1. Summary:
Parties: Commission vs. Kingdom of Denmark
The main problem discussed in the sentence is whether or not Denmark failed to fulfil its obligation under The EC Treaty art.30 which prohibits quantitative restrictions on imports.
In order to protect the environment Denmark introduced and applied Order No 397 of 2.7.1981 which meant that:
1.All containers for beer and soft drinks must be returnable, and that
2.The containers must be approved by a National Agency which will limit the number to about 30 in order to make the system work in practice (costs etc.) This condition was amended by Order No 95 of 16.3.1984: To make it possible for foreign producers to test the Danish market, non-approved containers may be used (providing they are still fulfilling condition 1) for quantities not exceeding 3000 hectolitres a year per producer
The question is whether Denmark can take such a measure to protect the environment or not.
2.Law:
The EC Treaty art.30 states: "Quantitative restrictions on imports and all measures having equivalent effect shall, without prejudice to the following provisions, be prohibited between member states."
ECJ refers to an established body of case-law giving conditions for exceptions from art.30 (implying obstacles to free movement of goods). From case 120/78 (Cassis de Dijon) and also from case 261/81 the court extracts the following principle:
Obstacles to free movement of goods must be accepted when:
1. There is no EC rule regulating the marketing of the product in question, and
2. The rules apply to both domestic and imported products with no discrimination, and
3. The rules satisfy mandatory requirements recogniced by Community law, and finally that
4. The measures taken are proportionate and necessary in view of their aim.
3. Examination of the Danish Bottles Case:
The court does not have to discuss the two first requirements of the principle mentioned above.
* 1. is OK, because there doesn't exist EC acts regulating the bottles in question.
* 2. is OK, because the Danes applied their rules to domestic and imported products without distinction.[ This is THE PRINCIPLE OF EQUALITY]
* 3. Regarding mandatory requirements, the court refers to Case 240/83: The protection of the environment is "one of the Community's essential objectives" which may as such justify certain limitations of the principle of the free movement of goods. The Single Act later confirmed this. OK. [THE HIGH LEVEL OF PROTECTION-PRINCIPLE and THE INTEGRATION PRINCIPLE]
* 4.Then ECJ have to decide if the Danish provisions are proportionate to the aim of protecting the environment. [THE PRINCIPLE OF PROPORTIONALITY]
The Danish system condition 1, that all containers for beer and soft drink must be returnable, is viewed as necessary to achieve the aims, and is not regarded as disproportionate by the court. [THE POLLUTER PAYS-PRINCIPLE]
The Danish system condition 2, as after the amendment, require that non-approved containers can only be used for market testing and limits the import of these containers to 3000 hectoliters.
ECJ recognizes that the approved containers insure a maximum re-use because the containers can be returned to any retailer of beverages, whereas the non-approved containers only can be returned to the retailer who sold the beverages because these containers doesn't fit the national system, resulting in what will probably be a lower protection of the environment.
But, the ECJ finds that the system for returning non-approved containers is capable of protecting the environment, as these containers also have to be returnable. An additional quantitative restriction is considered to be disproportionate, as non-approved containers affects only limited quantities of beverages.
4. Conclusion:
The Kingdom of Denmark has failed to fulfil its obligations under The EC Treaty art.30 regarding the limitation of 3000 hectoliters.
5. Our comments:
The Danish Bottle case can be interpreted in two ways;
* You could say that ECJ is taking environmental issuse more seriously because the court mainly lets Denmark keep their system intact.
* But you could also say that when a conflict between economical and environmental interests arises, the economical interest win as the court found that Denmark was not allowed to have quantitative restrictions on imports of non-approved bottles.
It is difficult to say what level of priority protection of the environment has in the Danish Bottle case because the ECJ only looked at the environmental consequences of the measures taken in the Danish system. Owing to the restrictive effect which the requirement that containers should be returnable has on imports, ECJ held that the environmental problems would not be that serious.
It seems that the court's opinion is that each member state must accept some environmental problems, but it doesn't state how grave these problems have to get before the memberstates are allowed to take measures that violates the wording of art. 30.