Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 15 February 2019 — X, other parties: College van burgemeester en wethouders van de gemeente Purmerend, Tamoil Nederland B.V.
(Case C-120/19)
Language of the case: Dutch
Referring court
Raad van State
Parties to the main proceedings
Applicant: X
Other parties: College van burgemeester en wethouders van de gemeente Purmerend, Tamoil Nederland B.V.
Questions referred
a. Must Article 5(1) of Directive 2008/68/EC 1 be interpreted as precluding a licensing condition, included in the licence for the LPG service station, which stipulates that the individual LPG service station concerned may exclusively be supplied by LPG road tankers that are fitted with a heat-resistant lining whereas that obligation is not directly imposed on one or more operators of LPG road tankers?
b. In answering the first question, does it matter that the Member State has concluded an agreement in the form of the ‘Safety Deal hittewerende bekleding op LPG-autogastankwagens’ (‘Safety Deal on heat-resistant lining on LPG automotive-fuel road tankers’) with organisations of market participants in the LPG industry (including operators of LPG service stations, producers, sellers and carriers of LPG), in which the parties have committed themselves to implementing the heat-resistant lining and that, subsequently, that Member State issued a circular such as the ‘Circulaire effectafstanden externe veiligheid LPG-tankstations voor besluiten met gevolgen voor de effecten van een ongeval’ (‘Circular on safety distances external safety LPG service stations for decisions with consequences for the effects of an accident’), in which an additional risk policy is laid down that is based on the assumption that LPG service stations are supplied by means of road tankers fitted with a heat-resistant lining?
a. If a national court is assesses the lawfulness of an enforcement decision aimed at enforcing compliance with a licensing condition that has become legally unchallengeable and is contrary to EU law:
– does EU law, in particular the case-law of the Court of Justice on national procedural autonomy, allow the national court in principle to proceed on the assumption of the legality of such a licensing condition, unless it is clearly contrary to higher law, including EU law? And if so, does EU law impose (additional) conditions on that exception?;
– or does EU law entail, having regard to the judgments of the Court of Justice in Ciola (Case C-224/97, EU:C:1999:212) and Man Sugar (Case C-274/04, EU:C:2006:233), that the national court should disregard such a licensing condition because it is contrary to EU law?
b. In answering question 2 a., is it relevant whether the enforcement decision is a remedy or a criminal charge?
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1 Directive 2008/68/EC of the European Parliament and of the Council of 24 September 2008 on the inland transport of dangerous goods (OJ 2008 L 260, p. 13).