Keywords

Summary



Keywords

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Approximation of laws ° Measures for the attainment of the single market ° Concept ° Measures, if necessary individual, relating to a specific product ° Inclusion ° Directive 92/59 on general product safety ° Commission empowered to adopt a decision requiring Member States to take specific measures with respect to a particular product ° Power justified by the need to secure the free movement of goods whilst ensuring a high level of protection ° Breach of the principle of proportionality ° None

(EEC Treaty, Art. 100a(1); Council Directive 92/59/EEC, Art. 9)

Summary

The measures which the Council is empowered to take under Article 100a(1) of the Treaty are aimed at "the establishment and functioning of the internal market". Since in certain fields, and particularly in that of product safety, the approximation of general laws alone may not be sufficient to ensure the unity of the market, the concept of "measures for the approximation" of legislation must be interpreted as encompassing the Council' s power to lay down measures relating to a specific product or class of products and, if necessary, individual measures concerning those products.

Thus Article 100a(1) is the legal basis of the power, conferred upon the Commission by Article 9 of Council Directive 92/59 on general product safety, to adopt a decision requiring Member States to take measures whereby the placing of a specific consumer product on the market is restricted or that product is withdrawn from the market.

Under the directive, the responsibility for adopting the necessary provisions to ensure the health and safety of consumers lies in the first place with the Member State concerned. However, it is likely that differences will exist between the various measures adopted at national level, which may entail unacceptable disparities in consumer protection and constitute a barrier to intra-Community trade, whilst making it impossible to cope with emergency situations in which serious product-safety problems may affect the whole or a large part of the Community. Therein lies the justification for the Commission' s power ° on the basis of the information received, and to the extent that effective protection can be ensured only by action at Community level and no other procedure specifically applicable to the product can be used ° to act by adopting a decision in cases where a product placed on the market puts in serious and immediate jeopardy the health and safety of consumers in a number of Member States and those States differ with respect to the measures adopted or planned with regard to that product, that is to say, where such measures do not provide the same level of protection and thereby prevent the product from moving freely within the Community.

The conferral of those powers on the Commission is not in breach of the principle of proportionality. Those powers are appropriate for the purpose of attaining the objectives pursued by the directive, notwithstanding the difficulties which may arise if the appropriate measures are determined on a case-by-case basis, and they are not excessive in relation to the objectives pursued, since the infringement procedure under Article 169 of the Treaty does not permit the results set out in Article 9 of the directive to be achieved.