Europees recht – Titanium Dioxide

Facts

The Commission has lodged an application for the annulment of a Council Directive with the Court. The Council Directive is aimed at the harmonization of programs to reduce and eventually eliminate pollution by waste from the titanium dioxide industry.

This Directive (89/428/EEC) was based on Article 130s. However, it should have been based on Article 100a EEC, because it is a measure concerning the establishment and functioning of the internal market, within the meaning of Article 100a EEC. In addition, the Commission states that the very text of Articles 100a and 130s shows that the requirements of environmental protection form an integral part of the harmonizing action to be taken on the basis of Article 100a. Therefore, the Commission was of the opinion that the Directive lacked a valid legal basis.

The Council states that art. 130 EEC Treaty is the correct legal basis for the Directive, because the main focus is not on the harmonization of conditions of competition, but on the elimination of pollution by titanium dioxide production. This is one of the objectives referred to in Article 130r, which are pursued by means of measures adopted under Article 130s.

Court of Justice

If a choice can be made between different legal bases on which the powers of an institution are based, then the institution should choose a cooperation procedure provided in Article 149, paragraph 2 EEC. Under the cooperation procedure, the Council acts by a qualified majority where it intends accepting amendments to its common position proposed by the Parliament and included by the Commission in its re-examined proposal, whereas it must secure unanimity if it intends taking a decision after its common position has been rejected by the Parliament or if it intends modifying the Commission’s re-examined proposal.