OPINION OF ADVOCATE GENERAL

delivered on 10 July 2014 (1)

Case C‑65/13

(Action for annulment brought by the European Parliament)

‛Action for annulment — Regulation (EU) No 492/2011 — Commission implementing decision — Commission exceeding its powers — Interpretation of Articles 290 and 291 TFEU — Implementing acts — EURES network — Provision of further detail in relation to the normative content of a legislative act’

The present case provides the Court of Justice with the opportunity to rule on the meaning and scope of the ‘implementing acts’ referred to in Article 291 TFEU in the light of its judgment of 18 March 2014, (2) in which the Grand Chamber ruled for the first time on the demarcation of those implementing acts in relation to the ‘delegated’ acts provided for in Article 290 TFEU. On the basis of the case-law laid down in that judgment, the Court of Justice must now decide on an action brought by the European Parliament for the annulment of certain provisions of Commission Implementing Decision 2012/733/EU of 26 November 2012 (3) implementing Regulation (EU) No 492/2011 of the European Parliament and of the Council (4) as regards the clearance of vacancies and applications for employment and the re‑establishment of EURES (European Employment Services). More specifically, the issue in the present case concerns the meaning and scope of the implementing powers referred to in Article 291 TFEU.

Without needing to develop the considerations I had occasion to put forward in my Opinion in Case C‑427/12, (5) I shall focus on the examination of each of the provisions at issue in the present action with a view to determining whether their subject-matter complies with the concept of ‘implementation’ which, in accordance with the principles laid down in the judgment in Case C‑427/12, applies to the scope of Article 291 TFEU.

I – Legislative framework

A – Regulation No 492/2011

Recital 8 in the preamble to Regulation No 492/2011 provides as follows:

‘The machinery for vacancy clearance, in particular by means of direct cooperation between the central employment services and also between the regional services, as well as by coordination of the exchange of information, ensures in a general way a clearer picture of the labour market. Workers wishing to move should also be regularly informed of living and working conditions.’

Recital 9 in the preamble to that regulation provides:

‘Close links exist between freedom of movement for workers, employment and vocational training, particularly where the latter aims at putting workers in a position to take up concrete offers of employment from other regions of the Union. Such links make it necessary that the problems arising in this connection should no longer be studied in isolation but viewed as interdependent, account also being taken of the problems of employment at the regional level. It is therefore necessary to direct the efforts of Member States toward coordinating their employment policies.’

In accordance with Article 11 of Regulation No 492/2011:

‘1. …

The central employment services of the Member States shall cooperate closely with each other and with the Commission with a view to acting jointly as regards the clearing of vacancies and applications for employment within the Union and the resultant placing of workers in employment.

…’

Pursuant to Article 12 of Regulation No 492/2011:

‘1. The Member States shall send to the Commission information on problems arising in connection with the freedom of movement and employment of workers and particulars of the state and development of employment.

…’

Article 13 of Regulation No 492/2011 reads as follows:

‘1. The specialist service of each Member State shall regularly send to the specialist services of the other Member States and to the European Coordination Office referred to in Article 18:

(a) details of vacancies which could be filled by nationals of other Member States;

(b) details of vacancies addressed to third countries;

(c) details of applications for employment by those who have formally expressed a wish to work in another Member State;

(d) information, by region and by branch of activity, on applicants who have declared themselves actually willing to accept employment in another country.

The specialist service of each Member State shall forward this information to the appropriate employment services and agencies as soon as possible.

This system may be adapted if necessary.’

Article 15 of the regulation provides as follows:

‘1. The provisions of Article 14 shall be implemented by the specialist services. However, in so far as they have been authorised by the central services and in so far as the organisation of the employment services of a Member State and the placing techniques employed make it possible:

(b) the services territorially responsible for the border regions of two or more Member States shall regularly exchange data relating to vacancies and applications for employment in their area and, acting in accordance with their arrangements with the other employment services of their countries, shall directly bring together and clear vacancies and applications for employment.

If necessary, the services territorially responsible for border regions shall also set up cooperation and service structures to provide:

— users with as much practical information as possible on the various aspects of mobility, and

— management and labour, social services (in particular public, private or those of public interest) and all institutions concerned, with a framework of coordinated measures relating to mobility,

…

Article 17 of Regulation No 492/2011 provides:

‘1. On the basis of a report from the Commission drawn up from information supplied by the Member States, the latter and the Commission shall at least once a year analyse jointly the results of Union arrangements regarding vacancies and applications.

In accordance with the first paragraph of Article 18 of the regulation, ‘[t]he European Office for Coordinating the Clearance of Vacancies and Applications for Employment (“the European Coordination Office”), established within the Commission, shall have the general task of promoting vacancy clearance at Union level. It shall be responsible in particular for all the technical duties in this field which, under the provisions of this Regulation, are assigned to the Commission, and especially for assisting the national employment services.’

Article 19(1) of Regulation No 492/2011 provides as follows:

‘The European Coordination Office shall be responsible, in particular, for:

(a)coordinating the practical measures necessary for vacancy clearance at Union level and for analysing the resulting movements of workers;

(b)contributing to such objectives by implementing, in cooperation with the Technical Committee, joint methods of action at administrative and technical levels;

(c)carrying out, where a special need arises, and in agreement with the specialist services, the bringing together of vacancies and applications for employment for clearance by those specialist services.’

In accordance with Article 20 of the regulation, ‘[t]he Commission may, in agreement with the competent authority of each Member State, and in accordance with the conditions and procedures which it shall determine on the basis of the opinion of the Technical Committee, organise visits and assignments for officials of other Member States, and also advanced programmes for specialist personnel.’

In accordance with Article 38 of Regulation No 492/2011, ‘[t]he Commission shall adopt measures pursuant to this Regulation for its implementation. To this end it shall act in close cooperation with the central public authorities of the Member States.’

B – The contested decision

The wording of the contested provisions will be set out as part of the analysis of the substance.

II – The action for annulment and the procedure before the Court of Justice

The Parliament seeks the annulment of the contested decision as regards the clearance of vacancies and applications for employment and the re‑establishment of the EURES network. The Parliament submits that the Commission exceeded the implementing powers conferred on it by Article 38 of Regulation No 492/2011, thus ignoring the limits which are inherent in an implementing act within the meaning of Article 291 TFEU. In the Parliament’s view, that provision, in conjunction with Article 290 TFEU, created a new framework for the interpretation of the normative content of Article 38, the meaning of which cannot be the same as that which, in the past, could be attributed to other provisions which, like Article 44 of Regulation (EEC) No 1612/68, (6) while worded identically, warranted a different interpretation on account of the legislative context in which they were adopted. That view must be extended to the contested decision when compared with Decision 2003/8/EC, (7) which at the relevant time also reformed EURES.

For its part, the Commission contests the action, contending that, in general, the scope of the implementing powers must be examined by reference to the general objectives established by Regulation No 492/2011 and to the task which falls to the Commission with regard to the adoption of the measures which are necessary or useful for the purposes of the implementation of the regulation. In that connection, the Commission points out that Regulation No 492/2011 reflects powers which are shared between the Union and the Member States and that its objectives must be attained through the coordination of national policies in the sphere of employment. The Commission submits that EURES simply activates the principle of cooperation laid down in Article 11(1) of Regulation No 492/2011 and is aimed solely at ensuring uniform conditions for the implementation of cooperation between the Member States themselves and between the Member States and the Commission, in accordance with Article 291 TFEU.

In addition to its general arguments, the Parliament’s complaints are focused on six articles of the contested decision. Its arguments in that connection and those of the Commission will be summarised as part of the examination of each complaint.

The Parliament states in conclusion that, in so far as the Court may hold that the contested provisions are severable from the rest of the contested decision, it will accept the partial annulment of the decision. Finally, the Parliament claims that the Commission should be ordered to pay the costs.

For its part, the Commission contends that the action should be dismissed and that the Parliament should be ordered to pay the costs. In the alternative, the Commission contends that the Parliament’s complaints do not justify the annulment of the contested decision in its entirety as the action relates to certain specific elements which may be severed from the rest of the contested decision. In any event, the Commission claims that, if the contested decision is annulled in whole or in part, its effects should be maintained pending the entry into force, within a reasonable period, of a new decision intended to replace it.

The hearing was held on 30 April 2014 and the parties were invited to focus in their submissions on the effect on the present case of the judgment in Commission v Parliament and Council (EU:C:2014:170).

III – Assessment

A – Preliminary considerations

The present action for annulment alleges that the contested decision infringes Article 38 of Regulation No 492/2011. The Parliament takes the view that that provision confers on the Commission the power to adopt ‘measures pursuant to this Regulation for its implementation’, that is, it grants the Commission strictly ‘implementing powers’ within the meaning of Article 291 TFEU. However, the Parliament submits that the Commission did not confine itself in the contested decision to ‘implementing’ Regulation No 492/2011 and that instead the Commission ‘supplemented certain non-essential elements’ of the regulation, for which purpose it lacked the necessary authorisation under Article 290 TFEU.

It is common ground between the parties that the powers conferred on the Commission by Article 38 of Regulation No 492/2011 are ‘implementing’ powers within the meaning of Article 291 TFEU. As the Parliament maintains, this means that the noticeable parallelism between that provision and Article 44 of Regulation No 1612/68, on the one hand, and between the contested decision and the decisions adopted at the relevant time to implement Article 44 of the latter regulation, on the other hand, does not extend beyond their identical wording, since the interpretation of their respective meanings depends on the legislative context in which each of those provisions was incorporated into Union law. The fact is that both Regulation No 1612/68 and the decisions which preceded the contested decision were adopted before the entry into force of the Treaty of Lisbon; that is, when, as the Court has observed, ‘the expression “implementing powers” … covered the power to implement, at EU level, an EU legislative act or certain EU provisions and also, in certain circumstances, the power to adopt normative acts which supplement or amend certain non-essential elements of a legislative act’. (8) It was the European Convention which proposed ‘making a distinction between those two types of power’, and that distinction ‘was ultimately incorporated in the Treaty of Lisbon in Articles 290 TFEU and 291 TFEU’. (9)

Consequently, the fact that the contested decision substantially reproduces the content of the previous decisions, the lawfulness of which was not called into question at the relevant time, says nothing about its own lawfulness. Those decisions were adopted in a context in which, as has been seen, ‘implementing powers’ covered without distinction the power to adopt acts which are to be applied strictly and the power to enact provisions which supplement or amend certain non-essential elements of a legislative act. (10) The contested decision, on the other hand, entered into force after primary legislation had put an end to that absence of distinction, with the result that ‘implementing powers’ of the kind which Article 38 of Regulation No 492/2011 conferred on the Commission for the purposes of adopting the contested decision must be confined to the limits laid down by Article 291 TFEU, and may not cover the power to supplement or amend non‑essential elements of Regulation No 492/2011. In other words, the Commission may not adopt a ‘delegated act’ within the meaning of Article 290 TFEU. Nor may the contested decision include the power to amend the essential elements of the regulation, since that is clearly a task which is reserved to the legislature itself.

In my opinion, it follows from the foregoing that the differences identified by the Parliament in the different language versions of Article 38 of Regulation No 492/2011 are immaterial. The Parliament points out in paragraphs 64 to 68 of its application that the different language versions of that provision enable a nuanced assessment of the task which the legislature ultimately intended to assign to the Commission. Thus, according to the French version, Article 38 provides that the Commission is to adopt measures ‘nécessaires à la mise en application’ of Regulation No 492/2011. For its part, the English version refers to measures ‘pursuant to this Regulation for its implementation’, while the Italian version refers to measures ‘necessarie per l’applicazione del presente regolamento’. Finally, the Spanish version refers to ‘las medidas de ejecución para la aplicación del presente Reglamento’. I believe that, beyond the nuances which may be inferred from each of those phrases, the decisive point is not the level of precision with which the legislature defined the latitude available to the Commission but rather whether the Commission acted strictly within the limits of the ‘implementing powers’ which the legislature may confer on it under Article 291(2) TFEU. In other words, the decisive point for determining whether the contested decision is lawful is whether its content reflects the exercise of a genuine implementing power.

The introduction to the Parliament’s application states that the subject-matter of the present action is ‘the annulment of the [contested] decision’. Consequently, the application concludes by claiming that the Court should annul that decision. However, the Parliament has only called into question the lawfulness of certain provisions of the contested decision. In addition, far from arguing that those provisions may not be severed from the contested decision as a whole and that, accordingly, annulment must entail the annulment of the contested decision as a whole, the Parliament did not contest in its reply (11) the Commission’s claim to the effect that, if the action is upheld, it should not entail the annulment of the contested decision in its entirety.

That being the case, I believe that the present proceedings must concern only the specific provisions of the contested decision about which the Parliament has expressly put forward its views.

Since I concur with the parties’ assessment that the annulment of the contested provisions would not affect the contested decision as a whole or its essential elements, (12) I also believe that, for that very reason, the silence of the Parliament on the question of the possible unlawfulness of the provisions about which it has not expressly put forward its views means that it considers that those provisions should not be regarded as unlawful.

Since those provisions are severable from the provisions which are the subject of an explicit plea of unlawfulness, it is clear that the annulment of the remaining provisions cannot be based, as a result of any connection or consequence, on the unlawfulness of those provisions, meaning that any annulment of those provisions must be the subject of a separate plea. Accordingly, in the absence of such a plea, the applicant must be deemed to regard as lawful the provisions of the contested decision in respect of which it has not expressed a view.

B – The contested provisions

The delimitation of the subject-matter of the action in the terms which I have just set out is essential for the interpretation of the true scope of the pleas in law put forward by the Parliament.

Each of the specific challenges raised by the Parliament must be interpreted in a context which is affected from the outset by the fact that the Parliament does not contest the lawfulness of Article 1 of the contested decision (13) and, therefore, the establishment of the EURES network itself. This means that, in short, the Parliament believes that in establishing the EURES network the Commission did not go beyond the exercise of an implementing power within the meaning of Article 291 TFEU.

Admittedly, the Parliament stated at paragraphs 28 to 33 of its application that the contested decision is part of a body of legislation aimed at ‘reforming EURES’, which also includes two proposals for regulations currently passing through the Parliament and relating to financing the activities of the EURES network. (14) However, the Parliament does not actually contend that the contested decision is unlawful in so far as it establishes the EURES network, on the basis that such a decision could only have been contained in one of those legislative proposals, but rather only in so far as [the Commission] intervenes in its structure, functions and organisation more than an authority vested solely with implementing powers is entitled to do.

In any event, it seems to me that, ultimately, the fact that the action is not expressly directed against Article 1 of the contested decision is decisive. By raising selective challenges, the Parliament makes clear that its action complains about only certain aspects of the EURES network, relating to its objectives, its composition and its functions, but does not call into question the (implementing) power of the Commission to establish that network. (15)

To my mind, that approach of the Parliament is fully justified. The so-called EURES network is a system established to organise the ‘clearance of vacancies and applications for employment’, according to the heading of Chapter II of Regulation No 492/2011 which lays down a number of obligations for the Commission and the Member States; compliance with those obligations is the aim which, in accordance with Article 1 of the contested decision, justifies the establishment of that network.

In accordance with Chapter II of Regulation No 492/2011, the Member States and the Commission are required to cooperate in the instigation of studies of employment or unemployment (Article 11), to exchange information on problems arising in connection with the freedom of movement and employment of workers (Article 12), to establish machinery for clearance of vacancies and applications for employment (Articles 13 to 16) and to analyse jointly the results of Union arrangements regarding vacancies and applications (Article 17), while Article 18 establishes a European Coordination Office within the Commission which is to be entrusted with all the technical duties assigned to the Commission in this field.

That set of obligations necessarily translates into a flow of information between the specialist employment services of the Member States, on the one hand, and the Commission, on the other, which must be organised minimally so that it may serve effectively to achieve the objective pursued by Chapter II of Regulation No 492/2011, in other words, the clearance of vacancies and applications throughout the Union; in short, better attainment of freedom of movement and employment of workers.

That being so, I believe that the creation of a ‘European network of employment services’, reflecting the duty of cooperation imposed by Regulation No 492/2011 on the Commission and the Member States, constitutes the exercise of a typical implementing power within the meaning of Article 291(2) TFEU. It must be understood that, practically, this is the necessary consequence of the fact that it is the legislature itself which imposed on the Member States and the Commission the duty to cooperate in order to clear vacancies and applications for employment, while the contested decision is confined in principle to organising the information and communication mechanisms which will enable the fulfilment of that duty.

The question to be answered is not, therefore, whether the EURES network is of itself the result of the exercise of a power which cannot be described as an implementing power but rather whether the specific provisions governing that network, which the Parliament has challenged, comply with the limits laid down in Article 291 TFEU.

While in Commission v Parliament and Council it was the Commission which disputed whether the legislative power conferred by the legislature on the Commission for the purpose of adopting an implementing regulation (16) should instead have been conferred by means of delegation under Article 290 TFEU, in the present case it is the Parliament which raises the question of whether, since an implementing power has been conferred on the Commission, the latter has acted ultra vires; in other words, whether the Commission has gone beyond the limits set in Article 291 TFEU.

In those circumstances, the usefulness of the Court’s ruling on that occasion is somewhat limited as regards the present case, since at that time it was primarily important to determine the situations in which it is appropriate to confer on the Commission a delegated power and those in which it is appropriate to confer an implementing power. That question was resolved by the Grand Chamber to the effect that ‘the EU legislature has discretion when it decides to confer a delegated power on the Commission pursuant to Article 290(1) TFEU and an implementing power pursuant to Article 291(2) TFEU’, meaning that ‘judicial review is limited to manifest errors of assessment as to whether the EU legislature could reasonably have taken the view, first, that, in order to be implemented, the legal framework which it laid down regarding the system of fees … needs only the addition of further detail, without its non-essential elements having to be amended or supplemented and, secondly, that the provisions of [the] Regulation … relating to that system require uniform conditions for implementation’. (17)

With the exception of the foregoing, the Court did not specifically rule on that occasion on the actual limits of the implementing power laid down in Article 291 TFEU, which is what is actually important for the present purposes.

None the less, there is a point in the Court’s judgment which is worth emphasising. The Court held that an implementing act is intended ‘to provide further detail in relation to the content of a legislative act, in order to ensure that it is implemented under uniform conditions in all Member States’ (paragraph 39). Subsequently, after examining the facts of the case in those proceedings, the Grand Chamber found that ‘it follows … that the EU legislature could reasonably take the view that Article 80(1) of Regulation No 528/2012 confers on the Commission the power, not to supplement certain non-essential elements of that legislative act, but to provide further detail in relation to the normative content of that act, in accordance with Article 291(2) TFEU’ (paragraph 52). (18)

Accordingly, it is necessary to ‘provide further detail in relation to the content of a legislative act’, in terms which may be contrasted with those used in Article 290(1) TFEU with reference to the action of supplementing the non‑essential elements of that act. To my mind, that is a most revealing statement by the Grand Chamber, in that it recognises something which is, moreover, very difficult to deny; namely that there is a normative element — in the substantive sense of the term — in any formal implementing activity. The question then is where the boundary between the two situations lies.

At this juncture, it is necessary to examine each of the specific challenges raised by the Parliament, since the statements of principle which can be made in the abstract regarding the content and scope of the implementing power only acquire true meaning when they are applied in concreto to a specific case.

In accordance with this provision, ‘[f]or the benefit of jobseekers, workers and employers, EURES shall promote, in cooperation as appropriate with other European services or networks: … (b) the clearance and placement at the transnational, interregional and cross-border level through the exchange of vacancies and applications for employment, and participation in targeted mobility activities at EU level; … (d) the development of measures to encourage and facilitate mobility of young workers’.

a) Arguments of the parties

The Parliament contests Article 2(b) and (d) in so far as those paragraphs afford priority treatment to young workers which, in its opinion, is not provided for in the basic act; nor does the basic act authorise the Commission to organise the operation of the mechanism for vacancy clearance. In addition, the Parliament states that the concept of ‘targeted mobility activities’ appeared for the first time at legislative level in the Proposal for a PSCI Regulation, Article 20 of which confirms that such activities supplement Regulation No 492/2011 within the meaning of Article 290 TFEU.

The Commission replies, first, that Article 2(d) of the contested decision does not extend the obligations already laid down in Articles 13 to 16 of Regulation No 492/2011 or supplement the legislative framework of the regulation but simply ensures coordination of the policies which the Member States maintain at national level, drawing attention to the role which EURES can play in supporting the economic opportunities of young people in so far as the Commission and the Member States carry out operations in the context of the EURES network which are targeted at that group.

b) Analysis

It seems quite clear to me that the role of promoting ‘clearance and placement at the transnational, interregional and cross-border level through the exchange of vacancies and applications for employment’ accords fully with the decision of the legislature to set up a system for notifying and clearing vacancies and applications for employment within the Union. Moreover, that provision in Article 2(b) of the contested decision amounts to correct fulfilment of all the obligations imposed on the Commission in Chapter II of Regulation No 492/2011.

I understand that the Parliament does not dispute the foregoing and that its challenge relates rather to the reference in the provision to ‘participation in targeted mobility activities at EU level’. That reference is repeated in Article 4(3)(a)(5) of the contested decision and, in the opinion of the Parliament, entails the possibility that the Commission may make a policy choice by directing the activities of the network so that they benefit certain categories of workers. Furthermore, that is a choice which Article 2(d) of the contested decision has already made for the benefit of young workers.

In my view, the Parliament rightly contends that it is not for the Commission, when exercising an implementing power of the kind conferred on it by Article 38 of Regulation No 492/2011, to direct the activities of the EURES network so that they benefit specific categories of workers. That is simply because Regulation No 492/2011 did not identify any particular category, given that preference for a particular group of workers constitutes a policy choice which can be made only when exercising legislative power (19) or, as the case may be, where the legislature has provided for the appropriate delegation in that regard.

However, in providing that EURES is to promote ‘participation in targeted mobility activities at EU level’, Article 2(b) of the contested decision is not actually authorising the EURES network to establish or define such activities but rather only to promote participation in those which may be established. The provision refers to targeted mobility activities and, therefore, in fact takes as the starting point the existence of activities in respect of which it provides only that EURES is to promote participation in those activities, where they exist.

As concerns, in particular, the ‘development of measures to encourage and facilitate mobility of young workers’ (Article 2(d) of the contested decision), it should be borne in mind that that activity is presented in the provision as the subject of a duty of promotion. Article 2(d) provides that ‘EURES shall promote … the development of measures to encourage and facilitate mobility of young workers’. It is, therefore, concerned with a duty of promotion of measures of promotion. To my mind, for the reasons set out in relation to Article 2(b), the contested decision is not the appropriate normative source for a provision that the EURES network should be directed in such a way that it benefits a specific category of worker, or, therefore, so that it benefits young workers.

However, since the Member States develop at national level specific measures to encourage mobility of young workers, there is nothing to prevent those activities from being coordinated by the EURES network; indeed, the situation is quite the opposite. In that connection, providing that the network is to promote ‘the development of measures to encourage and facilitate mobility of young workers’ is tantamount to providing that the network must promote those national policies. That is subject to the qualification, once again, that it is not the responsibility of EURES to establish or define those policies but rather simply to promote their development in so far as they already exist. In short, it is an activity that is so devoid of genuine policy or legislative substance that under no circumstances can it be an instrument for the making of a policy choice.

On that basis, I believe that the challenge raised by the Parliament should not succeed.

In accordance with Article 3(c), ‘EURES shall comprise the following categories … (c) the EURES Partners, in accordance with Article 15(1) of Regulation (EU) No 492/2011). EURES Partners are designated by the respective EURES Member and may include public or private service providers active in the relevant field of placement and employment, and trades union and employer organisations. In order to qualify, a EURES Partner must undertake to fulfil the roles and responsibilities laid down in Article 7’.

a) Arguments of the parties

The Parliament challenges this provision in so far as it opens the EURES network to private entities, whereas the basic act provides that it is only concerned with public-sector operators. Again, the Proposal for a PSCI Regulation confirms that the decision concerned is not an implementing decision within the meaning of Article 291 TFEU, but rather a policy choice. This follows from the wording of Article 21 of the Proposal for a PSCI Regulation, which provided expressly for EURES to be open to private bodies.

The Commission, for its part, contends that, in accordance with Article 11(2) of Regulation No 492/2011, it is for the Member States alone to designate the specialist employment services which are responsible at national level for cooperating to achieve the objectives laid down in Chapter II of Regulation No 492/2011. The reference to private service providers adds nothing to the framework already established by the regulation, since it merely updates the classification of EURES service providers in accordance with the situation prevailing at national level, in particular following the judgment of the Court in Job Centre. (20) The contested decision does not open up the EURES network to the private sector other than to the extent that the Member States already do so, in order to maintain the operability of the network.

In its reply, the Parliament maintains in that regard that it is apparent from the documents accompanying the Proposal for a PSCI Regulation that the Commission considered the possible options in the light of the judgment in Job Centre. That choice is reflected in recital 7 and Article 3 of the contested decision, and the Parliament concludes that where the ‘updating’ of a legislative act involves the amendment of that act as a result of a judgment, this may be performed only by the legislature itself.

The Commission counters in its rejoinder that although Regulation No 492/2011 does not refer to the private sector, nor does it specify that the service providers concerned must be public entities.

b) Analysis

Article 3 of the contested decision complies in all respects with Regulation No 492/2011, apart from where it provides that the EURES partners ‘may include … private service providers’. Regulation No 492/2011 refers at all times to public services. Admittedly, as the Commission claims, the regulation does not expressly provide that it concerns only public services. Even though it may be inferred from this that the regulation also allows the inclusion of private services, giving effect to that possibility entails a policy choice which does not fall within the scope of a purely implementing decision, which is what the contested decision is intended to be.

However, the fact, as recital 7 in the preamble to the contested decision states, that monopolies in the sphere of employment service providers have been abolished suggests that, in fact, the silence of Regulation No 492/2011 on the subject of private services cannot be interpreted as precluding such services but, on the contrary, as compelling the view that they are included.

As the Parliament contends, the abolition of monopolies does not necessarily mean that the legislature cannot choose to entrust the machinery for vacancy clearance to be dealt with by means of direct cooperation between central and regional employment services, as stated in recital 8 in the preamble to Regulation No 492/2011. The fact that the employment services may no longer be solely public in nature does not mean that the Member States cannot organise EURES as an essentially public cooperation network.

None the less, the possible existence of private employment services means that the Member States may designate them as ‘specialist services’ for the purposes of the duties referred to in Chapter II of Regulation No 492/2011. Once again, the choice in that regard falls to the Member States, completely independently of the provisions of Article 3(c) of the contested decision which, in that connection, is not the legislative basis on which the Member States take the decision to designate a private service as a specialist service but is simply the expression of the fact that EURES will not exclude a private service if a Member State decides to include it in the network.

Once again, the provision concerned can be interpreted as meaning that the contested decision does not enshrine a decision with policy content adopted by the Commission but rather that it is the means of ensuring the effectiveness of a policy decision attributable to the Member States.

Accordingly, I believe that the challenge cannot succeed.

Article 4(3)(b) of the contested decision entrusts the European Coordination Office with ‘the analysis of geographic and occupational mobility, in the light of the achievement of a balance between supply and demand, and the development of a general approach to mobility in accordance with the European Employment Strategy’.

a) Arguments of the parties

The Parliament contests this provision on the grounds that the drawing-up of ‘general guidelines on mobility’ goes significantly beyond the discretion available to the Commission under Article 291 TFEU for the purpose of implementing Regulation No 492/2011. The Parliament takes the view that it is clear from Articles 18 and 19 of that regulation that the European Coordination Office has a purely practical role, from which it follows that is not necessary to adopt general guidelines which, by their very nature, entail policy choices.

The Commission counters that challenge by arguing that the activities referred to in the contested provision fall within the scope of the duties entrusted to the European Coordination Office under Article 18 of Regulation No 492/2011, which assigns to the Office the ‘general task’ of promoting vacancy clearance at Union level. One aspect of that ‘general task’ is the performance of all the technical duties which are the responsibility of the Commission. Based on that ‘general task’, the legislature set out in Article 19 of Regulation No 492/2011 a non-exhaustive list of tasks that are the responsibility of the European Coordination Office. The activities listed in the contested provision contribute to the general task referred to in the first paragraph of Article 18 and to the coordination of practical measures referred to in Article 19(1)(a) of Regulation No 492/2011. Moreover, the analysis of geographic and occupational mobility is a necessary element for preparing and supporting the work for which the Commission is responsible under Articles 12 to 17 of that regulation.

b) Analysis

The Parliament’s challenge does not cover the whole of Article 4(3)(b) but only the part of the provision which refers to ‘the development of a general approach to mobility in accordance with the European Employment Strategy’. Admittedly, at paragraph 27 of its reply, the Parliament argues that the validity of the whole of Article 4(3) may be called into question on formal grounds, since, by laying down a set of abstract rules, it in fact supplements the subject‑matter of Articles 18 and 19 of Regulation No 492/2011, thereby exceeding the limits of the implementing power under Article 291 TFEU.

However, the Parliament goes on to state that it does not dispute, as far as their content is concerned, the tasks entrusted to the Commission in Article 4(3)(a)(1) to (4), accepting that these are technical and practical tasks, and therefore it prefers to ‘focus its action’ (21) on Article 4(3)(b), specifically on the part which refers to the ‘development of a general approach to mobility in accordance with the European Employment Strategy’.

I agree with the Commission’s assessment that this approach may appear rather confused, (22) but I believe that, ultimately, what matters is that the Parliament, in accepting the technical character of the tasks referred to in Article 4(3)(a)(1) to (4), acknowledges that the abstractness which may vitiate those tasks is not the form of abstractness that can be given concrete expression only by means of decisions involving a policy choice. What I mean is that the technical character of the tasks inherently rules out the possibility of any unsuitable margin of discretion in the exercise of an implementing power. In that sense, the tasks cannot be said to be ‘abstract’.

It is also significant that the application makes no mention of the task entrusted to the Office under Article 4(3)(c), and it is therefore my view that any consideration of whether it may be invalid would be inappropriate.

Lastly, the task referred to in Article 4(3)(a)(5) has not been specifically challenged in this part of the action either, although that provision was referred to indirectly in the grounds for the challenge to Article 2(b) and (d), and I therefore refer to the considerations set out in the examination of the validity of that article.

Having thus defined the subject-matter of the challenge, I agree with the Parliament that the task of developing a general approach to mobility involves a ‘decision-making’ element which is not consistent with the implementing nature of the power conferred on the Commission by Article 38 of Regulation No 492/2011.

Article 18 of Regulation No 492/2011 provides that the European Coordination Office ‘shall have the general task of promoting vacancy clearance’, being ‘responsible in particular for all the technical duties in this field which, under the provisions of this Regulation, are assigned to the Commission’. For its part, Article 19 of the regulation assigns to the Office ‘in particular’ the task of ‘(a) coordinating the practical measures necessary for vacancy clearance … and for analysing the resulting movements of workers; (b) contributing to such objectives by implementing … joint methods of action at administrative and technical levels; (c) carrying out, where a special need arises, and in agreement with the specialist services, the bringing together of vacancies and applications for employment for clearance by those specialist services’.

In my opinion, all those tasks are essentially technical and practical and in the performance of them there is no room for the exercise of any policy discretion and, therefore, for a choice between different options.

Conversely, ‘the development of a general approach to mobility in accordance with the European Employment Strategy’ amounts to a qualitative leap in terms of the tasks assigned to the Office. It implies, specifically, that the Office is to participate actively in the drawing-up of a policy on mobility. Of course, the broad outline of that policy will be defined by the European Employment Strategy, but only the broad outline, as is appropriate for a guideline of that nature, meaning that the discretion available to the Office in that sphere is by no means negligible; consequently, in that connection, the Commission went beyond its remit to ‘provide further detail in relation to the normative content’ of the legislative act in accordance with paragraphs 39 and 52 of the judgment in Commission v Parliament and Council (EU:C:2014:170).

As a result of the performance of the technical tasks assigned to it by Regulation No 492/2011 and, consequently, the contested decision as a whole, the European Coordination Office must be in a position to provide policy makers with the information they need in order to be able to devise political strategies on the mobility of workers in the Union, but it cannot become involved over and above that role of instrumental support and become an architect of or active participant in the creation of those policies.

Accordingly, I believe that the action should succeed on this point.

Article 7 of the contested decision defines the services which the EURES network is required to provide. Paragraph 2 provides that those services ’shall be further detailed in the EURES Service Catalogue that shall be part of the EURES Charter as provided for in Article 10’ of the contested decision. For its part, Article 7(3) refers to two types of services: first, universal services and, second, ‘[c]omplementary services[, which] are not obligatory in the sense of Chapter II of Regulation … No 492/2011, but fulfil important labour market needs’.

a) Arguments of the parties

The Parliament maintains, first, that, in referring to the EURES service catalogue for the detailed description of the services, paragraph 2 does not implement Regulation No 492/2011. Second, the applicant states that the provision itself acknowledges that complementary services are not covered by Regulation No 492/2011, which refers only to universal services. In any event, even if Regulation No 492/2011 were to cover complementary services, it should be noted, according to the Parliament, that the regulation does not differentiate between different services depending on whether or not they are obligatory, while Article 6(5) of the contested decision confirms that non‑obligatory complementary services still produce legal effects. (23)

As regards the concept of ‘complementary services’, the Commission asserts that it comes within the scope of implementation of the cooperation, within a network, between the Commission and the employment services of the Member States, provided for in Articles 11 to 13 of Regulation No 492/2011. In that connection, the Commission observes that, in accordance with Article 15(1) of the regulation, the list of services offered at national level is very broad and can vary according to need, from which it follows that there is nothing to prevent those services, to the extent that they are available at national level, from also being the subject of cooperation which allows joint action to be taken in accordance with Article 11(1) of the regulation. In addition, the reference to those services serves to ensure coordinated, uniform activation of the objectives of cooperation between the Member States in order to satisfy the needs of employers and employees and maintain the operability of EURES as defined in Regulation No 492/2011.

The Parliament replies to the Commission by stressing that the second subparagraph of Article 15(2)(b) of Regulation No 492/2011 begins with the words ‘if necessary’. The Commission’s argument has no bearing on services which are not provided by authorities ‘territorially responsible for the border regions of two or more Member States’. However, the contested provision is not confined to the case referred to in that provision but, on the contrary, Article 7 is drafted in abstract terms. Furthermore, the contested decision provides that every EURES partner, without exception, must indicate ‘which services of the EURES Service Catalogue it offers’ (Article 6(3) and Article 10(2)(a)) and must ensure that ‘requests for that service [a complementary service included in the EURES Service Catalogue] are referred to other EURES Partners that do offer that service’ (Article 6(5)). Accordingly, it is not concerned with the need to ensure the implementation of the EURES network as a whole.

In response to the foregoing, the Commission reiterates in its rejoinder the view that the concept of ‘complementary services’ adds nothing to the framework of Regulation No 492/2011, within which it falls, observing that the Parliament bases its challenge on the fact that the provision is drafted in abstract terms but does not explain why that fact alone should mean that the provision is not capable of ensuring the uniform implementing conditions to which Article 291 TFEU refers.

b) Analysis

The Parliament complains, on the one hand, that the contested provision did not specify in detail all the services covered by the EURES network, referring for those purposes to the future EURES Charter. The Parliament also complains, on the other hand, that the contested decision refers to a type of services — complementary services — which do not feature in Regulation No 492/2011.

As far as the first complaint is concerned, I believe that it should be addressed in the context of the examination of Article 10 of the contested decision, which concerns the EURES Charter.

As regards the reference to complementary services, I believe that it is decisive that, as the contested provision states, those services ‘are not obligatory in the sense of Chapter II of Regulation … No 492/2011’. Therefore, the contested decision does not require the establishment of complementary services. For its part, Regulation No 492/2011 refers to that type of services in Article 15(1)(b), treating them as a possibility where it is necessary for the services territorially responsible for border regions also to set up cooperation and service structures to provide certain information and enable the coordination of measures relating to mobility. Aside from that possibility — subject to the condition that it is necessary — Regulation No 492/2011 does not, therefore, impose on the Member States any duty in connection with the establishment of complementary services.

However, in so far as the Member States decide to provide themselves with such services, it does not appear to me to be possible to challenge the fact that the contested decision, as part of its task of adopting ‘measures pursuant to [Regulation No 492/2011] for its implementation’, as provided for in Article 38 of the regulation, provides for the inclusion of those services in the catalogue of services which are pooled throughout the Union via the EURES network.

In order to fulfil properly the objective of clearing vacancies and applications for employment pursued by the provisions of Chapter II of Regulation No 492/2011, it is essential that the network via which such vacancies and applications are made public is provided with all the information at the disposal of the different national services. If those services, in addition to the universal services, also provide complementary services as a result of a decision of the Member State concerned, it makes no sense that, since these are services not required by Regulation No 492/2011, they should not be accommodated in the structure of a network which otherwise would suffer from a lack of information that would ultimately be detrimental to the attainment of the main objective of Regulation No 492/2011.

Accordingly, since the contested decision does not require the setting-up of complementary services and instead refers only to the inclusion in the network of those already in existence, I do not believe that the decision is ultra vires as the Parliament contends.

Admittedly, Article 6(5) of the contested decision provides that a EURES Partner that does not provide a complementary service must ensure that requests for that service are referred to other EURES Partners that do offer that service. The Parliament submits that this confers legal effect on complementary services, even though the contested decision classifies them as non-obligatory. In that respect, it should be observed, on the one hand, that Article 6(5) confirms that the contested decision does not require the setting-up of complementary services, as it merely provides that a partner which does not provide such services must refer requests for such services to other partners which do offer those services. On the other hand, the legal effect to which the Parliament refers comes down specifically to that obligation to refer requests which cannot be dealt with by a partner that does not offer complementary services. To my mind, this is a minimum legal effect which, in any event, may be based on the general duty to refer information which is apparent from the whole of Chapter II of Regulation No 492/2011.

In my opinion, therefore, the challenge cannot succeed on this point.

Article 8 of the contested decision creates the EURES Management Board, composed of one representative of each Member State. That Board establishes its working methods, adopts its rules of procedure and meets twice a year, delivering its opinions by simple majority. It has a chairperson and a secretary. Inter alia, Article 8(7) provides that ‘[t]he Commission shall consult the EURES Management Board on questions concerning the strategic planning, development, implementation, monitoring and evaluation of the services and activities referred to in this Decision, including: (a) the EURES Charter, in accordance with Article 10; (b) strategies, operational objectives and work programmes for the EURES network; …’.

a) Arguments of the parties

94.The Parliament maintains that the provision in question establishes a ‘quasi-comitology’ structure, in that Article 38 of Regulation No 492/2011 merely provides that the Commission ’shall act in close cooperation with the central public authorities of the Member States’, without authorising it to create a new procedural, institutionalised framework for the purpose of implementing the measures concerned. In that connection, the Parliament questions whether, in general, an implementing act is capable of creating by itself an institutional framework which places conditions on the procedure to be followed for the adoption of other acts, including where these are purely implementing acts.

95.Moreover, the Parliament claims that some of the matters about which the Management Board must be consulted relate to elements which, in its opinion, are neither specific nor merely technical but which supplement the legislative act. Even supposing, in purely hypothetical terms, that the EURES Charter includes measures which require implementing acts which the Commission could adopt under Article 38 of Regulation No 492/2011, the Parliament claims in its reply that, in providing that the EURES Management Board must be consulted, Article 10(1) of the contested decision adds a new procedural condition for the adoption of those measures which is not derived from Article 38. Moreover, there is a potential overlap between the competences of the Advisory Committee and the Technical Committee referred to in Articles 21 and 29 of Regulation No 492/2011, on the one hand, and those of the EURES Management Board, on the other. The Parliament contends that the legislature has already established the bodies which are to assist the Commission in implementing the policy relating to the regulation, without the Commission being authorised to supplement the institutional structure laid down by that regulation.

96.The Commission submits that the EURES Management Board gives guidance to the Commission in its role as the ‘European Coordination Office’, contributing to the performance of the executive tasks assigned to the Commission for the purpose of ensuring the uniform implementation of the provisions of Regulation No 492/2011. It is not a committee structure insofar as its aim is not to ensure the monitoring by Member States of the Commission’s implementing powers. It is, as far as the Commission’s implementing powers are concerned, a functional and instrumental body of which the Commission has decided to avail itself within the remit of its powers in order to ensure the development of the measures necessary for implementation of the objectives laid down in Regulation No 492/2011.

97.In its rejoinder, the Commission adds that the EURES Management Board is responsible for assisting it in generally promoting the development of EURES, while the Technical Committee referred to in Article 29 of Regulation No 492/2011 is responsible for technical matters in relation to freedom of movement and the employment of workers in general.

b) Analysis

98.As I explained in points 33 to 36, the EURES network is the embodiment of the system for the flow of information which Regulation No 492/2011 seeks to establish between the specialist employment services of the Member States and between those services and the Commission, in order to facilitate the clearance of vacancies and applications for employment for the benefit of the free movement of workers within the Union.

99.To my mind, that institutionalisation must be based on the bodies and institutions already created by Regulation No 492/2011 and, accordingly, must be embodied in the establishment of a structure for the bringing together of and communication between all those bodies and institutions. The word ‘network’ expresses very accurately that relationship component of the EURES system, since it enables in practice the ‘[c]ooperation between the Member States and with the Commission’ and the implementation of the ‘[m]achinery for vacancy clearance’ which are the subject-matter of the sections comprising Chapter II of Regulation No 492/2011.

100.Regulation No 492/2011 stipulates who the actors in the machinery for vacancy clearance are to be and which bodies are to be used for the cooperation between the Member States themselves and between the Member States and the Commission, namely, the national specialist services and the European Coordination Office.

101.Having clarified that point, the implementing power conferred on the Commission by Article 38 of Regulation No 492/2011 cannot encompass the power to establish new bodies in addition to those already indicated or established by the legislature, since that would entail going beyond the boundaries of the exercise of an implementing power and, in particular, the duty to ‘to provide further detail in relation to the normative content’ of a legislative act, in accordance with paragraph 52 of the judgment in Commission v Parliament and Council (EU:C:2014:170). In other words, Regulation No 492/2011 decided which bodies and institutions are to participate in the system of notification and clearance of vacancies and applications for employment within the Union, while it is for the Commission, in the exercise of its implementing powers, to coordinate and organise the bringing together of those bodies and institutions, thereby leading to the creation of a network in which all of them are effectively interconnected.

102.In the context of Regulation No 492/2011, and in accordance with Article 38 thereof, the measures implementing its provisions, which the Commission must adopt, are to concern, for example, the provision of further detail about the subject-matter of the duties and responsibilities of the bodies established by the regulation, as is the case of the European Coordination Office established by Article 18 of Regulation No 492/2011, the roles of which are defined in Article 19 of the regulation and are specified in more detail in Article 4 of the contested decision. Those implementing measures may also be concerned with the delimitation of the duties and responsibilities of the national specialist services which, in accordance with the regulation, are to ensure cooperation between the Member States themselves and between the Member States and the Commission, as Article 5 of the contested decision does. Lastly, those measures may also provide for the creation of a catalogue of the services offered by the network, as is the case of Article 7 of the contested decision.

103.However, implementing powers are not a sufficient basis for the establishment of a new body which is given responsibility for performing the same type of substantive duties as those which the regulation assigns to the bodies which it recognises as the actors in the clearance of vacancies and applications for employment. In short, the Commission may not create a functional equivalent of the European Coordination Office or a service to which are assigned powers which come within the remit of the national employment services.

104.In my opinion, the EURES Management Board does not reflect that type of ‘institutionalisation’. It is, rather, a body whose role is confined to advising the Commission on matters relating exclusively to the operation of the network itself as a system for bringing together and enabling communication between the participants in the system.

105.In accordance with Article 8(1) of the contested decision, its task is to ‘assist the Commission, its European Coordination Office and the National Coordination Offices in promoting and overseeing the development of EURES’ and, in accordance with Article 8(7), to advise the Commission ‘on questions concerning the strategic planning, development, implementation, monitoring and evaluation of the services and activities referred to in this Decision’, which may include strategies, operational objectives and work programmes for the EURES network and the reports required by Article 17 of Regulation No 492/2011.

106.The role of ‘promoting and overseeing the development of EURES’ refers strictly to the operation of the network as such without affecting its actors or intervening in the operation of its communication systems or in the machinery for vacancy clearance. In short, the role is concerned with ensuring that the system of which the network consists effectively contributes to a better relationship between the actors in the system.

107.It seems to me that, for its part, the provision of advice in relation to the strategic planning, development, implementation, monitoring and evaluation of the services and activities of EURES comes within the same sphere as promoting and overseeing the development of the network. In that connection, I believe that this does not extend beyond the exercise of an implementing power.

108.In particular, contrary to the contention of the Parliament, I do not believe that the duties of the EURES Management Board may overlap with those of the Technical Committee or the Advisory Committee. In accordance with Article 21 of Regulation No 492/2011, the Advisory Committee assists the Commission ‘in the examination of any questions arising from the application of the [FEU Treaty] and measures taken in pursuance thereof, in matters concerning the freedom of movement of workers and their employment’. For its part, under Article 29 of the regulation, the Technical Committee is to assist the Commission ‘in the preparation, promotion and follow-up of all technical work and measures for giving effect to this Regulation and any supplementary measures’. To my mind, in both cases, the roles of the two Committees are performed in a broader (Advisory Committee) or more specific (Technical Committee) substantive sphere than that of the EURES Management Board (limited to the operation of the network as such).

109.For the reasons set out, it is my view that the action cannot succeed in relation to Article 8 of the contested decision.

8. Article 10 of the contested decision

Article 10 of the contested decision provides as follows:

1.‘1. The Commission shall adopt the EURES Charter in accordance with the procedures set out in Articles 12(2), 13(2) and 19(1) and Article 20 of Regulation (EU) No 492/2011, after consultation of the EURES Management Board established by Article 8 of this Decision.

2.On the basis of the principle that all vacancies and applications for employment that are made public by any of the EURES Members must be accessible throughout the Union, the EURES Charter shall, in particular, establish:

(a)the EURES Service Catalogue, describing the universal and complementary services to be rendered by the EURES Members and Partners, including job‑matching services, such as personalised counselling and advice to customers, whether they be jobseekers, workers or employers;

…

(d)the operational objectives of the EURES network, the quality standards to be applied as well as the obligations of the EURES Members and Partners, which include:

(ii)the kind of information, such as labour market information, information on living and working conditions, information on job offers and requests, information on traineeships and apprenticeships, measures to encourage youth mobility, acquisition of skills, and obstacles to mobility, which they have to supply to their customers and to the rest of the network, in cooperation with other relevant European services or networks;

(iii)task descriptions and criteria for appointment of national coordinators, EURES advisers and other key personnel at national level;

(iv)the training and qualifications required for EURES personnel and conditions and procedures for the organisation of visits and assignments for officials and specialised personnel;

…’

a) Arguments of the parties

111.The Parliament refers to the paragraphs of Article 10 transcribed above to challenge the article in so far as it provides for the adoption by the Commission of the so-called ‘EURES Charter’ in accordance with a procedure established in Article 10, in other words, established by the Commission itself. Far from confining itself to implementation, the Commission, in the applicant’s opinion, has ‘granted itself the power’ to adopt a new implementing act. The Parliament submits that, since it stands between Regulation No 492/2011 and the future EURES Charter, Article 10 loses all its implementing character within the meaning of Article 291 TFEU. As regards the subject-matter of Article 10, the Parliament complains that it supplements the subject‑matter of the basic act in terms not appropriate for an implementing act.

112.The Commission maintains that the type of information included in the Charter is only that defined in Article 12(1) of Regulation No 492/2011. The tasks and criteria for appointment of national staff are already laid down in each Member State. As far as the training of EURES staff is concerned, the Charter is confined to the matters laid down in Article 20 of the regulation. In accordance with Article 10 of the contested decision, the Charter is limited, as far as the Commission is concerned, to setting out the technical standards necessary for the implementation of Article 12(3) of Regulation No 492/2011. Since it is not a binding act, the Charter does not include the ‘separate’ obligation to provide information and instead refers only to the obligations already laid down in Article 12 of the regulation, thereby ensuring uniform implementation.

b) Analysis

113.Admittedly, Article 10 of the contested decision is a singular provision. It does not establish the so-called ‘EURES Charter’ but simply provides that the Commission must adopt that Charter and indicates what its subject-matter is to be.

114.To my mind, in doing so, the contested decision has not adopted a measure implementing Regulation No 492/2011 but has merely given notice of such a measure. Only when that notice becomes reality will it be possible to determine whether the Commission has complied with the implementing power conferred on it by Article 38 of Regulation No 492/2011.

115.On that basis, it could be argued that the action is inadmissible on this point on the grounds that it is directed against a provision which, in fact, has not produced any legal effects, since, first, it does not in itself establish the EURES Charter and, second, it requires the Commission to do what the Commission is already required to do by Article 38 of Regulation No 492/2011, that is, to adopt a necessary measure for implementing that regulation. This is, of course, provided that the EURES Charter is actually a necessary measure; if it is not, then the Commission will have imposed on itself an obligation which it may lawfully disregard.

116.Therefore, Article 10 does not produce legal effects in any of those cases, since the obligation it lays down is either redundant or, because it is imposed by the Commission on itself, non-existent.

117.Accordingly, in line with the solution adopted in the judgment in Spain v Commission, (25) the present case is concerned with a simple declaration of intentions which are intended to be given concrete expression in future legislative acts; those acts are the only ones which, where appropriate, may be challenged before the Court as a result of their capacity to produce legal effects.

118.Consequently, on this point, the action must be ruled inadmissible.

119.As a result of its connection with this provision, I believe that the challenge directed against Article 7(2) of the contested decision, in so far as it requires the Commission to provide the descriptions in the EURES Service Catalogue, should also be ruled inadmissible. This is because that approach simply gives notice of the adoption of an implementing measure by the Commission; in other words, it does not create an obligation which differs from that already imposed by Article 38 of Regulation No 492/2011 and, therefore, these are provisions which of themselves lack binding force.

120.The foregoing does not apply to Article 7(3) which, as has been seen in points 87 to 91, has the effect of enabling the inclusion in the network of complementary services existing in the Member States.

IV – The effects of annulment

121.For the reasons set out in points 25 to 28, and since I agree with the parties’ view that the provisions concerned are perfectly severable from the contested decision as a whole, I believe that the annulment which I propose to the Court may be confined to the two provisions which I have indicated are invalid.

122.In view of the subject-matter of the provision whose annulment I propose, I consider that it is not necessary to maintain its effects pending the entry into force of any provisions which may replace it.

V – Costs

123.Pursuant to Article 138(2) of the Rules of Procedure, I propose that the Court order the parties to bear their own costs.

VI – Conclusion

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

(1)declare that the challenges relating to Article 7(2) and Article 10 of the Commission Implementing Decision 2012/733/EU of 26 November 2012 implementing Regulation (EU) No 492/2011 of the European Parliament and of the Council as regards the clearance of vacancies and applications for employment and the re-establishment of EURES are inadmissible;

(2)annul Article 4(3)(b) of the Implementing Decision 2012/733, in so far as it entrusts the European Coordination Office with ‘the development of a general approach to mobility in accordance with the European Employment Strategy’;

(3)dismiss the action as to the remainder;

(4)

order each party to bear its own costs.

—

(1) Original language: Spanish.

(2) Judgment in Commission v Parliament and Council (Case C‑427/12, EU:C:2014:170).

(3) OJ 2012 L 328, p. 21; ‘the contested decision’.

(4) Regulation of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1).

(5) Opinion in Commission v Parliament and Council, C‑427/12, EU:C:2013:871.

(6) Regulation of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475), as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992 (OJ 1992 L 245, p. 1).

(7) Commission Decision of 23 December 2002 implementing Council Regulation (EEC) No 1612/68 as regards the clearance of vacancies and applications for employment (OJ 2002 L 5, p. 16).

(8) Judgment in Commission v Parliament and Council (EU:C:2014:170, paragraph 36).

(9) Loc. cit.

(10) A fact highlighted by Advocate General Jääskinen at point 49 of his Opinion in Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe (C‑404/12 P and C‑405/12 P, EU:C:2014:309).

(11) Paragraph 9.

(12) An essential condition for the partial annulment of a Union act, in accordance with settled case‑law. See, for example, judgment in France v Parliament and Council (C‑244/03, EU:C:2005:178, paragraphs 12 to 21).

(13) Article 1 of the contested decision provides that, ‘[i]n order to fulfil the obligations laid down in Chapter II of Regulation (EU) No 492/2011 the Commission shall together with the Member States establish and operate a European network of employment services, designated EURES’.

(14) These are the Proposal for a Regulation of the European Parliament and of the Council on the European Social Fund and repealing Council Regulation (EEC) No 1081/2006 (COM(2011) 607 final/2 — 2011/0268 (COD) of 14 March 2012) and the Proposal for a Regulation of the European Parliament and of the Council on a European Union Programme for Social Change and Innovation (‘Proposal for a PSCI Regulation’) (COM(2011)609 final of 6 October 2011).

(15) More specifically, to maintain it, since the network in question was created by Commission Decision 93/569/EEC of 22 October 1993 on the implementing of Regulation No 1612/68 (OJ 1993 L 274, p. 32) and reformed by Decision 2003/8.

(16) Under Article 80(1) of Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products (OJ 2012 L 167, p. 1), the Commission is to adopt an implementing regulation specifying the fees payable to the European Chemicals Agency, the conditions of payment and the rules defining, inter alia, conditions for reduced fees.

(17) Judgment in Commission v Parliament and Council (EU:C:2014:170, paragraph 40).

(18) Emphasis added.

(19) In that connection see, for example, judgment in Parliament v Council (C‑355/10 EU:C:2012:516, paragraph 65).

(20) C‑55/96, EU:C:1997:603.

(21) Paragraph 29 of the reply.

(22) Paragraphs 20 to 22 of its rejoinder.

(23) Article 6(5) of the contested decision provides that ‘[a] EURES Partner that does not provide a particular complementary service included in the EURES Service Catalogue shall ensure that requests for that service are referred to other EURES Partners that do offer that service’.

(24) Emphasis added.

(25) Case C‑443/97, EU:C:2000:190, paragraphs 27 to 36.