Joined Cases C-14/06 and C-295/06

European Parliament

and

Kingdom of Denmark

v

Commission of the European Communities

(Directive 2002/95/EC – Electrical and electronic equipment – Restriction of use of certain hazardous substances – Decabromodiphenyl ether (‘DecaBDE’) – Commission Decision 2005/717/EC – Exemption of DecaBDE from the prohibition on use – Actions for annulment – Commission’s implementing powers – Infringement of the enabling provision)

Summary of the Judgment

1.        Approximation of laws – Restriction of the use of hazardous substances in electrical and electronic equipment – Directive 2002/95 – Implementing powers conferred by the Council on the Commission – Limits

(Art. 202, third indent, EC; European Parliament and Council Directive 2002/95, Arts 4(1) and 5(1); Commission Decision 2005/717)

2.        Actions for annulment – Judgment annulling a measure – Effects – Limitation by the Court

(Art. 231, second para., EC; European Parliament and Council Directive 2002/95, Arts 4 and 5, and Annex, point 10; Commission Decision 2005/717)

1.        Within the framework of the implementing powers, conferred by the Council on the Commission as provided for in the third indent of Article 202 EC, the limits of which must be determined by reference amongst other things to the essential general aims of the legislation in question, the Commission is authorised to adopt all the measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to it.

Commission Decision 2005/717 amending for the purposes of adapting to technical progress the Annex to Directive 2002/95 on the restriction of the use of certain hazardous substances in electrical and electronic equipment, which, inter alia, exempts all the polymeric applications of Decabromodiphenyl ether (DecaBDE), is based on that directive and, in particular, on Article 5(1)(b) thereof, which specifies the conditions for exemption from the principle of prohibition laid down in Article 4(1) of that directive on certain substances and components, including DecaBDE, in that equipment, and must therefore be interpreted strictly.

That decision, which is equivalent to a general exemption for the use of DecaBDE in electrical and electronic equipment, was adopted when the conditions laid down by the Community legislature in that Article 5(1) of Directive 2002/95 had not been met and runs counter to the objective pursued by that legislature of establishing the principle of the prohibition of the components referred to in that directive. In adopting that decision as regards the exemption of DecaBDE, the Commission thus infringed Article 5(1).

(see paras 52-53, 56, 71, 76, 78)

2.        Under the second paragraph of Article 231 EC the Court, if it considers it necessary, is to state which of the effects of a regulation which it has declared void are to be considered as definitive. Such a provision can also be applied to a decision adopted to amend an annex contained in a directive. Account taken of the fact that the dispute has essentially arisen over the manner in which Directive 2002/95 on the restriction of the use of certain hazardous substances in electrical and electronic equipment was drafted, particularly over the very complex relationship between Articles 4 and 5 of that directive and point 10 in the Annex thereto, and the fact that the Commission adopted Decision 2005/717 amending for the purposes of adapting to technical progress the Annex to that directive nine months before the prohibition on DecaBDE took effect, the Court may, even of its own motion, in order to take account of the interests of the undertakings concerned, maintain the effects of the annulled provision, on grounds of legal certainty, for a strictly necessary adaptation period.

(see paras 84-86)