Opinion of Mr Advocate General Darmon delivered on 5 November 1991. - Commission of the European Communities v Federal Republic of Germany. - Failure by a Member State to fulfil its obligations - Labelling of dangerous substances. - Case C-43/90.



European Court reports 1992 Page I-01909



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. By the present action, the Commission asks the Court to declare that the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty by not correctly applying the provisions of Article 5(2) and Article 23(1) of Council Directive 79/831/EEC of 18 September 1979 amending for the sixth time Directive 67/548/EEC on the approximation of the laws, regulations, and administrative provisions relating to the classification, packaging and labelling of dangerous substances. (1)

2. During the written procedure the Commission abandoned a number of complaints to the point where now, as I deliver my Opinion, I may be permitted to ask what remains of the action.

3. The application mentions four complaints and proceeds by referring to the reasoned opinion delivered on 17 October 1988. Such a procedure does not make it easy to learn precisely what obligations a Member State is accused of failing to fulfil, which may in certain circumstances affect the right to a fair hearing. However, Article 38 of the Rules of Procedure requires only "a summary of the pleas in law on which the application is based" and the Court has always taken a rather non-formalistic line in that regard. (2) Moreover, the reasoned opinion is annexed to the application and the Federal Republic of Germany has not raised any objection of inadmissibility on that ground.

4. In his Opinion in Case C-347/88, (3) Mr Advocate General Tesauro considers that the application may refer to the arguments and circumstances appearing in the letter of formal notice and in the reasoned opinion when it is simply a matter of clarifying the scope of the pleas. (4) In the present case the reference to the reasoned opinion concerns only the list and the names of the dangerous substances in respect of which the Commission alleges that the Federal Republic failed to lay down special labelling requirements; the legal basis for that complaint is set out in the application itself. In my view, therefore, the application cannot be said to be inadmissible on that ground.

I. 5. - The first complaint referred to at point II.1.a of the application and at point II.6 of the reasoned opinion concerns the nine dangerous substances in respect of which the German regulation on dangerous substances of 26 August 1986, (5) amended for the first time on 16 December 1987, requires specific labelling measures which are not provided for by Directive 79/831. In its reply, however, the Commission acknowledges that those substances were inadvertently included in the application and withdraws its complaint on that point. It confirmed that position in its written reply to a question from the Court, which will therefore have to take formal note of that.

II. 6. - The second complaint, made at point II.1.b of the application and at point II.7. of the reasoned opinion, concerns 78 substances. However, a large number of those have been deleted from the German regulation of 26 August 1986 by a second amending regulation of 23 April 1990 (6) and by a third amending regulation of 5 June 1991. (7) The remaining substances, according to the defendant, were notified to the Commission pursuant to Article 23 of Directive 79/831, which provides that "where a Member State has detailed evidence that a substance, although satisfying the requirements of this directive, constitutes a hazard for man or the environment by reason of its classification, packaging or labelling, it may provisionally prohibit the sale of that substance or subject it to special conditions in its territory. It shall immediately inform the Commission and the other Member States of such action and give reasons for its decision". That notification, which was apparently given on 29 August 1989, is annexed to the Federal Republic' s defence.

7. The Commission, in its written reply to a question from the Court, acknowledges that, of those substances, six were covered by Directive 91/325/EEC of 1 March 1991 adapting Directive 67/548 to technical progress for the twelfth time (8) and that 30 others appear in the proposal for a directive adapting the earlier directive to technical progress for the fifteenth time. I would point out that, of the substances referred to by the Commission, Nos 183, 721 and 833 do not appear in the reasoned opinion, nor do Nos 1064, 1328, 1366 and 1431. The Commission, in the same reply, maintains its complaint only in respect of five substances, namely No 102 (Azocyclotine), No 376 (Cycloheximide), No 878 (Octanoate dioxynil), No 1332 (Temephos) and No 1344 (Tetrachlorovinphos). Let me add that substances Nos 376 and 878 do not appear in the reasoned opinion either. However, during the oral procedure, the Commission' s representative appears to have backtracked with regard to the extent to which the complaint was withdrawn in so far as he stated that, although with regard to the substances appearing in the proposal for a directive the complaint may become devoid of purpose, that did not mean that the Commission was withdrawing it on that point.

8. I consider it necessary at this juncture to make a number of observations on that problem. It is true that, from the perspective of the date of the reasoned opinion, there was without a doubt a failure on the part of the Federal Republic to fulfil its obligations with regard to certain substances. However, the Commission' s written reply to the question from the Court states in fact that "in reply to Question No 1, it may be concluded that the complaint concerning the labelling requirement laid down by the German regulation ... (is) maintained in respect of five substances (cf. above under (b))", which would appear to mean that the complaint was withdrawn with regard to the remaining substances referred to at point II.1.b of the application.

9. I therefore propose that the Court should adhere to the wording of the Commission' s written reply to the Court' s question, namely that the complaint referred to at point II.1.b of the application is maintained only in respect of the five abovementioned substances, two of which, as I have said, do not appear in the reasoned opinion. The application is therefore inadmissible on that last-mentioned ground in respect of the two substances at issue.

10. Accordingly that leaves only three substances in respect of which the complaint must be considered by the Court. In that regard, in its application, the Commission alleges that the Federal Republic failed, first of all, to initiate the procedure laid down in Article 23, which the Federal Republic firmly denies, and secondly failed to indicate in the regulation(s) at issue that the measures adopted were provisional, within the meaning of the same article.

11. With regard to the first point, the Commission, in its reply, acknowledges that the Federal Republic did in fact notify all the substances in respect of which the labelling requirements were not abolished by the second amending regulation and the draft third amending regulation. (9) In its written reply to the questions from the Court, however, the Commission considers that notification did not take place and suggests that the communication of 29 August 1989 should not be taken into account. It was pointed out during the oral procedure that the Commission had omitted to verify, when drafting its reply, whether notification pursuant to Article 23 of the directive had in fact been made.

12. I would remind the Court that the Federal Republic produced in an annex to its defence a communication entitled "Mitteilung der Bundesrepublik Deutschland gemaess Artikel 23 der Richtlinie 79/831/EWG" (Notification by the Federal Republic of Germany pursuant to Article 23 of Directive 79/831/EEC).

13. During the oral procedure, the Commission explained that that document had reached it through unofficial channels and the Commission had used it as a working document, since all the substances referred to in it are or will be set out in directives amending Directive 67/548. It considered, however, that that communication could not constitute notification within the meaning of Article 23.

14. I cannot agree with that view. Article 23 does not contain any special formal requirement. It simply requires that the notification should state reasons and that the other Member States should be informed. The question whether the Federal Republic informed the other Member States of the notification in question must be left in abeyance since any failure to do so is not mentioned in the reasoned opinion. It is not disputed, moreover, that the Commission received the communication at issue. Finally, since the burden of proof lies with the Commission, it is for the latter to prove that Article 23 of the directive was not applied. No such proof would appear to have been adduced in the present case, having regard to the documents produced by the Federal Republic whose authenticity is not expressly disputed by the Commission which simply states that it did not receive them through official channels. In my view, the complaint made by the Commission must, therefore, be rejected.

15. That leaves only the second criticism based on the failure to refer to the provisional nature of the measures concerned in the German regulations at issue. I will consider that criticism together with the third complaint referred to at point II.1.c of the application, which is also based on that criticism.

III. 16. - That complaint, which refers, moreover, to point II.8 of the reasoned opinion, concerns carcinogenic substances. It refers to Article 5 of the German regulation on such substances, which, it is alleged, does not comply with Article 5(2) of Directive 79/831. Article 5(2) provides that "dangerous substances not yet appearing in Annex I but included in the list referred to in Article 13(1) or already on the market before 18 September 1981 must, in so far as the manufacturer whether or not established in the Community may reasonably be expected to be aware of their dangerous properties, be packaged and provisionally labelled by the manufacturer or his representative in accordance with the rules laid down in Articles 15 to 18 and with the criteria in Annex VI".

17. It is common ground that the substances at issue are not set out in Annex I to the directive and were already on the market before 18 September 1981. They therefore fall within the scope of that provision.

18. The German regulation requires special labelling for certain carcinogenic substances or for substances whose carcinogenic nature has been established by the Deutsche Forschungsgemeinschaft or by the manufacturer or importer, whereas, according to Article 5(2) and the Commission' s interpretation of that provision, it is for the manufacturer alone, on his own responsibility, to decide whether to package and label the substance at issue in accordance with the rules of the directive, since he may reasonably be expected to be aware of its dangerous properties. According to the Commission, therefore, the German legislation infringes Article 22 of the directive, which provides that "the Member States may not, on grounds relating to notification, classification, packaging or labelling within the meaning of this directive, prohibit, restrict or impede the placing on the market of substances which comply with the requirements of this directive and the annexes thereto", in so far as, first, it was not notified to the Commission pursuant to Article 23, and secondly, it does not indicate in the actual wording of the provisions at issue that the measures thus laid down are provisional. Let us consider in turn the two criticisms upon which this third complaint is based.

19. As regards the first criticism, it should be pointed out that Annex 6 to the application contains a communication from the Federal Republic pursuant to Article 23 of the directive, dated 14 July 1989, which concerns 21 carcinogenic substances covered by the German regulation on dangerous substances. It contains, in particular, the following passage: "Upon notification of the regulation on dangerous substances, it was agreed, at meetings with the Commission, not to publish the national list of substances and not to apply the procedure laid down in Article 23, but to await the results of the Commission' s work. The Commission stated, on a number of occasions, that it was speeding up the work relating, in particular, to the classification of carcinogenic substances in order to eliminate any disparities with regard to various national lists. By letter of 16 November 1987, the Commission was reminded of that undertaking. At the same time, the Commission was supplied, at its own request, with a priority list of 21 substances classified at national level but not yet classified by the Commission. Since then, experts with the Commission have begun to investigate only seven of those substances. Having regard to the often difficult and lengthy discussions which classification at Community level involves, and which are not consistent with the dangers posed by carcinogenic substances to man and the environment, the Federal Republic is compelled to initiate the procedure under Article 23 in respect of all the abovementioned substances, which are listed in an annex to this communication".

20. In its written reply to the questions from the Court, the Commission stated that, with the exception of two substances (1,4 Dichlorobutene and 2,3,4 Trichlorobutene - 1), all the substances on that list have been or will be classified by Community legislation as subject to a labelling requirement.

21. As the Commission was able to explain during the oral procedure, however, this complaint relates to the labelling requirement for all carcinogenic substances in general and not only for the 21 substances listed in the abovementioned communication of 14 July 1989. The German Government stated at the hearing that there were approximately 60 substances capable of being classified as carcinogenic.

22. That criticism concerning the absence of notification pursuant to Article 23 of the directive with regard to carcinogenic substances appears, in my view, not to require consideration by the Court. Point II.1.c of the application refers to point II.8 of the reasoned opinion. Although point II.8 finds that "the German regulation of 1986 on dangerous substances does not expressly state that the abovementioned right of the Member State to require labelling is only provisional" and that "Directive 79/831 has not been correctly implemented in this regard by the Federal Republic as long as the Federal Government has not amended the 1986 regulation on dangerous substances by declaring those measures to be provisional", no objection is raised to the absence of notification within the meaning of Article 23 of the directive. During the oral procedure, the Commission' s representative acknowledged that point II.8 of the reasoned opinion made no mention of that objection.

23. In accordance with the case-law of the Court, (10) the application should be declared inadmissible in so far as it concerns, with regard to carcinogenic substances, the absence of notification pursuant to Article 23 of the directive. The German Government was unable to comply with the reasoned opinion since the latter did not set out the allegation in question with regard to those substances.

24. That leaves therefore only the criticism based on the failure to mention the provisional nature of the national measure concerned, which, as I have said, is common to points II.1.b and II.1.c of the application.

25. The Federal Republic contends that Article 23 of the directive lays down no such obligation and that in practice it would serve no purpose since the conflict between Community law and the national measure in question is sometimes resolved, as in the present case, by adapting the relevant Community rules. (11)

26. Let me say at once that it does not seem to me to be possible to interpret Article 23 as laying down such an obligation. The statement "where a Member State has detailed evidence ..., it may provisionally (12) prohibit the sale of that substance or subject it to special conditions ..." refers to the fact that the Commission is to be informed of the measure forthwith and that it must give its views without delay and take the appropriate measures. (13) Those measures are either the technical adaptation of the directive, in other words the procedure referred to in Article 23(3), or, if the Commission considers the measures to be unnecessary, the initiation of the procedure laid down in Article 169 of the EEC Treaty. Thus, as the Federal Republic of Germany pointed out in its rejoinder, even if the national measure is described as provisional, it may very well become definitive.

27. Besides, it would appear to be neither useful nor expedient to require the national legislature to refer in the regulations at issue to the provisional nature of the measures adopted. It is difficult to see what interest economic operators would have in a reference of that kind. Let me add that the industries most concerned by those rules, in particular the chemical and pharmaceutical industries, are doubtless not unaware of the already long standing machinery of the directive.

28. This complaint therefore appears to be unfounded.

IV. 29. - The complaint referred to at point II.1.d of the application and at point II.11 of the reasoned opinion concerns substances Nos 690 (1.2 Epoxypropane) and 1119 (Tetracarbonylnickel). Substance No 690 was classified by Directive 88/490/EEC of 27 July 1988 (14) and substance No 1119 is covered by the proposal for a directive adapting Directive 67/548 to technical progress for the fifteenth time.

30. The Commission withdrew its complaint with regard to substance No 690 in its written reply to a question from the Court. In that reply, it states with regard to substance No 1119 that "it will be possible for the Commission' s complaint to be considered devoid of purpose" (the German text reads: "Insofern wird die Klage als erledigt betrachtet werden koennen").

31. Does that mean that the Commission is withdrawing its complaint on this point? The difficulties encountered here are the same as those I encountered when considering the complaint referred to at point II.1.b. Once again, during the oral procedure, the Commission appears to have refused to accept that it had intended to withdraw its complaint on this point. That compels me to scan the successive positions adopted by the Commission in order to find that which must be taken to be correct.

32. Having regard to the fact that the written reply to the Court' s questions, as I have already pointed out, states by way of conclusion that "the complaint ... (is) maintained in respect of five substances," which do not include No 1119, I suggest as before that the Court should adhere to that reply and take the view that the Commission has withdrawn the complaint referred to at point II.1.d of the application also in respect of substance No 1119.

33. I therefore propose that the Court should:

1. take formal note of the Commission' s withdrawal of the complaints referred to at point II.1.a, point II.1.b, except in respect of substances Nos 102, 376, 878, 1332 and 1344, and at point II.1.d of the application;

2. declare the application inadmissible with regard to the complaint referred to at point II.1.b in relation to substances Nos 376 and 878, and the complaint referred to at point II.1.c, in so far as it is based on the absence of notification pursuant to Article 23 of Directive 79/831/EEC;

3. dismiss the remainder of the application;

4. order the Commission to pay the whole of the costs.

(*) Original language: French.

(1) - OJ L 259, p. 10.

(2) - For example, the judgment in Joined Cases 26 and 86/79 Forges de Thy-Marcinelle and Monceau v Commission [1980] ECR 1083; in Case 4/69 Luetticke v Commission [1971] ECR 325; and in Case 111/63 Lemmerz Werke v High Authority [1965] ECR 677.

(3) - Case C-347/88 Commission v Greece [1990] ECR I-4747.

(4) - Ibid, [1980] ECR I-4767, paragraph 8.

(5) - Bundesgesetzblatt, first part, 5 September 1986, p. 1470.

(6) - Bundesgesetzblatt, I, p. 790.

(7) - Bundesgesetzblatt, I, p. 1218.

(8) - OJ L 180, p. 1.

(9) - With the exception of substance No 143; that substance is nevertheless one of those referred to in the third amending regulation in its definitive version, as is clear in particular from the written reply of the German Government to the question from the Court.

(10) - In particular, the judgment in Case 211/81 Commission v Denmark [1982] ECR 4547; in Case 166/82 Commission v Italy [1984] ECR 459; in Case 274/83 Commission v Italy [1985] ECR 1077; and in Case C-347/88 Commission v Greece [1990] ECR I-4747.

(11) - Rejoinder, page 6 of the French version.

(12) - Emphasis added.

(13) - Article 23(2).

(14) - OJ L 259, p. 1.