Communication from the Commission concerning article 95 (paragraphs 4, 5 and 6) of the treaty establishing the European Community
Date: 2002-12-23
Institutions: European Commission
Subjects: EU law - national law, European Union membership, derogation from EU law, operation of the Institutions

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 23.12.2002
COM(2002) 760 final

COMMUNICATION FROM THE COMMISSION

CONCERNING ARTICLE 95 (paragraphs 4, 5 and 6)
OF THE TREATY ESTABLISHING THE EUROPEAN COMMUNITY

   
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INTRODUCTION

The Treaty of Amsterdam has introduced major changes in the new Article 95 of the
EC  Treaty  concerning  the  possibility  for  Member  States  to  maintain  or  introduce
national  provisions  that  are  incompatible  with  a  harmonisation  measure  adopted  at
Community level, where this is justified by fundamental requirements, in particular
the protection of health or the environment. (Annex I)

The  Treaty  requires  the  Commission  to  approve  or  reject  the  national  provisions
notified to  it  under  Article  95  TEC.  However,  if  the  Commission  does  not  adopt  a
formal decision within six months from the date of notification, the notified measures
are deemed to be approved.

The Commission's handling of these notifications is based on the text of the Treaty
and  takes  into  account  the  case  law  of  the  Court  of  Justice  relating  to  the  former
Article 100a(4) of the EC Treaty in as far as it remains relevant to the interpretation
of the new provisions1.

The  Commission  will  ensure  that  the  provisions  of  Article  95  (paragraph  4-6)  are
applied in a full and well balanced manner so as to allow, where justified and without
jeopardising the unity of the internal market, application of national measures which
are incompatible with the Community rules.

SUBMISSION OF NOTIFICATIONS

Requests by Member States for derogations should refer to a harmonisation measure
adopted under Article 95 TEC (ex Article 100a of the EC Treaty2).

Notifications  should  include  the  actual  text  of  the  national  provisions  which  the
Commission  is  being  asked  to  approve  together  with  a  statement  setting  out  the
grounds justifying these provisions.

In  the  case  of  a  request  for  an  authorisation  to  maintain  national  provisions
(Article 95(4) TEC), such provisions should have been adopted and have entered into
force  before  the  Community  harmonisation  measure  was  adopted  or  –  as  the  case
may be – an Accession Treaty enters into force, or before a derogation granted to a
Member State by a measure based on Article 95 or an Accession Treaty expires. In
the  case  of  a  request  for  an  authorisation  to  introduce  national  provisions
(Article 95(5) TEC), such provisions should not have been adopted or have entered
into  force  before  the  harmonisation  measure  was  adopted.  Article  95(5)  TEC

Judgment of the Court of 17 May 1994, case C-41/93 French Republic v Commission of the European
Communities  ECR  I-1829,  opinion  of  Mr  Advocate  General  Tesauro  delivered  on  26  January  1994.
Judgment of the Court of 1 October 1998 in Case C-127/97 Willi Burstein v Freistaat Bayern (in the
judgment the Court, taking account of its reply to the first reference for a preliminary ruling, does not
reply to the questions relating to Article 100a(4), but these are dealt with in the opinion of Mr Advocate
General Saggio delivered on 7 May  1998).  Judgment  of  the  Court  of  1  June  1999  in  Case  C-319/97,
Criminal  proceedings  against  Antoine  Kortas,  opinion  of  Mr  Advocate  General  Saggio  delivered  on
28 January 1999. Pending cases: C-512/99 Germany v. Commission, C-3/00 Denmark v. Commission.
Commission Decisions of 17.5.2002 (OJ L 132) and 24.5.2002 (OJ L 138) were based on notifications
related to Directive 76/116 based on Article 100 EEC

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concerns  national  provisions  that  a  Member  State  intends  to  introduce  after  the
adoption of a harmonisation measure.

Any  Member  State  wishing  to  maintain  national  provisions  that  are  incompatible
with  a  Community  harmonisation  measure  should  submit  its  notification  to  the
Commission as soon as possible after the date on which the Community measure was
adopted and before the date from which it applies, so that the Commission can take a
decision before the Community measure becomes applicable.

Any  Member  State  wishing  to  introduce  national  provisions  that  are  incompatible
with a  Community harmonisation measure  may notify the  Commission  at  any  time
after the adoption of that measure.

The  possibility  of  requesting  a  derogation  from  harmonised  rules  on  the  internal
market  must  be  interpreted  in  a  restrictive  manner,  in  line  with  the  purpose  of  the
provision in question. With regard to the former Article 100a(4), the Court has ruled
that the procedure laid down by that provision is intended to ensure that no Member
State  may  apply  national  rules  derogating  from  the  harmonised  rules  without
obtaining confirmation from the Commission.3

It is clearly incumbent on Member States to submit a notification to the Commision
promptly, once a harmonisation measure has been adopted and, in any event, in time
for a decision to be made on the notification and for national law to be amended if
this  rejected  ;  all  this  must  be  completed  by  the  date  from  which  the  Community
measure is due to apply4.

According to the case law of the Court of Justice5, the submission of a request for a
derogation does not authorise the Member State to apply the national provision until
the Commission has approved it or, in the absence of a decision by the Commission,
until six months have expired, when the request is deemed to have been approved.

HOW THE COMMISSION HANDLES NOTIFICATIONS

The  Member  State  should  submit  together  with  its  application  all  factual  and  legal
information and, where appropriate, scientific evidence that may serve to justify the
requested  derogation,  in  order  for  the  Commission  to  be  able  to  assess  the
admissibility and justification of the request.

The Annex II contains a template for notifying, listing information that a notification
should  include,  in  particular  the  national  provisions  to  be  maintained  (Article  95.4
TEC) or to be introduced (Article 95.5 TEC), and the advanced grounds on matters
connected  with  the  protection  of  health,  the  protection  of  the  environment  or  the
protection of the working environment. This template is indicative, designed to assist
in setting out applications – it is not compulsory.

Paragraph  28  of  the  judgement  in  case  C-41/93,  see  also  paragraphes  27  and  28  of  the  judgement  in
case C-319/97 (Kortas).
Paragraph 35 of the judgement in case  C-319/97 states that  “it is incumbent on Member States  under
Article  10  EC  (ex  Article  5)  to  notify  as  soon  as  possible  the  provisions  of  national  law  which  are
incompatible with a harmonisation measure and which they intend to maintain in force”.
ibid.

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The notification, duly signed, with all submissions should be sent to the European
Commission, Secretariat General, BREY , B-1049 Brussels.

The  Commission  will  inform  all  Member  States  of  each  notification  it  receives  by
forwarding  a  'Notice'  containing  the  main elements  of the notification. The  'Notice'
will also be published in the Official Journal. The Commission reserves the right to
pass  on  to  the  notifying  Member  State  observations  that  may  be  submitted  to  the
Commission  by  other  Member  States  or  other  third  parties.  Member  States  are
requested to inform the Commission if any document submitted is to be considered
confidential.  Other  Member  States  may  have  access  to  all  the  documents  in  a
notification file except those that are considered confidential.

To enable it to assess  the scientific arguments  put  forward by the  Member  State in
support of its notification, the Commission may call upon the services of independent
experts who are competent in the matter at issue.

Where the Commission finds a notification inadmissible or manifestly unfounded, it
reserves the right to take a decision without following any of the above procedures6.

THE DECISION TO APPROVE OR REJECT NOTIFIED NATIONAL PROVISIONS

Article 95(6) sets a deadline of six months for the Commission to decide on a request
for a derogation  under  Article  95(4) or (5) TEC. The time is  counted from the day
following the reception of the notification. The notifying Member State will receive a
letter of acknowledgement indicating this date.

If the notification concerns a complex matter and there is no danger to human health,
the deadline may be extended for a further period of up to six months (Article 95(6)
third  subparagraph).  Such  an  extension  will  be  notified  to  the  Member  State
concerned and published in the Official Journal.

Authorisation  to  maintain  a  national  provision  incompatible  with  a  harmonisation
measure  can  be  granted  only  if  it  is  justified  on  the  grounds  of  major  needs  in  the
notifying Member State as referred to in Article 30 TEC or relating to the protection
of the environment or the working environment (Article 95(4) TEC).

Authorisation  to  introduce  a  national  provision  incompatible  with  a  harmonisation
measure  can  be  granted  only  if  the  request  is  based  on  new  scientific  evidence
relating to the protection of the environment or the working environment on grounds
of a problem specific to the notifying Member State and arising after the adoption of
the harmonisation measure (Article 95(5) TEC).

In  all  cases,  authorisation  can  be  granted  only  if  the  national  provisions  are  not  a
means  of  arbitrary  discrimination  or  a  disguised  restriction  on  trade  between  the
Member  States.  The  Commission  will  also  verify  whether  or  not  the  national
provisions constitute an obstacle to the functioning of the internal market given that
such an obstacle cannot be disproportionate vis-à-vis the stated objective.

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See for example the Commission Decision of 25 July 2000 (OJ L 205/2000).

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The Commission's decision approving or rejecting the national provisions in question
will take the form of a reasoned decision, which will be notified to the Member State
concerned and published  in  the Official Journal. The Commission Decision will be
reviewable by the Court of Justice.

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ANNEX I

New Article 95 of the Treaty establishing the European Community

Article 95 (ex Article 100a)

1. By way of derogation from Article 94 and save where otherwise provided in this Treaty, the
following  provisions  shall  apply  for  the  achievement  of  the  objectives  set  out  in  Article  14.
The  Council  shall,  acting  in  accordance  with  the  procedure  referred  to  in  Article  251  and
after  consulting  the  Economic  and  Social  Committee,  adopt  the  measures  for  the
approximation  of  the  provisions  laid  down  by  law,  regulation  or  administrative  action  in
Member States  which  have  as  their  object  the  establishment  and  functioning  of  the  internal
market.

2. Paragraph 1 shall not apply to fiscal provisions, to those relating to the free movement of
persons nor to those relating to the rights and interests of employed persons.

3.  The  Commission,  in  its  proposals  envisaged  in  paragraph  1  concerning  health,  safety,
environmental  protection  and  consumer  protection,  will  take  as  a  base  a  high  level  of
protection,  taking  account  in  particular  of  any  new  development  based  on  scientific  facts.
Within  their  respective  powers,  the  European  Parliament  and  the  Council  will  also  seek  to
achieve this objective.

4. If, after the adoption by the Council or by the Commission of a harmonisation measure, a
Member State deems it necessary to maintain national provisions on grounds of major needs
referred  to  in  Article  30,  or  relating  to  the  protection  of  the  environment  or  the  working
environment,  it  shall  notify  the  Commission  of  these  provisions  as  well  as  the  grounds  for
maintaining them.

5. Moreover, without prejudice to paragraph 4, if, after the adoption by the Council or by the
Commission  of  a  harmonisation  measure,  a  Member  State  deems  it  necessary  to  introduce
national  provisions  based  on  new  scientific  evidence  relating  to  the  protection  of  the
environment  or  the  working  environment  on  grounds  of  a  problem  specific  to  that  Member
State arising after the adoption of the harmonisation measure, it shall notify the Commission
of the envisaged provisions as well as the grounds for introducing them.

6. The Commission shall, within six months of the notifications as referred to in paragraphs 4
and 5, approve or reject the national provisions involved after having verified whether or not
they  are  a  means  of  arbitrary  discrimination  or  a  disguised  restriction  on  trade  between
Member States and whether or not they shall constitute an obstacle to the functioning of the
internal market.

In  the  absence  of  a  decision  by  the  Commission  within  this  period,  the  national  provisions
referred to in paragraphs 4 and 5 shall be deemed to have been approved.

When justified by the complexity of the matter and in the absence of danger for human health,
the  Commission  may  notify  the  Member  State  concerned  that  the  period  referred  to  in  this
paragraph may be extended for a further period of up to six months.

7.  When,  pursuant  to  paragraph  6,  a  Member  State  is  authorised  to  maintain  or  introduce
national  provisions  derogating  from  a  harmonisation  measure,  the  Commission  shall
immediately examine whether to propose an adaptation to that measure.

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8. When a Member State raises a specific problem on public health in a field which has been
the  subject  of  prior  harmonisation  measures,  it  shall  bring  it  to  the  attention  of  the
Commission, which shall immediately examine whether  to propose appropriate measures to
the Council.

9.  By  way  of  derogation  from  the  procedure  laid  down  in  Articles  226  and  227,  the
Commission and 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 this Article.

10.  The  harmonisation  measures  referred  to  above  shall,  in  appropriate  cases,  include  a
safeguard clause authorising the Member States to take, for one or more of the non-economic
reasons  referred  to  in  Article  30,  provisional  measures  subject  to  a  Community  control
procedure.

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ANNEX II

TEMPLATE FOR NOTIFICATIONS UNDER ARTICLE 95 TEC

1.

Identification elements

– 

Harmonisation measure:

– 

identification of the harmonisation measure concerned

2.

Essential elements constituting the notification

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National provisions:

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the national provisions to be maintained (Article . 95.4)

the national provisions proposed to be introduced (Article 95.5)

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Grounds:

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the  advanced  grounds  or  explicatory  memorandum  with  regard  to
maintaining a derogation (Article 95.4)

the  advanced  grounds  or  explicatory  memorandum  with  regard  to
introducing a derogation (Article 95.5)

3.

Elements addressing the substantive conditions

– 

– 

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the  advanced  grounds  referred  to  in  Article  30  EC  Treaty  or  relating  to  the
protection  of  the  environment  or  the  working  environment  which  in  the
notifying  Member  State  justify  the  maintaining  of  the  national  provisions
(Article 95.4)

the  advanced  grounds,  based  on  specific  problems  in  the  notifying  Member
State, relating to the protection of the environment or the working environment
for introducing the national provisions (Article 95.5)

the  advanced  new  scientific  evidence  relating  to  the  protection  of  the
environment  or  the  working  environment  for  introducing  the  national
provisions (Article 95.5)

Socio-economic data:

a)  background:  available  economic  data  (economic  sectors  concerned,  production,
export/import, consumption, waste), likely trends

b)  evaluation  of  socio-economic  impact:  identification  of  at-risk  groups;  projected
effects of the Community measure.

Scientific data:

a)  available  scientific  data  on  the  risks  (i.e.  description  of  intrinsic  and  exposure
hazards) where the Community harmonisation measure is not adequate, e.g.:

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evaluation of the risks for health/environment/working environment, bearing in
mind the effects of Community provisions that have already been adopted;

risks associated with the use of increased amounts of substitute products;

new scientific information/studies and/or possible research in progress.

b)  scientific  data  on  the  specific  situation  of  the  Member  State,  e.g.  data  for  the
Member State compared with data for other Member States or a Community average
on:

– 

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quantities  produced  (if  any),  consumption  and  waste,  past  and  likely  future
trends;

emissions,  exposures  (for  humans  and  various  aspects  of  the  environment),
preferably measured, otherwise estimated;

anticipated benefits (in terms of reducing the risk/danger, exposure, impact on
humans or the environment), particularly in comparison with the effects of the
Community  provisions  (what  are  the  additional  benefits  expected  from
applying national measures?).

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