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YOUR NOTES ON '61986CJ0068_SUM'
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61986CJ0068_EN

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Summary

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1 . AGRICULTURE - APPROXIMATION OF LAWS - LEGAL BASIS

( EEC TREATY, ARTS 38 ( 2 ), 39, 43 AND 100; COUNCIL DIRECTIVE 85/649 )

2 . MEASURES ADOPTED BY THE INSTITUTIONS - CHOICE OF LEGAL BASIS - CRITERIA - PRACTICE FOLLOWED BY OF AN INSTITUTION - NOT RELEVANT IN THE LIGHT OF THE RULES LAID DOWN IN THE TREATY

3 . MEASURES ADOPTED BY THE INSTITUTIONS - PROCEDURE FOR ADOPTION - RULES LAID DOWN IN THE TREATY - IMPERATIVE

4 . ACTION FOR A DECLARATION THAT A MEASURE IS VOID - GROUNDS - INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS - INFRINGEMENT OF A PROVISION OF THE COUNCIL' S RULES OF PROCEDURE GOVERNING VOTING PROCEDURES

( EEC TREATY, FIRST PARAGRAPH OF ART . 173; MERGER TREATY, ART . 5; RULES OF PROCEDURE OF THE COUNCIL, ART . 6 ( 1 ) )

Summary

1 . ARTICLE 43 OF THE TREATY IS THE APPROPRIATE LEGAL BASIS FOR ANY LEGISLATION CONCERNING THE PRODUCTION AND MARKETING OF AGRICULTURAL PRODUCTS LISTED IN ANNEX II TO THE TREATY WHICH CONTRIBUTES TO THE ACHIEVEMENT OF ONE OR MORE OF THE OBJECTIVES OF THE COMMON AGRICULTURAL POLICY SET OUT IN ARTICLE 39 OF THE TREATY . EVEN WHERE SUCH LEGISLATION IS DIRECTED BOTH TO OBJECTIVES OF AGRICULTURAL POLICY AND TO OTHER OBJECTIVES WHICH, IN THE ABSENCE OF SPECIFIC PROVISIONS, ARE PURSUED ON THE BASIS OF ARTICLE 100 OF THE TREATY, IT MAY INVOLVE THE HARMONIZATION OF PROVISIONS OF NATIONAL LAW IN THE LATTER FIELD WITHOUT THERE BEING ANY NEED TO HAVE RECOURSE TO ARTICLE 100 . IN VIEW OF THE PRECEDENCE WHICH ARTICLE 38 ( 2 ) OF THE TREATY GIVES TO SPECIFIC PROVISIONS IN THE AGRICULTURAL FIELD OVER GENERAL PROVISIONS RELATING TO THE ESTABLISHMENT OF THE COMMON MARKET, ARTICLE 100 CANNOT BE RELIED ON AS A GROUND FOR RESTRICTING THE FIELD OF APPLICATION OF ARTICLE 43 .

ALTHOUGH DIRECTIVE 85/649 PROHIBITING THE USE IN LIVESTOCK FARMING OF CERTAIN SUBSTANCES HAVING A HORMONAL ACTION HAS AN ASPECT CONCERNED WITH THE HARMONIZATION OF NATIONAL LEGISLATION WITH A VIEW TO PROTECTING CONSUMER AND PUBLIC HEALTH, IT REGULATES CONDITIONS FOR THE PRODUCTION AND MARKETING OF MEAT WITH A VIEW TO IMPROVING ITS QUALITY AND HENCE THE COUNCIL HAD THE POWER TO ADOPT IT ON THE BASIS OF ARTICLE 43 ALONE .

2 . THE CHOICE OF THE APPROPRIATE LEGAL BASIS FOR A MEASURE DOES NOT DEPEND ON THE ASSESSMENT OF THE COMMUNITY LEGISLATURE BUT MUST BE BASED ON OBJECTIVE FACTORS WHICH ARE AMENABLE TO JUDICIAL REVIEW . A PRACTICE OF THE COUNCIL OF BASING MEASURES IN A PARTICULAR FIELD ON A DUAL LEGAL BASIS CANNOT DEROGATE FROM THE RULES LAID DOWN IN THE TREATY . SUCH A PRACTICE CANNOT THEREFORE CREATE A PRECEDENT BINDING ON COMMUNITY INSTITUTIONS WITH REGARD TO THE CORRECT LEGAL BASIS .

3 . THE RULES REGARDING THE MANNER IN WHICH THE COMMUNITY INSTITUTIONS ARRIVE AT THEIR DECISIONS ARE LAID DOWN IN THE TREATY AND ARE NOT AT THE DISPOSAL OF THE MEMBER STATES OR OF THE INSTITUTIONS THEMSELVES .

4 . FAILURE TO COMPLY WITH ARTICLE 6 ( 1 ) OF THE COUNCIL' S RULES OF PROCEDURE GOVERNING THE CIRCUMSTANCES IN WHICH A WRITTEN VOTE MAY BE HELD CONSTITUTES AN INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 173 OF THE TREATY .

THE COUNCIL IS UNDER A DUTY TO COMPLY WITH THAT PROCEDURAL RULE WHICH IT ITSELF LAID DOWN AND IT CANNOT DEPART THEREFROM EVEN ON THE BASIS OF A LARGER MAJORITY THAN IS LAID DOWN FOR THE ADOPTION OR AMENDMENT OF THE RULES OF PROCEDURE, UNLESS IT FORMALLY AMENDS THOSE RULES, WHICH CONSTITUTE A MEASURE ADOPTED PURSUANT TO ARTICLE 5 OF THE TREATY ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION .

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