERTA judgment for the légitimation active of the Parliament under Article 173 of the Treaty. 23. On the other hand it is true that the Court decided in 'Les Verts' that 'the Treaty established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions'. 29 However, that observation concerned the organization of legal remedies so as to afford private persons effective judicial protection. It did not concern the question of the Parliament's capacity to bring actions before the Court. The context of the judgment in Foto-Frost, 32 in which that same observation was reiterated, provides further reinforcement of that conclusion. 24. The Court's recognition of the légitimation passive of the Parliament is quite 31 Case 22/70, cited above, at p. 277, paragraph 41. In another context, in order to reject the argument that decisions addressed to the Member States cannot be the subject of an action for annulment brought by an individual, the Court had already decided, inter alia, in the judgment of 15 July 1963 in Case 25/62 Plaumann 6 Co. v Commission [1963] ECR 95, at p. 107, that, 'moreover provisions of the Treaty regarding the right of interested parties to bring an action must not be interpreted restrictively'. 32 Judgment of 22 October 1987 in Case 314/85 [1987] ECR 4199, paragraph 16. 5633

OPINION OF MR DARMON CASE 302/87 general and must not be regarded as confined to proceedings relating to electoral or budgetary matters, the special nature of such proceedings notwithstanding. to note that the European Parliament's desire to be more closely involved in the Community decision-making process acquired a new dimension with the impetus provided by its new legitimacy. 25. Given the various aspects of the Parliament's involvement in judicial proceedings, as they emerge from the case-law of the Court, what is the Council's objection to the European Parliament's capacity to bring an action for annulment? 26. As the Court will recall, the Council's argument is twofold: it considers firstly that the existing case-law does not give the Parliament a right to bring an action under Article 173 and secondly that neither the spirit nor the scheme of the Treaty supports an interpretation of Article 173 which would make it possible to include the Parliament among potential applicants. 27. The Parliament draws precisely the opposite conclusions from the same considerations. In its view, its legitimationactive results necessarily from the Court's case-law concerning its status in litigation. Furthermore, it considers that neither the spirit nor the scheme of the Treaty precludes the recognition of such capacity. 28. It must be pointed out that the cases involving the European Parliament arose almost entirely during the 1980s, after its election by direct universal suffrage. That does not mean that I am saying post hoc, ergo propter hoc. However, one cannot fail 29. Look how far it has come since 1958! In the resolution adopted at its first session, the Assembly emphasized 'the need to find an evocative name' and chose the title 'Parliamentary Assembly', 33 which gave way four years later to the name 'European Parliament'. 34 The Single European Act 35 recognizes that title and reinforces that institution's role, in particular by establishing cooperation and joint decisionmaking procedures in certain domains. 30. Although elected by direct universal suffrage, 36 the Parliament has not acquired the status of a veritable legislative chamber. Nevertheless, it has become increasingly more intensively involved in the preparation of Community decisions. In that regard, reference should be made to the Budget Treaties of 1970 and 1975 and to the two Joint Declarations of the European Parliament, the Council and the Commission of 4 March 1975 37 and 30 June 1982, 38 the first dealing with the establishment of a conciliation procedure and the second with various measures to improve the budgetary procedure. Similarly, mention may be made of the Solemn Declaration on European Union signed in Stuttgart on 19 June 1983, 39 which expanded the range of cases in which the Parliament is informed 33 Resolution of 20 March 1958, Journal Officiel 1, 20.4.1958, p. 6. 34 Resolution of 30 March 1962, Journal Officiel 31, 26.4.1962, p. 1045. 35 OJ L 169, 29.6.1987. 36 Act concerning the election of the representatives of the Assembly by direct universal suffrage, adopted on 20 September 1976, OJ L 278, 8.10.1976. 37 OJ C 89,22.4.1975. 38 OJ C 194, 28.7.1982. 39 Bulletin of the European Communities No 6-1983, p. 26. 5634

PARLIAMENT v COUNCIL about international agreements, a practice inaugurated in 1964 by the Luns procedure 40 and extended by the Westerterp procedure in 1973. 4 1 31. One of the institutions to which Article 4 of the EEC Treaty entrusts the implementation of the objectives laid down therein, the body composed of representatives of the European peoples, was originally granted only a consultative role and powers of deliberation and supervision. Very largely excluded at the outset from the Community decision-making process, the Parliament has always claimed the right to have a more active role in that process. It is undeniable that, through successive reforms, there has been a gradual but genuine strengthening of the role of the Parliament even though this has not fully satisfied the Parliament's aspirations. 32. This development of the European Parliament's role could not fail to have an impact on its position in regard to litigation. It is that development which to a large extent provides the basis for the légitimation passive solution. However, although the subjection of measures adopted by the European Parliament to judicial review by way of an action for annulment is the necessary consequence of the increase in its powers, that fact, on its own, is not sufficient to justify its légitimation active. On the other hand, the requirement of judicial protection is decisive and, having regard to the institutional structure of the Community and the respective roles of the bodies of which it is composed, one should be careful not to draw any analogy with the national parliaments, which in this regard would be irrelevant. 40 Minutes of the Council of 24 and 25 February 1964, p. 26. 41 Memorandum of the Council of 15 October 1973. 33. As a participant in the Community legislative process, the European Parliament must be able to ensure that its own prerogatives are respected. Let me make some transpositions in the wording of paragraph 25 of the Court's judgment in 'Les Verts' so that it reads as follows: 'Measures adopted by the Council or the Commission in the context of the EEC Treaty could encroach upon the powers of the Member States or of the European Parliament, or exceed the limits which have been set to the powers of the institution which adopted them, without its being possible to refer them for review by the Court.' It is true that any privileged party may always initiate proceedings for review by the Court of challengeable acts, but the protection of the Parliament's powers must not depend upon an action which could not be brought by the party principally concerned. 34. It is undeniable that the Parliament's right to intervene in cases before the Court and its right to bring an action for failure to act are not subject to the requirement that the intervention or action should be for the purpose of defending an interest of its own. In both cases, however, the right involved is expressly provided for in written Community law. That fact would justify recognition of the European Parliament's capacity to bring an action for annulment, but within stricter limits, namely where its action is intended to protect rights or powers of its own. Even where a 'definition of position' by an institution called upon to act by the Parliament is involved, the latter's right to bring an action for annulment should be limited to the case I have described. By causing an institution to 5635

OPINION OF MR DARMON CASE 302/87 define its position at the pre-judicial stage, the Parliament performs one of the essential functions of the action for failure to act, which is to prompt the institution concerned to emerge from its alleged inertia. 35. The determination of the question whether the European Parliament's complaints regarding the contested decision concern a prerogative of its own is a matter which the Court will have to consider later. 36. I therefore propose that the Court should reject the objection of inadmissibility raised by the Council and hold that the European Parliament has the capacity to bring an action for annulment under Article 173 of the Treaty where rights or powers of its own are adversely affected. The question whether such is the case in this instance should be considered at the same time as the substance of the case. 5636