European Court of Justice Case C-317/04
One of the questions in this case is whether assent European Parliament was needed, instead of just advice, art 300 EU Treaty. The question was not answered by the court: "Consequently, Decision 2004/496 cannot have been validly adopted on the basis of Article 95 EC. That decision must therefore be annulled and it is not necessary to consider the other pleas relied upon by the Parliament." We do have the opinion of the advocate general.
See here for more on this.
OPINION OF ADVOCATE GENERAL
LÉGER
delivered on 22 November 2005 1(1)
"infringement of the second subparagraph of Article 300(3) EC, because Directive 95/46 was amended;"
( & C-318/04)
Quotes from the text:
B The plea alleging that the second subparagraph of Article 300(3) EC was infringed because Directive 95/46 was amended
In the view of that institution, the agreement in question entails amendment of Directive 95/46, which was adopted under the procedure referred to in Article 251 EC.
164. In the Parliaments opinion, the undertakings which the US authorities agreed to implement under the agreement fall short of the conditions for processing data laid down by Directive 95/46. The agreement therefore has the effect of derogating from certain fundamental principles in that directive and of rendering processing operations which are not authorised by it lawful. In that sense, the agreement amends Directive 95/46.
171. The EDPS supports the claims of the Parliament in that, in his view, the agreement affects Directive 95/46.
172. By contrast, the Council, supported by the Commission, submits that the agreement does not entail amendment of Directive 95/46. In support of that view, it cites paragraph 8 of the agreement, according to which the latter is not intended to derogate from or amend legislation of the Parties.
Assessment
178. By way of derogation from that generally applicable procedure, the second subparagraph of Article 300(3) EC requires the assent of the Parliament in four circumstances, including, so far as is of interest in this case, where the agreement entails amendment of an act adopted under the procedure referred to in Article 251. It is a question of guaranteeing the Parliaments ability, as co-legislator, to exercise control over any amendment by an international agreement of an act adopted by it.
180. In assessing the merits of this plea, I would point out first and foremost that little importance attaches, in my view, to the fact that the agreement states, in paragraph 8, that it is not intended to derogate from or amend legislation of the Parties. What is important for the purpose of giving effect to the second subparagraph of Article 300(3) EC is to ascertain whether the international agreement entails amendment of the internal Community act, that is to say, whether it has the effect of amending that act, irrespective of the fact that that is not its aim.
181. That said, it seems that the Court has not yet ruled on the meaning to be given to the relatively vague expression amendment of an act adopted under the procedure referred to in Article 251. (79) Some authors have raised the question here whether the term amendment means an amendment conflicting with the provisions of the internal act or whether any amendment, even one consistent with the provisions of the internal act is sufficient to require compliance with the assent procedure. (80)
183. Generally speaking, I am of the opinion that, in order for there to be amendment by an international agreement of an internal Community act adopted under the codecision procedure, one of the conditions is that the field of application of the agreement overlap with that of the internal act. In that case, the internal act may be amended by the international agreement, either if the agreement contains a provision which conflicts with one of those of the internal act or because the agreement adds to the content of the internal act, even when there is no direct conflict.
184. In the present case, I take the view that the agreement was not capable of amending the content of Directive 95/46.
