C-359/92

GERMANY v COUNCIL

OPINION OF ADVOCATE GENERAL JACOBS delivered on 8 June 1994 *

My Lords, laid down by law, regulation or administra­ tive action in Member States which have as their object the establishment and function­ ing of the internal market.

1. In this case, Germany challenges the validity of Article 9 of Council Direc­ tive 92/59/EEC of 29 June 1992 on general product safety 1 (hereafter 'the Directive'). The Directive was adopted under Arti­ cle 100a of the Treaty, as part of the Com­ munity's programme to complete the inter­ nal market by 31 December 1992. 3. The Commission, in its proposals envis­ aged in paragraph 1 concerning health, safety, environmental protection and con­ sumer protection, will take as a base a high level of protection.

2. Article 100a provides that:

5. The harmonization measures referred to '1 . ... The Council shall ... adopt the mea­ above shall, in appropriate cases, include a sures for the approximation of the provisions safeguard clause authorizing the Member States to take, for one or more of the non- economic reasons referred to in Article 36, * Original language: English. provisional measures subject to a Commu­ 1 — OJ 1992 L 228, p. 24. nity control procedure.'

... it may be necessary to cope with serious product-safety problems which affect or 5. According to the preamble, Member could affect, in the immediate future, all or a States must ensure that they have the power large part of the Community and which, in to organize the withdrawal of dangerous view of the nature of the safety problem products already placed on the market. The posed by the product cannot be dealt with Commission must moreover be informed of effectively in a manner commensurate with any measure restricting the placing on the the urgency of the problem under the proce­ market of a product or requiring its with­ dures laid down in the specific rules of Com­ drawal, except for measures with purely local munity law applicable to the products or cat­ effects. egory of products in question; ...

I - 3684

GERMANY v COUNCIL

'The purpose of the provisions of this Direc­ tive is to ensure that products placed on the market are safe.'

10. Title V of the Directive (Articles 8 to 12) is entitled 'Emergency situations and action at Community level'. Article 8 requires Article 1(2) provides that the Directive Member States to notify the Commission of applies in so far as there are no specific pro­ emergency measures being taken to prevent, visions of Community law governing the restrict or impose conditions on the market­ safety of the products concerned. ing or use of a product. The Commission in turn informs the other Member States, who inform the Commission of any measures 2 — OJ 19S7 L 197, p. 33. adopted.

I-3685

OPINION OF MR JACOBS — CASE C-359/92

11. Article 9, which it will be recalled is the product and in a manner compatible with provision contested in the present proceed­ the urgency of the case, under the other ings, provides as follows: procedures laid down by the specific Community legislation applicable to the product or category of products con­ cerned;

'If the Commission becomes aware, through notification given by the Member States or through information provided by them, in particular under Article 7 or Article 8, of the existence of a serious and immediate risk from a product to the health and safety of consumers in various Member States and if: and

GERMANY v COUNCIL

product concerned, withdrawing or destroy­ The grounds of annulment ing the product, or issuing appropriate notices or warnings.

14. The essence of the German Govern­ ment's case is that Article 100a of the Treaty provides no legal basis for a provision, such as Article 9, which gives the Commission the power to require the Member States to take certain forms of specific action. The German Government considers that, in view of the 12. Contrary to the views expressed by both action which can be required by a decision the German Government and the Council, it under Article 9, that provision is contrary to is doubtful whether Article 9 gives the Com­ the division of powers between the Commu­ mission any power to require Member States nity institutions and the Member States. to withdraw measures they have already taken. Similarly, where the Commission exercises its powers under Article 9, a Mem­ ber State does not appear to be precluded from introducing or maintaining more strin­ gent measures. In any event, however, it is clear that the measures taken must be com­ 15. In support of its contention that Arti­ patible with the Member State's obligations cle 9 of the Directive is invalid, the German under the Treaty, and in particular Arti­ Government relies upon three grounds. In cles 30 and 36. the first place, it submits that Article 9 does not come within the scope of the power, given by Article 100a(5) of the Treaty, to include a 'safeguard clause' in measures adopted under Article 100a; that is to say, a clause authorizing Member States to take provisional measures subject to a Commu­ 3 nity control procedure.

17. Finally, the German Government argues that Article 9 is in any event disproportion­ ate to the aim pursued, inasmuch as that aim could equally well be achieved by means which are less restrictive of Member States' 20. The scope of Article 100a(5) has not powers to regulate the sale of products on hitherto been considered by the Court. But their territory. it seems clear that Article 100a(5) does not give the Council any powers additional to those already enjoyed under Article 100a(1). For in requiring the Council to include, in appropriate cases, a safeguard clause autho­ rizing Member States to take provisional measures subject to a Community control procedure, Article 100a(5) does no more 18. I shall consider each of those submis­ than give formal recognition to a long­ sions in turn. standing practice of the Council in adopting harmonization measures under Article 100 of 4 the Treaty. Even though Article 100, unlike Article 100a, does not confer any express power to include safeguard clauses in harmo­ nization measures, there does not appear to be any doubt that the Council enjoyed such a power even before Article 100a was inserted into the Treaty by the Single Euro­ (1) The scope of Article 100a(5) pean Act. Such a power could of course only be used to permit Member States to take measures which are compatible with the Treaty.

4 — See Pipkorn, in Groeben/Thiesing/Ehlermann Kommentar zum EWG-Vertrag (4th edition, Baden-Baden 1991), 19. Despite the prominence given to it in the pp. 2867-2868; Ehlermann, 'The Internal Market following the Single European Act', Commnon Market Law Review 24 German Government's application, it seems (1987) pp. 361-409, at pp. 398-399.

Although Articles 6 and 9 of the directive provide that, following a Community proce­ dure, it will be possible to amend the list of undesirable substances on the basis of the development of scientific or technical knowl­ edge, it was however justified in also provid­ 'Where, in application of Article 100 of the ing for the means of remedying a lacuna in Treaty, Community directives provide for the harmonized legislation when a danger 7 the harmonization of the measures necessary requiring immediate action arises.' to ensure the protection of animal and human health and establish Community pro­ cedures to check that they are observed, recourse to Article 36 is no longer justified and the appropriate checks must be carried out and the measures of protection adopted 23. Clearly, a clause permitting Member States to take provisional measures in dero­ gation from the rules laid down by a direc­ tive will often be appropriate where the 5 — Council Directive 74/63/EEC of 17 December 1973 on the fixing of maximum permitted levels for undesirable sub­ stances and products in feedingstuffs (OJ 1974 L 38. p. 31), adopted under Articles 43 and 100 of the Treaty. 6 — Case 5/77 [1977] ECR 1555. 7 — See paragraphs 35 to 38 of the judgment.

I - 3689

OPINION OF MR JACOBS — CASE C-359/92

directive harmonizes provisions connected committee procedure. In other cases, with health or safety. For, in the absence of Member States are not only permitted to such a clause, the ability of a Member State withdraw a product from the market, but in to respond to emergency situations would be some circumstances are required to do so seriously impaired. Such a clause will be par­ even where the product conforms to the har­ ticularly appropriate where the directive monized standards which will normally enti­ aims at a high level of protection, as in the tle it to circulate freely; a procedure is then case of measures adopted under Arti­ provided for the revision of the harmonized cle 100a. 8 standards where they have been shown to be 1 inadequate. 1

I - 3690

GERMANY v COUNCIL

of such matters as voluntary national stan­ (2) The scope of Article 100a(1) dards giving effect to a European standard, and Community technical specifications.

12 — Compare Articles 4 and 5(1) of Directive 88/378 and Arti­ 30. There therefore can be no doubt that, as cles 4(2) and 6(1) of Directive 89/106, cited above in note . regards the objective pursued, Article 9 of

I-3691

OPINION OF MR JACOBS — CASE C-359/92

the Directive lies within the scope of Arti­ the German Government accepts, is not lim­ cle 100a, which as we have seen provides for ited to the harmonization of legislative pro­ the adoption of measures which have as their visions. Like Article 100, Article 100a refers object the establishment and functioning of expressly to the harmonization of adminis­ the internal market. The German Govern­ trative provisions as well as those laid down ment argues however that a decision taken by law or regulation. Thus harmonization under Article 9 cannot properly be described measures can include requirements that as a measure of harmonization; such a deci­ administrative authorities take certain forms sion would accordingly lie outside the scope of action, for instance the issuing of warn­ of Article 100a. ings or the withdrawal of certain kinds of product.

14 — See Council Directive 88/38S/EEC of 22 June 1988 on the approximation of the laws of the Member States relating to flavourings for use in foodstuffs and to source materials for their production (OJ 1988 L 184, p . 61), Article 4. 15 — See Articles 2 and 3 of Council Directive 89/107/EEC of 21 32. That argument cannot be accepted. In December 1988 on the approximation of the laws of the Member States concerning food additives authorized for the first place, it is clear that Article 100a, as use in foodstuffs intended for human consumption (OJ 1989 L 40, p. 27); Article 2 of Directive 88/344, cited above in note . 16 — See Article 4 of Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member 13 — See Case 16/88 Commission v Council [1989] ECR 3457, States relating to cosmetic products (OJ 1976 L 262, p . 169), paragraph 11 of the judgment. adopted under Article 100 of the Treaty.

I - 3692

GERMANY v COUNCIL

36. On the other hand, it seems to me that the German Government is correct to draw a distinction between harmonization measures, 35. The German Government attempts to on the one hand, and measures of applica­ distinguish provisions of the kind just men­ tion, on the other. It is one thing to lay down tioned from the provision at issue in the mies which must be uniformly applied in all present case. It points out that, unlike the Member States, another to take the decisions former kind of provision, Article 9 does not which apply the rules to individual cases. It enable the Commission to amend the terms is clear that, under certain provisions of the of the Directive in order to adapt it to tech­ Treaty, the Council may delegate to the nical progress. Rather, the German Govern­ Commission both the power to lay down ment suggests, the exercise of the powers rules and the power to take individual deci­ 19 sions. Article 100a, in contrast, is con­ cerned exclusively with the harmonization of 17 — Sec for example Articles 8(2) and 12(3) of Directive 76/768, national provisions. It follows that Arti­ cited in note 16, and see the Twelfth Commission Direc­ tive 90/121/EEC of 20 February 1990 adapting to technical cle 100a may be used only to adopt measures progress Annexes II, III, IV, V and VI to Council Direc­ which lay down uniform rules; the applica­ tive 76/76S/EEC (OJ 1990 L 71, p. 40), which was consid­ ered by the Court in Case C-212/91 Angelopharm, judg­ tion of those rules to individual cases is then ment given on 25 January 1994. a matter for the national authorities. 18 — As in the case of Directive S8/344, cited above in note (see Article 5). In the case of Directive 76/768, cited in note, there is both a general power to adapt the directive to tech­ nical progress (Article 8(2)) and a power to do so in the light of safeguard measures taken bv a Member State (Arti­ cle 12(3)). 19 — See Case 16/S8 Commission v Coimai, cited above in note .

37. As the Council points out, however, particular undertaking does not in itself pre­ decisions adopted under Article 9 of the vent the decision from being a harmoniza­ Directive are indeed measures which require tion measure, as long as its function is to har­ application by national authorities. The deci­ monize national provisions for the benefit of sions may of course be highly specific, in the internal market. that they may require the withdrawal of a particular product or product batch which has been found to be unsafe. None the less, it seems to me that they are accurately described as measures of harmonization. For the effect of a decision under Article 9 is to require each Member State to ensure that all instances of the product in question are withdrawn from the market. Thus a decision under Article 9 lays down a uniform rule 39. I cannot therefore accept that a decision which is to be applied by the authorities of taken under Article 9 would be the kind of the Member States. That, in my view, is suf­ measure which is inconsistent with the divi­ ficient to refute the German Government's sion of powers between the Community principal contention. institutions and the Member States. The Ger­ man Government suggested at the hearing that such a measure could not be taken by the German Federal authorities in relation to the Länder, but it seems to me that such an analogy with the division of powers under the German constitution is beside the point. The powers of the Community institutions are to be sought in the provisions of the Treaty. Those powers include the power to harmonize national provisions given by Arti­ cle 100a. It is sufficient therefore that deci­ sions taken under Article 9 of the Directive can be accurately described as harmonization measures. 38. In its observations on the Commission's intervention, the German Government puts forward a further argument in support of its thesis that a decision under Article 9 of the Directive cannot be regarded as a harmoni­ zation measure. It suggests that such a deci­ sion might be of 'direct and individual con­ cern' to the manufacturer or distributor of the product, within the meaning of Arti­ cle 173 of the Treaty. The German Govern­ ment argues that such a decision must 40. It follows in my opinion that the Ger­ accordingly be regarded as a measure of indi­ man Government's second ground of inval­ vidual application rather than of harmoniza­ idity is equally to be rejected. I accordingly tion. In my view, however, the fact that a turn to the third ground, namely infringe­ decision might be of individual concern to a ment of the principle of proportionality.

(3) Proportionality of the contested provision the German Government does not explain how the Commission would be able to bring infringement proceedings against a Member State which had, for instance, refused to pro­ hibit the sale of a particular product. As the Council points out, such a refusal could not be contrary to Article 30 of the Treaty. Rather, it is the prohibition of the product which would, if anything, require justifica­ 41. The German Government submits that tion under the Treaty as a restriction on the the contested provision violates the principle free movement of goods. of proportionality, in that its aim could be attained by means less onerous for the Mem­ ber States concerned. In particular, the Ger­ man Government argues that it is unneces­ sary for the Commission to be given the power to take a binding decision. In its view, the aim pursued by the contested provision could equally well be achieved by the Com­ 43. Furthermore it is doubtful whether the mission issuing an opinion or a recommen­ Commission could in those circumstances dation. The German Government suggests bring proceedings against a Member State for that, if the opinion or recommendation were breach of the general safety requirement laid not followed, the Commission could then down by the Directive. It is true that Arti­ bring proceedings under Article 169 of the cles 3 and 4 of the Directive require Member Treaty. It adds that such a course of action States to lay down a legislative framework would not result in undue delay, given the within which producers and distributors can Court's power to make an order for interim be required to take the appropriate measures. measures under Articles 185 or 186 of the Similarly, Articles 5 and 6 require Member Treaty. States to establish authorities with the appro­ priate powers and responsibilities, and Arti­ cles 7 and 8 impose certain information requirements on the Member States. Arti­ cle 14 lays down various procedural require­ ments. However, it seems to me that the only provision under which specific obligations may arise in relation to a particular product is Article 9 itself. 42. In my view, those submissions are mis­ conceived. In the first place, the whole point of Article 100a is to enable national provi­ sions to be harmonized without the need for a multiplicity of infringement actions. In any event, it is difficult to see how the Commis­ sion would be able to bring Article 169 pro­ ceedings against a Member State which failed 44. None the less, in its reply the German to follow an opinion or recommendation, Government suggests that the Commission which are of course expressly stated by Arti­ could bring proceedings against a Member cle 189 of the Treaty not to be binding. Thus State which was in breach of its obligations

Conclusion

48. In my view, therefore, the German Government's application is to be rejected. The German Government should accordingly be liable for the costs, in accordance

I - 3696

GERMANY v COUNCIL

with Article 69(2) of the Rules of Procedure. However, by Article 69(4) of those Rules, the Commission must, as intervener, bear its own costs.

49. I am accordingly of the opinion that the Court should: