X v College van burgemeester en wethouders van de gemeente Purmerend and Tamoil Nederland BV.

• Jurisdiction: European Union
• Celex Number: 62019CJ0120
• ECLI: ECLI:EU:C:2021:398
• Docket Number: C-120/19
• Date: 20 May 2021
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

20 May 2021 (*)

(Reference for a preliminary ruling – Inland transport of dangerous goods – Directive 2008/68/EC – Article 5(1) – Concept of ‘construction requirement’ – Prohibition on laying down more stringent construction requirements – Authority of a Member State requiring a service station to be supplied with liquefied petroleum gas (LPG) only from road tankers fitted with a particular heat-resistant lining not provided for by the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR) – Unlawfulness – Decision legally unchallengeable by a category of persons – Strictly limited possibility of obtaining the annulment of such a decision where there is clear conflict with EU law – Principle of legal certainty – Principle of effectiveness)

In Case C‑120/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Raad van State (Council of State, Netherlands), made by decision of 30 January 2019, received at the Court on 15 February 2019, in the proceedings

X

v

College van burgemeester en wethouders van de gemeente Purmerend,

other party:

Tamoil Nederland BV,

THE COURT (Third Chamber),

composed of A. Prechal, President of the Chamber, N. Wahl (Rapporteur), F. Biltgen, L.S. Rossi and J. Passer, Judges,

Advocate General: E. Tanchev,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the College van burgemeester en wethouders van de gemeente Purmerend, by J.R. van Angeren, advocaat,

– the Netherlands Government, by C.S. Schillemans, M.K. Bulterman and M.H.S. Gijzen, acting as Agents,

– the German Government, by D. Klebs and J. Möller, acting as Agents,

– the European Commission, by A. Nijenhuis and N. Yerrell, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 28 January 2021,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 5(1) of Directive 2008/68/EC of the European Parliament and of the Council of 24 September 2008 on the inland transport of dangerous goods (OJ 2008 L 260, p. 13), as amended by Commission Directive 2014/103/EU of 21 November 2014 (OJ 2014 L 335, p. 15) (‘Directive 2008/68’).

2 The request has been made in proceedings between X and the College van burgemeester en wethouders van de gemeente Purmerend (Board of the Mayor and Aldermen of the municipality of Purmerend, Netherlands) (the ‘Board’) concerning a decision by which the latter set requirements relating to the supply of liquefied petroleum gas (LPG) to a service station established in its territory.

Legal context

European Union law

3 Recitals 1, 5, 11 and 22 of Directive 2008/68 state:

‘(1) The transport of dangerous goods by road, rail or inland waterway presents a considerable risk of accidents. Measures should therefore be taken to ensure that such transport is carried out under the best possible conditions of safety.

…

(5) The [European Agreement concerning the International Carriage of Dangerous Goods by Road, concluded at Geneva on 30 September 1957 (ADR)] … [lays] down uniform rules for the safe international transport of dangerous goods. Such rules should also be extended to national transport in order to harmonise across the Community the conditions under which dangerous goods are transported and to ensure the proper functioning of the common transport market.

…

(11) Each Member State should retain the right to regulate or prohibit the transport of dangerous goods within its territory, on grounds other than safety, such as grounds of national security or environmental protection.

…

(22) Since the objectives of this Directive, namely to ensure the uniform application of harmonised safety rules throughout the Community and a high level of safety in national and international transport operations, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Directive, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. …’

4 Article 1(1) and (5) of that directive provides:

‘1. This Directive shall apply to the transport of dangerous goods by road, by rail or by inland waterway within or between Member States, including the activities of loading and unloading, the transfer to or from another mode of transport and the stops necessitated by the circumstances of the transport.

…

5. Member States may regulate or prohibit, strictly for reasons other than safety during transport, the transport of dangerous goods within their territory.’

5 Article 3 of that directive provides:

‘1. Without prejudice to Article 6, dangerous goods shall not be transported in so far as this is prohibited by Annex I, Section I.1, Annex II, Section II.1, or Annex III, Section III.1.

2. Without prejudice to the general rules on market access or the rules generally applicable to the transport of goods, the transport of dangerous goods shall be authorised, subject to compliance with the conditions laid down in Annex I, Section I.1, Annex II, Section II.1, and Annex III, Section III.1.’

6 Under Article 5(1) of that directive:

‘Member States may on grounds of transport safety apply more stringent provisions, with the exception of construction requirements, concerning the national transport of dangerous goods by vehicles, wagons and inland waterway vessels registered or put into circulation within their territory.’

7 Article 6 of Directive 2008/68 provides that Member States may derogate, inter alia, from certain rules laid down in the annexes to that directive.

8 Annex I to that directive renders applicable Annexes A and B to the ADR, in the version in force on 1 January 2015 (the ‘ADR 2015’).

9 The sole recital of the ADR 2015 states that the contracting parties are ‘desiring to increase the safety of international transport by road’, while Article 3 of the ADR 2015 provides that the annexes to that agreement are to form an integral part thereof.

10 Annex A, Part 1, Chapter 1.2, point 1.2.1, to the ADR 2015 defines the shell for tanks as ‘the part of the tank which retains the substance intended for carriage, including openings and their closures, but does not include service equipment or external structural equipment’.

11 Table A in Chapter 3.2 of Part 3 of the ADR 2015 contains the dangerous goods list and indicates, inter alia:

UN No.	Name and description	Class	…	ADR tank		…
				Tank code 4.3	Special provisions 4.3.5, 6.8.4
(1)	(2)	(3a)	…	(12)	(13)	…
…	…	…	…	…	…	…
1075	PETROLEUM GASES, LIQUEFIED	2	…	PxBN(M)	TA 4 TT 9 TT 11	…
…	…	…	…	…	…	…

12 Chapter 4.3 of Part 4 of Annex A to the ADR 2015 is entitled ‘Use of fixed tanks (tank-vehicles), demountable tanks, tank-containers and tank swap bodies with shells made of metallic materials, and battery-vehicles and multiple-element gas containers (MEGCs)’. Paragraph 4.3.2.1.2 of that chapter states:

‘The required type of tank, battery-vehicle and MEGC is given in code form in Column (12) of Table A in Chapter 3.2. … The explanations for reading the four parts of the code are given in [paragraph] 4.3.3.1.1 (when the substance to be carried belongs to Class 2) …’

13 Paragraph 4.3.3.1.1 of Chapter 4.3 of Part 4 of Annex A to the ADR 2015 contains the following table:

Part	Description	Tank Code
1	Types of tank, battery-vehicle or MEGC	… P = tank, battery-vehicle or MEGC for liquefied gases or dissolved gases; …
…	…	…

14 Chapter 6.8 of Part 6 of Annex A to the ADR 2015 is entitled ‘Requirements for the construction, equipment, type approval, inspections and tests, and marking of fixed tanks (tank-vehicles), demountable tanks and tank-containers and tank swap bodies, with shells made of metallic materials, and battery-vehicles and multiple element gas containers (MEGCs)’. Paragraph 6.8.2.1.9 of that chapter forms part of the ‘construction’ requirements laid down in paragraph 6.8.2.1 and is worded as follows:

‘The materials of shells or of their protective linings which are in contact with the contents shall not contain substances liable to react dangerously … with the contents, to form dangerous compounds, or substantially to weaken the material.

…’

15 Paragraphs 6.8.2.1.24 to 6.8.2.1.26 of Chapter 6.8, preceded by the heading ‘Other construction requirements’, provide:

‘6.8.2.1.24 The protective lining shall be so designed that its leakproofness remains intact, whatever the deformation liable to occur in normal conditions of carriage …

6.8.2.1.25 The thermal insulation shall be so designed as not to hinder access to, or the operation of, filling and discharge devices and safety valves.

6.8.2.1.26 If shells intended for the carriage of flammable liquids having a flash-point of not more than 60 °C are fitted with non-metallic protective linings (inner layers), the shells and the protective linings shall be so designed that no danger of ignition from electrostatic charges can occur.’

16 Paragraph 6.8.3 of Chapter 6.8 consists solely of the heading ‘Special requirements applicable to Class 2’, while paragraph 6.8.3.1 of that provision covers more specifically the ‘construction of shells’. Paragraph 6.8.3.1.1 of that chapter states:

‘Shells intended for the carriage of compressed or liquefied gases or dissolved gases shall be made of steel. …’

17 Paragraph 6.8.4 of Chapter 6.8 of Part 6 of Annex A to the ADR 2015 contains, inter alia, the ‘special provisions’ TA 4, TT 9 and TT 11 rendered applicable to tanks carrying LPG pursuant to Table A reproduced in paragraph 11 of the present judgment.

18 Paragraph 6.8.5.1.1 of Chapter 6.8 provides that, where fixed tanks are welded, shells intended for the carriage of compressed, liquefied or dissolved gases of Class 2 are to be made of steel, it being...