Case C-217/04, United Kingdom v. Parliament and Council

ENISA correctly established on the basis of Article 95 EC.

Next to Case C-436/03, which I discussed in Tuesday's post, there was another case decided last Tuesday by the Court of Justice concerning the use of Article 95 as legal basis.

In Case C-217/04, the Grand Chamber of the Court held that Regulation (EC) No 460/2004,
which establishes the European Network and Information Security Agency (ENISA), could rightfully be based on Article 95 EC.

This agency, which has its seat in Heraklion (Greece), was set up to “assist the Commission and the Member States, and in consequence cooperate with the business community, in order to help them to meet the requirements of network and information security, thereby ensuring the smooth functioning of the internal market, including those set out in present and future Community legislation" (Article 1(2) of the regulation).

The United Kingdom sought to annul the regulation on the ground that it could not have been adopted under Article 95 EC, arguing that Article 95 EC empowers the Community to harmonise national laws, not to establish agencies and confer tasks upon them.

The United Kingdom argued that none of the provisions of the regulation harmonises national legislation, not even indirectly. On the contrary, the Agency is expressly prohibited from interfering with the competences of national bodies, because it can only provide non-binding advice. Instead, the regulation should have been based on Article 308 EC.

The Court first of all referred to Case C-66/04, in which it held that Article 95 can only be as a legal basis “where it is actually and objectively apparent from the legal act that its purpose is to improve the conditions of the establishment and functioning of the internal market." (para. 44)

The Court in that case also held that "by the expression ‘measures for the approximation’ in Article 95 EC the authors of the Treaty intended to confer on the Community legislature a discretion, depending on the general context and the specific circumstances of the matter to be harmonised, as regards the harmonisation technique most appropriate for achieving the desired result, in particular in fields which are characterised by complex technical features. .” (para. 45)

The Court now held that Article 95 also allows the establishment of a body responsible for contributing to the harmonisation process and facilitating uniform implementation by the Member States.

The objectives and of tasks of such a body must however be closely linked to the subject-matter which the legislation concerned intents to harmonize.

The Court subsequently examined whether ENISA met these requirements, which the Court held it did, and hence was rightfully established under Article 95 EC.

Text of Judgment

Relevant case-law (see also the case law mentioned in
Tuesday's post):

Case C-66/04, United Kingdom v. Parliament and Council