In order to determine whether a dual legal basis is necessary for Community action, the Court of Justice verifies, in Case C-42/97, Parliament v Council, whether culture is an essential component of the contested decision, in the same way as industry, and cannot be dissociated from industry or whether the ‘centre of gravity’ of the decision is to be found in the industrial aspect of the Community action.

It emerges from the judgment of the Court of Justice of 17 March 1993, in Case C-155/91, Commission v Council, that the fact that some provisions of a directive affect the functioning of the internal market is not sufficient for Article 100a of the EC Treaty (now Article 95) to be selected as a legal basis. Recourse to that provision is not justified where the measure to be adopted has only the incidental effect of harmonising market conditions within the Community.

It emerges from the judgment of the Court of Justice of 13 September 2005, in Case C-176/03, Commission v Council, that, because of both their aim and their substance, Articles 1 to 7 of Council Framework Decision 2003/80/JHA on the protection of the environment through criminal law have as their main purpose the protection of the environment and could have been properly adopted on the basis of Article 175 of the EC Treaty. In those circumstances, the entire Framework Decision, based on Title VI of the EU Treaty, encroaches on the powers which Article 175 of the EC Treaty confers on the Community and, being indivisible, infringes Article 47 of the EU Treaty under which none of the provisions in the EC Treaty may be affected by a provision of the EU Treaty.

It emerges from the judgment of the Court of Justice of 11 June 1991, in Case C-300/89, Commission/Council, with regard to an action for annulment of the Directive on waste from the titanium dioxide industry, that, in the present case, even if the Council’s power is based on two provisions of the Treaty, recourse to the dual legal basis is excluded since one of the enabling provisions at issue requires recourse to the cooperation procedure whereas the other requires the Council to act unanimously after merely consulting the European Parliament.

According to the Court of Justice, in its judgment of 13 November 1990, in Case C-331/88, Fedesa and Others, by virtue of the principle of proportionality, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question, it being understood that, where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.