European Court of Justice Case Law Brief Denmark v Commission Case C-3/00

MEMORANDUM

TO : Clients and Interested Parties

DATE : April 23, 2003

RE : European Court of Justice – Case Law Brief

Denmark v Commission Case C-3/00

ECJ rules for the first time on the application of Article 95(4) of the EU Treaty to specify that Member States may rely on Article 30 of the EU Treaty to maintain national measures which pre-date the adoption of EU wide harmonised legislation provided that national provisions (1) ensure a higher level of protection than that of harmonised EU law & (2) do not go beyond what is necessary to achieve the objective

(i.e. they are proportionate to their aim).

By Directive 95/2/EC, the EU adopted harmonised provisions on the use of miscellaneous food additives, including sulphites, nitrates & nitrites in foodstuffs. Denmark voted against the Directive at the time of its adoption, on the ground that it did not meet public health requirements as regards sulphites, nitrates & nitrites. Instead, Denmark requested authorisation to maintain its existing national provisions relating to these additives relying on Article 95(4) of the EU Treaty. In 1999, the Commission issued a decision refusing to authorise the Danish national provisions which were considered disproportionate to the objective of protecting public health. Denmark therefore requested the Court of Justice annul this decision.

1. EU Law

Directive 95/2/EC on “food additives other than colours & sweeteners” lays down under parts B & C of Annex III conditions and levels of use for permitted sulphites, nitrites & nitrates.

Article 95(4) of the EU Treaty provides that “if, after the adoption by the Council or by the Commission of a harmonisation measure, a Member State deems it necessary to maintain national provisions on grounds of major needs referred to in Article 30, or relating to the protection of the environment or the working environment, it shall notify the Commission of these provisions as well as the grounds for maintaining them.”

2. National Law

Order N° 1055 of 18 December 1995 transposed Directive 95/2/EC into Danish law with the exception of certain Community requirements on sulphites, nitrites & nitrates. Instead, existing (more restrictive) Danish legislation on these substances was maintained (by Order N° 834 of 23^rd September 1996 supplementing Order N° 1055).

As a result, the European Commission adopted Decision 1999/830/EC on “the national provisions notified by the Kingdom of Denmark concerning the use of sulphites, nitrites & nitrates in foodstuffs”, which required Denmark to repeal its national derogating provisions. The Danish authorities duly complied & repealed the non-harmonised legislation in question (by Order N° 822 of 5^th November...