Opinion of the Advocate General — ECLI:EU:C:2005:447
Date: 2005-07-12
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions;Acts of the institutions
Procedure: Action for annulment - unfounded

Summary of the Judgment Acts of the institutions – Choice of legal basis – Criteria – Article 308 EC – Limits (Art. 95 EC and 308 EC; Council Regulation No 1435/2003) The appropriate legal basis on which an act must be adopted should be determined according to its content and main object. In that regard, Article 308 EC may be used as the legal basis for a measure only where no other provision of the Treaty gives the Community institutions the necessary power to adopt it. Article 95 EC empowers the Community legislature to adopt measures to improve the conditions for the establishment and functioning of the internal market and they must genuinely have that object, contributing to the elimination of obstacles to the economic freedoms guaranteed by the Treaty, which include the freedom of establishment. Recourse that article as a legal basis is also possible if the aim is to prevent the emergence of obstacles to trade resulting from heterogeneous development of national laws; the emergence of such obstacles must, however, be likely and the measure in question must be designed to prevent them. Regulation No 1435/2003 on the Statute for a European Cooperative Society (SCE) aims to introduce a new legal form in addition to the national forms of cooperative societies, since the SCE must be considered to be a European legal form for cooperative societies which has specific Community character. The legal form of the SCE is governed first and foremost by that regulation, the conditions of its formation are specific to that form of society, and the possibility of transferring its registered office from one Member State to another, without that resulting in the winding-up of the SCE or in the creation of a new legal person is also specific to the SCE. In addition, the European cooperative society is a form which coexists with cooperative societies under national law. In those circumstances, that regulation, which leaves unchanged the different national laws already in existence, cannot be regarded as aiming to approximate the laws of the Member States applicable to cooperative societies. Consequently, Article 95 EC could not constitute an appropriate legal basis for the adoption of the regulation, which was thus correctly adopted on the basis of Article 308 EC. (see paras 35-36, 38-44, 46)