No 8 (July 97/Juillet 97/Juli 97)

Eco-tax marking is a technical specification

In its "Bic" ruling (C-13/96: BIC BENELUX SA and BELGIAN STATE of 20.03.97), the Court of Justice states that a State mea-sure requiring a distinctive marking of a product indicating the amount of an eco-tax payable constitutes a technical specification within the meaning of Directive 83/189/EEC and not a fiscal accompanying measure. As such these measures must be notified to the Commission for verification that they do not give rise to trade barriers within the Single Market. The direct consequence of this ruling is that, if such a measure created a barrier to trade in the EU, it would fall under Articles 30-36 of the EC Treaty.

Environmental taxes on products including disposable razors were introduced into Belgian law under Articles 369 to 401 of the Law of 16 July 1993. In order to facilitate collection of the tax, the Belgian Minister of Finance made an Order for the distinctive marking of these products indicating the amount of tax payable.

The razor company Bic Benelux SA sought an annulment of this Ministerial Order. It based its action on, inter alia, infringement of Council Directive 83/189 EEC, on the grounds that this new environmental tax, as a draft technical regulation, was not immediately notified to the Commission prior to its adoption, in accordance with Article 8(1) of that Directive, and therefore could not be enforced.

This raised the question of whether the Ministerial Order laying down an obligation to affix a distinctive sign to a product for the purposes of an environmental tax, amounts to a `technical specification' and whether the national enactment introducing it, is a `technical regulation' within the meaning of Directive 83/189/EEC? The Belgian Conseil d'Etat submitted this question to the Court for interpretation.

The Court answered in the affirmative to both questions and confirmed that the Order on eco-tax marking was subject to Directive 83/189. The Court also specifically confirmed that the marking of products can not be considered as a `fiscal accompanying measure', which falls outside the scope of Directive 83/189.

National rules on denominations

In a recent ruling (C-321/94, C-322/94 and C-324/94 of 07.05.97), in a case concerning marketing of cooked-meat products bearing the word `mountain' on its labels, the European Court of Justice reaffirms that Member States' national legislation concerning denominations should not be used to hinder intra-Community trade. Such denominations are not an indication of provenance which could be protected by industrial and commercial property.

Criminal proceedings were brought against the defendant's marketing of cooked-meat products bearing the word `mountain' on its labels, on the ground that they have not been authorised to make specific reference to mountain areas as required by French legislation.

This raised the question of whether Articles 30 and 36 of the EC Treaty preclude domestic legislation i.e. did the requirement of prior administrative authorisation before products could be put on sale constitute a measure having an effect equivalent to quantitative restrictions? Or did Article 2 of Council Regulation (EEC) No 2081/92 which provides for the protection of geographical indications and designations of origin for agricultural products and foodstuffs, preclude application of the French legislation? The French Cour de Cassation referred these questions to the Court for interpretation.

The Court held that the Council Regulation in question does not preclude application of the said domestic rule, since the Regulation establishes a special procedure for Community authorisation of existing names such as `mountain'. However, the Court held that Article 30 was still applicable even though the facts of the case are confined to a single Member State.

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