C-284/95

S. & T. Sri,

on the interpretation and validity of Council Regulation (EC) N o 3093/94 of 15 December 1994 on substances that deplete the ozone layer (OJ 1994 L 333, p. 1),

T H E COURT,

composed of: G. C. Rodríguez Iglesias, President, C. Gulmann, H . Ragnemalm and M. Wathelet (Presidents of Chambers), G. F. Mancini, J. C. Moitinho de Almeida, P. J. G. Kapteyn, D. A. O. Edward, P. Jann, L. Sevón and K. M. Ioannou (Rapporteur), Judges,

* Language of the case: Italian.

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— the Council of the European Union, by Anna Lo Monaco and Guus Houttuin, of its Legal Service, acting as Agents,

— the Commission of the European Communities, by Laura Pignataro and Antonio Aresu, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Safety Hi-Tech Sri, represented by Maurizio Maresca; the Italian Government, represented by Pier Giorgio Ferri; the Spanish

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JUDGMENT OF 14. 7.1998— CASE C-284/95

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SAFETY HI-TECH v S. & T.

3 According to the case-file in the national proceedings, Hi-Tech had contracted to deliver to S. & T. a quantity of that product for the price of LIT 3 213 000, includ­ ing VAT. Under the contract, the product was to be stored by Hi-Tech and made available to S. & Τ in Genoa at the latter's request.

4 O n 4 August 1995, the date on which payment was to be made against presenta­ tion of an invoice by Hi-Tech to S. & T., the latter refused to take delivery of the product, contesting the validity of the contract on the ground that the use, and therefore the marketing, of H C F C s for firefighting was prohibited by Article 5 of the Regulation.

5 O n 8 August 1995 Hi-Tech therefore applied for an order from the Giudice di Pace for the payment to it by S. & T. of the agreed price, plus incidental charges and fees.

6 In its application, Hi-Tech submitted that the prohibition on the use and market­ ing of H C F C s for firefighting relied on by S. & T. was illegal, contending that the Regulation was invalid on the ground that no similar prohibition had been imposed by the Regulation for other substances, such as halons, which are equally, or indeed more, environmentally harmful. Hi-Tech considered the prohibition on the use and marketing of H C F C s to be incompatible with Articles 130r, 30, 85 and 86 of the EC Treaty, and therefore asked the Giudice di Pace to seek a ruling from the Court on the validity of the Regulation.

1 1 With respect in particular to the conditions governing the use of H C F C s , Article 4(8), the second subparagraph of Article 4(9) and Article 4(10) of the Regulation lay down special conditions applicable to H C F C s marketed or used by producers or importers for their own account.

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SAFETY HI-TECH v S. & T.

12 AU other use of H C F C s , apart from use by producers or importers for their own account, is governed by Article 5 of the Regulation, entitled 'Control of the use of hydrochlorofluorocarbons', which provides:

' 1 . From the first day of the sixth month following that of the entry into force of this Regulation, the use of hydrochlorofluorocarbons shall be prohibited except:

— as solvents,

JUDGMENT OF 14. 7.1998 — CASE C-284/95

2. From 1 January 1996 the use of hydrochlorofluorocarbons shall be prohibited:

— in non-contained solvent uses including open-top cleaners and open-top dewatering systems without cold areas, in adhesives and mould-release agents when not employed in closed equipment, for drain cleaning where hydrochlo- rofluorocarbons are not recovered and aerosols, apart from use as solvents for reagents in fingerprint development on porous surfaces such as paper and apart from use as fixing agents for laser printers produced before 1 January 1996,

— in equipment produced after 31 December 1995 for the following uses:

(a) as refrigerants in non-confined direct-evaporation systems;

(b) as refrigerants in domestic refrigerators and freezers;

— as carrier gas for sterilisation substances in closed systems.

4. From 1 January 2000 the use of hydrochlorofluorocarbons in equipment pro- duced after 31 December 1999 for the following uses shall be prohibited:

— as refrigerants in public and distribution cold stores and warehouses,

— as refrigerants for equipment of 150 kw and over, shaft input,

except where codes, safety regulations or other such constraints prevent the use of ammonia.

5. The importing, release for free circulation and placing on the market of equip- ment 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

In the light of the nominations made by Member States the Commission shall, in accordance with the procedure laid down in Article 16, apply the criteria set out in Decision IV/25 of the Parties to the Montreal Protocol in order to determine every year any essential uses for which the production and importation of halons may be permitted in the Community after 31 December 1993 and those users who may take advantage of those essential uses for their own account. Such production and importation shall be allowed only if no adequate alternatives or recycled halons are available from any of the Parties to the Protocol.

The Commission shall issue licences to those users identified as laid down in the second subparagraph and shall notify them of the use for which they have authorisation and the substances and the quantities of them that they are autho- rised to use.

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SAFETY HI-TECH v S. & T.

A producer may be authorised by the competent authority of the Member State in which his relevant production is situated to produce halons after 31 December 1993 for the purpose of meeting the licensed demands presented by users identified as laid down in the second subparagraph. The competent authority of the Member State concerned shall notify the Commission in advance of its intention of issuing any such authorisation.'

14 Furthermore, Article 4(3) of the Regulation also provides, with respect to halons:

17 Having regard to the conditions relating to H C F C s and halons and to Hi-Tech's arguments, the national court, considering that the outcome of the proceedings before it depends on the validity of the Regulation, has stayed proceedings pend- ing a preliminary ruling on the following questions:

' 1 . Is Council Regulation (EC) N o 3093/94 to be interpreted (given that it must comply with Article 130r of the Treaty) as permitting the free use of halons (that is, products which have a serious impact on the environment), subject only to limi- tations on their production or on their use by producers, and not on their impor- tation, but as prohibiting absolutely the use (and hence both the production and the importation) of H C F C s (that is, of products which have little impact on the environment) for purposes not stated in Article 5 ?

2. Is not the provision in point in Regulation 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 a product throughout the Community?

3. Does not the conduct of the Community and of its institutions, in adopting Regulation N o 3093/94, and particularly at the stages subsequent to its adoption, constitute action of a public-law nature designed to reinforce the dominant pos- ition of certain operators, such action constituting in itself an instance of serious abuse for the purposes of Article 86 of the Treaty?

4. May legislation for the protection of the environment — and particularly Regu- lation N o 3093/94 — derogate (be interpreted as derogating) from the Community rules on competition (by thus permitting or facilitating restrictive agreements or the abuse of a dominant position) or are the prohibitions under those rules uncon- ditional and not subject to derogation, precluding derogations or restrictions, whether introduced by the Community or by individual Member States?'

The interpretation of Article 5 of the Regulation

21 It should be noted at the outset that the Regulation, including Article 5 thereof, is intended to implement the commitments given by the Community under the Vienna Convention and the Montreal Protocol and the second amendment thereto.

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22 It is settled law that Community legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provi­ sions are intended specifically to give effect to an international agreement con­ cluded by the Community (see to that effect Case C-61/94 Commission ν Ger­ many [1996] E C R I-3989, paragraph 52).

23 By virtue of Article 2(3) of the Vienna Convention, the parties to that convention may adopt more severe domestic measures provided that they are intended, having regard to scientific evaluations, to promote the use of substitutes that are less harmful to the ozone layer.

28 It is clear from those provisions that the use of H C F C s for firefighting is not pro- vided for by the Regulation, with the result that their use is prohibited, by virtue of Article 5(1) of the Regulation, as from 1 June 1995.

29 The question must therefore be considered whether the total prohibition of the use of H C F C s for firefighting means that their marketing is also prohibited.

30 The marketing of H C F C s for firefighting is not mentioned in Article 5 of the Regulation. However, in so far as the release of H C F C s into commercial channels for those purposes is a step preparatory to the use of such substances and has no aim other than their use for those same purposes, it must be concluded that, because the use of H C F C s has been totally prohibited since 1 June 1995, the mar- keting of them for firefighting must also be regarded as prohibited from that date.

31 That interpretation is borne out both by Article 3 and by Articles 6 to 13 of the Regulation, which relate respectively to the production of controlled substances and to the importation of them, which are also steps preparatory to their use. The fact that those provisions do not mention the production or import of H C F C s for firefighting indicates that the Community legislature, having imposed a general prohibition on the use of such substances for such purposes, considered that it would be pointless to lay down rules for the production, import and, conse- quently, the marketing of those substances.

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JUDGMENT OF 14. 7.1998 — CASE C-284/95

— preserving, protecting and improving the quality of the environment;

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SAFETY HI-TECH v S. & T.

— protecting human health;

— prudent and rational utilisation of natural resources;

— promoting measures at international level to deal with regional or worldwide environmental problems.

— the potential benefits and costs of action or lack of action;

— the economic and social development of the Community as a whole and the balanced development of its regions.

4. ...'

36 That provision thus sets a series of objectives, principles and criteria which the Community legislature must respect in implementing environmental policy.

37 However, in view of the need to strike a balance between certain of the objectives and principles mentioned in Article 130r and of the complexity of the implementa- tion of those criteria, review by the Court must necessarily be limited to the ques- tion whether the Council, by adopting the Regulation, committed a manifest error of appraisal regarding the conditions for the application of Article 130r of the Treaty.

38 It is therefore necessary to verify whether, having regard to its objective, the Regu- lation was adopted in breach of Article 130r of the Treaty.

43 As the Court held in Case C-379/92 Peralta [1994] ECR 1-3453, paragraph 57, Article 130r is confined to defining the general objectives of the Community in the matter of the environment. Responsibility for deciding what action is to be taken is conferred on the Council by Article 130s. Moreover, Article 130t states that the protective measures adopted jointly pursuant to Article 130s are not to prevent any Member State from maintaining or introducing more stringent protective mea- sures compatible with the Treaty.

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JUDGMENT OF 14.7.1998 — CASE C-284/95

44 It does not follow from those provisions that Article 130r(l) of the Treaty requires the Community legislature, whenever it adopts measures to preserve, protect and improve the environment in order to deal with a specific environmental problem, to adopt at the same time measures relating to the environment as a whole.

45 It follows that Article 130r(l) of the Treaty authorises the adoption of measures relating solely to certain specified aspects of the environment, provided that such measures contribute to the preservation, protection and improvement of the qual- ity of the environment

46 In that connection, as is apparent from its title, the aim of the Regulation is to control substances that deplete the ozone layer. The fact that only that aspect of environmental preservation, protection and improvement is referred to by the Regulation cannot therefore be regarded as incompatible with the purpose of Article 130r(l) of the Treaty.

50 Lastly, Hi-Tech considers that, by not prohibiting the use of other substances also intended for firefighting, including hydrofluorocarbons and perfluorocarbons, the Regulation did not take account of the available scientific and technical data, as required by Article 130r(3) of the Treaty, because those substances, the GWP and ALT of which are considerable, are more damaging to the environment than H C F C s , the ODP, GWP and ALT for which are regarded as acceptable.

51 Article 130r(3) of the Treaty requires the Community, in preparing its policy on the environment, to take account in particular of available scientific and technical data. However, the Regulation cannot be regarded as failing to meet that require- ment.

52 In addition to taking account of the scientific evidence, as indicated in the fourth and fifth recitals in its preamble, the Regulation states, in the seventh recital, that 'a periodical review of the permitted uses of ozone-depleting substances ... is desir- able' and, in the eighth recital, that 'it is necessary to keep under review the evolu- tion of the market in ozone-depleting substances, particularly in order to ensure sufficient supply for essential uses, and the state of development of appropriate

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substitutes, but also to keep to a minimum the imports of virgin, recovered and reclaimed ozone-depleting substances released for free circulation in the European Community'.

SAFETY HI-TECH v S. & T.

which it employs are suitable for the purpose of attaining the desired objective and whether they go beyond what is necessary for that purpose (see, in particular, Case C-233/94 Germany ν Parliament and Council [1997] E C R 1-2405, paragraph 54).

58 In view of the objective of the Regulation, which is to protect the ozone layer, it must be held that the means employed by the Regulation, in Article 5(1), namely the prohibition on the use, and hence the marketing, of H C F C s for firefighting, was suitable for the purpose of attaining that objective. In view, however, of the fact that other substances that are equally, or indeed more, harmful to the ozone layer, such as halons, are authorised for firefighting, it is necessary to determine whether that prohibition exceeds the limitations inherent in observance of the principle of proportionality.

59 It need merely be recalled that, as is clear from the case-file in the proceedings before the national court, halons display an extinguishing capability which is not otherwise available, particularly in dealing with fires in small spaces, and are of extremely low toxicity, whereas, to achieve the same result, a larger quantity of H C F C s would be needed, entailing a greater toxic impact.

60 Since, as indicated in paragraph 54 of this judgment, there are effective substitutes for H C F C s such as water, powder and inert gases and, as indicated in paragraph 59, for certain essential uses there are irreplaceable substitutes such as halons, the prohibition of using H C F C s cannot be regarded as contrary to the principle of proportionality.

64 Environmental protection has already been considered by the Court to be one of the essential objectives of the Community (see Case 240/83 Procureur de la République v Association de Défense des Brûleurs d'Huiles Usagées [1985] E C R 531, paragraph 13). In Case 302/86 Commission v Denmark [1988] E C R 4607, paragraph 9, the Court held that protection of the environment is an imperative requirement which may limit the application of Article 30 of the Treaty.

65 However, Hi-Tech considers that, in the light of Article 30 of the Treaty, the prin- ciple of proportionality has not been observed.

66 In that regard, it need merely be pointed out that, as is clear from the objective of the Regulation and from the considerations set out in paragraphs 59 to 61 of this judgment, a prohibition on the use and marketing of H C F C s which is designed to protect the ozone layer cannot be regarded as disproportionate to the aim pursued.

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SAFETY HI-TECH v S. & T.

67 It must therefore be stated that consideration of the question referred has disclosed no factor of such a kind as to affect the validity of Article 5 of the Regulation.

71 However, the order for reference does not contain sufficient information to satisfy those requirements.

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72 The order merely repeats exactly the arguments put forward by Hi-Tech which, as that party conceded at the hearing before the Court, do not explain how that pro- hibition might favour agreements or concerted practices. N o r do they give the information needed to define the relevant market or explain the impact which the prohibition on the marketing of H C F C s has on the functioning of that market. Moreover, the national court merely referred to Articles 85 and 86 of the Treaty without indicating the precise reasons which prompted it to query the validity, in relation to the situation before it, of the prohibition laid down by Article 5(1) of the Regulation.

73 Thus, the information in the order for reference, in so far as it refers with insuf- ficient precision to the situations of law or fact to which the national court is refer- ring, do not enable the Court to give a helpful interpretation of Community law.

74 Accordingly, it must be held, pursuant to Articles 92 and 103(1) of the Rules of Procedure, that the third and fourth questions referred to the Court are manifestly inadmissible.

in answer to the questions referred to it by the Giudice di Pace, Genoa, by order of 8 August 1995, hereby rules:

1. 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 prohibiting entirely the use and, consequently, the marketing of hydrochlorofluorocar- bons for firefighting.

2. Consideration of the questions submitted has not disclosed any factor of such a kind as to affect the validity of Regulation N o 3093/94.

Rodríguez Iglesias Gulmann Ragnemalm

Wathelet Mancini

Moitinho de Almeida Kapteyn Edward