(Reference for a preliminary ruling from the Landgericht Wiesbaden)

(Free movement of goods – Directive 75/106/EEC – Approximation of the laws of the Member States – Liquids in prepackages – Making‑up by volume –Article 5(3)(b) and (d) – Baileys Minis – Marketing in prepackages with a nominal volume of 0.071 litre)

In Case C-41/24,

REQUEST for a preliminary ruling under Article 267 TFEU from the High Court (Ireland), made by decision of 1 December 2023, received at the Court on 22 January 2024, in the proceedings

Waltham Abbey Residents Association

An Bord Pleanála,

Ireland,

The Attorney General,

notice party:

O’Flynn Construction Co. Unlimited Company,

THE COURT (Tenth Chamber),

composed of D. Gratsias, President of the Chamber, J. Passer (Rapporteur) and B. Smulders, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

* Language of the case: English.

EN ECLI:EU:C:2025:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

after considering the observations submitted on behalf of:

–Waltham Abbey Residents Association, by J. Devlin, Senior Counsel, J. Kenny, Barrister-at-Law, and D. Healy, Solicitor,

–Diageo Deutschland GmbH, by V. Bansch, Rechtsanwältin,

–the Belgian Government, by A. Hubert, acting as Agent,

–the Greek Government, by M. Apessos, I. Bakopoulos, S. Spyropoulos and N. Dafniou, acting as Agents,

–the French Government, by R. Loosli‑Surrans, acting as Agent,

–the Council of the European Union, by C. Giorgi Fort, G. Curmi and J.‑P. Hix, acting as Agents,

–the Commission of the European Communities, by D. Lawunmi and B. Schima, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

3Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

4Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

5Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

6Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

8 Since October 2004, Diageo has marketed the beverage ‘Baileys’ in Germany, in prepackages with a nominal volume of 0.071 litre, called ‘Baileys Minis’, manufactured and bottled in Ireland.

9 The parties to the main proceedings are in dispute as to whether the sale of the product in those prepackages is permissible in Germany.

10 It was against that background that the Landgericht Wiesbaden (Wiesbaden District Court) (Germany) decided to stay the proceedings and to refer the following questions:

‘(1) Is the second sentence of the second subparagraph of Article 5(3)(b), in conjunction with Article 5(3)(d) and in conjunction with Annex III, section 4, of Directive 75/106/EEC to be construed as meaning that products in bottle packaging with a volume of 0.071 litre, which are lawfully manufactured and/or marketed in Great Britain or Ireland, may also be marketed in all the other EC Member States?

(2) If Question 1 should be answered in the negative: is the second sentence of the second subparagraph of Article 5(3)(b), in conjunction with Article 5(3)(d) and in conjunction with Annex III, section 4, of Directive 75/106/EEC compatible with the principle of free movement of goods under Articles 28 EC and 30 EC?’

The questions referred for a preliminary ruling

11 By its questions, which it is appropriate to examine together, the national court asks essentially whether, on a proper construction of the final sentence of the second paragraph of Article 5(3)(b) read in conjunction with Article 5(3)(d) of Directive 75/106 and section 4 of Annex III to that directive, in the light of the principle of free movement of goods referred to in Article 28 EC, prepackages with a nominal volume of 0.071 litre which contain one of the products listed in section 4 and which are lawfully manufactured and marketed in Ireland or the United Kingdom may also be marketed in the other EC Member States.

12 Article 5(1) of Directive 75/106 prohibits Member States from adopting, in regard to prepackages satisfying the directive’s requirements, measures restricting their marketing for reasons concerning their volume or the determination of that volume (Case C‑3/99 Ruwet [2000] ECR I‑8749, paragraph 42).

13 The final sentence of the second subparagraph of Article 5(3)(b) prohibits the marketing, after 31 December 1991, of prepackages containing products which appear in section 4 of Annex III to Directive 75/106 which have nominal volumes other than those set out in the column I of that annex.

14 Article 5(3)(d) provides an exception to that prohibition on marketing.

15 However, a comparative examination of the different language versions of that provision offers no clear indication of the precise scope of the exception for which that provision provides.

16 It is clear from an examination of certain language versions of Article 5(3)(d) of Directive 75/106 that the products set out in section 4 of Annex III to that directive, having the volume of 0.071 litre in Ireland and the United Kingdom, may be marketed, whilst, according to other language versions of the same provision, products having the volume of 0.071 litre may be marketed in Ireland and the United Kingdom.

17 According to settled case-law, the need for a uniform interpretation of the provisions of Community law makes it impossible for the text of a provision to be considered in isolation, but requires, on the contrary, that it be interpreted and applied in the light of the versions existing in the other official languages (Case 26/69 Stauder [1969] ECR 419, paragraph 3; Case 55/87 Moksel Import und Export [1988] ECR 3845, paragraph 15; and Case C‑296/95 EMU Tabac and Others [1998] ECR I‑1605, paragraph 36; and Case C‑63/06 Profisa [2007] ECR I‑0000, paragraph 13).

18 Where there is divergence between the various language versions of a Community text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (Case 30/77 Bouchereau [1977] ECR 1999, paragraph 14; Case C‑482/98 Italy v Commission [2000] ECR I‑10861, paragraph 49; and Case C‑1/02 Borgmann [2004] ECR I‑3219, paragraph 25; and Profisa, paragraph 14).

19 In that regard, it should be borne in mind that Directive 75/106 was adopted on the basis of Article 100 of the EEC Treaty (then Article 100 of the EC Treaty, now Article 94 EC) for the purpose of approximating the laws, regulations and administrative provisions of the Member States that have a direct effect on the establishment or functioning of the common market (Ruwet, paragraph 40).

20 It is clear from the first recital in the preamble to the Directive that the latter was intended to overcome the obstacles to the free movement of certain prepackaged liquid foodstuffs resulting from the existence, in most Member States, of mandatory regulations that differ from one Member State to another. According to the fourth recital in its preamble, that directive was also designed to improve the protection of consumers against the risks of confusion (Ruwet, paragraph 41).

21 Moreover, it must be pointed out that Council Directive 88/316/EEC of 7 June 1988, amending Directive 75/106 (OJ 1988 L 143, p. 26), which introduced into Directive 75/106 the provision at issue in the main proceedings, is based on Article 100a of the EEC Treaty (then Article 100a of the EC Treaty, now, after amendment, Article 95 EC), and that it is intended to improve the conditions for the establishment and functioning of the internal market (Case C‑376/98 Germany v Parliament and Council [2000] ECR I‑8419, paragraph 83).

22 It is also necessary to point out that, according to settled case‑law, where it is necessary to interpret a provision of secondary Community law, preference should as far as possible be given to the interpretation which renders the provision consistent with the EC Treaty and the general principles of Community law (Case 218/82 Commission v Council [1993] ECR 4063, paragraph 15; Joined Cases 201/85 and 202/85 Klensch and Others [1986] ECR 3477, paragraph 21, Case C‑314/89 Rauh [1991] ECR I‑1647, paragraph 17; Case C‑98/91 Herbrink [1994] ECR I‑223, paragraph 9; and Borgmann, paragraph 30).

23 In that respect, concerning Directive 75/106, the Court has already held that, in principle, Article 28 EC of the Treaty must be construed as precluding a Member State from prohibiting the marketing of a prepackage having a nominal volume not included in the Community range, which is lawfully manufactured and marketed in another Member State (Ruwet, paragraph 57).

24 There can be no doubt that, under Article 5(3)(d) of Directive 75/106, the marketing of prepackages containing the products listed in section 4 of Annex III to that directive and having the volume of 0.071 litre, at least in Ireland and in the United Kingdom, complies with that directive.

25 Consequently, in so far as the prepackages are legally produced and marketed at least in those two Member States, Article 28 EC precludes the prohibition of their marketing in other Member States, unless such a prohibition is justified by an overriding requirement, applies without distinction to national and imported products alike, is necessary in order to meet the requirement in question and is proportionate to the objective pursued, and that objective cannot be achieved by measures which are less restrictive of intra-Community trade (see, to that effect, Ruwet, paragraphs 50 and 57).

26 Schutzverband and the Belgian Government submit that the prohibition on marketing provided for by the final sentence of the second paragraph of Article 5(3)(b) of Directive 75/106 is justified by an overriding requirement relating to consumer protection.

27 In that regard, whilst it is true that that directive, in the fourth recital in the preamble thereto, seeks to avoid the risk that consumers will be misled by nominal volumes which are too close to one another, such a risk may be considered to be excluded, taking as the reference point the average consumer, reasonably well informed and reasonably observant and circumspect (Case C‑220/98 Estée Lauder [2000] ECR I‑117, paragraph 30, and Ruwet, paragraph 53).

28 Article 4(1) of Directive 75/106 lays down, in respect of prepackages covered by that directive, the obligation to indicate on the labelling the net quantity of liquid contained in the packaging, expressed in units of volume (litre, centilitre or millilitre, as appropriate), in order to avoid, in the mind of the reference consumer, any confusion between the two volumes and to enable that consumer to take account of the ascertained difference in volume when comparing the prices of the same liquid presented in two different types of packaging (Ruwet, paragraph 54).

29 In that regard, it is important to note that, in the range of nominal volumes which it provides in column I of Annex III for products listed in section 4 thereof, Directive 75/106 itself allows nominal volumes (0.02 litre, 0.03 litre, 0.04 litre and 0.05 litre) with a minimum difference between them of only 0.01 litre to coexist. It must, therefore, be considered that a nominal volume such as 0.071 litre, situated between the nominal volumes of 0.05 litre and 0.10 litre, included in the Community range of nominal volumes allowed for the products, represents in respect of each of those two nominal volumes a difference greater than 0.01 litre which is sufficient to avoid any confusion in the mind of the consumer of reference.

30 Finally, it is necessary to take into account the obligation, arising from Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (OJ 1998 L 80, p. 27), to indicate the unit price, irrespective of the nominal value of the prepackage (Ruwet, paragraph 56).

31 It follows from the foregoing considerations that, having regard to the general scheme and purpose of Directive 75/106 and the principle of the free movement of goods guaranteed by Article 28 EC, Article 5(3)(d) of the Directive must be interpreted as meaning that prepackages with a nominal volume of 0.071 litre, which contain one of the products listed in section 4 of the same directive, and which are lawfully manufactured and marketed in Ireland or the United Kingdom, may also be marketed in all the other EC Member States.

32 In addition, the general scheme and purpose of Directive 75/106 and the principle of the free movement of goods precludes the prohibition on marketing the products listed in section 4 of Annex III to the directive in prepackages of a nominal volume of 0.071 litre from Member States other than Ireland and the United Kingdom, as a consequence of the final sentence of the second paragraph of Article 5(3)(b) of that directive, read in conjunction with Article 5(3)(d) thereof.

33 As, in accordance with those provisions, the prepackages can be marketed only from those two Member States, such a prohibition is liable to hinder intra‑Community trade because it could result in making their manufacture and marketing by producers established in other Member States more difficult or more onerous, dissuading them from marketing them in such prepackages.

34 Thus, for a producer established in a Member State other than Ireland or the United Kingdom to be able to market the prepackages at issue, it would be obliged to export those prepackages to those two Member States or to manufacture them there before reimporting to its own Member State.

35 That prohibition on marketing cannot be justified since it manifestly contradicts one of the objectives pursued by Directive 75/106 itself, namely the free movement of prepackages containing liquids referred to in Annex III to that directive. With regard to the risk of a consumer being misled, this must be discounted for the reasons set out at paragraphs 27 to 30 of the present judgment.

36 The possibility, provided for in Article 5(3)(d) of Directive 75/106, of marketing prepackages of a nominal volume of 0.071 litre exclusively from Ireland and the United Kingdom cannot be justified by the objective pursued by that provision.

37 In so far as it is accorded permanently, such a possibility goes beyond what is necessary in order to attain the objective, namely, as is clear from the sixth recital in the preamble to Directive 75/106, to allow those two Member States to adapt to the difficulties presented by too swift a change in the means of determining quantity laid down by their national legislation and the organization of new systems of control as well as the adoption of a new measurement system.

38 It must also be stated that, according to the same recital, in order to deal with these difficulties, a transitional period should be provided for these Member States which should not, however, further inhibit intra-Community trade in the products concerned and should not prejudice the implementation of Directive 75/106.

39 It follows that the final sentence of the second paragraph of Article 5(3)(b) of Directive 75/106, read in conjunction with Article 5(3)(d) thereof is invalid in so far as it excludes the nominal volume of 0.071 litre from the harmonised Community range of nominal volumes appearing in column I of section 4 of Annex III to that directive.

40 Having regard to all the foregoing, the answer to the questions submitted must be:

– On a proper construction of Article 5(3)(b) of Directive 75/106, prepackages with a nominal volume of 0.071 litre which contain one of the products listed in section 4 of Annex III to that directive and which are lawfully manufactured and marketed in Ireland or the United Kingdom may also be marketed in the other EC Member States, and that

–the final sentence of the second paragraph of Article 5(3)(b) of Directive 75/106, read in conjunction with Article 5(3)(d) thereof, is invalid in so far as it excludes the nominal volume of 0.071 litre from the harmonised Community range of nominal volumes appearing in column I of section 4 of Annex III to that directive.

Costs

41Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

On a proper construction of Article 5(3)(b) of Council Directive 75/106/EEC of 19 December 1974 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids, as amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, prepackages with a nominal volume of 0.071 litre which contain one of the products listed in section 4 of Annex III to that directive and which are lawfully manufactured and marketed in Ireland or the United Kingdom may also be marketed in the other EC Member States.

The final sentence of the second paragraph of Article 5(3)(b) of Directive 75/106, as amended by that act, read in conjunction with Article 5(3)(d) thereof is invalid in so far as it excludes the nominal volume of 0.071 litre from the harmonised Community range of nominal volumes appearing in column I of section 4 of Annex III to that directive.

[Signatures]

* Language of the case: German.