C-233/99

1 — Original language: Spanish. 3 — As amended by Decree No J83 of 24 June 1996 and Decree 2 — European Parliament and Council Directive 94/62/EC of No 300 of 30 April 1997. 20 December 1994 on packaging and packaging waste 4 — See my Opinion, also delivered today, in Case C-246/99 (OJ 1994 L 365, p. 10). Commission v Denmark.

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I I — The questions referred for a prelimi- ronmental protection [...], preclude nary ruling national legislation under which a penalty can be imposed on a person who, contrary to certain provisions of national law on the packaging of beer and soft drinks, has marketed imported 4. After staying proceedings, the national canned cola?' court referred the following questions to the Court of Justice:

'1. Must Directive 94/62 [...] and, in particular, Article 18, in conjunction with Articles 5, 7 and 9 thereof, be interpreted as precluding national legis- I I I— The Danish legislation lation under which a penalty can be imposed on a person who, contrary to certain provisions of national law on the packaging of beer and soft drinks, has marketed imported canned cola?

5. Under Article 2(1) of Decree No 124, beer and carbonated drinks may be mar- keted only in reusable packaging, for 2. If Question 1 is answered in the affirm- example, glass or plastic bottles, defined ative: Do the provisions of the direc- in Article 1(2) as packaging which forms tive, in particular Article 18, in con- part of a collection system, in which a large junction with Articles 5, 7 and 9 number of empty containers are returned thereof, satisfy the conditions for being by the consumer to be used again. directly applicable, so that a person who has been charged with an offence can rely directly on the provisions of the directive before national courts?

'Article 5

8. The Danish legislation in no way impedes the use of aluminium or steel cans for other drinks. Tins and other metal containers are used, inter alia, for pre- Member States may encourage reuse sys- tems of packaging, which can be reused in 5 — Apparently, there are about 30 containers approved for beer and carbonated soft drinks. Glass bottles are used more than an environmentally sound manner, in con- 35 times, and plastic bottles are refilled about 20 times. formity with the Treaty.'

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'Article 7 'Article 9

Return, collection and recovery systems Essential requirements

(b) with the relevant national standards 10. The national court also requests an referred to in paragraph 3 in so far as, interpretation of Article 28 EC, which is in the areas covered by such standards, worded as follows: no harmonised standards exist.

3. Member States shall communicate to the Commission the text of their national standards, as referred to in paragraph 2(b), 'Quantitative restrictions on imports and which they deem to comply with the all measures having equivalent effect shall requirements referred to in this Article. be prohibited between Member States.' The Commission shall forward such texts forthwith to the other Member States.

Member States shall publish the references of these standards. The Commission shall ensure that they are published in the V — The proceedings before the Court of Official Journal of the European Commu- Justice nities.

..., 11. Written observations have been sub- mitted in these proceedings, within the period prescribed for that purpose by Article 20 of the EC Statute of the Court of Justice, by the Danish Government, the 'Article 18 Netherlands Government, the United King- dom Government and the Commission.

Freedom to place on the market

At the hearing, which was held on 12 June Member States shall not impede the placing 2001, oral argument was presented by the on the market of their territory of packag- Agent of the Danish Government, the ing which satisfies the provisions of this Agent of the United Kingdom Government Directive.' and the Agent of the Commission.

13. The Danish Government submits that the Directive does not preclude the prohib- 15. Second, it maintains that the provision ition on the marketing in its territory of on freedom to place on the market, con- beer and soft drinks in metal containers, tained in Article 18 of the Directive, is not even though export of those drinks in that operative at the moment because Annex II kind of packaging is authorised. It also is so broad that, without an approval allows penalties to be imposed on a person procedure, it is impossible for Member who has infringed the national legislation States to determine: (a) the precise require- by marketing an imported canned soft ments with which packaging must comply; drink. (b) the manner of establishing whether certain packaging conforms to them; and (c) finally, the authority responsible for verifying compliance. It stresses that, in spite of the fact that the Commission's proposal did not establish that procedure, when the text was approved, the minutes 14. In support of those submissions, the included a joint statement by the Council Danish Government puts forward a and the Commission worded as follows: number of arguments. First, it contends '... a suitable procedure must be introduced

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for verifying that the packaging conforms sider that the free movement of packaging to the essential requirements'. which fulfils the essential requirements must not be hindered.

16. Third, it claims that Member States have the power to establish an order of priority between reusable and recoverable 19. I have to admit that some of the packaging, when they establish the detailed arguments put forward by the Danish rules for implementing the essential Government, which fights so valiantly to requirements, and that the essential protect the environment, have aroused my requirements are not necessarily the same sympathy, but I cannot agree with the for a type of packaging irrespective of its interpretation which it proposes to give to use, but that it is necessary to take into Directive 94/62, for reasons which I shall account, in each case, the product which it now explain. is to contain.

new approach to harmonisation and stan- authorise the marketing of all products dardisation,7 characterised by the imposi- which, although not manufactured in tion, on products in certain sectors, of accordance with the requirements of the mandatory provisions concerning safety harmonised standard, conform to the and environmental protection, amongst essential requirements. others.8 Furthermore, in Annex II(B)(III)(l) to the Council Resolution of 1985, it is provided that the general clause relating to placement on the market applies only if the essential requirements for safety are observed, and the degree of detail of the wording will depend on the subject-matter. There is no doubt that Member States have a certain margin of discretion when trans- posing the essential requirements into domestic law, as is clear from Article 9(3). However, in the exercise of that discretion, Member States must bear in mind the Directive's two aims, namely, to provide a high level of environmental protection and to ensure the functioning of the internal market, avoiding obstacles to trade and distortion and restriction of competition Moreover, as may be seen from the funda- within the Community. In Denmark, only mental principles listed in Annex II to the the first of those aims seems to have been Council Resolution of 1985, the technical addressed. specifications, the drawing-up of which is entrusted to organisations competent in the area of industrial standardisation, are not mandatory, but have the status of volun- tary standards, and there is only a pre- sumption that products manufactured in accordance with their provisions conform to the essential requirements established by 21. As regards the second argument, I the Directive. Accordingly, the adoption of believe it is incorrect to state that the clause harmonised standards is not a precondition on freedom to place on the market, con- for the implementation of a directive tained in Article 18, is not operative at the adopted under the new approach nor does moment, since no approval procedure has it mean that all products must be manu- been established. My view on this is based factured in accordance with its precepts, on a number of reasons. since Member States will still be required to

comply, I consider that the requirement, product complies with the essential require- contained in Annex II(3)(a), that the pack- ments established by the Directive, without aging must be manufactured in such a way affecting the content of those requirements, as to enable the recycling of a certain which may still be applied even if those percentage by weight of the materials used, procedures have not been adopted. Until does not means that that proportion has to the harmonised standards referred to in be 100% but merely that materials which Article 9 are introduced, Member States are not recyclable may not be used. It is may implement, within the framework of also clear from the same provision that the Directive 94/62, the national approval pro- percentage may vary depending on the cedures; and, for this purpose, the joint types of material of which the packaging statement of the Council and the Commis- is composed. As regards the requirement, sion, which is not corroborated by the contained in paragraph 3(b), that, for the wording of Directive 94/62, is irrelevant purpose of energy recovery, packaging since, according to the case-law of this waste shall have a minimum inferior calor- Court, declarations made in the course of ific value, I think that this excludes waste preparatory work leading to the adoption which does not make a positive contribu- of a directive cannot be used for the tion to energy recovery. Also, it may be purpose of interpreting that directive, inferred from the behaviour of the Danish where the content of the declarations finds authorities that they consider that packag- no expression in the wording of the provi- ing which is recoverable in the form of sion in question and, consequently, such material recycling conforms to the essential declaration has no significance in law. 9 requirements, since it is used in Denmark for marketing other drinks and a significant proportion of the national beer production is exported in cans to other Member States. In any event, it cannot seriously be denied that a can meets all the specific require- ments regarding manufacture and composi- tion of packaging contained in Annex 11(1), or that it also complies with the specific As regards the impossibility of establishing requirements, contained in Annex 11(3), who is responsible for carrying out the applicable to packaging recoverable in the verification, I should point out that respon- form of material recycling, since a specific sibility for ensuring that an article which is percentage by weight of the material used intended to be marketed has been designed in its manufacture is recyclable. and produced in accordance with the essential requirements 10 has been assigned to the manufacturer and that that assign-

In my view, that power cannot be inferred from Article 1(2), which states that a first priority is the prevention of the production of packaging waste, since, to that end, it envisages reuse, recycling and other forms 22. Nor do I agree with the third of the of recovery. Nor can it be based on arguments used by the Danish Government Article 5, which merely authorises Member in support of the interpretation of the States to encourage reuse systems. In so far provisions of Directive 94/62 which it as concerns the essential requirements in advocates. I find nothing in the preamble Annex II, in my view, all packaging must to or in the articles of or in Annex II to comply with the requirements contained in Directive 94/62 that could provide a basis paragraph 1, concerning its manufacture for the alleged power of the Member States and composition, and must also conform to to establish an order of priority between those in paragraph 2 if it is reusable, or reusable and recoverable packaging, so that those in paragraph 3 if it is recoverable. a preference for one system may justify the Since the Directive does not provide to the exclusion of the other. We must not lose contrary, it is for the manufacturers of sight of the fact that this Directive does not products to decide to use one or the other have the sole aim of protecting the environ- kind for packaging, and Member States, on ment, but is also intended to ensure the the basis of Articles 5, 7 and 15, may functioning of the internal market, to avoid influence the behaviour of the consumer by obstacles to trade, and distortion and giving him a reason for preferring the more restriction of competition within the Com- ecological designs. munity, and that the second objective is not subordinate to the first, but that they are on an equal footing. The Directive authorises Member States to introduce or maintain systems which promote both the reuse and recovery of packaging, and requires them to adopt the measures necessary for attain- ing the objectives established, by means of return, collection, reuse or recovery sys- 23. I also disagree that steel cans do not 11 — See, in the Guide referred to in footnote 8 above. Chapter 3 conform to the essential requirement laid on responsibility. down in Annex II(3)(a). The Commission

24. For all the reasons I have just stated, 25. By this question, the Københavns Byret having regard to the provision, contained in wishes to know whether Article 18 of Article 18, concerning the freedom to place Directive 94/62, in conjunction with on the market, in the Member States, Articles 5, 7 and 9 thereof, has direct packaging which complies with the provi- effect, so that a person who has been sions of the Directive, and in the light of the charged can rely on it before national fact that Article 5 allows Member States to courts. encourage reuse systems of packaging, that Article 7 prescribes the systems which must be set up in order to achieve the aims of the Directive, that Article 9 excludes from the market packaging which does not conform to the essential requirements, the presump- tion being that they do conform to them, 26. The Danish Government maintains until such time as the relevant harmonised that the reply must be in the negative since, standards have been adopted, if they although Article 18 contains a specific and comply with the national rules on the unconditional provision, when it is read matter, and that the essential requirements together with Articles 5, 7 and 9 the on the composition and nature of packag- obligations of the Member States become ing in Annex II are sufficiently precise to be vague. Both Article 5 and Article 7 grant applied in practice, I have to state that the States a wide discretionary power and Directive 94/62 has brought about full the essential requirements which must be

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27. However, the Netherlands Govern- ment, the United Kingdom Government and the Commission take the opposite view. In the Ratti judgment 13 it added that a Member State which has not adopted the implementing measures required by the directive within the prescribed period may not rely, as against individuals, on its own failure to perform the obligations which the directive entails; that a national court 28. Since the seventies, the Court has requested by a person who has complied developed the doctrine of the direct effect with the provisions of a directive not to of directives, which may today be regarded apply a national provision incompatible as having assumed its definitive form. In with the directive, must grant that request the Van Duyn judgment 12 the Court stated if the obligation in question is uncon- that it would be incompatible with the ditional and sufficiently precise; and that, binding effect attributed to a directive by after the expiry of the period prescribed for Article 249 EC to exclude the possibility the implementation of a directive, a that the obligation which it imposes may be Member State may not apply domestic invoked by those concerned; that where the legislation — even if it lays down penal Community authorities have, by a direc- sanctions — which has not yet been tive, imposed on Member States the obli- adapted so as to comply with that directive gation to pursue a particular course of to a person who has complied with its conduct, the effectiveness of such a meas- provisions. ure would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of Community law; that Article 234 EC, which empowers national courts to refer to the Court of Justice questions concerning the validity and inter- In the Becker judgment, 14 the Court sys- pretation of all acts of the Community tematised that case-law by stating that, institutions, without distinction, implies wherever the provisions of a directive furthermore that those acts may be invoked appear, so far as their subject-matter is by individuals before the national courts, concerned, to be unconditional and suffi- and that it is necessary to examine, in every ciently precise, those provisions may, in the

29. The question as to the parties against 30. In order to reply to the question whom a provision in a directive which referred to the Court, it is necessary to satisfies the conditions for having direct examine whether the provisions which the effect may be invoked was settled by the national court seeks to have interpreted — Court in the Marshall I judgment, in which Article 18, in conjunction with Articles 5, 7 it underlined the fact that, according to and 9 of Directive 94/62 — satisfy the Article 249 EC, the binding nature of a requirements established by case-law for directive, which constitutes the basis for the them to have direct effect. possibility of relying on that instrument before a national court, exists only in relation to each Member State to which it is addressed, from which it follows that a directive may not of itself create obligations imposed on an individual and that a provision of a directive may not be relied upon as such against such a person. 15 That 31. Article 18 imposes on Member States case-law has been confirmed more recently, the obligation not to impede the placing on in the judgments in Faccini Dori 16 and El the market on their territory of packaging Corte Inglés. 17 which satisfies the provisions of the Direc- tive. Since it is economic operators who put the containers on the market, it can be 15 — Case 152/84 Marshall [1986] ECR 723, paragraph 48. See, stated that they are entitled to expect the also, Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraphs 7 to 9; Case 31/87 Beentjes [1988] ECR 4635, authorities to refrain from restricting their paragraph 40; Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraphs 29 to 31; and Case C-221/88 Busseni [1990] ECR I-495, paragraphs 22 and 23. 16 —Case 91/92 Faccini Dori [1994] ECR I-3325, 18 — Case 236/92 Comitato di Coordinamento per la Difesa paragraphs 20, 22 and 23. della Cava [1994] ECR I-483, paragraphs 9 and 10. 17 —Case 192/94 El Corte Inglés [1996] ECR I-1281, 19 — Case 71/85 Federatie Nederlandse Vakbeweging [1986] paragraphs 16 and 17. ECR 3855, paragraph 18.

I agree with the Commission in so far as concerns Article 7. The wording of paragraph 1, first subparagraph, makes it impossible, until the Member States have 33. From the combined provisions of taken the necessary measures, to define the Article 18, Article 9 and Annex II, I exact scope of the rights which it confers on conclude that the obligation imposed on citizens. However, once those measures Member States to allow economic oper-

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C — The third question

38. It is settled case-law of the Court that, in the absence of common rules relating to 35. By this question, the Københavns Byret wishes to ascertain, should the Court consider that Directive 94/62 does not 20 — For the rest, it repeats the arguments it put forward in Case C-246/99, and I therefore refer the reader to the text of my preclude legislation such as the Danish Opinion in that case, in which they are set out in detail.

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the use of reusable packaging, the Danish usable packaging are reduced,26 so that Government has other means available, cans may represent an attractive alternative which are permitted by Directive 94/62, from the environmental point of view. The restrict the movement of goods to a lesser journeys taken into account in the Life degree and afford the same level of envi- Cycle Assessment carried out in Denmark, ronmental protection, for example, a which are genuine data supplied by the deposit and collection system for cans, the Beer Manufacturers' Federation, are of an branding of products, the use of economic average of 170 km; the Commission, on the instruments such as eco-taxes and the other hand, rightly points out that the fixing of objectives for the reuse of certain internal market involves the long-distance types of containers. transportation of goods.

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VII — Conclusion

44. In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the Københavns Byret:

(1) Article 18 of European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste, which contains a rule that the placing on the market in the Member States of packaging which complies with the provisions of that directive, is not to be impeded, read in conjunction with Article 5, which allows Member States to encourage reuse systems, with Article 7, which lays down the systems to implement the objectives of the Directive, and with Article 9, which excludes from the market packaging which does not conform to the essential requirements, precludes national legislation which imposes a penalty under criminal law on anyone who markets canned carbonated drinks manufactured in another Member State.

(2) An economic operator is entitled to rely directly on Article 18, in conjunction with Article 9 of and Annex II to Directive 94/62, before the national court, in order to avoid application of legislation of a Member State which provides for a penalty under criminal law the marketing in its territory of carbonated soft drinks in packaging whose importation is prohibited, even though it conforms to the essential requirements.