Pubblico Ministero v. Tullio Ratti
(Case 148/78)
Before the Court of Justice of the European
Communities
ECJ
(Presiding, Mertens de Wilmars P.C.; Lord Mackenzie
Stuart P.C.; Pescatore, S
orensen, O'Keeffe, Bosco and Touffait JJ.) Herr Gerhard
Reischl, Advocate
General.
5 April 1979
Reference by the Pretura Penale, Milan, under Article 177 EEC.
Directives. Direct effect.
After the expiration of the period fixed for the implementation of a directive, a
member-State may not apply its internal law--even if it is provided with penal
sanctions --which has not yet been adapted in compliance with the directive, to a
person who has complied with the requirements of the directive, if those
requirements are unconditional and sufficiently precise. [22]-[24]
Legislation. Occupied field.
Where a directive provides that only solvents which comply with its provisions
may be placed on the market and that member-States are not entitled to maintain
different, parallel, rules for the domestic market, that constitutes a prohibition on
national rules which are more restrictive or more detailed than or different from
those in the directive as regards classification, packaging and labelling. Thus it is
not permissible for national provisions to require that containers should bear a
statement of the presence of ingredients of the product in question in terms going
beyond those laid down in the directive. [27], [33]
Imports. Health restrictions.
When, pursuant to Article 100 EEC, Community directives provide for the
harmonisation of measures necessary to ensure the protection of the health of
persons and animals and establish Community procedures to supervise
enforcement, recourse to Article 36 EEC ceases to be justified and any
restrictions on free movement on those grounds must be carried out in
accordance with the scheme laid down in the directive. [36]
Directives. Direct effect.
A directive cannot bring about with respect to any individual who has complied
with its provisions before the expiration of the implementation period prescribed
for the member-States any effect capable of being taken into consideration by
national courts. [47]
*97 The Court interpreted Article 189 EEC and Directives 73/173 and 77/728 in
the context of a prosecution brought in the Italian courts against an individual
who had labelled his products in compliance with the directives but not in
compliance with Italian legislation, neither directive having been received into
Italian law and the time limit for doing so having expired for the first, but not the
second, directive, to the effect that compliance with the former directive was
adequate irrespective of differing national rules but that he could not rely upon
the second directive since it had not yet entered into effect for citizens.
Representation
Mr. De Falco for the accused.
Mr. Fornasier, legal adviser to the E.C. Council, for the Council as amicus curiae.
Mr. Alessi, legal adviser to the E.C. Commission, for the Commission as amicus
curiae.
The following case was referred to by the Court of Justice:
1. Verbond Van Nederlandse Ondernemingen v. Inspecteur der Invoerrechten en
Accijnzen (51/76), 1 February 1977: [1977] 1 C.M.L.R. 413; [1977] E.C.R. 126.
The following additional cases were referred to by the Advocate General:
2. Franz Grad v. Finanzamt Traunstein (9/70), 6 October 1970: [1971] C.M.L.R.
1; [1970] E.C.R. 825.
3. Van Duyn v. Home Office (41/74), 4 December 1974: [1975] 1 C.M.L.R. 1;
[1974] E.C.R. 1337.
4. S.A.C.E. v. Italian Ministry of Finance (33/70), 17 December 1970: [1971]
C.M.L.R. 123; [1970] E.C.R. 1213.
5. Enka BV v. Inspecteur der Invoerrechten en Accijnzen (38/77), 23 November
1977: [1978] 2 C.M.L.R. 212; [1977] E.C.R. 2203.
6. Simmenthal SpA v. Italian Minister for Finance (35/76), 15 December 1976:
[1977] 2 C.M.L.R. 1; [1976] E.C.R. 1871.
7. Tedeschi v. Denkavit Commerciale Srl (5/77), 25 October 1977: [1978] 1
C.M.L.R. 1; [1977] E.C.R. 1555.
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT
DISPLAYABLE
Facts
The board of directors of the undertaking Silvam, of Senago (Milan), represented
by Mr. Ratti, decided to package its solvents and to affix to the container labels
conforming to Council Directive 73/173/EEC of 4 June 1973. It also decided that
Council Directive 77/728/EEC of 7 November 1977 would be applied to its
varnishes.
*98 Those two directives have not yet been incorporated into the Italian legal
system: Act 245 of 5 March 1963, [FN1] applying both to solvents and varnishes,
remains in force in Italy at the present time.
FN1 [1963] G.U.R.I. 1451.
Act 245 is in some aspects more stringent than the aforesaid directives (it
requires in all cases an indication of the quantity of benzene, toluene and xylene
in the solvent or varnish) and in others less so (it does not require a reference to
all the ingredients considered to be toxic, corrosive, irritant, oxidising or highly
inflammable) than the aforesaid directives. This causes difficulties both as
regards products manufactured in Italy and imported products.
Mr. Ratti was prosecuted by the Pubblico Ministero for an infringement of Act 245
before the Fifth Criminal Chamber of the Pretura, Milan.
Considering that the dispute raised questions involving the interpretation of
Community law, the Pretura referred the following preliminary questions to the
Court of Justice:
(a) Does Council Directive 73/173/EEC of 4 June 1973, in particular Article 8
thereof, constitute directly applicable legislation conferring upon individuals
personal rights which the national courts must protect?
(b) Is it lawful, notwithstanding the provisions set out in the said Article, to
prescribe in national legislation obligations and limitations which are more
precise and detailed than, or at all events different from, those set out in the
directive, and might the foregoing be considered an obstacle to the free
movement of and trade in the goods and products covered by that directive,
namely solvents, in that such obligations and limitations directly affect the
establishment and operation of the Common Market, having regard to the
obligation imposed by national legislation to affix to containers information which
is not required by the directive?
(c) In particular, may the duty to indicate, on the container of the solvent or
product offered for sale, that it contains benzene, toluene and xylene, specifying
the total percentage of those substances and, separately, that of benzene alone,
pursuant to section 8 of Act 245 of 5 March 1963 , be considered incompatible
with the said directive, either because of the obligatory nature of the duty to
provide the information (failure to do so being punishable under the criminal law)
or by reason of the detailed rules laid down for discharging that duty, having
regard also to the general reasoning upon which the said directive appears to be
based?
(d) Do the said national provisions, which are applicable without distinction to all
goods placed on the domestic market, *99 nevertheless constitute an obstacle, a
prohibition or a restriction on trade in and the free movement of such goods,
even if such provisions were enacted for the purpose of ensuring greater
protection for the physical safety of users of the products in question (and indeed
a considerable volume of scientific literature, at least from the 1960s onwards,
emphasises the dangers inherent in substances such as benzene, toluene and
xylene, especially for workers who may often have to use solvents which,
unknown to them, contain a high percentage of such substances, but not only for
workers, since any consumer who uses a varnish containing the said substances
may risk grave injury to his health)?
(e) Is Council Directive 77/728/EEC of 7 November 1977, in particular Article 9
thereof, immediately and directly applicable with regard to the obligations
imposed on member-States to refrain from action from the date of notification of
that directive in a case where a person, acting upon a legitimate expectation, has
complied with the provisions of that directive before expiry of the period within
which the member-States must comply with the said directive?
Opinion of the Advocate General (Herr Gerhard Reischl)
The reference for a preliminary ruling on which I have to deliver an opinion today
concerns two Council directives which were issued in order to eliminate
obstacles to trade between member-States due to differences in national
provisions of a technical nature. We are concerned with Directive 73/173 of 4
June 1973 on the approximation of member-States' laws, regulations and
administrative provisions relating to the classification, packaging and labelling of
dangerous preparations (solvents) [FN2] and Directive 77/728 of 7 November
1977 on the approximation of the laws, regulations and administrative provisions
of the member-States relating to the classification, packaging and labelling of
paints, varnishes, printing inks, adhesives and similar products. [FN3]
FN2 [1973] O.J. L189/7.
FN3 [1977] O.J. L303/23.
The first of the above-mentioned directives contains provisions in its first two
Articles concerning certain toxic and harmful substances. These are grouped into
classes and sub-classes to which particular indices are assigned. Articles 4 to 6
deal with questions of packaging and labelling, and prescribe in particular that an
indication of certain information concerning the toxic and harmful substances
shall be given. Under Article 7 member-States may, to a certain extent, permit
derogations from these requirements. Article 3 *100 provides that 'memberStates shall take all necessary measures to ensure that dangerous preparations
(solvents) cannot be placed on the market unless they comply with the provisions
of this directive and the annex thereto'. Article 8 provides that 'member-States
shall not prohibit, restrict or impede on the grounds of classification, packaging or
labelling as defined in this directive, the placing on the market of dangerous
preparations which satisfy the requirement of this directive and the annex
thereto'. Article 11 requires member-States to 'introduce the provisions
necessary to comply with this directive within eighteen months from its
communication'.
Directive 77/728 enacts analogous provisions for paints containing certain
dangerous substances. For its implementation, however, Article 12 lays down a
period of 24 months from its notification; this period, unlike the one prescribed in
Article 11 of Directive 73/173, has not yet expired and will not do so until
November of this year.
Italy has not yet provided for the implementation of these directives. There is
merely an Act No. 256 of 29 May 1974 and a Ministerial Decree of 17 December
1977 pursuant to the outline Directive 67/548 of 27 June 1967 [FN4]--amended
by Directive 73/146 --which forms the basis of the two directives on solvents and
varnishes with which we are concerned now. So in Italy, as regards those
substances, Act 245 of 15 March 1963 is still in force, applying both to goods
produced and marketed in Italy and to imported goods. It makes mandatory
provisions for labelling which in part are less stringent than the provisions of the
directives--because only certain substances (benzene, toluene and xylene)
require an indication--and in part exceed the requirements of the directives, in
that they refer to concentrations, which are not dealt with in the directives, and
they require, moreover, that the quantities of the substances concerned be
indicated in percentages. Section 12 of the Act provides that anyone failing to
comply with these provisions may be fined.
FN4 [1967] J.O. 196/1.
That is what faces the accused in the main action, the legal representative of the
Italian undertaking Silvam. Criminal proceedings were instituted against him in
the Pretura in Milan, because Silvam had begun to apply the labelling prescribed
in Directive 73/173 to its containers of solvents and to comply with Directive
77/728 as regards varnishes. Apparently the products concerned include
varnishes imported from the Federal Republic of Germany where the directives
are already applied.
In his defence the accused relies upon the said Community directives. He points
out that according to the case law of the Court individuals may acquire rights
under directives if certain requirements are fulfilled. He submits that that applies
to Directive 73/173 which should already have been implemented. Only in Article
7 *101 does it leave a narrow latitude for derogations, and presumably the
derogations themselves created absolute obligations. At all events it must be
assumed that the obligation contained in Article 8 has direct effect. But the same
applies also to the corresponding obligation contained in Article 9 of Directive
77/728. Therefore the fact that the period prescribed in Article 12 has not yet
expired is irrelevant; for the member-States did not need to adopt any measures
in order to comply with Article 9. Any other interpretation would make it
permissible to prohibit use of the labelling prescribed by the directive until expiry
of the period laid down in Article 12 which would--since the directives were
already applied in Germany--result in an unacceptable restriction of the free
movement of goods.
By a decision of 8 May 1978 the Pretura stayed the proceedings and submitted
the following questions for a preliminary ruling pursuant to Article 177 of the EEC
Treaty:
[The Advocate General repeated the questions, and continued:]
My opinion on these questions is as follows:
1. As regards the legal effects of Directive 73/173, which should have been
followed by internal implementing measures by the end of 1974--which did not
happen in Italy--it must first of all be pointed out, with regard to the formulation of
the question, that it is certainly inappropriate to speak of the direct applicability of
a directive. That term is used in Article 189 of the Treaty only for regulations, that
is to say, for directly applicable Community legislation, which may also create
legal relations between individuals. However, it is clear from the Treaty and has
also been emphasized again and again in the case law that a clear distinction
must be drawn between regulations and directives, the latter creating obligations
only for the member-States. So under no circumstances can one say--as the
defendant in the main action has said--that directives may also have the content
and effects of a regulation; at most directives may produce similar effects (cf. the
judgments of 6 October 1970 in Case 9/70, Franz Grad v. Finanzamt Traunstein,
[FN5] of 4 December 1974 in Case 41/74, Van Duyn v. Home Office [FN6] and of
1 February 1977 in Case 51/76, Verbond Van Nederlandse Ondernemingen v.
Inspecteur der Invoerrechten en Accijnzen [FN7]). The essence of such effects is
that in certain cases, which however constitute the exception to the rule,
member-States which do not comply with their obligations under the directive are
unable to rely on provisions of the internal legal order which are illegal from the
point of view of Community law, so that individuals become entitled to rely on the
directive as against the defaulting State and acquire rights thereunder which the
national courts must protect. So in such cases one should more properly *102
speak--and that has always happened in the case law--only of the direct effect of
directives. Consequently the first question of the Pretura must be understood in
this amended sense.
FN5 [1970] E.C.R. 825; [1971] C.M.L.R. 1.
FN6 [1974] E.C.R. 1337; [1975] 1 C.M.L.R. 1.
FN7 [1977] E.C.R. 113; [1977] 1 C.M.L.R. 413.
The conditions in which such direct effect can be recognised have already been
laid down with sufficient clarity in the case law of the Court. I refer to the
judgments cited above and also to the judgment of 17 December 1970 in Case
33/70, S.A.C.E. v. Ministry for Finance of the Italian Republic [FN8] and the
judgment of 23 November 1977 in Case 38/77, Enka BV v. Inspecteur der
Invoerrechten en Accijnzen. [FN9] According to those cases the decisive test is
whether it may be said from the nature, general scheme and wording of a
directive that it imposes clear, complete and precise obligations on the memberStates, does not lay down any conditions other than precisely defined ones and
does not leave the member-States any margin of discretion in the performance of
the obligations.
FN8 [1970] E.C.R. 1213; [1971] C.M.L.R. 123.
FN9 [1977] E.C.R. 2203; [1978] 2 C.M.L.R. 212.
With the guidance afforded by those criteria it is easy to judge to which
provisions of Directive 73/174 which, as I have already said, the member-States
should have complied with some time ago, direct effect may be attributed.
This certainly applies to Articles 1 and 2. In those Articles, as I have already
stated, the substances concerned are specified, the toxic and harmful
substances used as solvents are divided into classes and sub-classes with
indices for each sub-class and rules are laid down to determine precisely when
preparations are to be considered toxic or harmful. The same applies also to
Article 4, which governs packaging and provides at the end: 'Packages meeting
these requirements shall be considered as satisfactory'. Articles 5 and 6, which
deal with the labelling of the packages and the addition of safety advice, should
be regarded in the same way. On the other hand different considerations apply to
Article 7, which permits member-States to prescribe a different form of labelling
for very small packages and for preparations which contain such small quantities
as to be harmless.
As regards Article 8, to which the question refers in particular, there too the
wording of the provision seems to argue in favour of direct effect. However, the
Commission is in my opinion right to point out that basically that provision has no
significance of its own, but merely contains confirmation of the principle,
deducible from other provisions of the directive and from its general purpose, that
products conforming to the directive may be freely marketed and trade in them
may not be impeded. Therefore it is necessary to ascertain whether other
provisions of the directive have direct effect, since such effect can be ascribed to
Article 8 only in conjunction with other provisions of the directive.
Therefore the first questions must be answered as a whole in the way indicated
above.
*103 2. With regard to the second question the Commission rightly pointed out
that Directive 73/173 aims to secure total harmonisation. That can be deduced
from Article 3, from the last paragraph of Article 4 and from Article 8. Accordingly-disregarding Article 7, which permits limited exceptions which have no relevance
to this case--it is not permissible for a member-State to maintain, as regards the
home market, derogative regulations in general and in particular to apply to the
classification, packaging and labelling of solvents conditions more restrictive than
those of the directive. As regards imports from other member-States, the
maintenance of regulations in derogation from the directive should certainly be
considered contrary to the principle of the free movement of goods, which of
course is supposed to be guaranteed by Article 8 if the requirements of the
directive and annex thereto are satisfied.
In order to answer the third question it is sufficient to refer to Article 5 of Directive
73/173. It provides that the packages of solvents must indicate the presence of
certain substances considered toxic within the definition contained in Article 2
and that in certain cases the names of harmful substances must be stated. But
there is no requirement to indicate percentages. So section 8 of the Italian Act of
15 March 1963 is clearly more restrictive than the directive and constitutes a
derogation therefrom. It is also clear that as a result the said national provision is
not in conformity with the directive and in particular with Article 8 thereof, already
mentioned several times, which provides that the placing on the market of
dangerous preparations which satisfy the requirements of the directive and the
annex thereto may not be prohibited, restricted or impeded on the grounds of
classification, packaging and labelling as defined in the directive.
4. The fourth question obviously alludes to Article 36 of the EEC Treaty, whereby
measures having equivalent effect within the meaning of Article 30 may be
justified on certain grounds, including for example the protection of the health of
consumers. However, such justifications can surely not succeed when a
Community measure for the harmonisation of such provisions has been adopted,
that is to say when the attainment of the objectives of Article 36 has been
undertaken at Community level. Thus it is clear that the standard laid down in the
Community measure guarantees sufficient protection and so, when the period
prescribed by the directive for the adaptation of internal law has expired, there is
in principle no longer any place for additional protective measures at the national
level. This is clear from the judgment of 15 December 1976 in Case 35/76,
Simmenthal SpA v. Italian Minister for Finance [FN10] and the judgment of 25
October 1977 in Case 5/77, Tedeschi v. Denkavit Commerciale Srl. [FN11] In
those cases it was emphasised that Article 36 has by no means reserved certain
matters to the exclusive jurisdiction of member-States; *104 exceptions to the
principle of the free movement of goods may be justified thereunder only if
measures are necessary for the protection of the things mentioned in Article 36
which, however, is no longer the case when harmonising directives with the
same objective have been adopted.
FN10 [1976] E.C.R. 1871; [1977] 2 C.M.L.R. 1.
FN11 [1977] E.C.R. 1555; [1978] 1 C.M.L.R. 1.
It is just possible in the present case to consider an application of Article 9 of
Directive 73/173, which provides that:
'Where a member-State establishes that a dangerous preparation, although
satisfying the requirements of this directive, presents a health or safety risk
necessitating a classification or labelling other than those provided for by this
directive, it may, for a period not exceeding six months, prohibit the distribution,
sale or use of that preparation in its territory. It shall immediately inform the other
member-States and the Commission thereof and give reasons for its decision.'
However, as the wording shows, the above provision merely concerns temporary
measures for which--as was emphasised by the judgment in Case 5/77
(Tedeschi) on analogous facts--a Community procedure must be observed and
which, in accordance with Article 9 (2), are subject to the supervision of the
Commission, which makes the final decision regarding what steps it is
appropriate to take. Moreover it is clear that in the present case we are not
concerned with an application of that provision since the Italian Act was enacted
long before the Community directive and so not as a reaction thereto or in
reliance on the said Article 9.
5. Lastly we must determine whether Directive 77/728 of 7 November 1977,
Article 12 of which, as I have already said, provides that member-States must
introduce the necessary laws, regulations and administrative provisions by
November 1979 at the latest, has direct effect before that date, from the date of
its notification in fact, since Article 9 thereof provides that:
'Member-States shall not prohibit, restrict or impede, on the grounds of
classification, packaging or labelling as defined in this directive, the placing on
the market of dangerous preparations which satisfy the requirements of this
directive and the annexes thereto.'
That is correct in the view of the accused in the main action because the said
Article merely imposes on the member-States an obligation to refrain from action,
which leaves absolutely no margin of discretion and requires no legislative
measures. He relies in this context--as may be gathered from the way in which
the question is formulated--inter alia on the protection of the legitimate
expectation of undertakings which have complied with the directive before expiry
of the aforesaid period. Apart from that, he considers any other interpretation
intolerable because, with regard to imports from member-States which have
already implemented the directive, it would constitute an obstacle to the free
movement of goods.
The problems raised can be approached by establishing in the first *105 place
that Directive 77/728 contains provisions which correspond to those of Directive
73/173 and therefore, because they are clear and complete and leave the
member-States no margin of discretion, judging from the manner in which their
contents are set out, satisfy the requirements for direct effect. The provisions in
question are Articles 3, 5, 6, 7 and 9. However, it is important to remember a
point which I emphasised at the beginning of my opinion, namely that, as far as
directives are concerned, direct effect is hardly an automatic consequence, but
merely a reflex effect: it occurs when a member-State does not comply with its
obligations and consists in the fact that the State is deprived of the possibility of
relying as against individuals and undertakings on its failure to comply with
Community law. Accordingly the fact that a directive becomes binding on its
notification is not sufficient to produce that legal consequence, rather is it the
expiry of the period laid down in the directive for the adaptation of national law
which is material. But since that has not occurred in the present case and since
therefore the Italian State cannot be accused of a failure to fulfil its obligations
which would also justify the institution of proceedings under Article 169 of the
EEC Treaty, it is not possible at present to ascribe direct effect to the said
provisions.
Having first established that, we must ask ourselves--and this constitutes the real
problem of the fifth question--whether a different solution may apply as regards
the obligation contained in the aforesaid Article 9. Such a line is argued strongly
by the accused in the main action. In particular he submits that a rational
interpretation of Article 12 of the directive would hold that the period laid down
therein applies only to member-States' obligations to take action, hence only
when it appears necessary to amend internal law and account must be taken of
the fact that the undertakings affected thereby need time to adjust to the new
legal provisions. That, says the defendant, surely cannot be relevant as regards
the obligation to refrain from action contained in Article 9.
However, I am no more persuaded of the correctness of that point of view than
were the Council and the Commission.
In fact Article 12 cannot be interpreted so narrowly as the accused in the main
action submits; it concerns not only provisions which affect the conduct of
undertakings and other legal persons and which clearly require a period of
adjustment. Article 12 embraces the entire conduct required of member-States
by the directive and so must doubtless be taken to apply to Article 9 also. Here
too one may properly speak of an obligation on member-States to take action
because it is necessary for them to amend their law--in the present case the
provisions of the Act of 15 March 1963, in particular its criminal provisions-- not
least in the interest of legal certainty and clarity.
Moreover, considerations of principle--direct effect is not the rule in the case of
directives--raise doubts about the attempt to isolate *106 particular provisions of
a directive in order to ascribe direct effect to them earlier than would otherwise
be the case. In any event my conviction is that Article 9 of Directive 77/228 does
not permit that. In this respect I would recall something which I have pointed out
with regard to Article 8, the corresponding provision of Directive 73/173. In the
same way Article 9 of Directive 77/728 likewise has no independent value. It is,
so to speak, nothing more than a reflection of the other provisions of the directive
which impose obligations to take action. The stipulations which it contains seem
obvious in view of the tenor and purpose of the directive; however, that legal
consequence can be achieved only on attainment of the objective of
harmonisation, as is made explicit in certain provisions of the directive. Therefore
direct effect cannot properly be ascribed to Article 9 in isolation, but only in
conjunction with the other provisions of the directive which contain obligations to
take action. But if direct effect is excluded in the case of those provisions
because the period prescribed in Article 12 has not yet expired, the same must
apply as regards Article 9.
The foregoing applies to domestic marketing in the same way as to imports from
other member-States.
As regards the first point it is certainly not possible to plead the protection of the
legitimate expectation of individuals who prematurely adapted their conduct in
accordance with the provisions of the directive. To hold otherwise would be to
mistake the legal nature of directives: they create obligations, not for individuals,
but only for member-States, and, as has already been shown, individuals may
acquire rights under directives only when member-States have failed to comply
with their obligations.
Admittedly as regards imports from other member countries it seems natural to
hold that internal measures contrary to Article 30 of the Treaty can no longer be
justified under Article 36 of the Treaty when a Community standard has already
been laid down by means of a directive and that standard is already being
observed in other member countries. But that would be to misunderstand the
basic purpose of the directive, which is to bring about through harmonisation the
removal of obstacles to the free movement of goods, meaning that the obstacles
to the free movement of goods are to disappear only with the unification of the
law. So, where a directive prescribes a period for that harmonisation, it follows
that internal provisions may be retained during that time and they may be justified
under Article 36 of the Treaty, since member- States remain competent to act
thereunder in the meantime.
Moreover, an examination of the case law confirms that this view is correct.
Thus, for example, it was emphasised in the judgment in Case 9/70, Franz Grad
v. Finanzamt Traunstein, [FN12] that member-States *107 retain their freedom of
action until the time set for the harmonisation is reached, and in Case 35/76,
Simmenthal SpA v. Italian Minister for Finance, [FN13] it was held that national
public health inspections only cease to be justified under Article 36 of the Treaty
as from the latest date specified in a directive for the entry into force of the
appropriate national provisions.
FN12 [1970] E.C.R. 825; [1971] C.M.L.R. 1.
FN13 [1976] E.C.R. 1871; [1977] 2 C.M.L.R. 1.
In this respect, however considerations of legal certainty are relevant, for that
principle requires that internal provisions cease to be applied only when they
have been replaced by provisions conforming to the directive or the period
prescribed in the directive has expired. Besides, it should not be overlooked that
to hold otherwise and to accept the argument put forward by the accused in the
main action would lead to discrimination in favour of imports from other memberStates, because of course only they could rely on Articles 30 and 36 of the EEC
Treaty, whereas domestic marketing operated in accordance with the directive,
could still be prohibited.
6. Thus the questions submitted by the Pretura Penale, Milan, may be answered
as follows:
(a) Articles 2, 4, 5 and 6 of Directive 73/173, along with Article 8 in conjunction
with the aforesaid Articles, have direct effect in that after the expiry of the period
laid down in the directive for its implementation individuals may rely thereon
before national courts.
(b) National legislation may not prescribe obligations and limitations in derogation
from the directive, even though they be more precise and detailed. With regard to
goods imported from other member-States such derogations are to be
considered obstacles to the free movement of goods.
(c) National legislation requiring that an indication be given on containers of
solvents that they contain benzene, toluene and xylene, specifying the total
percentage of those ingredients and the percentage of benzene alone, is
incompatible with Directive 73/173.
(d) The duty, arising under national law, to observe requirements derogating from
the directive may not be justified by reference to the protection of the physical
safety of users of the products in question.
(e) Articles 3, 5, 6 and 7 of Directive 77/728, along with Article 9 in conjunction
with the aforesaid provisions, have direct effect only upon expiry of the period
laid down in Article 12 of the directive, that is to say, only as from 9 November
1979.
JUDGMENT
[1] By an order of 8 May 1978, received at the Court on 21 June 1978, the
Pretura Penale, Milan, referred several questions to the *108 Court for a
preliminary ruling under Article 177 of the EEC Treaty on the interpretation of two
Council directives on the approximation of the laws, regulations and
administrative provisions of the member-States, the first, no. 73/173/EEC of 4
June 1973 on the classification, packaging and labelling of dangerous
preparations (solvents) [FN14] and the second, no. 77/728/EEC of 7 November
1977 on the classification, packaging and labelling of paints, varnishes, printing
inks, adhesives and similar products. [FN15] [2] Those questions are raised in
the context of criminal proceedings against the head of an undertaking which
produces solvents and varnishes, on a charge of having infringed certain
provisions of the Italian Act 245 of 5 March 1963 [FN16] which require
manufacturers of products containing benzene, toluene and xylene to affix to the
containers of those products labels indicating, not only the fact that those
substances are present, but also their total percentage and, separately, the
percentage of benzene. [3] As far as solvents are concerned, that legislation
ought, at the material time, to have been amended in order to comply with
Directive 73/173 of 4 June 1973, the provisions of which member-States were
supposed to incorporate into their internal legal orders by 8 December 1974 at
the latest, an obligation which the Italian Government has not fulfilled. [4] That
amendment would have resulted in the repeal of the provision of the Italian Act
which the accused is charged with contravening and would consequently have
altered the conditions for applying the criminal sanctions contained in the law in
question. [5] As regards the packaging and labelling of varnishes, Directive
77/728 of 7 November 1977 had, at the material time, been adopted by the
Council, but by virtue of Article 12 thereof member-States have until 9 November
1979 to bring into force the laws, regulations and administrative provisions
necessary to comply therewith. [6] The incorporation of the provisions of that
directive into the internal Italian legal order must likewise result in the repeal of
the provisions of the Italian law which the accused is charged with contravening.
[7] As regards the packaging and labelling of both the solvents and the varnishes
produced by his undertaking, the accused complied, in the one case, with the
provisions of Directive 73/173 (solvents), which the Italian Government had failed
to incorporate into its internal legal order, and, in the other case, with the
provisions of Directive 77/728 (varnishes), which member-States must implement
by 9 November 1979. [8] The replies to the questions submitted, the first four of
which concern Directive 73/173, while the fifth concerns Directive 77/728, must
enable the national court to decide whether the penalties prescribed by Italian
Act 245 for an infringement of its provisions may be applied in the case in
question.
FN14 [1973] O.J. L189/7.
FN15 [1977] O.J. L303/23.
FN16 [1963] Gazzetta Ufficiale 1451.
*109 A. The interpretation of Directive 73/173
[9] This directive was adopted pursuant to Article 100 of the Treaty and Council
Directive 67/548/EEC of 27 June 1967, [FN17] amended on 21 May 1973,
[FN18] on dangerous substances, in order to ensure the approximation of the
laws, regulations and administrative provisions of the member-States on the
classification, packaging and labelling of dangerous preparations (solvents). [10]
That directive proved necessary because dangerous substances and
preparations were subject to rules in the member-States which displayed
considerable differences, particularly as regards labelling, packaging and
classification according to the degree of risk presented by the said products. [11]
Those differences constituted a barrier to trade and to the free movement of
goods and directly affected the establishment and functioning of the market in
dangerous preparations such as solvents used regularly in industrial, farming and
craft activities, as well as for domestic purposes. [12] In order to eliminate those
differences the directive made a number of express provisions concerning the
classification, packaging and labelling of the products in question (Article 2 (1),
(2) and (3) and Articles 4, 5 and 6). [13] As regards Article 8, to which the
national court referred in particular, and which provides that member-States may
not prohibit, restrict or impede on the grounds of classification, packaging or
labelling the placing on the market of dangerous preparations which satisfy the
requirements of the directive, although it lays down a general duty, it has no
independent value, being no more than the necessary complement of the
substantive provisions contained in the aforesaid Articles and designed to ensure
the free movement of the products in question.
FN17 [1967] O.J. Spec.Ed. 234.
FN18 [1973] O.J. L167/1.
[14] The member-States were under a duty to implement Directive 73/173, in
accordance with Article 11 thereof, within 18 months of its notification. [15] All the
member-States were so notified on 8 June 1973. [16] The period of 18 months
expired on 8 December 1974 and up to the time when the events material in the
case occurred the provisions of the directive had not been implemented within
the Italian internal legal order. [17] In those circumstances the national court,
finding that 'there was a manifest contradiction between the Community rules and
internal Italian law', wondered ' which of the two sets of rules should take
precedence in the case before the court' and referred to the Court the first
question, asking as follows:
'Does Council Directive 73/173/EEC of 4 June 1973, in particular Article 8
thereof, constitute directly applicable legislation conferring upon individuals
personal rights which the national courts must protect?'
[18] This question raises the general problem of the legal nature of the provisions
of a directive adopted under Article 189 of the Treaty. [19] In this regard the
settled case law of the Court, last reaffirmed by *110 the judgment of 1 February
1977 in Case 51/76, Nederlandse Ondernemingen, [FN19] lays down that, whilst
under Article 189 regulations are directly applicable and, consequently, by their
nature capable of producing direct effects, that does not mean that other
categories of acts covered by that Article can never produce similar effects. [20]
It would be incompatible with the binding effect which Article 189 ascribes to
directives to exclude on principle the possibility of the obligations imposed by
them being relied on by persons concerned. [21] Particularly in cases in which
the Community authorities have, by means of directive, placed member-States
under a duty to adopt a certain course of action, the effectiveness of such an act
would be weakened if persons were prevented from relying on it in legal
proceedings and national courts prevented from taking it into consideration as an
element of Community law. [22] Consequently a member-State which has not
adopted the implementing measures required by the directive in the prescribed
periods may not rely, as against individuals, on its own failure to perform the
obligations which the directive entails. [23] It follows that a national court
requested by a person who has complied with the provisions of a directive not to
apply a national provision incompatible with the directive not incorporated into the
internal legal order of a defaulting member-State, must uphold that request if the
obligation in question is unconditional and sufficiently precise. [24] Therefore the
answer to the first question must be that after the expiration of the period fixed for
the implementation of a directive a member-State may not apply its internal law-even if it is provided with penal sanctions--which has not yet been adapted in
compliance with the directive, to a person who has complied with the
requirements of the directive.
FN19 [1977] E.C.R. 126; [1977] 1 C.M.L.R. 413.
[25] In the second question the national court asks, essentially, whether, in
incorporating the provisions of the directive on solvents into its internal legal
order, the State to which it is addressed may prescribe 'obligations and
limitations which are more precise and detailed than, or at all events different
from, those set out in the directive', requiring in particular information not required
by the directive to be affixed to the containers.
[26] The combined effect of Articles 3 to 8 of Directive 73/173 is that only
solvents which 'comply with the provisions of this directive and the annex thereto'
may be placed on the market and that member-States are not entitled to
maintain, parallel with the rules laid down by the said directive for imports,
different rules for the domestic market. [27] Thus it is a consequence of the
system introduced by Directive 73/173 that a member-State may not introduce
into its national legislation conditions which are more restrictive than those laid
down in the directive in question, or which are even more detailed or in any event
different, as regards the classification, packaging *111 and labelling of solvents
and that this prohibition on the imposition of restrictions not provided for applies
both to the direct marketing of the products on the home market and to imported
products. [28] The second question submitted by the national court must be
answered in that way.
[29] In the third question the national court asks whether the duty to indicate on
the container of the solvent offered for sale that it contains benzene, toluene and
xylene, specifying the total percentage of those substances and, separately that
of benzene, pursuant to section 8 of Act 245 of 5 March 1963 , may be
considered incompatible with the said directive.
[30] Section 8 of Italian Act 245 of 5 March 1963 lays down a duty, 'where
solvents contain benzene, toluene or xylene, to affix to the containers offered for
sale a label mentioning the presence of those substances in the solvents, the
total percentage of those substances and, separately, the percentage of benzene
...'.
[31] However, Article 5 of Directive 73/173 requires in all cases that packages
indicate clearly and indelibly the presence of substances classified as toxic under
Article 2, such as benzene, and also that they show, but only in certain cases,
the presence of substances classified as harmful, such as toluene and xylene in
a concentration higher than 5 per cent. [32] On the other hand no indication of
the percentage, separate or in the aggregate, of those substances is required.
[33] Thus the answer to the national court must be that Directive 73/173 must be
interpreted as meaning that it is not permissible for national provisions to
prescribe that containers shall bear a statement of the presence of ingredients of
the products in question in terms going beyond these laid down by the said
directive.
[34] The fourth question is drafted as follows:
'Do the said national provisions, which are applicable without distinction to all
goods placed on the domestic market, nevertheless constitute an obstacle, a
prohibition or a restriction on trade in and the free movement of such goods,
even if such provisions were enacted for the purpose of ensuring greater
protection for the physical safety of users of the products in question?'
[35] This question is an allusion to Article 36 of the Treaty which permits
exceptions to the free movements of goods to the extent to which they are
justified on grounds of public security or the protection of health and life of
humans and animals.
[36] When, pursuant to Article 100 of the Treaty, Community directives provide
for the harmonisation of measures necessary to ensure the protection of the
health of persons and animals and establish Community procedures to supervise
compliance therewith, recourse to Article 36 ceases to be justified and the
appropriate controls must henceforth be carried out and the protective measures
taken in accordance with the scheme laid down by the harmonising directive.
[37] Directive 73/173 provides that where a member-State established *112 that
a dangerous preparation, although satisfying the requirements of that directive,
presents a health or safety risk, it may have recourse, temporarily and subject to
the supervision of the Commission, to a protective measure provided for in Article
9 of the directive in accordance with the procedure laid down in that Article. [38] It
follows that national provisions going beyond those laid down in Directive 73/173
are compatible with Community law only if they have been adopted in
accordance with the procedures and formalities prescribed in Article 9 of the said
directive.
B. The interpretation of Council Directive 77/728/EEC of 7 November 1977
[39] In a fifth question the national court asks whether Council Directive 77/728 of
7 November 1977, in particular Article 9 thereof, is immediately and directly
applicable with regard to the obligations imposed on member-States to refrain
from action as from the date of notification of that directive in a case where a
person, acting upon a legitimate expectation, has complied with the provisions of
that directive before the expiry of the period within which the member-State must
comply with the said directive.
[40] The objective of that directive is analogous to that of Directive 73/173 in that
it lays down similar rules for preparations intended to be used as paints,
varnishes, printing inks, adhesives and similar products, and containing
dangerous substances.
[41] Article 12 of that directive provides that member-States must implement it
within 24 months of its notification, which took place on 9 November 1977. [42]
That period has not yet expired and the States to which the directive was
addressed have until 9 November 1979 to incorporate the provisions of Directive
77/728 into their internal legal orders. [43] It follows that, for the reasons
expounded in the grounds of the answer to the national court's first question, it is
only at the end of the prescribed period and in the event of the member-State's
default that the directive--and in particular Article 9 thereof--will be able to have
the effects described in the answer to the first question. [44] Until that date is
reached the member-States remain free in that field. [45] If one member-State
has incorporated the provisions of a directive into its internal legal order before
the end of the period precribed therein, that fact cannot produce any effect with
regard to the other member-States.
[46] In conclusion, since a directive by its nature imposes obligations only on
member-States, it is not possible for an individual to plead the principle of
'legitimate expectation' before the expiry of the period prescribed for its
implementation. [47] Therefore the answer to the fifth question must be that
Directive 77/728 of the Council of the European Communities of 7 November
1977, in particular Article 9 thereof, cannot bring about with respect to any *113
individual who has complied with the provisions of the said directive before the
expiration of the adaptation period prescribed for the member-State any effect
capable of being taken into consideration by national courts.
Costs
[48] The costs incurred by the Council and by the Commission, which have
submitted written observations to the Court, are not recoverable. [49] As the
proceedings are, so far as the accused in the main action is concerned, in the
nature of a step in the action pending before the national court, the decision on
costs is a matter for that court.
Order
On those grounds, THE COURT, in answer to the questions referred to it by the
Pretura Penale, Milan, by an order of 8 May 1978
HEREBY RULES:
1. After the expiration of the period fixed for the implementation of a directive a
member-State may not apply its internal law--even if it is provided with penal
sanctions-- which has not yet been adapted in compliance with the directive, to a
person who has complied with the requirements of the directive.
2. It is a consequence of the system introduced by Directive 73/173 that a
member-State may not introduce into its national legislation conditions which are
more restrictive than those laid down in the directive in question, or which are
even more detailed or in any event different, as regards the classification,
packaging and labelling of solvents and that this prohibition on the imposition of
restrictions not provided for applies both to the direct marketing of the products
on the home market and to imported products.
3. Directive 73/173 must be interpreted as meaning that it is not permissible for
national provisions to prescribe that containers shall bear a statement of the
presence of ingredients of the products in question in terms going beyond those
laid down by the said directive.
4. National provisions going beyond those laid down in Directive 73/173 are
compatible with Community law only if they have been adopted in accordance
with the procedures and formalities prescribed in Article 9 of the said directive.
5. Directive 77/728 of the Council of the European Communities of 7 November
1977, in particular Article 9 thereof, cannot bring about with respect to any
individual who has complied with the provisions of the said directive *114 before
the expiration of the adaptation period prescribed for the member-State any
effect capable of being taken into consideration by national courts.
(c) Sweet & Maxwell Limited
[1980] 1 C.M.L.R. 96
END OF DOCUMENT