Judgments nº T-234/04 of Court of First Instance of the European Communities, November 08, 2007

• Resolution Date: November 08, 2007
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-234/04

In Case T-234/04,

Kingdom of the Netherlands, represented by H.†Sevenster, J. van Bakel and M. de Grave, acting as Agents,

applicant,

supported by

Kingdom of Denmark, represented by J. Molde, acting as Agent,

intervener,

v

Commission of the European Communities, represented by F.†Simonetti and M. van Beek, acting as Agents,

defendant,

ACTION for annulment of Commission Decision 2004/1/EC of 16 December 2003 concerning national provisions on the use of short-chain chlorinated paraffins notified by the Kingdom of the Netherlands under Article 95(4) [EC] (OJ†2004 L†1, p.†20), in so far as, in that decision, the Commission takes the view that its approval under Article 95(6) EC is required for the maintenance of Netherlands legislation on the uses of short-chain chlorinated paraffins to which no reference is made in Directive 2002/45/EC of the European Parliament and of the Council of 25 June 2002 amending for the 20th time Council Directive 76/769/EEC relating to restrictions on the marketing and use of certain dangerous substances and preparations (short-chain chlorinated paraffins) (OJ 2002 L†177, p.†21),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber, Extended Composition),

composed of M. Vilaras, President, M.E. Martins Ribeiro, F. Dehousse, D. -v·by and K. J¸rim‰e, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 7 September 2006,

gives the following

Judgment

†Legal framework

†International provisions

1 ††††††††The European Community and some of its Member States were contracting parties to the Convention for the prevention of marine pollution from land-based sources, signed in Paris on 4 June 1974 (-the Paris Convention-). Within the framework of that convention, the Paris Commission had adopted Decision 95/1 (-PARCOM Decision 95/1-), which provides for the phasing-out of the use of short-chain chlorinated paraffins (-SCCPs-). The European Community is not a signatory to PARCOM Decision 95/1.

2 ††††††††The Paris Convention was replaced by the Convention for the protection of the marine environment of the North-East Atlantic, which was approved on behalf of the Community by Council Decision 98/249/EC of 7 October 1997 on the conclusion of the Convention for the protection of the marine environment of the North-East Atlantic (OJ†1998 L†104, p.†1) (-the OSPAR Convention-); a new Commission (-the OSPAR Commission-) replaced the Paris Commission.

†Community provisions

3 ††††††††Article 95(4) and (6) EC provides:

-4.††††††If, after the adoption by the Council or by the Commission of a harmonisation measure, a Member State deems it necessary to maintain national provisions on grounds of major needs referred to in Article 30, or relating to the protection of the environment or the working environment, it shall notify the Commission of these provisions as well as the grounds for maintaining them.

-

6.††††††The Commission shall, within six months of the notifications as referred to in [paragraph] 4 - , approve or reject the national provisions involved after having verified whether or not they are a means of arbitrary discrimination or a disguised restriction on trade between Member States and whether or not they shall constitute an obstacle to the functioning of the internal market.

In the absence of a decision by the Commission within this period the national provisions referred to in [paragraph] 4 - shall be deemed to have been approved.

When justified by the complexity of the matter and in the absence of danger for human health, the Commission may notify the Member State concerned that the period referred to in this paragraph may be extended for a further period of up to six months.-

4 ††††††††Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (OJ 1976 L†262, p.†201) includes provisions restricting the marketing and use of certain dangerous substances and preparations.

5 ††††††††According to Article 1(1) of Directive 76/769, the directive applies to the dangerous substances and preparations listed in the Annex thereto. Article 2 of the directive states that Member States are to take all necessary measures to ensure that the dangerous substances and preparations listed in the Annex may be placed on the market or used only subject to the conditions specified therein.

6 ††††††††Directive 76/769 has been amended many times, in particular in order to add new dangerous substances and preparations to the Annex and - on grounds of protecting human health or the environment - to restrict the marketing or use of those dangerous substances and preparations.

7 ††††††††Directive 2002/45/EC of the European Parliament and of the Council of 25 June 2002 amending for the 20th time Directive 76/769 relating to restrictions on the marketing and use of certain dangerous substances and preparations (short-chain chlorinated paraffins) (OJ 2002 L†177, p.†21; -the SCCPs†Directive-) added a point 42 to the Annex to Directive 76/769, which lays down rules for the marketing and use of SCCPs.

8 ††††††††According to point 42.1 of the Annex to Directive 76/769, as amended by the SCCPs Directive, SCCPs -[m]ay not be placed on the market for use as substances or as constituents of other substances or preparations in concentrations higher than 1%:

-††††††††in metalworking,

-††††††††for fat liquoring of leather-.

9 ††††††††Under point 42.2 of the abovementioned Annex, -[b]efore 1 January 2003 all remaining uses of SCCPs will be reviewed by the European Commission, in cooperation with the Member States and the OSPAR Commission, in the light of any relevant new scientific data on risks posed by SCCPs to health and the environment. The European Parliament will be informed of the outcome of this review.-

10 ††††††Article 2(1) of the SCCPs Directive provides that Member States are to adopt and publish, not later than 6 July 2003, the laws, regulations and administrative provisions necessary to comply with the Directive, forthwith inform the Commission thereof and apply those measures from 6 January 2004 at the latest.

†National provisions

11 ††††††In order to fulfil its international obligations under the Paris Convention and PARCOM Decision 95/1, the Kingdom of the Netherlands on 3 November 1999 adopted the Besluit houdende regels inzake het beperken van het gebruik van kortketenige gechloreerde paraffines (Besluit gechloreerde paraffines WMS) (Decree laying down rules prohibiting certain uses of SCCPs (Law on Chemical Substances), Staatsblad van het Koninkrijk der Nederlanden, 1999, p.†478; -the Decree-). In accordance with Article 4 of the Decree, it entered into force on 31 December 1999.

12 ††††††Article 1 of the Decree provides that it applies to chlorinated alkanes with a chain of from 10 to 13 inclusive carbon atoms and a chlorination degree of not less than 48% by weight.

13 ††††††Under Article 2(1) of the Decree, the SCCPs referred to in Article 1 may not be used:

(a) ††††††as plasticisers in paints, coatings or sealants;

(b) ††††††in metal-working fluids;

(c) ††††††as flame-retardant in rubber, plastics or textiles.

14 ††††††However, pursuant to Article 2(2) of the Decree, SCCPs may continue to be used until 31 December 2004 in dam sealants or as flame-retardants in conveyor belts for exclusive use in mining.

†Background

15 ††††††Following adoption of the SCCPs Directive, the Netherlands Government informed the Commission by letter of 17 January 2003 that it considered that the scope of the harmonisation under the SCCPs Directive affected only the uses of SCCPs expressly prohibited in point 42.1 of the Annex to Directive 76/769, as amended by the SCCPs Directive. Consequently, other uses - including those set out in PARCOM Decision 95/1 - were not within the field of harmonisation under the SCCPs Directive; therefore, Member States could authorise or prohibit those uses without having to resort to the procedure under Article 95(4) and (6) EC.

16 ††††††In its letter of 17 January 2003, the Netherlands Government also invoked Article 95(4) EC - -so far as relevant and required by law- - by stating, in accordance with that provision, the grounds for maintaining the prohibitions contained in PARCOM Decision 95/1 in its national legislation. Finally, in that same letter, the Netherlands Government expressed -hope that the Commission [would] soon adopt the same position as the [Kingdom of] the Netherlands on the latter-s discretion to maintain its national provisions and that the Commission [would] take a favourable decision on its request under Article 95(4) EC-.

17 ††††††By letter of 25 March 2003, the Commission informed the Kingdom of the Netherlands that it had received the notification under Article 95(4) EC and that the six-month period for its examination had started on 22 January 2003, the day following that on which the notification was received. The Commission also stated in that letter that a copy of the notification would be sent to the other Member States for any observations they might have, and that a notice regarding the notification would be published in the Official Journal.

18 ††††††In Decision 2003/549/EC of 17 July 2003 extending the period referred to in Article 95(6) [EC] in relation to the national provisions on the use of SCCPs notified by the Netherlands under Article 95(4) [EC] (OJ 2003 L†187, p.†27), the Commission concluded, first, that the application that the Kingdom of the Netherlands had notified to it on 21 January 2003 with a view to obtaining approval of its national provisions on...