When is harmonization harmonization ?

Several neat judgments have been handed down by the Court of Justice recently. Remember those yuk smokey bacon crisps popular in English pubs ? Well here's a case about their taste.

In Case C-66/04 United Kingdom v. European Parliament and Council the Court defines the powers of the institutions to adopt harmonization measures under Article 95 EC. You'll remember that Article 95 EC is the principal legal basis for the adoption of measures to bring about the internal market. It lays down that the Council (and European Parliament) can adopt measures "for the approximation of [...] law, etc. " in the Member States. So can Article 95 EC be sued to adopt a measure which does not of itself bring about any harmonization of national law ?

In this case, the United Kingdom sought annulment of Regulation (EC) No 2065/2003 of the European Parliament and of the Council of November 10th, 2003 on smoke flavourings used or intended for use in or on foods. It claimed that Regulation 2065/2003 didn't approximate or harmonize anything but just sets up a centralized procedure at the EC level for the authorization of smoke flavorings for food (we're not making that up !). Consequently, Regulation 2065/2005 should not have been adopted under Article 95 EC but under Article 308 EC, which requires unanimity in the Council.

The Court dismissed the United Kingdom's action and held that Regulation 2065/2003 was validly adopted on the basis of Article 95 EC. It held that intervention by the Community was justified because of the difference in national rules on the evaluation and authorization of smoke flavorings which hinder their free movement. It went on that the Community legislature enjoyed a discretion as to how to harmonize national law and that it was possible to achieve harmonization in several stages. Where the Community legislature provides for harmonization in several stages, for instance the fixing of a number of essential criteria set out in a basic regulation followed by scientific evaluation of the substances concerned and the adoption of a positive list of substances authorised throughout the Community, two conditions must be satisfied :

First, the Community legislature must determine in the basic act the essential elements of the harmonising measure in question.
Second, the mechanism for implementing those elements must be designed in such a way that it leads to a harmonisation within the meaning of Article 95 EC. That is the case where the Community legislature establishes the detailed rules for making decisions at each stage of such an authorisation procedure, and determines and circumscribes precisely the powers of the Commission as the body which has to take the final decision. That applies in particular where the harmonisation in question consists in drawing up a list of products authorised throughout the Community to the exclusion of all other products.

The Court found that Regulation 2065/2003 fulfills both of those conditions.

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