Opinion of the Advocate General — ECLI:EU:C:2002:312
Date: 2002-05-30
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Action for annulment - unfounded
Origin: Germany

Summary of the Judgment 
Approximation of laws — Measures designed to complete the single market — 
Derogating national provisions — Monitored by the Commission — Legal basis — 
Scope ratione temporis of Article 95 EC — Respective obligations of the Commission and 
the Member States 
(EC Treaty, Art. 100a (now, after amendment, Art. 95 EC); Art. 95 EC) 
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SUMMARY — CASE CSU/99 
When a Member State initiates a procedure 
seeking to obtain authorisation from the 
Commission to introduce national provi­
sions which derogate from a harmonisation 
measure on the basis of Article 100a(4) of 
the Treaty (now, after amendment, 
Article 95 EC), the Commission is fully 
entitled, following the entry into force of 
the new provisions of the EC Treaty, to 
base its decision on Article 95(6) EC. 
In the absence of transitional provisions, 
new rules apply immediately to the future 
effects of a situation which arose under the 
old rules. 
In that context, no new legal situation can 
be said to have been established before the 
final step in that procedure has been taken. 
It is only then that, through approval or 
rejection by the Commission, a measure 
likely to affect the earlier legal situation 
arises. "Where the Commission's decision is 
adopted after the entry into force of 
Article 95 EC, the application of national 
provisions notified in accordance with 
Article 100a(4) of the Treaty does not 
reflect a legal situation already settled 
before the entry into force of the new 
provisions of the EC Treaty. 
Moreover, after they come into force, the 
Member State in question is deemed to 
know that the decision which the Commis­
sion adopts is necessarily based on the new 
legal basis constituted by Article 95 EC. 
The Commission is in no way required to 
inform the Member State of this, and in not 
doing so it infringes neither the right to a 
hearing of the Member State nor the 
principle which imposes on the Member 
States and the Community institutions a 
reciprocal duty of cooperation. 
(see paras 43, 45-48, 61, 63) 
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