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61997J0319 European Court reports 1999 Page I-03143 1
Judgment of the Court
of 1 June 1999
Criminal proceedings against Antoine Kortas.
Reference for a preliminary ruling: Landskrona tingsrätt - Sweden.
Article 100a(4) of the EC Treaty (now, after amendment, Article 95(4) to (9) EC - Directive
94/36/EC on colours for use in foodstuffs - Notification of national legislation derogating therefrom -
No confirmation from the Commission - Effect.
Case C-319/97.
1 Acts of the institutions - Directives - Direct effect - Conditions - Legal basis of the directive - Irrelevant
(EC Treaty, Art. 100a (now, after amendment, Art. 95 EC))
2 Acts of the institutions - Directives - Direct effect - Conditions - Notification of a Member State in
accordance with Article 100a(4) of the Treaty (now, after amendment, Article 95(4) to (9) EC) - Irrelevant
- No confirmation by the Commission - No effect
(EC Treaty, Art. 100a(4) (now, after amendment, Art. 95(4) to (9) EC))
1 A directive can have direct effect even though its legal basis is Article 100a of the EC Treaty (now,
after amendment, Article 95 EC) and Article 100a(4) allows Member States to request a derogation from
the implementation of that directive. The general potential of a directive to have direct effect is wholly
unrelated to its legal basis, depending instead on its intrinsic characteristics.
2 The direct effect of a directive, where the deadline for its transposition into national law has expired, is
not affected by the notification made by a Member State pursuant to Article 100a(4) of the Treaty (now,
after amendment, Article 95(4) to (9) EC) seeking confirmation of provisions of national law derogating
from the directive, even where the Commission fails to respond to that notification.
The aim of the procedure under Article 100a(4) of the Treaty is to ensure that no Member State applies
national rules derogating from the harmonised legislation without obtaining due confirmation from the
Commission. Article 100a(4) is silent as to the time within which the Commission must adopt a position
with regard to provisions of national law which have been notified. However, that does not absolve the
Commission from the obligation to act with all due diligence in discharging its responsibilities.
Accordingly, although failure on the part of the Commission to act with due diligence following a
notification effected by a Member State under Article 100a(4) may therefore constitute a failure to fulfil its
obligations, it cannot affect full application of the directive concerned.
In Case C-319/97,
REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Landskrona
Tingsrätt, Sweden, for a preliminary ruling in the criminal proceedings before that court against
Antoine Kortas
on the interpretation of Article 100a(4) of the EC Treaty (now, after amendment, Article 95(4) to (9) EC)
and European Parliament and Council Directive 94/36/EC of 30 June 1994 on colours for use in foodstuffs
(OJ 1994 L 237, p. 13),
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, P.J.G. Kapteyn, G. Hirsch and P. Jann (Rapporteur),
Presidents of Chambers, G.F. Mancini, J.C. Moitinho de Almeida, D.A.O. Edward, H. Ragnemalm
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