Kingdom of Denmark v Commission of the European Communities.
Date: 2003-03-20
45.  The principle of the right to be heard, whose observance is ensured by the Court of Justice, requires the public authority to hear interested parties before adopting a decision which concerns them (Case C-315/99 P   Ismeri Europea   v   Court of Auditors   [2001] ECR I-5281, paragraph 28).
46.  The Court has consistently held that the principle of the right to a fair hearing, to which the principle of the right to be heard is closely linked, applies not only to citizens but also to the Member States.  As regards the latter, that principle has been recognised in the context of proceedings brought by a Community institution against Member States, such as those concerning the review of State aid or the monitoring of Member State conduct as regards public enterprises (see, for example, Joined Cases C-48/90 and C-66/90   Netherlands and PTT Nederland   v   Commission   [1992] ECR I-565, paragraph 44, and Case C-288/96   Germany   v   Commission   [2000] ECR I-8237, paragraph 99).
48.  That procedure is initiated at the request of a Member State seeking the approval of national provisions derogating from a harmonisation measure adopted at Community level.  In its request, that Member State is at liberty to comment on the decision it asks to have adopted, as is quite clear from Article 95(4) EC, which requires that Member State to state the grounds for maintaining the national provisions in question.  The Commission in turn must be able, within the prescribed period, to obtain the information which proves to be necessary without being required once more to hear the applicant Member State.
50.  It follows that the principle of the right to be heard does not apply to the procedure provided under Article 95(4) and (6) EC.  Consequently, the first two pleas put forward by the Kingdom of Denmark must be rejected as unfounded.
Misinterpretation of the conditions of application in Article 95(4) EC
Arguments of the parties
57.  Article 95 EC, which under the Treaty of Amsterdam replaces and amends Article 100a of the Treaty, distinguishes between notified  provisions according to whether they are national provisions which existed prior to harmonisation or national provisions which the Member State concerned wishes to introduce.  In the first case, provided for in Article 95(4) EC, the maintenance of existing national provisions must be justified on grounds of the major needs referred to in Article 30 EC or relating to the protection of the environment or the working environment. In the second case, provided for in Article 95(5) EC, the introduction of new national provisions must be 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.
63.  In addition, the applicant Member State may, in order to justify maintaining such derogating national provisions, put forward the fact that its assessment of the risk to public health is different from that made by the Community legislature in the harmonisation measure.  In the light of the uncertainty inherent in assessing the public health risks posed by,   inter alia  , the use of food additives, divergent assessments of those risks can legitimately be made, without necessarily being based on new or different scientific evidence.
64.  A Member State may base an application to maintain its already existing national provisions on an assessment of the risk to public health different from that accepted by the Community legislature when it adopted the harmonisation measure from which the national provisions derogate.  To that end, it falls to the applicant Member State to prove that those national provisions ensure a level of health protection which is higher than the Community harmonisation measure and that they do not go beyond what is necessary to attain that objective.
82.  As regards the first part of the third plea, concerning the technological need to use sulphites, it must be accepted that technological need is closely related to the assessment of what is necessary in order to protect public health.  In the absence of a technological need justifying the use of an additive, there is no reason to incur the potential health risk resulting from authorisation of the use of that additive. The statement contained in paragraph 20 of the grounds for the contested decision, that the elements put forward by the Danish Government with regard to the technological need for the use of sulphites have nothing to do with the objective of public health protection, is clearly incorrect.