Source: EURLEX
Language: en
Format: md

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 22 September 2005 1([1](#Footnote1))

**Case C-217/04**

**United Kingdom of Great Britain and Northern Ireland**

**v**

**European Parliament**

**and**

**Council of the European Union**

(European Network and Information Security Agency (ENISA) – Annulment of Regulation (EC) No 460/2004 of the European Parliament and of the Council – Incorrect legal basis – Article 95(1) EC – Measure for the approximation of the provisions laid down by law, regulation or administrative action in Member States)

  
  
  
  

I –  **Introduction**

1.        Regulation (EC) No 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European Network
and Information Security Agency ([2](#Footnote2)) (‘the ENISA Regulation’) ([3](#Footnote3)) was based on Article 95 EC. The United Kingdom takes the view that Article 308 EC should have been taken as legal basis instead,
and has therefore brought an action for annulment.

2.        This case is of great importance for legislative practice, since the Community legislature has recently taken more often to
setting up agencies no longer on the basis of Article 308 EC but on the basis of special competences in specific sectors. ([4](#Footnote4))

II –  **Legal context**

3.        The legal basis of the ENISA Regulation is the second sentence of Article 95(1) EC:

‘The Council shall, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and
Social Committee, adopt the 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.’

4.        The preamble to the ENISA Regulation explains why it is necessary to set up the Agency. Recital 3 in the preamble describes
the problem:

‘The technical complexity of networks and information systems, the variety of products and services that are interconnected,
and the huge number of private and public actors that bear their own responsibility risk undermining the smooth functioning
of the Internal Market.’

5.        The next recitals list the various relevant harmonising measures ([5](#Footnote5)) and refer to various measures that may be taken pursuant to those enactments. None of the measures cited refers to ENISA.
Recital 10 in the preamble states, finally:

‘These internal market measures require different forms of technical and organisational applications by the Member States
and the Commission. These are technically complex tasks with no single, self-evident solutions. The heterogeneous application
of these requirements can lead to inefficient solutions and create obstacles to the internal market. This calls for the creation
of a centre of expertise at European level providing guidance, advice, and when called upon, with assistance within its objectives,
which may be relied upon by the European Parliament, the Commission or competent bodies appointed by the Member States. …’

6.        This idea is developed further in the subsequent recitals. Recital 12 should be emphasised. According to that recital, ENISA
is not to interfere with the competences of the national regulatory authorities, the European Regulators Group, the Communications
Committee under Directive 2002/21, ([6](#Footnote6)) European standardisation bodies, and the data protection authorities.

7.        The objectives of ENISA are specified in Articles 1 to 3 of the ENISA Regulation:

‘Article 1

Scope

1.      For the purpose of ensuring a high and effective level of network and information security within the Community and in order
to develop a culture of network and information security for the benefit of the citizens, consumers, enterprises and public
sector organisations of the European Union, thus contributing to the smooth functioning of the internal market, a European
Network and Information Security Agency is hereby established, hereinafter referred to as “the Agency”.

2.      The Agency shall assist the Commission and the Member States, and in consequence cooperate with the business community, in
order to help them to meet the requirements of network and information security, thereby ensuring the smooth functioning of
the internal market, including those set out in present and future Community legislation, such as in the Directive 2002/21/EC.

3. …

Article 2

Objectives

1.      The Agency shall enhance the capability of the Community, the Member States and, as a consequence, the business community
to prevent, address and to respond to network and information security problems.

2.      The Agency shall provide assistance and deliver advice to the Commission and the Member States on issues related to network
and information security falling within its competencies as set out in this Regulation.

3.      Building on national and Community efforts, the Agency shall develop a high level of expertise. The Agency shall use this
expertise to stimulate broad cooperation between actors from the public and private sectors.

4.      The Agency shall assist the Commission, where called upon, in the technical preparatory work for updating and developing Community
legislation in the field of network and information security.’

8.        Article 3 of the ENISA Regulation describes the tasks of ENISA. They fall within the fields of the collection of information
(points (a), (g) and (i)), provision of advice (points (b), (e), (h) and (k)) and promotion of cooperation (points (c), (d),
(e), (f) and (j)).

9.        In Article 4 of the ENISA Regulation a number of terms are defined. Articles 5 to 28 then regulate organisational questions.
Under Article 18, the agency is to have legal personality. Under Article 19, it is to have its own staff. Article 15 provides
for a separate budget for the agency on the basis of contributions from the Commission and third countries. Article 20 places
it under the protection of the Protocol on the Privileges and Immunities of the European Communities. Article 21 contains
rules on liability which correspond to Article 288 EC.

10.      The controlling and managing body of the agency is a Management Board, provided for in Article 6 of the ENISA Regulation,
consisting of representatives of the Member States and the Commission and three other persons without the right to vote. The
Management Board determines the work programme of the agency and, under Article 7, appoints the Executive Director. Finally,
under Article 8, the agency is given a Permanent Stakeholders’ Group.

III –  **Forms of order sought by the parties**

11.      The United Kingdom claim that the Court should:

1.      declare that Regulation (EC) No 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European
Network and Information Security Agency is invalid;

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

12.      The Parliament and the Council contend that the Court should:

1.      dismiss the application as unfounded;

2.      order the United Kingdom to pay the costs.

13.      The Council contends, in the alternative, that if the ENISA Regulation were to be annulled, its effects should be maintained.

14.      Finland and the Commission have intervened in support of the Parliament and the Council and the forms of order sought by them.

IV –  **Legal assessment**

A –    *Choice of legal basis*

15.      The United Kingdom contests the choice of legal basis for the ENISA Regulation.

16.      It is settled case-law that the choice of legal basis for a Community legal act must rest on objective factors which are amenable
to judicial review, including in particular the aim and content of the act. ([7](#Footnote7))

17.      The Community legislature based the ENISA Regulation on Article 95(1) EC. Under that provision, measures are to be adopted
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.

18.      Measures on the basis of Article 95(1) EC are intended to improve the conditions for the establishment and functioning of
the internal market, but that provision does not confer on the Community legislature any general power to regulate the internal
market. ([8](#Footnote8)) The Court has also stated that measures under Article 95(1) EC ‘must genuinely have that object, actually contributing to
the elimination of obstacles to the free movement of goods or to the freedom to provide services, or to the removal of distortions
of competition’. ([9](#Footnote9))

19.      Consistent Community-wide measures to promote the security of networks and information systems may undoubtedly prevent the
emergence of obstacles to the free movement of goods and services, simply by preventing divergent national measures. Thus,
for example, the cross-frontier conclusion of transactions or their performance with the aid of networks and information systems
presupposes identification procedures that function across borders, which require Community-wide coordination at least.

20.      As all the parties other than the United Kingdom submit, ENISA will contribute to that aim by collecting information, providing
a forum for discussion, and in certain cases advising the Community institutions or national bodies. Even the United Kingdom
Government acknowledges that the setting up of ENISA was to be desired.

21.      However, the United Kingdom criticises essentially, as in Case C‑66/04 ([10](#Footnote10)) concerning the regulation on smoke flavourings, ([11](#Footnote11)) that the establishment of ENISA is not a measure ‘for the approximation of the provisions laid down by law, regulation or
administrative action in Member States’ within the meaning of Article 95(1) EC. It takes the view that such measures must
be directed towards the laws of the Member States. That legal basis may not be used for measures which the Member States cannot
– individually or together – themselves effect. A Community agency cannot be created by the simultaneous enactment of identical
legislation in the Member States.

22.      In my Opinion in Case C‑66/04 ([12](#Footnote12)) I have already shown that the wording of Article 95(1) EC, by mentioning the ‘approximation’ of laws, regulations and administrative
action ‘in Member States’, calls for a reference by the Community measures to national law. Such a reference exists if, by
means of provisions of Community law that are to be transposed, approximated national provisions come into being in all the
Member States. But Community law with direct and superior effect such as a regulation, which displaces or prevents national
law that diverges from it, also has that reference to national law. Purely Community measures which take effect *alongside* the law of a Member State without altering its normative content, on the other hand, do not in fact effect any approximation
of the laws of the Member States. This was decided by the Court with respect, for instance, to new intellectual property rights
which took effect alongside the existing national rights. ([13](#Footnote13))

23.      In the view of Advocate General Stix-Hackl, that case-law is to be understood as meaning that it is not sufficient that a
measure whose ‘essential characteristic’ is the ‘creation of something new’ has the aim of promoting the internal market.
She therefore rejected the creation of new forms of companies such as the European cooperative society on the basis of Article
95(1) EC. ([14](#Footnote14))

24.      Advocate General Stix-Hackl’s view must be accepted in the case of the creation of new kinds of companies, if they take their
place *alongside* the kinds of companies in the individual States’ legal systems. In that case the necessary (approximating) reference to those
legal systems is absent. It must be pointed out, however, that new things may be created even by way of the approximation
of laws. Thus *preventive* approximation in anticipation of expected national measures ([15](#Footnote15)) in principle requires the creation of *new* provisions for which there is as yet no equivalent in the Member States. ([16](#Footnote16))

25.      ‘Measures *for* ([17](#Footnote17)) the approximation of the provisions laid down by law, regulation or administrative action in Member States’ within the meaning
of Article 95(1) EC are not confined, however, to measures which themselves approximate the laws of the Member States. As
the institutions submit, measures which effect the approximation of the laws of the Member States only as a result of their
application, for example by providing for procedures that bring about approximation not directly but in a multi-stage model
with intermediate steps, also contribute to the approximation of laws. ([18](#Footnote18))

26.      The ENISA Regulation contains on the one hand provisions which could represent such an intermediate step, namely the provisions
on the tasks and powers of ENISA. However, it also regulates, on the other hand, the establishment and organisation of ENISA.
The latter – quantitatively predominant – provisions manifestly do not contribute directly to the approximation of provisions
of the Member States. The United Kingdom Government therefore insists that the establishment of an agency may in principle
not be based on Article 95(1) EC.

27.      At first sight it does indeed appear conceivable to attribute two different aims to the ENISA Regulation, namely the definition
of certain tasks of ENISA on the one hand and the establishment of ENISA on the other. From that point of view, the legal
basis would have to be chosen according to which of the two aims predominated. ([19](#Footnote19)) However, splitting the ENISA Regulation into two separate parts leads one astray. The establishment of ENISA cannot be separated
from its tasks, but is a means to the end. The ENISA Regulation thus pursues only a single aim, which is to be derived above
all from the provisions on the tasks of ENISA.

28.      However, even if there is a single aim the question still arises whether the ENISA Regulation is an intermediate step on the
way to the approximation of laws within the meaning of Article 95(1) EC. The regulation does not effect any approximation
of laws. ENISA cannot itself adopt any provisions on the approximation of laws, nor does it take part in specific procedures
for the adoption of such provisions. The contribution of the ENISA Regulation to the approximation of laws is therefore not
immediately evident.

29.      Nevertheless, in the opinion of the institutions and the Finnish Government, ENISA makes a contribution to approximation by
collecting and distributing information, advising Community institutions and national regulatory bodies, and promoting cooperation
between representatives of interests.

30.      As the United Kingdom Government emphasised in particular at the hearing, the tasks of ENISA which relate to the cooperation
of private actors and the provision of information for private users (Article 3(c), (e) and (i)) can scarcely, however, be
regarded as an intermediate step to the approximation of the laws of the Member States.

31.      Nevertheless, a contribution of ENISA to the approximation of laws by means of its other activities cannot entirely be excluded.
In particular, the function given to ENISA of advising the Community institutions could also support their legislative activity
and hence potentially the approximation of provisions of the Member States. In addition, under Article 3(k), ENISA can submit
its own conclusions, orientations and advice on questions within its remit and thereby encourage approximation.

32.      Moreover, it is conceivable that by its mere existence as a European discussion forum and specialist centre ENISA promotes
the approximation of legislation of the Member States by the voluntary parallel action of national bodies. The Finnish Government
stresses in this respect the expertise and independence which ENISA is intended to have and the responsibility of its management
board for harmonising the work of the agency with the activities carried out by the Member States and at Community level.
The United Kingdom’s criticism to the effect that ENISA’s independent advisory activity may in practice even increase the
differences between the Member States if some of them follow ENISA’s advice and others do not is, by contrast, exaggerated.

33.      These potential contributions of ENISA to the approximation of laws are not, however, sufficient for its establishment to
be regarded as a measure for the approximation of the provisions laid down by law, regulation and administrative action in
Member States.

34.      That is because it is not predictable whether and in what form ENISA will contribute to the approximation of laws. That depends
on all sorts of factors. In addition to ENISA’s work and findings, the cooperation of institutions, bodies of the Member States
and representatives of interests is also necessary in particular. It is not therefore impossible that ENISA’s potential for
the approximation of laws will in practice not be exhausted. Even where ENISA does contribute to the approximation of laws,
the corresponding measures will not necessarily be based on Article 95(1) EC. Thus ENISA’s activity could lead to measures
regulating the exercise of an occupation, which might have to be based on Article 47 EC.

35.      In so far as Article 1(2) of the ENISA Regulation and the recitals in its preamble make a connection between ENISA and existing
approximation measures, as the Parliament and the Council in particular stress, ENISA is not actually tied into the adoption
of the implementing measures required under those measures. As the United Kingdom submits, on the one hand ENISA’s functions
are materially much more extensive than the implementation of those directives, and on the other hand the implementation itself
is not within the jurisdiction of ENISA but within that of the Commission and the authorities of the Member States. As regards
the provision of advice, special structures were even created in connection with implementing those measures, namely the Communications
Committee, ([20](#Footnote20)) the European Regulators Group, ([21](#Footnote21)) and in the field of data protection the working party on the protection of individuals with regard to the processing of personal
data. ([22](#Footnote22))

36.      The ENISA Regulation is therefore not so much an intermediate step on the way to the approximation of laws of the Member States
as a step into the uncertain. ENISA was set up to ‘have in stock’, so to speak, in the expectation that it would produce useful
results. That it will be of use (for the internal market) is not unlikely, but that is not enough to make the ENISA Regulation
a measure for the approximation of laws.

37.      The institutions that are parties to the proceedings, however, put forward a number of arguments as to why the establishment
of ENISA may be based on Article 95(1) EC regardless of any contribution to the approximation of laws.

38.      They point out to begin with that the establishment of ENISA will affect the powers of the Member States much less than, for
instance, the adoption of approximating measures which have to be transposed for promoting the security of networks and information
systems. Moreover, setting up ENISA is more sensible than approximation, since the need for approximating measures is at present
still unclear. ENISA is a means of acquiring the corresponding knowledge.

39.      That is indeed correct, but cannot lead to extending the scope of Article 95(1) EC to measures which do not serve the approximation
of laws. ([23](#Footnote23)) That is forbidden by the principle of limited powers (Article 5 EC). If the legal basis does not cover the enactment of the
measure, the Community may not – on the basis of that provision of the Treaty – enact it. It is immaterial that the planned
measure has less of an effect on national competences than a genuinely approximating measure.

40.      Moreover, it may be left open whether the Council’s argument is correct that the approximation of national administrative
provisions also constitutes approximation within the meaning of Article 95(1) EC. ENISA’s contribution to this form of approximation
is also not regulated specifically enough for its establishment to be regarded as an approximation measure.

41.      The Commission in particular, however, citing the ‘true objective’ of Article 95 EC, understands the words ‘*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*’ as a whole as a formula for the appropriate elimination of obstacles to the internal market. However, the Commission’s view
amounts to the general power for regulation of the internal market which has been rejected by the Court. ([24](#Footnote24)) It would deprive of all function the element of approximation of laws in Article 95(1) EC. That is compatible neither with
the wording of that legal basis nor with its legislative history. In the negotiations on the Single European Act the Member
States did not accept the Commission’s proposal for a legal basis for the adoption of *all* legal acts that serve to realise the internal market. ([25](#Footnote25)) Instead they agreed on the version of Article 95(1) EC that is essentially still in force today.

42.      Nor can the Commission’s position be supported by reference to an opinion in legal writing deriving from the judgment in *IHT Internationale Heiztechnik and Danziger*. In that judgment the Court said that it ‘is for the Community legislature to [adopt legislation] under Article 100a of the
EEC Treaty [now, after amendment, Article 95 EC], elimination of the obstacles arising from the territoriality of national
trade marks being necessary for the establishment and functioning of the internal market’. ([26](#Footnote26))

43.      From that it is deduced by some writers that Article 95(1) EC permits generally the elimination of obstacles that derive from
differences between the legal systems of the Member States or from their territorially limited validity. ([27](#Footnote27)) The reference to the laws of the Member States would still have a function, namely that of a *starting-point* for an approximation which would not, however, exclude the *result* having no reference to the laws of the Member States. ([28](#Footnote28)) In particular, approximation measures which had no reference to the laws of the Member States but, for example, took effect
alongside them would thus also be possible.

44.      However, this view cannot be reconciled with the wording of Article 95(1) EC. The reference to the approximation of laws would
be no more than meaningless legal rhetoric, since the territorial limitation of national law is necessarily always present.

45.      This academic view also rests on a misunderstanding of the passage cited from *IHT*. What the Court said there relates only to the aim of establishing the common market, not the means to be used. There is
no indication that the Court intended to allow measures which do not approximate the laws of the Member States. Rather, the
Court has emphasised the necessity of approximation of laws, by declining in other judgments to base new legal forms on Article
95(1) EC when they take effect alongside the laws of the Member States. ([29](#Footnote29))

46.      Finally, it may be left open whether the establishment of an agency with legal personality on the basis of Article 95(1) EC
– or pursuant to other specific legal bases of the EC Treaty without recourse to Article 308 EC – is precluded by obstacles
of principle. Although the Court put questions to that effect at the hearing, the parties have not discussed this point in
detail in the present case.  ([30](#Footnote30)) Since the ENISA Regulation does not adequately define ENISA’s contribution to the approximation of laws and none of the other
views on the applicability of Article 95(1) prevails, the ENISA Regulation must in any event be annulled.

B –    *Limitation of the temporal effect of the judgment*

47.      The Council has submitted, in the alternative, that the legal effects of the ENISA Regulation should be maintained in the
interests of legal certainty until it is re-enacted on the basis of another legal basis. The United Kingdom has specifically
stated that it has no objections to such a limitation of the effects of the judgment.

48.      When limiting the temporal effect of judgments, the Court bases itself on the principles of legal certainty and in particular
the effects on third parties. ([31](#Footnote31))

49.      The establishment in practice of ENISA is in full swing. ([32](#Footnote32)) To reverse the measures taken now, only to set up such an agency again in the near future, would not make sense. The staff
already recruited would be affected particularly.

50.      It is not certain, however, that readoption of the ENISA Regulation will be possible. The United Kingdom was admittedly the
only Member State to vote against the ENISA Regulation, and that only because of the choice of legal basis. But the regulation
was enacted before the latest expansion of the Union, the most recent elections to the European Parliament, and the start
of the term of office of the present Commission. For that reason too, any forecast of the future intentions of the Community
legislature is ruled out. The effects of the ENISA Regulation should therefore be maintained only until it is clear whether
or not it will be re-enacted. Two budgetary years should suffice for this, since only a little over a year elapsed between
the Commission’s proposal for the ENISA Regulation of 11 February 2003 ([33](#Footnote33)) and its adoption on 10 March 2004. That period would also make it possible to take into account, when deciding on the renewed
adoption of the ENISA Regulation, the evaluation of the activity of ENISA which the Commission must, under Article 25 of the
regulation, carry out by 17 March 2007.

V –  **Costs**

51.      Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the other party’s pleadings. Since the United Kingdom has made an application within the meaning of Article
69(2) in the present case and will, according to the above considerations, be successful, the Parliament and the Council should
be ordered to pay the costs.

52.      Under Article 69(4) of the Rules of Procedure, institutions and Member States which intervene in a case are to bear their
own costs. The Commission and the Republic of Finland must therefore bear their own costs.

VI –  **Conclusion**

53.      I therefore propose that the Court should:

(1)      Annul Regulation (EC) No 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European
Network and Information Security Agency;

(2)      Order the effects of the annulled regulation to be maintained until the entry into force of a regulation adopted on the correct
legal basis, but not longer than the end of the second budgetary year after delivery of the judgment;

(3)      Order the Parliament and the Council to pay the costs;

(4)      Order the Commission and the Republic of Finland to bear their own costs.

---

[1](#Footref1) – Original language: German.

---

[2](#Footref2) – OJ 2004 L 77, p. 1.

---

[3](#Footref3) – ENISA is an abbreviation for the English name of the agency.

---

[4](#Footref4) – See the Commission’s draft Interinstitutional Agreement on the operating framework for the European regulatory agencies
of 25 February 2005, COM(2005) 59 final, pp. 4 and 14, and the Communication from the Commission of 11 December 2002 – The
operating framework for the European Regulatory Agencies, COM(2002) 718 final, p. 8.

---

[5](#Footref5) – These are Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework
for electronic communications networks and services, OJ 2002 L 108, p. 33; Directive 2002/20/EC of the European Parliament
and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation
Directive), OJ 2002 L 108, p. 21; Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal
service and users’ rights relating to electronic communications networks and services (Universal Service Directive), OJ 2002
L 108, p. 51; Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection
of, electronic communications networks and associated facilities (Access Directive), OJ 2002 L 108, p. 7; Directive 2002/58/EC
of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection
of privacy in the electronic communications sector (Directive on privacy and electronic communications), OJ 2002 L 201, p.
37; Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information
society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), OJ 2000 L 178,
p. 1; Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for
electronic signatures, OJ 2000 L 13, p. 12; and Directive 95/46/EC of the European Parliament and of the Council of 24 October
1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data,
OJ 1995 L 281, p. 31.

---

[6](#Footref6) – Cited in footnote 5.

---

[7](#Footref7) – Case C‑300/89 *Commission* v *Council (Titanium dioxide)* [1991] ECR I‑2867, paragraph 10; Case C‑84/94 *United Kingdom* v *Council* [1996] ECR I‑5755, paragraph 25; Joined Cases C‑164/97 and C‑165/97 *Parliament* v *Council* [1999] ECR I‑1139, paragraph 12; Case C‑269/97 *Commission* v *Council* [2000] ECR I‑2257, paragraph 43; Case C‑336/00 *Huber* [2002] ECR I‑7699, paragraph 30; Case C‑491/01 *British American Tobacco* [2002] ECR I‑11453, paragraph 93; Case C‑338/01 *Commission* v *Council* [2004] ECR I‑0000, paragraph 54; Case C‑110/03 *Belgium* v *Commission* [2005] ECR I‑0000, paragraph 78; and Case C‑347/03 *Regione autonoma Friuli-Venezia Giulia* [2005] ECR I‑0000, paragraph 72.

---

[8](#Footref8) – Case C‑376/98 *Germany* v *Parliament and Council (Tobacco advertising)* [2000] ECR I‑8419, paragraph 83.

---

[9](#Footref9) – *British American Tobacco*, cited in footnote 7, paragraph 60.

---

[10](#Footref10) – See my Opinion of 8 September 2005 in Case C‑66/04 *United Kingdom* v *Parliament and Council* [2005] ECR I‑0000.

---

[11](#Footref11) – 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, OJ 2003 L 309, p. 1.

---

[12](#Footref12) – Cited in footnote 10, point 31 et seq.

---

[13](#Footref13) – See Case C‑377/98 *Netherlands* v *Parliament and Council* [2001] ECR I‑7079, paragraphs 24 and 25; Case C‑350/92 *Spain* v *Council* [1995] ECR I‑1985, paragraph 23; and Opinion 1/94 (Competence of the Community to conclude international agreements concerning
services and the protection of intellectual property) [1994] ECR I‑5267, paragraph 59. On the creation of new forms of companies,
see the Opinion of Advocate General Stix-Hackl in Case C‑436/03 *Parliament* v *Council* [2005] ECR I‑0000.

---

[14](#Footref14) – Opinion of Advocate General Stix-Hackl in Case C‑436/03, cited in footnote 13, point 96.

---

[15](#Footref15) – See *Netherlands* v *Parliament and Council*, cited in footnote 13, paragraph 15, and *Germany* v *Parliament and Council*, cited in footnote 8, paragraph 86, and the Opinion of Advocate General Stix-Hackl in Case C‑436/03, cited in footnote 13,
point 57 et seq.

---

[16](#Footref16) – Advocate General Stix-Hackl therefore, in her Opinion in Case C‑436/00 (cited in footnote 13), relates the characteristic
of novelty exclusively to new legal forms, for instance, intellectual property rights or forms of companies.

---

[17](#Footref17) – Emphasis added.

---

[18](#Footref18) – See my Opinion in Case C‑66/04, cited in footnote 10, point 32 et seq.

---

[19](#Footref19) – Case C‑155/91 *Commission* v *Council (Waste Directive)* [1993] ECR I‑939, paragraphs 19 and 21; Case C‑338/01 *Commission* v *Council*, cited in footnote 7, paragraph 55; and Case C‑110/03 *Belgium* v *Commission*, cited in footnote 7, paragraph 79. See also Joined Cases C‑164/97 and C‑165/97 *Parliament* v *Council*, paragraph 14, *Huber*, paragraph 31, and *British American Tobacco*, paragraph 94 (all cited in footnote 7).

---

[20](#Footref20) – Article 22 of Directive 2002/21, cited in footnote 5.

---

[21](#Footref21) – Commission Decision 2002/627/EC of 29 July 2002 establishing the European Regulators Group for Electronic Communications
Networks and Services (OJ 2002 L 200, p. 38).

---

[22](#Footref22) – Article 29 of Directive 95/46, cited in footnote 5.

---

[23](#Footref23) – The wording of Article 100a of the EEC Treaty was already described by Ehlermann as ‘unfortunate’ in this respect, in ‘The
Internal Market Following the Single European Act’, *Common Market Law Review* 1987, 361 (at p. 385).

---

[24](#Footref24) – The *Tobacco advertising* judgment, cited in footnote 8, paragraph 83.

---

[25](#Footref25) – See Article 2 of the Commission’s paper on the internal market of 16 September 1985 and Article 2(3) of the revised version
of 5 October 1985, both quoted in Ehlermann (cited in footnote 28, pp. 405 ff.).

---

[26](#Footref26) – Case C‑9/93 [1994] ECR I‑2789, paragraph 58.

---

[27](#Footref27) – Pipkorn, Bardenhewer-Rating and Taschner, in: von der Groeben and Schwarze (ed.), *EU-/EG-Vertrag**Kommentar*, 6th ed. 2003, paras 25, 36 and 41 on Article 95 EC; Leible, in: Streinz (ed.), *EUV/EGV: Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft*, 2003, para. 29 on Article 95 EC.

---

[28](#Footref28) – For Pipkorn, Bardenhewer-Rating and Taschner (cited in footnote 27, para. 41) the ‘elimination of differences and oppositions
of law’ is sufficient.

---

[29](#Footref29) – See the references in footnote 13.

---

[30](#Footref30) – The institutions assume, however, that the establishment of agencies is a form of action which is in principle permissible
when Article 95(1) EC is being applied. They rely inter alia on ‘implied powers’ as mentioned in Joined Cases 281/85, 283/85
to 285/85 and 287/85 *Germany, France, Netherlands, Denmark and United Kingdom* v *Commission (Immigration policy)* [1987] ECR 3203, paragraph 28, and emphasise that at least two regulations establishing agencies have already been based
on Article 95(1): Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down
the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures
in matters of food safety (OJ 2002 L 31, p. 1) and Regulation (EC) No 726/2004 of the European Parliament and of the Council
of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and
veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1). Both were, however, based on other legal
bases in addition to Article 95 EC.

---

[31](#Footref31) – Case C‑284/90 *Council* v *Parliament* [1992] ECR I‑2277, paragraph 37; Case C‑295/90 *Parliament* v *Council* [1992] ECR I‑4193, paragraph 26; Case C‑21/94 *Parliament* v *Council* [1995] ECR I‑1827, paragraph 31; and Case C‑239/01 *Germany* v *Commission* [2003] ECR I‑10333, paragraph 78.

---

[32](#Footref32) – See the ENISA website www.enisa.eu.int.

---

[33](#Footref33) – COM(2003) 63 final.

[Top](#document1)