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CJEU - C 343/09 / Opinion of Advocate General

The Queen, on the application of Afton Chemical Limited v Secretary of State for Transport

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
European Court of Justice
Decision date:
Key facts of the case:
This case involved a reference for an interpretation of Community legislation. It concerned the product Methylcyclopentadienyl-manganese-tricarbonyl (‘MMT’) which is a metallic additive added to motor fuel. By Directive 2009/30/EC which amends Directive 98/70/EC of the European Parliament and the Council of 13 October 1998 regarding the specification of petrol, diesel and gas-oil the European Union introduced strict limits for the use of MMT and labelling requirements for metallic additives. This was in response to fears that they are a danger to human health and the environment. Afton Chemical is the largest producer of MMT and considered the fears to be unfounded. It argued that the Directive breached the precautionary principle, the principle of proportionality and the principle of equality.
Results (sanctions) and key consequences of the case:
Examination of the questions referred has disclosed nothing which could call into question the validity of Article 1(8) of Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Council Directive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC.
Interpretation of article(s) and implications for the resolution of the case:
The AG confirmed the ECJ’s interpretation of the precautionary principle as “Where it proves impossible to determine with certainty the existence or extent of the risk envisaged because of the insufficiency, inconclusiveness or imprecision of the results of the studies conducted, but the likelihood of real harm to human or animal health or to the environment persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures.” (para 52) The AG stated that “According to that principle, health and the environment are not protected on the basis of a principle of protection from damage which is bound to occur. Rather, preventive measures may be taken against risks whose extent is disputed. In this way, the legislature can give priority to the objective of protection of health or the environment over restriction of other interests.” (para 94)
The AG also stated that “the precautionary principle applies primarily in connection with the assessment of the principle of proportionality.” (para 54) This latter principle is meaning that “The acts of the bodies of the Union must … not exceed the bounds of what is appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.” (para 56) The AG confirmed that “It is for the legislature and not for the courts to weigh these considerations against one another. In particular, it can decide to minimise the risks or exclude them altogether through restrictive measures. Otherwise it would have to accept that the risks might materialise and the anticipated damage actually occur. Particularly in the case of precautions against risks to human health, the legislature can generally hardly be accused of taking manifestly disproportionate measures.” (para 95)
The AG went on to say “Account must be taken, in the course of weighing up these interests, of the fact that restrictive precautionary measures are essentially of a provisional nature. They must be cancelled when new findings allay fears in that regard.  In that way it is ensured, in accordance with the principle of proportionality, that the restrictions are not applied for any longer than necessary. As the Commission points out, this at the same time creates an incentive, reflecting the ‘polluter pays’ principle, for producers and users of such products to investigate their effects. To the extent that, on the other hand, the legislature must prove risks in order to justify restrictions, there is an opposite incentive for these persons to prevent the scientific investigation of such risks. (para 96) Accordingly, the restrictions are imposed as a prohibition subject to prior authorisation. Article 8a(1) and (3) of Directive 98/70 expressly provides that the risks are to be investigated further and the limits revised by the Commission if necessary. This is expressly mentioned in recital 35. If Afton succeeds in producing relevant scientific information the Commission would be obliged to rethink the rules on MMT.” (para 97)