Source: EURLEX
Language: en
Format: md

OPINION OF ADVOCATE GENERAL

STIX-HACKL

delivered on 12 July 2005 ([1](#Footnote1))

**Case C-436/03**

**European Parliament**

**v**

**Council of the European Union**

(Council Regulation (EC) No 1435/2003 – European Cooperative Society (SCE) – Legal basis – Article 95 EC – Article 308 EC)

  
  
  
  

I –  **Introductory remarks**

1.        These proceedings between the Parliament and the Council relate to the creation of a European Cooperative Society. In this
action the Parliament is seeking the annulment of Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for
a European Cooperative Society (SCE) ([2](#Footnote2)) (‘the regulation’) which was adopted on the basis of Article 308 EC. The fundamental issue is whether and in what circumstances
the Council is permitted to adopt measures on the basis of Article 308 EC. The present proceedings are therefore essentially
concerned with the interpretation of Article 95 EC.

II –  **The regulation at issue**

A –    *Legislative procedure*

2.        The Commission submitted its original proposal ([3](#Footnote3)) for a European Cooperative Society to the Council on 6 March 1992. That proposal was based on Article 100a of the EC Treaty,
which was the precursor to Article 95 EC. The Commission accepted its amended proposal ([4](#Footnote4)) on 6 July 1993 after the Parliament’s first reading and submitted it to the Council.

3.        Following the amendments to the Treaties made by the Maastricht Treaty and the Amsterdam Treaty the legal basis was adapted
to Article 95 EC. ([5](#Footnote5)) This legal basis was confirmed by the Parliament in its opinion.

4.        From the spring of 2002 onwards discussions took place in the Council during the course of which the legal basis was changed
to Article 308 EC instead of Article 95 EC. Because of this amendment the Council resolved to consult the Parliament again.

5.        On 14 May 2003 the Parliament gave its opinion that the legal basis should again be changed to Article 95 EC. The Commission
endorsed this in its observations on the Parliament’s applications for amendment.

6.        The regulation was formally adopted on 22 July 2003 by the Council, adhering to Article 308 EC as the legal basis.

B –    *Aim and content of the regulation*

7.        The second recital in the preamble to the regulation states as follows with regard to its intended aim: ‘The completion of
the internal market and the improvement it brings about in the economic and social situation throughout the Community mean
not only that barriers to trade should be removed, but also that the structures of production should be adapted to the Community
dimension. For that purpose it is essential that companies of all types the business of which is not limited to satisfying
purely local needs should be able to plan and carry out the reorganisation of their business on a Community scale.’

8.        The third recital reads as follows:

‘The legal framework within which business should be carried on in the Community is still based largely on national laws and
therefore does not correspond to the economic framework within which it should develop if the objectives set out in Article
18 of the Treaty are to be achieved. That situation forms a considerable obstacle to the creation of groups of companies from
different Member States.’

9.        The sixth recital states that the Community must provide cooperatives, which are a form of organisation generally recognised
in all Member States, with adequate legal instruments capable of facilitating the development of their cross-border activities.

10.      The 11th recital explains the situation as follows:

‘Cross-border cooperation between cooperatives in the Community is currently hampered by legal and administrative difficulties
which should be eliminated in a market without frontiers.’

11.      The 12th recital provides information on the means of achieving that aim:

‘The introduction of a European legal form for cooperatives, based on common principles but taking account of their specific
features, should enable them to operate outside their own national borders in all or part of the territory of the Community.’

12.      The 13th recital states that the essential aim of the regulation is ‘to enable the establishment of an SCE by physical persons
resident in different Member States or legal entities established under the laws of different Member States’.

13.      The 16th recital points out that taxation, competition, intellectual property and insolvency law are not covered by the regulation.

14.      The 18th recital explains why part of the legal framework is determined by reference to national law:

‘Work on the approximation of national company law has made substantial progress so that certain provisions adopted by the
Member State where the SCE has its registered office for the purpose of implementing directives on companies may be referred
to by analogy for the SCE in areas where the functioning of the cooperative does not require uniform Community rules, such
provisions being appropriate to the arrangements governing the SCE.’

15.      Article 1(3) provides that an SCE is to have as its principal object the satisfaction of its members’ needs and/or the development
of their economic and social activities.

16.      Article 1(5) expressly provides that an SCE is to have legal personality. This is acquired by entry in a register pursuant
to Article 18.

17.      The regulation contains further provisions on capital (Articles 3 and 4), the statutes (Article 5), the registered office
and its transfer (Articles 6 and 7), registration and publication (Articles 11 to 13), membership (Articles 14 to 16), modes
of formation, namely merger and conversion (Article 2 and Articles 19 to 35), structure (Articles 36 to 63), the issue of
shares (Article 64), the allocation of profits (Articles 65 to 67), the annual accounts and consolidated accounts (Articles
68 to 71) and on winding up, liquidation, insolvency and cessation of payments (Articles 72 to 76).

18.      One particular characteristic of an SCE that should be specifically mentioned is that under Article 7 the registered office
of an SCE may be transferred without the SCE being wound up.

19.      Article 8 is the core provision relating to the law applicable. This provision sets out a clear order of priority. An SCE
is to be governed primarily by the regulation and only then by the provisions of its statutes – where expressly authorised
by the regulation – and by national law.

20.      Article 9 provides information on how an SCE is to be treated in the Member States. It provides that, subject to the regulation,
an SCE is to be treated in every Member State as if it were a cooperative formed in accordance with the law of the Member
State in which it has its registered office.

21.      According to its aim and content, therefore, the regulation concerns the creation of a particular form of company, the European
Cooperative Society (SCE).

III –  **Procedure before the Court of Justice and forms of order sought by the parties**

22.      The Parliament’s application was lodged at the Court Registry on 15 October 2003. By order of the President the Court of Justice
allowed the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland to intervene in support of the forms
of order sought by the Council and the Commission to intervene in support of the forms of order sought by the Parliament.

23.      The Parliament claims that the Court should annul the regulation and, in the event of annulment, maintain the effects of the
regulation until appropriate new legislation comes into force, adopted within a reasonable period on the proper legal basis,
and that it should order the Council to pay the costs.

24.      The Council claims that the Court should dismiss the claim as unfounded and order the applicant to pay the costs.

IV –  **The essential arguments put forward by the parties and interveners**

A –    *The applicant and the intervener in support*

25.      The Parliament bases its claim for annulment of the regulation on the fact that the Council adopted it on the basis of Article
308 EC when it should have been based on Article 95 EC. Whilst Article 308 EC only makes provision for consultation with the
Parliament, Article 95 EC necessitates the codecision procedure under Article 251 EC.

26.      Article 95 EC is the proper legal basis for the adoption of the Statute for an SCE because the regulation approximates the
laws of the Member States in order to enable an SCE to be created. The legal form of an SCE is that of a national company
of European character because recourse is had to national law, which continues to apply in certain respects.

27.      The Commission, as intervener supporting the Parliament, expresses likewise a wide view of the concept of the approximation
of laws as also encompassing the introduction of new provisions, thus including additions to the national law on cooperatives
made by the SCE statute. It argues that, in view of its aim and content, the regulation should have been based on Article
95 EC in particular because it contributes to the establishment and functioning of the internal market.

B –    *The defendant and the interveners in support*

28.      The Council states in defence of the procedure chosen that the regulation creates a new legal form. Furthermore, Article 95
EC is not the only legal basis for the implementation of the internal market. Although preventive approximation of laws is
permissible it presupposes that the Member States could adopt such a measure. That is not the case, however, where a parallel
Community structure is created.

29.      The United Kingdom of Great Britain and Northern Ireland supports the Council as intervener and submits that Article 95 EC
is not the proper legal basis for the regulation because the Member States could not adopt such legislation; nor are obstacles
to the internal market in the shape of differences in the legal orders of the Member States thereby removed. The proper legal
basis is therefore Article 308 EC.

30.      The Kingdom of Spain, as intervener supporting the Council, submits that the legal form of an SCE created by the regulation
is a new type of company and could not therefore be based on Article 95 EC because this is not a matter concerning the approximation
of laws within the meaning of that provision.

V –  **Appraisal**

31.      The legal issue to be clarified in these proceedings is whether the disputed regulation was properly based on Article 308
EC. It is therefore necessary to examine, first of all, the requirements governing the application of that provision. In the
course of that analysis it will then be necessary to examine whether the regulation could have been based on Article 95 EC.

32.      It should first be observed that in the context of the organisation of the powers of the Community the choice of the legal
basis for a measure may not depend simply on an institution’s conviction as to the aim pursued but must be based on objective
factors which are amenable to judicial review. Those factors include in particular the aim and content of the measure. ([6](#Footnote6))

A –    *Conditions for the application of Article 308 EC*

33.      The wording of Article 308 EC states clearly what the essential conditions are in order to be able to rely on that legal basis.

34.      The Parliament has correctly stated the two conditions in this respect: first, that action by the Community proves necessary
to attain one of its objectives in the course of the operation of the common market and, second, that the EC Treaty has not
provided the necessary powers.

35.      The subsidiarity of Article 308 EC in comparison with other legal bases, such as Article 95 EC, is thus made apparent. The
Court of Justice has stated in its established case-law that recourse to Article 308 EC as the legal basis for a measure is
justified only where no other provision of the Treaty gives the Community institutions the necessary power to adopt the measure
in question. ([7](#Footnote7))

B –    *Conditions governing the application of Article 95 EC*

36.      It is only possible to have recourse to Article 95 EC as the legal basis if the conditions laid down in that article, as interpreted
in case-law, are satisfied. This case is concerned with the conditions set out in the first paragraph, namely that these are
measures for the approximation of provisions which have as their object the establishment and functioning of the internal
market. The subsidiarity of this provision, compared to other specific instances of harmonisation, expressed in the use of
the phrase ‘save where otherwise provided in this Treaty’, must also be taken into consideration.

1.      Subsidiarity of Article 95 EC

37.      Article 95 EC refers, with regard to the achievement of the objectives of a measure adopted on that basis, to Article 14 EC
– that is to say to the internal market. However, Article 95 EC is certainly not the only provision on the achievement of
the internal market aims, nor, as the Council says, does it provide general power to regulate the internal market.

38.      Article 95 is therefore an inappropriate legal basis not only if the measure to be adopted has only the ‘incidental’ effect
of harmonising market conditions within the Community,([8](#Footnote8)) but also if one of the special harmonisation provisions applies.

39.      The provisions that have priority over Article 95 EC also include provisions that provide for powers of coordination in the
area of fundamental freedoms.

40.      Since the regulation on the SCE, as a measure relating to a particular form of cooperative society, incorporates rules of
company law it is Article 44 EC that should first of all be taken into consideration.

41.      Recourse may be had to that provision to approximate national company laws. It would therefore also enable national legislation
on cooperative societies to be harmonised and a measure based on Article 44 EC could also contain the same provisions as those
contained in the regulation – on formation and capital, for instance.

42.      However, the coordination requirement also creates a restriction as regards the creation of new forms under company law. Such
legal measures could not therefore be based on Article 44 EC. ([9](#Footnote9))

43.      A further restriction on the application of Article 44 EC lies in the fact that it enables only restrictions on freedom of
establishment to be abolished, but not restrictions on freedom to provide services. Hence, if the aim of a measure is to abolish
such restrictions on the activities of cooperative societies Article 44 EC cannot be used.

44.      Whilst the provisions on the registered office of an SCE and its transfer relate to freedom of establishment, other provisions
in the regulation extend beyond that fundamental freedom so as to abolish restrictions on other freedoms under Article 14
EC as well.

45.      Since the applicant did not rely on the argument that Article 44 EC should have been the legal basis, however, there is no
need to give further specific consideration to the question of whether the regulation could have been based on Article 44
EC.

46.      It remains thus to be established essentially whether Article 95 EC is also relevant in matters of company law, particularly
in relation to harmonisation which is not covered by Article 44 EC.

2.      Aim of Article 95 EC: the establishment and functioning of the internal market

47.      Measures can only be based on Article 95 EC if they have as their object the establishment and functioning of the internal
market. It should also be borne in mind that this criterion relates to the harmonisation measure and not, as suggested by
the wording of Article 95 EC, to the legislation of the Member States that is to be approximated. This is also apparent from
the case-law of the Court of Justice, according to which ‘the measures referred to in that provision are intended to improve
the conditions for the establishment and functioning of the internal market and 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’. ([10](#Footnote10))

48.      This would be the case if the regulation at issue were to eliminate or diminish differences between provisions laid down by
law, regulation or administrative action in Member States which are liable to impair fundamental freedoms and thereby have
a direct effect on the functioning of the internal market. ([11](#Footnote11))

49.      According to the third recital in the preamble to the regulation, the legal framework within which business should be carried
on by a company in the Community is based largely on national laws and this situation forms a considerable obstacle to the
creation of groups of companies from different Member States.

50.      The 11th recital explains the situation in the Member States, indicating that cross-border cooperation between cooperatives
in the Community is currently hampered by legal and administrative difficulties and that these should be eliminated.

51.      Admittedly, such obstacles could also be reduced by way of a directive approximating legislation on cooperative societies
in the Member States, that is to say, by a typical directive on company law. A directive approximating the law on cooperative
societies would only have to have been based on Article 95 EC, however, if no more specific harmonisation provision were to
have been appropriate.

52.      Using the legal form of a regulation, by contrast, would make it possible to replace national legislation on cooperative societies
by uniform provisions throughout the whole Community. However, as conceded by both the Parliament and the Commission, that
was not the approach used by the regulation at issue.

53.      The Parliament has rightly pointed out that Article 95 EC also permits the adoption of regulations. That does not mean, however,
that provisions in a regulation are therefore also automatically measures on the approximation of laws which satisfy the requirements
of Article 95 EC.

54.      In this particular case the reason for choosing the form of a regulation was that a directive would first have had to be transposed
into national law. This would have led in turn to a large number of implementing provisions, ([12](#Footnote12)) which would each have applied only in the territory of the particular Member State concerned. Hence, the advantages that
a regulation offers would not nearly have been achieved because a regulation can create uniform law of direct application.
A regulation that creates an additional legal form thus enables the Community legislature to resolve such territoriality problems. ([13](#Footnote13))

55.      Although it is true that the regulation makes a general contribution to the realisation of the internal market, this is not
enough to enable it to be based on Article 95 EC, contrary to what was argued in the proceedings, because a ‘contribution’
of this kind can also be made by measures other than those for the approximation of laws.

3.      Approximation of the provisions laid down by law, regulation and administrative action in Member States

56.      With regard to the requirement that Article 95 EC can be used only for measures to approximate legislation, it should be observed
that considerable weight is to be attached to the fulfilment of that condition, since the Member States as ‘principal parties
to the Treaties’ intended thereby to create an additional condition governing the legislative powers of the Community which
was not included in the Commission’s proposal on Article 100a of the EC Treaty, which made provision for other means of accomplishing
the internal market.

57.      However, Article 95 EC should not be interpreted too narrowly, either. As both the Parliament and the Council agree, this
legal basis also permits so-called ‘anticipated approximation of laws’, that is to say the adoption of measures without there
being any comparable legislation in the Member States to be approximated by them.

58.      This view is also supported by the case-law of the Court of Justice to the effect that ‘while recourse to Article 95 EC as
a legal basis is possible if the aim is to prevent the emergence of future obstacles to trade resulting from multifarious
development of national laws, the emergence of such obstacles must be likely and the measure in question must be designed
to prevent them’. ([14](#Footnote14))

59.      The aim of approximation of laws within the meaning of Article 95 EC is to reduce disparities between legal systems.

60.      At the same time that means that a measure to approximate laws does not require a Community measure to take the place of national
legislation. Implementation of a directive on approximation of laws also leads ultimately to a change in the national law
that was not previously in accordance with EC rules and by the same token therefore, in principle, to the law formerly applicable
being replaced; this aspect is not relevant here, however.

61.      Article 95 EC permits not only the approximation of national laws in the narrower sense, however, but also so-called ‘consolidation’
of the relevant field. The admissibility of such an approach can be based on the argument that, first, Article 95 EC permits
as the legal form not only directives but also regulations, for instance, and, second, strictly speaking there is only a slight
distinction between the consolidation of laws and the approximation of laws in the narrower sense. The consolidation of laws
also essentially serves to reduce disparities between legal systems, and even to the greatest extent. In the context of the
present proceedings that is by establishing a uniform law on cooperative societies.

62.      Now, these proceedings concern the question of whether, and if so in what circumstances, Article 95 EC constitutes a suitable
legal basis for measures by which certain provisions are to co-exist with, and therefore supplement, national law.

63.      The legal issue is therefore whether Article 95 EC also permits the creation of completely new legal forms, such as types
of company under company law.

4.      The creation of new legal forms

64.      The first step is to examine the fundamental question of whether Article 95 EC can also form the legal basis for the creation
of a new legal form. It will then be necessary to consider whether the regulation by which the legal form of an SCE was created
could have been based on Article 95 EC.

a)      General acceptability of Article 95 EC as the legal basis

65.      The question whether the creation of new legal forms is permissible by way of a measure based on Article 95 EC or whether
the legal basis can only be Article 308 EC must be decided on the basis of the case-law of the Court of Justice on the creation
of new rights under intellectual property law.

66.      The Court of Justice has thus ruled that the Community may use Article 308 EC as the basis for creating new rights superimposed
on national rights. ([15](#Footnote15)) That was in connection with rights created under Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trademark. ([16](#Footnote16))

67.      It is nevertheless possible to derive from case-law the general principle that recourse is to be had to Article 308 EC as
the legal basis for the creation of legal institutions or legal forms governed by Community law.

68.      Academic writers have observed that the creation of new rights in the intellectual property field is just one possible example
of the creation of new legal forms governed by Community law. Furthermore, the vast majority ([17](#Footnote17)) take the view that by the same token the creation of a European form of company may not be achieved by way of a measure based
on Article 95 EC. One example given is the European public limited company (SE). ([18](#Footnote18))

69.      The counter-argument put forward by the Parliament, that the case-law relates to intellectual property law and that this has
special status because of Article 295 EC, is not tenable.

70.      First, Article 295 EC does not just cover intangible rights such as trade marks. Second, that provision itself has only limited
significance in that area: ([19](#Footnote19)) thus the corresponding exercise of proprietary rights, for instance, is undeniably governed by the Treaty, that is to say
by the other provisions of primary law.

71.      It is not possible, with regard to the admissibility of the legal basis, to derive from case-law any clear distinction between
harmonisation in the sense of reducing disparities, on the one hand, and the creation of new legal forms, on the other. As
the Parliament rightly states, the new legal framework created by the regulation at issue also helps to reduce disparities
by virtue of the fact that the Member States adhere to those uniform Community rules.

72.      The opposite view, ([20](#Footnote20)) according to which Article 95 EC can also apply to the creation of new legal forms, is based inter alia on the argument that
this provision permits the legal form of a regulation as well as that of a directive. That can of course be countered by the
argument that the admissibility of a regulation as the legal form does not necessarily mean that the creation of new Community
legal forms is also permissible under that provision, because regulations are also necessary in order to achieve other aims
such as, for example, replacing national law on cooperative societies with a uniform Community law on cooperative societies,
without any new Community legal form being added.

73.      Whilst the creation of new Community legal forms alongside national legal forms is not therefore covered by Article 95 EC,
the legal position is not as clear in the case of legal forms that are not independent of national legislation ([21](#Footnote21)) or in the case of legal rights that are afforded protection independently of national law. ([22](#Footnote22)) It is not finally established, in particular, where the dividing line runs between genuine or completely new legal forms
and those new legal forms to which national law also applies.

74.      The question whether Article 95 EC forms the proper legal basis must therefore always be examined in the light of the particular
measure concerned, in this case in the light of the regulation at issue. It is therefore necessary to consider, in particular,
into which of the two aforementioned categories of newly created legal forms the SCE falls.

b)      Assessment of the acceptability of Article 95 EC as the legal basis for the regulation in particular

75.      In assessing the SCE it should first be noted that its classification, in the sense of its description, cannot be decisive.
It is therefore not necessary to ascertain whether an SCE is really a ‘national company with a European character’, as alleged
by the Commission and Parliament. Moreover, academic writers have tended to take rather the view that it is a pan-European
form of company, ([23](#Footnote23)) a European legal form, ([24](#Footnote24)) a legal person governed by European Community law ([25](#Footnote25)) or a supranational business structure. ([26](#Footnote26)) What is vital, therefore, is the legislative content of the regulation.

76.      As with the above general examination of whether Article 95 EC permits the creation of new legal forms in general, legal examination
of the regulation at issue must also be conducted in the light of the Court’s case-law.

77.      The Court considered that for an assessment of the admissibility of the legal basis chosen for the measure relating to the
creation of a right, what was decisive was that the ‘patents to be issued under the Directive are national patents, issued
in accordance with the procedures applicable in the Member States … As the creation of a Community patent is neither the purpose
nor the effect of the Directive, it does not introduce a new right which would require recourse to the legal basis afforded
by Article 235 of the Treaty’. ([27](#Footnote27))

78.      In contrast to those rights, the cooperative societies constituted under the regulation at issue are not national cooperative
societies constituted under national law, but cooperative societies constituted under the relevant provisions of the regulation.

79.      Valuable assistance is given in this context by the fourteenth recital in the preamble to the regulation, where mention is
made of the ‘specific Community character’ of an SCE.

80.      The Community legislature makes this even more apparent in the twelfth recital, where express mention is made of ‘the introduction
of a European legal form for cooperatives, based on common principles but taking account of their specific features …’.

81.      Nor is it disputed by the Parliament that the regulation does, in any event, create a new legal form. It is therefore necessary
to consider what arguments might support recourse to Article 95 EC as the legal basis despite the classification of the SCE
as a new legal form.

c)      Arguments for recourse to Article 95 EC

82.      A possible argument in support of recourse to Article 95 EC as the legal basis might be that the regulation does not contain
a complete legal framework or, as expressed by the Parliament, that an SCE can only exist in conjunction with national law.

83.      An SCE is indeed an entity in its own right compared to cooperative societies under national law. However, that is only clear
at most in the formal context. It is not as clear in the material context because national legislation on cooperative societies
also applies to an SCE.

84.      The regulation makes various references to national law and affords it application in wide areas relating to an SCE, ([28](#Footnote28)) as regards for instance the conditions on registration (Article 11), publication of documents (Article 12) and the provisions
on mergers (Article 28).

85.      It is therefore true to say that the regulation provides for many aspects by reference to national law. However, it contains
one express provision that clearly sets out the ranking order of the law applicable: Article 8 clearly accords priority to
the regulation. ([29](#Footnote29))

86.      Large parts of the regulation, certainly, contain genuinely new provisions. This applies primarily to the provisions governing
the formation of an SCE, namely formation *ex nihilo*, that is to say the formation of a new structure without the merger or conversion of existing legal persons. ([30](#Footnote30))

87.      The new legal form of an SCE was created by the regulation at issue. As the Council and the Parliament agree, the regulation
therefore creates a Community structure in parallel with national structures.

88.      Article 9, in particular, makes it clear that an SCE exists alongside the national legal forms of cooperative society. Under
that provision an SCE is in principle to be treated in the same way as if it were a cooperative formed in accordance with
the law of the Member State in which it has its registered office.

89.      The provisions of the regulation therefore apply in addition to those of national law. This means that, despite occasional
references to national law, an SCE is to be considered a genuinely new creation. However, the result is that Article 95 EC
is not an adequate legal basis. ([31](#Footnote31))

90.      It should be noted, finally, that national law on cooperative societies is not affected by the regulation. The legal form
of an SCE certainly does not replace the legal forms which exist in national law on cooperative societies, but is distinct
from them and exists alongside them. ([32](#Footnote32))

91.      The argument that Article 95 EC permits only the adoption of measures which a Member State could also adopt has also been
used in the present proceedings, and such reasoning is to be found in various guises in the legal literature. ([33](#Footnote33))

92.      The Parliament takes the view, in particular, that the approximation of laws can also consist in overcoming obstacles resulting
from the fact that the laws of the Member States have limited territorial effect. The Parliament attempts to use this as a
basis for saying that Article 95 EC also permits the creation of new structures throughout the entire Community.

93.      The view taken by the Parliament that it is not possible, by definition, to surmount obstacles arising from the limited territorial
scope of national law by way of measures adopted by one Member State alone is correct.

94.      To clarify the situation, however, it should be noted that the issue is not whether an individual Member State can adopt a
measure with the same content and the same effects. What matters is the division of powers, which reflects the basic notion
that the power to approximate laws is to be classed as a co‑existing power.

95.      In order to avoid any misunderstanding, therefore, it is better to talk of power with regard to certain matters ([34](#Footnote34)) or in a particular area ([35](#Footnote35)) rather than power to adopt measures with the same content. In these proceedings, however, that does not mean power to adopt
provisions of law governing cooperative societies, but more specifically the power to create a Community‑wide legal form in
the field of cooperative-society law.

96.      The argument put forward by the Parliament that Article 95 EC permits the creation of new structures if the result is that
obstacles resulting from the limited territorial scope of national law are overcome can be countered by the argument that
although it might be correct to say that Article 95 EC also enables territorial limits on the law of the Member States to
be overcome this does not mean that Article 95 EC also encompasses all legal measures by which such limits can be overcome
(e.g. regulations of any content). This is certainly not clear, in particular with regard to the creation of Community‑wide
structures. ([36](#Footnote36)) On the contrary: the creation of these structures, such as the creation of new forms under company law such as the SCE, is
in essence the creation of something new. That is the essential feature of the regulation on the SCE. The aim that it pursues
is secondary.

97.      It is not denied here that certain results can only be achieved by the creation of Community-wide structures. However, this
does not mean that measures which are intended to achieve such results can be based on Article 95 EC. When construing this
legal basis – and therefore the question of its admissibility – the sole criterion cannot therefore be whether a measure merely
pursues some aim in relation to the approximation of laws. It is also incorrect to conclude from that aim that automatically
any manner of its pursuit, i.e. any measure at all, is permitted on that legal basis.

98.      It should be stressed again here that Article 95 EC is just one of the legal bases on which the approximation of laws can
be pursued. The fact that Community-wide structures can only be established by means of Community law does not necessarily
mean that Article 95 EC must immediately be taken as the specific legal basis. The fact is that certain aims, such as the
creation of new Community legal forms, for instance, can only be achieved by recourse to Article 308 EC.

C –    *Conclusion*

99.      As the regulation at issue could not be based on Article 95 EC, and as the other conditions for the application of Article
308 EC are also satisfied, Article 308 EC is the proper legal basis.

VI –  **Continuation in force**

100. As, in my view, the regulation should not be annulled it would be superfluous to go any further into the question of its continuation
in force.

VII –  **Costs**

101. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Parliament
has been unsuccessful, it must be ordered to pay the costs. Under Article 69(4) of the Rules of Procedure, the Kingdom of
Spain, the United Kingdom of Great Britain and Northern Ireland and the Commission, as interveners, are to bear their own
costs.

VIII –  **Conclusion**

102. In the light of the foregoing I propose that the Court of Justice should:

1.      dismiss the Parliament’s application as unfounded;

2.      order the Parliament to pay the costs;

3.      order the Kingdom of Spain, the United Kingdom of Great Britain and Northern Ireland and the Commission to each pay their
own costs.

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[1](#Footref1) Original language: German

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[2](#Footref2) – OJ 2003 L 207, p. 1.

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[3](#Footref3) – COM(91) 273 final (OJ 1992 C 99, p. 14).

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[4](#Footref4) – COM(93) 252 final (OJ 1993 C 236, p. 17).

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[5](#Footref5) – COM(93) 570 final and SEC(99) 581 final.

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[6](#Footref6) – Case 45/86 *Commission* v *Council* [1987] ECR 1493, paragraph 11, and Case C‑300/89 *Commission* v *Council* [1991] ECR I-2867, paragraph 10.

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[7](#Footref7) – Case 45/86 (cited in footnote 6), paragraph 13, Case C‑295/90 *Parliament* v *Council* [1992] ECR I-4193, paragraph 11, Case C‑350/92 *Spain* v *Council* [1995] ECR I-1985, paragraph 26, and Case C‑15/00 *Commission* v *EIB* [2003] ECR I-7281.

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[8](#Footref8) – Case C‑70/88 *Parliament* v *Council* [1991] ECR I-4529, paragraph 17, and Case C‑155/91 *Commission* v *Council* [1993] ECR I-939, paragraph 19.

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[9](#Footref9) – Deckert/Lilienthal, ‘Die Rechtsetzungskompetenzen der EG im Privatrecht’, *Europäisches Wirtschafts- & Steuerrecht 1999*, 121 (123 et seq.); Troberg/Tiedje, *Paragraph 27 on Article 44*; contra Trüe, *Das System der Rechtsetzungskompetenzen der Europäischen Gemeinschaft und der Europäischen Union*, 2002, 231 et seq.

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[10](#Footref10) – Case C‑491/01 *BAT* [2002] ECR I-11453, paragraph 60.

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[11](#Footref11) – Case C‑491/01 (cited in footnote 10), paragraph 60, and Case C‑210/03 *Swedish Match* [2004] ECR I‑11893.

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[12](#Footref12) – Wahlers, ‘Art. 100a EWGV – Unzulässige Rechtsgrundlage für den geänderten Vorschlag einer Verordnung über das Statut der
Europäischen Aktiengesellschaft?’, *Aktiengesellschaft 1990*, 448 (451).

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[13](#Footref13) – Trüe (cited in footnote 9), 205 and 208. See also Case C‑9/93 *IHT* [1994] ECR I-2789, paragraph 58.

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[14](#Footref14) – Case C‑350/92 (cited in footnote 7), paragraph 35, Case C‑376/98 *Germany* v *Parliament and Council* [2000] ECR I-8419, paragraph 86, Case C‑377/98 *Netherlands* v *Parliament and Council* [2001] ECR I-7079, paragraph 15, and Case C‑491/01 (cited in footnote 10), paragraph 61.

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[15](#Footref15) – Opinion 1/94 [1994] ECR I-5267, paragraph 59, Case C‑350/92 (cited in footnote 7), paragraphs 23 and 27, and Case C‑377/98
(cited in footnote 14), paragraph 24.

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[16](#Footref16) – OJ 1994 L 11, p. 1.

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[17](#Footref17) – Dashwood. ‘The Limits of European Community Powers’, *European Law Review 1996*, 113 (120); Müller-Graff, ‘Die Rechtsangleichung zur Verwirklichung des Binnenmarktes’, *Europarecht 1989*, 107 (129); see also Tietje, in Grabitz/Hilf, *Kommentar*, ‘Art. 95 EGV’, paragraph 52.

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[18](#Footref18) – Herrnfeld, Schwarze (Hrsg.), *EU-Kommentar*, ‘Artikel 95 EGV’, paragraph 23; Schwartz, ‘30 Jahre EG-Rechtsangleichung’, in *Eine Ordnungspolitik für Europa, Festschrift von der Groeben*, 1987, 330 (365); Tietje (cited in footnote 17), paragraph  52.

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[19](#Footref19) – Joined Cases C‑92/92 and C‑326/92 *Collins and Patricia Im- und Export/Imtrat and EMI Electrola* [1993] ECR I-5145.

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[20](#Footref20) – See Pipkorn/Bardenhewer-Rating/Taschner, von der Groeben/Schwarze (Hrsg.), *EU‑/EG-Vertrag Kommentar*, 6th edition, ‘Artikel 95 EG’, paragraph  41, and Leible, Streinz/Ohler/Burgi (Hrsg.), *EUV/EGV: Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft*, 2003, ‘Art. 95 EGV’, paragraph  29, which support the Commission’s point of view. See Trüe (cited in footnote 9), 268, which
does, however, give preference to Article 44 EC in relation to particular aspects, especially supplementation by national
law.

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[21](#Footref21) – See Ehlermann, ‘The Internal Market Following the Single European Act’, *Common Market Law Review 1987*, 361 (385).

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[22](#Footref22) – Arnull/Dashwood/Ross/Wyatt, *European Union Law*, 4th edition, 2000, 521.

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[23](#Footref23) – Snaith, ‘Das anwendbare Recht’, in Reiner Schulze (eds.), *Europäische Genossenschaft*, 2004, 25.

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[24](#Footref24) – Reiner Schulze, ‘Einführung: Die Verordnung über das Statut der Europäischen Genossenschaft (SCE)’, in Reiner Schulze (eds.),
*Europäische Genossenschaft*, 2004, 1 (2); Wahlers (cited in footnote 12), 451.

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[25](#Footref25) – Schulze (cited in footnote 24), 4.

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[26](#Footref26) – Snaith (cited in footnote 23), 19 (38).

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[27](#Footref27) – Case C‑377/98 (cited in footnote 14), paragraph 25.

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[28](#Footref28) – Snaith (cited in footnote 23), 40 et seq.

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[29](#Footref29) – Also mentioned by Snaith (cited in footnote 23), 19.

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[30](#Footref30) – Parléani, ‘Le règlement relatif à la société coopérative européenne, et la subtile articulation du droit communautaire
et des droits nationaux’, *Revue des sociétés* 2004, 74 (87).

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[31](#Footref31) – See Wahlers (cited in footnote 12), 454.

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[32](#Footref32) – Schulze (cited in footnote 24), 1.

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[33](#Footref33) – Dashwood (cited in footnote 17), 120; Deckert/Lilienthal (cited in footnote 9), 128; Müller-Graff (cited in footnote 17),
129; Wahlers (cited in footnote 12), 453; Arnull/Dashwood/Ross/Wyatt (cited in footnote 22), 521.

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See *contra* those authors who work (or have worked) at the Commission, Pipkorn/Bardenhewer-Rating/Taschner (cited in footnote 20), paragraph
 40.

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[34](#Footref34) – Dashwood (cited in footnote 17), 120.

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[35](#Footref35) – Trüe (cited in footnote 9), 217, although he does not in principle consider this criterion appropriate.

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[36](#Footref36) – See Pipkorn/Bardenhewer-Rating/Taschner (cited in footnote 20), paragraph 40, and Leible (cited in footnote 20), paragraph
29, regarding proprietary rights. *Contra* Herrnfeld (cited in footnote 18), paragraph 22.

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