The PCP-case
THEMATIC STUDY GROUP - ENVIRONMENTAL LAW
Contributions from the SG Environmental Law TSG /Bergen University
The PCP-case
In this case, the French Republic brought action for annulment the Commission decision confriming the German rules concerning the prohibition of PCP.The action is based on Article 100a (4) of the Treaty establishing the European Community.The question in concern was whether the Commission was justified in verfying that the German provision were not a means of arbitrary discrimination or a disguised restriction on trade.
About PCP
Pentachlorophenol is a synthetic chemical substance used for a various number of industrial purposes. It is recognised as being dangerous for both man and the environment. Because of its toxicity, PCP has been subject to various restrictions in more than 30 countries.
Judgement of European Court of 17 May 1994, Case C-41/93:
The French Republic v Commision of European Communities
The regulations previous to the judgement:
The Council Directive 76/173/EEC provides for the prohibitions or restrictions of certain dangerous substances and preparations, including PCP. The original limitation on consentration of PCP in preparations and substances was 0,5 % by mass.
In 1988, the Commission submitted a proposal amending the -76-directive. The proposal limited to 0,1% by mass the consentration of PCP in substances and preparations.
In 1989, Germany set out mandatory provisions concerning PCP. This regulation prohibited manufacture, use and marketing of PCP. It also prohibited preparations and substances containing more than 0,01 % by mass.
In 1991 the Commision adopted its proposal of 1988, stating the limitation to 0,1% by mass.
On 2 August 1991 Germany notified the Commission of its decision to continue to apply the national provisions concerning PCP.
By decisions of 2 December 1992, the Commission, under art.100 a) 4 ,endorsed the German regulation.
In 1993 The French Republic brings action under art.173 (1) of the Treaty, for annulment of the Commisions desicion confirming the German rules concerning the prohibition of
THE PLEADINGS:
Primarily, the French Republic submits that the Commission was at fault in confirming the german regulations. France claims that the grounds of the major needs referred to in art.36 are not sufficiently documentet. Additionally, France submits that the measures in the German regulation were not documentet to be proportionate, having regard to the barriers of trade which might result from them. This claim is based upon the general prinsiple of proportionality developed by the Court. The proportionality-principle holds that measures must be in porportion with the problems they are designed to solve.
Secondly, the French Government claims that the Commission infringed Article 190 of the Treaty. Article 190 requires that the Commission shall state the reasons on which its decisions are based on. France submits that this condition is not fulfilled as regards to the condition for confirmation prescribed by article 100 a) 4. This claim is based upon the general principle of łgood administration˛ developed by the Court.
THE DECISION OF THE COURT:
The european Court has consistently held that the obligation under Article 190 to give reasons requires that the measures concerned should contain a statement of the reasons that made the institution adopt them. In this case, the Commission says that it had fulfilled this requirement by stating that the objective of the German measure was protection of health and the environment. The Court does not accept this argument as a sufficiently stated reason, as required in Article 190. TheCourt finds that the Commission confined itself to describing in general and aim of the German rules. The Commission then stated that those rules were compatible with Article 100a(4) without explaining in reasons of fact and law, why the conditions were fulfilled.
Consequently, the Court ruled that the Commission´s confirmation of the German regulations was annulled for infrindgement of essential procedual requirements.Because of this the Court did not consider the other pleas put forward by the applicant.
ENVIRONMENT VS FREE TRADE:
From an environmental judicial point of view, the interesting question would have been whether the national provision is a means of arbitrary discrimination or disguised restrivtion on trade. The national provision should be based on major environmental needs referred in Article 36. These major environmental needs are linked to some of the special principles regarding the environmental law developed by the Court. The protection of˛human health˛ could for instance be based on the principle of prevention.
Preventing arbitrary discrimination and disguised restricions is linked to the Community´s general principle of free trade between Member States.
Therefore, a consideration of whether the conditons of Article 100a(4) are fulfilled, might result in a consideration of the principles of environmental policy versus the principle of free trade
In the new decision of the Commission of 14 september 1994, concerning the German regulations, the Commission considered the measures justified. After a thourough consideration of facts and circumstances, the Commission concluded that the regulations were not used for economic purposes. An important argument was that the effects an intra-Community trade were practically non-existent
We raise the following question:: would the Commission´s verdict be different if the PCP-regulation had more important economical consequences?