For example, the EP has the right to bring an action for failure to act, and can also take action to have the ECJ review acts of the Council or the Commission.
Despite those protections, the ECJ determined that the legal remedies provided for in the Euratom Treaty and EEC treaty might be ineffective or uncertain.
For example, an action for failure to act cannot be used to challenge a measure that has already been adopted.
In addition, though the EP has the right to seek a preliminary ruling on the validity of such an action, such a ruling does not mean that anyone will actually bring an action for annulment.
In fact, even though the Commission is required to respect the EP's prerogatives, it is not obliged to adopt the EP's positions as its own.
As a result, the ECJ concluded that the legal remedies available to the EP were not sufficient to guarantee that a measure adopted by either the Council or the Commission in disregard of the EP's prerogatives will be reviewed.
That potential lack of review creates a problem because those prerogatives are one of the elements of balance created by the Treaties, and "observance of the institutional balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions."
Furthermore, the institutional balance requires that it be possible to penalize any breach of the institutional balance rule.
It is the ECJ's job to ensure that law of the Treaties is observed which requires that the ECJ be able to maintain the institutional balance.
While the ECJ cannot include the EP among the institutions that can bring an action under Article 173 or Article 146, it can remedy a procedural gap in the treaties.
As a result, the Court determined that "an action for annulment brought by the Parliament against an act of the Council or the Commission is admissible provided that the actions seeks only to safeguard its prerogatives and that it is founded only on submissions alleging their infringement. Provided that condition is met, the Parliament's action for annulment is subject to the rules laid down in the Treaties for actions for annulment brought by the other institutions."
In Case 302/87, Parliament v. Council of the European Communities, Judgment of the ECJ of 27 September 1988, European Court Reports 1988, 5615 (Comitology), the EP brought an action under Article 173 of the EEC Treaty seeking a declaration that a Council decision was void. The Council objected that the action was inadmissible pursuant to Article 91(1) of the Rules of Procedure of the Court, based on the fact that Article 173 did not expressly provide that the EP could bring an action for annulment. The ECJ agreed with the Council. The ECJ held that Article 173 contrasted the right of actions of institutions with the right of action of individuals, whether natural or legal persons, and that the EP is not a legal person.
Furthermore, the court found that Article 173 would not serve as an appropriate basis for an action of annulment by the EP because applicants have to be directly and individually concerned by the actual content of the challenged act.
The ECJ held that the EP is in the position to exercise influence over the measures adopted by the Council.
However, the fact that the EP had the power to challenge failure to act did not mean that it was entitled to bring actions for annulment, because there was no necessary link between an action for annulment and an action for failure to act.
In fact, the ECJ explicitly rejected the EP's argument that there had to be a parallelism between the capacity of defendant and the capacity of applicant in proceedings for judicial review.
The Maastricht Treaty and the Reinforcement Powers of the European Parliament
The Maastricht Treaty, signed in 1992, was significant because it signaled a turning point in the European integration process.
While prior unification treaties addressed the common economic goals of the member nations, the Maastricht Treaty went a step further and discussed the idea of political unity. The Maastricht Treaty set up the pillar system. The first pillar was based on the prior European economic treaties, and discussed the community dimension of the union. The second and third pillars added new dimensions to the EU; common foreign and security policy and police and judicial cooperation in criminal matters. The EP's power is mainly confined to the first pillar, but that does mean it is powerless in the other two pillars. However, the main difference between the community pillar and the new pillars "has to do with the procedure of taking decisions and with the competence of the community institutions."
As a result, "in the community pillar decisions passed on a majority will be more and more a general rule, and the role of community institutions is essential; in the so called intergovernmental cooperation pillars decisions must be taken take by common consent and the Commission, the European Parliament or the Court of Justice have scarcely competences."
Because the ECJ greatly expanded the EP's ability to bring actions for annulment and otherwise challenge actions by the Council and the Commission, Article 173 became an insufficient guideline for when the EP could bring such actions. As a result, the Treaty of Nice amended former Article 173. Article 230 of the Treaty of Nice provides that:
The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-a-vis third parties.
It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers.
The Court of Justice shall have jurisdiction under the same conditions in actions brought by the Court of Auditors and by the ECB for the purpose of protecting their prerogatives.
Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.
Article 230 signaled a major change because it explicitly recognized the EP's ability to bring actions for annulment. While those unfamiliar with European law may not understand the significance of such actions, the reality is that actions for annulment play a significant role in European administrative law. In fact, "annulment of a binding institutional act occupies a central place among the judicial sanctions provided for in the Treaty, and, although the procedure was modeled on that found in French administrative law, supervision of the legality of institutional acts is to be found, in one form or another, in the legal systems of all the Member states."
Thought the ECJ has obviously engaged in judicial activism in relation to the EP's powers to bring actions of annulment and exert influence over other the other governmental institutions, fears that the ECJ has unduly increased the EP's power seem largely unfounded. After all, the Treaty of Nice makes it clear that the EU members agree that the EP should have the power the ECJ extended to it. Moreover, the ECJ is not the type of activist court that suggests judicial, rather than legislative, law-making. On the contrary, changes have "been lackluster in both ambition and result, incremental rather than radical."
In a democratic system where legislation is driven by popular vote, one would expect to find only incremental changes created by the judicial branch of the governing body. Furthermore, one would expect to see these changes ratified by later legislation. This is exactly what has occurred in regards to the ECJ's expansion of the EP's powers to challenge decisions by other institutions, suggesting that the ECJ has not unduly expanded those powers.
"Article 230." Treaty of Nice. 2000. University College Cork. 25 Aug. 2009
Case 70/88, European Parliament v. Council of Ministers, Judgment of the ECJ of 22 March
1990, European Court Reports 1990, p. I-2041.
Case 302/87, Parliament v. Council of the European Communities, Judgment of the ECJ of 27
September 1988. European Court Reports 1988, 5615.
Case 294/83, Parti Ecologiste 'Les Verts' v. European Parliament, Judgment of the ECJ of 23