C-52/93

O P I N I O N O F MR V A N GERVEN — CASE C-52/93

OPINION OF ADVOCATE GENERAL VAN GERVEN delivered on 18 May 1994 *

Mr President, other Member States to study the draft and Members of the Court, to make observations if they consider that the draft regulation is likely to constitute a barrier to trade. A first amending directive was adopted in 1988 2 and a second in March of this year. 3 1. The Commission has brought two actions before the Court for declarations that, by adopting various rules without notifying them at the drafting stage, the Kingdom of the Netherlands has failed to fulfil its obliga- tions under Articles 8 and 9 of Direc- tive 83/189/EEC laying down a procedure The Commission alleges that the Kingdom for the provision of information in the field of the Netherlands has not complied with of technical standards and regulations. * Articles 8 and 9 of the directive, in which the Member States' obligations are described as follows:

Directive 83/189/EEC

lation merely transposes the full text of an Pre-litigation procedure international or European standard, in which case information regarding the relevant stan- dard shall suffice; they shall also let the Commission have a brief statement of the grounds which make the enactment of such a technical regulation necessary, where these are not already made clear in the draft. 3. In the action commenced by application of 26 January 1993 (Case C-52/93), the Commission alleges that the Kingdom of the Netherlands adopted on 9 October 1990 Amendment XIII to the PVS regulation on quality standards for flower bulbs (iris, lily) (...) without giving notification of it at the draft- ing stage. O n 31 July 1991 the Commission sent a letter before action to the Netherlands authorities, which submitted observations on 4 November 1991. The Commission then sent a reasoned opinion in accordance with Article 9 Article 169 of the EEC Treaty on 18 May 1992, which was answered on 23 July 1992.

1. Without prejudice to paragraph 2, Mem- ber States shall postpone the adoption of a draft technical regulation for six months from the date of the notification referred to in Article 8(1) if the Commission or another In the action commenced by application of 9 Member State delivers a detailed opinion, March 1993 (Case C-61/93), the Commis- within three months of that date, to the sion challenges three Netherlands regula- effect that the measure envisaged must be tions: amended in order to eliminate or reduce any barriers which it might create to the free movement of goods.

Commission sent a reasoned opinion been notified at the drafting stage in accor- on 30 October 1991 which was answered dance with Article 8 of the directive, and that on 13 January 1992; its adoption has not been postponed in accordance with Article 9. The applicant concludes, therefore, that this is 'an obvious case of non-compliance with the obligations imposed on the Member States by the said directive, requiring ... the immediate suspen- sion of the measure'. Moreover, the Com- (2) a decree of 24 August 1988 amending the mission points out that, as it made clear in its regulation concerning the strength communication 86/C 245/05, 4 'it considers requirements for soft-drinks bottles. A that as a result of that infringement of proce- letter before action was sent on 27 Octo- dure, this technical regulation may not take ber 1989 and a reasoned opinion on 2 legal effect and is unenforceable against third April 1991. The Netherlands Government parties'. Consequently, the Commission, replied by letter of 9 July 1991; 'pursuant to Article 169 of the Treaty, requests your Government to put forward its observations on the views presented above ...', reserving the possibility of issuing a reasoned opinion later.

5. In its various reasoned opinions, the Written procedure before the Court Commission again states that the Kingdom of the Netherlands has failed to fulfil its obligations to notify draft technical regula- tions and to suspend their adoption for the periods provided for in the directive. In par- ticular, it develops the argument that a regu- lation adopted without the prior notification required by Article 8 of Directive 6. The requests made by the Commission in 83/189/EEC is unenforceable against third the forms of order sought in its applications parties in the legal system of the Member are straightforward, since they can be sum- State in question. It states that that principle marized as seeking a declaration that the is enshrined in the decisions of the Court Netherlands has failed to fulfil its obligations concerning the direct effect of directives and under Articles 8 and 9 of the directive and an embodies both the maxim nemo allegans tur- order that it should pay the costs of the pitudinem suam est audiendus (reasoned action. It is nevertheless the case that it is the opinions of 30 October 1991 and 18 May suspension of the legislation at issue which is 1992), and the prohibition of venire contra the central problem in the case. As in its rea- factum proprium (reasoned opinions of 2 soned opinions, the Commission develops April 1991). The Commission concludes that the argument that a national regulation of 'in order to put an end to that situation, the which prior notification was not given at the measure at issue ought to be suspended. Sub- drafting stage is unenforceable against third sequently, it could be notified at the drafting parties and it seems to conclude that the fail- stage.' Finally it requested the Kingdom of ure is still continuing since 'in order to put the Netherlands to 'take the measures neces- an end to that situation, the measure at issue sary to comply with this reasoned opinion ought to be suspended. Subsequently, it within a period of two months'. could be notified at the drafting stage.'

In its replies, the Commission challenges those allegations and states that it has not overstepped the bounds of its powers by submitting applications in which only the forms of order sought specify the subject- The first case was settled by a judgment of 2 matter. The grounds contested by the Neth- August 1993. 5 The Italian Republic had erlands were there only to draw attention to adopted a decree which was originally the purpose and effect of the provisions of intended to implement a directive but which Directive 83/189. did not in fact achieve that result. Since the decree laid down technical standards, the Commission had required it to be notified and it is apparent from a note in Advocate General Gulmann's Opinion that the Italian Republic had not sent the decree to the Commission until after the period allowed in the reasoned opinion for taking the neces- sary measures. Although the question of the decree's being unenforceable against third parties had been argued at length by the par- Taking note of that limitation of the scope of ties, Advocate General Gulmann pointed out the applications, the Kingdom of the Nether- that, in accordance with the decisions of the lands expresses doubt in its rejoinders as to Court, it was not open to the Court to state whether the pleas, thus adapted, can be its views on anything but the subject-matter upheld. The alleged failures to fulfil obliga- of the forms of order sought by the Com- tions are mere omissions, dating back several mission in its application. Consequently, the years. Furthermore, they are only failures to Court merely held that the Italian Republic comply with procedural rules, since no had failed to comply with Articles 8 and 9 of infringement of Article 30 of the Treaty has Directive 83/189. been alleged. The defendant pleads that the applications are inadmissible or at the very least unfounded, and requests that the Com- mission be ordered to pay the costs. 5 — Case C-139/92 Commission v Italy [1993] ECR 1-4707.

Two questions submitted for a preliminary Ascertaining the subject-matter of the ruling in the Decoster6 case concerned the actions direct effect of Directive 83/189 and the unenforceability against third parties of a national provision of which prior notifica- tion was not given at the drafting stage. However, it seemed to the Court more rele- vant to the subject-matter of the case to 8. Although the forms of order sought by answer a different question, which enabled it the Commission refer only to a declaration to supply a ruling on Community law suffi- that the defendant has failed to fulfil its obli- cient for the national court, thus making it gations under Articles 8 and 9 of Direc- unnecessary to answer the questions relating tive 83/189, the Kingdom of the Nether- to Directive 83/189. It was, nevertheless, lands' defence refers to different subject- apparent that Germany, France and the matter. The defendant has never denied that United Kingdom were set resolutely against it forgot to notify its various draft laws in the Commission on those questions. accordance with the procedure laid down in Directive 83/189. What it does challenge is the obligations which the Commission has sought to impose on it by virtue of its argu- ment that the directive has direct effect and that national regulations which have not been notified are unenforceable against third The problem was again argued before the parties. Court in Case C-317/92 Commission v Ger- many, in which Advocate General Darmon presented his Opinion on 15 December 1993. The question appeared, however, from a quite different perspective since the national At the hearing, the Commission's represen- legislation of which notification was not tative confirmed the stricdy limited purpose given at the drafting stage was contrary of the action, namely to obtain a declaration to Article 30 of the Treaty. According to that the failure to notify the draft regulations Advocate General Darmon, the failure to constituted a failure to fulfil obligations. fulfil obligations under Article 30 of the According to him, that was also the object of Treaty was coupled with failure to comply the letters before action and the reasoned with Article 8 of the directive. H e did not opinions. However, careful consideration of accept that there was a failure to comply the various documents annexed to the Com- with Article 9 of the directive, since that mission's applications reveals that the object provision did not apply until after the of those documents could be interpreted as communication under Article 8(1) of the going beyond a mere request for observa- directive, which was precisely what was tions regarding the existence of such a fail- lacking in the case in point. Regarding the ure. The Commission expressly referred to question of unenforceability against third the suspension or withdrawal of the legisla- parties, the Advocate General did not think tive provisions (in the original Dutch text: it appropriate to answer it in the course of 'dient te worden opgeschort' 7 and 'moet those proceedings.

9. That theory, to which the Commission seems to attach great importance, is undeni- However, that wording still left doubts as to ably interesting. It may be wondered why, if whether the alleged failure related to Arti- the Commission regards that proposition as cle 8 of the directive and consisted of the being essential to the proper working of the failure to communicate the regulations at the procedure established by Directive 83/189, it drafting stage, when it also referred to Arti- has never proposed to the European Parlia- cle 9 of the directive, relating to suspending ment and the Council that it should be the adoption of the draft technical regula- adopted in an amending directive. In any tion. In reply to the question put to him on case, like Advocate General Darmon, 9 I this point, the Commission's representative consider that it is not appropriate to consider stated that the actions related solely to the the validity of that argument in the course of failure to communicate technical standards. an action under Article 169. The Court's task It seems to me, therefore, that the judgments is to decide whether or not the Member State of the Court can apply only to Article 8 of in question has failed to fulfil its obligations the directive, since the reference to Article 9 under Community law, in this particular case is not relevant in the case in point. " Articles 8 and 9 of the directive. In such actions, it is not for the Court to decide on the consequences that a finding of such fail- ure may have in the national legal systems of the Member States. National courts will be bound by virtue of Article 171 of the Treaty Assessment of legal interest in bringing pro- to draw the necessary inferences from the ceedings judgments of the Court and to take all appropriate measures to enable Community law to be given full effect. 10

At the hearing, the representative of the However, such an argument cannot be Kingdom of the Netherlands asked the accepted. It falls to the Commission to assess Court to take into consideration in deciding whether it is expedient to bring an action for the costs the confusion caused by the Com- failure to fulfil obligations and at the hearing mission with regard to the actual subject- its representative emphasized the Commis- matter of the action. Under Article 69(3) of sion's concern with regard to non- the Rules of Procedure, it is possible for the compliance with the notification procedure Court to order that the costs be shared, laid down in the directive, in particular on where the circumstances are exceptional. the part of the Kingdom of the Netherlands and concerning legislation adopted after the letters before action and reasoned opinions sent in these cases. As Advocate General Tesauro stated in his Opinion in the case concerning the bridge over the Storebælt, lz 'it must in any case be supposed that the Commission has an interest in proceedings that it brings under Article 169, even where It seems to me that such exceptional circum- the infringements are not disputed'. stances are to be found in this case. Even if the discrepancies between the object of the letters before action, the reasoned opinions and the applications for a declaration of fail- ure under Article 169 did not prejudice the Kingdom of the Netherlands' right to a fair hearing, since of necessity the defendant had the opportunity to submit its observations with respect to the existence of the alleged That interest may, moreover, take the form breaches of Articles 8 and 9 of the directive, of finding a failure in the past, in view of the it should be noted that the absence of clarity consequences that may flow from such a on the part of the Commission made the finding in the legal systems of the Member defence more difficult. It was not completely States in which, as I have said, it is for the clear even to the Commission itself what the competent authorities and, in particular, the object of the letters before action and rea- courts to take the measures necessary to soned opinions was, since, according to its enable Community law to be given full representative, those documents did not effect. mention 'suspending' the laws, while their actual wording could be construed as having a different meaning. I therefore propose that the Court should order the costs to be 12 — Opinion presented on 17 November 1992 in Case C-243/89 Commission v Denmark [1993] E C R 1-3353. shared.

(2) Order the parties to bear their own costs.

In Case C-61/93

(1) Declare that, by adopting (1) on 16 January 1989 a decree concerning kilowatt- hour meters, (2) on 24 August 1988 a decree amending the regulation on the strength requirements for soft-drinks bottles and (3) on 21 October 1988 a decree amending the decision on the composition, classification, packaging and labelling of pesticides, without having notified them to the Commission at the drafting stage, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 8 of Directive 83/189/EEC laying down a procedure for the pro- vision of information in the field of technical standards and regulations;

(2) Order the parties to bear their own costs.

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