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

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61997J0319 European Court reports 1999 Page I-03143 5 Article 100a(4) of the Treaty of Rome? 3. If Question 2 is answered in the affirmative, how does the notification by the Member State affect the question of direct effect during the following periods: (a) between notification and reply? (b) from the reply?' Admissibility 15 The Danish and Dutch Governments maintain that the reply to the questions referred is not necessary for adjudication of the dispute in the main proceedings, since that dispute concerns events which occurred before the expiry of the deadline for transposition of the Directive into national law and Member States cannot assume, vis-à-vis their nationals, obligations under a Directive before the expiry of such a deadline. 16 In that regard it need only be stated that the national court, when called upon to adjudicate in criminal proceedings, must apply those provisions of law which are least harsh at the time when its decision is delivered. In so far as the provisions of the Directive are more favourable to Mr Kortas than the relevant provisions of national law, the questions referred for a preliminary ruling are objectively necessary in order to give judgment. 17 Consequently, the admissibility of the reference for a preliminary ruling cannot be disputed as regards the date of the entry into force of the Directive. 18 The French Government doubts whether the second question is admissible, maintaining that an answer is not necessary to enable the national court to give judgment in the main proceedings. It observes that the Kingdom of Sweden cannot rely on Article 100(4) of the Treaty because it did not participate in the procedure for adoption of the Directive, not being at that time a Member of the Community. 19 On that point, it need merely be stated that there is nothing in the wording of Article 100a(4) of the Treaty to suggest that a State which has joined the European Union after the adoption of a particular directive may not rely on that provision vis-à-vis that directive. Question 1 20 By its first question, the national court essentially asks whether a directive can have direct effect even though its legal basis is Article 100a of the Treaty and Article 100a(4) allows Member States to request a derogation from the implementation of that directive. 21 The Court has consistently held (see, inter alia, Case 8/81 Becker [1982] ECR 53, paragraph 25; Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraph 29; and Joined Cases C-246/94 to C-249/94 Cooperativa Agricola Zootecnica S. Antonio and Others [1996] ECR I-4373, paragraph 17) that, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by an individual against the State where that State has failed to implement the directive in national law by the end of the period prescribed or where it has failed to implement the directive correctly. 22 It is not decisive, in determining whether or not a directive has direct effect, that its legal basis allows Member States to apply to the Commission for a derogation from its implementation if they consider this necessary. The general potential of a directive to have direct effect is wholly unrelated to its legal basis, depending instead on the intrinsic characteristics referred to in paragraph 21 above. 23 The answer to the first question must therefore be that a directive can have direct effect even though its legal basis is Article 100a of the Treaty and Article 100a(4) allows Member States to request a derogation from the implementation of that directive. © An extract from a JUSTIS database 286
61997J0319 European Court reports 1999 Page I-03143 6 Questions 2 and 3 24 By its second and third questions, which it is appropriate to consider together, the national court essentially asks whether the direct effect of a directive, where the deadline for its transposition into national law has expired, is affected by the notification made by a Member State pursuant to Article 100a(4) of the Treaty, seeking confirmation of provisions of national law derogating from the directive. 25 It should be noted at the outset that where, after the expiry of the deadline for transposition into national law or after the entry into force of a harmonisation measure under Article 100a(1) of the Treaty, Member States intend to continue to apply provisions of national law derogating from that measure, they must notify those provisions to the Commission. 26 Also, the Commission must make sure that all the conditions for a Member State to rely on the exception provided for in Article 100a(4) are satisfied. This means that it must verify that the provisions at issue are justified by major needs, as referred to in Article 100a(4), first paragraph, and are not a means of arbitrary discrimination or a disguised restriction on trade between Member States. 27 The aim of the procedure under that provision is to ensure that no Member State applies national rules derogating from the harmonised legislation without obtaining due confirmation from the Commission. 28 As the Court has consistently held (Case C-41/93 France v Commission [1994] ECR I-1829, paragraphs 29 and 30), measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which are such as to hinder intra-Community trade would be rendered ineffective if Member States retained the right unilaterally to apply national rules derogating from those measures and a Member State is not, therefore, authorised to apply the national provisions notified by it under Article 100a(4) until after it has obtained a decision from the Commission confirming them. 29 The national court asks whether an exception to that principle arises where the Commission does not respond to the notification of measures by a Member State. 30 On that point, the Swedish, Danish, French, Netherlands and Austrian Governments maintain that the principle laid down by the Court in Case C-41/93, cited above, cannot apply when the Commission's reply is not given as quickly as possible or within a reasonable period of time. Since the Kingdom of Sweden notified the Commission in 1995 and to this day has received no reply, the principles of legal certainty and protection of legitimate expectations require that, where so much time has elapsed, confirmation of the national measures by the Commission should be deemed to have been acquired. 31 According to the Swedish and Austrian Governments, the two-month period which the Court considered to be reasonable in relation to the procedure under Article 93 of the EC Treaty (now Article 88 EC) concerning State aid (see Case 84/82 Germany v Commission [1984] ECR 1451, paragraph 11) could provide guidance as to the length of time which should properly be available to the Commission in the present context. The French Government, on the other hand, suggests that, as in the implementation of Council Directive 89/107/EEC of 21 December 1988 on the approximation of the laws of the Member States concerning food additives authorised for use in foodstuffs intended for human consumption (OJ 1989 L 40, p. 27), the Commission must respond without delay. 32 The Dutch Government proposes a six-month time-limit, as provided for in Article 95(6) EC. Under this provision, which amends and replaces Article 100a(4) of the Treaty, if the Commission has not expressed a view within six months of notification of provisions of national law, those provisions shall be deemed to have been approved. © An extract from a JUSTIS database 287
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