C-302/86

COMMISSION v DENMARK

O P I N I O N O F ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 24 May 1988

OPINION OF SIR GORDON SLYNN — CASE 302/86

refilled. Such containers must have been to the costs involved in the collection approved by the Agency, which may impose system, the Commission considered that conditions or withdraw its approval (Article these provisions were contrary to Article 30 2 (2)). In deciding whether to approve a of the Treaty and, after a letter of formal particular container, the Agency is to check: notice on 16 December 1981, a reasoned opinion was issued on 21 December 1982. On 16 March 1984, the Danish Government promulgated Order N o 95 (Lovtidende A (1) whether the container is technically 1984, p. 345), which replaced the existing adapted to use in a deposit-and-return Article 3 of Order No 397 with a new text. system,

Having received protests from the producers of beverages and containers in other Member States and European associations The Commission was not satisfied with that representing the retail trade that the amendment. It considered that a system containers in which drinks were normally achieving either re-use or recycling was sold could not be used in Denmark and as sufficient to achieve the environmental aim

COMMISSION v DENMARK

OPINION OF SIR GORDON SLYNN — CASE 302/86

of environmental protection to be achieved In 1980 the Commission recognized the nor specific methods to be adopted. importance of environmental protection as a Member States are 'with due regard for the potential limitation on the rule contained in provisions of the Treaty on the free Article 30 of the Treaty (Official Journal movement of goods', 'either by legislative or 1980, C 256, p. 2). This was further administrative means or by voluntary accepted by the Court in Case 240/83 agreements [to] take measures designed Procureur de la République v Association de inter alia' to develop consumer education in défense des brûleurs d'huiles usagées (Adbhu) the advantages of refilling or recycling [1985] ECR 531, at p. 549, paragraphs 12 containers, to facilitate the refilling and/or and 13, where it was recognized that 'the recycling of containers and as regards principle of free trade is not to be viewed in non-refillable containers, to provide for absolute terms but is subject to certain limits their selective collection, to retrieve them justified by the objectives of general interest from household waste, and to maintain and, pursued by the Community provided that where possible, increase the proportion of the rights in question are not substantially refilled and/or recycled containers. impaired' and that the directive there in question 'must be seen in the perspective of environmental protection, which is one of the Community's essential objectives'.

Council Directive 80/777/EEC of 15 July 1980 (Official Journal 1980, L 229, p. 1) requires that mineral waters may be bottled only in accordance with Annex II of the In my view, national measures taken for the directive. Annex II, paragraph 2 (d) protection of the environment are capable prohibits the transport of natural mineral of constituting 'mandatory requirements' water in containers other than those auth- recognized by the judgment in 'Cassis de orized for distribution to the ultimate Dijon' as limiting the application of Article consumer. 30 of the Treaty in the absence of Community rules.

At the hearing, Denmark commented that, The measures taken by Denmark in relation whereas the Commission's initial corre- to approved bottles are highly effective. The spondence challenged the exclusion of metal producer or importer supplies bottles and cans for the sale of beer, the application to cases against a deposit to the wholesaler or the Court appeared to be limited to the retailer who in turn charges the retail rules relating to bottles and plastic bottles. purchaser the same deposit on the bottle. The Commission did not challenge this. The retail purchaser can return the bottle to Even if this is right and there appears no any retailer selling beer and soft drinks. He difference in principle between the exclusion gets his deposit back. The retailer collects relating to bottles and that relating to cans, the various bottles and returns them down I do not think that the Commission's case in the chain to the producer or importer who relation to the former is necessarily finally refunds the deposit. Vehicles go out prejudiced by a failure to seek an order in with cases of filled bottles and return with relation to the latter. cases of empty bottles and the retailer, the wholesaler or the producer sorts out the different categories of bottles. In the result, it is said, 9 9 % of such bottles are returned and they may be used up to 30 times. Some bottles which are not returned by the purchaser are returned by enterprising children, the deposit repaid forming a The Commission's case is that the measures valuable source of pocket money. The result adopted go too far. Moreover, they is a cleaner countryside and a saving of raw discriminate against producers or importers materials. from other Member States. Denmark replies that the steps taken are all essential to achieve a very high standard of environ- mental protection and that the system is an integrated one — approval, collection against deposit and re-utilization — so that the removal of any of the conditions affects the efficiency of the system as a whole. It Non-approved containers, it is said, do not contends, moreover, that the Commission have the same advantages. Although subject did not allege in the preliminary stages that to the deposit system they cannot be the system discriminated against producers returned to any retailer but only to retailers from other Member States. Although it is who stock that beverage and in the result a important that the initiating letter and the lower percentage of bottles is returned. reasoned opinion under Article 169 should

give sufficient notice of the Commission's The requirement in Article 2 of Order No case, it seems to me that the second 397 that the Agency shall be satisfied that initiating letter of the Commission and the the system is such as to ensure that a large second reasoned opinion quite plainly raise number of containers are re-used seems to the issue that these measures impose greater me also to impose a considerable burden on burdens on the non-Danish than the Danish producers in other Member States. They are producer. The words 'discrimination' and faced with the alternative of returning 'not indistinctly applicable' may not appear empty bottles to their own plants in their as such, but the whole thrust of the case is Member States of origin (at, it seems to me, that the non-Danish importer is under a deterrent extra cost) or of setting up greater difficulties because of the rules plants to make beer or to bottle it from adopted. I therefore reject Denmark's barrels imported into Denmark (again at argument that it is not open to the appreciable extra cost which they may not Commission to allege that the measures wish to incur). Both Council Directive adopted are not indistinctly applicable. 85/339/EEC and the amendment to Article 3 of the Danish Order recognize recycling as an alternative to re-utilization, the latter of course restricted in quantity. If the bottles are returned or collected and are not left in the countryside, the environment is protected. Re-utilization is not necessary for that purpose. Although the conservation of resources is an important objective, it does not seem to me in the present state of Community legislation that an obligatory re-utilization should be accepted if its effect Whilst fully recognizing the importance of is seriously to inhibit the free movement of environmental protection, and bearing in goods. In my view, accordingly, the limi- mind the Community's and Member States' tation of 3 000 hectolitres per producer per increasing awareness of it, it seems to me annum for bottles which do not have to be that the Danish rules impose serious re-utilized is not justified or proportional. restrictions on the producers of beer and soft beverages in other Member States. In the first place, only approved bottles can be used, subject to the derogation in respect of 3 000 hectolitres per year per producer. Although it is said that so far no bottles have been refused approval, it is an essential argument of the Danish Government that the present system could not absorb more than 30 types of bottle. If increasingly producers from other Member States wish to sell beer in Denmark there is a risk that approval will not be given because with- drawal of an existing approval cannot be obtained. The result would be that producers outside Denmark would have to make or purchase bottles of a type already At first glance the requirement of a approved — at the sort of increased cost compulsory deposit system seems sensible which was recognized in e. g. Franti to be a and is effective. At the end of the day, restriction on the free movement of goods. however, it seems to me that, to the extent

that non-approved bottles may be used, the facturers, the rules bear in practice more system imposes certain restrictions on the heavily on the latter. On that basis Denmark importer from other Member States. Under cannot, as I see it, rely on the principle the present system only approved bottles can stated in 'Cassis de Dijon', since the Danish be returned to any shop; non-approved provisions in practice even if not in form are bottles must be taken back to a retailer of not indistinctly applicable even if, as I the particular product. It may well be that as accept, environmental protection is within a result consumers will not buy imported the category of possible exceptions to the beers if their deposit is more difficult to basic rules. recover — though it is clearly possible that a purchaser of a foreign beer is likely to go back to the retailer for more, and to take his empty beer bottles with him. A compulsory deposit system may also be unworkable in respect of disposable containers. It is for the Danish authorities to show that the measures are necessary and that they are not disproportionate to achieve a legitimate It may be that some brewers will prefer to aim (judgment of 6 May 1986 in Case use approved bottles in order to benefit 304/84 Ministère public v Muller [1986] from the system so that consumers can take ECR 1511). their bottles back to any shop and recover their deposit. Even though on the face of it the system is indiscriminately applicable to Danish and to non-Danish brewers and even though it is said that, before the deposit-and-return system became compulsory, non-Danish beers were either made under licence or bottled in Denmark, Denmark argues that foreign beers are not it seems to me that the system as it presently popular with drinkers of Danish beer and operates does have greater disadvantages for that only 0.01% in 1985 (perhaps now a the non-Danish brewer because the little higher) of total consumption was requirement that containers be re-used, accounted for by imported beers. That is no rather than merely recycled, necessarily argument in itself to justify the restriction bears more heavily upon him than upon his and indeed, if anything, goes the other way Danish counterpart, and because the use of since the threat to environmental protection approved bottles for sales to the Danish posed by the imported products is that much market may well involve incurring less. additional overhead costs for plant and bottling machinery. I am not satisfied that the costs imposed on Danish manufacturers of collecting the bottles and sorting them is of the same order as that faced by manufac- turers from other Member States.