208/85 · GlobalLawDB

Contents

Judgment of the Court14 October 1987^noteIn Case 208/85Commission of the European Communities, represented by C. Bail and J. Grunwald, members of its Legal Department, with an address for service in Luxembourg at the office of G. Kremlis, a member of its Legal Department, Jean Monnet Building, Kirchberg,vFederal Republic of Germany, represented by M. Seidel, Ministerialrat, and P. Rohland, Oberregierungsrat with the Federal Ministry of Economic Affairs, assisted by D. Knopp, Rechtsanwalt, 14 Heumarkt, D-5000 Cologne 1, with an address for service in Luxembourg at the Embassy of the Federal Republic of Germany, 20-22 avenue Emile-Reuter,THE COURT,composed of: Lord Mackenzie Stuart, President, G. Bosco, O. Due and G. C. Rodriguez Iglesias (Presidents of Chambers), T. Koopmans, K. Bahlmann, C. Kakouris, R. Joliét and F. Schockweiler, Judges,Advocate General: J. L. da Cruz VilaçaRegistrar: D. Louterman, Administratorhaving regard to the Report for the Hearing and further to the hearing on 11 February 1987,after hearing the Opinion of the Advocate General delivered at the sitting on 7 April 1987,gives the following

Judgment

1By an application lodged at the Court Registry on 5 July 1985, the Commission of the European Communities brought an action before the Court under Article 169 of the EEC Treaty for a declaration that by not adopting all the laws, regulations and administrative provisions necessary to comply with Council Directive 79/8 31/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 Federal Republic of Germany had failed to fulfil its obligations under the EEC Treaty.

2The Commission considers that the measures adopted, in particular the Chemikaliengesetz (German Law on chemical products) of 16 September 1980 (Bundesgesetzblatt I, p. 1718, hereinafter referred to as ‘the 1980 Law’) and the Verordnung über gefährliche Arbeitsstoffe (Regulation on dangerous industrial substances) of 11 February 1982 (Bundesgesetzblatt p. 144, hereinafter referred to as ‘the 1982 Regulation’), do not constitute a satisfactory transposition of the directive into national law.

3On account of observations made by the Government of the Federal Republic of Germany and in particular its contention that the Verordnung über gefährliche Stoffe (Regulation on dangerous substances) of 18 December 1985, which has since been enacted, takes full account of the Commission's views on the points at issue, the Commission, in its reply and by letter of 25 February 1987 sent to the Court after the hearing, withdrew some of the complaints made in the application. It is therefore necessary to examine hereafter the remaining complaints.

4Reference is made to the Report for the Hearing for a fuller account of 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.

Article 11 (3) of the directive

5According to Article 11 (3) of Directive 67/548/EEC, as amended by Directive 79/831/EEC, the name of a substance not classified as dangerous may, for a period of three years, be included in encoded form in the list kept by the Commission pursuant to Article 13 (2), where the competent authority to which the notification has been submitted so requests because of the problems of confidentiality to which publication of the name of the substance would give rise. The Commission complains in its application that the Federal German Government has failed to implement that provision in the national legislation, with the result that the protection of secrecy afforded by that provision of the directive cannot be provided. In its reply, however, it claims that the non-transposition of Article 11 (3) in the Federal Republic of Germany enables a notifier to keep the chemical name secret without any limitation in time, whereas the directive restricts the protection of secrecy to a period of three years.

6The Federal German Government states that, whereas in the application the Commission complains of inadequate protection of confidential information as provided for by the Community provision, the opposite charge — of providing for unlimited protection of confidential information — is made in the reply. It argues that the complaint thus appeared for the first time in the reply without forming part of the subject-matter of the application or having been mentioned during the pre-litigation procedure, which makes it inadmissible.

7In that regard, it should be noted that Article 11 (3) of the directive contains two provisions: its first subparagraph provides that the national authorities may request the Commission to include the substance notified to them in encoded form in the list kept by the Commission, the detailed rules for which were laid down in Commission Decision 84/71/EEC of 21 December 1984 (Official Journal 1984, L 30, p. 33); its second subparagraph provides that: ‘A substance may be included in the list in encoded form for no longer than three years’.

8Although in its application the Commission made a general reference to Article 11 (3), it is clear from the consequences which it attached to the alleged breach of obligations, namely the inadequate protection of confidential information, that it was in fact referring to the first subparagraph of Article 11 (3). Following explanations provided by the Federal German Government in the defence, the Commission, in the reply, then complained that the national legislation afforded unlimited protection to confidential information, which is a complaint which can relate only to the second subparagraph of Article 11 (3).

9It follows that the Commission has withdrawn its complaint as formulated in the application, so that it is no longer the subject-matter of the dispute, and that in the reply it introduced a new complaint which was not raised during the earlier stages of the proceedings and which is therefore inadmissible on the ground that it was not raised in good time.

10Consequently, the Commission's complaint must be dismissed as inadmissible.

Articles 15 and 16 of the directive in general

11Articles 15 and 16 of the directive provide that the Member States are to take all necessary measures to ensure that dangerous substances cannot be placed on the market unless their packaging and labelling satisfy the requirements set out in those provisions.

12The Commission claims that under the German rules the obligations imposed by the directive apply only to industrial substances and not to substances intended for domestic use or consumption, which, however, fall within the scope of the directive because of the broad wording of Article 1 thereof. In particular, the Commission considers that Paragraph 13 of the 1980 Law merely creates the possibility of adopting implementing measures for dangerous substances intended for domestic use or consumption, since Paragraph 13 (3) contains a delegation of power to adopt a classification of such substances; the Commission points out that this possibility has been used only for industrial substances, by the 1982 Regulation, and not for dangerous substances intended for domestic use or consumption (household products).

13The Federal German Government contends that the Commission's complaint no longer has any purpose since it has subsequently adopted the aforesaid regulation of 18 December 1985, which had already been notified to the Commission in draft form and which takes full account of the Commission's views on the points at issue.

14In that regard it must be stated that the regulation of 18 December 1985, which was adopted after the application was lodged, cannot be taken into account since at the hearing the Commission reserved the right to withdraw the complaint but in the end did not do so.

15The Federal German Government also contends that before that regulation entered into force the rules applicable to industrial substances ensured that the relevant provisions of the directive were fully effective.

16According to the Federal German Government, Paragraph 13 (1) of the 1980 Law contains obligations on labelling and packaging ‘in accordance with established scientific knowledge’ which apply not only to substances defined in the annex to the 1982 Regulation but also to any other dangerous substances, thus covering all dangerous substances within the meaning of Article 2 (2) of the directive. This provision is supplemented by Paragraph 14 of the same law, which lays down detailed requirements for packaging and labelling in order to protect the life and health of humans and the environment.

17As the Federal German Government has pointed out, Paragraph 13 (1) of the 1980 Law imposes an obligation to classify, package and label all dangerous substances and preparations without distinction. It is true that the first sentence of Paragraph 13 (1) provides for the adoption of a regulation for the classification of such substances and preparations and that such a regulation has been adopted only for industrial substances; however, that provision does not make the adoption of such a regulation a precondition for giving effect to the obligation imposed. That is confirmed by Paragraph 14 of the same law, which prescribes in detail the nature of the packing and the labelling and applies to any person subject to such an obligation.

18It must therefore be stated that Paragraph 13 (1) of the 1980 Law transposes the general obligation provided for by Articles 15 and 16 of Directive 79/831/EEC.

19Consequently, the Commission's complaint must be dismissed as unfounded.

Article 16 (2) (f)

20Article 16 (2) (f).prohibits the use on the label or packaging of substances subject to the directive of indications such as ‘non-toxic’ or ‘non-harmful’. According to the Commission, this prohibition has not been transposed into German law.

21The Federal German Government contends that the prohibition in question appears in the ‘Technical Rules’ relating to the 1982 Regulation. Although those rules do not, strictly speaking, constitute legislation, they are binding as a result of a reference contained in the aforesaid law and the aforesaid regulation. The effect of that reference to the ‘Technical Rules’ is that infringement of them will also constitute an infringement of the legislation which requires those rules to be observed.

22Without its being necessary to consider whether the ‘Technical Rules’ relied upon by the Federal German Government contain a prohibition such as that imposed by Article 16 (2) (f) of the directive, which the Commission disputes, it must be noted that the only provision of the 1982 Regulation which refers to them, namely Paragraph 12, contains only obligations which apply to employers in the field of technical safety, industrial medicine and hygiene in the use of such substances. It does not therefore concern labelling, the field in question.

23The Commission's complaint is therefore well founded.

Article 16 (2) (d)

24In the Commission's view, Article 16 (2) (d) of the directive (in conjunction with Article 2 (2) (1) and the third indent of Article 16 (2)) requires that indications of the danger involved in using carcinogenic substances must, without any exception, appear on their packaging in the form of the phrase ‘may cause cancer’. The last subparagraph of Paragraph 5 (1) of the 1982 Regulation authorizes an exception for substances which cannot have a carcinogenic effect if they are used in accordance with instructions.

25The Federal German Government submits that Directive 79/831/EEC does not contain any provisions concerning the labelling of carcinogenic industrial substances; that matter is the subject of the fifth directive adapting Directive 67/548/EEC (Directive 83/467/EEC of 29 July 1983, Official Journal 1983, L 257, p. 1), to which the Commission's application does not relate.

26It must be stated in this regard that although Directive 83/467/EEC predates the formal notice, that directive, as the Federal German Government rightly points out, was not referred to in the application as a ground for the action, but was first mentioned in the reply.

27Consequently, the Commission's complaint must be rejected.

Article 16 (4) of the directive

28Article 16 (2) of the directive requires symbols, varying according to the dangers involved in using the substances, to be placed on every package. Article 16 (4), which applies where more than one danger symbol is assigned to a substance, provides which symbol is to be compulsory in each case and states that the use of other symbols is optional. The Commission complains that the Federal German Government has not adopted the latter provision in the national rules.

29The Federal German Government submits that this point of the directive is covered by the ‘Technical Rules’ referred to above.

30Those ‘Technical Rules’ cannot constitute a proper implementation of the directive because in the aforesaid German regulation there is no reference to them in this connection and consequently they have no legal significance.

31The Commission's complaint is therefore well founded.

32It follows from all the foregoing considerations that by not adopting all the laws, regulations and administrative provisions necessary to comply with 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 Federal Republic of Germany has failed to fulfil its obligations under the Treaty.

Costs

33Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. However, according to the first subparagraph of Article 69 (3), where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order the parties to bear their own costs in whole or in part.

34Since each party has succeeded on some and failed on other heads, it is appropriate to order the parties to bear their own costs.

Operative part

On those groundsTHE COURThereby:

(1).Declares that by not adopting all the laws, regulations and administrative provisions necessary to comply with 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 Federal Republic of Germany has failed to fulfil its obligations under the Treaty;

(2).Orders the parties to bear their own costs.

Delivered in open court in Luxembourg on 14 October 1987.