CJEC, gr. chamber, December 14, 2004, No C-463/01

THE COURT (Grand Chamber)

1 By its application, the Commission of the European Communities requests the Court to declare that by establishing, through Paragraphs 8(1) and 9(2) of the 1998 regulation on the avoidance and recovery of packaging waste, a system seeking the re-use of packaging for products that are to be bottled at source 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 (OJ 1980 L 229, p. 1), 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 (OJ 1994 L 365, p. 10) in conjunction with Article 28 EC, and Article 3 of Directive 80-777 in conjunction with paragraph 2(d) of Annex II thereto.

Legal context

Community legislation

2 Article 3 of Directive 80-777 refers to Annex II thereto as regards the conditions under which natural mineral water springs may be exploited and the rules relating to bottling of the water.

3 Paragraph 2 of that annex provides:

'Equipment for exploiting the water must be so installed as to avoid any possibility of contamination and to preserve the properties, corresponding to those ascribed to it, which the water possesses at source.

To this end, in particular:

...

(d)

the transport of natural mineral water in containers other than those authorised for distribution to the ultimate consumer is prohibited.'

4 According to Article 1(1) of Directive 94-62, the latter aims 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.

5 Article 5 of Directive 94-62 provides:

'Member States may encourage reuse systems of packaging, which can be reused in an environmentally sound manner, in conformity with the Treaty.'

6 Article 7(1) of Directive 94-62 provides:

'Member States shall take the necessary measures to ensure that systems are set up to provide for:

(a)

the return and/or collection of used packaging and/or packaging waste from the consumer, other final user, or from the waste stream in order to channel it to the most appropriate waste management alternatives;

(b)

the reuse or recovery including recycling of the packaging and/or packaging waste collected,

in order to meet the objectives laid down in this Directive.

These systems shall be open to the participation of the economic operators of the sectors concerned and to the participation of the competent public authorities. They shall also apply to imported products under non-discriminatory conditions, including the detailed arrangements and any tariffs imposed for access to the systems, and shall be designed so as to avoid barriers to trade or distortions of competition in conformity with the Treaty.'

National legislation

7 The Verordnung über die Vermeidung und Verwertung von Verpackungsabfällen (Regulation on the Avoidance and Recovery of Packaging Waste) of 21 August 1998 (BGBl. 1998 I, p. 2379; 'the VerpackV') prescribes various measures to avoid and reduce the environmental impact of packaging waste. The VerpackV was intended, in particular, to transpose Directive 94-62 and replaced the Verordnung über die Vermeidung von Verpackungsabfällen (Regulation on the Avoidance of Packaging Waste) of 12 June 1991 (BGBl. 1991 I, p. 1234).

8 Paragraph 6(1) and (2) of the VerpackV lays down the following obligations:

'1. Distributors shall accept the return of used empty sales packaging from final consumers, free of charge, at, or in the immediate vicinity of, the actual point of delivery, recover the packaging in accordance with the requirements of point 1 of Annex I and fulfil the requirements of point 2 of Annex I. The recovery requirements may also be satisfied by reusing the packaging or passing it on to distributors or producers under subparagraph 2. The distributor must draw the attention of the private final consumer, by means of clearly visible, legible notices, to the fact that the packaging may be returned in accordance with the first sentence. The obligation under the first sentence applies only to packaging of the type, form and size and to packaging of goods that the distributor carries in his range. For distributors with a sales area of less than 200 square metres, the obligation to take back returned packaging applies only to packaging for brands which the distributor puts into circulation. In the case of a mail order business, the taking back of returned packaging shall be ensured by means of suitable return facilities within reasonable distance of the final consumer. The possibility of returning the packaging is to be referred to in the consignment and in catalogues. Where sales packaging does not come from private final consumers, the parties may make other arrangements regarding the place of return and the allocation of costs. Where distributors do not fulfil the obligations under the first sentence by accepting the return of packaging at the point of delivery, they shall ensure compliance with them by means of a system as provided for by subparagraph 3. In derogation from the first sentence, the recovery requirements in Paragraph 4(2) shall apply mutatismutandis to distributors of packaging who cannot participate in a system under subparagraph 3.

2. Producers and distributors shall accept free of charge at the place of actual delivery packaging returned to distributors under subparagraph 1, recover the packaging in accordance with the requirements of point 1 of Annex I and fulfil the requirements of point 2 of Annex I. The recovery requirements may also be satisfied by reusing the packaging. The obligations under the first sentence apply only to packaging of the type, form and size and to packaging of goods that the particular producer or distributor puts into circulation. The eighth, ninth and tenth sentences of subparagraph 1 shall apply mutatis mutandis.'

9 Under Paragraph 6(3), those obligations to take back and recover packaging may in principle also be met by participation of the producer or distributor in a global system for the collection of used sales packaging. The competent Land authority has the task of determining that the system fulfils the conditions imposed by the VerpackV with regard to its coverage rate.

10 Under Paragraph 8(1) of the VerpackV, distributors who put liquids for consumption into circulation in non-reusable drinks packaging are required to charge the purchaser a deposit of at least EUR 0.25 including value added tax per item of packaging. Where the net volume exceeds 1.5 litres, the deposit is to be at least EUR 0.50 including value added tax. The deposit is to be charged by each further distributor at every stage in the chain of distribution until sale to the final consumer. The deposit is to be repaid when the packaging is returned under Paragraph 6(1) and (2) of the VerpackV.

11 By virtue of Paragraph 9(1) of the VerpackV, this mandatory deposit is not to apply where the producer or distributor is exempt from the obligation to accept return of the packaging because he participates in a global collection system as referred to in Paragraph 6(3).

12 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. ...'

13 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.

14 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.

15 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

16 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).

17 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.

18 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.

19 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.

20 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.

21 By order of the President of the Court of 29 May 2002, the French Republic and the United Kingdom were granted leave to intervene in support of the Commission. By letter of 26 September 2002, the United Kingdom informed the Court that it would not be lodging a statement in intervention.

Subject-matter of the action and admissibility

22 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.

23 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.

24 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).

25 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).

26 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).

27 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.

28 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.

29 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.

30 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.

31 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.

32 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.

33 The action is therefore admissible.

Substance

34 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.

35 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.

36 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.

Applicability of Article 28 EC

37 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).

38 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.

39 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'.

40 Contrary 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.

41 As 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.

42 By 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.

43 Apart 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.

44 In 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.

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

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

47 Contrary 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.

48 However, 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.

49 Furthermore, 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.

50 The 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.

51 It 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.

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

Existence of a barrier to intra-Community trade

53 The 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.

54 The 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.

55 Suffice 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.

56 The 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.

57 As 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.

58 It 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.

59 While 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.

60 As 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.

61 Producers 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.

62 It 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).

63 It 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 Vande Haar and Kaveka de Meern [1984] ECR 1797, paragraph 14).

64 Contrary 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.

65 Nor 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.

66 Finally, 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.).

67 The 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).

68 As 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.

69 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

70 It 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.

71 The 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.

72 The 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.

73 In the German Government's submission, a deposit system for non-reusable packaging is appropriate and necessary in order to achieve the objectives sought, given that a measure is involved that is intended above all to change consumer behaviour. The charging of deposits on non-reusable packaging leads consumers to equate such packaging with reusable packaging.

74 Finally, the precautionary principle and the principle that preventive action should be taken, laid down in Article 174(2) EC, confer on the Member States a discretion in the interests of environment policy. According to the German Government, it would be impossible to exempt drinks transported over long distances from the obligation to charge a deposit given that such an exemption would not only give rise to distortion of competition among undertakings which market their products in non-reusable packaging but would deprive the promotion of reusable packaging provided for in Article 5 of Directive 94-62 of its practical effect. Nor would such an exemption be practicable since certain points of sale situated in Germany would not be far from places outside Germany where natural mineral water marketed in Germany is produced.

75 As 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).

76 As 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.

77 Furthermore, in so far as the rules at issue make the entry into force of a new packaging-waste management system conditional on the proportion of reusable packaging on the German market, they create a situation where any increase in sales of drinks in non-reusable packaging on that market makes it more likely that there will be a change of system. Inasmuch as those rules thus encourage the producers and distributors concerned to have recourse to reusable packaging, they contribute towards reducing the amount of waste to be disposed of, which constitutes one of the general objectives of environmental protection policy.

78 However, 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).

79 In 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.

80 However, 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.

81 In 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.

82 Thus, 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.

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

84 It 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

85 Under 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:

1.

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;

2.

Orders the Federal Republic of Germany to pay the costs;

3.

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