C-380/87

EN1CH M BASE AND OTHERS v COMUNE DI CINISELLO BALSAMO

OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 16 March 1989 *

My Lords, 20 March 1978 on toxic and dangerous waste (Official Journal 1978, L 84, p. 43). Interim suspension of the Decision was granted [on 8 July 1987] and on 30 November 1987 the regional adminis­ trative court made this reference for a preliminary ruling, received at the Registry 1. By Decision No 25 of 16 February 1987 of this Court on 21 December 1987. the Mayor of Cinisello Balsamo in Lombardy ordered inter alia as follows:

'It is prohibited, from 1 September 1987 2. The first question referred asks whether until the entry into force of similar the Directives mentioned above 'give indi­ provisions at the regional or national level, vidual EEC nationals the right under to provide customers with non-biode­ Community law, a right which national gradable bags or other containers in which courts must uphold even as against Member to carry away their purchases, or to sell or States (and which Member States cannot otherwise distribute plastic bags, with the therefore restrict), to sell or use the exception of those intended for the disposal products concerned by those Directives, of rubbish.' since the Directives provide for the observance of certain rules regarding the disposal of the products in question, not the prohibition of their sale or use'.

4. It must first be pointed out that, of the three Directives relied upon by the plaintiffs in the national proceedings, only the first, the Directive on waste, is of possible '1 . Member States shall take appropriate application in this case. As the plaintiffs steps to encourage the prevention, recycling themselves recognize in the written obser­ and processing of waste, the extraction of vations submitted to this Court, no issue raw materials and possibly of energy arises under the second or third Directives therefrom and any other process for the mentioned, because the plastic bags in re-use of waste. question do not contain polychlorinated bi- or terphenyls nor are they toxic and dangerous waste.

(ii) the treatment of waste for its 7. That conclusion is subject of course to recycling and re-use, the observance of the general provisions of the Treaty and in particular Article 30. The plaintiffs seek to rely on Article 30 in support of their argument, but no question on Article 30 has been referred by the national court, and the issues which such a (iii) the recovery of raw materials question would raise have not been argued and/or the production of energy in the other observations submitted to the from certain waste; Court. In those circumstances, the Court cannot in my view be invited to rule on the question; but if it were thought to arise, then it would be necessary to have regard to the facts of the case in order to see whether the measure in issue is capable of consti­ (c) the use of certain natural resources, tuting a restriction on trade between including energy resources, in Member States, and whether if so it is applications where they may be replaced capable of being justified under Article 36 by recovered materials.' of the Treaty or under the principles stated in Case 120/78 Rewe ('Cassis de Dijon') [1979] ECR 649. In particular the question would arise whether in all circumstances the measure is liable to give rise to a restriction on trade between Member States which is 6. The plaintiffs' contention is in substance disproportionate to the objectives of the that, because the Directive does not prohibit measure: see among recent cases the the sale and use of the products concerned, but only contains provisions for the approxi­ judgment of the Court of 20 September mation of national legislation regarding 1988 in Case 302/86 Commission v their disposal etc., it must be taken to Denmark. In the light particularly of that require Member States to allow the sale and decision, it may be that the measure, use of the products. On the assumption that although otherwise potentially constituting a the plastic bags in question are waste within restriction contrary to Article 30, would be the meaning of the Directive, the contention justified by the aim of protecting the envi­ is in my view far-fetched. It is clear that the Directive does not preclude Member States ronment. At the hearing the plaintiffs from taking measures to limit the sale or use contended that the present case differed of products liable to form waste. On the from Commission v Denmark: here the envi­ contrary, as the Commission points out, the ronmental justification is more doubtful, Directive is concerned inter alia with the and the measure in issue, involving as it prevention of waste and Member States are does a complete prohibition of marketing, is required, by Article 3(1) to take appropriate in their submission in any event dispropor­ steps to encourage the prevention of waste, and by Article 3(2) to inform the tionate. In the absence of further statements Commission in good time of any draft rules of fact and fuller argument, however, I to such effect. It is clear that the Directive consider it would not be appropriate to does not confer on individuals the right to express a concluded view on the matter. sell or use the products covered by it.

(b) Does that obligation bind the State and municipalities, with the result that they have no power to adopt provisions regarding the sale or use of products other than those included by Directive 11. In my view, while I accept that plastic 76/403 in the exhaustive list of bags are not waste at the time when they substances considered harmful unless it are supplied to customers, account must be has first been determined at the taken of the fact that they will commonly be Community level that the measure does thrown away after their contents have been not create unequal conditions of taken home. Consequently in my view a competition?' measure of the kind in issue in this case can

ENICHEM BASE AND OTHERS v COMUNE DI CINISELLO BALSAMO

OPINION OF MR JACOBS — CASE 380/87

hearing, notification might lead the question applicable or in preparation in the Commission to propose measures for the various Member States may create unequal harmonization of national legislation where conditions of competition and thus directly there might otherwise be an obstacle to the affect the functioning of the common functioning of the common market; or it market: might lead the Commission to recommend the Member State to postpone implemen­ tation of the measure. But that is quite different from the cases where there is an obligation to suspend implementation, or where a failure to inform the Commission (a) do that recital and the three directives in renders the measure unlawful. general give rise to a right (diritto soggettivo comunitario) on the part of EEC nationals, and a corresponding obligation on the part of all the Member States, under which any draft regulation 15. The plaintiffs' attempt to rely on an regarding the use of the products in analogy with Article 93(3) of the EEC question which may result in technical Treaty must also be rejected. The plaintiffs difficulties in their disposal or excessive contend that Article 93 has the effect of costs of disposal must be brought to the rendering unlawful the introduction of a attention of the Commission before its new aid which has not been notified to the adoption? Commission or which has been put into effect before the period laid down for the Commission's consideration, notwith­ standing the absence of any detailed procedural provisions in Article 93. However, a procedure for the examination (b) does that right (concerning the obli­ by the Commission of proposed aids is gation to bring any draft regulation to contained in Article 93(2) of the Treaty; the attention of the Commmission and the last sentence of Article 93(3) before it is adopted, as set out in provides expressly that the Member State part (a)), if it exists, extend to general concerned shall not put its proposed measures issued by municipalities, which measures into effect until that procedure has are thus limited in their territorial resulted in a final decision. application?'

on individuals any rights which can be relied only if its implementation would cause upon before the national courts. The obli­ serious and irreparable harm; but the harm gation in question arises only as between the would not be irreparable if damages could Member State and the Community. be awarded in respect of losses caused by Question 3(b) does not therefore arise. If it the Decision. Since no claim for damages did fall to be answered, then in my view any appears to be available otherwise under obligation, and any corresponding right, Italian law, it seemed necessary to the would be applicable equally, for the reasons national court to know whether, in already given, to measures taken by the substance, Community law requires the municipal authorities and having limited national courts to provide a remedy in territorial effect. damages where Community law is infringed by the national authorities. Argument on that issue has been advanced by the The fourth question plaintiffs and by the United Kingdom Government. I consider that it can be contended, on the basis of the Court's 18. The fourth question asks in substance case-law, that where Community law whether Community law requires the confers rights on individuals, national courts administration to pay compensation in must provide an appropriate and effective respect of infringement of rights protected remedy in respect of infringement by the by Community law even where national law national authorities of those rights. does not provide for such compensation. In However since, on the view which I have view of the answers to the previous taken, the only infringement which might questions it is unnecessary to answer that arise on the questions that have been question. referred in this case is the failure to notify the Commission under Article 3(2) of the Directive on waste, a failure which gives rise to no individual rights, the issue of the avai­ 19. The national court explains that the lability of a claim for damages based on question is put because the operation of the Community law does not arise in this case. Decision can be suspended under Italian law