1. Regulations, directives and decisions adopted jointly by the E.P. and the Council, and such acts adopted by the Council or Commission, shall state the reasons on which they are based and shall refer to any proposals or opinions which were required to be obtained under the Treaty: Article 253 (ex 190).
2. If action by the E.C is necessary, in the course of the operation of the common market, to attain one of the objectives of the E.C and the Treaty has not provided the necessary powers, the Council shall take the appropriate measures acting on a proposal from the Commission and after consulting the E.P.
Commission v. Council (Case 45/86) 1987
Facts: The Commission brought annulment proceedings under Article 230 (ex 173) (see Chapter 5) against two regulations adopted by the Council relating to generalised tariff preferences for products from developing countries. The Commission claimed that there was no explicit legal basis stated in the measures. The Council argued that it had intended to base the measures on both Articles 133 (ex 113) (the Common Commercial Policy) and 308 (ex 235).
Decision ECJ: It follows from the wording of Article 308 (ex 235) that its use as the legal basis for a measure is justified only where no other provision of the Treaty gives the E.C institutions the necessary power to adopt the measure in question. As Article 133 (ex 113) would have provided an appropriate legal basis, the Council was not justified in relying on Article 308 (ex 235).
Commentary: (1) The choice of legal basis determines the procedure which is followed in the adoption of the measure. Article 308 (ex 235), unlike Article 133 (ex 113), requires unanimity in the Council, thus making it possible for individual states to veto a proposed measure.
(2) As a result of the Maastricht Treaty amendments the Council has become known as the Council of the E.U., with responsibility extending beyond the area of legal control under the E.C. Treaty to the areas of political co-operation (the Common Foreign and Security Policy, and Police and Judicial Co-operation, as the third pillar was renamed by the ToA). The other institutions remain institutions of the E.c.
3. The choice of legal base must be based on objective factors which are amenable to judicial review.
Commission v. Council (Case C-300/89) 1991
Facts: The Commission brought annulment proceedings under Article 230 (ex 173) against the Council in relation to a directive harmonising programmes to eliminate pollution caused by waste from the titanium dioxide industry. The directive in question had been based on Article 130s (now 175) which (following the consultation procedure under the E.C Treaty prior to amendment by the TED) enabled the Council to adopt measures relating to environment protection by unanimity, on a proposal from the Commission, after consulting the E.P. and the Economic and Social Committee.
The Commission claimed that the measure should have been adopted under Article 95 (ex 100a) (the co-operation procedure, requiring qualified majority voting and two consultations with the E.P.) as a single market measure.
Decisision ECJ: The measure should have been based on Article 95 (ex 100a), not Article 175 (ex 130s).
Commentary: (1) While the directive displayed features relating both to the environment and to the establishment and functioning of the internal market, recourse to a dual basis was excluded by the EC]. An E.c. measure cannot be treated as an environmental measure merely because it pursues objectives of environmental protection. Action to harmonise national rules on industrial production with a view to eliminating distortion of competition is covered by Article 95 (ex 100a).
(2) This case was considered under the Treaty of Rome prior to amendment by the Maastricht Treaty. After amendment by the TEU, the co-decision procedure providing for more extensive consultation with the E.P., in Article 251 (ex 189b) governed the adoption of internal market rules. Under co-decision the E.P.
became jointly responsible for the adoption of legislation.
Environmental measures under Article 175 (ex 130s) are, after amendment by the T oA, also adopted under co-decision, instead of the consultation procedure.
(3) In E.P. v. Council (Case C-42/97) the E.P., by contrast, sought to argue that a Council decision on the adoption of a programme to promote linguistic diversity in the E.c. should have a dual legal base. The ECJ concluded that the effects on culture were only indirectly incidental; the measure was essentially economic. As a result, it was appropriate for the measure to have been based on Article 130 E.c. (now, after amendment, Article 157 E.c.) on industry rather than Article 128 (now, after amendment, Article 151 E.c. (culture)).
(4) The E.P. mounted another challenge to a measure adopted by the Council in E.P. v. Council (Joined Cases C-164 & 165/97). The regulations in question had been adopted under Article 37 E.G. (then 37 E.G.). They were intended to protect forests in the E.G. from atmospheric pollution and fire. This time the ECJ held that the measures were primarily environmental, even though there would have been repercussions for agriculture, and allowed the E.P.'s application. See also E.P. v. Council (Case C-189/97) in which the E.P. failed in its challenge over the adoption of the budget under Article 300(3) (ex 228(3)) E.C. The E.P. claimed that the measure was an agreement with important budgetary implications requiring the E.P.'s assent, a claim ultimately rejected by the ECJ
