Commission of the European Communities v Federal Republic of Germany.
Date: 2004-12-14
24. As to those submissions, it is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the complaints made by the Commission (see, inter alia, Case C-439/99 Commission  v Italy  [2002] ECR I-305, paragraph 10, and Case C-287/00 Commission  v Germany  [2002] ECR I-5811, paragraph 16).
25. The proper conduct of the pre-litigation procedure constitutes an essential guarantee not only in order to protect the rights of the Member State in question, but also so as to ensure that any contentious procedure has a clearly defined dispute as its subject-matter (see Commission  v Germany , cited above, paragraph 17).
26. The subject-matter of proceedings under Article 226 EC is therefore delimited by the pre-litigation procedure governed by that provision. It follows that the application must be founded on the same grounds and pleas as the reasoned opinion (see, inter alia, Commission  v Italy , cited above, paragraph 11).
36. 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.
Applicability of Article 28 EC
37. With regard to promotion of the reuse of packaging, as provided for by Directive 94/62, it should be noted first of all that it is apparent from the first recital in the preamble to the directive and from Article 1(1) that the directive pursues a twofold objective, consisting, first, in preventing and reducing the impact of packaging waste on the environment so as to provide a high level of environmental protection and, second, in ensuring the proper functioning of the internal market and avoiding obstacles to trade and distortion and restriction of competition within the Community (Case C-444/00 Mayer Parry Recycling  [2003] ECR I-6163, paragraph 71).
44. 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.
46. 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’.
47. Contrary to the German Government’s submissions, the judgment in DaimlerChrysler , cited above, cannot lead to a different conclusion. It is true that the Court held in paragraph 44 of that judgment that the use in a Community provision of the words ‘in accordance with the Treaty’ could not be construed as meaning that a national measure that satisfied the requirements of that provision had to be subject to a further and separate review of its compatibility with the Treaty provisions relating to the free movement of goods.
48. However, that judgment concerned Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1993 L 30, p. 1). This regulation governs in a harmonised manner, at Community level, the question of shipments of waste in order to ensure the protection of the environment ( DaimlerChrysler , paragraph 42). As has been found above, that is not true of Directive 94/62 so far as concerns the reuse of packaging.
55. Suffice it to state with regard to those submissions that, while the Court has held that a national provision by which a Member State discharges its obligations under a directive cannot be classified as a barrier to trade ( that n  see, to this effect, Case 46/76 Bauhuis  [1977] ECR 5, paragraphs 28 to 30, Case C-246/98 Berendse-Koenen  [2000] ECR I‑1777, paragraphs 24 and 25, and Deutscher Apothekerverband , cited above, paragraphs 52 to 54), it is clear that Article 5 of Directive 94/62 merely authorises the Member States to encourage systems for the reuse of packaging in conformity with the Treaty, without imposing any obligation to that effect.
62. 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 natural mineral water imported from other Member States (see to this effect, as regards reusable drinks packaging, Case 302/86 Commission  v Denmark  [1988] ECR 4607, paragraph 13).
63. 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).
66. Finally, contrary to the German Government’s submissions, Paragraphs 8 and 9 of the VerpackV cannot fall outside the scope of Article 28 EC on the ground that they regulate not the way in which natural mineral water is packaged but only the selling arrangements for it 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.).
67. 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).
69. 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).
Justification relating to protection of the environment
75. As to those submissions, it is settled case-law that 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 , cited above, paragraphs 6 and 9, and Case C-389/96 Aher-Waggon  [1998] ECR I-4473, paragraph 20).
78. 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).
79. In order for national rules to satisfy the latter test, they must afford the producers and distributors concerned a transitional period sufficient to enable them, before the deposit and return system enters into force, to adapt to the requirements of the new system.
80. However, the period of six months laid down in Paragraph 9(2) of the VerpackV between the announcement that a deposit and return system must be established and the entry into force of such a system is not sufficient to enable producers of natural mineral water to adapt their production and their management of non-reusable packaging waste to the new system, given that the system must be set up at the outset.