Opinion of the Advocate General — ECLI:EU:C:2021:78
Date: 2021-01-28
Language of the case: Dutch
Subject matter: Approximation of laws;Transport
Procedure: Reference for a preliminary ruling
Origin: Netherlands

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:  
15 February 2019 
Referring court:  
Raad van State (Netherlands) 
Date of the decision to refer:  
30 January 2019 
Applicant:  
X 
Defendant:  
College van burgemeester en wethouders van Purmerend 
Subject of the action in the main proceedings 
The applicant (X) is challenging the decision of the College van burgemeester en 
wethouders van Purmerend (Board of Mayor and Aldermen of Purmerend; ‘the 
College’) of 18 January 2016, whereby two additional safety regulations were 
imposed on a service station selling LPG. Under those regulations, the road 
tankers of suppliers which supply the service station with LPG must be fitted with 
an improved (safer) filler hose and a heat-resistant lining.  
Subject and legal basis of the request for a preliminary ruling 
At issue in the first question referred for a preliminary ruling is whether a 
licensing condition stipulating that an LPG service station must be supplied 
exclusively by LPG road tankers fitted with a heat-resistant lining is contrary to 
Article 5(1) of Directive 2008/68/EC of the European Parliament and of the 
Council of 24 September 2008 on the inland transport of dangerous goods. The 
second question referred for a preliminary ruling concerns the possibility of a 
national court assuming the lawfulness of such a licensing condition, unless it is 
clearly contrary to higher law, including Union law. That question is related to the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-120/19 
 
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principles of national procedural autonomy, legal certainty and effectiveness of 
Union law.  
Request under Article 267 TFEU. 
Questions referred 
Question 1A: 
Must Article 5(1) of Directive 2008/68/EC (OJ 2008 L 260, inland transport of 
dangerous goods) be interpreted as precluding a licensing condition, included in 
the licence for the LPG service station, which stipulates that the individual LPG 
service station concerned may exclusively be supplied by LPG road tankers that 
are fitted with a heat-resistant lining whereas that obligation is not directly 
imposed on one or more operators of LPG road tankers?  
Question 1B: 
In answering the first question, does it matter that the Member State has 
concluded an agreement in the form of the ‘Safety Deal hittewerende bekleding op 
LPG-autogastankwagens’ (‘Safety Deal on heat-resistant lining on LPG 
automotive-fuel road tankers’) with organisations of market participants in the 
LPG industry (including operators of LPG service stations, producers, sellers and 
carriers of LPG), in which the parties have committed themselves to implementing 
the heat-resistant lining and that, subsequently, that Member State issued a 
circular such as the ‘Circulaire effectafstanden externe veiligheid LPG-
tankstations voor besluiten met gevolgen voor de effecten van een ongeval’ 
(‘Circular on safety distances external safety LPG service stations for decisions 
with consequences for the effects of an accident’), in which an additional risk 
policy is laid down that is based on the assumption that LPG service stations are 
supplied by means of road tankers fitted with a heat-resistant lining? 
Question 2A: 
If a national court is assesses the lawfulness of an enforcement decision aimed at 
enforcing compliance with a licensing condition that has become legally 
unchallengeable and is contrary to EU law:  
– does EU law, in particular the case-law of the Court of Justice on national 
procedural autonomy, allow the national court in principle to proceed on the 
assumption of the legality of such a licensing condition, unless it is clearly 
contrary to higher law, including EU law? And if so, does EU law impose 
(additional) conditions on that exception?;  
– or does EU law entail, having regard to the judgments of the Court of Justice in 
Ciola (Case C-224/97, EU:C:1999:212) and Man Sugar (Case C-274/04, 
X 
 
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EU:C:2006:233), that the national court should disregard such a licensing 
condition because it is contrary to EU law? 
Question 2B: 
In answering question 2A, is it relevant whether the enforcement decision is a 
remedy or a criminal charge? 
Provisions of European Union law cited 
The European Agreement concerning the International Carriage of Dangerous 
Goods by Road (ADR): Annex A, Part 1, Chapter 1.2, point 1.2.1  
Directive 2008/68/EC of the European Parliament and of the Council of 
24 September 2008 on the inland transport of dangerous goods (OJ 2008 L 260, 
p. 13): recitals 5 and 22, Article 5(1) 
Directive 2012/18/EU of the European Parliament and of the Council of 4 July 
2012 on the control of major-accident hazards involving dangerous substances, 
amending and subsequently repealing Council Directive 96/82/EC (OJ 2012 
L 197, p. 1): recitals 1, 2 and 18, Article 13  
Articles 34, 36, 71 and 114 TFEU 
Provisions of national law cited 
Algemene wet bestuursrecht (General Law on Administrative Law; ‘Awb’): 
Article 8:69a 
Besluit externe veiligheid inrichtingen (Decree on External Safety of 
Installations): Article 1, 2, 4(1) and (3), Article 6(1) 
Regeling externe veiligheid inrichtingen (Regulation on External Safety of 
Installations): Article 2 and Annex 1, Table 1 
Safety Deal hittewerende bekleding op LPG-tankwagens (Safety Deal on Heat-
Resistant lining on LPG road tankers (Stcrt. 2016, No. 31448) 
Brief summary of the facts and the procedure in the main proceedings 
1 X lives in the vicinity of a service station where LPG is also sold. The sale of LPG 
was authorised by decision of 8 November 1977.  
2 On 30 March 1998, the College granted a licence for the installation pursuant to 
the Wet milieubeheer (Law on Environmental Management). That licence was 
subsequently amended a number of times.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-120/19 
 
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3 Since X was of the view that the sale of LPG in the vicinity of residential areas is 
unacceptable from a safety point of view (fire and explosion hazard), it requested 
the College on 5 May 2015 to withdraw the environmental licence for that service 
station, in so far as that licence allows the service station to sell LPG. The College 
rejected that request.  
4 Subsequently, by decision of 18 January 2016, the College laid down two 
additional conditions regarding the manner in which the service station in question 
is to be supplied. Those conditions mean that the road tankers of suppliers which 
supply the service station with LPG must be fitted with a heat-resistant lining and 
an improved filler hose. 
5 X lodged an appeal against the decision of 18 January 2016 with the Rechtbank 
(District Court) Noord-Holland. By judgment of 8 June 2017, that Rechtbank 
declared that appeal unfounded.  
6 X lodged an appeal against that judgment with the Raad van State (Council of 
State). 
Main submissions of the parties to the main proceedings  
7 X argues that the two additional conditions concerning the improved filler hose 
and the heat-resistant lining are not enforceable, as they are contrary to 
Article 5(1) of Directive 2008/68/EC and/or Article 34 TFEU. 
8 In the first place, she submits that the additional conditions contained in the 
environmental licence are contrary to Article 5(1) of Directive 
2008/68/EC. According to that provision, Member States may, on grounds of 
transport safety, apply more stringent provisions concerning the national transport 
of dangerous goods, unless it concerns construction requirements. The additional 
conditions are therefore (prohibited) construction requirements as referred to in 
Article 5(1) of Directive 2008/68/EC.  
9 In the second place, she argues that the decision of 18 January 2016 — in so far as 
that decision is not already contrary to Directive 2008/68/EC — is contrary to 
Article 34 TFEU. In her view, the two additional conditions constitute an obstacle 
to the free movement of goods contrary to Article 34 TFEU, which is not justified 
by one of the grounds set out in Article 36 TFEU or by a compelling reason in the 
general interest recognised in the case-law of the Court of Justice.  
10 As a result, compliance with the additional conditions cannot be enforced in law 
and the referring court should annul them.  
11 In the first place, the College argues that the additional conditions included in the 
environmental licence are not contrary to Article 5(1) of Directive 2008/68/EC.  
X 
 
5 
12 According to the College, the condition regarding the improved filler hose cannot 
be a ‘construction requirement’, because that condition does not relate to a 
construction. With regard to the condition regarding the heat-resistant lining, the 
College argues that that condition cannot be regarded as a ‘construction 
requirement’ within the meaning of Article 5(1) of Directive 2008/68/EC, because 
it imposes an obligation on the individual operator of the service station when 
unloading LPG and not on (the owner or operator of) the vehicle used for 
transporting LPG. The College also argues that the licensing condition in question 
is not a general (binding) rule, or at least that that condition — or that restrictive 
measure — only concerns one specific LPG service station and is only addressed 
to the holder of that licence. According to the College, the prohibition in 
Article 5(1) of Directive 2008/68/EC does not apply to such an individual case.  
Brief summary of the reasons for the referral 
First question referred 
13 As regards the condition relating to the improved filler hose, the referring court 
considers that that provision is not contrary to Directive 2008/68/EC and the rules 
on the internal market. It is of the view that the aforementioned condition can 
therefore also be retained. 
14 As regards the condition relating to the heat-resistant lining, the referring court 
states that that requirement is a measure of a constructive nature, such that the 
question arises whether this is a prohibited construction requirement within the 
meaning of Article 5(1) of Directive 2008/68/EC.  
15 In the first place, the referring court wishes to ascertain, in essence, whether a 
measure which in itself would have only minor — possibly even negligible — 
effects on the objectives pursued by the intended harmonisation of construction 
requirements, deprives Directive 2008/68/EC of its effectiveness (question 1A).  
16 First of all, the referring court observes that the licensing condition stipulating that 
only LPG road tankers fitted with a heat-resistant lining may supply LPG does not 
have a significantly different effect, as regards the supplying of an LPG service 
station which is subject to that licensing condition, than a condition which creates 
a direct obligation with regard to the LPG tanker or tank. That condition could 
therefore undermine the intended uniformity of rules with regard to the 
construction of LPG road tankers or tanks.  
17 Furthermore, the referring court recalls the case-law of the Court of Justice 
according to which the mere fact that a measure is not contained in a general 
binding rule does not affect its possible classification as a prohibited obstacle (see 
the judgments of 24 November 1982, Commission v Ireland, 249/81, 
EU:C:1982:402, paragraphs 27 and 28, and of 17 April 2007, AGM-COS.MET, 
C-470/03, EU:C:2007:213, paragraphs 59, 60 and 65). The referring court 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-120/19 
 
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questions whether the case-law of the Court of Justice on the free movement of 
goods — by analogy — applies to a case such as that at issue here, which 
concerns the interpretation of Article 5(1) of Directive 2008/68. It points out that 
that directive was adopted under Article 71 EC (now Article 91 TFEU) and not on 
the basis of Article 114 TFEU (and its predecessors), on the functioning of the 
internal market. According to the referring court, it is uncertain whether the term 
‘requirement’ in Article 5(1) of Directive 2008/68 should be given an equally 
broad interpretation as the term ‘obstacle’ in the case-law on the free movement of 
goods and the internal market directives.  
18 In the second place, the referring court wishes to ascertain whether it is relevant 
for the answer to that question that in 2016 a ‘Safety Deal hittewerende bekleding 
op LPG-autogastankwagens’ (‘Safety Deal on heat-resistant lining on LPG 
automotive-fuel road tankers’; ‘Safety Deal’) was concluded and a ‘Circulaire 
effectafstanden externe veiligheid LPG-tankstations voor besluiten met gevolgen 
voor de effecten van een ongeval’ (‘Circular on safety distances external safety 
LPG service stations for decisions with consequences for the effects of an 
accident’; ‘Circulaire’) was issued (question 1B).  
19 The referring court explains that the Safety Deal is an agreement between the 
Staatssecretaris van Infrastructuur en Milieu (State Secretary for Infrastructure 
and the Environment) (as an administrative authority and as a representative of the 
State) and the Vereniging Vloeibaar Gas (Liquefied Gas Association) (an 
organisation of companies operating in the Netherlands LPG industry). Under that 
Safety Deal it was agreed, inter alia, that the members of the Vereniging 
Vloeibaar Gas, when supplying LPG to service stations, will use tankers that are 
fitted with a heat-resistant lining. The Circulaire lays down a supplementary risk 
policy based on the assumption that LPG service stations will be supplied by 
means of road tankers fitted with a heat-resistant lining.  
20 The referring court observes that the reason why, at national level, the imposition, 
by virtue of a general binding rule, of a mandatory condition relating to a heat-
resistant lining was waived, is in fact due to the possibility of such a rule being 
contrary to Article 5(1) of Directive 2008/68. Instead — in order to ensure the 
greatest possible level of safety in the vicinity of LPG service stations — 
agreements were concluded with the market parties concerned about supplying 
LPG service stations using road tankers that have been fitted with a heat-resistant 
lining.  
Second question referred 
21 The referring court observes that, under Netherlands law, an affirmative answer to 
the first question referred for a preliminary ruling does not in itself result in the 
annulment of the licensing condition relating to the heat-resistant lining. That 
follows from Article 8:69a Awb, which contains the ‘relativity requirement’ and 
stipulates that ‘[the] bestuursrechter (administrative court)… will not [annul] a 
decision on the ground that it is contrary to a written or unwritten legal rule or a 
X 
 
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general legal principle, if that rule or principle manifestly does not serve to protect 
the interests of the person relying on it.’ According to the referring court, that 
requirement precludes a successful appeal by X. Article 5(1) of Directive 
2008/68/EC is not intended to protect the interest which X is defending in the 
present proceedings — namely her safety — but to ensure the proper functioning 
of the internal transport market.  
22 In the view of the referring court, this does not alter the fact that the College may 
not include unenforceable conditions in a licence and that X, as a person residing 
in the vicinity of the service station, has an interest in the enforceability of the 
licensing conditions. A licensing condition that has become legally 
unchallengeable can in principle be enforced under Netherlands law, unless it is 
clear — that is, without further investigation being required, or after only a 
summary examination — that that licensing condition should not have been laid 
down (the so-called ‘evidence criterion’).  
23 In the light of the foregoing, the referring court wishes to ascertain whether EU 
law, more particularly the case-law of the Court of Justice on national procedural 
autonomy, permits the national court to assume, in principle, the lawfulness of 
such a licensing condition, unless it is clearly contrary to higher law, including EU 
law, and, if so, whether EU law lays down (additional) conditions in relation to 
that exception (question 2A, first indent).  
24 The referring court emphasises in that regard that it is only by exception that a 
legally unchallengeable licensing condition will not be upheld because it is clear 
that it should not have been laid down. According to the referring court, this is 
illustrated by the fact that it has not yet issued any ruling accepting such an 
exception. It refers in that regard to the substantial importance that is attached to 
legal certainty. According to the referring court, the Court of Justice has also 
recognised the importance of legal certainty with regard to legally 
unchallengeable decisions (see, for example, the judgment of 13 January 2004, 
Kühne & Heitz, C-453/00, EU:C:2004:17).  
25 However, according to the referring court, it is also possible that, in the light of 
the judgment of 29 April 1999, Ciola (C-224/97, EU:C:1999:212) and the 
judgment of 6 April 2006, ED & F Man Sugar (C-274/04, EU:C:2006:233), EU 
law requires that the national court disregard the licensing condition in question 
because it is contrary to EU law (question 2A, second indent).  
26 In particular, the referring court observes that, although legal certainty has great 
significance, the effectiveness of EU law may be impeded if licensing conditions 
which are clearly contrary to EU law are nevertheless enforced because they have 
become legally unchallengeable. In that regard, the referring court states that the 
Court of Justice has ruled that there may be grounds for disregarding an obligation 
arising from a decision when assessing a decision imposing a sanction because of 
incompatibility with EU law (judgments of 29 April 1999, C- 224/97, Ciola, 
EU:C:1999:212, and of April 6, 2004, C-274/04, Man Sugar, EU:C:2006:233). 
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The referring court considers that it appears to follow from that case-law that the 
lawfulness of a licensing condition can be fully addressed in the context of the 
appeal against the enforcement decision, or at least that those judgments provide 
insufficient justification for the view that it is possible in principle to proceed on 
the assumption of the enforceability of a licensing condition that has become 
legally unchallengeable.  
27 Moreover, the referring court observes that it may be relevant that the cases cited 
in the previous paragraph involved decisions on sanctions of a punitive character. 
However, the Court of Justice has not explicitly identified this as a relevant 
circumstance. The referring court therefore finds that it is not clear from the 
judgments cited above how disregarding a (remedial) enforcement decision that is 
based on an earlier administrative act — which is already legally 
unchallengeable — relates to legal certainty.  
28 It therefore wishes to ascertain whether it is important whether the enforcement 
decision relates to a remedy or to a criminal charge (question 2B).