Master's Program 2004/2005 Technical and Fiscal Barriers ... - Lexnet

61997J0319 European Court reports 1999 Page I-03143 4
7 The Kingdom of Sweden joined the Community by virtue of the Act concerning the conditions of
accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and
adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995
L 1, p. 1; hereinafter `the Act of Accession'), signed on 24 June 1994 with effect from 1 January 1995.
8 Under Article 151 of the Act of Accession, the new Member States may request certain temporary
derogations from acts of the institutions adopted between 1 January 1994 and the date of signature of the
Accession Treaty. Article 151(2) provides:
`At the duly substantiated request of one of the new Member States, the Council, acting unanimously on a
proposal from the Commission, may, before 1 January 1995, take measures consisting of temporary
derogations from acts of the institutions adopted between 1 January 1994 and the date of signature of the
Accession Treaty.'
9 In accordance with Article 151 of the Act of Accession, the Kingdom of Sweden submitted a request to
the Commission on 26 July 1994 seeking permission to maintain the prohibition on the use of E 124 in
foodstuffs. Apparently, discussions were held between the Swedish Government and the Commission, but
the Kingdom of Sweden was not successful in obtaining the derogation.
10 On 5 November 1995 the Swedish Government notified to the Commission a request for derogation
pursuant to Article 100a(4) of the Treaty, and advised the Commission of its intention to maintain in force
the provisions of national law concerning E 124. In support of its request, it argued that in Sweden the
use of certain colorants approved by the Directive could pose health risks. It is known that on occasion
these substances cause allergic reactions in humans, such as urticaria and asthma, which is why Sweden
adopts such a cautious approach in their regard.
11 The Commission did not reply to the Swedish Government's notification. In response to a question
from the Court, it indicated by letter of 16 July 1998 that a decision would shortly be adopted.
12 Relying on Article 2(1) and (2) of the Directive, which authorise the use in certain circumstances of E
124 in confectionery, Mr Kortas argued that the proceedings brought against him were based on national
legislation which was contrary to Community law and that they should therefore be discontinued. The
Public Prosecutor contended, on the other hand, that the Kingdom of Sweden should be deemed to have
obtained a derogation from the Directive in so far as the Commission has neglected, over a period of
years, to respond to Sweden's notification.
13 The national court, hearing the case at first instance, was uncertain whether in such circumstances the
Directive overrides provisions of national law and must be recognised as having direct effect. The events
in respect of which Mr Kortas is being prosecuted occurred before the expiry on 31 December 1995 of the
deadline for transposition of the Directive into national law, but effect must be given to the criminal law
in force at the time of the judgment. Article 5 of the Lag (1964:163) om införande av brottsbalken
(Swedish Law implementing the penal code) provides: `Penalties shall be fixed according to the statute in
force on the date when the offence was committed. If another statute is in force at the time when
judgment is given, whichever statute provides for exemption from punishment or provides for a lesser
penalty shall prevail.' In so far as the provisions of the Directive are more favourable to Mr Kortas than
those of the national law, it must therefore be determined whether the Directive has direct effect.
14 Those were the circumstances in which the Landskrona Tingsrätt decided to stay the proceedings and
refer the following questions to the Court:
`1. Can a directive adopted under Article 100a of the Treaty of Rome have direct effect?
2. If so, can such a directive have direct effect even if the State has made notification under
© An extract from a JUSTIS database
285