Language of document : ECLI:EU:C:1998:352


14 July 1998 (1)

(Regulation (EC) No 3093/94 — Measures to protect the ozone layer —Restrictions on the use of hydrochlorofluorocarbons and halons — Validity)

In Case C-284/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Giudice diPace di Genova (Italy) for a preliminary ruling in the proceedings pending beforethat court between

Safety Hi-Tech Srl


S. & T. Srl,

on the interpretation and validity of Council Regulation (EC) No 3093/94 of 15December 1994 on substances that deplete the ozone layer (OJ 1994 L 333, p. 1),


composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm andM. Wathelet (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida,

P.J.G. Kapteyn, D.A.O. Edward, P. Jann, L. Sevón and K.M. Ioannou(Rapporteur), Judges,

Advocate General: P. Léger,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

—    Safety Hi-Tech Srl, by Maurizio Maresca and Salvatore Elio La Rosa, of theGenoa Bar,

—    the Italian Government, by Professor Umberto Leanza, Head of the LegalService, Ministry of Foreign Affairs, acting as Agent, assisted by PierGiorgio Ferri, Avvocato dello Stato,

—    the Austrian Government, by D. Wolf Okresek, Ministerialrat in the FederalChancellor's Office, acting as Agent,

—    the Council of the European Union, by Anna Lo Monaco and GuusHouttuin, of its Legal Service, acting as Agents,

—    the Commission of the European Communities, by Laura Pignataro andAntonio Aresu, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Safety Hi-Tech Srl, represented by MaurizioMaresca; the Italian Government, represented by Pier Giorgio Ferri; the SpanishGovernment, represented by Rosario Silva de Lapuerta and Nuria Díaz Abad,Abogados del Estado, acting as Agents; the French Government, represented byRomain Nadal, Assistant Secretary for Foreign Affairs, Legal Affairs Directorateof the Ministry of Foreign Affairs, acting as Agent; the Council, represented byAnna Lo Monaco and Guus Houttuin; and the Commission, represented by LauraPignataro and Paolo Stancanelli, of its Legal Service, acting as Agent, at thehearing on 11 November 1997,

after hearing the Opinion of the Advocate General at the sitting on 3 February1998,

gives the following


    By order of 8 August 1995, received at the Court Registry on 28 August 1995, theGiudice di Pace di Genova (Justice of the Peace, Genoa) referred to the Court fora preliminary ruling under Article 177 of the EC Treaty a number of questions onthe interpretation and validity of Council Regulation (EC) No 3093/94 of 15December 1994 on substances that deplete the ozone layer (OJ 1994 L 333, p. 1,hereinafter 'the Regulation‘).

    Those questions were raised in proceedings between Safety Hi-Tech Srl(hereinafter 'Hi-Tech‘) and S. & T. Srl (hereinafter 'S. & T.‘) concerning theperformance of a contract between them for the sale of a product known as 'NAFS III‘, composed of hydrochlorofluorocarbons (hereinafter 'HCFCs‘), which isused for firefighting.

    According to the case-file in the national proceedings, Hi-Tech had contracted todeliver to S. & T. a quantity of that product for the price of LIT 3 213 000,including VAT. Under the contract, the product was to be stored by Hi-Tech andmade available to S. & T. in Genoa at the latter's request.

    On 4 August 1995, the date on which payment was to be made against presentationof an invoice by Hi-Tech to S. & T., the latter refused to take delivery of theproduct, contesting the validity of the contract on the ground that the use, andtherefore the marketing, of HCFCs for firefighting was prohibited by Article 5 ofthe Regulation.

    On 8 August 1995 Hi-Tech therefore applied for an order from the Giudice di Pacefor the payment to it by S. & T. of the agreed price, plus incidental charges andfees.

    In its application, Hi-Tech submitted that the prohibition on the use and marketingof HCFCs for firefighting relied on by S. & T. was illegal, contending that theRegulation was invalid on the ground that no similar prohibition had been imposedby the Regulation for other substances, such as halons, which are equally, or indeedmore, environmentally harmful. Hi-Tech considered the prohibition on the use andmarketing of HCFCs to be incompatible with Articles 130r, 30, 85 and 86 of theEC Treaty, and therefore asked the Giudice di Pace to seek a ruling from theCourt on the validity of the Regulation.

    As is apparent from its preamble, the purpose of the Regulation, whose legal basisis Article 130s(1) of the EC Treaty, which is designed to attain the objectives ofArticle 130r, is, having regard to scientific and technical data and the existence ofsubstitutes, to adopt measures in order progressively to eliminate substances whichdeplete the ozone layer.

    In particular, as is clear from the third, fourth and fifth recitals in its preamble, theRegulation was adopted in order to fulfil the commitments entered into by the

Community under the Vienna Convention of 22 March 1985 for the Protection ofthe Ozone Layer (hereinafter 'the Vienna Convention‘) and the Montreal Protocolof 16 September 1987 on Substances that Deplete the Ozone Layer (CouncilDecision 88/540/EEC of 14 October 1988, OJ 1988 L 297, p. 8), which wasamended on 29 June 1990 (see Council Decision 91/690/EEC of 12 December1991, OJ 1991 L 377, p. 28) and under the second amendment of the MontrealProtocol of 25 November 1992 on substances that deplete the ozone layer (seeCouncil Decision 94/68/EC of 2 December 1993, OJ 1994 L 33, p. 1), to whichinstruments the Member States and the Community are parties.

    Article 1 of the Regulation, which determines its scope, states that it is to apply tothe production, importation, exportation, supply, use and recovery of varioussubstances, referred to as 'controlled substances‘, which it lists and which includeHCFCs and halons.

    HCFCs are defined by the 12th indent of Article 2 of the Regulation as one of thecontrolled substances listed in Group VIII of Annex I, including their isomers. Halons are defined by the seventh indent of the same article as one of thecontrolled substances listed in Group III of Annex I, including their isomers.

    With respect in particular to the conditions governing the use of HCFCs, Article4(8), the second subparagraph of Article 4(9) and Article 4(10) of the Regulationlay down special conditions applicable to HCFCs marketed or used by producersor importers for their own account.

    All other use of HCFCs, apart from use by producers or importers for their ownaccount, is governed by Article 5 of the Regulation, entitled 'Control of the use ofhydrochlorofluorocarbons‘, which provides:

'1. From the first day of the sixth month following that of the entry into force ofthis Regulation, the use of hydrochlorofluorocarbons shall be prohibited except:

—    as solvents,

—    as refrigerants,

—    for the production of rigid insulating foams and integral-skin foams for usein safety applications,

—    in laboratory uses, including research and development,

—    as feedstock in the manufacture of other chemicals and

—    as carrier gas for sterilisation substances in closed systems.

2. From 1 January 1996 the use of hydrochlorofluorocarbons shall be prohibited:

—    in non-contained solvent uses including open-top cleaners and open-topdewatering systems without cold areas, in adhesives and mould-releaseagents when not employed in closed equipment, for drain cleaning wherehydrochlorofluorocarbons are not recovered and aerosols, apart from useas solvents for reagents in fingerprint development on porous surfaces suchas paper and apart from use as fixing agents for laser printers producedbefore 1 January 1996,

—    in equipment produced after 31 December 1995 for the following uses:

    (a) as refrigerants in non-confined direct-evaporation systems;

    (b) as refrigerants in domestic refrigerators and freezers;

    (c) in car air conditioning;

    (d) in road public-transport air conditioning.

3. From 1 January 1998 the use of hydrochlorofluorocarbons in equipmentproduced after 31 December 1997 for the following uses shall be prohibited:

—    in rail public-transport air conditioning,

—    as carrier gas for sterilisation substances in closed systems.

4. From 1 January 2000 the use of hydrochlorofluorocarbons in equipmentproduced after 31 December 1999 for the following uses shall be prohibited:

—    as refrigerants in public and distribution cold stores and warehouses,

—    as refrigerants for equipment of 150 kw and over, shaft input,

except where codes, safety regulations or other such constraints prevent the use ofammonia.

5. The importing, release for free circulation and placing on the market ofequipment for which a use restriction is in force under this Article shall beprohibited from the date on which that use restriction comes into force. Equipmentshown to be manufactured before the date of that use restriction shall not becovered by this prohibition.

6. The Commission may, in accordance with the procedure laid down in Article 16and in the light of technical progress, add to, delete items from or amend the listset out in paragraphs 1 to 4.‘

    With respect to halons, Article 3(3) of the Regulation provides, subject to certainexceptions laid down in Article 3(8) to (12), that:

'... each producer shall ensure that he produces no halons after 31 December 1993.

In the light of the nominations made by Member States the Commission shall, inaccordance with the procedure laid down in Article 16, apply the criteria set outin Decision IV/25 of the Parties to the Montreal Protocol in order to determineevery year any essential uses for which the production and importation of halonsmay be permitted in the Community after 31 December 1993 and those users whomay take advantage of those essential uses for their own account. Such productionand importation shall be allowed only if no adequate alternatives or recycled halonsare available from any of the Parties to the Protocol.

The Commission shall issue licences to those users identified as laid down in thesecond subparagraph and shall notify them of the use for which they haveauthorisation and the substances and the quantities of them that they areauthorised to use.

A producer may be authorised by the competent authority of the Member State inwhich his relevant production is situated to produce halons after 31 December 1993for the purpose of meeting the licensed demands presented by users identified aslaid down in the second subparagraph. The competent authority of the MemberState concerned shall notify the Commission in advance of its intention of issuingany such authorisation.‘

    Furthermore, Article 4(3) of the Regulation also provides, with respect to halons:

'... each producer shall ensure that he does not place any halons on the market oruse any for his own account after 31 December 1993.

The competent authority of the Member State in which a producer's production issituated may authorise him to place halons on the market after 31 December 1993for the purpose of meeting the licensed demands of those users identified as laiddown in Article 3(3).‘

    In addition, unless special authorisation has been granted by the Commission,Article 8(1) of the Regulation prohibits the release for free circulation in theCommunity of, inter alia, virgin, recovered or reclaimed halons imported fromStates not parties to the Protocol and Article 9 of the Regulation also prohibits therelease for free circulation in the Community of products containing, inter alia,halons imported from any State not party to the Protocol.

    As far as the use of halons is concerned, it is undisputed that the Regulationcontains no provision analogous to Article 5, which concerns the use of HCFCs.

    Having regard to the conditions relating to HCFCs and halons and to Hi-Tech'sarguments, the national court, considering that the outcome of the proceedingsbefore it depends on the validity of the Regulation, has stayed proceedings pendinga preliminary ruling on the following questions:

'1.    Is Council Regulation (EC) No 3093/94 to be interpreted (given that it mustcomply with Article 130r of the Treaty) as permitting the free use of halons(that is, products which have a serious impact on the environment), subjectonly to limitations on their production or on their use by producers, and noton their importation, but as prohibiting absolutely the use (and hence boththe production and the importation) of HCFCs (that is, of products whichhave little impact on the environment) for purposes not stated in Article 5?

2.    Is not the provision in point in Regulation No 3093/94 in substance ameasure having equivalent effect to a quantitative restriction in so far as, inthe absence of any of the grounds of justification under Article 36 of theTreaty, it restricts the free movement of a product throughout theCommunity?

3.    Does not the conduct of the Community and of its institutions, in adoptingRegulation No 3093/94, and particularly at the stages subsequent to itsadoption, constitute action of a public-law nature designed to reinforce thedominant position of certain operators, such action constituting in itself aninstance of serious abuse for the purposes of Article 86 of the Treaty?

4.    May legislation for the protection of the environment — and particularlyRegulation No 3093/94 — derogate (be interpreted as derogating) from theCommunity rules on competition (by thus permitting or facilitatingrestrictive agreements or the abuse of a dominant position) or are theprohibitions under those rules unconditional and not subject to derogation,precluding derogations or restrictions, whether introduced by theCommunity or by individual Member States?‘

    In order to give a helpful answer to the national court, it is necessary to delimit thescope of the questions in the light of the factual circumstances disclosed by thewording of the questions and by the documents forwarded by the national court.

    In that connection, it must be observed that the questions relate to the validity ofthe Regulation as a whole. However, the dispute in the main proceedings isconcerned only with the prohibition by the Regulation of the use and, whereappropriate, the marketing of HCFCs for use in firefighting, no other use of thosesubstances being involved. Accordingly, neither the provisions of the Regulationrelating to substances other than HCFCs nor the provisions of the Regulationrelating to other uses of HCFCs are at issue in the main proceedings.

Consequently, the validity of those provisions cannot be examined for the purposesof the preliminary ruling requested in this case.

The first question

    By its first question, the national court seeks to ascertain, first, whether Article 5of the Regulation prohibits the use and, consequently, the marketing of HCFCs forfirefighting and, second, raises the problem of the legality of that prohibition in thelight of Article 130r of the Treaty.

The interpretation of Article 5 of the Regulation

    It should be noted at the outset that the Regulation, including Article 5 thereof, isintended to implement the commitments given by the Community under the ViennaConvention and the Montreal Protocol and the second amendment thereto.

    It is settled law that Community legislation must, so far as possible, be interpretedin a manner that is consistent with international law, in particular where itsprovisions are intended specifically to give effect to an international agreementconcluded by the Community (see to that effect Case C-61/94 Commission vGermany [1996] ECR I-3989, paragraph 52).

    By virtue of Article 2(3) of the Vienna Convention, the parties to that conventionmay adopt more severe domestic measures provided that they are intended, havingregard to scientific evaluations, to promote the use of substitutes that are lessharmful to the ozone layer.

    To that end, the sixth recital in the preamble to the Regulation indicates that, inthe light of scientific evidence in particular, it is appropriate in certain cases tointroduce control measures which are more severe than those of the secondamendment to the Montreal Protocol.

    It is in order to attain that objective that Article 5 of the Regulation prohibits theuse of HCFCs.

    That general prohibition, which applies with effect from 1 June 1995, is, however,subject to a series of exceptions exhaustively listed in Article 5(1) of the Regulation. Thus, under that provision HCFCs may be used after 1 June 1995 as solvents, asrefrigerants, for the production of rigid insulating foams and integral-skin foams foruse in safety applications, in laboratory uses, including research and development,as feedstock in the manufacture of other chemicals and as carrier gas forsterilisation substances in closed systems.

    Moreover, in accordance with the general prohibition on use, Article 5(2), (3) and(4) of the Regulation prohibit other uses of HCFCs as from 1 January 1996, 1January 1998 and 1 January 2000.

    It is clear from those provisions that the use of HCFCs for firefighting is notprovided for by the Regulation, with the result that their use is prohibited, by virtueof Article 5(1) of the Regulation, as from 1 June 1995.

    The question must therefore be considered whether the total prohibition of the useof HCFCs for firefighting means that their marketing is also prohibited.

    The marketing of HCFCs for firefighting is not mentioned in Article 5 of theRegulation. However, in so far as the release of HCFCs into commercial channelsfor those purposes is a step preparatory to the use of such substances and has noaim other than their use for those same purposes, it must be concluded that,because the use of HCFCs has been totally prohibited since 1 June 1995, themarketing of them for firefighting must also be regarded as prohibited from thatdate.

    That interpretation is borne out both by Article 3 and by Articles 6 to 13 of theRegulation, which relate respectively to the production of controlled substances andto the importation of them, which are also steps preparatory to their use. The factthat those provisions do not mention the production or import of HCFCs forfirefighting indicates that the Community legislature, having imposed a generalprohibition on the use of such substances for such purposes, considered that itwould be pointless to lay down rules for the production, import and, consequently,the marketing of those substances.

    Consequently, Article 5 of the Regulation must be interpreted as entirelyprohibiting the use, and therefore the marketing, of HCFCs for firefighting.

The legality of the prohibition on the use of HCFCs in the light of Article 130r of theTreaty

    Hi-Tech considers that the prohibition on the use of HCFCs for firefighting isillegal under Article 130r of the Treaty since the Council, by not observing theobjective, the principles and the criteria of that provision, exceeded the bounds ofthe discretion conferred on it.

    The Council, on the other hand, maintains that Article 130r of the Treaty confersa discretion on it and that the Court is not entitled to review its exercise of thatdiscretion. It also contends that that provision grants it a wide discretion regardingthe measures it chooses to adopt in order to implement the environmental policy.

Only if such measures were manifestly inappropriate having regard to the aimpursued would their legality be in issue.

    Article 130r of the Treaty provides:

'1.    Community policy on the environment shall contribute to pursuit of thefollowing objectives:

—    preserving, protecting and improving the quality of the environment;

—    protecting human health;

—    prudent and rational utilisation of natural resources;

—    promoting measures at international level to deal with regional or worldwideenvironmental problems.

2.    Community policy on the environment shall aim at a high level of protectiontaking into account the diversity of situations in the various regions of theCommunity. It shall be based on the precautionary principle that preventive actionshould be taken, that environmental damage should as a priority be rectified atsource and that the polluter should pay ...


3.    In preparing its policy on the environment, the Community shall takeaccount of:

—    available scientific and technical data;

—    environmental conditions in the various regions of the Community;

—    the potential benefits and costs of action or lack of action;

—    the economic and social development of the Community as a whole and thebalanced development of its regions.

4.     ...‘

    That provision thus sets a series of objectives, principles and criteria which theCommunity legislature must respect in implementing environmental policy.

    However, in view of the need to strike a balance between certain of the objectivesand principles mentioned in Article 130r and of the complexity of theimplementation of those criteria, review by the Court must necessarily be limitedto the question whether the Council, by adopting the Regulation, committed a

manifest error of appraisal regarding the conditions for the application of Article130r of the Treaty.

    It is therefore necessary to verify whether, having regard to its objective, theRegulation was adopted in breach of Article 130r of the Treaty.

    Hi-Tech advances three arguments in that respect.

    First, it submits that the Regulation, by authorising the use of other substances,such as halons, does not take account of two other fundamental parameters forenvironmental protection, namely the HCFCs Global Warming Potential(hereinafter 'GWP‘) and their Atmospheric Lifetime (hereinafter 'ALT‘), factorswhich should be taken into account together with the Ozone Depletion Potential(hereinafter 'ODP‘). According to Hi-Tech, if all those factors were taken intoconsideration, HCFCs would be found to be much less harmful than halons. Consequently, the Regulation, by taking account only of the ODP and laying downonly measures to combat depletion of the ozone layer, did not ensure protectionof the environment as a whole, as required by Article 130r of the Treaty, but onlyof part of it.

    It must first be observed that the lack of any prohibition on the use of othersubstances, even if assumed to be illegal, could not in itself affect the validity of theprohibition on the use of HCFCs.

    As to the complaint concerning the failure to take account of the GWP and theALT of HCFCs, it must be borne in mind that Article 130r(1) of the Treatyprovides, among other objectives of Community environmental policy, for theprotection and improvement of the quality of the environment.

    As the Court held in Case C-379/92 Peralta [1994] ECR I-3453, paragraph 57,Article 130r is confined to defining the general objectives of the Community in thematter of the environment. Responsibility for deciding what action is to be takenis conferred on the Council by Article 130s. Moreover, Article 130t states that theprotective measures adopted jointly pursuant to Article 130s are not to prevent anyMember State from maintaining or introducing more stringent protective measurescompatible with the Treaty.

    It does not follow from those provisions that Article 130r(1) of the Treaty requiresthe Community legislature, whenever it adopts measures to preserve, protect andimprove the environment in order to deal with a specific environmental problem,to adopt at the same time measures relating to the environment as a whole.

    It follows that Article 130r(1) of the Treaty authorises the adoption of measuresrelating solely to certain specified aspects of the environment, provided that such

measures contribute to the preservation, protection and improvement of the qualityof the environment

    In that connection, as is apparent from its title, the aim of the Regulation is tocontrol substances that deplete the ozone layer. The fact that only that aspect ofenvironmental preservation, protection and improvement is referred to by theRegulation cannot therefore be regarded as incompatible with the purpose ofArticle 130r(1) of the Treaty.

    Secondly, according to Hi-Tech, by authorising the use of halons, which display amuch higher ODP than HCFCs and therefore represent a much greater threat toozone, the Regulation failed to ensure a high level of environmental protection asrequired by Article 130r(2) of the Treaty.

    As far as that requirement is concerned, it must be observed that the Regulationensures a high level of protection. It is clear from the fourth and fifth recitals inits preamble that, in the light of scientific evidence and with a view to fulfilling theCommunity's obligations under the Vienna Convention and the second amendmentto the Montreal Protocol, the purpose of the Regulation is to lay down measuresto control, in particular, the use of HCFCs. The sixth recital, moreover, states that,in the light of scientific evidence in particular, it is appropriate in certain cases tointroduce control measures which are more severe than those of the secondamendment to the Protocol. By prohibiting, in Article 5(1) of the Regulation, theuse of HCFCs and thereby adopting a more stringent measure than that derivingfrom its international obligations, the Community legislature did not infringe therequirement of a high level of protection laid down in Article 130r(2) of the Treaty.

    Finally, whilst it is undisputed that Article 130r(2) of the Treaty requiresCommunity policy in environmental matters to aim for a high level of protection,such a level of protection, to be compatible with that provision, does not necessarilyhave to be the highest that is technically possible. As stated in paragraph 43 of thisjudgment, Article 130t of the Treaty authorises the Member States to maintain orintroduce more stringent protective measures.

    Lastly, Hi-Tech considers that, by not prohibiting the use of other substances alsointended for firefighting, including hydrofluorocarbons and perfluorocarbons, theRegulation did not take account of the available scientific and technical data, asrequired by Article 130r(3) of the Treaty, because those substances, the GWP andALT of which are considerable, are more damaging to the environment thanHCFCs, the ODP, GWP and ALT for which are regarded as acceptable.

    Article 130r(3) of the Treaty requires the Community, in preparing its policy on theenvironment, to take account in particular of available scientific and technical data. However, the Regulation cannot be regarded as failing to meet that requirement.

    In addition to taking account of the scientific evidence, as indicated in the fourthand fifth recitals in its preamble, the Regulation states, in the seventh recital, that'a periodical review of the permitted uses of ozone-depleting substances ... isdesirable‘ and, in the eighth recital, that 'it is necessary to keep under review theevolution of the market in ozone-depleting substances, particularly in order toensure sufficient supply for essential uses, and the state of development ofappropriate substitutes, but also to keep to a minimum the imports of virgin,recovered and reclaimed ozone-depleting substances released for free circulationin the European Community‘.

    It is precisely in order to take account of the available scientific and technical datathat Article 5(6) of the Regulation, dealing with the use of HCFCs, provides thatthe Commission may, in the light of technical progress, add to, delete items fromor amend the list of prohibited uses.

    In addition, it is clear from the case-file in the proceedings before the nationalcourt that, when the Regulation was adopted, there were, from the scientific pointof view, alternatives to the use of HCFCs, involving recourse to products lessharmful to the ozone layer, such as water, powder and inert gases.

    The Community legislature, by imposing the prohibition on the use, and hence themarketing, of HCFCs for firefighting, did not therefore commit any manifest errorof appraisal. That being so, the complaint examined above, alleging that theRegulation is unlawful on the ground that it is contrary to Article 130r of theTreaty, must be rejected.

    Hi-Tech also considers that the prohibition on the use, and hence the marketing,of HCFCs for firefighting is disproportionate in relation to the aim ofenvironmental protection.

    In considering that complaint, it must be borne in mind that, according to settledcase-law, in order to establish whether a provision of Community law complies withthe principle of proportionality, it must be ascertained whether the means whichit employs are suitable for the purpose of attaining the desired objective andwhether they go beyond what is necessary for that purpose (see, in particular, CaseC-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraph 54).

    In view of the objective of the Regulation, which is to protect the ozone layer, itmust be held that the means employed by the Regulation, in Article 5(1), namelythe prohibition on the use, and hence the marketing, of HCFCs for firefighting, wassuitable for the purpose of attaining that objective. In view, however, of the factthat other substances that are equally, or indeed more, harmful to the ozone layer,such as halons, are authorised for firefighting, it is necessary to determine whetherthat prohibition exceeds the limitations inherent in observance of the principle ofproportionality.

    It need merely be recalled that, as is clear from the case-file in the proceedingsbefore the national court, halons display an extinguishing capability which is nototherwise available, particularly in dealing with fires in small spaces, and are ofextremely low toxicity, whereas, to achieve the same result, a larger quantity ofHCFCs would be needed, entailing a greater toxic impact.

    Since, as indicated in paragraph 54 of this judgment, there are effective substitutesfor HCFCs such as water, powder and inert gases and, as indicated in paragraph59, for certain essential uses there are irreplaceable substitutes such as halons, theprohibition of using HCFCs cannot be regarded as contrary to the principle ofproportionality.

    It must therefore be concluded that examination of Article 5(1) of the Regulation,in the light of Article 130r of the Treaty, has disclosed no factor of such a kind asto affect its validity.

The second question

    By its second question, the national court seeks to ascertain whether, in the lightof Article 30 of the Treaty, the prohibition laid down in Article 5(1) of theRegulation on the use and marketing of HCFCs for firefighting is valid.

    It is settled law that the prohibition of quantitative restrictions and of all measureshaving equivalent effect applies not only to national measures but also to measuresadopted by the Community institutions (see in particular Case 15/83 DenkavitNederland v Hoofdproduktschap voor Akkerbouwprodukten [1984] ECR 2171,paragraph 15, and Case C-51/93 Meyhui v Schott Zwiesel Glaswerke [1994] ECR I-3879, paragraph 11).

    Environmental protection has already been considered by the Court to be one ofthe essential objectives of the Community (see Case 240/83 Procureur de laRépublique v Association de Défense des Brûleurs d'Huiles Usagées [1985] ECR 531,paragraph 13). In Case 302/86 Commission v Denmark [1988] ECR 4607,paragraph 9, the Court held that protection of the environment is an imperativerequirement which may limit the application of Article 30 of the Treaty.

    However, Hi-Tech considers that, in the light of Article 30 of the Treaty, theprinciple of proportionality has not been observed.

    In that regard, it need merely be pointed out that, as is clear from the objective ofthe Regulation and from the considerations set out in paragraphs 59 to 61 of thisjudgment, a prohibition on the use and marketing of HCFCs which is designed toprotect the ozone layer cannot be regarded as disproportionate to the aim pursued.

    It must therefore be stated that consideration of the question referred has disclosedno factor of such a kind as to affect the validity of Article 5 of the Regulation.

The third and fourth questions

    By its third and fourth questions, the national court seeks essentially to ascertain,first, whether Article 5(1) of the Regulation, by prohibiting the use and marketingof HCFCs, has the effect of favouring, contrary to Article 85 of the Treaty, arestrictive agreement or practice on the part of producers and sellers of othersubstances which are authorised by the Regulation or an abuse of a dominantposition by such producers and sellers, contrary to Article 86 of the Treaty, and,second, whether the abovementioned provision of the Regulation may, as aprovision ensuring protection of the ozone layer, justify exceptions to Articles 85and 86 of the Treaty.

    In that connection, it should be noted that, according to settled case-law, the needto provide an interpretation of Community law which will be of use to the nationalcourt makes it necessary that the national court define the factual and legal contextof the questions it is asking or, at the very least, explain the factual circumstanceson which those questions are based (see in particular the judgment in Joined CasesC-320/90, C-321/90 and C-392/90 Telemarsicabruzzo and Others [1993] ECR I-393,paragraph 6, and the order in Case C-157/92 Banchero [1993] ECR I-1085,paragraph 4).

    As the Court held in Telemarsicabruzzo and in Banchero, cited above (paragraphs7 and 5 respectively), those requirements are of particular importance in certainareas, such as that of competition, which are characterised by complex factual andlegal situations.

    However, the order for reference does not contain sufficient information to satisfythose requirements.

    The order merely repeats exactly the arguments put forward by Hi-Tech which, asthat party conceded at the hearing before the Court, do not explain how thatprohibition might favour agreements or concerted practices. Nor do they give theinformation needed to define the relevant market or explain the impact which theprohibition on the marketing of HCFCs has on the functioning of that market. Moreover, the national court merely referred to Articles 85 and 86 of the Treatywithout indicating the precise reasons which prompted it to query the validity, inrelation to the situation before it, of the prohibition laid down by Article 5(1) ofthe Regulation.

    Thus, the information in the order for reference, in so far as it refers withinsufficient precision to the situations of law or fact to which the national court is

referring, do not enable the Court to give a helpful interpretation of Communitylaw.

    Accordingly, it must be held, pursuant to Articles 92 and 103(1) of the Rules ofProcedure, that the third and fourth questions referred to the Court are manifestlyinadmissible.


    The costs incurred by the Italian, Spanish, French and Austrian Governments andthe Commission of the European Communities, which have submitted observationsto the Court, are not recoverable. Since these proceedings are, for the parties tothe main proceedings, a step in the action pending before the national court, thedecision on costs is a matter for that court.

On those grounds,


in answer to the questions referred to it by the Giudice di Pace di Genova by orderof 8 August 1995, hereby rules:

1.    Article 5 of Council Regulation (EC) No 3093/94 of 15 December 1994 onsubstances that deplete the ozone layer must be interpreted as prohibitingentirely the use and, consequently, the marketing ofhydrochlorofluorocarbons for firefighting.

2.    Consideration of the questions submitted has not disclosed any factor ofsuch a kind as to affect the validity of Regulation No 3093/94.

Rodríguez Iglesias

            Wathelet                    Mancini

Moitinho de Almeida




Delivered in open court in Luxembourg on 14 July 1998.

R. Grass

G.C. Rodríguez Iglesias



1: Language of the case: Italian.