C-43/90

OPINION OF MR DARMON — CASE C-43/90

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 5 November 1991 *

Mr President, opinion is annexed to the application and Members of the Court, the Federal Republic of Germany has not raised any objection of inadmissibility on that ground. 1. By the present action, the Commission asks the Court to declare that the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty by not correctly applying the provisions of Article 4. In his Opinion in Case C-347/88, 3 Mr 5(2) and Article 23(1) of Council Directive Advocate General Tesauro considers that 79/831/EEC of 18 September 1979 the application may refer to the arguments amending for the sixth time Directive and circumstances appearing in the letter of 67/548/EEC on the approximation of the formal notice and in the reasoned opinion laws, regulations, and administrative when it is simply a matter of clarifying the provisions relating to the classification, scope of the pleas. 4In the present case the packaging and labelling of dangerous reference to the reasoned opinion concerns substances. 1 only the list and the names of the dangerous substances in respect of which the Commission alleges that the Federal Republic failed to lay down special labelling 2. During the written procedure the requirements; the legal basis for that Commission abandoned a number of complaint is set out in the application itself. complaints to the point where now, as I In my view, therefore, the application deliver my Opinion, I may be permitted to cannot be said to be inadmissible on that ask what remains of the action. ground.

confirmed that position in its written reply by the Commission, Nos 183, 721 and 833 to a question from the Court, which will do not appear in the reasoned opinion, nor therefore have to take formal note of that. do Nos 1064, 1328, 1366 and 1431. The Commission, in the same reply, maintains its complaint only in respect of five substances, namely No 102 (Azocyclotine), No 376 (Cycloheximide), No 878 (Octanoate II. 6. — The second complaint, made at dioxynil), No 1332 (Temephos) and No point II. 1. b of the application and at point 1344 (Tetrachlorovinphos).

point. evidence that a substance, although satisfying the requirements of this directive, constitutes a hazard for man or the environment by reason of its classification, packaging or labelling, it may provisionally prohibit the sale of that substance or subject 8. I consider it necessary at this juncture to it to special conditions in its territory. It make a number of observations on that shall immediately inform the Commission problem. It is true that, from the perspective and the other Member States of such action of the date of the reasoned opinion, there and give reasons for its decision'.

. . (is) maintained in question from the Court, acknowledges respect of five substances (cf. above under that, of those substances, six were covered (b]', which would appear to mean that the by Directive 91/325/EEC of 1 March 1991 complaint was withdrawn with regard to the adapting Directive 67/548 to technical remaining substances referred to at point 8 II. 1. b of the application. progress for the twelfth time and that 30 others appear in the proposal for a directive adapting the earlier directive to technical progress for the fifteenth time.

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point II. 1. b of the application is maintained its defence a communication entitled only in respect of the five abovementioned 'Mitteilung der Bundesrepublik Deutschland substances, two of which, as I have said, do gemäss Artikel 23 der Richtlinie not appear in the reasoned opinion. The 79/831/EWG' (Notification by the Federal application is therefore inadmissible on that Republic of Germany pursuant to Article 23 last-mentioned ground in respect of the two of Directive 79/831/EEC). substances at issue.

10. Accordingly that leaves only three substances in respect of which the complaint 13. During the oral procedure, the must be considered by the Court. In that Commission explained that that document regard, in its application, the Commission had reached it through unofficial channels alleges that the Federal Republic failed, first and the Commission had used it as a of all, to initiate the procedure laid down in working document, since all the substances Article 23, which the Federal Republic referred to in it are or will be set out in firmly denies, and secondly failed to directives amending Directive 67/548. It indicate in the regulation(s) at issue that the considered, however, that that communi­ measures adopted were provisional, within cation could not constitute notification the meaning of the same article. within the meaning of Article 23.

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COMMISSION v GERMANY

15. That leaves only the second criticism Forschungsgemeinschaft or by the manu­ based on the failure to refer to the facturer or importer, whereas, according to . provisional nature of the measures Article 5(2) and the Commission's interpre­ concerned in the German regulations at tation of that provision, it is for the manu­ issue. I will consider that criticism together facturer alone, on his own responsibility, to with the third complaint referred to at point decide whether to package and label the II. 1. c of the application, which is also based substance at issue in accordance with the on that criticism. rules of the directive, since he may reasonably be expected to be aware of its dangerous properties. According to the Commission, therefore, the German legis­ lation infringes Article 22 of the directive, which provides that 'the Member States may III. 16. — That complaint, which refers, not, on grounds relating to notification, moreover, to point II. 8 of the reasoned classification, packaging or labelling within opinion, concerns carcinogenic substances. the meaning of this directive, prohibit, It refers to Article 5 of the German regu­ restrict or impede the placing on the market lation on such substances, which, it is of substances which comply with the alleged, does not comply with Article 5(2) requirements of this directive and the of Directive 79/831. Article 5(2) provides annexes thereto', in so far as, first, it was that 'dangerous substances not yet not notified to the Commission pursuant to appearing in Annex I but included in the list Article 23, and secondly, it does not referred to in Article 13(1) or already on the indicate in the actual wording of the market before 18 September 1981 must, in provisions at issue that the measures thus so far as the manufacturer whether or not laid down are provisional. Let us consider in established in the Community may turn the two criticisms upon which this third reasonably be expected to be aware of their complaint is based. dangerous properties, be packaged and provisionally labelled by the manufacturer or his representative in accordance with the rules laid down in Articles 15 to 18 and with the criteria in Annex VI'.

substances in order to eliminate any that there were approximately 60 substances disparities with regard to various national capable of being classified as carcinogenic. lists. By letter of 16 November 1987, the Commission was reminded of that under­ taking. At the same time, the Commission was supplied, at its own request, with a priority list of 21 substances classified at national level but not yet classified by the 22. That criticism concerning the absence Commission. Since then, experts with the of notification pursuant to Article 23 of the Commission have begun to investigate only directive with regard to carcinogenic seven of those substances. Having regard to substances appears, in my view, not to the often difficult and lengthy discussions require consideration by the Court. Point which classification at Community level II . 1 .c of the application refers to point II.8 involves, and which are not consistent with of the reasoned opinion. Although point II. 8 the dangers posed by carcinogenic finds that 'the German regulation of 1986 substances to man and the environment, the on dangerous substances does not expressly Federal Republic is compelled to initiate the state that the abovementioned right of the procedure under Article 23 in respect of all Member State to require labelling is only the abovementioned substances, which are provisional' and that 'Directive 79/831 has listed in an annex to this communication'. not been correctly implemented in this regard by the Federal Republic as long as the Federal Government has not amended the 1986 regulation on dangerous substances by declaring those measures to be provisional', no objection is raised to the absence of notification within the meaning of Article 23 of the directive. During the 20. In its written reply to the questions oral procedure, the Commission's represen­ from the Court, the Commission stated that, tative acknowledged that point II. 8 of the with the exception of two substances (1, 4 reasoned opinion made no mention of that Dichlorobutene and 2, 3, 4 Trichloro- objection. butene —1),all the substances on that list have been or will be classified by Community legislation as subject to a labelling requirement.

24. That leaves therefore only the criticism legislature to refer in the regulations at issue based on the failure to mention the to the provisional nature of the measures provisional nature of the national measure adopted. It is difficult to see what interest concerned, which, as I have said, is common economic operators would have in a to points II. 1. b and II. 1. c of the reference of that kind. Let me add that the application. industries most concerned by those rules, in particular the chemical and pharmaceutical industries, are doubtless not unaware of the already long standing machinery of the 25. The Federal Republic contends that directive. Article 23 of the directive lays down no such obligation and that in practice it would serve no purpose since the conflict between Community law and the national measure in question is sometimes resolved, as in the present case, by adapting the relevant 28. This complaint therefore appears to be Community rules. 11 unfounded.

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31. Does that mean that the Commission is 32. Having regard to the fact that the withdrawing its complaint on this point? written reply to the Court's questions, as I The difficulties encountered here are the have already pointed out, states by way of same as those I encountered when conclusion that 'the complaint... (is) main­ considering the complaint referred to at tained in respect of five substances,' which point ILL b. Once again, during the oral do not include No 1119, I suggest as before procedure, the Commission appears to have that the Court should adhere to that reply refused to accept that it had intended to and take the view that the Commission has withdraw its complaint on this point. That withdrawn the complaint referred to at compels me to scan the successive positions point III. d of the application also in adopted by the Commission in order to find respect of substance No 1119. that which must be taken to be correct.

33. I therefore propose that the Court should:

1. take formal note of the Commission's withdrawal of the complaints referred to at point ILL a, point ILL b, except in respect of substances Nos 102, 376, 878, 1332 and 1344, and at point ILL d of the application;

2. declare the application inadmissible with regard to the complaint referred to at point ILL b in relation to substances Nos 376 and 878, and the complaint referred to at point ILL c, in so far as it is based on the absence of notification pursuant to Article 23 of Directive 79/831/EEC;