Italian Packaging Law on Biodegradable Bags (ITALYBAG)

          CASE NUMBER:          37 
          CASE MNEMONIC:      ITALYBAG
          CASE NAME:          Italian Packaging Law

A.        IDENTIFICATION
1.        The Issue
     In February, 1987 the Mayor of Lombardy, Italy issued a directive
prohibiting merchants from providing customers with any "non-biodegradable
bags or other containers in which to carry away their purchases, or to sell or
otherwise distribute plastic bags, with the exception of those intended for
the disposal of rubbish."  Several manufacturers within the municipality of
Lombardy and several foreign producers challenged this directive arguing that
the mayor did not have the authority to impose this law.  The European Court
of Justice found that Waste Directive 75/442 gave the mayor that authority.
2.        Description
     The four principle issues in the case known as Cinisello Balsamo is
whether Waste Directive 75/442 gives EEC nationals the right under Community
law to sell or use the products covered under it including, inter alia, non-
biodegradable plastic carrier bags.  Consider that the Directive does not
explicitly prohibit the sale or use of "waste", rather it imposes obligations
upon Member States in regard to waste disposal.
     The parties involved in the dispute include plaintiff companies Enichem
Base, Montedipe, Solvay, SIPA Industriale, Aktene, Neophane and Polyflex
Italiana, all of whom have an interest in the manufacture of plastic bags. 
The defendant is Mayor Cinisello Balsamo, of the municipality of Lombardy,
Italy.  The dispute arose out of the following municipality law ordered by
Mayor Cinisello Balsamo in Lombardy on February 16, 1987, by Decision 25:
     It is prohibited from 1 September 1987 until the entry into force of
     similar provisions at the regional or national level, to provide
     customers with non-biodegradable bags or other containers in which to
     carry away their purchases, or to sell or otherwise distribute plastic
     bags, with the exception of those intended for the disposal of rubbish.
     Plaintiffs challenged Decision 25 before the regional administrative
court of Lombardy on the ground that it was contrary to three Council
directives on waste: Council Directive 75/422 on waste (1975), Council
Directive 76/403 on the disposal of polychlorinated biphenyls and
polychlorinated terphenyls (1976), and Council Directives 78/319 on toxic and
dangerous waste (1987).  The interim suspension of Decision 25 was granted on
July 8, 1987, and on November 30, 1987, the regional administrative court
requested a preliminary ruling by the Court of Justice of the European
Communities (5th Chamber), received by the Court's Registry on December 21,
1987.
     Despite the fact that the case began with a dispute between only
Italians, it carried implications throughout EC countries because it
conflicted with EEC waste directives and because of its impact on trade
patterns.  Foreign plastics manufacturers supported the position of the
Italian companies who disputed the regulation, since it would affect them as
well.
     The larger issue is the growing amount of waste in Europe and the
declining number of areas where the waste can be disposed (see GERMAUTO, GERMPACK, and ECPACK
cases).  As a result of this problem Europe began exporting waste, both
dangerous and non-dangerous, to developing countries (especially Africa). 
Under mounting international pressure and legal requirements in the Basel
Convention (see BASEL case) these outlets are
becoming less and less available (see also NIGERIA and SOMALIA
cases). 
3.        Related Cases
     Keyword Clusters         
     (1): Trade Product            = PLASTic
     (2): Bio-geography            = TEMPerate
     (3): Environmental Problem    = Waste Land [WASL]
4.        Draft Author:  Jennifer Fedor
B.        LEGAL Clusters
5.        Discourse and Status:  DISagreement and COMPlete
     The case is one of disagreement because it involves a legal proceeding
to resolve a dispute between local, national, and EU policy.  The case was
decided by the Court of Justice of the European Communities (5th Chamber) on
13 July 1989 (Case 380/87).
6.        Forum and Scope:  EURCOM and REGION
     The forum is the European Court of Justice, 5th Chamber.
7.        Decision Breadth:  12 (EURCOM members)
     Other parties involved in the case include seven Italian manufacturing
companies and Mayor Cinisello Balsamo of Lombardy, Italy.
8.        Legal Standing:  TREATY
     The case illustrates the growing tensions between local, national, and
community law in Europe.  It is similar to the controversy in the Dutch
locality's ban on the imports of tropical hardwoods (see DUTCHWD case).
C.        GEOGRAPHIC Clusters
9.        Geographic Locations
     a.   Geographic Domain : EUROPE
     b.   Geographic Site   : Southern Europe [SEUR]
     c.   Geographic Impact : ITALY
10.       Sub-National Factors:  YES
     This case essentially arose because of the difference in laws at
differing levels of jurisdiction ( see also ONTARIO case).
11.       Type of Habitat:  TEMPerate
D.        TRADE Clusters
12.       Type of Measure:  Regulatory Ban [REGBAN] 
     The type of trade measure in the case is a ban which prohibits the sale
or distribution of plastic bags/containers, except for trash disposal
purposes, in Lombardy, Italy.  The Court of Justice of the EC answered the
four key issues as follows:
     1.  The purpose of Waste Directive 75/442 is to harmonize Member State
     legislation regarding waste disposal in an effort to protect the health
     and environment of Community members, to avoid barriers to intra-
     Community trade, and to eliminate unfair competition resulting from
     disparities in Member States' domestic waste disposal laws.  Article 3
     makes apparent the directive's objective to encourage national measures
     likely to prevent the production of waste.  Although Directive 75/442
     only imposes obligations for the disposal of waste products and does not
     prohibit their sale or use, it does not give EEC nationals the Community
     right to sell or use plastic bags and other non-biodegradable
     containers.
     2.  Article 3(2) of Waste Directive 75/442 does require Member States to
     inform the Commission of any draft rules designed to encourage, inter
     alia, the prevention, recycling and processing of waste products covered
     under its terms, prior to their final adoption by the Member States (and
     municipalities thereof).
     3.  Article 3(2) of Waste Directive 75/442 does require Member States to
     notify the Commission of any proposed national waste disposal measures
     prior to their adoption.  However, nothing in the Directive gives EEC
     citizens the right to obtain annulment or suspension of national rules
     where Member States fail to provide such notification.  
     4.  Article 3(2) does not condition implementation of national
     draft rules upon Commission approval or failure to object thereto. 
     Its purpose is informational regarding national waste disposal
     initiatives.  The Commission can thereby harmonize legislation or
     react against measures it finds contrary to Community law.
13.       Direct vs. Indirect Impacts:  INDirect
     The measure applies to any plastic bags, but does not treat imports
differently from domestic products.
14.       Relation of Measure to Environmental Impact
     a.  Directly Related     : NO
     b.  Indirectly Related   : YES  PLASTics
     c.  Not Related          : NO
     d.  Process Related      : YES  Land Waste [WASL]
15.       Trade Product Identification:  PLASTics
     The product in question involves non-biodegradable plastic carrier
bags/containers sold or used in Lombardy, Italy, with the exception of those
intended for the disposal of rubbish.
16.       Economic Data
     The plastics industry is enormous in Europe, particularly in Germany (see
GERMPACK and ECPACK cases).
17.       Impact of Measure on Trade Competitiveness:  BAN
     The municipal law in question prohibits the use or sale of certain non-
biodegradable plastic carrier bags.  The Court of Justice of the EC did not
find the law void or contrary to Community law.  Therefore, because the
municipal law imposes a ban on the trade (sale or use) of certain non-
biodegradable plastic carrier bags.
18.       Industry Sector:  PLASTics
19.       Exporter and Importer:  MANY and ITALY
E.        ENVIRONMENT Clusters
20.       Environmental Problem Type:  Waste Land [WASL]
     The environmental problem type may be characterized as land waste and
waste (non-biodegradable bags or other containers not used for rubbish
disposal).  The underlying issue is the state of landfills in Italy and
Europe.
21.       Name, Type, and Diversity of Species
     Name:          NA
     Type:          NA
     Diversity:     1,820 higher plants per 10,000 km/sq (Italy)
22.       Resource Impact and Effect:  LOW and REGULatory
     The impact of resource concentration (e.g. pollution and waste) of
Cinisello Balsamo is low.  Its likely impact upon the Italian municipality
(and other municipalities that may follow in its footsteps) is to reduce the
pollution and waste attributable to the sale/use of certain non-biodegradable
plastic carrier bags/containers.
23.       Urgency and Lifetime:  MEDium and 100s of years
24.       Substitutes:  Bio-degradable [BIODG] products 
VI.       OTHER Factors
25.       Culture: NO
26.       Trans-Border: NO
     Landfill problems span most of Europe, but this is not a specific trans-
border case.
27.       Rights: NO
28.       Relevant Literature
EC Waste Directive 75/442.  Brussels: European Community.
Enichem Base and Other v. Comune di Cinisello Balsamo. Case 
     380/87, 1 CMLR 313, EC Court of Justice, 5th Ch. 

                                References