Keywords
Summary

Keywords

1. Plea of illegality – Incidental nature

(Art. 230, fourth para., EC; European Parliament and Council Directive 2009/30, Art. 1(8))

2. Approximation of laws – Fuels – Directive 2009/30

(European Parliament and Council Directive 2009/30, Art. 1(8))

3. Approximation of laws – Fuels – Directive 2009/30

(European Parliament and Council Directive 2009/30, Art. 1(8))

4. Approximation of laws – Fuels – Directive 2009/30

(European Parliament and Council Directive 2009/30, Art. 1(8))

Summary

1. A producer of methylcyclopentadienyl manganese tricarbonyl (MMT) cannot be regarded, for the purpose of the fourth paragraph of Article 230 EC, as undoubtedly ‘directly and individually concerned’ by Article 1(8) of Directive 2009/30, amending Directive 98/70 as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Directive 1999/32 as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12, since the said Article 1(8) does not specifically refer to that producer and is of concern to it only in its objective capacity as a producer of such an additive in the same way as any other trader which is currently or potentially in the same situation. The possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them, as long as it is established that that application takes effect by virtue of an objective legal or factual situation defined by the measure in question. Therefore, such a producer does not undoubtedly have standing to bring an action for annulment against the said Article 1(8) on the basis of Article 230 EC and is entitled, in an action brought in accordance with national law, to plead the invalidity of those provisions even though it did not bring an action for their annulment before the Community judicature within the period laid down in Article 230 EC.

(see paras 20, 23-25)

2. In an area of evolving and complex technology such as that of fuel additives, the European Union legislature has a broad discretion, in particular as to the assessment of highly complex scientific and technical facts in order to determine the nature and scope of the measures which it adopts, whereas review by the Community judicature has to be limited to verifying whether the exercise of such powers has been vitiated by a manifest error or a misuse of powers, or whether the legislature has manifestly exceeded the limits of its discretion. In such a context, the Community judicature cannot substitute its assessment of scientific and technical facts for that of the legislature on which the Treaty has placed that task. The European Union legislature’s broad discretion, which implies limited judicial review of its exercise, applies not only to the nature and scope of the measures to be taken but also, to some extent, to the finding of the basic facts. However, even though such judicial review is of limited scope, it requires that the Community institutions which have adopted the act in question must be able to show before the Court that in adopting the act they actually exercised their discretion, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation the act was intended to regulate.

Accordingly, where, in the legislative process for the adoption of Directive 2009/30, amending Directive 98/70 as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Directive 1999/32 as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12, the European Parliament’s Committee on Environment, Public Health and Food Safety organised general and specific workshops and where it is clear from the documents before the Court that, in order to exercise their discretion, the Parliament, the Council and the Commission took into account the available scientific data which relates both to the effects of methylcyclopentadienyl manganese tricarbonyl (MMT) on human health and the environment and its impact on vehicles, the Parliament and the Council did not make a manifest error of assessment in deciding to set, in Article 1(8) of Directive 2009/30 a limit for the MMT content of fuel.

(see paras 28, 33-34, 36, 41-42)

3. Article 1(8) of Directive 2009/30, amending Directive 98/70 as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Directive 1999/32 as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12, to the extent that it inserted a new Article 8a(2) in Directive 98/70 and limits the presence of methylcyclopentadienyl manganese tricarbonyl (MMT) in fuel is not invalid either by reason of the infringement of the precautionary principle and the principle of proportionality or by reason of the infringement of the principle of equal treatment and the principle of legal certainty.

With regard to judicial review of whether the principle of proportionality has been respected, the European Union legislature must be allowed a broad discretion in an area which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. The legality of a measure adopted in that area can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue. In that regard, the setting of a limit for the presence of MMT in fuel which makes it possible thereby to reduce the quantities of that substance which might potentially damage health is not manifestly inappropriate for attaining the objectives of protection of health and environmental protection pursued by the European Union legislature. Further, having regard to the health risks and the risks of damage to vehicle engines and to the difficulties in developing test methodologies, a restrictive measure such as a limitation on the presence of MMT in fuels does not go beyond what is necessary to meet the objectives of Directive 2009/30.

As regards the precautionary principle, where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures provided they are non-discriminatory and objective. The limit for the MMT content of fuel imposed by Article 1(8) of Directive 2009/30 is not discriminatory, since it applies to the whole of the European Union and to all producers and importers of MMT. Further, having regard to the uncertainty in relation to both the damage caused by the use of MMT and the risks created for users of MMT, the setting of limits for the MMT content of fuel does not appear manifestly disproportionate in relation to the economic interests of producers of MMT, in order to ensure a high level of protection of health and the environment.

As regards the principle of equal treatment, other manganese‑based metallic additives, which are not affected by the restriction imposed on MMT, have not been used or imported in the European Union. It follows that MMT is not in a situation which is comparable to that of other manganese-based metallic additives and the European Union legislature was therefore not required to set limits for those other additives.

Lastly, it cannot be held that the principle of legal certainty has been infringed since there is no ambiguity in the wording of Article 8a(2) of Directive 98/70 in relation to the link between the limit for the MMT content of fuel and the development of a test methodology.

(see paras 46, 50, 55, 61, 63, 68-69, 75-77, 82-83)

4. By adopting Article 1(8) of Directive 2009/30, amending Directive 98/70 as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Directive 1999/32 as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12, to the extent that it inserts a new Article 8a(4) to (6) in Directive 98/70 and creates a labelling requirement for fuels containing metallic additives, the European Union legislature committed no manifest error of assessment. The labelling requirement is intended to ensure consumer protection which, under Article 153 EC, is an objective of the European Union. That objective is to be achieved by the promotion of the consumer’s right to information. The attachment of a label, clearly visible, containing a text reading ‘Contains metallic additives’ is an appropriate means of pursuing that objective. Further, labelling is required only for the sale of fuel containing metallic additives and not for the sale of MMT as an additive, and it is not likely to impose a significantly greater burden on producers and distributors of fuel given how little fuel contains such additives. Consequently, that labelling requirement does not constitute a requirement which is manifestly inappropriate for attaining the objective of consumer protection provided for by Directive 2009/30.

(see paras 88-89, 94-96)