Ireland v European Parliament and Council of the European Union.
Date: 2009-02-10
60. According to the Court’s settled case-law, the choice of legal basis for a Community measure must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the measure (see Case C-440/05 Commission  v Council  [2007] ECR I‑9097, paragraph 61 and the case-law cited).
63. The Community legislature may have recourse to Article 95 EC in particular where disparities exist between national rules which are such as to obstruct the fundamental freedoms or to create distortions of competition and thus have a direct effect on the functioning of the internal market (see, to that effect, Case C‑380/03 Germany  v Parliament and Council  [2006] ECR I-11573, paragraph 37 and the case-law cited).
64. Furthermore, although 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 the divergent development of national laws, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them ( Germany v Parliament and Council , paragraph 38 and the case-law cited).
72. Such a situation justified the Community legislature in pursuing the objective of safeguarding the proper functioning of the internal market through the adoption of harmonised rules.
75. Under Article 47 EU, none of the provisions of the EC Treaty may be affected by a provision of the EU Treaty. That requirement appears in the first paragraph of Article 29 EU, which introduces Title VI of the EU Treaty, entitled ‘Provisions on police and judicial cooperation in criminal matters’ (Case C-440/05 Commission  v Council , paragraph 52).
76. In providing that nothing in the EU Treaty is to affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them, Article 47 EU aims, in accordance with the fifth indent of Article 2 EU and the first paragraph of Article 3 EU, to maintain and build on the acquis communautaire  (Case C-91/05 Commission  v Council  [2008] ECR I-0000, paragraph 59).
77. It is the task of the Court to ensure that acts which, according to one party, fall within the scope of Title VI of the Treaty on European Union and which, by their nature, are capable of having legal effects, do not encroach upon the powers conferred by the EC Treaty on the Community (Case C-91/05 Commission  v Council , paragraph 33 and the case-law cited).
87. In paragraph 68 of the judgment in Parliament v Council and Commission , the Court held that that agreement related to the same transfer of data as did Commission Decision 2004/535/EC of 14 May 2004 on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection (OJ 2004 L 235, p. 11).
88. The latter decision concerned the transfer of passenger data from the reservation systems of air carriers situated in the territory of the Member States to the United States Department of Homeland Security, Bureau of Customs and Border Protection. The Court held that that the subject-matter of that decision was data-processing which was not necessary for a supply of services by the air carriers, but which was regarded as necessary for safeguarding public security and for law-enforcement purposes. In paragraphs 57 to 59 of the judgment in Parliament  v Council and Commission , the Court held that such data-processing was covered by Article 3(2) of Directive 95/46, according to which that directive does not apply, in particular, to the processing of personal data relating to public security and the activities of the State in areas of criminal law. The Court accordingly concluded that Decision 2004/535 did not fall within the scope of Directive 95/46.
89. Since the agreement which was the subject of Directive 2004/496 related, in the same way as Decision 2004/535, to data-processing which was excluded from the scope of Directive 95/46, the Court held that Decision 2004/496 could not have been validly adopted on the basis of Article 95 EC ( Parliament  v Council and Commission , paragraphs 68 and 69).