61985J0429

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1 . COMMUNITY LAW - INTERPRETATION - MEASURES ADOPTED BY THE INSTITUTIONS - INTERPRETATION BASED ON THE WORDING OF THE MEASURE - CHALLENGING THAT INTERPRETATION ON THE BASIS OF A DECLARATION OF THE COUNCIL ENTERED IN THE MINUTES - INADMISSIBLE

2 . MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - IMPLEMENTATION BY MEMBER STATES - ADMINISTRATIVE PRACTICES INSUFFICIENT

( EEC TREATY, THIRD PARAGRAPH OF ART . 189 )

1 . AN INTERPRETATION OF A PROVISION IN A DIRECTIVE BASED ON ITS ACTUAL WORDING CANNOT BE REPLACED BY A DIFFERENT INTERPRETATION BASED ON A DECLARATION BY THE COUNCIL ENTERED IN THE MINUTES OF THE MEETING AT WHICH THE DIRECTIVE WAS APPROVED .

2 . MERE ADMINISTRATIVE PRACTICES, WHICH BY THEIR NATURE MAY BE CHANGED AT WILL BY THE ADMINISTRATION, CANNOT BE REGARDED AS CONSTITUTING PROPER COMPLIANCE WITH THE OBLIGATION INCUMBENT ON MEMBER STATES TO WHOM A DIRECTIVE IS ADDRESSED, PURSUANT TO ARTICLE 189 OF THE EEC TREATY .

IN CASE 429/85

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ENRICO TRAVERSA, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, JEAN MONNET BUILDING, KIRCHBERG,

APPLICANT,

V

ITALIAN REPUBLIC, REPRESENTED BY LUIGI FERRARI BRAVO, HEAD OF THE DEPARTMENT FOR CONTENTIOUS DIPLOMATIC AFFAIRS, ACTING AS AGENT, ASSISTED BY IVO BRAGUGLIA, AVVOCATO DELLO STATO, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY,

DEFENDANT,

APPLICATION FOR A DECLARATION THAT BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD ALL THE MEASURES NEEDED TO IMPLEMENT IN FULL COUNCIL DIRECTIVE 79/831/EEC OF 18 SEPTEMBER 1979 AMENDING FOR THE SIXTH TIME DIRECTIVE 67/548/EEC ON THE APPROXIMATION OF THE LAWS, REGULATIONS AND ADMINISTRATIVE

PROVISIONS RELATING TO THE CLASSIFICATION, PACKAGING AND LABELLING OF DANGEROUS SUBSTANCES ( OFFICIAL JOURNAL 1979, L 259, P . 10 ), THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY,

THE COURT,

COMPOSED OF : G . BOSCO, PRESIDENT OF CHAMBER, ACTING AS PRESIDENT, O . DUE, ( PRESIDENT OF CHAMBER ), T . KOOPMANS, C . KAKOURIS, R . JOLIET, T . F . O' HIGGINS AND F . SCHOCKWEILER, JUDGES,

ADVOCATE GENERAL : J . L . DA CRUZ VILACA

REGISTRAR : D . LOUTERMAN, ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 21 OCTOBER 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON THE SAME DAY,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 23 DECEMBER 1985, THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD ALL THE MEASURES NEEDED TO IMPLEMENT IN

FULL COUNCIL DIRECTIVE 79/831/EEC OF 18 SEPTEMBER 1979 AMENDING FOR THE SIXTH TIME DIRECTIVE 67/548/EEC ON THE APPROXIMATION OF THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS RELATING TO THE CLASSIFICATION, PACKAGING AND LABELLING OF DANGEROUS SUBSTANCES, THE ITALIAN REPUBLIC HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .

2 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE FACTS OF THE CASE, THE COURSE OF THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

3 THE COMMISSION CONSIDERS THAT DECREE NO 927 OF THE PRESIDENT OF THE ITALIAN REPUBLIC OF 24 NOVEMBER 1981 ( GAZZETTA UFFICIALE DELLA REPUBBLICANA ITALIANA NO 50 OF 20 FEBRUARY 1981 ), WHICH WAS ADOPTED IN ORDER TO IMPLEMENT DIRECTIVE 79/831, DOES NOT ADEQUATELY TRANSPOSE IT INTO ITALIAN LAW .

4 THE COMMISSION SUBMITS THAT IN GRANTING TO THE MANUFACTURER AND IMPORTER THE EXEMPTION FROM THE OBLIGATION TO NOTIFY, THE THIRD AND FOURTH PARAGRAPHS OF ARTICLE 8 OF THE DECREE ARE CONTRARY TO ARTICLE 8 ( 1 ), FOURTH INDENT, OF DIRECTIVE 67/548 AS AMENDED BY DIRECTIVE 79/831 ( HEREINAFTER REFERRED TO AS "THE DIRECTIVE "), WHICH GRANTS SUCH EXEMPTION ONLY TO THE MANUFACTURER . THE EXTENSION OF THE EXEMPTION TO IMPORTERS ENABLES THE LIMIT OF ONE TONNE PER ANNUM PER MANUFACTURER

PROVIDED FOR BY THE DIRECTIVE TO BE EVADED SO THAT A FOREIGN MANUFACTURER MAY, ON THE BASIS OF ARTICLE 8 OF THE DECREE, USE SEVERAL IMPORTERS, EACH OF WHOM MAY CLAIM THE RIGHT TO MARKET, WITHOUT NOTIFICATION, UP TO ONE TONNE PER ANNUM OF A PARTICULAR SUBSTANCE .

5 DIRECTIVE 79/831 IS THE SIXTH AMENDMENT TO DIRECTIVE 67/548 OF 27 JUNE 1967 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 234 ), WHICH LAID DOWN BASIC RULES FOR THE CLASSIFICATION, PACKAGING AND LABELLING OF DANGEROUS SUBSTANCES .

6 ONE OF THE FUNDAMENTAL FEATURES OF THE DIRECTIVE IS THE OBLIGATION TO NOTIFY THAT IS IMPOSED ON EVERY MANUFACTURER OR IMPORTER IN THE COMMUNITY OF SUCH SUBSTANCES IN ORDER TO CONTROL THEIR EFFECTS ON MAN AND THE ENVIRONMENT IN ACCORDANCE WITH THE THIRD RECITAL IN THE PREAMBLE TO THE DIRECTIVE . TO THAT END, ARTICLES 6 AND 7 OF THE DIRECTIVE LAY DOWN DETAILED RULES CONCERNING THE NOTIFICATION PROCEDURE . ACCORDING TO THOSE PROVISIONS, EVERY SUBSTANCE COVERED BY THE DIRECTIVE MUST, AS A GENERAL RULE, BE NOTIFIED TO THE COMPETENT AUTHORITIES BEFORE BEING MARKETED BY THE MANUFACTURER OR IMPORTER .

7 ARTICLE 8 ( 1 ) PROVIDES EXCEPTIONS TO THAT RULE, THE JUSTIFICATION FOR WHICH LIES IN THE FACT THAT, OWING TO THEIR LIMITED QUANTITIES OR THE SCIENTIFIC OR RESEARCH PURPOSE FOR WHICH THE SUBSTANCES CONCERNED ARE MARKETED, THEIR CONTROL IS POSSIBLE AND THE RISKS LIMITED . FOR THAT REASON THE FOURTH INDENT OF ARTICLE 8 ( 1 ) EXEMPTS FROM THE OBLIGATION TO NOTIFY "SUBSTANCES PLACED ON THE MARKET IN QUANTITIES

OF LESS THAN ONE TONNE PER YEAR PER MANUFACTURER ...". ACCORDING TO ARTICLE 2 ( 1 ) ( E ) OF THE DIRECTIVE, IMPORTATION IS DEEMED TO BE PLACING ON THE MARKET FOR THE PURPOSES OF THE DIRECTIVE .

8 THE ITALIAN GOVERNMENT ADMITS THAT, FROM THE FORMAL POINT OF VIEW, THE NATIONAL PROVISION DOES NOT COMPLY WITH THE DIRECTIVE BUT IT MAINTAINS THAT THE EXEMPTION WAS EXTENDED TO IMPORTERS FOLLOWING A DECLARATION BY THE COUNCIL ENTERED IN THE MINUTES OF THE MEETING AT WHICH THE DIRECTIVE WAS APPROVED, WHICH REFERS TO THE MANUFACTURER OR IMPORTER IN ORDER TO AVOID ANY DISCRIMINATION BETWEEN THEM .

9 IT MUST BE OBSERVED IN THIS REGARD THAT AN INTERPRETATION BASED ON A DECLARATION BY THE COUNCIL CANNOT GIVE RISE TO AN INTERPRETATION DIFFERENT FROM THAT RESULTING FROM THE ACTUAL WORDING OF THE FOURTH INDENT OF ARTICLE 8 ( 1 ) OF THE DIRECTIVE .

10 CONSIDERED IN THE LIGHT OF THAT PROVISION, ARTICLE 8 OF DECREE NO 927 CONSTITUTES AN EXTENSION OF THE EXCEPTION PROVIDED FOR BY THE DIRECTIVE WHICH THE COMMUNITY LEGISLATURE DID NOT INTEND . ARTICLE 8 ALLOWS QUANTITIES OF LESS THAN ONE TONNE OF A SUBSTANCE ORIGINATING FROM THE SAME MANUFACTURER TO BE MARKETED BY A NUMBER OF DIFFERENT IMPORTERS . THUS THE DIRECTIVE' S AIM OF LIMITING THE MARKETING OF NEW SUBSTANCES WITHOUT NOTIFICATION TO SMALL QUANTITIES AND FOR PRECISE PURPOSES HAS NOT BEEN OBSERVED .

11 THE ITALIAN GOVERNMENT FURTHER MAINTAINS THAT THE NATIONAL PROVISION REQUIRES THAT THE NOTIFIER SHOULD STATE THE OTHER COUNTRIES OF THE COMMUNITY IN WHICH HE INTENDS TO MARKET THE SUBSTANCE SO THAT IT IS POSSIBLE TO CHECK AND TO PREVENT A MANUFACTURER FROM USING SEVERAL IMPORTERS TO MARKET AT DIFFERENT TIMES VARIOUS QUANTITIES OF THE SAME SUBSTANCE . FURTHERMORE, IN THE CASE OF IMPORTATION, THE MANUFACTURER' S NAME IS REQUIRED SO THAT THE IMPORTER IS REGARDED AS ACTING IN THE NAME OF AND ON BEHALF OF THE MANUFACTURER . THEREFORE IN PRACTICE THE NATIONAL PROVISION IS APPLIED IN A WAY WHICH IS COMPLETELY IN ACCORD WITH THE COMMISSION' S REQUIREMENTS .

12 IT MUST BE OBSERVED THAT THIS DEFENCE RESTS ON MERE ADMINISTRATIVE PRACTICES AND THAT THE COURT HAS CONSISTENTLY HELD THAT SUCH PRACTICES, WHICH BY THEIR NATURE MAY BE CHANGED AT WILL BY THE ADMINISTRATION, CANNOT BE REGARDED AS PROPER COMPLIANCE WITH THE OBLIGATION ON MEMBER STATES TO WHOM A DIRECTIVE IS ADDRESSED PURSUANT TO ARTICLE 189 OF THE EEC TREATY .

13 IT FOLLOWS FROM ALL THE FOREGOING CONSIDERATIONS THAT BY EXTENDING TO IMPORTERS, CONTRARY TO THE FIRST PARAGRAPH OF ARTICLE 8 ( 1 ) OF COUNCIL DIRECTIVE 67/548 ON THE APPROXIMATION OF THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS RELATING TO THE CLASSIFICATION, PACKAGING AND LABELLING OF DANGEROUS SUBSTANCES, AS AMENDED BY COUNCIL DIRECTIVE 79/831, THE EXEMPTION FROM THE OBLIGATION TO NOTIFY PROVIDED FOR IN

ARTICLE 6 OF DIRECTIVE 67/548, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .

COSTS

14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE ITALIAN REPUBLIC HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS,

THE COURT

HEREBY :

( 1 ) DECLARES THAT BY EXTENDING TO IMPORTERS, CONTRARY TO THE FIRST PARAGRAPH OF ARTICLE 8 ( 1 ) OF COUNCIL DIRECTIVE 67/548 ON THE APPROXIMATION OF THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS RELATING TO THE CLASSIFICATION, PACKAGING AND LABELLING OF DANGEROUS SUBSTANCES, AS AMENDED BY COUNCIL DIRECTIVE 79/831, THE EXEMPTION FROM THE OBLIGATION TO NOTIFY PROVIDED FOR IN ARTICLE 6 OF DIRECTIVE 67/548, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .

( 2 ) ORDERS THE ITALIAN REPUBLIC TO PAY THE COSTS .