Case Law: Bic Benelux

4 Colum. J. Eur. L. 657 (1998)

Gaëtan Verhoosel. Institute for Environmental & Energy Law, Collegium Falconis, Katholieke Universiteit Leuven; Jones, Day, Reavis & Pogue, Brussels.

Case C-13196. Bic Benelux SA v. Belgian State (Eur. Ct. J. Mar. 20, 1997) (not yet reported).

Obligation to give prior notification under Directive 83/189/EEC; Technical regulations and specifications; Marking of products subject to environmental tax

Facts and Procedure

In keeping with the well-known European Union effort to expand the use of economic instruments, in particular fiscal measures, in the field of environmental policy, several Member States have adopted legislation introducing environmental taxes over the past few years. In Belgium, a system of environmental taxes was introduced by Articles 369 to 401 of the Law of July 16, 1993 Completing the Federal Structure of the State (the Law).4 Under Article 369 of the Law, the environmental tax-commonly referred to as “ecotax”-is “a tax assimilated to excise duty, applicable to a product which has been released on to the market, on account of the environmental damage which that product is deemed to cause.” Under Article 376(1), disposable razors are subject to an ecotax of BFr 10. Article 391 of the Law requires a marking to be placed on products subject to ecotax and provides that the Finance Minister shall lay down detailed rules for the implementation of this requirement. The marking serves the double goal of ensuring that the collection of the ecotax is monitored and informing the public that the products have an effect on the environment, thereby encouraging the public to switch to other less harmful products. A Ministerial Order of December 24, 1993 established the characteristics of this mandatory marking.

Bic Benelux, which marketed integral disposable razors in Belgium before the environmental tax arrangements came into force, has suffered a considerable drop in sales since the introduction of the ecotax, which led the company to seek annulment of the Ministerial Order before the Belgian Council of State, the highest administrative court in Belgium. Bic Benelux based this action on, inter alia, infringement of Directive 83/189/EEC Laying Down a Procedure for the Provision of Information in the Field of Technical Standards and Regulations (the Directive) on grounds that, prior to its adoption, the Ministerial Order had not been notified to the Commission in accordance with Article 8(1) of the Directive.

Directive 83/189, which has been amended on several occasions, most notably by Directives 88/182r and 94/10/EC,9 sets up a procedure intended to prevent technical barriers to intra-Community trade that arise out of the differences between the rules of the individual Member States concerning the production and marketing of goods. That preventive procedure supplements the prohibition of measures having an effect equivalent to quantitative restrictions, set out in Articles 30 to 36 of the EC Treaty, and the harmonization of national rules with a view to achieving free movement of goods within the internal market. Article 8(1) of the Directive requires Member States to communicate immediately to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice. Before the 1994 amendment, Directive 83/189 defined a “technical regulation” as “technical specifications, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State or major part thereof, except those laid down by local authorities.” The Directive defined a “technical specification” as “a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards terminology, symbols, testing and test methods, packaging, marking or labeling, and the production methods and procedures.’

Insofar as Articles 11 and 18 of the Ministerial Order require distinctive signs to be affixed to products subject to environmental tax, the Council of State considered that the merits of Bic Benelux’s plea based on Directive 83/189 depended on whether those provisions, which lay down a specific and binding labeling requirement, are to be regarded as forming a technical specification within the meaning of the Directive. The Council of State therefore decided to stay proceedings and submit a request for a preliminary ruling to the European Court of Justice on the question of whether this labeling requirement constitutes a technical specification, and the Ministerial Order a technical regulation, within the meaning of Directive 83/189.