Court of Justice of the EU

Court of Justice of the EU

Following the local referendum in 2009, Mayotte became a Department and Overseas Region (DROM) in 2011. To operate the change of status of Mayotte in relation to the EU, a decision (2012/419) was adopted on July 11, 2012 by the EU Council. Thereby, as of January 1st, 2014, Mayotte was removed as an overseas country and territory under the Article 355 (2) TFEU, to become an outermost region under Article 349 TFEU. The Council has amended a number of secondary legislation to apply to Mayotte the Community acquis by providing delays established in these instruments to comply with obligations.

These amendments are contested by the Parliament and the Commission because of the Council’s use of article 349 TFEU as a legal basis, a choice that the two institutions consider as incorrect.

In its decision of December 15, 2015, the Court gives full effect to article 349 TFEU by setting out this provision as a basis for adapting European law as a whole, that is primary law and secondary law; the article 349 TFEU is also likely to justify any type of adaptation measure, wether permanent or temporary.

According to the Court, Article 349 “must be understood as covering both the conditions relating to the application of primary EU law and those relating to the application of the acts of secondary legislation adopted on the basis of that primary law”. The Court recalls that this interpretation is corroborated by the one regarding article 227 (2) of the EC Treaty (now Article 299 (2) EC, which after became Article 349 TFEU), from which it appears that the authorization granted to the Council by this provision to lay down specific measures to meet the needs of overseas territories, applies to the provisions of the Treaty and to secondary legislation.

The Court will then consider that the power of the Council is not limited to a particular category of measures and in fact is allowed to adopt any type of adaptation measure.

According to the Court, the term “measure” covers any type of action that may be taken by the Council. It is important to note that the use of the term ‘in particular’ in article 349 TFEU implies that the authors of the Treaty have not intended to establish an exhaustive list of the types of measures which may be adopted on the basis of that article.

See the Judgment of the Court of 15 December 2015