(Environment – Free movement of goods – Packaging and packaging waste – Directive 94/62/EC – Exploitation and marketing of natural mineral waters – Directive 80/777/EEC – Deposit and return obligations for non-reusable packaging that depend on the overall percentage of reusable packaging)

Summary of the Judgment

(Arts 28 EC and 30 EC; European Parliament and Council Directive 94/62, Art. 5)

(Arts 28 EC and 30 EC)

(see paras 41, 43, 45, 50)

Such national rules capable of hindering intra-Community trade may be justified by overriding requirements relating to protection of the environment only if the means which they employ are suitable for the purpose of attaining the desired objectives and do not go beyond what is necessary for that purpose.

(see paras 59, 62, 68, 75, 78-79, operative part)

JUDGMENT OF THE COURT (Grand Chamber) 14 December 2004(1)

(Environment – Free movement of goods – Packaging and packaging waste – Directive 94/62/EC – Exploitation and marketing of natural mineral waters – Directive 80/777/EEC – Deposit and return obligations for non-reusable packaging that depend on the overall percentage of reusable packaging)

In Case C-463/01,ACTION under Article 226 EC for failure to fulfil obligations, brought on 3 December 2001,

Commission of the European Communities, represented by G. zur Hausen, acting as Agent, with an address for service in Luxembourg,

applicant, supported by:French Republic, represented by G. de Bergues, E. Puisais and D. Petrausch, acting as Agents,and by:United Kingdom of Great Britain and Northern Ireland, represented initially by P. Ormond and subsequently by C. Jackson, acting as Agents,

interveners,

Federal Republic of Germany, represented by W.-D. Plessing and T. Rummler, acting as Agents, assisted by D. Sellner, Rechtsanwalt,

defendant,

THE COURT (Grand Chamber),

composed of: V. Skouris, President, P. Jann and K. Lenaerts (Rapporteur), Presidents of Chambers, C. Gulmann, J.-P. Puissochet, R. Schintgen, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges,

Advocate General: D. Ruiz-Jarabo Colomer, Registrar: M.-F. Contet, Principal Administrator,

having regard to the written procedure and further to the hearing on 2 March 2004,

after hearing the Opinion of the Advocate General at the sitting on 6 May 2004,

gives the following

1 This 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’).

2 The 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

Recitals 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.

(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.’

Article 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.’

Under 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)];

…’

Article 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

However, Paragraph 9(2) of the VerpackV prescribes circumstances in which, for certain drinks, recourse to Paragraph 6(3) ceases to be possible. Paragraph 9(2) states as follows:

‘If, for beer, mineral water (including spring water, table water and spa water), carbonated soft drinks, fruit juices … and wine … the combined proportion of drinks in reusable packaging falls below 72% in the calendar year in the geographical area to which this regulation applies, a new survey of the relevant proportions of reusable packaging shall be carried out for the 12 months following publication of the failure to achieve the required proportions. If this shows that the proportion of reusable packaging in Federal territory is below the proportion laid down under the first sentence, the decision under Paragraph 6(3) shall be deemed to be revoked throughout Federal territory in respect of the drinks categories for which the reusable proportion determined in 1991 is not achieved, with effect from the first day of the sixth calendar month following publication in accordance with subparagraph 3. …’

In accordance with Paragraph 9(3) of the VerpackV, the German Government is to publish each year the relevant proportions, as referred to in Paragraph 9(2), of drinks packaged in ecologically sound drinks packaging. Under Paragraph 9(4) the competent authority, following an application or on its own initiative, is to make a new determination pursuant to Paragraph 6(3) where the relevant proportion of drinks in such packaging is again achieved following a revocation.

It is apparent from those national provisions that mineral-water producers cease to be able to fulfil their obligation to accept the return of packaging by participating in a global collection system if the overall proportion of drinks in reusable packaging falls below 72% in two years in a row and, at the same time, the proportion determined in 1991 for mineral water bottled in reusable packaging is not attained. In such a case, drinks in non-reusable packaging become subject to the deposit and return system laid down in Paragraph 8(1) of the VerpackV.

According to the German Government, in 1997 the proportion of reusable drinks packaging fell below 72% for the first time, to 71.33%. Subsequently, the proportion continued to decrease because of a significant increase in non-reusable drinks packaging. In this context the German Government required, while the written procedure before the Court was in progress, that a deposit be charged on non-reusable packaging for mineral water, beer and carbonated soft drinks from 1 January 2003.

Pre-litigation procedure

On 12 December 1995 the Commission sent a letter of formal notice to the Federal Republic of Germany in which it maintained that the provisions relating to the charging of a deposit on certain non-reusable packaging constituted a barrier to intra-Community trade. On 11 December 1998, by which time the period for transposition of Directive 94/62 had expired and the VerpackV had been adopted, the Commission sent a supplementary letter of formal notice to that Member State which contained several complaints alleging that the new German rules were incompatible with Directive 94/62 in conjunction with Article 30 of the EC Treaty (now Article 28 EC).

Since the Commission was not satisfied with the explanations provided by the German Government in its responses to the letters of formal notice, on 27 July 2000 it sent the German Government a reasoned opinion stating that the Federal Republic of Germany had failed to fulfil its obligations under Article 5 of Directive 94/62 in conjunction with Article 28 EC, and Article 3 of Directive 80/777 in conjunction with paragraph 2(d) of Annex II thereto, by establishing, through the VerpackV, a system seeking the re-use of packaging for natural mineral water, which must be bottled at source by virtue of Directive 80/777. In that opinion, the Commission submits that, as regards natural mineral water, the German rules constitute a barrier to trade for producers, who must send the empty packaging back to the place of production when it cannot be used for other products. According to the Commission, the German rules are not justified on environmental protection grounds since, in ignoring the particular situation of products that must be transported over long distances, their scope goes beyond what is necessary in order to attain the objective pursued.

In response to the reasoned opinion, the German Government denied in a letter of 10 November 2000 that there is a barrier to intra-Community trade. It submits that the German rules give mineral-water producers established in another Member State freedom to market their products either by using reusable packaging, in particular within the framework of a standardised-bottle system, or by having recourse to non-reusable packaging. Even if the rules at issue constitute a barrier to intra-Community trade, they are justified on environmental protection grounds given that reusable drinks packaging has ecological advantages over non-reusable packaging even though it may be necessary to transport it over long distances.

On 16 March 2001 the Federal Republic of Germany notified the Commission of a proposal to amend the VerpackV. However, since the proposal met with difficulties in the course of the legislative process, the notification was withdrawn on 3 July 2001.

Since the Commission took the view that the Federal Republic of Germany had failed to fulfil its obligations under Community law, it brought the present action.

Subject-matter of the action and admissibility

It should be noted first of all that the Commission contests the German rules inasmuch as Paragraphs 8(1) and 9(2) of the VerpackV, by introducing deposit and return obligations for non-reusable packaging that depend on the proportion of reusable packaging on the German market, impose a particular burden on producers of natural mineral water that comes from other Member States. According to the Commission, reusable packaging, to which those rules encourage producers using non-reusable packaging to have recourse, results in additional costs for producers of natural mineral water established in other Member States.

The German Government submits that the Commission did not allege in the course of the pre-litigation procedure that Paragraphs 8 and 9 of the VerpackV put pressure on producers of natural mineral water to use reusable packaging. In this regard the Commission did not give it the opportunity to justify its position or, as the case may be, to comply voluntarily with the requirements of Community law, in particular by excluding producers of natural mineral water established in another Member State from the calculation of the proportions that are envisaged in Paragraph 9(2) of the VerpackV.

As to those submissions, it is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the complaints made by the Commission (see, inter alia, Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 10, and Case C-287/00 Commission v Germany [2002] ECR I-5811, paragraph 16).

The proper conduct of the pre-litigation procedure constitutes an essential guarantee not only in order to protect the rights of the Member State in question, but also so as to ensure that any contentious procedure has a clearly defined dispute as its subject-matter (see Commission v Germany, cited above, paragraph 17).

The subject-matter of proceedings under Article 226 EC is therefore delimited by the pre-litigation procedure governed by that provision. It follows that the application must be founded on the same grounds and pleas as the reasoned opinion (see, inter alia, Commission v Italy, cited above, paragraph 11).

In the present case, the Commission has not extended the subject-matter of the dispute as delimited in the course of the pre-litigation procedure.

In the first letter of formal notice, the Commission was already criticising the fact that the German rules are based on a rate of reusable packaging the effect of which is to freeze the market situation as it was in a given period. In its reply to that letter, the German Government set out the reasons for which the rate in question was fixed, while maintaining that the rules in issue did not impose a particular form of packaging on producers.

Likewise, in the supplementary letter of formal notice the Commission criticised the disproportionate effects of the VerpackV on the situation of producers of natural mineral water, while pointing out that the rule setting a rate for reusable packaging may prevent the marketing in Germany of new products in non-reusable packaging. In response to that letter the German Government repeated its view that the rules at issue do not prevent producers established in another Member State from using non-reusable packaging.

Finally, at the stage of the reasoned opinion, in which the complaints were limited to the effect of Paragraphs 8 and 9 of the VerpackV on the marketing of natural mineral water, the Commission maintained that those provisions encourage producers not to cause the proportion of non-reusable packaging to increase so that the proportions laid down for reusable packaging are no longer achieved. It stated that the VerpackV allows producers whose place of business is a very long way away from the points of sale to increase their market share of products in non-reusable packaging only in so far as other producers whose place of business is nearer to the points of sale are prepared to reduce theirs.

It is apparent from the reply to the reasoned opinion that the German Government understood that the opinion criticised in particular the effect of the German rules on the choice of the form of packaging. The German Government referred in that reply to the various possibilities open to producers established in another Member State when placing their products on the German market, while reiterating its view that no obstacle to the marketing of products in non-reusable packaging can be found.

It follows that the allegation that the German rules encourage producers of natural mineral water established in other Member States to have recourse to reusable packaging was in fact one of the grounds advanced by the Commission when contending, in the course of the pre-litigation procedure, that the VerpackV is not compatible with the Community provisions at issue.

The action is therefore admissible.

Substance

It is not in dispute between the parties that Paragraphs 8 and 9 of the VerpackV form part of legislation intended to transpose Directive 94/62.

On the other hand, the parties disagree as to whether, as regards promotion of the reuse of packaging, Paragraphs 8 and 9 of the VerpackV may be assessed on the basis of Article 28 EC too. The Commission, supported by the French Government, is of the view that the German rules can be compatible with Article 5 of Directive 94/62 only if they are also consistent with Article 28 EC, while the German Government maintains that Article 5 of the directive provides for complete harmonisation of the subject excluding any assessment of Paragraphs 8 and 9 of the VerpackV in the light of the Treaty provisions relating to the free movement of goods.

In view of the fact that, where a sphere has been the subject of exhaustive harmonisation at Community level, any national measure relating thereto must be assessed in the light of the provisions of the harmonising measure and not those of the Treaty (Case C-37/92 Vanacker and Lesage [1993] ECR I-4947, paragraph 9, Case C-324/99 DaimlerChrysler [2001] ECR I-9897, paragraph 32, and Case C‑322/01 Deutscher Apothekerverband [2003] ECR I-0000, paragraph 64), it must be determined whether the harmonisation brought about by Directive 94/62 precludes the compatibility of the national rules in question with Article 28 EC from being examined.

With regard to promotion of the reuse of packaging, as provided for by Directive 94/62, it should be noted first of all that it is apparent from the first recital in the preamble to the directive and from Article 1(1) that the directive pursues a twofold objective, consisting, first, in preventing and reducing the impact of packaging waste on the environment so as to provide a high level of environmental protection and, second, in ensuring the proper functioning of the internal market and avoiding obstacles to trade and distortion and restriction of competition within the Community (Case C-444/00 Mayer Parry Recycling [2003] ECR I-6163, paragraph 71).

While Directive 94/62 envisages as a ‘first priority’ the prevention of the production of packaging waste, it lists in Article 1(2), as ‘additional fundamental principles’, reusing packaging, recycling and other forms of recovering packaging waste.

The eighth recital in the preamble to the directive states that, ‘until scientific and technological progress is made with regard to recovery processes, reuse and recycling should be considered preferable in terms of environmental impact; … this requires the setting up in the Member States of systems guaranteeing the return of used packaging and/or packaging waste; life-cycle assessments should be completed as soon as possible to justify a clear hierarchy between reusable, recyclable and recoverable packaging’.

40Contrary to the German Government’s claims, Directive 94/62 therefore does not establish a hierarchy between the reuse of packaging and the recovery of packaging waste.

41As regards the reuse of packaging, Article 5 of the directive does no more than allow the Member States to encourage, in conformity with the Treaty, systems for the reuse of packaging that can be reused in an environmentally sound manner.

42By virtue of Article 7(1) of the directive, the Member States are, in addition, required to take the necessary measures to ensure that systems are set up to provide for not only the return and/or collection of used packaging and/or packaging waste in order to channel it to the most appropriate waste management alternatives but also the reuse or recovery, including recycling, of the packaging and/or packaging waste collected.

43Apart from the definition of the concept of ‘reuse’ of packaging, certain general provisions on measures to avoid packaging waste and the provisions relating to return, collection and recovery systems, set out in Articles 3(5), 4 and 7 respectively, Directive 94/62 does not regulate, as regards Member States which are disposed to exercise the power granted by Article 5, the organisation of systems encouraging reusable packaging.

44In contrast to the position in respect of the marking and identification of packaging and the requirements on the composition of packaging and its capacity to be reused or recovered, governed by Articles 8 and 11 of Directive 94/62 and Annex II thereto, the organisation of national systems intended to encourage the reuse of packaging is therefore not the subject of complete harmonisation.

45Such systems can consequently be assessed on the basis of the Treaty provisions relating to the free movement of goods.

46Furthermore, Article 5 of Directive 94/62 allows the Member States to encourage systems for the reuse of packaging only ‘in conformity with the Treaty’.

47Contrary to the German Government’s submissions, the judgment in DaimlerChrysler, cited above, cannot lead to a different conclusion. It is true that the Court held in paragraph 44 of that judgment that the use in a Community provision of the words ‘in accordance with the Treaty’ could not be construed as meaning that a national measure that satisfied the requirements of that provision had to be subject to a further and separate review of its compatibility with the Treaty provisions relating to the free movement of goods.

48However, that judgment concerned Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1993 L 30, p. 1). This regulation governs in a harmonised manner, at Community level, the question of shipments of waste in order to ensure the protection of the environment (DaimlerChrysler, paragraph 42). As has been found above, that is not true of Directive 94/62 so far as concerns the reuse of packaging.

49Furthermore, Article 4(3)(a)(i) of Regulation No 259/93 permits the Member States to regulate shipments of waste for disposal, ‘in accordance with the Treaty’, and sets out a series of principles, such as the principles of proximity, of priority for recovery and of self-sufficiency at Community and national levels, which the Member States must take into account when they exercise that power.

50The interpretation placed by the Court in DaimlerChrysler on the expression ‘in accordance with the Treaty’ cannot be transposed to the present context, in which the power granted to the Member States to encourage the reuse of packaging is formulated in general terms and the criteria to be taken into account by the Member States which exercise it are not specified.

51It should also be pointed out that in paragraph 45 of the same judgment the Court held that the expression ‘in accordance with the Treaty’ does not mean either that all national measures restricting shipments of waste referred to in Article 4(3)(a)(i) of the regulation must be systematically presumed to be compatible with Community law solely because they are intended to implement one or more of the principles referred to in that provision. That expression must instead be construed as meaning that, in addition to being compatible with the regulation, such national measures must also comply with the rules or general principles of the Treaty to which no direct reference is made in the legislation adopted in the field of waste shipments.

52It must therefore be examined whether the national provisions at issue are compatible with Article 28 EC.

53The Commission, supported by the French Government, submits that Paragraphs 8(1) and 9(2) of the VerpackV make it more difficult or more expensive to distribute natural mineral water from other Member States and that they therefore constitute a measure having equivalent effect to a quantitative restriction within the meaning of Article 28 EC.

54The German Government contends, first of all, that those general provisions cannot be regarded as measures having equivalent effect to a quantitative restriction since they do not serve to protect national interests unilaterally but are intended merely to implement the obligations arising from a Community directive.

55Suffice it to state with regard to those submissions that, while the Court has held that a national provision by which a Member State discharges its obligations under a directive cannot be classified as a barrier to trade (that n see, to this effect, Case 46/76 Bauhuis [1977] ECR 5, paragraphs 28 to 30, Case C-246/98 Berendse-Koenen [2000] ECR I‑1777, paragraphs 24 and 25, and Deutscher Apothekerverband, cited above, paragraphs 52 to 54), it is clear that Article 5 of Directive 94/62 merely authorises the Member States to encourage systems for the reuse of packaging in conformity with the Treaty, without imposing any obligation to that effect.

56The German Government denies, next, that Paragraphs 8 and 9 of the VerpackV result in any direct or indirect discrimination against producers established in another Member State.

57As to that submission, Paragraph 9(2) of the VerpackV requires a change in the management system for non-reusable packaging in very specific circumstances. Under the VerpackV, the basis for that change is the fact that certain proportions of reusable packaging are not achieved on the national market but the actual entry into force of the change is dependent on fresh assessments of such proportions which are to be carried out subsequently. Thus, for certain drinks, including natural mineral water, producers and distributors can no longer have recourse to a global collection system and must therefore set up a deposit and return system for their non-reusable drinks packaging when, over two consecutive years, the proportion of drinks in reusable packaging in Germany falls below 72% and, for the particular drinks in question, the proportion of reusable packaging in 1991 is not achieved.

58It is clear that, while Paragraphs 8(1) and 9(2) of the VerpackV admittedly apply to all producers and distributors operating in national territory, they do not affect the marketing of natural mineral water produced in Germany and that of drinks from other Member States in the same manner.

59While a changeover from one packaging management system to another results, generally, in costs so far as concerns the marking or labelling of packaging, rules, such as those at issue, which oblige producers and distributors using non-reusable packaging to replace their participation in a global collection system with a deposit and return system causes every producer and distributor using such packaging to incur additional costs connected with organisation of the taking back of packaging, the refunding of sums paid by way of deposit and any balancing of those sums between distributors.

60As the Commission has observed, without being contradicted by the German Government, producers of natural mineral water which originates from other Member States use considerably more non-reusable plastic packaging than German producers. According to a study carried out in June 2001 by the Gesellschaft für Verpackungsmarktforschung, in 1999 German producers used approximately 90% reusable, and 10% non-reusable, packaging, while those proportions were reversed for natural mineral water sold in Germany by foreign producers, with a use rate of approximately 71% for non-reusable plastic packaging.

61Producers of natural mineral water who sell their products in Germany far from the spring, a large proportion of whom are established in another Member State, bear additional costs when they use reusable packaging. It is apparent on reading Article 3 of Directive 80/777 in conjunction with Annex II thereto that natural mineral water must be bottled at source, so that if the water’s packaging is to be reused it must be transported to the spring. While it is true, as the German Government maintains, that a producer of natural mineral water may reduce those costs by participating in a system of standardised reusable bottles, the fact remains that such a producer placing his products on several markets, including the German market, as in the case of a producer established in another Member State who exports to Germany, is compelled to adapt the distribution of his products to the specific requirements of the German market.

62It follows that the replacement, as regards non-reusable packaging, of a global packaging-collection system with a deposit and return system is such as to hinder the placing on the German market of natural mineral water imported from other Member States (see to this effect, as regards reusable drinks packaging, Case 302/86 Commission v Denmark [1988] ECR 4607, paragraph 13).

63It is immaterial in this regard that the provisions in question envisage deposit and return obligations for non-reusable packaging and do not prohibit imports of drinks in such packaging and that it is, moreover, possible for producers to resort to reusable packaging. A measure capable of hindering imports must be classified as a measure having equivalent effect to a quantitative restriction even though the hindrance is slight and even though it is possible for the products to be marketed in other ways (Joined Cases 177/82 and 178/82 Van de Haar and Kaveka de Meern [1984] ECR 1797, paragraph 14).

64Contrary to the German Government’s submissions, the barrier to trade which is the subject of the present action does not derive from the provision of Directive 80/777 according to which natural mineral water must be bottled at source. While it is admittedly possible that, for producers of natural mineral water, this provision affects their choice of packaging for their products, it is, however, to be remembered that the replacement of a global collection system with a deposit and return system involves additional costs not only for producers of natural mineral water but also for producers and distributors of other drinks that are referred to in Paragraph 9(2) of the VerpackV who are established in other Member States and use non-reusable packaging.

65Nor is it relevant to assert, as the German Government does, that the increase of imports into Germany of natural mineral water in non-reusable packaging demonstrates that there is no discrimination against producers of natural mineral water using non-reusable packaging. Even if that trend is observed on the German market, it cannot take away the fact that, for producers of natural mineral water established in another Member State, Paragraphs 8 and 9 of the VerpackV constitute an obstacle to the marketing of their products in Germany.

66Finally, contrary to the German Government’s submissions, Paragraphs 8 and 9 of the VerpackV cannot fall outside the scope of Article 28 EC on the ground that they regulate not the way in which natural mineral water is packaged but only the selling arrangements for it within the meaning of the judgment in Joined Cases C‑267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, paragraph 16 et seq.).

67The Court has held that the need, resulting from the measures at issue, to alter the packaging or the labelling of imported products prevents those measures from concerning selling arrangements for the products within the meaning of the judgment in Keck and Mithouard (see Case C-33/97 Colim [1999] ECR I-3175, paragraph 37, Case C-12/00 Commission v Spain [2003] ECR I-459, paragraph 76, and Case C-416/00 Morellato [2003] ECR I-9343, paragraph 29).

68As noted in paragraph 59 of the present judgment, the replacement of participation in a global collection system by the establishment of a deposit and return system obliges the producers concerned to alter certain information on their packaging.

In any event, given that the provisions of the VerpackV do not affect the marketing of drinks produced in Germany and that of drinks from other Member States in the same manner, they cannot fall outside the scope of Article 28 EC (Keck and Mithouard, paragraphs 16 and 17).

Justification relating to protection of the environment

70It must therefore be examined whether Paragraphs 8(1) and 9(2) of the VerpackV, in so far as they constitute a barrier to trade, may be justified by reasons relating to protection of the environment.

71The Commission, supported by the French Government, maintains that, with regard to natural mineral water which must be bottled at source, those rules are not justified on grounds connected to environmental policy and in any event do not meet the test of proportionality.

72The German Government considers Paragraphs 8 and 9 of the VerpackV to be justified by various objectives related to protection of the environment, namely avoiding waste, defining the most appropriate waste management alternatives for non-reusable packaging and protecting the landscape from littering. It states that even if the view is followed that those provisions seek only the general objective of avoiding waste, the ecological advantages flowing from a deposit system for non-reusable packaging considerably outweigh the possible disadvantages connected to the fact that certain packaging must be transported long distances to the place of production.

75As to those submissions, it is settled case-law that national measures capable of hindering intra-Community trade may be justified by overriding requirements relating to protection of the environment provided that the measures in question are proportionate to the aim pursued (Commission v Denmark, cited above, paragraphs 6 and 9, and Case C-389/96 Aher-Waggon [1998] ECR I-4473, paragraph 20).

76As the German Government states, the establishment of a deposit and return system is liable to increase the proportion of empty packaging returned and results in more precise sorting of packaging waste, thus helping to improve its recovery. In addition, the charging of a deposit contributes to the reduction of waste in the natural environment since it encourages consumers to return empty packaging to the points of sale.

78However, in order for such rules to comply with the principle of proportionality, it must be ascertained not only whether the means which they employ are suitable for the purpose of attaining the desired objectives but also whether those means do not go beyond what is necessary for that purpose (see Case C-284/95 Safety Hi-Tech [1998] ECR I-4301, paragraph 57).

79In order for national rules to satisfy the latter test, they must afford the producers and distributors concerned a transitional period sufficient to enable them, before the deposit and return system enters into force, to adapt to the requirements of the new system.

80However, the period of six months laid down in Paragraph 9(2) of the VerpackV between the announcement that a deposit and return system must be established and the entry into force of such a system is not sufficient to enable producers of natural mineral water to adapt their production and their management of non-reusable packaging waste to the new system, given that the system must be set up at the outset.

81In this connection, the time preceding that six-month period is not relevant. Even after an initial finding that the proportions of reusable packaging are insufficient, uncertainty remains as to whether a deposit and return system will enter into force and, if so, when, inasmuch as that depends not only on fresh assessments relating to the overall proportion of reusable packaging present on the German market and to the proportion of natural mineral water placed on that market in such packaging, but also on a decision of the German Government to announce the result of those assessments.

82Thus, the VerpackV creates a situation where, for an indeterminate period, the change in the packaging-waste management system is not sufficiently certain for the economic operators in the sector concerned to be required to set up a deposit and return system that is available shortly after the announcement of the date on which the new system will enter into force.

83In those circumstances, the Commission’s action must be considered well founded.

84It must therefore be held that by establishing, through Paragraphs 8(1) and 9(2) of the VerpackV, a system seeking the re-use of packaging for products which, under Directive 80/777, must be bottled at source, the Federal Republic of Germany has failed to fulfil its obligations under Article 5 of Directive 94/62 in conjunction with Article 28 EC.

Costs

85Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Federal Republic of Germany has been unsuccessful, the latter must be ordered to pay the costs. In accordance with the first subparagraph of Article 69(4) of the Rules of Procedure, the Member States which intervened in support of the Commission are to bear their own costs.

On those grounds, the Court (Grand Chamber) hereby:

Declares that, by establishing, through Paragraphs 8(1) and 9(2) of the Verordnung über die Vermeidung und Verwertung von Verpackungsabfällen (Regulation on the Avoidance and Recovery of Packaging Waste), a system seeking the re-use of packaging for products which, under Council Directive 80/777/EEC of 15 July 1980 on the approximation of the laws of the Member States relating to the exploitation and marketing of natural mineral waters, must be bottled at source, the Federal Republic of Germany has failed to fulfil its obligations under Article 5 of European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste in conjunction with Article 28 EC;

Orders the Federal Republic of Germany to pay the costs;

Orders the French Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

Signatures.

Language of the case: German.