Opinion of the Advocate General — ECLI:EU:C:2008:433
Date: 2008-07-17
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Pollution
Procedure: Action for annulment - successful;Appeal - successful
Origin: Netherlands

Summary of the Judgment 1. Approximation of laws – Measures intended to achieve the single market – Introduction of new national provisions in derogation (Art. 95(5) EC) 2. Environment – Formulation of Community policy – Obligation to take account of the available scientific and technical data (Arts 95(5) and (6) EC and 174(3) EC) 1. Article 95(5) EC requires that the introduction of derogating national provisions be based on new scientific evidence relating to the protection of the environment or the working environment made necessary by reason of a problem specific to the Member State concerned arising after the adoption of the harmonisation measure, and that the proposed provisions as well as the grounds for introducing them be notified to the Commission. Those conditions are cumulative in nature and must therefore all be satisfied if the derogating national provisions are not to be rejected by the Commission To determine whether those conditions are, in fact, satisfied, which can, depending on the circumstances, necessitate complex technical evaluations, the Commission has a wide discretion. The exercise of that discretion is not, however, excluded from review by the Court. Not only must the Community judicature establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it Moreover, where a Community institution has a wide discretion, the review of observance of guarantees conferred by the Community legal order in administrative procedures is of fundamental importance. Those guarantees include, in particular for the competent institution, the obligations to examine carefully and impartially all the relevant elements of the individual case and to give an adequate statement of the reasons for its decision. The review of observance of those procedural guarantees is even more important in the procedure under Article 95(5) EC since the right to be heard does not apply to it (see paras 52-57) 2. Under the first indent of Article 174(3) EC, the Commission is, as a rule, obliged to take account, in its decisions in the field of the environment, of all available new scientific and technical data. That obligation applies, particularly, to the procedure under Article 95(5) and (6) EC, for which taking account of new data forms the very foundation. (see para. 61)