C-246/99

4. Under Article 2(2) and (3), the packag- 1 — Original language: Spanish. ing must have been approved by the 2 — European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste Environment Agency (Miljøstyrelsen), (OJ 1994 L 365, p. 10). which considers, in particular, whether it I - 6944

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is, from a technical point of view, appropri- Tins and other metal containers are used, ate for a collection system and whether the inter alia, for preserves, coffee and biscuits. recovery of a significant number of empty Single-use glass containers are used, for containers for reuse may be ensured. When example, for wine, and plastic or cardboard the product is sold, a cash deposit is containers for milk, vinegar or oil. charged; this is refunded to the consumer when he returns the container to the shop, which has a duty to pay it. This system encourages the consumer to return the container in order to retrieve the deposit, so that a high number of empty containers is returned. 3In 1998 the total beer con- sumption in Denmark was about 580 million litres.

Nor does it prevent the use of tins for exporting beer and carbonated drinks. The Commission states in its application that, in 1998, Denmark exported around 120 mil- lion litres of beer in metal containers, that is to say, nearly 360 million 33 cl alumin- 5. It is apparent from Article 3 of the ium cans, mostly to other Member States. Decree that beer and carbonated drinks may be imported in unapproved packaging, provided that it is integrated into a collec- tion system for reuse or recycling. Single- use packaging is accepted, on condition that it is not made of metal.

Member States may encourage reuse sys- tems of packaging, which can be reused in an environmentally sound manner, in con- 8. In the first recital of the statement of the formity with the Treaty.' reasons on which Directive 94/62 is based, the following are given as grounds for its adoption: the need to harmonise the national measures concerning the manage- ment of packaging, in order to prevent or reduce its effect on the environment, thus providing a high level of environmental protection, and to ensure the functioning of the internal market and to avoid obstacles 'Article 7 to trade and distortion and restriction of competition within the Community. In the thirteenth recital, it is stated that targets set in Member States for the recovery and recycling of packaging waste should be Return, collection and recovery systems confined within certain ranges so as to take account of the different situations in Member States and to avoid creating bar- riers to trade.

1. Member States shall take the necessary measures to ensure that systems are set up to provide for:

9. The Commission claims that the Danish legislation infringes Article 18, in conjunc- (a) the return and/or collection of used 4 — See the publication The Recycling of Aluminium Cans in packaging and/or packaging waste Sweden, AB Svenska Returpack, Stockholm, 1997, p. 22. from the consumer, other final user, I - 6946

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or from the waste stream in order to on the market only if it complies with all channel it to the most appropriate the essential requirements defined by this waste management alternatives; Directive including Annex II.

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requirements referred to in this Article. The 'Quantitative restrictions on imports and Commission shall forward such texts forth- all measures having equivalent effect shall with to the other Member States. be prohibited between Member States.'

Member States shall publish the references of these standards. The Commission shall ensure that they are published in the Official Journal of the European Commu- 'The provisions of Articles 28 and 29 shall nities. not preclude prohibitions or restrictions on imports, exports or goods in transit justi- fied on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or ...' plants; the protection of national treasures possessing artistic, historic or archaeologi- cal value; or the protection of industrial and commercial property. Such prohib- itions or restrictions shall not, however, constitute a means of arbitrary discrimi- nation or a disguised restriction on trade between Member States.' 'Article 18

Freedom to place on the market

III— Pre-litigation procedure Member States shall not impede the placing on the market of their territory of packag- ing which satisfies the provisions of this Directive.'

At the hearing, which was held on 12 June 2001, oral argument was presented by the Agent of the Commission, the Agent of the Danish Government and the Agent of the United Kingdom Government. 12. In November 1998, the Commission issued a reasoned opinion, in which it stated that Article 2(1), in conjunction with Article 1(2), and Article 3 of Decree No 124 were contrary to Directive 94/62, particu- larly Article 18, in conjunction with Articles 5, 7 and 9 thereof, and Articles 28 EC and 30 EC, and requested that the Danish authorities amend the aforemen- V — Analysis of the dispute tioned legislation within a period of two months. The Danish authorities replied to the reasoned opinion one month later, stating that their legislation was compatible with Community law as it stood and that 14. The Commission maintains that Direc- there was no need to amend it. tive 94/62 has established full harmon- isation of the domestic rules on packaging and that, therefore, Member States may not impose more stringent rules on national manufacturers. The fact that the standard- isation contemplated in Article 10 has not yet been achieved does not alter the obli- gation of the Member States to authorise the marketing of packaging which complies IV — The proceedings before the Court of with the essential requirements laid down Justice in Annex II; both cans and other single-use containers satisfy the specific requirements laid down in paragraphs 1 and 3 of that annex. Furthermore, the Danish legislation constitutes an impediment to trade, 13. The Commission's application was received at the Court on 1 July 1999 and 6 — By order of the President of the Court of 12 November the defence was lodged on 31 August that 1999.

16. The Danish Government contends, essentially, that Directive 94/62 has not established full harmonisation of the rules applicable to packaging and that the essen- A — The scope of the harmonisation tial requirements contained in Annex II are established by Directive 94/62 so broad, vague and discretionary that they need to be specified. That harmonisation will not be complete until common Euro- pean rules have been adopted to indicate the way in which those requirements must be interpreted for each kind of product. It states that the essential requirements in the 18. The Commission maintains that the Directive refer to the product which has to measures imposed by Directive 94/62 must be packaged, and that it is, precisely, the be implemented uniformly in all the I - 6950

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It contends, however, that the actual con- tent of the provisions of the Directive, concerning the essential requirements laid down in Article 9 and Annex II is so general and imprecise that, in practice, it is imposs- ible to implement the Directive as if it were a measure establishing full harmonisation. In that regard, it points out this is the only directive adopted to date in accordance 19. The Danish Government acknowledges with the new approach in the sphere of the that, overall, Directive 94/62 satisfies all environment. It stresses that, unlike the the formal requirements for a full harmon- Directive on toys, 9or the Directive on gas isation measure, in accordance with the appliances, 10 which standardise the new approach, although it does not estab- requirements applying to the marketing of lish an approval procedure. Thus, it was those products, with special emphasis on adopted on the basis of Article 95 EC. safety, Directive 94/62 emphasises environ- Article 1(1) states that the Directive aims to mental protection. It adds that, in order to harmonise national measures concerning determine the essential requirements for the management of packaging; Article 9 packaging, it is necessary to examine various parameters, such as whether there is a need to assess the effect on the 7 — Embodied in Council Resolution of 7 May 1985 (OJ 1985 L 136, p. 9). 8 — At the hearing the Commission stated that, to date, about 30 directives have been adopted in accordance with the new 9 — Council Directive 88/378/EEC of 3 May 1988 on the approach. See the Guide to the implementation of directives approximation of the laws of the Member States concerning based on the New Approach and the Global Approach, on the safety of toys (OJ 1988 L 187, p. 1). the following website: http//europa.eu.int/comrn/enterprise/ 10 — Council Directive 90/396/EEC of 29 June 1990 (OJ 1990 newapproacn/newapproach.htm L 196, p. 15).

20. I disagree with the Danish Govern- ment's view on that point, for various reasons. I do so, first, because, although 22. I do not wholly agree with the Danish Directive 94/62 may be the only directive Government on this point. As may be seen on the environment adopted to date under from the fundamental principles listed in the new approach, Annex II of the Council Annex II to the Council Resolution of Resolution of 1985 does not restrict the 1985, the technical specifications, the legislative harmonisation to essential safety drawing-up of which is entrusted to organi- requirements, but also envisages other sations competent in the area of industrial requirements in the general interest. My standardisation, are not mandatory, but second reason is that the justifications in have the status of voluntary standards, and Part A of the 'Outline of the principles and there is only a presumption that products main elements which should make up the manufactured in accordance with their body of the directives' of the Resolution include the safety of persons, domestic animals and goods, and the observance of 11 — F. Aubry-Caillaud, Le concept de subsidiante et la other essential protection requirements in nouvelle approche en matière de libre circulation des marchandises, Revue des affaires européennes, 1998, 1 the general interest such as health, con- and 2, pp. 67 to 69, especially p. 67.

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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 24. I shall consider these objections in the distortion and restriction of competition same order. First, I find it difficult to within the Community. The Danish Gov- believe that, as the defendant Government ernment seems to have addressed only the has stated with such insistence, the essential first of those aims in this particular case. requirements are so lacking in specification as to be inoperative, especially when there are 13 Member States which have trans- posed them into their domestic law and in which Directive 94/62 is being imple- mented. Even assuming that they were insufficiently clear, the Member States would still be required to implement them in the best way possible, in compliance with Community law. I should also like to add that, if the Directive had had defects 23. The Danish Government takes the view which invalidated it, Member States were that the provision on freedom to place on entitled to bring an action for its annulment

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I must add that, for this purpose, the joint 28. The defendant Government contends, statement of the Council and the Commis- however, that the decision on the use of sion, which is not corroborated by the recyclable or recoverable containers to sell wording of Directive 94/62, and which has products cannot be left to the manufac- been cited by Denmark in support of its turer, since the environmental requirements arguments, is irrelevant since, according to would be watered down to almost nothing. the case-law of this Court, declarations Given that Directive 94/62 seeks to achieve made in the course of preparatory work a high level of environmental protection, leading to the adoption of a directive the requirement that the packaging should cannot be used for the purpose of inter- be recoverable in the form of material preting that directive, where the content of recycling or energy recovery seems to the the declarations finds no expression in the Danish Government very unambitious wording of the provision in question and, from an ecological point of view, because consequently, such declaration has no sig- there is almost no packaging on the market nificance in law. 12 at the moment which is not recoverable to some extent. Even specific requirements, like those stipulating that packaging must have a minimum adequate volume and not contain harmful substances, are reasonable, but they have to be given concrete form in order to be operative.

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tives established, by means of return, authorises Member States to encourage collection, reuse or recovery systems. As reuse systems. In so far as concerns the the Commission states in its application, essential requirements in Annex II, in my these are suitable instruments for ensuring view, all packaging must comply with the a high level of environmental protection requirements contained in paragraph 1, without jeopardising the free movement of concerning its manufacture and composi- goods. tion, and must also conform to those in paragraph 2 if it is reusable, or those in paragraph 3 if it is recoverable. Since the Directive does not provide to the contrary, it will be for the manufacturers of products to decide to use one or the other kind for packaging, and Member States, on the basis of Articles 5, 7 and 15, may influence the 29. The Danish Government takes the view behaviour of the consumer by giving him a that Member States have the power to reason for preferring the more ecological establish an order of priority between designs. reusable and recoverable packaging, when they establish the detailed rules for imple- menting the essential requirements. It is aware that that element of discretion inevitably leads to differences of interpre- tation between Member States, which are the consequence of the fact that Directive 94/62 has not established full and operative harmonisation in this field.

Nor does it seem to have considered it 32. I cannot agree with that interpretation. expedient, as a result of the publication in Article 5 merely authorises Member States 1998 of the updated version of the part of to encourage reuse systems of packaging, the Life Cycle Assessment concerning the but is a long way from permitting the packaging of beer and soft drinks, 15 to prohibition of single-use containers, since a invoke Article 95(5) EC. This provision total or partial ban cannot be considered to allows a Member State, if, after the adop- be a measure encouraging a certain pattern tion of a harmonisation measure, it deems of behaviour for the purposes of the Direc- it necessary to introduce national provi- tive. I agree with the Commission that sions based on new scientific evidence Member States may encourage the system relating to the protection of the environ- of reusable packaging, by having recourse ment on grounds of a problem specific to to means which do not create an impedi- that Member State arising after the adop- ment to the free movement of goods and tion of the harmonisation measure, to which ensure the same level of environ- notify the Commission of the envisaged mental protection, for example, deposit provisions as well as the grounds for intro- and collection systems, both for reusable ducing them. and for single-use packaging; the branding of products; the use of economic instru- ments, such as eco-taxes; and the fixing of objectives for the reuse of certain types of packaging.

had to create a system for collecting the the necessary level of safety, hygiene and packaging of fruit juice, ice tea or chocolate acceptance for the packed product and for milk — for which the turnover is clearly the consumer, means that packaging which lower than that of beer and soft drinks — is acceptable for one product may not be so in order for it to be reused, the damage to for another. However, it cannot seriously the environment might be more consider- be maintained that a can is not suitable for able than the ecological advantages containing beer, that it does not meet all obtained, creating disproportionate practi- the safety and hygiene requirements or that cal difficulties both for manufacturers and most of the material used in its manufac- retailers, and for consumers. In the sub- ture is not recyclable or recoverable. mission of the Danish Government, the superiority of reusable packaging over single-use packaging is obvious, first in that the former is not waste but has value for the manufacturer and the bottler, so that effective collection systems may be devised to encourage the various links in the chain to participate in the rotation, whereas the latter is waste which has no value other than intrinsic value, which is why there are no examples of systems for collecting this type of packaging which achieve more than 90% returns, even where it has been made compulsory to leave a deposit.

States may rely on Articles 5, 7 and 15 of 36. Nor do I agree with the defendant on the Directive, which authorise the set- this point. The Commission maintains that ting-up of systems which help to reduce it is possible to separate the aluminium top the overall number of containers, either by before melting it down. No evidence to this encouraging the use of reusable containers effect, or to the contrary, has been adduced or by promoting the use of ecological in the proceedings. It is true that the containers, by means of economic instru- specific requirements applicable to recover- ments. able packaging stipulate that it must be possible to recycle a certain percentage of the materials used in its manufacture, but it cannot be inferred from this wording that it must be possible to recycle a certain percentage of all the components.

Although the loss of recyclable aluminium involved in the melting procedure is limited, since it only represents about 10% of the weight of the steel can, it is evident that melting entails considerable energy consumption, 37. The Danish Government states that a and the production of the top represents life cycle assessment is a method of evalu- about 50% of the amount of energy needed ating, on the one hand, the main consump- for manufacture. 17 It is true that alumin- tion of raw materials and energy and, on ium, owing to its high energy content, the other, the effect on the environment.

can. In terms of total energy used, beverage packs today lations of the environmental impact of are among the most economical of all types of packaging used for food products. Energy consumption per type of various types of containers used for beer packaging (total energy consumption throughout the natural cycle):. . . 33 cl clear returnable bottle, 30 collec- and soft drinks, namely, reusable bottles, tions = 2.7 MJ/litre; 45 cl aluminium can, 90% recycling = single-use glass and plastic bottles, and 2.9 MJ/litre; 33 cl green returnable bottles, 30 collections = 3.3 MJ/litre.' steel and aluminium cans, from extraction

38. I can only congratulate the Danish Government for having commissioned this Life Cycle Assessment of drinks packaging, because of the scale of the work and the high quality of the result obtained. It is a It adds that the abovementioned Assess- pioneering study of its kind, which will set ment shows, overall, that the impact on the the standard for those carried out in the environment of steel and aluminium cans, future, and will be very useful for iden- and of single-use glass and plastic bottles, is tifying the effects which packaging may greater than that of reusable glass and have on the environment, in order to plastic bottles. It also points out that the promote certain systems of reuse through main effects on the environment of all the deposit and collection, or by means of materials and types of packaging examined economic instruments. are closely linked to energy consumption, which includes the use of fossil fuels, with the subsequent release of emissions into the atmosphere. Starting from the hypothesis that electricity is produced at a new coal power station, and applying that hypoth- esis to the total beer consumption in Denmark, in 33 cl containers, the CO2 emissions have been evaluated at 100 000 tonnes a year for the reusable bottles, However, I agree with the Commission that whereas, for the single-use containers, the a document of this nature cannot be used,

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40. For all the reasons I have just stated, having regard to the clause contained in Article 18 concerning the freedom to place on the market, in the Member States, In fact, in Annex H to the Life Cycle packaging which complies with the provi- Assessment, which contains a critical sions of the Directive and in the light of the examination of the work, some of its fact that Article 5 allows Member States to limitations are noted. 18 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, 39. I think it would be superfluous to judge until such time as the relevant harmonised the content of Directive 94/62 in the light standards have been adopted, if they of Article 6 EC, introduced by the Treaty of comply with the national rules on the Amsterdam, which provides that environ- matter, and that the essential requirements mental protection requirements must be on the composition and nature of packag- integrated into the definition and imple- ing in Annex II are sufficiently precise to be mentation of the Community policies and applied in practice, I have to state that activities referred to in Article 3, in par- Directive 94/62 has brought about full ticular with a view to promoting sustain- harmonisation of the national measures on packaging management and packaging waste. 18 — See, in particular, paragraph H.4, p. 379, in which it is stated: 'In its present form this study report is not quite suitable as support of public decision making, and it cannot be the sole background for predicting which of the packaging systems are most environmentally preferable. For such an evaluation, many other aspects, either omitted in the study (e.g. littering, migration from packaging materials, retailer processes, work environment, func- tionality, hygiene, home transport, economics) or not adequately serviced by the Life Cycle Assessment tool (e.g. local environment impacts), also have to be taken into Consequently, a Member State fails to account.' comply with its obligations under that

41. However, in case the Court of Justice does not take this view, I shall now go on to consider whether the barrier to trade con- stituted by the prohibition on imports to Denmark of canned beer and carbonated drinks can be justified by the overriding 43. The Danish Government does not dis- requirement to protect the environment. pute that the prohibition on imports of canned beer and soft drinks is a barrier to trade, but considers that its scope is very limited and that it is justified by environ- mental protection requirements, an objec- tive which it cannot secure so effectively by employing less radical measures. Fur- thermore, the proportion of cans on the beer and soft drinks market is low in most of the European countries 21 and foreign B — Concerning the justification for the beer imports represent a tiny part of beer prohibition on imports of canned beer and consumption not only in Denmark but also carbonated drinks in some European States; it is particularly low in those countries which have a significant domestic production: 2.7% in Germany, 1.9% in Finland, 1.3% in Den-

It points out that, if the prohibition on imports is lifted, several Danish manufac- turers will package their products abroad in order to export them to Denmark, and there is a risk that the effectiveness of the 45. First, as the Court of Justice has whole container collection system, which pointed out, Article 28 EC, in defining yields a high percentage of returns, will be measures having an effect equivalent to a greatly reduced. The reason that it pro- quantitative restriction on imports, makes hibits imports of canned beer and soft no distinction according to the degree to drinks, whereas it authorises their export in which trade between Member States is that type of packaging, is that, in Denmark, affected. If a national measure is capable there is an effective system for collecting of hindering imports, it must be regarded as reusable packaging and the consumption of a measure having equivalent effect, even those canned drinks would have harmful though the hindrance is slight. The Com- consequences in relation to the greenhouse mission takes the view that the prohibition effect, which would not happen in other on the importation of a product in a certain States which do not have such an efficient packaging constitutes a radical intervention packaging collection system. by the public authorities that adversely affects trade between Member States.

46. Second, in the date provided by the 44. In my view, none of those arguments is Danish Government regarding the low level of sufficient force to justify the impediment 23 — Case 240/83 Asociación de Defensa de los Quemadores de Aceites Usados [1985] ECR 531, paragraph 13; Commis- 22 — Calculations provided by the Danish Government from the sion v Denmark, cited in footnote 19 above, paragraph 9; 1998 data or the Common Market Beer Manufacrurers and Case C-389/96 Aher-Waggon [1998] ECR I-4473, Confederation. paragraph 19.

48. Fourth, the calculations submitted by 47. Third, the Danish Government has not the Danish Government relating to the convinced me that the prohibition on advantages of the reusable packaging sys- imports of canned beer and carbonated tem and the tonnes of waste which it avoids drinks is a measure which is necessary in are based on the hypothesis that all packag- order to protect the environment, or that it ing will be replaced by single-use packag- is proportionate to achieving that aim. It ing. It seems to me unrealistic to think in appears that the ban on using cans and these terms 2 5 and, furthermore, there is the single-use containers for beer and carbon- possibility of introducing a deposit and ated drinks is based on the results of the collection system to facilitate the recycling abovementioned Life Cycle Assessment. of very large numbers of used cans. Also, Notwithstanding the undeniable quality of even in countries in which cans are not sold that study, the truth of the matter is that it with a deposit, the Commission states that is based on a working hypothesis the up to 84% are recycled. 26 materialisation of which, in practice, is, to say the least, uncertain and that, if it had 24 — Ökobüanz für Getränkeverpackungen, Umwelt Bundes started from a different assumption, mod- Amt, 1995, for example pp. A 25; A 38; B 24 et seq.; and B ifying the specific weight accorded to each 34 et seq. 25 — The Commission cites the example of Germany, a country element, the results of the calculations in which 78% of the beer consumed in 1997 was in would have been different. The Commis- reusable containers, 18.8% in cans and 3.2% in single-use glass bottles. Source: Gesellschaft für Verpackungs- sion refers to a report drawn up in Ger- marktforschung, October 1998: Einweg-und Merhrweg- verpackung von Getränken 1980-1997. many which shows that, if the transport 26 — Source: Appeal News, Issue No 11, Recycling Rate of Steel distance exceeds 1 000 km, the environ- Packaging in Europe.

53. In conclusion, I should like to add that, at all the stages of these proceedings, Denmark has mounted an out-and-out 50. Finally, in case the prohibition on defence of its system of packaging beer importing cans were a measure intended and carbonated soft drinks in reusable to mitigate the greenhouse effect, the deposit and return containers, and that it Commission puts forward an argument has been shown, in my view, that it believes which I think is conclusive. If, as emerges that that system cannot be bettered. No- from the Life Cycle Assessment and is one is unaware that, in Denmark, the confirmed by the Danish Government, the enthusiasm for protecting the environment CO 2 emissions are calculated to be 210 000 is not restricted to the authorities, but tonnes for single-use bottles and 208 000 extends to almost the whole population. tonnes for aluminium cans, the effect of the That fact convinces me that the forecasts former is, overall, equivalent to that of the submitted by the defendant Government in latter, so that they ought to be treated in the proceedings, regarding the huge the same way with regard to environmental negative impact which would be caused protection. However, as we have seen, the by the lifting of the prohibition on market- Danish legislation allows the importation ing in Denmark of beer and carbonated of beer and carbonated drinks in single-use drinks in single-use packaging, are exagger- containers, provided that a deposit and ated, and that, therefore, the consequences collection system is established, whereas would, in actual fact, be made less far- imports in cans are wholly prohibited. reaching and, in any event, controllable.

(2) order the Kingdom of Denmark to pay the costs.

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