C-159/00

SAPOD AUDIC

OPINION OF ADVOCATE GENERAL JACOBS delivered on 17 January 2002 1

1. At issue in the present case are provisions Article 3(2) of Directive 75/442? 3 Does of national law which oblige producers and Article 28 EC preclude such rules? importers of household goods to contribute to the disposal and recovery of packaging waste. Under those provisions, producers and importers must either agree with an approved body to arrange for disposal or themselves arrange for disposal either by 3. Those are, essentially, the issues raised establishing a deposit system or by organis- by the questions referred by the Cour de ing collection points specifically for that Cassation (Court of Cassation, France) in purpose. Producers and importers who the present case. agree with an approved body must, more- over, identify the packaging which is to be disposed of by that body.

The relevant legislative provisions

Community provisions on technical stan- dards and regulations

Member States were to enjoy complete including the requirements applicable freedom in laying down different technical to the product as regards terminology, requirements for goods marketed or used symbols, testing and test methods, within their territories. Essentially, a packaging, marking or labelling ... ; Member State which intends to adopt such provisions must notify them in advance to the Commission and then refrain from enacting them for a specified standstill period, in order to allow the Commission and the other Member States to submit observations concerning possible obstacles to trade at a stage at which they can be taken into account, and to allow the Community legislature, if it thinks fit, to adopt legislation regulating the field in question. The relevant provisions of Direc- tive 83/189 as amended by Directive 88/182, the version which applies in the (5) "technical regulation", technical spec- present case, 4are as follows. ifications, including the relevant administrative provisions, the observ- ance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof, except those laid down by local authorities;

5. Article 1 contains the following defini- tions:

(6) "draft technical regulation", the text of a technical specification including administrative provisions, formulated with the aim of enacting it or of ultimately having it enacted as a tech- '(1) "technical specification", a specifi- nical regulation, the text being at a cation contained in a document which stage o[f] preparation at which sub- lays down the characteristics required stantial amendments can still be made; of a product such as levels of quality, performance, safety or dimensions,

7. Article 10 provides:

'Articles 8 and 9 shall not apply where the Member States fulfil their obligations ... arising out of Community directives and (b) secondly: regulations; the same shall apply in the case of obligations arising out of international agreements which result in the adoption of uniform technical specifications in the Community.' (i) the recovery of waste by means of recycling, re-use or reclamation or any other process with a view to e x t r a c t i n g s e c o n d a r y raw materials,

Community provisions on waste

or

8. Directive 75/442, as amended by Direc- tive 91/156, lays down a number of general 5 — Cited in note 3.

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'Member States shall take the necessary 12. That Decree lays down general rules measures to ensure that any holder of for the system of collection and recovery of waste: household packaging waste in France. Under the Decree, producers 8 and importers of products which are marketed in packaging 9 are required to contribute to the disposal of all of their packaging waste either by agreeing with a body approved by the authorities to carry out their disposal — has it handled by a private or public operations or by recovering the packaging waste collector or by an undertaking themselves. which carries out the operations listed in Annex II A or B, 6 — JORF of 3 April 1992, p. 5003. 7 — JORF of 15 July 1975, p. 7279. 8 — According to Article 2, a 'producer' means anyone who packages products or has products packaged with a view to placing them on the market. 9 — According to Article 2, 'packaging' means any form of container or the like intended to contain a product and to or facilitate its transport or presentation for sale.

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13. For the present case, Articles 4, 5, 6 the contracts must be in accordance with and 10 of the Decree are in particular the standard terms [clauses du cahier des relevant. charges] provided for in Article 6 below'.

16. According to Article 5, 'persons ... who have recourse, for the disposal of their packaging waste, to the services of a[n 18. Article 10 provides that producers may approved] body ... shall enter into a themselves arrange for the elimination of contract [with that body] stipulating in packaging waste. Where they do so, they particular the nature of the identification of must either 'establish a deposit system' 1 1or the packaging, the estimated volume of waste to be taken back each year and the fee payable to the body; on those points, 11 — At the material time, the French text read: 'établir un dispositif de consignation de leurs emballages signalé de manière apparente sur ceux-ci'. The words 'signalé de manière apparente sur ceux-ci' were deleted by Decree No 99-1169 of 21 December 1999. The latter Decree was 10 — Hereafter, the term 'producer' includes any person covered notified in draft under Directive 83/189, sec the notice by this requirement. published in OJ 1997 C .392, p. 2.

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'organise collection points specifically for pursuant to Article 6 of the Decree, to that purpose'. 12 organise the collection and recovery of all types of waste which results from the disposal of packaging of products intended for household use.

19. Pursuant to Article 12, the Decree entered into force on 1 January 1993.

12 — The establishment of a system of collection points is subject to the approval of the competent French auth- orities. 13 — See further below, paragraph 55.

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Eco-Emballages granted to Sapod a non- 27. The lower French courts upheld that exclusive licence to affix to its products a claim, and Sapod appealed to the Cour de logo (the 'Green Dot logo'). The logo Cassation. Before that court it argued that consists of a circle containing two inter- the applicant's claim should be dismissed. locking arrows, rotating in opposite direc- In its view the contract of 19 September tions round a central vertical axis. In return 1993 is unenforceable since, first, Decree for the licence to use that logo, Sapod No 92-377 constitutes a technical regu- agreed to pay a fee. The affixing of the logo lation within the meaning of Directive enabled the packaging covered by the 83/189 which, in the absence of proper contract to be identified, in accordance notification to the Commission, cannot be with Article 4(2) of the Decree, and pro- enforced against private parties and, sec- vided proof to the French authorities that ond, the obligation for producers and Sapod had fulfilled its obligation under importers to participate in the Eco-Embal- Article 4(1) of the Decree to contribute to lages system amounts to a measure with the disposal of packaging waste. equivalent effect to a quantitative restric- tion which, in the absence of an overriding justification, is contrary to Article 28 EC.

25. When the parties concluded the contract, Eco-Emballages was the only 28. Considering that the case before it company which had been approved by the raised issues of Community law, the Colli- French authorities under Article 6 of the de Cassation decided to stay the main Decree to organise the collection and proceedings and refer the following ques- recovery of all types of household packag- tions to this Court: ing waste.

The applicable Community legislation

30. Directive 83/189 was substantially amended by Directive 88/182 of 22 March 1988: Member States were required to take 3. Does Article 30 of the EC Treaty (now the necessary measures to comply with that Article 28 EC), properly construed, Directive not later than 1 January 1989. preclude rules such as those contained Directive 83/189 was further substantially in Decree 92-377 requiring an importer amended by Directive 94/10 of 23 March of products from other Member States 1994. 14 Member States were required to intended for household use to use take the necessary measures to comply with packaging meeting certain technical requirements and to affix to that pack- aging a "logo" proving that he has 14 — Cited in note 4.

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32. By its first question, the Cour de Cassation asks, in substance, whether national rules such as those laid down in the Decree constitute technical regulations within the meaning of Directive 83/189. In order to answer that question, it is — as 31. According to the French Government, the Commission points out — necessary to Directive 94/10 is however indirectly rel- consider, first of all, whether the provisions evant for the present case. It points out that laid down in the Decree may be regarded as that Directive added certain 'other require- technical specifications within the meaning ments' 16 to the definition of technical of Article 1(1) of Directive 83/189. In case regulations laid down in Article 1 of Direc- of an affirmative reply to that question, it tive 83/189, and argues that those require- falls to be considered whether compliance ments therefore fell outside the scope of with those specifications is compulsory de Directive 83/189 prior to amendment. I do jure or de facto within the meaning of not agree. It is clear from the preamble to Article 1(5) of the Directive. Directive 94/10 that the Community legis- lature aimed not only to extend the scope

15 — See to the same effect Case C-33/97 Colim [1999] ECR I-3175, paragraphs 25 and 26 of the judgment; Case C-314/98 Snellers [2000] ECR I-8633, paragraph 33. 33. As is common ground in this case, there 16 — 'Other requirements' was, after amendment by Directive are two provisions of the Decree which 94/10, defined m Article 1(3) as 'a requirement, other than a technical specification, imposed on a product for the must be examined in order to answer the purpose of protecting, in particular, consumers or the environment, and which affects its life cycle after it has been placed on the market, such as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the composition or nature of the 17 — See to that effect Snellers, cited i n note 15, paragraphs 31 product or its marketing'. and 32 of the judgment.

34. It may be recalled that according to Article 1(1) of Directive 83/189, a technical 37. On the basis of that interpretation of specification is 'a specification contained in Article 4(2), the answer to the question a document which lays down the char- whether the Decree lays down technical acteristics required of a product ... includ- specifications might appear to be straight- ing the requirements applicable to the forward. Article 4(2) requires producers to product as regards ... symbols ... packag- affix some form of mark, symbol or label to ing, marking or labelling'. packaging. Article 1(1) of Directive 83/189 refers to requirements applicable to goods both as regards 'symbols', 'packaging', and 'marking or labelling'. Thus, it would — as Sapod stresses — appear to follow directly from the wording of the Directive that Article 4(2) is a technical specification. 35. Article 4(2) of the Decree, read in conjunction with Article 5, provides that producers who choose not to arrange for the disposal of packaging waste themselves must (i) 'identify' the packaging they mar- ket, (ii) enter into a contract with an approved body which will arrange for disposal and recovery of the waste which arises from the packaging and (iii) in that 38. That interpretation is, however, con- contract stipulate the nature of the identi- tested by Eco-Emballages, the French and fication of the packaging to be disposed of Netherlands Governments and the Com- by the approved body. mission.

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41. That view is consistent with the legis- lative history of Directive 83/189 19 and

20 — Case C-317/92 |1994] ECR I-2039. 18 — Sec The New Shorter Oxford I-Mghsh Dictionary. 21 — Case C-443/98 [2000] ECR I-7535. 19 — See the Commission's proposal (OJ 1980 C 25 3, p. 2), the 22 — Case C-145/97 [1998] ECR I-2643. Opinion or the European Parliament (OJ 1981 C 144, p. 1221 and the Opinion of the Economic and Social 23 — Case C-13/96 [1997] ECR I-1753. Committee (OJ 1981 C 159, p. 23). 24 — Case C-33/97 [1999] ECR I-3175.

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language does not in itself constitute a system established by the Decree thus had, technical regulation within the meaning of at the material time, the effect of forcing Directive 83/189. 25 Sapod and other producers to mark their packaging with one specific mark, namely the Green Dot logo.

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Commission) that such a requirement is 47. In that regard, it must be kept in mind capable of hindering intra-Community that the Court held in CIA Security 27 that trade, actually or potentially, since it makes national courts must decline to apply a it more difficult and costly for producers in national technical regulation which has not other Member States to market their prod- been notified in accordance with the Direc- ucts in France. In that context it is, as tive and that, according to the judgment in Sapod points out, immaterial that the Unilever, 28that applies even in civil pro- Decree does not specify exactly what mark ceedings between individuals concerning or symbol must be affixed, since trade may contractual rights and obligations. A find- be restricted independently of what mark ing that a measure of national law, which or symbol the producers and the approved has not been notified under Article 8 of the body agree to use. Directive, constitutes a technical regulation may thus have direct and serious con- sequences for traders throughout the Com- munity. 29 For reasons of legal certainty it is, therefore, important that the definitions laid down in Article 1 of the Directive be interpreted in a way which is predictable to traders and national authorities. That con- sideration calls for an interpretation which does not go beyond, or distort, the ordinary meaning of the wording of Article 1(1).

45. It must therefore be accepted that the purpose of Directive 83/189 would be better achieved if general provisions such as Article 4(2) of the Decree were to be regarded as falling within the scope of the Directive. However, I do not consider that that teleological argument justifies the con- clusion Sapod seeks to draw from it.

50. Third, the Directive envisages that the Member States are to notify the Commis- sion of technical regulations before they are finally adopted by the national authorities. I cannot see how a Member States could comply with that requirement if the Direc- tive covered rules, such as Article 4(2) of 49. Second, Directive 83/189 draws a dis- the Decree, which do not in themselves lay tinction between, on the one hand, tech- down technical specifications, but which nical regulations issued by public auth- might as a result of subsequent actions by orities and, on the other hand, technical private companies effectively compel standards approved by recognised stan- traders to comply with certain specific dardising bodies, and it applies different requirements. notification and stand-still requirements to those regulations and standards. The Direc- tive does not refer to the actions of private companies, such as Eco-Emballages, or lay down requirements to be met where such companies take action which is analogous in effect to the imposition of technical standards. Thus it appears from the struc- 51. I conclude, for those reasons, that a ture of the Directive that the Community provision which obliges producers to legislature considered that the actions of 'identify' packaging, and leaves it to be private companies are — in so far as they decided in contractual arrangements affect intra-Community trade — to be between private companies how that obli- controlled under the Community compe- gation is to be carried out, cannot be tition rules, 30 not via the system of notifi- regarded as a technical specification within cation laid down in the Directive. Those the meaning of Article 1(1) of Directive rules are prima facie applicable where — 83/189. as a result of contractual arrangements or

55. Within that system, the collection and sorting of household waste is carried out by local authorities or their sub-contractors. Once sorted, waste materials are passed on Is Article 6(4) of the Decree to be regarded to private undertakings for recovery. Eco- as a technical specification within the Emballages enters into contracts with both meaning of Article 1(1) of Directive the authorities and the private (recovery) 83/189? undertakings. Under contracts with the local authorities, Eco-Emballages offers a guarantee that household packaging waste collected and sorted by them will be taken back from them for recovery. Under contracts with Eco-Emballages, the recovery undertakings guarantee that they 53. Article 6(4) of the Decree, it will be will take back and recover waste collected recalled, provides that a body desiring to by the local authorities. However, those arrange for waste disposal in France must guarantees apply only in so far as the waste apply for approval from the competent passed on by the local authorities for authorities and include with the application recovery meets certain technical criteria a set of standard terms (cahier des charges) (prescriptions techniques minimales) set indicating, for each type of material, where out in the contracts. the approved body makes agreements with manufacturers of packaging or packaging materials, the technical criteria which the used packaging is to meet.

56. In the light of those explanations, it appears that the purpose of Article 6(4) of the Decree is to subject the technical 54. The observations submitted in the criteria (prescriptions techniques mini- present case have to a considerable extent males) — which are to be included in been devoted to explaining the meaning contracts between an approved body, the and effect of that provision. It emerges local authorities and the recovery under- from those observations, and the replies of takings — to a requirement of approval by the French Government and Eco-Embal- the competent French authorities. lages to a written question asked by the Article 6(4) is thus, as the French Govern- Court, that it must be understood in the ment and Eco-Emballages stress, a provi-

60. By its second question, the Cour de 58. It follows, in my view, that Article 6(4) Cassation asks essentially whether the falls outside the scope of Directive 83/189. French Government was required to notify As is clear from the preamble and the the provisions of the Decree to the Com- definitions in Article 1(1) and 1(5), the mission under Article 8 of Directive 83/189 Directive applies to national provisions and/or Article 3(2) of Directive 75/442. In which lay down technical specifications case of an affirmative reply to that ques- for 'products'. According to Article 1(7) tion, the Cour de Cassation desires to know 'product' is to be understood as 'any whether an individual may rely on the industrially manufactured product and failure to notify in order to have the any agricultural product'. It seems clear provisions of the Decree declared unen- that household packaging waste falls out- forceable in proceedings before national side that definition. courts.

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Notification under Directive 83/189 Notification under Directive 75/442

62. In the light of that conclusion, it is not necessary to consider what would have been the consequences, in the context of 64. The Decree lays down general rules for national legal proceedings, of a failure to the system of collection and recovery of comply with the duty of notification under household packaging waste in France, Article 8 of the Directive. It may, however, including provisions which oblige pro- be noted that the present case illustrates the ducers to contribute to waste disposal by difficulties which may arise as a result of contracting with an approved body or the Court's ruling in Unilever. n It appears arranging for waste disposal themselves. from documents in the file that a ruling in In the preamble, the Decree explicitly refers the present case to the effect that the French to Directive 75/442 as amended by Direc- State violated its obligations under the tive 91/156. Directive might affect the validity and enforceability in national courts of several thousand contracts which have been con- cluded, in reliance upon the rules laid down in the Decree, between Eco-Emballages and producers of household goods since the Decree entered into force nearly 10 years ago. 65. It is thus clear that the French State was under an obligation to inform the Com- mission under Article 3(2) of Directive 32 — Cited in note 21. 75/442 of its intention to adopt the Decree.

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67. In Enichem Base 33 the Court held that 'neither the wording nor the purpose of [Article 3(2) of Directive 75/442] provides any support for the view that failure by the Member States to observe their obligation to give prior notice in itself renders unlaw- ful the rules thus adopted' and that Article 3(2) 'concerns relations between the Member States and the Commission and does not give rise to any right for individuals which might be infringed by a Member State's breach of its obligation to inform the Commission in advance of draft 69. Directive 75/442 has since then been rules'. amended by Directive 9 1 / 1 5 6 . 35 Article 3(2) now provides that the Com- mission must 'inform the other Member States and the committee referred to in Article 18' of measures notified to it. However, that change does not affect the conclusion reached in Enichem Base. The 68. I agree with Eco-Emballages and the fact remains that Directive 75/442 as Commission that the Court should confirm amended does not provide for suspension that ruling. It is, as I pointed out in my of the introduction of national measures,

33 — Case 380/87 [1989] ECR 2491, paragraphs 22 and 23 of 34 — At paragraph 14. the judgment. 35 — Cited in note 3.

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subject their entry into force to agreement France and the treatment of packaging or lack of objection on the part of the waste in that State. There is moreover no Commission, or lay down a detailed pro- suggestion — in the order for reference or cedure aimed at enabling the Commission in the explanations given at the hearing — and other Member States to make com- that the products and packaging marketed ments on notified drafts. 36 by Sapod are imported, wholly or in part, from other Member States.

70. By its third question, the Cour de Cassation asks, in substance, whether Article 28 EC precludes national rules such as those laid down in the Decree. That 72. I argued in my Opinion in Pistre 37 that question must be understood as seeking to the Court should decline to rule on the ascertain whether Article 28 EC precludes application of Article 28 EC to imports national rules under which producers and when it is clear from the facts of the case importers must either arrange themselves before it that the situation in the main for disposal of packaging waste or agree proceedings is wholly confined to the with an approved body to arrange for national territory.38 I continue to believe disposal and identify the packaging which that the concerns which I there expressed is to be disposed of by that body. are valid where the national measure in issue is applicable without distinction to domestic and imported products and where the case before the national court concerns not imported but domestic products. As regards such a measure, Article 28 EC has effects only in so far as it applies to 71. It may be noted, first of all, that the facts at issue in the main proceedings appear to be confined to a single Member 37 — Joined Cases C-321/94, C-322/94, C-323/94 and C-324/94 [1997] ECR I-2343, at paragraphs 33 to 41 of the State. Those proceedings arise out of a Opinion. contractual dispute between two French 38 — Those arguments were endorsed by Advocate General Saggio in Case C-448/98 Gtttmont, judgment of 5 De- companies concerning the identification of cember 2000, at paragraph 8 of his Opinion. See also the packaging of household goods marketed in Opinion of Advocate General Cosnias in Case C-63/94 Belgapom [19951 ECR I-2467 at paragraph 13; P. Oliver, Some further reflections on the scope of Articles 28 to 30 (ex 30 to 36) EC', Common Market Law Review 1999, 783, at p. 787; and the Opinion of Advocate General 36 — See also, with regard to the notification requirement laid Geelhoed m Joined Cases C-515/99 and C-527/99 to down m Article 7(3) of Directive 75/442, Case C-209/98 C-540/99 Reisch and Others and C-519/99 to C-524/99 Sydhavnens Sten & Crus [2000| ECR I-3743, paragraphs and C-526/99 Lassacher and Others, delivered on 20 No- 96 to 102 of the judgment. vember 2001, at paragraphs 75 to 101.

75. I am encouraged in that view by the Court's ruling in Guimont. 42 In that case, the Court was asked whether national rules reserving the designation 'Emmenthal' for cheese which meets certain requirements constitutes a measure with equivalent effect within the meaning of Article 28 EC. That 74. That view is consistent with the Court's question was raised in the context of case-law. It is true that the Court has held criminal proceedings against a French that it is normally for the national courts, national for selling, contrary to the require- within the system established by ments laid down in those rules, French Article 234 EC, to determine the relevance produced Emmenthal on the French mar- of the questions which they refer to the ket. The German, Netherlands and Aus- Court, 40 and that the Court has occa- trian Governments and the Commission sionally been willing to answer questions argued, by reference to Pistre, 43 that the relating to Article 28 EC although the facts Court should reply to the question referred. giving rise to the main proceedings were In response to that argument, the Court

39 — See, in particular, Joined Cases 314/81 to 316/81 and 41 — See, in particular, Pistre, cited in note 37, Case C-67/97 83/82 Waterkeyn [1982] ECR 4337; Case 355/85 Comet Bluhme [1998] I-8033 with the explanations given by [1986] ECR 3231; Case 98/86 Mathot [1987] ECR 809, Advocate General Fennelly at paragraph 22 of his paragraphs 3 and 7 to 9 of the judgment. Opinion; Case C-379/98 PreussenElektm [2001] ECR I-2099. 40 —See, for example, Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, paragraphs 33 to 35 of the 42 — Case C-448/98, cited in note 38, paragraphs 18 to 22 of judgment; Case C-281/98 Angonese [2000] ECR I-4139, the judgment. paragraphs 18 and 19. 43 — Cited in note 37.

held that 'the Pistre judgment concerned a 77. I consider, moreover, that the present situation where the national rule in ques- case presents particular difficulties which tion was not applicable without distinction militate against answering the Article 28 but created direct discrimination'. That question. The Court has been given very statement suggests that the Court will little information — and heard almost no answer questions about the application of argument at the hearing — on the effects Article 28 EC to imports in cases which are on imports of the Decree, the justification confined to a single Member State less for the Decree and the proportionality of readily where the measures at issue are that justification. More specifically, the file applicable without distinction than where contains no information about the French they discriminate against imported legislation on waste management, the deve- goods. 44 lopments leading to the adoption of the Decree, the level of financial contribution producers are required to make under agreements with approved bodies such as Eco-Emballages or the extent to which the obligation to contribute financially to waste disposal and recovery duplicates requirements under French tax law. More- over, while it appears from the observa- tions of Eco-Emballages and the German Government that a number of Member States have adopted provisions which 76. It may be added that in Guimont the require producers to affix the Green Dot Court chose to reply to the Article 28 logo on to the packaging in which they question, although the national measures market their products, the observations do at issue applied without distinction to not cast light on the extent to which such domestic and imported goods, considering national rules might in practice reduce the that 'a reply might be useful to [the adverse effects on trade caused by the national court] if its national law were to provisions of the Decree. require, in proceedings such as those in this case, that a national producer must be allowed to enjoy the same rights as those which a producer of another Member State would derive from Community law in the same situation'. 45 By contrast, it has not been suggested that the interpretation of Article 28 EC as regards imports might be relevant — by way of a domestic principle of equal treatment — for the resolution of the contractual dispute between Sapod and Eco-Emballages which is at issue in the present case. 78. In the absence of relevant information 44 — See however Case 298/87 Smanor [1988] ECU 4489. and arguments it is, in my view, impossible 45 — The defendant had contended that trench case-law to express a view on the compatibility with prohibits reverse discrimination against domestic traders in criminal proceedings, and that Article 28 EC was Article 28 of the provisions laid down in therefore relevant for the resolution of his case. the Decree.

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