C-127/97

Some of the questions raised by the national court also concern the interpretation of Article 100a of the E C Treaty and, in particular, 3. O n 21 March 1991, the Council adopted paragraph 4 thereof. They therefore afford by a qualified majority, pursuant to Article the Court an opportunity to consider, as far 100a of the Treaty, a directive amending as it thinks necessary, the delicate relationship Council Directive 76/769 of 27 July 1976 on which exists between Community measures the approximation of the laws, regulations aimed at creating the internal market and and administrative provisions of the Member national derogating provisions, a subject States relating to restrictions on the marketing already dealt with in an earlier case 2 which in and use of certain dangerous substances and fact concerned the same German legislation preparations 4(hereinafter 'the basic direc- as that which falls to be examined in these tive'), and thereby introduced restrictions in proceedings. relation to PCP.

* Originii language: Italian. 3 — The ten of the regulation is published in BGBl. 1989 I, 1 — OJ 1991 L 85, p. 34. p. 2235. 2 — Case C-41/93 France v Commission [1994] ECR I-1829. 4 — OJ 1976 L 262, p. 201.

I - 6006

BURSTEIN v FREISTAAT BAYERN

5. The order of the national court states that, on 17 December 1992, the Trade Supervisory

5 — Sec the Commission's communication in OJ 1992 C 334, p. 8. It is worth mentioning that the communication was later properly classified as a decision by the Court in the judgment cited in the next footnote. See also the Opinion of Advocate General Tesauro in that regard, in particular at point 8. 6 — Case C-41/93 France v Commission, cited in footnote 2. 4. O n 2 August 1991, Germany notified the 7 — On that occasion, Germany informed the Commission that Commission, pursuant to Article 100a(4), of the provisions of 12 December 1989 had been consolidated in two separate legislative instruments: the Regulation of 26 the national provisions relating to PCP which October 1993 (BGBl. I of 30 October 1993, Annex 4, p. 1782) on the production and use of PCP, and the Regula- it found it necessary to continue to apply. tion of 14 October 1993 (BGBl. I of 20 October 1993, p. 1720) on the marketing of PCP. 8 — OJ 1994 L 316, p. 43.

I - 6007

OPINION OF MR SAGGIO — CASE C-127/97

Office (Gewerbeaufsichtsamt), Regensburg, the prohibition on authorising the use of pen- issued an injunction against Mr Burstein tachlorophenol and its salts and esters in con- ordering the removal of 120 000 boxes of centrations equal to or greater than 0.1% by ammunition which he was keeping in pre- mass in substances or preparations placed on mises owned by him until they could be the market, whereas they may set limit values resold. The injunction was issued on the independently in respect of products which ground that the Trade Supervisory Office have been treated with pentachlorophenol? found that the PCP content of the boxes exceeded the limit of 5 mg/kg laid down by the German regulation of 1989.

Does it make a difference if the Commis- Should the Court find that the directive does sion's decision was annulled on formal not apply to products treated with PCP, it grounds only, and subsequently reissued? would follow that, with respect to such prod- Does that later decision by the Commission ucts, Germany was free to adopt different, have retroactive effect? even more stringent, laws to protect the envi- ronment, since a decision to do so, falling outside the field of harmonisation required by the Community measure, would come within the discretion of the national legisla- tive body. If so, there would be no need to answer the remaining questions, which con- cern the system of derogations operated by the German legislature in pursuance of Article 4. If the answer to Question 3 is in the nega- 100a(4) and the direct effect of the directive's tive: provisions.

May the directive be applied in the Member States as directly effective law until such time as a final determination has been made as to the applicability of the national provision?'

9. In order to answer the first question, there- fore, it is necessary to define the scope ratione materiae of the directive. More precisely, the Court is asked to clarify whether or not the The directive inserted into the Annex Point harmonisation measure relating to PCP, its 23 which relates to 'pentachlorophenol (CAS salts and esters, according to which they 'shall N o 87-86-5) and its salts and esters'. These not be used in a concentration equal to or chemical compounds, as stated earlier, 'shall greater than 0.1% by mass in substances and not be used in a concentration equal to or preparations placed on the market' applies greater than 0.1% by mass in substances and also to products treated with PCP. preparations placed on the market'. There is a system of exceptions to the prohibition, which operate on condition that the substances and preparations containing PCP are intended for use in industrial installations not permit- ting the emission and/or discharge of PCP in quantities greater than that prescribed by existing legislation and that, in any event, they 10. First, it is appropriate to observe that the are used only in certain processes. directive in question was adopted as an amend- ment to the basic directive of 1976, the gen- eral objective of which was the approxima- tion of national laws on the marketing and use of dangerous substances and preparations. Article 1(1) of the basic directive states that its purpose is 'restricting the marketing and 12. In my view, the literal wording of the use in the Member States of the Community, regulation and its underlying purpose pre- of the dangerous substances and preparations clude its application to products treated with listed in the Annex'. Article 1(3) offers a legal PCP. definition of substances and preparations, defining substances as 'chemical elements and their compounds as they occur in the natural state or as produced by industry' and prepa- rations as 'mixtures or solutions composed of two or more substances'. Annex I to the basic directive contains a list of the substances, In the absence of evidence to the contrary, groups of substances and preparations regu- the restrictions imposed by the directive must lated by the directive and sets out the restric- only be applied to pollutants which are tions to which they are subject as regards use 'substances' and 'preparations' as defined or marketing. by the basic directive. It follows from this

premiss that products treated with PCP, that that the installation does not permit the emis- is, products to which PCP has in some way sion or discharge of PCP in quantities greater been added in the course of manufacture, do than that prescribed by existing legislation. not fall within those terms. As mentioned Further, specifically in connection with the earlier, a 'substance' is composed of a chemical treatment of wood, the directive prohibits the element or compound of several chemical ele- use of wood which has been treated with PCP ments, whether it is something simple occur- in a concentration greater than that prescribed ring naturally, or the result of a synthesising where it is to be used for certain purposes process. Finished goods, in the ordinary sense which are considered especially sensitive. of the term, cannot be compared to substances in this sense. A box designed to contain ammunition must similarly be excluded. As to the directive's definition of a preparation, however broad it may be, as indeed the plain- tiff observed in the national proceedings, it must always relate to an admixture (a mixture or solution) of two or more chemical ele- ments (substances). Consequendy, only an obvious and unacceptable distortion of Another argument which militates against the meaning can bring products, in the sense directive applying to wood treated with PCP described above, within it. or its compounds derives from the wording of the fourth recital in the preamble, which states that 'the Commission will be devel- oping a coordinated Community strategy regarding the placing on the market and use of chemical products used for the preserva- tion of wood'. With the directive, the Com- munity legislature meant to take action only in relation to specific methods of using wood where the risks to the health of people or ani- mals were more obvious, and left for future 13. Indeed, as the plaintiff observed, in speci- legislation the adoption of general rules on fying the exceptions to the prohibition on the chemical products, including PCP, used in the use or placing on the market of PCP, the preservation of wood. Annex to the directive mentions certain prod- ucts (in particular wood) and prohibits cer- tain uses of them when they have been treated with the substance in question, but this is not enough to extend the scope of the directive to products as such or even to wood, pure and simple, even though specific reference is made to it. Generally speaking, even the system of exceptions provided for at Point 23 of the Annex is really concerned with the use of As is generally the case, the underlying pur- substances and preparations within industrial pose of the system of exceptions described installations. In particular, the regulation per- above reflects the need to permit the use of mits their use only in certain production pro- PCP in certain industrial processes whilst at cesses (in the treatment of wood, the impreg- the same time protecting the environment, nation of textiles, etc.) and only on condition and in particular the aquatic environment into

14. That view finds confirmation, first and foremost, in another provision contained within the same Annex which also refers to The following directives are of particular sig- the system of exceptions and therefore to the nificance here: Council Directive 83/478/EEC treatment of wood as well. As a general mea- of 19 September 1983 amending the basic sure, it is provided (at Point 23, fourth para- directive for the fifth time (asbestos) 1 1and graph, letter (a)) that PCP used alone or as a regulating the marketing and use not only of component of preparations employed within asbestos fibre but also of 'products containing the framework of the above exceptions 10 must it'; 1 2 Council Directive 91/338/EEC of 18 have a total hexachlorodibenzoparadioxin June 1991 amending the basic directive for content of less than 4 parts per million. The the 10th time 13 and relating to cadmium and provision relates exclusively to PCP, albeit its compounds, which prohibits the mar- when it is employed by way of exception and keting of finished goods and components of therefore only in relation to certain specified goods manufactured from the substances or uses, and does not extend to products to which P C P is applied. preparations listed in the directive and dyed with cadmium, where their cadmium content exceeds a certain percentage; Council Direc- tive 91/339/EEC of 18 June 1991 amending the basic directive for the 11th time 14 and relating to a monomethyl designated by the commercial name Ugilec 141 or Ugilec 121, both the marketing and use of which, even in relation to products which contain it, are 15. In support of his argument that the direc- prohibited. tive in fact relates both to PCP and to prod- ucts treated with PCP, the plaintiff in the

In all the above cases, Community law has last recital in its preamble which states that imposed an express prohibition or restriction 'currently Community legislation concerning upon the use and marketing not only of the the possible adoption by Member States of substance and preparations within the meaning more stringent restrictions on the use of the of the definitions given in the basic directive, substances and preparations in question at the but also of the products containing the workplace remains unaffected by this direc- substance or preparations of it. This is evi- tive'. Whilst, of course, this is a matter for the dence of a different and broader harmonisa- national court to establish, it does not appear tion objective on the part of the Community that the German regulation relating to PCP legislature which sought, in these particular has the specific goal of protecting health at matters, to unify the conditions of use not the workplace, or indeed that the place where only of the dangerous substance but also of the plaintiff kept the boxes of ammunition products different from the substance itself could be called a 'workplace'. 15 when it figures in their composition. In the case of the directive under consideration, how- ever, Community law makes no reference to the harmonisation of products but merely prescribes methods of using the substance. It must follow from this that the Member States retain complete authority to regulate the char- acteristics of production, use and marketing of the products, albeit, of course, within the limits set by the directive. The fact that Member States may adopt more stringent laws with regard to matters beyond the scope of the directive does not mean that national legal systems need not comply with other provisions of Community law. In particular, the German regulation relating to products treated with PCP may not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States 17. I therefore suggest that the answer to within the meaning of Article 36 of the Treaty. Question 1 referred by the national court should be that the directive is to be inter- preted as meaning that Member States may set limit values independently in respect of products which have been treated with PCP, as they are bound only in relation to substances and preparations placed on the market. Of course, if the Court is minded to accept this suggested interpretation of the directive, there will be no need to answer the remaining questions referred by the national court in the alternative.

19. It is well known that Article 100a was inserted into the E(E)C Treaty by the Single 20. As far as the procedure is concerned, the European Act as an instrument designed to Member State is required to notify the Com- assist in achieving the aim of establishing the mission of the provisions it considers neces- internal market, as defined in Article 7a. In sary to apply. As to supervision, the Com- particular, Article 100a helped overcome bar- mission is required to verify that the provisions riers to trade arising from disparities between in question are not a means of arbitrary dis- the laws, regulations and administrative pro- crimination or a disguised restriction on trade visions of the Member States. Under Article between Member States, and accordingly to 100a, which derogates from Article 100, the confirm them. If a Member State makes Council may, in accordance with the 'improper use' of the power of derogation co-decision procedure set out in Article 189b, provided for in Article 100a(4), the Commis- reach decisions by a qualified majority, thereby sion or any other Member State may bring ensuring greater efficiency and democracy in the alleged infringement directly before the the decision-making process. Court, by way of derogation from the pro- cedure laid down in Articles 169 and 170 of the Treaty. 16

16 — Article 100a(5) also provides for the insertion of future safe- guard clauses in the actual text of the harmonisation mea- sure, so as to permit Member States to adopt 'provisional The system whereby decisions are taken by measures subject to a Community control procedure'. This provision is, in any event, irrelevant in the present case, as qualified majority, which can entail the sacri- the directive contains no specific safeguard clause.

23. In the face of a harmonisation measure aimed at the establishment or operation of 22. To answer the question submitted by the the internal market, the principle of the uni- national court, reference must first be made form application of Community law must be to the purpose underlying Article 100a which is to give the Community institutions a means, one which has proved to be fundamental, for 18 — Sec Cise C-70/88 Parliament v Council [1991] ECR I-4529, 'the achievement of the objectives set out in paragraph 17, and Case C-155/91 Commission v Council Article 7a' and, therefore, of establishing the [1993] ECR I-939, paragraph 19. The situation is different when the measure is based exclusively upon Article 100a internal market, with all the freedoms which simply for the purpose of complying with the procedural requirements imposed by that provision, whilst from the that implies. Any measure based upon that point of view of the objectives pursued it appears to be based on two distinct enabling provisions: Article 100a and provision is thus essentially aimed at harmo- Article 130s. See Case C-300/89 Commission v Council nising conditions within the internal market [1991] ECR I-2867. of the Community, even if it may, indirectly 19 — In the case of the derogations relating to the free movement of goods provided for in Article 36, the Court has fre- or incidentally, have repercussions in areas quently emphasised the need for a strict interpretation: see Case 46/76 Bauhuis [1977] ECR 5, paragraphs 5 to 12, and Case 103/84 Commission v Italy [1986] ECR 1759, para- graphs 21 and 22. The same considerations apply to restric- tions on the free movement of persons: see, generally, with reference to the restrictions contained in Article 55 of the 17 — See the judgment in France v Commission, cited in footnote Treaty on freedom of establishment, Case 2/74 Reyners 2. [1974] ECR 631, paragraphs 42 to 44.

Further, whilst the provision does not expressly state that the national provisions notified to the Commission may not be applied until the Commission reaches its decision, Article 100a(4) imposes upon Member States an obligation to 'notify' and upon the Com- mission an obligation to 'verify' that the pro- Apart from those considerations, which are visions so notified do not constitute a means based on the purpose of the provision and on of arbitrary discrimination or a disguised a comparison of the opposing interests which restriction on trade between Member States. the rule is designed to protect, there are other 'Confirmation' of the national provisions is considerations of a systematic or formal nature dependent upon the successful outcome of which also support the proposed solution. such verification. Tide V of Part Three of the Treaty contains, in addition to the provisions of the Chapter on the approximation of laws, the rules of competition, including rules on the grant of aid by Member States. Those rules too are aimed at the establishment of an internal market in which the factors of production operate in similar or at least comparable situ- The obligation upon the Commission to verify ations. They include Article 93(3), which the national provisions necessarily implies a establishes, for any newly introduced grant of duty to evaluate their likely effect upon the aid, a system similar to that set out in Article functioning of the internal market so as to 100a(4): the Member State is required to com- enable them to be applied only where pri- municate the aid plan to the Commission so mary objectives of the integration process are as to enable the latter to submit its comments. not adversely affected. For that reason, I find If the grant of aid is not compatible, the that the way in which Article 100a(4) is for- Commission is required to initiate the proce- mulated is difficult to reconcile with the attri- dure under Article 93(2), but it is expressly bution of a purely declaratory value to the provided that 'the Member State concerned Commission's confirmatory decision. If that shall not put its proposed measures into effect argument were accepted, operation of the until this procedure has resulted in a final safeguard clause would be left to the Member

Such is the case with any protective measures the Council might adopt, in accordance with Article 130s of the Treaty, to achieve environ- mental policy objectives. Indeed, in such a case, under Article 130t, any harmonisation measures cannot prevent Member States from 'maintaining or introducing more stringent protective measures'. Member States are merely obliged to notify the Commission of 25. In its judgment in France v Commission, any such measures, which must nevertheless the Court has already interpreted Article be compatible with the Treaty, no further 100a(4) as meaning that national laws may action on the part of the Community institu- not be applied until they have been confirmed tions being envisaged. The difference in the by the Commission. In that judgment, the procedure, and the greater power accorded to Court stated that 'a Member State is not ... Member States as a result, is justified by the authorised to apply national provisions noti- consideration that any more stringent mea- fied by it until after it has obtained a decision sures adopted by the Member State are aligned from the Commission confirming them', with, rather than constituting a derogation precisely in order to prevent the work of from, the objective of the relevant Commu- nity provision which, in this case, is not the creation of the internal market but the pro- 20 — As in the case of health, safety and consumer protection as tection of the environment. well.

I-6017

OPINION OF MR SAGGIO — CASE C-127/97

I am of the opinion that, as regards that par- ticular aspect as well, the solution must be the same. 23 — An express provision will in fact reflect the amendments introduced by the Treaty of Amsterdam. The new text of Article 100a (Article 95 under the new numbering system) provides, amongst many other innovations, that the Com- mission must approve or reject the national provisions noti- fied to it within six months of notification. In the absence of a decision, the national provisions are deemed to be approved 24 — The fact that Article 5 imposes duties of sincere coopera- tion also on the institutions for the benefit of the Member States has already been confirmed several times in the case- law: Case C-2/88 Imm. Zwartveld [1990] ECR I-3365, Case C-349/93 Commission v Italy [1995] ECR I-343, paragraph Clearly, the system can operate normally 13, and Case T-16/90 Panagiotopoidou v Parliament [1992] where difficulties are not anticipated. As soon ECR II-89, paragraph 51. The same principle of sincere cooperation largely informs the ruling that a reasonable as possible after adopting the directive, the period of two months can be deduced from Article 93(3), within which the Commission must decide upon the com- Member State must give notice of the provi- patibility of the aid: Case 84/82 Germany v Commission sions it intends to continue to apply. It is [1984] ECR 1451, paragraph 11. 25 — It is established case-law that no complaint may be made against a Member State for not implementing a directive before expiry of the time-limit set therein: Case 148/78 Ratti [1979] ECR 1629, paragraphs 41 to 45. It is also worth remembering that, recently, the Court reconsidered the legal 21 — France v Commission, cited in footnote 2, especially para- position of the Member State during the period of time graphs 29 and 30. allowed for transposition, linking it to a kind of standstill 22 — It should be borne in mind that whilst notice was given on clause, in the sense that, during that time, it should in any 2 August 1991, the Commission did not confirm the German event refrain from adopting provisions which might seri- provisions until 2 December 1992, whereas the time-limit ously jeopardise the result prescribed by the directive: Case for transposition of the directive into national law expired C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411, on 1 July 1992. paragraphs 45 to 49.

In the present case, the national legislation was lawfully applied between 2 December 1992 (the date of the Commission's autho- The system does, therefore, ensure adequate rising decision) and 17 May 1994 (the date of protection of the need for the uniform appli- the Court's judgment annulling it). France's cation of Community law, without, however, challenge to the decision, which did not of sacrificing the interests of Member States itself cause the contested decision to be sus- which, seeking to avail themselves of the safe- pended, 27 is irrelevant to the solution of the guard clause provided for by Article 100a(4), problem. The judgment of the Court annul- must not find themselves irretrievably bur- ling the decision, on the basis of the general dened with the adverse consequences of provision set out in Article 174 of the Treaty, wrongful delay on the part of the Commis- has retroactive effect, unless the Court speci- sion. 26 fies which effects of the measure annulled are to be considered definitive.

26 — There is thus proposed here a solution to the problem already identified by Advocate General Tesauro in the Opinion given by him on 26 January 1994 in France v Commission, cited 27 — See Article 185 of the Treaty. France did not seek the sus- above. See, in particular, the end of point 9 and footnote 8. pension of the contested decision.

I-6019

O P I N I O N OF MR SAGGIO — CASE C-127/97

30. In the third part of the question, the national court seeks to determine whether the 29. In the second part of the question, the second confirmatory decision, taken by the national court asks whether the fact that the Commission on 14 September 1994, has ret- decision was annulled 'on formal grounds roactive effect such as to render the national only' has any bearing upon its effects. The derogating provisions applicable as from the Commission's decision of 2 December 1992, date of the first decision. it will be remembered, was annulled for failure to state reasons, as required by Article 190 of the Treaty, since it did not specify precisely the reasons of fact and law on account of which the conditions laid down in Article 100a(4) were to be regarded as fulfilled in the case in point. 29 The principle of legal certainty, which is a general principle of Community law, excludes, for the most part, retroactive application of Community legislation, except where the 28 — The second paragraph of Article 174 of the Treaty confers objective to be achieved requires it and then power upon the Court to limit in time the effects of its only on condition that the legitimate expecta- annulling judgments only in relationto regulations. For rea- sons of legal certainty, however, the Court has been led to extend the application of this rule to cases involving the annulment of directives (see Case C-295/90 Parliament v Council [1992] ECR I-4193, paragraphs 23 to 27) and deci- sions addressed to all the Member States (see Case C-271/94 30 — Failure to state reasons represents, in the classification of Parliament v Council [1996] ECR I-1689). The same con- defects open to criticismunder the second paragraph of siderations might entail the application of the rule to cases Article 173, a typical case of infringement of essentialpro- involving the annulment of decisions addressed to a single cedural requirements. Member State. 31 — At most, want of form as a ground for annulment might 29 — See paragraph 35 of the judgment in France v Commission, perhaps have been considered by the Court as a reason to cited in footnote 2. limit i n time the effects of its judgment.

Moreover, a decision having retroactive effect must set out in the grounds upon which it is based, or must at least suggest with sufficient clarity, the reasons which, by way of excep- It is well known that, in the absence of har- tion, justify the intention to give it retroac- monising rules after the expiry of the time- tive effect. 34 The confirmatory decision of 14 limit for implementing the directive in ques- tion, individuals may rely on its provisions September 1994, whilst taking formal note of on condition that their prescriptive content is the annulment of the previous decision, is sufficiently clear and precise and, further, not silent as to whether it has retroactive effect, such as to require the adoption of further nor does it contain any reference to the need measures. 35 In the present case, Annex I to to apply the national provisions to situations Directive 76/769, as amended by Directive which arose in the past. It follows that the 91/173, provides at Point 23 that pentachlo- decision is not retroactive and that, conse- rophenol, its salts and esters, 'shall not be quently, the national provisions confirmed used in a concentration equal to or greater apply only to future situations. than 0.1% by mass in substances or prepara- tions placed on the market'. The prohibition is stated to be inapplicable where the substance 32 — See Case 98/78 Racke [1979] ECR 69, paragraph 20. 33 — On the other hand, a person who has acted in compliance with the more stringent national provisions would be able to market or use the substance or preparations in any event, 35 — There is consistent case-law on this point: Case 8/81 Becker given that the PCP content would be within the limits per- [1982] ECR 53; Joined Cases 231/87 and 129/88 Carpimelo mitted by the directive. Piacentino [1989] ECR 3233; Joined Cases C-6/90 and C-9/90 34 — Sec the order in Case 1/84 R Ilford v Commission [1984] Francovich [1991] ECR I-5357; Case C-236/92 Regione ECR 423, paragraph 19. Lombardia [1994] ECR I-483.

We have seen that, in the case-law of the When faced with a rule of that kind, I believe .Court, the theory of the direct effect of direc- its clear and unconditional nature is indisput- tives is based not so much upon the intrinsic able: the rule permits the use of the substance qualities of Community law itself as on a and preparations in question on condition response to the failure on the part of a Member that PCP, its salts and esters, are not present State to transpose a directive correctly and in in concentrations of 0 . 1 % or more by mass. due time, as it is required to do. Thus, on the Individuals may, therefore, avail themselves basis of the actual wording of Article 189, of Community law which confers upon them which expressly provides that directives are the right to carry on production under less binding only upon Member States, the Court restrictive conditions than those laid down by has affirmed that directives cannot create obli- national law. 36 However, there is a further aspect to the question of the direct effect of gations for individuals in the absence of imple- the directive, since the Court is being asked menting measures. 37 It follows that the State to clarify whether Community law also cannot subject the legal position of the indi- imposes an obligation upon individuals to vidual to constraints by deriving obligations carry on production within the tolerance from a provision of Community law which it threshold for P C P set by the directive. The has itself failed to transpose into national national court is essentially asking whether law. 38

(1) Council Directive 91/173/EEC of 21 March 1991 amending for the ninth time Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations is to be interpreted as meaning that Member States are bound only in relation to the prohibition on authorising the use of pentachlorophenol and its salts and esters in concentrations equal to or greater than 0.1% by mass in substances or prepa- rations placed on the market, whereas they may set limit values independently in respect of products which have been treated with pentachlorophenol.

If the Court adopts a different solution from that suggested at (1) above, the remaining questions should be answered as follows:

(2) Directive 91/173 precludes a more stringent national provision, which was in force before the directive was issued, from being applied until the Commission takes a decision pursuant to Article 100a(4) of the Treaty.

(3) The national provision in question may be applied only from the time when it is confirmed by the Commission, but if such confirmation is annulled, the ret- roactive effect of annulment prevents application of that legislation until a new confirmatory decision is taken. In that connection, the fact that the Commis- sion's decision was annulled for failure to state reasons is irrelevant. The new Commission decision does not have retroactive effect.

(4) Directive 91/173 may be relied upon by an individual in a dispute with the public authorities in order to prevent the application of national legislation. The directive may not impose any obligations upon individuals.