![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Court of Justice of the European Communities (including Court of First Instance Decisions) |
||
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Burstein (Approximation of laws) [1998] EUECJ C-127/97 (01 October 1998) URL: http://www.bailii.org/eu/cases/EUECJ/1998/C12797.html Cite as: [1998] EUECJ C-127/97 |
[New search] [Help]
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
Legal background
'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.'
'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.'
'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."'
'... 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'.
'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'.
Facts
'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
preparations or substances listed in Annex I to Directive 76/769 only if it is expressly so provided.
The second, third and fourth questions
Costs
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
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.