(Actions for annulment – Regulation (EC) No 1435/2003 – European Cooperative Society (SCE) – Choice of legal basis – Article 95 EC – Article 308 EC)

Summary of the Judgment

Acts of the institutions – Choice of legal basis – Criteria – Article 308 EC – Limits

(Art. 95 EC and 308 EC; Council Regulation No 1435/2003)

The appropriate legal basis on which an act must be adopted should be determined according to its content and main object.

In that regard, Article 308 EC may be used as the legal basis for a measure only where no other provision of the Treaty gives the Community institutions the necessary power to adopt it. Article 95 EC empowers the Community legislature to adopt measures to improve the conditions for the establishment and functioning of the internal market and they must genuinely have that object, contributing to the elimination of obstacles to the economic freedoms guaranteed by the Treaty, which include the freedom of establishment. Recourse that article as a legal basis is also possible if the aim is to prevent the emergence of obstacles to trade resulting from heterogeneous development of national laws; the emergence of such obstacles must, however, be likely and the measure in question must be designed to prevent them.

Regulation No 1435/2003 on the Statute for a European Cooperative Society (SCE) aims to introduce a new legal form in addition to the national forms of cooperative societies, since the SCE must be considered to be a European legal form for cooperative societies which has specific Community character. The legal form of the SCE is governed first and foremost by that regulation, the conditions of its formation are specific to that form of society, and the possibility of transferring its registered office from one Member State to another, without that resulting in the winding-up of the SCE or in the creation of a new legal person is also specific to the SCE. In addition, the European cooperative society is a form which coexists with cooperative societies under national law.

In those circumstances, that regulation, which leaves unchanged the different national laws already in existence, cannot be regarded as aiming to approximate the laws of the Member States applicable to cooperative societies. Consequently, Article 95 EC could not constitute an appropriate legal basis for the adoption of the regulation, which was thus correctly adopted on the basis of Article 308 EC.

(see paras 35-36, 38-44, 46)

2 May 2006 (*)

(Action for annulment – Regulation (EC) No 1435/2003 – European Cooperative Society (SCE) – Choice of legal basis – Article 95 EC – Article 308 EC)

In Case C-436/03,

ACTION for annulment under Article 230 EC, brought on 14 October 2003,

European Parliament, represented initially by J.L. Rufas Quintana and E. Waldherr and subsequently by the latter and R. Passos, acting as Agents, with an address for service in Luxembourg,

applicant,

supported by

Commission of the European Communities, represented initially by C. Schmidt and subsequently by J.-F. Pasquier, acting as Agents, with an address for service in Luxembourg,

intervener,

Council of the European Union, represented by J.-P. Jacqué and M.C. Giorgi Fort, acting as Agents,

defendant,

supported by

Kingdom of Spain, represented by E. Braquehais Conesa, acting as Agent, with an address for service in Luxembourg,

United Kingdom of Great Britain and Northern Ireland, represented by R. Caudwell, acting as Agent, as well as Lord Goldsmith and N. Paines QC, with an address for service in Luxembourg,

interveners,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and J. Makarczyk, Presidents of Chambers, J.‑P. Puissochet (Rapporteur), R. Schintgen, J. Klučka, U. Lõhmus, E. Levits and A. Ó Caoimh, Judges,

Advocate General: C. Stix-Hackl,

Registrar: R. Grass,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 12 July 2005,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

ECLI:EU:C:2025:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

In that regard, the Parliament points out that the diversity of the various company laws of the Member States hinders the activities of cooperative societies, in particular as regards the transfer of their registered offices and cross-border mergers.

20The Parliament also considers that there is nothing standing in the way of a regulation having Article 95 EC as its legal basis. Thus, the approximation of the laws of the Member States may also be carried out by supplementing national law by creating European legal forms. In the case of the SCE, approximation of the laws of the Member States is necessary in order to create and manage cross-border cooperatives.

21The Parliament adds that the concept of ‘approximation’ in Article 95 EC encompasses not only measures seeking to remove barriers resulting from the disparity of the different national legal orders but also measures aimed at overcoming the territorial boundaries of the national legal orders in so far as necessary for the establishment and functioning of the internal market.

22In that regard, the Parliament rejects the Council’s argument that an approximation measure necessarily implies substitution, whether total or partial, for the national provisions. The Court has also held that the convergence of the laws of the Member States, which is the purpose of Article 95 EC, may be implemented even in the absence of legislation in a particular area in certain Member States (Case C-377/98 Netherlands v Parliament and Council [2001] ECR I-7079, paragraph 15).

23The same applies to the Council’s argument that a prerequisite for approximating laws is that a Member State has power to adopt provisions in the area with the same effects as an approximation. According to the Parliament, that condition cannot be inferred from Article 95 EC, particularly because a Member State cannot, by itself, achieve the same results as an approximation of laws.

24The Parliament also points out that Article 308 EC does not constitute an appropriate legal basis for the adoption of the contested regulation since recourse to that provision is, inter alia, subject to the condition that no other specific power to take action is provided for in the EC Treaty to attain the desired objective. That is not the case here.

25The creation of a European cooperative society cannot be treated as the creation of a new right which exists in addition to national rights, as is the case in the context of intellectual property (see, in particular, Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), and Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1)). The Parliament also submits that those regulations, which are based on Article 308 EC, introduced Community administrative bodies with legal personality and financial and administrative autonomy, which is not the case with the contested regulation.

26The European cooperative society is not a new form of company divorced from the laws of the Member States, as the contested regulation does not provide for exhaustive organisation of that form of association but merely regulates its structure, by systematically referring to the law applicable in the Member State in which its registered office is located.

27The Commission, as intervener, submits the same argument as that defended by the Parliament. It also submits that the concept of ‘harmonisation’ in Article 95 EC is a broad one.

28According to the Commission, the contested regulation seeks to improve the conditions for the establishment and functioning of the internal market by contributing to the removal of barriers to the free movement of services by introducing a European legal form which allows cooperative societies to operate beyond national borders. In the present case, the specific community character of the statute for the European cooperative society complements the various national statutes for cooperatives and aims to facilitate the development of their cross-border activities.

29The Council considers, for its part, that the contested regulation creates a new legal form, of a European dimension, additional to cooperative societies under national law.

30It adds that the mere fact that a Community act is aimed at the establishment and functioning of the internal market is not sufficient to warrant the use of Article 95 EC as the necessary legal basis. Article 14 EC specifies that Article 95 EC is only one of several provisions which aim to complete the internal market.

31In order for an act to be based on Article 95 EC it has to approximate national laws and aim to remove the barriers which the divergence and/or limited territorial effect of national provisions set in the way of the attainment of the objectives of the Treaty.

32The Council contends that a harmonisation measure must necessarily lead to a result which it would have been possible to achieve by simultaneously adopting identical legislation in each Member State. In the present case, no Member State individually had the authority to establish a statute such as the one laid down in the contested regulation.

33Consequently, and in the absence of another suitable provision, Article 308 EC is the only provision which could have been used as the legal basis for the contested regulation.

34The Kingdom of Spain and the United Kingdom Government, as interveners, also consider that the European cooperative society is a new legal form. The contested regulation should, therefore, have been adopted on the basis of Article 308 EC.

Findings of the Court

35The appropriate legal basis on which an act must be adopted should be determined according to its content and main object (see, in particular, Case C-155/91 Commission v Council [1993] ECR I-939, paragraphs 19 to 21, and Netherlands v Parliament and Council, paragraph 27).

36In that regard, Article 308 EC may be used as the legal basis for a measure only where no other provision of the Treaty gives the Community institutions the necessary power to adopt it (Case 45/86 Commission v Council [1987] ECR 1493, paragraph 13, and Case C-350/92 Spain v Council [1995] ECR I-1985, paragraph 26).

37Thus, the Court has already held that the Community may use Article 308 EC as the basis for creating new intellectual property rights in addition to national rights (see Opinion 1/94 [1994] ECR I-5267, paragraph 59; Spain v Council, paragraphs 23 and 27; and Netherlands v Parliament and Council, paragraph 24). Recourse to Article 308 EC as a legal basis is, by contrast, excluded where the Community act in question does not provide for the introduction of a new protective right at Community level, but merely harmonises the rules laid down in the laws of the Member States for granting and protecting that right (Netherlands v Parliament and Council, paragraph 25).

38Article 95 EC empowers the Community legislature to adopt measures to improve the conditions for the establishment and functioning of the internal market and they must genuinely have that object, contributing to the elimination of obstacles to the economic freedoms guaranteed by the Treaty, which include the freedom of establishment (see, in particular, Case C-376/98 Germany v Parliament and Council [2000] ECR I-8419, paragraphs 83, 84 and 95, and Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453, paragraph 60).

39Recourse to Article 95 EC as a legal basis is also possible if the aim is to prevent the emergence of obstacles to trade resulting from heterogeneous development of national laws; the emergence of such obstacles must, however, be likely and the measure in question must be designed to prevent them (see, to that effect, Spain v Council, paragraph 35; Germany v Parliament and Council, paragraph 86; Netherlands v Parliament and Council, paragraph 15; and British American Tobacco (Investments) and Imperial Tobacco, paragraph 61).

40In the present case, it is apparent from the content and the purpose of the contested regulation that it aims to introduce a new legal form in addition to the national forms of cooperative societies, as is also indicated in recitals 12 and 14 in the preamble to the contested regulation, according to which the European cooperative society must be considered to be a European legal form for cooperative societies which has specific Community character.

41The legal form of the European cooperative society is, in accordance with Article 8(1)(a) of the contested regulation, governed first and foremost by that regulation. Article 8(1)(b) thereof provides that the European cooperative society may also be governed by its statutes where expressly authorised by the contested regulation. It is merely in the alternative, in the case of matters not regulated by the regulation or by the statutes of the European cooperative society, that Article 8(1)(c) of the regulation refers, inter alia, to the law of the Member State in the territory of which the European cooperative society has its registered office.

42In addition, the conditions of formation of a European cooperative society, which are laid down in Article 2 of the contested regulation, are specific to that form of society. The possibility of transferring its registered office from one Member State to another, without that resulting in the winding-up of the SCE or in the creation of a new legal person, as laid down in Article 7 of the contested regulation, is also specific to the European cooperative society.

43Finally, it is apparent from the provisions in Article 9 of the contested regulation, pursuant to which a European cooperative society 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 seat, that the European cooperative society is a form which coexists with cooperative societies under national law.

44In those circumstances, the contested regulation, which leaves unchanged the different national laws already in existence, cannot be regarded as aiming to approximate the laws of the Member States applicable to cooperative societies, but has as its purpose the creation of a new form of cooperative society in addition to the national forms.

45That finding is not affected by the fact that the contested regulation does not lay down exhaustively all of the rules applicable to European cooperative societies and that, for certain matters, it refers to the law of the Member State in the territory of which the European cooperative society has its registered office, since, as pointed out above, that referral is of a subsidiary nature.

46It follows from the above that Article 95 EC could not constitute an appropriate legal basis for the adoption of the contested regulation, which was correctly adopted on the basis of Article 308 EC.

47As the sole plea is unfounded, the action must be dismissed.

Costs

48Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council applied for the Parliament to pay the costs and the latter has been unsuccessful, it must be ordered to pay the costs. In accordance with Article 69(4) of those rules, the Kingdom of Spain, the United Kingdom and the Commission, as interveners, are to bear their own costs.

On those grounds, the Court (Grand Chamber) hereby:

Dismisses the action;

Orders the European Parliament to pay the costs;

Orders the Kingdom of Spain, the United Kingdom of Great Britain and Northern Ireland and the Commission of the European Communities to bear their own costs.

[Signatures]

*

Language of the case: French