Opinion of the Advocate General — ECLI:EU:C:1998:38
Date: 1998-02-03
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Environment;Free movement of goods;Measures having equivalent effect;Approximation of laws;Quantitative restrictions;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Italy

summary payment order. It asked that court 
to order S. & T. to pay to it the amount 
stipulated in the contract plus incidental 
costs and fees and, in the alternative, to refer 
the matter to the Court of Justice for inter­
pretation and determination of the validity 
of the Regulation in the light of the Treaty. 
11. Taking the view that the outcome of the 
case depends on an assessment of the validity 
and the interpretation of Article 5 of the 
Regulation, the national court has referred 
the following questions to the Court for a 
preliminary ruling: 
'(1) Is Council Regulation N o 3093/94 to be 
interpreted (given that it must comply 
with Article 13 Or of the Treaty) as per­
mitting the free use of halons (that is, 
products which have a serious impact 
on the environment), subject only to 
limitations on their production or on 
their use by producers, and not on their 
importation, but as prohibiting abso­
lutely the use (and hence both the pro­
duction and the importation) of HCFCs 
(that is, of products which have little 11 — The 'management committee' procedure. 
I - 4307 
OPINION OF MR LÉGER — CASES C-284/95 AND C-341/95 
impact on the environment) for pur­
poses not stated in Article 5? 
(2) Is not the provision in point in Regu­
lation (EC) N o 3093/94 in substance a 
measure having equivalent effect to a 
quantitative restriction in so far as, in 
the absence of any of the grounds of 
justification under Article 36 of the 
Treaty, it restricts the free movement of 
a product throughout the Community? 
(3) Does not the conduct of the Commu­
nity and of its institutions, in adopting 
Regulation (EC) N o 3093/94, and par­
ticularly at the stages subsequent to its 
adoption, constitute action of a public-
law nature designed to reinforce the 
dominant position of certain operators, 
such action constituting in itself an 
instance of serious abuse for the pur­
poses of Article 86 of the Treaty? 
(4) May legislation for the protection of the 
environment — and particularly Regu­
lation (EC) N o 3093/94 — derogate (be 
interpreted as derogating) from the 
Community rules on competition (by 
thus permitting or facilitating restrictive 
agreements or the abuse of a dominant 
position) or are the prohibitions 
under those rules unconditional and not 
subject to derogation, precluding dero­
gations or restrictions, whether intro­
duced by the Community or by indi­
vidual Member States?' 
The context of Case C-341/95 
12. On 31 July 1995, the Pretore di Avez-
zano made an order against Bettati to pay to 
Safety Hi-Tech the sum corresponding to the 
selling price outstanding for the fire-fighting 
equipment supplied by it, also containing 
NAF S III, plus interest and costs. 
13. By a document lodged on 26 September 
1995, Bettati objected to that decision, con­
tending that the equipment purchased had 
been found, after conclusion of the contract, 
that is, on 12 May 1995, to be unsuitable and 
unusable, so as to justify termination of the 
contract pursuant to Article 1497 of the Ital­
ian Civil Code: the equipment in question 
was not marketable, its use having been pro­
hibited, as from 1 June 1995, by virtue of 
Article 5 of the Regulation. 
14. Safety Hi-Tech intervened in the pro­
ceedings, claiming that the Regulation was 
unlawful to the extent to which it prohibited 
the use of HCFCs for fire-fighting purposes, 
since it was in breach of Articles 3, 5, 30, 86, 
92 and 13 Or of the Treaty. 
I - 4308 
SAFETY HI-TECH v S. & T. 
15. The Pretore di Avezzano, doubting the 
validity of Article 5 of the Regulation, has 
asked the Court: 
'Whether or not, having regard to Articles 3, 
5, 30, 86, 92 and 130r of the Treaty of Rome, 
Article 5 of Council Regulation (EC) N o 
3093/94 of 15 December 1994, in so far as it 
unconditionally prohibits as from 1 June 
1995 the use of HCFCs in the fire-fighting 
sector, is valid in the light and on the basis of 
the considerations set out in the grounds of 
this judgment?' 
Preliminary observation 
16. The Commission and the Council con­
tend primarily that the question of the valid­
ity of the prohibitions of HCFCs provided 
for in Article 5 of the Regulation — and 
therefore the disposal of the cases before the 
national courts — does not depend on the 
validity of the restrictions on other 'con­
trolled substances' such as halons. Conse­
quently, they ask the Court to declare inad­
missible the questions which concern the 
body of rules applicable to those other 
substances. 
17. It is true that, as the Court has consis­
tently held, 12 under Article 177 of the Treaty 
the Court's function is to 'contribute to the 
administration of justice in the Member 
States and not to give opinions on general or 
hypothetical questions' 13 and that '[i]t is in 
the light of that function that the Court 
[considers] that it has no jurisdiction to give 
a preliminary ruling on a question raised 
before a national court where the interpreta­
tion of Community law has no connection 
whatever with the circumstances or purpose 
of the main proceedings'. 14 In other words, 
under Article 177 of the Treaty, the Court's 
function is to provide answers which are 
helpful for reaching a decision in the main 
proceedings. On that basis, the Court has 
declared certain questions referred to it 15 
inadmissible. 
18. However, the Court has equally consis­
tently pointed out 16 that '... Article 177 of 
the Treaty, which is based on a distinct sepa­
ration of functions between national courts 
and the Court of Justice, does not allow the 
latter to criticise the reasons for the refer­
ence. Consequently, a request from a 
national court may be rejected only if it is 
quite obvious that the interpretation of 
Community law or the examination of the 
12 — See, in particular, Case 16/65 Schwarze [1965] ECR 877 in 
which the Court ruled that '... judicial cooperation under 
Article 177 which requires the national court and the Court 
of Justice, both keeping within their respective jurisdiction, 
and with the aim of ensuring that Community law is 
applied in a unified manner, to make direct and complemen­
tary contributions to the working out of a decision' (para­
graph 7 of the judgment, emphasis added). 
13 — See, for example, Case C-412/93 Leclerc-Siplec [1995] ECR 
1-179, paragraph 12. 
14 — Ibid., paragraph 13. 
15 — For circumstances comparable to those of this case, see, for 
example, Case C-379/92 Peralta [1994] ECR 1-3453, para­
graph 8. 
16 — Starting with Case 13/68 Salgoil [1968] ECR 453. 
I - 4309 
OPINION OF MR LÉGER — CASES C-284/95 A N D C-341/95 
validity of a rule of Community law sought 
by that court bears no relation to the actual 
nature of the case or to the subject-matter of 
the main action'17 and also that '... it is for 
the Court, when faced with questions which 
are not framed in an appropriate manner or 
which go beyond its functions under Article 
177, to extract from all the information pro­
vided by the national court, in particular 
from the grounds of the decision referring 
the questions, the points of Community law 
which require interpretation or whose valid­
ity is at issue, having regard to the subject-
matter of the dispute'.18 
19. On that basis, the Court has thus refor­
mulated certain questions referred to it .19 
20. It is true that, in the disputes in the main 
proceedings, the sole point at issue is the 
exclusion from the internal market of fire-
fighting equipment containing HCFCs. That 
is why, if the questions submitted by the 
national courts concerned the validity of 
restrictions on 'controlled substances' other 
than HCFCs, the Court would not be able 
to answer them. However, I am of the opin­
ion that they refer to such other substances 
solely in order to illustrate their Une of rea­
soning and that, accordingly, their questions 
concern only the provisions relating to 
HCFCs. 
21. Analysis of the grounds of the orders for 
reference and of the actual wording of the 
requests from the Italian courts allows us to 
identify six questions on which a preliminary 
ruling is sought. 
22. As regards the first question, which is 
framed in identical terms in Cases C-284/95 
and C-341/95, the national courts cast doubt 
on the validity of the absolute exclusion from 
the internal market of HCFCs in the fire-
fighting sector, as provided for by Article 5 
of the Regulation, having regard to Article 
130r of the Treaty. 20 
23. According to those courts, the objective 
of protecting the environment, as it appears 
from Article 13 Or, presupposes a global 
approach to protection of the ecosystem 
which implies taking into account, for each 
harmful substance, certainly its ozone-
depleting potential (hereinafter O D P ' ) , but 
also its atmospheric life-time (hereinafter 
17 — Case 126/80 Sidónia [1981] ECR 1563, paragraph 6, empha­
sis added. 
18 — Case 35/85 Ttssier [1986] ECR 1207, paragraph 9, emphasis 
added. Settled case-law since Case 13/61 De Geus [1962] 
ECR 45. 
19 — See, in particular, Ttsríer, cited above, paragraph 10. 
20 — In Case C-284/95, see, in the third paragraph of the 
grounds of the order for reference, the phrase 'it is apparent 
that efforts to protect the environment must..." and the ref­
erence to Article 130r of the Treaty in the first question 
submitted. Similarly, in Case C-341/95, see paragraph 2.1, 
sixth subparagraph, of the order for reference. 
I -4310 
SAFETY HI-TECH v S. & T. 
'ALT') and, finally, its global warming poten­
tial (hereinafter 'GWP'). 21 Those three 
parameters, expressed as ODP, ALT and 
GWP values, are the subject of regular scien­
tific estimates. Very broadly reproducing the 
arguments put forward by Safety Hi-Tech, 22 
the national courts consider that, by taking 
into account the ODP value alone, and 
therefore focusing only on protection of the 
ozone layer, the Regulation diverges from 
the aims of Article 130r of the Treaty and 
that the legislature's action is ultra vires. In 
the same way,23 they contend that that 
exclusion is disproportionate since the legis­
lature has not adopted such a sanction 
against, in particular, similar equipment con­
taining gases even more harmful to the envi­
ronment (for example, halons). 24 
24. Secondly, the national courts are uncer­
tain whether, in the event that Article 5 of 
the Regulation cannot be justified either for 
reasons connected with protection of the 
environment or by Article 36 of the Treaty 
— a question raised in particular by the Giu­
dice di Pace, Genoa —, it should be consid­
ered invalid in the light of Article 30 of the 
Treaty 25 (second question). 
25. In addition, they wish to know whether, 
in view of the factual information provided 
by Safety Hi-Tech, the Community's legisla­
tive conduct constitutes action of a public-
law nature having the effect of favouring a 
restrictive agreement or an abuse of a domi­
nant position by the producers and sellers of 
other controlled substances such as, for 
example, halons,26 which is prohibited by 
the Treaty (third question). 
26. Reproducing only the arguments put 
forward by Safety Hi-Tech, they assert that 
Article 5 of the Regulation might conflict 
with Articles 86 and 92 of the Treaty since its 
practical effect is to reinforce the dominant 
position of undertakings using halons and, in 
particular, the British Williams Holdings 
group, which holds more than 40% of the 
European market, and the Silvani company 
which represents the aforementioned group 
in Italy and controls more than 80% of the 
Italian market. 
27. In the alternative, if that third question 
is answered in the affirmative, in Case 
C-284/95, the Giudice di Pace, Genoa, asks 
the Court whether such conduct may be jus­
tified for reasons connected with environ­
mental protection (fourth question). 
21 — Case C-284/95, third paragraph of the order for reference, 
and Case C-341/95, paragraph 2.1, third, fourth and fifth 
subparagraphs, of the order for reference. 
22 — See points 59 to 61 of this Opinion. 
23 — Ibid., points 80 and 81. 
24 — See, in Case C-284/95, the third paragraph of the order for 
reference and, in Case C-341/95, paragraph 2.1, third, 
fourth and fifth subparagraphs, of the order for reference. 
25 — Case C-284/95, fourth paragraph of the order for reference: 
'In the light of the above considerations, it cannot be ruled 
out that the limitation ... [is contrary to Article 30 of the 
Treaty]', and Case C-341/95, paragraph 2.2 of the order for 
reference. 
26 — Case C-284/95, fifth paragraph of the order for reference, 
and Case C-341/95, paragraph 2.3 of the order for refer­
ence. 
I -4311 
OPINION OF MR LÉGER — CASES C-284/95 AND C-341/95 
28. In addition, in Case C-341/95, the Pre­
tura Circondariale di Avezzano asks the 
Court whether Article 5 of the Regulation is 
compatible with Articles 3 and 5 of the 
Treaty (fifth question). 
29. Finally, the answer to the questions 
raised by the Giudice di Pace, Genoa, pre­
supposes that the Court confirms that, as the 
national court believes is the case, Article 5 
of the Regulation must indeed be interpreted 
as meaning that it absolutely excludes from 
the internal market HCFCs used in the fire-
fighting sector (sixth question). 
30. Since consideration of the questions 
raised by the Giudice di Pace, Genoa, is 
dependent on the answer to the sixth ques­
tion, I shall examine the latter first. I shall 
then explain why the third question submit­
ted by the two national courts seems to me 
to be inadmissible. Since the question sub­
mitted in the alternative by the Giudice di 
Pace, Genoa, — the fourth question — is 
dependent on the answer given to the first 
and third questions, I shall then examine the 
first question before answering the fourth. I 
shall then conclude my examination by con­
sidering the second and fifth questions. 
The answers to the questions referred for a 
preliminary ruling 
The sixth question (interpretation of Article 5 
of the Regulation) 
31. The Giudice di Pace, Genoa, is of the 
opinion that Article 5 of the Regulation must 
be interpreted as meaning that it has the 
effect of prohibiting absolutely the use, pro­
duction, importation and placing on the mar­
ket of HCFCs in the fire-fighting sector. 
32. The Council and the Commission point 
out that the prohibitions affecting HCFCs 
come into effect gradually and are not abso­
lute since Article 5(1) to (4) of the Regu­
lation provides for a number of exceptions. 
In addition, according to the Commission, 
Article 4(8) of the Regulation authorises fur­
ther derogations. 
33. As a preliminary point, it should be 
noted that, as the Court has consistently 
held, the European Community must respect 
international law in the exercise of its pow­
ers. 27 Consequently, Article 5 of the Regu­
lation must be interpreted in the light of the 
27 — Case C-286/90 Poulsen and Diva Navigation [1992] ECR 
I-6019, paragraph 9. See also the judgment in Case 
C-405/92 Mondiet [1993] ECR I-6133, paragraph 12, and, 
by contrary inference, Peralta, cited above, paragraph 16. 
I -4312 
SAFETY HI-TECH v S. & T. 
relevant rules of the Vienna Convention, the 
Montreal Protocol and the second amend­
ment, to which the Community is a party. 
34. Prior to the adoption of the second 
amendment, 28 the use of HCFCs was not 
controlled. 2 9 Those substances are now 
included in Group I of Annex C to the 
Montreal Protocol. Under the second 
amendment, the use of HCFCs is not pro­
hibited, but only limited. 30 However, Article 
2(3) of the Vienna Convention allows the '... 
Parties to adopt, in accordance with interna­
tional law, domestic measures additional to 
those referred to in paragraphs 1 and 2 above 
... provided that these measures are not 
incompatible with their obligations under 
this Convention'. 
35. The obligations of the contracting parties 
are laid down in Articles 2(1) and 3(1) of the 
Vienna Convention. 
36. Article 2(1) of the Vienna Convention 
provides that the parties undertake to take '... 
appropriate measures ... to protect human 
health and the environment against adverse 
effects resulting or likely to result from 
human activities which modify or are likely 
to modify the ozone layer'. 
37. To that end, Article 2(2)(b) of that con­
vention states that the parties 'shall ... adopt 
appropriate legislative or administrative mea­
sures ... to control, limit, reduce or prevent 
human activities under their jurisdiction or 
control should it be found that these activi­
ties have or are likely to have adverse effects 
resulting from modification or likely modifi­
cation of the ozone layer'. 
38. Under Article 3(1) of the same conven­
tion, they undertake 'to initiate and cooper­
ate in, directly or through competent inter­
national bodies, the conduct of research and 
scientific assessments on: 
(f) alternative substances and technologies'. 
28 — See, in particular, Article 1 of, and Annex A to, the Mont­
real Protocol. 
29 — See, in particular, Article 1(A) and (EE) of the second 
amendment. 
30 — Ibid., Article 1(G) and (Q). 
I -4313 
OPINION OF MR LÉGER — CASES C-284/95 AND C-341/95 
39. Under Article 1(4) of the Vienna Con­
vention 'alternative substances' means 
substances which reduce, eliminate or avoid 
adverse effects on the ozone layer. 
40. Accordingly, it follows from a combined 
reading of Articles 1(4), 2(1), 2(2)(b), 2(3) 
and 3(l)(f) of the Vienna Convention that 
the parties to that convention are allowed to 
adopt measures more stringent than those 
provided for by the convention, provided 
that they are justified by the intention to 
require the use of substitutes with less 
adverse effects on the ozone layer. 
41. It is clear from a careful reading of 
Article 5(1) to Article 5(4), first subpara­
graph, of the Regulation that the use of 
HCFCs in the fire-fighting sector has been 
prohibited since 1 June 1995. 
42. The first sentence of Article 5(1) of the 
Regulation lays down the principle of prohi­
bition of the use of HCFCs, subject to cer­
tain exceptions specified in the various 
indents of Article 5(1) to (4). However, the 
use of HCFCs in the fire-fighting sector is 
not included among those exceptions. 
43. In addition, it should be noted that 
Article 5(5) provides: 'The importing, release 
for free circulation and placing on the mar­
ket of equipment for which a use restriction 
is in force under this article shall be prohib­
ited from the date on which that use restric­
tion comes into force'. Since the use of 
HCFCs in the fire-fighting sector has been 
prohibited since 1 June 1995, it must be con­
cluded that the other prohibitions imposed 
by Article 5(5) also enter into force on the 
same date. 
44. Finally, the production of controlled 
substances is strictly limited and Article 3 
lays down the manner in which production 
of those substances is to be controlled. How­
ever, it is clear from the actual wording of 
Article 3 of the Regulation that producers of 
HCFCs are given no opportunity whatso­
ever of scaling down their production. It 
must therefore be concluded that the pro­
duction of all HCFCs is prohibited. 
45. Nevertheless, as the Commission points 
out, the principle of the absolute prohibition 
of HCFCs has been tempered in, among 
others, the sector affected by Article 4(8) of 
the Regulation. That provision lays down the 
principle that the supply of HCFCs is to be 
limited to a certain quantity — and not pro­
hibited — provided that they are placed on 
the market or used by producers or import­
ers for their own account. In addition, it 
specifies both the method adopted for the 
calculation of the permitted quantity and the 
procedure for assigning that quantity to the 
I -4314 
SAFETY HI-TECH v S. & T. 
persons concerned. 31 However, in the light 
of the facts described by the national court, 
that provision does not appear to be relevant 
at present. It should be borne in mind that, 
in the main proceedings, the products at 
issue were not intended for Safety Hi-Tech, a 
producer of HCFCs, but were sold to third 
parties and that those third parties do not 
seem to have imported those goods for their 
own account. 
46. It follows from the foregoing that 
Article 5 of the Regulation must be inter­
preted as meaning that the use, placing on 
the market, production and importation of 
HCFCs have been prohibited in the fire-
fighting sector since 1 June 1995. 
47. I shall now examine the compatibility of 
the measures in question with the Treaty. 
The third question (compatibility of Article 5 
of the Regulation with Articles 86 and 92 of 
the Treaty) 
48. The national courts wish to know 
whether, in the light of the factual infor­
mation provided by Safety Hi-Tech, Article 
5 of the Regulation has the effect of favour­
ing a restrictive agreement or an abuse of 
a dominant position by the producers and 
sellers of other controlled substances such as, 
for example, halon. 
49. It must be observed that the national 
courts merely allude in very general terms to 
the provisions of the Treaty without specify­
ing the grounds on which the prohibition 
referred to in Article 5 of the Regulation 
might be invalid. The national courts also fail 
to provide any detail which would enable me 
to undertake a useful analysis. In particular, 
the information needed to identify the rel­
evant market or assess the effect of the pro­
hibition at issue on the operation of that 
market is lacking. 32 
50. The Court has consistently held that '... 
the need to provide an interpretation of 
Community law which will be of use to the 
national court makes it necessary that the 
national court define the factual and legisla­
tive context of the questions it is asking or, at 
the very least, explain the factual circum­
stances on which those questions are 
based'. 33 
31 — Establishment of a quota system. 
32 — A fact acknowledged by Safety Hi-Tech at the hearing. 
33 — Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsi-
cabruzzo and Others [1993] ECR I-393, paragraph 5. For 
an even more recent example, see also the order in Case 
C-66/97 Banco de Fomento e Exterior [1997] ECR I-3757, 
paragraph 7. 
I -4315 
OPINION OF MR LÉGER — CASES C-284/95 AND C-341/95 
51. Accordingly, I can only propose that the 
Court should declare that question inadmis­
sible. 
The first question (compatibility of Article 5 
of the Regulation with Article 130r of the 
Treaty) 
52. Under the Maastricht Treaty, protection 
of the environment became a priority. Con­
sequently, in the interests of effectiveness in 
particular, legislation based on Article 13 Or is 
adopted by a qualified majority and no 
longer unanimously. 
53. Articles 130r and 3b of the Treaty 
specify the tasks and objectives assigned to 
the Community in this context. They make 
Community competence subject to adher­
ence to four objectives, six principles and 
four criteria. 
54. The objectives are set out in Article 
130r(l) of the Treaty. They are preserving, 
protecting and improving the quality of the 
environment, protecting human health, pru­
dent and rational utilisation of natural 
resources, and promoting measures at inter­
national level to deal with regional or world­
wide environmental problems. It should be 
noted that the reference to 'worldwide envi­
ronmental problems' was inserted by the 
Maastricht Treaty. This new objective 
assigned to Article 13 Or of the Treaty specifi­
cally applies to protection of the ozone layer. 
55. The principles listed in Article 130r(2) 
and (4) and in the second and third para­
graphs of Article 3b of the Treaty are those 
of precaution and preventive action, rectifi­
cation — at source as a priority — of envi­
ronmental damage, 'polluter pays', propor­
tionality, subsidiarity and, finally, 
integration. The latter principle, under which 
environmental requirements are regarded as 
a component of the Community's other 
policies, underlines the importance which 
must now be attached to the environment in 
the context of other Community policies 
embarked upon. That principle has not in 
fact been applied for the benefit of any other 
Community policy. 
56. The criteria laid down by Article 130r(3) 
of the Treaty are those of available scientific 
and technical data, environmental conditions 
in the various regions of the Community, the 
potential benefits and costs of action or lack 
of action, the economic and social develop­
ment of the Community as a whole and the 
balanced development of its regions. 
I -4316 
SAFETY HI-TECH v S. & T. 
57. Safety Hi-Tech does not dispute the legal 
basis on which the Community legislature 
adopted the Regulation, 3 4 but maintains that 
it fails to adhere to the objective pursued by 
Article 13 Or of the Treaty. In addition, it is in 
breach of the principle of proportionality. 
The purpose of Article 130r of the Treaty 
58. Safety Hi-Tech argues that the Regu­
lation would have been justified only if it 
had enabled absolute priority to be given to 
the highest possible level of environmental 
protection, 3 5 as required by Article 130r of 
the Treaty. 
59. According to Safety Hi-Tech, implemen­
tation of the Community's environmental 
policy requires that account be taken of all 
the scientific and technical data currently 
available. It also presupposes a global 
approach to protection of the ecosystem, 
which implies that the ODP, ALT and GWP 
values of substances harmful to the environ­
ment should be considered together. That 
method of assessment is, moreover, advo­
cated by the United Nations Technology and 
Economic Assessment Panel. 
60. By merely decreeing measures to combat 
thinning of the ozone layer without adopt­
ing, as it should have done in the same legis­
lation, measures to combat global warming, 
the Community legislature was in breach of 
Article 130r of the Treaty. Basing its argu­
ment on the Court's case-law, 3 6 Safety 
Hi-Tech concludes that the legislature mis­
used its powers. The Italian Government 
concurs with that view. 
61. The Council, for its part, submits that 
Articles 13 Or and 130s of the Treaty confer 
on it a discretion in choosing its environ­
mental policy and that consequently the 
decision to deal as a priority with the risk 
posed to the environment by the destruction 
of the ozone layer rather than with that of 
global warming is not actionable. Moreover, 
it points out that there is provision for deal­
ing with the problem of global warming 
under international agreements on climate 
change. 3 7 
34 — With regard to the choice of the legal basis in environmen­
tal action taken by the Community legislature, see, in par­
ticular, Cases C-300/89 Commission ν Council [1991] ECR 
I-2867 and C-155/91 Commission ν Council [1993] ECR 
1-939. See also the article by X. Debroux, 'Le choix de la 
base juridique dans l'action environnementale de l'Union 
européenne', in Cahiers de droit européen, 1995, Nos 3-4, 
p. 256. 
35 — See, in particular, paragraph 2(a), second subparagraph, of 
Safety Hi-Tech's observations in Case C-284/95. 
36 — Case C-323/88 Sermes [1990] ECR I-3027, paragraph 33. 
37 — Council Decision 94/69/EC of 15 December 1993 concern­
ing the conclusion of the United Nations Framework Con­
vention on Climate Change (OJ 1994 L 33, p. 11). A pro­
tocol to that convention, aimed at reducing emissions of 
greenhouse gases, was adopted on 11 December 1997 at the 
end of the conference on climate change, in which the 
Community and the individual Member States participated 
(Agence Europe N o 7121 of 14 December 1997). 
I -4317 
OPINION OF MR LÉGER — CASES C-284/95 AND C-341/95 
62. In addition, the Council — supported on 
this point by the Commission — considers 
that, in the context of a freely determined 
environmental policy, Articles 130s and 130r 
of the Treaty confer on it a wide discretion 
as to the choice of measures to be adopted in 
order to implement such a policy. Accord­
ingly, only the manifestly inappropriate char­
acter of such measures in relation to the 
objective pursued could affect their lawful­
ness. 
63. The first ground of challenge relied on 
by Safety Hi-Tech necessitates determining 
the margin of discretion available to the 
Community legislature within the scope of 
the legislative authority conferred on it by 
Articles 130s and 13 Or of the Treaty. 
64. I share the view held by the Council and 
the Commission for essentially four reasons. 
65. First, the objectives established in Article 
130r(l) of the Treaty are formulated as fol­
lows: 'Community policy on the environ­
ment shall contribute to pursuit of the fol­
lowing objectives: 
— preserving, protecting and improving the 
quality of the environment; 
— protecting human health; 
— prudent and rational utilisation of natural 
resources; 
— promoting measures at international level 
to deal with worldwide or regional envi­
ronmental problems'. 
In my view, the only possible inference to be 
drawn from those words is that the Commu­
nity's policy on environmental protection is 
subject to precise limits which must be 
strictly adhered to since the function of that 
policy is to 'contribute to [the] pursuit' of 
objectives stated in general terms. 
66. I do not think that the Treaty has speci­
fied the extent of its requirements in this 
connection or that it is necessary to interpret 
Article 130r(2) of the Treaty, which provides 
that 'Community policy on the environment 
shall aim at a high level of protection ...', to 
that effect. 
67. Those words are incorporated in Article 
130r(2) of the Treaty, which is devoted to the 
I -4318 
SAFETY HI-TECH v S. & T. 
principles by which the Community legisla­
ture is to be guided in pursuing its environ­
mental policy and must therefore be inter­
preted as a recommendation addressed to the 
Community legislature, under which the lat­
ter is called upon to ensure that the policy 
already being pursued is constantly 
improved. The Community's environmental 
policy is therefore necessarily a long-term 
process. 
68. Second, I do not think that the substitu­
tion by Article 130r of the EC Treaty of the 
phrase 'Community policy' for the phrase 
'action by the Community' in Article 130r of 
the EEC Treaty is neutral. 38 
69. The term 'policy', as opposed to 'action', 
presupposes the taking into account of a set 
of facts, practices or actions. That is why, 
although the choice of a specific action can 
sometimes prove difficult, the choice of a 
policy necessarily implies the assessment of 
complex and generally conflicting situations, 
which confirms the analysis of the actual 
content of Article 130r of the Treaty. 
70. Article 130r(2) of the Treaty thus lays 
down the principle that the Community 
must observe the principle of preventive 
action in the context of that policy. The first 
subparagraph of that article therefore 
requires the Community legislature to assess 
the future effects of legislation which it 
introduces. 
71. Moreover, Article 130r(3) specifically 
provides that, in preparing that policy, the 
Community is to take account of a series of 
parameters, in particular the available scien­
tific and technical data, as well as the poten­
tial benefits and costs of action or lack of 
action. 
72. It is obvious that observance of that 
principle and those criteria necessarily pre­
supposes that the Community legislature 
will assess complex situations, a process 
which consists in weighing the respective 
merits and drawbacks of any given action. 
73. However, faced with such situations, the 
Court has always refrained from substituting 
its own assessment for that of the Commu­
nity legislature as regards the appropriate­
ness of measures adopted 39 unless the appli­
cant adduces proof that, in the light of the 
information provided at the time of the 
38 — In support of this, see Cloos, J., Reinesch, G., Vignes, D. 
and Weyland, J.: Le traité de Maastricht: Genèse, analyse, 
commentaires, Bruylant, 1993, p. 320, paragraph 1, second 
subparagraph. 
39 — See, in particular, Case 29/77 Roquette Frères [1977] ECR 
1835, paragraphs 19 and 20. 
I -4319 
OPINION OF MR LÉGER — CASES C-284/95 A N D C-341/95 
adoption of the rules in question, 40 the leg­
islature committed a manifest error of assess­
ment, a misuse of powers, 41 or manifestly 
exceeded the limits of its discretion. 42 
74. Furthermore, it is clear from Article 130t 
of the Treaty that: 'The protective measures 
adopted pursuant to Article 130s shall not 
prevent any Member State from maintaining 
or introducing more stringent protective 
measures. Such measures must be compatible 
with this Treaty. They shall be notified to the 
Commission.' 
75. It undoubtedly follows from that provi­
sion that the purpose of Article 130r of the 
Treaty is not to ensure absolute, immediate 
and global protection of the environment. 
76. Finally, in Peralta, cited above, the 
Court has already held 43 that: 
'Article 130r is confined to defining the 
general objectives of the Community in the 
matter of the environment. Responsibility 
for deciding what action is to be taken is 
conferred on the Council by Article 130s. 
Moreover, Article 130t states that the protec­
tive measures adopted pursuant to Article 
130s are not to prevent any Member State 
from maintaining or introducing more strin­
gent protective measures compatible with the 
Treaty'. 
77. It follows that the Treaty does not 
require the Community legislature to imple­
ment immediately, in relation to the environ­
ment, a policy under which the level of pro­
tection is the highest possible, and that the 
purpose of a regulation which consists in 
improving appreciably the protection of the 
environment within the Community is per­
fectly consistent with the purpose of Article 
13 Or of the Treaty. 44 
78. However, the aim of the Regulation, as 
we have seen, 45 is to phase out progressively, 
in the light of available scientific and techni­
cal evidence and of the existence of substi­
tutes — substances less harmful and capable 
of being employed for the same uses —, 
substances which deplete the ozone layer 
and, in accordance with the Vienna Conven­
tion, to introduce control measures more 
40 — See, in particular, Joined Cases C-267/88 to C-285/88 Wui-
dart and Others [1990] ECR I-435, paragraph 14, and Case 
C-280/93 Germany ν Council [1994] ECR 1-4973, para­
graph 90. 
41 — See, in particular, the Sermes judgment, cited above. 
42 — See, for example, as regards health policy, Case C-84/94 
United Kingdom ν Council [1996] ECR I-5755, paragraph 
58; as regards economic policy, Case C-233/94 Germany ν 
Parliament and Council [1997] ECR I-2405, paragraphs 55 
and 56, and, finally, as regards the common agricultural 
policy, Case 23/75 Rey Soda [1975] ECR 1279, paragraph 
11. 
43 — Paragraph 57. 
44 — See, by analogy, Germany ν Parliament and Council, cited 
above, paragraph 48, in which the Court acknowledged that 
Article 3(s) of the Treaty, which provides that 'the activities 
of the Community shall include, as provided in this Treaty 
and in accordance with the timetable set out therein ... a 
contribution to the strengthening of consumer protection', 
cannot be interpreted as obliging the Community legisla­
ture to 'to adopt the highest level of protection which can 
be found in a particular Member State'. 
45 — See point 3 of this Opinion. 
I - 4320 
SAFETY HI-TECH v S. & T. 
severe than those of the second amendment. 
The Regulation therefore appreciably 
improves protection of the ozone layer 
within the Community. 
79. Consequently, the purpose of the regu­
lation is perfectly compatible with the objec­
tives pursued by Article 130r of the Treaty. 
The compatibility of Article 5 of the Regu­
lation with the principle of proportionality 
80. Accepting that Article 130r of the Treaty 
does not require the Community legislature 
to adopt only legislation under which the 
highest possible level of environmental pro­
tection can be ensured and that the legisla­
ture is free to choose whatever policy for 
protection of the environment it intends to 
pursue (in this case, the protection of the 
ozone layer), Safety Hi-Tech maintains that 
Article 5 of the Regulation does not provide 
a means of achieving the objective thus con­
strued. 
81. Safety Hi-Tech bases that argument on 
the view that that provision prohibits the use 
of HCFCs in the fire-fighting sector, 
whereas other substances with a consider­
ably higher ODP value are permitted. That is 
the case with halons, which are also used in 
the fire-fighting sector, or an HCFC-based 
product such as 141b, which is used as a sol­
vent. 
82. The Council and the Commission con­
tend that the implementation of a policy to 
protect the ozone layer necessarily involves 
controlling only those substances which 
deplete it. That is why substances with a 
zero ODP value, such as 'HFCs ' and TFCs ' , 
for example, do not come within the scope 
of the Regulation. 
83. In addition, they argue that the principle 
of the existence or non-existence, from a sci­
entific point of view, at the time of the adop­
tion of the Regulation, of adequate substi­
tutes, entailing less significant depletion of 
the ozone layer for the same type of use, jus­
tifies the measures adopted by the Regu­
lation. 
84. They claim that that principle has been 
strictly observed. Thus, the absolute prohibi­
tion on using HCFCs in the fire-fighting 
sector is justified by the fact that there 
already existed, at the time of the adoption 
of the Regulation, substitutes with an ODP 
I - 4321 
OPINION OF MR LÉGER — CASES C-284/95 A N D C-341/95 
value close to zero, such as water, powder 
and inert gases, for the same type of use. 46 
85. In the case of halons, on the other hand, 
they point out that, at the time of the adop­
tion of the Regulation, no appropriate sub­
stitutes — namely, substances with the same 
fire-extinguishing capacity and equally mild 
toxic effects for humans — in the context of 
so-called 'essential' uses 47 — that is, extin­
guishing fires in confined spaces such as cars, 
operating theatres, aircraft or submarines — 
and, therefore, not even HCFCs, existed. 48 
The Council and the Commission stress, 
moreover, that that is still the case. 49 
86. Consequently, they maintain that the 
measures adopted by the Regulation are fully 
in conformity with the principle of propor­
tionality. 
87. In the context of its environmental 
policy based on Articles 130r and 130s of the 
Treaty, the Community is expressly obliged, 
by virtue of the principle of proportionality 
set out in the third paragraph of Article 3b 
of the Treaty, not to take any action beyond 
what is necessary and appropriate to achieve 
the objectives assigned to it. 
88. It should be borne in mind that that gen­
eral principle of Community law requires 
that acts of Community institutions do not 
go beyond what is appropriate and necessary 
for the purpose of achieving the objectives 
legitimately pursued by the provisions in 
question, it being understood that, where a 
choice arises between several appropriate 
measures, recourse should be had to the least 
restrictive and that the disadvantages caused 
must not be disproportionate to the desired 
objective.50 
89. In response to the complaint made by 
Safety Hi-Tech, it is necessary to ascertain 
whether, in the light of the scientific and 
technical data supplied to the Council at the 
time of adoption of the Regulation, the 
measure at issue — which consists in exclud­
ing from the internal market fire-fighting 
equipment containing HCFCs on account of 
the existence of substitutes which are less 
harmful to the ozone layer, are equally effec­
tive and have an O D P value close to zero — 
is manifestly inappropriate to the objective 
pursued by the Community legislature, 
whether it is necessary for the purpose of 
achieving that objective and whether 
46 — The Danish, German, Spanish, Austrian, Portuguese, Finn­
ish and Swedish Governments also maintain that the use of 
HCFCs in the fire-fighting sector is not justified scientifi­
cally. 
47 — Under Commission Decision 98/67/EC of 16 December 
1997 on the allocation of quantities of controlled substances 
allowed for essential uses in the Community in 1998 under 
Council Regulation (EC) N o 3093/94 (OJ 1998 L 10, p. 31), 
a use of a controlled substance should qualify as essential 
only if it is necessary for health or safety, or if it is of criti­
cal importance for the functioning of society and there are 
no technically and economically feasible alternatives or sub­
stitutes that are acceptable from the standpoint of environ­
ment and health. 
48 — To that effect, see the observations of the Danish, German, 
Spanish, Austrian, Portuguese, Finnish and Swedish Gov­
ernments. 
49 — Ibid. 
50 — See, for example, Germany v Parliament and Council, cited 
above, paragraph 54. 
I - 4322 
SAFETY HI-TECH v S. & T. 
recourse to other, less restrictive means was 
possible. 
90. In my view, such an examination does 
not involve finding an answer to a scientific 
or technical problem. Not only do I not have 
the results of the expert analyses carried out 
at the time of the adoption of the provision 
at issue and submitted to the Council, 51 but, 
even if those data had been made available to 
me, I doubt whether I would be competent 
to resolve such problems without the 
enlightened assistance of experts. My task is 
to verify, in the light of the avaiUble proce­
dural documents, that the legislature did not 
make any gross and obvious errors. 
91. It is apparent — and at any event it has 
not been disputed either by all the govern­
ments which have lodged observations or 
even by Safety Hi-Tech or the Italian Gov­
ernment — from an examination of those 
documents that, in order to ensure protec­
tion of the ozone layer in the light of the sci­
entific data available at the time of adoption 
of the Regulation: 
— controlling only the substances likely to 
deplete the ozone layer was the appropri­
ate means of protecting it; 
— taking into account only the ODP value 
of those substances appeared suitable for 
that purpose; 
— HCFCs were rightly regarded as 
substances harmful to the ozone layer; 
— HCFCs in the fire-fighting sector could 
be replaced by much less harmful 
substances. 
92. Furthermore, virtually everyone, with 
the exception of Safety Hi-Tech, agrees that 
HCFCs are not better suited than halons for 
employment in essential uses. 
93. It follows that it is not manifestly appar­
ent that the measure at issue was adopted 'in 
an inappropriate and unreasonable manner' 
and that, in conclusion, Article 5 of the 
Regulation complies with Article 13 Or of the 
Treaty. 
51 — In this connection, it should be noted that the tables of 
ODP values of controlled substances such as halons and 
NAF S III, which were submitted to the Court, do not 
specify on what date those results were obtained. They arc 
therefore unusable. 
I - 4323 
OPINION OF MR LÉGER — CASES C-284/95 AND C-341/95 
The fourth question 
94. By this question, the Giudice di Pace, 
Genoa, asks the Court to rule whether a 
regulation based on Article 130r of the 
Treaty, such as the regulation at issue, can 
justify exceptions to Articles 86 and 92 of 
the Treaty and, if so, on what conditions. 
95. In so far as I do not consider myself able 
to answer the question concerning the com­
patibility of Article 5 of the Regulation with 
Articles 86 and 92 of the Treaty (third ques­
tion) 52 in the absence of sufficient available 
factual data and since, as I have pointed 
out, 53 under Article 177 of the Treaty the 
Court's function is merely to provide 
answers conducive to a decision in the main 
proceedings and not to formulate opinions 
on general or hypothetical questions, I pro­
pose that the Court declare this question 
inadmissible. 
The second question (compatibility of Article 
5 of the Regulation with Article 30 of the 
Treaty) 
96. I do not think that the answer to this 
question need go into any great detail. 
97. Reference need merely be made to 
settled case-law: 
'The Court has already held in its judgment 
of 7 February 1985 in Case 240/83 Associa­
tion de défense des brûleurs d'huiles usagées 
[1985] ECR 531 that the protection of the 
environment is "one of the Community's 
essential objectives", which may as such jus­
tify certain limitations of the principle of the 
free movement of goods. That view is more­
over confirmed by the Single European Act. 
In view of the foregoing, it must therefore be 
stated that the protection of the environment 
52 — See points 48 to 50 of this Opinion. 
53 — Ibid., point 17. 
I - 4324 
SAFETY HI-TECH v S. & T. 
is a mandatory requirement which may limit 
the application of Article 30 of the Treaty'.54 
98. The Court made it clear that restrictions 
based on the mandatory requirement of pro­
tection of the environment which are 
imposed on the free movement of goods 
must be necessary to achieve the objectives 
pursued by those rules. 55 In other words, 
the principle of proportionality must be 
observed. 
99. Accordingly, even before the adoption of 
Article 130r of the EEC Treaty, although 
Articles 2 and 3 of the original EEC Treaty 
did not expressly mention protection of the 
environment as one of the Community's 
express objectives, the Court implicitly 
acknowledged it as such in its judgment in 
Association de défense des brûleurs d'huiles 
usagées, cited above. 56 
100. Moreover, after the entry into force, on 
1 July 1987, of the Single European Act, the 
Court held, in paragraph 21 of its judgment 
in Case C-155/91 Commission ν Council, 
cited above, that Article 130s of the EEC 
Treaty constituted the correct legal basis of a 
directive aimed essentially at protecting the 
environment, and necessarily confirmed, in 
paragraph 13 of that judgment, that '... 
imperative requirements relating to the pro­
tection of the environment justify exceptions 
to the free movement of waste'. 5 7 
101. There is therefore all the more reason 
to conclude, since the entry into force of the 
Maastricht Treaty which attaches even more 
importance to the objective of protecting the 
environment, that the Court's answer should 
be the same on this occasion. In so far as it is 
proportional to the objective pursued, the 
Regulation, which is based on Article 13 Or of 
the EC Treaty, authorises the Community 
legislature to derogate from the principle of 
free movement of goods on account of the 
imperative requirement of protection of the 
environment. 
102. Article 3b of the Treaty specifically 
requires any action by the Community not 
to go beyond 'what is necessary to achieve 
the objectives of this Treaty', that is, to 
observe the principle of proportionality. 
103. It is clear in this case that fire-
extinguishers are goods and that, by exclud­
ing them completely from the internal mar­
ket, Article 5 of the Regulation inevitably 
54 — Case 302/86 Commission ν Denmark [1988] ECR 4607, 
paragraphs 8 and 9, emphasis added. See also the article by 
N. De Sadclccr, 'La question du choix juridique des actes 
communautaires ayant trait à la protection de 
l'environnement: symbiose ou opposition entre la politique 
d'établissement du marché interne de l'environnement?', in 
Revue juridique de l'environnement, 1993, p. 597. 
55 — Ibid., at paragraph 12. 
56 — Sec, in particular, paragraph 13. 57 — Emphasis added. 
I - 4325 
OPINION OF MR LÉGER — CASES C-284/95 AND C-341/95 
has the effect of preventing their free move­
ment in the Community. 
104. However, it is not disputed that protec­
tion of the ozone layer is an 'imperative 
requirement', within the meaning of the 
Court's judgment in Case C-155/91 Com­
mission ν Council, cited above, relating to the 
protection of the environment. I have also 
shown that Article 5 of the Regulation 
observes the principle of proportionality. 
105. In conclusion, the answer to be given to 
the national courts should be that Article 5 
of the Regulation is not contrary to Article 
30 of the Treaty. 
106. Since the legislation in question is justi­
fied by 'an imperative requirement', there is 
no need to consider whether it may also be 
justified under Article 36 of the Treaty, as the 
Court is expressly asked to do by the Giu­
dice di Pace, Genoa. 
The fifth question (compatibility of Article 5 
of the Regulton with Articles 3 and 5 of the 
Treaty) 
107. Article 3 of the Treaty sets out the 
objectives of the Community. I have already 
shown, when considering the first question, 
that the Regulation was adopted for the pur­
pose of achieving one of those objectives. 
108. Article 5 of the Treaty '... lays down the 
principle of sincere cooperation in relations 
between the Member States and the Com­
munity institutions. That principle not only 
requires the Member States to take all the 
measures necessary to guarantee the applica­
tion and effectiveness of Community law but 
also imposes on the Member States and the 
Community institutions mutual duties of 
sincere cooperation ...'. 5 8 
109. It need merely be pointed out that the 
Court has held that '[t]he adoption of a leg­
islative measure by the Council cannot con­
stitute ... a breach of the duty of sincere 
cooperation attaching to the Council as an 
institution'. 5 9 
58 — See, in particular, Joined Cases C-63/90 and C-67/90 Por­
tugal and Spain ν Council [1992] ECR I-5073, paragraph 
52. 
59 — Ibid., paragraph 53. 
I - 4326 
SAFETY HI-TECH v S. & T. 
110. In conclusion, the answer to be given to 
the national courts should be that Article 5 
of the Regulation is not contrary to Articles 
3 and 5 of the Treaty. 
111. It follows from all the foregoing con­
siderations that the answer to be given to the 
national courts must be that consideration of 
the question raised has not disclosed any fac­
tor of such a kind as to affect the validity of 
Article 5 of the Regulation. 
Conclusion 
112. For the reasons set out above, I propose that the Court should answer as fol­
lows the questions referred to it by the Giudice di Pace, Genoa, and the Pretura 
Circondariale di Avezzano: 
(1) In Case C-284/95 
Article 5 of Council Regulation (EC) N o 3093/94 of 15 December 1994 on 
substances that deplete the ozone layer must be interpreted as meaning that, in the 
fire-fighting sector, the use, placing on the market, production and importation of 
hydrochlorofluorocarbons have been prohibited since 1 June 1995. 
Examination of that provision has not disclosed any factor of such a kind as to 
affect its validity. 
(2) In Case C-341/95 
Examination of Article 5 of Council Regulation (EC) N o 3093/94 of 15 December 
1994 on substances that deplete the ozone layer has not disclosed any factor of 
such a kind as to affect its validity. 
I - 4327