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Document 61984CC0187
Opinion of Mr Advocate General Darmon delivered on 20 June 1985. # Criminal proceedings against Giacomo Caldana. # Reference for a preliminary ruling: Pretura unificata di Torino - Italy. # Dangerous substances - Labelling. # Case 187/84.
Opinion of Mr Advocate General Darmon delivered on 20 June 1985.
Criminal proceedings against Giacomo Caldana.
Reference for a preliminary ruling: Pretura unificata di Torino - Italy.
Dangerous substances - Labelling.
Case 187/84.
Opinion of Mr Advocate General Darmon delivered on 20 June 1985.
Criminal proceedings against Giacomo Caldana.
Reference for a preliminary ruling: Pretura unificata di Torino - Italy.
Dangerous substances - Labelling.
Case 187/84.
European Court Reports 1985 -03013
ECLI identifier: ECLI:EU:C:1985:270
OPINION OF MR ADVOCATE GENERAL
DARMON
delivered on 20 June 1985 ( *1 )
Mr President,
Members of the Court,
1. |
By order of 9 October 1984, the Pretore di Turino [Magistrates' Court, Turin] asks the Court to rule under Article 177 of the Treaty on the question: ‘Whether Directive 67/548/EEC, as amended by Directive 79/831/EEC, requires not only substances on their own but also substances in preparations to be labelled “in accordance with Articles 15 to 18 and with the criteria in Annex VI, and in accordance with the results of the tests provided for in Article 6”, save where “contrary requirements for dangerous preparations are specified in separate directives”.’ Council Directive 67/548/EEC of 27 June 1967 (Official Journal, English Special Edition 1967, p. 234), which has already been amended six times, deals with the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances. The question is therefore whether the Community rules presently in force require labelling not merely of dangerous substances but also of preparations containing such substances. |
2. |
The facts submitted to the national court are fairly simple. Fina Italiana SpA, whose legal representative is Mr Caldana, manufactures and distributes fuels and oils. In the course of an inspection, inspectors from the Italian Environmental Protection Service removed containers of mineral oil marketed by Fina Italiana for use in motor vehicles. Tests carried out on the oil showed that it contained polychlorinated byphenyls (hereinafter referred to as ‘PCB’) in percentages which did not exceed the legal maxima for the marketing of such products. However, Mr Caldana is charged with not having affixed to the containers labels indicating the presence of PCB in the oil, as required by the provisions of a decree of the Italian Minister of Health of 21 May 1981. Mr Caldana was charged under Article 10 of Italian Law No 256 of 29 May 1984, which provides as follows : ‘Any producer, importer or distributor who markets dangerous substances or preparations which do not comply with the provisions of this law is liable ... to a fine ... In more serious cases, offenders may be sentenced to a term of imprisonment of up to six months’. |
3. |
The national court found that administrative and judicial practice in Italy vary in this matter. In circulars Nos 77 of 18 August 1978 and 23 of 19 April 1982, the Italian Minister of Health stated that the rules requiring labelling ‘are applicable only to the substances and special preparations expressly indicated in Annex I of the Ministerial Decree of17 December 1977 (subsequently replaced by the Ministerial Decree of 25 May 1981)’. Those decrees were adopted for the purpose of implementing Law No 256 of 29 May 1984 which was itself adopted in order to implement Directive 67/548/EEC. In contrast to that restrictive interpretation adopted by the administration, the criminal courts generally consider that the aforementioned rules apply not only to the substances and preparations expressly referred to in the legislation (Annex I of the Decree of 21 May 1981) but also to preparations containing such substances. In the Commission's view, the Italian laws and decrees applying to this matter constitute a correct implementation of the Community provisions. If that is the case, the reply that the Court should give will determine the outcome of the criminal proceedings in Italy. |
4. |
Mr Caldana, the Commission and the Italian Government submitted observations which arrive at the same conclusion. Directive 67/548/EEC as amended only regulates the classification, packaging and labelling of dangerous substances marketed as such. It deals only exceptionally with preparations and only when a directive concerning a particular category of preparations — there are three at present — expressly refers to it. In the present state of Community legislation, labelling of packages is not mandatory for preparations other than those referred to in special directives. Mr Caldana and the Government of the Italian Republic consider that the rules concerning labelling of dangerous preparations merely indicate a general programme. The Commission, for its part, regards those rules as special rules. It considers that in the absence of a directive establishing a complete list of dangerous preparations, the Member States have a limited discretion with regard to the requirements of labelling. Any other attitude would be likely to give rise to differences between national legislations which would frustrate the harmonization which the Treaty seeks to achieve or to inconsistency caused by labelling short of, or going beyond, what is required to eliminate risks. |
5. |
The Community rules were very extensively set out by the Commission. Let me refer to its observations for the purpose of providing an outline of those rules.
|
6. |
Mineral oils are undoubtedly preparations within the meaning of Article 2 (1) (b) of Directive 67/548/EEC, as amended by Directive 79/831/EEC (Art. 1), inasmuch as they are ‘mixtures or solutions composed of two or more substances’. It is not disputed that their polychlorinated biphenyl content does not exceed 0.1% and that consequently, in accordance with the provisions of the annex to Council Directive 76/769/EEC, they may be marketed. It remains to be determined by which method they may be marketed: in other words, whether the polychlorinated biphenyls which they contain must be mentioned on the labels affixed to the containers in which they are marketed. Even if the oils could be regarded as dangerous preparations, it does not appear that such preparations come within the scope of Directive 67/548/EEC as amended, for the following reasons:
|
7. |
However, as the national court pointed out, certain articles of the directive in question refer to substances and preparations. Article 2 (1) (b) defines preparations. Article 2 (2) defines what is meant by ‘dangerous’ in regard to substances and preparations. Article 3 provides that: ‘The general principles of the classification and labelling of substances and preparations shall be applied according to the criteria in Annex VI, save where contrary requirements for dangerous preparations are specified in separate Directives’ (the italics are mine). Finally, Article 5 (1) of Directive 67/548/EEC, as amended, provides that
For the reasons set out above, it appears that those provisions do not extend the scope of the directive to preparations generally.
|
8. |
The Commission also addressed itself to the question of the freedom which the Member States, the manufacturer or the importer might have in labelling on their own initiative packages containing preparations which might be dangerous. I will not deal with that question since, on the one hand, it appears from the file that the Italian legislation contains no provision of that type and on the other, the national court did not ask the Court of Justice to rule on that point. |
9. |
Consequently, I propose that the Court reply to the Pretore di Torino as follows : Directive 67/548/EEC, as amended by Directive 79/831/EEC, does not impose mandatory labelling conditions in respect of preparations containing one or more dangerous substances unless those preparations come within the scope of Directives 73/173/EEC, 77/728/EEC and 78/631/EEC on the classification, packaging and labelling of certain categories of preparations. |
( *1 ) Translated from the French.