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Court of Justice of the European Communities (including Court of First Instance Decisions) |
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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Sapod Audic (Environment and consumers) [2002] EUECJ C-159/00 (06 June 2002) URL: http://www.bailii.org/eu/cases/EUECJ/2002/C15900.html Cite as: [2002] EUECJ C-159/, [2002] ECR I-5031, [2002] EUECJ C-159/00 |
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JUDGMENT OF THE COURT (Fifth Chamber)
6 June 2002 (1)
(Directive 83/189/EEC - Procedure for the provision of information in the field of technical standards and regulations - Obligation to communicate draft technical regulations - Directives 75/442/EEC and 91/156/EEC - Waste - Obligation to make notification of planned measures - National regulations on disposal of packaging waste - Obligation on producers or importers to identify packaging to be disposed of by an approved undertaking - Obligation on the approved undertaking to ensure that packaging for which it is responsible meets technical requirements)
In Case C-159/00,
REFERENCE to the Court under Article 234 EC by the Cour de Cassation (France) for a preliminary ruling in the proceedings pending before that court between
Sapod Audic
and
Eco-Emballages SA
on the interpretation of Articles 1 and 10 of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983 L 109, p. 8), as amended by Council Directive 88/182/EEC of 22 March 1988 (OJ 1988 L 81, p. 75), Article 3(2) of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32), and Article 30 of the EC Treaty (now, after amendment, Article 28 EC),
THE COURT (Fifth Chamber),
composed of: P. Jann, President of the Chamber, S. von Bahr and C.W.A. Timmermans (Rapporteur), Judges,
Advocate General: F.G. Jacobs,
Registrar: H. von Holstein, Deputy Registrar,
after considering the written observations submitted on behalf of:
- Sapod Audic, by L. Boré, avocat,
- Eco-Emballages SA, by D. Brouchot, T. Schneider and M. Troncoso Ferrer, avocats,
- the French Government, by R. Abraham and R. Loosli-Surrans, acting as Agents,
- the German Government, by W.-D. Plessing and T. Jürgensen, acting as Agents,
- the Netherlands Government, by M.A. Fierstra, acting as Agent,
- the Commission of the European Communities, by G. zur Hausen and J. Adda, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Sapod Audic, represented by L. Boré and M. Quimbert, avocat; Eco-Emballages SA, represented by T. Schneider and M. Troncoso Ferrer; the French Government, represented by R. Loosli-Surrans; and theCommission, represented by G. zur Hausen and J. Adda, at the hearing on 23 October 2001,
after hearing the Opinion of the Advocate General at the sitting on 17 January 2002,
gives the following
Community law
'For the purpose of this Directive, the following meanings shall apply:
1. technical specification, a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards terminology, symbols, testing and test methods, packaging, marking or labelling ...;
...
5. technical regulation, technical specifications, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case ofmarketing or use in a Member State or a major part thereof, except those laid down by local authorities;
6. draft technical regulation, the text of a technical specification including administrative provisions, formulated with the aim of enacting it or of ultimately having it enacted as a technical regulation, the text being at a stage [of] preparation at which substantial amendments can still be made;
7. product, any industrially manufactured product and any agricultural product.'
'1. Member States shall take appropriate measures to encourage:
(a) firstly, the prevention or reduction of waste production and its harmfulness, in particular by ...
...
(b) secondly:
(i) the recovery of waste by means of recycling, re-use or reclamation or any other process with a view to extracting secondary raw materials, or
(ii) the use of waste as a source of energy.
2. Except where Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations ... applies, Member States shall inform the Commission of any measures they intend to take to achieve the aims set out in paragraph 1. The Commission shall inform the other Member States and the committee referred to in Article 18 of such measures.'
'Member States shall take the necessary measures to ensure that any holder of waste:
- has it handled by a private or public waste collector or by an undertaking which carries out the operations listed in Annex II A or B, or
- recovers or disposes of it himself in accordance with the provisions of this Directive.'
French law
'Article 4
Any producer or importer ... is required to contribute to or organise the disposal of all of its packaging waste ... .
To that end, it shall identify the packaging, the handling of which it has entrusted to a body or an undertaking which has been granted the approval referred to in Article 6 below, under the arrangements they determine, as provided for in Article 5 below. The remaining packaging shall be recovered in accordance with the conditions laid down in Article 10 below.
Article 5
Those persons referred to in Article 4 above who have recourse, for the disposal of their packaging waste, to the services of an approved body or undertaking shall enter into a contract [with that body or undertaking] stipulating in particular the nature of the identification of the packaging, the estimated volume of waste to be taken back each year and the fee payable to the undertaking or body; on those points the contracts must be in accordance with the standard terms provided for in Article 6 below.
Article 6
Any body or undertaking whose object is the assumption of responsibility for used packaging, as provided for in Articles 4 and 5 hereof, from parties to contracts [with that body or undertaking] is to be granted approval for renewable periods of up to six years by joint decision of the Minister for the Environment, the Minister for Economic Affairs, the Minister for Industry, the Minister for Agriculture and the Minister for Local Authorities.
In support of its application for approval, that body or undertaking shall provide evidence that it has the technical and financial means to carry out the necessary procedures to dispose of the used packaging and shall state how it proposes to comply with the standard terms attached to the approval. ...
...
Those standard terms shall include, for each type of material, the technical requirements which must be met by the used packaging where the approved body or undertaking makes agreements with manufacturers of packaging or packaging materials for the disposal of that waste.
...'
The main proceedings and the questions submitted by the national court
1. Must Article 1 of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, as drafted both before and after amendment by Directive 94/10/EC of the European Parliament and the Council of 23 March 1994 materially amending Directive 83/189/EEC for the second time, be interpreted as meaning that the provisions of Decree No 92-377 of 1 April 1992 constitute a technical regulation, in particular inasmuch as they permit a producer not to use Eco-Emballages' approved system if the producer itself arranges for the disposal of its packaging waste?
2. Must Article 10 of Directive 83/189, both before and after amendment by Directive 94/10, and Article 3(2) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, be interpreted as meaning that the French Government was required to notify the Commission of the provisions of the decree of 1 April 1992 and, ifit was so required, that an individual may rely on the failure to notify in order to have the provisions declared unenforceable?
3. Does Article 30 of the EC Treaty (now, after amendment, Article 28 EC), properly construed, preclude rules such as those contained in Decree No 92-377 requiring an importer of products from other Member States intended for household use to use packaging meeting certain technical requirements and to affix to that packaging a 'logo' proving that he has subscribed to an approved system for the recovery of packaging waste, inasmuch as those rules, which are applicable to all products alike, are not proportionate to the mandatory requirement related to the protection of the environment?
Preliminary observations
The first question
The second question
Directive 83/189
Exemption from the requirement to notify technical regulations to the Commission
Enforceability of technical regulations not notified to the Commission
Directive 75/442
Obligation to inform the Commission of planned measures
Enforceability of measures adopted without prior notification to the Commission
The third question
Costs
76. The costs incurred by the German, French and Netherlands Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Fifth Chamber),
in answer to the questions referred to it by the Cour de Cassation by judgment of 18 April 2000, hereby rules:
1. A provision of national law such as the second paragraph of Article 4 of Decree No 92-377 of 1 April 1992 implementing, in respect of packaging waste, Law No 75-633 of 15 July 1975 relating to the disposal of waste and the recovery of materials, as amended, could constitute a technical regulation within the meaning of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Council Directive 88/182/EEC of 22 March 1988, only if the national court were to hold that it had to be interpreted as requiring a mark or label to be applied.
2. Article 10 of Directive 83/189, as amended by Directive 88/182, is to be interpreted as meaning that, where a provision of national law such as the second paragraph of Article 4 of Decree No 92-377 must be understood as requiring a mark or label to be applied, that provision is not exempted from the notification requirement under Article 8 of Directive 83/189.
3. In the event that a national provision such as the second paragraph of Article 4 of Decree No 92-377 were to be interpreted as requiring a markor label to be applied, an individual may invoke the failure to make notification of that national provision in accordance with Article 8 of Directive 83/189. It is then for the national court to refuse to apply that provision, the question of the conclusions to be drawn from the inapplicability of that national provision as regards the severity of the sanction under the applicable national law, such as nullity or unenforceability of the contract, being a question governed by national law. That conclusion is, however, subject to the condition that the applicable rules of national law are not less favourable than those governing similar domestic actions and are not framed in such a way as to render impossible in practice the exercise of rights conferred by Community law.
4. If Directive 83/189 does not apply to the provisions of Decree No 92-377, the Member State concerned ought to have informed the Commission of the proposed national provisions in accordance with Article 3(2) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991.
5. Article 3(2) of Directive 75/442, properly construed, does not give individuals any right which they may enforce before national courts in order to obtain the annulment or suspension of national rules falling within the scope of that provision on the ground that the rules were adopted without having been previously communicated to the Commission.
6. If the national court were to interpret a provision such as the second paragraph of Article 4 of Decree No 92-377 as not requiring a mark or label to be applied but as imposing only a general obligation to identify the packaging collected for disposal by an approved undertaking, that provision may be regarded as a selling arrangement. It is for the national court to verify whether the relevant conditions under the case-law of the Court for exempting such an obligation from the scope of application of Article 30 of the EC Treaty (now, after amendment, Article 28 EC) are met, namely that the provision at issue applies to all relevant traders operating within the national territory and that it affects in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.
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Jann
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Delivered in open court in Luxembourg on 6 June 2002.
R. Grass P. Jann
Registrar President of the Fifth Chamber
1: Language of the case: French.
