Federal Republic of Germany & Others v CommissionCase Number:287/85Date of lodging: 17/09/85Date of Judgement:09/06/87

In essence the case is brought by a major number of the EEC members as they are seeking to limit the newly formed powers of the EEC Commission on the socio-economical Immigration policies. The countries are the Kingdom of Denmark, the United Kingdom of Great Britain and Northern Ireland, the French Republic, the Federal Republic of Germany and the Kingdom of Netherlands. However the Kingdom of Netherlands had missed the deadline for sending their application for the proceedings to commence and thus the ECJ pronounced its application inadmissible due to the lack of punctuality.

5 IT IS UNNECESSARY TO DECIDE WHETHER AN APPLICATION SENT BY TELEX SATISFIES THE FORMAL REQUIREMENTS SET OUT IN ARTICLE 37 ( 1 ) OF THE RULES OF PROCEDURE AND WHETHER TRANSMISSION BY TELEX IS COMPATIBLE WITH THE EXISTENCE OF THE RULES ON THE EXTENSION OF TIME-LIMITS ON ACCOUNT OF DISTANCE PROVIDED FOR IN ARTICLE 81 ( 2 ) OF THE RULES OF PROCEDURE, SINCE ON THE DATE WHEN THE TELEX MESSAGE WAS RECEIVED AT THE REGISTRY THE PERIOD OF TIME ALLOWED FOR COMMENCING PROCEEDINGS HAD ALREADY EXPIRED . AS THE COURT HELD IN ITS JUDGMENT OF 15 JANUARY 1987 IN CASE 152/85 MISSET V COUNCIL, (( 1987 )) ECR 223, WHERE THE PERIOD OF TIME ALLOWED FOR COMMENCING PROCEEDINGS IS EXPRESSED IN CALENDAR MONTHS, THAT PERIOD EXPIRES AT THE END OF THE DAY IN THE LAST MONTH THEREOF WHICH BEARS THE SAME NUMBER AS THE DAY OF THE OCCURRENCE OF THE EVENT WHICH CAUSED TIME TO START RUNNING, THAT IS TO SAY THE DAY OF NOTIFICATION . SINCE THE CONTESTED DECISION WAS NOTIFIED TO THE NETHERLANDS PERMANENT REPRESENTATIVE ON 11 JULY 1985, THE PERIOD OF TWO MONTHS WITHIN WHICH PROCEEDINGS FOR A DECLARATION THAT A MEASURE IS VOID MUST BE INSTITUTED PURSUANT TO THE THIRD PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY EXPIRED AT MIDNIGHT ON 11 SEPTEMBER 1985 AND HENCE THE PERIOD FOR BRINGING PROCEEDINGS, INCLUDING THE SIX DAYS' EXTENSION ON ACCOUNT OF DISTANCE FOR THE NETHERLANDS PROVIDED FOR IN ANNEX II TO THE RULES OF PROCEDURE, EXPIRED AT MIDNIGHT ON 17 SEPTEMBER 1985 . HOWEVER, EVEN THE TELEX MESSAGE FROM THE KINGDOM OF THE NETHERLANDS WAS NOT RECEIVED AT THE COURT UNTIL

18*SEPTEMBER 1985 .

Furthermore the claim that the Kingdom of Netherlands had laid down is totally irrelevant. However the other member states would continue to advance as their claims would segregate into different fields concerning immigration:

• 2 DECISION 85/381/EEC SETS UP A PRIOR COMMUNICATION AND CONSULTATION PROCEDURE ON MIGRATION

POLICIES IN RELATION TO NON-MEMBER COUNTRIES . UNDER ARTICLE 1 THE MEMBER STATES ARE TO INFORM THE

COMMISSION AND THE OTHER MEMBER STATES OF THEIR DRAFT MEASURES AND DRAFT AGREEMENTS WITH

REGARD TO WORKERS FROM NON-MEMBER STATES AND MEMBERS OF THEIR FAMILIES RELATING TO THE

FOLLOWING AREAS : ENTRY, RESIDENCE AND EMPLOYMENT, INCLUDING ILLEGAL ENTRY, RESIDENCE AND

EMPLOYMENT; THE ACHIEVEMENT OF EQUAL TREATMENT IN LIVING AND WORKING CONDITIONS, WAGES AND

ECONOMIC RIGHTS; THE PROMOTION OF INTEGRATION INTO THE WORKFORCE, SOCIETY AND CULTURAL LIFE; AND

THE VOLUNTARY RETURN OF SUCH PERSONS TO THEIR COUNTRIES OF ORIGIN . UNDER ARTICLE 2 THAT

NOTIFICATION PROCEDURE MAY BE FOLLOWED BY CONSULTATION BETWEEN THE MEMBER STATES AND THE

COMMISSION, ARRANGED BY THE COMMISSION . THE CONSULTATION PROCEDURE MAY BE INITIATED BY A MEMBER

STATE OR BY THE COMMISSION . UNDER ARTICLE 3 THE OBJECTIVES OF THE CONSULTATION PROCEDURE ARE, INTER

ALIA, TO FACILITATE THE MUTUAL EXCHANGE OF INFORMATION AND THE IDENTIFICATION OF PROBLEMS OF

COMMON INTEREST AND, AS A RESULT, THE ADOPTION OF A COMMON POSITION BY THE MEMBER STATES; TO

ENSURE THAT THE AGREEMENTS AND MEASURES ARE IN CONFORMITY WITH COMMUNITY POLICIES AND ACTIONS;

AND TO EXAMINE THE DESIRABILITY OF MEASURES, AIMED, IN PARTICULAR, AT ACHIEVING PROGRESS TOWARDS

THE HARMONIZATION OF NATIONAL LEGISLATION ON FOREIGNERS AND THE INCLUSION OF A MAXIMUM OF

COMMON PROVISIONS IN BILATERAL AGREEMENTS .

• 3 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER DESCRIPTION OF THE FACTS AND THE CLAIMS AND SUBMISSIONS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

THE COMPETENCE OF THE COMMISSION • THE APPLICANT MEMBER STATES MAINTAIN THAT NEITHER ARTICLE 118 NOR ANY

OTHER TREATY PROVISION EMPOWERS THE COMMISSION TO ADOPT A BINDING DECISION IN A FIELD WHICH, MOREOVER, FALLS WITHIN THEIR EXCLUSIVE JURISDICTION . THE FRENCH REPUBLIC MAINTAINS THAT MATTERS RELATING TO THE CONDITIONS OF ENTRY, RESIDENCE AND EMPLOYMENT OF NATIONALS OF NON-MEMBER COUNTRIES AFFECT THE MEMBER STATES' SECURITY AND GO SUBSTANTIALLY BEYOND THE SOCIAL FIELD REFERRED TO IN ARTICLE 118 .

• IN THAT CONNECTION IT SHOULD BE BORNE IN MIND THAT THE FIRST PARAGRAPH OF ARTICLE 118 OF THE EEC TREATY CONFERS ON THE COMMISSION "THE TASK OF PROMOTING CLOSE COOPERATION BETWEEN MEMBER STATES IN THE SOCIAL FIELD ". ITS SECOND PARAGRAPH PROVIDES THAT, TO THAT END, THE COMMISSION IS TO ACT IN CLOSE CONTACT WITH THE MEMBER STATES BY MAKING STUDIES, DELIVERING OPINIONS AND ARRANGING CONSULTATIONS .

• THE FIRST SUBMISSION RAISES TWO SEPARATE QUESTIONS, THAT IS TO SAY WHETHER COLLABORATION BETWEEN MEMBER STATES IN THE SOCIAL FIELD, AS PROVIDED FOR IN THE FIRST PARAGRAPH OF ARTICLE 118, EXTENDS TO MIGRATION POLICIES IN RELATION TO NON-MEMBER COUNTRIES, AND SECONDLY WHETHER THE ARRANGEMENT OF CONSULTATIONS, A TASK CONFERRED ON THE COMMISSION BY THE SECOND PARAGRAPH OF ARTICLE 118, EMPOWERS THE LATTER TO ISSUE BINDING MEASURES . THOSE TWO QUESTIONS SHOULD BE CONSIDERED IN TURN .

• 12 THE FIRST PARAGRAPH OF ARTICLE 117 OF THE EEC TREATY, WHICH APPEARS IN CHAPTER 1, "SOCIAL PROVISIONS", OF TITLE II, "SOCIAL POLICY", MAKES IT THE DUTY OF THE MEMBER STATES TO PROMOTE IMPROVED WORKING CONDITIONS AND AN IMPROVED STANDARD OF LIVING FOR WORKERS, SO AS TO MAKE POSSIBLE THEIR HARMONIZATION WHILE THE IMPROVEMENT IS BEING MAINTAINED . UNDER THE SECOND PARAGRAPH OF ARTICLE 117 SUCH A DEVELOPMENT IS TO ENSUE NOT ONLY FROM THE FUNCTIONING OF THE COMMON MARKET, WHICH IS TO FAVOUR THE HARMONIZATION OF SOCIAL SYSTEMS, BUT ALSO FROM THE PROCEDURES PROVIDED FOR BY THE TREATY AND FROM THE APPROXIMATION OF NATIONAL LEGISLATION .

• 13 IT IS WITH THAT APPROXIMATION IN MIND THAT ARTICLE 118 GIVES THE COMMISSION THE TASK OF PROMOTING CLOSE COOPERATION BETWEEN MEMBER STATES IN THE SOCIAL FIELD, PARTICULARLY IN MATTERS RELATING TO EMPLOYMENT AND WORKING CONDITIONS .

• 14 CONSEQUENTLY, WHILST ARTICLE 118 OF THE EEC TREATY DOES NOT ENCROACH UPON THE MEMBER STATES' POWERS IN THE SOCIAL FIELD IN SO FAR AS THE LATTER IS NOT COVERED BY OTHER PROVISIONS OF THE TREATY, SUCH AS, FOR EXAMPLE, THE PROVISIONS ON THE FREE MOVEMENT OF WORKERS, THE COMMON AGRICULTURAL POLICY OR THE COMMON TRANSPORT POLICY, IT NEVERTHELESS PROVIDES THAT THOSE POWERS MUST BE EXERCISED IN THE FRAMEWORK OF COOPERATION BETWEEN MEMBER STATES, WHICH IS TO BE ORGANIZED BY THE COMMISSION .

In order to properly understand the implications of these two article we need to take into closer consideration the fact that the ECJ is juxtaposing the role of the Commission in the Common Market with that it has created itself in the Immigration Field. The judges believe that EEC Commission is very much on the fore front of integration in the EEC and that it is just adding one more field to it , this time it being immigration. As they also believe that many of the aspect relating to the immigrants status is concerning not only for migration policies but for socio-economical ones as well.

15 THE ESSENCE OF THE ARGUMENTS PUT FORWARD BY THE APPLICANT MEMBER STATES IS THAT MIGRATION POLICY IN RELATION TO NON-MEMBER COUNTRIES IS NOT PART OF THE SOCIAL FIELD ENVISAGED BY ARTICLE 118 OR, ALTERNATIVELY, THAT IT FALLS ONLY PARTLY WITHIN THAT FIELD .

16 AS REGARDS THE APPLICANTS' MAIN ARGUMENT IT MUST BE OBSERVED THAT THE EMPLOYMENT SITUATION AND, MORE GENERALLY, THE IMPROVEMENT OF LIVING AND WORKING CONDITIONS WITHIN THE COMMUNITY ARE LIABLE TO BE AFFECTED BY THE POLICY PURSUED BY THE MEMBER STATES WITH REGARD TO WORKERS FROM NON-MEMBER COUNTRIES . IN THE PREAMBLE TO DECISION 85/381/EEC THE COMMISSION RIGHTLY CONSIDERS THAT IT IS IMPORTANT TO ENSURE THAT THE MIGRATION POLICIES OF MEMBER STATES IN RELATION TO NON-MEMBER COUNTRIES TAKE INTO ACCOUNT BOTH COMMON POLICIES AND THE ACTIONS TAKEN AT COMMUNITY LEVEL, IN PARTICULAR WITHIN THE FRAMEWORK OF COMMUNITY LABOUR MARKET POLICY, IN ORDER NOT TO JEOPARDIZE THE RESULTS .

7 AS EARLY AS 1974, IN ITS RESOLUTION OF 21 JANUARY 1974 CONCERNING A SOCIAL ACTION PROGRAMME ( OFFICIAL JOURNAL 1974, C 13, P . 1 ), THE COUNCIL RECOGNIZED THAT THE MIGRATION POLICIES PURSUED BY THE MEMBER STATES AFFECT THE COMMUNITY' S SOCIAL POLICY, IN PARTICULAR IN VIEW OF THEIR INFLUENCE ON THE COMMUNITY EMPLOYMENT MARKET AND ON COMMUNITY WORKERS' EMPLOYMENT CONDITIONS . IN THAT RESOLUTION IT ACKNOWLEDGED THE NEED, AND EXPRESSED THE POLITICAL RESOLVE, TO PROMOTE CONSULTATION ON IMMIGRATION POLICIES VIS-A-VIS NON-MEMBER COUNTRIES . IT REITERATED THAT VIEW IN ITS RESOLUTION OF 9*FEBRUARY 1976 ON AN ACTION PROGRAMME FOR MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES ( OFFICIAL JOURNAL 1976, C 34, P . 2 ) AND IN ITS RESOLUTION OF 27*JUNE 1980 ON GUIDELINES FOR THE COMMUNITY LABOUR-MARKET POLICY ( OFFICIAL JOURNAL 1980, C 168, P.*1 ), WHICH IS REFERRED TO IN THE COMMISSION' S DECISION . THE DECISION ALSO REFERS TO THE RESOLUTION ON GUIDELINES FOR A COMMUNITY POLICY ON MIGRATION ALREADY APPROVED BY THE COUNCIL, WHICH WAS TO BE FORMALLY ADOPTED ON 16 JULY 1985 ( OFFICIAL JOURNAL 1985, C 186, P . 3 ).

• 24 AS A RESULT, IN SO FAR AS DECISION 85/381/EEC INCLUDES THE PROMOTION OF CULTURAL INTEGRATION AS A WHOLE AMONG THE SUBJECTS FOR CONSULTATION IT GOES BEYOND THE SOCIAL FIELD IN WHICH, UNDER ARTICLE 118, THE COMMISSION HAS THE TASK OF PROMOTING COOPERATION BETWEEN MEMBER STATES

• 25 THE FRENCH REPUBLIC' S ARGUMENT THAT THE WHOLE AREA OF POLICY ON FOREIGN NATIONALS FALLS OUTSIDE THE SOCIAL FIELD INASMUCH AS IT INVOLVES QUESTIONS OF PUBLIC SECURITY FOR WHICH THE MEMBER STATES ALONE ARE RESPONSIBLE CANNOT BE ACCEPTED . WHILST IT IS TRUE THAT PURSUANT TO THEIR RULES GOVERNING FOREIGN NATIONALS MEMBER STATES MAY TAKE MEASURES WITH REGARD TO WORKERS WHO ARE NATIONALS OF NON-MEMBER COUNTRIES - EITHER BY ADOPTING NATIONAL RULES OR BY NEGOTIATING INTERNATIONAL INSTRUMENTS - WHICH ARE BASED ON CONSIDERATIONS OF PUBLIC POLICY, PUBLIC SECURITY AND PUBLIC HEALTH AND WHICH ARE, AS SUCH, THEIR SOLE RESPONSIBILITY, THIS DOES NOT MEAN THAT THE WHOLE FIELD OF MIGRATION POLICY IN RELATION TO NON-MEMBER COUNTRIES FALLS NECESSARILY WITHIN THE SCOPE OF PUBLIC SECURITY .

• 26 THE ARGUMENT RAISED BY THE FRENCH REPUBLIC AND THE FEDERAL REPUBLIC OF GERMANY TO THE EFFECT THAT THE DUTY OF NOTIFICATION IS LIABLE TO JEOPARDIZE THE REQUIREMENTS OF SECRECY AND CONFIDENTIALITY, PARTICULARLY IN NEGOTIATIONS WITH NON-MEMBER COUNTRIES, MUST LIKEWISE BE REJECTED SINCE THERE IS NO IMPERATIVE REQUIREMENT FOR THE DRAFTS TO BE NOTIFIED UNTIL SUCH TIME AS THEY ARE PUBLISHED . MOREOVER, UNDER ARTICLE 4 OF THE DECISION THE MEMBER STATES ARE REQUIRED TO TAKE ALL NECESSARY STEPS TO SAFEGUARD THE CONFIDENTIAL NATURE OF THE INFORMATION EXCHANGED, WHICH MUST COVER INFORMATION COMMUNICATED VOLUNTARILY BEFORE PUBLICATION .

• 7 SINCE THE CONTESTED DECISION FALLS ONLY PARTLY OUTSIDE THE SOCIAL FIELD COVERED BY ARTICLE 118, IT MUST BE CONSIDERED WHETHER THE SECOND PARAGRAPH OF ARTICLE 118, WHICH PROVIDES THAT THE COMMISSION IS TO ACT, INTER ALIA, BY ARRANGING CONSULTATIONS, GIVES IT THE POWER TO ADOPT A BINDING DECISION WITH A VIEW TO THE ARRANGEMENT OF SUCH CONSULTATIONS .

• 28 IN THAT CONNECTION IT MUST BE EMPHASIZED THAT WHERE AN ARTICLE OF THE EEC TREATY - IN THIS CASE ARTICLE 118 - CONFERS A SPECIFIC TASK ON THE COMMISSION IT MUST BE ACCEPTED, IF THAT PROVISION IS NOT TO BE RENDERED WHOLLY INEFFECTIVE, THAT IT CONFERS ON THE COMMISSION NECESSARILY AND PER SE THE POWERS WHICH ARE INDISPENSABLE IN ORDER TO CARRY OUT THAT TASK . ACCORDINGLY, THE SECOND PARAGRAPH OF ARTICLE 118 MUST BE INTERPRETED AS CONFERRING ON THE COMMISSION ALL THE POWERS WHICH ARE NECESSARY IN ORDER TO ARRANGE THE CONSULTATIONS . IN ORDER TO PERFORM THAT TASK OF ARRANGING CONSULTATIONS THE COMMISSION MUST NECESSARILY BE ABLE TO REQUIRE THE MEMBER STATES TO NOTIFY ESSENTIAL INFORMATION, IN THE FIRST PLACE IN ORDER TO IDENTIFY THE PROBLEMS AND IN THE SECOND PLACE IN ORDER TO PINPOINT THE POSSIBLE GUIDELINES FOR ANY FUTURE JOINT ACTION ON THE PART OF THE MEMBER STATES; LIKEWISE IT MUST BE ABLE TO REQUIRE THEM TO TAKE PART IN CONSULTATIONS .

• 29 INDEED, THE COLLABORATION BETWEEN MEMBER STATES REQUIRED BY ARTICLE 118 IS ONLY POSSIBLE WITHIN THE FRAMEWORK OF ORGANIZED CONSULTATIONS . IN THE ABSENCE OF ANY ACTION TO INITIATE IT THAT COLLABORATION MIGHT REMAIN A DEAD LETTER, EVEN THOUGH PROVISION IS MADE FOR IT IN THE TREATY . SINCE THE COMMISSION WAS SPECIFICALLY GIVEN THE TASK OF PROMOTING SUCH COLLABORATION AND ARRANGING IT, IT IS ENTITLED TO INITIATE CONSULTATION PROCEDURES WITHIN THE SOCIAL FIELD REFERRED TO IN ARTICLE 118 .

• 30 IT MUST BE BORNE IN MIND THAT THAT POWER OF THE COMMISSION MUST BE CONFINED TO ARRANGING A PROCEDURE FOR THE NOTIFICATION OF INFORMATION AND CONSULTATION AND THAT IN THE PRESENT STAGE OF DEVELOPMENT OF COMMUNITY LAW THE SUBJECT-MATTER OF THE NOTIFICATION AND CONSULTATION FALLS WITHIN THE COMPETENCE OF THE MEMBER STATES . IT MUST ALSO BE POINTED OUT THAT THE POWER WHICH THE COMMISSION SEEKS TO EXERCISE UNDER ARTICLE 118 IS SIMPLY A PROCEDURAL ONE TO SET UP THE NOTIFICATION AND CONSULTATION MACHINERY WHICH IS TO RESULT IN THE ADOPTION OF A COMMON POSITION ON THE PART OF THE MEMBER STATES .

• 31 CONSEQUENTLY, SINCE ARTICLE 118 PROVIDES A SPECIFIC BASIS FOR THE COMMISSION' S DECISION THERE IS NO NEED TO CONSIDER WHETHER THE OUTCOME SOUGHT BY THE DECISION IN QUESTION MIGHT HAVE BEEN ACHIEVED THROUGH OTHER GENERAL PROVISIONS OF THE TREATY OR OTHER PROCEDURES NECESSITATING ACTION ON THE PART OF OTHER INSTITUTIONS .

• 32 NOW THAT IT HAS BEEN ESTABLISHED THAT THE COMMISSION IS EMPOWERED UNDER ARTICLE 118 TO ADOPT A BINDING DECISION VIS-A-VIS THE MEMBER STATES ESTABLISHING A COMMUNICATION AND CONSULTATION PROCEDURE, IT MUST BE CONSIDERED WHETHER THE CONTESTED DECISION DOES NOT GO BEYOND THE LIMITS OF SUCH A PROCEDURE, AS THE APPLICANT MEMBER STATES CLAIM .

• In a brief summary , the ECJ ruled that the Commission isn’t infringing on any kind of National Security, Defensive or Confidentiality policy and in fact has the right to bind Member States by the consultation which inevitably leads to an adoption of a legislative provision bound to be executed by every member.

• 39 ACCORDINGLY, THE THIRD PARAGRAPH OF ARTICLE 118 MADE IT OBLIGATORY TO CONSULT THE ECONOMIC AND SOCIAL COMMITTEE, NOT IN THE CASE OF STUDIES AND THE ARRANGEMENT OF CONSULTATIONS, BUT SOLELY IN THE CASE OF THE OPINIONS BY WHICH THE COMMISSION MAY PROPOSE THE IMPLEMENTATION OF PRACTICAL MEASURES, ON WHICH IT IS USEFUL TO ASCERTAIN THE VIEWS OF THE SOCIO-ECONOMIC GROUPS . THIS IS NOT THE CASE WHEN THE COMMISSION DECIDES TO COMPILE INFORMATION OR ORGANIZE A MEETING, FOR THE DECISIONS INVOLVED THEN ARE PURELY PREPARATORY AND PROCEDURAL AND, BY DEFINITION, DO NOT TOUCH ON SUBSTANTIVE QUESTIONS WHICH ARE LIABLE TO INVOLVE THE ECONOMIC AND SOCIAL COMMITTEE IN MAKING AN ASSESSMENT OF A SOCIO-ECONOMIC NATURE .

• 40 CONSEQUENTLY, THE SUBMISSION THAT THE DECISION SHOULD BE DECLARED VOID ON THE GROUND THAT THE ECONOMIC AND SOCIAL COMMITTEE WAS NOT CONSULTED MUST BE DISMISSED .

The End