Opinion of the Advocate General — ECLI:EU:C:2004:290
Date: 2004-05-06
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Free movement of goods;Measures having equivalent effect;Approximation of laws;Quantitative restrictions;Waste
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary of the Judgment 1. Environment – Waste – Packaging and packaging waste – Directive 94/62 – Power granted to the Member States to encourage systems for the reuse of packaging –Directive not containing specific criteria concerning the organisation of those systems – Assessment of the systems in light of the Treaty provisions relating to the free movement of goods (Arts 28 EC and 30 EC; European Parliament and Council Directive 94/62, Art. 5) 2. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National rules replacing a global packaging-waste collection system with a deposit and return system – Not permissible – Justification – Protection of the environment – Condition – Observance of the principle of proportionality (Arts 28 EC and 30 EC) 1. Article 5 of Directive 94/62 on packaging and packaging waste, which grants the Member States the power to encourage, in conformity with the Treaty, systems for the reuse of packaging that can be reused in an environmentally sound manner, formulates that power in general terms and does not specify the criteria to be taken into account by the Member States which exercise it. Accordingly, given that the directive does not regulate, as regards Member States disposed to exercise that power, the organisation of systems encouraging reusable packaging, such systems can be assessed on the basis of the Treaty provisions relating to the free movement of goods. (see paras 41, 43, 45, 50) 2. A Member State which, as regards non-reusable packaging, replaces a global packaging-collection system with a deposit and return system, obliging producers to alter certain information on their packaging and causing additional costs for every producer and distributor, without affording them a transitional period sufficient to enable them to adapt to the requirements of the new system, fails to fulfil its obligations under Article 5 of Directive 94/62 on packaging and packaging waste in conjunction with Article 28 EC. Such national rules capable of hindering intra-Community trade may be justified by overriding requirements relating to protection of the environment only if the means which they employ are suitable for the purpose of attaining the desired objectives and do not go beyond what is necessary for that purpose. (see paras 59, 62, 68, 75, 78-79, operative part)