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

JUDGMENT OF THE COURT (Fifth Chamber)
16 September 2004 (1)

THE COURT (Fifth Chamber),

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1. This reference for a preliminary ruling concerns the interpretation of point 31(e) of Annex I to 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), as amended by European Parliament and Council Directive 94/60/EC of 20 December 1994 (OJ 1994 L 365, p. 1) (-�Directive 76/769-�).
2. The reference was made in the course of criminal proceedings brought against Mr Dupuy and Mr Rouvre concerning the putting on the market of certain products with a high lead content.

Legal background
Community legislation
3. According to the first recital in the preamble to Directive 76/769, -�any rules concerning the placing on the market of dangerous substances and preparations must aim at protecting the public, and [in] particular persons using such substances and preparations-�.
4. Article 1(1) and (3) of that directive provides:
-�1. Without prejudice to the application of other relevant Community provisions, this Directive is concerned with restricting the marketing and use in the Member States of the Community, of the dangerous substances and preparations listed in the Annex.
-�
3. For the purposes of this Directive:
(a) -�substances-� means chemical elements and their compounds as they occur in the natural state or as produced by industry;
(b) -�preparations-� means mixtures or solutions composed of two or more substances.-�
5. Point 31 of Annex I to Directive 76/769 (inserted by Directive 94/60/EC) contains the conditions which restrict marketing of those substances, in the following terms:

-�Designation of the substance, of the group of substances or of the preparation

Conditions of restriction

31. Substances which appear in Annex I to Directive 67/548/EEC classified as toxic for reproductive purposes category 1 or toxic for reproductive purposes category 2 and labelled with risk phrase R60: -�May impair fertility-� and/or R61: -�May cause harm to the unborn child-�, and listed as follows: Toxic for reproductive purposes category 1 See List 5 in the Appendix Toxic for reproductive purposes category 2 See List 6 in the Appendix

May not be used in substances and preparations placed on the market for sale to the general public in individual concentration equal to or greater than: By way of derogation, this provision shall not apply to: -� (e) artists-� paints covered by Directive 88/379/EEC.-�

6. Following the adoption of Commission Directive 97/10/EC of 26 February 1997 adapting to technical progress for the 3rd time Annex I to Directive 76/769 (OJ 1997 L 68, p. 24), point 31(e) of Annex I to Directive 76/769 became point 31(d), its wording remaining the same.
7. Council Directive 88/379/EEC of 7 June 1988 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (OJ 1988 L 187, p. 14), was repealed and replaced by Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (OJ 1999 L 200, p. 1).
8. In Article 2 of the latter directive various terms are defined, including -�substances-� and -�preparations-� in Paragraph 1 and -�dangerous-� in Paragraph 2. However, there is no definition of the term -�artists-� paints-�.
National legislation
9. The provisions relating to the use of dangerous substances appear in the interministerial decree of 7 August 1997 on restrictions on the placing on the market and use of certain products containing dangerous substances (JORF, 17 August 1997, p. 12218). Article 1 of that decree, as amended by the interministerial decree of 13 October 1998 on restrictions on the placing on the market and use of dangerous substances and preparations (JORF, 6 November 1998, p. 16772), provides:
-�Special provisions relating to substances and preparations classified as carcinogen, mutagen or toxic for reproductive purposes.
(a) Scope:
Placing on the market and importation, intended for the public, are prohibited for the substances and preparations defined below:
- substances classified as carcinogen category 1 or 2 listed in Annex I to this decree;
- substances classified as mutagen category 1 or 2 listed in Annex II to this decree;
- substances classified as toxic for reproductive purposes category 1 or 2, listed in Annex III to this decree;
- preparations containing one or more substances which are carcinogenic, mutagenic and/or toxic for reproductive purposes, referred to above, at an individual concentration equal to or higher than either that fixed in Annex I to the Decree of 20 April 1994 -� or that defined by Table VI in the Decree of 21 February 1990 -� if no concentration limit is fixed by the Decree of 20 April 1994 -�
This prohibition of placing on the market and importation, intended for the public, does not apply to products intended for professional use.
-�
Without prejudice to other provisions relating to the labelling of dangerous substances and preparations, the packaging of the substances and preparations mentioned above must bear the visible and indelible statement:
-�reserved for professional users -�-�.
(b) Derogation:
This prohibition of placing on the market and importation, intended for the public, does not apply to the following products, at the final stage, intended for the final user:
-�
5. Artists-� paints.-�

The main proceedings and the question referred for a preliminary ruling
10. Mr Dupuy and Mr Rouvre, the defendants in the main proceedings, are the person responsible and the administrative and finance director respectively of Colart International (-�COLART-�), a company established in Le Mans (France).
11. Following investigations on 23 November 1999, 3, 29 and 30 March 2000 and 19 April 2000, the Directions départementales de la concurrence, de la consommation et de la répression des fraudes (Directorates for competition, consumer affairs and prevention of fraud) of the départements of Nord, Oise and Sarthe (-�the DDCCRF-�) found that three products manufactured by COLART under the names -�Siccatif de Courtrai blanc-�, -�Siccatif de Courtrai brun-� and -�Huile Noire-� were manufactured and placed on the market for the public although they had a lead content which meant that they should be classified as preparations toxic for reproductive purposes.
12. The DDCCRF consider that those three products cannot in any circumstances be intended for sale to the public and that they should be marketed exclusively to professionals.
13. The defendants in the main proceedings are charged not only with placing those products on the market for the public, but also of deceiving some of their customers by presenting those products as merely prohibited from sale to the general public by self-service, when they were the subject of a prohibition on placing on the market.
14. According to the decision making the reference, the defendants in the main proceedings do not contest the lead content of the preparations at issue in the main proceedings or their classification as preparations toxic for reproductive purposes, but submit that the offences of which they are accused are not made out, since, while it is correct that the sale of those products to the public by self-service is prohibited, Article 1 of the interministerial decree of 7 August 1997 provides for a derogation for -�artists-� paints-�, which may be sold to the public subject to certain restrictions on marketing laid down by the Code de la santé publique (Code of Public Health).
15. They add that that derogation laid down by that decree corresponds to the transposition into domestic law of the provisions of the relevant European directives, in particular Annex I to Directive 76/769.
16. They submit that the siccatives at issue must be regarded as falling within the derogation for -�artists-� paints-� laid down by Directive 76/769. They state that the siccatives must necessarily be mixed into those paints when they are used by painters, and therefore constitute a full ingredient and not an -�additive-� considered in isolation.
17. The public prosecutor-�s office does not dispute that the products at issue have to be mixed with paints in order to be used, but considers however that the relevant provisions must be interpreted strictly and that siccatives do not fall within the category of paints but that of additives.
18. In those circumstances, the Tribunal de grande instance du Mans (Regional Court, Le Mans) decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:
-�Do the provisions of Community law relating to restrictions on the placing on the market of dangerous substances or preparations, in particular the provisions of Directive 76/769 and Directive 94/60 -� prohibit the placing on the market for sale to the public of siccatives containing lead compounds classified as toxic for reproductive purposes, or do those provisions permit the derogation laid down for -�artists-� paints-� to be applied to those products?-�

The question referred for a preliminary ruling
19. By its question the national court asks essentially whether siccatives containing lead compounds classified as toxic for reproductive purposes may be classified as -�artists-� paints-� within the scope of Directive 76/769 and consequently within the derogation for artists-� paints as regards the prohibition of marketing to the general public of products that are toxic for reproductive purposes.
Observations submitted to the Court
20. The Commission starts by observing that the concept of -�artists-� paints-� referred to in the derogation must be understood as covering preparations used by artists that already have the essential characteristics of paint, in particular its colouring power. It is conceivable that those preparations then have something added to them by the artist himself, as long as the addition does not concern the essential characteristics of paint. The Commission therefore submits that -�artists-� paints-� within the meaning of point 31 of Annex I to Directive 76/769 are preparations which already contain the colouring element which constitutes an essential characteristic of paint.
21. According to the Commission, siccatives are preparations containing metallic compounds which are added to start, accelerate or increase the absorption of oxygen by the film of paint or to eliminate conditions that prevent hardening. Siccatives are used essentially in oil paintings, where they reduce the drying time by accelerating the process of oxidation of the oil. The choice of siccative and the concentration used are important for the proper conservation of the paint surface.
22. In the Commission-�s view, siccatives do not add colouring power to the paint used by the artist and are not systematically used in painting by artists. They could, however, prove necessary for the use of certain paints, in particular paints which dry very slowly.
23. In the light of those observations and in accordance with the principle that derogations are to be interpreted strictly, the Commission considers that siccatives are additives which cannot be equated with -�artists-� paints-� so as to benefit from the derogation for those products and that they are reserved for professionals.
24. The French Government considers that the derogation for -�artists-� paints-� under Directive 76/769 constitutes an exception and, in accordance with the Court-�s case-law, must be interpreted strictly. Such an interpretation is also required by the objective of public health pursued in particular by Directive 76/769. In the absence of additional indications in that directive, the derogation may therefore be applied solely to -�artists-� paints-�, with no possibility of extending it to products which enable those paints to be used.
The Court-�s answer
25. Point 31 of Annex I to Directive 76/769 states that -�substances which appear in Annex I to Directive 67/548/EEC classified as toxic for reproductive purposes category 1 or toxic for reproductive purposes category 2-� may not be used in substances and preparations placed on the market for sale to the general public where they exceed certain concentrations.
26. That point also states that, by way of derogation, that prohibition is not to apply to -�artists-� paints-� covered by Directive 88/379.
27. However, neither that directive nor Directive 1999/45 which replaced it specifies the meaning to be given to the expression -�artists-� paints-�.
28. In those circumstances, the essential characteristic which gives a substance or preparation the character of a paint must first be determined. As the Commission rightly observes, the concept of -�artists-� paints-� must be interpreted as referring to preparations used by artists which already have the essential characteristics of paint, in particular its colouring power.
29. Siccatives which do not contain any colouring element or possess any colouring properties and whose sole purpose is to accelerate the process of oxidation of the oil cannot be regarded as being in the nature of -�artists-� paints-� within the meaning of point 31 of Annex I to Directive 76/769. The derogation provided for in that annex refers solely to preparations which already contain the colouring element which constitutes an essential characteristic of paint.
30. It must be stressed, next, that that derogation is an exception to the general prohibition of sale to the general public of products classified as -�toxic for reproductive purposes category 1 or toxic for reproductive purposes category 2-�.
31. It follows from the Court-�s case-law that, in view of the objective of the protection of public health pursued by Directive 76/769, the prohibition laid down by that directive with respect to products classified as -�toxic for reproductive purposes category 1 or toxic for reproductive purposes category 2-� must be interpreted widely and the exception laid down for -�artists-� paints-� must be interpreted narrowly (see, to that effect, Case C-286/02 Bellio F.lli [2004] ECR I-0000, paragraph 46).
32. In the absence of a specific mention of siccatives in the context of the derogations laid down in point 31 of Annex I to Directive 76/769 and in the absence of additional specifications in that directive, the derogation may be applied only to products covered by the expression -�artists-� colours-� and cannot be extended to products which lack colouring properties or whose purpose is merely to enable a paint to be used.
33. That narrow interpretation of the scope of the derogation is confirmed by the fundamental purpose pursued by Directive 76/769, as set out in the first recital in its preamble. Since that purpose is to protect the public, in particular persons using dangerous substances and preparations, the general principle which must underlie implementation of Directive 76/769 is to prohibit all products whose effects are harmful to health, with that principle allowing only certain derogations specifically provided for in the directive.
34. In those circumstances, the answer to the national court-�s question must be that the provisions of Community law relating to restrictions on the placing on the market of dangerous substances or preparations, in particular the provisions of Directive 76/769, prohibit the placing on the market for sale to the general public of siccatives containing lead compounds classified as toxic for reproductive purposes.

Costs
35. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.




On those grounds, the Court (Fifth Chamber) rules as follows:
The provisions of Community law relating to restrictions on the placing on the market of dangerous substances or preparations, in particular the provisions of 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, as amended by European Parliament and Council Directive 94/60/EC of 20 December 1994, prohibit the placing on the market for sale to the general public of siccatives containing lead compounds classified as toxic for reproductive purposes.

Signatures.

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1 - Language of the case: French.