C-319/97

KORTAS

OPINION OF ADVOCATE GENERAL SAGGIO delivered on 28 January 1999 *

1. This reference from a Swedish court 3 . The r u l e s i m p l e m e n t i n g Law raises once again the difficulty of interpret- No 511/1971 — in particular, Decree ing Article 100a of the Treaty, specifically No 33 of 1993, which entered into force Article 100a(4). The specific subject to be on 1 January 1994 — banned all use of the addressed has already been touched on, colorant known as E 124 or cochineal red both in an earlier judgment 1and in my in foodstuffs, save for alcoholic beverages. Opinion in Burstein,2 namely, the relation- The same ban was imposed in an earlier ship between Community harmonising measure, Decree No 1 of 1993, the provi- measures designed to establish the internal sions of which remained in force under market and domestic legislation which transitional arrangements until June 1995. derogates from them.

On 1 December 1995 the competent administrative authority adopted Decree No 31 on food additives. This measure, which gave effect to European Parliament The national legislation and Council Directive 94/36/EC of 30 June 1994 on colours for use in foodstuffs (hereinafter 'the Directive'), 3 confirmed the ban on the use of E 124 in foodstuffs.

of foodstuffs and distorts competition. provision. The permitted colorants Accordingly, the legal basis of the Directive (Annex I) may be used only in the food- is Article 100a of the Treaty, the first stuffs listed in Annexes III, IV and V, paragraph of which empowers the Council, subject to the conditions specified therein. acting in accordance with the procedure It is not permitted to use colorants in the referred to in Article 189b, to adopt 'mea- foodstuffs listed in Annex II, save in the sures for the approximation of the provi- cases specifically envisaged in the other sions laid down by law, regulation or annexes. Some colorants which may be administrative action in Member States used only for specific purposes are listed, which have as their object the establish- together with their authorised uses, in ment and functioning of the internal mar- Annex IV. Colorants which are generally ket'. permitted, that is to say, they may be used quantum satis5 in all foodstuffs, except those listed in Annexes II and III, are listed in Annex V, Part 1. E 124 is not listed there. On the contrary, it may be used only up to a given level and only in the food- stuffs listed in Part 2 of Annex V.

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words, the use and marketing of products recount that, on learning through informal containing colorants approved by the channels that its request would meet with a Directive should have been permitted under negative response, Sweden let it be known the domestic law of the Member States by that it would waive its right to a formal 31 December 1995. decision.

In short, since Sweden had impliedly waived that right, it should have transposed the Directive into national law by 31 December 1995 in order to ensure that, The accession of Sweden by that date, products in conformity with that measure could be freely marketed and used.

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nation or a disguised restriction on trade 11. Taking cognisance of the Community between Member States.' Directive and of the fact that the more restrictive Swedish legislation had been notified to the Commission for the pur- poses of Article 100a of the Treaty, and noting the Commission's failure to respond, the national court referred the following questions to the Court for a preliminary ruling: 9. On 5 November 1995 Sweden notified to the Commission the provisions of Swed- ish law relating to food additives (pursuant to which use of E 124 was prohibited) which it considered necessary to maintain '1. Can a directive adopted under Arti- in force for the protection of human health. cle 100a of the Treaty of Rome have The Commission did not respond. direct effect?

2. If so, can such a directive have direct effect even if the State has made notification under Article 100a(4) of the Treaty of Rome ? Facts and questions referred for a prelimin- ary ruling

3. If Question 2 is answered in the affirmative, how does the notification by the Member State affect the ques- 10. The order for reference recounts that tion of direct effect during the follow- on 15 September 1995, in the course of ing periods: inspecting business premises belonging to Mr Kortas, the competent national admin- istrative authority came across a significant quantity of confectionery containing E 124. Mr Kortas was accordingly prose- cuted for having marketed foodstuffs con- (a) between notification and reply? taining a colorant banned under Swedish legislation. Mr Kortas contended before the national court that E 124 was legally used in other Member States of the European Community, such as Germany, in accor- dance with Community law. (b) from the reply?'

Applicability of the Community legislation 13. The true relevance of the Directive for the case before the national court lies in the fact that the legal system in Sweden, as in almost all the Member States, upholds the principle that an individual cannot be punished for something which under sub- sequent legislation is not an offence.10 It follows that when, after the expiry of the deadline for the Directive's transposition 12. One of the problems to be addressed in into national law, primacy is accorded to this context, although the order for refer- the Directive and more lenient legislation ence is silent on the point, is the relevance applies to the facts of Mr Kortas' case, the ratione temporis of the Directive to the national court will be bound accordingly in facts of the case. The offence was commit- its determination of his culpability. ted at the latest on 15 September 1995, the date on which it was discovered by the competent Swedish authorities.

Even Minis- Sweden did not adopt any new legislation terial Decree No 31 of 1995 concerning inconsistent with the aims of the Directive; food additives, albeit adopted in implemen- it merely continued to apply the existing tation of the Directive, confirmed the ban legislation. on the use of E 124. Thus, the relevance to be accorded to the divergent Community legislation depends on its direct effect in 8 — The judgment given in Case 148/78 Ratti [1979] ECR 1629 national law. However, the national court remains of immediate relevance today. In that judgment, the Court rejected the argument that individuals may rely on the principle of the protection of legitimate expectations in relation to a period before expiry of the deadline for transposing a directive into national law (see paragraph 46). 10 — Article 5 of the Law introducing the Penal Code (Lag 9 — See Case C-129/96 inter-Environnement Wallonie |1997] (1964:163) om införande av brottsbalken) is based on that ECR I-7411. On that point, the Court appears to advert to principle, as is Article 2(2) of the Italian Penal Code.

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does not ask the Court whether the Direc- cretion within which the Member State tive — so far as concerns its specific may establish the mechanisms and time- substantive content — has direct effect. tables necessary to attain the result pre- Rather, it questions, more generally, scribed. Although, in theory, the lawfulness whether any directive adopted on the basis of such measures could be questioned of Article 100a of the Treaty can have where the Treaty — in Article 100, for direct effect. example — prescribes use of a directive, it cannot be denied that detailed directives are entirely lawful where the relevant provision of the Treaty does not specify the form of legislative measure to be adopted, which is precisely the position in the case of Article 100a.

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wholly frustrate the aim of harmonising the the adoption of the harmonisation mea- legislation and permitting the free move- sure — to the exclusion of States which ment of the products concerned. have newly acceded to the Community thereafter — may avail themselves of the procedure provided for in Article 100a(4) of the Treaty. In the first place, that objection finds no support in the wording On the basis of the Directive, therefore, of the provision at issue. Article 100a(4) individuals are entitled to use the colorant essentially serves to offset the mechanism E 124 in accordance with the detailed rules requiring a qualified majority, which, and may rely upon that right before the although it has led to a notable increase national courts, which as a consequence in the efficiency of the decision-making must disapply any conflicting provision of process for establishing the internal market, national law. has on the other hand entailed a sacrifice of national interests which merit protection. Thus, Article 100a(4) permits a Member State which so desires to continue to apply, in the wake of a harmonising measure, provisions of national law which are justi- fied in terms of the important (non-eco- nomic) needs contemplated by Article 36 Questions 2 and 3 or which are necessary to protect the environment or the working environment, provided that a certain procedure is fol- 16. The second and third questions — the lowed, and subject to both administrative latter comprising two limbs — raise the checks (entrusted to the Commission) and issue of the relationship between harmoni- judicial review. sation measures which may have direct effect and conflicting provisions of national law, where the Member State wishes to maintain the latter in force by availing itself of the safeguard clause provided in Arti- cle 100a(4) of the Treaty.

procedure to draw attention to their special or whether its applicability is conditional needs. upon the Commission's approval. In the event that the Court finds the latter approach to be correct, it is also asked to clarify the implications for that approach if there is a delay (as is the case here) before the Commission confirms or disapproves 19. What is more, if the jurisprudential the national legislation notified. view is that recourse to Article 100a(4) is to be permitted even in the case of States which voted in favour of the harmonising measure from which they seek derogation, it can scarcely be denied to States which were unable to play any role in the 21. In my view, in this case — as in adoption process. In the case of Sweden, Burstein — the only way to resolve the it must also be emphasised that it did issues raised is through analysis of the ratio attempt — unsuccessfully — to obtain a of Article 100a, particularly of Arti­ derogation under the instruments of acces­ cle 100a(4), in conjunction with other sion, using the procedure provided for in provisions of the Treaty. Article 151 of the Treaty of Accession. The negative response of the Community insti­ tutions cannot, however, prevent the new Member State from directing their atten­ tion once again — in a much more 'insti­ tutionalised' context — to those needs by availing itself of the derogation procedure Article 100a has provided the Community provided for in Article 100a(4). institutions with a mechanism for 'the achievement of the objectives set out in Article 7a', hence for the establishment of the internal market, that is to say, an area without internal frontiers in which the fundamental freedoms conferred by Com­ munity law are ensured. In practice, Arti­ cle 100a has proved to be vital to the Substance attainment of the objective set out in Articles 3(c) and 7a of the Treaty, so much so that in various quarters regret has been expressed that Article 100a cannot be used in other fields, such as direct taxation, the 20. The substantive issue raised by the importance of which has grown with 12 second and third questions concerns the increased integration but in respect of fate of provisions of national law which conflict with the harmonisation measure but which the State wishes to apply for the 12 — The importance of taxation in relation to the attainment of the fundamental freedoms is alluded to with increasing protection of important national needs. In frequency in the case-law of the Community judicature. See, inter alia, Case C-204/90 Bachmann [1992] ECR particular, the Court is asked whether, once 1-249; Case C-300/90 Commission ν Belgium [1992] ECR the State has notified that legislation to the I-305; Case C-279/93 Schumacker [1995] ECR I ; Case C-80/94 Wielcockx [1995] ECR I-2493; and Case Commission, it can be immediately applied C-264/96 ¡CI [1998] ECR 1-4695.

which the harmonisation of the relevant be subject to stringent conditions both with legislation still depends on the less efficient respect to the scope of the justifications mechanism provided for in Article 100. provided for, and to the procedure for administering this safeguard clause, in which the role played by the Commission, far from being viewed as a matter of 'rubber-stamping', must be accorded sub- stantive importance so that the precondi- tions for invoking the derogation are prop-

Running counter to that endeavour is the power of the Member States to introduce unilateral derogations independently of the monitor- ing procedure provided for. If the ratio of the rule is to be respected, therefore, the 23. In that context, the 'compensatory' confirmatory decision — which is to be mechanism provided for by Article 100a(4) adopted by the Commission after verifying can only be intended to be by way of that the national measures notified to it do exception in relation to the aim pursued by not constitute 'a means of arbitrary discri- the other provisions laid down in Arti- mination or a disguised restriction on trade

Identical Member States place particular impor- considerations weigh in the case of the exceptions to the tance — the truth is that Community law rules on freedom of movement for employed workers, provided for in Article 48(3) of the Treaty, or of self- requires adequate protection to be given to employed workers, on the basis of Article 56 thereof, many of the States' priorities (health, safety, referred to again in Article 66 in the context of the freedom to provide services. environmental protection and consumer

26. Of course, my remarks in favour of a narrow interpretation of safeguard clauses 25. That observation is fully consistent are confined to the context of the internal with the location of Article 100a(4) in the market, in respect of which priority is to be conceptual structure of the Treaty. The accorded to harmonisation. In other con- Chapter of the Treaty dealing with the texts, safeguard clauses may operate differ- approximation of laws is juxtaposed with ently. This implicitly confirms that a more the rules on competition, comprising inter stringent approach is appropriate in the alia the rules governing State aid, in respect context of the relationship between harmo- of which analogous difficulties may arise. nising measures and the unilateral deroga- State aid may be granted in derogation tion governed by Article 100a(4). from the competition rules and is permis- sible only where particular needs are iden- tified, which the aid is designed to meet (Article 92(2) and (3) of the Treaty) and subject to supervision by the Commission. Article 93(3) provides, in respect of plans to grant new aid, for a procedure not unlike the procedure laid down in Article 100a(4). This is illustrated by the protection mea- The State must notify such plans to the sures to be adopted by the Council in Commission in sufficient time to enable it furtherance of Community environmental to submit its comments. If the Commission policy pursuant to Article 130s of the considers that such plans are not compa- Treaty. In that context, notwithstanding tible, it must 'without delay' initiate the harmonisation measures, Member States procedure provided for in Article 93(2), retain under Article 130t the option of but, pending a final decision, the Member 'maintaining or introducing more stringent protective measures'. They need only notify such measures to the Commission, and 15 — The Directive at issue in the present case is in large measure based on the need to protect human health, that is further intervention by the Community to say, it seeks to protect the very priority given as justification for the request for derogation under Arti- institutions is not contemplated. In this cle 100a(4). context, by contrast with the internal

This, to my mind, is the correct approach in the present case, even though it is not clearly indicated in the wording of Arti- cle 100a(4). Admittedly, the verb 'confirm' is used to describe the content of the Commission decision, but that confirma- tion is nevertheless conditional upon the Commission having 'verified' the legisla- Although such an interpretation may be tion notified and its impact on trade compatible with the wording of Arti- between Member States. By definition, cle 100a(4), it should not be forgotten that verification entails the evaluation of that this provision arises in the context of impact on the operation of the internal legislation which is primarily directed market and the national legislation may towards harmonisation (Article 100a(l)), apply only if its effects are found by the

17 — In the present case, Sweden notified the legislation to the Commission on 2 November 1995, whereas the deadline 16 — Case C-41/93, cited in footnote 1; see, in particular, for transposing the Directive into national law expired on paragraphs 29 and 30. 31 December 1995.

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not the protection of Member States' The justification of such an approach is powers of derogation. essentially based on the principles of legal certainty and the protection of legitimate expectations. Both principles are wholly frustrated where the Commission delays unreasonably, especially where important interests are at stake, such as those referred to in Article 100a(4). In reply to the second question referred by the national court, the need for confirma­ tion by the Commission must be affirmed, so that mere notification of measures cannot suffice for their application after the expiry of the deadline set by a directive for its implementation. It follows that provisions of a directive which are capable of direct effect must be accorded that authority even after the notification of conflicting provisions of national law.

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mission, 'the national provisions [...] shall tainty, since, up to that date, the State could be deemed to have been approved'. 20 lawfully apply its own legislation. As from that date, it would have to apply the harmonising measures if the Commission's findings were negative, but if, on the other hand, the Commission adopted a confir- matory decision, the State could continue to apply the legislation notified.

The variety of proposals reflects the fact that use of the interpretative method may 30. The Commission's inaction, which per- lead to the creation of a provision which sisted after the deadline for transposition of does not, in fact, exist. Article 100a(4) of the Directive into national law, may con- the Treaty sets no express limit on the time stitute an infringement of the Treaty; in within which the Commission must verify particular, it might constitute failure to act the national provisions notified. Of course, within a reasonable time in terms of the Commission is under a duty to act Articles 5 and 100a(4) of the Treaty. How- quickly to verify national legislation, just as ever, failure to fulfil obligations under the the State must notify such legislation as Treaty cannot be remedied by the distortion quickly as possible if it wishes to maintain of the proper relationship between Member it in force. 21 From this point of view — the State and Community institutions or by physiological, so to speak — of the inter- stripping a body of competence attributed action between State and Commission in to it by the Treaty — which would be the the application of a directive adopted under effect if it were found that the national Article 100a, the period within which the legislation notified should be deemed to be Commission must evaluate the legislation impliedly confirmed. notified could reasonably be said to expire on the date by which the directive must be implemented. This would avoid uncer-

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period following notification of the more tion. Of course, in the event that the restrictive national legislation and could Commission later adopts a confirmatory therefore be relied upon by the individual decision, the direct effect of the Directive against whom criminal proceedings are will be frozen and the national legislation being brought on the basis of that legisla- will apply.

Conclusion

33. In the light of the above considerations, I therefore propose that the Court reply as follows to the questions referred for a preliminary ruling by the Landskrona Tingsrätt:

(1) A directive adopted on the basis of Article 100a of the Treaty may have direct effect in national law, provided that its provisions are clear, precise and unconditional and that the deadline for transposition of that directive into national law has expired.