Catching up a little on some past judgments!
The Court of Justice handed down an important judgment in Case C-133/06 Parliament v. Council on the practice of establishing "secondary legal bases", that is providing a basis, in an act adopted by the Council, for further legislation to be adopted by the Council but according to a procedure different from that laid down in the Treaty.
The Parliament does not like such secondary bases because it is usually squeezed out of the process. As it was in Case C-133/06.
What happened was that the Council adopted Directive 2005/85/EC on minimum standards on procedures in member States for granting and withdrawing refugee status. The directive states that the Council, acting by a qualified majority, after consultation of the Parliament, is to adopt a minimum common list of third countries which are to be regarded by Member States as safe countries of origin, and a common list of European safe third countries. The amendment of those two lists is also subject to the Council acting by a qualified majority after consultation of the Parliament.
The Parliament brought an action to annul the parts of Directive 2005/85/EC setting out that procedure which provided for consultation of the Parliament only. It submitted that in laying down such a procedure the Council breached Article 67 §5 EC, first indent, that provides :
"[...], the Council shall adopt, in accordance with the procedure referred to in Article 251 [EC]:
– the measures provided for in Article 63(1) and (2)(a) [EC] provided that the Council has previously adopted, in accordance with paragraph 1 of this Article, Community legislation defining the common rules and basic principles governing these issues,[...]"
Consequently, according to the Parliament the minimum common list of third countries should be adopted by the co-decision procedure, not with mere consultation of the Parliament. It submitted that, in view of the EU legislation already adopted, namely Regulation 343/2003 and Directives 2003/9 and 2004/83, the adoption of Directive 2005/85 constituted the final legislative stage in the adoption of common rules and basic principles the implementation of which was intended to enable the transition to be made to the procedure laid down in Article 251 EC (‘the co-decision procedure’), in accordance with the requirements of the first indent of Article 67(5) EC.
The Court of Justice agreed and quashed the offending provisions of Directive 2005/85/EC.
The Court rejected the Council's argument that laying down secondary legal bases in legislation was an established practice. It held that the existence of an earlier practice of establishing secondary legal bases cannot reasonably be relied upon. Even on the assumption that there is such a practice, it cannot derogate from the rules laid down in the Treaty and cannot therefore create a precedent binding on the institutions (see, Case 68/86 United Kingdom v Council, paragraph 24, and Case C‑426/93 Germany v Council, paragraph 21).
The Court recalled under the second subparagraph of Article 7(1) EC, each institution must act within the limits of the powers conferred upon it by the Treaty (see Case C-403/05 Parliament v Commission, paragraph 49). It also reaffirmed that the rules regarding the manner in which the EU institutions adopt their decisions are laid down in the Treaty and are not at the disposal of the member States or of the institutions themselves (see Case 68/86 United Kingdom v Council, paragraph 38). Thus, the Treaty alone may, in particular cases such as that provided for in the second indent of Article 67(2) EC, empower an institution to amend a decision-making procedure established by the Treaty. To acknowledge that an institution can establish secondary legal bases, whether for the purpose of strengthening or easing the detailed rules for the adoption of an act, is tantamount to according that institution a legislative power which exceeds that provided for by the Treaty.
The Court concluded that by including in Directive 2005/85 the secondary legal bases constituted by the contested provisions, the Council infringed Article 67 EC, and exceeded the powers conferred on it by the Treaty.