WRITTEN QUESTION E-2426/00

by Jeffrey Titford (EDD) to the Commission

(18 July 2000)

Subject: Article 297 (ex Article 224) of the Treaty establishing the European Community

Can the Commission provide more precise information on the meaning of Article 297 (ex Article 224) of the Treaty establishing the European Community which states:

Member States shall consult one another with a view to taking in common the necessary steps to avoid the operation of the common market being affected by measures which a Member State may be called upon to take in case of serious internal disturbances affecting public policy mldr [EC Treaty: Member States shall consult each other with a view to taking together the steps needed to prevent the functioning of the common market being affected by measures which a Member State may be called upon to take in the event of serious internal disturbances affecting the maintenance of law and order mldr], in particular

1. Is it correct that Member States shall only consult one another with a view to taking common action if there are serious internal disturbances affecting public policy [EC Treaty: the maintenance of law and order], rather than serious internal disturbances not affecting public policy [EC Treaty: the maintenance of law and order]?

2. In the event of one Member State being judged to have affected the operation of the common market by taking measures, would the other Member States of the European Union be enabled, under Article 297, to take action against that Member State?

3. When Article 297 uses the term the necessary steps [EC Treaty: the steps needed] to avoid the operation of the common market being affected, could that include police or military action?

Answer given by Mr Bolkestein on behalf of the Commission

(12 October 2000)

Article 297 of the EC Treaty, ex Article 224, has rarely been invoked. As the Court of Justice stated in the case of Johnston v. Chief Constable of the Royal Ulster Constabulary(1) it concerns a wholly exceptional situation, in fact three such situations, in which a Member State may take action capable of affecting the functioning of the common market. Those three situations are, firstly, in the event of serious internal disturbances affecting the maintenance of law and order, secondly, in the event of war or serious international tension constituting a threat of war, and thirdly, in order to carry out obligations it has accepted for the purpose of maintaining peace and international security.

The serious internal disturbances which only require consultation between Member States in accordance with Article 297 are those affecting the maintenance of law and order. In this opinion in the case Commission v. Greece(2), the Advocate general considered that what seems to be envisaged is a situation verging on a total collapse of internal security, for otherwise it would be difficult to justify recourse to a sweeping derogation which is capable of authorising the suspension of all of the ordinary rules governing the common market.

The procedure to be followed if measures taken under Article 297 have the effect of distorting the conditions of competition in the common market is set out in Article 298 (ex Article 225) of the EC Treaty. The Commission examines with the Member State concerned how these measures can be adjusted to the rules laid down in the Treaty. Article 298 further specifies that the Commission or any Member State may bring the matter directly before the Court of Justice if it considers that another Member State is making improper use of the powers provided for in Article 296 and 297.

The sole implementation of this last provision is the case Commission v. Greece(3) where the Commission considered that Greece had made improper use of the powers provided in Article 224 (now Article 297) EC Treaty in prohibiting trade between its territory and the former Yugoslav Republic of Macedonia (FYROM) and that by so doing it had failed to fulfil its obligation under in particular Article 113 (now Article 133) of the EC Treaty. The case was finally discontinued at the request of the Commission because it considered that it no longer had an interest in pursuing the proceedings in view of the fact that a temporary agreement had been reached between Greece and FYROM on certain matters, as a result of which the former had lifted the trade restrictions it had imposed.

(1) Case 222/84 (1986) ECR 1651, paragraph 27 of the judgement.

(2) Case 120/94 (1966) ECR I-1514, paragraph 47 of the opinion.

(3) Case 120/94 discontinued by an Order of the President of the Court of 19 March 1996) ECR I-1535; see also the Order of the Court of 29 June 1994 where the Court dismissed the application for the adoption of interim measures lodged by the Commission (Case C-120/94R (1994) ECR I-3040).