Land Oberösterreich and Republic of Austria v Commission of the European Communities.
Date: 2007-09-13
29. The procedures laid down in that article are initiated by a Member State notifying derogating national provisions to the Commission, followed by a stage in which the Commission carries out an assessment of the information in the file to determine whether the requisite conditions are fulfilled, and ends with the final decision approving or rejecting those national provisions. The Commission is not to reach a decision until it has verified that the national provisions are not a means of arbitrary discrimination or a disguised restriction on trade between Member States (see Case C‑512/99 Germany v Commission  [2003] ECR I‑845, paragraph 44).
30. Moreover, it is apparent from the case‑law of the Court that, having regard to the specific features of the procedure laid down in Article 95(4) EC, the principle of the right to be heard does not apply to that procedure ( Denmark v Commission , paragraph 50).
31. As regards the procedure laid down 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 by reason of a problem specific to that Member State arising after the adoption of the harmonisation measure (see, to that effect, Denmark v Commission , paragraph 57).
35. In that respect, the principle of the right to be heard, whose observance is ensured by the Court, requires a 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, and Denmark v Commission , paragraph 45).
36. 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 (see, inter alia, Denmark v Commission , paragraph 46). It has been held that the right to a fair hearing is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law and must be guaranteed even in the absence of any rules (see, inter alia, Joined Cases C‑48/90 and C‑66/90 Netherlands and Others v Commission  [1992] ECR I‑565, paragraph 44; Case C‑288/96 Germany v Commission [2000] ECR I‑8237, paragraph 99; and Case C‑287/02 Spain v Commission  [2005] ECR I‑5093, paragraph 37).
39. Furthermore, the Commission must be able, within the prescribed period, to obtain the information which proves necessary without being required to hear the notifying Member State before it takes its decision (see, concerning the procedure laid down in Article 95(4) EC, which is subject to the same time‑limits as those applicable to the procedure laid down in Article 95(5) EC, Denmark v Commission , paragraph 48).
43. Finally, in the light of the specific features of the procedure laid down in Article 95(5) EC, the similarities of that procedure with the one laid down in Article 95(4) EC and the common objective of those two paragraphs, which is to enable Member States to obtain derogations from harmonisation measures, there is no need to adopt a solution different from that adopted in respect of Article 95(4) EC. Consequently, the Commission is not required to observe the right to be heard before taking a decision under Article 95(5) EC (see, to that effect, as regards Article 95(4) EC, Denmark v Commission , paragraph 50).
57. That provision requires that the introduction of national provisions derogating from a harmonisation measure be based on new scientific evidence relating to the protection of the environment or the working environment made necessary by reason of a problem specific to the Member State concerned arising after the adoption of the harmonisation measure, and that the proposed provisions as well as the grounds for introducing them be notified to the Commission (Case C‑512/99 Germany v Commission , paragraph 80).
58. Those conditions are cumulative in nature and must therefore all be satisfied if the derogating national measures are not to be rejected by the Commission (see Germany v Commission , paragraph 81).
69. Finally, it follows from the case‑law that, since the conditions laid down in Article 95(5) EC are cumulative, there is no need to consider all those conditions if it is found that one of them has not been fulfilled (see, to that effect, Case C‑512/99 Germany v Commission , paragraph 88).