Avis juridique important

Judgment of the Court of 14 July 1998. - Gianni Bettati v Safety Hi-Tech Srl. - Reference for a preliminary ruling: Pretura circondariale di Avezzano - Italy. - Regulation (EC) No 3093/94 - Measures to protect the ozone layer - Restrictions on the use of hydrochlorofluorocarbons and halons - Validity. - Case C-341/95. European Court reports 1998 Page I-04355

Summary Parties Grounds Decision on costs Operative part

1 Community law - Interpretation - Methods - Interpretation in the light of international agreements concluded by the Community

(EC Treaty, Arts 30 and 130r; Council Regulation No 3093/94, Art. 5)

(EC Treaty, Art. 130r)

4 Environment - Action to be undertaken by the Community - Adoption of measures to deal with a specific environmental problem - Whether permissible - Conditions

(EC Treaty, Art. 130r et seq.)

5 Environment - Community policy - Requirement of a high level of protection - Scope

(EC Treaty, Art. 130r(2))

6 Preliminary rulings - Admissibility of questions - Question submitted without any details of factual and legislative context

(EC Treaty, Art. 177)

1 Community legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the Community.

2 Article 5 of Regulation No 3093/94 on substances that deplete the ozone layer lays down a general prohibition on the use of hydrochlorofluorocarbons (HCFCs), which applies with effect from 1 June 1995. Since the use of HCFCs for fire-fighting is not among the exceptions to which that prohibition is subject, the provision in question must be interpreted as entirely prohibiting the use, and therefore the marketing, of HCFCs for such purposes.

That prohibition is not invalid under Article 130r of the Treaty: the Community legislature neither committed a manifest error of appraisal regarding the conditions for the application of that provision nor infringed the principle of proportionality. By adopting a more severe measure that those deriving from its international obligations and by providing that the Commission may, in the light of technical progress, add to, delete items from or amend the list of prohibited uses, the legislature, in particular, complied with the principle laid down in Article 130r(2) that a high level of protection must be provided and took account of the available scientific and technical data, as required by Article 130r(3).

The prohibition at issue is likewise not invalid under Article 30 of the Treaty since the environmental protection which it pursues is an imperative requirement which may limit the application of that provision.

3 Article 130r of the Treaty, which is concerned with Community environmental policy, sets a series of objectives, principles and criteria which the Community legislature must respect in implementing that policy. However, in view of the need to strike a balance between certain of those objectives and principles and of the complexity of the implementation of those criteria, review by the Court must necessarily be limited to the question whether, in adopting particular rules, the legislature committed a manifest error of appraisal regarding the conditions for the application of Article 130r of the Treaty.

4 It does not follow from the provisions of Title XVI of the Treaty, concerning the environment, that Article 130r(1) of the Treaty requires the legislature, whenever it adopts measures to preserve, protect and improve the environment in order to deal with a specific environmental problem, to adopt at the same time measures relating to the environment as a whole. It follows that Article 130r(1) authorises the adoption of measures relating solely to certain specified aspects of the environment, provided that such measures contribute to the preservation, protection and improvement of the quality of the environment.

5 Whilst it is undisputed that Article 130r(2) of the Treaty requires Community policy in environmental matters to aim for a high level of protection, such a level of protection, to be compatible with that provision, does not necessarily have to be the highest that is technically possible. Article 130t of the Treaty authorises the Member States to maintain or introduce more stringent protective measures.

6 The need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legal context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. Those requirements are of particular importance in certain areas, such as that of competition, which are characterised by complex factual and legal situations.

In Case C-341/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Pretura Circondariale di Avezzano (Italy) for a preliminary ruling in the proceedings pending before that court between

Gianni Bettati

and

Safety Hi-Tech Srl

on the validity of Article 5 of Council Regulation (EC) No 3093/94 of 15 December 1994 on substances that deplete the ozone layer (OJ 1994 L 333, p. 1),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm and M. Wathelet (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida, P.J.G. Kapteyn, D.A.O. Edward, P. Jann, L. Sevón and K.M. Ioannou (Rapporteur), Judges,

Advocate General: P. Léger,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Safety Hi-Tech Srl by Maurizio Maresca and Salvatore Elio La Rosa, of the Genoa Bar,

- the Italian Government, by Professor Umberto Leanza, Head of the Legal Service, Ministry of Foreign Affairs, acting as Agent, assisted by Pier Giorgio Ferri, Avvocato dello Stato,

- the Austrian Government, by Wolf Okresek, Ministerialrat in the Federal Chancellor's Office, acting as Agent,

- the Council of the European Union, by Anna Lo Monaco and Guus Houttuin, of its Legal Service, acting as Agents,

- the Commission of the European Communities, by Laura Pignataro and Antonio Aresu, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Safety Hi-Tech Srl, represented by Maurizio Maresca; the Italian Government, represented by Pier Giorgio Ferri; the Spanish Government, represented by Rosario Silva de Lapuerta and Nuria Díaz Abad, Abogados del Estado, acting as Agents; the French Government, represented by Romain Nadal, Assistant Secretary for Foreign Affairs, Legal Affairs Directorate of the Ministry of Foreign Affairs, acting as Agent; the Council, represented by Anna Lo Monaco and Guus Houttuin; and the Commission, represented by Laura Pignataro and Paolo Stancanelli, at the hearing on 11 November 1997,

after hearing the Opinion of the Advocate General at the sitting on 3 February 1998,

gives the following

Judgment

1 By order of 16 October 1995, received at the Court Registry on 30 October 1995, the Pretura Circondariale di Avezzano (Magistrate's Court for the District of Avezzano) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a number of questions on the validity of Council Regulation (EC) No 3093/94 of 15 December 1994 on substances that deplete the ozone layer (OJ 1994 L 333, p. 1, hereinafter `the Regulation').

2 That question was raised in proceedings arising from the fact that Gianni Bettati, the owner of the company Bettati Antincendio di Reggio Emilia, had refused to pay Safety Hi-Tech Srl (hereinafter `Hi-Tech') for a consignment of a product known as `NAF S III', composed of hydrochlorofluorocarbons (hereinafter `HCFCs'), which is used for firefighting.

3 According to the documents before the Court, Hi-Tech delivered to Mr Bettati, under a contract of 12 May 1995, a quantity of the abovementioned product, for which it received part payment. Following Mr Bettati's refusal to pay the balance, namely LIT 22 294 730, Hi-Tech applied to the Pretura Circondariale for an order against Mr Bettati.

4 On 31 July 1995 that court ordered Mr Bettati to pay the balance to Hi-Tech. Mr Bettati appealed against that decision on the ground that, subsequent to the conclusion of the contract, the product had been found to be inappropriate and unusable: the contract was liable to cancellation under Article 1497 of the Italian Civil Code, since Article 5 of the Regulation prohibited the marketing of that product as from 1 June 1995.

5 Hi-Tech, which contested the appeal, contended that the Regulation was incompatible with Articles 3, 5, 30, 86, 92 and 130r of the EC Treaty, in that it prohibited the use of HCFCs for firefighting.

6 As is apparent from its preamble, the purpose of the Regulation, whose legal basis is Article 130s of the EC Treaty, which is designed to attain the objectives of Article 130r, is, having regard to scientific and technical data and the existence of substitutes, to adopt measures in order progressively to eliminate substances which deplete the ozone layer.

7 In particular, as is clear from the third, fourth and fifth recitals in its preamble, the Regulation was adopted in order to fulfil the commitments entered into by the Community under the Vienna Convention of 22 March 1985 for the Protection of the Ozone Layer (hereinafter `the Vienna Convention') and the Montreal Protocol of 16 September 1987 on Substances that Deplete the Ozone Layer (Council Decision 88/540/EEC of 14 October 1988, OJ 1988 L 297, p. 8), which was amended on 29 June 1990 (see Council Decision 91/690/EEC of 12 December 1991, OJ 1991 L 377, p. 28) and under the second amendment of the Montreal Protocol of 25 November 1992 on substances that deplete the ozone layer (see Council Decision 94/68/EC of 2 December 1993, OJ 1994 L 33, p. 1), to which instruments the Member States and the Community are parties.

8 Article 1 of the Regulation, which determines its scope, states that it is to apply to the production, importation, exportation, supply, use and recovery of various substances, referred to as `controlled substances', which it lists and which include HCFCs and halons.

9 HCFCs are defined by the 12th indent of Article 2 of the Regulation as one of the controlled substances listed in Group VIII of Annex I, including their isomers. Halons are defined by the seventh indent of the same article as one of the controlled substances listed in Group III of Annex I, including their isomers.

10 With respect in particular to the conditions governing the use of HCFCs, Article 4(8), the second subparagraph of Article 4(9) and Article 4(10) of the Regulation lay down special conditions applicable to HCFCs marketed or used by producers or importers for their own account.

11 All other use of HCFCs, apart from use by producers or importers for their own account, is governed by Article 5 of the Regulation, entitled `Control of the use of hydrochlorofluorocarbons', which provides:

`1. From the first day of the sixth month following that of the entry into force of this Regulation, the use of hydrochlorofluorocarbons shall be prohibited except:

- as solvents,

- as refrigerants,

- for the production of rigid insulating foams and integral-skin foams for use in safety applications,

- in laboratory uses, including research and development,

- as feedstock in the manufacture of other chemicals and

- as carrier gas for sterilisation substances in closed systems.

2. From 1 January 1996 the use of hydrochlorofluorocarbons shall be prohibited:

- in non-contained solvent uses including open-top cleaners and open-top dewatering systems without cold areas, in adhesives and mould-release agents when not employed in closed equipment, for drain cleaning where hydrochlorofluorocarbons are not recovered and aerosols, apart from use as solvents for reagents in fingerprint development on porous surfaces such as paper and apart from use as fixing agents for laser printers produced before 1 January 1996,

- in equipment produced after 31 December 1995 for the following uses: (a) as refrigerants in non-confined direct-evaporation systems;

(b) as refrigerants in domestic refrigerators and freezers;

(c) in car air conditioning;

(d) in road public-transport air conditioning.

3. From 1 January 1998 the use of hydrochlorofluorocarbons in equipment produced after 31 December 1997 for the following uses shall be prohibited:

- in rail public-transport air conditioning,

- as carrier gas for sterilisation substances in closed systems.

4. From 1 January 2000 the use of hydrochlorofluorocarbons in equipment produced after 31 December 1999 for the following uses shall be prohibited:

- as refrigerants in public and distribution cold stores and warehouses,

- as refrigerants for equipment of 150 kw and over, shaft input,

except where codes, safety regulations or other such constraints prevent the use of ammonia.

5. The importing, release for free circulation and placing on the market of equipment for which a use restriction is in force under this Article shall be prohibited from the date on which that use restriction comes into force. Equipment shown to be manufactured before the date of that use restriction shall not be covered by this prohibition.

6. The Commission may, in accordance with the procedure laid down in Article 16 and in the light of technical progress, add to, delete items from or amend the list set out in paragraphs 1 to 4.'

12 With respect to halons, Article 3(3) of the Regulation provides, subject to certain exceptions laid down in Article 3(8) to (12), that:

`... each producer shall ensure that he produces no halons after 31 December 1993.

In the light of the nominations made by Member States the Commission shall, in accordance with the procedure laid down in Article 16, apply the criteria set out in Decision IV/25 of the Parties to the Montreal Protocol in order to determine every year any essential uses for which the production and importation of halons may be permitted in the Community after 31 December 1993 and those users who may take advantage of those essential uses for their own account. Such production and importation shall be allowed only if no adequate alternatives or recycled halons are available from any of the Parties to the Protocol.

The Commission shall issue licences to those users identified as laid down in the second subparagraph and shall notify them of the use for which they have authorisation and the substances and the quantities of them that they are authorised to use.

A producer may be authorised by the competent authority of the Member State in which his relevant production is situated to produce halons after 31 December 1993 for the purpose of meeting the licensed demands presented by users identified as laid down in the second subparagraph. The competent authority of the Member State concerned shall notify the Commission in advance of its intention of issuing any such authorisation'.

13 Furthermore, Article 4(3) of the Regulation also provides, with respect to halons:

`... each producer shall ensure that he does not place any halons on the market or use any for his own account after 31 December 1993.

The competent authority of the Member State in which a producer's production is situated may authorise him to place halons on the market after 31 December 1993 for the purpose of meeting the licensed demands of those users identified as laid down in Article 3(3).'

14 In addition, unless special authorisation has been granted by the Commission, Article 8(1) of the Regulation prohibits the release for free circulation in the Community of, inter alia, virgin, recovered or reclaimed halons imported from States not parties to the Protocol and Article 9 of the Regulation also prohibits the release for free circulation in the Community of products containing, inter alia, halons imported from any State not party to the Protocol.

15 As far as the use of halons is concerned, it is undisputed that the Regulation contains no provision analogous to Article 5, which concerns the use of HCFCs.

16 The Pretura Circondariale had doubts as to the validity of Article 5 of the Regulation, inasmuch as it unconditionally prohibits, as from 1 June 1995, the use of HCFCs as fire-fighting material, in the light of the Treaty provisions concerning the environmental policy of the Community, the free movement of goods and freedom of competition, since that provision does not lay down a similar prohibition with respect to halons, also used in the sector in point, whose potential for destruction of the ozone layer is greater than that of HCFCs and which have an even more negative impact on the environment.

17 Having regard to those considerations, the national court stayed proceedings pending a preliminary ruling from the Court of Justice on the following question:

`Whether or not, having regard to Articles 3, 5, 30, 86, 92 and 130r of the Treaty of Rome, Article 5 of Council Regulation (EEC) No 3093/94 of 15 December 1994, in so far as it unconditionally prohibits as from 1 June 1995 the use of HCFCs in the fire-fighting sector, is valid'.

18 By its question, the national court seeks solely to ascertain whether the prohibition on the use of HCFCs for firefighting as from 1 June 1995 is compatible with certain provisions of the Treaty. However, although that court considers that such a prohibition is incontestably clear from the Regulation, it is appropriate to examine the relevant provisions thereof.

19 It should be noted at the outset that the Regulation, including Article 5 thereof, is intended to implement the commitments given by the Community under the Vienna Convention and the Montreal Protocol and the second amendment thereto.

21 By virtue of Article 2(3) of the Vienna Convention, the parties to that convention may adopt more severe domestic measures provided that they are intended, having regard to scientific evaluations, to promote the use of substitutes that are less harmful to the ozone layer.

22 To that end, the sixth recital in the preamble to the Regulation indicates that, in the light of scientific evidence in particular, it is appropriate in certain cases to introduce control measures which are more severe than those of the second amendment to the Montreal Protocol.

23 It is in order to attain that objective that Article 5 of the Regulation prohibits the use of HCFCs.

24 That general prohibition, which applies with effect from 1 June 1995, is, however, subject to a series of exceptions exhaustively listed in Article 5(1) of the Regulation. Thus, under that provision HCFCs may be used after 1 June 1995 as solvents, as refrigerants, for the production of rigid insulating foams and integral-skin foams for use in safety applications, in laboratory uses, including research and development, as feedstock in the manufacture of other chemicals and as carrier gas for sterilisation substances in closed systems.

25 Moreover, in accordance with the general prohibition on use, Article 5(2), (3) and (4) of the Regulation prohibits other uses of HCFCs as from 1 January 1996, 1 January 1998 and 1 January 2000.

26 It is clear from those provisions that the use of HCFCs for firefighting is not provided for by the Regulation, with the result that their use is prohibited, by virtue of Article 5(1) of the Regulation, as from 1 June 1995.

27 The question must therefore be considered whether the total prohibition of the use of HCFCs for firefighting means that their marketing is also prohibited.

28 The marketing of HCFCs for firefighting is not mentioned in Article 5 of the Regulation. However, in so far as the release of HCFCs into commercial channels for those purposes is a step preparatory to the use of such substances and has no aim other than their use for those same purposes, it must be concluded that, because the use of HCFCs has been totally prohibited since 1 June 1995, the marketing of them for firefighting must also be regarded as prohibited from that date.

29 That interpretation is borne out both by Article 3 and by Articles 6 to 13 of the Regulation, which relate respectively to the production of controlled substances and to the importation of them, which are also steps preparatory to their use. The fact that those provisions do not mention the production or import of HCFCs for firefighting indicates that the Community legislature, having imposed a general prohibition on the use of such substances for such purposes, considered that it would be pointless to lay down rules for the production, import and, consequently, the marketing of those substances.

30 Consequently, Article 5 of the Regulation must be interpreted as entirely prohibiting the use, and therefore the marketing, of HCFCs for firefighting.

The compatibility of Article 5 of the Regulation with Article 130r of the Treaty

31 Hi-Tech considers that the prohibition on the use of HCFCs for firefighting is illegal under Article 130r of the Treaty since the Council, by not observing the objective, the principles and the criteria of that provision, exceeded the bounds of the discretion conferred on it.

32 The Council, on the other hand, maintains that Article 130r of the Treaty confers a discretion on it and that the Court is not entitled to review its exercise of that discretion. It also contends that that provision grants it a wide discretion regarding the measures it chooses to adopt in order to implement the environmental policy. Only if such measures were manifestly inappropriate having regard to the aim pursued would their legality be in issue.

`1. Community policy on the environment shall contribute to pursuit of the following objectives:

- preserving, protecting and improving the quality of the environment;

- protecting human health;

- prudent and rational utilisation of natural resources;

- promoting measures at international level to deal with regional or worldwide environmental problems.

2. Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay ...

...

3. In preparing its policy on the environment, the Community shall take account of:

- available scientific and technical data;

- environmental conditions in the various regions of the Community;

- the potential benefits and costs of action or lack of action;

- the economic and social development of the Community as a whole and the balanced development of its regions.

4. ...'

36 It is therefore necessary to verify whether, having regard to its objective, the Regulation was adopted in breach of Article 130r of the Treaty.

37 Hi-Tech advances three arguments in that respect.

38 First, it submits that the Regulation, by authorising the use of other substances, such as halons, does not take account of two other fundamental parameters for environmental protection, namely the HCFCs Global Warming Potential (hereinafter `GWP') and their Atmospheric Lifetime (hereinafter `ALT'), factors which should be taken into account together with the Ozone Depletion Potential (hereinafter `ODP'). According to Hi-Tech, if all those factors were taken into consideration, HCFCs would be found to be much less harmful than halons. Consequently, the Regulation, by taking account only of the ODP and laying down only measures to combat depletion of the ozone layer, did not ensure protection of the environment as a whole, as required by Article 130r of the Treaty, but only of part of it.

39 It must first be observed that the lack of any prohibition on the use of other substances, even if assumed to be illegal, could not in itself affect the validity of the prohibition on the use of HCFCs.

40 As to the complaint concerning the failure to take account of the GWP and the ALT of HCFCs, it must be borne in mind that Article 130r(1) of the Treaty provides, among other objectives of Community environmental policy, for the protection and improvement of the quality of the environment.

41 As the Court held in Case C-379/92 Peralta [1994] ECR I-3453, paragraph 57, Article 130r is confined to defining the general objectives of the Community in the matter of the environment. Responsibility for deciding what action is to be taken is conferred on the Council by Article 130s. Moreover, Article 130t states that the protective measures adopted jointly pursuant to Article 130s are not to prevent any Member State from maintaining or introducing more stringent protective measures compatible with the Treaty.

42 It does not follow from those provisions that Article 130r(1) of the Treaty requires the Community legislature, whenever it adopts measures to preserve, protect and improve the environment in order to deal with a specific environmental problem, to adopt at the same time measures relating to the environment as a whole.

44 In that connection, as is apparent from its title, the aim of the Regulation is to control substances that deplete the ozone layer. The fact that only that aspect of environmental preservation, protection and improvement is referred to by the Regulation cannot therefore be regarded as incompatible with the purpose of Article 130r(1) of the Treaty.

45 Secondly, according to Hi-Tech, by authorising the use of halons, which display a much higher ODP than HCFCs and therefore represent a much greater threat to ozone, the Regulation failed to ensure a high level of environmental protection as required by Article 130r(2) of the Treaty.

48 Lastly, Hi-Tech considers that, by not prohibiting the use of other substances also intended for firefighting, including hydrofluorocarbons and perfluorocarbons, the Regulation did not take account of the available scientific and technical data, as required by Article 130r(3) of the Treaty, because those substances, the GWP and ALT of which are considerable, are more damaging to the environment than HCFCs, the ODP, GWP and ALT for which are regarded as acceptable.

50 In addition to taking account of the scientific evidence, as indicated in the fourth and fifth recitals in its preamble, the Regulation states, in the seventh recital, that `a periodical review of the permitted uses of ozone-depleting substances ... is desirable' and, in the eighth recital, that `it is necessary to keep under review the evolution of the market in ozone-depleting substances, particularly in order to ensure sufficient supply for essential uses, and the state of development of appropriate substitutes, but also to keep to a minimum the imports of virgin, recovered and reclaimed ozone-depleting substances released for free circulation in the European Community'.

51 It is precisely in order to take account of the available scientific and technical data that Article 5(6) of the Regulation, dealing with the use of HCFCs, provides that the Commission may, in the light of technical progress, add to, delete items from or amend the list of prohibited uses.

52 In addition, it is clear from the case-file in the proceedings before the national court that, when the Regulation was adopted, there were, from the scientific point of view, alternatives to the use of HCFCs, involving recourse to products less harmful to the ozone layer, such as water, powder and inert gases.

53 The Community legislature, by imposing the prohibition on the use, and hence the marketing, of HCFCs for firefighting, did not therefore commit any manifest error of appraisal. That being so, the complaint examined above, alleging that the Regulation is unlawful on the ground that it is contrary to Article 130r of the Treaty, must be rejected.

54 Hi-Tech also considers that the prohibition on the use, and hence the marketing, of HCFCs for firefighting is disproportionate in relation to the aim of environmental protection.

56 In view of the objective of the Regulation, which is to protect the ozone layer, it must be held that the means employed by the Regulation, in Article 5(1), namely the prohibition on the use, and hence the marketing, of HCFCs for firefighting, was suitable for the purpose of attaining that objective. In view, however, of the fact that other substances that are equally, or indeed more, harmful to the ozone layer, such as halons, are authorised for firefighting, it is necessary to determine whether that prohibition exceeds the limitations inherent in observance of the principle of proportionality.

57 It need merely be recalled that, as is clear from the case-file in the proceedings before the national court, halons display an extinguishing capability which is not otherwise available, particularly in dealing with fires in small spaces, and are of extremely low toxicity, whereas, to achieve the same result, a larger quantity of HCFCs would be needed, entailing a greater toxic impact.

58 Since, as indicated in paragraph 52 of this judgment, there are effective substitutes for HCFCs such as water, powder and inert gases and, as indicated in paragraph 57, for certain essential uses there are irreplaceable substitutes such as halons, the prohibition of using HCFCs cannot be regarded as contrary to the principle of proportionality.

59 It must therefore be concluded that examination of Article 5(1) of the Regulation, in the light of Article 130r of the Treaty, has disclosed no factor of such a kind as to affect its validity.

The compatibility of Article 5 of the Regulation with Article 30 of the Treaty

60 The national court also seeks to ascertain whether, in the light of Article 30 of the Treaty, the prohibition of using and marketing HCFCs laid down in Article 5(1) of the Regulation for firefighting is valid.

61 It is settled law that the prohibition of quantitative restrictions and of all measures having equivalent effect applies not only to national measures but also to measures adopted by the Community institutions (see in particular Case 15/83 Denkavit Nederland v Hoofdproduktschap voor Akkerbouwprodukten [1984] ECR 2171, paragraph 15, and Case C-51/93 Meyhui v Schott Zwiesel Glaswerke [1994] ECR I-3879, paragraph 11).

63 However, Hi-Tech considers that, in the light of Article 30 of the Treaty, the principle of proportionality has not been observed.

64 In that regard, it need merely be pointed out that, as is clear from the objective of the Regulation and from the considerations set out in paragraphs 57 to 59 of this judgment, a prohibition on the use and marketing of HCFCs which is designed to protect the ozone layer cannot be regarded as disproportionate to the aim pursued.

65 It must therefore be stated that consideration of the question referred has disclosed no factor of such a kind as to affect the validity of Article 5 of the Regulation.

The compatibility of Article 5 of the Regulation with Article 86 of the Treaty

66 The national court seeks essentially to ascertain whether Article 5(1) of the Regulation, by prohibiting the use and marketing of HCFCs, has the effect, contrary to Article 86 of the Treaty, of favouring an abuse of a dominant position by producers and sellers, of substances other than HCFCs which are not prohibited by the Regulation.

69 However, the order for reference does not contain sufficient information to satisfy those requirements.

70 The order does not give the information needed to define the relevant market or explain the impact which the prohibition on the marketing of HCFCs has on the functioning of that market. Moreover, the national court merely referred to Article 86 of the Treaty without indicating the precise reasons which prompted it to query the validity, in relation to the situation before it, of the prohibition laid down by Article 5(1) of the Regulation.

71 Thus, the information in the order for reference, in so far as it refers with insufficient precision to the situations of law or fact to which the national court is referring, do not enable the Court to give a helpful interpretation of Community law.

72 Accordingly, it must be held, pursuant to Articles 92 and 103(1) of the Rules of Procedure, that that part of the question referred to the Court is manifestly inadmissible.

The compatibility of Article 5 of the Regulation with Article 92 of the Treaty

73 The Court has consistently held that only advantages which are granted directly or indirectly through State resources are to be regarded as State aid within the meaning of Article 92(1) of the Treaty. The wording of that provision itself and the procedural rules laid down by Article 93 of the EC Treaty show that advantages granted from resources other than those of the State do not fall within the scope of the provisions in question (see Case 82/77 Openbaar Ministerie of the Netherlands v Van Tiggele [1978] ECR 25, paragraphs 24 and 25, and Joined Cases C-72/91 and C-73/91 Sloman Neptun v Bodo Ziesemer [1993] ECR I-887, paragraph 19).

74 In this instance, any advantage accruing to undertakings producing halons from the prohibition on the use of HCFCs for firefighting derives from a measure adopted by the Community legislature in the environmental field, not from a State measure, and thus involves no direct or indirect transfer of State resources to undertakings producing halons. Accordingly, Article 5 of the Regulation does not fall within the scope of Article 92 of the Treaty.

The compatibility of Article 5 of the Regulation with Articles 3 and 5 of the Treaty

76 The general objectives set out in Article 3 which are relevant to this case, namely `an internal market characterised by the abolition ... of obstacles to the free movement of goods...' (paragraph (c)) and `a system ensuring that competition in the internal market is not distorted' (paragraph (g)), have been developed in detail by, in particular, Article 30 et seq. and Article 86 et seq. of the Treaty respectively. It has been found in this judgment that Article 5 of the Regulation is compatible with Article 30 of the Treaty and that the question of its compatibility with Article 86 of the Treaty cannot be determined in view of the lack of the requisite information in the order for reference. It is thus unnecessary to give an answer to the question concerning its compatibility with Article 3 of the Treaty.

77 As for Article 5 of the Treaty, according to the case-law of the Court it imposes on Member States and the Community institutions mutual duties of sincere cooperation (order in Case C-2/88 IMM Zwartveld and Others [1990] ECR I-3365, paragraph 17, and Joined Cases C-63/90 and C-67/90 Portugal and Spain v Council [1992] ECR I-5073, paragraph 52). Consequently, that provision cannot relate to a measure adopted by the Community legislature in the environmental field which might possibly entail advantages or disadvantages for certain undertakings. Accordingly, it is unnecessary to rule on the compatibility of Article 5 of the Regulation with Article 5 of the Treaty.

78 In view of the foregoing, the answer to be given to the national court is that consideration of the question submitted has not disclosed any factor of such a kind as to affect the validity of Article 5 of the Regulation.

Costs

79 The costs incurred by the Italian, Spanish, French and Austrian Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the question referred to it by the Pretura Circondariale di Avezzano by order of 16 October 1995, hereby rules:

Consideration of the question submitted has not disclosed any factor of such a kind as to affect the validity of Council Regulation (EC) No 3093/94 of 15 December 1994 on substances that deplete the ozone layer.