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Cite as: [1998] EUECJ C-127/97

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JUDGMENT OF THE COURT (Sixth Chamber)

1 October 1998 (1)

(Article 100a(4) of the EC Treaty)

In Case C-127/97,

REFERENCE to the Court under Article 177 of the EC Treaty by the Bayerisches Verwaltungsgericht Regensburg (Germany) for a preliminary ruling in the proceedings pending before that court between

Willi Burstein

and

Freistaat Bayern

on the interpretation of Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (OJ 1976 L 262, p. 201), as amended by Council Directive 91/173/EEC of 21 March 1991 (OJ 1991 L 85, p. 34), and of Article 100a(4) of the EC Treaty,

THE COURT (Sixth Chamber),

composed of: H. Ragnemalm, President of the Chamber, R. Schintgen, G.F. Mancini, P.J.G. Kapteyn (Rapporteur) and G. Hirsch, Judges,

Advocate General: A. Saggio,


Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Willi Burstein, by B. Weber, Rechtsanwalt, Amberg,

- Freistaat Bayern, by E. Boettcher, Generallandesanwalt bei der Landesanwaltschaft Bayern, Munich,

- the Danish Government, by P. Biering, Legal Adviser at the Ministry of Foreign Affairs, acting as Agent,

- the Netherlands Government, by A. Bos, Legal Adviser at the Ministry of Foreign Affairs, acting as Agent,

- the Austrian Government, by F. Cede, Ambassador, Federal Ministry of Foreign Affairs, acting as Agent,

- the Finnish Government, by T. Pynnä, Legal Adviser at the Ministry of Foreign Affairs, acting as Agent,

- the Swedish Government, by E. BrattgÊard, DepartementsrÊad in the Foreign Trade Department of the Ministry of Foreign Affairs, acting as Agent,

- the Commission of the European Communities, by R. Wainwright, Legal Adviser, acting as Agent, assisted by B. Wägenbaur, of the Brussels Bar,

having regard to the Report for the Hearing,

after hearing the oral observations of Willi Burstein, represented by B. Weber; of Freistaat Bayern, represented by R. Beer, Oberlandesanwalt bei der Landesanwaltschaft Bayern, Munich; of the French Government, represented by R. Loosli-Surrans, Chargé de Mission in the Directorate for Legal Affairs, Ministry of Foreign Affairs, acting as Agent; of the Netherlands Government, represented by M. Fierstra, Deputy Legal Adviser at the Ministry of Foreign Affairs, acting as Agent; of the Austrian Government, represented by A. Bernhard, trainee lawyer at the Federal Ministry of Foreign Affairs, acting as Agent; of the Swedish Government, represented by E. BrattgÊard; and of the Commission, represented by R. Wainwright and B. Wägenbaur, at the hearing on 12 March 1998,

after hearing the Opinion of the Advocate General at the sitting on 7 May 1998,

gives the following

Judgment

  1. By order of 13 March 1997, received at the Court on 28 March 1997, the Bayerisches Verwaltungsgericht (Bavarian Administrative Court) Regensburg referred to the Court for a preliminary ruling pursuant to Article 177 of the EC Treaty four questions on the interpretation of Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (OJ 1976 L 262, p. 201), as amended by Council Directive 91/173/EEC of 21 March 1991 (OJ 1991 L 85, p. 34), and of Article 100a(4) of the EC Treaty.

  2. Those questions were raised in the course of proceedings brought by Mr Burstein against the Gewerbeaufsichtsamt (Trade Supervisory Office) Regensburg for the annulment of a decision by that authority concerning the disposal of dangerous waste.

    Legal background

  3. Article 1(1) and (3) of Council Directive 76/769 provides :

    '1. Without prejudice to the application of other relevant Community provisions, this Directive is concerned with restricting the marketing and use in the Member States of the Community of the dangerous substances and preparations listed in the Annex.

    ...

    3. For the purposes of this Directive:

    (a) "substances" means chemical elements and their compounds as they occur in the natural state or as produced by industry;

    (b) "preparations" means mixtures or solutions composed of two or more substances.'

  4. Article 2 of Directive 76/769 then provides:

    '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 used subject to the conditions specified therein. Such restrictions shall not apply to marketing or use for Research and Development or analysis purposes.'

  5. The original version of the Annex to Directive 76/769 made no mention of pentachlorophenol (hereinafter 'PCP').

  6. On 17 December 1989, the Federal Republic of Germany adopted the Pentachlorphenolverbotsverordnung (Regulation prohibiting PCP, Bundesgesetzblatt 1989, p. 2235, hereinafter 'the PCP Regulation'). Under Paragraph 1(1) thereof, the PCP Regulation applies to PCP, to sodium pentachlorophenol, to other pentachlorophenol salts and compounds, to preparations containing a total of more than 0.01% of those substances and to products which, as a result of treatment with those preparations, contain them in a concentration of more than 5 mg/kg (ppm). Under Paragraph 2(1) of the PCP Regulation the manufacture, marketing or use for commercial or industrial purposes of the substances referred to in Paragraph 1(1) are prohibited in any commercial undertaking or one employing workers.

  7. On 21 March 1991, on the basis of Article 100a of the Treaty, the Council adopted Directive 91/173, which amended Directive 76/769 by introducing rules relating to PCP.

  8. Article 1 of Directive 91/173 provides :

    'The following point is hereby added to Annex I to Directive 76/769/EEC:

    "23. Pentachlorophenol (CAS No 87-86-5) and its salts and esters shall not be used in a concentration equal to or greater than 0.1 % by mass in substances or preparations placed on the market.

    By way of exception, this provision shall not apply to substances and preparations intended for use in industrial installations not permitting the emission and/or discharge of pentachlorophenol (PCP) in quantities greater than those prescribed by existing legislation:

    (a) in the treatment of wood.

    However, treated wood may not be used:

    - inside buildings whether for decorative purposes or not whatever their purpose (residence, employment, leisure);

    - for the manufacture of containers intended for growing purposes and any re-treatment and the manufacture of packaging which may come into contact with or other materials which may contaminate raw, intermediate and/or finished products intended for human and/or animal consumption and any re-treatment;

    (b) in the impregnation of fibres and heavy-duty textiles ...

    (c) as a synthesising and/or processing agent in industrial processes;

    (d) by way of special exception ...

    In any case:

    (a) Pentachlorophenol used alone or as a component of preparations employed within the framework of the above exceptions must have a total hexachlorodibenzoparadioxin (H6CDD) content below four parts per million (ppm);

    ...

    In addition, this provision shall not apply to waste covered by Directives 75/442/EEC and 78/319/EEC."'

  9. Article 2(2) of Directive 91/173 provides that Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the directive before 1 July 1992.

  10. The fourth and fifth recitals in the preamble to Directive 91/173 read as follows:

    '... the Commission will be developing a coordinated Community strategy regarding the placing on the market and use of chemical products used for the preservation of wood; ... this strategy will be based on information supplied to it by the Member States and in particular on the assessment of the risks for man and the environment while taking into account the various problems posed by wood preservation in the Member States;

    ... currently Community legislation concerning the possible adoption by Member States of more stringent restrictions on the use of the substances and preparations in question at the workplace remains unaffected by this Directive'.

  11. Article 100a(4) provides:

    'If, after the adoption of a harmonisation measure by the Council acting by a qualified majority, a Member State deems it necessary to apply national provisions on grounds of major needs referred to in Article 36, or relating to protection of the environment or the working environment, it shall notify the Commission of these provisions.

    The Commission shall confirm the provisions involved after having verified that they are not a means of arbitrary discrimination or a disguised restriction on trade between Member States'.

  12. Pursuant to that article, on 2 August 1991 the Federal Republic of Germany notified the Commission of its decision to continue to apply the PCP Regulation in place of Directive 91/173.

  13. By decision of 2 December 1992 the Commission confirmed the provisions of the PCP Regulation pursuant to Article 100a(4) of the Treaty (Commission communication, OJ 1992 C 334, p. 8).

  14. By its judgment in Case C-41/93 France v Commission [1994] ECR I-1829 the Court annulled that decision on the ground that it did not satisfy the obligation to state reasons laid down in Article 190 of the EC Treaty.

  15. By letter of 18 May 1994 to the Commission, the Federal Republic of Germany confirmed its intention to continue to apply the PCP Regulation.

  16. By Decision 94/783/EC of 14 September 1994 concerning the prohibition of pentachlorophenol (PCP) notified by Germany (OJ 1994 L 316, p. 43) the Commission again confirmed the provisions of the PCP Regulation.

    Facts

  17. By decision of 17 December 1992 the Gewerbeaufsichtsamt Regensburg required Mr Burstein to dispose of approximately 120 000 boxes of US and East German army surplus ammunition, stored on his premises for resale as dangerous waste, on the ground that they were PCP-treated products which exceeded the permitted limit value under the PCP Regulation of 5 mg/kg.

  18. Mr Burstein brought proceedings in the Bayerisches Verwaltungsgericht Regensburg against that decision, arguing inter alia that it was incompatible with Directive 91/173.

  19. As it had doubts concerning the interpretation of the directive, the Bayerisches Verwaltungsgericht Regensburg ordered that proceedings be stayed and the following questions referred to the Court of Justice for a preliminary ruling:

    '1. Is Council Directive 91/173/EEC of 21 March 1991 to be interpreted as meaning that Member States are bound only in relation to the prohibition on authorising the use of pentachlorophenol and its salts and esters in concentrations equal to or greater than 0.1 % by mass in substances or preparations placed on the market, whereas they may set limit values

    independently in respect of products which have been treated with pentachlorophenol?

    2. If the answer to Question 1 is in the negative:

    Does that prohibit a more stringent national provision, which was in force before the directive was issued, from being applied until the Commission takes a decision pursuant to Article 100a(4) of the EC Treaty?

    3. If the answer to Question 2 is in the affirmative:

    May that national provision be applied as from the time when it is confirmed by the Commission, even if the Commission's decision is subsequently challenged before the Court of Justice and declared void as a result?

    Does it make a difference if the Commission's decision was annulled on formal grounds only, and subsequently reissued? Does that later decision by the Commission have retroactive effect?

    4. If the answer to Question 3 is in the negative:

    May the directive be applied in the Member States as directly effective law until such time as a final determination has been made as to the applicability of the national provision?'

    The first question

  20. By its first question the national court is essentially asking whether the limit value established by the first sentence of point 23 of Annex I to Directive 76/769, introduced by Article 1 of Directive 91/173, is applicable only to PCP, its salts and esters and to preparations produced from those substances, or whether that limit also applies to products treated with those substances or those preparations.

  21. The plaintiff in the main proceedings submits that Directives 76/769 and 91/173 make no distinction between the notion of 'substances' and 'preparations' on the one hand and that of products treated with them, on the other. To begin with, the definitions of the substances and preparations in Article 1(3) of Directive 76/769 are drafted so widely that they also cover products treated with the substances or preparations concerned. Second, the second paragraph of point 23, under (a), prohibits the use of wood treated with PCP. Finally, several other directives amending Directive 76/769 concern both dangerous substances or preparations themselves and products treated with such substances or preparations.

  22. Article 1(1) of Directive 76/769 states that the directive is concerned with restricting the marketing and use in the Member States of the dangerous substances and preparations listed in the Annex.

  23. According to Article 1(3)(a) and (b) of Directive 76/769 'substances' means chemical elements and their compounds as they occur in the natural state or as produced by industry and 'preparations' means mixtures or solutions composed of two or more substances.

  24. It follows that, in the absence of provisions to the contrary, the restrictions laid down by Directive 76/769 on the marketing and use in the Member States of the dangerous substances and preparations listed in the Annex thereto do not apply to products treated with such substances or preparations.

  25. That interpretation is borne out by the first sentence of point 23 of Annex I to Directive 76/769 as amended by Directive 91/173, under which PCP (CAS No 87-86-5) and its salts and esters are not to be used in a concentration equal to or greater that 0.1% by mass in substances or preparations placed on the market.

  26. The plaintiff in the main proceedings cannot argue against that interpretation that the second paragraph of point 23, under (a), of Annex I to Directive 76/769, as amended, prohibits the use of wood treated with PCP.

  27. It is clear from the wording of point 23 that the prohibition on the use of wood treated with PCP in the cases described in the second paragraph, under (a), first and second indents, represents an exception to the derogation provided for by the second paragraph of point 23 for substances and preparations intended for use in industrial installations. It is in the context of that derogation that the use of wood treated with PCP in a higher concentration than that otherwise prescribed is prohibited for certain purposes considered to be particularly dangerous.

  28. Moreover, according to the fourth recital in the preamble to Directive 91/173, the Commission will be developing a coordinated Community strategy regarding the placing on the market and use of chemical products used for the preservation of wood. As the Advocate General observed at point 13 of his Opinion, it is clear from this that the Community legislature has only acted in respect of certain specific aspects of the use of wood, leaving more general measures to future legislation.

  29. It follows that the effect of the second paragraph of point 23, under (a), of Annex I to Directive 76/769, as amended, is not to extend the scope of the prohibition provided for by the first sentence of point 23 to products treated with the substances or preparations listed there.

  30. As to the amending directives cited by Mr Burstein, suffice it to note that, as the Commission observed, they apply to products treated with the dangerous

    preparations or substances listed in Annex I to Directive 76/769 only if it is expressly so provided.

  31. It follows from the foregoing that Article 1(1) of Directive 76/769, as amended by Directive 91/173, does not apply to products treated with PCP, its salts and esters or with a preparation produced from that substance, with the result that the Member States remain in principle free to fix limit values for such products independently.

  32. The answer to the first question referred for a ruling is therefore that the limit value established in the first sentence of point 23 of Annex I to Directive 76/769, as amended by Directive 91/173, is applicable to PCP, its salts and esters and to preparations produced from those substances, but not to products treated with those substances or preparations.

    The second, third and fourth questions

  33. In the light of the answer given to the first question, there is no need to reply to the second, third and fourth questions.

    Costs

    34. 34. The costs incurred by the Danish, French, Netherlands, Austrian, Finnish and Swedish Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

    On those grounds,

    THE COURT (Sixth Chamber),

    in answer to the questions referred to it by the Bayerisches Verwaltungsgericht Regensburg by order of 13 March 1997, hereby rules:

    The limit value established in the first sentence of point 23 of Annex I to Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations , as amended by Council Directive 91/173/EEC of 21 March 1991, is applicable to PCP, its salts

    and esters and to preparations produced from those substances, but not to products treated with those substances or preparations.

    Ragnemalm
    Schintgen
    Mancini

    KapteynHirsch

    Delivered in open court in Luxembourg on 1 October 1998.

    R. Grass H. Ragnemalm

    Registrar President of the Sixth Chamber

    1: Language of the case: German.

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