Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT

18 June 2002 (1)

(Dangerous substances - Marketing and use - Directives 76/769/EEC, 91/338/EEC and 1999/51/EC - Derogation - Adaptation to technical progress - Legal basis - Limitations on the use of cadmium in Austria and Sweden)

In Case C-314/99,

Kingdom of the Netherlands, represented by M.A. Fierstra and N. Wijmenga, acting as Agents,

applicant,

v

Commission of the European Communities, represented by H. van Lier and O. Couvert-Castéra, acting as Agents, assisted by J. Stuyck, avocat, with an address for service in Luxembourg,

defendant,

supported by

Kingdom of Sweden, represented by L. Nordling, acting as Agent, with an address for service in Luxembourg,

intervener,

APPLICATION for annulment of Section 3 of the Annex to Commission Directive 1999/51/EC of 26 May 1999 adapting to technical progress for the fifth time Annex I to Council Directive 76/769/EEC on the approximation of the laws, regulations, and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (tin, PCP and cadmium) (OJ 1999 L 142, p. 22),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, P. Jann, F. Macken and N. Colneric (Presidents of Chambers), C. Gulmann (Rapporteur), D.A.O. Edward, J.-P. Puissochet, V. Skouris and C.W.A. Timmermans, Judges,

Advocate General: F.G. Jacobs,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 11 September 2001,

after hearing the Opinion of the Advocate General at the sitting on 15 November 2001,

gives the following

Judgment

1. By application received at the Court Registry on 23 August 1999, the Kingdom of the Netherlands brought an action under the first paragraph of Article 230 EC for annulment of Section 3 of the Annex to Commission Directive 1999/51/EC of 26 May 1999 adapting to technical progress for the fifth time Annex I to Council Directive 76/769/EEC on the approximation of the laws, regulations, and administrative provisions of the Member States relating to restrictions on the marketing and use ofcertain dangerous substances and preparations (tin, PCP and cadmium) (OJ 1999 L 142, p. 22).

2. By order of the President of the Court of 11 April 2000, the Kingdom of Sweden was granted leave to intervene in support of the form of order sought by the Commission of the European Communities.

   The legal framework

3. Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (OJ 1976 L 262, p. 201) establishes rules restricting the marketing and use of certain dangerous substances and preparations. According to Article 1(1), it applies to the substances and preparations listed in its Annex I.

4. Article 2 of Directive 76/769 states:

   'Member States shall take all necessary measures to ensure that the dangerous substances and preparations listed in the Annex may only be placed on the market or used subject to the conditions specified therein. ...'

5. Council Directive 89/678/EEC of 21 December 1989 amending Directive 76/769 (OJ 1989 L 398, p. 24) inserted in Directive 76/769 an Article 2a, under which the amendments required to adapt the Annexes to technical progress, with regard to the substances and preparations already covered by Directive 76/769, are to be adopted in accordance with the procedure laid down in Article 29 of Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967 (I), p. 234), as amended by Council Directive 92/32/EEC of 30 April 1992 (OJ 1992 L 154, p. 1, hereinafter 'Directive 67/548').

6. Article 29 of Directive 67/548 provides that, for the purposes of adaptation to technical progress, the Commission is to be assisted by a committee composed of the representatives of the Member States and chaired by the representative of the Commission. That article specifies, in particular, that the Commission must adopt the measures envisaged if they are in accordance with the opinion of the committee and that, otherwise, it must submit to the Council, for a decision by a qualified majority, a proposal relating to the measures to be taken.

7. Council Directive 91/338/EEC of 18 June 1991 amending for the 10th time Directive 76/769 (OJ 1991 L 186, p. 59), which was adopted on the basis of Article 100a of the EEC Treaty (now, after amendment, Article 95 EC), inserted in Annex I to Directive76/769 a new Section 24 which adds cadmium and its compounds to the number of dangerous substances and preparations whose marketing and use are subject to restrictions. It lists three types of applications for cadmium and its compounds - as colourants, as stabilisers and for surface treatment (cadmium plating) - whose use it regulates.

8. Article 2 of Directive 91/338 states:

   'Owing to the development of knowledge and techniques in respect of substitutes less dangerous than cadmium and its compounds, the Commission shall, in consultation with the Member States, reassess the situation for the first time within three years of the date referred to in Article 3(1) and subsequently at regular intervals in accordance with the procedure laid down in Article 2a of Directive 76/769/EEC.'

9. Article 69(1) of the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1, hereinafter 'the Act of Accession') provides, in respect of the Republic of Austria, that during a period of four years from the date of accession, the provisions referred to in Annex VIII will not apply to that Member State, in accordance with that Annex and subject to the conditions set out therein.

10. Article 112(1) of the Act of Accession lays down the same transitional measure, in identical terms, for the benefit of the Kingdom of Sweden with respect to the rules contained in Annex XII.

11. Among the provisions referred to in Annex VIII to the Act of Accession applicable to the Republic of Austria is Section 24.2.1, concerning the use of cadmium as a stabiliser in PVC (polyvinyl chloride), of Annex I to Directive 76/769, as amended by Directive 91/338.

12. Among the provisions referred to in Annex XII to the Act of Accession applicable to the Kingdom of Sweden is Section 24 of Annex I to Directive 76/769, as amended by Directive 91/338. That annex specifies that that new Member State 'shall, however, maintain throughout the transitional period, with regard to china and ceramic products, including ceramic tiles, the free circulation provided by the provision of its current ordinance relating to exemptions from the ban on the use of cadmium for surface treatment or as a stabiliser or as a colouring agent.'

13. Articles 69(2) and 112(2) of the Act of Accession, worded in the same terms and concerning, respectively, the Republic of Austria and the Kingdom of Sweden, state:

    'The provisions referred to in paragraph 1 shall be reviewed within [four years from the date of accession] in accordance with EC procedures.

    Without prejudice to the outcome of that review, at the end of [that period], the EC acquis will be applicable to the new Member States under the same conditions as in the present Member States.'

14. On 26 May 1999 the Commission, on the basis of Article 2a of Directive 76/769, as amended by Directive 89/678 (hereinafter 'Directive 76/769'), adopted Directive 1999/51. The fifth recital in the preamble to that Directive states that Council Resolution 88/C 30/01 of 25 January 1988 on a Community action programme to combat environmental pollution by cadmium (OJ 1988 C 30, p. 1) calls for an overall strategy to combat environmental pollution by cadmium, including measures to restrict the use of cadmium and stimulate the development of substitutes. That recital also states that the risks posed by cadmium are being assessed under Council Regulation (EEC) No 793/93 of 23 March 1993 on the evaluation and control of the risks of existing substances (OJ 1993 L 84, p. 1), that the Commission will review the restrictions on cadmium in light of the results and that therefore, as an interim measure, the Republic of Austria and the Kingdom of Sweden, which apply more far-reaching restrictions, may retain these.

15. Section 3 of the Annex to Directive 1999/51 (hereinafter 'the contested provision') added to Section 24, relating to cadmium and its compounds, of Annex I to Directive 76/769, as amended by Directive 91/338, the following Section 4:

    'Austria and Sweden, which already apply restrictions to cadmium going further than those prescribed in Sections 1, 2 and 3 may continue to apply these restrictions until 31 December 2002. The Commission will review the provisions on cadmium in Annex I to Directive 76/769/EEC before this date in light of the results of risk assessment for cadmium and of development of knowledge and techniques in respect of substitutes for cadmium.'

    The action for annulment

16. The Kingdom of the Netherlands puts forward four pleas in law in support of its application for the annulment of the contested provision. First, the Commission exceeded its powers by adopting that provision on the basis of Article 2a of Directive 76/769. Second, the contested provision is contrary to the substantive provisions of that directive, since it implies that Section 24 of Annex I to that directive, as amended by Directive 91/338, entails an exhaustive harmonisation of the uses to which cadmium can be put. Third, the contested provision was adopted in breach of the principle of legal certainty. Fourth, it fails to fulfil the requirements to state reasons as set out in Article 253 EC.

    The first plea: the Commission exceeded its powers

17. Under the first head of its first plea, the Netherlands Government maintains that the contested provision cannot be considered an amendment required to adapt Annex I to Directive 76/769 to technical progress within the meaning of Article 2a of that same directive.

    Arguments of the parties

18. The Netherlands Government points out that under Article 2a of Directive 76/769, the Commission has the power to adopt, in accordance with the procedure laid down in Article 29 of Directive 67/548, the amendments required to adapt Annex I to Directive 76/769 to technical progress with regard to the substances and preparations already covered by that annex. In its view, the essential purpose of that provision is to enable the Community authorities to react immediately by imposing restrictions on the existing uses of dangerous substances and preparations when damage to the public or to the environment is detected, in particular in cases which have serious consequences for human health.

19. The Netherlands Government submits that it follows that the contested provision cannot be considered as an amendment required to adapt to technical progress, within the meaning of Article 2a of Directive 76/769, Section 24 of Annex I to that directive, as amended by Directive 91/338. On the one hand, the contested provision is not based on advances in knowledge and techniques regarding substitutes for cadmium, as can be seen from the fifth recital in the preamble to Directive 1999/51. Assessment of the risk to the environment and human health posed by the use of cadmium had not been completed at the time when the Commission adopted the contested provision. On the other hand, advances in knowledge and techniques regarding substitutes for cadmium must by their nature affect equally all of the Member States. The contested provision, however, created a special regime for the Republic of Austria and the Kingdom of Sweden.

20. The Netherlands Government maintains that the contested provision aims essentially to prevent the practical difficulties which would have arisen in those two Member States if they had been forced, following the expiry of the derogations laid down in Articles 69 and 112 of the Act of Accession, to change their legislation shortly before the introduction of new Community restrictions on the use of cadmium. In those circumstances, the contested provision must be regarded as an amendment of Annex I to Directive 76/769 anticipating a future adaptation of that annex to technical progress within the meaning of Article 2a of that directive.

21. The Commission, supported by the Swedish Government, contends that Article 2a of Directive 76/769 gives it the power to adopt, in accordance with the procedure set out in Article 29 of Directive 67/548, amendments of minor significance to Annex I to Directive 76/769. Contrary to the contention of the Netherlands Government, there is no general prohibition on the Commission exercising that power in the absence of final and complete scientific studies regarding the risks posed by the use of cadmium and the possibility of replacing it by substitutes. When adopting the contested provision,the Commission took account of the preliminary results of the pending risk assessment of cadmium, which indicated that there was a need further to restrict its use, and of the fact that the submission of a proposal to that effect was imminent.

22. The Commission also states that, since additional restrictions on the use of cadmium are quite likely to be required, it would have disappointed the legitimate expectations of the Republic of Austria and the Kingdom of Sweden, and breached the principle of sound administration, not to have adopted the contested provision. Had that been the case, those States would have been required to repeal the restrictions provided for by their legislation although similar restrictions would most probably be introduced before long at Community level.

23. Lastly, the Commission contends that, in those particular circumstances, a special regime for the Republic of Austria and the Kingdom of Sweden, equivalent to that laid down as a transitional measure in the Act of Accession, was justified. That regime simply reflected the fact that those two Member States are advanced in the area of the prevention of the health risks posed by cadmium, and that the stringent rules regulating its use laid down in their legislation will, in all likelihood, be adopted at Community level in the near future.

Findings of the Court

24. Article 2a of Directive 76/769 gives the Commission the power to adopt 'the amendments required to adapt [Annex I] to technical progress'. That provision was inserted in Directive 76/769 by Directive 89/678, the first and third recitals in the preamble to which state that 'the public and the environment are constantly exposed to new risks resulting from the use of chemical products; ... when damage is detected and in particular when cases which have serious consequences for human health are observed, immediate action is required for the prohibition or limiting of the marketing or use of certain dangerous substances and preparations at Community level' and that 'technical progress makes it necessary to adapt the provisions contained in the Annex to Directive 76/769 promptly'.

25. Thus, by introducing an alternative procedure to that laid down in Article 95 EC, the Community legislature intended to make possible, at Community level, immediate amendments to Annex I to Directive 76/769 when new risks to human health and the environment were detected, requiring new restrictions on the use of certain dangerous substances and preparations.

26. In order for the Commission to have recourse to that procedure, it must have in its possession sufficiently reliable scientific data demonstrating that it is necessary to introduce such restrictions on the use of the substance or preparation concerned.

27. However, the contested provision does not include any new restriction on the use of cadmium at Community level. It is limited to permitting the Republic of Austria and the Kingdom of Sweden to maintain existing restrictions on the use of that substance.

28. The Commission does not deny that, at the time when the contested provision was adopted, it did not possess sufficiently reliable scientific information to allow it to propose an adaptation to technical progress of Section 24, relating to cadmium and its compounds, of Annex I to Directive 76/769, as amended by Directive 91/338, at Community level. Moreover, none of the parties which submitted observations maintains that, according to the scientific knowledge of the subject, there are specific circumstances in either Austria or Sweden that could justify an assessment of the risks posed by the use of cadmium in those two Member States different from that carried out at Community level.

29. Accordingly, the contested provision clearly cannot be regarded as an adaptation of Annex I to Directive 76/769 to technical progress within the meaning of Article 2a of that directive.

30. Consequently, the first head of the first plea of the Netherlands Government must be upheld and the contested provision must be annulled, without it being necessary to consider the second head of the same plea, and the second, third and fourth pleas.

31 At the hearing, the Netherlands Government suggested that, were the contested provision to be annulled, the Court should limit the temporal effects of such annulment. However, although important grounds of legal certainty, comparable to those which arise when certain regulations are annulled, can justify the Court using its power under the second paragraph of Article 231 EC to decide to maintain the effects of the acts which have been declared void, the existence of such grounds has not been made clear in the present case. Accordingly, the Court considers that there is no need to apply that provision in this case.

Costs

32 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Kingdom of the Netherlands has applied for costs and the Commission has been unsuccessful, the latter must be ordered to pay the costs. In application of the first paragraph of Article 69(4) of those Rules, the Kingdom of Sweden, which intervened in the proceedings, must bear its own costs.

On those grounds,

THE COURT

hereby:

1. Annuls Section 3 of the Annex to Commission Directive 1999/51/EC of 26 May 1999 adapting to technical progress for the fifth time Annex I to Council Directive 76/769/EEC on the approximation of the laws,regulations, and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (tin, PCP and cadmium);

2. Orders the Commission of the European Communities to pay the costs;

3. Orders the Kingdom of Sweden to bear its own costs.

Rodríguez IglesiasJann Macken Colneric Gulmann Edward Puissochet Skouris Timmermans

Delivered in open court in Luxembourg on 18 June 2002.

R. Grass G.C. Rodríguez Iglesias

Registrar President

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1: Language of the case: Dutch.