The Swedish legislation laying down a general prohibition on the use of trichloroethylene for industrial purposes is justified on grounds of protection of public health
The Swedish undertaking Toolex is a manufacturer of machine parts which are used in the production of compact discs. For this purpose it uses trichloroethylene to remove residues of grease produced during the manufacturing process. Like another 200 or so undertakings, it applied to the Swedish authorities for permission to use this substance, classified as a carcinogen, as harmful to health and as dangerous to the environment by the Community legislation.
By decision of 18 June 1996 the Chemicals Inspectorate rejected Toolex's application on the ground that, like 90% or so of the applicant undertakings, it had not submitted a plan for eventually discontinuing its use of trichloroethylene. Toolex contested that decision before the Länsrätten i Stockholm län (County Administrative Court, Stockholm), which annulled the Chemicals Inspectorate's decision on the ground that the Swedish legislation relating to the matter was inconsistent with Community law.
The Chemicals Inspectorate appealed against that decision before the Kammarrätten i Stockholm (Court of Appeal) which asked the Court of Justice whether it was possible for a Member State to prohibit the use of trichloroethylene for industrial purposes and to grant, under certain conditions, individual exemptions.
The Court, after analysing the Community legislation in force relating to dangerous substances, observed that the Commission had not yet made use of its power to propose Community measures relating to trichloroethylene.
That being so, the Court held that Community law does not prevent a Member State from regulating the industrial use of trichloroethylene. It went on to consider whether such regulation was compatible with Community law.
National legislation such as that at issue in the case constitutes, in the eyes of the Court, a measure having an effect equivalent to a quantitative restriction on imports. The general prohibition it lays down and the obligation laid on economic operators to apply for an exemption constitute measures liable to bring about a reduction in the volume of imports of trichloroethylene into Sweden.
However, the Court held, such a restriction is compatible with the Treaty if it seeks to protect the health and safety of humans.
Taking account of the latest medical research in the matter and the difficulties in establishing, as things stand, the threshhold above which exposure to trichloroethylene poses a serious health risk to humans, there was no evidence in the case which would enable the Court to hold that national legislation such as the Swedish legislation goes beyond what is necessary to provide effective protection of the health and life of humans.
Thus, the Court held that that legislation is proportionate to the objective of protecting public health. The grant of individual exemptions is, in particular, subject to requirements which are compatible with what is known as the "substitution" principle consisting in the elimination or reduction of risks to the safety and health of workers by replacing one dangerous substance by another, less dangerous substance.
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