Action brought on 1 March 2004 by the Kingdom of the Netherlands against the Commission of the European Communities

(Case C-103/04)

(2004/C 94/67)

An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 1 March 2004 by the Kingdom of the Netherlands, represented by H.G. Sevenster and J.G.M. van Bakel, acting as Agents.

The applicant claims that the Court should:

Pleas in law and main arguments:

The Netherlands Government takes the view that the Commission acted in breach of Article 95(4) and (6) EC, in conjunction with Directive 2002/45/EC, by approving the maintenance of the national measures laid down in the Chlorinated Paraffins Decision WMS only to the extent that those measures have been notified to it in accordance with Article 95(4) EC and approved by it in accordance with Article 95(6) EC.

As is apparent from the wording of Article 95(4) EC, the maintenance of national measures is subject to approval by the Commission only where a Member State deems it necessary to maintain national provisions. Such approval is not required, however, for the maintenance of national measures that relate to an area (or, as in the present case, uses) for which no provision is made in the relevant Community rules or that pursue a different objective.

The Netherlands Government takes the view that, insofar as they relate to uses other than those provided for in Directive 2002/45/EC, the measures for implementing the PARCOM Decision 95/1, laid down in the Chlorinated Paraffins Decision WMS, do not fall within the scope of that directive so that their maintenance is not subject to approval by the Commission under Article 95(6) EC.

Directive 2002/45/EC concerns exclusively restrictions on the marketing of SCCPs for use, in concentrations higher than 1 %, as substances or as constituents of other substances or preparations in metalworking or for fat liquoring of leather.

Directive 2002/45/EC expressly does not deal with other uses. Measures relating to softening agents and flame retardants are therefore not covered by the provisions of the Directive. With respect to those uses, the Member States are free to adopt independent measures, which do not require to be notified to the Commission under Article 95(4) EC. The marketing of SCCPs as a substance or constituent for uses other than those referred to in Directive 2000/45/EC therefore does not fall within the scope of that directive.

(1)  OJ 2004 L 1, p. 20.

(2)  OJ 2002 L 177, p. 21.