Afton Chemical Limited v Secretary of State for Transport.
Date: 2010-07-08
11. According to them the reference is inadmissible because, first, there is no dispute between the parties, since the Secretary of State for Transport has declared himself neutral as to the merits of the claim, and, second, that the sole purpose of the proceedings before the referring court is to obtain the annulment of Article 1(8) of Directive 2009/30.
13. First, it is to be remembered that when a question on the validity of a measure adopted by the European Union institutions is raised before a national court, it is for that court to decide whether a decision on the matter is necessary to enable it to give judgment and consequently whether it should request the Court to rule on that question. Accordingly, where the national court’s questions relate to the validity of a provision of Community law, the Court is obliged in principle to give a ruling (Case C‑491/01 British American Tobacco (Investments) and Imperial Tobacco  [2002] ECR I‑11453, paragraph 34, and Case C‑308/06 Intertanko and Others  [2008] ECR I‑4057, paragraph 31).
14. It is possible for the Court to refuse to give a preliminary ruling on a question submitted by a national court only where, inter alia, it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 35, and Intertanko and Others , paragraph 32).
15. In the case in the main proceedings, it is clear from the order for reference that Afton brought before the High Court an action for judicial review of the legality of the ‘intention and/or obligation’ of the United Kingdom Government to implement Directive 2009/30 even though, when that action was brought, the prescribed period for the transposition of that directive had not yet expired and no national measure transposing that directive had been adopted. Moreover, the mere fact that the Secretary of State for Transport has declared his intention to implement Directive 2009/30 justifies the view being taken that there is some disagreement between Afton and the Secretary of State (see, to that effect, British American Tobacco (Investments) and Imperial Tobacco , paragraph 36).
18. As regards, secondly, the question of whether accepting the admissibility of an order for reference seeking a decision on validity in a situation such as that in the main proceedings could be tantamount to circumventing the requirements of Article 230 EC, it must be stated that, in the complete system of legal remedies and procedures established by the EC Treaty with a view to ensuring judicial review of the legality of acts of the institutions, where natural or legal persons cannot, by reason of the conditions for admissibility laid down in the fourth paragraph of that article, directly challenge Community measures of general application, they are able, depending on the case, either indirectly to plead the invalidity of such acts before the Community judicature under Article 241 EC or to do so before the national courts and ask them, since they have no jurisdiction themselves to declare those measures invalid, to make a reference to the Court of Justice for a preliminary ruling on validity (see British American Tobacco (Investments) and Imperial Tobacco , paragraph 39).
19. The question therefore arises whether an action for annulment by Afton, under the fourth paragraph of Article 230 EC, challenging the contested provisions, would undoubtedly have been admissible on the ground that those provisions were of direct and individual concern to it (see, to that effect, Case C‑241/95 Accrington Beef and Others  [1996] ECR I‑6699, paragraph 15, and Case C‑343/07 Bavaria and Bavaria Italia  [2009] ECR I‑0000, paragraph 40).
20. In that regard, it must be observed that Afton cannot be regarded, for the purpose of the fourth paragraph of Article 230 EC, as undoubtedly ‘directly and individually concerned’ by the contested provisions ( Bavaria and Bavaria Italia , paragraph 41).
21. According to settled case-law, in order for traders to be regarded as being individually concerned by the measure they seek to have annulled, their legal position must be affected by reason of circumstances which differentiate them from all other persons and distinguish them individually just as in the case of the person addressed (see Case 25/62 Plaumann  v Commission  [1963] ECR 95, 107, and Case C‑309/89 Codorniu  v Council  [1994] ECR I‑1853, paragraph 20).
22. In the case in the main proceedings, it is clear that the provisions of Directive 2009/30 which the applicant seeks to annul concern all producers of MMT.
23. Article 1(8) of Directive 2009/30 does not specifically refer to Afton and is of concern to it only in its objective capacity as a producer of MMT in the same way as any other trader which is currently or potentially in the same situation.
24. Moreover, it must also be borne in mind that the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them, as long as it is established that, as in the present case, that application takes effect by virtue of an objective legal or factual situation defined by the measure in question (see, inter alia, Case C‑451/98 Antillean Rice Mills  v Council  [2001] ECR I‑8949, paragraph 52, and order of 8 April 2008 in Case C‑503/07 P Saint‑Gobain Glass Deutschland  v Commission  [2008] ECR I‑2217, paragraph 70).
25. The court must therefore find that Afton did not undoubtedly have standing to bring an action for annulment against the contested provisions on the basis of Article 230 EC. Consequently, Afton is entitled, in an action brought in accordance with national law, to plead the invalidity of those provisions even though it did not bring an action for their annulment before the Community judicature within the period laid down in Article 230 EC (see, to that effect, Bavaria and Bavaria Italia , paragraph 46).
28. First, the point must be made that, in an area of evolving and complex technology such as that in the case in the main proceedings, the European Union legislature has a broad discretion, in particular as to the assessment of highly complex scientific and technical facts in order to determine the nature and scope of the measures which it adopts, whereas review by the Community judicature has to be limited to verifying whether the exercise of such powers has been vitiated by a manifest error of appraisal or a misuse of powers, or whether the legislature has manifestly exceeded the limits of its discretion. In such a context, the Community judicature cannot substitute its assessment of scientific and technical facts for that of the legislature on which the Treaty has placed that task (see to that effect Case C‑425/08 Enviro Tech (Europe)  [2009] ECR I‑0000, paragraph 47 and case-law there cited).
32. Moreover, Article 174(1) EC provides that the European Union policy on the environment is to contribute to a number of objectives, one of which is the protection of human health. Article 174(3) EC provides that in preparing its policy on the environment, the European Union is obliged to take account of available scientific and technical data. That obligation applies, particularly, to the procedure under Article 95(3) EC, for which it is necessary that new data be taken into account (see, to that effect, Case C‑405/07 P Netherlands  v Commission  [2008] ECR I‑8301, paragraph 61).
33. Nevertheless, it must be stated that the European Union legislature’s broad discretion, which implies limited judicial review of its exercise, applies not only to the nature and scope of the measures to be taken but also, to some extent, to the finding of the basic facts (see, inter alia, Case C‑120/99 Italy  v Council  [2001] ECR I‑7997, paragraph 44, and Case C‑310/04 Spain  v Council  [2006] ECR I‑7285, paragraph 121).
34. However, even though such judicial review is of limited scope, it requires that the Community institutions which have adopted the act in question must be able to show before the Court that in adopting the act they actually exercised their discretion, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation the act was intended to regulate ( Spain  v Council , paragraph 122).
36. However, in the proceedings before the Court, the Parliament stated that the abovementioned Committee organised not only general workshops on the revision of Directive 2003/17/EC of the European Parliament and of the Council of 3 March 2003 amending Directive 98/70/EC relating to the quality of petrol and diesel fuels (OJ 2003 L 76, p. 10), but also a specific workshop on MMT on 3 April 2008, in the course of which Afton was one of the parties heard. The Parliamentary Committee also took into consideration various studies challenging the safety of MMT, among them the Sierra research report of 29 August 2008, carried out in Canada by the Canadian Vehicle Manufacturers’ Association and the Association of International Automobile Manufacturers of Canada, which, in any event, could not be taken into account by the Commission when it published the impact assessment because the study was released subsequently.
37. The Council maintains that it took into account, during the legislative procedure, studies carried out in 2004 by the International Council on Clean Transportation (ICCT) which demonstrated that the use of MMT is damaging to human health and to the proper functioning of emissions control systems and the Declaration of Brescia on the prevention of the neurotoxicity of metals of 17 and 18 June 2006 which recommends, inter alia, that the addition of organic manganese compounds to fuels should be halted.
40. Consequently, it cannot be maintained that those scientific documents were not taken into account during the legislative procedure.
45. According to settled case-law, it must be recalled that the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C‑189/01 Jippes and Others  [2001] ECR I‑5689, paragraph 81; Case C‑558/07 S.P.C.M. and Others  [2009] ECR I‑0000, paragraph 41; and Joined Cases C‑379/08 and C‑380/08 ERG and Others  [2010] ECR I‑0000, paragraph 86 and case-law there cited).
46. With regard to judicial review of the conditions referred to in the previous paragraph, the European Union legislature must be allowed a broad discretion in an area which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. The legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue ( S.P.C.M. and Others , paragraph 42 and case-law there cited).
57. First, it must be borne in mind that the Commission’s impact assessment was not binding on either the Parliament or the Council.
60. A correct application of the precautionary principle presupposes, first, identification of the potentially negative consequences for health of the proposed use of MMT, and, secondly, a comprehensive assessment of the risk to health based on the most reliable scientific data available and the most recent results of international research (see Case C‑333/08 Commission  v France  [2010] ECR I‑0000, paragraph 92 and case-law there cited).
61. Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures, provided they are non-discriminatory and objective (see Commission  v France , paragraph 93 and case-law there cited).
62. In those circumstances, it must be acknowledged that the European Union legislature may, under the precautionary principle, take protective measures without having to wait for the reality and the seriousness of those risks to be fully demonstrated (see Commission  v France , paragraph 91).
74. According to settled case-law, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see S.P.C.M. and Others , paragraph 74 and case-law there cited).
79. According to settled case-law, the general principle of legal certainty, which is a fundamental principle of Community law, requires, in particular, that rules should be clear and precise, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly (see Case C‑110/03 Belgium  v Commission  [2005] ECR I‑2801, paragraph 30; Case C‑344/04 IATA and ELFAA  [2006] ECR I‑403, paragraph 68; and Intertanko and Others , paragraph 69).