C-148/78

In Case 148/78

REFERENCE to the Court under Article 177 of the EEC Treaty by the Pretura Penale, Milan, for a preliminary ruling in the action pending before that court between

pubblico Ministero [Public Prosecutor]

and

Tullio RATTI, residing in Milan

on the interpretation of two Council Directives on the approximation of the laws, regulations and administrative provisions of the Member States, the first No 73/173/EEC of 4 June 1973, relating to the classification, packaging and labelling of dangerous preparations (solvents) (Official Journal No L 189, p. 7) and the second, No 77/728/EEC of 7 November

JUDGMENT

Facts and Issues

The facts of the case, the course of the Directive No 77/728/EEC of 7 procedure and the observations November 1977 would be applied to its submitted under Article 20 of the varnishes. Protocol on the Statute of the Court of Justice of the EEC may be summarized Those two directives have not yet been as follows: incorporated into the Italian legal system. Law No 245 of 5 March 1963 (Gazzetta Ufficiale, p. 1451), applying both to solvents and varnishes, remains I — Facts and procedure in force in Italy at the present time.

The board of directors of the under­ Law No 245 is in some aspects more taking Silvam, of Senago (Milan), stringent than the aforesaid directives (it represented by Mr Ratti, decided to requires in all cases an indication of the package its solvents and to affix to the quantity of benzene, toluene and xylene container labels conforming to Council in the solvent or varnish) and in others Directive No 73/173/EEC of 4 June less so (it does not require a reference to 1973. It also decided that Council all the ingredients considered to be toxic,

PUBBLICO MINISTERO v RATTI

(d) Do the said national provisions, which are applicable without (a) Does Council Directive 73/173/EEC distinction to all goods placed on the of 4 June 1973, in particular Article domestic market, nevertheless 8 thereof, constitute directly constitute an obstacle, a prohibition applicable legislation conferring or a restriction on trade in and the upon individuals personal rights free movement of such goods, even if which the national courts must ' such provisions were enacted for the protect? purpose of ensuring greater protection for the physical safety of users of the products in question (and indeed a considerable volume (b) Is it lawful, notwithstanding the of scientific literature, at least from provisions set out in the said article, the 1960s onwards, emphasizes the to prescribe in national legislation dangers inherent in substances such obligations and limitations which are as benzene, toluene and xylene, more precise and detailed than, or at especially for workers who may all events different from, those set often have to use solvents which out in the directive, and might the unkown to them, contain a high foregoing be considered an obstacle percentage of such substances, but to the free movement of and trade in not only for workers, since any the goods and products covered by consumer who uses a varnish that directive, namely solvents, in containing the said substance may that such obligations and limitations risk grave injury to his health)? directly effect the establishment and operation of the common market, having regard to the obligation imposed by national legislation to (e) Is Council Directive 77/728/EEC of affix to containers information which 7 November 1977, in particular is not required by the directive? Article 9 thereof, immediately and

The order ■ of 8 May making the reference to the Court was received at the Court Registry on 21 June 1978. Then he attempts to show that the two Pursuant to Article 20 of the Protocol on directives "have direct effect". He points the Statute of the Court of Justice of the out that Article 8 of the directive European Communities, the defendant in concerning solvents imposes precise and the main., action, the Council and the detailed obligations which the Member Commission submitted written obser­ States must incorporate into their vations. legislation as they stand: thus detailed provisions are laid down concerning the size, colour, shape and position of the After hearing the report of the Judge- label. He makes the same point with Rapporteur and the views of the regard to Article 9 of the directive Advocate General the Court decided to concerning varnishes. open the oral procedure without holding any preparatory inquiry.

But in the latter case the question of the time-limit arises: the Member States have a period of 24 months in which to II — Observations under Article implement the directive, which does not 20 of the Protocol on the have to become applicable until Statute of the Court of November 1979. So one could argue that Justice of the EEC Law No 245 still applied at the material time as far as the varnishes are concerned. But the accused in the main

A — Observations of the accused in the action considers it necessary to look into main action the reasons for which the Community legislature prescribed such a period. That can only be explained on purely In the first place Mr Ratti points out that economic grounds: clearing existing "the Italian legislation imposes criminal stocks, fresh analyses to be made, new sanctions which are plainly contrary to labels, etc. … so it could only apply to Community rules both on solvents and obligations to take action: on the other varnishes" and goes on to examine what hand the reason for prescribing such a he considers to be the main question: period does not apply as regards the "the effect which the two directives may obligation contained in Article 9 of the have within the legal order of a directive, an obligation to refrain from particular Member State". action, for which no time-limit is

(1.) "Under what conditions may the Moreover, the accused in the main directives in question have direct action refers to the "absurdity" of a effect?". situation in which "a producer in one Member State which has already implemented the directive cannot export On that point the Council considers that to another Member State his product the case-law of the Court is sufficiently labelled in accordance with that directive clear. It merely draws attention to an because that State has not yet complied incorrect use of terminology: the Pretura with it". That, he submits, constitutes asks whether the directive is "directly "an infringement of the fundamental applicable", whereas the case-law of the principles governing the free movement Court has established the concept of of goods within the Community". "direct effect". The Council goes on to state that the only cases of direct effect recognized by the Court for the benefit of individuals are those "in which the Finally the accused in the main action obligation which the directive imposes on argues that if his submissions do not the Member State is perfect in the sense constitute "the correct interpretation of that it is not conditional upon or the rules at issue, it would be necessary suspended until the effluxion of a period to conclude that the period of two years of time". granted for implementation is not a period within which implementation must take place, but a period before the As regards the nature of the obligations expiry of which implementation either is imposed by the directives, the Council not possible or may be prohibited". considers that the obligation to prohibit the marketing of products not complying with the rules of the directives is naturally an obligation to take action, B — Observations of the Council and the same applies to the obligation to allow the marketing of products which comply with the rules of the directives, because the Member State must amend The Council begins by emphasizing the its internal law. importance of the legislative technique of the directive, one used very often for the approximation of laws, and the Council (2) "From what time is such effect attaches particular importance to the produced?" period within which the Member States must comply with the directive. On that point the Council considers that "it is The first argument advanced by the only on expiry of such a period that the Council is that, since the Member State uniformity of the technical rules possesses "at least a margin of discretion applicable to the products in question as regards the date on which it must must necessarily be ensured throughout conform with the directive, within the

First question Finally, in reply to the written defence submitted to the Pretura, Milan (points 2, 3, 4), the Council does not deny that The Commission insists that the the fact that the directives in question language used by the Pretura is concern all the Member States may have incorrect: the expression "directly influenced the manner in which the applicable" cannot be used; only the Court might interpret them. But to its concept of "direct effect" developed by knowledge the Court has not, until now, the Court can be used, as it is directives taken such a fact into consideration in which are concerned. The Commission order to decide that provisions have recalls the three tests which must be direct effect; in any case that does not satisfied before a provision of a directive imply that the period granted to the may have direct effect: (i) a clear and Member State for compliance with the precise obligation, (ii) not accompanied directive has no purpose. The Council by conditions, (iii) with no margin of concludes, following the case-law of the discretion left to the Member State. Court (Case Grad v Finanzamt 9/70 Analysing Directive No 173/73/EEC, Traunstein [1970] 2 ECR 825), that "a article by article, the Commission prohibition contained in an instrument "considers that Articles 2, 4, 5 and 6 … addressed to the Member States takes and also Article 8 in conjunction with effect only from the time when the those provisions, have direct effect and common system must be applied consequently the individual is entitled to throughout the common market when rely on them in the competent national the objective is to ensure the application court". of such a system"; the objective in question is to ensure such application at the latest by the end of the period. Second question

established by Article 30 of the Treaty". The Commission continues its argument by calling in aid a general rule of in­ Third question terpretation: as "it is relatively exceptional for a directive to have direct In the Commission's view it seems clear effect", it must be interpreted that Article 8 of the Italian Law 245, restrictively. Article 189 of the Treaty which "requires in all cases" an calls for the same interpretation. indication of the presence and percentage of toluene, xylene and Replying to the argument of the defence, benzene, prescribes obligations different whereby Article 9 constitutes an from those laid down in the directive. obligation to refrain from action, the Commission expresses the view that that article is merely a "descriptive summary" of the directive and as such it must be Fourth question analysed as "the positive obligation to adopt the necessary internal measures of The Commission considers that the implementation". That obligation can provisions of the Italian Law "constitute arise only on expiry of the period of 24 measures having an effect equivalent to months. quantitative restrictions on imports within the meaning of Article 30 of the As for the reasoning followed by the Treaty". Article 36 of the Treaty cannot national court, which "mentions the be used to justify a derogation from a possibility of a legitimate expectation of harmonizing measure in a particular the individual who has complied with the sector. The only possibility would be to provisions of the directive before expiry "have recourse, provisionally and under of the prescribed period", the the supervision of the Commission, to Commission considers that it is not the safeguard clause contained in Article possible to speak of such an expectation 9 of the directive". because the obligation is imposed only on Member States and not on individuals. As long as there is no default Fifth question on the part of the State, individuals cannot exercise a right as against the First of all the Commission considers State.

field by another, the central question (d) The objective of ensuring better being to ascertain on what final date that protection for the physical safety of succession must take place. The the users of the products in Commission is of the opinion that the question does not justify Member former rules remain valid "until expiry of States in imposing requirements the period which the State is allowed for different from those prescribed by the purpose of amending its legislation". the directive in question; In conclusion the Commission suggests (e) Articles 3, 5, 6, 7 of Council that the following answers be given to Directive No 77/728, and also the Pretura, Milan: Article 9 in conjunction with those "(a) Articles 2, 4, 5 and 6 of Council provisions, have direct effect; they Directive No 173/73, and also have such effect on expiry of the Article 8 in conjunction with the period stated in Article 12, that is to said provisions, have direct effect; say, on 9 November 1979".

2 Those questions are raised in the context of criminal proceedings against the head of an undertaking which produces solvents and varnishes, on a charge of having infringed certain provisions of the Italian Law No 245 of 5 March 1963 (Gazzetta Ufficiale of 21 March 1963, p. 1451) which require manufac­ turers of products containing benzene, toluene and xylene to affix to the containers of those products labels indicating, not only the fact that those substances are present, but also their total percentage and, separately, the percentage of benzene.

3 As far as solvents are concerned, that legislation ought, at the material time, to have been amended in order to comply with Directive, No 73/173 of 4 June 1973, the provisions of which Member States were supposed to incorporate into their internal legal orders by 8 December 1974 at the latest, an obligation which the Italian Government has not fulfilled.

4 That amendment would have resulted in the repeal of the provision of the Italian Law which the accused is charged with contravening and would consequently have altered the conditions for applying the criminal sanctions contained in the law in question.

5 As regards the packaging and labelling of varnishes, Directive No 77/728 of 7 November 1977 had, at the material time, been adopted by the Council, but by virtue of Article 12 thereof Member States have until 9 November 1979 to bring into force the laws, regulations and administrative provisions necessary to comply therewith.

6 The incorporation of the provisions of that directive into the internal Italian legal order must likewise result in the repeal of the provisions of the Italian law which the accused is charged with contravening.

11 Those differences constituted a barrier to trade and to the free movement of goods and directly affected the establishment and functioning of the market in dangerous preparations such as solvents used regularly in industrial, farming and craft activities, as well as for domestic purposes.

12 In order to eliminate those differences the directive made a number of express provisions concerning the classification, packaging and labelling of the products in question (Article 2 (1), (2) and (3) and Articles 4, 5 and 6).

PUBBLICO MINISTERO v RATTI

13 As regards Article 8, to which the national court referred in particular, and which provides that Member States may not prohibit, restrict or impede on the grounds of classification, packaging or labelling the placing on the market of dangerous preparations which satisfy the requirements of the directive, although it lays down a general duty, it has no independent value, being no more than the necessary complement of the substantive provisions contained in the aforesaid articles and designed to ensure the free movement of the products in question.

14 The Member States were under a duty to implement Directive No 73/173, in accordance with Article 11 thereof, within 18 months of its notification.

15 All the Member States were so notified on 8 June 1973.

20 It would be incompatible with the binding effect which Article 189 ascribes to directives to exclude on principle the possibility of the obligations imposed by them being relied on by persons concerned.

21 Particularly in cases in which the Community authorities have, by means of directive, placed Member States under a duty to adopt a certain course of action, the effectiveness of such an act would be weakened if persons were prevented from relying on it in legal proceedings and national courts prevented from taking it into consideration as an element of Community law.

Consequently a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails.

It follows that a national court requested by a person who has complied with the provisions of a directive not to apply a national provision incompatible with the directive not incorporated into the internal legal order of a defaulting Member State, must uphold that request if the obligation in question is unconditional and sufficiently precise.

24 Therefore the answer to the first question must be that after the expiration of the period fixed for the implementation of a directive a Member State may not apply its internal law — even if it is provided with penal sanctions — which has not yet been adapted in compliance with the directive, to a person who has complied with the requirements of the directive.

25 In the second question the national court asks, essentially, whether, in incor­ porating the provisions of the directive on solvents into its internal legal order, the State to which it is addressed may prescribe "obligations and limitations which are more precise and detailed than, or at all events different from, those set out in the directive", requiring in particular infor­ mation not required by the directive to be affixed to the containers.

31 However, Article 5 of Directive No 73/173 requires in all cases that packages indicate clearly and indelibly the presence of substances classified as toxic under Article 2, such as benzene, and also that they show, but only in certain cases, the presence of substances classified as harmful, such as toluene and xylene in a concentration higher than 5%.

32 On the other hand no indication of the percentage, separate or in the aggregate, of those substances is required.

33 Thus the answer to the national court must be that Directive No 73/173 must be interpreted as meaning that it is not permissible for national provisions to prescribe that containers shall bear a statement of the presence of ingredients of the products in question in terms going beyond those laid down by the said directive.

JUDGMENT OF 5. 4 1979 — CASE 148/78

The fourth question is drafted as follows:

"Do the said national provisions, which are applicable without distinction to all goods placed on the domestic market, nevertheless constitute an obstacle, a prohibition or a restriction on trade in and the free movement of such goods, even if such provisions were enacted for the purpose of ensuring greater protection for the physical safety of users of the products in question?"

PUBBLICO MINISTERO v RATTI

States to refrain from action as from the date of notification of that directive in a case where a person, acting upon a legitimate expectation, has complied with the provisions of that directive before the expiry of the period within which the Member State must comply with the said directive.

40 The objective of that directive is analogous to that of Directive No 73/173 in that it lays down similar rules for preparations intended to be used as paints, varnishes, printing inks, adhesives and similar products, and containing dangerous substances.

41 Article 12 of that directive provides that Member States must implement it within 24 months of its notification, which took place on 9 November 1977.

42 That period has not yet expired and the States to which the directive was addressed have until 9 November 1979 to incorporate the provisions of Directive No 77/728 into their internal legal orders.

43 It follows that, for the reasons expounded in the grounds of the answer to the national court's first question, it is only at the end of the prescribed period and in the event of the Member State's default that the directive — and in particular Article 9 thereof — will be able to have the effects described in the answer to the first question.

48 The costs incurred by the Council and by the Commission, which have submitted written observations to the Court, are not recoverable.

49 As the proceedings are, so far as the accused in the main action is concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

in answer to the questions referred to it by the Pretura Penale, Milan, by an order of 8 May 1978 hereby rules:

1. After the expiration of the period fixed for the implementation of a directive a Member State may not apply its internal law — even if it is provided with penal sanctions — which has not yet been adapted in compliance with the directive, to a person who has complied with the requirements of the directive.

Sørensen O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 5 April 1979

A. Van Houtte J. Mertens de Wilmars Registrar President of the First Chamber acting as President

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 20 FEBRUARY 1979 <apnote>/apnote>1

Mr President, concerns two Council Directives which Members of the Court, were issued in order to eliminate obstacles to trade between Member The reference for a preliminary ruling on States due to differences in national which I have to deliver an opinion today provisions of a technical nature. We are

1 — Translated from the German.