Opinion of the Advocate General — ECLI:EU:C:2010:258
Date: 2010-05-06
Language of the case: English
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

summary is incorrect or incomplete. 49. Thus, while the misleading information given by the Parliament and the Council in response to the request for access to documents is regrettable, contrary to appearances, the available scientific information on the health risks of the use of MMT was taken into account in the legislative procedure. 50. The claim of a manifest error of assessment regarding the compilation of the information required to decide on limits is thus not substantiated. 2. The precautionary principle 51. The second part of the question concerns the complaint that the conditions for the application of the precautionary principle were not met. 52. Where it proves impossible to determine with certainty the existence or extent of the risk envisaged because of the insufficiency, inconclusiveness or imprecision of the results of the studies conducted, but the likelihood of real harm to human or animal health or to the environment persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures. (36) 53. Various rules of secondary law define the precautionary principle further in connection with the Commission’s implementing powers. It is in this area that the case-law (37) has been developed which Afton chiefly cites in support of the complaint of a breach of the precautionary principle. 54. However, Directive 2009/30 was adopted directly on the basis of Article 95 EC. A legislative measure of that sort cannot be directly assessed according to whether it observes the precautionary principle. Rather, the precautionary principle applies primarily in connection with the assessment of the principle of proportionality. (38) I will examine it further in that connection. 3. The principle of proportionality 55. The proportionality of the limits is the subject of the third part of the question. 56. The principle of proportionality is one of the general principles of Union law which the legislature must observe. (39) The acts of the bodies of the Union must, therefore, not exceed the bounds of what is appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. (40) 57. Nevertheless, here too, the wide margin of assessment (discretion) of the legislature comes into play. (41) A measure adopted in the exercise of that discretion, breaches the principle of proportionality only if it is manifestly unsuitable for achieving the objective pursued by the competent body (42) (see below under (b)), if there are clearly less onerous measures which are equally effective (43) (see below under (c)) or if the measures taken are clearly out of proportion to the objectives pursued (44) (see below under (d)). First, however, it must be considered whether the limits pursue objectives which are recognised in Union law (see below under (a)). (45) a) The objectives pursued by setting the limits 58. The objectives pursued by the setting of limits for MMT are based, according to recital 35 of the preamble to Directive 2009/30, on the fact that the use of this substance might raise the risk of damage to human health and might cause damage to vehicle engines and emission control (or reduction) equipment. The last-mentioned objective at first sight falls under the heading of consumer protection. As the parties agree, however, it is also at least implicitly aimed at environmental protection, as damage to equipment for emission reduction, such as catalytic converters for the cleaning of exhaust gases, may give rise to higher emissions and thus greater damage to the environment. (46) 59. As Article 95(3) EC calls for a high level of protection in the area of health, safety, environmental protection and consumer protection, the objectives pursued by the limits are not only recognised but are given great weight. 60. If it were proven that the use of MMT was damaging to human health and damaged vehicle emission control equipment, restrictions could be based on the principle of prevention (Article 174(2) EC). However, this is clearly not the case. 61. According to the documents before the Court the scientific dispute in this case concerns, rather, the question whether risks to human health or emission reduction are linked to the use of MMT in fuels. Such effects can be neither proved or ruled out. 62. Such uncertainty has an effect on the manner in which the principle of proportionality is applied. Under such circumstances, protective measures may be taken under the precautionary principle, without any need to wait for the existence and extent of such dangers to become clear. (47) 63. However, Afton takes the view that precautionary measures may only be taken in extraordinary circumstances, where there is serious, sound evidence that the risk of damage exists. If such evidence does not dispel scientific uncertainty, it ought at least to permit reasonable doubt and meet the high standard of expertise and independence required of scientific experts’ reports. In particular, the measures must be necessary or, in view of the level of risk which the competent body has established as unacceptable for society, essential. 64. As regards measures taken by the Member States which, for example, limit trade in goods, the Court of Justice has held that protective measures under the precautionary principle can be adopted only if they are based on a risk assessment which is as complete as possible in the particular circumstances of an individual case, which indicate that those measures are necessary in order to ensure that the products in question do not present a danger for human health. (48) In particular, the risk assessment may not properly be based on a purely hypothetical approach. (49) 65. Citing various judgments of the General Court – which have not been reviewed by the Court of Justice regarding the points at issue – (50) Afton submits that similar requirements applied to legal measures of the Union. 66. While the findings of the General Court in those cases were formulated in general terms, those cases concerned decisions of the Council or the Commission which were made on the basis of the relevant secondary law. That contained specific requirements as to scientific grounds, (51) which embodied the precautionary principle. The Parliament rightly observed that such requirements were necessary if only because the cases concerned the revocation of authorisations which had previously been issued on the basis of a scientific procedure. 67. Those requirements cannot be transferred to legislation under the Treaty, as no further requirements regarding the application of the precautionary principle are laid down there. In fact, the case-law set out below shows that the Union can issue bans by way of precaution without a comprehensive risk assessment, which apply at least until the risk can be ruled out. 68. The judgment in Alliance for Natural Health and Others concerned the regulation of free trade in food supplements. Directive 2002/46/EC (52) reserved such freedom for substances about which, at the time when the directive was adopted, the competent European scientific authorities had available adequate and appropriate scientific data capable of providing them with the basis for a favourable opinion. This restriction of free trade was qualified by the possibility of authorising further food supplements in line with scientific and technological developments. The Court saw this as an appropriate way of reconciling the objective of the internal market with that relating to the protection of human health. (53) 69. Thus, in that case, even the absence of a comprehensive risk assessment by the competent European authorities was sufficient to justify restrictions. 70. The position is similar as regards site protection under Article 6(3) of Directive 92/43 (the Habitats Directive): pursuant to Article 6(3) of the Habitats Directive, the competent national authorities are to authorise a project only if they have made certain that it will not adversely affect the integrity of the site in question. That is the case where no reasonable scientific doubt remains as to the absence of such effects. (54) Thus, it is not the prohibition of measures, but their authorisation in the first place, which must be based on a comprehensive risk assessment. 71. The possibility of an exceptional authorisation for imperative reasons under Article 6(4) of the Habitats Directive does not affect the position at all, since it also requires an assessment of the risks of the project for the site. (55) 72. Finally, the registration requirement in Regulation No 1907/2007 (REACH) (56) also embodies the precautionary principle (57) in a ban on the marketing of substances which applies until an assessment of certain risks is submitted. (58) The Court of Justice did not question this approach to regulation when it ruled on the obligation to register monomers. (59) 73. The case-law set out above is an inevitable result of the broad discretion conferred on the legislature in the application of the principle of proportionality and the precautionary principle and in the selection of the basic data, when complex legislation is to be adopted. 74. In principle, similar considerations apply to measures taken by the Member States. (60) The fact that the Court of Justice frequently makes them subject to stricter requirements is a result of the subject-matter of the legislation in each case. (61) In trade in goods this is a reflection of the principle of mutual recognition. If Member States admit certain products, it must be assumed that a risk assessment has been made. Consequently, there is a higher standard for the grounds to be stated for any more far-reaching restrictions imposed by other Member States. If, on the other hand, the Union regulates the way certain risks are dealt with in a uniform manner throughout the Union and the experience of all Member States is taken into account in the process, it must be possible to take protective measures without first carrying out a comprehensive risk assessment in every individual case. The anticipated damage might already have occurred while such an assessment is being carried out. 75. The justification of limits thus does not depend primarily on the assessment of risks by the Court of Justice. Rather, it is for the legislature to draw conclusions from the scientific debate. The Court of Justice may only call into question the substantive evaluation made by the legislature if there are manifestly no risks or they have clearly been incorrectly estimated. Nevertheless – at least when examining the objective of the legislation – there can be no question of that on the basis of the scientific debate regarding risks accepted by both. 76. In summary, it must be concluded that prevention of the risks of the use of MMT for human health and the environment should be recognised as objectives of the limits. b) Appropriateness 77. The limits are not manifestly inappropriate to serve as a precaution against the risks of the use of MMT. Limits, by their nature, prevent greater use of MMT and thus restrict the amount of MMT which might cause damage. 78. However, Afton submits that it cannot be established whether manganese in fuels is to be attributed to MMT. Afton concludes from this that limits cannot be implemented in practice and are therefore inappropriate for the prevention of the risks of the use of MMT. 79. That conclusion is, however, not compelling. Even if there is (still) no method for demonstrating directly that manganese in fuels must be attributed to MMT, this can be inferred indirectly. Thus, the fact that the permissible level of manganese has been exceeded could be viewed as sufficient to give rise to a rebuttable presumption of unauthorised use of MMT. Germany pertinently points out that Afton has not explained how manganese could otherwise find its way into fuels. 80. There is, therefore, no substantiated doubt as to whether the limits can be implemented and are appropriate for attaining their objective. c) The need for limits 81. At the next stage of the examination of proportionality it must be investigated whether the limits can be regarded as the most moderate means of attaining their objectives. At first sight there are no indications that other protective measures would have been as effective as those currently provided for. 82. Afton points out, however, that according to the Commission’s impact assessment, voluntary measures could prevent risks as effectively as compulsory measures. (62) Thus, according to the Commission’s original assessment, compulsory measures were not the most moderate means. 83. In taking that view, Afton is clearly assuming that that assessment follows inevitably from the Commission’s scientific information and is therefore binding also on the other institutions participating in the legislative procedure. 84. That is, however, not the case. 85. Rather, in reaching its conclusions, the Commission exercised the discretion conferred on it. That exercise of its discretion does not prevent the other institutions participating in the legislative procedure from drawing different conclusions from the available information. The broad discretion of the legislature is not restricted to the Commission but is conferred on all the institutions participating in the legislative procedure and their members. 86. The relevant procedure in each case determines which assessment is decisive. In the present case the co-decision procedure under Article 251 EC was applied. It embodies the principle of democracy which was expressly enshrined in Article 6(1) EU as one of the foundations of the European Union. (63) While the democratic decision-making process it provides for requires first a Commission proposal, for the adoption of Directive 2009/30 it required a qualified majority in the Council and the absolute majority of votes cast in the Parliament. Those majorities clearly took a different view from the Commission. Such differences of opinion cannot, as such, be criticised by the courts, as the institutional balance in the relevant legislative procedure would otherwise be called into question. 87. It should also be pointed out that the rule eventually adopted is also based on the information on health risks already mentioned, which the Commission expressly did not take into account in its assessment. Consideration of that additional risk gives rise to an expectation of a different result from the original proposal. 88. Thus, the fact that the rule differed from the Commission’s proposal does not point to the conclusion that the limits were not the most moderate means. d) The reasonableness of the limits 89. In connection with reasonableness it must be examined whether the disadvantages of the rule at issue were reasonable in relation to the objectives pursued. Accordingly, the two aspects must be weighed up. 90. In this case, protection of health and the environment, on the one hand, are pitted against economic interests in the use of MMT, on the other. Clearly, the former, in principle, outweigh the latter. 91. However, Afton disputes that the risks of the use of MMT outweigh the disadvantages of a restriction. 92. In support of this view, Afton relies in particular on the fact that, during the legislative procedure, the Commission did not consider the risks to be sufficient to restrict the use of MMT. However, as I have pointed out above, the position of the Commission cannot bind the Council and the Parliament. 93. Moreover, there is no compelling evidence that the assessment of the risks by the Parliament and the Council was manifestly incorrect. Although it is true that there is to date relatively little scientific evidence of the assumed risks, Afton accepts that, according to the studies available, the risks cannot be ruled out with certainty either. The precautionary principle 94. It is in precisely this situation that the precautionary principle applies. According to that principle, health and the environment are not protected on the basis of a principle of protection from damage which is bound to occur. Rather, preventive measures may be taken against risks whose extent is disputed. In this way, the legislature can give priority to the objective of protection of health or the environment over restriction of other interests. 95. It is for the legislature and not for the courts to weigh these considerations against one another. In particular, it can decide to minimise the risks or exclude them altogether through restrictive measures. Otherwise it would have to accept that the risks might materialise and the anticipated damage actually occur. Particularly in the case of precautions against risks to human health, the legislature can generally hardly be accused of taking manifestly disproportionate measures. The possibility of adapting the limits 96. Account must be taken, in the course of weighing up these interests, of the fact that restrictive precautionary measures are essentially of a provisional nature. They must be cancelled when new findings allay fears in that regard. (64) In that way it is ensured, in accordance with the principle of proportionality, that the restrictions are not applied for any longer than necessary. As the Commission points out, this at the same time creates an incentive, reflecting the ‘polluter pays’ principle, for producers and users of such products to investigate their effects. To the extent that, on the other hand, the legislature must prove risks in order to justify restrictions, there is an opposite incentive for these persons to prevent the scientific investigation of such risks. 97. Accordingly, the restrictions are imposed as a prohibition subject to prior authorisation. Article 8a(1) and (3) of Directive 98/70 expressly provides that the risks are to be investigated further and the limits revised by the Commission if necessary. This is expressly mentioned in recital 35. If Afton succeeds in producing relevant scientific information the Commission would be obliged to rethink the rules on MMT. (65) 98. The foundations for such proof – if it is possible – are in the pipeline. At present health risks are examined by Afton in collaboration with the US Environmental Protection Agency (66) and – as the Commission submits – also in the framework of the REACH Regulation. In addition, in accordance with Article 8a(1) of Directive 98/70, the Commission is to conduct an assessment of the risks for health and the environment from the use of metallic additives in fuel and, for this purpose, develop a test methodology. It is to report its conclusions to the European Parliament and to the Council by 31 December 2012. The level at which limits are set and their effects on the use of MMT 99. However, when weighing the objectives of the measure against its disadvantages, account must be taken of the effects of limits on the use of MMT. They are inextricably linked to the level at which the limits are set. 100. Afton puts forward three, for the most part uncontested, arguments in that connection. 101. First, there is no specific scientific basis for setting an upper limit of 6 mg of Manganese per litre from 2011 and for reducing that to 2 mg from 2014. 102. Second, when the limits are applied, MMT can no longer be used to protect against valve damage (so-called ‘valve seat recession’). This affects certain older vehicles for which the fuels have to have certain additives in order to prevent valve damage. According to Afton, when the limits are applied, the proportion of MMT in fuel is not sufficient to perform this function. Accordingly, the limits have the same effect as a ban on the use of MMT for this purpose. 103. Afton implies that the limits for MMT prevent the use of such older vehicles. However, that argument is not persuasive as there are other fuel additives which can also be used to replace lead. (67) Thus, it is only Afton’s economic interest in the marketing of MMT which has to be taken into account in the weighing up of interests. 104. Thirdly, according to Afton, MMT no longer has any practical effect at the level of 2 mg of manganese which will apply from 2014, so that this limit is tantamount to a full ban. This objection concerns MMT’s main function of raising the so-called octane level of fuel. While a limit of 6 mg allows a perceptible rise, this is not possible at a level of 2 mg. 105. Afton’s position is based on a correct point of departure: the legislative decision on the reasonableness of a rule generally requires that its disadvantages be weighed against its objectives. Accordingly, the legislature should examine the adverse effects of the rules being considered. If a rule had consequences which were entirely overlooked in the legislative procedure, the exercise of its legislative discretion could be defective. 106. In the legislative procedure there is in fact no evidence regarding the points at issue. The institutions did not even raise these objections in the written procedure before the Court of Justice. Nevertheless, Afton’s submissions do not call into question the reasonableness of the limits. 107. The absence of a scientific basis for the limits defines the level of knowledge of the risks: as it is unclear whether the use of MMT causes damage at all, there is no scientific knowledge as to whether certain limits can prevent damage. 108. Afton’s arguments on this point are essentially to the effect that the risks of the use of MMT are unclear and the proposed restrictions to a large extent preclude the use of MMT. These views shaped the legislative procedure – at least in so far as it concerned the rules on MMT – and thus were clearly taken into account, because, since the first reading in Parliament a full ban on MMT was on the agenda, which would have called for a similar balancing of interests. 109. Thus, it cannot be found that the legislature did not, or did not properly, exercise its discretion with regard to the reasonableness of the limits. 110. Nor, for that matter, is the balancing of interests obviously defective in the light of the effects of limits. In view of the uncertainty, in particular as regards health risks, even a full ban would be conceivable in principle. As the Commission argues, the proposed limits, which are staggered over time, are a more moderate measure and are, therefore not manifestly unreasonable. e) Interim conclusion 111. Examination of Article 8a(2) of Directive 98/70 has thus disclosed no breach of the principle of proportionality. 4. The principle of equal treatment 112. According to settled case-law, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. (68) Nevertheless, when considering the prohibition on discrimination, as in the case of the principle of proportionality, it must be borne in mind that the Community legislature has a margin of manoeuvre (discretion). (69) 113. Afton argues that there is no justification for setting limits for MMT without restricting the use of other metallic additives. MMT has a similar function to other metallic additives and does not entail any additional risks. There is even at least one other manganese-based additive, cyclopentadienyl-manganese-tricarbonyl (CMT), whose use has not been restricted. 114. The Parliament rightly contends in response that the risks of MMT have been more fully researched than those of other metallic additives. Different scientific information warrants different precautionary measures. 115. As regards other manganese-based additives in particular, the institutions argue, and are not opposed on this point, that they are not used within the European Union. According to the Commission, the particular effect of this is that these additives initially – before they are marketed – require registration under the REACH Regulation, which allows a risk assessment to be made. For that reason there is no need at the moment to set limits for those additives. 116. Thus, no breach of the principle of equal treatment can be established. 5. The principle of legal certainty 117. The general principle of legal certainty, which is a fundamental principle of Community law, requires, in particular, that a rule should be clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly. (70) However, the principle of legal certainty does not require that a rule should exclude any doubt as to its interpretation. Rather, the issue is whether the legal measure in question displays such ambiguity as to make it difficult for that Member State to resolve with sufficient certainty any doubts as to the scope or meaning of the contested regulation. (71) 118. Afton takes the view that it is unclear whether the limits still apply after a test methodology has been developed, given that the first sentence of Article 8a(2) of Directive 98/70 provides for the limitation of the MMT content to 6 mg of manganese per litre from 1 January 2011, ‘pending the development of the test methodology’. Under the second sentence this limit is reduced to 2 mg of manganese per litre from 1 January 2014. 119. It must be conceded that, as Afton points out, Article 8a(2) of Directive 98/70 could be misunderstood if its wording is considered in isolation. However, if the provision is read in conjunction with recital 35 and Article 8a(1) and (3) it is clear that the development of the test methodology alone cannot entail the disapplication of the limits. Rather, the first sentence of Article 8a(3) states expressly that ‘[t]he limit for the MMT content of fuel specified in paragraph 2 shall be revised on the basis of the results of the assessment carried out using the test methodology referred to in paragraph 1’. 120. Thus, no breach of the principle of legal certainty can be established. C – The second question – Validity of the labelling requirement 121. The second question concerns the legality of the requirement to label fuels containing MMT. More specifically, the question is raised whether this rule is based on a manifest error of assessment or is in breach of the principle of proportionality. As the arguments advanced in connection with an error of assessment concern the principle of proportionality, I will examine them in this connection. 122. Under Article 8a(4) to (6), inserted in Directive 98/70 by Directive 2009/30, service stations must display a label containing the words ‘contains metallic additives’ if they supply fuels containing such additives. 123. According to the last sentence of recital l35, the labelling requirement should avoid consumers unknowingly invalidating their vehicles’ warranties. The use of such fuels may, according to the second sentence of that recital, invalidate vehicle warranties. This is because of the risks for vehicle engines and emission control devices. The labelling requirement is thus intended to serve the purpose of consumer protection, which, under Article 153 EC is an objective of the Union. That objective is to be achieved in particular by promotion of the consumer’s right to information. 124. However, Afton questions whether labelling without reference to vehicle guarantees can achieve its objective. Consumers do not generally read the vehicle guarantee so carefully that they are aware of the possible consequences of the use of fuels with metallic additives. 125. These doubts are altogether understandable. The labelling requirement could have been drafted more clearly. Nevertheless, that does not make it inappropriate for the protection of consumers. 126. Information about the content of products is a minimum requirement in order to enable consumers to avoid risk. At least those consumers who are aware of the risks can take account of metallic additives when they buy fuel. They would not be able to do so if the additives were not declared. 127. Afton does not consider the labelling requirement to be the most moderate means either. First, the Commission found this to be the case in its impact assessment and, second, the limits for MMT ought to be sufficient. 128. The Commission’s assessment – as I said above – cannot bind the other institutions participating in the legislative procedure. They may exercise their discretion regarding the effectiveness of the various legislative options in a different way from the Commission. 129. The question whether the protection afforded by the limits is sufficient is expressly addressed in recital 35. The limits are not intended to rule out any risk of the use of MMT but to limit possible damage for the time being. There is therefore, in the view of the legislature, a residual risk, which is to be dealt with through the labelling requirement. Moreover, the labelling requirement also applies to other metallic additives for which there are no limits. 130. Thus, no more moderate measure is called for. 131. Finally, Afton considers the labelling requirement to be unreasonable as it is tantamount to a ban on metallic additives. Service stations would have to store and supply fuels containing metal additives separately. However, they would not support such an expense. 132. It cannot be ruled out that this assessment is correct. However, it is not based directly on the labelling requirement but on the unattractiveness of fuels with metallic additives in comparison with fuels without such additives. If the additives were more attractive, service stations would either pay the additional expense or do without fuels without additives. Nevertheless, it is in no case justifiable to expose the consumer without warning to the risk of forfeiting their manufacturer’s guarantee simply in order to allow the continued sale of a product entailing risks. V – Conclusion 133. Therefore, I propose that the Court of Justice should answer the questions referred for a preliminary ruling as follows: Examination of the questions referred has disclosed nothing which could call into question the validity of Article 1(8) of Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Council Directive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC. 1 – Original language: German. 2 – Directive of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Council Directive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC (OJ 2009 L 140, p. 88). 3 – OJ 1998 L 350, p. 58. 4 – Witness Statement of Stanley Charles King, point 9. 5 – Case C‑355/97 Beck and Bergdorf [1999] ECR I‑4977, paragraph 22; Case C‑333/07 Regie Networks [2008] ECR I‑10807, paragraph 46; and Case C‑478/07 Budejovicky Budvar [2009] ECR I-0000, paragraph 63. 6 – Case C‑491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I‑11453, paragraph 34, and Case C‑308/06 Intertanko and Others [2008] ECR I‑4057, paragraph 31. 7 – Joined Cases C-295/04 to C-298/04 Manfredi and Others [2006] ECR I-6619, paragraph 27. 8 – See, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 61, and Case C-344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 24. 9 – See Bosman, paragraph 59, and IATA and ELFAA, paragraph 24, cited in footnote 8. 10 – IATA and ELFAA, cited in footnote 8, paragraph 24. 11 – Case 101/78 Granaria [1979] ECR 623, paragraph 4; Case C‑137/92 P Commission v BASF and Others [1994] I‑2555, paragraph 48; Case C‑475/01 Commission v Greece [2004] ECR I‑8923, paragraph 18; and Case C‑199/06 Centre d’exportation du livre français [2008] ECR I‑469, paragraph 59. 12 – See Case C‑412/93 Leclerc-Siplec [1995] ECR I‑179, paragraph 14. 13 – Case C‑188/92 TWD Textilwerke Deggendorf [1994] ECR I‑833, paragraphs 13, 17 and 24; Case C‑239/99 Nachi Europe [2001] ECR I‑1197, paragraph 37; and Case C‑343/07 Bavaria and Bavaria Italia [2009] ECR I-0000, paragraph 39. However, see also the criticism of that case-law in the Opinion of Advocate General Ruiz-Jarabo Colomer in Joined Cases C‑346/03 and C‑529/03 Atzeni and Others [2006] ECR I‑1875, point 88. 14 – See Case C‑309/89 Codorníu v Council [1994] ECR I‑1853, paragraph 21. 15 – See, as regards being directly concerned by provisions of a directive, Case C‑125/06 P Commission v Infront WM [2008] ECR I‑1451, paragraphs 37 and 59 et seq. 16 – See my opinion of 26 October 2006 in Case C‑441/05 Roquette Frères [2007] ECR I‑1993, point 33 et seq. and cases cited therein. 17 – See TWD Textilwerke Deggendorf, cited in footnote 13, paragraph 17 et seq. 18 – See, to that effect, Case C‑331/88 Fedesa and Others [1990] ECR I‑4023, paragraph 14; Case C‑157/96 National Farmers’ Union and Others [1998] ECR I‑2211, paragraph 61; and Case C‑558/07 S.P.C.M. and Others [2009] ECR I-0000, paragraph 42. 19 – See, as regards staff case-law, Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 46, Case 121/76 Moli v Commission [1977] ECR 1971, paragraph 23 et seq., and Case C‑298/93 P Klinke v Court of Justice [1994] ECR I‑3009, paragraph 31, and, as regards competition cases, Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 105, and Case C‑431/07 P Bouygues and Bouygues Télécom v Commission [2009] ECR I-0000, paragraph 76. As regards legislation, see the opinions of Advocate General Léger in Case C‑66/00 Bigi [2002] ECR I‑5917, point 40, and in Case C‑257/01 Commission v Council [2005] ECR I‑345, footnote 43, of Advocate General Ruiz-Jarabo Colomer in Joined Cases C‑465/02 and C‑466/02 Germany and Denmark v Commission [2005] ECR I‑9115, point 137, of Advocate General Tizzano in Case C‑12/03 P Commission v Tetra Laval [2005] ECR I‑987, point 86, of Advocate General Trstenjak in Case C‑101/08 Audiolux and Others [2009] ECR I-0000, point 107, and my opinion in S.P.C.M. and Others, cited in footnote 18, point 76. 20 – See Bavaria and Bavaria Italia, cited in footnote 13, paragraph 81. 21 – Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14, Case C‑405/07 P Netherlands v Commission [2008] ECR I‑8301, paragraph 56, and Case C‑425/08 Enviro Tech (Europe) [2009] ECR I-0000, paragraph 62. 22 – Case C‑12/03 P Commission v Tetra Laval [2005] ECR I‑987, paragraph 39; Case C‑326/05 P Industrias Químicas del Vallés v Commission [2007] ECR I‑6557, paragraph 76; Case C‑525/04 P Spain v Lenzing [2007] ECR I‑9947, paragraph 57; and Netherlands v Commission, cited in footnote 21, paragraph 55. 23 – See, as regards the first indent of Article 174(3) EC, Case C‑341/95 Bettati [1998] ECR I‑4355, paragraph 49, and Netherlands v Commission, cited in footnote 21, paragraph 61. 24 – Case 138/79 Roquette Frères v Council [1980] ECR 3333, paragraph 25; Case C‑310/04 Spain v Council [2006] ECR I‑7285, paragraph 121; Industrias Químicas del Vallés v Commission, cited in footnote 22, paragraph 77; and Enviro Tech (Europe), cited in footnote 21, paragraph 62. 25 – Spain v Council, cited in footnote 24, paragraph 122. 26 – Joined Cases C‑27/00 and C‑122/00 Omega Air and Others [2002] ECR I‑2569, paragraph 47. 27 – See, in particular, the recitals 1 and 11 in the preamble to the Proposal for a Directive of the European Parliament and of the Council amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and the introduction of a mechanism to monitor and reduce greenhouse gas emissions from the use of road transport fuels and amending Council Directive 1999/32/EC, as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC (COM(2007) 18 final) pp. 14 and 16. 28 – See the impact assessment of Proposal SEC(2007) 55 final/2 (point 4.12.1, p. 69), available as Council document 6145/1/07 REV 1 ADD 1. 29 – Directive 2003/17/EC of the European Parliament and of the Council of 3 March 2003 amending Directive 98/70/EC relating to the quality of petrol and diesel fuels (OJ 2003 L 76, p. 10). 30 – Full title: Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1 et seq.). 31 – See the impact assessment cited in footnote 28. 32 – See Commission v Spain, cited in footnote 24, paragraph 123. 33 – Regulation of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). 34 – Article 4 of the Statute for Members of the European Parliament (OJ 2005 L 262, p. 1), according to which documents and electronic records which a Member has received, drafted or sent are not to be treated as Parliament documents unless they have been tabled in accordance with the Rules of Procedure, was not applicable at the material time. There is no need to decide in the present case whether Article 15 TFEU and Article 42 of the Charter of Fundamental Rights of the European Union allow such documents to be excluded from the right of access in the future. 35 – Annex 15 to the Witness Statement of Peter Sellar. 36 – Case C‑192/01 Commission v Denmark [2003] ECR I‑9693, paragraph 52; Case C‑219/07 Nationale Raad van Dierenkwekers en Liefhebbers und Andibel [2008] ECR I‑4475, paragraph 38; judgment of 10 September 2009 in Case C‑100/08 Commission v Belgium, not published in the ECR, paragraph 102; and Case C‑333/08 Commission v France [2010] ECR I-0000, paragraph 93. 37 – Joined Cases T‑74/00, T‑76/00, T‑83/00 to T‑85/00, T‑132/00, T‑137/00 and T‑141/00 Artegodan v Commission [2002] ECR II‑4945, paragraph 192; Case T‑13/99 Pfizer Animal Health v Council [2002] ECR II‑3305 , paragraphs 142 to 145, 152 and 162; and Case T‑70/99 Alpharma v Council [2002] ECR II‑3495, paragraphs 155 to 157, 171 and 175. 38 – National Farmers’ Union and Others, cited in footnote 18, paragraph 63 et seq.; Case C‑504/04 Agrarproduktion Staebelow [2006] ECR I‑679, paragraph 39; and Commission v France, cited in footnote 36, paragraph 91. 39 – Case 25/70 Köster, Berodt & Co. [1970] ECR 1161, paragraph 21 et seq.; Case 137/85 Maizena and Others [1987] ECR 4587, paragraph 15; Fedesa and Others, cited in footnote 18, paragraph 13; National Farmers’ Union and Others, cited in footnote 18, paragraph 60; IATA and ELFAA, cited in footnote 8, paragraph 79; Spain v Council, cited in footnote 24, paragraph 97; and Joined Cases C‑37/06 and C‑58/06 Viamex Agrar Handel [2008] ECR I-69, paragraph 33. 40 – See, to that effect, Köster, Berodt & Co., cited in footnote 39, paragraphs 28 and 32; Case 265/87 Schräder HS Kraftfutter [1989] ECR 2237, paragraph 21; Fedesaand Others, cited in footnote 18, paragraph 13; National Farmers’ Union and Others, cited in footnote 18, paragraph 60; Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 81; Viamex Agrar Handel, cited in footnote 39, paragraph 35; and Joined Cases C‑379/08 and C‑380/08 ERG and Others [2010] ECR I-0000, paragraph 86. 41 – See above, point 28 et seq. 42 – See references in footnote 18. 43 – See the assessment in S.P.C.M. and Others, cited in footnote 18, paragraph 59 et seq. 44 – See, as regards this formulation in general, my opinion in S.P.C.M. and Others, cited in footnote 19, points 73 et seq. and cases cited therein. 45 – See the assessment in S.P.C.M. and Others, cited in footnote 18, paragraph 44 et seq. 46 – See the justification given for the 30th amendment proposed by Parliament, imposing a full ban on MMT (Parliament document A6-0496/2007, p. 23). 47 – See the references in footnote 38. 48 – See, for example, Case C‑236/01 Monsanto Agricoltura Italia and Others [2003] ECR I‑8105, paragraph 107; Commission v Denmark, cited in footnote 36, paragraph 51; and Commission v France, cited in footnote 36, paragraph 92 et seq. 49 – See Monsanto Agricoltura Italia and Others, cited in footnote 48, paragraph 106; Case C‑95/01 Greenham and Abel [2004] ECR I‑1333, paragraph 43; Case C‑41/02 Commission v Netherlands [2004] ECR I‑11375, paragraph 52; and Commission v France, cited in footnote 36, paragraph 91. See also the judgment of the EFTA Court of 5 April 2001 in Case E-3/00 EFTA-Supervisory Authority v Norway, EFTA Court Reports 2000-2001, p. 73, paragraphs 36 to 38. 50 – See references in footnote 37. 51 – See Article 11 of Council Directive 70/524/EEC of 23 November 1970 concerning additives in feeding-stuffs (OJ 1970 L 270, p. 1), as amended by Commission Directive 98/19/EC of 18 March 1998 amending Council Directive 70/524/EEC concerning additives in feedingstuffs (OJ 1998 L 96, p. 39), which was the basis for the regulation contested in Pfizer Animal Health v Council and Alpharma v Council (both cited in footnote 37). Artegodan v Commission (also cited in footnote 37) concerned a decision under Article 15a of Second Council Directive 75/319/EEC of 20 May 1975 on the approximation of provisions laid down by law, regulation or administrative action relating to proprietary medicinal products (OJ 1975 L 147, p. 13), as amended by Council Directive 93/39/EEC of 14 June 1993 (OJ 1993 L 214, p. 22). 52 – Directive of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (OJ 2002 L 183, p. 51). 53 – Joined Cases C‑154/04 and C‑155/04 Alliance for Natural Health and Others [2005] ECR I‑6451, paragraph 68. 54 – Case C‑127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I‑7405, paragraph 59. 55 – Case C‑304/05 Commission v Italy [2007] ECR I‑7495, paragraph 83. 56 – Cited in footnote 30. 57 – See S.P.C.M. and Others, cited in footnote 18, paragraph 54. 58 – See Article 5 of the REACH Regulation. 59 – S.P.C.M. and Others, cited in footnote 18. 60 – Case C‑120/97 Upjohn [1999] ECR I‑223, paragraph 33 et seq., and Joined Cases C‑211/03, C‑299/03 and C‑316/03 to C‑318/03 HLH Warenvertrieb and Orthica [2005] ECR I‑5141, paragraph 79. See also, regarding the polluter pays principle, Case C‑254/08 Futura Immobiliare and Others [2009] ECR I-0000, paragraph 55, and Case C‑378/08 ERG and Others [2010] ECR I-0000, paragraphs 55 and 65. 61 – Kokott, J., ‘Die Durchsetzung der Normenhierarchie im Gemeinschaftsrecht’, in: Müller, G. et al.: Festschrift für Günter Hirsch zum 65. Geburtstag, C. H. Beck, 2008, p. 117, 124 et seq. 62 – Cited in footnote 28, point 4.12.4, p. 73. 63 – Case C‑518/07 Commission v Germany [2010] ECR I-0000, paragraph 41. 64 – Alliance for Natural Health and Others, cited in footnote 53, paragraph 68, and Agrarproduktion Staebelow, cited in footnote 38, paragraph 40, stress the need to adapt limits in the light of new findings. 65 – See Alliance for Natural Health and Others, cited in footnote 53, paragraph 68 et seq. 66 – Document number EPA-HQ-OAR-2004-0074, the documents submitted to date can be found at http://www.regulations.gov/search/Regs/home.html#searchResults?Ne=11+8+8053+8098+8074+8066+8084+1&Ntt=EPA-HQ-OAR-2004-0074&Ntk=All&Ntx=mode+matchall&N=0. 67 – See description of the patent WO/2001/016257, http://www.wipo.int/pctdb/en/wo.jsp?amp%3BDISPLAY=DESC&%3BWO=2001%2F16257&IA=GB2000002626&DISPLAY=DESC. 68 – IATA and ELFAA, cited in footnote 8, paragraph 95, and S.P.C.M. and Others, cited in footnote 18, paragraph 74. 69 – Case C‑292/97 Karlsson and Others [2000] ECR I‑2737, paragraphs 35 and 49, Case C‑227/04 P Lindorfer v Council [2007] ECR I‑6767, paragraph 78, and Case C‑127/07 Arcelor Atlantique and Lorraine and Others [2008] ECR I‑9895, paragraph 57. 70 – IATA and ELFAA, cited in footnote 8, paragraph 68, and Intertanko and Others, cited in footnote 6, paragraph 69. 71 – Case C‑110/03 Belgium v Commission [2005] ECR I‑2801, paragraph 31.