Fog and acid rain drifting from Luxembourg over Art. 95(4) EC: Case C-3/00 Kingdom of Denmark v the Commission of the European Communities (Danish Food Case)

Article abstract:

Art. 95 EC illustrates the 'Janus-face' of the EC Treaty: While being perhaps the most important vehicle for an ever closer market integration, it also recognizes Member States' right to derogate from Community harmonisation in order to protect fundamental needs such as protection of public health and environment. On 20 March 2003, the European Court of Justice (ECJ) set out to clarify this dichotomy in a case concerning Denmark's right to maintain national provisions derogating from a Community Directive on the use of additives in foodstuffs. Apart from presenting an exhaustive interpretation of the conditions in Art. 95(4) EC, the ECJ also touched upon a variety of fundamental issues such as the right to be heard and the extent of judicial review. At first sight, the judgment seems to afford Member States considerable autonomy to maintain a higher level of protection of major needs, e.g. public health. However, upon closer scrutiny it appears that the ECJ may in fact have limited the scope of Art. 95(4) EC. As the Court also rejected Member States' right to be heard in derogation procedures and informed in an obiter dictum that it will not review the Commission's assessment of proportionality under Art. 95(6) EC, the judgment mirrors the Janus-face of the provision it attempted to clarify. In sum, it seems that Member States will have serious difficulties in fulfilling the conditions for maintaining a higher level of protection than Community standards. Furthermore, the ECJ has left the Commission with considerable discretion in deciding whether to approve or reject national legislation.

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