Opinion of the Advocate General — ECLI:EU:C:2000:603
Date: 2000-11-07
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Quantitative restrictions
Procedure: Action for failure to fulfil obligations - inadmissible
Origin: France

summary of the Commission's allegations. (8) The reasoned opinion to be submitted at a second stage on the basis of the facts set out in the letter of formal notice must clearly define the subject-matter of potential future infringement proceedings. It must contain a detailed, coherent description of the reasons forming the basis of the Commission's conviction that the Member State in question has violated an obligation incumbent upon it under the Treaty. (9) 31. The Commission's course of action does not meet this requirement. In cases like this, in which the draft submitted was later adopted without any change, no legal uncertainty should arise in relation to the future subject-matter of the dispute. However, the Member State could, for instance, partly take account of the Commission's objections contained in the detailed opinion. Certainly, it may then be open to question whether and to what extent the Commission would then consider the legal text, amended in part to meet its objective, to be unlawful. In this situation, the question of legal certainty arises. 32. The situation is also unclear if a long period of time elapses between the detailed opinion and the adoption of the national legal text. During that time, Community law, or indeed national law, could change, so that the draft might then be judged differently by the Commission. In such cases, too, it may not be sufficiently certain whether or not an infringement of obligations under the Treaty has taken place. 33. The amalgamation by the Commission of the procedure for the provision of information with the Treaty infringement procedure may therefore lead to uncertainty in relation to the assessment of the legal situation by the Commission and thus to uncertainty as to the subject-matter of any legal proceedings. 34. It could be objected that this uncertainty is removed by the issue of the reasoned opinion. This, however, appears insufficient. On the one hand, a certain period of time elapses between the Member State's response and the issue of the reasoned opinion, during which it is unclear whether the Commission is going to pursue proceedings at all. On the other hand, the document which is treated as a letter of formal notice once the condition suspending this status materialises no longer contains an initial delimitation of the subject-matter of the dispute if the legal situation is altered through the adoption of a new national law or new Community law. In this respect, the Commission's course of action does not satisfy the requirements of Article 226 EC. 35. The solution proposed here should not be treated as pure formalism if, in addition to the detailed opinion, the sending of a letter of formal notice having broadly the same content as the detailed opinion were required. It is necessary to distinguish between these two documents, for the reasons of legal certainty mentioned above, and for the following substantive reason: when the information procedure is being conducted, there is still no Treaty infringement: there is only a potential infringement. When the letter of formal notice is sent, on the other hand, a Treaty infringement has already taken place, always assuming the Commission's analysis to be correct. 36. This difference in the legal situation affects the attitude of the Member States. The urgency with which the Member State must act is different. In the first case, the Member State acts in conformity with the Treaty as long as it does not adopt the legal act. But in the second case the Member State is obliged to act without delay and to restore a situation in conformity with the Treaty. Also, this difference between the two situations, grounded as it is in the substantive law situation, justifies, besides the requirement of legal certainty, the clear formal distinction between them. 37. For these reasons, the distinction between the detailed opinion provided for by Article 9 of the Directive and the letter of formal notice provided for by Article 226 EC must be observed. Amalgamating them by inserting a suspensive condition is incompatible with Article 226 EC. 38. It must therefore be found that the Commission did not conduct the pre-litigation procedure in accordance with Article 226 EC, so that its action must be dismissed as inadmissible. 2. In the alternative: the merits of the Commission's application 39. Only in the alternative, in the event of the Court not accepting the argument set forth above but considering the action to be admissible, are its merits now considered. 40. The provisions of the contested order constitute a measure having an effect equivalent to a quantitative restriction in so far as it permits only the marketing of the substances and compounds listed in Article 2 in conjunction with Annex I, and in Article 4 in conjunction with Annex II. France justifies this measure on the ground that it is required in order to protect health effectively and the Commission in principle recognises this ground of justification. The only issue is whether the basic prohibition, subject to authorisation, introduced by the order is proportionate. The observations below will be confined to this aspect. 41. In areas not subject to Community law harmonisation, the Member States are basically permitted to provide for approval procedures for goods that are to be marketed on their territory. (10) The authorities of the Member States are, however, obliged to contribute towards alleviating checks in intra-Community trade and to take into consideration any technical or chemical analyses as well as laboratory tests already carried out in another Member State. (11) The checks carried out by the Member States must not go beyond what is necessary. It is for the Member State concerned to provide evidence that the measures selected are necessary to protect human health. (12) 42. A basic prohibition of substances other than those listed in the French order, coupled with the possibility for a product with a different substance to be permitted in an individual case on the basis of official authorisation, is apt for safeguarding health protection. However, the question is whether it is also a necessary means to achieve health protection. This may be a matter of doubt in that a mutual recognition clause, as required by the Commission, would render approval unnecessary in individual cases, and in this respect a less constraining means is available to achieve the desired objective. 43. The effect of the order in question is that each rubber product that may come into contact with foodstuffs, irrespective of whether or not it has already been subject to inspection in another Member State, must be subjected to an approval procedure. If it emerges that the product contains a basic material within the meaning of Article 2 that is not listed in Annex I, approval must be refused under Article 1 of the order. Only for additives within the meaning of Article 4 does the order also provide in Article 5 for the recognition of other substances if they have already been tested in other Member States. 44. The French Government has neither explained why the exhaustive listing in Annexes I and II is necessary in order to ensure comprehensive health protection nor shown that there is no alternative within the Community to the level ofprotection and checking and testing procedures applied in France in order to achieve the desired aim of health protection. In its letter of 9 August 1994, it merely stated that the provisions of the order were based on an opinion of the Conseil Supérieur d'Hygiène Publique de France. However, that body cannot be the sole agency to lay down adequate health protection standards in relation to the use of rubber products coming into contact with foodstuffs. The solution indicated by the Commission, namely the recognition of other checks and tests and of reports on them, is a measure which constitutes less of a restriction for the free movement of goods and which is apt to afford just as sufficient a safeguard for health protection. 45. France's willingness to take into consideration the results of tests in individual cases cannot shake that conclusion. Firstly, the wording of the order provides no guarantee that the French authorities will carry out an examination in an individual case. Operators cannot therefore see immediately whether authorisation will be granted in an individual case. Furthermore, the result of an individual examination would also lead to an amendment of the lists contained in Annexes I and II of the order. This way of gaining approval in individual cases would be likely to inhibit interstate trade unnecessarily and is therefore disproportionate. 46. For these reasons, the French order would constitute a disproportionate restriction of the free movement of goods. It would therefore be in breach of Article 28 EC. VI - Costs 47. In accordance with Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs of the proceedings if they have been applied for. France has not asked for the Commission to be ordered to pay the costs. Both parties must therefore bear their own costs. VII - Conclusion 48. On the basis of the foregoing, I therefore propose that the Court should rule as follows: (1) The action is dismissed as inadmissible. (2) Each party is to bear its own costs. 1: Original language: German. 2: - OJ 1983 L 109, p. 8. 3: - OJ 1989 L 186, p. 23. 4: - OJ 1993 L 175, p. 1. 5: - OJ 1989 L 40. p. 38. 6: - See paragraphs 18 to 20 of the order. 7: - Case 274/83 Commission v Italy [1985] ECR 1077, paragraph 19; Case C-135/94 Commission v Italy [1995] ECR I-1805, paragraph 5. 8: - Case 274/83 Commission v Italy, cited above at footnote 6, paragraph 21; Case C-135/94 cited above at footnote 6, paragraph 7. 9: - Case C-135/94, cited above at footnote 6, paragraph 7. 10: - Case 272/80 Franse-Nederlandse Maatschappij voor biologische Producten [1981] ECR 3277, paragraph 14; Case C-400/96 Harpegnies [1998] ECR I-5121, paragraph 33. 11: - Harpegnies, cited above at footnote 9, paragraph 35. 12: - Case C-228/91 Commission v Italy [1993] ECR I-2701, paragraph 27.