Opinion of the Advocate General — ECLI:EU:C:2023:434
Date: 2023-05-25
Language of the case: Italian
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-86/22 – 1 
Case C-86/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
9 February 2022 
Referring court:  
Tribunale Amministrativo Regionale per il Lazio (Italy) 
Date of the decision to refer:  
7 February 2022 
Applicant:  
Papier Mettler Italia S.r.l. 
Defendants:  
Ministero della Transizione Ecologica (formerly the Ministero 
dell’Ambiente e della Tutela del Territorio e del Mare) 
Ministero dello Sviluppo Economico 
  
Subject matter of the main proceedings 
Action brought before the Tribunale Amministrativo Regionale per il Lazio 
(Regional Administrative Court, Lazio) seeking the annulment of the ministerial 
decree of 18 March 2013 defining the technical specifications for shopping bags, 
in addition to damages for the unlawful conduct of the government. 
Subject matter and legal basis of the request 
Compatibility of the contested decree with Article 114(5) and (6) TFEU, 
Articles 1, 2, 9(1), 16(1) and 18 of Directive 94/62/EC, read in the light of 
points 1, 2 and 3 of Annex II to that directive, and Article 8 of Directive 
98/34/EC. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-86/22 
 
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Questions referred for a preliminary ruling 
1. Do Article 114(5) and (6) TFEU, Article 16(1) of Directive 94/62/EC and 
Article 8 of Directive 98/34/EC preclude the application of a national provision 
such as that laid down in the contested interministerial decree, which prohibits the 
marketing of single-use shopping bags made of non-biodegradable materials but 
otherwise complying with the requirements laid down in Directive 94/62/EC, 
where that national provision containing more restrictive technical rules than the 
EU legislation was not notified by the Member State to the European Commission 
in advance, but only after the adoption and before the publication of the measure? 
2. Must Articles 1, 2, 9(1) and 18 of Directive 94/62/EC, as supplemented by the 
provisions of points 1, 2 and 3 of Annex II to the directive, be interpreted as 
precluding the adoption of a national rule prohibiting the marketing of single-use 
shopping bags made of non-biodegradable materials, which otherwise comply 
with the requirements laid down in Directive 94/62/EC, or may the additional 
technical rules laid down by national law be justified by the aim of ensuring a 
higher level of environmental protection, considering, if need be, the specific 
problems regarding waste collection in the Member State and the need for that 
State to implement the EU obligations laid down in that related context? 
3. Must Articles 1, 2, 9(1) and 18 of Directive 94/62/EC, supplemented by the 
provisions of points 1, 2 and 3 of Annex II to the directive, be interpreted as 
constituting a clear and precise rule aimed at prohibiting any obstacle to the 
marketing of bags complying with the requirements laid down in the directive and 
leading to the necessary disapplication of any conflicting national legislation by 
all organs of the State, including public authorities? 
4. Lastly, could the adoption of national legislation prohibiting the marketing of 
single-use non-biodegradable shopping bags manufactured in compliance with the 
requirements laid down in Directive 94/62/EC, where that national legislation is 
not justified by the aim of ensuring a higher level of environmental protection, by 
the specific problems regarding waste collection in the Member State and by the 
need for that State to implement the EU obligations laid down in that related 
context, constitute a manifest and serious infringement of Article 18 of Directive 
94/62/EC? 
Provisions of European Union law relied on 
Article 114(5) and (6) TFEU. 
European Parliament and Council Directive 94/62/EC of 20 December 1994 on 
packaging and packaging waste. 
That directive was adopted with the aim of harmonising national measures on the 
management of packaging, ensuring the proper functioning of the internal market 
and providing a high level of environmental protection.  
PAPIER METTLER ITALY 
 
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By means of that directive, Member States were required, for the first time, to 
meet quantitative targets for the recovery and recycling of all packaging based on 
the total weight placed on the market in their respective domestic markets. In 
particular: 
- Article 9 establishes, as ‘Essential requirements’, that ‘Member States shall 
ensure that three years from the date of the entry into force of this Directive, 
packaging may be placed on the market only if it complies with all essential 
requirements defined by this Directive including Annex II.’ 
- Article 18, on the other hand, states under the heading ‘Freedom to place on the 
market’, that ‘Member States shall not impede the placing on the market of their 
territory of packaging which satisfies the provisions of this Directive.’ 
Annex II lays down different requirements for packaging: its manufacturing and 
composition (point 1), its reusable nature (point 2) and its recoverable nature 
(point 3). In relation to its recoverable nature, the law stipulates four alternative 
criteria: the recoverable nature of the packaging can be guaranteed either by 
recycling the material, or by means of energy recovery, or in the form of 
composting, or owing to its biodegradability.  
The use of any of these packaging recovery technologies ensures that the 
packaging can be sold in the internal market of the European Union. 
Article 8 of Directive 98/34/EC of the European Parliament and of the Council of 
22 June 1998 laying down a procedure for the provision of information in the field 
of technical standards and regulations. 
Provisions of national law relied on 
Article 2 of Decreto legge n. 2/2012 (Decree Law No 2/2012) (as converted by 
legge n. 28/2012 (Law No 28/2012)), which imposes a general ban on the 
marketing of plastic bags, notwithstanding the extensions granted for the 
marketing of certain categories of bags until the adoption of another ministerial 
decree. 
Decreto ministeriale del 18 marzo 2013 (Ministerial Decree of 18 March 2013) of 
the Ministero dell’Ambiente e della Tutela del Territorio e del Mare (Ministry of 
the Environment and the Protection of the Land and the Sea) and of the Ministero 
dello Sviluppo Economico (Ministry of Economic Development) defining the 
technical specifications of shopping bags (Gazzetta ufficiale della Repubblica 
italiana of 27 March 2013) (‘the contested decree’), which prohibits the 
manufacture and marketing of plastic shopping bags that do not meet the detailed 
requirements laid down in Article 2.  
To ensure effective environmental protection and more efficient waste collection, 
among the requirements laid down by EU legislation for marketable packaging, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-86/22 
 
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the decree is strongly in favour of the compostability and biodegradability options, 
imposing, inter alia, a ban on the marketing of bags that do not meet the 
specifications of UNI EN 13432:2002 (a technical standard defining the 
specifications for packaging recyclable by means of composting and 
biodegradation). Therefore, bags that do not comply with that technical standard – 
even if they comply with the other recoverability requirements laid down in 
point 3 of Annex II to the Packaging Directive – cannot be marketed in Italy, 
unless they comply with additional technical specifications relating to their 
thickness and shape, which are not specified in the EU directive. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The company Papier Mettler s.r.l. (the applicant) is involved in the distribution of 
paper packaging and synthetic packaging. It is part of a European network for the 
production of paper and plastic packaging. It is also involved in the recycling of 
raw materials through the separate collection and recycling of internal and 
external waste.  
2 The applicant’s business mainly focuses on the production of polyethylene 
packaging, including ordinary plastic shopping bags. 
3 Considering itself injured by the contested decree, which, by clarifying the rules 
laid down in Decree-Law No 2/2012, prohibits the manufacture and marketing of 
plastic shopping bags that do not meet the stipulated requirements, the applicant 
brought an action before the referring court seeking its annulment. 
The essential arguments of the parties in the main proceedings  
4 The applicant submits that the contested decree contains provisions implementing 
the ban on the marketing of non-biodegradable plastic shopping bags – a 
prohibition laid down in Directive 94/62 – which are more restrictive than the 
directive allows. Article 2 of the contested decree provides that those plastic bags 
must meet specific technical requirements, which is contrary to Directives 94/62 
and 98/34. 
5 From a procedural point of view, the applicant maintains that, since Directive 
94/62 is a simple harmonisation directive, the technical rules introduced by the 
national authority to strengthen environmental protection should have been 
notified to the Commission in advance under Article 114(5) and (6) TFEU.  
6 The applicant notes the separate prior notification mechanism provided for in 
Article 16 of Directive 94/62. In accordance with that article, Member States must 
notify the Commission of the drafts of measures which they intend to adopt, in 
order to permit the latter to examine them in the light of existing provisions. A 
similar system is also provided for in Article 8 of Directive 98/34, according to 
which ‘any draft technical regulation’ and ‘the grounds which make the enactment 
PAPIER METTLER ITALY 
 
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of such a technical regulation necessary’ must be communicated to the 
Commission before the adoption of the regulation. Consequently, in the light of 
those rules and the provisions of the national legislation at issue, the contested 
decree should have been notified in advance to the Commission. 
7 However, the defendant submits that the contested decree was duly notified to the 
European Commission on 12 March 2013, and that its entry into force was subject 
to the successful outcome of the notification procedure provided for in Directive 
98/34. The notification procedure was completed on 13 September 2013. 
8 In substance, the applicant submits that the contested decree is unlawful because 
it contravenes the rules laid down in Directive 94/62, in so far as it prohibits the 
marketing of bags even if they comply with one of the requirements for 
recoverability stipulated in point 3 of Annex II to that directive. 
9 Directive 94/62 lays down specific requirements for the marketing of packaging 
(see Annex II).  
10 The contested decree prohibits the marketing of bags that do not meet the 
specifications of UNI EN 13432:2002 or that do not meet other technical 
specifications in terms of thickness and shape. Those requirements are not 
provided for in European legislation. 
11 Therefore, bags that do not comply with that technical standard, despite 
complying with the recoverability requirements laid down in point 3 of Annex II 
to Directive 94/62, cannot be marketed in Italy. The Italian legislation at issue 
thus infringes Article 18 of Directive 94/62, which prohibits Member States from 
preventing the marketing of packaging produced in accordance with the 
provisions of that directive.  
12 The applicant submits, therefore, that the defendant should have disapplied the 
national legislation which is contrary to EU law, in accordance with the obligation 
imposed on the government of each Member State and confirmed on several 
occasions by the Court of Justice (see judgments of 19 January 1993, Commission 
v Italy, C-101/91; of 28 June 2001, Larsy, C-118/00; and of 9 September 2003, 
CIF, C-198/01). 
13 According to the applicant, the government’s conduct is unjustified, since the 
Court of Justice has also clarified that where a matter has been the subject of 
exhaustive harmonisation at EU level, any national measure relating to that matter 
must be assessed in the light of the provisions of that legislation (see judgments of 
13 December 2001, DaimlerChrysler AG v Land Baden-Württemberg, C-324/99, 
and of 17 April 2007, A.G.M.-COS.MET Srl v Suomen valtio and Tarmo Lehtinen, 
C-470/03). 
14 Lastly, the applicant submits that the contested decree – especially in so far as it 
provides that, in order to inform consumers, all plastic bags marketed in Italy must 
be labelled with their specifications in Italian – is contrary to the principle of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-86/22 
 
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freedom of movement of goods, since it amounts to an obstacle to imports and an 
additional burden for undertakings that, as in the present case, import goods to be 
marketed from other Member States. 
15 The defendant submits that the technical rules laid down in the contested decree 
were necessary to counteract the problem of contamination of the separate 
collection of organic waste, due to the habit of Italian consumers of using single-
use plastic bags for organic waste, and to encourage the use of biodegradable and 
compostable plastic bags.  
16 The defendant also points out that the contested decree identifies the following 
types of marketable bags: (a) biodegradable and compostable single-use bags, 
conforming to harmonised standard UNI EN 13432:2002; (b) traditional plastic 
bags of a certain thickness, which are therefore reusable; (c) reusable shopping 
bags made of paper, natural fibre, polyamide fibre and non-polymer materials. It 
follows from those provisions that the contested decree did not introduce an 
outright ban on the marketing of plastic bags, but only a selective ban on the 
circulation of plastic bags that, unless they are a certain thickness, are unlikely to 
be reused and are soon destined to become plastic waste. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
17 In the light of the arguments put forward by the parties in the main proceedings, 
the referring court decided to refer the matter to the Court of Justice for a 
preliminary ruling.