This article assesses the legality of the Commission's second Decision authorizing Germany to maintain its PCP ban on the basis of Article 100a(4) of the EEC Treaty. After reviewing the content of Directive 911173 on the restrictions on marketing and use of PCP and Germany's more restrictive regime, this article focuses on the compliance of the Commission's Decision with Articles 190 and 100a(4) of the Treaty. Specifically, it examines the conditions under which the Commission may authorize a Member State to derogate from a harmonization measure. It contends that since Germany failed to demonstrate that its regulation banning PCP meets the necessity and proportionality tests under Article 100a(4), the Commission erred in granting an exemption from Directive 911173. Finally, this article provides a brief overview of the pending review process under the PCP Directive.
European Energy and Environmental Law Review