ENISA, legal base and Case C-217/04

In this case - C-217/04 United Kingdom v. European Parliament and Council - the Court of Justice upholds Article 95 EC as the correct legal base for Regulation (EC) No 460/2004 of the European Parliament and of the Council of March 10th 2004 establishing the European Network and Information Security Agency (based in Heraklion, Greece).

That regulation, adopted on the basis of Article 95 EC, establishes a European Network and Information Security Agency (‘the Agency’). The role of the Agency is to ‘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 of the European Parliament and of the Council of March 7th 2002 on a common regulatory framework for electronic communications networks and services .

The United Kingdom brought an action to annul the regulation on the ground that Article 95 EC does not provide an appropriate legal basis for its adoption. According to the United Kingdom, the power conferred on the Community legislature by Article 95 EC is the power to harmonize national laws and not one which is aimed at setting up Community bodies and conferring tasks upon them.

The Court disagreed. It held that the regulation was correctly based on Article 95 EC. It made some interesting general statements about Article 95 EC as a legal base. It recalled that it had already held in Case C-66/04 United Kingdom v Parliament and Council that Article 95 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. The expression ‘measures for the approximation’ in Article 95 EC was intended by the authors of the Treaty to confer on the Community legislature a discretion as regards the method of approximation most appropriate for achieving the desired result. (see our previous post on Case C-66/04).

Interestingly, in this case, the Court adds:

"...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.

It must be emphasised, however, that the tasks conferred on such a body must be closely linked to the subject-matter of the acts approximating the laws, regulations and administrative provisions of the Member States. Such is the case in particular where the Community body thus established provides services to national authorities and/or operators which affect the homogenous implementation of harmonising instruments and which are likely to facilitate their application."

On the line between Article 95 and Article 308 EC, see this post discussing Case C-436/03.

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The United Kingdom brought an action to annul the regulation on the ground that Article 95 EC does not provide an appropriate legal basis for its adoption.

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