C-45/86 - Commission Of The European Communities V Council Of The European Communities

The legality of the legislative acts of the EU

Article 190 of the Treaty provided that: “Regulations, Directives and Decisions of the Council and of the Commission shall state the reasons on which they are based”.


Now that list was extended to Regulations, Directives, Decisions, Recommendations and Opinions, in Article 288 of the Treaty of the Functioning of the European Union (TFEU). 


The Court of Justice held in this historical case law that this list is not closed. Legal acts can be binding out of those categories. 


The ECJ also established that there always must be a proper legal basis for Community secondary legislation.


Case Summary

The Commission brought an action for annulment against the Council Regulation ( EEC ) No 3599/85 of 17 December 1985 applying generalized tariff preferences for 1986 in respect of certain industrial products originating in developing countries and Council Regulation ( EEC ) No 3600/85 of 17 December 1985 applying generalized tariff preferences for 1986 to textile products originating in developing countries.

The Commission considered that the absence of a precise legal basis was contrary to Article 190 of the EEC Treaty. Consequently, it also constituted an infringement of the Treaty because it resulted in recourse being had to a procedure entailing a unanimous vote rather than the process applicable under Article 113 of the Treaty.

The European Court of Justice declared that the Community measures must include a statement of the facts and law which led the Institution in question to adopt them, to do possible review by the Court and so that the Member States and the nationals concerned may have knowledge of the conditions under which the community institutions have applied the Treaty. Although failure to refer in the statement of reasons to a specific provision of the Treaty need not necessarily constitute an infringement of essential procedural requirements when the legal basis for the measure may be determined from other parts of the standard, such explicit reference is indispensable where, in its absence, the parties concerned and the Court are left uncertain as to the precise legal basis.

In this meaning, the ECJ declared void of those Council Regulations because they do not satisfy the requirements laid down in Article 190 of the Treaty concerning the statement of reasons and because they were not adopted on the correct legal basis.


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