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2. It is worthwhile pointing out at this stage that the choice between the two provisions concerned is not a merely formal matter. From the substantive point of view, in fact, In those circumstances it is clear that the Articles 100a and 130s are concerned with choice of the legal basis has a considerable different powers of the institutions, since the impact on the process by which the measure new environmental legislation referred to in comes into being and may therefore be Article 130r et seq. merely entails the grant reflected in its content. It follows that, as of subsidiary powers to the Community and the Court has consistently held (for the first is inspired by a philosophy of minimum time in its well known 'generalized pref- protection whereas the action to be taken erences' 2 judgment, the most recent under Article 100a is based on powers confirmation being Case 62/88, above), in which are certainly not subsidiary and are circumstances such as those of the present required to be directed towards high levels case the choice of an incorrect legal basis is of protection. not merely a formal defect but amounts to an infringement of essential procedural * Original language: Italian. requirements of such a kind as to render the 1 — It will be remembered that although the Court has on measure unlawful. several occasions considered the scope of Article100 it has not yet taken a position concerning Article 100a, a new provision introduced by the Single European Act for the purpose of approximating national legislation (the scope of Article 100a — in relation to Article 31 of the EAEC Treaty — is also the issue in Case C-70/88 European Parliament v Council, at present pending before the Court, in relation to Council Regulation (Euratom) No 3954/87 of 11 December 1987 laying down maximum permitted That having been said, it is important to levels of radioactive contamination of foodstuffs and of feedingsstuffs following a nuclear accident or any other note the significant practical aspect of the case of radiological emergency). As regards Article 130s, question. What is 'at stake' is, of course, not the Court recently analyzed its scope in relation to the provision concerned with commercial policy, Article 113, in its judgment in Case 62/88 Hellenic Republic v Council 2 — See judgment in Case 45/86 Commmion v Council [1987] [1990] ECR I-1527. ECR 1493, in particular paragraph 11.

merely the contested directive; the wider there is a clear demarcation between the issue involved is the determination of the two provisions precisely because they are procedure, and in particular the voting intended to pursue distinct objectives. As a rules, to be applied to the adoption of result, any confusion or overlapping measures of the same kind (as regards their between them is inconceivable. content and effects) as the directive in question here, which, as will become apparent shortly, constitute a category of measures for the harmonization of national legislation on environmental protection that Having thus stated its position, the Council is certainly not of secondary importance. recognizes that a particular measure may at the same time pursue diverse aims envisaged in different provisions of the Treaty. Therefore, in order to identify the legal basis specific to a measure it is necessary to The arguments of the parties determine its 'main purpose' or 'centre of gravity'. In particular, the Council concedes that measures for the protection of the environment, like the contested directive, which regulate production conditions in a 3. The parties interpret differently both the particular industrial sector are also, in so far provisions and the legislative measure at as they harmonize the conditions of compe- issue. tition between the undertakings concerned, in some degree intended to promote the establishment and functioning of the internal market; however, the latter objective is wholly subordinate to the main purpose of protecting the environment from The Council argues from the premise that, pollution resulting from the industrial by introducing Article 130r et seq., the production processes in question. Community acquired powers to take specific action on environmental matters. Accordingly, Article 130s should be regarded as the appropriate legal basis for measures which pursue one of the objectives As regards the contested directive, an mentioned in Article 130r, namely preser- analysis both of its content and effects and vation, protection and improvement of the of its legislative context confirms that its quality of the environment, the protection 'centre of gravity' lies in the requirement of human health and the prudent and that the pollution caused by waste from the rational utilization of natural resources. production of titanium dioxide be elim- inated. Therefore, in the Council's view, Article 130s is the only correct legal basis.

however, that Article 130s is not the appro- The Commission also considers that the priate legal basis for the adoption of view put forward by the Council restricts measures which, by virtue of their subject- the scope of Article 100a as compared with matter, relate to the internal market: such that of Article 130s in an unjustified way: measures should, in fact, be adopted solely the Council in fact is of the opinion that on the basis of Article 100a, the only speci- Article 130s may be used as a basis for fically relevant provision. The latter thus measures intended to equalize conditions of represents a sort of lex specialis in relation competition between undertakings, but to Article 130s and in relation to all the nevertheless considers that Article 100a may other Treaty provisions which are not not be used as a basis for harmonizing intrinsically directed towards the estab- measures for the protection of the lishment and functioning of the internal environment. market.

It protection, must contribute, by virtue of should therefore have been adopted only on their subject-matter, to the establishment the basis of Article 100a.3 and functioning of the internal market (the subject-matter must be identified by 3 — At the hearing, the Commission partly amended its inter- pretation of the relationship between Articles 100a and reference to the content and effects of the 130s. It maintained that the two provisions have different measure); and, finally, no provisions must purposes. Article 100a is concerned with the harmon- ization of national legislation, including that relating to the be available which, in relation to the environment, designed to ensure attainment of the single internal market, provide an even more market. By contrast, Article 130s is the basis for measures concerning environmental protection as such, that is to say specific legal basis (such as Articles 56(2), those measures which are not concerned with harmon- ization of the rules relating to the functioning of the 57(2) or 69, which would take precedence market. It follows, in the Commission's view, that the by virtue not only of that fact that they are principle whereby special provisions are to be preferred is not appropriate to determination of the correct provision special provisions but also by virtue of the to be applied in a specific case. That principle is applicable to cases where the scope of a provision embraces that of reservation — 'save where otherwise another, more specific provision (for example the general provided in this Treaty' — contained in principle of non-discrimination enshrined in Article 7 is specifically embodied in other provisions of the Treaty, Article 100a but which are no different, such as Articles 40(3) or 48). Conversly, there is no from the procedural point of view, from overlap between the scope of Article 100a and that of Article 130s.

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Recourse to the twofold legal basis is There is thus no real divergence as to the justified in the third and fourth recitals in analytical criteria employed. How, the preamble to Directive 78/176/EEC in therefore, can it be explained that the the following terms:

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'. . . any disparity between the provisions on Directive 75/442/EEC, which lays down waste from the titanium dioxide industry general harmonizing rules regarding waste already applicable or in preparation in the disposal (first and second recitals) and thus various Member States may create unequal constitutes a precedent which is certainly conditions of competition and thus directly relevant to the present case. affect the functioning of the Common Market; . . . it is therefore necessary to approximate laws in this field, as provided for in Article 100 of the Treaty;

It must be emphasized that the recitals that I have just cited merely repeat a stereotyped formula which is normally found in those measures which, as part of (more or less Turning, after that brief digression, to specific) action to ensure environmental Directive 78/176/EEC, I should point out protection, harmonize national legislation in the first place that it is perfectly concerning production conditions for consistent with the usual practice followed undertakings. There come to mind, for by the institutions. Moreover, the statement example, Council Directive 75/439/EEC on of the reasons for the adoption of Directive the disposal of waste oils (second and third 78/176/EEC (and for the measures that are recitals), Council Directive 75/440/EEC substantially analogous to it) fully confirms concerning the quality required of surface water intended for the abstraction of 4 — Similarly, for the same reasons (impact on competition drinking water in the Member States (third and on the market) Article 100 (alone) is used as the basis for directives that harmonize national legislation which, in and fourth recitals), Council Directive areas other than the environment, in any way affects the conditions under which undertakings operate. See for 82/501/EEC on the major-accident hazards example Council Directive 85/374/EEC concerning of certain industrial activities (first and producers' liability for damage caused by defective products, or Council Directive 75/117/EEC concerning second recitals) and, above all, Council equal pay for men and women.

The content of the directive also shows how the two essential components are inter- related and merge with each other. As well as repeating, in Articles 2 and 3, the funda- 6. It is precisely that harmonization which mental principles underlying Community forms the subject-matter of the contested action on the treatment of waste, that is to directive. It is appropriate to point out that say disposal of waste without risk to health Directive 89/428/EEC was originally or to the environment, prevention and proposed by the Commission on the twofold recycling (principles that were already laid legal basis of Articles 100 and 235 already down in Articles 3 and 4 of the general selected by the Council for the earlier directive on waste, Directive 75/442/EEC Directive 78/176/EEC. Following the entry which I mentioned earlier), Directive into force of the Single European Act, the 78/176/EEC prohibits, unless authorization Commission amended its proposal by using is granted, the discharge, dumping, storage, as the sole legal basis Article 100a, for tipping and injection of waste from the which provision the Council subsequently titanium dioxide industry (Article 4); the substituted Article 130s. It should also be directive harmonizes conditions for authori- observed that those changes of legal basis zation (Articles 5 and 6) and lays down the did not derive from changes made to the conditions for monitoring operations actual provisions of the directive. (Article 7) and for action to be taken in certain emergency situations (Article 8). In other words, the directive does harmonize national requirements for protection of the environment but at the same time, and by means of the same provisions, it lays down In order now to determine the legal classifi- uniform rules for all Community under- cation of the contested directive, it is takings producing titanium dioxide, thus necessary, as required by the judgment in contributing to the elimination of disparities Case 62/88 Hellenic Republic v Council, in costs and conditions of competition; and cited earlier, to examine its objectives and it was for that reason — I say yet content. The objectives are seen to be the again — that the Council referred to Article same — it could not be otherwise — as 100 (as well) as a legal basis. those already set out in Article 9(3) of the

The text of Article 1 is thus absolutely unequivocal: Directive 89/428/EEC pursues 7. The validity of that conclusion is not a twofold aim, of protecting the undermined by any of the matters raised by environment and safeguarding the func- the Commission and the Parliament to show tioning of the internal market; and, unless that, in the shaping of the contested part of Article 1 is arbitrarily disposed of, directive, a leading role was played by the there are no grounds for concluding that requirement of harmonization of conditions either of those aims is more important than of competition. Both the Commission and the other. the Parliament emphasised that provisions to combat pollution by waste from titanium dioxide production were already included in the national programmes adopted under Article 9 of Directive 78/176/EEC. The As far as content is concerned, the contested subsequent harmonization brought about by directive prohibits, or reduces in accordance Directive 89/428/EEC therefore met, above with strict rules, the discharge of waste by all, the requirement of preventing distortion establishments producing titanium dioxide of competition deriving from the differing and lays down a number of time-limits for economic impact of national requirements final implementation of the various which were somewhat disparate. In support provisions. The final result is a harmonized of that view, the Commission produced the system which, by imposing specific obli- results of studies carried out in 1984 and gations on Member States and more 1989 which show that the various bodies of particularly on industries (specifically anti-pollution rules had a direct impact on

prices in the various Member States of 8. Those considerations, however, although between 10 and 20% in 1984 and that price relevant — and not substantively challenged divergences had increased between 1984 by the Council — cannot, I believe, be and 1989. decisive as regards interpretation of the measure at issue. It is no accident that they relate mainly to the preparatory stages. By reference to them, it is thus possible to establish the specific reasons for which, at a The resultant distortion of competition and given time, the legislature was prompted to the consequent need to find a remedy were intervene (occasio legis) but they are not, also specifically confirmed in the views according to the usual canons of interpre- expressed, as the contested directive tation, of decisive importance in identifying progressed through its preparatory stages, the intention underlying the measure. That by the Economic and Social Committee and intention is embodied and disclosed in the by the European Parliament. The latter in legislative text and essentially must be particular, in a resolution of 10 April 1984, gathered from the actual meaning of the deplored the delays on the part of the words, from the function of the measure Member States and the Commission in itself and from the system of which it forms adopting the harmonizing measures part. An analysis of these aspects shows envisaged in Directive 78/176/EEC and immediately that harmonization of stressed that 'il est indispensable conditions of competition is a fundamental d'harmoniser le plus rapidement possible sur component of the directive; that fact is le plan communautaire les programmes simply confirmed by the observations nationaux de réduction de la pollution, en concerning the early stages of the directive. vue, notamment, d'éviter les distorsions de However, it is also undeniable that the concurrence entre producteurs de dioxyde contested directive contains new anti- de titane dans la Communauté' and that pollution rules and, therefore, that this 'une prorogation du délai de 1987 à 1993 second element must also be taken into provoquerait des distorsions de la consideration in identifying the correct legal concurrence, dont bénéficieraient les entre- basis. prises qui, jusqu'à présent, n'ont pris aucune mesure ou très peu de mesures pour se conformer à la directive de base 78/176/CEE'. 5

The clear wording of the directive does not Moreover, it is the very difference between permit any other interpretation. I must add the Commission's and the Council's inter- that this observation applies not only to the pretations of the scope of those two product at issue here. It is inevitable that, in provisions that explains why the institutions general, where there is harmonization of arrived at opposite conclusions concerning national measures for environmental the legal basis of the directive in question. protection, which regulate the charac- teristics of products or the conditions under which they are manufactured, Community intervention displays two aspects, the environmental and the economic; and, again, it is extremely difficult to discover, case by case, whether the 'centre of gravity' Interpretation of the provisions of a measure adopted by the Council is to be found in one requirement or the other. Now, this difficulty — or impossibility — of identifying the predominant component means that any analysis is certainly influenced, in a decisive manner, by considerations of a subjective nature and of 9. The difficulties involved in defining the an undoubtedly political nature, linked as scope of these provisions were focused upon they are with the differing voting by a number of authors before the present procedures and rules associated with the action was brought. 7 However, agreement legal bases in question. must be reached as to the actual scope of

confronts us. A solution, therefore, which nationales selon l'article IODA du traité CEE: l'harmoni- sation communautaire face aux exigences de protection does not stop at an attempt to identify a nationales, Revue du marché commun, 1989, p. 347; C D . hypothetical 'centre of gravity' of the Ehlermann, The Internal Market Following the Single european Act, Common Markel Law Review, 1987, p. 361; measure; a solution which places the R. Kromarcck, Commentaire de l'Acte unique européen en matière d'environnement, Revue juridique de l'environ- problem of determination of the legal basis nement, 1988, p. 76; F. Roelants du Vivier c J. P. not only in the context of interpretation of Hannequart, Une nouvelle stratégie européenne pour l'environnement dans le cadre de l'Acte unique, Revue du the measure but also in that of interpretation marché commun, 1988, p. 205; A. Saggio, le basi giuridiche of the rules which are considered relevant, della politica ambientale nell'ordinamento comunitario dopo l'entrala in vigore dell'Atto unico, Rivista di diritto

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It is also undisputed, in legal literature and question. It has been stated more than once in the practice of the institutions, that that measures of the same kind as the Community environmental protection contested directive were, before the Single measures which involve the harmonization European Act, usually based on Articles 100 of national requirements concerning and 235. Now, if it is taken for granted products are normally based on Article 100a that, after the Single European Act, Article alone, just as, before the entry into force of 235 was replaced (in so far as is relevant to the Single European Act, those measures the present proceedings) by Article 130s, were normally based on Article 100 alone can it also be concluded that, for the (the example usually cited is that of Council purposes of such measures, Article 100 was Directive 70/220/EEC, which harmonizes replaced by Anicie 100a? national provisions to combat atmospheric pollution from motor-vehicle exhaust emissions).

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between the concept of 'common market' 11. Once it is established that both Article and that of 'internal market'; the two 100a and Article 130s are, in theory, concepts differ in breadth, in that the relevant to the adoption of measures like the 'common market' extends to areas which contested directive, it is then necessary to are not part of the 'internal market', but not define the criteria according to which the in depth, in that both concepts relate to the relationship between those two provisions is same level of integration. to be regulated.

9 — Sec, lo ihat effect, C D Ehlermann, op cit., p. 369, according to whom the concept of an internal market 'implies the creation of conditions of competition which allow the free circulation of goods '; similarly, B Langehcine, op. cit., p. 350, who states that 'la creation du It must however be stated in that regard marche interieur ne s'epuise pas dans la suppression des that that case concerned the relationship frontières interieures mais englobe de façon nécess- airement complémentaire un rapprochement des between two provisions, Articles 28 and conditions de concurrence, afin de permettre une exploi- 113, which could be applied together, tation efficace et non discriminatoire des libertes fondamentales garanties par le traite' merely by adopting the more rigorous

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voting system, the unanimity required by used together for the adoption of the same Article 28 (before the Single Act) rather measure. then the easier procedure, the qualified majority provided for in Article 113.

Serious doubts thus exist as to whether Article 100a may be used together with another legal basis which, like Article 130s in this case, provides for unanimous voting, since that joint basis would seriously It therefore seems to me that, in that jeopardize the very functioning of the respect, Articles 100a and 130s are inspired cooperation procedure. Furthermore, at the by different, if not diametrically opposed, hearing, both the Commission and the philosophies and it is therefore difficult to Council appeared to me to agree on this imagine that the two provisions might be point.

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In the first place, Article 130r(2) provides that 'environmental protection requirements 12. Naturally, the result of this construction shall be a component of the Community's of the relationship between Article 100a and other policies'; and although on the one Article 130s is that the application of the hand that means that in the exercise of the latter is limited solely to measures which are powers entrusted to them the Community not already based on some other provision institutions may not disregard consider- of the Treaty. It seems to me that that very ations of environmental protection, it result is confirmed by the decisions of the implies, on the other, that measures which Court on Article 130s. In paragraphs 19 and reflect those considerations may also be 20 of its judgment in Case 62/88, above, it adopted in the exercise of powers other stated that: than those provided for in Article 130r et seq. and, in particular, in the exercise of the powers relating to attainment of the internal market. '19. Articles 130r and 130s are intended to confer powers on the Community to undertake specific action on environmental matters. However, those articles leave intact the powers held by the Community under other provisions of the Treaty, even if the measures to be taken under the latter The 'principle of integration' of environ- provisions pursue at the same time any of mental action in other Community policies the objectives of environmental protection. or action is specifically confirmed in Article 100a(3) where it is stated that the Commission, in its proposals concerning 'environmental protection . . . will take as a base a high level of protection'. It follows 20. Moreover, that interpretation is from that provision that Article 100a was confirmed by the second sentence of Article regarded as an adequate basis for 130r(2), pursuant to which "environmental

Those observations, which were made by the Court concerning the relationship between Article 130s and Article 113, apply also, it seems to me, to the powers vested in In the first place, it is well known that the the Community by Article 100a; indeed, I more important innovations introduced by would say that they apply with greater force the Single European Act include the in the case of Article 100a, in view of the extension of majority voting by the Council fact that paragraph 3 of that article and reinforcement of the Parliament's expressly, and significantly, provides that participation in the Community harmonizing measures directed towards decision-making process, by means of the attainment of the internal market include cooperation procedure. These innovations measures 'concerning . . . environmental rank as principles since they are intended, respectively, to accelerate the process of protection'. Community integration and to strengthen the democratic safeguards attached to the legislative process.

In conclusion, I am of the opinion that:

It is also well known that the new provision on the approximation of national laws, Article 100a, represents, by virtue of its harmonizing measures of the same kind as central importance to the attainment of the the contested directive relate functionally internal market, perhaps the most significant both to environmental protection and to case in which majority voting and the attainment of the internal market; cooperation procedure are applicable.

It follows that a restrictive interpretation of legislation of that kind can nevertheless be Article 100a — as advocated by the adopted under the procedure provided for Council — would have the effect of in Article 100a alone since the Treaty reducing, in a particularly delicate area (that expressly provides that environmental of harmonization relating to the protection requirements may also be environment), the scope of those two pursued in the exercise of other Community essential procedural innovations.

Numerous examples are to be found in practice. Among those adopted prior to the And it is precisely this point of principle, to entry into force of the Single European Act which I referred earlier, that prompts me to and based specifically on Article 130s I reject the restrictive interpretation of Article would mention, among the many, Council 100a which has been postulated and, in Directive 90/313/EEC on freedom of particular, to agree with those who claim access to information on the environment, that the scope of that provision is not Council Regulation No 1210/90 on the limited merely to harmonization of the rules establishment of the European Environ- relating to products but also extends to the mental Agency and the European harmonization of conditions of competition environment information and observation between undertakings within the network, Council Decision 90/150/EEC on Community. the adoption of the Commission work programme concerning an experimental project for gathering, coordinating and ensuring the consistency of information on the state of the environment and natural resources of the Community, Council 14. There is another factor which finally Directives 89/429/EEC and 89/369/EEC convinces me that that solution is correct. concerning air pollution from municipal The application of Article 100a to the waste-incineration plants and Council product at issue here, and in general to the Regulation No 2242/87 on action by the harmonization of environmental measures Community relating to the environment. relating to industrial installations, has abso- lutely no prejudicial effect either on the effectiveness of Article 130s or, still less so, on the effectiveness of the Communities' environmental policy. On another point, it should be emphasized that the fact that measures like the contested directive are adopted under Article 100a and not Article 130s appears Within its own sphere, Article 130s is and consistent not only with the objective of full continues to be applicable to all environ- attainment of the internal market but also mental matters provided that they do not with development of the Community involve harmonization of national environmental policy. That policy can only requirements relating to production benefit from the fact that the measures in processes or products resulting from them question are adopted by a majority rather and therefore do not regulate (through than unanimously and with more effective harmonization) either the movement of involvement of the Parliament.

Finally, I consider that the solution outlined fulfilled. That is so simply because Article here does not involve any real sacrifice of 100a too contains more than adequate safe- the Member States' interests. No interests of guards to protect the interests of the an economic nature are adversely affected Member States which are more alert to since the legislation in question does not environmental problems. Article 100a(3) in impose any burdens on them but merely has fact requires the Commission to 'take as a an impact on the production costs of under- base a high level of protection' in that area; takings, precisely by ensuring that those Article 100a thus appears perhaps to be even costs do not vary from one country to more protective than the specific environ- another. mental rules which, as evidenced by Article 130t, tend rather to take their inspiration from the philosophy of minimum protection. Article 100a(3), favoured, as is well known, Moreover — and above all — environmental particularly by Germany and Denmark, is interests are not in any way undermined. specifically intended to ensure that Naturally, in that respect, the interest harmonizing measures adopted (inter alia) worthy of protection may be perceived only in relation to the environment do not adopt in the need to ensure that the environment a level of protection which is too low in is effectively safeguarded. However, it is relation to certain national systems. clear that that need is felt particularly strongly by the Member States, and by some of them in particular. There is no doubt, therefore, that adequate protection in that To this specific guarantee are then added regard must be assured. the safeguard clauses provided for in Article 100a(4) and (5). In particular, Article 100a(4) guarantees — albeit only in the context of a review carried out in the last Having said that, I must, however, stress instance by the Court of Justice — that a that those preoccupations are not in them- Member State which found itself in a selves sufficient to prevent the Community minority when a harmonizing measure was from adopting harmonizing measures under adopted can apply national provisions which Article 100a in cases where the conditions are justified by important needs relating to for the application of that provision are all environmental protection.