Proposal for a Council Regulation (EC) creating a mechanism whereby the Commission can intervene in order to remove certain obstacles to trade (98/C 10/13) (Text with EEA relevance) COM(97) 619 final - 97/0330(CNS)

(Submitted by the Commission on 26 November 1997)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 235 thereof,

Having regard to the proposal the Commission,

Having regard to the opinion of European Parliament,

(1) Whereas in its conclusion the Amsterdam European Council of 16 and 17 June 1997 invited the Commission to examine ways and means of guaranteeing in an effective manner the free movement of goods, including the possibility of imposing sanctions and requested the Commission to submit relevant proposals;

(2) Whereas as provided for in Article 7a of the Treaty, the internal market comprises an area without internal frontiers in which, in particular, the free movement of goods is ensured in accordance with the provisions of Articles 30 to 36 of the Treaty;

(3) Whereas breaches of this principle, such as occur when products originating in other Member States are prevented from moving or destroyed, or their importation abruptly suspended without justification, may cause grave disruption to the proper operation of the internal market and inflict very serious losses on the individuals affected, while the procedures provided pursuant to Articles 169 and 186 of the Treaty are not capable of ensuring that such breaches are remedied in due time;

(4) Whereas such breaches may result not only from the action but also from inaction on the part of a Member State; whereas this is the case, in particular, where the action is taken by private individuals and the Member State fails to implement any necessary and proportionate measure available to it for safeguarding the free movement of goods without affecting the exercise of fundamental rights recognized under national law;

(5) Whereas, in the absence of immediate intervention, there is a risk that the disruption or loss in question will continue, increase or intensify; whereas there may be a breakdown in trade and the contractual relations which underlie it;

(6) Whereas, in addition, this type of situation may call into question the achievements and the credibility of the internal market;

(7) Whereas Community law offers no adequate means for putting an end to such obstacles with the efficiency and urgency and whereas injured parties have no appropriate instrument to rely on in defending their rights;

(8) Whereas the Commission should be able to intervene with the Member State concerned by way of decision in order that it speedily and effectively corrects the aforementioned breaches of the principle of free movement of goods, and individuals can defend their rights within the national legal system;

(9) Whereas, if the Member State concerned fails to comply with its decision, the Commission should be in a position speedily to refer the case to the Court of Justice pursuant to Article 169 of the Treaty, whereas, to this end, strict time limits must be provided for the pre-litigation phase of the procedure;

(10) Whereas the Treaty provides for no powers, other than those in Article 235 of the Treaty, for the adoption of this Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

1. This Regulation shall apply to clear, unmistakable and unjustified obstacles to the free movement of goods, within the meaning of Articles 30 to 36 of the Treaty, originating in an action or inaction on the part of a Member State; which:

- lead to serious disruption of the free movement of goods,

- cause serious loss to the individuals affected,

- require immediate action in order to prevent any continuation, increase or intensification of the disruption or loss in question.

2. Inaction within the meaning of this Regulation exists when a Member State, in the presence of actions taken by private individuals, fails to implement any necessary and proportionate measure available to it for safeguarding the free movement of goods without adversely affecting the exercise of fundamental rights recognized under national law.

Article 2

Where the Commission establishes the existence in a Member State of obstacles within the meaning of Article 1, it shall address a decision to the Member State directing it to take the necessary and proportionate measures to remove the said obstacles, within a period which it shall fix.

Article 3

1. The Commission shall open the procedure provided for in this Article not later than five days following the day on which it becomes fully apprised of all the facts concerning the obstacles.

2. Before adopting the decision provided for in Article 2, the Commission shall give the Member State concerned an opportunity to make known its point of view within a period which it shall fix with reference to the urgency of the case, and which shall in any event comprise between three and five working days from the day on which the Commission raises the issue with that Member State.

3. The Commission shall adopt the decision referred to in Article 2 as soon as possible and not later than ten days following the expiry of the period provided for in paragraph 2.

Article 4

1. Where a Member State to which a decision is addressed fails to comply with it within the prescribed period, the Commission shall immediately put it on notice to submit its observations within three days.

2. Where the obstacle continues after the expiry of the period of three days mentioned in paragraph 1, the Commission shall immediately issue a reasoned opinion calling on the Member State to comply with it within three days.

3. Where, by the end of the period referred to in paragraph 2, the Member State has not complied with the reasoned opinion, the Commission may institute proceedings before the Court of Justice.

Article 5

The Commission shall publish in the Official Journal of the European Communities decisions which it adopts pursuant to Article 2 and shall immediately transmit the text to any interested party which so requests.

Article 6

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member States.