C-41/93

FRANCE v COMMISSION

OPINION OF ADVOCATE GENERAL TESAURO delivered on 26 January 1994 *

Mr President, of being treated with such preparations, con- Members of the Court, tain the substance in question in a concentra- tion exceeding 5 mg/kg (ppm). 2 The Ger- man regulation makes it possible, subject to authorization in each case, to derogate from the prohibition laid down in it only for the manufacture and use of PCP and its com- pounds which are employed in the synthesis 1. The present action concerns the first occa- of other substances or are obtained as sion on which Article 100A(4) of the EEC by-products or, finally, for use exclusively Treaty, inserted by the Single European Act, for scientific research: in such circumstances, has been applied. risk-free disposal of waste materials must be guaranteed and adequate safety measures must be taken to protect workers and the environment.

O n 2 August 1991, the Federal Republic of Germany, which, together with three other countries, had voted against the adoption of The Commission shall confirm the provis- the directive, communicated to the Commis- ions involved after having verified that they sion, in accordance with and for the pur- are not a means of arbitrary discrimination poses of Article 100A(4), its intention to or a disguised restriction on trade between continue to apply the national provisions Member States. relating to PCP.

By way of derogation from the procedure laid down in Articles 169 and 170, the Com- mission or any Member State may bring the matter directly before the Court of Justice if O n 2 December 1992, as I mentioned, the it considers that another Member State is Commission adopted the decision to which making improper use of the powers provided the present action relates, 'confirming' the for in this article '. German provisions.

4. Two preliminary observations of a general nature seem appropriate. The possibility granted to a Member State of continuing to apply its own national rules, even though the 3. Before examining the pleas in law put for- matter has been harmonized at Community ward by the French Government as grounds level, is intended to ensure 'reinforced' pro- for the annulment of the decision, I think it tection of certain particularly important is appropriate to determine the precise scope interests and, above all, to answer the preoc- of Article 100A(4). The less than crystal- cupations expressed by a number of coun- clear wording of the provision raises a num- tries during the negotiations leading up to ber of problems of interpretation, which the Single Act to the effect that any harmo-

Since the provision in question creates an exception to the principles of uniform appli- cation of Community law and unity of the market, it must, like all provisions which allow derogations, be strictly interpreted, so as to ensure that it is not extended to cases other than those specifically provided for in it. Of fundamental importance, therefore, is the role which the Commission must play in ensuring the proper application of the machinery created: the Commission must see to it that the requirements and conditions for That approach is further justified by the fact a State to be able to rely on Article 100A(4) that the derogations from the principle of are fulfilled and that the procedure laid free movement of goods upheld by those down therein for its application is observed. decisions relate to pre-existing national mea- sures or sectors in which harmonization has not taken place, whereas those which may be based on the provision at issue here actually 4 — See, in that connection, Flynn, 'How will Article 100A(4) work? A comparison with Article 93', in CMLR 1987, p. 689 presuppose the existence of a Community et seq.; Ehlermann, 'The internal market following the Single harmonization measure, for the adoption of European Act', in CMLR 1987, p. 361 et seq.; Gulmann, 'The Single European Act; some remarks from a Danish per- which account was taken of the 'major spective', in CMLR 1987, p. 31 et seq.; Jacqué, 'Les mesures dérogatoires unilatérales dans le marché intérieur: needs' invoked by the various Member l'article 100A(4)', /õrnades europees de Pasqua, Patronat States. Català Pro Europa, p. 64 et seq.; Langeheine, 'Le rapproche- ment des législations nationales selon l'article 100A du Traité CEE: l'harmonisation communautaire face aux exigences de protection naionale', RMC 1989, p. 347 et seq.; Mattera, 'Il mercato unico europeo', Turin, 1990, p. 168 et seq.; and Rossi, 'Il buon funzionamento del mercato comune', 5 — Case 120/78 Revje v Bundesmonopolverwaltung für Brannt- Milan 1990, p. 165 et seq. wein [1979] ECR 649.

The principle of proportionality, a general Where a State intends relying on the safe- principle of Community law, must also be guard clause in Article 100A(4) it must applied in appraising the grounds relied on notify to the Commission the national dero- by a Member State as a basis for continuing gating provisions which it intends to apply. to apply its own rules by way of derogation It is incumbent upon the Member State to from the harmonization measures. The con- prove that those provisions, which provide a trol entrusted to the Community institutions higher standard of protection of the interests by Article 100A(4), on the other hand, seems expressly indicated by the provision in ques- necessarily to be inspired by more stringent tion than the Community measure, are nec- criteria than those underlying the provisions essary and proportionate. It then falls to the of Article 36, in that there is no possibility of Commission to confirm the provisions 'after not taking account of the standards of pro- having verified that they are not a means of tection already laid down by the harmoniz- arbitrary discrimination or a disguised ation rules. In particular, I do not think that a restriction on trade between Member States'. mere finding that the national provisions, of which 'confirmation' is requested, ensure a higher level of protection than the harmon-

6 — See in that connection the judgments in Case C-347/88 Commission v Greece [1990] ECR I-4747, in particular para- graph 58, Case 72/83 Campus Oil Limited [1984] ECR 2727, 8. Having regard to the exceptional charac- in particular paragraphs 37-46, and Case 153/78 Commission ter of the power granted to the Member v Germany [1979] ECR 2555, in particular paragraphs 4 and 5. States by Article 100A(4), I believe that the

logic of the system requires it to be offset by before the Commission decision has been particularly incisive powers of review on the taken. However, in view of the nature of that part of the Community institutions. The decision, I believe that that possibility must 'confirmation' therefore constitutes in every be excluded. sense an authorization from the Commission to derogate from the harmonization measure, with the result that a refusal would place the State in question under an obligation to bring its own legislation into line with the requirements decided on by the Council. Logically, therefore, the measure in question assumes the form of a decision within the meaning of Article 189 of the Treaty, against The opposite view, moreover, would not which an action may be brought under Arti- only conflict with the principle of legal cer- cle 173. tainty, in that doubt would arise as to the legislation applicable in a particular State, but also, and above all, it would call in question the primacy of Community law. The conflict between a Community provision and a It does not seem to me that that interpreta- national provision should be resolved in tion is undermined by the possibility granted favour of the former; and a State which to the Commission and to the Member intended in any event to apply its own diver- States by the third subparagraph of Arti- gent rules before being authorized to do so cle 100A(4) of bringing the matter directly would be acting unlawfully and making before the Court of Justice in the event of improper use of the powers granted to it by another Member State's making improper Article 100A(4). 7 use of the powers provided for by that pro- vision. I consider that the derogation pro- vided for therein from the Treaty- infringement procedure under Articles 169 and 170 is applicable where a Member State, notwithstanding the Commission's refusal, continues to apply its own national legisla- tion or 'makes improper use' of the power of derogation, for example by overstepping the O n the other hand, a Member State which limits of the authorization granted to it. gave notice in due time of the provisions which it intended applying could not be held liable for delay on the pan of the Commis- sion in taking the decision required of it. 8

10. If that is the scope of Article 100A(4), I 11. As regards the substance of the applica- believe that we have before us all the infor- tion, the French Government puts forward mation needed to dispose of the problems two pleas in support of its claim that the raised by the present case and to decide decision should be annulled. First, it alleges whether or not the action brought by the an infringement of Article 100A(4), in so far French Government is well founded. as the Commission confirmed the German rules despite the fact that the information forwarded by the national authorities was not in fact such as to demonstrate that the almost total prohibition of using PCP was justified by the specific situation existing in Germany. In particular, no proof was given of such a threat to the environment as to render necessary even more stringent rules than those contained in the Community leg- The first issue is the admissibility of the islation, which already provides a high level application, which all the parties to the pro- of protection. N o r was it proved that the cedure have upheld, albeit according to reas- derogating measures are proportional to the oning which did not always coincide. 9 aim pursued, having regard to the barriers to intra-Community trade which might result from it.

I do not think any doubts can remain in that regard, it having been recognized that any Secondly, the Commission — according to measure adopted by the Commission under the French Government — infringed Arti- Article 100A(4) has the status of due author- cle 190 of the Treaty, in so far as the state- ization for the Member State to apply its ment of the grounds of the contested deci- own rules, by way of derogation from the sion is inadequate and does not clearly show harmonization measure. It is a measure the reasons for its adoption, in particular the which without doubt produces legal effects fulfilment of the conditions laid down by and can therefore be challenged under Arti- Article 100A(4) for provisions derogating cle 173 of the Treaty. 10 from the harmonization measure to be allowed.

' As to the substance, the ban on pentachlo- rophenol and its salts and esters provided for in the German decree is broader than that provided for in Directive 91/173/EEC. The German decree provides for fewer exemp- 13. The Court has consistently held that the tions in respect of the use of PCP than does fulfilment by the Community institutions of the Community directive. It also provides their obligation to state the reasons on which for a permissible level lower than the Com- their measures are based is to be viewed in munity level .... the light of the nature and content of the measures in question: the statement of grounds must disclose in a clear and unequivocal fashion the reasoning followed by the authority from which the measure emanates, in such a way as to make the per- The 0.01% limit laid down in the German sons concerned aware of the reasons for the decree contains a higher safety margin. This measure and thus enable the Court to exer- limit and the exceptions provided for in the cise its supervisory jurisdiction. u German decree are justified on grounds of major needs referred to in Article 36 or relat- ing to protection of the environment or the working environment.

As regards decisions in particular, whilst it is not generally necessary to specify the often numerous and complex matters of fact and The ban on the manufacture, marketing and of law which constitute their legal justifica- use of pentachlorophenol and its com- tion, 12 or for case-by-case reference to be pounds, as provided for in the German decree, creates a barrier to trade.

made to all the questions raised in the course 14. If the foregoing principles are applied to of the adoption procedure, 13 the statement the present case, it seems to me to be clear of reasons should nevertheless give the indi- that the applicant's criticism concerning the cations necessary to enable the addressees, inadequacy of the statement of reasons for and other persons to whom they are of the contested decision must be upheld. It is direct and individual concern within the not inappropriate to draw attention again to meaning of the second paragraph of Arti- the fact that the decision in question repre- cle 173, to ascertain whether they are well sents the first occasion on which Arti- founded. 14 cle 100A(4) has been applied and that, pre- cisely because of the novelty of the situation and of the numerous interpretative doubts arising from that provision, an adequate statement of reasons was particularly neces- sary, inter alia to help clarify the conditions surrounding the application of that provis-

How- reflects consistent practice in decision- ever, if a reference to those interests is not a making or forms part of a uniform proce- sufficient justification for the purposes of dure which is periodically repeated, if the Article 36, that is to say in an area which has persons concerned were involved in the pro- not been harmonized, a fortiori it is not suf- cess of drawing it up or, again, if the decision ficient for a situation governed by Arti- represents the application of an earlier deci- cle 100A(4), which presupposes the adoption sion. 16 In other cases, it is incumbent upon of a Community measure. Regard also being

66. 14 — See the judgment in Joined Cases 296/82 and 318/82 Neth- erlands and Leeuwarder Papierwarenfabriek [1985] E C R 809, in particular paragraph 19. 15 — See the judgments in Case 92/77 An Bord Bainne [1978] E C R 497, in particular paragraphs 36 and 37, a n d Case 185/83 Rijksuniversiteit te Groningen, cited above,

I-1838

FRANCE v COMMISSION

in itself sufficient to warrant a positive deci- additional safeguard is provided by the Ger- sion on the part of the Commission. Such a man rules? finding is a precondition for the application of Article 100A(4), not a justification for the legislation; on the contrary, it is an element which in its turn requires justification, and in the present case no justification appears any- where in the contested decision. As regards, finally, the verification which the Commission is required to undertake in order to establish that the national derogat- ing rules do not result in arbitrary discrimin- ation or a disguised restriction on trade between Member States, the decision con- fines itself to slavishly repeating once more the wording of Article 100A(4), without the Neither, with regard to the proportionality statements made being in any way supported of the German measures in relation to the by any consideration which might justify the objective pursued, is any support provided Commission's conclusions. for the statement that they 'do not seem to be ... manifestly disproportionate'. In that connection, I think it would have been appropriate for the decision to have specified to what extent the additional protection of health and the environment guaranteed by the German rules justifies the possibility of 15. I therefore consider that what we have greater barriers to intra-Communiry trade; here is a text-book example of an inadequate or, again, for it to have examined the conse- — indeed a non-existent — statement of rea- quences of the need to use other products sons: in any event, the grounds for the con- instead of PCP. tested decision do not satisfy the minimum requirements imposed by Article 190 of the Treaty in order to enable the Court to exer- cise its supervisory jurisdiction in respect of the measure and to enable interested parties to put forward their views regarding the reality and importance of the facts and cir- cumstances alleged to exist.