Opinion of the Advocate General — ECLI:EU:C:2002:314
Date: 2002-05-30
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Denmark

summary, I feel able to conclude that the Commission had many reasons for considering that the conditions for authorising the derogation requested by the Danish Government were not met. Although in justifying that conclusion the contested decision does not follow a very rigorous line of argument and in parts it is even open to criticism, I consider that the truly essential passages in the provision are correct and not vulnerable to the complaints made against it by Denmark. For that reason, I am of the opinion that the application must be dismissed in its entirety. Costs 128. Pursuant to Article 69(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party's pleadings. As the Commission has applied for the costs to be borne by the Kingdom of Denmark, which has failed in its submissions, the latter must be ordered to pay the costs. 129. Article 69(4) of the Rules of Procedure provides that the States which are parties to the EEA Agreement shall bear their own costs if they intervene in the proceedings. The Republic of Iceland and the Kingdom of Norway must therefore bear their own costs. IV - Conclusion In the light of the foregoing considerations, I therefore propose that the Court: (1) dismiss the application; (2) order the Kingdom of Denmark to pay the costs; (3) order the Republic of Iceland and the Kingdom of Norway to bear their own costs. 1: - Original language: Italian. 2: - OJ 1999 L 329, p. 1. 3: - European Parliament and Council Directive 95/2/EC of 20 February 1995 on food additives other than colours and sweeteners (OJ 1995 L 61, p. 1). 4: - OJ 1989 L 40, p. 27. 5: - The ADI is the average quantity that a person may ingest each day of their life without risk to health. 6: - See also the sixth recital. The Scientific Committee for Food was set up by Commission Decision 74/234/EEC (OJ 1974 L 136, p. 1). 7: - The other two are European Parliament and Council Directive 94/35/EC of 30 June 1994 on sweeteners for use in foodstuffs (OJ 1994 L 237, p. 3) and European Parliament and Council Directive 94/36/EC of 30 June 1994 on colours for use in foodstuffs (OJ 1994 L 237, p. 13). 8: - For the rules on sulphites in wines, Directive 95/2 refers to Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organisation of the market in wine (OJ 1987 L 84, p. 1), last amended by Council Regulation (EC) No 1627/98 (OJ 1998 L 210, p. 8), Article 65 of which lays down that the total sulphur dioxide content of still wines may ... not exceed ... 160 milligrams per litre for red wines; ... 210 milligrams per litre for white and rosé wines. 9: - SCF reports, 11th series. 10: - SCF reports, 35th series. 11: - SCF reports, 26th series. 12: - SCF reports, 38th series. 13: - As the table is to be found in paragraph 4 of the contested decision, I do not consider it necessary to reproduce it here. 14: - Sundhedsministeriets bekendtgørelse nr. 1055 af 18.12.1995 om tilsætningsstoffrer til levnedsmidler. Sundhedsmin., j.nr. 95-3400-24. Levnedsmiddelstyrelsen, j.nr. 100-0066. Lovtidende A hæfte 198 udgivet den 30.12.1995 s. 5571. GBEK. 15: - Council Document 11620/94 Add1 of 5 December 1994. 16: - The contested decision was notified to the Danish Government on 28 October 1999 by letter No SG(99) D/8669. 17: - Judgment in Case T-199/96 Bergaderm and Goupil v Commission [1998] ECR II-2805, paragraph 58; in support of this, see the judgment in Case T-521/93 Atlanta and Others v EC [1996] ECR II-1707, paragraph 70. 18: - Advocate General Saggio reached the same conclusion in the Burstein case, when he observed that under Article 100a(4), if, after the adoption of a harmonisation measure, a Member State deems it necessary to apply national provisions justified by the major (non-economic) requirements referred to in Article 36, or relating to protection of the environment or the working environment, it may do so only if it follows a given procedure and subject to a dual system of supervision, both administrative (entrusted to the Commission) and, where appropriate, judicial (Opinion in Case C-127/97 Burstein v Freistaat Bayern [1998] ECR I-6006, point 19, my italics). In a similar vein, see the Opinion of the same Advocate General in Case C-319/97 Kortas [1999] ECR I-3145, point 17). 19: - See in particular the judgments in Case 40/85 Belgium v Commission [1986] ECR 2321, Joined Cases C-48/90 and C-66/90 Netherlands and Others v Commission [1992] ECR I-565, paragraph 44, Case C-135/92 Fiskano v Commission [1994] ECR I-2885, paragraph 39, and Case C-32/95 P Commission v Lisrestal and Others [1996] ECR I-5373, paragraph 21. 20: - Judgment in Case C-69/89 Nakajima v Council [1991] ECR I-2069, paragraph 108. See also more recently, the judgment in Case C-288/96 Germany v Commission [2000] ECR I-8237, paragraph 99 et seq., in which the Court confirmed that observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question. See also the judgments in Cases 85/76 Hoffmann-La Roche v Commission [1979] ECR 461 for a procedure involving competition, 264/82 Timex v Council and Commission [1985] ECR 849 for anti-dumping procedures and 234/84 Belgium v Commission [1986] ECR 2263 on the procedure regarding State aids. 21: - As, for example, in the case of the procedure governed by Article 88(2) EC regarding State aids. 22: - In its rejoinder the Commission points out that a similar practice was followed for the Decision of 14 September 1994 concerning the prohibition of PCP notified by the Federal Republic of Germany (OJ 1994 L 316, p. 43), for the Decision of 26 February 1996 concerning the prohibition of pentachlorophenol (PCP) notified by Denmark (OJ 1996 L 68, p. 32) and, again, for the Decision of 21 December 1998 on the national provisions notified by the Kingdom of Sweden concerning the use of certain colours and sweeteners in foodstuffs (OJ 1999 L 3, p. 13). 23: - See points 33 to 35 above. 24: - Judgments in Cases 259/85 France v Commission [1987] ECR 4393, paragraph 13, and C-142/87 Belgium v Commission [1990] ECR I-959, paragraph 48. 25: - Case 234/84, paragraph 30. 26: - See, among many others, the judgments in Cases 5/77 Tedeschi v Denkavit [1977] ECR 1555, paragraph 35, 148/78 Ratti [1979] ECR 1629, paragraph 36, 251/78 Denkavit [1979] ECR 3369, paragraph 14, 190/87 Moormann [1988] ECR 4689, paragraph 10, and C-323/93 Crespelle [1994] ECR I-5077, paragraph 31. 27: - See, among many others, the judgments in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, Joined Cases C-267/95 and C-268/95 Merck and Beecham v Europharm [1996] ECR I-6285 and Case C-285/98 Kreil v Bundesrepublik Deutschland [2000] ECR I-69. 28: - Moreover, some of the literature had already taken this view from the very outset (see in particular C. Gulmann, The Single European Act - Some Remarks from a Danish Perspective, CMLR 24 (1987), pp. 31 to 40, especially p. 38). 29: - Opinion of Advocate General Tesauro in Case C-41/93 France v Commission [1994] ECR I-1831, point 14; my italics. The judgment in the case is to be found at ECR I-1829. 30: - Opinion of Advocate General Saggio in the Kortas case, point 23. 31: - Opinion of Advocate General Tesauro in Case C-41/93, point 4. 32: - I refer to the declaration by the Government of the Kingdom of Denmark (declaration No 18 annexed to the Single European Act) on Article 100a of the Treaty establishing the European Community: The Danish Government notes that in cases where a Member State is of the opinion that measures adopted under Article 100a do not safeguard higher requirements concerning the working environment, the protection of the environment or the needs referred to in Article 36, the provisions of Article 100a(4) guarantee that the Member State in question can apply national provisions. Such national provisions are to be taken to fulfil the above-mentioned aim and may not entail hidden protection. 33: - Opinion in Case C-41/93, point 4. 34: - It is true that the SCF recommended, as it did five years previously, that exposure to preformed nitrosamines in food should be [reduced] ... to the minimum required to achieve the necessary preservative effect and to ensure microbiological safety, but it also noted that the residual quantity of nitrites authorised by Directive 95/2/EC (Table I) is much higher than estimates based on the maximum levels of added nitrites and nitrates which, according to the information obtained by the Committee at the time of the previous report, can be justified on technological grounds (Opinion of 1995, pp. 3 and 22 et seq.). 35: - The article provides for the establishment of national systems to monitor the consumption and use of food additives and that the Commission, on the basis of the results of the checks and data on changes in the food additives market, can review the conditions of use of such substances and propose amendments where necessary. 36: - According to paragraph 3 of Annex II to Directive 89/107, the evaluation of the possible harmful effects should also take into account, for example, any cumulative ... effect; this is a guideline, however, not an injunction (the italics are mine). 37: - According to paragraph 24 of the decision, which was not contested as far as this aspect is concerned, the ADI comprises a habitual safety factor of 100, which may be as high as 500. 38: - See paragraphs 63, 85, 96, 106 and 109.