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Directives and regulations - Requests for derogation from legislation

Background

Article 114 (1) TFEU (ex Article 95 (1) TEC ) is the legal basis for Union harmonisation measures having as their object the establishment and the functioning of the internal market. Following the adoption of a harmonisation measure, Member States have to implement it. However, paragraphs 4-6 of Article 114 establish a procedure whereby Member States may be authorised by the Commission to respectively maintain or introduce national provisions incompatible with the newly adopted Union measure.

The granting of an authorisation is subject to certain conditions. According to Article 114(4), in order to be authorised to maintain national provisions, Member States have to demonstrate that these provisions are justified on grounds of major needs referred to in Article 36 (ex Article 30 TEC), or relating to the protection of the environment or the working environment. The conditions for introducing new national provisions are more severe. Article 114(5) requires that new national provisions be based on new scientific evidence relating to the protection of the environment or the working environment on grounds of a problem specific to the requesting Member State arising after the adoption of the harmonised measure. In addition, both new and existing national provisions must not be a means of arbitrary discrimination or a disguised restriction on intra-community trade and must not constitute an obstacle to the functioning of the internal market [Article 114(6), first paragraph].

The Commission has to take a decision rejecting or approving the national provisions within six months of receiving a request for derogation notified to it by a Member State. If the case is complex and does not involve a risk to human health, the Commission may decide to extend the six-month period within which a decision must be taken for a further period of up to six months [Article 114(6), third paragraph].

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