Keywords
Summary

Keywords

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)

Summary

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