Case C-309/02

Radlberger Getränkegesellschaft mbH & Co. and S. Spitz KG

v

Land Baden-Württemberg

(Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart)

(Environment – Free movement of goods – Packaging and packaging waste – Directive 94/62/EC – 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 promote systems for the reuse of packaging – Whether national measures permissible – Conditions

(European Parliament and Council Directive 94/62, Arts 1(2) and 5)

2. Environment – Waste – Packaging and packaging waste – Directive 94/62 – Right of producers and distributors to continue to participate in a given packaging-waste management system – No such right – Replacement of an existing packaging-waste management system – Permissible – Conditions

(European Parliament and Council Directive 94/62, Art. 7)

3. 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 – Justification – Protection of the environment – Condition – Observance of the principle of proportionality

(Arts 28 EC and 30 EC)

1. Article 1(2) of Directive 94/62 on packaging and packaging waste does not preclude the Member States from introducing measures designed to promote systems for the reuse of packaging.

In accordance with Article 5 of that directive, such measures must comply not only with requirements that flow from the directive’s other provisions, in particular Article 7, but also with obligations resulting from the provisions of the Treaty, in particular Article 28 EC.

(see paras 36-37, operative part 1)

2. While Article 7 of Directive 94/62 on packaging and packaging waste does not confer on the producers and distributors concerned any right to continue to participate in a given packaging-waste management system, it precludes the replacement of a global system for the collection of packaging waste with a deposit and return system where the new system is not equally appropriate for the purpose of attaining the objectives of that directive or where the changeover to the new system does not take place without a break and without jeopardising the ability of economic operators in the sectors concerned actually to participate in the new system as soon as it enters into force.

(see paras 43, 46, 48, 50, operative part 2)

3. Article 28 EC precludes national rules when they announce that a global packaging-waste collection system is to be replaced by a deposit and return system without the producers and distributors concerned having a reasonable transitional period to adapt thereto and being assured that, at the time when the packaging-waste management system changes, they can actually participate in an operational system. Such rules can be justified by reasons relating to protection of the environment only if the means which they employ do not go beyond what is necessary for the purpose of attaining the desired objectives.

(see paras 79, 83, operative part 3)

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

(Environment – Free movement of goods – Packaging and packaging waste – Directive 94/62/EC – Deposit and return obligations for non-reusable packaging that depend on the overall percentage of reusable packaging)

In Case C-309/02,REFERENCE for a preliminary ruling under Article 234 ECfrom the Verwaltungsgericht Stuttgart (Germany), made by order of 21 August 2002, received at the Court on 29 August 2002, in the proceedings

v

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 considering the observations submitted on behalf of:

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

gives the following

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

‘1.

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.

2.‘Member States shall not impede the placing on the market of their territory of packaging which satisfies the provisions of this Directive.’

‘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. …’

The applicability of Article 28 EC

The existence of a barrier to trade

Justifications relating to protection of the environment

On those grounds, the Court (Grand Chamber) rules as follows:

Signatures.