The Commission’s assessment

As mentioned previously, it is for the Commission to approve or reject the national provisions within six months of the notification. The decision must be based on an assessment of the facts to determine ‘whether or not [the national provisions] are a means of arbitrary discrimination or a disguised restriction on trade between Member States and whether or not they shall constitute an obstacle to the functioning of the internal market’.⁴³

The Commission must examine whether the grounds put forward by the Member State are well founded.44 In doing this the Commission is not required to observe the right to be heard before taking a decision, that is, the Member State does not have the right to be consulted between the submission of the notification and the decision.45 However, as part of its assessment of the merits of the grounds put forward by the Member State, the Commission may need to have recourse to outside experts.

With respect to notifications of new national provisions, the Commission must first determine whether the Member State has satisfied the conditions set out in paragraph 5.46 Since these are so demanding, it is mostly in relation to notifications of existing provisions that the Commission has reason to engage with the conditions of paragraph 6. These are largely the same conditions as those in Article 36 TFEU. Guidance can thus be taken from how they have been interpreted in that context. There is, however, one significant difference. To the familiar prohibitions on arbitrary discrimination and disguised restrictions on trade between Member States has, in Article 114(6), been added the requirement that the national provision must not constitute an obstacle to the functioning of the internal market. This is a very peculiar condition. If taken literally it would pretty much preclude any national provisions derogating from a harmonising measure, since such a measure is only justified in areas where differences between the laws of the Member States may have a direct effect on the functioning of the internal market. The Commission has itself acknowledged the unreasonableness of this condition if strictly construed. In order to ‘preserve the useful character’ of the assessment it therefore construes it as a prohibition on any disproportionate effect in relation to the pursued objective.47 The assessment is thus one of proportionality.

As regards whether the measures are a means of arbitrary discrimination, the Commission typically confines itself to control if the measures apply to both domestic products and products made in other Member States, and if so conclude that there is no discrimination.⁴⁸ If the measures are in fact discriminatory it must go on to assess whether the discrimination is justified.

As for the required absence of a disguised restriction on trade, the Commission looks at whether the national measures are being applied for inappropriate reasons and in effect constitute economic measures to impede the importation of products from other Member States, that is, means of indirectly protecting national production.49 This includes national provisions constituting a disproportionate obstacle to the internal market^⁰

The Commission has repeatedly pointed out that it has to take as a basis ‘the grounds’ put forward by the notifying Member State and that the responsibility to prove that the national measures are justified lies with that State.5¹ However, the Commission is required to take account of all available new scientific and technical data when making its decision.52

If the Commission approves the notified measures it can limit its approval to a certain period of time or until specific measures are taken by the EU legislator.53

To avoid situations where the Commission’s inaction deprives a Member State of its right to maintain or adopt deviating national provisions without even having a decision which can be challenged before the Court, the Treaty of Amsterdam introduced a provision according to which notified national provisions are deemed to have been approved if the Commission does not make a decision within six months of the notification. When justified by the complexity of the matter and in the absence of danger for human health, this period may be extended for a further period of up to six months.

A notification does not relieve a Member State of the obligation to meet the requirements of a harmonisation directive. It is thus not authorised to deviate from maintaining the limit values for lead, barium, arsenic, antimony, mercury and nitrosamines, and nitro- satable substances in toys beyond the entry into application of Directive 2009/48/EC of the European Parliament and of the Council on the safety of toys [2012] OJ L 80/19, para 89.

• 48 Dec 2010/561/EU (n 47), paras 55—56. ⁴⁹ Ibid, paras 57 and 84.
• 50 Commission Decision (EU) 2015/826 concerning national provisions notified by Denmark on the addition of nitrite to certain meat products [2015] OJ L 130/10, para 51.
• 51 See, eg, Dec 2010/561/EU (n 47), para 38; Dec 2015/826 (n 50), para 30.
• 5² Case C-405/07 P Netherlands v Commission (n 42), para 61.
• 53 The Commission has repeatedly approved more stringent Danish provision on the addition on nitrates to meat products for a period of three years. The approval has been renewed twice, most recently by Commission decision 2015/826 (n 50). Finnish provisions prohibiting the placing on the Finnish market of phosphorous mineral fertilisers with a cadmium content exceeding 50 mg for each kilogram of phosphorous are approved until harmonised measures on cadmium in fertilisers are applicable at EU level. Commission Decision 2006/348/EC on the national provisions notified by the Republic of Finland under Article 95(4) of the EC Treaty concerning the maximum admissible content of cadmium in fertilisers [2006] OJ L 129/25.

the harmonising measure pending the Commissions decision, provided, if it is a directive, that the time for implementing it has ended.5⁴

When a Member State is authorised to maintain or introduce national provisions derogating from a harmonisation measure, the Commission must immediately examine whether to propose an adaptation to the harmonisation measure. Since the derogation means that there is no longer full harmonisation, it is logical that the Commission in such a case assesses if the harmonisation measure may be adopted to accommodate the derogation. The derogation also indicates that the EU measure may not provide a high level of protection. The Court of Justice has pointed out that such an adaptation could be appropriate when the national provisions offer a level of protection which is higher than the harmonisation measure as a result of a divergent assessment of the risk to public health.55

If the Commission or any Member State considers that another Member State is making improper use of the powers provided for in Article 114, it may bring the matter directly before the Court of Justice.

Interestingly, neither the fourth nor the fifth paragraph of Article 114 explicitly requires that the national provisions aim for a higher level of protection compared to the harmonising measure, whereas paragraph 7 refers to national provisions ‘derogating’ from a harmonisation measure. Does it mean that a Member State could be authorised to maintain or adopt national provisions that do not pursue a higher level of protection, or even pursue a lower level, compared to the EU standard? This is hardly a reasonable interpretation. As for the purpose of the so-called ‘environmental guarantee’, it was introduced through the SEA in response to concerns by some Member States that they would be forced to lower their higher level of protection relative to other Member States. The reason for introducing the possibility to maintain or introduce new national provisions was thus to enable a higher level to be maintained or introduced under certain specific conditions. It is also hard to see how national provisions pursuing a lower level of protection could be deemed ‘necessary’ by new scientific evidence relating to the protection of the environment. In fact, the General Court has referred explicitly to a need to prove that notified national provisions offer a higher level of protection. 5^fi

Conceivably, there could be situations in which a lower level of environmental protection is necessary to adequately address a problem relating to the working environment or one pertaining to another aspect of the environment. In such a case a lowering of the protection of the environment in one regard could be justified in order to address a problem pertaining to another aspect of the environment or to the working environment^^[1]

• [1] 57 See, for such a reasoning, Jans and Vedder European Environmental Law After Lisbon (n 13) 125.