C-314/99

NETHERLANDS v COMMISSION

O P I N I O N OF ADVOCATE GENERAL JACOBS delivered on 15 November 2001 1

1. In this case, the Netherlands has brought The relevant legislative provisions an action under Article 230 EC seeking annulment of Point 3 of the Annex to Commission Directive 1999/51 2 ('the con- tested provision') which provides that Aus- tria and Sweden may continue to apply — until 31 December 2002 — restrictions on the use of cadmium going further than 3. Directive 76/769 lays down rules those laid down in Point 24 of Annex I to restricting the marketing and use of certain Council Directive 76/769/EEC of 27 July dangerous substances and preparations. 1976 on the approximation of laws, regu- According to Article 1(1), the Directive lations, and administrative provisions of applies to the substances and preparations the Member States relating to restrictions listed in Annex 1. 4Article 2 provides, as on the marketing and use of certain dan- far as is relevant: gerous substances and preparations. 3

'Member States shall take all necessary measures to ensure that the dangerous substances and preparations listed in the Annex may only be placed on the market or 2. The essential legal issue is whether the used subject to the conditions specified contested provision was adopted on the therein. correct legal basis. In that context the question arises whether the contested provision may be regarded as an amend- ment required to adapt Annex I to Direc- tive 76/769 to technical progress.

...' 1 — Original language: English. 2 — Commission Directive 1999/51/EC of 26 May 1999 adapt- ing to technical progress for the fifth time Annex I to Council Directive 76/769/EEC on the approximation of laws, regulations, and administrative provisions of the 4 — Originally, there was only one annex to Directive 76/769. Member States relating to restrictions on the marketing However, that annex was renamed 'Annex I' after amend- and use of certain dangerous substances and preparations ment by Council Directive 83/478/EEC of 19 September (tin, PCP and cadmium), OJ 1999 L 142, p. 22. 1983 amending for the fifth time Directive 76/769/EEC, 3 — OJ 1976 L 262, p. 201. OJ 1983 L 263, p. 33.

5. The procedure laid down in Article 29 of Directive 67/548 as amended follows the system set out in Council Decision 87/373 of 13 July 1987 laying down the pro- 7. By Directive 91/338, 1 1the Community cedures for the exercise of implementing legislature included the substance cadmium powers conferred on the Commission. 8 In under Directive 76/769, adding a new Point accordance with that Decision, Article 29 24 to Annex I. Point 24 prohibits, with provides that the Commission is assisted by regard to a number of specifically men- a committee composed of representatives of tioned products, the use of cadmium to give the Member States and chaired by a colour to finished products (Section 1); to representative of the Commission. The stabilise finished products manufactured Commission submits to the committee a from polymers or copolymers of vinyl draft of the measures to be taken and chloride (PVC, Section 2); and for surface adopts them if they are in accordance with treatment (plating) of metallic products or the opinion of the committee. If the meas- components (Section 3). For example, ures envisaged are not in accordance with under Point 24, Section 2.1, cadmium the opinion of the committee, or if no may not be used as a stabiliser in office or school supplies manufactured from PVC.

8. Article 2 of Directive 91/338 provides: Act shall, in accordance with that Annex and subject to the conditions set out t h e r e i n , not a p p l y to A u s t r i a . Article 112(1) grants to Sweden, in ident- ical terms, a derogation from the rules contained in Annex XII of the Act. 'Owing to the development of knowledge and techniques in respect of substitutes less dangerous than cadmium and its com- pounds, the Commission shall, in consul- tation with the Member States, reassess the situation for the first time within three years of the date referred to in Article 3(1) and subsequently at regular intervals in 11. Annex VIII of the Act of Accession — accordance with the procedure laid down applicable to Austria — mentions Point in Article 2a of Directive 76/769/EEC.' 2.1 of the Annex to Directive 91/338, concerning the use of cadmium as stabiliser in products manufactured from PVC, which inserted Section 2.1 of Point 24 of Annex I to Directive 76/769.

'The provisions referred to in paragraph 1 Sweden and shall be reviewed in accord- shall be reviewed within that period in ance with the procedures laid down in the accordance with EC procedures. EC Treaty'.

Without prejudice to the outcome of that 16. The fifth recital of the preamble states review, at the end of the transitional period that 'the Council resolution of 25 January referred to in paragraph 1, the EC acquis 1988 [ 15] calls for an overall strategy to will be applicable to the new Member combat environmental pollution by cad- States under the same conditions as in the mium, including measures to restrict the present Member States.' use of cadmium and stimulate development of substitutes; whereas the risks posed by cadmium are being assessed under Council Regulation (EEC) No 793/93 [ 16] and the Commission will review the restrictions on cadmium in [the] light of the results; whereas as an interim measure Sweden 14. On 26 May 1999 the Commission and Austria which apply more far reaching adopted Directive 1999/51 adapting to restrictions may retain these'. technical progress, for the fifth time, Annex I to Directive 76/769. 13 Directive 1999/51 was adopted on the basis of Article 2a of Directive 76/769, 14 in accord- ance with the committee procedure set out in Article 29 of Directive 67/548 as amended. 17. In accordance with those recitals, Point 3 of the Annex to Directive 1999/51 — the provision challenged by the Netherlands in this case — added the following Section to Point 24 of Annex I to Directive 76/769:

15. The first recital of the preamble to Directive 1999/51 recalls that 'within the framework of the Act of Accession ... in particular in Articles 69 ... and 112 respectively, it is foreseen that during a period of four years from 1 January 1995 '4. Austria and Sweden, which already certain provisions of Annex I to Directive apply restrictions to cadmium going further 76/769/EEC do not apply to Austria ... and 15 — OJ 1988 C 30, p. 1. 16 — Council Regulation (EEC) No 793/93 of 23 March 1993 13 — Cited in note 2. on the evaluation and control of the risks of existing 14 — Cited in paragraph 4. substances, OJ 1993 L 84, p. 1

17 — Cited in paragraph 8. 18 — Council Regulation (EEC) No 793/93 of 23 March 1993 on the evaluation and control of the risks of existing substances, OJ 1993 L 84, p. 1. 20. Before examining the claims and argu- 19 — Commission Regulation (EC) No 143/97 of 27 January ments put forward in the present case, it is 1997 concerning the third list of priority substances as foreseen under Council Regulation (EEC) No 793/93, useful to set out briefly the circumstances cited in note 16, OJ 1997 L 25, p. 13.

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23. In 1998 the Commission placed before the Working Group on Limitations on Marketing and Use of Dangerous Sub- stances and Preparations (hereafter 'the 24. The Netherlands has challenged the Working Group') two draft proposals for validity of Point 3 of the Annex to Directive amendment of Point 24 of Annex I to 1999/51 which added Section 4 to Point 24 Directive 76/769. 20 Those draft proposals of Annex I to Directive 76/769. The Com- envisaged, in particular, the adoption of mission contends that the application new restrictions on the use of cadmium as a should be dismissed. The Commission is colorant in certain products such as polya- supported by Sweden. At the hearing, the mide. Considering however that the results Netherlands and the Commission presented of the pending risk assessment were not yet oral argument. sufficiently complete, the Commission did not adopt those draft proposals. It placed instead before the Working Group a third draft proposal. 21 That draft proposal did not envisage any new restrictions on the use of cadmium, but provided in effect for an extension until 31 December 2002 of the derogation granted to Austria and Sweden 25. The Netherlands puts forward four pleas in law. In the application those pleas 20 — Annexed to the application. are presented as follows. First, the Com- 21 — Ibid. mission exceeded its powers by adopting

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that provision on the basis of Article 2a of of cadmium. It therefore goes beyond what Directive 76/769. Second, the contested can be adopted pursuant to a provision — provision is contrary to the substantive such as Article 2a — which delegates to provisions of Directive 76/769, since it the Commission power to lay down rules in implies that Point 24 of Annex I to the cooperation with a committee under the Directive entails an exhaustive harmon- procedure laid down in Article 29 of Direc- isation of the uses to which cadmium may tive 67/548 as amended. The contested be put. Third, it violates the principle of provision should, for those reasons, have legal certainty. Fourth, it fails to fulfil the been adopted by the Community legislature requirements of reasoning, contrary to on the basis of Article 95 EC. Article 253 EC.

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Article 2a must be interpreted in the light 30. Moreover, the Netherlands Govern- of Directive 91/338. It follows from ment maintains that the contested provi- Article 2 22 and the third recital of the sion aims essentially to prevent the practi- preamble to that Directive 23 that amend- cal difficulties which would have arisen in ments to adapt Annex I to technical prog- Austria and Sweden if those countries had ress within the meaning of Article 2a must been forced, following the expiry of the be understood as such amendments as are derogations laid down in Articles 69 and made necessary, in particular, by advances 112 of the Act of Accession, to change their in knowledge and techniques regarding legislation shortly before the introduction substitutes for cadmium. of new Community restrictions on the use of cadmium. In those circumstances, the contested provision must be regarded as an amendment of Annex I to Directive 76/769 anticipating a future adaptation of the Annex to technical progress within the meaning of Article 2a.

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Commission is not precluded from exercis- to that laid down in the transitional ing that power in the absence of final and provisions of the Act of Accession, was complete scientific studies regarding the justified. That regime simply reflects the risk posed by cadmium and the possibility fact that Austria and Sweden are ahead in of replacing it by substitutes. When adopt- the area of protection against the risk to ing the contested provision, the Commis- health posed by cadmium, and that the sion took account of the preliminary results strict rules on the use of cadmium laid of the pending risk evaluation of cadmium, down in the legislation of those States will, which indicated that there was a need for in all likelihood, be adopted at the Com- additional restrictions on its use and that a munity level within the foreseeable legislative proposal to that effect was future. 25 imminent. It cannot therefore be argued that the contested provision was not 'based on advances in knowledge and techniques' and therefore not an adaptation to tech- nical progress within the meaning of Article 2a.

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38. An interpretation of Article 2a taking whereas when damage is detected and in into account its wording and purpose leads particular when cases which have serious in my view, inescapably, to a negative reply consequences for human health are to that question. observed, immediate action is required for the prohibition or limiting of the marketing or use of certain dangerous substances and preparations at Community level'.

39. First, it will be recalled that the text of Article 2a grants the Commission the power to adopt 'amendments required to adapt [Annex I] to technical progress'. To my mind, it is clear that a provision cannot be regarded as an adaptation of Annex I to 41. The third recital states: technical progress unless it effects a sub- stantive change in the rules on the use and marketing of dangerous substances and preparations laid down in Annex I. The contested provision did not however in any way change the substantive rules restricting the use and marketing of cadmium laid down in Sections 1 to 3 of Point 24 of 'Whereas technical progress makes it Annex I. It is difficult, for that reason necessary to adapt the provisions contained alone, to accept the Commission's conten- in the Annex to Directive 76/769/EEC tion that the contested provision falls promptly; ...' within the scope of its competence under Article 2a.

maintain, at the national level, already under Article 2a unless the measures existing restrictions on the marketing and adopted have some basis in science — use of cadmium. It is, also for that reason, either in the field of substitutes or in difficult to accept the Commission's research suggesting that substances covered defence in this case. by Annex I pose new dangers to health or the environment. As the Commission has itself stated in its written pleadings, meas- ures are not and cannot normally be adopted under Article 2a in the absence of complete and final scientific results. It is perhaps possible — and here I again dis- 43. According to the Netherlands Govern- agree with the Netherlands Government — ment the contested provision is, fur- to envisage circumstances in which it thermore, unlawful because it was not would be appropriate for the Commission based on technical progress in the field of to take action in the absence of final cadmium substitutes. scientific results. The essential purpose of Article 2a, which is the protection of the environment and public health against the risks of dangerous substances and prepara- tions, might be jeopardised if the Commis- sion were entirely precluded from taking action, for example, if preliminary scien- 44. In my view, that argument rests on an tific results revealed a close connection unduly restrictive interpretation of between a common form of cancer and the Article 2a. The preamble to Directive use of cadmium in particular products. 89/678 refers to situations where 'damage However, the Commission's power to act is detected' (first recital) and to situations on the basis of preliminary results cannot where there has been 'technical progress' be unlimited. In my view, such action might (third recital). It seems, therefore, that the be justified where the preliminary results in Community legislature intended to confer question reveal that there is a pressing need upon the Commission the power to act on for urgent action at Community level. the basis of Article 2a not only where knowledge in the field of substitutes has progressed to such an extent that new restrictions on the use of dangerous sub- stances appear to be justified, but also where scientific research reveals that sub- stances covered by Annex I pose a greater danger to the environment and public health than previously assumed and that new restrictions are therefore required.

49. That conclusion is in no way affected by the Commission's assertion that it would have disappointed the expectations of Austria and Sweden, and breached the principle of sound administration, had it 47. For those reasons the contested provi- not adopted the contested provision. The sion cannot in my view be regarded as an Community legislature is competent, pur- adaptation of Annex I to technical progress suant to Article 95 EC, to adopt measures within the meaning of Article 2a of Direc- in the field of dangerous substances and tive 76/769. preparations. Measures capable of resolv- ing the problems caused by the expiry of the transitional regime laid down in Articles 69 and 112 of the Act of Accession could, I consider, have been adopted in that way. 48. I am encouraged in that view by the fact that in the third draft proposal for Directive 1999/51 the Commission stated: 29 'It is the view of DG III that ... there is no basis at this time for adapting the cadmium provisions to technical prog- ress. The new draft [proposal for a directive 50. It may be noted in that context that the amending Annex I to Directive 76/769], Community legislature has already therefore, proposes no change other then to adopted, on the basis of Article 95 EC, a prolong the derogations of Sweden and number of other Directives aimed at resolv- ing problems caused by the fact that the review of Community legislation on dan- 26 — Cited in note 19. 27 — See above paragraph 22. gerous substances could not be completed 28 — Ibid. by 31 December 1998, and that the various 29 — See above paragraph 23. derogations granted in the Act of Accession

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56. I would add that such new measures in the same situation. Different treatment should of course apply to all Member of Member States will be lawful only if States without discrimination; thus if for there are valid reasons for the difference. example derogations accorded to certain Thus although the Commission's measure 'new' member States were to be extended, should in my view be annulled on a formal so as to enable them to continue to ground, the outcome may also meet the maintain more restrictive measures, then Netherlands' concerns about the substance in principle the same option should be of the measure. available to other Member States who are

Conclusion

57. In the light of the foregoing observations, I am of the opinion that the Court of Justice should:

(1) declare Point 3 of the Annex to Commission Directive 1999/51/EC of 26 May 1999 adapting to technical progress for the fifth time Annex I to Council Directive 76/769/EEC on the approximation of laws, regulations, and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (tin, PCP and cadmium) void;