Directive 2005/85/EC states that the European Council, acting by a qualified majority, after consultation of the European Parliament, is to adopt a “minimum common list of third countries” (Article 29(1) and (2)) which are to be regarded by Member States as safe countries of origin and a “common list of European safe third countries” (Article 36(3)). The European Parliament brought an action for annulment in respect of the provisions of the Directive that provide for the Parliament merely to be consulted. It took the view that the Council had effectively reserved to itself a right to legislation and that the provisions at issue should have provided for the common lists to be adopted by the co-decision procedure under which the Parliament acts as co-legislator.
The Court observed that the procedure for the adoption of the common lists introduced by the Directive differed from that which is laid down in the Treaty; that the rules regarding how 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; and that to allow an institution to establish secondary legal bases was tantamount to according that institution a legislative power in excess of that provided by the Treaty. The Court held that the Council exceeded the powers conferred on it by the Treaty by including secondary legal bases in the Directive and annulled the contested provisions.