CELEX: C2003/289/31
Language: en
Date: 2003-11-29 00:00:00
Title: Case C-436/03: Action brought on 15 October 2003 by the European Parliament against the Council of the European Union

C 289/16              EN                         Official Journal of the European Union                                       29.11.2003
Action brought on 15 October 2003 by the European                        The concept of ‘approximation of the provisions laid down by
  Parliament against the Council of the European Union                   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
                        (Case C-436/03)                                  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
                        (2003/C 289/31)                                  of the internal market.
                                                                         (1) OJ 2003 L 207, p. 1.
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.
                                                                         Action brought on 16 October 2003 by the Commission
The European Parliament claims that the Court should:                    of the European Communities against the Federal Repub-
                                                                                                   lic of Germany
1.    annul Council Regulation (EC) No 1435/2003 of 22 July
      2003 on the Statute for a European Cooperative                                              (Case C-440/03)
      Society (1);
                                                                                                  (2003/C 289/32)
2.    maintain the same in force until relevant new legislation
      comes into force, adopted within a reasonable period on
      the proper legal basis;
                                                                         An action against the Federal Republic of Germany was
3.    order the Council to pay the costs.                                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.
Pleas in law and main arguments
                                                                         The Commission claims that the Court should:
The Council adopted the contested regulation on the basis of             1.    declare that by failing — with the exception of provisions
Article 308 EC, which provides for a unanimous decision of                     of the Länder Saxony-Anhalt, Bavaria and Thuringia — to
the Council after consulting the European Parliament. How-                     adopt or to communicate to the Commission the laws,
ever, the regulation should have been based on Article 95 EC,                  regulations and administrative provisions necessary in
necessitating the codecision procedure under Article 251 EC,                   order to implement Directive 2000/9/EC of the European
as was indeed suggested by the Commission in its initial                       Parliament and of the Council of 20 March 2000 relating
proposal of 6 March 1992 and in its amended proposal of                        to cableway installations designed to carry persons (1), the
6 July 1993.                                                                   Federal Republic of Germany has failed to fulfil its
                                                                               obligations under that directive;
                                                                         2.    order the Federal Republic of Germany to pay the costs.
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-             Pleas in law and main arguments
tioning of the internal market. The European Cooperative
Society introduced by the contested regulation is not a
                                                                         The period for transposing the directive expired on 3 May
‘supranational’ instrument since it cannot be distinguished in
any way from the models of cooperatives existing in the                  2002 without all German Länder having adopted the necessary
                                                                         provisions.
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
                                                                         (1) OJ L 106, 3.5.2000, p. 21.
Cooperative Society is always subject to the domestic law of
each Member State, while having a Community framework to
facilitate cross-border management.