Keywords

Summary



Keywords

1. Actions for annulment – Actionable measures – Meaning – Measures producing binding legal effects

(Arts 95(4) EC and 230 EC; European Parliament and Council Directive 2002/45)

2. Actions for annulment – Actionable measures – Meaning – Measures producing binding legal effects

(Arts 95(4) and (6) EC and 230 EC)

Summary

1. A measure producing binding legal effects capable of affecting the interests of the applicant is an act or decision which may be the subject-matter of an action for annulment under Article 230 EC.

In that respect, a Member State cannot on the basis of Article 95(4) EC request the Commission to take a decision on the extent of harmonisation under a Community directive and/or on the compatibility of national legislation with such a directive. Since, according to that same provision, it is solely for the Member State concerned to take the decision to notify in order to obtain an authorisation by way of derogation and since, furthermore, no provision in Directive 2002/45 amending for the 20th time Directive 76/769 relating to restrictions on the marketing and use of certain dangerous substances and preparations (short-chain chlorinated paraffins) confers on the Commission the power to decide on its interpretation, a position adopted by the Commission on the scope of the harmonisation measure at issue constitutes a mere opinion, which is not binding upon the competent national authorities.

In such circumstances, it is not the interpretation of the directive at issue proposed by the Commission which is capable of producing legal effects but, rather, its application to a given situation. It follows that application of Directive 2002/45 – including as regards the need to obtain authorisation by way of derogation to maintain national legislation in force – does not result from the interpretation proposed by the Commission, but is the responsibility of the Member State concerned, which alone, if it deems it necessary, can initiate the notification procedure provided for in Article 95 EC.

Any obligation for the Member State to abolish or to amend its national provisions results directly from Directive 2002/45 and not from the interpretation given by the Commission of the extent of harmonisation under that directive, which means that such an interpretation produces no legal effect.

(see paras 47, 61-63)

2. Where the Commission restricts itself, in the context of the assessment of the admissibility of the notification under Article 95(4) EC, to recalling the extent of harmonisation by the directive at issue and to confirming the assessment made by the Member State which caused the latter to notify the national provision concerned, the outcome of such an examination is not capable of changing the legal position of the Member State concerned and thus of forming the subject-matter of an action for annulment, given that it is the notification by the Member State which initiated the procedure under Article 95(4) and (6) EC and not the Commission’s opinion on the interpretation of the harmonisation directive at issue. In the context of that procedure, such an opinion means only that the grounds put forward by the Member State will be examined for the purposes of possibly maintaining the notified national provisions.

(see para. 68)