delivered on 13 July 2016 (1)

Joined Cases C‑313/15 and C‑530/15

Sphère France,

Schweitzer SAS,

Carrefour Import SAS,

Tissue France SCA,

SCA Hygiène Products SAS,

WEPA Troyes SAS,

Industrie Cartarie Tronchetti SpA,

Industrie Cartarie Tronchetti Ibérica, SL,

Kimberly-Clark SAS,

Gopack SAS,

Delipapier,

CMC France SARL,

Paul Hartmann SA,

Wepa Lille SAS,

Industrie Cartarie Tronchetti France SAS,

Melitta France SAS,

Cofresco Frischhalteprodukte GmbH & Co. KG,

Scamark SAS,

Système U Centrale Nationale SAS

(Request for a preliminary ruling from the Tribunal de commerce de Paris (Commercial Court, Paris, France))

Melitta France SAS,

Cofresco Frischhalteprodukte GmbH & Co. KG,

Délipapier,

Gopack SAS,

Industrie Cartarie Tronchetti SpA,

Industrie Cartarie Tronchetti Ibérica, SL,

Kimberly-Clark SAS,

Lucart France,

Paul Hartmann AG,

SCA Hygiène Products,

SCA Tissue France,

Group’Hygiène syndicat professionnel

Ministre de l’Écologie, du Développement durable et de l'Énergie

(Request for a preliminary ruling from the Conseil d’État (Council of State, France))

‛Environment — Directive 94/62/EC — Packaging and packaging waste — Definition of packaging — Roll cores (rolls, tubes, cylinders) — Implementing Directive 2013/2/EU — Amendment of the examples of packaging — Commission’s implementing powers — Question on the issue of validity’

1.Sometimes an external observer who keeps a weather eye on matters referred to the Court for a preliminary ruling summarises those matters better than those of us involved in them are able to do. This is such a case. The issue raised in the two requests for a preliminary ruling (one concerning interpretation and the other an assessment of validity) from two French courts in two interconnected disputes is described as follows in a dedicated blog, in terms on which it would be difficult to improve: (2)

‘Inside a roll of toilet paper is a cardboard core. Does this internal element form part of the toilet paper’s packaging? It is a question which has stymied the French courts. The answer depends on the word “packaging” which is found in the EU’s “packaging and packaging waste” Directive 94/62/EC. If the answer is that the cardboard core does constitute packaging, then potential casualties of the CJEU’s ruling will not just be France’s toilet-paper makers but also France’s manufacturers of absorbent kitchen paper, aluminium foil, and even cling film. However, if the answer is no, then the Conseil d’État would like to know whether the EU Commission has acted ultra vires when enacting an ancillary packaging directive that has expanded the definition of “packaging” still further. Many millions of euro are at stake.’

2.The Court must determine whether or not rolls, tubes and cylinders around which a flexible product (for example, plastic film, aluminium, paper) is wound and sold to consumers are packaging within the meaning of Directive 94/62/EC. (3) If such roll cores (4) are classified as packaging, that directive will be applicable to them and undertakings which market products containing roll cores and consumers of such products will have to bear the recycling costs. (5) The dispute may appear trivial but it involves a degree of legal complexity and its financial consequences are significant.

I – Legal framework

A – EU law

‘For the purposes of this Directive:

“packaging” shall mean all products made of any materials of any nature to be used for the containment, protection, handling, delivery and presentation of goods, from raw materials to processed goods, from the producer to the user or the consumer. “Non-returnable” items used for the same purposes shall also be considered to constitute packaging.

“Packaging” consists only of:

(a) sales packaging or primary packaging, i.e. packaging conceived so as to constitute a sales unit to the final user or consumer at the point of purchase;

(b) grouped packaging or secondary packaging, i.e. packaging conceived so as to constitute at the point of purchase a grouping of a certain number of sales units whether the latter is sold as such to the final user or consumer or whether it serves only as a means to replenish the shelves at the point of sale; it can be removed from the product without affecting its characteristics;

(c) transport packaging or tertiary packaging, i.e. packaging conceived so as to facilitate handling and transport of a number of sales units or grouped packagings in order to prevent physical handling and transport damage. Transport packaging does not include road, rail, ship and air containers.’

‘Directive 94/62/EC is hereby amended as follows:

the following subparagraphs shall be added to point 1 of Article 3:

“The definition of ‘packaging’ shall be further based on the criteria set out below. The items listed in Annex I are illustrative examples of the application of these criteria:

(i) Items shall be considered to be packaging if they fulfil the abovementioned definition without prejudice to other functions which the packaging might also perform, unless the item is an integral part of a product and it is necessary to contain, support or preserve that product throughout its lifetime and all elements are intended to be used, consumed or disposed of together.

(ii) Items designed and intended to be filled at the point of sale and ‘disposable’ items sold, filled or designed and intended to be filled at the point of sale shall be considered to be packaging provided they fulfil a packaging function.

(iii) Packaging components and ancillary elements integrated into packaging shall be considered to be part of the packaging into which they are integrated. Ancillary elements hung directly on, or attached to, a product and which perform a packaging function shall be considered to be packaging unless they are an integral part of this product and all elements are intended to be consumed or disposed of together.

The Commission shall, as appropriate, in accordance with the procedure referred to in Article 21, examine and, where necessary, review the illustrative examples for the definition of packaging given in Annex I. As a priority, the following items shall be addressed: CD and video cases, flower pots, tubes and cylinders around which flexible material is wound, release paper of self-adhesive labels and wrapping paper.”’

‘Annex I

Illustrative examples for the criteria referred to in Article 3(1)

Illustrative examples for criterion (i)

…

Rolls, tubes and cylinders around which flexible material (e.g. plastic film, aluminium, paper) is wound, except rolls, tubes and cylinders intended as parts of production machinery and not used to present a product as a sales unit.

…’

7. Recital 4 of Directive 2013/2 states that ‘[t]he Committee established by Article 21 of Directive 94/62 has not delivered an opinion (on the measures provided for in this Directive) and the Commission therefore submitted to the Council a proposal relating to the measures and forwarded it to the European Parliament. The Council did not act within the two-month period provided for by Article 5a of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (8) and the Commission therefore submitted the proposal to the European Parliament without delay. The European Parliament did not oppose the measure within four months from the abovementioned forwarding’.

B – National law

8. The provisions of Directive 94/62 were transposed into French law in the Code de l’environnement (Environmental Code), Article R. 543-43(I) of which stipulates:

‘I. “Packaging” shall mean all articles, regardless of the nature of the materials of which they are composed, to be used for the containment, protection and handling of goods, for the delivery of goods from the manufacturer to the consumer or user and for the presentation of goods. “Non-returnable” items used for the same purposes shall also be considered to constitute packaging.

The definition of “packaging” shall also be based on the following criteria:

…

The minister with responsibility for the environment shall draw up, by ministerial order, a list of illustrative examples of those criteria.’

10. Article L. 541-10(II) of the Environmental Code imposes on producers, importers and distributors of goods the obligation to deal with or collaborate in the prevention and management of waste which they produce. For that purpose, they may choose to create an individual system for the collection and treatment of waste or to set up collectively an eco-organism to deal with those tasks and to which they will pay a financial contribution. Such eco-organisms are authorised by the State for a maximum period of six years, which may be renewed. The producer, importer or first person to market a product sold with packaging is required, under Article R. 543-56, to make a financial contribution towards disposal of the waste produced.

II – The national proceedings and the questions referred for a preliminary ruling

11.Case C‑313/15 arose as a result of actions brought in January 2013 before the Tribunal de commerce de Paris (Commercial Court, Paris, France) by Eco-Emballages SA, a packaging-waste management company. (10) In those actions, (11) Eco-Emballages SA claimed from 19 companies with which it had contractual relationships payment of contributions in respect of the roll cores placed on the market by those companies since 1 January 2007. The total amount of the claims is in excess of EUR 42 million, inclusive of taxes.

12.Undertakings which market goods including packaging and have concluded a contract with Eco-Emballages are required to pay that company an annual financial contribution, calculated according to a scale based on the materials, the weight and the amount of packaging sold on the French market. In that connection, undertakings are required to make a certified declaration, within 60 days of the end of the calendar year, recording the weight of the materials and the amount of domestic packaging placed on the market that year.

13.The defendants contend that tubes, rolls and cylinders do not form part of the packaging of products and that they cannot be treated as packaging covered by the recycling obligation laid down in Directive 94/62. Therefore, those companies did not include tubes, rolls and cylinders in their annual declarations to Eco-Emballages or pay the financial contribution demanded from them by that organism.

14.In the event that roll cores do constitute packaging, those undertakings argued before the national court that Eco-Emballages can only require them to pay the contributions from the date on which Directive 2013/2 was transposed into French law, that is with effect from the enactment of the Ministerial Order of 6 August 2013, which entered into force on 28 August 2013, and not from 2007, as Eco-Emballages claims.

15.In the light of those opposing views, the difficulty in interpreting the directives applicable to the case, and its financial repercussions, the Tribunal de commerce de Paris (Commercial Court, Paris) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does the concept of packaging, as defined in Article 3 of Directive 94/62/EC, amended by Directive 2004/12/EC, include “roll cores” (rolls, tubes, cylinders) around which flexible material, such as paper or plastic film, is wound and sold to consumers?’

16.A number of the defendants in those proceedings then brought an action before the Conseil d’État (Council of State), seeking, on the grounds that it was ultra vires, annulment of the Ministerial Order of 6 October 2013 which transposed Directive 2013/2 into French law. The defendants contested the validity of that Ministerial Order, arguing that, by including roll cores in the examples of packaging, that directive misconstrued the term ‘packaging’ in Article 3 of Directive 94/62 and exceeded the scope of the authorisation granted to the Commission in respect of its implementing powers.

17.The Ministre de l’écologie, du développement durable et de l’énergie (Minister for Ecology, Sustainable Development and Energy) claimed that the Conseil d’État (Council of State) should dismiss the actions on the grounds that the contested Ministerial Order correctly transposed Directive 2013/2, the provisions of which are precise and unconditional. The Minister submitted that there was no need to refer a question for a preliminary ruling because that directive does not present any difficulties of interpretation and does not infringe any of the general principles of EU law.

18.However, the Conseil d’État (Council of State) stayed the proceedings pending a ruling from the Court on the question referred for a preliminary ruling in Case C‑313/15. Should the Court answer that question in the negative, the Conseil d’État (Council of State) asks the Court:

‘Whether, by including “roll cores” (rolls, tubes, cylinders) around which flexible material, such as paper or plastic film, is wound and sold to consumers in the examples of packaging, Commission Directive 2013/2/EU of 7 February 2013 has misconstrued the term “packaging”, as defined in Article 3 of Directive 94/62/EC of 20 December 1994, and exceeded the scope of the authorisation granted to the European Commission in respect of its implementing powers.’

The Court joined the two cases, in which the Commission and France submitted written observations. In addition, in Case C‑313/15, written observations were submitted by Eco-Emballages, Système U Centrale Nationale SAS, Melitta France SAS jointly with Cofresco Frischhalteprodukte GmbH, Delipapier jointly with 11 other undertakings in the sector, and the trade union Group’Hygiène. Written observations were submitted in Case C‑530/15 by Melitta France jointly with Cofresco Frischhalteprodukte, Delipapier jointly with 10 other undertakings in the sector, and the trade union Group’Hygiène.

At the hearing, held on 4 May 2016, oral argument was presented by Eco-Emballages, Melitta France, Delipapier, Système U Centrale Nationale, the French Government and the Commission. At the Court’s request, those parties focused in their submissions on the different components of the definition of ‘packaging’ in Directive 94/62, limitation of the temporal effects of the judgment to be given by the Court, and the Commission’s competence to adopt Directive 2013/2. In particular, the parties argued at length about the temporal effects of the interpretation of the term ‘packaging’ to be adopted by the Court.

It should also be noted that a number of the undertakings which are parties to the proceedings in Case C‑313/15 contested the validity of Directive 2013/2 before the General Court. Their actions were dismissed for lack of <span class="italic">locus standi</span> . (12)

III – Analysis of the questions

These proceedings involve an infrequent occurrence in the practice of the Court: the joinder of a reference for a preliminary ruling from a national court (the Tribunal de commerce de Paris (Commercial Court, Paris)) on a question of interpretation to another reference for a preliminary ruling from a different national court (the Conseil d’État (Council of State)) on an issue of validity, which have arisen from two closely related disputes concerning the same issue.

I shall examine the question of interpretation first and then go on to deal with the question concerning validity.

A – The reference for a preliminary ruling on a question of interpretation: does the definition of ‘packaging’ in Directive 94/62 include roll cores?

The question referred by the Tribunal de commerce (Commercial Court), Paris essentially calls for a determination of whether the term ‘packaging’ in Article 3 of Directive 94/62, as amended by Directive 2004/12, includes roll cores. The success of the claims for payment brought by Eco-Emballages against the undertakings which place such items on the market depends on the reply.

At first sight, the question may appear so simple as to be easily answered: common sense tells us that packaging is used to wrap, package or contain goods sold to consumers. An internal tube which strengthens a roll of toilet paper or kitchen paper does not perform that function and, therefore, cannot be classified as packaging.

Lawyers know that legislatures, including the EU legislature, do not always apply common sense when it comes to choosing the terms used in a legal provision. Either by giving new meanings to certain words ‘for the purposes of this law’ or by the increasingly frequent use in provisions of definitions (13) which do not always coincide with the dictionary definitions, the fact is that legal language diverges from everyday language, sometimes to a degree as extreme as that in this case.

The term ‘packaging’, as used in Directive 94/62, does not have the same meaning as that attributed to it by consumers; hence the need for three directives to clarify that term. That fact explains the existence of the two disputes before the French referring courts and the associated questions referred to the Court for a preliminary ruling.

The Commission, France and Eco-Emballages submit that the legal definition of packaging laid down in the first subparagraph of Article 3(1) of Directive 94/62, as amended by Directive 2004/12 and supplemented by Directive 2013/2, includes roll cores. These items protect the product from the inside while it is being transported and for the purposes of presentation to consumers; they enable the product to be preserved and displayed for purchase and later use; and they are non-returnable. The fact that roll cores do not take the form of an external wrapping is immaterial in view of the broad interpretation provided for by Directive 94/62.

The Commission, France and Eco-Emballages further contend that roll cores constitute ‘sales packaging or primary packaging’, within the meaning of Article 3(1)(a) of Directive 94/62, because they are conceived so as to constitute, together with the product which they strengthen, a sales unit to the final user or consumer and they are not sold separately.

Lastly, they submit that roll cores do not satisfy the three criteria for exclusion from the definition of packaging in Article 3(1)(i) of Directive 94/62, which were inserted by Directive 2004/12. A roll core is not an integral part of the flexible material wound around it, which must be separated from the roll core in order to be used; nor is a roll core essential to contain, support or preserve the product; and, lastly, a roll core is not used, consumed or disposed of together with the product wound around it and instead is disposed of after the product has been used in full, unlike a tea bag, for example.

The undertakings which submitted observations disagree with the arguments of the Commission, France and Eco-Emballages. They submit that the term ‘packaging’ refers necessarily to something which, if not wrapping, is at least external. A roll core does not contain the product (toilet paper, for example) and neither does it protect the product, for it is not an external wrapping but rather an internal component.

Those undertakings submit that roll cores do not satisfy the conditions laid down by Article 3(1) of Directive 94/62 for classification of an item as packaging. They are not intended to contain or protect the product because they do not wrap it, and they are not used to preserve the product or to transport the product from the manufacturer to the consumer. Nor are roll cores used for presentation of the product because information for consumers cannot be affixed to them; that information appears on the wrapping and cannot be placed on an internal element.

Those undertakings further submit that roll cores are not included in the definition of ‘sales packaging’, ‘grouped packaging’ or ‘transport packaging’ because they are not conceived so as to constitute an individual sales unit and are used solely to strengthen the product; because they are not suitable for containing or grouping together a number of products and nor can they be removed from the product without damaging its quality; and because they do not facilitate transport of the products since they do not protect them or wrap them.

In the event that it is possible to classify roll cores as packaging, the undertakings submit that roll cores do not satisfy the three conditions set out in Article 3(1)(i) of Directive 94/62. A roll core is an integral part of the product; it is needed throughout the product’s lifetime to enable consumption of the product; it is used at the same time as the goods wound around it and it cannot be disposed of until those goods have been consumed in their entirety.

First, I must draw attention to the lack of clarity of the definition of packaging in Article 3(1) of Directive 94/62. Its obscurity is of particular concern because it is the key element for determining the extent of the legal obligations imposed on Member States — and, indirectly, on operators in the sector — by that directive, whose aim was, specifically, to harmonise national measures on the management of packaging and packaging waste. (14)

The lack of clarity made it necessary, 10 years after the adoption of Directive 94/62, to seek to shed light on the definition of packaging in Directive 2004/12, this time through the introduction of three criteria and an annex containing ‘illustrative examples’, while also authorising the Commission to examine, and, where appropriate, to revise those examples. Directive 2004/12 explicitly called on the Commission to address ‘as a priority’ a number of items, including tubes and cylinders around which flexible material is wound. (15) It can be seen, therefore, that, in 2004, there continued to be uncertainty as to whether these items should be classified as packaging, and the Commission was required to dispel that uncertainty through use of the regulatory procedure.

Regulation (EC) No 219/2009 (16) amended the procedure to be followed by the Commission for the purpose of carrying out its task. The uncertainty surrounding roll cores continued, since the new wording of the fourth subparagraph of Article 3(1) of Directive 94/62 confirmed the Commission’s mandate to make a decision regarding tubes and cylinders, adding that, when it carried out that legislative task, the Commission was not entitled to amend essential elements of that directive. (17)

The Commission implemented that mandate with the adoption of Directive 2013/2 which, in recital 2 (transcribed above), (18) refers to reasons of legal certainty and harmonisation of the interpretation of the definition of the term ‘packaging’ to justify the inclusion of roll cores (among other objects) as an ‘illustrative example’ of such packaging. (19)

Following all those legislative amendments and changes, (20) the definition of packaging in Article 3(1) of Directive 94/62 has been encapsulated in positive and negative terms. As regards the positive components, in order to be classified as packaging a product must satisfy two cumulative conditions which were referred to by the Court in <span class="italic">Plato Plastik Robert Frank</span>; (21) these are:

— First, pursuant to the first subparagraph of the abovementioned provision of Directive 94/62, the product in question must be used for the containment, protection, handling, delivery and presentation of goods from the producer to the user or the consumer. The second subparagraph states that ‘non-returnable’ items used for the same purposes must also be considered to constitute packaging.

— Second, the product must fall within one of the three categories of packaging listed and defined in Article 3(1)(a) to (c) of Directive 94/62, namely sales packaging, grouped packaging and transport packaging.

Notwithstanding the objections which I have set out above, concerning the proper use of language and common sense, I have no alternative other than to accept that roll cores satisfy the first condition laid down by Directive 94/62 for the purposes of classification as packaging. It is not for the person who interprets provisions to invalidate or ignore a provision when it is not to his liking or has linguistic shortcomings, but rather to apply the provision despite his dislike of it.

The Court has held that the possible functions of packaging listed in the first subparagraph of Article 3(1) of Directive 94/62 are not cumulative, so that it is not necessary for roll cores to be used simultaneously for the ‘containment, protection, handling, delivery and presentation of goods’ and it is sufficient that they perform just one of those functions. (22) In other words, that provision does not classify as packaging only wrapping, external protection and boxes which are used to place goods on the market, as might be thought on a first examination.

To my mind, the correctness of the argument put forward by the Commission, France and Eco-Emballages, to the effect that roll cores ‘protect’ from the inside the goods wound around them, cannot be denied. That protection strengthens the product while it is transported and while it is displayed for sale to consumers, since it allows the product to be presented cylindrically. Moreover, roll cores facilitate subsequent use of the product by consumers.

A roll core also helps with ‘presentation’ of the item to consumers. Contrary to the opinion of the undertakings which place such products on the market, presentation does not consist only of written information on the wrapping or boxes containing the goods. A roll core provides consumers with, for example, a roll of toilet paper, aluminium foil or kitchen paper conveniently ‘presented’ for sale.

Lastly, a roll core is a non-returnable item, generates waste and must be recycled. Roll cores are not used at the same time as the product wound around them and instead are removed when that product has been used in full.

The broad definition of packaging in Directive 94/62 therefore enables the inclusion of roll cores, in accordance with the case-law of the Court laid down in <span class="italic">Plato Plastik Robert Frank</span>, in which the Court held that plastic carrier bags handed to customers in shops, whether free of charge or not, also constitute packaging. (23)

It is perhaps necessary to seek the solution in the objective of Directive 94/62, which is aimed at preventing and reducing the impact of packaging and packaging waste, thereby ensuring a high level of environmental protection. (24) For that purpose, the directive provides, in particular, that Member States must establish a system which facilitates the collection and recovery of packaging while allowing Member States some latitude with regard to the structure of that system. (25) Since, in accordance with the fifth recital and Article 2(1) (26) of Directive 94/62, the directive applies broadly to all packaging placed on the market in the Community, a strict interpretation of the term ‘packaging’ which rules out the inclusion of roll cores would run counter to that aim.

That reading of Article 3(1) of Directive 94/62 is supported by a purposive and a systematic interpretation. In view of the widespread use of roll cores in mass consumption domestic goods, non-acceptance of these items as packaging would mean that the waste which they generate would not be recycled, contrary to the environmental objective at the heart of Directive 94/62.

Less discussion is called for in the analysis of the second (positive) condition which packaging must satisfy under Directive 94/62. Of the three types of packaging listed and defined in Article 3(1)(a) to (c) of that directive (sales packaging, grouped packaging and transport packaging), roll cores are covered by the first because they are conceived ‘so as to constitute a sales unit to the final user or consumer [of the product] at the point of purchase’. The tube around which toilet paper is wound is sold to the consumer as part of a unit which includes the roll of paper, of which the tube does not exist independently and from which it cannot be removed at the time of sale.

In addition to those positive features, the term ‘packaging’ is also defined in negative terms under Article 3(1) of Directive 94/62. For that purpose, Directive 2004/12 inserted new wording into the third subparagraph of Article 3(1) of Directive 94/62, such that the definition of ‘packaging’ was also to be based on three additional ‘criteria’ set out in points (i) to (iii), and the items referred to in Annex I are illustrative examples for the application of those criteria.

As far as this case is concerned, the criterion in point (i) is applicable, meaning that a product which satisfies the definition of packaging in Directive 94/62 will not be treated as such if it complies cumulatively with the following three conditions for exemption:

— it is an integral part of the product it comes with;

— it is necessary to contain, support or preserve that product throughout its lifetime, and

it is intended to be used, consumed or disposed of with the product it comes with.

In my view, roll cores do not satisfy the first of the three (negative) conditions of eligibility for the exemption. In particular, they are not an ‘integral part’ of the product that they strengthen, for the flexible material which is wound around them is removed from the roll core for use. A roll of cling film, for example, contains the plastic film which will be used to protect food but the roll core itself is not used for that purpose and is not part of that product, although it is necessary to wait until all the film has been used before the roll core can be removed.

However, roll cores do satisfy the second condition, since they are necessary to ‘support’ the product throughout its lifetime, meaning that if they are removed before all the product has been used, the product will be damaged and will be difficult or impossible to use.

Roll cores do not satisfy the third condition either, since they are not ‘intended to be used, consumed or disposed of together’ with the product wound around them. The cylinder around which kitchen paper is wound is not consumed and used at the same time as the pieces of paper. When the paper is used, the central cylinder remains and constitutes waste which must be recycled unless it has been made from biodegradable material. The difference is clear in relation to items such as tea bags, coffee capsules and soluble bags for detergents, which are used, consumed and disposed of at the same time as the product they wrap. (27)

Therefore, whilst roll cores do not satisfy cumulatively the three conditions for exemption laid down in Article 3(1)(i) of Directive 94/62, their initial classification as packaging, which follows from the definition set out in that article, is borne out. The EU legislature confirmed that interpretation when it adopted Directive 2013/2, amending Annex I to Directive 94/62 and including roll cores in the illustrative examples of sales packaging in the terms which I have transcribed above. (28)

If the Court accepts this approach to Article 3(1) of Directive 94/62, it will be necessary to establish the moment from which the national courts must take that interpretation into account, as the undertakings which are parties to the proceedings have requested. As I have observed above, the temporal element is decisive for the purposes of ascertaining the date from which Eco-Emballages is entitled to demand from undertakings which place the type of products concerned on the market (and have a contractual relationship with it) payment of contributions in respect of the recycling of roll cores. The debate concerning this issue has been prominent in the main proceedings and the Court suggested that the parties make submissions on the subject at the hearing, which they duly did.

In accordance with settled case-law of the Court, the interpretation which the Court, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, gives to a rule of EU law clarifies and defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the competent courts are satisfied. (29)

By way of exception to that rule, the Court may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties. The Court has relied on that exception only where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that individuals and national authorities had been led to adopt practices which did not comply with EU law by reason of objective, significant uncertainty regarding the implications of European Union provisions, to which the conduct of other Member States or the Commission may even have contributed. (30)

Application of the general rule on the effects ex tunc of judgments of the Court in references for a preliminary ruling on questions of interpretation would mean that roll cores would have to be treated as packaging within the meaning of Directive 94/62 either (a) from the end of the period granted to Member States for transposition of the directive into national law (from 30 June 1996) or (b) from the entry into force of the national provision transposing the directive, if that was later, in the case of a dispute between individuals.

However, I believe that there are grounds for the Court to limit the temporal effects of its judgment. First, the judgment will have serious economic repercussions (31) which will affect legal relationships that were, in principle, entered into in good faith. A number of the undertakings which are parties to the proceedings also submitted at the hearing that the uncertainty regarding whether or not roll cores should be treated as packaging (together with the fact that, in France, the different authorities have not adopted a unanimous approach) means that contributions have not been paid to eco-organisms like Eco-Emballages and, clearly, have not been passed on to consumers. If undertakings which place domestic goods containing roll cores on the market are now required to pay the contributions retroactively, they will have missed the opportunity to transfer that financial burden to end consumers (a lawful transfer) and will be obliged to bear the whole cost themselves. (32)

Second, a particularly significant factor is that the EU institutions have, throughout many years of continuing legislative ambiguity, contributed by their conduct to the creation of uncertainty regarding the classification of roll cores as packaging.

Directive 2004/12 was adopted with the aim, inter alia, of clarifying the definition of packaging in the first and second subparagraphs of Article 3(1) of Directive 94/62. It did so, however, without dispelling the uncertainty. Furthermore, it acknowledged that the classification of some items, including ‘tubes and cylinders around which flexible material is wound’, was open to debate. (33) Instead of resolving once and for all the legal classification of those particular items (for which purpose it would have been sufficient to include them in Annex I), it was decided to assign to the Commission the task of reviewing the illustrative examples of packaging, using the regulatory procedure with scrutiny (Article 21(3) of Directive 94/62).

The Commission did not comply with that mandate until the adoption of Directive 2013/2 in which it then referred expressly to rolls as examples of packaging, after acknowledging that ‘the borderline between what is packaging and what is not, remains unclear’. In the drafting procedure for Directive 2013/2, unusual circumstances arose, to which I have referred above (no report from the Committee established by Article 21 of Directive 94/62, no action by the Council within the two-month period provided for by Article 5a of Decision 1999/468). (34)

Against that background of ‘conscious silence’ on the part of the EU legislature regarding the classification of roll cores as packaging, I believe that the Court should limit the temporal effects of its judgment. I suggest that it does so by holding that the effects of the judgment are to apply retroactively from 1 October 2013, that is the day following the expiry of the time limit laid down in Directive 2013/2 for transposition of that directive into the legal systems of the Member States. It was only then (by which time France had adopted the Ministerial Order of 6 August 2013, which transposed that directive into French law) that the uncertainty surrounding the classification of roll cores was dispelled.

B – Reference for a preliminary ruling on the issue of validity: is Directive 2013/2 compatible with Directive 94/62?

Should the Court answer in the affirmative the question referred for a preliminary ruling by the Tribunal de commerce de Paris (Commercial Court, Paris), that is if the Court takes the view that roll cores are packaging for the purposes of Directive 2013/2, it will not be necessary to deal with the question on the issue of validity referred for a preliminary ruling by the Conseil d’État (Council of State). That question is to be answered only in the event of a negative reply by the Court to the first question. However, I shall examine it briefly while concluding that I can find no grounds for declaring that Directive 2013/2 is invalid.

The Conseil d’État (Council of State) asks the Court whether, by including roll cores in the examples of packaging, Directive 2013/2 misconstrued the term ‘packaging’ as defined in Directive 94/62. The Conseil d’État (Council of State) also seeks to ascertain whether the Commission exceeded the scope of the authorisation granted to it in respect of its implementing powers.

According to settled case-law of the Court, the adoption of rules essential to the subject matter envisaged is reserved to the legislature of the European Union, which must include those rules in the basic legislation. The provisions laying down the essential elements of the basic legislation, the adoption of which requires political choices falling within the responsibilities of the EU legislature, cannot be delegated or appear in implementing acts. (35) Those implementing acts cannot amend essential elements of basic legislation or supplement it by new essential elements. (36)

The Court has also explained that identifying the ‘essential’ elements of a matter must be based on objective factors amenable to judicial review, and requires account to be taken of the characteristics and particular features of the field concerned. (37)

The Commission adopted Implementing Directive 2013/2 in the exercise of the authorisation laid down in Article 3(1), in fine, of Directive 94/62, inserted by Directive 2004/12 and amended by Regulation No 219/2009. Since, in accordance with that authorisation, the Commission was entitled to adopt ‘measures designed to amend non-essential elements’ of the directive, I believe that that requirement has been complied with in this case. In my opinion, by including, through the adoption of Directive 2013/2, roll cores in the examples of packaging in Annex I to Directive 94/62, the Commission did not act ultra vires of the basic legislation but rather within the scope of the authorisation granted to it by the EU legislature.

From a substantive point of view, the inclusion of roll cores as examples of packaging does not amend any essential elements of the basic legislation. More accurately, it does not alter the definition of packaging laid down in Directive 94/62, as supplemented by Directive 2004/12. Through the adoption of Directive 2013/2, the Commission complied with the express mandate of the EU legislature, which assigned to it the task of including other examples of packaging in Annex I in order to clarify any uncertainties on the part of operators and the Member States.

From a procedural point of view, the inclusion of roll cores in Annex I to Directive 94/62 was carried out in accordance with the procedure expressly laid down for that purpose in the basic legislation. In particular, Article 21(3) of Directive 94/62 provided for use of the regulatory procedure with scrutiny laid down in Decision 1999/468, as amended by Decision 2006/512/EC (38) and Regulation No 219/2009, which remained in force provisionally by application of Article 12 of Regulation (EU) No 182/2011, (39) which repealed Decision 1999/468. Given that Directive 2013/2 was adopted in accordance with the formalities of the regulatory procedure with scrutiny, the EU legislature (the Parliament and the Council) and the regulatory committee had the opportunity to object to the proposed content but did not do so.

Accordingly, I find no grounds for declaring that Directive 2013/2 is invalid.

IV – Conclusion

In the light of the foregoing considerations, I suggest that the Court reply as follows to the questions referred for a preliminary ruling by the Tribunal de commerce de Paris (Commercial Court, Paris, France) and the Conseil d’État (Council of State, France):

The concept of packaging, as defined in Article 3(1) of European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste, amended by Directive 2004/12/EC of the European Parliament and of the Council of 11 February 2004, includes roll cores (rolls, tubes and cylinders) around which flexible material is wound and sold to consumers.

By including roll cores as an illustrative example of packaging, Commission Directive 2013/2/EU of 7 February 2013 amending Annex I to Directive 94/62 has not exceeded the scope of the authorisation granted to the Commission in respect of its implementing powers.

The temporal effects of this judgment should be limited and should apply retroactively from 1 October 2013, that is the day following the expiry of the time limit laid down in Directive 2013/2 for transposition of that directive into the legal systems of the Member States.

(1) Original language: Spanish.

(2) EU Law Radar. Monitoring References to the Court of Justice of the European Union. Available at http://eulawradar.com/case-c-53015-melitta-france-card-core-hardcore-packaging-law.

(3) European Parliament and Council Directive of 20 December 1994 on packaging and packaging waste (OJ 1994 L 365, p. 10).

(4) The dictionary of the Real Academia Española includes the word mandril (roll core) but not with the meaning used in industry which is relevant in this case. Industry uses the generic term ‘roll core’ to denote tubes, rolls or cylinders around which products sold are wound.

(5) Manufacturers incorporate roll cores into many articles sold to consumers in order to make the article stronger and easier to use: toilet paper, kitchen paper, plastic film for food use, aluminium foil for food use, baking paper, reels of yarn for sewing or knitting, fishing line, balls of cooking twine, flexible wire for domestic use, rolls of sticking plaster, electric cables, Teflon, copper wire, all types of adhesive tape, etc.

(6) Directive of the European Parliament and of the Council of 11 February 2004 amending Directive 94/62/EC on packaging and packaging waste (OJ 2004 L 47, p. 26).

(7) Directive of 7 February 2013 amending Annex I to Directive 94/62/EC of the European Parliament and of the Council on packaging and packaging waste (OJ 2013 L 37, p. 10).

(8) OJ 1999 L 184, p. 23.

(9) Arrêté du 6 août 2013 modifiant l'arrêté du 7 février 2012 relatif aux exemples d’application des critères précisant la notion d'«emballage» définis à l’article R. 543 43 du code de l'environnement (JORF No 198 of 27 August 2013, p. 14487).

(10) Eco-Emballages is a private, not-for-profit eco-organism which has been involved in the recycling of domestic packaging waste in France since 1993, under the relevant government licence. It concludes standard-form contracts with manufacturers who use domestic packaging to market their products and collects the financial contributions which these manufacturers are liable to pay in respect of recycling. Eco-Emballages transfers the sums collected to local authorities which organise the collection, selection and treatment of packaging, in order to defray part of their costs.

(11) Eco-Emballages based its claim before the court on the argument that roll cores are covered by the definition of packaging in Article R. 543-43 of the Environmental Code. See point 9 above.

Orders of 7 July 2014, Cofresco Frischhalteprodukte v Commission (T‑223/13, not published, EU:T:2014:635); Melitta France v Commission (T‑224/13, not published, EU:T:2014:636); Group’Hygiène v Commission (T‑202/13, EU:T:2014:664); Wepa Lille v Commission (T‑231/13, not published, EU:T:2014:640); SCA Hygiène Products v Commission (T‑232/13, not published, EU:T:2014:632); Paul Hartmann v Commission (T‑233/13, not published, EU:T:2014:641); Lucart France v Commission (T‑234/13, not published, EU:T:2014:633); Gopack v Commission (T‑235/13, not published, EU:T:2014:637); CMC France v Commission (T‑236/13, not published, EU:T:2014:638); SCA Tissue France v Commission (T‑237/13, not published, EU:T:2014:634); Delipapier v Commission (T‑238/13, not published, EU:T:2014:643); ICT v Commission (T‑243/13, not published, EU:T:2014:639); and Industrie Cartarie Tronchetti Ibérica v Commission (T‑244/13, not published, EU:T:2014:644).

(1) The legislature forgot the old Roman law aphorism, attributed to Iavolenus: ‘omnis definitio in iure civili periculosa est: parum est enim, ut non subverti posset (every definition in civil law is dangerous, for rare are those that cannot be subverted)’.

(2) In accordance with Article 1(1) of the directive, its aim is ‘to harmonise national measures concerning the management of packaging and packaging waste in order, on the one hand, to prevent any impact thereof on the environment of all Member States as well as of third countries or to reduce such impact, thus providing a high level of environmental protection, and, on the other hand, to ensure the functioning of the internal market and to avoid obstacles to trade and distortion and restriction of competition within the Community.’

(3) Under Article 1 of Directive 2004/12, ‘[t]he Commission shall, as appropriate, in accordance with the procedure referred to in Article 21, examine and, where necessary, review the illustrative examples for the definition of packaging given in Annex I. As a priority, the following items shall be addressed: CD and video cases, flower pots, tubes and cylinders around which flexible material is wound, release paper of self-adhesive labels and wrapping paper.’

(4) Regulation of the European Parliament and of the Council of 11 March 2009 adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC with regard to the regulatory procedure with scrutiny (OJ 2009 L 87, p. 109).

(5) The Court addressed different areas of Directive 94/62 in the judgments of 12 December 2015, Visnapuu (C‑198/14, EU:C:2015:751), and 14 December 2004, Radlberger Getränkegesellschaft and S. Spitz (C‑309/02, EU:C:2004:799), and Commission v Germany (C‑463/01, EU:C:2004:797).

(6) Order of 16 February 2006, Plato Plastik Robert Frank (C‑26/05, not published, EU:C:2006:114, paragraph 33).

(7) Article 2(1) of Directive 94/62, concerning the scope of the directive, provides: ‘This Directive covers all packaging placed on the market in the Community and all packaging waste, whether it is used or released at industrial, commercial, office, shop, service, household or any other level, regardless of the material used.’

(8) Therefore, Annex I to Directive 94/62 lists these as illustrative examples of products covered by the exemption laid down in Article 3(1)(i) of the directive. However, coffee, cacao or milk capsules for beverage systems, which are left empty after use, are classified as packaging in Annex I to Directive 94/62.

(9) See point 5. It should be recalled that Directive 2013/2 inserted the following into Annex I to Directive 94/62: ‘Rolls, tubes and cylinders around which flexible material (e.g. plastic film, aluminium, paper) is wound, except rolls, tubes and cylinders intended as parts of production machinery and not used to present a product as a sales unit’.

(10) Judgment of 27 February 2014, Transportes Jordi Besora (C‑82/12, EU:C:2014:108, paragraph 40 et seq.).

(11) Judgments of 27 February 2014, Transportes Jordi Besora (C‑82/12, EU:C:2014:108, paragraphs 42 and 43).

paragraphs 64 and 65 and the case-law cited therein), and 10 September 2015, Parliament v Council (C‑363/14, EU:C:2015:579, paragraph 46).

(36) Judgment of 5 September 2012, Parliament v Council (C‑355/10, EU:C:2012:516, paragraph 66).

(37) Judgments of 5 September 2012, Parliament v Council (C‑355/10, EU:C:2012:516, paragraphs 67 and 68 and the case-law cited therein), and 10 September 2015, Parliament v Council (C‑363/14, EU:C:2015:579, paragraph 47).

(38) That procedure was set out in Article 5a of Decision 1999/468, inserted by Council Decision 2006/512/EC of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 2006 L 200, p. 11).

(39) Regulation of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13).