C-30/01

COMMISSION v UNITED KINGDOM

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 16 January 2003 1

Table of contents

I — Introduction I - 9484 II — Legislative framework I - 9485 A — General Community provisions I - 9485 (a) Free movement of goods and the internal market I - 9485 (b) The territorial scope of the Treaty I - 9487 B — The provisions of secondary legislation concerning the customs union I - 9487 C — Provisions concerning Gibraltar I - 9489 (a) Introduction I - 9489 (b) The 1972 Act of Accession I - 9489 (c) Common commercial policy measures applicable to Gibraltar I- 9491 D — The Directives at issue I - 9492 III — Facts and procedure I-9492 IV — Arguments of the parties and assessment I - 9493 A — Introduction I - 9493 B — The terms of the question I - 9494 C — Arguments of the parties I - 9495 D — Assessment I - 9498 (a) The regime for trade in goods between Gibraltar and the rest of the Community I - 9499 (b)The applicability to Gibraltar of the directives on the internal market . . . I- 9502 (c) The applicability of the directives which also pursue other aims I - 9506 (d) Concluding considerations I - 9508 V — Costs I-9509 VI — Conclusion I-9509

1 — Original language: Italian.

I - 9483

I — Introduction approximation of the laws of the Member States relating to the determination of the noise emission of construction plant and equipment ('Directive 79/113'), 5 and sub- sequent amendments, Council Directive 84/533/EEC of 17 September 1984 on the approximation of the laws of the Member States relating to the permissible sound 1. In these proceedings the Commission of power level of compressors ('Directive the European Communities claims that the 84/533'), 6 and subsequent amendments, United Kingdom has not implemented a C o u n c i l D i r e c t i v e 8 4 / 5 3 4 / E E C of series of directives adopted on the basis of 17 September 1984 on the approximation Articles 94 and 95 EC. of the laws of the Member States relating to the permissible sound power level of tower cranes ('Directive 8 4 / 5 3 4 ' ) , 7 and sub- sequent amendments, Council Directive 84/535/EEC of 17 September 1984 on the approximation of the laws of the Member States relating to the permissible sound power level of welding generators ('Direc- tive 84/535'), 8 and subsequent amend- 2. In particular, it is alleged that the United ments, Council Directive 84/53 6/EEC of Kingdom has not adopted, in respect of 17 September 1984 on the approximation that territory, the laws, regulations or administrative provisions necessary to of the laws of the Member States relating to comply with Council Directive 67/548/EEC the permissible sound power level of power of 27 June 1967 on the approximation of generators ('Directive 84/536'), 9 Council laws, regulations and administrative provi- Directive 84/537/EEC of 17 September sions relating to the classification, packag- 1984 on the approximation of the laws of ing and labelling of dangerous substances the Member States relating to the permis- ('Directive 6 7 / 5 4 8 ' ) , 2 as subsequently sible sound power level of powered hand- amended several times, Council Directive held concrete-breakers and picks ('Direc- 87/18/EEC of 18 December 1986 on the tive 84/537'), 1 0 and subsequent amend- harmonisation of laws, regulations and ments, Council Directive 84/538/EEC of administrative provisions relating to the 17 September 1984 on the approximation application of the principles of good lab- of the laws of the Member States relating to oratory practice and the verification of the permissible sound power level of lawn- their applications for tests on chemical mowers ('Directive 84/538'), 1 1 and sub- substances ('Directive 8 7 / 1 8 ' ) , 3 Council sequent amendments, Council Directive Directive 93/12/EEC of 23 March 1993 86/594/EEC of 1 December 1986 on air- relating to the sulphur content of certain b o r n e n o i s e e m i t t e d by h o u s e h o l d liquid fuels ('Directive 93/12'), 4 and sub- sequent amendments, Council Directive 79/113/EEC of 19 December 1978 on the 5 — OJ 1979 L 33, p. 15. 6 — OJ 1984 L 300, p. 123. 7 — Ibid., p. 130. 8 — Ibid., p. 142. 2 — OJ, English Special Edition, Series I, 1967 p. 234. 9 — Ibid., p. 149. 3 — OJ 1987 L 15, p. 29. 10 — Ibid., p. 156. 4 — OJ 1993 L 74, p. 81. 11—Ibid., p. 171.

'Article 23 3. Pursuant to Article 3 EC, the activities of the Community are to include, as we know,

12 — O J 1986 I. 344, p. 24. 13 — OJ 1986 L 384, p. 1. 14 — O J 1994 I. 365, p. 10. 1. The Community shall be based upon a 15 — OJ 1997 L 169, p. 72. customs union which shall cover all trade

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OPINION OF MR TIZZANO — CASE C-30/01

in goods and which shall involve the Chapter 2 of Title I (Articles 28 to 31), also prohibition between Member States of referred to in Article 23(2), then deals with customs duties on imports and exports the prohibition of quantitative restrictions and of all charges having equivalent effect, between Member States. and the adoption of a common customs tariff in their relations with third countries.

7. Finally, Articles 94 and 95 EC are of relevance in this connection; they provide as follows: 2. The provisions of Article 25 and of Chapter 2 of this Title shall apply to products originating in Member States and to products coming from third coun- tries which are in free circulation in 'Article 94 Member States.

'Customs rules shall consist of this Code and the provisions adopted at Community level or nationally to implement them. The Code shall apply, without prejudice to special rules laid down in other fields

(b) The territorial scope of the Treaty — to trade between the Community and third countries, 8. Article 299 EC defines the territorial scope of the EC Treaty, and, so far as relevant here, provides in paragraph 4:

— to goods covered by the Treaty estab- lishing the European Coal and Steel Community, the Treaty establishing 'The provisions of this Treaty shall apply to the European Economic Community the European territories for whose external or the Treaty establishing the European relations a Member State is responsible.' Atomic Energy Community.'

10. Article 3 of the Code defines the B — The provisions of secondary legis- lation concerning the customs union 'customs territory of the Community' con- firming what had been laid down by earlier Community acts, and, in particular, by Regulation (EEC) No 1496/68 of the Council of 27 September 1968 on the 9. Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Com- munity Customs Code ('the Community 16 — OJ 1992 L 302, p. 1.

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OPINION OF MR TIZZANO — CASE C-30/01

17 — OJ 1968 L 238, p. 1, a regulation subsequently repealed by Council Regulation (EEC) No 2151/84 of 23 July 1984 on the customs territory of the Community, OJ 1984 L 197, Tor the purposes of this Code, the follow- p. 1, repealed in turn by Council Regulation No 2913/92, cited above, which established a Community Customs ing definitions shall apply: Code. See also below, point 18. 18 — For example, apart from Gibraltar, the Italian and German territories which form part of Swiss customs territory. 19 — In particular, the territory of the Principality of Monaco, which is part of French customs territory and, previously, the territory of the Republic of San Marino, in that it was part of Italian customs territory until the entry into force, on 1 December 1992, of the Interim Agreement on trade and customs union between the European Economic Community and the Republic of San Marino of 27 November 1992, OJ 1992 L 359, p. 14.

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COMMISSION v UNITED KINGDOM

(7) "Community goods" means goods: It shall entail application of commercial policy measures, completion of the other formalities laid down in respect of the importation of goods and the charging of any duties legally due.' •— wholly obtained or produced in the customs territory of the Commu- nity under the conditions referred to in Article 23 and not incor- porating goods imported from countries or territories not forming part of the customs territory of the Community, C — Provisions concerning Gibraltar

'Acts of the institutions of the Community relating to the products in Annex II to the EEC Treaty 21 and the products subject, on importation into the Community, to spe- 19. Also of interest for present purposes is cific rules as a result of the implementation the fact that the 1972 Act of Accession of the common agricultural policy, as well removed the reference to the United King- as the acts on the harmonisation of legis- dom and its dependent territories, including lation of Member States concerning turn- Gibraltar, from the list of territories over taxes, shall not apply to Gibraltar belonging to third countries subject to the unless the Council, acting unanimously on rules on liberalisation of imports of goods a proposal from the Commission, provides laid down by Regulation (EEC) No 1025/70 otherwise.' of the Council of 25 May 1970 establishing common rules for imports from third coun- tries ('Regulation No 1025/70'). 22 To that end, Annex I to the 1972 Act of Accession provided for the amendment of the list contained in Annex II to that regulation. 17. In its turn, Article 29 of the Act of Accession provides:

20. As regards that amendment to Regu- lation No 1025/70, Annex II to the 1972 'The Acts listed in Annex I to this Act shall Act of Accession provides: be adapted as specified in that Annex.'

18. It is of particular interest for present 'The problem created by the deletion of the purposes that the first section of the list in reference to Gibraltar in Annex II is to be

20 —OJ 1972 L 73, p. 1. 22 — OJ 1970 L 124, p. 6, a regulation subsequenrly repealed by Regulation (EEC) No 1439/74 of the Council of 4 June 21 — Namely, agricultural products. 1974 on common rules for imports, OJ 1974 L 159, p. 1.

21. Simply in order to understand better Gibraltar's position in the scheme of the Treaty it is appropriate also to examine — quantitative restrictions for the prod- here the rules on trade in goods with third ucts listed in Annex I and maintained countries, which, before the root and in the Member States indicated oppo- branch liberalisation resulting from the site these products in that Annex.' entry into force for the Community of the WTO agreements, were laid down by Council Regulation (EEC) No 288/82 of 5 February 1982 on common rules for imports ('Regulation No 288/82'). 23 24. Annex I to that regulation, then listed a series of quantitative restrictions, relating to certain products described there, which individual Member States were authorised to retain in force as against all third countries, or as against one or more such countries. That Annex thereby made provi- 22. Under its Article 1(1), Regulation sion, in particular, for France and Italy to No 288/82 applies 'to imports of products maintain in force quantitative restrictions covered by the Treaty originating in third in respect of products from the territory of countries'. Gibraltar.

23 — OJ 1994 L 35, p. 1, a regulation subsequently repealed by Council Regulation (EC) No 518/94 of 7 March 1994 on common rules for imports and repealing Regulation (EEC) No 288/82, OJ 1994 L 67, p. 77, in turn repealed by Council Regulation (EC) No 3285/94 of 22 December 25. Again, in order to shed light on 1994 on the common rules for imports and repealing Regulation (EC) No 518/94, OJ 1994 L 349, p. 53. Gibraltar's position vis-à-vis the common

24 — OJ 2001 L 346, p. 1. 25 — Some of the directives are in fact secondary directives, 29. As it was not satisfied with the answers adopted by the Commission in execution of an executive given, the Commission brought this action, power conferred on them by a principal directive, based, in turn on Article 94 EC or Article 95 EC. by application lodged on 25 January 2 0 0 1 .

I - 9492

COMMISSION v UNITED KINGDOM

30. By order of 22 June 2001 the Court question, as we shall see, is open to granted the Kingdom of Spain leave to controversy) goods from Gibraltar should intervene in these proceedings in support of be deemed to come from third countries. the forms of order sought by the Commis- Finally, the legislation on harmonisation of sion, pursuant to Article 93(1) of the Rules VAT does not apply to Gibraltar. of Procedure.

33. Otherwise, the Treaty is, as a matter of IV — Arguments of the parties and assess- principle, applicable to Gibraltar, pursuant ment to Article 299(4) EC; in particular the general principles of the Community legal order (beginning with the prohibition on discrimination on the ground of national- ity), and free movement of persons, services and capital and the other Community policies listed in Article 3 EC are fully A — Introduction applicable.

31. As is clear from the above description of the relevant rules, Gibraltar is subject to a special regime. It is not part of the Community customs territory and is there- 34. For a long time this regime does not fore excluded from all the Community appear to have given rise to particular customs rules and that is also true, as the problems, not even after the accession of provisions set out above show, of agricul- Spain to the Community. The ancient tural products, given that acts of secondary dispute with the United Kingdom flared legislation concerning such products do not up only in some sectors; 26 however, at least apply to Gibraltar. as far as is known, no specific difficulties have arisen in connection with the imple- mentation of the Treaty and secondary

legislation to Gibraltar over many years. must be addressed in all its aspects. In The Commission itself appears to have paid particular, it seems to me that, above all, scant attention to the question, so much so the following problems must be resolved in that even in 1996, when asked to explain to turn. the European Parliament the state of implementation of Community directives in Gibraltar, it stated that it was not in a position to give an immediate reply. 27 In order to be in a position to do so, it spent several months and concerned itself essen- tially with the directives on freedom to provide services, freedom of establishment 36. First of all, it must be established and free movement of capital. 28 However, whether the exclusion of Gibraltar from the issue of the applicability of the direc- the Community customs territory also tives based on Articles 94 and 95 EC to entails its exclusion from the scope of the Gibraltar was not raised with any particu- Treaty provisions which are intended to lar urgency on that occasion. 29 guarantee free movement of goods.

I - 9494

COMMISSION v UNITED KINGDOM

C — Arguments of the parties mental freedoms must be interpreted strictly.30

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OPINION OF MR TIZZANO — CASE C-30/01

32 — OJ 1985 L 302, p. 27 ('the 1985 Act of Accession'). 31 — See in particular Case 37/83 Rewe [1984] ECR 1229 and 33 — OJ 1985 L 302, p. 400 ('Protocol No 2 concerning the Case C-41/93 France v Commission [1994] ECR I-1829. Canaries, Ceuta and Melilla').

I - 9496

COMMISSION v UNITED KINGDOM

I - 9497

OPINION OF MR TIZZANO — CASE C-30/01

51. As regards, in particular, the powers Gibraltar, since they pursue environmental provided for by Articles 94 and 95 EC, the objectives in addition to internal market United Kingdom points out that they are objectives. In that connection, it points out aimed at the removal of obstacles, within that the case-law of the Court has made the Community, to the movement of goods, clear, on the one hand, that internal market services, persons and capital. It follows that objectives are a necessary and sufficient measures based on those rules and intended condition for the valid adoption of har- to eliminate obstacles to the movement of monising legislation on the basis of goods can be applicable only to those parts Article 95 EC and, on the other hand, that of the Community territory within which such objectives must be considered to the Treaty has provided that goods are to prevail even where the directive pursues, circulate freely. That, as we have seen, is in addition to such objectives, goals relat- not the case for Gibraltar, and there is thus ing to the protection of health or of the no justification for the application of such environment. 34 So, a harmonisation meas- measures to trade between Gibraltar and ure based on Article 95 EC which concerns the rest of the Community. free movement of goods can never be applicable to Gibraltar, even where it pursues ancillary objectives of environ- mental protection.

56. Against that background, and turning now to the substance of the question, 1 would first point out that, under the Treaty, the prohibition on customs duties and equivalent charges, and quantitative restrictions and equivalent measures, applies to products from Member States and to those from third countries released for free circulation in the Member States. Thus, in order to establish whether trade (a) The regime for trade in goods between Gibraltar and the rest of the Community 35 — Sec the answer by Mr De Clercq to Written Questions Nos 1823/84, 1824/84 and 1825/84, in OJ 1985 C 341, p. 1. On that occasion, in answer to a question whether, inter alia, 'as a result of Spain's proposed entry to the

55. In this connection, I would observe first going on to state that 'the arrangements which Gibraltar of all that there does not appear to be any will apply to imports of goods from Spain and other Member States form part of its own commercial policy. . . genuine dispute between the applicant and The Commission would also point out that, apart from the derogations resulting from the 1972 Act of Accession, the the defendant government. The argument provisions of the EEC Treaty and the related secondary of the United Kingdom that the Commu- legislation apply to Gibraltar, pursuant to Article 227(4) of the EEC Treaty. These provisions, concerning inter alia nity rules on free movement of goods do freedom to provide services and the right of establishment, will therefore apply to the enlarged Community from not apply to Gibraltar has never really been accession'. Subsequently, in 1989, the answer given by Mr challenged by the Commission. On the Bangemann on behalf of the Commission to a question on 'Harassment at the border between Gibraltar anil Spain' contrary, it in fact argued along the same (OJ 1989 C 262, p. 10), confirmed that position, stating that 'Gibraltar is part of the territory covered by the lines in its answer to questions by Parlia- Treaties establishing the Community but not part of its ment, explaining that Gibraltar operates customs territory. The rules of the Treaty concerning the free movement of goods do not therefore apply to trade independently its own commercial policy in between Gibraltar and Spam, while goods coming from that territory are subject to the common system governing relations with the rest of the Community, imports into the Community. The facilities provided by the and is treated as a third country for the Community rules with regard to ultra-Community trade in goods therefore do not apply to cross-frontier traffic purposes of measures under the common between Gibraltar and Spain' (emphasis added).

59. Then, as regards the question whether goods from Gibraltar can be considered to originate in a Member State within the meaning of Article 23(2) EC, it is clear to me that the answer must be in the negative, 57. To begin with the last point, I would given that only goods produced in the point out that, under Article 24 EC, customs territory of a Member State, and products coming from a third country are thus in the customs territory of the Com- considered to be in free circulation in a munity, can ' o r i g i n a t e 'in a Member State. Member State if, in that State, the import formalities have been complied with, com- mercial policy measures applied and any customs duties legally due charged (see Article 79 of the Community Customs Code) bearing in mind that such duties are laid down by the common customs tariff (Article 23(1) EC; Article 20(1) of the Community Customs Code). 60. Indeed, as I pointed out above (see point 10), that territory comprises, as is entirely consistent with the objective of Article 23 EC, the customs territory of the individual Member States, although it may be different from the scope of their terri- torial sovereignty (Article 3 of the Com- munity Customs Code). Further, pursuant to Article 4 of that Code, '"Community 58. So, it is not disputed that, as Gibraltar goods" means goods wholly obtained or is outside the Community customs terri- produced in the customs territory of the tory, goods which enter it from a third Community'' and goods 'imported from country are not subject to the duty fixed by countries or territories not forming part of the common customs tariff but to that the customs territory of the Community which the local authorities may have set which have been released for free circu- i n d e p e n d e n t l y . M o r e o v e r , because of lation''. 36 Gibraltar's exclusion from the customs union, goods entering it are not subject to any of the measures under the common 36 — Emphasis added.

61. If that is the case, goods originating in 63. I must concur, moreover, with the Gibraltar obviously cannot therefore be defendant government when it points out considered 'Community goods', insofar as that the subjection of goods from Gibraltar they are not produced in the customs to the rules applicable to trade in goods territory of the Community; they could with third countries is obviously the prem- possibly become such after being released iss on which the provisions of the 1972 Act for free circulation in Community territory. of Accession relating to the British colony are based. In particular, it must be borne in mind that, having formally removed the United Kingdom and its dependent terri- tories, including Gibraltar, from the list of t h i r d c o u n t r i e s w h o s e p r o d u c t s are admitted into the Community under the rules on the liberalisation of imports laid down by Regulation No 1025/70 (Annex I, Section 1, point 4, of the Act of Accession: sec above, point 19), Annex II of that Act expressly provides that goods from Gibral- tar must none the less benefit, on import- ation into the Community customs terri- tory, from liberalisation rules similar to those covering goods from the third coun- tries to which that regulation applies (sec 62. For the rest, the fact that Gibraltar above, point 20). Now, it seems to me that, must be considered as a third country for as the United Kingdom has pointed out, the purposes of the Community provisions such a caveat would not be necessary at all on movement of goods is confirmed by the if goods from Gibraltar were considered to provisions specifically laid down by the be Community goods and the Community common commercial policy. In fact, on the rules on free movement thus applied to one hand, before the Marrakesh Agree- them. ments revitalised globally the prohibition on quantitative restrictions and required the amendment of the relevant provisions of the Community commercial policy, the common rules for imports laid down by Regulation No 288/82 expressly contem- plated the possibility of subjecting products from the territory of Gibraltar to quanti- tative restrictions on entry into Community 64. Nor do the objections raised by the customs territory (Article 1(2) and Annex I: Spanish Government to such a conclusion see above, points 23 and 24). On the other seem to me to be persuasive, based as they hand, Gibraltar is included in the gener- are on an alleged analogy between the rules alised tariff preferences scheme set up by applicable to the British colony and those Regulation No 2501/2001, and goods from laid down for the Spanish territories, Ceuta the colony are thus considered to be goods and Melilla. It is true that the two Spanish from a third country and allowed into the cities arc excluded from the Community Community under the preferential tariff customs territory, while goods originating conditions laid down by that regulation there none the less have access to the rest of (Article 2 and Annex I). the Community without being subject to

37 — In the terms of which, ' 1 . Products originating in the Canary Islands or in Ceuta and Melilla and products coming from third countries imported into the Canary Islands or into Ceuta and Melilla under the arrangements which are applicable there to them shall not be deemed, when releasee! for free circulation in the customs territory of the Community, to be goods fulfilling the conditions of Articles 9 and 10 of the EEC Treaty, nor goods in free circulation under the ECSC Treaty. 2. The customs territory of the Community shall not include the Canary Islands and Ceuta and Melilla. 3. Except where otherwise provided for in this Protocol, the acts of the institutions of the Community regarding customs legislation for foreign trade shall apply under the same conditions to trade between the customs territory of the Community, on the one hand, and the Canary Islands and Ceuta and Melilla, on the other. (b) The applicability to Gibraltar of the 4. Except where otherwise provided for in this Protocol, directives on the internal market the acts of the institutions or the Community regarding the common commercial policy, be they autonomous or enacted by agreement, directly linked to the import or export of goods, shall not be applicable to the Canary Islands or to Ceuta and Melilla. 5. Except where otherwise provided for in the Act of Accession, including this Protocol, the Community shall apply in its trade with the Canary Islands and with Ceuta and Melilla, for products falling within Annex II to the EEC Treaty, the general arrangements which it applies in its foreign trade.' 38 — 'Subject to Articles 3 and 4 of this Protocol, products originating in the Canary Islands and in Ceuta and Melilla, shall, when released for free circulation in the customs territory of the Community, qualify for exemption from 66. As I have already indicated, however, customs duties under the conditions defined in paragraphs the real crux of the dispute between the 2 and 3.' Commission and the United Kingdom con- 39 — ' 1 . On import into the Canary Islands or into Ceuta and Melilla, products originating in the customs territory of the cerns the measures adopted pursuant to Community shall qualify for exemption from the customs duties and charges having equivalent effect under the Articles 94 and 95 EC and their applica- conditions defined in paragraphs 2 and 3.' bility to Gibraltar. I - 9502

69. That objection is obviously rooted in the idea that it is not the sole function of harmonisation measures relating, from time to time, to goods, persons, services 72. Without wishing to dwell on this point, or capital to promote one or the other of I would merely observe that the lie is given those freedoms, but they have to be to that objection by the texts on precisely assessed overall, in the sense that they are the points at issue in this case. While it is part of a single complex plan relating to the true that an internal market encompassing completion and the operation of the single all four of the above freedoms of movement market. Consequently we should speak not is the objective pursued by the Community so much of harmonisation measures in general terms, it is not necessarily true intended individually to eliminate obstacles that it is pursued for the whole Commu- to free movement of goods, persons, ser- nity. There are in fact territories of the vices or capital, but of measures intended, Community which arc expressly excluded each and every one, to achieve that single from one freedom or the other, without the objective. applicability of the others being in any way

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OPINION OF M R T I Z Z A N O — CASE C-30/01

74. If that is so, it follows necessarily that the directives pursuant to Articles 94 and 95 EC intended to harmonise national provisions on free movement of goods, which therefore seek chiefly to achieve that 73. Thus, it does not strike me as strange or freedom, cannot apply in Gibraltar as they odd that the Treaty ith a specific status, w o u l d o t h e r w i s e b r e a c h the r e g i m e expressly laid down for that territory, that is to say the regime which excludes Gibral- 40 — Protocol N o 3 on the Channel Islands and the Isle of M a n tar from the free movement of goods. OJ 1972 L 73, 27 March 1972, p. 164. Article 1(1): 'The Community rules on customs matters and quantitative restrictions, in particular those of the Act of Accession, shall apply to the Channel Islands and the Isle of M a n under the same conditions as they apply to the United Kingdom.' Article 2: 'The rights enjoyed by Channel Islanders or Manxmen in the United Kingdom shall not be affected by the Act of Accession. However, such persons shall not benefit from Community provisions relating to the free movement of persons and services.' 41 — Protocol N o 2 on the Åland islands to the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the 75. We could try to imagine what would Kingdom of Sweden and the adjustments to the Treaties on happen if we opted for the alternative which the European Union is founded, OJ 1994 C 2 4 1 , 29 August 1994, p. 352. solution, and we can do this by taking as Article 1: 'The provisions of the EC Treaty shall not preclude the application of the existing provisions in force an example the first of the directives which on 1 January 1994 on the Aland islands on: the Commission complains has not been — restrictions, on a non-discriminatory basis, on the right of natural persons w h o do not enjoy hembygds- implemented in Gibraltar, that is to say raett/kotiseutuoikeus (regional citizenship) in Aland, and for legal persons, to acquire and hold real Directive 67/548 on the classification, p roperty on the Åland islands without permission y the competent authorities of the Åland islands; packaging and labelling of dangerous sub- — restrictions, on a non-discriminatory basis, on the stances. As we know, that directive pro- right of establishment and the right to provide services by natural persons w h o do not enjoy vides that dangerous substances may be hembygdsraett/kotiseutuoikeus (regional citizenship) marketed only if the labelling on the in Aland, or by legal persons without permission by the competent authorities of the Aland islands.' packaging and the classification of the

76. Another example can be drawn from the directives on noise emission of con- 78. That conclusion seems to be inescap- struction plant and equipment, which are able as regards directives aimed principally the subject, inter alia, of this case (I refer to at the establishment of the freedoms relat- the framework Directive 79/113 and imple- ing to such movement. We might also menting Directives such as Directive ask — even if the issue does not arise in 84/533, or Directive 84/534, or indeed the present case — whether the same con- Directives 84/535, 84/536, 84/537, etc.). clusion is called for as regards directives If such directives had to be applied in based on Articles 94 and 95 EC which Gibraltar too, this would in practice pre- primarily and chiefly pursue the establish- vent the importation into the territory to ment of the other freedoms of movement meet the needs of the local construction (all of which, as I have said, apply to industry of compressors, generators or Gibraltar), which also tend, albeit only pneumatic drills and other similar equip- incidentally, to promote free movement of ment which is noisy but good value orig- goods.

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OPINION OF MR TIZZANO — CASE C-30/01

82. For my part, while I understand the concerns of the Commission, I find the opposing argument put forward by the United Kingdom more convincing. It seems to me in fact that the 'unreasonable' consequences which the Commission rightly highlights are primarily the result of Community legislative practices, which were more or less necessary for a certain (c) The applicability of the directives which time and thus more or less justified, but also pursue other aims which cannot have any bearing for present purposes.

80. However, I repeat, that is not the issue 83. As is well known, as the Community in this case. As I have said, the issue here is did not in the past have a specific legislative those directives which, while exclusively power to lay down rules on environmental concerning movement of goods, at the same matters it had to rely on alternative legal time also pursue other, albeit ancillary, bases, including, in particular, Article 100 goals (here, relating to environmental pro- of the Treaty (now Article 94 EC). From tection). 1987, with the entry into force of the Single

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COMMISSION v UNITED KINGDOM

European Act, the situation changed and a single legal basis, namely that required by the Community was given a specific power the main or predominant purpose or com- to adopt measures on environmental ponent'. 43 matters. The same thing happened, as as we know, in other sectors (consumer pro- tection, health etc.), giving rise to an understandable but uncertain practice as regards the relation between the objective of an act and its legal basis.

84. The Court has also developed clear case-law on the subject perhaps primarily to address the abuses and ambiguities to which that practice may have given rise. In particular, for present purposes, it has consistently held that 'the choice of the legal basis for a measure must rest on objective factors which are amenable to 86. In this case the directives at issue are all judicial review. Those factors include in based, either themselves or the act of which particular the aim and the content of the they are an implementing measure (see measure.' 42 If, therefore, 'examination of a above, footnote 25), on Article 94 or Community measure reveals that it pursues Article 95 EC, and are intended chiefly, if a twofold purpose or that it has a twofold not exclusively, to foster the free movement component and if one of these is iden- of goods. For that reason, as I have tifiable as the main or predominant pur- endeavoured to demonstrate above, those pose or component, whereas the other is directives must have the same territorial merely incidental, the act must be based on

43 — See Case C-36/98, cited above, paragraph 59, and Opinion 42 — Sec Opinion 2/00 of 6 December 2 0 0 1 , Protocol of 2/00, cited above, paragraph 23, Case C-155/91 Commis- Cartagena [2001] ECR I-9713, paragraph 22, and judg- sion v Council [1993] ECR I-939, paragraphs 19 and 2 1 , ments in Case C-268/94 Portugal v Council [1996] ECR Case C-42/97 Parliament v Council [1999] ECR I-869, I-6177, paragraph 22, Case C-269/97 Commission v paragraphs 39 and 40. Council [2000] ECR I-22S7, paragraph 4 3 , and Case 44 — Case C-376/98 Germany v Parliament [2000] ECR I-8419, C-36/98 Spain v Council [2001] ECR I-779, paragraph 58. paragraph 84.

87. This is not to deny, of course, that failure to apply such directives to Gibraltar could jeopardise the consistency of Com- munity policies in the sectors which are incidentally the subject of those directives. However, to prevent the effect feared by the Commission and ensure the consistency of Community policy we cannot call into question the regime established for Gibral- 89. In the present case, as the United tar, particularly as the Community always Kingdom essentially contends, without has the option, where the relevant con- being contradicted by the Commission or ditions are met, of exercising the powers the Spanish Government, all the directives conferred on it in the specific sectors (for whose implementation is at issue exclus- t h e e n v i r o n m e n t , as we k n o w , by ively concern the harmonisation of national Article 174 EC et seq.), and, if necessary, provisions relating to goods and are thus adopting appropriate measures applicable not aimed at the establishment of any other (also) to Gibraltar. freedom of the internal market.

(d) Concluding considerations

90. Consequently, for the reasons just given, I take the view that the Commis- 88. For the reasons I have set out above it sion's application must be dismissed in its therefore seems to me that we must accept entirety.

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COMMISSION v UNITED KINGDOM

V — Costs unsuccessful, the latter must be ordered to pay the costs.

I - 9509