CELEX: C1999/246/40
Language: en
Date: 1999-08-28 00:00:00
Title: Case C-246/99: Action brought on 1 July 1999 by the Commission of the European Communities against the Kingdom of Denmark

28.8.1999                EN                     Official Journal of the European Communities                                       C 246/19
     If so: May Article 14c(b) of Regulation No 1408/71 in                 Action brought on 1 July 1999 by the Commission of the
     conjunction with Annex VII (implementation of Article                 European Communities against the Kingdom of Denmark
     14c(b)) be applied by analogy to the situation in this case
     of the pursuit of two different self-employed activities
     (hotelier in Austria and farmer in Germany)?                                                  (Case C-246/99)
                                                                                                   (1999/C 246/40)
( 1) OJ, English Special Edition, 1971, p. 416.
(2) OJ L 28 of 30.1.1997, p. 1.
                                                                           An action against the Kingdom of Denmark was brought
(3) OJ L 38 of 12.2.1999, p. 1.                                            before the Court of Justice of the European Communities on 1
                                                                           July 1999 by the Commission of the European Communities,
                                                                           represented by Hans Christian Støvlbæk, of its Legal Service,
                                                                           acting as Agent, with an address for service in Luxembourg at
                                                                           the office of Carlos Gómez de la Cruz, Wagner Centre,
                                                                           Kirchberg.
                                                                           The applicant claims that the Court should:
                                                                           1. Declare that, by maintaining Paragraphs 2(1) and 1(2) of
Reference for a preliminary ruling by the Landesgericht                        Decree No 124 of 27 February 1989 on packaging for
Korneuburg (Austria) by order of 18 June 1999 in the                           beer and soft drinks, as most recently amended by Decree
case of FILA Sport S.p.A. v Beijing Metals & Minerals                          No 300 of 30 April 1997, providing that drinks covered
                      Import & Export Corp.                                    by the Decree may be marketed only in returnable
                                                                               packaging, and by maintaining Paragraph 3 of that Decree,
                                                                               which provides that the packaging of imported drinks may
                                                                               not be made of metal, the Kingdom of Denmark, further
                           (Case C-243/99)                                     to Article 226 EC (ex Article 169), has failed to fulfil
                                                                               its obligations under European Parliament and Council
                                                                               Directive 94/62/EC (1) of 20 December 1994 on packaging
                           (1999/C 246/39)                                     and packaging waste, particularly Article 18, in conjunc-
                                                                               tion with Articles 5, 7 and 9 thereof, and Articles 28 and
                                                                               30 EC (ex Articles 30 and 36);
Reference has been made to the Court of Justice of the
European Communities by order of 18 June 1999 from
the Landesgericht Korneuburg (Regional Court, Korneuburg)                  2. Order the Kingdom of Denmark to pay the costs of these
(Austria), which was received at the Court Registry on 28 June                 proceedings.
1999, for a preliminary ruling in the case of FILA Sport S.p.A.
v Beijing Metals & Minerals Import & Export Corp. on the
following question:
                                                                           Pleas in law and main arguments
On a proper construction of Article 1 thereof, is Council
Regulation (EC) No 3295/94 of 22 December 1994 laying                      — Directive 92/64/EC provides that Member States, on the
down measures to prohibit the release for free circulation,                    one hand, cannot impede the placing on the market of
                                                                               their territory of packaging which satisfies the rules of the
export, re-export or entry for a suspensive procedure of
                                                                               Directive (Article 18) and, on the other, may allow
counterfeit and pirated goods (1) also applicable to situations
                                                                               packaging to be placed on the market only if it complies
in which goods of the type specified therein are, in the course
of transit between two States not belonging to the European                    with the essential requirements of the Directive (Article
Community, temporarily detained by customs authorities in a                    9(1)). The Directive thus establishes full harmonisation of
                                                                               Member States’ national rules on packaging and packaging
Member State on the basis of that regulation, at the request of
                                                                               waste.
a holder of rights who claims that his rights have been
infringed and whose undertaking has its registered office in a
Member State of the European Community?
                                                                               The Directive does not contain provisions authorising
                                                                               Member States to lay down more stringent rules. It follows
                                                                               that Member States cannot maintain in force national
                                                                               requirements which diverge from those laid down in the
(1) OJ 1994 L 341 of 30.12.1994, p. 8.                                         Directive. Since the Directive establishes full harmonisation
                                                                               of the rules on packaging, inter alia with a view to
                                                                               preventing competition from being distorted, a Member
                                                                               State cannot apply rules on the packaging to be used for
                                                                               domestic drinks which differ from those which may be
                                                                               applied to packaging for imported drinks.
 ---pagebreak--- 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.