Jean Monnet Center at NYU School of Law

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2.6. The burden of proving the breach: the Commission's or a Member State's obligation?

The basic principle here is that the Member State's obligation to provide accurate information is counterbalanced by the Commission's obligation to prove any failure. According to the ECJ, the Commission must prove that the responsibility incumbent upon a Member State has not been fulfilled by listing all the legal and factual grounds which led the Commission to the conviction that the State concerned failed to fulfil its obligations.[118] Indeed, the Commission has lost several cases from lack of adequate proof as a consequence of a demanding attitude of the ECJ in this respect.[119]

However, there are some cases where the Commission is discharged of that obligation.[120] First, the Commission's obligation of proof presupposes a Member State's obligation to facilitate the tasks of the Commission by providing accurate information because of the general obligation of cooperation foreseen by Article 5 EC Treaty and the scheme of Article 169. In fact, failure to provide the Commission with the information requested may itself be considered an infringement of Article 5.[121] Consequently, in this case, the Commission's obligation could be considered as discharged when the possible lack of evidence is due to the refusal of the Member State to cooperate.[122] In practical terms, this possibility implies that the Member State concerned will be obliged to prove that it provided all the information available, and there was indeed no breach of EC law. While in competition policy the Commission cannot compel a company to provide it with answers that might involve an admission on its part of the existence of an infringement, which it is incumbent upon the Commission to prove, Member States are obliged under Article 5 to always cooperate with the Commission.[123]

A second case where the burden of proof has become an obligation of Member States concerns the obligation to prove that national measures are necessary and proportional to the aim to be pursued under Article 36. This problem mainly emerged concerning the level of health protection required in each country, a difficult area characterized by the scientific uncertainty of the concept of risk. Since it would have been practically impossible for the Commission to prove that a certain national measure was not justified by the protection of health in a given country, the responsibility was reversed onto Member States' obligation to prove that such a measure was justified by the same reason. Thus, the difficulty was not solved, but simply transferred.

However, the ECJ started by supporting a different position. For example, in Case 53/80 the ECJ stated that the prohibition by Dutch legislation of an antibiotic called Nisin, which was freely used in other Member States, was justified due to the fact that there were uncertainties as to the maximum quantity which humans could take without any health risk. The Netherlands did not and could not prove that the Nisin was actually dangerous to human health.[124] The same criteria were followed by the ECJ in Case 272/80 where the ECJ accepted as valid a Dutch law that, in order to authorize the use of a pesticide, which in the case at hand was allowed in other Member States, required the applicant to provide evidence establishing that the product was not dangerous.[125]

That trend changed, first, in Case 174/82,[126] and, more clearly, in Case 227/82, where the ECJ stated that, given the situation of uncertainty in the present state of scientific knowledge and research,

" is for the national authorities to demonstrate in each case that their rules are necessary to give effective protection to the interests referred to in Article 36 of the Treaty and, in particular, to show that the marketing of the product in question creates a serious risk to public health".[127]

The problem is that precisely in situations where damage to health is suspected, it is equally impossible, due to the problem of uncertainty in scientific knowledge, either to actually prove serious damage to health, or the opposite. In fact, as a consequence of a procedural obligation, the general statement that Member States are free to determine the level of health protection becomes nebulous to say the least.[128] This case shows how an apparently "innocent" procedural obligation can alter the divison of competences between the Community and Member States.

As a result of what we have seen, it can be concluded that the obligation of the Commission to prove any failure does not cover all the cases, since Member States have, in some concrete areas, important obligations in this respect.

[ ]118See, for example, Case 301/81 Commission v. Belgium [1983] ECR 467-481, para. 8, p. 477.

[ ]119See, for example, Case 31/69 Commission v. Italy [1970] ECR 25-42. More recently, see Case C-347/88 Commission v. Greece [1990] ECR I-4747 to I-4797, paras. 70, 74, pp. I-4795, 4796; Case C-52/90, Commission v. Denmark [1992] ECR I-2187 to I-2216, para. 18, p. I-2214 [see also annotation by Roland Bieber in (1993) 30 CMLRev. 1197-1208]; Case C-375/90 Commission v. Greece [1993] ECR I-2055 to I-2095, paras. 51 and 52, p. 2094; Case C-431/92, Commission v. Germany [1995], ECR I-2189 to I-2227, para. 45, p. 2226.

[ ]120Another different example of this situation is the clearance of accounts procedure under the Agricultural policy.

[ ]121See Case C-375/92 Commission v. Spain [1994] ECR I-923 to I-945, paras. 23-26, pp. I-943, 944. See also Case 96/81 Commission v. Netherlands [1982] ECR 1791-1817, paras. 6-8, p. 1803.

[ ]122For example, by refusing to allow the Commission to examine relevant documents -see Advocate General Tesauro's opinion in Case 68/88, Commission v. Greece [1989] ECR 2965-2988, p. 2974- or by failing to provide the Commission with the text of the regulations by the regional authorities on the subject matter -Case C-375/92, cit., para. 25, p. I-944. See also Case 188/84 Commission v. France [1986] ECR 419-441, especially Advocate General van Themaat's opinion, p. 428.

[ ]123Concerning competition policy, see Case 374/87 Orkem v. Commission [1989] ECR 3283-3354, para. 35, p. 3351. The exception for legal persons only applies to their relations with an administration that can impose a sanction on them, but not within a civil process before a national judge: see Case C-60/92 Otto BV v. Postbank NV [1993] ECR I-5683 to I- 5714, para. 21, p. I-5713.

[ ]124Case 53/80 Officier van Justitie v. Koninklijke Kaasfabriek Eyssen BV [1981] ECR 409-432, paras. 13 and 16, pp. 421-423.

[ ]125Case 272/80 Biologische Producten [1981] ECR 3277-3304.

[ ]126Case 174/82 Sandoz BV [1983] ECR 2445-2474, especially in paras. 22 and 24, pp. 2464, 2465.

[ ]127Case 227/82 Leendert van Bennekom (1983) ECR 3883-3919, paras. 37 and 40, p. 3905. This formula was then reiterated in Case 304/84 Ministère Public v. Muller [1986] ECR 1511-1530, para. 25, p. 1529; and in the Case 178/84 Commission v. Germany -the famous Beer Case- [1987] ECR 1227-1277, para. 46, p. 1274.

[ ]128See in this sense SEDEMUND, Jochim "Statement on the concept of the free movement of goods and the reservation for national action under Art. 36 EEC Treaty" in SCHWARZE, Jürgen (ed.) Discretionary Powers of the Member States in the Field of Economic Policies and their Limits under the EEC Treaty op. cit. 29-31.

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