Case C-463/01

Commission of the European Communities

v

Federal Republic of Germany

(Environment – Free movement of goods – Packaging and packaging waste – Directive 94/62/EC – Exploitation and marketing of natural mineral waters – Directive 80/777/EEC – Deposit and return obligations for non-reusable packaging that depend on the overall percentage of reusable packaging)

Summary of the Judgment

1. Environment – Waste – Packaging and packaging waste – Directive 94/62 – Power granted to the Member States to encourage systems for the reuse of packaging –Directive not containing specific criteria concerning the organisation of those systems – Assessment of the systems in light of the Treaty provisions relating to the free movement of goods

(Arts 28 EC and 30 EC; European Parliament and Council Directive 94/62, Art. 5)

2. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National rules replacing a global packaging-waste collection system with a deposit and return system – Not permissible ­– Justification – Protection of the environment – Condition – Observance of the principle of proportionality

(Arts 28 EC and 30 EC)

1. Article 5 of Directive 94/62 on packaging and packaging waste, which grants the Member States the power to encourage, in conformity with the Treaty, systems for the reuse of packaging that can be reused in an environmentally sound manner, formulates that power in general terms and does not specify the criteria to be taken into account by the Member States which exercise it. Accordingly, given that the directive does not regulate, as regards Member States disposed to exercise that power, the organisation of systems encouraging reusable packaging, such systems can be assessed on the basis of the Treaty provisions relating to the free movement of goods.

(see paras 41, 43, 45, 50)

2. A Member State which, as regards non-reusable packaging, replaces a global packaging-collection system with a deposit and return system, obliging producers to alter certain information on their packaging and causing additional costs for every producer and distributor, without affording them a transitional period sufficient to enable them to adapt to the requirements of the new system, fails to fulfil its obligations under Article 5 of Directive 94/62 on packaging and packaging waste in conjunction with Article 28 EC.

Such national rules capable of hindering intra-Community trade may be justified by overriding requirements relating to protection of the environment only if the means which they employ are suitable for the purpose of attaining the desired objectives and do not go beyond what is necessary for that purpose.

(see paras 59, 62, 68, 75, 78-79, operative part)

JUDGMENT OF THE COURT (Grand Chamber) 14 December 2004 (1)

(Environment – Free movement of goods – Packaging and packaging waste – Directive 94/62/EC – Exploitation and marketing of natural mineral waters – Directive 80/777/EEC – Deposit and return obligations for non-reusable packaging that depend on the overall percentage of reusable packaging)

In Case C-463/01,ACTION under Article 226 EC for failure to fulfil obligations, brought on 3 December 2001,

applicant, supported by:

interveners,

v

defendant,

THE COURT (Grand Chamber),,

composed of: V. Skouris, President, P. Jann and K. Lenaerts (Rapporteur), Presidents of Chambers, C. Gulmann, J.-P. Puissochet, R. Schintgen, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

having regard to the written procedure and further to the hearing on 2 March 2004,

after hearing the Opinion of the Advocate General at the sitting on 6 May 2004,

gives the following

‘Equipment for exploiting the water must be so installed as to avoid any possibility of contamination and to preserve the properties, corresponding to those ascribed to it, which the water possesses at source.

To this end, in particular:

...

‘Member States may encourage reuse systems of packaging, which can be reused in an environmentally sound manner, in conformity with the Treaty.’

‘Member States shall take the necessary measures to ensure that systems are set up to provide for:

in order to meet the objectives laid down in this Directive.

These systems shall be open to the participation of the economic operators of the sectors concerned and to the participation of the competent public authorities. They shall also apply to imported products under non-discriminatory conditions, including the detailed arrangements and any tariffs imposed for access to the systems, and shall be designed so as to avoid barriers to trade or distortions of competition in conformity with the Treaty.’

‘1.

2.‘If, for beer, mineral water (including spring water, table water and spa water), carbonated soft drinks, fruit juices … and wine … the combined proportion of drinks in reusable packaging falls below 72% in the calendar year in the geographical area to which this regulation applies, a new survey of the relevant proportions of reusable packaging shall be carried out for the 12 months following publication of the failure to achieve the required proportions. If this shows that the proportion of reusable packaging in Federal territory is below the proportion laid down under the first sentence, the decision under Paragraph 6(3) shall be deemed to be revoked throughout Federal territory in respect of the drinks categories for which the reusable proportion determined in 1991 is not achieved, with effect from the first day of the sixth calendar month following publication in accordance with subparagraph 3. …’

On those grounds, the Court (Grand Chamber) hereby:

Signatures.