# C_2004094EN.01002101.xml

| 17.4.2004 | EN | Official Journal of the European Union | C 94/21 |
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17.4.2004

EN

Official Journal of the European Union

C 94/21

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Action brought on 16 February 2004 by the United Kingdom against the European Parliament and the Council of the European Union

(Case C-66/04)

(2004/C 94/44)

An action against the European Parliament and the Council of the European Union was brought before the Court of Justice of the European Communities on 16 February 2004 by the United Kingdom, represented by Rosemary Caudwell, acting as agent; Lord Goldsmith QC, Her Majesty's Attorney-General; Nicholas Paines QC; and Tim Ward, with an address for service in Luxembourg.

The Applicant claims that the Court should:

| 1) | declare that Regulation (EC) No. 2065/2003 of the European Parliament and of the Council of 10 November 2003 on smoke flavourings used or intended for use in or on foods (1) is invalid; |
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1)

declare that Regulation (EC) No. 2065/2003 of the European Parliament and of the Council of 10 November 2003 on smoke flavourings used or intended for use in or on foods (1) is invalid;

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| 2) | order the European Parliament and the Council of the European Union to pay the United Kingdom's costs. |
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2)

order the European Parliament and the Council of the European Union to pay the United Kingdom's costs.

Pleas in law and main arguments:

The contested Regulation was adopted on the basis of Article 95 EC, which empowers the Parliament and the Council to adopt measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.

The United Kingdom does not object to the substantive content of the Regulation, but submits that Article 95 EC does not provide a proper legal basis for its adoption. The Regulation does not harmonise national law, but instead sets up a procedure at Community level for the authorisation of smoke flavourings in foods; it requires that such smoke flavourings may only be placed on the market if authorised by further Regulations to be adopted by the Commission on the basis of an opinion of the European Food Safety Authority (‘the Authority’) as to their safety.

Those provisions are at the heart of the Regulation; it does not establish any harmonised standards in national law at all, but purports to entrust the task of establishing a list of authorised smoke flavourings entirely to the Commission and the Authority.

The United Kingdom submits that the legislative power conferred by Article 95 EC is a power to harmonise national laws; it is not a power to set up Community bodies or to confer tasks upon such bodies, nor to set up procedures under which lists of approved products are drawn up by the Commission on the basis of an evaluation by a Community agency. Conferring tasks upon Community bodies or upon the Commission is a matter outside the scope of national law, and doing so cannot be described as harmonising national law within the meaning of Article 95.

The provisions of the Regulation therefore fall outside the power of harmonisation conferred on the Parliament and Council by Article 95 and the only appropriate legal basis for such a measure could be Article 308 EC.

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(1)  OJ L 309, 26.11.2003, p. 1 - 8

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