«(Approximation of laws – Directive 97/69/EC – Dangerous substances – More stringent national provisions – Application ratione temporis of Article 95 EC – Duty of cooperation – Conditions for the approval of new national provisions)»

Approximation of laws – Measures designed to complete the single market – Derogating national provisions – Monitored by the Commission – Legal basis – Scope ratione temporis of Article 95 EC – Respective obligations of the Commission and the Member States (EC Treaty, Art. 100a (now, after amendment, Art. 95 EC); Art. 95 EC) When a Member State initiates a procedure seeking to obtain authorisation from the Commission to introduce national provisions which derogate from a harmonisation measure on the basis of Article 100a(4) of the Treaty (now, after amendment, Article 95 EC), the Commission is fully entitled, following the entry into force of the new provisions of the EC Treaty, to base its decision on Article 95(6) EC.In the absence of transitional provisions, new rules apply immediately to the future effects of a situation which arose under the old rules.In that context, no new legal situation can be said to have been established before the final step in that procedure has been taken. It is only then that, through approval or rejection by the Commission, a measure likely to affect the earlier legal situation arises. Where the Commission's decision is adopted after the entry into force of Article 95 EC, the application of national provisions notified in accordance with Article 100a(4) of the Treaty does not reflect a legal situation already settled before the entry into force of the new provisions of the EC Treaty.Moreover, after they come into force, the Member State in question is deemed to know that the decision which the Commission adopts is necessarily based on the new legal basis constituted by Article 95 EC. The Commission is in no way required to inform the Member State of this, and in not doing so it infringes neither the right to a hearing of the Member State nor the principle which imposes on the Member States and the Community institutions a reciprocal duty of cooperation.see paras 43, 45-48, 61, 63

JUDGMENT OF THE COURT 21 January 2003 (1)

((Approximation of laws – Directive 97/69/EC – Dangerous substances – More stringent national provisions – Application ratione temporis of Article 95 EC – Duty of cooperation – Conditions for the approval of new national provisions))

In Case C-512/99,

applicant,

v

defendant, supported by

intervener,

APPLICATION for annulment of Commission Decision 1999/836/EC of 26 October 1999 on the national provisions concerning mineral wool notified by Germany derogating from Directive 97/69/EC adapting to technical progress for the 23rd time Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ 1999 L 329, p. 100),

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet, R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues (Rapporteur) and A. Rosas, Judges,

Advocate General: A. Tizzano,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 30 May 2002,

gives the following

EC Treaty

In the absence of a decision by the Commission within this period the national provisions referred to in paragraphs 4 and 5 shall be deemed to have been approved.When justified by the complexity of the matter and in the absence of danger for human health, the Commission may notify the Member State concerned that the period referred to in this paragraph may be extended for a further period of up to six months.

Directive 67/548/EEC

Directive 97/69/EC

Application by the German Government

The contested decision

Arguments of the parties

Findings of the Court

Arguments of the parties

Findings of the Court

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT

hereby:

Rodríguez Iglesias

Puissochet

Wathelet

Schintgen

Timmermans

Gulmann

Edward

La Pergola

Jann

Skouris

Macken

Colneric

von Bahr

Cunha Rodrigues

Rosas

Delivered in open court in Luxembourg on 21 January 2003.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President