Radlberger Getränkegesellschaft mbH & Co. and S. Spitz KG v Land Baden-Württemberg.
Date: 2004-12-14
22. The Court may of its own motion, on a proposal from the Advocate General or at the request of the parties order the reopening of the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see Joined Cases C-270/97 and C‑271/97 Deutsche Post  [2000] ECR I-929, paragraph 30, Case C-309/99 Wouters and Others  [2002] ECR I-1577, paragraph 42, Case C-299/99 Philips  [2002] ECR I-5475, paragraph 20, and Case C-273/00 Sieckmann  [2002] ECR I-11737, paragraph 22).
26. As to those submissions, it is not for the Court of Justice, given the allocation of functions between itself and the national courts, to determine whether the decision to refer has been taken in accordance with the rules of national law governing the organisation of courts and their procedure (see Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others  [1994] ECR I-711, paragraph 13, Case C‑435/97 WWF and Others  [1999] ECR I-5613, paragraph 33, and Case C-371/97 Gozza and Others  [2000] ECR I-7881, paragraph 30). The Court must abide by the decision from a court of a Member State requesting a preliminary ruling in so far as it has not been overturned in any appeal procedures provided for by national law (Case 65/81 Reina  [1982] ECR 33, paragraph 7).
53. In view of the fact that, where a sphere has been the subject of exhaustive harmonisation at Community level, any national measure relating thereto must be assessed in the light of the provisions of the harmonising measure and not those of the Treaty (Case C-37/92 Vanacker and Lesage  [1993] ECR I-4947, paragraph 9, Case C-324/99 DaimlerChrysler  [2001] ECR I-9897, paragraph 32, and Case C‑322/01 Deutscher Apothekerverband  [2003] ECR I-0000, paragraph 64), it must be determined whether the harmonisation brought about by Directive 94/62 precludes the compatibility of the national rules in question with Article 28 EC from being examined.
54. As regards the reuse of packaging, Article 5 of Directive 94/62 does no more than allow the Member States to encourage, in conformity with the Treaty, systems for the reuse of packaging that can be reused in an environmentally sound manner.
55. Apart from the definition of the concept of ‘reuse’ of packaging, certain general provisions on measures to avoid packaging waste and the provisions relating to return, collection and recovery systems, set out in Articles 3(5), 4 and 7 respectively, Directive 94/62 does not regulate, as regards Member States which are disposed to exercise the power granted by Article 5, the organisation of systems encouraging reusable packaging.
56. In contrast to the position in respect of the marking and identification of packaging and the requirements on the composition of packaging and its capacity to be reused or recovered, governed by Articles 8 and 11 of Directive 94/62 and Annex II thereto, the organisation of national systems intended to encourage the reuse of packaging is therefore not the subject of complete harmonisation.
57. Such systems can consequently be assessed on the basis of the Treaty provisions relating to the free movement of goods.
58. Furthermore, Article 5 of Directive 94/62 allows the Member States to encourage systems for the reuse of packaging only ‘in conformity with the Treaty’.
67. It follows that the replacement, as regards non-reusable packaging, of a global packaging collection system with a deposit and return system is such as to hinder the placing on the German market of drinks imported from other Member States (see to this effect, as regards reusable drinks packaging, Commission  v Denmark , cited above, paragraph 13).
68. It is immaterial in this regard that the provisions in question envisage deposit and return obligations for non-reusable packaging and do not prohibit imports of drinks in such packaging and that it is, moreover, possible for producers to resort to reusable packaging. A measure capable of hindering imports must be classified as a measure having equivalent effect to a quantitative restriction even though the hindrance is slight and even though it is possible for the products to be marketed in other ways (Joined Cases 177/82 and 178/82 Van de Haar and Kaveka de Meern  [1984] ECR 1797, paragraph 14).
70. Contrary to the submissions of the defendant in the main proceedings and the German Government, Paragraphs 8 and 9 of the VerpackV cannot be treated as national provisions which restrict or prohibit certain ‘selling arrangements’ within the meaning of the judgment in Joined Cases C-267/91 and C-268/91 Keck and Mithouard  [1993] ECR I-6097, paragraph 16 et seq.).
71. The Court has held that the need, resulting from the measures at issue, to alter the packaging or the labelling of imported products prevents those measures from concerning selling arrangements for the products within the meaning of the judgment in Keck and Mithouard  (see Case C-33/97 Colim  [1999] ECR I-3175, paragraph 37, Case C-12/00 Commission  v Spain  [2003] ECR I-459, paragraph 76, and Case C-416/00 Morellato  [2003] ECR I-9343, paragraph 29).
73. In any event, given that the provisions of the VerpackV do not affect the marketing of drinks produced in Germany and that of drinks from other Member States in the same manner, they cannot fall outside the scope of Article 28 EC ( Keck and Mithouard , paragraphs 16 and 17).
Justifications relating to protection of the environment
75. In accordance with settled case-law, national measures capable of hindering intra-Community trade may be justified by overriding requirements relating to protection of the environment provided that the measures in question are proportionate to the aim pursued ( Commission  v Denmark , paragraphs 6 and 9, and Case C-389/96 Aher-Waggon  [1998] ECR I-4473, paragraph 20).
76. The obligation to establish a deposit and return system for empty packaging is an indispensable element of a system intended to ensure that packaging is reused ( Commission  v Denmark , paragraph 13).
79. However, in order for such rules to comply with the principle of proportionality, it must be ascertained not only whether the means which they employ are suitable for the purpose of attaining the desired objectives but also whether those means do not go beyond what is necessary for that purpose (see Case C-284/95 Safety Hi-Tech  [1998] ECR I-4301, paragraph 57).
80. In order for national rules to satisfy the latter test, they must allow the producers and distributors concerned, before the deposit and return system enters into force, to adapt their production methods and the management of non-reusable packaging waste to the requirements of the new system. While it is true that a Member State may leave to those producers and distributors the task of setting up that system by organising the taking back of packaging, the refunding of sums paid by way of deposit and any balancing of those sums between distributors, the Member State in question must still ensure that, at the time when the packaging-waste management system changes, every producer or distributor concerned can actually participate in an operational system.
81. Legislation, such as the VerpackV, that makes the establishment of a deposit and return system dependent on a packaging reuse rate, which is certainly advantageous from an ecological point of view, complies with the principle of proportionality only if, while encouraging the reuse of packaging, it gives the producers and distributors concerned a reasonable transitional period to adapt thereto and ensures that, at the time when the packaging-waste management system changes, every producer or distributor concerned can actually participate in an operational system.