Opinion of Mr Advocate General Tesauro delivered on 13 March 1991

1 Original language: Italian.

2 It will be remembered that although the Court has on several occasions considered the scope of Article 100 it has not yet taken a position concerning Article 100a, a new provision introduced by the Single European Act for the purpose of approximating national legislation (the scope of Article 100a — in relation to Article 31 of the EAEC Treaty — is also the issue in Case C-70/88 European Parliament v Council, at present pending before the Court, in relation to Council Regulation (Euratom) No 3954/87 of 11 December 1987 laying down maximum permitted levels of radioactive contamination of foodstuffs and of feedingsstuffs following a nuclear accident or any other case of radiological emergency). As regards Article 130s, the Court recently analyzed its scope in relation to the provision concerned with commercial policy, Article 113, in its judgment in Case 62/88 Hellenic Republic v Council [1990] ECR I-1527.

3 See judgment in Case 45/86 Commission v Council [1987] ECR 1493, in particular paragraph 11.

4 At the hearing, the Commission partly amended its interpretation of the relationship between Articles 100a and 130s. It maintained that the two provisions have different purposes. Article 100a is concerned with the harmonization of national legislation, including that relating to the environment, designed to ensure attainment of the single market. By contrast, Article 130s is the basis for measures concerning environmental protection as such, that is to say those measures which are not concerned with harmonization of the rules relating to the functioning of the market. It follows, in the Commission's view, that the principle whereby special provisions are to be preferred is not appropriate to determination of the correct provision to be applied in a specific case. That principle is applicable to cases where the scope of a provision embraces that of another, more specific provision (for example the general principle of non-discrimination enshrined in Article 7 is specifically embodied in other provisions of the Treaty, such as Articles 40(3) or 48). Conversly, there is no overlap between the scope of Article 100a and that of Article 130s. Thus, all that is necessary is to establish whether, having regard to the subject-matter of the measure that it is intended to adopt, one provision or the other is found to be relevant. It should be emphasized, however, that despite that change in its reasoning, the Commission maintains substantially the same approach. Whether it is argued that Article 100a is a special provision or whether it is assumed that the scope of that provision is entirely distinct from that of Article 130s, in both cases the decisive question — in the Commission's view — is whether or not the directive in question, by virtue of its main purpose or centre of gravity, comes within the material scope of Classification of the legislation at issue.

5 Similarly, for the same reasons (impact on competition and on the market) Article 100 (alone) is used as the basis for directives that harmonize national legislation which, in areas other than the environment, in any way affects the conditions under which undertakings operate. See for example Council Directive 85/374/EEC concerning producers' liability for damage caused by defective products, or Council Directive 75/117/EEC concerning equal pay for men and women.

6 OJ 1984 C 127, p. 34

7 The Council did not oppose the inclusion of those statements in the file on the case but denied that they served to demonstrate that economic considerations played a more important role than those of an environmental nature

8 See: B. Langeheine, le rapproachemem des legislations nationales selon l'article IODA du traité CEE: l'harmonisation communautaire face aux exigences de protection nationales, Revue du marché commun, 1989, p. 347; CD. Ehlermann, The Internal Market Following the Single european Act, Common Markel Law Review, 1987, p. 361; R. Kromarcck, Commentaire de l'Acte unique européen en matière d'environnement, Revue juridique de l'environnement, 1988, p. 76; F. Roelants du Vivier c J. P. Hannequart, Une nouvelle stratégie européenne pour l'environnement dans le cadre de l'Acte unique, Revue du marché commun, 1988, p. 205; A. Saggio, le basi giuridiche della politica ambientale nell'ordinamento comunitario dopo l'entrala in vigore dell'Atto unico, Rivista di diritto europeo, 1990, p. 39.

9 Cade 15/81 ScAn/[1982] ECR 1409, paragraph 33.

10 Sec, lo ihat effect, C D Ehlermann, op cit., p. 369, according to whom the concept of an internal market implies the creation of conditions of competition which allow the free circulation of goods ; similarly, B Langehcine, op. cit., p. 350, who states that la creation du marche interieur ne s'epuise pas dans la suppression des frontières interieures mais englobe de façon nécessairement complémentaire un rapprochement des conditions de concurrence, afin de permettre une exploitation efficace et non discriminatoire des libertes fondamentales garanties par le traite