Federal Republic of Germany v Council of the European Union.
Date: 1994-08-09
4 Such measures include those with a view to:
"...
d) subjecting product marketing to prior conditions designed to ensure product safety and requiring that suitable warnings be affixed regarding the risks which the product may present;
e) making arrangements to ensure that persons who might be exposed to a risk from a product are informed in good time and in a suitable manner of the said risk by, inter alia, the publication of special warnings;
f) temporarily prohibiting, for the period required to carry out the various checks, anyone from supplying, offering to supply or exhibiting a product or product batch, whenever there are precise and consistent indications that they are dangerous;
g) prohibiting the placing on the market of a product or product batch which has proved dangerous and establishing the accompanying measures needed to ensure that the ban is complied with;
h) organizing the effective and immediate withdrawal of a dangerous product or product batch already on the market and, if necessary, its destruction under appropriate conditions".
22 As the Court stated in Case C-41/93 (France v Commission [1994] ECR I-0000, paragraph 22), for the purposes of implementing the objectives set out in Article 8a of the EEC Treaty (now Article 7a of the EC Treaty), Article 100a(1) of the Treaty empowers the Council to adopt, in accordance with the procedure laid down therein, measures which have as their object the abolition of barriers to trade arising from differences between the provisions laid down by law, regulation or administrative action in Member States.
33 For that purpose, Article 9 of the directive empowers the Commission, on the basis of the information received, to act 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. Article 9 provides that, 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, the Commission may adopt a decision requiring Member States to take temporary measures from among those listed in Article 6(1)(d) to (h).
37 Such action is not contrary to Article 100a(1) of the Treaty. The measures which the Council is empowered to take under that provision are aimed at "the establishment and functioning of the internal market". 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. Consequently, 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.
44 As the Court has consistently held (see, in particular, Case C-174/89 Hoche [1990] ECR I-2681, paragraph 19), the principle of proportionality requires that measures taken by the Community institutions should be appropriate to achieve the objective pursued without going beyond what is necessary to that end.