C-512/99

OPINION OF MR TIZZANO — CASE C-512/99

Introduction the Commission on the basis of the new Article 95(5) EC, a provision on which the Court has not yet had reason to rule.

2 — OJ 1999 L 329, p. 100. 3 — OJ 1997 L 343, p. 19. 4 — OJ, English Special Edition 1967 (I), p. 234, most recently 4. By contrast with Article 100 of the EC amended by Directive 1999/33/EC of the European Parlia- ment and the Council (OJ 1999 L 199, p. 57). Treaty, from which by express definition it

I-848

GERMANY v COMMISSION

constituted a derogation, Article 100a in The Commission shall confirm the provi- practice gave the Council the possibility of sions involved after having verified that deciding, by a qualified majority and in they are not a means of arbitrary discrimi- accordance with the cooperation procedure nation or a disguised restriction on trade laid down in Article 189b of the EC Treaty between Member States. (now, after amendment, Article 251 EC), to adopt the measures for the approximation of the provisions laid down by law, regu- lation or administrative action in Member States which have as their object the establishment and functioning of the inter- By way of derogation from the procedure nal market. Within this framework, para- laid down in Articles 169 and 170, the graph 3 of the article set a high level of Commission or any Member State may protection as the objective for such meas- bring the matter directly before the Court ures if they concerned health, safety, envi- of Justice if it considers that another ronmental protection and consumer pro- Member State is making improper use of tection. Indeed, it required the Commission the powers provided for in this Article.' to base its proposals for such matters on a high level of protection. However, as these were measures to be adopted by a qualified majority, and hence entailed the risk of sacrificing national needs worthy of pro- tection, the same article gave Member 6. The Treaty of Amsterdam made sub- States the possibility of derogating from stantive amendments to Article 100a of the the measures in question in order to protect EC Treaty, replacing paragraphs 3, 4 and 5 such needs. of that article with eight new paragraphs, numbered from 3 to 10. The article, as amended and renumbered as Article 95 EC, now reads as follows:

4. If, after the adoption by the Council or In the absence of a decision by the Com- by the Commission of a harmonisation mission within this period the national measure, a Member State deems it necess- provisions referred to in paragraphs 4 and ary to maintain national provisions on 5 shall be deemed to have been approved. grounds of major needs referred to in Article 30, or relating to the protection of the environment or the working environ- ment, it shall notify the Commission of these provisions as well as the grounds for "When justified by the complexity of the maintaining them. matter and in the absence of danger for human health, the Commission may notify the Member State concerned that the period referred to in this paragraph may be extended for a further period of up to six months. 5. Moreover, without prejudice to paragraph 4, if, after the adoption by the Council or by the Commission of a har- monisation measure, a Member State deems it necessary to introduce national provisions based on new scientific evidence 7. When, pursuant to paragraph 6, a relating to the protection of the environ- Member State is authorised to maintain or ment or the working environment on introduce national provisions derogating grounds of a problem specific to that from a harmonisation measure, the Com-

I - 850

GERMANY v COMMISSION

mission shall immediately examine whether B — The harmonisation directives to propose an adaptation to that measure.

I - 851

OPINION OF MR TIZZANO — CASE C-512/99

and preparations, 5composed of represen- 12. The classification criteria for dangerous tatives of the Member States, delivered an substances are laid down in Annex VI to opinion in this regard. All the Member Directive 67/548, 6taking account, in par- States with the exception of Germany ticular, of the toxicological, physical- ultimately approved the draft. chemical and ecotoxicological properties of the various substances. Within the different categories of dangerous sub- stances identified in this way there may be a further classification of risk on a descend- ing scale beginning with category 1, the most dangerous.

I-852

GERMANY v COMMISSION

II — Facts particular animal test or the value of a certain carcinogenicity index derived from the chemical structure of the substance (the KI Index) showed that the risk was 'not excessive'. In that case the mineral wool would not be classified as a dangerous substance and hence not even in the category of 'irritants', as provided for in Directive 97/69. 15. Germany implemented the directive in good time, amending its national legis- lation accordingly. However, as it did not consider the provisions introduced in this way to be sufficient to meet some of the major needs referred to in Article 36 of the EC Treaty (now Article 30 EC), 7 the German Government initiated a procedure to obtain authorisation and to adopt derogating measures under 17. Germany justifies its application not Article 100a(4) EC. only by criticising some procedures for assessing the carcinogenic potential of mineral wool indicated in Note Q of Directive 97/69, but also by claiming that specific scientific studies prove that the classification of certain types of mineral wool as 'category 3 carcinogens' under Directive 97/69 breaches the parameters laid down in the base directive, that is to say Directive 67/548. Moreover, it main- tains that a study for the European Chemi- 16. In particular, it requested authorisation cal Bureau by the joint research centre in to classify certain types of mineral wool as 1997 shows that the assessment criteria set 'category 2 carcinogens', as it considered out in that directive lead to inconsistent that they presented a higher degree of risk results. Choosing one or the other could than was attributed to them by Directive change not only the classification of indi- 97/69. For other types of mineral wool, vidual substances but even their relative however, the German Government concurs degree of risk. with the classification contained in Direc- tive 97/69 and therefore lists them among 'category 3 carcinogens'. According to Notes Q1 and Q 2 in the proposed national legislation, however, the new classification would not apply where the results of a

19. As regards the compatibility of the proposed measures with the Treaty, Ger- many points not only to the necessary and proportional nature of the measures but 21. As regards the classification of the also to the fact that they have a limited fibres as category 2 carcinogens, the Com- prejudicial effect on trade within the Com- mission decision merely states that there is munity. It maintains that the industries no comparison between the exclusion crite- producing mineral wool adapted years ago ria in the German Note Q1 and those laid to the information flowing from the scien- down in Note Q of Directive 97/69, in that tific and technical debate on which the they relate to a lower level of toxicity. With German proposal is based, indeed that they regard to fibres classified as category 3, the participated actively in that debate and in Commission considers the changes pro- the regulatory process and geared produc- posed by Germany to be unacceptable, in tion accordingly. In the view of the appli- particular the use of the KI Index, in that it cant government, the German measures 'has not been extensively tested'. More- would therefore not have an adverse effect over, it rejects the accusation of inadequacy on the movement of goods, or at most any that Germany levels at the harmonised such effect would be barely significant. legislation, invoking the report of the 'labelling experts', which refuted 'each individual argument presented. This included reference to the year long, in-

24. Germany's application is based on a series of arguments of various kinds that 22. Finally, assessing the German request can be summarised as follows. First and from the standpoint of Article 95(5) EC, foremost, Germany contends that the the Commission finds that the applicant decision is based on a provision government has not provided new scientific (Article 95(5)) which in reality was not evidence to justify the proposed measures applicable in the present case as it was not nor has it adduced a problem specific to in force at the time of the German request. Germany. Secondly, it alleges that the decision was the outcome of a procedure in which the Commission infringed both the right to a fair hearing and the duty to cooperate set out in Article 10 EC. In any event, it maintains that the decision should be annulled in that it rests on a false legal basis or, in the alternative, in that it is v i t i a t e d by m i s a p p l i c a t i o n of Article 95(5) EC and by errors of fact, in particular as regards the appraisal of the scientific evidence put forward by Ger- many. Lastly, it alleges that the Commis- sion was wrong in that it failed to apply 23. Germany has brought the present paragraph 6 of Article 95 EC. application against the said decision and seeks its annulment. In the course of the proceedings the Republic of Finland sub- sequently intervened in support of the Commission on certain specific points, of which I shall say more later.

10 — Decision, paragraph 14, second subparagraph. 25. I shall examine the six grounds of the 11 — Decision, paragraph 14, final subparagraph. application in the order I have indicated.

Arguments of the parties 29. Germany observes that the fact that Article 100a(4) refers explicitly only to Council directives does not mean that the provision cannot be applied when, as in the present case, the legislation at issue is a 27. Germany maintains that the Commis- Commission directive and in particular sion should have assessed the German when, as in the present case, the Commis- notification not on the basis of the current sion's regulatory power is based on a clause Article 95{5) EC but by applying of a Council directive and relates only to Article 100a(4) of the EC Treaty, in the the adaptation of the latter to technical version in force before 1 May 1999. This progress and when the Member State was the provision in force when Directive requesting the derogation was in a minority 97/69 was adopted, when that directive in the vote within the regulatory committee was transposed and at the date of the assisting the Commission for the purposes German notification (11 December 1998), of such adaptation. All the more so as in which made explicit reference to that the case under examination the Council provision. According to Germany, there- directive had been adopted unanimously. fore, only application of Article 100a(4) was consistent with the system of the Treaty and moreover there would have been no doubt on this point had examin- ation of the notification not lasted all of ten and a half months.

30. Lastly, the German Government objects that, even if Article 95 EC were held to be applicable, the Commission infringed the sixth paragraph of that provi- 28. The German Government also adds sion in that it failed to comply with the that there is a close link between the first time-limit of six months within which it is

allowed to adopt a position on an appli- denies that it intentionally delayed the cation from the State concerned. adoption of the decision requested by the German Government. Moreover, the time it took to complete the complex procedure was broadly the same as that taken by the German Government to prepare its appli- cation after approval of the Directive (in 31. The Commission replies that the prin- December 1997) and to notify it to the ciple of the attribution of tasks set out in Commission (in December 1998). It is true Article 7(1) EC requires the institutions to that, as the Court has clarified on another act on the basis of the powers conferred on occasion, 13 the Commission should have them when they adopt the measure. Fur- delivered the decision under Article 100a(4) thermore, the Treaty of Amsterdam laid as soon as possible; according to the down no transitional arrangements for the defendant, however, that parameter should provisions which it amended, so that the also be compared with the diligence dem- general principles on the temporal appli- onstrated by the Member State in notifying cation of the legal rules must be applied. the national provisions. As to the period of On this basis, and recalling the case-law of six months laid down in Article 95(6), the the Court, 12 the Commission points out Commission maintains that it was also that amending legislation applies not only complied with, because in the case in point to all situations arising after it comes into the period began on 1 May 1999, the date effect but also to the present and future on which the Treaty of Amsterdam came consequences of situations which arose into force, and not, as the German Govern- under the previous legislation; it cannot, ment contends, when the procedure was however, be applied to situations that are initiated, that is to say in December 1998. definitively settled nor used to modify existing legal relationships. In the present case, no settled legal situation had cryst- allised before the decision, because the notification of an application under Article 100a(4) EC does not in itself give rise to such a situation; only the decision of the Commission can have such an effect, 'defining' the legal relationship. Hence that Assessment is the moment to which reference must be made to establish the rules applicable at the time.

34. For my part, as I have sought to explain more fully elsewhere,14 I consider that 36. I observe first that all the provisions in there is substantial continuity between question patently meet the same concern to Article 100a(4) of the Treaty and the cater for two distinct needs that are not subsequent paragraphs 4 and 5 of always easy to reconcile: first, to give Article 95 EC and that the claimed dif- impetus to the establishment of the com- ferences between them are probably only mon market, and secondly to ensure high the result of a hasty reconstruction of the standards of protection of health, safety, legislative process that effected the transi- environmental protection and consumer tion from one to the other, in other words a protection. For the latter, in particular, reconstruction that stems from the notion the said provisions openly show the desire that Article 100a(4) only provided for the to take account of concerns legitimately possibility of maintaining national provi- expressed by the Member States in a legis- sions in derogation from a Community lative process which, from Article 100a harmonisation measure on the basis of an onwards, can now be decided by a qualified assessment of the need for such measures majority, although on the premiss that in that was left to the Member State con- principle such concerns are presumed to cerned; the subsequent Article 95 EC then have already been satisfied by the harmon- reiterated the same hypotheses in isation measure itself, given that it must by paragraph 4 and added another in definition be based on a high level of paragraph 5, regulated in a more analytical protection. and restrictive manner, to cater for the possible introduction of new national provisions in derogation from the aforesaid harmonisation measure.

down for pursuing the aims I have just requesting State and that problem must indicated ·— but for good measure they do have arisen after the adoption of the not always do so — and are due in part to directive). This could lead one to conclude a subsequent refinement of the rules and in that the said conditions do not apply to the part to the differences in the cases contem- fourth paragraph of Article 95 EC, just as plated. As to the first aspect, I note in they did not apply to the corresponding particular that Article 100a(4) referred paragraph of Article 100a; hence, at most generally to the situation where a Member there would be continuity only between State intended to 'apply' national provi- Article 100a(4) and the fourth paragraph of sions in derogation from a harmonisation Article 95. measure, giving rise to the erroneous belief that it was limited to the hypothesis of 'maintaining' such provisions. In reality this was not the case, as the wording already served to cover both the hypotheses in question, in other words both the main- tenance of existing provisions and the introduction of new ones. 15 Indirect con- firmation of this is to be found in the subsequent Article 95, which explicitly separated the two hypotheses, replacing the general term 'apply' with the more 39. There is no doubt that paragraphs 4 specific terms 'maintain' and 'introduce', and 5 of Article 95 lay down different rules, which in my opinion confirms that in as they refer to different situations; how- reality Article 100a previously covered ever, it is necessary to agree where those them both. differences really lie and what con- sequences they entail. In my opinion, they cannot but relate to the factor which plainly distinguishes the two situations in question from one another, that is to say the fact that the fifth paragraph refers to the introduction of derogating measures after the adoption of the Community 38. Despite this, and moving on to the measure and justified by new scientific second aspect, it could be objected that evidence. It follows that within the frame- only the fourth paragraph of Article 95 work of the more precise and developed r e p e a t s the general w o r d i n g of derogation regime provided for in Article 100a(4), whereas the fifth explicitly Article 95 EC the fifth paragraph of the requires certain conditions to be met for the provision is in turn even more 'special', so derogation to be authorised (the derogating to speak, than the preceding paragraph (as national provisions must be based on new to some extent is confirmed by the para- scientific evidence in the sectors indicated, graph itself when it gives precedence to that there must be a problem specific to the paragraph) and hence makes the hypothesis for which it provides subject to even stricter criteria than those laid down by the fourth 15 — Moreover, some of the literature from the very outset had paragraph, both as regards the 'major already taken this view (see in particular C. Gulmann, The Single European Act — Same Remarks from a Danish needs' considered — given that in this case Perspective, CMLR 24 (1987), pp. 31 to 40, especially p. 38). it is possible to introduce a safeguard

41. The fact that the requirement for a specific problem to exist also applies to the situation referred to in Article 95(4), as it did under Article 100a, appears to me to stem above all from systematic consider- ations. First and foremost, to the extent 40. But these last two conditions are that it creates an exception to the principles strictly interdependent, in the sense that of uniform application of Community law the specific nature of the problem is not and unity of the market, Article 95(4) EC sufficient to justify the subsequent national must, like all provisions which allow dero- measure: new scientific evidence must also gations, 'be strictly interpreted, so as to have emerged. If reference had been made ensure that it is not extended to cases other only to the first condition, it would have than those specifically provided for in it'. 16 been possible to find an argument in favour By contrast, the proposition criticised here of the position criticised here, but the would effect just such an extension. In any provision also demands new evidence; it is case, to me it seems very difficult to precisely for this reason that the fifth reconcile with that interpretative principle paragraph, but not the fourth, makes the claim of a Member State to rely in express reference also to the specific nature general terms on the inadequacy of the of the problem. As the evidence in question standard of protection guaranteed by the could be relevant to all or many other Community legislature as grounds for Member States, it became necessary here requesting, on the basis of a unilateral (but not in the fourth paragraph) to set out assessment of the need for raising that as clearly as possible a condition specific to standard, authorisation to maintain or the requesting State that is linked to the introduce a derogation from the provision new evidence and justifies in a special way and hence from the principle of unity of the a derogation for that State from the har- monisation measure. If this reconstruction failed to convince, it would have to be explained for what mysterious reason a 16 — Opinion of Advocate General Tesauro in Case C-41/93 France v Commission [1994] ECR 1-1829, paragraph 4.

market. On the contrary, it seems to me to be legitimately requested, and these that to allow such a claim would mean cannot but consist in a problem specific to transforming Article 95(4) EC into a veri- the State concerned for which the general table permanent opt-out clause from any measures contained in the directive are not harmonisation directive, in stark contrast able to cater. If it were a problem common with the principles and purposes of the to all or the majority of Member States, it system and with the logic which, in the would presumably already have been protection of the general interest, inspires resolved by the directive, but if that were the division of powers between the Com- not so, it would be necessary to verify munity and the Member States, all the whether the conditions for challenging the more so if one considers that the provisions directive directly were met, given that the under examination already take ample directive must already ensure not just account of the needs of the Member States general protection but a 'high level' of 'sacrificed' by the transition to majority protection; in any case, the problem would voting, given that they expressly introduce be of a general nature and it is not therefore a substantial derogation from the estab- possible to understand why it should be lished principle that where Community resolved only for the fortunate citizens of a harmonisation has taken place in a given single more meticulous Member State, to matter the Member States may no longer the detriment of the uniform application of adopt unilateral measures justified by the the harmonised rules and hence of the protection of the needs referred to in functioning of the common market. If, on Article 30 EC. 17 In the case under examin- the other hand, the level of protection were ation, provided the conditions are met, considered adequate, it is still not possible such measures can be authorised, and this to understand why one Member State in my opinion is already in itself a signifi- should be allowed the liberty to raise it cant reinforcement of the guarantees unilaterally, even with the laudable inten- sought. To go further, and to translate tion of ensuring an even higher level of those conditions into a possibility of dero- protection for its own citizens, again to the gations ad libitum, would not be a com- detriment of the unity of the market, unless promise but an abuse. this State can demonstrate the existence of a situation specific to itself that justifies such consequences.

national measures after the directive had 46. In this connection I recall that it is a been adopted, it must also be concluded generally accepted principle, endorsed by that it also had to require the existence of the consistent case-law of the Court, that factors not known or not considered pre­ legislation amending other legislation viously that could justify permitting that 'applies, unless otherwise provided, to the state to exempt itself a posteriori from future consequences of situations which Community harmonisation. arose under the previous legislation'. 18 In this regard one speaks of the immediate applicability of the legislation, in the sense that 'the temporal scope of a rule also includes the future effects of ongoing situations which were created but were not permanently fixed before the rule entered into force'. 19 It therefore becomes essential to establish the moment at which the legal situation became fixed, because 44. Without expatiating further on this this is the decisive moment for determining point, therefore, I merely reiterate my belief the applicable legislation; the situation in that the underlying reasons that led the question will be governed by the legislation German Government to insist on the com­ in force at the time at which it was fixed. plaint in question are probably less justified than that government avers.

47. From this point of view I believe I can agree with the observation of the Commis­ sion, which points out that the introduction of an application by a Member State under Article 100a(4) of the EC Treaty is not an appropriate means of establishing any (b) The applicability of Article 95 EC definitive legal situation in favour of the applicant, because only the subsequent decision by the Commission can produce such an effect. For the purpose of deter­ mining the applicable legislation it is there­ fore not the moment at which the appli-

cation is made that is relevant but the 49. In the light of the foregoing, I therefore moment at which the decision is adopted consider that the first plea should be by the Commission. Furthermore, the fact dismissed. that it is the latter that fixes the procedure seems to me to be confirmed indirectly by a reading of the Kortas judgment, in which the Court held that the mere notification under Article 100a(4) of the EC Treaty does not influence the direct effects of the directive until the Commission has adopted the authorising decision. 20 That decision 2. Failure to observe the principle of 'audi- therefore 'takes on the character of an atur et altera pars' and infringement of the authorising provision of a substantive duty of loyal cooperation nature', 21 that is to say a conditio sine qua non for the applicability of national provisions which are more restrictive than the directive. 50. The second plea adduced by the Ger- man Government is based on the alleged infringement by the Commission of the principle of audiatur et altera pars and the obligation of loyal cooperation enshrined in Article 10 EC.

I- 863

OPINION OF MR TIZZANO — CASE C-512/99

legislation. In this regard, the German fact that that Treaty contained no transi- Government points out first that in a tional provisions regarding the legislation similar case, which also involved the adop- relevant to the present case. According to tion of national provisions in derogation the Commission, there was therefore from a harmonisation directive, 23 the nothing to prevent Germany from amend- Commission took steps to notify in good ing its application accordingly after the time the change in the regulatory basis of Treaty of Amsterdam came into force. The the related procedure and the subsequent Commission also denies that its different decision. 24 Furthermore, the applicant gov- conduct in relation to the German measures ernment maintains that infringement of the on creosote can in any way support the duty of loyal cooperation is confirmed by applicant government's claim; indeed, it the fact that as the applicable provision submits that from that communication changed during the procedure and thus itself Germany should have deduced that prejudiced Germany's position, the Com- any application submitted on the basis of mission did not comply with the part of the Article 100a EC would be assessed from new provision that was favourable to the that time onwards on the basis of German State, that is to say the part Article 95 EC. Lastly, with regard to the relating to the maximum period of six claim that the Commission exceeded the months for adoption of its decision. period of six months laid down in the latter provision, I have already noted that, according to the Commission, that period began on the date on which the new Treaty came into effect.

I-864

GERMANY v COMMISSION

of the fact that the Treaty contained no State concerned to demonstrate a particular transitional provisions for the change-over degree of diligence (paragraph 35). from Article 100a to Article 95 EC, with the consequent possibility that the above- mentioned principles on the temporal suc- cession of rules would be applied. Nor can I go along with the deductions that the German Government draws from the com- munication sent by the Commission with 55. Lastly, with regard to the German regard to the change in the law applicable complaint about the length of the pro- to creosote. Indeed, as the defendant has cedure in question, it seems to me that the observed, far from being able to expect that Commission is right to rely on the fact that in other cases the Commission would apply the time-limit could not begin to run until the law previously in force, that communi- the new legislation came into force, given cation should have constituted, if ever there that the preceding legislation set no such was need, a further indication of the fact time-limit. that the system had changed on 1 May 1999.

I - 865

OPINION OF MR TIZZANO — CASE C-512/99

3. Wrong choice of Article 95(5) EC as the circumstances, there is no doubt, according legal basis to the Commission, that the appropriate legal basis of the decision could only be Article 95(5) EC.

57. The German Government then objects that, while acknowledging that in the present case Article 95 EC is applicable, the correct legal basis of the Commission decision is not paragraph 5 but paragraph 4 of that provision. It alleges that Article 95(4) EC, despite using the verb 59. In truth, it seems to me difficult to 'to maintain' in place of the more general contest that the verb 'to maintain' refers to 'to apply' that figured in the old text, also existing measures and the verb 'to intro- covers the situation in which new measures duce' to new ones. Moreover, in essence are adopted at the time of transposition of even the German Government does not the harmonised Community legislation. In contest this, given that it is attempting to any case, the German Government claims trace the derogating measures in question that the national provisions, for the intro- back to existing regulations in force in duction of which it requested authorisation other sectors of its law. in the present application, were in reality already in operation in that legislation, recalling in particular certain regulations in force under German labour law and the consensual procedure that had already been carried out with the industries concerned for the adoption of statutory standards. 26

fore no doubt that, for assessing the by the problem of mineral wool because of legitimacy of the subsequent introduction the widespread use of such fibres and the of such regulations, reference had to be particular social composition of the cat- made to paragraph 5 of Article 95. egory of users of mineral wool. With regard to the first aspect, it notes that in 1997 20 million cubic metres of mineral wool was consumed in Germany, out of a total of 60 million in the entire Union, and that the number of exposed workers is approaching 500 000, probably far higher than in the other Member States. This is not a function of the number of inhabitants, because the 4. Misapplication of Article 95(5) EC statistics on sales of mineral wool show that annual per capita consumption in Germany is 0.25 cubic metres, compared with a European average of 0.16 cubic metres. 61. In the alternative, Germany contests the correctness of the assessment made by the Commission on the basis of Article 95(5) because, in its opinion, the notification met all the conditions laid down in that provision: the national provi- sions are based on new scientific evidence on the protection of the environment and the working environment; the problem it is intended to address is specific to Germany and arose after adoption of the Community legislation. I shall examine the three con- ditions and the arguments about their alleged or denied existence, but not necess- arily in the above order.

63. As to the second aspect, the applicant government states that the German market consists largely of private individuals, 'do- it-yourself' users, without any specific training, partly because of the ease of use of these materials and partly because of the German desire to avoid, where possible, the Arguments of the parties use of paid manpower to carry out work not requiring specialist knowledge, in view of the high hourly cost of labour. This second group of users is not covered by the employment safety regulations, nor are 62. As to the specific nature of its situation they used to taking special precautions, for the purposes of relevance here, Ger- given that they are carrying out work for many claims that it is particularly affected their own account.

65. In such a context, according to the 67. Lastly, with regard to the existence of German Government, demand for insulat- new scientific evidence, the German Gov- ing materials must be expected to increase ernment states that scientific studies pub- substantially in the years to come, so that lished in 1998 and 1999, that is to say after the specific nature of the German situation the adoption of the directive, confirm is likely to be confirmed, particularly as suspicions about the possible carcinogenic greater sensitivity to ecological issues has effects of mineral wool and thus justify shown the need for a more efficient energy both the approach proposed by the German policy, so that the country will face a large authorities and the criticism of the criteria increase in the use of mineral wool in adopted in Directive 97/69. The German future. According to the applicant govern- Government notes, on the other hand, that ment, it is therefore no surprise that the the new evidence must be assessed respon- sibly, because it is known that scientific and technological progress does not usually 27 — The German Government notes in particular that Ger- advance by means of revolutionary inno- many is the member country with the coldest winters after Austria, with an average temperature of -1.4 °C. All the vations but is a continuous process of other members of the Union have average winter tempera- tures above zero. evolution. From that point of view, there-

I-868

GERMANY v COMMISSION

68. The Commission contests point by point the contention that the conditions required by Article 95(5) EC are met in the present case. 70. With regard to the scientific evidence used by Germany to support its appli- cation, the Commission objects to the late submission of the allegation by the appli- cant, given that the German notification did not refer to the studies that appeared in 1998, even though it was incumbent upon 69. First, it denies that the risks from the Germany to raise them. In the Commis- use of mineral wool give rise to a specific sion's view, the Commission can therefore German problem, and recalls the opinion of not be reproached for not having taken the CSTEE, according to which 'the rel- them into consideration in its decision. In evant scientific evidence mentioned... this respect it is also supported by the relates to the protection of the working arguments of the Finnish Government, an environment on grounds of a problem intervener in the present case, which denies which is not specific to the Federal Repub- that the scientific evidence adduced by the lic of Germany'. 28 In particular, the Com- German Government contains anything mission contends that the opposite cannot really new, and objects, more funda- be argued on the grounds of the high mentally, that there is no sound scientific number of inhabitants exposed, the wide- basis for distinguishing between carcino- spread use of mineral wool or the high genic and non-carcinogenic fibres; at most, energy wastage of energy for heating, as a distinction may be the result of a discretionary assessment, which should be made by the Community legislature, as in reality occurred here, without one Member 28 —CSTEE Opinion of 10 September 1999, cited above. Answer B. third paragraph; the italics are m the original. State being able to call it into question.

73. Moving on to examine the individual conditions, I observe first of all that the application notified in 1998 did not claim any specific feature in the factual situation in Germany that would justify the adoption 75. Hence, if the situation adduced by of measures different from those laid down Germany is not or has not been demon- in Directive 97/69. But even leaving that strated to be specific to that country, this finding aside and considering the reasons would in itself be sufficient to reject this subsequently adduced by the applicant ground, in the light of what I have said government in this action, the requirement previously. Despite this, I feel bound, for

I-870

GERMANY v COMMISSION

79. Having clarified that point, I observe nevertheless that in the present case it is no easy matter to take sides in the debate between the parties in this regard, because it tends to be confused on the one hand with the question of the late submission of 77. That having been said, I must never- the German allegations and on the other theless note that Germany appears to base with that of the assessment of whether they the communication of 1998 on an are well founded. I have already addressed unchanged factual situation, or at the very the first question above in general terms least not to bother to indicate any new with regard to the necessary conditions for factors, merely introducing in the course of the acceptance of an application under the case certain legislative factors that are Article 95(5), and from this point of view not current but only foreseen (associated I am bound to acknowledge that the alle- essentially with the Kyoto Protocol). It gations were submitted late; I shall deal therefore does not appear to me that this with the second, more complex, issue in the condition can be said to be met. pages that follow.

I - 871

OPINION OF MR TIZZANO — CASE C-512/99

5. Incomplete assessment of the evidence better than the debatable and tolerant and defective statement of reasons provisions of Directive 97/69. Instead, des- pite that situation of scientific uncertainty recognised by the Commission itself, the latter allegedly prevented the applicant from applying more stringent legislation.

Arguments of the parties

83. According to the applicant govern- ment, the first report merely states the 81. The applicant government reiterates in outcome of the debate between the parties, particular that the classification of a prod- without carrying out a detailed assessment uct as carcinogenic is necessarily linked not of the evidence provided by Germany and to the certainty of a carcinogenic effect in without taking account, in particular, of man but to the mere risk that this effect is the fact that the German protection meas- produced, especially in view of the long ures accord with established practice in the period of time which experimental and producing industry. Serious doubts can epidemiological observations show to then be raised as to the independence of elapse between exposure to a carcinogenic the three experts, given that two of them substance and the development of the had already adopted a position on the disease. In such a situation of uncertainty, question in previous committees estab- consideration of the supreme value of lished to assist the Commission in the human life and health should militate in procedure for the adoption of the directive favour of national norms which, in the light and the third was actually a consultant to of the results of scientific research, appear the Commission in the preparation of the able to protect such fundamental values proposal in question.

I-872

GERMANY v COMMISSION

88. Finally, as regards the claimed infringe- 85. Lastly, the applicant claims that the ment of the precautionary principle, the statement of reasons for the Commission Commission begins by stating that that decision is in obvious contradiction with principle must be applied within the system the positions previously adopted by the established by Article 95 EC and not take Commission. In particular, whereas the its place. This means that national safe- original draft directive was based on the guard measures may be accepted only if all KI Index, the decision reproaches Germany the conditions set out in Article 95(5) EC for having adopted that index on the are met and hence, in the present case, if it grounds that it is backed by insufficient is scientifically proven that they are necess- scientific evidence. ary and better able than the directive to protect the needs indicated in the said provision. If, however, that proof has not been provided because the scientific pos- ition cannot yet be assessed definitively, it is necessary to hold to the general appli- 86. The Commission replies first, on a cation of the Community legislation. general level, that the contested decision Hence, while recognising that where there cannot be criticised on the basis of a simple is doubt the precautionary principle can error in the assessment of the facts; as it is a lead to the adoption of higher protective

I - 873

OPINION OF MR TIZZANO — CASE C-512/99

90. Leaving that aside, however, I must agree above all with the applicant govern- ment on the shortcomings of the adminis- 92. Lastly, the applicant government com- trative procedure, because it also seems to plains of the failure to assess the German me that there are disconcerting contradic- measures in the light of Article 95(6) EC, tions in the reasons stated for the alleged submitting various arguments to demon- lack of scientific basis for the German strate that they would not have constituted application. In particular, this stems from arbitrary discrimination or a disguised the Commission's vague and cavalier refer- restriction on trade between Member ence to the report from the experts, which States. The Commission replies that as it is of pivotal importance in the decision, had already transpired that authorisation contrary to what it asserts with some was inadmissible in the light of the examin- embarrassment in its own defence. Indeed, ation of the requirements of the fifth

I-874

GERMANY v COMMISSION

95. To summarise, I feel able to conclude that the Commission rightly held that it is not Article 100a(4) of the Treaty but Article 95(5) EC that is applicable in the 98. Article 69(4) of the Rules of Procedure present case. Against that background, I provides that the Member States which have to find that the applicant government intervene in the proceedings shall bear their has not succeeded in demonstrating that the own costs. Finland will therefore bear its Commission unlawfully denied that two of own costs.

I- 875

OPINION OF MR TIZZANO — CASE C-512/99

IV — Conclusion

99. In the light of the foregoing considerations, I therefore propose that the Court declare:

(1) The application of the Federal Republic of Germany is dismissed.