Commission v. Denmark

This case, also referred to as the ‘Danish Bottle’ case, addressed the question of whether a bottle recycling system introduced by the Danish government constituted a breach of Article 28 of the Treaty on the Functioning of the European Union (TFEU).

The Danish government replaced the bottle recycling system with a more stringent system. A law was introduced that stipulated that manufacturers only use bottles that could be collected and refilled for re-use and furthermore, required the returnable containers to gain formal approval by the National Agency for the Protection of the Environment. Only about 30 different types of container qualified for this system. Foreign suppliers argued that adapting to the new legislation’s requirements would increase production costs and thus keep foreign suppliers from entering the Danish market.

A case was brought in front of the European Court of Justice (ECJ) in which it was argued that the legislation requiring the containers to be reusable was a form of discrimination against foreign manufacturers and therefore constituted a restriction on free trade under Article 28 TFEU.

The ECJ held that environmental protection was a permissible justification for such a discrimination. However, for that justification to apply here, the new recycling system had to be proportionate in achieving the aim of environmental protection. The more strict system was held to generally be more eco-friendly and therefore acceptable. However, the further requirement imposed by Danish law, allowing only a limited number of container shapes, was held to be disproportionate and therefore violating EC law.