Case C-345/01: Action brought on 13 September 2001 by the Commission of the European Communities against the Republic of Austria
Date: 2001-11-24
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, bio-industry, genetically modified organism, occupational safety, preparation for market

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.

24.11.2001

EN

Official Journal of the European Communities

C 331/9

Pleas in law and main arguments

Pleas in law and main arguments

As a result of the fact that directives are binding in nature
pursuant to the third paragraph of Article 249 EC and the first
paragraph of Article 10 EC, the Member States to which a
directive is addressed are bound to transpose the provisions in
the directive into domestic law so that they are fully effective
by the time the deadline for transposition expires. That
deadline expired on 5 June 2000 without Austria having
adopted the requisite provisions.

The pleas in law and main arguments are the same as those in
Case C-345/01 (2).

(1) OJ L 330 of 5.12.1998, p. 13.
(2) See p. 8 of this Official Journal.

(1) OJ 1998 L 330, p. 13.
(2) OJ 1990 L 117, p. 1.

Action brought on 13 September 2001 by the Com-
mission of the European Communities against the Federal
Republic of Germany

(Case C-347/01)

(2001/C 331/14)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties 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
Directive 98/8/EC (1) of the European Parliament and of
the Council of 16 February 1998 concerning the placing
of biocidal products on the market, or at least by failing
to communicate them to the Commission, the Federal
Republic of Germany has failed to fulfil its obligations
under Article 34(1) of that directive.

2. Order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those in
Case C-345/01 (2): the deadline for transposition expired on
14 May 2000.

(1) OJ L 123 of 24.4.1998, p. 1.
(2) See p. 8 of this Official Journal.

Action brought on 13 September 2001 by the Com-
mission of the European Communities against the Federal
Republic of Germany

(Case C-346/01)

(2001/C 331/13)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties 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 in order to comply
with Council Directive 98/81/EEC (1) of 26 October 1998
amending Directive 90/219/EEC on the contained use of
genetically modified micro-organisms, or at
least by
failing to inform the Commission thereof, the Federal
Republic of Germany has failed to fulfil its obligations
under Article 2(1) of that Directive.

2. Order the Federal Republic of Germany to pay the costs.