United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union.
Date: 2006-05-02
42. As regards the scope of the legislative powers laid down in Article 95 EC it must be observed that, as the Court held in paragraph 44 of the judgment in Case C-66/04 United Kingdom v Parliament and Council  [2005] ECR I-0000, that provision is used as a legal basis only where it is actually and objectively apparent from the legal act that its purpose is to improve the conditions for the establishment and functioning of the internal market.
43. The Court also pointed out in paragraph 45 of that judgment that by using the expression ‘measures for the approximation’ in Article 95 EC the authors of the Treaty intended to confer on the Community legislature a discretion, depending on the general context and the specific circumstances of the matter to be harmonised, as regards the method of approximation most appropriate for achieving the desired result, in particular in fields with complex technical features.
44. It must be added in that regard that nothing in the wording of Article 95 EC implies that the addressees of the measures adopted by the Community legislature on the basis of that provision can only be the individual Member States. The legislature may deem it necessary to provide for the establishment of a Community body responsible for contributing to the implementation of a process of harmonisation in situations where, in order to facilitate the uniform implementation and application of acts based on that provision, the adoption of non-binding supporting and framework measures seems appropriate.
60. In the light of the characteristics of the subject-matter, the regulation does not constitute an isolated measure but forms part of a normative context circumscribed by the Framework Directive and the specific directives and directed at completing the internal market in the area of electronic communications.
61. All the elements in the case-file also tend to show that the Community legislature was confronted with an area in which technology is being implemented which is not only complex but also developing rapidly. It concluded from this that it was foreseeable that the transposition and application of the Framework Directive and the specific directives would lead to differences as between the Member States.
62. Accordingly, the Community legislature considered that the establishment of a Community body such as the Agency was an appropriate means of preventing the emergence of disparities likely to create obstacles to the smooth functioning of the internal market in the area.
63. It is stated in recitals 3 and 10 in the preamble to the regulation that the Community legislature considers that, as a result of 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’, the smooth functioning of the internal market risks being undermined by a heterogeneous application of the technical requirements laid down in the Framework Directive and the specific directives.
64. In that context, the Community legislature was entitled to consider that the opinion of an independent authority providing technical advice at the request of the Commission and the Member States might facilitate the transposition of the directives at issue into the laws of the Member States and the implementation of those directives at national level.