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A5. Derogations permitted in national law
Derogations fixed by reference to national law on a particular date​
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- New national law which is in substance identical permitted
"[87] Consequently, it must be held that a provision which is, in substance, identical to the previous legislation, or limited to reducing or eliminating an obstacle to the exercise of Community rights and freedoms in the earlier legislation, will be covered by the derogation provided for in Article 17(6) of the Sixth Directive. By contrast, legislation based on an approach which differs from that of the previous law and establishes new procedures cannot be treated as legislation existing at the date fixed in the Community measure in question (see, to that effect, Case C-155/01 Cookies World [2003] ECR I‑8785, paragraph 63, and, by analogy, Holböck, paragraph 41)." (Puffer C-460/07)
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- New national law reducing the derogation permitted
"[85] In that context, the Court has held that any national measure adopted after a date thus fixed is not, by that fact alone, automatically excluded from the derogation laid down in the Community measure in question (Holböck, paragraph 41). Where, after the entry into force of the Sixth Directive, the legislation of a Member State is amended so as to reduce the scope of existing exemptions and thereby brings itself into line with the objective of the Sixth Directive, that legislation must be considered to be covered by the derogation in the second subparagraph of Article 17(6) of the Sixth Directive and is not in breach of Article 17(2) of that directive (see Commission v France, paragraph 22, and Metropol and Stadler, paragraph 45)." (Puffer C-460/07)
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- New national law expending the derogation not permitted
"[86] On the other hand, national legislation does not constitute a derogation permitted by the second subparagraph of Article 17(6) of the Sixth Directive, and infringes Article 17(2) of the directive, if its effect is to increase, after the entry into force of the Sixth Directive, the extent of existing exclusions, thus diverging from the objective of that directive (Case C-40/00 Commission v France [2001] ECR I-4539, paragraph 17, and Metropol and Stadler, paragraph 46)." (Puffer C-460/07)
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- Use of a different mechanism to achieve, in essence, the same result not permitted
"[93] Therefore, it must be held that, even if it cannot be ruled out that they achieve results which, in essence, are identical, the approach of the old and new legislation differs and that they have laid down different procedures, meaning that the new legislation cannot be treated as if it was legislation existing when the Sixth Directive entered into force." (Puffer C-460/07)
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- Irrelevant whether national legislature thought it was correctly implementing EU law
"[94] In that regard, it is irrelevant, as stated by the Advocate General in point 77 of her Opinion, whether the national legislature amended the previous national legislation on the basis of a correct or incorrect interpretation of Community law." (Puffer C-460/07)
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