Case T‑198/12

Federal Republic of Germany

v

European Commission

(Approximation of laws — Directive 2009/48/EC — Toy safety — Limit values for nitrosamines, nitrosatable substances, lead, barium, arsenic, antimony and mercury in toys — Commission decision not to approve in full the maintenance of national provisions derogating therefrom — Time-limited approval — Proof of a higher level of protection for human health offered by the national provision)

Summary — Judgment of the General Court (Eighth Chamber), 14 May 2014

1.      Actions for annulment — Actions of the Member States — Action against a Commission decision not fully approving the retention of pre-existing national provisions in derogation — Admissibility not conditional on showing an interest in bringing proceedings

(Art. 263 TFEU)

2.      Acts of the institutions — Statement of reasons — Obligation — Scope — Decision in line with previous decisions — Need for an express statement of reasons only where the decision goes further than the earlier practice — Decision in the context of the procedure under Article 114(4) TFEU — Scope

(Arts 114(4) TFEU and 296, second para., TFEU)

3.      Approximation of laws — Article 114 TFEU — Procedure for approval of national provisions in derogation — Application seeking maintenance of pre-existing national provisions — Possibility of the applicant Member State basing its request on an assessment of the public health risk different from that used by the Union legislature — Obligation to establish a higher level of public health protection than the Union harmonisation measure — Duty to comply with the principle of proportionality

(Art. 114(4) and (6) TFEU)

1.      See the text of the decision.

(see paras 37, 38)

2.      Although a decision of the Commission which fits into a well-established line of decisions may be reasoned in a summary manner, for example by a reference to those decisions, the Commission must, if a decision goes appreciably further than the previous decisions, give an account of its reasoning. Review of the observance of the guarantees conferred by the European Union legal order in administrative procedures, such as the Commission’s obligation to give an adequate statement of reasons, is even more important in the procedure under Article 114(4) TFEU since the right to be heard does not apply to that procedure.

The statement of the reasons for a measure must be logical and contain no internal inconsistency that would prevent a proper understanding of the reasons underlying the measure. A contradiction in the statement of the reasons on which a decision is based constitutes a breach of the obligation laid down in the second paragraph of Article 296 TFEU such as to affect the validity of the measure in question if it is established that, as a result of that contradiction, the addressee of the measure is not in a position to ascertain, wholly or in part, the real reasons for the decision and, as a result, the operative part of the decision is, wholly or in part, devoid of any legal justification.

(see paras 47-50)

3.      A Member State may base a request to maintain its pre-existing national provisions on an assessment of the risk to public health different from that accepted by the EU legislature when it adopted the harmonisation measure from which the national provisions derogate. To that end, it falls to the requesting Member State to prove that those national provisions ensure a level of protection of public health which is higher than that of the European Union harmonisation measure and that they do not go beyond what is necessary to attain that objective.

Whilst the requesting Member State may, in order to justify maintaining national provisions, put forward the fact that its assessment of the risk to public health is different from that made by the EU legislature in the harmonisation measure, and that divergent assessments of those risks can legitimately be made, without necessarily being based on new or different scientific evidence, it is for that Member State to show in what respect the evidence previously submitted to the Commission was wrongly assessed by it and how it should be interpreted differently by the Court.

(see paras 70, 92, 100)