Country
European Union
Sources
InforMEA
Tagging
Property, Permits, Administrative
Abstract
The reference for a preliminary ruling concerned the interpretation of Title II, paragraph 3 in Annex II to Council Directive 88/378/EEC of 3 May 1988 on the approximation of the laws of the Member States concerning the safety of toys and Article 1 of Council Directive 91/338/EEC of 18 June 1991 amending for the 10th time Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations. The reference had been made in the course of criminal proceedings brought before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) against Geharo BV for having stocked toys with cadmium content greater than the maximum content permitted under Netherlands law. Directive 88/378 was intended firstly to remove obstacles to trade between Member States by establishing harmonized standards as to toy safety requirements and secondly to ensure that consumers, in particular children, were protected against the risks involved in using those toys. Title II, paragraph 3(2) of Annex II established a maximum standard of 0.6 micrograms cadmium of bioavailability resulting from the use of toys. Council Directive 76/769/EEC of 27 July 1976 was concerned with restricting the marketing and use in the Member States of the Community, of the dangerous substances and preparations listed in the Annex. Directive 76/769 was amended, inter alia, by Directive 91/338 which aimed firstly to harmonize national rules concerning the marketing and use of products containing cadmium and secondly to combat environmental pollution by cadmium and protect the health of the population. Article 1 of Directive 91/338 read as follows: ‘Annex I to Directive 76/769/EEC was hereby amended as set out in the Annex hereto. However, the new provisions shall not apply to products containing cadmium which are already covered by other Community legislation.’ Annex I to Directive 91/338 allowed a maximum cadmium content of 0.01% by mass of the plastic material for products with cadmium-based colours. By its question, the national court was essentially asking whether Article 1 of Directive 91/338 was to be interpreted as meaning that it precluded the prohibition in that Directive of the marketing of products with a cadmium content in excess of an authorized maximum amount from applying to toys covered by Directive 88/378. The court noted that both Directive 88/378 and Directive 91/338 laid down standards as to cadmium content. However, those standards were separate and corresponded to different objectives. The maximum content of 0.01% by mass of the plastic material, according to Annex I to Directive 91/338 for products with cadmium-based colours, related to the maximum amount of cadmium which a product could contain, whilst the maximum standard of 0.6 micrograms of bioavailability established in Title II, paragraph 3(2) of Annex II to Directive 88/378, related to the capacity of a substance, in this instance that of cadmium, to be diffused and absorbed by the body. The fact that the standards laid down by Directives 88/378 and 91/338 were defined by reference to separate reference values was explained by the different objectives of those Directives. Directive 88/378, by establishing a daily limit for cadmium bioavailability, sought to protect the user of a toy against the risks connected with the chemical properties of the product at the time of use, whereas Directive 91/338, by limiting the amount of cadmium in a product, was part of a policy which sought to protect the general population against the dispersion of cadmium into the environment. Having regard to the different content and the different objectives of those standards, the application to toys of the limit in cadmium bioavailability laid down by Directive 88/378 did not preclude the application to the same toys of the maximum cadmium content laid down subsequently by Directive 91/338. The court therefore held that the second sentence of Article 1 of Directive 91/338 was to be interpreted as meaning that it did not preclude the prohibition in that Directive of the marketing of products with a cadmium content in excess of an authorized maximum amount from applying to toys covered by Directive 88/378.