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

JUDGMENT OF THE COURT (Third Chamber)

10 November 2016 (*)

(Reference for a preliminary ruling — Environment — Directive 94/62/EC — Article 3 — Packaging and packaging waste — Definition — Rolls, tubes and cylinders around which flexible material is wound (‘Roll cores’) — Directive 2013/2/EU — Validity — Amendment by the European Commission of the list of examples of packaging set out in Annex I to Directive 94/62/EC — Misinterpretation of the term ‘packaging’ — Misuse of implementing powers)

In Joined Cases C‑313/15 and C‑530/15,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Tribunal de commerce de Paris (France), made by decision of 19 June 2015, received at the Court on 25 June 2015, and from the Conseil d’État (France), made by decision of 1 October 2015, received at the Court on 8 October 2015, in the proceedings

Eco-Emballages SA

v

Sphère France SAS,

Carrefour Import SAS,

SCA Tissue France SAS,

Melitta France SAS,

SCA Hygiène Products SAS,

Wepa France SAS, formerly Wepa Troyes SAS,

Industrie Cartarie Tronchetti SpA,

Industrie Cartarie Tronchetti Ibérica SL,

Cofresco Frischhalteprodukte GmbH & Co. KG,

Kimberly-Clark SAS,

Gopack SAS,

Délipapier SAS,

Scamark SAS,

CMC France SARL,

Schweitzer SAS,

Paul Hartmann SA,

Wepa France SAS, formerly Wepa Lille SAS,

Système U Centrale Nationale SA,

Industrie Cartarie Tronchetti France SAS,

intervener:

Group’Hygiène syndicat professionnel (C‑313/15),

and

Melitta France SAS,

Cofresco Frischhalteprodukte GmbH & Co. KG,

Délipapier SAS,

Gopack SAS,

Industrie Cartarie Tronchetti SpA,

Industrie Cartarie Tronchetti Ibérica SL,

Kimberly-Clark SAS,

Wepa France SAS, formerly Lucart France,

Paul Hartmann SA,

SCA Hygiène Products SAS,

SCA Tissue France SAS,

Group’Hygiène syndicat professionnel

v

Ministre de l’Écologie, du Développement durable et de l'Énergie,

intervener:

Industrie Cartarie Tronchetti France SAS (C‑530/15),

THE COURT (Third Chamber),

composed of L. Bay Larsen, President of the Chamber, M. Vilaras (Rapporteur), J. Malenovský, M. Safjan and, D. Šváby, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: V. Tourrès, Administrator,

having regard to the written procedure and further to the hearing on 4 May 2016,

after considering the observations submitted on behalf of:

–        Eco-Emballages SA, by L. Koehler-Magne, avocat,

–        Délipapier SAS, Gopack SAS, Industrie Cartarie Tronchetti SpA, Industrie Cartarie Tronchetti Ibérica SL, Industrie Cartarie Tronchetti France SAS, Kimberly-Clark SAS, Wepa France SAS, formerly Lucart France, Paul Hartmann SA, SCA Hygiène Products SAS, SCA Tissue France SAS, CMC France SARL and Group’Hygiène syndicat professionnel, by N. Chahid-Nouraï, J.-M. Leprêtre and C. Boillot, avocats,

–        Melitta France SAS and Cofresco Frischhalteprodukte GmbH & Co. KG, by H. Weil and A. de Lalande, avocats,

–        Système U Centrale Nationale SAS, by A. Gossement, avocat,

–        the French Government, by D. Colas, J. Traband and S. Ghiandoni, acting as Agents,

–        the European Commission, by E. Sanfrutos Cano, F. Simonetti, S. Petrova and C. Zadra, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 13 July 2016,

gives the following

Judgment

1        These requests for a preliminary ruling concern the interpretation of Article 3 of Directive 94/62/EC of the European Parliament and of the Council of 20 December 1994 on packaging and packaging waste (OJ 1994 L 365, p. 10), as amended, in particular, by Directive 2004/12/EC of the European Parliament and of the Council of 11 February 2004 (OJ 2004 L 47, p. 26) (‘Directive 94/62’), and the validity of Commission Directive 2013/2/EU of 7 February 2013 amending Annex I to Directive 94/62 (OJ 2013 L 37, p. 10, ‘Directive 2013/2’).

2        The request in Case C‑313/15 has been made in proceedings between Eco-Emballages SA, on the one hand, and Sphère France SAS, Carrefour Import SAS, SCA Tissue France SAS, Melitta France SAS, SCA Hygiène Products SAS, Wepa France SAS, formerly Wepa Troyes SAS, Industrie Cartarie Tronchetti SpA, Industrie Cartarie Tronchetti Ibérica SL, Cofresco Frischhalteprodukte GmbH & Co. KG, Kimberly-Clark SAS, Gopack SAS, Délipapier SAS, Scamark SAS, CMC France SARL, Schweitzer SAS, Paul Hartmann SA, Wepa France SAS, formerly Wepa Lille SAS, Système U Centrale Nationale SA and Industrie Cartarie Tronchetti France SAS, on the other, concerning the latter’s refusal to pay the financial contributions due in respect of the recycling of items that they placed on the market as from 1 January 2007 and which Eco-Emballages considered to be packaging products.

3        The request in Case C‑530/15 has been made in proceedings brought by Melitta France SAS, Cofresco Frischhalteprodukte GmbH & Co. KG, Délipapier SAS, Gopack SAS, Industrie Cartarie Tronchetti SpA, Industrie Cartarie Tronchetti Ibérica SL, Kimberly-Clark SAS, Wepa France SAS, Paul Hartmann SA, SCA Hygiène Products SAS, SCA Tissue France SAS and Group’Hygiène syndicat professionnel seeking the annulment, as ultra vires, of the Order of the Minister for Ecology, Sustainable Development and Energy of 6 August 2013, amending the Order of 7 February 2012 on examples of the application of the criteria defining the concept of ‘packaging’ as laid down by Article R. 543-43 of the Environmental Code (JORF No 198, of 27 August 2013, p. 14487, ‘the Order of 6 August 2013’).

 Legal context

 EU law

4        Article 3(1) of Directive 94/62 provides:

‘For the purposes of this Directive:

1.      “packaging” shall mean all products made of any materials of any nature to be used for the containment, protection, handling, delivery and presentation of goods, from raw materials to processed goods, from the producer to the user or the consumer. “Non-returnable” items used for the same purposes shall also be considered to constitute packaging.

“Packaging” consists only of:

(a)      sales packaging or primary packaging, i.e. packaging conceived so as to constitute a sales unit to the final user or consumer at the point of purchase;

(b)      grouped packaging or secondary packaging, i.e. packaging conceived so as to constitute at the point of purchase a grouping of a certain number of sales units whether the latter is sold as such to the final user or consumer or whether it serves only as a means to replenish the shelves at the point of sale; it can be removed from the product without affecting its characteristics;

(c)      transport packaging or tertiary packaging, i.e. packaging conceived so as to facilitate handling and transport of a number of sales units or grouped packagings in order to prevent physical handling and transport damage. Transport packaging does not include road, rail, ship and air containers.

The definition of “packaging” shall be further based on the criteria set out below. The items listed in Annex I are illustrative examples of the application of these criteria.

(i)      Items shall be considered to be packaging if they fulfil the abovementioned definition without prejudice to other functions which the packaging might also perform, unless the item is an integral part of a product and it is necessary to contain, support or preserve that product throughout its lifetime and all elements are intended to be used, consumed or disposed of together.

(ii)      Items designed and intended to be filled at the point of sale and “disposable” items sold, filled or designed and intended to be filled at the point of sale shall be considered to be packaging provided they fulfil a packaging function.

(iii) Packaging components and ancillary elements integrated into packaging shall be considered to be part of the packaging into which they are integrated. Ancillary elements hung directly on, or attached to, a product and which perform a packaging function shall be considered to be packaging unless they are an integral part of this product and all elements are intended to be consumed or disposed of together.

The Commission shall, as appropriate, in accordance with the procedure referred to in Article 21, examine and, where necessary, review the illustrative examples for the definition of packaging given in Annex I. As a priority, the following items shall be addressed: CD and video cases, flower pots, tubes and cylinders around which flexible material is wound, release paper of self-adhesive labels and wrapping paper ...’

5        Recitals 2 and 4 of Directive 2013/2 state:

‘(2)      For reasons of legal certainty and harmonisation of the interpretation of the definition of “packaging”, it is necessary to review and amend the list of illustrative examples to clarify additional cases where the borderline between what is packaging and what is not, remains unclear. The review follows calls from the Member States and the economic operators to reinforce the implementation of the Directive and create a level playing field in the internal market.

...

(4)      The Committee established by Article 21 of Directive [94/62] has not delivered an opinion (on the measures provided for in this Directive) and the Commission therefore submitted to the Council a proposal relating to the measures and forwarded it to the European Parliament. The Council did not act within the 23-month period provided for by Article 5a of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [(OJ 1999, L 184, p. 23)], and the Commission therefore submitted the proposal to the European Parliament without delay. The European Parliament did not oppose the measure within 4 months from the abovementioned forwarding.

...’

6        Annex I to Directive 94/62, entitled ‘Illustrative examples for the criteria referred to in Article 3(1)’, as amended by Directive 2013/2, provides:

‘Illustrative examples for criterion (i)

Packaging

...

Rolls, tubes and cylinders around which flexible material (e.g. plastic film, aluminium, paper) is wound, except rolls, tubes and cylinders intended as parts of production machinery and not used to present a product as a sales unit

...’

 French law

7        Article L. 541-10-II of the Environmental Code provides:

‘Under the principle of extended producer responsibility, producers, importers and distributors [of products which generate waste] or of components and material used in their manufacture may be required to provide for or to contribute to the prevention and management of the resulting waste.

The producers, importers or distributors on which the abovementioned obligation is imposed by the provisions of the present section and subject to those provisions, shall fulfil their obligation by establishing individual systems for the collection and treatment of waste generated by their products or by collectively establishing eco-organisms, bodies to which they shall pay a financial contribution and transfer their obligation, and in respect of which they shall ensure the governance. A producer, importer or distributor which establishes an approved individual waste collection and treatment system or an authorised eco-organism, when it provides for the management of waste pursuant to section II of the present article, is a holder of that waste within the meaning of the present chapter.

...

The eco-organisms shall be authorised by the State for renewable periods of up to six years if they establish that they have the technical and financial capacities to meet the requirements set out in specifications fixed by interministerial order, and after consulting the representative body of industry stakeholders.

…’

8        Article L. 543-56 of that code provides:

‘Any producer or importer whose products are sold in packaging of a nature similar to that referred to in Article R. 543-55 or, if the producer or the importer cannot be identified, the person responsible for the first marketing of those products, is required to contribute to or to provide for the management of all of its packaging waste, in accordance with Articles L. 2224-13 to L. 2224-16 of the General Local Authorities Code.’

9        Article R. 543-43 of the Environmental Code provides:

‘I.       For the purposes of the present subsection, “packaging” shall mean any product, whatever the nature of the materials it is composed of, intended to be used for the containment, protection, handling, delivery and presentation of goods, from the producer to the user or the consumer. “Non-returnable” items used for the same purposes shall also be considered to constitute packaging.

The definition of ‘packaging’ shall be based on the following criteria:

1°      An item shall be considered to be packaging if it meets the abovementioned definition, without prejudice to other functions which the packaging might also perform, unless the item is an integral part of a product and it is necessary to contain, support or preserve that product throughout its lifetime and all elements are intended to be used, consumed or disposed of together;

...

Examples illustrating the application of those criteria are to be specified in an order of the Minister responsible for the environment.’

10      The Order of 6 August 2013, which amended Article 1 of the Order of 7 February 2012 on examples of the application of the criteria defining the concept of ‘packaging’ as laid down by Article R. 543-43 of the Environmental Code, provides:

‘The following examples are added for criterion (i) of point I of Article R. 543-43 of the Environmental Code:

–        Packaging:

...

–        Rolls, tubes and cylinders around which flexible material (e.g. plastic film, aluminium, paper) is wound, except rolls, tubes and cylinders intended as parts of production machinery and not used to present a product as a sales unit.’

 The main proceedings, the questions referred and the proceedings before the Court

 Case C‑313/15

11      Eco-emballages is an eco-organism authorised by the State and empowered to enter into contracts with undertakings which place packaging on the French market, pursuant to which contracts it meets their obligation to contribute to the elimination of household packaging waste, in return for the payment of a contribution calculated on the basis of the amount of packaging distributed and the weight of the material of which that packaging is composed.

12      In January 2013, Eco-emballages brought legal proceedings against the defendant undertakings, seeking — on the basis of Article R. 543-43 of the Environmental Code, which transposes Directive 94/62 into French law — the payment, by those undertakings, of contributions in respect of the roll cores in the form of rolls, tubes and cylinders around which flexible material is rolled, such as plastic film, aluminium, toilet paper or absorbent paper, that they sold as from 1 January 2007.

13      The defendants in the main proceedings argued, however, that those roll cores do not correspond to the definition of ‘packaging’, within the meaning of Article 3 of Directive 94/62. In particular, they emphasised, first, that the very term ‘packaging’ necessarily refers to something that, if not wrapping, is at least external to the product and, secondly, that such a roll core neither contains nor protects the product, since it is not an external but an internal component. They submitted, thirdly, that, in the past, roll cores had never been regarded as packaging, precisely because they do not package the product, as follows, inter alia, from the parliamentary debates concerning the adoption of Directive 2004/12. In any event, Directive 2013/2 — which, as noted in the preamble to that directive, was approved by neither the European Parliament nor the Council — is merely an illustrative guide issued by the Commission alone.

14      Arguing that there is no consensus that such roll cores should be classified as packaging, some of the defendants in the main proceedings therefore asked the Tribunal de commerce de Paris (Paris Commercial Court, France) to refer a question to the Court of Justice for a preliminary ruling seeking to determine whether Article 3 of Directive 94/62 must be interpreted as including those roll cores.

15      That court, after recalling the wording of Article 3 of Directive 94/62, then noted that Directive 2013/2, which amends only Annex I to Directive 94/62, had been approved by the Commission alone — since the committee established by Article 21 of Directive 94/62 did not deliver an opinion and the Council did not take any decision on the Commission’s proposal — and took the view that it was merely illustrative, that it did not have the definitive nature that articles of a directive have and that it therefore had not amended the general definition of packaging.

16      In those circumstances, the Tribunal de commerce de Paris (Paris Commercial Court), decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does the concept of packaging, as defined in Article 3 of Directive [94/62], include “roll cores” (rolls, tubes, cylinders) around which flexible material, such as paper or plastic film, is wound and sold to consumers?’

 Case C‑530/15

17      By an application lodged on 28 October 2013, the applicants in the main proceedings brought an action before the Conseil d’État (Council of State, France) seeking the annulment as ultra vires of the Order of 6 August 2013.

18      The referring court states that the Order of 6 August 2013 transposes Directive 2013/2 into French law by adding roll cores, as defined by that directive, to the list of examples of packaging, that in January 2013 Eco-Emballages brought legal proceedings before the Tribunal de commerce de Paris (Paris Commercial Court) against various companies, including the applicants in the main proceedings, seeking a declaration of the existence of debts in respect of the contributions payable for the roll cores — of the same type as those at issue in Case C‑313/15 — that some products marketed by those companies contain and that that court, by judgment of 19 June 2015, had referred a question for a preliminary ruling to the Court of Justice concerning the interpretation of Article 3 of Directive 94/62, set out in paragraph 16 above.

19      The referring court also indicates that, in the event that the Court of Justice should answer the question referred by the tribunal de commerce de Paris (Paris Commercial Court) in Case C‑313/15 in the negative, the applicant companies call into question the validity of Directive 2013/2, arguing that, by including such roll cores among the examples of packaging, that directive misconstrued the term ‘packaging’, within the meaning of Article 3 of Directive 94/62, and exceeded the scope of the authorisation granted to the Commission in respect of its implementing powers.

20      In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘By including “roll cores” (rolls, tubes, cylinders) around which flexible material, such as paper or plastic film, is wound and sold to consumers in the examples of packaging, has Directive [2013/2] misconstrued the term “packaging”, as defined in Article 3 of Directive [94/62], and exceeded the scope of the authorisation granted to the Commission in respect of its implementing powers?’

 Procedure before the Court

21      By decision of the President of the Court of Justice of 28 October 2015, Cases C‑313/15 and C‑530/15 were joined for the purposes of the written and oral procedures and also for judgment.

 The question referred in Case C‑313/15

22      By its question, the referring court asks, in essence, whether Article 3(1) of Directive 94/62 must be interpreted as meaning that roll cores in the form of rolls, tubes or cylinders, around which flexible material is wound and sold to consumers, constitute ‘packaging’ within the meaning of that provision.

23      In that respect, it must be noted first of all that, in accordance with Article 1 thereof, Directive 94/62 aims, inter alia, to prevent and reduce the impact of packaging and packaging waste on the environment of the Member States and of third countries, thus providing a high level of environmental protection, by, in particular, requiring Member States to establish a system of collection and recovery of packaging and packaging waste. To that end, as can be seen from Recital 5 and in accordance with Article 2(1) thereof, Directive 94/62 covers all packaging placed on the market in the European Union and all packaging waste.

24      It follows that, as the Court has already held, the term ‘packaging’ must be given a broad interpretation (see, to that effect, judgment of 29 April 2004, Plato Plastik Robert Frank, C‑341/01, EU:C:2004:254, paragraphs 56 and 57).

25      It must next be recalled that, in order to constitute packaging within the meaning of Article 3(1) of Directive 94/62, an article must (i) fulfil the two conditions set out in the first and second subparagraphs of Article 3(1) of Directive 94/62 (see, to that effect, judgment of 29 April 2004, Plato Plastik Robert Frank, C‑341/01, EU:C:2004:254, paragraph 47) and (ii) meet the criteria set out in the third subparagraph of Article 3(1) of that directive.

26      Thus, in the first place, in order to constitute ‘packaging’, within the meaning of Directive 94/62, a product must be intended, in accordance with the first subparagraph of Article 3(1) of that directive, to be used for the containment, protection, handling, delivery and presentation of goods from the producer to the user or the consumer. In addition, the second sentence of that provision states that ‘non-returnable’ items used for the same purposes must be considered to constitute packaging.

27      As the Court has already held, the possible functions of packaging are not listed in the first subparagraph of Article 3(1) of Directive 94/62 in such a way as to mean that they are cumulative (judgment of 29 April 2004, Plato Plastik Robert Frank, C‑341/01, EU:C:2004:254, paragraph 49).

28      Furthermore, the product must fall within one of the three categories of packaging listed and defined in points (a) to (c) of the second subparagraph of Article 3(1), namely sales packaging, grouped packaging or transport packaging.

29      In the second place, in accordance with point (i) of the third subparagraph of Article 3(1) of Directive 94/62, an item which fulfils the positive definition of packaging referred to in the first and second subparagraphs of Article 3(1) must be considered to be packaging, unless the item is an integral part of a product and it is necessary to contain, support or preserve that product throughout its lifetime and all elements are intended to be used, consumed or disposed of together.

30      It must be pointed out, in this connection, that it follows from the very wording of the latter provision that the three negative criteria set out therein are cumulative. Consequently, only those items which, while fulfilling the positive definition of packaging, meet those three criteria simultaneously are not to be considered to be packaging, within the meaning of Directive 94/62.

31      In the present case, it must be noted that roll cores, which are items around which flexible material, such as plastic film, aluminium, toilet paper or absorbent paper is wound, fulfil the positive definition of packaging laid down in the first and second subparagraphs of Article 3(1) of Directive 94/62 and that they do not meet the criteria of the negative definition of packaging, set out in point (i) of the third subparagraph of that article.

32      First, while it is true that those roll cores are not intended to contain those products, they nevertheless serve as both a support and spool for those flexible products and therefore perform the functions of protection and presentation for those products, within the meaning of the first subparagraph of Article 3(1) of Directive 94/62.

33      In that respect, as the Advocate General pointed out in points 42 to 44 of his Opinion, roll cores protect from the inside the flexible products wound around them, which strengthens those products, allowing their presentation and facilitating their transport and use. A roll core is, moreover, a ‘non-returnable’ item, within the meaning of the second sentence of the first subparagraph of Article 3(1), once the flexible product wound around it has been used up.

34      Furthermore, since a roll core is designed to constitute, with the flexible product wound around it, a sales unit for the consumer at the point of purchase, it fulfils the definition of primary packaging set out in point (a) of the second subparagraph of Article 3(1) of Directive 94/62.

35      Secondly, while it is true that those roll cores, in view of their functions as a support and a spool, are necessary to support those products throughout their lifetime, they nevertheless do not meet the criteria of the negative definition set out in point (i) of the third subparagraph of Article 3(1) of Directive 94/62. Unlike tea bags or coffee capsules, cited in Annex I to Directive 94/62 as examples of items which do not constitute packaging within the meaning of that provision, a roll core is not an integral part of the flexible product which it serves as a support and a spool and it is not intended to be consumed or disposed of with that product, but rather — on the contrary — remains and must be disposed of once that product has been used.

36      Finally, it must be noted, ultimately, that the interpretation that the roll cores constitute packaging within the meaning of Article 3(1) of Directive 94/62 is confirmed by the Commission’s adoption of Directive 2013/2 amending Annex I to Directive 94/62, which now refers to ‘rolls, tubes and cylinders around which flexible material … is wound’ in the list of examples of packaging corresponding to the criterion defined in point (i) of the third subparagraph of Article 3(1) of Directive 94/62.

37      It follows from the foregoing that Article 3(1) of Directive 94/62 must be interpreted as meaning that roll cores in the form of rolls, tubes and cylinders, around which flexible products are wound and sold to consumers, constitute ‘packaging’, within the meaning of that provision.

 The question referred in Case C‑530/15

38      By its question, the referring court asks, in the alternative, in the event that the Court answers the question referred in Case C‑313/15 in the negative, whether, by adopting Directive 2013/2, which includes roll cores in the examples of packaging referred to in Annex I to Directive 94/62, the Commission misconstrued the term ‘packaging’, as defined in Article 3 of the latter directive, and exceeded the scope of the authorisation granted to it in respect of its implementing powers.

39      Since the question referred in Case C‑313/15 has been answered in the affirmative, it is unnecessary to answer the question referred in Case C‑530/15.

 Costs

40      Since these proceedings are, for the parties to the main proceedings, a step in the actions before the national courts, the decisions on costs are a matter for those courts. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

Article 3(1) of Directive 94/62/EC of the European Parliament and of the Council of 20 December 1994 on packaging and packaging waste, as amended by Directive 2004/12/EC of the European Parliament and of the Council of 11 February 2004, must be interpreted as meaning that roll cores in the form of rolls, tubes or cylinders, around which flexible material is wound and sold to consumers, constitute ‘packaging’ within the meaning of that provision.

[Signatures]

* Language of the case: French.

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