Opinion of the Advocate General — ECLI:EU:C:2005:574
Date: 2005-09-22
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Action for annulment - unfounded
Origin: United Kingdom

Summary of the Judgment 1. Approximation of laws – Article 95 EC – Scope (Art. 95 EC) 2. Approximation of laws – Telecommunications sector (Art. 95 EC; European Parliament and Council Regulation No 460/2004) 1. By using 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 method of approximation most appropriate for achieving the desired result, in particular in fields with complex technical features. In that regard, nothing in the wording of Article 95 EC implies that the addressees of the measures adopted by the Community legislature on the basis of that provision can only be the individual Member States. The legislature may deem it necessary to provide for the establishment of a Community body responsible for contributing to the implementation of a process of harmonisation in situations where, in order to facilitate the uniform implementation and application of acts based on that provision, the adoption of non-binding supporting and framework measures seems appropriate. However, the tasks conferred on such a body must be closely linked to the subject-matter of the acts approximating the laws, regulations and administrative provisions of the Member States. Such is the case in particular where the Community body thus established provides services to national authorities and/or operators which affect the homogenous implementation of harmonising instruments and which are likely to facilitate their application. (see paras 43-45) 2. Regulation No 460/2004 establishing the European Network and Information Security Agency is rightly based on Article 95 EC. First, in relation to the objectives laid down for the Agency in Article 2 of the regulation, Directive 2002/21 on a common regulatory framework for electronic communications networks and services seeks, according to Article 1(1) thereof, to establish a harmonised framework for the regulation of electronic communications services, electronic communications networks and associated facilities and services. In addition, numerous provisions of the specific directives express the concerns of the Community legislature in relation to network and information security. That is true of Directive 2002/20 on the authorisation of electronic communications networks and services, Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58 on the processing of personal data and the protection of privacy in the electronic communications sector, Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and Directive 1999/93 on a Community framework for electronic signatures. Furthermore, the tasks conferred on the Agency under Article 3 of the regulation are closely linked to the objectives pursued by the Directive 2002/21 and the specific directives in the area of network and information security. Second, as regards the implementation of the Community legislation in the area, the regulation does not constitute an isolated measure but forms part of a normative context circumscribed by Directive 2002/21 and the specific directives on electronic networks and communications and directed at completing the internal market in the area of electronic communications. In addition, confronted with an area in which technology is being implemented which is not only complex but also developing rapidly, the Community legislature considered that the establishment of a Community body such as the Agency was an appropriate means of preventing the emergence of disparities likely to create obstacles to the smooth functioning of the internal market in the area. Lastly, it is apparent from Article 25(1) and (2) and Article 27 of the regulation, read together, according to which the Agency is to be created for a limited period and its operation is to be evaluated with the aim to determine whether that period should be extended, that the Community legislature considered that before making a decision as to the fate of the Agency it was appropriate to carry out an evaluation of the effectiveness of that Agency and the contribution which it makes to the implementation of Directive 2002/21and specific directives. (see paras 47-48, 50-55, 58, 60-62, 65-67)