The new version of Article 115, as amended by the Treaty on European Union, is rather curious. On the one hand, it grants greater discretion to the Commission for deciding whether protective measures may be taken or not. This results from the amendment of the first paragraph: instead of 'the Commission shall authorize', it is provided that 'the Commission may authorize'. On the other hand, however, the new second paragraph seems to return some powers to the Member States: in cases of urgency, they may take the necessary measures themselves, under the condition of requesting authorization from the Commission.



At first sight, therefore, this would appear to be a serious setback in terms of eliminating the use of Article 115 as a derogation from the free movement of goods within the internal market.

Essential is the question whether the modified second paragraph grants the Member States any new powers with respect to taking protective measures. It is difficult to give a conclusive answer to this question, because the new text is utterly ambiguous and almost incomprehensible, taking into account the existing practice in the application of Article 115. The second paragraph applies 'in the event of urgency'. But the state of urgency is almost inherent to the application of Article 115. As was mentioned, the Commission has only authorized protective measures in the case of serious economic difficulties--and more and more so in the last few years. In those circumstances there is always some degree of urgency. As a result, it is not clear in which cases the second paragraph would apply.

It would certainly be difficult to argue that the second paragraph covers all applications of Article 115, since the first paragraph has not been eliminated.