C-284/95

O P I N I O N OF MR LÉGER — CASES C-284/95 A N D C-341/95

OPINION OF ADVOCATE GENERAL LÉGER delivered on 3 February 1998

1. The questions referred for a preliminary the firm Bettati Antincendio, of Reggio ruling in this case, which come from the Emilia (hereinafter 'Bettati'). Giudice di Pace (Justice of the Peace), Genoa, and the Pretura Circondariale (Dis- trict Magistrates' Court), Avezzano, concern the interpretation of Article 5 of Council Regulation (EC) N o 3093/94 of 15 Decem- ber 1994 on substances that deplete the The relevant legislation ozone layer 1 (hereinafter 'the Regulation') and its validity in the light of, in particular, Articles 30 and 13 Or of the EC Treaty

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The Member States and the Community are 6. Article 5 of the regulation provides essen- parties to the Vienna Convention and the tially that the use, importation, release for Montreal Protocol. free circulation and placing on the market of HCFCs are to be progressively prohibited in certain types of use. It is worded as follows:

3. The aim of the Regulation is to phase out ' 1 . From the first day of the sixth month fol- gradually, taking account of the available lowing that of the entry into force of this technical and scientific evidence and of the Regulation, 1 0the use of [HCFCs] shall be existence of less harmful substitutes which prohibited except: can be used for the same purposes, 6 substances that deplete the ozone layer 7 and, as we shall see, in accordance with the Vienna Convention and the Treaty, to intro- duce control measures which are more severe than those of the second amendment. 8 — as solvents,

— as refrigerants,

4. By virtue of Articles 1 and 2 thereof, the Regulation applies to the production, impor- tation, exportation, supply, use and recovery of a series of substances referred to as 'con- trolled substances', among which are HCFCs.

(c) in car air conditioning;

(d) in road public-transport air condition- ing.

except where codes, safety regulations or 3. From 1 January 1998 the use of [HCFCs] other such constraints prevent the use of in equipment produced after 31 December ammonia. 1997 for the following uses shall be prohib- ited:

— in rail public-transport air conditioning, 5. The importing, release for free circulation and placing on the market of equipment for which a use restriction is in force under this Article shall be prohibited from the date on which that use restriction comes into force. Equipment shown to be manufactured before the date of that use restriction shall not be covered by this prohibition.

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OPINION OF MR LÉGER — CASES C-284/95 AND C-341/95

impact on the environment) for pur- duced by the Community or by indi- poses not stated in Article 5? vidual Member States?'

The context of Case C-341/95 (2) Is not the provision in point in Regu- lation (EC) N o 3093/94 in substance a measure having equivalent effect to a quantitative restriction in so far as, in the absence of any of the grounds of justification under Article 36 of the Treaty, it restricts the free movement of 12. O n 31 July 1995, the Pretore di Avez- a product throughout the Community? zano made an order against Bettati to pay to Safety Hi-Tech the sum corresponding to the selling price outstanding for the fire-fighting equipment supplied by it, also containing N A F S III, plus interest and costs.

(3) Does not the conduct of the Commu- nity and of its institutions, in adopting Regulation (EC) N o 3093/94, and par- ticularly at the stages subsequent to its adoption, constitute action of a public- 13. By a document lodged on 26 September law nature designed to reinforce the 1995, Bettati objected to that decision, con- dominant position of certain operators, tending that the equipment purchased had such action constituting in itself an been found, after conclusion of the contract, instance of serious abuse for the pur- that is, on 12 May 1995, to be unsuitable and poses of Article 86 of the Treaty? unusable, so as to justify termination of the contract pursuant to Article 1497 of the Ital- ian Civil Code: the equipment in question was not marketable, its use having been pro- hibited, as from 1 June 1995, by virtue of Article 5 of the Regulation.

15. The Pretore di Avezzano, doubting the 17. It is true that, as the Court has consis- validity of Article 5 of the Regulation, has tently held, 12under Article 177 of the Treaty asked the Court: the Court's function is to 'contribute to the administration of justice in the Member States and not to give opinions on general or hypothetical questions' 1 3and that '[i]t is in the light of that function that the Court [considers] that it has no jurisdiction to give a preliminary ruling on a question raised before a national court where the interpreta- tion of Community law has no connection whatever with the circumstances or purpose 'Whether or not, having regard to Articles 3, of the main proceedings'. 1 4In other words, 5, 30, 86, 92 and 130r of the Treaty of Rome, under Article 177 of the Treaty, the Court's Article 5 of Council Regulation (EC) N o function is to provide answers which are 3093/94 of 15 December 1994, in so far as it helpful for reaching a decision in the main unconditionally prohibits as from 1 June proceedings. O n that basis, the Court has 1995 the use of HCFCs in the fire-fighting declared certain questions referred to it 15 sector, is valid in the light and on the basis of inadmissible. the considerations set out in the grounds of this judgment?'

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validity of a rule of Community law sought concern only the provisions relating to by that court bears no relation to the actual HCFCs. nature of the case or to the subject-matter of the main action' 1 7 and also that '... it is for the Court, when faced with questions which are not framed in an appropriate manner or which go beyond its functions under Article 177, to extract from all the information pro- vided by the national court, in particular 21. Analysis of the grounds of the orders for from the grounds of the decision referring reference and of the actual wording of the the questions, the points of Community law requests from the Italian courts allows us to which require interpretation or whose valid- identify six questions on which a preliminary ity is at issue, having regard to the subject- ruling is sought. matter of the dispute'.18

22. As regards the first question, which is 19. O n that basis, the Court has thus refor- framed in identical terms in Cases C-284/95 mulated certain questions referred to it. 1 9 and C-341/95, the national courts cast doubt on the validity of the absolute exclusion from the internal market of HCFCs in the fire- fighting sector, as provided for by Article 5 of the Regulation, having regard to Article 130r of the Treaty. 20

20. It is true that, in the disputes in the main proceedings, the sole point at issue is the exclusion from the internal market of fire- fighting equipment containing HCFCs. That is why, if the questions submitted by the 23. According to those courts, the objective national courts concerned the validity of of protecting the environment, as it appears restrictions on 'controlled substances' other from Article 13 Or, presupposes a global than HCFCs, the Court would not be able approach to protection of the ecosystem to answer them. However, I am of the opin- which implies taking into account, for each ion that they refer to such other substances harmful substance, certainly its ozone- solely in order to illustrate their Une of rea- depleting potential (hereinafter O D P ' ) , but soning and that, accordingly, their questions also its atmospheric life-time (hereinafter

'ALT') and, finally, its global warming poten- 25. In addition, they wish to know whether, tial (hereinafter 'GWP'). 21 Those three in view of the factual information provided parameters, expressed as ODP, ALT and by Safety Hi-Tech, the Community's legisla- GWP values, are the subject of regular scien- tive conduct constitutes action of a public- tific estimates. Very broadly reproducing the law nature having the effect of favouring a arguments put forward by Safety Hi-Tech, 22 restrictive agreement or an abuse of a domi- the national courts consider that, by taking nant position by the producers and sellers of into account the O D P value alone, and other controlled substances such as, for therefore focusing only on protection of the example, halons, 2 6 which is prohibited by ozone layer, the Regulation diverges from the Treaty (third question). the aims of Article 130r of the Treaty and that the legislature's action is ultra vires. In the same way, 2 3 they contend that that exclusion is disproportionate since the legis- lature has not adopted such a sanction against, in particular, similar equipment con- taining gases even more harmful to the envi- ronment (for example, halons). 24 26. Reproducing only the arguments put forward by Safety Hi-Tech, they assert that Article 5 of the Regulation might conflict with Articles 86 and 92 of the Treaty since its practical effect is to reinforce the dominant position of undertakings using halons and, in particular, the British Williams Holdings group, which holds more than 40% of the European market, and the Silvani company which represents the aforementioned group 24. Secondly, the national courts are uncer- in Italy and controls more than 80% of the tain whether, in the event that Article 5 of Italian market. the Regulation cannot be justified either for reasons connected with protection of the environment or by Article 36 of the Treaty — a question raised in particular by the Giu- dice di Pace, Genoa —, it should be consid- ered invalid in the light of Article 30 of the Treaty 25 (second question).

31. The Giudice di Pace, Genoa, is of the opinion that Article 5 of the Regulation must be interpreted as meaning that it has the 29. Finally, the answer to the questions effect of prohibiting absolutely the use, pro- raised by the Giudice di Pace, Genoa, pre- supposes that the Court confirms that, as the duction, importation and placing on the mar- national court believes is the case, Article 5 ket of H C F C s in the fire-fighting sector. of the Regulation must indeed be interpreted as meaning that it absolutely excludes from the internal market H C F C s used in the fire- fighting sector (sixth question). 32. The Council and the Commission point out that the prohibitions affecting H C F C s come into effect gradually and are not abso- lute since Article 5(1) to (4) of the Regu- lation provides for a number of exceptions. In addition, according to the Commission, Article 4(8) of the Regulation authorises fur- ther derogations.

34. Prior to the adoption of the second amendment, 28 the use of HCFCs was not controlled. 2 9 Those substances are now 37. To that end, Article 2(2)(b) of that con- included in Group I of Annex C to the vention states that the parties 'shall ... adopt Montreal Protocol. Under the second appropriate legislative or administrative mea- amendment, the use of HCFCs is not pro- sures ... to control, limit, reduce or prevent hibited, but only limited. 30 However, Article human activities under their jurisdiction or 2(3) of the Vienna Convention allows the '... control should it be found that these activi- Parties to adopt, in accordance with interna- ties have or are likely to have adverse effects tional law, domestic measures additional to resulting from modification or likely modifi- those referred to in paragraphs 1 and 2 above cation of the ozone layer'. ... provided that these measures are not incompatible with their obligations under this Convention'.

38. Under Article 3(1) of the same conven- 35. The obligations of the contracting parties tion, they undertake 'to initiate and cooper- are laid down in Articles 2(1) and 3(1) of the ate in, directly or through competent inter- Vienna Convention. national bodies, the conduct of research and scientific assessments on:

36. Article 2(1) of the Vienna Convention provides that the parties undertake to take '... appropriate measures ... to protect human health and the environment against adverse

28 — See, in particular, Article 1 of, and Annex A to, the Mont- real Protocol. 29 — See, in particular, Article 1(A) and (EE) of the second amendment. 30 — Ibid., Article 1(G) and (Q). (f) alternative substances and technologies'.

42. The first sentence of Article 5(1) of the Regulation lays down the principle of prohi- 45. Nevertheless, as the Commission points bition of the use of HCFCs, subject to cer- out, the principle of the absolute prohibition tain exceptions specified in the various of H C F C s has been tempered in, among indents of Article 5(1) to (4). However, the others, the sector affected by Article 4(8) of use of HCFCs in the fire-fighting sector is the Regulation. That provision lays down the not included among those exceptions. principle that the supply of H C F C s is to be limited to a certain quantity — and not pro- hibited — provided that they are placed on the market or used by producers or import- ers for their own account. In addition, it specifies both the method adopted for the 43. In addition, it should be noted that calculation of the permitted quantity and the Article 5(5) provides: 'The importing, release procedure for assigning that quantity to the

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persons concerned. 3 1However, in the light a dominant position by the producers and of the facts described by the national court, sellers of other controlled substances such as, that provision does not appear to be relevant for example, halon. at present. It should be borne in mind that, in the main proceedings, the products at issue were not intended for Safety Hi-Tech, a producer of HCFCs, but were sold to third parties and that those third parties do not seem to have imported those goods for their own account.

49. It must be observed that the national courts merely allude in very general terms to the provisions of the Treaty without specify- 46. It follows from the foregoing that ing the grounds on which the prohibition Article 5 of the Regulation must be inter- referred to in Article 5 of the Regulation preted as meaning that the use, placing on might be invalid. The national courts also fail the market, production and importation of to provide any detail which would enable me HCFCs have been prohibited in the fire- to undertake a useful analysis. In particular, fighting sector since 1 June 1995. the information needed to identify the rel- evant market or assess the effect of the pro- hibition at issue on the operation of that market is lacking. 32

55. The principles listed in Article 130r(2) and (4) and in the second and third para- 52. Under the Maastricht Treaty, protection graphs of Article 3b of the Treaty are those of the environment became a priority. Con- of precaution and preventive action, rectifi- sequently, in the interests of effectiveness in cation — at source as a priority — of envi- particular, legislation based on Article 13 Or is ronmental damage, 'polluter pays', propor- adopted by a qualified majority and no tionality, subsidiarity and, finally, longer unanimously. integration. The latter principle, under which environmental requirements are regarded as a component of the Community's other policies, underlines the importance which must now be attached to the environment in the context of other Community policies embarked upon. That principle has not in 53. Articles 130r and 3b of the Treaty fact been applied for the benefit of any other specify the tasks and objectives assigned to Community policy. the Community in this context. They make Community competence subject to adher- ence to four objectives, six principles and four criteria.

54. The objectives are set out in Article 130r(l) of the Treaty. They are preserving, protecting and improving the quality of the 56. The criteria laid down by Article 130r(3) environment, protecting human health, pru- of the Treaty are those of available scientific dent and rational utilisation of natural and technical data, environmental conditions resources, and promoting measures at inter- in the various regions of the Community, the national level to deal with regional or world- potential benefits and costs of action or lack wide environmental problems. It should be of action, the economic and social develop- noted that the reference to 'worldwide envi- ment of the Community as a whole and the ronmental problems' was inserted by the balanced development of its regions.

34 — With regard to the choice of the legal basis in environmen­ tal action taken by the Community legislature, see, in par­ 36 — Case C-323/88 Sermes [1990] ECR I-3027, paragraph 33. ticular, Cases C-300/89 Commission ν Council [1991] ECR 37 — Council Decision 94/69/EC of 15 December 1993 concern- I-2867 and C-155/91 Commission ν Council [1993] ECR ing the conclusion of the United Nations Framework Con- 1-939. See also the article by X. Debroux, 'Le choix de la vention on Climate Change (OJ 1994 L 33, p. 11). A pro- base juridique dans l'action environnementale de l'Union tocol to that convention, aimed at reducing emissions of européenne', in Cahiers de droit européen, 1995, Nos 3-4, greenhouse gases, was adopted on 11 December 1997 at the p. 256. end of the conference on climate change, in which the 35 — See, in particular, paragraph 2(a), second subparagraph, of Community and the individual Member States participated Safety Hi-Tech's observations in Case C-284/95. (Agence Europe N o 7121 of 14 December 1997).

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62. In addition, the Council — supported on — protecting human health; this point by the Commission — considers that, in the context of a freely determined environmental policy, Articles 130s and 130r of the Treaty confer on it a wide discretion as to the choice of measures to be adopted in order to implement such a policy. Accord- — prudent and rational utilisation of natural ingly, only the manifestly inappropriate char- resources; acter of such measures in relation to the objective pursued could affect their lawful- ness.

SAFETY HI-TECH v S. & T.

principles by which the Community legisla- must observe the principle of preventive ture is to be guided in pursuing its environ- action in the context of that policy. The first mental policy and must therefore be inter- subparagraph of that article therefore preted as a recommendation addressed to the requires the Community legislature to assess Community legislature, under which the lat- the future effects of legislation which it ter is called upon to ensure that the policy introduces. already being pursued is constantly improved. The Community's environmental policy is therefore necessarily a long-term process.

71. Moreover, Article 130r(3) specifically provides that, in preparing that policy, the Community is to take account of a series of parameters, in particular the available scien- 68. Second, I do not think that the substitu- tific and technical data, as well as the poten- tion by Article 130r of the EC Treaty of the tial benefits and costs of action or lack of phrase 'Community policy' for the phrase action. 'action by the Community' in Article 130r of the EEC Treaty is neutral. 38

72. It is obvious that observance of that 69. The term 'policy', as opposed to 'action', principle and those criteria necessarily pre- presupposes the taking into account of a set supposes that the Community legislature of facts, practices or actions. That is why, will assess complex situations, a process although the choice of a specific action can which consists in weighing the respective sometimes prove difficult, the choice of a merits and drawbacks of any given action. policy necessarily implies the assessment of complex and generally conflicting situations, which confirms the analysis of the actual content of Article 130r of the Treaty.

adoption of the rules in question, 40 the leg- matter of the environment. Responsibility islature committed a manifest error of assess- for deciding what action is to be taken is ment, a misuse of powers, 41 or manifestly conferred on the Council by Article 130s. exceeded the limits of its discretion. 42 Moreover, Article 130t states that the protec- tive measures adopted pursuant to Article 130s are not to prevent any Member State from maintaining or introducing more strin- gent protective measures compatible with the 74. Furthermore, it is clear from Article 130t Treaty'. of the Treaty that: 'The protective measures adopted pursuant to Article 130s shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with this Treaty. They shall be notified to the 77. It follows that the Treaty does not Commission.' require the Community legislature to imple- ment immediately, in relation to the environ- ment, a policy under which the level of pro- tection is the highest possible, and that the purpose of a regulation which consists in 75. It undoubtedly follows from that provi- improving appreciably the protection of the sion that the purpose of Article 130r of the environment within the Community is per- Treaty is not to ensure absolute, immediate fectly consistent with the purpose of Article and global protection of the environment. 13 Or of the Treaty. 44

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severe than those of the second amendment. the case with halons, which are also used in The Regulation therefore appreciably the fire-fighting sector, or an HCFC-based improves protection of the ozone layer product such as 141b, which is used as a sol- within the Community. vent.

79. Consequently, the purpose of the regu- lation is perfectly compatible with the objec- tives pursued by Article 130r of the Treaty. 82. The Council and the Commission con- tend that the implementation of a policy to protect the ozone layer necessarily involves controlling only those substances which deplete it. That is why substances with a zero O D P value, such as ' H F C s ' and T F C s ' , for example, do not come within the scope The compatibility of Article 5 of the Regu- of the Regulation. lation with the principle of proportionality

80. Accepting that Article 130r of the Treaty does not require the Community legislature 83. In addition, they argue that the principle to adopt only legislation under which the of the existence or non-existence, from a sci- highest possible level of environmental pro- entific point of view, at the time of the adop- tection can be ensured and that the legisla- tion of the Regulation, of adequate substi- ture is free to choose whatever policy for tutes, entailing less significant depletion of protection of the environment it intends to the ozone layer for the same type of use, jus- pursue (in this case, the protection of the tifies the measures adopted by the Regu- ozone layer), Safety Hi-Tech maintains that lation. Article 5 of the Regulation does not provide a means of achieving the objective thus con- strued.

85. In the case of halons, on the other hand, they point out that, at the time of the adop- tion of the Regulation, no appropriate sub- stitutes — namely, substances with the same fire-extinguishing capacity and equally mild toxic effects for humans — in the context of 88. It should be borne in mind that that gen- so-called 'essential' uses 47 — that is, extin- eral principle of Community law requires guishing fires in confined spaces such as cars, that acts of Community institutions do not operating theatres, aircraft or submarines — go beyond what is appropriate and necessary and, therefore, not even HCFCs, existed. 48 for the purpose of achieving the objectives The Council and the Commission stress, legitimately pursued by the provisions in moreover, that that is still the case. 49 question, it being understood that, where a choice arises between several appropriate measures, recourse should be had to the least restrictive and that the disadvantages caused must not be disproportionate to the desired objective. 50 86. Consequently, they maintain that the measures adopted by the Regulation are fully in conformity with the principle of propor- tionality.

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recourse to other, less restrictive means was — taking into account only the O D P value possible. of those substances appeared suitable for that purpose;

90. In my view, such an examination does not involve finding an answer to a scientific or technical problem. Not only do I not have — HCFCs were rightly regarded as the results of the expert analyses carried out substances harmful to the ozone layer; at the time of the adoption of the provision at issue and submitted to the Council, 51 but, even if those data had been made available to me, I doubt whether I would be competent to resolve such problems without the enlightened assistance of experts. My task is to verify, in the light of the avaiUble proce- — HCFCs in the fire-fighting sector could dural documents, that the legislature did not be replaced by much less harmful make any gross and obvious errors. substances.

91. It is apparent — and at any event it has not been disputed either by all the govern- ments which have lodged observations or even by Safety Hi-Tech or the Italian Gov- 92. Furthermore, virtually everyone, with ernment — from an examination of those the exception of Safety Hi-Tech, agrees that documents that, in order to ensure protec- HCFCs are not better suited than halons for tion of the ozone layer in the light of the sci- employment in essential uses. entific data available at the time of adoption of the Regulation:

— controlling only the substances likely to deplete the ozone layer was the appropri- ate means of protecting it; 93. It follows that it is not manifestly appar- ent that the measure at issue was adopted 'in an inappropriate and unreasonable manner' 51 — In this connection, it should be noted that the tables of ODP values of controlled substances such as halons and and that, in conclusion, Article 5 of the N A F S III, which were submitted to the Court, do not Regulation complies with Article 13 Or of the specify on what date those results were obtained. They arc therefore unusable. Treaty.

'The Court has already held in its judgment 95. In so far as I do not consider myself able of 7 February 1985 in Case 240/83 Associa- to answer the question concerning the com- tion de défense des brûleurs d'huiles usagées patibility of Article 5 of the Regulation with [1985] ECR 531 that the protection of the Articles 86 and 92 of the Treaty (third ques- environment is "one of the Community's tion) 52 in the absence of sufficient available essential objectives", which may as such jus- tify certain limitations of the principle of the factual data and since, as I have pointed free movement of goods. That view is more- out, 53 under Article 177 of the Treaty the over confirmed by the Single European Act. Court's function is merely to provide answers conducive to a decision in the main proceedings and not to formulate opinions on general or hypothetical questions, I pro- pose that the Court declare this question inadmissible.

52 — See points 48 to 50 of this Opinion. In view of the foregoing, it must therefore be 53 — Ibid., point 17. stated that the protection of the environment

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102. Article 3b of the Treaty specifically requires any action by the Community not to go beyond 'what is necessary to achieve the objectives of this Treaty', that is, to 100. Moreover, after the entry into force, on observe the principle of proportionality. 1 July 1987, of the Single European Act, the Court held, in paragraph 21 of its judgment in Case C-155/91 Commission ν Council, cited above, that Article 130s of the EEC

103. It is clear in this case that fire- 54 — Case 302/86 Commission ν Denmark [1988] ECR 4607, extinguishers are goods and that, by exclud­ paragraphs 8 and 9, emphasis added. See also the article by ing them completely from the internal mar­ N. De Sadclccr, 'La question du choix juridique des actes communautaires ayant trait à la protection de ket, Article 5 of the Regulation inevitably l'environnement: symbiose ou opposition entre la politique d'établissement du marché interne de l'environnement?', in Revue juridique de l'environnement, 1993, p. 597. 55 — Ibid., at paragraph 12. 56 — Sec, in particular, paragraph 13. 57 — Emphasis added.

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has the effect of preventing their free move- The fifth question (compatibility of Article 5 ment in the Community. of the Regulton with Articles 3 and 5 of the Treaty)

107. Article 3 of the Treaty sets out the objectives of the Community. I have already 104. However, it is not disputed that protec- shown, when considering the first question, tion of the ozone layer is an 'imperative that the Regulation was adopted for the pur­ requirement', within the meaning of the pose of achieving one of those objectives. Court's judgment in Case C-155/91 Com- mission ν Council, cited above, relating to the protection of the environment. I have also shown that Article 5 of the Regulation observes the principle of proportionality.

Conclusion

112. For the reasons set out above, I propose that the Court should answer as fol- lows the questions referred to it by the Giudice di Pace, Genoa, and the Pretura Circondariale di Avezzano:

(1) In Case C-284/95

Article 5 of Council Regulation (EC) N o 3093/94 of 15 December 1994 on substances that deplete the ozone layer must be interpreted as meaning that, in the fire-fighting sector, the use, placing on the market, production and importation of hydrochlorofluorocarbons have been prohibited since 1 June 1995.

Examination of that provision has not disclosed any factor of such a kind as to affect its validity.

(2) In Case C-341/95