April 22, 2008
The findings –that is to say the “Decisions” which are still called “Orientations”- of the European Council and the Resolutions of the European Parliament must be checked for their legality in the same terms as the other institutions.
The restriction that they can only be appealed against when they are “intended to produce legal effects vis-à-vis third parties” (Art. 263 TFEU) is in effect a “probatio diabolica” which 99% of the time would mean that these decisions are free from any type of questioning, even when they violate the basic principles of EU Law (TEU).
For example, when Art 2 TEU establishes the “values” on which the EU is based, (for example, the rights of minorities), a decision which violated this “value” must be able to be brought before the ECJ.
This would bring the legal system of the EU close to the concept of “appeal on the grounds of inconstitutionality” contained both in Spanish law and in the law of other Member States. We have to give the precepts of the TEU (Lisbon) the consideration of being constitutional, regardless of whether they are called that or not.