Keywords

Summary



Keywords

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1. Approximation of laws ° Measures for establishing the single market ° Derogating national rules ° Review by the Commission ° Procedure

(EEC Treaty, Arts 8a and 100a)

2. Acts of the institutions ° Statement of reasons ° Obligation ° Scope ° Decision based on Article 100a(4) of the Treaty, confirming national rules derogating from a harmonization measure

(EEC Treaty, Arts 100a(4) and 190; Commission Decision of 2 December 1992)

Summary

1. While, under the system laid down by Articles 8a and 100a of the Treaty for the approximation of the laws of the Member States for the establishment or functioning of the internal market, Article 100a(4) allows a Member State, under the conditions which it lays down, to apply rules derogating from a harmonization measure adopted in accordance with the procedure laid down in paragraph 1, that possibility, since it constitutes a derogation from a common measure aimed at attaining one of the fundamental objectives of the Treaty, namely the abolition of all obstacles to the free movement of goods between Member States, is, by virtue of paragraph 4, subject to review by the Commission and the Court of Justice.

Accordingly, where a Member State intends to continue to apply, after the expiry of the time allowed for transposing, or after the entry into force of, a harmonization measure mentioned in Article 100a, national provisions derogating from the measure, it is required to notify the Commission of those provisions. The Commission must satisfy itself that all the conditions for a Member State to be able to rely on the exception provided for by Article 100a(4) are fulfilled, and must establish in particular whether the provisions in question are justified on grounds of the major needs mentioned in the first subparagraph of Article 100a(4) and are not a means of arbitrary discrimination or a disguised restriction on trade between Member States.

Since measures for the approximation of the laws of the Member States which are such as to hinder intra-Community trade would be rendered ineffective if the Member States retained the right to apply unilaterally national rules derogating from those measures, a Member State is not authorized to apply the national provisions of which it has given notification until it has obtained a decision from the Commission confirming them.

2. The obligation under Article 190 of the Treaty to give reasons requires that the measures concerned should contain a statement of the reasons which led the institution to adopt them, so that the Court can exercise its power of review and so that the Member States and the nationals concerned may learn of the conditions under which the Community institutions have applied the Treaty.

Since, when it adopted its decision of 2 December 1992, based on Article 100a(4) of the Treaty, confirming the German rules concerning the prohibition of pentachlorophenol, the Commission confined itself to describing in general terms the content and aim of the German rules and to stating that those rules were compatible with Article 100a(4), without explaining the reasons of fact and law on account of which the Commission considered that all the conditions contained in Article 100a(4) were to be regarded as fulfilled in the case in point, the abovementioned decision does not satisfy the requirements of Article 190 of the Treaty and must be annulled for infringement of essential procedural requirements.