Official Journal of the European Union

C 327/12

(Case C-425/08)

(2008/C 327/21)

Language of the case: French

Referring court

Parties to the main proceedings

Applicant: Enviro Tech (Europe) Ltd

Defendant: Belgian State

Questions referred

Question 1:

—In so far as it classifies nPB as a highly flammable substance (R11) on the basis of a single test carried out at a temperature of – 10 °C, does Directive 2004/73/EC (1) comply with Framework Directive 67/548/EEC (2), in particular with point A.9 of Annex V to that directive which lays down the methods for determining flash points?

—Does Directive 2004/73/EC comply with Framework Directive 67/548/EEC, in particular with point 4.2.3 of Annex VI to that directive, in so far as it classifies nPB as a category 2 substance which is toxic for reproduction (R60), first, without clear results in appropriate animal studies where toxic effects have been observed to provide a strong presumption that human exposure to the substance may result in developmental toxicity and, secondly, on the basis of tests in which toxicity was detected only in animals subjected to a concentration of 250 ppm, that is to say 11 times the maximum and 40 times the average of the concentration of nPB to which a person is exposed when handling the product?

—Does Directive 2004/73/EC comply with Framework Directive 67/548/EEC, in particular with Annexes V and VI thereto, in so far as it classifies nPB as highly flammable (R11) and as a category 2 substance which is toxic for reproduction (R60) on the basis of the precautionary principle without complying with the methods and criteria set out in Annexes V and VI to Directive 67/548/EEC?

—Does Directive 2004/73/EC comply with Framework Directive 67/548/EEC in so far as it classifies nPB as highly flammable (R11) and as a category 2 substance which is toxic for reproduction (R60) on the basis of tests which are different from those carried out on competing products, inter alia chlorinated halogens, and without regard to the principle of proportionality?

Question 2:

—If Directive 2004/73/EC does not comply with Directive 67/548/EEC, should the Kingdom of Belgium have refrained from transposing into national law the classification of nPB which stems from Directive 2004/73/EC or even rejected that classification, even though under Article 2 of Directive 2004/73/EC ‘Members States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 October 2005 at the latest’?

(1) Commission Directive 2004/73/EC of 29 April 2004 adapting to technical progress for the twenty-ninth time Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ 2004 L 152, p. 1).

(2) Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p. 234).

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