Opinion of Advocate General
Mr President,
Members of the Court,
1. The present action concerns the first occasion on which Article 100A(4) of the EEC Treaty, inserted by the Single European Act, has been applied.
2. On 17 December 1989, the Federal Republic of Germany adopted a regulation prohibiting the manufacture, marketing and use of PCP, its salts and compounds in preparations containing more than 0.01% of that substance, and of products which, as a result of being treated with such preparations, contain the substance in question in a concentration exceeding 5 mg/kg (ppm). The German regulation makes it possible, subject to authorization in each case, to derogate from the prohibition laid down in it only for the manufacture and use of PCP and its compounds which are employed in the synthesis of other substances or are obtained as byproducts or, finally, for use exclusively for scientific research: in such circumstances, risk-free disposal of waste materials must be guaranteed and adequate safety measures must be taken to protect workers and the environment.
3. Before examining the pleas in law put forward by the French Government as grounds for the annulment of the decision, I think it is appropriate to determine the precise scope of Article 100A(4). The less than crystalclear wording of the provision raises a number of problems of interpretation, which must be dealt with by way of preliminary. It provides:
4. Two preliminary observations of a general nature seem appropriate. The possibility granted to a Member State of continuing to apply its own national rules, even though the matter has been harmonized at Community level, is intended to ensure reinforced protection of certain particularly important interests and, above all, to answer the preoccupations expressed by a number of countries during the negotiations leading up to the Single Act to the effect that any harmonization adopted by a majority vote might result in a diminution of the degree of protection enjoyed by such interests at national level. In other words, the provision represents a counterweight to offset the relinquishment of the principle of unanimity with regard to the adoption of measures necessary for the creation and operation of the internal market, in the cases provided for in Article 100A(1).
5. The only reasons for which a State is entitled to continue to apply national provisions after a harmonization measure has been adopted are therefore those specifically indicated in Article 36 of the Treaty, in conjunction with the requirements relating to protection of the working environment and the environment in general. It is not necessary here to consider the precise scope of the interests which a country may invoke in order to enable it to derogate from harmonization measures; indeed, for the purposes of the present case, I believe it need merely be observed that the reasons set out in Article 100A(4) are certainly fewer in number than those considered by the Court in its decisions concerning quantitative restrictions and measures having equivalent effect, starting with the Cassis de Dijon case.
6. It also appears from the decisions on Article 36 that the pursuit of one of the objectives envisaged by that provision is not in itself sufficient to endow with legality national rules restricting intra-Community trade if they do not satisfy the further condition of being necessary and not disproportionate in relation to the aim pursued. According to those decisions, therefore, Member States may take measures to ensure adequate protection of the interest which is invoked and is deserving of protection at Community level, but at the same time they must have the least possible disruptive effect on trade: the State in question must therefore demonstrate that there are no other suitable means of achieving the aim pursued in a manner less restrictive of the movement of goods.
7. The formal aspects of Article 100A(4) call for only a few observations.
8. Having regard to the exceptional character of the power granted to the Member States by Article 100A(4), I believe that the logic of the system requires it to be offset by particularly incisive powers of review on the part of the Community institutions. The confirmation therefore constitutes in every sense an authorization from the Commission to derogate from the harmonization measure, with the result that a refusal would place the State in question under an obligation to bring its own legislation into line with the requirements decided on by the Council. Logically, therefore, the measure in question assumes the form of a decision within the meaning of Article 189 of the Treaty, against which an action may be brought under Article 173.
9. The foregoing considerations suggest a possible solution to a further problem, which, in any event, is of only marginal importance in the present case. I refer to the possibility that a Member State intending to rely on Article 100A(4) might apply its own legislation after the Community harmonization measure has entered into force but before the Commission decision has been taken. However, in view of the nature of that decision, I believe that that possibility must be excluded.
10. If that is the scope of Article 100A(4), I believe that we have before us all the information needed to dispose of the problems raised by the present case and to decide whether or not the action brought by the French Government is well founded.
11. As regards the substance of the application, the French Government puts forward two pleas in support of its claim that the decision should be annulled. First, it alleges an infringement of Article 100A(4), in so far as the Commission confirmed the German rules despite the fact that the information forwarded by the national authorities was not in fact such as to demonstrate that the almost total prohibition of using PCP was justified by the specific situation existing in Germany. In particular, no proof was given of such a threat to the environment as to render necessary even more stringent rules than those contained in the Community legislation, which already provides a high level of protection. Nor was it proved that the derogating measures are proportional to the aim pursued, having regard to the barriers to intra-Community trade which might result from it.
12. I think it is appropriate first to analyse the merits of the second plea and to determine whether, and if so how, the Commission justified maintaining the German rules in its contested decision. Of importance in that connection are paragraphs 4, 5, 8 and 9 of part II of the decision (Assessment), which I think it is appropriate to set out in extenso:
13. The Court has consistently held that the fulfilment by the Community institutions of their obligation to state the reasons on which their measures are based is to be viewed in the light of the nature and content of the measures in question: the statement of grounds must disclose in a clear and unequivocal fashion the reasoning followed by the authority from which the measure emanates, in such a way as to make the persons concerned aware of the reasons for the measure and thus enable the Court to exercise its supervisory jurisdiction.
14. If the foregoing principles are applied to the present case, it seems to me to be clear that the applicant's criticism concerning the inadequacy of the statement of reasons for the contested decision must be upheld. It is not inappropriate to draw attention again to the fact that the decision in question represents the first occasion on which Article 100A(4) has been applied and that, precisely because of the novelty of the situation and of the numerous interpretative doubts arising from that provision, an adequate statement of reasons was particularly necessary, inter alia to help clarify the conditions surrounding the application of that provision. However, notwithstanding that need, the decision justifies the German rules merely by observing that they are intended to protect the interests provided for by Article 36 or those relating to protection of the environment or working environment; and also that the prohibition of the use of PCP and its compounds, being broader than that provided for by the Community measure, guarantees a greater margin of safety. However, if a reference to those interests is not a sufficient justification for the purposes of Article 36, that is to say in an area which has not been harmonized, a fortiori it is not sufficient for a situation governed by Article 100A(4), which presupposes the adoption of a Community measure. Regard also being had to the higher standard of protection of those interests already provided by the harmonization directive, clear details should therefore have been given as to the specific requirements justifying the adoption of even more restrictive measures in Germany. However, nothing is stated in that regard.
15. I therefore consider that what we have here is a textbook example of an inadequate — indeed a nonexistent — statement of reasons: in any event, the grounds for the contested decision do not satisfy the minimum requirements imposed by Article 190 of the Treaty in order to enable the Court to exercise its supervisory jurisdiction in respect of the measure and to enable interested parties to put forward their views regarding the reality and importance of the facts and circumstances alleged to exist.
16. It follows from the foregoing that, in view of the laconic nature of the statement of reasons, it is not possible to examine the first criticism made by the applicant. Even the information needed in order to carry out such an examination is absent.
17. I therefore suggest that the Court uphold the French Government's application and annul the Commission's decision of 2 December 1992 by reason of its defective statement of reasons. The Commission should be ordered to pay the costs and the intervener should pay its own costs.
1 Original language: Italian.
2 The essential details of the preamble to the decision, and its operative part, are set out in a Commission communication published in Official Journal 1989 C 334, p. 8.
3 The text of the regulation is published in BGBl 1989 I, p. 2235.
4 OJ 1991 L 85, p. 34.
5 See, in that connection, Flynn, How will Article 100A(4) work? A comparison with Article 93, in CMLR 1987, p. 689 et seq.; Ehlermann, The internal market following the Single European Act, in CMLR 1987, p. 361 et seq.; Gulmann, The Single European Act; some remarks from a Danish perspective, in CMLR 1987, p. 31 et seq.; Jacqué, Les mesures dérogatoires unilatérales dans le marché intérieur: l'article 100A(4), /õrnades europees de Pasqua, Patronat Català Pro Europa, p. 64 et seq.; Langeheine, Le rapprochement des législations nationales selon l'article 100A du Traité CEE: l'harmonisation communautaire face aux exigences de protection naionale, RMC 1989, p. 347 et seq.; Mattera, Il mercato unico europeo, Turin, 1990, p. 168 et seq.; and Rossi, Il buon funzionamento del mercato comune, Milan 1990, p. 165 et seq.
6 Case 120/78 Revje v Bundesmonopolverwaltung für Branntwein [1979] ECR 649.
7 See in that connection the judgments in Case C-347/88 Commission v Greece [1990] ECR I-4747, in particular paragraph 58, Case 72/83 Campus Oil Limited [1984] ECR 2727, in particular paragraphs 37-46, and Case 153/78 Commission v Germany [1979] ECR 2555, in particular paragraphs 4 and 5.
8 That applies with greater force where the State fails entirely to notify to the Commission the national rules which it intends applying by way of derogation in accordance with Article 100A(4).
9 As occurred in the present case, in which Germany had given notice to the Commission well before the time-limit for the implementation in domesuc law of the harmonization measures under the directive of its intention to continue to apply the national rules, and the decision to confirm the rules was not made until several months after the expiry of the appointed period.
10 The German Government considers that the application is admissible merely because the Commission's confirmation measure has all the characteristics of a decision under the fourth paragraph of Article 189 of the Treaty and therefore constitutes an act of a Community institution for the purposes of the first paragraph of Article 173; this solution would therefore be valid regardless of the reply to be given to the question whether the Commission is entitled under Article 100A(4) to adopt a formal decision.
11 See the judgments in Case 22/70 Commission v Council [1971] ECR 263, in particular paragraphs 34-55, Case C-366/88 France v Commission [1990] ECR I-3571, in particular paragraph 8, and Case C-312/90 Spain v Commission [1992] ECR I-4117, in particular paragraphs II-20.
12 See, inter alia the judgments in Case 158/80 Rewe [1981] ECR 1805, in particular paragraphs 25 and 26, Case 185/83 Rijksuniversiteit te Groningen [1984] ECR 3623, in particular paragraph 38, Case 250/84 Eridania [1986] ECR 117, in particular paragraph 37, and Case 350/88 Delacre and Others [1990] ECR I-395, in particular paragraph 15.
13 See for example the judgment in Case 185/83 Rijksuniversiteit te Groningen, cited above, paragraph 38, and Case C-213/87 Gemeente Amsterdam and VIA [1990] ECR I-221, summary publication.
14 See the judgment in Joined Cases 209-215/78 and 218/78 van Landewyck [1980] ECR 3125, in particular paragraph 66.
15 See the judgment in Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek [1985] ECR 809, in particular paragraph 19.
16 See the judgments in Case 92/77 An Bord Bainne [1978] ECR 497, in particular paragraphs 36 and 37, and Case 185/83 Rijksuniversiteit te Groningen, cited above, paragraph 38.
17 See for example the judgments in Case 185/83 Rijksuniversiteit te Groningen, citea above, paragraph 39; Case 102/87 France v Commission [1988] ECR 4067, in particular paragraphs 29 and 30; Case 213/87 Gemeente Amsterdam ana VIA, cited above, and Case C-350/88 Detacre and Others, cited above, in particular paragraphs 15 to 19.