Case C-440/03: Action brought on 16 October 2003 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2003-11-29
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, cable transport, carriage of passengers, transport safety

C 289/16

EN

Official Journal of the European Union

29.11.2003

Action brought on 15 October 2003 by the European
Parliament against the Council of the European Union

(Case C-436/03)

(2003/C 289/31)

An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-
ties on 15 October 2003 by the European Parliament,
represented by J.-L. Rufas Quintana and E. Waldherr, acting as
Agents, with an address for service in Luxembourg.

The European Parliament claims that the Court should:

1.

annul Council Regulation (EC) No 1435/2003 of 22 July
2003 on the Statute for a European Cooperative
Society (1);

2. maintain the same in force until relevant new legislation
comes into force, adopted within a reasonable period on
the proper legal basis;

3.

order the Council to pay the costs.

Pleas in law and main arguments

The Council adopted the contested regulation on the basis of
Article 308 EC, which provides for a unanimous decision of
the Council after consulting the European Parliament. How-
ever, the regulation should have been based on Article 95 EC,
necessitating the codecision procedure under Article 251 EC,
as was indeed suggested by the Commission in its initial
proposal of 6 March 1992 and in its amended proposal of
6 July 1993.

Article 95 is the proper legal basis for the adoption of the
Statute for a European Cooperative Society in that this is a
question of the approximation of the laws of the Member
States by regulation in order to enable the creation of European
cooperatives which contribute to the establishment and func-
tioning of the internal market. The European Cooperative
Society introduced by the contested regulation is not a
‘supranational’ instrument since it cannot be distinguished in
any way from the models of cooperatives existing in the
Member States and since the regulation consistently refers
back to the national law of the Member State in which the
Society has its registered office. Therefore the European
Cooperative Society is always subject to the domestic law of
each Member State, while having a Community framework to
facilitate cross-border management.

The concept of ‘approximation of the provisions laid down by
law, regulation or administrative action in Member States’
must be interpreted to include measures for approximation in
the form of a regulation directed at creating harmonisation at
Community level in order to overcome the restrictions of
territorial application of the law of Member States to the extent
necessary to contribute to the establishment and functioning
of the internal market.

(1) OJ 2003 L 207, p. 1.

Action brought on 16 October 2003 by the Commission
of the European Communities against the Federal Repub-
lic of Germany

(Case C-440/03)

(2003/C 289/32)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 16 October 2003 by the Commission of the European
Communities, represented by Bernard Schima, with an address
for service in Luxembourg.

The Commission claims that the Court should:

1.

declare that by failing — with the exception of provisions
of the Länder Saxony-Anhalt, Bavaria and Thuringia — to
adopt or to communicate to the Commission the laws,
regulations and administrative provisions necessary in
order to implement Directive 2000/9/EC of the European
Parliament and of the Council of 20 March 2000 relating
to cableway installations designed to carry persons (1), the
Federal Republic of Germany has failed to fulfil
its
obligations under that directive;

2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The period for transposing the directive expired on 3 May
2002 without all German Länder having adopted the necessary
provisions.

(1) OJ L 106, 3.5.2000, p. 21.