Art. 1(8) of Fuel Quality Directive not infringing precautionary principle
This reference for a preliminary ruling concerned the validity of Art. 1(8) of Directive 2009/30.
Afton was based in the United Kingdom and formed part of the Afton Chemical group, which manufactures and sells MMT for used worldwide. MMT was a metallic fuel additive based on manganese, which was used to raise the octane level in unleaded fuel and/or to protect against valve damage in vehicles running on led replacement petrol.
Afton inter alia claimed that the imposition of limits for MMT content was the result of a manifest error of assessment of the facts by the Council and the Parliament. In support of that claim, Afton commented that there was no support for the imposition of those limits in the Commission’s conclusion as recorded in the impact assessment annexed to the proposal for a directive, and that those limits were unworkable and arbitrary.
The referring Court inter alia asked whether the insertion by Directive 2009/30 of Art. 8a(2) and Art. 8a(4) to (6) in Directive 98/70 was unlawful as being based on a manifest error of assessment as well as unlawful as being contrary to the precautionary principle.
The Court of Justice reiterated that, in an area of evolving and complex technology such as that in the present case, the European Union legislature had a broad discretion, in particular as to the assessment of highly complex scientific and technical facts in order to determine the nature and scope of the measures which it adopted, whereas review by the Community judicature had to be limited to verifying whether the exercise of such powers had been vitiated by a manifest error of appraisal or a misuse of powers, or whether the legislature had manifestly exceeded the limits of its discretion. In such a context, the Community judicature could not substitute its assessment of scientific and technical facts for that of the legislature on which the Treaty had placed that task (see to that effect Case C‑425/08 Enviro Tech (Europe) ).
The European Union legislature’s broad discretion, which implied limited judicial review of its exercise, applied not only to the nature and scope of the measures to be taken but also, to some extent, to the finding of the basic facts (see, inter alia, Case C‑120/99 Italy v Council  and Case C‑310/04 Spain v Council ).
The Court held that even though such judicial review was of limited scope, it required that the Community institutions which had adopted the act in question must be able to show before the Court that in adopting the act they actually exercised their discretion, which presupposed the taking into consideration of all the relevant factors and circumstances of the situation the act was intended to regulate.
The Court found that during the legislative process, the Parliament, the Council and the Commission took into account the available scientific data, including that which emerged in the course of that procedure, in order to exercise their discretion properly. According to the Court, in the light of the scientific documents which related both to the effects of MMT on human health and the environment and its impact on vehicles, the Parliament and the Council did not make a manifest error of assessment in deciding to set a limit for the MMT content of fuel. Consequently, Art. 1(8) of Directive 2009/30, in so far as it inserted an Art. 8a(2) in Directive 98/70, was not invalid.
With regard to the precautionary principle, the Court reiterated that this principle presupposed, first, identification of the potentially negative consequences for health of the proposed used of MMT, and, secondly, a comprehensive assessment of the risk to health based on the most reliable scientific data available and the most recent results of international research (see Case C‑333/08 Commission v France ).
The Court held that where it proved to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justified the adoption of restrictive measures, provided they were non-discriminatory and objective.
The Court stressed that, in those circumstances, it must be acknowledged that the European Union legislature might, under the precautionary principle, take protective measures without having to wait for the reality and the seriousness of those risks to be fully demonstrated (see also Commission v France, cited above).
It followed from the foregoing that Article 1(8) of Directive 2009/30, in so far as it inserted an Art. 8a(2) in Directive 98/70, was not invalid by reason of the infringement of the precautionary principle.