Opinion of the Advocate General — ECLI:EU:C:2001:609
Date: 2001-11-15
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws
Procedure: Action for annulment - successful
Origin: Netherlands

Summary of the Judgment 
Approximation of laws — Restrictions on the marketing and use of dangerous substances 
and preparations — Directives 76/769, 91/388 and 1999/51 — Adaption to technical 
progress — Legal basis — Restrictions on the use of cadmium in Austria and Sweden — 
Provision authorising those States to continue to apply more far-reaching restrictions — 
Invalid 
(Council Directives 76/769, Art. 2a and Annex I, and 91/338; Commission Directive 
1999/51, Annex) 
I - 5521 
SUMMARY — CASE C-314/99 
Section 3 of the Annex to Directive 
1999/51 adapting to technical progress for 
the fifth time Annex I to Council Directive 
76/769, which adds to Section 24 of 
Annex I to Directive 76/769, as amended 
by Directive 91/338, a Section 4 which 
provisionally authorises the Republic of 
Austria and the Kingdom of Sweden to 
continue to apply restrictions on cadmium 
going further than those prescribed in 
Sections 1, 2 and 3 of the abovementioned 
Section 24 cannot be regarded as an 
adaption to technical progress within the 
meaning of Article 2a of Directive 76/769, 
on the approximation of the laws, regu­
lations, and administrative provisions of 
the Member States relating to restrictions 
on the marketing and use of certain dan­
gerous substances and preparations, of 
Annex I to that directive and should there­
fore be annulled. 
By granting the Commission the power to 
adopt the amendments required to adapt 
Annex I of that directive to technical 
progress on the basis of Article 2a of 
Directive 76/769, the Community legis­
lature intended to make possible, at Com­
munity level, immediate amendments to 
Annex I when new risks to human heath 
and the environment were detected, requi­
ring new restrictions on the use of certain 
dangerous substances and preparations. In 
order for the Commision to have recourse 
to that procedure, it must have in its 
possession sufficiently reliable scientific 
date demonstrating that it is necessary to 
introduce such restrictions on the use of the 
substance or preparation concerned. How­
ever, Section 3 of the Annex to Directive 
1999/51 does not include any new restric­
tion on the use of cadmium at Community 
level. It is limited to permitting those two 
Member States to maintain existing restric­
tions on the use of that substance. 
(see paras 24-27, 29-30, operative part) 
I - 5522