From reading the article "The Coming of age of infringement proceedings (Prete, Smulders, Common Market Law Review, Vol. 47 No. 1 February 2010):
While the Member States is free to raise any new argument before the Court...
With regard to substantive defences, it should be stressed that Member States are at liberty to raise new or additional arguments before the Court, and are not confined to the defences brought up during the administrative stage of the procedure. In the Armaments case, for instance, the Commission had argued that one plea of defence raised by Spain was out of time since it was not advanced at any time during the pre-litigation procedure. However, the Court rejected this objection, holding that the Commission's argument appeared contrary to the general principle of respect for the rights of defence. Moreover, the Court noted that there was no rule of procedure which requires Member States to put forward, during the pre-litigation phase, all the arguments of their defence. (C-414/97 Commission v. Spain, paras 16-18).
This case-law is criticized by the authors: ... one cannot avoid agreeing with those who find deeply regrettable the tendency of certain Member States to present a serious defence only before the Court. The attitude to treat with some superficiality the Commission's investigations may in fact lead this institution into error and thus provoke unnecessary litigation, with a consequential significant waste of resources for the Commission, the Member State concerned, and ultimately the EU judicature.
... the Commission has its hands tied, but this cannot not be stretched to the extreme.
For instance, that is the case where "the Commission, after alleging that a Member State has failed to transpose a directive at all, later specifies that the transposition pleaded for the first time by that State at a subsequent stage of the procedure is in any event incorrect or incomplete so for as certain provisions of the directive are concerned. Such a complaint is necessarily included in the complaint alleging a complete failure to transpose and is subsidiary to that complaint." (C-456/03 Commission v. Italy, para 40)
Wednesday, May 23, 2012
Thursday, April 12, 2012
C-611/10 and C-612/10 Hudzinski: not obliged yet entitled
Another interesting case coming up on coordination of social security schemes (Regulation No 1048/71 in the case at hand, Regulation 883/2004 today). On 16 February 2012, GA Mazák presented his opinion.
The issue
The issue is fairly straightforward: two Polish citizens are permantly established (with their families) in Poland, but worked for a certain period in Germany. For that period, German taxes were due. Both Polish citizens requested German child benefits (154 euro per month), but Germain authorities rejected the requests arguing inter alia that, under Regulation No 1048/71 (and the popular principle "one worker, one Member State", enshrined e.g. in Article 13(1) of Regulation No 1048/71; see also paragraph 50 of the opinion: "according to established case-law, it is the aim of Title II of Regulation No 1408/71 to ensure that the persons concerned are subject to the social security scheme of only one Member State in order to prevent more than one system of national legislation from being applicable and thus to avoid the attendant complications. That principle is expressed in Article 13(1) of Regulation No 1408/71, which provides that a worker to whom that legislation applies is to be subject to the legislation of a single Member State only."?
In this case, the question was, however: if Regulation No 1048/71 points to another Member State (Poland), does that preclude the other Member State (Germany) from granting the benefit (to which the person concerned is entitled to on the basis of the legislation of that other Member State). In other words: can a Member State take the Union law as a ground (or rather an excuse) for rejecting a claim, otherwise well-founded under the national law?
The opinion
According to GA Mazák, the answer is no:
53. While stating thus clearly that, pursuant to EU law, the non-competent Member State of residence is under no obligation to grant the child benefit at issue, the Court held in the subsequent part of its judgment in Bosmann that that State was not prevented, however, from granting the child benefit in question pursuant to its national legislation.
...
58. To my mind, although the Court had to give judgment on the basis of the specific circumstances of the case, which arguably means that a different reading of the judgment is not excluded, the rationale of Bosmann transcends those factors or conditions and clarifies in a more general fashion the relationship – as characterised above – between, on the one hand, the provisions of Regulation No 1408/71 on the determination of the applicable legislation and, on the other, the possibility arising for a Member State other than the competent State to make such a grant through the application of its own legislation.
...
66. This all leads me to conclude that a Member State other than the competent State is not wholly deprived by Regulation No 1408/71 of any possibility of granting workers and members of their family social protection above and beyond, or in addition to, the protection arising from the application of that regulation, and this holds true also in situations such as those at issue, where the worker does not, as a result of exercising his right to freedom of movement, suffer a loss or reduction as compared with the social protection previously enjoyed and where there is, or may be, entitlement to child benefit in the competent State.
My opinion
The conclusion is not unreasonable. After all, it remains Member States' competence to regulate the substance, including the personal scope of their social security system, the only purpose of Regulation No 1408/71 (and Regulation No 883/2004) is to coordinate these systems. The coordination rules guarantee a certain minimum, but if a Member State decides, on its own, to go beyond that minimum, these rules do not, in essence, come to play at all.
On the other hand, this would turn the "one Member State rule" into a rather one-sided principle. It would be a source of obligation for those situations where there is a danger of no Member State being competent, but would be totally indifferent to situations where systems of two (or more) Member States overlap. And this is not without problems. This would be coordination allowing for chaos to remain.
I don't say the Polish citizens concerned should not be entitled to the German child benefits (after all, they paid Germain taxes for the relevant period). All I say is they should not be able to receive child benefits for the same period of time both in Germany and Poland. Why should they be? (On the other hand, GA Mazák does not say Germany should be, simultaneously with Poland, in obligation, under Regulation No 1408/71, it is simply not precluded from granting the benefit. In other words, it is for each Member State to make sure that migration does not lead, in itself, to multiplication of social security benifits, as it is clear this is not the purpose of the EU rules on free movement of persons. The only problem: how do you avoid this where Member States act on a individual basis? Bilateral treaties? Why not through the Union law then?).
Let us see what the Court has to say on the matter.
The issue
The issue is fairly straightforward: two Polish citizens are permantly established (with their families) in Poland, but worked for a certain period in Germany. For that period, German taxes were due. Both Polish citizens requested German child benefits (154 euro per month), but Germain authorities rejected the requests arguing inter alia that, under Regulation No 1048/71 (and the popular principle "one worker, one Member State", enshrined e.g. in Article 13(1) of Regulation No 1048/71; see also paragraph 50 of the opinion: "according to established case-law, it is the aim of Title II of Regulation No 1408/71 to ensure that the persons concerned are subject to the social security scheme of only one Member State in order to prevent more than one system of national legislation from being applicable and thus to avoid the attendant complications. That principle is expressed in Article 13(1) of Regulation No 1408/71, which provides that a worker to whom that legislation applies is to be subject to the legislation of a single Member State only."?
In this case, the question was, however: if Regulation No 1048/71 points to another Member State (Poland), does that preclude the other Member State (Germany) from granting the benefit (to which the person concerned is entitled to on the basis of the legislation of that other Member State). In other words: can a Member State take the Union law as a ground (or rather an excuse) for rejecting a claim, otherwise well-founded under the national law?
The opinion
According to GA Mazák, the answer is no:
53. While stating thus clearly that, pursuant to EU law, the non-competent Member State of residence is under no obligation to grant the child benefit at issue, the Court held in the subsequent part of its judgment in Bosmann that that State was not prevented, however, from granting the child benefit in question pursuant to its national legislation.
...
58. To my mind, although the Court had to give judgment on the basis of the specific circumstances of the case, which arguably means that a different reading of the judgment is not excluded, the rationale of Bosmann transcends those factors or conditions and clarifies in a more general fashion the relationship – as characterised above – between, on the one hand, the provisions of Regulation No 1408/71 on the determination of the applicable legislation and, on the other, the possibility arising for a Member State other than the competent State to make such a grant through the application of its own legislation.
...
66. This all leads me to conclude that a Member State other than the competent State is not wholly deprived by Regulation No 1408/71 of any possibility of granting workers and members of their family social protection above and beyond, or in addition to, the protection arising from the application of that regulation, and this holds true also in situations such as those at issue, where the worker does not, as a result of exercising his right to freedom of movement, suffer a loss or reduction as compared with the social protection previously enjoyed and where there is, or may be, entitlement to child benefit in the competent State.
My opinion
The conclusion is not unreasonable. After all, it remains Member States' competence to regulate the substance, including the personal scope of their social security system, the only purpose of Regulation No 1408/71 (and Regulation No 883/2004) is to coordinate these systems. The coordination rules guarantee a certain minimum, but if a Member State decides, on its own, to go beyond that minimum, these rules do not, in essence, come to play at all.
On the other hand, this would turn the "one Member State rule" into a rather one-sided principle. It would be a source of obligation for those situations where there is a danger of no Member State being competent, but would be totally indifferent to situations where systems of two (or more) Member States overlap. And this is not without problems. This would be coordination allowing for chaos to remain.
I don't say the Polish citizens concerned should not be entitled to the German child benefits (after all, they paid Germain taxes for the relevant period). All I say is they should not be able to receive child benefits for the same period of time both in Germany and Poland. Why should they be? (On the other hand, GA Mazák does not say Germany should be, simultaneously with Poland, in obligation, under Regulation No 1408/71, it is simply not precluded from granting the benefit. In other words, it is for each Member State to make sure that migration does not lead, in itself, to multiplication of social security benifits, as it is clear this is not the purpose of the EU rules on free movement of persons. The only problem: how do you avoid this where Member States act on a individual basis? Bilateral treaties? Why not through the Union law then?).
Let us see what the Court has to say on the matter.
Thursday, September 22, 2011
C-240/09 Lesoochranarske zoskupenie: follow-up
On 2nd August 2011, Slovakia's Supreme Court (Najvyšší súd) decided a number of cases (I found four) for whom the judgment in C-240/09 Lesoochranarske zoskupenie was directly relevant (in fact, it was in the framework of those proceedings that the Supreme Court addressed the Court of Justice the preliminary questions in C-240/09; for more info, see http://bxl-law.blogspot.com/2011/03/c-24009-lesoochranarske-zoskupenie.html).
The judgments can be downloaded (in Slovak) from the website of the Supreme Court (http://nssr.blox.sk/, look for judgments no 3Sžp/49/2009, 3Sžp/50/2009, 3Sžp/48/2009 and 3Sžp/47/2009).
All the four judgments are based on (virtually) identical (and rather short) reasoning. Quite simply, the Supreme Court ruled that despite the lack of direct effect of Art. 9.3 of the Aarhus Convention in the Union law, it is necessary, in order to make possible effective protection of the environment as laid down by the Union law, to treat the relevant NGO as a party to the proceedings (and not just an interested party who cannot appeal the administrative decisions and cannot challenge them before the courts).
Problem solved...
The judgments can be downloaded (in Slovak) from the website of the Supreme Court (http://nssr.blox.sk/, look for judgments no 3Sžp/49/2009, 3Sžp/50/2009, 3Sžp/48/2009 and 3Sžp/47/2009).
All the four judgments are based on (virtually) identical (and rather short) reasoning. Quite simply, the Supreme Court ruled that despite the lack of direct effect of Art. 9.3 of the Aarhus Convention in the Union law, it is necessary, in order to make possible effective protection of the environment as laid down by the Union law, to treat the relevant NGO as a party to the proceedings (and not just an interested party who cannot appeal the administrative decisions and cannot challenge them before the courts).
Problem solved...
C-264/09 Commission v Slovakia: let bygones be bygones (yes indeed)
In its judgment of 15 September 2011, the Court of Justice followed the views expressed by GA in his opinion (http://bxl-law.blogspot.com/2011/03/c-26409-commission-v-slovakia-let.html) and dismissed the action of the Commission.
On Article 307 TEC (now Article 351 TFEU)
Just like the GA Jääskinen, the primary issue for the Court was whether the agreement in issue should prevail over Directive 2003/54/EC (concerning common rules for the internal market in electricity) by way of Article 307 TEC, or not. Unlike the GA Jääskinen, the Court addressed the issue more comprehensively:
First, the Court recalled its general case-law on the issue (812/79 Burgoa: "the purpose of the first paragraph of Article 307 EC is to make clear, in accordance with the principles of international law, as set out in, inter alia, Article 30(4)(b) of the Vienna Convention on the Law of Treaties of 23 May 1969, that the application of the EC Treaty does not affect the duty of the Member State concerned to respect the rights of non-member countries under a prior agreement and to perform its obligations thereunder", C‑158/91 Levy: "in order to determine whether a Community rule may be deprived of effect by an earlier international agreement, it is necessary to examine whether that agreement imposes on the Member State concerned obligations the performance of which may still be required by non-member countries which are parties to it").
Second, the Court recalled the obligation of the Member States to try to eliminate incompatibilities with the EU law (reference is made to the judgment in C‑62/98 Commission v Portugal: "although, in the context of Article 307 EC, the Member States have a choice as to the appropriate steps to be taken to eliminate any incompatibilities existing between a pre-Community convention and the EC Treaty, if a Member State encounters difficulties which make adjustment of an agreement impossible, an obligation to denounce that agreement cannot be excluded").
Finally, the Court recognized that the incompatibility at issue is simply something that Slovakia cannot do anything about (see paragraphs 46 to 50 of the judgment).
Accordingly, the preferential access established by the agreement concerned prevails of the Directive (by way of Article 307.1 TEC).
On Article 307 TEC (now Article 351 TFEU)
Just like the GA Jääskinen, the primary issue for the Court was whether the agreement in issue should prevail over Directive 2003/54/EC (concerning common rules for the internal market in electricity) by way of Article 307 TEC, or not. Unlike the GA Jääskinen, the Court addressed the issue more comprehensively:
First, the Court recalled its general case-law on the issue (812/79 Burgoa: "the purpose of the first paragraph of Article 307 EC is to make clear, in accordance with the principles of international law, as set out in, inter alia, Article 30(4)(b) of the Vienna Convention on the Law of Treaties of 23 May 1969, that the application of the EC Treaty does not affect the duty of the Member State concerned to respect the rights of non-member countries under a prior agreement and to perform its obligations thereunder", C‑158/91 Levy: "in order to determine whether a Community rule may be deprived of effect by an earlier international agreement, it is necessary to examine whether that agreement imposes on the Member State concerned obligations the performance of which may still be required by non-member countries which are parties to it").
Second, the Court recalled the obligation of the Member States to try to eliminate incompatibilities with the EU law (reference is made to the judgment in C‑62/98 Commission v Portugal: "although, in the context of Article 307 EC, the Member States have a choice as to the appropriate steps to be taken to eliminate any incompatibilities existing between a pre-Community convention and the EC Treaty, if a Member State encounters difficulties which make adjustment of an agreement impossible, an obligation to denounce that agreement cannot be excluded").
Finally, the Court recognized that the incompatibility at issue is simply something that Slovakia cannot do anything about (see paragraphs 46 to 50 of the judgment).
Accordingly, the preferential access established by the agreement concerned prevails of the Directive (by way of Article 307.1 TEC).
Thursday, September 15, 2011
T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council: enigma unveiled (at least in part)
In 2009, Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products was negotiated under the auspices of the Czech Presidency. A controversial piece of legislation, drafted amidst emotional reactions of the public in a number of the Member States to reports showing that seals are killed under cruel and "inhuman" circumstances (in particular in Canada). The EU legislator's reaction was also extremely strong. It prohibited marketing of seal products altogether, unless they result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence (see Article 3.1 of the Regulation).
The Regulation was attacked by a group of entities, most of them established in Canada. By the order of 6 September 2011, the General Court dismissed the action as inadmissible.(1)
Regulatory act
The General Court starts by summarising that, after the Lisbon Treaty amendments, the fourt paragraph of Article 263 TFEU permits a natural or legal person to attack:
a/ an act adressed to that person,
b/ a legislative or regulatory act of general application which is of direct and individual concern to that person,
c/ against certain acts of general application, namely regulatory acts which are of direct concern to that person and do not entail implementing measures.(2)
The third category is the new locus standi introduced by the Lisbon Treaty. But because the term "regulatory acts" is not defined anywhere in the Treaties, the scope of the term was somewhat unclear. Now we know better.
The General Court summarises it in paragraph 56: ... the meaning of ‘regulatory act’ for the purposes of the fourth paragraph of Article 263 TFEU must be understood as covering all acts of general application apart from legislative acts.
In the present case, the General Court was quick to conclude that the attacked Regulation is not a "regulatory act", simply because it is a legislative act (for which stricter locus standi conditions continue to apply, see point b) above). In this regard, the General Court dismissed the applicants' argument that a measure should be categorised according to its true nature, not just its form: Although the test for distinguishing between an act of general application and an individual act is whether the act in question is of general application, its categorisation as a legislative act or a regulatory act according to the FEU Treaty is based on the criterion of the procedure, legislative or not, which led to its adoption.
Of direct and individual concern
As a result, the General Court found itself back in the "old" regime under point b), as mentioned above, and had to consider whether the contested Regulation is of (both) direct and individual concern to the applicants.
This is a classic test, so there is no need to dwell upon it, but one point is still interesting. The General Court concluded that most of the applicants are not directly concerned because the Regulation regulates placing on the market and the applicants concern do not engage (directly) in placing the seal products on the market. Paragraph 75 is of particular relevance in this regard:
Consequently, the contested regulation directly affects only the legal situation of those of the applicants who are active in the placing on the market of the European Union of seal products. That regulation does not in any way prohibit seal hunting, which indeed takes place outside the European Union market, or the use or consumption of seal products which are not marketed. Consequently, it should be observed that, while it cannot be precluded that the general prohibition of placing on the market provided for by the contested regulation may have consequences for the business activities of persons intervening upstream or downstream of that placing on the market, the fact remains that such consequences cannot be regarded as resulting directly from that regulation (see, to that effect, order of the General Court in Case T‑40/04 Bonino and Others v Parliament and Council [2005] ECR II‑2685, paragraph 56). Furthermore, as regards the possible economic consequences of that prohibition, it must be borne in mind that, according the case-law, those consequences do not affect the applicants’ legal situation, but only their factual situation (see, to that effect, Joined Cases T-172/98 and T-175/98 to T-177/98 Salamander and Others v Parliament and Council [2000] ECR II-2487, paragraph 62).
(1) The Regulation - together with Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 - is also under attack in T-526/06 Inuit Tapiriit Kanatami and Others v Commission. That procedure is still pending.
(2) See paragraph 45 of the judgment.
The Regulation was attacked by a group of entities, most of them established in Canada. By the order of 6 September 2011, the General Court dismissed the action as inadmissible.(1)
Regulatory act
The General Court starts by summarising that, after the Lisbon Treaty amendments, the fourt paragraph of Article 263 TFEU permits a natural or legal person to attack:
a/ an act adressed to that person,
b/ a legislative or regulatory act of general application which is of direct and individual concern to that person,
c/ against certain acts of general application, namely regulatory acts which are of direct concern to that person and do not entail implementing measures.(2)
The third category is the new locus standi introduced by the Lisbon Treaty. But because the term "regulatory acts" is not defined anywhere in the Treaties, the scope of the term was somewhat unclear. Now we know better.
The General Court summarises it in paragraph 56: ... the meaning of ‘regulatory act’ for the purposes of the fourth paragraph of Article 263 TFEU must be understood as covering all acts of general application apart from legislative acts.
In the present case, the General Court was quick to conclude that the attacked Regulation is not a "regulatory act", simply because it is a legislative act (for which stricter locus standi conditions continue to apply, see point b) above). In this regard, the General Court dismissed the applicants' argument that a measure should be categorised according to its true nature, not just its form: Although the test for distinguishing between an act of general application and an individual act is whether the act in question is of general application, its categorisation as a legislative act or a regulatory act according to the FEU Treaty is based on the criterion of the procedure, legislative or not, which led to its adoption.
Of direct and individual concern
As a result, the General Court found itself back in the "old" regime under point b), as mentioned above, and had to consider whether the contested Regulation is of (both) direct and individual concern to the applicants.
This is a classic test, so there is no need to dwell upon it, but one point is still interesting. The General Court concluded that most of the applicants are not directly concerned because the Regulation regulates placing on the market and the applicants concern do not engage (directly) in placing the seal products on the market. Paragraph 75 is of particular relevance in this regard:
Consequently, the contested regulation directly affects only the legal situation of those of the applicants who are active in the placing on the market of the European Union of seal products. That regulation does not in any way prohibit seal hunting, which indeed takes place outside the European Union market, or the use or consumption of seal products which are not marketed. Consequently, it should be observed that, while it cannot be precluded that the general prohibition of placing on the market provided for by the contested regulation may have consequences for the business activities of persons intervening upstream or downstream of that placing on the market, the fact remains that such consequences cannot be regarded as resulting directly from that regulation (see, to that effect, order of the General Court in Case T‑40/04 Bonino and Others v Parliament and Council [2005] ECR II‑2685, paragraph 56). Furthermore, as regards the possible economic consequences of that prohibition, it must be borne in mind that, according the case-law, those consequences do not affect the applicants’ legal situation, but only their factual situation (see, to that effect, Joined Cases T-172/98 and T-175/98 to T-177/98 Salamander and Others v Parliament and Council [2000] ECR II-2487, paragraph 62).
(1) The Regulation - together with Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 - is also under attack in T-526/06 Inuit Tapiriit Kanatami and Others v Commission. That procedure is still pending.
(2) See paragraph 45 of the judgment.
Wednesday, August 17, 2011
C-237/11 and C-238/11 France v. Parliament: moving in circles
Everybody is familiar with this: for one week in a month, the European Parliament has the habit to move everything from Brussels in Belgium to Strasbourg in France and sit in a session there. Ironically enough, the European Parliament itself is not happy about this. Yes, the European Parliament's official seat is Strasbourg, but all the EU institutions sit in Brussels and the eternal travelling is annoying and costs money.
On 9 March 2011, the European Parliament decided to do at least something about it. While determing the calendars of session periods in 2012 and in 2013, the European Parliament laid down that two of the twelve periods of monthly plenary sessions (which must take place in Strasbourg every year) will be shortened from 4 to 2 days and will take place during the same week of October. As a result, this decision scraps one "red week"* from the European Parliaments calendar.
No chance
Looking at the judgment in C-345/95 France v. Parliament, one cannot but conclude that France will inevitably succeed with its actions. The situation was slightly different in that case, but in reality there was hardly any difference. What the European Parliament did back in the 90s was simply reduce the number of Strasbourg sessions from 12 to 11. In this case, the number of sessions remains untouched, the only problem: two sessions will not last four but two days and will take place in one week (meaning that the two sessions together will last.. four days). There is therefore no reason to doubt the applicability of the Court's reasoning in C-345/95 also to this case.
In C-345/95, the Court said:
23 By adopting the Edinburgh Decision, therefore, the Governments of the Member States have now discharged their obligation under Articles 77 of the ECSC Treaty, 216 of the EC Treaty and 189 of the EAEC Treaty by definitively locating the seat of the Parliament in Strasbourg, whilst maintaining several places of work for that institution.
24 Given a plurality of working places, the exercise of that competence involved not only the obligation to determine the location of the seat of the Parliament but also the implied power to give precision to that term by indicating the activities which must take place there.
25 The intention of the Governments of the Member States was therefore to provide that the seat of the Parliament, in Strasbourg, be the principal place where it meets in ordinary plenary sitting, and to that end to specify the mandatory number of part-sessions which must be held there.
26 By indicating that the Parliament must hold monthly plenary part-sessions, the Governments of the Member States endorsed its practice of meeting in principle every month in Strasbourg, as indeed is provided by Rule 10 of its Rules of Procedure.
27 In fact, however, the Parliament does not hold any ordinary plenary part-sessions in August or, during election years, in June. In the years during which it has held a total of 12 plenary part-sessions in Strasbourg, two have been scheduled in October. That practice is not, in itself, in issue.
28 Furthermore, by specifying that the budget session is to be held in Strasbourg, the Governments of the Member States intended that the Parliament exercise its budgetary powers in plenary sitting, in accordance with Article 203 of the EC Treaty, during one of the ordinary plenary part-sessions held at the seat of the institution.
29 The Edinburgh Decision must thus be interpreted as defining the seat of the Parliament as the place where 12 ordinary plenary part-sessions must take place on a regular basis, including those during which the Parliament is to exercise the budgetary powers conferred upon it by the Treaty. Additional plenary part-sessions cannot therefore be scheduled for any other place of work unless the Parliament holds the 12 ordinary plenary part-sessions in Strasbourg, where it has its seat.
30 Contrary to the Parliament's contention, the Governments of the Member States have not, by so defining its seat, encroached upon the power of the Parliament to determine its own internal organization, conferred by Articles 25 of the ECSC Treaty, 142 of the EC Treaty and 112 of the EAEC Treaty.
...
33 That finding is not called into question by the need for the Parliament to refrain from holding ordinary plenary part-sessions during electoral campaigns, thus derogating every five years from its obligation to hold 12 ordinary plenary part-sessions at the seat of the institution. That derogation is justified for reasons inherent in the organization of elections for new representatives.
34 It follows that the contested vote is incompatible with the Edinburgh Decision to the extent that it provides for 11 ordinary plenary part-sessions in Strasbourg in 1996.
* In the calendar of the European Parliament, different weeks are marked in colours. The red colour stands for plenary sessions.
** Decision of 12 December 1992 by common agreement the representatives of the Governments of the Member States on the location of the seats of the institutions and of certain bodies and departments of the European Communities, on the basis of Articles 216 of the EEC Treaty, 77 of the ECSC Treaty and 189 of the EAEC Treaty (OJ 1992 C 341, p. 1)
On 9 March 2011, the European Parliament decided to do at least something about it. While determing the calendars of session periods in 2012 and in 2013, the European Parliament laid down that two of the twelve periods of monthly plenary sessions (which must take place in Strasbourg every year) will be shortened from 4 to 2 days and will take place during the same week of October. As a result, this decision scraps one "red week"* from the European Parliaments calendar.
No chance
Looking at the judgment in C-345/95 France v. Parliament, one cannot but conclude that France will inevitably succeed with its actions. The situation was slightly different in that case, but in reality there was hardly any difference. What the European Parliament did back in the 90s was simply reduce the number of Strasbourg sessions from 12 to 11. In this case, the number of sessions remains untouched, the only problem: two sessions will not last four but two days and will take place in one week (meaning that the two sessions together will last.. four days). There is therefore no reason to doubt the applicability of the Court's reasoning in C-345/95 also to this case.
In C-345/95, the Court said:
23 By adopting the Edinburgh Decision, therefore, the Governments of the Member States have now discharged their obligation under Articles 77 of the ECSC Treaty, 216 of the EC Treaty and 189 of the EAEC Treaty by definitively locating the seat of the Parliament in Strasbourg, whilst maintaining several places of work for that institution.
24 Given a plurality of working places, the exercise of that competence involved not only the obligation to determine the location of the seat of the Parliament but also the implied power to give precision to that term by indicating the activities which must take place there.
25 The intention of the Governments of the Member States was therefore to provide that the seat of the Parliament, in Strasbourg, be the principal place where it meets in ordinary plenary sitting, and to that end to specify the mandatory number of part-sessions which must be held there.
26 By indicating that the Parliament must hold monthly plenary part-sessions, the Governments of the Member States endorsed its practice of meeting in principle every month in Strasbourg, as indeed is provided by Rule 10 of its Rules of Procedure.
27 In fact, however, the Parliament does not hold any ordinary plenary part-sessions in August or, during election years, in June. In the years during which it has held a total of 12 plenary part-sessions in Strasbourg, two have been scheduled in October. That practice is not, in itself, in issue.
28 Furthermore, by specifying that the budget session is to be held in Strasbourg, the Governments of the Member States intended that the Parliament exercise its budgetary powers in plenary sitting, in accordance with Article 203 of the EC Treaty, during one of the ordinary plenary part-sessions held at the seat of the institution.
29 The Edinburgh Decision must thus be interpreted as defining the seat of the Parliament as the place where 12 ordinary plenary part-sessions must take place on a regular basis, including those during which the Parliament is to exercise the budgetary powers conferred upon it by the Treaty. Additional plenary part-sessions cannot therefore be scheduled for any other place of work unless the Parliament holds the 12 ordinary plenary part-sessions in Strasbourg, where it has its seat.
30 Contrary to the Parliament's contention, the Governments of the Member States have not, by so defining its seat, encroached upon the power of the Parliament to determine its own internal organization, conferred by Articles 25 of the ECSC Treaty, 142 of the EC Treaty and 112 of the EAEC Treaty.
...
33 That finding is not called into question by the need for the Parliament to refrain from holding ordinary plenary part-sessions during electoral campaigns, thus derogating every five years from its obligation to hold 12 ordinary plenary part-sessions at the seat of the institution. That derogation is justified for reasons inherent in the organization of elections for new representatives.
34 It follows that the contested vote is incompatible with the Edinburgh Decision to the extent that it provides for 11 ordinary plenary part-sessions in Strasbourg in 1996.
* In the calendar of the European Parliament, different weeks are marked in colours. The red colour stands for plenary sessions.
** Decision of 12 December 1992 by common agreement the representatives of the Governments of the Member States on the location of the seats of the institutions and of certain bodies and departments of the European Communities, on the basis of Articles 216 of the EEC Treaty, 77 of the ECSC Treaty and 189 of the EAEC Treaty (OJ 1992 C 341, p. 1)
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