Case C-341/01: Reference for a preliminary ruling, by order of the Landesgericht Korneuburg of 4 September 2001 in the case of Pato Plastik Robert Frank GmbH v CAROPACK Handelsgesellschaft mbH
Date: 2001-11-24
Institutions: Court of Justice
Subjects: interpretation of the law, packaging product, plastics, sale, trade mark, waste management

24.11.2001

EN

Official Journal of the European Communities

C 331/7

Reference for a preliminary ruling by the Oberster
Gerichtshof, Republic of Austria, by order of that court
in the case of Carlito Abler and
on 25 June 2001,
21 others, intervener: Sanrest Großküchen-Betriebsge-
sellschaft mbH against Sodexho MM Catering Gesellschaft

(Regional Court) Korneuburg of 4 September 2001, which was
received at the Court Registry on 11 September 2001, for a
preliminary ruling in the case of Pato Plastik Robert Frank
GmbH v CAROPACK Handelsgesellschaft mbH on the follow-
ing questions:

(Case C-340/01)

(2001/C 331/10)

1.1. Are plastic carrier bags ‘packaging’ within the meaning
of European Parliament and the Council Directive
94/62/EC 20 December 1994 (1), particularly Article 3(1)
thereof,

Reference has been made to the Court of Justice of the
European Communities by order of the Oberster Gerichtshof,
Republic of Austria (Supreme Court) of 25 June 2001, received
at the Court Registry on 10 September 2001, for a preliminary
ruling in the case of Carlito Abler and 21 others, intervener:
Sanrest Großküchen-Betriebsgesellschaft mbH against Sodex-
ho MM Catering Gesellschaft, on the following question:

Is there a transfer of part of a business within the meaning of
Article 1 of Council Directive 77/187/EEC of 14 February
1977 (1) on the approximation of the laws of the Member
States relating to the safeguarding of employees’ rights in the
event of transfers of undertakings, businesses or parts of
businesses where a hospital authority, which has previously
employed a catering undertaking to supply meals and bever-
ages to patients and hospital staff at a price based on a day of
catering per person, and to that end has made available to that
undertaking water and energy as well as its service premises
(hospital kitchen) together with the necessary equipment,
transfers, after giving notice of termination of that contract,
those operations and the assets previously made available to
that first catering undertaking to a second catering undertaking
which does not take over the assets (staff, stock, accounting
material and menu, diet, recipe or general records) brought in
by the first catering undertaking itself?

(1) OJ 1997 L 61, p. 26.

Reference for a preliminary ruling, by order of the
Landesgericht Korneuburg of 4 September 2001 in the
case of Pato Plastik Robert Frank GmbH v CAROPACK
Handelsgesellschaft mbH

(Case C-341/01)

(2001/C 331/11)

Reference has been made to the Court of Justice of the
the Landesgericht
European Communities by order of

(a)

(b)

if a retailer offers them as an article in the cash-
desk area and hands them over to customers upon
request against payment so that the purchased
goods can be taken away, or

if a retailer hands them over to customers for the
same purpose after the price has been paid for the
purchased goods, regardless whether customers ask
for them and without obligatory payment of any
extra charge, and they are then filled with the
purchased goods?

1.2.1. First additional question, in the event that one of the
above questions is answered in the affirmative on the
basis of the German version:

Is the result different if, for the definition of the word
‘packaging’ in Article 3(1) of the Directive, not the
German text, which only has the words ‘von Waren’,
but the French or Italian text [Or. 2] is deemed decisive,
which both refer to specific goods (‘marchandises
données’ and ‘determinate merci’), and are the plastic
carrier bags made by the plaintiff in this case not
packaging for the purposes of the Directive because
they are filled with any goods at all (rather than with
predetermined goods), and in this case which text
applies?

1.2.2. Second additional question, in the event that one of
the above questions is answered in the negative:

May the Austrian legislature or the Commission make
products which are not packaging under the Directive
subject to the rules governing packaging laid down in
the Directive or to similar rules?

2.

Is it in conformity with Community law for the operator
of the collection and recovery system set up in Austria to
charge a fee (Lizengebühr) even for carrier bags not
covered by Directive 94/62/EC solely on the ground that
the bags bear a mark (‘der Grüne Punkt’) over which the
operator disposes?

C 331/8

EN

Official Journal of the European Communities

24.11.2001

3.1.

Is a ‘producer’, within the meaning of Article 3(1) of the
Directive, only someone who brings goods into contact
with the product used as packaging or has them brought
into contact, and not also an undertaking which makes
a product intended for use as packaging, and is this
product then to be regarded as packaging material?

Directive, is ‘essential’, because everything marked with
the ‘Grüner Punkt’ symbol is mixed together and, above
all, takes away from consumers the right, granted and
guaranteed to consumers by the Sixth VAT Directive, to
a VAT rate reduced by half or a lower rate for the disposal
of their household waste?

3.2. Additional question,

in the event that the preceding
question is answered in the affirmative: May the Austrian
traders who
legislature or the Commission compel
merely make packaging material, that is to say a product
which is intended to be filled with goods, to participate
in a collection and recovery system set up pursuant to
Article 7(1) of Directive 94/62/EC?

4.

Is it contrary to the ‘polluter pays’ principle referred to in
the preamble to Directive 94/62/EC for a law to provide,
as does the first sentence of Paragraph 3(1) of
the
Austrian Verpackungsverordnung (Austrian Packaging
Regulation), that producers, in particular producers of
packaging material (see paragraph 3(1) in conjunction
with paragraph 1(1) of the Austrian Packaging Regu-
lation), importers, packagers and distributors must take
back free of charge sales and transport packaging after
they have been used, in that the group of persons affected
by this obligation is defined too narrowly and does not
include consumers, and/or does such a regulation conflict
with Article 1(1) of the Directive in so far as it is stated
there that the Directive’s aim is to avoid obstacles to
trade, whereas an obligation for a producer to take back
packaging materials is the greatest imaginable obstacle to
trade?

5. Does a collection and recovery system such as that
operated in Austria by Altstoff Recycling Austria Aktien-
gesellschaft pursuant to paragraph 11 of the Austrian
Packaging Regulation [Or. 3] conflict with the principle
of proportionality if it is disproportionate to the needs of
effective environmetal protection?

6.

Is it contrary to the principles laid down in Article 30 et
seq., in particular Article 37 EC, for a Member State to set
up, in implementation of Article 7 of the Directive, as has
happened in Austria pursuant to paragraph 11 of the
Austrian Packaging Regulation, a collection and recovery
system occupying a monopoly position (in Austria,
Altstoffrecycling Austria Aktiengesellschaft) so that com-
freedoms are dispro-
petition and the fundamental
portionately and excessively restricted, this interference is
out of proportion to any effective contribution towards
increasing the level of environmental protection and
moreover this system, set up in parallel with the munici-
pal system, is not compatible with the objective of sorting
waste at source, which, according to the preamble to the

7. May the Austrian Packaging Regulation arrange the
collection and recovery systems required by Article 7(1)of
the Directive in such a way that a monopolist or an
oligopolist can have power of disposal over all packaging
waste to be recycled into raw materials and so, by
providing subsidies to particular businesses, to particular
branches of industry (for example the cement industry)
or to certain local authorities (for example, the City of
Vienna), can control and subsidise the recycling of
waste as it wishes, thereby producing distortions of
competition, or is such a system contrary to Community
law,
in particular Article 30 et. seq. and especially
Article 37 EC?

(1) OJ 1994 L 365, p. 10.

Action brought on 13 September 2001 by the Com-
mission of the European Communities against the Repub-
lic of Austria

(Case C-345/01)

(2001/C 331/12)

An action against
the Republic of Austria was brought
before the Court of Justice of the European Communities on
13 September 2001 by the Commission of the European
Communities represented by Götz zur Hausen, a legal adviser
in the legal Service of the Commission of the European
Communities, with an address for service in Luxembourg at
the office of Luis Escobar Guerrero, a member of the Legal
Service of the European Commission, Wagner Centre C 254,
Kirchberg, Luxembourg.

The applicant claims that the Court should:

1. Declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Council Directive 98/81/EC of 26 October 1998 (1)
amending Directive 90/219/EEC (2) on the contained use
of genetically modified micro-organisms, or at least by
failing to communicate them to the Commission, the
Republic of Austria has failed to fulfil its obligations
under Article 2(1) of that Directive.

2. Order the Republic of Austria to pay the costs.