78) Before the Court of Justice of the European Communities ECJ

Pubblico Ministero v. Tullio Ratti (Case 148/78) Before the Court of Justice of the European Communities ECJ (Presiding, Mertens de Wilmars P.C.; Lord...
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Pubblico Ministero v. Tullio Ratti (Case 148/78) Before the Court of Justice of the European Communities ECJ (Presiding, Mertens de Wilmars P.C.; Lord Mackenzie Stuart P.C.; Pescatore, S orensen, O'Keeffe, Bosco and Touffait JJ.) Herr Gerhard Reischl, Advocate General. 5 April 1979 Reference by the Pretura Penale, Milan, under Article 177 EEC. Directives. Direct effect. After the expiration of the period fixed for the implementation of a directive, a member-State may not apply its internal law--even if it is provided with penal sanctions --which has not yet been adapted in compliance with the directive, to a person who has complied with the requirements of the directive, if those requirements are unconditional and sufficiently precise. [22]-[24] Legislation. Occupied field. Where a directive provides that only solvents which comply with its provisions may be placed on the market and that member-States are not entitled to maintain different, parallel, rules for the domestic market, that constitutes a prohibition on national rules which are more restrictive or more detailed than or different from those in the directive as regards classification, packaging and labelling. Thus it is not permissible for national provisions to require that containers should bear a statement of the presence of ingredients of the product in question in terms going beyond those laid down in the directive. [27], [33] Imports. Health restrictions. When, pursuant to Article 100 EEC, Community directives provide for the harmonisation of measures necessary to ensure the protection of the health of

persons and animals and establish Community procedures to supervise enforcement, recourse to Article 36 EEC ceases to be justified and any restrictions on free movement on those grounds must be carried out in accordance with the scheme laid down in the directive. [36] Directives. Direct effect. A directive cannot bring about with respect to any individual who has complied with its provisions before the expiration of the implementation period prescribed for the member-States any effect capable of being taken into consideration by national courts. [47] *97 The Court interpreted Article 189 EEC and Directives 73/173 and 77/728 in the context of a prosecution brought in the Italian courts against an individual who had labelled his products in compliance with the directives but not in compliance with Italian legislation, neither directive having been received into Italian law and the time limit for doing so having expired for the first, but not the second, directive, to the effect that compliance with the former directive was adequate irrespective of differing national rules but that he could not rely upon the second directive since it had not yet entered into effect for citizens. Representation Mr. De Falco for the accused. Mr. Fornasier, legal adviser to the E.C. Council, for the Council as amicus curiae. Mr. Alessi, legal adviser to the E.C. Commission, for the Commission as amicus curiae. The following case was referred to by the Court of Justice: 1. Verbond Van Nederlandse Ondernemingen v. Inspecteur der Invoerrechten en Accijnzen (51/76), 1 February 1977: [1977] 1 C.M.L.R. 413; [1977] E.C.R. 126. The following additional cases were referred to by the Advocate General: 2. Franz Grad v. Finanzamt Traunstein (9/70), 6 October 1970: [1971] C.M.L.R. 1; [1970] E.C.R. 825. 3. Van Duyn v. Home Office (41/74), 4 December 1974: [1975] 1 C.M.L.R. 1; [1974] E.C.R. 1337. 4. S.A.C.E. v. Italian Ministry of Finance (33/70), 17 December 1970: [1971] C.M.L.R. 123; [1970] E.C.R. 1213. 5. Enka BV v. Inspecteur der Invoerrechten en Accijnzen (38/77), 23 November 1977: [1978] 2 C.M.L.R. 212; [1977] E.C.R. 2203. 6. Simmenthal SpA v. Italian Minister for Finance (35/76), 15 December 1976: [1977] 2 C.M.L.R. 1; [1976] E.C.R. 1871. 7. Tedeschi v. Denkavit Commerciale Srl (5/77), 25 October 1977: [1978] 1 C.M.L.R. 1; [1977] E.C.R. 1555.

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Facts The board of directors of the undertaking Silvam, of Senago (Milan), represented by Mr. Ratti, decided to package its solvents and to affix to the container labels conforming to Council Directive 73/173/EEC of 4 June 1973. It also decided that Council Directive 77/728/EEC of 7 November 1977 would be applied to its varnishes. *98 Those two directives have not yet been incorporated into the Italian legal system: Act 245 of 5 March 1963, [FN1] applying both to solvents and varnishes, remains in force in Italy at the present time. FN1 [1963] G.U.R.I. 1451. Act 245 is in some aspects more stringent than the aforesaid directives (it requires in all cases an indication of the quantity of benzene, toluene and xylene in the solvent or varnish) and in others less so (it does not require a reference to all the ingredients considered to be toxic, corrosive, irritant, oxidising or highly inflammable) than the aforesaid directives. This causes difficulties both as regards products manufactured in Italy and imported products. Mr. Ratti was prosecuted by the Pubblico Ministero for an infringement of Act 245 before the Fifth Criminal Chamber of the Pretura, Milan. Considering that the dispute raised questions involving the interpretation of Community law, the Pretura referred the following preliminary questions to the Court of Justice: (a) Does Council Directive 73/173/EEC of 4 June 1973, in particular Article 8 thereof, constitute directly applicable legislation conferring upon individuals personal rights which the national courts must protect? (b) Is it lawful, notwithstanding the provisions set out in the said Article, to prescribe in national legislation obligations and limitations which are more precise and detailed than, or at all events different from, those set out in the directive, and might the foregoing be considered an obstacle to the free movement of and trade in the goods and products covered by that directive, namely solvents, in that such obligations and limitations directly affect the establishment and operation of the Common Market, having regard to the obligation imposed by national legislation to affix to containers information which is not required by the directive? (c) In particular, may the duty to indicate, on the container of the solvent or product offered for sale, that it contains benzene, toluene and xylene, specifying the total percentage of those substances and, separately, that of benzene alone, pursuant to section 8 of Act 245 of 5 March 1963 , be considered incompatible with the said directive, either because of the obligatory nature of the duty to provide the information (failure to do so being punishable under the criminal law) or by reason of the detailed rules laid down for discharging that duty, having

regard also to the general reasoning upon which the said directive appears to be based? (d) Do the said national provisions, which are applicable without distinction to all goods placed on the domestic market, *99 nevertheless constitute an obstacle, a prohibition or a restriction on trade in and the free movement of such goods, even if such provisions were enacted for the purpose of ensuring greater protection for the physical safety of users of the products in question (and indeed a considerable volume of scientific literature, at least from the 1960s onwards, emphasises the dangers inherent in substances such as benzene, toluene and xylene, especially for workers who may often have to use solvents which, unknown to them, contain a high percentage of such substances, but not only for workers, since any consumer who uses a varnish containing the said substances may risk grave injury to his health)? (e) Is Council Directive 77/728/EEC of 7 November 1977, in particular Article 9 thereof, immediately and directly applicable with regard to the obligations imposed on member-States to refrain from action from the date of notification of that directive in a case where a person, acting upon a legitimate expectation, has complied with the provisions of that directive before expiry of the period within which the member-States must comply with the said directive? Opinion of the Advocate General (Herr Gerhard Reischl) The reference for a preliminary ruling on which I have to deliver an opinion today concerns two Council directives which were issued in order to eliminate obstacles to trade between member-States due to differences in national provisions of a technical nature. We are concerned with Directive 73/173 of 4 June 1973 on the approximation of member-States' laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous preparations (solvents) [FN2] and Directive 77/728 of 7 November 1977 on the approximation of the laws, regulations and administrative provisions of the member-States relating to the classification, packaging and labelling of paints, varnishes, printing inks, adhesives and similar products. [FN3] FN2 [1973] O.J. L189/7. FN3 [1977] O.J. L303/23. The first of the above-mentioned directives contains provisions in its first two Articles concerning certain toxic and harmful substances. These are grouped into classes and sub-classes to which particular indices are assigned. Articles 4 to 6 deal with questions of packaging and labelling, and prescribe in particular that an indication of certain information concerning the toxic and harmful substances shall be given. Under Article 7 member-States may, to a certain extent, permit derogations from these requirements. Article 3 *100 provides that 'memberStates shall take all necessary measures to ensure that dangerous preparations (solvents) cannot be placed on the market unless they comply with the provisions of this directive and the annex thereto'. Article 8 provides that 'member-States

shall not prohibit, restrict or impede on the grounds of classification, packaging or labelling as defined in this directive, the placing on the market of dangerous preparations which satisfy the requirement of this directive and the annex thereto'. Article 11 requires member-States to 'introduce the provisions necessary to comply with this directive within eighteen months from its communication'. Directive 77/728 enacts analogous provisions for paints containing certain dangerous substances. For its implementation, however, Article 12 lays down a period of 24 months from its notification; this period, unlike the one prescribed in Article 11 of Directive 73/173, has not yet expired and will not do so until November of this year. Italy has not yet provided for the implementation of these directives. There is merely an Act No. 256 of 29 May 1974 and a Ministerial Decree of 17 December 1977 pursuant to the outline Directive 67/548 of 27 June 1967 [FN4]--amended by Directive 73/146 --which forms the basis of the two directives on solvents and varnishes with which we are concerned now. So in Italy, as regards those substances, Act 245 of 15 March 1963 is still in force, applying both to goods produced and marketed in Italy and to imported goods. It makes mandatory provisions for labelling which in part are less stringent than the provisions of the directives--because only certain substances (benzene, toluene and xylene) require an indication--and in part exceed the requirements of the directives, in that they refer to concentrations, which are not dealt with in the directives, and they require, moreover, that the quantities of the substances concerned be indicated in percentages. Section 12 of the Act provides that anyone failing to comply with these provisions may be fined. FN4 [1967] J.O. 196/1. That is what faces the accused in the main action, the legal representative of the Italian undertaking Silvam. Criminal proceedings were instituted against him in the Pretura in Milan, because Silvam had begun to apply the labelling prescribed in Directive 73/173 to its containers of solvents and to comply with Directive 77/728 as regards varnishes. Apparently the products concerned include varnishes imported from the Federal Republic of Germany where the directives are already applied. In his defence the accused relies upon the said Community directives. He points out that according to the case law of the Court individuals may acquire rights under directives if certain requirements are fulfilled. He submits that that applies to Directive 73/173 which should already have been implemented. Only in Article 7 *101 does it leave a narrow latitude for derogations, and presumably the derogations themselves created absolute obligations. At all events it must be assumed that the obligation contained in Article 8 has direct effect. But the same applies also to the corresponding obligation contained in Article 9 of Directive 77/728. Therefore the fact that the period prescribed in Article 12 has not yet expired is irrelevant; for the member-States did not need to adopt any measures in order to comply with Article 9. Any other interpretation would make it

permissible to prohibit use of the labelling prescribed by the directive until expiry of the period laid down in Article 12 which would--since the directives were already applied in Germany--result in an unacceptable restriction of the free movement of goods. By a decision of 8 May 1978 the Pretura stayed the proceedings and submitted the following questions for a preliminary ruling pursuant to Article 177 of the EEC Treaty: [The Advocate General repeated the questions, and continued:] My opinion on these questions is as follows: 1. As regards the legal effects of Directive 73/173, which should have been followed by internal implementing measures by the end of 1974--which did not happen in Italy--it must first of all be pointed out, with regard to the formulation of the question, that it is certainly inappropriate to speak of the direct applicability of a directive. That term is used in Article 189 of the Treaty only for regulations, that is to say, for directly applicable Community legislation, which may also create legal relations between individuals. However, it is clear from the Treaty and has also been emphasized again and again in the case law that a clear distinction must be drawn between regulations and directives, the latter creating obligations only for the member-States. So under no circumstances can one say--as the defendant in the main action has said--that directives may also have the content and effects of a regulation; at most directives may produce similar effects (cf. the judgments of 6 October 1970 in Case 9/70, Franz Grad v. Finanzamt Traunstein, [FN5] of 4 December 1974 in Case 41/74, Van Duyn v. Home Office [FN6] and of 1 February 1977 in Case 51/76, Verbond Van Nederlandse Ondernemingen v. Inspecteur der Invoerrechten en Accijnzen [FN7]). The essence of such effects is that in certain cases, which however constitute the exception to the rule, member-States which do not comply with their obligations under the directive are unable to rely on provisions of the internal legal order which are illegal from the point of view of Community law, so that individuals become entitled to rely on the directive as against the defaulting State and acquire rights thereunder which the national courts must protect. So in such cases one should more properly *102 speak--and that has always happened in the case law--only of the direct effect of directives. Consequently the first question of the Pretura must be understood in this amended sense. FN5 [1970] E.C.R. 825; [1971] C.M.L.R. 1. FN6 [1974] E.C.R. 1337; [1975] 1 C.M.L.R. 1. FN7 [1977] E.C.R. 113; [1977] 1 C.M.L.R. 413. The conditions in which such direct effect can be recognised have already been laid down with sufficient clarity in the case law of the Court. I refer to the judgments cited above and also to the judgment of 17 December 1970 in Case 33/70, S.A.C.E. v. Ministry for Finance of the Italian Republic [FN8] and the judgment of 23 November 1977 in Case 38/77, Enka BV v. Inspecteur der

Invoerrechten en Accijnzen. [FN9] According to those cases the decisive test is whether it may be said from the nature, general scheme and wording of a directive that it imposes clear, complete and precise obligations on the memberStates, does not lay down any conditions other than precisely defined ones and does not leave the member-States any margin of discretion in the performance of the obligations. FN8 [1970] E.C.R. 1213; [1971] C.M.L.R. 123. FN9 [1977] E.C.R. 2203; [1978] 2 C.M.L.R. 212. With the guidance afforded by those criteria it is easy to judge to which provisions of Directive 73/174 which, as I have already said, the member-States should have complied with some time ago, direct effect may be attributed. This certainly applies to Articles 1 and 2. In those Articles, as I have already stated, the substances concerned are specified, the toxic and harmful substances used as solvents are divided into classes and sub-classes with indices for each sub-class and rules are laid down to determine precisely when preparations are to be considered toxic or harmful. The same applies also to Article 4, which governs packaging and provides at the end: 'Packages meeting these requirements shall be considered as satisfactory'. Articles 5 and 6, which deal with the labelling of the packages and the addition of safety advice, should be regarded in the same way. On the other hand different considerations apply to Article 7, which permits member-States to prescribe a different form of labelling for very small packages and for preparations which contain such small quantities as to be harmless. As regards Article 8, to which the question refers in particular, there too the wording of the provision seems to argue in favour of direct effect. However, the Commission is in my opinion right to point out that basically that provision has no significance of its own, but merely contains confirmation of the principle, deducible from other provisions of the directive and from its general purpose, that products conforming to the directive may be freely marketed and trade in them may not be impeded. Therefore it is necessary to ascertain whether other provisions of the directive have direct effect, since such effect can be ascribed to Article 8 only in conjunction with other provisions of the directive. Therefore the first questions must be answered as a whole in the way indicated above. *103 2. With regard to the second question the Commission rightly pointed out that Directive 73/173 aims to secure total harmonisation. That can be deduced from Article 3, from the last paragraph of Article 4 and from Article 8. Accordingly-disregarding Article 7, which permits limited exceptions which have no relevance to this case--it is not permissible for a member-State to maintain, as regards the home market, derogative regulations in general and in particular to apply to the classification, packaging and labelling of solvents conditions more restrictive than those of the directive. As regards imports from other member-States, the maintenance of regulations in derogation from the directive should certainly be

considered contrary to the principle of the free movement of goods, which of course is supposed to be guaranteed by Article 8 if the requirements of the directive and annex thereto are satisfied. In order to answer the third question it is sufficient to refer to Article 5 of Directive 73/173. It provides that the packages of solvents must indicate the presence of certain substances considered toxic within the definition contained in Article 2 and that in certain cases the names of harmful substances must be stated. But there is no requirement to indicate percentages. So section 8 of the Italian Act of 15 March 1963 is clearly more restrictive than the directive and constitutes a derogation therefrom. It is also clear that as a result the said national provision is not in conformity with the directive and in particular with Article 8 thereof, already mentioned several times, which provides that the placing on the market of dangerous preparations which satisfy the requirements of the directive and the annex thereto may not be prohibited, restricted or impeded on the grounds of classification, packaging and labelling as defined in the directive. 4. The fourth question obviously alludes to Article 36 of the EEC Treaty, whereby measures having equivalent effect within the meaning of Article 30 may be justified on certain grounds, including for example the protection of the health of consumers. However, such justifications can surely not succeed when a Community measure for the harmonisation of such provisions has been adopted, that is to say when the attainment of the objectives of Article 36 has been undertaken at Community level. Thus it is clear that the standard laid down in the Community measure guarantees sufficient protection and so, when the period prescribed by the directive for the adaptation of internal law has expired, there is in principle no longer any place for additional protective measures at the national level. This is clear from the judgment of 15 December 1976 in Case 35/76, Simmenthal SpA v. Italian Minister for Finance [FN10] and the judgment of 25 October 1977 in Case 5/77, Tedeschi v. Denkavit Commerciale Srl. [FN11] In those cases it was emphasised that Article 36 has by no means reserved certain matters to the exclusive jurisdiction of member-States; *104 exceptions to the principle of the free movement of goods may be justified thereunder only if measures are necessary for the protection of the things mentioned in Article 36 which, however, is no longer the case when harmonising directives with the same objective have been adopted. FN10 [1976] E.C.R. 1871; [1977] 2 C.M.L.R. 1. FN11 [1977] E.C.R. 1555; [1978] 1 C.M.L.R. 1. It is just possible in the present case to consider an application of Article 9 of Directive 73/173, which provides that: 'Where a member-State establishes that a dangerous preparation, although satisfying the requirements of this directive, presents a health or safety risk necessitating a classification or labelling other than those provided for by this directive, it may, for a period not exceeding six months, prohibit the distribution, sale or use of that preparation in its territory. It shall immediately inform the other

member-States and the Commission thereof and give reasons for its decision.' However, as the wording shows, the above provision merely concerns temporary measures for which--as was emphasised by the judgment in Case 5/77 (Tedeschi) on analogous facts--a Community procedure must be observed and which, in accordance with Article 9 (2), are subject to the supervision of the Commission, which makes the final decision regarding what steps it is appropriate to take. Moreover it is clear that in the present case we are not concerned with an application of that provision since the Italian Act was enacted long before the Community directive and so not as a reaction thereto or in reliance on the said Article 9. 5. Lastly we must determine whether Directive 77/728 of 7 November 1977, Article 12 of which, as I have already said, provides that member-States must introduce the necessary laws, regulations and administrative provisions by November 1979 at the latest, has direct effect before that date, from the date of its notification in fact, since Article 9 thereof provides that: 'Member-States shall not prohibit, restrict or impede, on the grounds of classification, packaging or labelling as defined in this directive, the placing on the market of dangerous preparations which satisfy the requirements of this directive and the annexes thereto.' That is correct in the view of the accused in the main action because the said Article merely imposes on the member-States an obligation to refrain from action, which leaves absolutely no margin of discretion and requires no legislative measures. He relies in this context--as may be gathered from the way in which the question is formulated--inter alia on the protection of the legitimate expectation of undertakings which have complied with the directive before expiry of the aforesaid period. Apart from that, he considers any other interpretation intolerable because, with regard to imports from member-States which have already implemented the directive, it would constitute an obstacle to the free movement of goods. The problems raised can be approached by establishing in the first *105 place that Directive 77/728 contains provisions which correspond to those of Directive 73/173 and therefore, because they are clear and complete and leave the member-States no margin of discretion, judging from the manner in which their contents are set out, satisfy the requirements for direct effect. The provisions in question are Articles 3, 5, 6, 7 and 9. However, it is important to remember a point which I emphasised at the beginning of my opinion, namely that, as far as directives are concerned, direct effect is hardly an automatic consequence, but merely a reflex effect: it occurs when a member-State does not comply with its obligations and consists in the fact that the State is deprived of the possibility of relying as against individuals and undertakings on its failure to comply with Community law. Accordingly the fact that a directive becomes binding on its notification is not sufficient to produce that legal consequence, rather is it the expiry of the period laid down in the directive for the adaptation of national law which is material. But since that has not occurred in the present case and since therefore the Italian State cannot be accused of a failure to fulfil its obligations which would also justify the institution of proceedings under Article 169 of the

EEC Treaty, it is not possible at present to ascribe direct effect to the said provisions. Having first established that, we must ask ourselves--and this constitutes the real problem of the fifth question--whether a different solution may apply as regards the obligation contained in the aforesaid Article 9. Such a line is argued strongly by the accused in the main action. In particular he submits that a rational interpretation of Article 12 of the directive would hold that the period laid down therein applies only to member-States' obligations to take action, hence only when it appears necessary to amend internal law and account must be taken of the fact that the undertakings affected thereby need time to adjust to the new legal provisions. That, says the defendant, surely cannot be relevant as regards the obligation to refrain from action contained in Article 9. However, I am no more persuaded of the correctness of that point of view than were the Council and the Commission. In fact Article 12 cannot be interpreted so narrowly as the accused in the main action submits; it concerns not only provisions which affect the conduct of undertakings and other legal persons and which clearly require a period of adjustment. Article 12 embraces the entire conduct required of member-States by the directive and so must doubtless be taken to apply to Article 9 also. Here too one may properly speak of an obligation on member-States to take action because it is necessary for them to amend their law--in the present case the provisions of the Act of 15 March 1963, in particular its criminal provisions-- not least in the interest of legal certainty and clarity. Moreover, considerations of principle--direct effect is not the rule in the case of directives--raise doubts about the attempt to isolate *106 particular provisions of a directive in order to ascribe direct effect to them earlier than would otherwise be the case. In any event my conviction is that Article 9 of Directive 77/228 does not permit that. In this respect I would recall something which I have pointed out with regard to Article 8, the corresponding provision of Directive 73/173. In the same way Article 9 of Directive 77/728 likewise has no independent value. It is, so to speak, nothing more than a reflection of the other provisions of the directive which impose obligations to take action. The stipulations which it contains seem obvious in view of the tenor and purpose of the directive; however, that legal consequence can be achieved only on attainment of the objective of harmonisation, as is made explicit in certain provisions of the directive. Therefore direct effect cannot properly be ascribed to Article 9 in isolation, but only in conjunction with the other provisions of the directive which contain obligations to take action. But if direct effect is excluded in the case of those provisions because the period prescribed in Article 12 has not yet expired, the same must apply as regards Article 9. The foregoing applies to domestic marketing in the same way as to imports from other member-States. As regards the first point it is certainly not possible to plead the protection of the legitimate expectation of individuals who prematurely adapted their conduct in accordance with the provisions of the directive. To hold otherwise would be to mistake the legal nature of directives: they create obligations, not for individuals,

but only for member-States, and, as has already been shown, individuals may acquire rights under directives only when member-States have failed to comply with their obligations. Admittedly as regards imports from other member countries it seems natural to hold that internal measures contrary to Article 30 of the Treaty can no longer be justified under Article 36 of the Treaty when a Community standard has already been laid down by means of a directive and that standard is already being observed in other member countries. But that would be to misunderstand the basic purpose of the directive, which is to bring about through harmonisation the removal of obstacles to the free movement of goods, meaning that the obstacles to the free movement of goods are to disappear only with the unification of the law. So, where a directive prescribes a period for that harmonisation, it follows that internal provisions may be retained during that time and they may be justified under Article 36 of the Treaty, since member- States remain competent to act thereunder in the meantime. Moreover, an examination of the case law confirms that this view is correct. Thus, for example, it was emphasised in the judgment in Case 9/70, Franz Grad v. Finanzamt Traunstein, [FN12] that member-States *107 retain their freedom of action until the time set for the harmonisation is reached, and in Case 35/76, Simmenthal SpA v. Italian Minister for Finance, [FN13] it was held that national public health inspections only cease to be justified under Article 36 of the Treaty as from the latest date specified in a directive for the entry into force of the appropriate national provisions. FN12 [1970] E.C.R. 825; [1971] C.M.L.R. 1. FN13 [1976] E.C.R. 1871; [1977] 2 C.M.L.R. 1. In this respect, however considerations of legal certainty are relevant, for that principle requires that internal provisions cease to be applied only when they have been replaced by provisions conforming to the directive or the period prescribed in the directive has expired. Besides, it should not be overlooked that to hold otherwise and to accept the argument put forward by the accused in the main action would lead to discrimination in favour of imports from other memberStates, because of course only they could rely on Articles 30 and 36 of the EEC Treaty, whereas domestic marketing operated in accordance with the directive, could still be prohibited. 6. Thus the questions submitted by the Pretura Penale, Milan, may be answered as follows: (a) Articles 2, 4, 5 and 6 of Directive 73/173, along with Article 8 in conjunction with the aforesaid Articles, have direct effect in that after the expiry of the period laid down in the directive for its implementation individuals may rely thereon before national courts. (b) National legislation may not prescribe obligations and limitations in derogation from the directive, even though they be more precise and detailed. With regard to goods imported from other member-States such derogations are to be

considered obstacles to the free movement of goods. (c) National legislation requiring that an indication be given on containers of solvents that they contain benzene, toluene and xylene, specifying the total percentage of those ingredients and the percentage of benzene alone, is incompatible with Directive 73/173. (d) The duty, arising under national law, to observe requirements derogating from the directive may not be justified by reference to the protection of the physical safety of users of the products in question. (e) Articles 3, 5, 6 and 7 of Directive 77/728, along with Article 9 in conjunction with the aforesaid provisions, have direct effect only upon expiry of the period laid down in Article 12 of the directive, that is to say, only as from 9 November 1979. JUDGMENT [1] By an order of 8 May 1978, received at the Court on 21 June 1978, the Pretura Penale, Milan, referred several questions to the *108 Court for a preliminary ruling under Article 177 of the EEC Treaty on the interpretation of two Council directives on the approximation of the laws, regulations and administrative provisions of the member-States, the first, no. 73/173/EEC of 4 June 1973 on the classification, packaging and labelling of dangerous preparations (solvents) [FN14] and the second, no. 77/728/EEC of 7 November 1977 on the classification, packaging and labelling of paints, varnishes, printing inks, adhesives and similar products. [FN15] [2] Those questions are raised in the context of criminal proceedings against the head of an undertaking which produces solvents and varnishes, on a charge of having infringed certain provisions of the Italian Act 245 of 5 March 1963 [FN16] which require manufacturers of products containing benzene, toluene and xylene to affix to the containers of those products labels indicating, not only the fact that those substances are present, but also their total percentage and, separately, the percentage of benzene. [3] As far as solvents are concerned, that legislation ought, at the material time, to have been amended in order to comply with Directive 73/173 of 4 June 1973, the provisions of which member-States were supposed to incorporate into their internal legal orders by 8 December 1974 at the latest, an obligation which the Italian Government has not fulfilled. [4] That amendment would have resulted in the repeal of the provision of the Italian Act which the accused is charged with contravening and would consequently have altered the conditions for applying the criminal sanctions contained in the law in question. [5] As regards the packaging and labelling of varnishes, Directive 77/728 of 7 November 1977 had, at the material time, been adopted by the Council, but by virtue of Article 12 thereof member-States have until 9 November 1979 to bring into force the laws, regulations and administrative provisions necessary to comply therewith. [6] The incorporation of the provisions of that directive into the internal Italian legal order must likewise result in the repeal of the provisions of the Italian law which the accused is charged with contravening. [7] As regards the packaging and labelling of both the solvents and the varnishes

produced by his undertaking, the accused complied, in the one case, with the provisions of Directive 73/173 (solvents), which the Italian Government had failed to incorporate into its internal legal order, and, in the other case, with the provisions of Directive 77/728 (varnishes), which member-States must implement by 9 November 1979. [8] The replies to the questions submitted, the first four of which concern Directive 73/173, while the fifth concerns Directive 77/728, must enable the national court to decide whether the penalties prescribed by Italian Act 245 for an infringement of its provisions may be applied in the case in question. FN14 [1973] O.J. L189/7. FN15 [1977] O.J. L303/23. FN16 [1963] Gazzetta Ufficiale 1451. *109 A. The interpretation of Directive 73/173 [9] This directive was adopted pursuant to Article 100 of the Treaty and Council Directive 67/548/EEC of 27 June 1967, [FN17] amended on 21 May 1973, [FN18] on dangerous substances, in order to ensure the approximation of the laws, regulations and administrative provisions of the member-States on the classification, packaging and labelling of dangerous preparations (solvents). [10] That directive proved necessary because dangerous substances and preparations were subject to rules in the member-States which displayed considerable differences, particularly as regards labelling, packaging and classification according to the degree of risk presented by the said products. [11] Those differences constituted a barrier to trade and to the free movement of goods and directly affected the establishment and functioning of the market in dangerous preparations such as solvents used regularly in industrial, farming and craft activities, as well as for domestic purposes. [12] In order to eliminate those differences the directive made a number of express provisions concerning the classification, packaging and labelling of the products in question (Article 2 (1), (2) and (3) and Articles 4, 5 and 6). [13] As regards Article 8, to which the national court referred in particular, and which provides that member-States may not prohibit, restrict or impede on the grounds of classification, packaging or labelling the placing on the market of dangerous preparations which satisfy the requirements of the directive, although it lays down a general duty, it has no independent value, being no more than the necessary complement of the substantive provisions contained in the aforesaid Articles and designed to ensure the free movement of the products in question. FN17 [1967] O.J. Spec.Ed. 234. FN18 [1973] O.J. L167/1.

[14] The member-States were under a duty to implement Directive 73/173, in accordance with Article 11 thereof, within 18 months of its notification. [15] All the member-States were so notified on 8 June 1973. [16] The period of 18 months expired on 8 December 1974 and up to the time when the events material in the case occurred the provisions of the directive had not been implemented within the Italian internal legal order. [17] In those circumstances the national court, finding that 'there was a manifest contradiction between the Community rules and internal Italian law', wondered ' which of the two sets of rules should take precedence in the case before the court' and referred to the Court the first question, asking as follows: 'Does Council Directive 73/173/EEC of 4 June 1973, in particular Article 8 thereof, constitute directly applicable legislation conferring upon individuals personal rights which the national courts must protect?' [18] This question raises the general problem of the legal nature of the provisions of a directive adopted under Article 189 of the Treaty. [19] In this regard the settled case law of the Court, last reaffirmed by *110 the judgment of 1 February 1977 in Case 51/76, Nederlandse Ondernemingen, [FN19] lays down that, whilst under Article 189 regulations are directly applicable and, consequently, by their nature capable of producing direct effects, that does not mean that other categories of acts covered by that Article can never produce similar effects. [20] It would be incompatible with the binding effect which Article 189 ascribes to directives to exclude on principle the possibility of the obligations imposed by them being relied on by persons concerned. [21] Particularly in cases in which the Community authorities have, by means of directive, placed member-States under a duty to adopt a certain course of action, the effectiveness of such an act would be weakened if persons were prevented from relying on it in legal proceedings and national courts prevented from taking it into consideration as an element of Community law. [22] Consequently a member-State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails. [23] It follows that a national court requested by a person who has complied with the provisions of a directive not to apply a national provision incompatible with the directive not incorporated into the internal legal order of a defaulting member-State, must uphold that request if the obligation in question is unconditional and sufficiently precise. [24] Therefore the answer to the first question must be that after the expiration of the period fixed for the implementation of a directive a member-State may not apply its internal law-even if it is provided with penal sanctions--which has not yet been adapted in compliance with the directive, to a person who has complied with the requirements of the directive. FN19 [1977] E.C.R. 126; [1977] 1 C.M.L.R. 413. [25] In the second question the national court asks, essentially, whether, in incorporating the provisions of the directive on solvents into its internal legal order, the State to which it is addressed may prescribe 'obligations and

limitations which are more precise and detailed than, or at all events different from, those set out in the directive', requiring in particular information not required by the directive to be affixed to the containers. [26] The combined effect of Articles 3 to 8 of Directive 73/173 is that only solvents which 'comply with the provisions of this directive and the annex thereto' may be placed on the market and that member-States are not entitled to maintain, parallel with the rules laid down by the said directive for imports, different rules for the domestic market. [27] Thus it is a consequence of the system introduced by Directive 73/173 that a member-State may not introduce into its national legislation conditions which are more restrictive than those laid down in the directive in question, or which are even more detailed or in any event different, as regards the classification, packaging *111 and labelling of solvents and that this prohibition on the imposition of restrictions not provided for applies both to the direct marketing of the products on the home market and to imported products. [28] The second question submitted by the national court must be answered in that way. [29] In the third question the national court asks whether the duty to indicate on the container of the solvent offered for sale that it contains benzene, toluene and xylene, specifying the total percentage of those substances and, separately that of benzene, pursuant to section 8 of Act 245 of 5 March 1963 , may be considered incompatible with the said directive. [30] Section 8 of Italian Act 245 of 5 March 1963 lays down a duty, 'where solvents contain benzene, toluene or xylene, to affix to the containers offered for sale a label mentioning the presence of those substances in the solvents, the total percentage of those substances and, separately, the percentage of benzene ...'. [31] However, Article 5 of Directive 73/173 requires in all cases that packages indicate clearly and indelibly the presence of substances classified as toxic under Article 2, such as benzene, and also that they show, but only in certain cases, the presence of substances classified as harmful, such as toluene and xylene in a concentration higher than 5 per cent. [32] On the other hand no indication of the percentage, separate or in the aggregate, of those substances is required. [33] Thus the answer to the national court must be that Directive 73/173 must be interpreted as meaning that it is not permissible for national provisions to prescribe that containers shall bear a statement of the presence of ingredients of the products in question in terms going beyond these laid down by the said directive. [34] The fourth question is drafted as follows: 'Do the said national provisions, which are applicable without distinction to all goods placed on the domestic market, nevertheless constitute an obstacle, a prohibition or a restriction on trade in and the free movement of such goods, even if such provisions were enacted for the purpose of ensuring greater protection for the physical safety of users of the products in question?' [35] This question is an allusion to Article 36 of the Treaty which permits exceptions to the free movements of goods to the extent to which they are justified on grounds of public security or the protection of health and life of

humans and animals. [36] When, pursuant to Article 100 of the Treaty, Community directives provide for the harmonisation of measures necessary to ensure the protection of the health of persons and animals and establish Community procedures to supervise compliance therewith, recourse to Article 36 ceases to be justified and the appropriate controls must henceforth be carried out and the protective measures taken in accordance with the scheme laid down by the harmonising directive. [37] Directive 73/173 provides that where a member-State established *112 that a dangerous preparation, although satisfying the requirements of that directive, presents a health or safety risk, it may have recourse, temporarily and subject to the supervision of the Commission, to a protective measure provided for in Article 9 of the directive in accordance with the procedure laid down in that Article. [38] It follows that national provisions going beyond those laid down in Directive 73/173 are compatible with Community law only if they have been adopted in accordance with the procedures and formalities prescribed in Article 9 of the said directive. B. The interpretation of Council Directive 77/728/EEC of 7 November 1977 [39] In a fifth question the national court asks whether Council Directive 77/728 of 7 November 1977, in particular Article 9 thereof, is immediately and directly applicable with regard to the obligations imposed on member-States to refrain from action as from the date of notification of that directive in a case where a person, acting upon a legitimate expectation, has complied with the provisions of that directive before the expiry of the period within which the member-State must comply with the said directive. [40] The objective of that directive is analogous to that of Directive 73/173 in that it lays down similar rules for preparations intended to be used as paints, varnishes, printing inks, adhesives and similar products, and containing dangerous substances. [41] Article 12 of that directive provides that member-States must implement it within 24 months of its notification, which took place on 9 November 1977. [42] That period has not yet expired and the States to which the directive was addressed have until 9 November 1979 to incorporate the provisions of Directive 77/728 into their internal legal orders. [43] It follows that, for the reasons expounded in the grounds of the answer to the national court's first question, it is only at the end of the prescribed period and in the event of the member-State's default that the directive--and in particular Article 9 thereof--will be able to have the effects described in the answer to the first question. [44] Until that date is reached the member-States remain free in that field. [45] If one member-State has incorporated the provisions of a directive into its internal legal order before the end of the period precribed therein, that fact cannot produce any effect with regard to the other member-States. [46] In conclusion, since a directive by its nature imposes obligations only on member-States, it is not possible for an individual to plead the principle of 'legitimate expectation' before the expiry of the period prescribed for its

implementation. [47] Therefore the answer to the fifth question must be that Directive 77/728 of the Council of the European Communities of 7 November 1977, in particular Article 9 thereof, cannot bring about with respect to any *113 individual who has complied with the provisions of the said directive before the expiration of the adaptation period prescribed for the member-State any effect capable of being taken into consideration by national courts. Costs [48] The costs incurred by the Council and by the Commission, which have submitted written observations to the Court, are not recoverable. [49] As the proceedings are, so far as the accused in the main action is concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court. Order On those grounds, THE COURT, in answer to the questions referred to it by the Pretura Penale, Milan, by an order of 8 May 1978 HEREBY RULES: 1. After the expiration of the period fixed for the implementation of a directive a member-State may not apply its internal law--even if it is provided with penal sanctions-- which has not yet been adapted in compliance with the directive, to a person who has complied with the requirements of the directive. 2. It is a consequence of the system introduced by Directive 73/173 that a member-State may not introduce into its national legislation conditions which are more restrictive than those laid down in the directive in question, or which are even more detailed or in any event different, as regards the classification, packaging and labelling of solvents and that this prohibition on the imposition of restrictions not provided for applies both to the direct marketing of the products on the home market and to imported products. 3. Directive 73/173 must be interpreted as meaning that it is not permissible for national provisions to prescribe that containers shall bear a statement of the presence of ingredients of the products in question in terms going beyond those laid down by the said directive. 4. National provisions going beyond those laid down in Directive 73/173 are compatible with Community law only if they have been adopted in accordance with the procedures and formalities prescribed in Article 9 of the said directive. 5. Directive 77/728 of the Council of the European Communities of 7 November 1977, in particular Article 9 thereof, cannot bring about with respect to any individual who has complied with the provisions of the said directive *114 before the expiration of the adaptation period prescribed for the member-State any effect capable of being taken into consideration by national courts. (c) Sweet & Maxwell Limited [1980] 1 C.M.L.R. 96

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