SOURCE: Monthly Case-law Digest - May 2021
Reference for a preliminary ruling – Inland transport of dangerous goods – Directive 2008/68/EC – Article 5(1) – Concept of ‘construction requirement’ – Prohibition on laying down more stringent construction requirements – Authority of a Member State requiring a service station to be supplied with liquefied petroleum gas (LPG) only from road tankers fitted with a particular heat-resistant lining not provided for by the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR) – Unlawfulness – Decision legally unchallengeable by a category of persons – Strictly limited possibility of obtaining the annulment of such a decision where there is clear conflict with EU law – Principle of legal certainty – Principle of effectiveness
X, a Netherlands resident living in the vicinity of a service station which sells, inter alia, liquefied petroleum gas (LPG), wishes to put an end to that sale on grounds of safety. She therefore requested the College van burgemeester en wethouders van de gemeente Purmerend (Board of the Mayor and Aldermen of the municipality of Purmerend, Netherlands) to withdraw the environmental licence issued to that service station. Although it rejected that request, the Board took a decision by which it imposed two additional requirements on that service station regarding the way it is supplied with LPG. One of those requirements provides that that supply must henceforth be carried out solely by road tankers that are fitted with a particular heat-resistant lining capable of delaying the ‘boiling liquid expanding vapour explosion’ scenario by at least 75 minutes after the start of a fire. Taking the view that the additional requirements imposed by the administrative decision should be annulled on the ground that they could not be implemented because they were incompatible with Directive 2008/68, X brought an action before the rechtbank Noord-Holland (District Court, North Holland, Netherlands). After that action was dismissed, X brought an appeal before the Raad van State (Council of State, Netherlands).
In those circumstances, that court stayed the proceedings in order to refer questions to the Court on the interpretation of Article 5(1) of Directive 2008/68. First, it asks whether that provision precludes a requirement such as that relating to the particular heat-resistant lining at issue. Second, it seeks to ascertain whether the principle of effectiveness, under which a national procedural provision must not make the application of EU law impossible or excessively difficult, precludes a rule of Netherlands law which provides that, in order for a requirement contrary to EU law, imposed by an administrative decision which is legally unchallengeable by a category of persons, to be annulled on the ground that it would be unenforceable if it were implemented by a subsequent decision, the person must establish that it is clearly contrary to EU law.
Findings of the Court
In the first place, the Court notes that it is clear from the wording of Article 5(1) of Directive 2008/68 that, as regards the national transport of dangerous goods carried out inter alia by vehicles registered or put into circulation within their territory, Member States may not apply more stringent construction requirements on grounds of transport safety. Although Directive 2008/68 does not define the concept of ‘construction requirements’, it provides that the transport of dangerous goods must be carried out in compliance with the conditions laid down in the European Agreement concerning the International Carriage of Dangerous Goods by Road. In the present case, given that the ADR contains ‘construction requirements’, that concept must be understood by reference to the corresponding requirements contained in the ADR. However, none of the construction requirements provided for by the ADR corresponds to a requirement for a heat-resistant lining such as that at issue in the main proceedings. Accordingly, such a lining constitutes a more stringent construction requirement, prohibited by Article 5(1) of Directive 2008/68. The Court adds that that provision, which imposes a clear, general and absolute prohibition, precludes any measure taken by a Member State, including a measure adopted by a municipal authority in the form of an individual administrative decision, which would run counter to that prohibition, even if that measure only indirectly imposed a construction requirement on the operators of road tankers ensuring the supply of LPG to the addressee of that measure. In addition, the use by the national authorities of instruments introduced to ensure that road tankers transporting LPG comply with the requirement relating to the particular heat-resistant lining cannot justify an administrative decision imposing a construction requirement prohibited by Article 5(1) of Directive 2008/68. Furthermore, the Court points out that Article 1(5) of Directive 2008/68 also does not allow Member States to lay down more stringent construction requirements than those provided for by the ADR. Under that provision, a Member State may prohibit or regulate the inland transport of dangerous goods strictly for reasons other than safety during transport. Construction requirements are intended to increase transport safety. Accordingly, Member States cannot lay down, pursuant to Article 1(5) of that directive, transport safety rules other than those laid down in that directive and in Annexes A and B to the ADR, otherwise they would risk jeopardising the dual objective of harmonising safety rules and ensuring the proper functioning of the common transport market.
In the second place, the Court examines the compatibility with EU law of the national procedural rule of the ‘clearness test’, which allows an individual to obtain a finding that a requirement in a final administrative decision cannot be enforced and to obtain, as a consequence, the annulment of that requirement, on condition that a clear conflict between that requirement and EU law is established. According to the Court, that rule seeks to strike a fair balance between the principles of legal certainty and of legality under EU law, by giving preponderant weight to the finality of the requirement in question in order to safeguard legal certainty, while allowing, under strict conditions, exceptions thereto. In the light of that objective, the principle of effectiveness does not, in principle, preclude such a rule. However, in order to ensure that that objective is actually achieved, the clearness test should not be applied so strictly that the condition of clear incompatibility with EU law renders illusory in practice the possibility, for an individual, of obtaining the effective annulment of the requirement at issue.