C-341/01

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OPINION OF MR LÉGER — CASE C-341/01

shop, service, household or any other level, user or consumer at the point of regardless of the material used.' purchase;

5. Article 3(1) of the Directive defines 'packaging' as follows: (b) grouped packaging or secondary packaging, i.e. packaging con- ceived so as to constitute at the point of purchase a grouping of a certain number of sales units whether the latter is sold as such to the final user or consumer or 'For the purposes of this directive: whether it serves only as a means to replenish the shelves at the point of sale; it can be removed from the product without affecting its char- acteristics;

1. "packaging" shall mean all products made of any materials of any nature to be used for the containment, protec- tion, handling, delivery and presenta- tion of goods, from raw materials to processed goods, from the producer to the user or the consumer. "Non- (c) transport packaging or tertiary returnable" items used for the same packaging, i.e. packaging con- purposes shall also be considered to ceived so as to facilitate handling constitute packaging. and transport of a number of sales units or grouped packagings in order to prevent physical handling and transport damage. Transport packaging does not include road, rail, ship and air containers.'

"Packaging" consists only of:

8. Paragraph 1 of the Verpackungsverord- nung provides as follows: These systems shall be open to the partici- pation of the economic operators of the sectors concerned and to the participation of the competent public authorities. They shall also apply to imported products under non-discriminatory conditions, including the detailed arrangements and any tariffs '(1) This Decree shall apply to any person imposed for access to the systems, and shall who in Austria: be designed so as to avoid barriers to trade or distortions of competition in conformity with the Treaty. 4 — BGBl. 1 9 9 6 I, p. 4553; 'the Verpakungsverordnung'.

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1. produces packaging or products out of 9. Paragraph 2 provides as follows: which packaging is directly produced (producers);

' 1 . For the purposes of this Decree, "packaging" means packaging materials, packaging aids, pallets or products out of 2. imports packaging or products out of which packaging materials or packaging which packaging is produced, or goods aids are directly produced. "Packaging or commodities in packaging (impor- materials" are products which are intended ters); to enclose or hold together goods or commodities for the purposes of trade, storage, transportation, mailing or sale. "Packaging aids" are products which are intended for packaging together with packaging materials, especially products for packaging, sealing, making ready for dispatch or marking goods or commodities. 3. fills or packages goods or commodities into packaging, or puts goods or commodities together with packaging in order to store or sell them (pack- agers);

11. The main proceedings relate to two types of plastic carrier bag manufactured by Plato Plastik: 'Merkur' bags and 'Fürnk- 4. "Grouped packaging" means packaging ranz' bags. other than packaging falling under para- graphs (2) or (3), such as blister packs, film, boxes or similar wrappings, which either is added to one or more items of sales packaging or surrounds goods or commod- ities, in so far as it is not required for delivery to end users, for example for 12. 'Merkur' bags are offered for sale in reasons of hygiene or technical reasons food supermarkets, where they hang near specific to the product or so that the the check-outs and are handed to customers product has a longer shelf-life or as protec- on request against payment. Customers tion against damage or spoiling. normally fill the bags with their purchases in the supermarket and take them away from the shop.

13. 'Fürnkranz' bags are used in clothes shops. The shop assistant puts the custo- mer's purchases in them and hands them to 5. "Service packaging" means transporta- the customer after the goods are paid for, tion packaging or sales packaging, such as but there is no separate charge for the bag. 6 carrier bags, cone bags, paper bags, bottles or similar containers, provided that they are made in a technically uniform shape and 5 — See the order for reference (p. 3) usually filled at or near the point of sale.' 6 — SEE the observations of Plato Plastik (paragraphs 3 and 4).

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14. According to the Verpackungsverord- 17. Plato Plastik appealed to the Land- nung, Plato Plastik is deemed to be a esgericht Korneuburg, seeking an order packaging producer which is required either requiring Caropack to provide the confir- to take back packaging waste or to join the mation in question so as to avoid possible national system for the collection and criminal penalties. recovery of packaging. However, Plato Plastik concluded an agreement transferring to Caropack its obligation to take back the plastic bags. The agreement stipulates that Caropack must give Plato Plastik a written confirmation that it takes part in the collection and recovery system in respect The questions referred of the bags it receives.

2. (a) First additional question, in the event that one of the above ques- tions is answered in the affirmative 2. Is it in conformity with Community on the basis of the German version: law for the operator of the collection and recovery system set up in Austria to charge a fee ("Lizenzgebühr") even for carrier bags not covered by Direc- tive 94/62 solely on the ground that the bags bear a mark (Grüner Punkt) in respect of which the operator has a right of disposition? Is the result different if, for the definition of the word "packaging" in Article 3(1) of the Directive, not the German text, which only has the words "von Waren", but the French or Italian text is deemed decisive, which both refer to spe- 3. (1) Is a "producer", within the mean- cific goods ("marchandises don- ing of Article 3(1) of the Directive, nées" and "determinate merci"), only someone who puts goods and are the plastic carrier bags together with, or causes them to made by the plaintiff in this case be put together with, the product not packaging for the purposes of used as packaging, and not also an the Directive because they are filled undertaking which makes a pro- with any goods at all (rather than duct intended for use as packaging, with predetermined goods), and in and is this product then to be this case which text applies? regarded as packaging material?

(b) Second additional question, in the (2) Additional question, in the event event that one of the above ques- that the preceding question is tions is answered in the negative: answered in the affirmative:

6. Is it contrary to the principles laid down in Article 30 et seq., in particular Article 37 EC, for a Member State to set up, in implementation of Article 7 of the Directive, as has happened in Austria pursuant to Paragraph 11 of the Verpackungsverordnung, a collec- 4. Is it contrary to the "polluter pays" tion and recovery system occupying a principle referred to in the preamble to monopoly position (in Austria, Altstoff Directive 94/62 for a law to provide, as Recycling Austria Aktiengesellschaft) does the first sentence of Paragraph so that competition and the fundamen- 3(1) of the Austrian Verpackungsver- tal freedoms are disproportionately ordnung, that producers, in particular and excessively restricted, this inter- producers of packaging material (see ference is out of proportion to any Paragraph 3(1) in conjunction with effective contribution towards increas- Paragraph 1(1) of the Austrian Ver- ing the level of environmental protec- packungsverordnung), importers, tion and moreover this system, set up packagers and distributors must take in parallel with the municipal system, back free of charge sales and transport is not compatible with the objective of packaging after they have been used, in sorting waste at source, which, accord- that the group of persons affected by ing to the preamble to the Directive, is this obligation is defined too narrowly "essential", because everything and does not include consumers, and/ marked with the "Grüner Punkt" or does such a decree conflict with symbol is mixed together and, above Article 1(1) of the Directive in so far as all, takes away from consumers the it is stated there that the Directive's right, granted and guaranteed to con- aim is to avoid obstacles to trade, sumers by the Sixth VAT Directive, to whereas an obligation for a producer a VAT rate reduced by half or a lower to take back packaging materials is the rate for the disposal of their household greatest imaginable obstacle to trade? waste?

20. The first series, which includes the first and third questions, relates to the inter- pretation of Article 3(1) of the Directive. The national court wishes to know whether plastic carrier bags which are supplied at — the Treaty provisions on competition, the customer's request and charged for or freedom to provide services and the provided free of charge without being principle of proportionality preclude expressly requested by the customer are the national ARA system from having

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a monopoly (fifth, sixth and seventh the relevance of the questions which it questions). submits to the Court. 1 0 Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling. 11

The jurisdiction of the Court

25. Nevertheless, the Court has taken the 22. First of all, I must examine the admis- view that, in order to determine whether it sibility of the questions referred by the has jurisdiction, it should examine the national court as both the Commission and conditions in which the case was referred the Austrian Government contend that they to it by the national court. 12 are inadmissible on several grounds.

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PLATO PLASTIK ROBERT FRANK

27. In the situation last mentioned above, it appear in the Directive. The Court has should be noted that in order to reach an before it sufficient information to reply to interpretation of Community law which those questions, which I find to be admis- will be of use to the national court, it is sible. essential that the national court define the factual and legislative context of the ques- tions it is asking or, at the very least, explain the factual circumstances on which those questions are based. 14 31. In my view, the second series of questions does not meet the requirements for admissibility. In the second question, the national court asks the Court to ascertain whether Community law pre- 28. In the absence of those particulars, it is cludes an operator of the packaging collec- not possible to delimit the specific problem tion system in Austria from claiming pay- of interpretation which could be raised in ment for plastic bags which are not covered relation to each of the provisions of by the definition of packaging for the Community law which the national court purpose of the Directive, on the sole ground requires to be interpreted. that the bags bear a mark ('der Grüne Punkt') in respect of which the operator has a right of disposition.

29. The need for precision with regard to the factual and legislative context applies However, the national court's question especially in the sphere of competition, gives no details at all of the general context, which is characterised by complex factual the purpose, the practical arrangements, the and legal situations. 15 amount or frequency of the payment required by the operator of the system. Nor does the national court provide to the Court any information regarding the 'Grüne Punkt' mark and its connection with the payment required by the operator 30. As I have said, the questions from the of the packaging collection system. national court fall into two categories. The first relates to the interpretation of the terms 'packaging' and 'producer' which

36. The third question concerns the defini- 33. With the fifth, sixth and seventh ques- tion of 'producer' for the purpose of the tions the national court asks the Court to same provision. It is necessary to determine assess the collection and recovery system whether 'producer' includes the person who managed by ARA in the light of the puts the goods together with, or causes competition rules, the fundamental free- them to be put together with, the product doms and the principle of proportionality. serving as packaging, or also the under- However, I find that the order for reference taking which manufactures the product gives no information at all concerning the intended to serve as packaging, and finally national collection and recovery system set whether the product must then be regarded up by the Republic of Austria, namely the as packaging material. system managed by ARA. The Court has no information on ARA's operation and prac- tices or on its position in the national market or its conduct in relation to the different economic protagonists.

37. I shall consider the terms 'packaging' and 'producer' together because 'producer' is included in the definition of 'packaging' and cannot be understood independently. In accordance with the methods of inter- pretation used by the Court, 16 I shall examine the wording, the general scheme and the aims of the Directive in order to 34. Consequently I propose that the Court reply to the national court. declare the second and the fourth to seventh questions from the national court inadmis- sible. I shall therefore confine my remarks to the first and third questions in the order 16 — See, in particular, Case C-208/98 Berliner Kindl Brauerei [2000] ECR I-1741, and Case C-372/98 Cooke [2000] for reference. ECR I-8683.

40. The general definition of 'packaging' states that it may be made of any kind of material and must be used for the contain- ment, presentation and protection of goods and for their handling and delivery, from 43. The 'Merkur' and 'Furnkranz' bags are the producer to the user or consumer. In handed to customers in shops so that they addition to this carefully framed definition, can put their purchases in them. The bags the concept of 'packaging' for the purposes are intended to contain and protect goods of the Directive is extended by the second and are used for carrying away the goods sentence of Article 3(1), which states that bought in the shop to the place where they '"non-returnable" items used for the same are to be used. The bags enable all the purposes shall also be considered to con- purchases to be put together and carried stitute packaging'. more easily without being damaged.

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51. Finally, the national court observes that, pursuant to Article 3(1) of the 47. Those categories are sales packaging, Directive, the requirement of delivery from grouped packaging and transport packa- the producer to the consumer may give rise

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PLATO PLASTIK ROBERT FRANK

to the question of who is the producer. Is he 54. Accordingly it follows from the word- the producer of the purchased goods, is he ing of the complete definition of packaging the person who puts the purchased goods in Article 3(1) that plastic carrier bags together with the packaging (in the present handed to customers in shops must be case, Caropack) or is he the person who regarded as packaging. manufacturers the packaging products (in the present case, Plato Plastik)? In my opinion, this can be answered solely in combination with the definition of packa- ging because the concept of 'producer' forms part of it. 55. This analysis seems to me to be consistent with the general scheme of the Directive.

52. As we have already seen, according to a literal interpretation of Article 3(1) of the Directive, the definition of 'packaging' depends on the purpose of the packaging: The general scheme of the Directive transport, protection and presentation. The concept of producer is used precisely to describe one of the functions of packaging, which is to enable the goods to be delivered or transported from the producer, that is to say the manufacturer of the goods, to the 56. The position of Article 3 in the scheme consumer or user of the goods. of the Directive shows that it is one of the first fundamental articles of the Directive which set out its aims and scope and define its most important concepts.

61. Therefore the plastic carrier bags in issue in the main proceedings must be characterised as packaging by way of the literal interpretation of Article 3 and the structural interpretation of the Directive. 65. To achieve those aims, the Directive provides in particular that the Member States are to set up systems for the collection and recovery of packaging and packaging waste which comply with the Community rules of non-discrimination, free movement and freedom of competi- 62. This analysis also seems to me to accord with the aims of the Directive. tion. 22

19 — First recital. 17 — 'Whereas this directive should cover all types of packaging 20 — Idem. placed on the market...'. 18 — See, to this effect, the observations of the French 21 — Seventh recital. Government (paragraphs 7 and 9). 22 — Eighteenth recital and Article 7 of the Directive.

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PLATO PLASTIK ROBERT FRANK

66. However, it must be noted that the consumer in the European Community mere fact of a strict interpretation of also. 'packaging' will not prevent a considerable increase in packaging and packaging waste.

70. If plastic bags are excluded from the definition of 'packaging', the attainment of 67. It is common ground that plastic the Directive's aims (the management of carrier bags have become everyday con- waste) is impeded because plastic bags will sumer goods. Consumers throughout the be disregarded by every national system for world use them when they have finished the collection and recovery of packaging shopping in a particular shop. They put and packaging waste. Consequently the their purchases in them so as to carry them disposal of such bags in large numbers, easily out of the shop and take them home without the beneficial control of the Direc- or to the place where they will consume tive, will continue to have the same negative them. impact on the environment.

74. It must be observed that Article 3 of the 77. The first additional question from the Directive does not indicate that such criteria national court is whether the reply to the are important with regard to the question first question varies according to the whether a product is to be described as different language versions of Article 3(1) packaging. According to the definition of of the Directive. 'packaging' in the Directive, whether packaging is paid for or free of charge is irrelevant.

78. It has consistently been held that the 75. In my opinion, the use and the function various language versions of a provision of of plastic carrier bags do not change Community law must be uniformly inter- according to whether they are supplied to preted, and thus, in the case of divergence customers free or in return for payment. between those versions, the provision in That is merely a commercial decision by the question must be interpreted by reference to shop supplying or selling the bags. How- the purpose and general scheme of the rules ever, whichever it chooses is of no conse- of which it forms part. 25 quence for the interpretation of 'packaging' and for determining whether the bags will be used to transport the purchases made by customers and will be regarded as packa- ging for the purposes of the Directive.

79. In any event, according to the literal, structural and purposive interpretation of 76. In view of all the foregoing considera- tions, I propose that the Court interpret Article 3(1) of the Directive as meaning that 25 — See, in particular, Case 30/77 Bouchereau [1977] ECR 1999, paragraph 14; Case C-449/93 Rockfon plastic carrier bags handed to customers in [1995] ECR I-4291, paragraph 28; Case C-236/97 Codan shops, whether free of charge or not, are [1998] I-8679, paragraph 28; Case C-420/98 W.N. [2000] ECR I-2847, paragraph 21, and Case C-257/00 Givane packaging. and Others [2003] ECR I-345, paragraph 37.

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