When time limits result in a prohibition, the Commission cannot present its decisions as 'temporary authorisations' (T-198/12)

In its Judgment of 14 May 2014 in case T-198/12 Germany v Commission (Toy safety), the General Court of the European Union (GC) has established an interesting standard for the analysis of the criteria concerned with the imposition of time limits in the Commission's enforcement of Article 114 TFEU. In short, under Art 114(6) TFEU, despite the adoption of a harmonisation measure which has as its object the establishment and functioning of the internal market, and as long as it concerns health, safety, environmental protection and consumer protection, the Commission can authorise Member States to maintain (conflicting) national provisions on grounds of the major needs mentioned in Article 36 TFEU.
In the case at hand, Germany had requested authorisation to keep domestic rules that deviated from the new standards concerned with the presence of certain (toxic) metals in toys set by Directive 2009/48 on the safety of toys. Germany considered that the standards imposed by the new version of the toy safety directive where not supported by adequate scientific evidence and requested the Commission to authorise it to maintain the existing domestic standards, which had been developed on the basis of the previous version of the toy safety Directive 88/378/EEC.
The European Commission partly authorised the German measure and, for some substances, imposed a time restriction whereby the domestic standards could only be enforced until the approval of new EU standards or 21 July 2013, whatever came first. Germany challenged this aspect of the partial approval on two grounds: 1) that the Commission incurred in a contradiction when it imposed the time limitation on the authorisation, given that it had found that it was legitimate, justified and did not significantly restrict intra-EU trade in toys (and, hence, should be authorised without restrictions); and 2) that the specific time-limit imposed actually amounted to a prohibition, given that the date chosen by the Commission was fundamentally coincidental (or, as the Commission indicated during the procedure, diverged symbolically by one day) with the final date foreseen in Directive 2009/48 for the repeal of the pre-existing domestic standards.
The GC has upheld this point of Germany's appeal and, more importantly, has established the principle that the Commission cannot issue de facto prohibitions of domestic measures under the appearance of temporary authorisations, as that fundamentally infringes its duty to state reasons and motivate its decisions. It is interesting to stress that
Given that, on the one hand, the bioavailability limits set by Directive 88/378 should continue to apply until 20 July 2013 and, on the other hand, the maintenance of national provisions on lead is authorized only until 21 July 2013 (specifying that the difference between these two dates is merely symbolic), it should be noted, as the Federal Republic of Germany rightly points out, that the contested decision is equivalent, in terms of concrete results, to a negative decision--which, furthermore, the Commission has expressly acknowledged during the proceedings, as the institution has indicated in its decision that the [German] measure met the requirements of Article 114 TFEU, paragraphs 4 and 6 [...] It is clear, therefore, that the contested decision contains an internal contradiction that may hinder the correct understanding of the reasons on which it is based (T-198/12 at paras 64 and 65, own translation from Spanish).
This is an interesting case, given that the GC has focussed on the material or substantial elements of the Commission's Decision and its effects on the autonomy of the Member State to actually deviate from the harmonising measure after seeking approval uner Art 114 TFEU. Hopefully this will result in more clarity in the enforcement Decisions of the Commission in the future and will contribute to a more speedy revision of security standards when Member States challenge the scientific evidence used at EU level.