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Opinion of Advocate General Jääskinen delivered on 1 October 2015

Opinion of Advocate General Jääskinen delivered on 1 October 2015

Data

Court
Court of Justice
Case date
1 oktober 2015

Opinion of Advocate General

Jääskinen

delivered on 1 October 2015(1)

Case C‑286/14

European Parliament

v

European Commission

"Action for annulment - Article 290 TFEU - Concepts of supplementing and amending the basic act - Regulation (EU) No 1316/2013 - Article 21(3) - Delegated Regulation (EU) No 275/2014 - Detailing funding priorities in the transport sector - Addition of a new part to the annex to the basic regulation - Scope of the power delegated to the Commission"

I – Introduction

1. In constitutional law, the term ‘law’ may refer to a law in the formal or substantive sense. Whatever its content, a formal law (a statute) is a legal act adopted by the legislature in the legislative procedure. Substantive law, on the other hand, refers to general, abstract provisions of positive law, irrespective of the status that attaches to the legal act in which they are contained within the hierarchy of norms. In EU law, Article 290 TFEU makes it possible, under certain conditions, for the European Union’s executive body, the European Commission, to amend a legislative act corresponding, in EU law, to a law in the formal sense. Under Article 290 TFEU, the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of a legislative act may be delegated to the Commission.(2)

2. The dispute between the institutions in the present case relates in essence to whether the delegation to the Commission, as representative of the executive, of the power to amend legislative acts must be made explicit in the wording of the delegating provision contained in the basic act adopted by the legislature. As the legislature of the European Union, the European Parliament and the Council of the European Union are obviously keen that the delegation of power should be interpreted restrictively in this way.

3. The Commission adopted Delegated Regulation No 275/2014 (‘the contested regulation’)(3) on the basis of Article 21(3) of Regulation No 1316/2013 (‘the basic regulation’),(4) the delegating provision. Within the scheme of Article 290 TFEU, the basic regulation is therefore the basic act and the contested regulation is the delegated act. The delegating provision empowers the Commission to adopt delegated acts ‘detailing the funding priorities’. The Parliament has brought the action for annulment on the ground that the Commission detailed the funding priorities by inserting a new Part VI into Annex I to the basic regulation instead of adopting a separate regulation with the same content to supplement the basic regulation.

4. The Parliament considers that the power to amend the basic act — including the addition of a new part to its annex — presupposes that the Commission is clearly and explicitly empowered to do so in the delegating provision. Where, however, the Commission is empowered only to supplement the basic act, which is always the case where it has not been explicitly empowered to amend the basic act, the Commission cannot amend the basic act. Rather, in order to exercise the power delegated to it by supplementing the basic act, it must adopt a separate normative act.

5. The dispute between the Parliament and the Commission in this case is concerned not so much with the interpretation of the terms ‘supplement’ and ‘amend’ used in Article 290 TFEU. The issue lies rather in the fact that neither of those terms is used in the delegating provision contained in the basic regulation. Our examination here must therefore focus primarily on the correct interpretation to be given to a delegating provision in the basic regulation which empowers the Commission to ‘detail the funding priorities’.

6. It must also be pointed out that the Parliament has not challenged the content of the contested regulation. The Parliament thus submits that the Commission could have adopted a delegated regulation with the same content in a separate act without amending the basic regulation. In that event, the Parliament argues, the issue of the power vested in the Commission would not have arisen.

7. For the reasons set out in this Opinion, I take the view that the Commission did not exceed its powers in adopting the contested regulation. If, in the delegating provision, the legislature uses a term other than ‘supplement’ or ‘amend’ within the meaning of Article 290 TFEU, it thus leaves to the Commission’s discretion the nature of the delegated act to be adopted under the delegation of powers. The Commission can then choose how to adopt the delegated act, that is to say whether to supplement or amend the basic act.

II – Relevant legal provisions

A – Basic regulation

8. Recital 59 of the basic regulation reads as follows:

  • ‘As far as transport and energy are concerned, on the basis of the sector-specific guidelines laid down in Regulation (EU) No 1315/2013 and in Regulation (EU) No 347/2013, lists of projects, priority corridors and areas for which this Regulation should apply have been drawn up and should be included in an annex to this Regulation. As for transport, in order to take into account possible changes in political priorities and technological capabilities, as well as traffic flows, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission in respect of adopting amendments to Part I of Annex I and detailing the funding priorities for eligible actions under Article 7(2) to be reflected in the work programmes.’

    • 9. Paragraph 3 of Article 21 (‘Delegated acts’) of that regulation provides:

    ‘In the transport sector, and within the general objectives set out in Article 3 and the specific sectoral objectives referred to in Article 4(2), the Commission shall be empowered to adopt delegated acts in accordance with Article 26 detailing the funding priorities to be reflected in the work programmes referred to in Article 17 for the duration of the CEF for eligible actions under Article 7(2). The Commission shall adopt a delegated act by 22 December 2014.’

    10. Article 26 (‘Exercise of delegation’) of the basic regulation reads:

    ‘1.

    The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

    2.

    The power to adopt delegated acts referred to in Article 21 shall be conferred on the Commission from 1 January 2014 until 31 December 2020.

    3.

    The delegation of power referred to in Article 21 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

    4.

    As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

    5.

    A delegated act adopted pursuant to Article 21 shall enter into force only if no objection has been explicited either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.’

    B – The contested regulation

    11. The Commission adopted the contested regulation pursuant to Article 21(3) of the basic regulation. Recital 1 of the contested regulation reads:

    ‘Pursuant to Article 21(3) of Regulation (EU) No 1316/2013, within the first year after the entry into force of that Regulation, the Commission is empowered to adopt delegated acts detailing the transport funding priorities to be reflected in the work programmes for the duration of the CEF for eligible actions under Article 7(2). It is therefore necessary that the delegated act detailing the transport funding priorities is adopted before the adoption of the work programmes.’

    12. According to Article 1 of the contested regulation, ‘the text set out in the Annex to this Regulation is added as Part VI of Annex I to Regulation (EU) No 1316/2013’.

    13. The new Part VI of Annex I to the basic regulation lays down the transport sector funding priorities for multiannual and annual work programmes. It takes into account the specific objectives of Article 4(2) of the basic regulation, which, as far as the transport sector is concerned, are divided into three groups,(5) and the eligible actions listed in Article 7(2) of the basic regulation. In Part VI, the Commission lists the funding priorities for each objective,(6) but does not specify the aid for which they may be individually eligible.

    14. On the same date as the contested regulation was adopted, that is to say on 7 January 2014, the Commission published the communication ‘Building the Transport Core Network: Core Network Corridors and Connecting Europe Facility’,(7) in which the Commission, inter alia, estimates the level of funding available by priority.(8)

    III – Background to the case

    15. The Commission and the Parliament held discussions, both before and after the contested regulation was adopted, concerning the fact that the contested regulation contains no binding figures for the resources to be allocated to each of the priorities, those figures not having been given until the communication from the Commission was published on 7 January 2014. The Parliament takes the view that binding resource allocations should have been laid down in the delegated regulation. Since they were not, the contested regulation added no significant value to the basic regulation, having done nothing more than rearrange the funding priorities established in Article 4(2) of, and Annex I to, the basic regulation. Those discussions also concerned the consultation of the Parliament at the preparatory stage of the contested regulation.

    16. In February 2014, the Parliament and the Commission agreed that the Commission would publish an assurance in the Official Journal of the European Union that the Connect Europe Facility would be implemented in accordance with the indicative sums shown in the communication published on 7 January 2014. The Commission also said that it would amend the explanatory memorandum to the contested regulation with respect to consultation of the Parliament. In this connection, the Parliament asked the Commission to make a further correction to the contested regulation so that the latter stated that the Commission was supplementing and not amending the basic regulation.(9)

    17. Since neither the Parliament nor the Council had raised any objections to the contested regulation within two months of notification of the act, in accordance with Article 26(5) of the basic regulation, the contested regulation was published in the Official Journal of the European Union on 19 March 2014 and entered into force on the following day. In addition, on 19 March 2014, the Commission published a statement(10) in which it declared its intention ‘to implement the Connecting Europe Facility — transport sector in line with the indicative amounts per funding priorities contained in the Commission’s Communication (COM(2013) 940), without prejudice to the necessary flexibility needed for budgetary implementation’.

    18. On 14 May 2014, the Commission then issued a corrigendum to the contested regulation.(11) That corrigendum amended point 2 of the explanatory memorandum (‘Consultations prior to the adoption of the act’) of the contested regulation as follows:

    ‘for: “The Commission has consulted experts from Member States’ authorities and representatives of the European Parliament in ad hoc meetings on 26 September, 7 November and 9 December 2013.”

    read: “The Commission has consulted experts from Member States’ authorities, in the presence of experts of the European Parliament, in ad hoc meetings on 26 September, 7 November and 9 December 2013.”’

    19. The contested regulation was not corrected in any other respect.

    IV – Procedure before the Court of Justice

    20. The action for annulment brought by the Parliament was received by the Registry of the Court of Justice on 11 June 2014. The Commission responded to the action with a statement of defence that was received on 21 August 2014. The Parliament submitted a reply on 1 October 2014 and the Commission a rejoinder on 11 November 2014.

    21. By a document received at the Court Registry on 25 September 2014, the Council applied for leave to intervene in support of the form of order sought by the Parliament. That application was granted on 22 October 2014.

    22. By its action, the Parliament, supported by the Council, claims that the contested regulation should be annulled and that the Commission should be ordered to pay the costs of the proceedings. It bases its action on a plea in law by which it alleges that the Commission disregarded the conditions laid down in Article 21(3) of the basic regulation in connection with the delegation of power and exceeded the power delegated to it in the basic regulation by amending rather than supplementing that regulation.

    23. The Commission contends that the action should be dismissed as inadmissible or, in the alternative, as unfounded. First, the action is inadmissible because the only plea in law raised by the Parliament is that the Commission detailed the funding priorities by inserting a Part VI into Annex I to the basic regulation instead of adopting a separate legal act to supplement the basic regulation. In its submission, the Parliament does not, however, argue that the content of the contested regulation is unlawful, with the result that the action is based only on the procedural error that is said to vitiate the contested regulation. Secondly, in the event that the Court nonetheless considers the action to be admissible, the Commission contends in the alternative that the action should be dismissed as unfounded. Since Article 21(3) of the basic regulation does not spell out how the Commission is to detail the funding priorities, that provision does not prevent those priorities from being detailed via the addition of a new part to Annex I to the basic regulation. The addition of a new part does not alter the content of the basic regulation’s provisions. Contrary to the Parliament’s submission, the interpretation of the terms ‘supplement’ and ‘amend’ used in Article 290(1) is not material to this case.

    24. The Parliament, the Commission and the Council took part in the hearing on 9 July 2015.

    V – Assessment

    A – Admissibility of the action

    25. By the plea in law referred to in point 23 above, the Commission contends that the action must be dismissed as inadmissible because it is based only on a procedural error. It points out that, in accordance with Article 263 TFEU, the Court of Justice has jurisdiction in actions brought on grounds of infringement of an essential procedural requirement. The error alleged, however, cannot be essential because even the Parliament takes the view that the Commission could have adopted a separate legal act with the same content or corrected the contested regulation by issuing a corrigendum.

    26. The Parliament is of the opinion that the Commission’s claim that the action should be dismissed as inadmissible is based on a misunderstanding of procedural requirements within the meaning of Article 263 TFEU and of the form of an act. A procedural requirement within the meaning of Article 263 TFEU refers to the procedure to be followed before or at the time when an act is adopted.(12) What is more, the Parliament has not claimed that the aforementioned procedural requirements were infringed at the time when the contested regulation was adopted. Rather, the Commission exceeded its powers because it adopted an act that the delegation of power did not entitle it to adopt.(13)

    27. I would point out that this misunderstanding arises from a confusion between the French terms ‘forme’ and ‘formes’. While the former may quite legitimately refer to the form of a legal act, the latter term as used in Article 263 TFEU refers on the contrary to the procedural requirements that must be observed prior to or in the course of the adoption of an act. There is no such risk of confusion in the Finnish- or English-language versions of Article 263 TFEU, for example.(14) In accordance with the case-law of the Court, too, failure to comply with the procedural rules relating to the adoption of an act adversely affecting an individual — such as where the Commission has failed to adopt a decision within the time limit laid down by the EU legislature, for example — constitutes an infringement of essential procedural requirements.(15)

    28. Since the Commission is not therefore accused of having infringed the procedural requirements — within the meaning of Article 263 TFEU — on which it relies, I agree with the Parliament that the action is actually concerned with a possible exceeding of powers by the Commission and not the infringement of procedural requirements. The action is therefore admissible.

    B – Definition of the law applicable to the case

    29. Since the legal basis for the delegation of power is not explicitly referred to in Article 21(3) of the basic regulation, or in Article 21 generally, it must first be examined whether the contested regulation was indeed adopted on the basis of Article 290 TFEU. Article 21(3) of the basic regulation empowers the Commission to detail the funding priorities without explicitly specifying the legal basis for that empowerment.

    30. In its written pleadings, the Commission has argued that this case is concerned not with the interpretation of Article 290 TFEU but exclusively with that of Article 21(3) of the basic regulation. The interpretation of Article 290 TFEU and the difference between the terms ‘supplement’ and ‘amend’ used in that provision are irrelevant here, since the EU legislature specifically decided not to use either of those terms in Article 21(3) of the basic regulation. The term ‘detailing’ used in the delegating regulation must therefore be interpreted in the light of the scheme of the basic regulation, without reference to any predefined terms.

    31. At the hearing, however, the Commission reaffirmed that Article 21(3) of the basic regulation does indeed constitute a delegation of power as provided for in Article 290 TFEU, even though the interpretation of the terms ‘supplement’ and ‘amend’ used in the latter article are not material to the interpretation of the aforementioned Article 21(3). The institutions are therefore in agreement that the act in question is a delegation of power as provided for in Article 290 TFEU.

    32. Technically, the foregoing clarification removes any doubt about the matter. For the sake of transparency, however, I would submit that the power delegated to the Commission in Article 21(3) of the basic regulation is indeed a delegated power as provided for in Article 290 TFEU, and not, for example, an implementing power as provided for in Article 291 TFEU. It should be recalled that a legislative act cannot be supplemented or amended by an implementing act, even in relation to its non-essential elements.(16) The wording of recital 59 of the basic regulation(17) and the heading of Article 21 (‘Delegated acts’) also show that the legislature clearly intended to delegate powers to the Commission in accordance with Article 290 TFEU.

    C – The power delegated to the Commission under Article 290 TFEU

    1. Preliminary remarks on the interpretation of the delegating provisions

    33. The Commission considers that Article 21(3) of the basic regulation must be interpreted exclusively by reference to the scheme of that regulation. However, since the present case concerns a power delegated in accordance with Article 290 TFEU, the reference to ‘detailing’ in Article 21(3) of the basic regulation can, in my opinion, be interpreted in three different ways.

    34. First, that provision can be interpreted as meaning that the Commission is thereby empowered either to supplement or to amend the basic regulation in accordance with Article 290 TFEU, but is not to be empowered to do both.(18) The second possible interpretation is that, by using a term other than ‘supplement’ or ‘amend’ in the delegating provision, the legislature left it to the Commission’s discretion whether to supplement or amend the basic act or to adopt one or more acts both supplementing and amending the basic regulation. The third possibility is that ‘detailing’ means something other than ‘supplement’ or ‘amend’ within the meaning of Article 290 TFEU, notwithstanding that the delegation of power is based on Article 290 TFEU. That third possibility would therefore mean that, in addition to acts supplementing and/or amending the basic act, there is yet a third category of delegated act.

    35. Contrary to the argument put forward by the Commission, it is necessary to examine Article 290 TFEU in order to determine which of those three possibilities represents the correct interpretation of Article 21(3) of the basic regulation. After all, the delegating provision in question cannot be at odds with the provision of primary law on which it is based but must be interpreted in such a way as to achieve the objectives pursued by that provision.(19)

    36. Even if the dispute between the institutions involved in the present case is not technically concerned with the interpretation of the terms ‘supplement’ and ‘amend’ used in Article 290 TFEU, the distinction between those two terms is central to the case. For that reason, I shall look next at the terms ‘supplement’ and ‘amend’ as used in Article 290 TFEU. Although the Court has not as yet adopted a clear position on the difference between those terms as used in Article 290 TFEU, I shall then turn briefly to the existing case-law that has a bearing on the situation in the present case.

    2. The terms ‘supplement’ and ‘amend’ within the meaning of Article 290 TFEU

    37. The Treaty of Lisbon made substantial changes to the regime allowing the legislature to delegate powers to the Commission. The new regime replaced the ‘comitology’ procedure and the powers to be conferred on the Commission were clearly separated out into a delegated power akin to a legislative power and an implementing power.

    38. This model had already been adopted in the Treaty establishing a Constitution for Europe.(20) The division into delegated powers and implementing powers was chosen as a solution to the problem that it had not previously been possible to make a clear distinction in EU law between matters falling to the legislature and those falling to the executive.(21) The most important distinction drawn in relation to the acts of the executive in the course of the preparatory work on the Constitutional Treaty was therefore the differentiation between acts in which a legislative act is further developed, that is to say delegated acts, and acts that merely implement a legislative act.(22) No mention of the distinction to be drawn, within the new category of delegated acts, between acts supplementing the basic act and acts amending it, other than the conclusion that delegated acts could lay down rules on the technical and detailed elements which develop a legislative act or subsequently amend certain aspects of the legislative act itself.(23)

    39. From the point of view of constitutional law, the delegated power model adopted in the Treaty of Lisbon gives rise to two fundamental decisions that are important for this case. First, legislative powers may be delegated under certain material conditions which, at a constitutional level, are already defined in general terms in Article 290 TFEU and must then be more specifically defined by the legislature in every delegating provision which it adopts.(24) Secondly, Article 290 TFEU creates the possibility of delegating to the Commission the power to amend the basic act. In other words, the party exercising a delegated power may amend a ‘law’ in the formal sense and not merely adopt, by a separate act, provisions which, from the point of view of their content (substantively), are equivalent to a law.(25)

    40. In its Communication on the implementation of Article 290 TFEU, the Commission begins by saying that it ‘believes that by using the verb “amend” the authors of the new Treaty sought to cover hypothetical cases in which the Commission is empowered formally to amend a basic instrument. Such a formal amendment might relate to the text of one or more articles in the enacting terms or to the text of an annex that legally forms part of the legislative instrument. It makes little difference whether the annex contains purely technical measures; as soon as the Commission is empowered to amend an annex containing measures of general application, the regime of delegated acts must be applied’.(26)

    41. Secondly, the Commission takes the view that, ‘in order to determine whether a measure “supplements” the basic instrument, the legislator should assess whether the future measure specifically adds new non-essential rules which change the framework of the legislative act, leaving a margin of discretion to the Commission. If it does, the measure could be deemed to “supplement” the basic instrument’.(27)

    42. The Communication from the Commission is supplemented by the Guidelines for the services of the Commission of 24 June 2011.(28) According to those Guidelines, ‘amend’ means to make formal changes to the text of the basic act by deleting, replacing or adding non-essential elements. A delegated act ‘supplementing’ the basic act, on the other hand, is a separate act which does not formally change the basic act.(29)

    3. Case-law of the Court with a bearing on the situation in the present case

    43. So far as concerns the application of the case-law predating the entry into force of the Lisbon Treaty to the interpretation of the present Article 290 TFEU, it must be concluded that the Communication from the Commission on the implementation of Article 290 TFEU states that the definition of delegated acts in Article 290(1) is very similar to that of acts which, under Decision 1999/468/EC,(30) are subject to the regulatory procedure with scrutiny introduced by Decision 2006/512/EC.(31) In both cases, the acts in question are of general application and seek to supplement or amend certain non-essential elements of the legislative instrument. However, the similarities do not mean that the acts will necessarily be implemented in the same way. In a new institutional context, the scope of the delegated acts will not necessarily be identical to that of the regulatory procedure with scrutiny. Any automatic duplication of precedents is therefore to be avoided.(32)

    44. As I have indicated in point 36 above, the Court of Justice has not yet adopted a clear position on the difference between the words ‘supplement’ and ‘amend’ within the meaning of Article 290 TFEU. In his Opinion in the Commission v Parliament and Council,(33) however, Advocate General Mengozzi stated that, given the organisational intentions of the authors of the Lisbon Treaty when reforming the mechanism for legislative delegation within the European Union, it is logical to assume that the distinction between acts which ‘supplement’ the basic act and those that ‘amend’ it reflects a wish to identify two categories of delegated act functionally different one from the other.(34)

    45. Advocate General Mengozzi takes the view that the first category concerns measures designed to make formal changes to the text of the legislative act, while the second relates to measures which supplement its normative content without changing the text. From that perspective, depending on the technique chosen, the addition to the basic act of new non-essential elements would constitute, for the purposes of Article 290 TFEU, an ‘amendment’, provided that those elements are inserted into the text of the act (either its provisions or its annexes), and a ‘supplement’ where they are not intended to be physically included in the basic act but instead remain the subject of a separate normative measure.(35) This interpretation is consistent with that given in the Communication from the Commission on the implementation of Article 290 TFEU and the 2011 Commission Services Guidelines, both cited above.(36)

    46. In the aforementioned judgment in Commission v Parliament and Council,(37) the Court held that the insertion of a footnote into the annex to a basic act, that is to say the insertion of the delegated act directly into the text of the basic act, constitutes an amendment of the normative content of a legislative act within the meaning of Article 290(1) TFEU. In the situation concerned, it was clear from the delegating provision contained in the basic act that the EU legislature had intended to insert the act adopted on the basis of that provision directly into the text of the basic act.(38)

    47. For the reasons set out above, I am inclined to endorse Advocate General Mengozzi’s interpretation of the difference between supplementing and amending the basic act within the meaning of Article 290 TFEU. I therefore take the view that those terms are intended to distinguish between two categories of delegated act that perform different functions. At the same time, however, such a definition probably has the effect of shifting that dichotomy to the level of legislative methodology, which is concerned only with the nature of the delegated act.

    4. The exhaustive nature of the distinction drawn in Article 290 TFEU

    48. I would point out that, in the basic regulation, the legislature deliberately used the word ‘detailing’ instead of the terms ‘supplement’ or ‘amend’ used in Article 290 TFEU. The Commission has argued that, if the legislature had elected to use one of the aforementioned two terms employed in Article 290 TFEU in Article 21(3) of the basic regulation, the latter provision would have to be interpreted by reference to those terms. However, since the legislature used neither of those two terms, the term ‘detailing’ must be interpreted exclusively in the context of the basic regulation.

    49. At first sight, the Commission’s written pleadings could be taken to mean that it considers there to be a third category of delegated act, in addition to delegated acts supplementing or amending the basic act.(39) At the hearing, however, the Commission denied the existence of such a third category. In its view, therefore, there are only two categories of delegated act, that is to say acts which supplement the basic act and those that amend it. Crucial to determining the powers exercised by the Commission is the criterion that a delegated act should not affect the essential elements of the basic act.

    50. According to the interpretation of Article 290 TFEU set out in points 45 to 47 above, the concept of ‘amending’ an act within the meaning of that provision generally encompasses any formal change to the wording of the act or its annex, be this the deletion, addition or replacement of one of its provisions.(40) In the light of the foregoing considerations, it must also be pointed out in this regard that the term ‘supplement’ is used in a technical sense in Article 290 TFEU. Thus, for example, although the inserting of a new footnote into the basic act or the adding of a new part to the annex to that act might well be open to interpretation in everyday language as a measure supplementing the basic act, such a measure constitutes an amendment to the basic act for the purposes of Article 290 TFEU.(41) Inserting a completely new part into Annex I to the basic regulation without actually changing the wording of that basic regulation or the annex to it must therefore be regarded as an amendment to the basic regulation for the purposes of Article 290 TFEU.

    51. Since ‘supplementing’ and ‘amending’ as used in Article 290 TFEU refer to two categories of delegated act that perform different functions,(42) it is my view that all delegated acts adopted by the Commission under Article 290 TFEU must in principle fall into one of those two categories. The issue is therefore primarily the legal nature of the delegated act, the determination of which lies within the discretion exercised by the legislature.(43)

    52. The formal distinction which Article 290 TFEU draws between amending and supplementing the basic act makes it possible to draw a retrospective distinction between delegated acts that have supplemented the basic act and those that have amended it depending on the content of the act adopted by the Commission. The distinction drawn in Article 290 TFEU does not, however, prescribe any legal criteria against which the legislature is to choose between those two formal alternatives. Neither is it possible to determine by reference to Article 290 TFEU whether the Commission must supplement or amend the basic act where the wording of the delegated provision contained in the basic act is unclear in this regard.

    53. For that reason, we must look next at what significance is to be attached to the legislature’s decision to use a term other than ‘supplement’ or ‘amend’ within the meaning of Article 290 TFEU when delegating powers to the Commission. First of all, therefore, the question arises as to whether, when using a term that bears no relation to either of those contained in Article 290 TFEU, as it does, for example, in Article 21(3) of the basic regulation, the legislature leaves it to the Commission’s discretion whether to amend or supplement the basic act within the meaning of Article 290 TFEU.(44) Secondly, a question closely connected to the interpretation of the delegating provision is whether the empowerment to amend the basic act must always be explicit, as the Parliament maintains. Under the first alternative, the Commission could in my opinion supplement or amend or supplement and amend the basic act. If, however, the power to amend must be explicitly delegated, the basic act could not, in the latter case, be amended.

    D – Interpretation of a delegating provision which uses neither of the two terms contained in Article 290 TFEU, and interpretation of Article 21(3) of the basic regulation

    54. The Parliament takes the view that the empowerment to amend a basic act must be explicit because the amendment directly affects the text adopted by the legislature. Where the legislature has used a term other than ‘supplement’ or ‘amend’ when delegating powers to the Commission, it is therefore the power to supplement the basic act that is conferred. At the hearing, however, the Parliament conceded that, in practice, even the use of a term other than ‘amend’ could in many cases signify the power to amend within the meaning of Article 290 TFEU.(45)

    55. The foregoing notwithstanding, the Parliament argues that the delegating provision contained in Article 21(3) of the basic regulation does not empower the Commission to amend that regulation.(46) In its submission, since many other provisions in the basic regulation, such as Article 21(1), (2) and (6), explicitly and formally empower the Commission to amend the basic regulation, it is clear that Article 21(3) of that regulation does not confer such a power to amend.(47)

    56. The Commission counters the foregoing with the argument that there is no hierarchy between acts supplementing the basic act and acts amending it; rather, those acts have equal status. There is, however, a hierarchical relationship between legislative acts amending essential provisions of an act and delegated acts supplementing or amending non-essential provisions of an act within the meaning of Article 290 TFEU. Delegated acts always concern non-essential aspects of the basic act, and those aspects remain non-essential whether they are the subject of an amendment to the basic act or are dealt with in a separate act. Article 290 TFEU cannot be interpreted as meaning that the delegation of power must explicitly state whether the Commission is empowered to supplement the basic act or to amend it.(48)

    57. The Parliament, on the other hand, submits that the phrase ‘content of the delegation of power’ in Article 290 TFEU specifically refers to the type of act which the Commission may adopt by virtue of the delegated power, and not so much to the content of the delegated act itself. It is for the legislature to stipulate the content of the delegation of power, and that is a decision which cannot be left to the Commission’s discretion.(49)

    58. In my view, the Parliament is absolutely right to say that it is for the legislature to stipulate the content of the delegation of power, including the legal nature of the delegated act as a measure supplementing or amending the basic act. In the present case, however, it is clear that the legislature did not stipulate the legal nature of the delegated act, or at least did not make clear its choice as to the legal nature of that act. After all, Article 21(3) of the basic regulation does not explicitly empower the Commission to supplement the basic regulation either.

    59. Notwithstanding the view taken by the Parliament, it cannot, in my opinion, be assumed that the fact that Article 21(3) of the basic regulation does not explicitly empower the Commission to amend that regulation automatically means that it empowers the Commission only to supplement it. I concur with the Commission’s submission that there is nothing in Article 290 TFEU to indicate that an amendment has a more significant effect on the basic act than a supplement, even though an amendment involves changes made directly to the text itself.(50) I would recall that the key criterion is that the delegated act should not affect the essential provisions of the basic act. That constitutional restriction applies in the same way both to measures supplementing the basic act and to measures amending it.

    60. Once it has been adopted, a separate delegated act supplementing the basic act is part of the legal framework of the basic act even though it does not formally become an integral part of that act. In cases where, by virtue of the delegated power, a completely new legal norm is adopted, the difference between a supplement and an amendment to the basic act lies exclusively in the way in which the delegated act is drawn up and is in fact apparent only in the way in which any legally non-binding consolidated version of the basic act is produced. In both cases, the legally binding text of the new legal norm is contained in the delegated act published in the L series of the Official Journal of the European Union, which, by definition, has neither repealed nor replaced any of the provisions of the basic act.(51)

    61. Since there is therefore no difference between the legal effects of delegated acts supplementing or amending the basic act, there is in my opinion no reason to require that the power to amend a basic act be explicitly delegated, while the power to supplement it need not necessarily be explicitly delegated. There is no constitutionally relevant or other reason for this to be the case, be it the principle of democracy, the balance between the institutions, the division of powers between the Union and the Member States, or the system of fundamental rights. Since the difference between supplementing and amending is thus purely formal in the case of new norms, the end result in the present case, for example, would have been materially the same even if the Commission had detailed the funding priorities in a separate delegated regulation.(52)

    62. It must also be borne in mind that, in delegating provisions, the EU legislature may, if it so wishes, use the terms employed in Article 290 TFEU and thus make the power conferred on the Commission subject to the adoption of acts satisfying those predefined terms. If, therefore, the legislature considers it important not to give the Commission the power to amend a legislative act, it can make an explicit stipulation to that effect by using the term ‘supplement’ in the delegating provision.(53)

    63. The parties have commented on how important it is that legislation should be transparent. The Parliament in particular has expressed concern that that transparency might be compromised if the Court were to decide that the power to amend a basic act need not be explicit. In my view, however, the same can also be said of unclear delegating provisions generally.

    64. It must therefore be determined next whether all delegating provisions must always be interpreted as meaning that they have in mind the power either to supplement or to amend the basic act or whether the Commission can choose whether to adopt supplementing and/or amending acts where the legislature has not made a clear stipulation in this regard.

    65. As I have stated in point 61 above, I am of the view, contrary to that taken by the Parliament, that the power to amend does not need to be explicitly conferred. For that reason, I would submit, it also cannot be assumed that any term used by the legislature is to be interpreted as meaning, on a mutually exclusive basis, either ‘amend’ or ‘supplement’.(54) After all, given the lack of uniformity in the legislative practice adopted in this regard,(55) the contrary interpretation would make it considerably more uncertain for what purpose a power had actually been conferred on the Commission. For, in principle, it would be impossible to infer directly from any term other than ‘supplement’ or ‘amend’ whether the delegating provision had in mind a supplement or an amendment within the meaning of Article 290 TFEU because the meaning would depend on the context.

    66. Such an interpretation would increase the risk that the Court would in future have to rule on a significant number of legally straightforward cases concerning the interpretation of an unclear delegating provision. It is inconceivable that the legislature should be able, whenever it wishes, to challenge a delegated act on the ground that the basic act has been erroneously supplemented or amended, when the alleged error arises from the interpretation of a term used by the legislature that was unclear to begin with.(56)

    67. I also consider it unlikely that there will be many cases where the conventional methods of interpreting EU law will provide a means of establishing with certainty that a particular verb used by the legislature in a delegating provision, such as ‘determine’, ‘define’ or ‘lay down’, clearly means ‘supplement’ or ‘amend’ but not both. The Commission would thus be artificially compelled to look for the legally ‘correct’ solution to a question that is essentially concerned with the appropriate legislative methodology.

    68. I therefore take the view that Article 290 TFEU is to be interpreted as meaning that, in choosing a term other than one used in that provision, the legislature may leave it to the Commission’s discretion whether to supplement or amend the basic act, provided that the objectives, content, scope and duration of the delegation of power are otherwise defined in accordance with Article 290 TFEU and the delegation of power does not affect the essential provisions of the basic act. Those conditions alone set limits to the discretion available to the Commission.

    69. The basic act at issue here does not specify whether the term ‘detailing’ in Article 21(3) refers to a supplement or an amendment. According to the interpretation given in point 61 of this Opinion, however, the difference between those two types of measure is purely formal and of no constitutional significance. Moreover, the Parliament has not argued that any deficiencies in the content of the contested regulation are sufficient to support its annulment in an action for failure to act, for example.(57) Neither is it maintained that the Commission exceeded its powers by breaching the conditions of the delegation of power in some other way or by interfering with essential aspects of the basic act.

    70. In the light of all the foregoing, therefore, I take the view that, in adopting the contested regulation, the Commission did not exceed its powers so far as concerns the scope of the delegation of those powers. In Article 21(3) of the basic regulation, the legislature delegated to the Commission the power to ‘detail the funding priorities’ without specifying whether those priorities were to be detailed by supplementing or by amending the basic act within the meaning of Article 290 TFEU. The Commission could therefore legitimately detail the funding priorities by inserting a new part into Annex I to the basic regulation. For that reason, I propose that the Court should dismiss the action brought by the Parliament and order the Parliament to pay the costs incurred by the Commission, in accordance with Article 138(1) of the Rules of Procedure of the Court of Justice, and order the Council to pay its own costs, in accordance with Article 140(1) of the Rules of Procedure.

    E – The application to maintain the effects of the regulation at issue

    71. In the event that, contrary to my proposal, the Court concludes that the contested regulation must be annulled because the Commission exceeded its powers, I shall now look briefly at the Commission’s application, based on the second paragraph of Article 264 TFEU, to have the effects of the contested regulation maintained. The Parliament and the Council have not opposed that application, but have on the contrary argued that the effects of the contested regulation should be maintained until such time as it is replaced by an act consistent with the applicable rules.

    72. Given that the action brought by the Parliament is concerned more with the form of the contested regulation than with its content, on which the institutions were ultimately in agreement, the Commission’s application is, in my view, well founded. To annul the contested regulation without maintaining its effects could have negative consequences for the Connecting Europe Facility, since the contested regulation is a necessary precondition for the existence of the work programme. Legal certainty therefore requires that the effects of the contested regulation be maintained in accordance with Article 264 TFEU if, contrary to my proposal, the Court annuls the contested regulation.

    VI – Conclusion

    73. In the light of the foregoing considerations, I propose that the Court should:

    • dismiss the action brought by the European Parliament;

    • order the European Parliament to bear both its own costs and those incurred by the European Commission; and

    • order the Council of the European Union to bear its own costs.