This reference for a preliminary ruling concerns the interpretation of Article 15 of Directive 94/62 / EC of the European Parliament and of the Council of 20 December 1994 on packaging and packaging waste (OJ 1994 L 365, p. 10). , p. 238).
2 The reference was made in the course of proceedings between SC Cali Esprou SRL, on the one hand, and the Administration of the Environmental Fund (Romania) (‘AFM’), on the other, concerning the legality of a contribution to the payment to which Cali Esprou was obliged by AFM, calculated on the basis of the packaging which it introduced on the Romanian market during 2013 and 2014.
The legal framework
3 The first and second recitals in the preamble to Directive 94/62 are worded as follows:
‘[…] the various internal measures concerning the management of packaging and packaging waste must be harmonized, on the one hand, in order to prevent any impact on the environment or to reduce such an impact, thereby ensuring a high degree of protection. and, on the other hand, to ensure the functioning of the internal market and to avoid obstacles to trade and distortions and restrictions of competition within the Community;
[…] The best way to prevent packaging waste is to reduce the overall volume of packaging. ‘
4 According to the 29th recital in the preamble to that directive:
‘[…] It is essential that all those involved in the production, use, import and distribution of packaging and packaged products become more aware of the extent to which packaging can be turned into waste and that, in accordance with the’ polluter pays’ principle, to accept their responsibility for such waste; Whereas the development and implementation of the measures provided for in this Directive should involve and require the close cooperation of all partners, where appropriate, in a spirit of „shared responsibility”.
5 Article 1 of that directive, entitled ‘Objectives’, provides:
„1. This Directive seeks to harmonize national measures for the management of packaging and packaging waste, on the one hand, in order to prevent any impact on the environment in all Member States and third countries, or to reduce such an impact, thus ensuring a high degree of environmental protection, and, secondly, to ensure the functioning of the internal market and to avoid barriers to trade and distortions and restrictions of competition within the Community.
2. To that end, this Directive lays down measures aimed, as a matter of priority, at preventing the production of packaging waste and, as additional fundamental principles, at reusing packaging, recycling and other forms of recovery of packaging waste and, consequently, at reducing the final disposal of packaging. such waste. „
6 Article 2 (1) of that directive provides:
‘This Directive covers all packaging placed on the market in the Community and all packaging waste, whether used or whether it comes from industry, commerce, offices, shops, services, the household or any other field, whatever the material. used.”
7 Article 3 (11) of Directive 94/62 provides:
‘For the purposes of this Directive:
[…]
11. „economic operators” in terms of packaging means suppliers of packaging materials, packaging manufacturers and processors, handlers and users, importers, traders and distributors, public authorities and organizations. „
8 Article 15 of that directive provides:
„Acting in accordance with the specific provisions of the Treaty, the Council shall adopt economic instruments to promote the implementation of the objectives set out in this Directive. In the absence of such measures, Member States may adopt measures to implement those objectives and the obligations arising from the Treaty in accordance with the principles governing Community environmental policy, inter alia, the ‘polluter pays’ principle. „
Romanian law
9 Article 16 (1) and (4) of Government Decision no. 621/2005 on the management of packaging and packaging waste (Official Gazette of Romania, Part I, no. 639 of 20 July 2005, hereinafter referred to as “Government Decision no. 621/2005”), in the version applicable to the main proceedings, provides:
„1. Economic operators, Romanian legal persons, shall be responsible for the entire quantity of waste generated by the packaging which they place on the national market, as follows:
a) economic operators who place packaged products on the market are responsible for the waste generated by the primary, secondary and tertiary packaging used for the packaging of their products, except for packaging which is used for packaging, at the point of sale, the products they introduce on the national market;
b) economic operators who overpack individually packaged products for resale / redistribution are responsible for the waste generated by the secondary and tertiary packaging they place on the market;
c) economic operators who place sales packaging on the market are responsible for the waste generated by those packaging.
[…]
4. The economic operators referred to in paragraph 2 shall be required to meet at least the objectives set out in Annex no. 3 to [Government Emergency Ordinance no. 196/2005 on the Environment Fund (Official Gazette of Romania, Part I, no. 1193 of December 30, 2005)], approved with modifications and completions by [Law no. 105/2006], with subsequent amendments and completions, applied to packaging waste resulting from packaging placed on the national market / taken over on a contract basis to ensure their traceability. „
10 Article 9 (1) (d) of Government Emergency Ordinance no. 196/2005 on the Environmental Fund (hereinafter referred to as „GEO no. 196/2005”), in the version applicable to the main proceedings, provides:
„The revenues of the Environmental Fund consist of:
[…]
d) a contribution of 2 lei [românești (RON)]/ kg, due to economic operators who place packaged goods on the national market, who distribute packaging for the first time on the national market, and by economic operators who rent, in any form, professionally, packaging, for the difference between the quantities of waste of packaging corresponding to the minimum recovery or incineration objectives in incineration plants with energy recovery and recovery by recycling provided in Annex no. 3 and the quantities of packaging waste actually recovered or incinerated in incineration plants with energy recovery and recovered by recycling ”.
11 Order no. 578/2006 approving the methodology for calculating contributions and fees due to the Environment Fund (Official Gazette of Romania, Part I, no. 516 of June 14, 2006), as amended in particular by Order no. 1032 of 10 March 2011 (Official Gazette of Romania, Part I, no. 196 of 22 March 2011), provides in point 11 of the Annex:
“The placing on the national market of a product is the act of making available on the national market, for the first time, for a fee or free of charge, a product for distribution and / or use, including its own use / consumption. […]”
The dispute in the main proceedings and the question referred for a preliminary ruling
12 Cali Esprou purchases various goods already packaged abroad, which it sells and delivers, without any intervention on its part, to retailers on the Romanian market.
13 It introduced goods on the Romanian market which were sold between 19 August 2011 and 31 December 2014. Between March 30 and April 2, 2015, at the headquarters of Cali Esprou, a fiscal control was carried out in order to comply with the obligations to pay the contribution due to AFM pursuant to Article 9 (1) (d) of GEO no. 196/2005 for the packaging related to the packaged goods introduced on the Romanian market in the period 2011-2014.
14 Following that inspection, no additional payment obligation was established for Cali Esprou in 2011 and 2012 under Article 9 (1) (d) of GEO no. 196/2005. Instead, for the years 2013 and 2014, the tax authorities established in its charge, under this provision, an additional payment obligation amounting to RON 4,242 (approximately EUR 909).
15 Cali Esprou lodged an appeal with the AFM against that additional payment obligation, arguing that it was not bound by the payment obligations laid down in Article 9 (1) (d) of GEO no. 196/2005 as it could not be classified as a „polluter”. On July 3, 2015, AFM rejected this appeal. On December 21, 2015, Cali Esprou filed an action in the Vâlcea Court (Romania), requesting, among other things, the annulment of the AFM decision. That action was dismissed by judgment of 6 May 2016.
16 Cali Esprou appealed against that judgment to the referring court, Pitești Court of Appeal (Romania), arguing that since it manages packaging and not packaging waste, it cannot be considered a polluter. In addition, according to Cali Esprou, Article 9 (1) (d) of GEO no. 196/2005 is contrary to the so-called ‘polluter pays’ principle enshrined in Article 15 of Directive 94/62, which provides for the adoption of national measures to implement the objectives of that directive in accordance with the principles governing the Union’s environmental policy, including the principle of „The polluter pays”.
17 In that regard, the referring court states that the contribution provided for in Article 9 (1) (d) of GEO no. 196/2005 is a ‘measure’ which falls within the scope of Article 15 of Directive 94/62. However, it wonders whether this contribution is compatible with the „polluter pays” principle enshrined in this article. More specifically, in the light of the definition of economic operator in Article 3 (11) of that directive, it considers that a pollutant within the meaning of Article 15 of that directive must be linked to the transformation of packaging into waste. However, Cali Esprou is an intermediary who does not intervene in the packaging, so the referring court asks whether the obligation to pay a contribution to the AFM, pursuant to Article 9 (1) (d) of GEO no. 196/2005, laid down by Cali Esprou, complies with Article 15 of that directive.
18 In those circumstances, the Pitești Court of Appeal decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Article 15 of Directive 94/62 may be interpreted as precluding the adoption of legislation in a Member State of the European Union which establishes a contribution for the economic operator who places packaged goods and packaging on the internal market but does not goods or packaging in no way, but alienates them in the same way to an economic operator, who in turn disposes of them to the final consumer, the amount of which is determined per kilogram, for the difference between the quantities of packaging waste corresponding to the minimum recovery targets. or incineration in incineration plants with energy recovery and recovery by recycling and the quantities of packaging waste actually recovered or incinerated in incineration plants with energy recovery and recovery by recycling? ”
The question referred for a preliminary ruling
19 By its question, the national court asks, in essence, whether Article 15 of Directive 94/62 and the ‘polluter pays’ principle which it implements are contrary to national legislation, such as that at issue in the main proceedings. imposes a contribution on a non-performing economic operator on the packaging it places on the market, calculated on the basis of the difference in weight between, on the one hand, the amount of packaging waste corresponding to the minimum energy recovery and recycling targets, and on the other hand, the amount of packaging waste actually recovered or recycled.
20 Article 15 of Directive 94/62 provides that the Council is to adopt economic instruments in order to promote the implementation of the objectives set out in that directive and that, in the absence of such instruments, Member States may adopt measures implementing the same objectives and obligations under the FEU Treaty, in accordance with the principles governing the Union’s environmental policy, inter alia, the „polluter pays” principle.
21 Since the Council did not adopt such economic instruments as to impose a contribution on packaging waste placed on the market of the Member States, the latter may therefore adopt measures subject to the conditions laid down in the second sentence of Article 15.
22 In that regard, it must be pointed out, first, that the ‘polluter pays’ principle, referred to in Article 15 and in the 29th recital in the preamble to Directive 94/62, requires, according to that recital, that all those involved in the production of , the use, import and distribution of packaging and packaged products to become more aware of the extent to which packaging can be turned into waste ‘and’ to accept their responsibility for such waste ‘. This principle therefore does not apply only to those who are directly responsible for the production of waste, but has a wider scope. It also applies to those who contribute to this production of waste, which includes importers and distributors of packaged products (see by analogy Judgment of 30 March 2017, VG Čistoća, C ‑ 335/16, EU: C: 2017: 242, paragraph 24 and the case-law cited).
23 Furthermore, as regards the objectives set out in Directive 94/62, Article 1 of that directive, entitled ‘Objectives’, states in paragraph 1 that that directive seeks to’ [asigure] […]. a high degree of environmental protection ”. In addition, according to the wording of Article 1 (2), that directive lays down ‘measures aimed, as a matter of priority, at preventing the production of packaging waste and, as additional fundamental principles, at reusing packaging, recycling and other forms of packaging waste; consequently, the reduction of the final disposal of such waste ‘. To that end, Article 2 of Directive 94/62 confirms the broad scope of that directive, stating that it covers all packaging placed on the Union market and all packaging waste.
24 Such objectives are confirmed by the wording of the first and second recitals in the preamble to Directive 94/62, according to which that directive seeks, first, to[ină] […] [sau să] reduce the impact of packaging waste on the environment, thus ensuring a high degree of environmental protection, and, on the other hand, reduce the overall volume of packaging.
25 The conformity with European Union law of the contribution at issue in the main proceedings must be assessed in particular in the light of the objectives of Directive 94/62 and the ‘polluter pays’ principle.
26 It is apparent from Article 9 (1) (d) of GEO no. 196/2005 that the contribution at issue in the main proceedings, which is due to economic operators placing packaged goods on the national market for the first time, is calculated on the basis of the difference in weight between, on the one hand, the quantities of packaging waste minimum recovery or incineration and, on the other hand, the quantities of packaging waste actually recovered or incinerated in incineration plants with energy recovery and recovered by recycling.
27 According to the Romanian Government, that contribution is intended, in general, to hold accountable those who place packaging on the Romanian market. Thus, subject to checks by the referring court, by imposing a contribution calculated on the basis of the weight of packaging waste exceeding the minimum recovery or incineration targets in incineration plants with energy recovery and recovery by recycling, that contribution stimulates, on on the one hand, the reduction of packaging placed on the national market and, on the other hand, the promotion of the recovery or recycling of such waste.
28 Thus, the contribution at issue in the main proceedings meets the objectives of Directive 94/62, in particular in so far as it seeks to reduce the final disposal of waste provided for in Article 1 (2) of that directive and in the 29th recital in the preamble thereto. on the one hand, by promoting the recovery or incineration of packaging waste in incineration plants with energy recovery and recovery by recycling and, on the other hand, by discouraging, through a pecuniary burden, non-compliance with the minimum recovery or incineration in incineration plants with energy recovery and recovery by recycling.
29 In addition, a contribution such as that at issue in the main proceedings clearly complies with the ‘polluter pays’ principle enshrined in Article 15 of Directive 94/62. Indeed, the contribution at issue in the main proceedings, as described in paragraph 26 of this judgment, imposes a pecuniary burden on those who place packaging on the national market and who exceed certain minimum energy recovery and recovery targets by recycling waste. As is apparent from the order for reference, it is apparent from Article 9 (1) (d) of GEO no. 196/2005 and from that of point 11 of the annex to Order no. 578/2006 for the approval of the methodology for calculating the contributions and fees due to the Environmental Fund, with subsequent amendments, that this task applies only to those who place the mentioned packaging on the market for the first time, and not to those who intervene downstream. In addition, this task is imposed only to the extent that the minimum energy recovery and recycling targets are not met.
30 It follows from the foregoing that a contribution such as that at issue in the main proceedings is consistent with both the objectives of Directive 94/62 and the ‘polluter pays’ principle within the meaning of Article 15 of that directive.
31 Such a conclusion cannot be called into question by Cali Esprou’s argument before the referring court that an economic operator who does not intervene in the packaging of goods imported and placed on the Romanian market is not a ‘polluter’ within the meaning of the ‘polluter’ principle. it pays ”.
32 Thus, as is apparent from paragraph 22 of this judgment, the ‘polluter pays’ principle has a scope which extends to importers and distributors of packaged products and is not limited to those involved in the packaging of the products concerned. Importers and distributors, whether or not they intervene in packaging, have contributed to the placing on the national market of packaging waste.
33 That conclusion is confirmed by a systematic interpretation of Directive 94/62. An economic operator, such as that at issue in the main proceedings, which does not affect the packaging of products imported and placed on the Romanian market is covered by that directive, which in Article 3 (11) defines ‘economic agents’ broadly, including others, „importers, traders and distributors”.
34 A Member State is therefore allowed to charge a contribution such as that described in paragraph 26 of this judgment to economic operators who do not intervene in the packaging which they place on the national market without thereby infringing the ‘polluter pays’ principle. , enshrined in Article 15 of Directive 94/62.
35 It should be added that the Court has stated that Article 15 of Directive 94/62 does not carry out a thorough harmonization of national measures in the fields covered by that directive, but, as stated in paragraph 20 of this judgment, empowers the Council to adopt instruments. to promote the implementation of the objectives set out in that Directive or, failing that, the Member States, acting[cu respectarea] obligations under the Treaty ”. Thus, that provision also requires the application of the relevant provisions of the FEU Treaty (Case C-198/14 Visnapuu [2015] ECR I-0000, paragraph 47).
36 In that regard, it is clear from Article 110 TFEU, on the one hand, that no Member State is to charge higher taxes on the products of other Member States than those applicable to similar domestic products and, on the other hand, that no Member State Member State shall not impose on other Member States the products of other Member States taxes which are likely to indirectly protect other sectors of production.
37 The Court has repeatedly held that a pecuniary charge constitutes an internal tax within the meaning of Article 110 TFEU if it forms part of a general system of internal royalties which is systematically applied to certain categories of goods according to objective criteria applied regardless of their origin or of the destination of the products (see, in particular, Case C-517/04 Koornstra [2006] ECR I-0000, paragraph 16, and the judgment of 8 November 2007; 221/06, EU: C: 2007: 657, paragraph 31).
38 In addition, waste must be regarded as produced within the meaning of Article 110 TFEU (see, to that effect, Case C-2/90 Commission v Belgium [1992] ECR I-0000, paragraphs 25 to 28).
39 In the light of the foregoing and the description of the contribution at issue in the main proceedings set out in paragraph 26 of this judgment, it must be considered that that contribution is a pecuniary burden forming part of a systematically to a category of products, ie the quantities of packaging waste which exceed the minimum recovery or incineration targets and which have not actually been recovered or incinerated in incineration plants with energy recovery and recycled.
40 Consequently, the contribution at issue in the main proceedings constitutes an internal tax within the meaning of Article 110 TFEU.
41 It is settled case-law that there is an infringement of Article 110 TFEU when the tax on the imported product and the tax on the like product are calculated differently and according to different methods, leading, even in limited cases, to a higher tax. applicable to the imported product (Judgment of 12 November 2015, Visnapuu, C ‑ 198/14, EU: C: 2015: 751, paragraph 59, and Judgment of 16 June 2016, Commission v Portugal, C ‑ 200/15, unpublished, EU : C: 2016: 453, paragraph 24).
42 It is apparent from the order for reference that the contribution at issue in the main proceedings applies to packaging waste on the basis of objective criteria applied regardless of its origin or destination. Thus, this contribution is due by economic operators who place packaged products on the national market, regardless of their origin. In addition, the order for reference does not provide any evidence that that contribution is likely to apply to a larger amount of packaging waste of imported products than to packaging waste of domestic products.
43 It follows from all the foregoing considerations that Article 15 of Directive 94/62 and the ‘polluter pays’ principle which it implements do not preclude national legislation, such as that at issue in the main proceedings, which requires a contribution from an economic operator who does not affect the packaging it places on the market, calculated on the basis of the difference in weight between, on the one hand, the quantity of packaging waste corresponding to the minimum energy recovery and recycling targets and, on the other hand, packaging waste actually recovered or recycled.
Regarding costs
44 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Ninth Chamber) hereby rules:
Article 15 of Directive 94/62 / EC of the European Parliament and of the Council of 20 December 1994 on packaging and packaging waste and the so-called ‘polluter pays’ principle which it implements do not preclude national rules such as that at issue in main dispute, which requires a contribution from an economic operator not acting on the packaging which it places on the market, calculated on the basis of the difference in weight between, on the one hand, the quantity of packaging waste corresponding to the minimum energy recovery and recovery objectives by recycling and, on the other hand, the amount of packaging waste actually recovered or recycled.
