CELEX: C1999/246/41
Language: en
Date: 1999-08-28 00:00:00
Title: Case C-249/99 P: Appeal brought on 2 July 1999 by Pescados Congelados Jogamar SL against the order delivered on 30 April 1999 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-311/97 between Pescados Congelados Jogamar SL and Commission of the European Communities

C 246/20              EN                   Official Journal of the European Communities                                    28.8.1999
   Article 100a(4) of the EC Treaty (now, after amendment,                systems for cans and non-returnable packaging, along
   Article 95(4) EC) enables a Member State to maintain                   with, if appropriate, labelling and environmental taxes, can
   national rules if the Member State deems this necessary in             secure the same or approximately identical environmental
   order, for example, to protect the environment. When                   advantages as a ban. Lifting the ban would at the same
   adopting the packaging Directive, the Commission did not               time ensure that foreign manufacturers can market their
   receive notification of any national measures which a                  products in, for example, aluminium cans and thereby
   Member State wished to maintain. Within the area harmon-               utilise the environmental advantages associated with trans-
   ised by the Directive, therefore, Member States can no                 port of metal cans over long distances compared with
   longer rely on Article 301EC (ex Article 36) or on interests           transport of other types of packaging.
   requiring mandatory protection as a basis for maintaining
   or introducing more stringent rules.
                                                                      (1) OJ 1994 L 365, p. 10.
   Metal cans made of steel and aluminium satisfy, in the
   Commission’s view, the essential requirements set out in
   Annex II to the Directive. For instance, metal cans satisfy
   the requirements as to manufacturing and composition
   laid down in Annex II(1). Metal cans can also be
   recovered or recycled. It follows from Annex II(3)(a) that
   packaging must be manufactured in such a way as to
   enable ‘the recycling of a certain percentage by weight
   of the materials used’. A very significant portion of the
   material in metal cans can be recycled or reused. The
   Danish rules on packaging and the attitude shown by
   the Danish Government also appear to imply an
   acceptance that metal cans, for instance, satisfy the
   essential requirements. Metal cans are used extensively in
   Denmark, as in other Member States, for food and drink             Appeal brought on 2 July 1999 by Pescados Congelados
   products, such as fruit juice, ice tea and chocolate milk.         Jogamar SL against the order delivered on 30 April 1999
   Denmark also allows a considerable quantity of canned              by the Fifth Chamber of the Court of First Instance of
   beer to be exported to other Member States for purposes            the European Communities in Case T-311/97 between
   of consumption. If it is assumed, as the Danish                    Pescados Congelados Jogamar SL and Commission of the
   Government submits, that metal cans do not satisfy the                                 European Communities
   essential requirements, such packaging will, according to
   Article 9(1) of the Directive, not be usable in Denmark
   or for the export of drinks to other Member States.                                       (Case C-249/99 P)
                                                                                              (1999/C 246/41)
— If, as the Danish Government claims, the Directive does
   not at present exhaustively harmonise the rules governing          An appeal against the order delivered on 30 April 1999 by the
   packaging, the legality of the Danish measures must, in the        Fifth Chamber of the Court of First Instance of the European
   Commission’s view, also be assessed on the basis of Article        Communities in Case T-311/97 between Pescados Congelados
   28 EC (ex Article 30). The Danish measures on packaging            Jogamar SL and the Commission of the European Communities
   have the effect that beer and carbonated drinks cannot be          was brought before the Court of Justice of the European
   marketed in the packaging which is lawfully used in the            Communities on 2 July 1999 by Pescados Congelados Jogamar
   Member State in which the drinks are manufactured. The             SL, represented by Manuel de Cristóbal López, of the Madrid
   prohibition on imports of beer and carbonated drinks in            Bar, with an address for service in Luxembourg at Fiduciaire
   metal cans therefore constitutes a barrier to trace contrary       Beaumanoir, 48 Rue de Bragance, L-1255 Luxembourg.
   to Article 28 EC (ex Article 30). The onus is on the Danish
   Government to demonstrate that measures constituting a
   barrier to trace contrary to the Treaty are necessary in
   order to protect the environment and that they comply              The appellant claims that the Court should:
   with the principle of proportionality, that is to say, the
   prohibition is no wider than is necessary to attain a lawful       — quash the order of the Court of First Instance appealed
   objective: the Danish Government has failed to discharge               against;
   that burden of proof. Extensive measures for environmen-
   tal protection, such as a total ban on the use of metal cans
   and non-returnable packaging for beer and carbonated               — declare admissible the action for failure to act and, if it
   drinks, even though the packaging is lawfully used in all              should deem fit, consider the merits of the case or, failing
   other Member States, calls for a reasonably unambiguous                that, refer the case back to the Court of First Instance so
   and certain scientific basis. The life cycle analyses which            that it may adjudicate on the merits of the case; and
   the Danish authorities have had compiled cannot be
   regarded as constituting such a basis. A complete ban on
   the use of certain types of packaging also runs counter to         — in any event, uphold all the claims of the applicant at first
   the principle of proportionality. Use of return and deposit            instance.
 ---pagebreak--- 28.8.1999               EN                   Official Journal of the European Communities                                        C 246/21
Pleas and main arguments                                                1. When determining whether the Applicant, as a British
                                                                           National (Overseas) not entitled (under United Kingdom
                                                                           law) to enter or remain in the United Kingdom, is a ‘person
Breach of Community law (Article 175 of the Treaty estab-                  holding the nationality of a Member State’ and therefore is
lishing the European Community) by misinterpretation thereof               ‘a citizen of the Union’ for the purpose of Article 8 of the
inasmuch as it does not take account of the social context in              EC Treaty:
which it to be applied and infringement of the fundamental
human rights enshrined in Article F(2) of the Treaty on                    (1) What is the effect (if any) as a master of Community
European Union and in general principles of law:                                law of
— right to judicial protection against an excessively formal-                   (a) the United Kingdom’s 1972 Declaration ‘on the
     istic interpretation of the procedural requirements which                      definition of the term “nationals”’ which was
     must be fulfilled prior to the bringing of an action for                       made at the time of Accession to the European
     failure to take action: the totally formalistic interpretation                 Communities and annexed to the Final Act of the
     by the Court of First Instance is incorrect, in view of the                    Accession Conference, and
     conclusions at which it arrives. The Commission knew
     that there was a vessel and crew which had been seized                     (b) the United Kingdom’s 1982 Declaration ‘on the
     under false accusations, since it had sufficient evidence of                   meaning of a UK national’, and
     it in its possession and, moreover, according to findings
     by its own experts, knew such detention to be illegal.                     (c) Declaration No. 2 to the Treaty on European Union
     Nevertheless, it took no action. It is impossible to adhere                    signed on 7 February 1992 that nationality is to be
     to a view so formal that it does not consider the appellant’s                  decided solely by reference to the national law of
     assumption that the Commission is dealing with com-                            the Member State concerned and Member States
     pliance with treaty requirements and taking steps to free                      may declare, for information, who are to be
     the persons illegally arrested to be, in itself, a request for                 considered to be their nationals for Community
     action.                                                                        purposes ?
— misapplication of the right to equal treatment inasmuch as               (2) If and to the extent that the United Kingdom is not
     different situations were treated alike                                    entitled, as a master of Community law, to rely on the
                                                                                Declarations referred to in (1) above, what are the
                                                                                relevant criteria for identifying whether a person has
— breach of the principle of legal certainty which governs the                  nationality of a Member State for the purposes of
     Community legal system and regulates the conduct of the                    Article 8 where domestic law identifies various
     Community institutions                                                     categories of nationality only some of which confer a
                                                                                right to enter and remain in that Member State ?
— right to freedom and safety, honour and moral integrity of
     the crew of the Albor Uno, which is the property of the               (3) In this context, what is the effect of the principle of
     applicant undertaking Pescados Congelados Jogamar SL.                      respect for fundamental human rights under Com-
                                                                                munity law claimed by the Applicant, in particular
                                                                                where the Applicant relies on Article 3(2) of the Fourth
                                                                                Protocol to the European Convention on Human
                                                                                Rights that no one shall be deprived of the right to
                                                                                enter the territory of the State of which he is a national,
                                                                                which has not been ratified by the United Kingdom?
                                                                        2. In the circumstances of the present case does Article 8a(1)
                                                                           of the EC Treaty:
Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Queen’s Bench Division                          (a) Confer rights on a citizen of the Union to enter and
(Crown Office), by order of that court of 14 April 1999,                        remain in the Member State of which he is a national
in the case of The Queen against Secretary of State for                         even where those rights are otherwise denied by
    the Home Department, ex parte: Cheung Chiu Hung                             national law.
                                                                           (b) Confer rights additional to those which existed under
                         (Case C-256/99)                                        the EC Treaty prior to its amendment by the Treaty on
                                                                                European Union.
                         (1999/C 246/42)                                   (c) Give rise to directly effective rights which citizens of
                                                                                the Union may invoke before national courts and
Reference has been made to the Court of Justice of the                          tribunals.
European Communities by an order of the High Court of
Justice (England & Wales), Queen’s Bench Division (Crown                   (d) Apply to situations which are wholly internal to a
Office), of 14 April 1999, which was received at the Court                      single Member State?
Registry on 9 July 1999, for a preliminary ruling in the case of
The Queen against Secretary of State for the Home Depart-
ment, ex parte: Cheung Chiu Hung, on the following questions: