Case C-376/09

European Commission

v

Republic of Malta

‛Failure of a Member State to fulfil obligations — Regulation (EC) No 2037/2000 — Article 4(4)(v) and Article 16 — Requirement to decommission fire protection systems and fire extinguishers containing halons for non-critical uses on board ships — Exceptions — Critical uses of halons 1301 and 2402’

Opinion of Advocate General Mazák delivered on 28 October 2010   I - 4019

Judgment of the Court (Second Chamber), 19 May 2011   I - 4028

Summary of the Judgment

1. Actions for failure to fulfil obligations — Proof of failure — Burden of proof on Commission — Presumptions — Not permissible

   (Art. 226 EC)

2. Environment — Protection of the ozone layer — Regulation No 2037/2000 on substances that deplete the ozone layer — Prohibition on the placing on the market and the use of halons — Exceptions

   (European Parliament and Council Regulation No 2037/2000, Arts 4(1)(c), 4(v), and 5, and Annex VII)

1.  In proceedings for failure to fulfil obligations, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose.

   (see para. 32)

2.  The Commission has not proved the alleged failure of a Member State to fulfil the obligation to decommission fire protection systems and fire extinguishers containing halons not intended for critical uses on board ships laid down in Regulation No 2037/2000 on substances that deplete the ozone layer.

   The interpretation advocated by the Commission of the third indents relating to the critical use of halon 1301 and halon 2402 in Annex VII to Regulation No 2037/2000 is based on two claims. First, the halon-based systems installed in the vast majority of cargo ships are fire extinguishing systems, not systems for making inert. Second, those provisions cover only two particular cases in which halon-based systems may be used for the purpose of making inert, namely in oil tankers and for machinery used in connection with the automatic pumping of flour in or out of a ship’s hold.

   However, that interpretation cannot be inferred either from the provisions of that annex or from any other provision in Regulation No 2037/2000. Moreover, there is no reference in the preamble to the regulation to the two situations mentioned by the Commission.

   On the other hand, the third indents relating to the use of halon 1301 and halon 2402 in Annex VII to Regulation No 2037/2000 are formulated in broad terms, referring to their use ‘in the military and oil, gas and petrochemical sector, and in existing cargo ships’.

   (see paras 33-35)