Case C-217/04: Action brought on 24 May 2004 by the United Kingdom against the European Parliament and the Council of the European Union
Date: 2004-08-07
Institutions: Court of Justice
Subjects: Council of the European Union, EU law - national law, EU office or agency, European Parliament, United Kingdom, action for annulment (EU), approximation of laws, data protection, information network, transmission network

C 201/8

EN

Official Journal of the European Union

7.8.2004

(d) in North Rhine-Westphalia,

part-time employees who less than 2/5 of the normal
weekly hours of work,

by Lord Goldsmith QC, Her Majesty's Attorney General;
Nicholas Paines QC and Tim Ward, with an address for service
in Luxembourg.

(e) in Lower Saxony,

The Applicant claims that the Court should:

part-time employees who, for a period of up to two
months in the course of a year, are employed for less
than 15 hours a week,

from eligibility for election to staff committees.

2. Order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments:

The exclusion from eligibility for election to staff committees,
for public sector workers employed by the Federal Republic
and almost all Länder, of part-time employees who normally
work less than 18 hours a week (the number of hours is some-
what less in certain Länder) constitutes indirect discrimination
against women, as they form the great majority of part-time
workers. This is accordingly in breach of Directive 76/207/EEC.
The rules are also incompatible with Directive 97/81/EC, which
provides that part-time workers may not be treated in a less
favourable manner than full-time workers unless such different
treatment is justified on objective grounds.

However, there are no objective grounds for the exclusion from
eligibility for election. The restricted presence of the relevant
employees in the workplace could be compensated for by the
creation of flexible working time arrangements and modern
means of communication. The Betriebsverfassungsgesetz (Law
on labour relations at the workplace), which governs elections
to works councils in the private sector, does not restrict elig-
ibility for election in the same way. Such works councils
perform the same functions as staff committees in the public
sector. Representation of
the excluded groups is necessary
because they have separate interests, which otherwise would
not be taken into account.

(1) OJ 1976 L 39, p. 40.
(2) OJ 1998 L 14, p. 9.

Action brought on 24 May 2004 by the United Kingdom
against the European Parliament and the Council of the
European Union

— declare that Regulation (EC) No 460/2004 of the European
Parliament and of the Council of 10 March 2004 estab-
lishing the European Network and Information Agency (1) is
invalid;

— order the European Parliament and the Council of the Euro-

pean Union to pay the United Kingdom's costs.

Pleas in law and main arguments:

The contested Regulation (Regulation (EC) No 460/2004, the
‘ENISA Regulation’) sets up a European Network and Informa-
tion Security Agency (‘the Agency’) whose function is to
provide guidance, advice and assistance to the Commission, the
Member States and the business community on issues relating
to network and information security within the scope of the
ENISA Regulation. The United Kingdom supports the establish-
ment of the Agency, but submits that article 95 EC does not
provide a proper legal basis for doing so. The ENISA Regu-
lation is concerned entirely with the creation of the Agency as
a Community body; it prescribes the Agency's objectives and
tasks and makes provision for its management and organisation
and work programme; in addition it makes provision as to the
Agency's budget,
legal status, privileges and immunities and
working languages. The provisions of the ENISA Regulation
take effect entirely at the level of the institutional law of the
Community.

that

The United Kingdom submits
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. Such matters lie outside the
scope of national law, and Community legislation which sets
up such a body, or confers tasks upon it, cannot harmonise
national law within the meaning of article 95.

None of the provisions of the ENISA Regulation approximate,
even indirectly, any provision of national law. On the contrary,
the Agency is expressly precluded from interfering with the
competencies of national bodies and the objectives and tasks of
the Agency are expressed in article 1(3) to be without prejudice
to the competence of Member States.

(Case C-217/04)

(2004/C 201/15)

The provisions of the ENISA 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.

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 24 May 2004 by the United
Kingdom, represented by Mark Bethell, acting as agent; assisted

(1) OJ L 077, 13.03.2004, p. 1.