– having regard to the draft Council regulation (10222/5/2011),
– having regard to the request for consent submitted by the Council in accordance with Article 352 of the Treaty on the Functioning of the European Union (C7-0076/2012),
– having regard to Rule 81(1) of its Rules of Procedure,
– having regard to the recommendation of the Committee on Legal Affairs (A7-0087/2012),
1. Consents to the draft Council regulation;
2. Reminds the Council that, should the requirement for unanimity under Article 352 TFEU and the pending domestic parliamentary procedures in the United Kingdom lead to any change in the draft text, the consent of the Parliament would have to be requested anew;
3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.
The Commission presented this proposal on 4 April 2011 with the aim of enhancing legal certainty by broadening access to EU law and enabling everyone to rely on the electronic edition of the Official Journal of the European Union (OJ) as the official, authentic, up-to-date and complete version. The proposal therefore provides that electronic publication will equate to valid publication of the OJ. However, in exceptional and temporary cases of unforeseen disruption of the electronic publication only, the printed edition would have legal value.
The background to this proposed change is a 2007 judgment by the Court of Justice which stated that legal rights cannot be claimed and obligations cannot be enforced on the basis of the electronic version of the OJ(1).
The proposal also deals with the technical conditions under which electronic publication equates to valid publication and establishes the competencies of the Publications Office of the European Union (OPOCE) in this area.
According to Article 5 of the draft Regulation, it is to enter into force on the first day of the fourth month following its adoption.
Choice of legal basis
The legal basis proposed by the Commission is Article 352 TFEU, the so-called "flexibility clause", which calls for the use of the consent procedure, where Parliament is left with two options: it can either approve or reject the proposal. Where, such as in this case, the consent is required for a proposed legislative act, the committee responsible may however choose to present an interim report on the proposal to the Parliament, in the interest of achieving a positive outcome of the procedure, by setting out recommendations for modification or implementation of the proposed act (Rule 81(3)).
The predecessor of the current flexibility clause, Article 308 TEC, did not include a requirement to obtain Parliament's consent. This proposal therefore represents the first time that the flexibility clause is to be used with the involvement of Parliament.
The Commission does not provide any justification for the use of the flexibility clause in the proposal, nor does it discuss the use of any of the new legal bases introduced by the Lisbon Treaty.
It is settled case law of the Court of Justice that "the choice of legal basis for a Community measure must rest on objective factors amenable to judicial review, which include in particular the aim and content of the measure"(2). The choice of an incorrect legal basis may therefore justify the annulment of the act in question.
The discussions on this dossier in the Committee on Legal Affairs and the Committee on Constitutional Affairs have therefore focused on the question of the choice of the correct legal basis.
The flexibility clause in Article 352 TFEU is a legal basis of last resort, which means that it may be used only where the Treaties have not provided the necessary powers for the Union to take action, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties.
The OJ was created on the basis of Article 191 TEC by Council decision in 1958(3), making use of the "implied competence" theory whereby the Union may adopt acts which are necessary for it to function and where there is no legal basis providing for a legislative procedure. Article 191 TEC simply stated that Union legislation was to be published in an official journal but did not provide for any legal basis. The 1958 Council decision was therefore adopted making use of the prevailing decision-making procedure at the time, whereby the Council took the final decision. Article 191 TEC corresponds to Articles 287 and 297 TFEU, which maintains the obligation to publish without providing any legal basis. One possible line of reasoning is therefore that, on the basis of the 1958 precedent, the current Commission proposal should be adopted on the basis of the "implied competence" theory, but using what is today the prevailing decision-making procedure, namely the ordinary legislative procedure.
Since the existence of an implied competence derogates from the principle of conferral, it must be appraised strictly and the Union is therefore entitled to rely on an implied competence only where it is necessary to ensure the practical effect of the provisions of the Treaty. Furthermore, the close relationship between the implied competence and the express competence which it supplements must be shown by objective evidence which the Court of Justice can review. The Treaty provision providing for the express competence with which the implied competence is associated determines the decision-making procedure which the Union has to follow in exercising that competence(4).
The OPOCE is an interinstitutional body with the main responsibility of publishing the OJ. Its activities are governed by Decision 2009/496/EC, Euratom of 26 June 2009 on the organisation and operation of the Publications Office of the European Union(5). This decision is however not a legislative act, but an interinstitutional agreement which sets out the practical details and modalities of publication in the OJ according to the obligation to this effect in Articles 287 and 297 TFEU.
This rapporteur considers that, even though there is an express competence for the Union to publish acts under Articles 287 and 297, there is no explicit legal basis applicable in this case which provides for the use of a specific decision-making procedure. The above-mentioned precedent on implied competence from 1958 has furthermore been made obsolete by the many Treaty revisions and changes to decision-making procedures which have taken place in the more than 50 years that have since passed. Because publication in the OJ and the corresponding activities of the OPOCE constitute objectives which are to be attained under the Treaties, the use of the flexibility clause in Article 352 TFEU is therefore proper.
National parliamentary scrutiny
Electronic publication of the OJ was one of the priorities of the Hungarian Presidency in January-July 2011 with reference to the importance of public access to Union legislation. Because of national parliamentary scrutiny reservations in the Council, however, the formal request from the Council for the consent of the European Parliament was not sent until 1
3 March 2012.
According to a 2009 ruling by the German Constitutional Court(6) on the Lisbon Treaty, the German legislator (the Bundestag and the Bundesrat) would have to pronounce itself on the use of the flexibility clause where the proposal in question could potentially expand the powers of the EU beyond the Treaties, and the German representative in the Council may not express formal approval on behalf of Germany towards a proposal of the Commission based on Article 352 TFEU as long as these constitutionally required preconditions are not met.
The German delegation in the Council thus entered a parliamentary scrutiny reservation, and the procedure was therefore suspended pending the lifting of that reservation following the completion of the internal procedures in Germany. Similar reservations were also made by the delegations of the Czech Republic and the United Kingdom in the Council. Whereas the reservations of Germany and the Czech Republic were lifted by the end of 2011, the United Kingdom has, at the time of this recommendation, not yet lifted its reservation. The United Kingdom has however stated that it can accept the content of the proposal, subject to the outcome of the domestic parliamentary procedures, and has in the meantime given its agreement to the request for consent from the European Parliament.
Justification for giving consent
The rapporteur considers that the Council text provides for a welcome reform of the way in which the OJ is published, as it provides for increased legal certainty and better access for citizens to legal acts of the European Union. Currently, almost everyone consults only the electronic form of legal acts of the EU. The fact that electronic versions of legal acts are not legally binding is unacceptable in itself, and creates uncertainty as to the precise content of the legal acts of the EU currently available in the EUR-LEX database. Moreover, the consultation of paper versions of the Official Journal is a time-consuming, costly process, and is carried out by very few users. The reform will thus increase legal certainty and decrease access costs for citizens and businesses. All such reforms should be very welcome in the EU.
The suggested changes to be made are purely technical in nature and do not comprise any potential policy choices on which the European Parliament, in its role as co-legislator,
need make any pronouncement. Consent should therefore be given to this proposal for a Council regulation in order for it to enter into force as soon as possible.
Case C-45/86, Commission v. Council (Generalised Tariff Preferences)  ECR 1439, para. 5; Case C-440/05 Commission v. Council  ECR I-9097; Case C-411/06 Commission v. Parliament and Council (8 September 2009) (OJ C 267, 7.11.2009, p. 8).
Decision creating the "Official Journal of the European Communities", OJ 017, 6.10.1958, p. 390. This is the full text of that decision:
"THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY,
Having regard to Article 191 of the Treaty establishing the European Economic Community; Having regard to the proposals from the President of the European Parliament and the Presidents of the High Authority, the Commission of the European Economic Community and the Commission of the European Atomic Energy Community;
Whereas the European Economic Community, the European Coal and Steel Community and the European Atomic Energy Community should have a joint official journal;
to create, as the official journal of the Community, within the meaning of Article 191 of the Treaty establishing the European Economic Community, the Official Journal of the European Communities.
Decision 2009/496/EC, Euratom of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the European Economic and Social Committee and the Committee of the Regions of 26 June 2009 on the organisation and operation of the Publications Office of the European Union (OJ L 168, 30.6.2009, p. 41).
Luigi Berlinguer, Sebastian Valentin Bodu, Françoise Castex, Christian Engström, Marielle Gallo, Giuseppe Gargani, Lidia Joanna Geringer de Oedenberg, Sajjad Karim, Klaus-Heiner Lehne, Antonio Masip Hidalgo, Jiří Maštálka, Alajos Mészáros, Bernhard Rapkay, Evelyn Regner, Francesco Enrico Speroni, Alexandra Thein, Cecilia Wikström, Tadeusz Zwiefka
Substitute(s) present for the final vote
Piotr Borys, Eva Lichtenberger, Dagmar Roth-Behrendt