Joined Cases C-439/05 P and C-454/05 P

Land Oberösterreich and Republic of Austria

v

Commission of the European Communities

(Appeal – Directive 2001/18/EC – Decision 2003/653/EC – Deliberate release into the environment of genetically modified organisms – Article 95(5) EC – National provisions derogating from a harmonisation measure justified by new scientific evidence and by a problem specific to one Member State – Principle of the right to be heard)

Summary of the Judgment

1.        Approximation of laws – Measures intended to achieve the single market – Introduction of new national provisions in derogation

(Art. 95(4) and (5) EC)

2.        Approximation of laws – Measures intended to achieve the single market – Introduction of new national provisions in derogation

(Art. 95(5) EC)

1.        In the light of the specific features of the procedure laid down in Article 95(5) EC, the similarities of that procedure with the one laid down in Article 95(4) EC and the common objective of those two paragraphs, which is to enable Member States to obtain derogations from harmonisation measures, the Commission is not required to observe the right to be heard before taking a decision under Article 95(5) EC.

It is not apparent, first, from the wording of Article 95(5) EC, that the Commission is required to hear the notifying Member State before it takes its decision to approve or reject the national provisions in question. Taking into consideration the specific features of that procedure, the authors of the Treaty merely laid down, in Article 95 EC, the conditions to be fulfilled in order to obtain a Commission decision, the period within which the Commission must issue its decision to approve or reject and possible extensions to that period.

Next, the procedure laid down in Article 95(5) EC, like indeed the one laid down in Article 95(4) EC, is initiated not by a Community or national institution but by a Member State, and the Commission’s decision is taken only in response to that initiative. In its request, the Member State is at liberty to comment on the national provisions it asks to have adopted, as is quite clear from Article 95(5) EC, which requires the Member State to state the grounds on which its request is based.

(see paras 37-38, 43)

2.        The lawfulness of national measures notified under Article 95(5) EC is closely linked to the assessment of the scientific evidence put forward by the notifying Member State.

That provision requires that the introduction of national provisions derogating from a harmonisation measure be based on new scientific evidence relating to the protection of the environment or the working environment made necessary by reason of a problem specific to the Member State concerned arising after the adoption of the harmonisation measure, and that the proposed provisions as well as the grounds for introducing them be notified to the Commission.

Those conditions are cumulative in nature and must therefore all be satisfied if the derogating national measures are not to be rejected by the Commission.

(see paras 56-58)