C-194/94

The conditions for installing, maintaining and using the alarm systems and networks referred to in Article 1(4) and their compo­ nents shall also be determined by royal 3. Under Article 1(4), the Law covers decree.' alarm systems and networks intended to

* Original language: Danish. 4. The 1991 Decree was adopted on the basis 1 — OJ 1983 L 109, p. 8, as amended by Council Directive 88/182/EEC of 22 March 1988 (OJ 1988 L 81, p. 75). of Article 12 of the Law. Under Article 2 of

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the Decree, no manufacturer, importer, (2) checking the electrical circuit against the wholesaler or any other natural or legal per­ documents submitted by the manufacturer; son may market new equipment or make it available in any other way to users in Bel­ gium if it has not been previously approved by the Equipment Committee. Approved equipment must bear a visible stamp affixed by the person who has requested approval (3) checking the minimum required func­ and must refer to the approving body itself. tions as described in Annex 4 to this decree.'

Under Article 4(1) of the 1991 Decree, the Article 6 is worded as follows: Ministre de l'Intérieur (Minister for Home Affairs) is to draw up the list of bodies spe­ cializing in carrying out the tests which may lead to the equipment being approved. Applications for approval of the equipment must be sent directly to one of those bodies, which alone are competent to carry out the 'The tests to be carried out on the equipment tests. concern:

(5) protection against fraud or attempts to Facts of the case disable the equipment.

5. The plaintiff in the main proceedings, SA C. I. A. Security International (hereinafter 'C . I. A.'), is a Belgian undertaking which, in To that end, the equipment shall undergo the 1993, took over SPRL C. I. A. Security, tests listed in Annexes 3 and 4 to this decree. which was in liquidation. Among the opera­ A detailed description of those tests may be tions taken over was a burglar alarm system obtained on written request from the bodies 'Andromede', which had received a prize at referred to in Article 4(1). Those tests may the 42nd 'Salon Mondial de l'Invention, de la be applied to the various types of compo­ Recherche et de l'Innovation Industrielle — nents.' Brussels-Eureka '93'. After the take-over, C. I. A. continued to market the Andromede system which, according to information given by C. I. A., is assembled in Belgium from products manufactured in Germany, Italy and Belgium. The parties are in agree­ ment that no type approval for the alarm system in question has been sought in Bel­ Article 7 provides that 'the tests made on gium. individual parts do not constitute a guarantee that the parts are mutually compatible. The person who has developed the alarm system is wholly responsible in that connection.'

Commerce, Liège, claiming that by their The relevant Community rules conduct Signalson and Securitel were in breach of good commercial practice and thereby infringed Articles 93 and 95 of the Law of 14 July 1991 on Commercial Prac­ tices (hereinafter 'the Belgian Law on Com­ mercial Practices'). C. I. A. further claimed that Signalson and Securitel should be fined 9. Under Article 30 of the Treaty, quantita­ and that the decision against them should be tive restrictions on imports and all measures published. In the course of the proceedings having equivalent effect are prohibited. C. I. A. submitted that the Belgian rules on approval of alarm systems and networks in the Law and the 1991 Decree constituted a measure having an effect equivalent to a quantitative restriction and were thus in breach of Article 30 of the Treaty and, more­ 10. The Directive sets out an information over, that the rules were invalid since — as is procedure whereby the Member States are to not disputed — they were not communi­ forward all drafts of technical regulations to cated to the Commission under the rules of the Commission. the Directive.

In Article 1(1), (5) and (6) the terms 'techni­ cal specification', 'technical regulation' and 'draft technical regulation' are defined. Those provisions are worded as follows:

12. Article 8(1) of the Directive is worded as follows:

'Member States shall immediately communi­ cate to the Commission any draft technical regulation, except where such technical regu­ lation merely transposes the full text of an international or European standard, in which case information regarding the relevant stan­ dard shall suffice; they shall also let the 5. "technical regulation", technical specifica­ Commission have a brief statement of the tions, including the relevant administra­ grounds which make the enactment of such a tive provisions, the observance of which technical regulation necessary, where these is compulsory, de jure or de facto, in the are not already made clear in the draft. case of marketing or use in a Member Where appropriate, Member States shall State or a major part thereof, except those simultaneously communicate the text of the laid down by local authorities; basic legislative or regulatory provisions principally and directly concerned, should knowledge of such text be necessary to assess the implications of the draft technical regulation.'

6. "draft technical regulation", the text of a technical specification including adminis­ trative provisions, formulated with the The Commission shall immediately notify aim of enacting it or of ultimately having the other Member States of any draft it has it enacted as a technical regulation, the received; it may also refer this draft to the text being at a stage of preparation at Committee referred to in Article 5 and, if which substantial amendments can still be appropriate, to the Committee responsible made.' for the field in question for its opinion.

Conversely, it follows from Article 9(1) that a Member State can implement the regu­ lation notified provided neither the Commis­ sion nor a Member State has made any objection within the prescribed period of 14. Under Article 8(4), the information sup­ three months. plied under Article 8 is to be confidential. However, the Committee and the national authorities may, provided that the necessary precautions are taken, consult, for an expert opinion, natural or legal persons, including 2 persons in the private sector. 16. In a communication of 1 October 1986 concerning non-compliance with cer­ tain provisions of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regu­ lations, the Commission set out the legal 15. Under Article 9(1) of the Directive, consequences of failure to take account of Member States are to postpone the adoption the notification requirement. 3 of a draft technical regulation for six months from the date of the notification if the Com­ mission or another Member State delivers a detailed opinion, within three months of that date, to the effect that the measure envisaged must be amended in order to eliminate or The seventh and eighth paragraphs state as reduce any barriers which it might create to follows: the free movement of goods. The Member State concerned is to report to the Commis­ sion on the action it proposes to take on such detailed opinions. Under Article 9(2), the said period is extended from 6 to 12 months if, within three months following 'It is clear that the failure by Member States the notification referred to in Article 8(1), to respect their obligations under this infor­ mation procedure would lead to the creation of serious loopholes in the internal market, with potentially damaging trade effects. 2 — Article 8(4) was, moreover, amended by Directive 94/10/EEC of 23 March 1994 (OJ 1994 L 100, p. 30) to the effect that information would not be confidential except at the express request, supported by reasons, of the notifying Member State. That directive is not, however, applicable to this case. 3 — OJ 1986 L 245, p. 4.

5 — For examples of such publications pursuant to the communi­ cation reference should be made to OJ 1994 C 3, p. 2, and 4 — OJ 1989 C 67, p. 3. OJ 1994 C 8, p. 2.

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The questions referred for a preliminary (4) Does the Royal Decree of 14 May 1991, ruling in particular Articles 2 and 8 thereof, contain technical regulations which should have been communicated to the Commission beforehand in accordance with Article 8 of Directive 19. By an order of 20 June 1994 the Tribunal 83/189/EEC? de Commerce, Liège, referred the following questions to the Court of Justice:

(5) Are the provisions of Council Directive '(1) Does the Law of 10 April 1990 on care- 83/189/EEC laying down a procedure taking firms, security undertakings and for the provision of information in the internal caretaking services and, more field of technical standards and regula­ particularly, Articles 4 and 12 thereof, tions, in particular Articles 8 and impose quantitative restrictions on 9 thereof, unconditional and sufficiently imports or does it contain measures precise to be relied upon by individuals having an effect equivalent to a quanti­ in proceedings before national courts? tative restriction prohibited by Article 30 of the EEC Treaty?

(6) Do Community law and the protection (2) Is the Royal Decree of 14 May which it affords to individuals require a 1991 laying down the procedure for national court to refuse to apply a approving alarm systems and networks, national technical regulation which has which is referred to in the Law of not been communicated to the Com­ 10 April 1990, and in particular Articles mission by the Member State which 2 and 8 thereof, compatible with Article adopted it, in accordance with the obli­ 30 of the Treaty which prohibits quan­ gation laid down in Article 8 of Council titative restrictions on imports and all Directive 83/189/EEC?' measures having an effect equivalent to a quantitative restriction?

22. Signalson has claimed that the Law and the 1991 Decree do not fall within the scope of Article 30 of the Treaty, since this is a sit­ uation covered by the Court's judgment in Joined Cases C-267/91 and C-268/91 Keck 6 and Mithouard.

25. In my opinion Article 4 of the Law con­ cerns prior authorization of security firms and thus the conditions governing the estab­ 23. The Belgian Government has stated that lishment of undertakings in Belgium. Such a implementation of a new Decree of rule must, in principle, be assessed on the 31 March 1994 has rendered the questions basis of Articles 52 and 58 of the Treaty. referred to the Court otiose. According to the consistent case-law of the Court, the Treaty's provisions on the right of establishment cannot be applied to activities 6 — [1994] ECR I-6097. which are confined in all respects within a

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9 — [1982] ECR 4575, paragraph 9. The Court does not appear to have followed up that decision. 10 — [1988] ECR 4489, paragraphs 8 and 9. 7 — See, for example, Joined Cases C-29/94 to C-35/94 Aubertin 11 — In contrast to the Oosthoek case, the questions referred to and Others [1995] ECR I-301, paragraph 9, and Joined Cases the Court did not raise the question of whether the situa- C-330/90 and C-331/90 López Brea and Hidalgo Palacios tion was a purely domestic one. In connection with free- [1992] ECR I-323, paragraph 7. dom of movement for persons, the Court has meanwhile 8 — See Case C-379/92 Peralta [1994] ECR I-3453, paragraph 24. dealt with the question on its own motion.

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OPINION OF MR ELMER — CASE C-194/94

determine the origin of a product than the (such as those relating to designation, form, origin of, for example, a service. It also size, weight, composition, presentation, results in the application by a Member State labelling, packaging). That is so even if those of a national rule to a product which is rules apply without distinction to all prod­ assembled in the Member State in question ucts unless their application can be justified often affecting the import of goods, at least by a public-interest objective taking prece­ 12 13 indirectly or potentially. dence over the free movement of goods.

12 — The Court has consistently held that all rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be regarded as measures having an effect equivalent 13 — See the judgment in Keck and Mithouard cited in footnote to quantitative restrictions. See, for example, Case 6, at paragraph 15. C-412/93 Edouard Leclerc-Siplec v TF1 Publicité and 14 — See, for example, Case 188/84 Commission v France [1986] M6 Publiáté [1995] ECR I-179, paragraph 18. ECR 419, paragraphs 13 to 17.

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33. The question which now falls to be 35. Under the principle of mutual recogni­ examined is whether a system of prior type tion, the Member States are under an obliga­ approval for alarms systems and networks is tion to approve imported goods provided compatible with the principle of proportion­ they satisfy the requirements in another ality, or whether there are other effective Member State which, irrespective of whether means which are less burdensome. An alter­ they are identical, ensure a corresponding native might be a system laying down an (equivalent) level of protection. Further­ obligation to comply with the manufacturing more, Member States are required to assist in requirements laid down and providing for bringing about a relaxation of controls by subsequent random sampling. Regardless taking account of equivalent tests undertaken 16 whether such a system is a possibility, it in another Member State. would not, however, ensure to the same degree as prior inspection that the equipment complied with the requirements laid down. 15 — OJ 1993 L 188, p. 32. A type approval system will, presumably, be 16 — See, for example, Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Produkten [1981] ECR 3277, more effective in preventing the equipment paragraphs 14 and 15.

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OPINION OF MR ELMER — CASE C-194/94

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Law and the 1991 Decree. They are therefore Directive only to the extent that require­ technical specifications within the meaning ments concerning products are laid down in of the Directive. In that connection it is irrel­ those regulations. Article 4 of the Law evi­ evant that the actual approval requirement is dently does not contain such requirements. found in a framework law. Therefore in my view those provisions fall outside the scope of the Directive.

43. Under Article 4 of the Law, only per­ 45. The Law and the 1991 Decree intro­ sons with prior authorization from the Min­ duced a type approval procedure for alarm istère de l'Intérieur may operate a security systems and networks. Article 12 of the Law firm. In that provision rules are laid down laid down, as stated, the actual requirement for the establishment of undertakings, of prior approval of alarm systems and net­ whereas the Directive covers technical regu­ works. At the hearing the Belgian Govern­ lations for products. National regulations ment explained that even without the concerning the establishment of undertak­ 1991 Decree Article 12 of the Law would ings must be regarded as covered by the not be without legal effect. The provision is

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OPINION OF MR ELMER — CASE C-194/94

46. The 1991 Decree implies that a number 48. By its fifth and sixth questions, the of tests must be carried out, the purpose of national court seeks to ascertain whether the which is to establish that the equipment sat­ provisions in the Directive, in particular isfies the technical requirements laid down. Articles 8 and 9, are unconditional and suffi­ Those requirements in respect of the product ciently precise so that they can be relied concern inter alia mechanical properties, reli­ upon by individuals before a national court ability, tests and protection against misuse. and whether the national court should Such requirements which lay down the char­ decline to apply a national technical regu­ acteristics required of the alarm systems and lation which has not been notified in accord­ networks product group are, in my view, in ance with Article 8 of the Directive. the nature of technical specifications within the meaning of the Directive, which specifi­ cally include requirements of quality, perfor­ mance and safety. Furthermore, under the Decree satisfaction of those requirements is a precondition of the equipment's being law­ fully marketed in Belgium. A set of rules such as that contained in the 1991 Decree is 49. C. I. A. and the Commission have stated therefore a technical regulation as defined in that the Directive, in particular Articles Article 1(5) of the Directive. 8 and 9, impose precise and unconditional obligations on the Member States and that technical regulations that have not been noti­ fied are not enforceable (see the Commis­ 17 — See the situation in Case C-317/92 Commission v Germany [1994] ECR 1-2039, paragraph 26. sion's 1986 communication).

The Commission has, in addition, referred to dural rules which govern the relationship the fact that, in its view, an analogy may be between the Community and the Member drawn with Article 93(3) of the Treaty, con­ States. The provisions of the directive are not cerning State aid. That provision introduces a unconditional and sufficiently precise so as procedure whereby the Commission is to be to have direct effect. Rather, in the event of informed of plans to grant aid in order that it any infringement of the obligation to notify, may undertake an investigation and submit the Commission may bring proceedings its comments. The Member State in question under Article 169 of the Treaty and individ­ may not implement the planned measures uals should rely on Article 30 of the Treaty before the investigation procedure has termi­ before national courts. In this connection the nated in a decision. Article 8 of the Direc­ United Kingdom and the Netherlands Gov­ tive, according to which draft technical reg­ ernment referred to the fact that in the 16th ulations are to be notified, and Article 9, recital in the preamble to its proposal for 18 which requires the Member State in question amending the Directive, the Commission to postpone implementation until certain proposed that the Directive should lay upon time-limits have expired, constitute a system the Member States clear and unconditional which corresponds to Article 93(3). obligations and enable individuals to enforce those obligations before the courts. That part of the recital was, however, left out when 19 Directive 94/10 was finally adopted. Directive 94/10 is silent as to the conse­ quences of failure to notify and does not confer rights on individuals; it does not C. I. A. has stated that, if applicable, there is affect the Member States' right ultimately to no question of the Directive imposing obli­ adopt the technical regulation once it has gations on individuals. The Commission, in been notified. According to the United answering an inquiry relating to that point, Kingdom, an analogy with Article 93(3) of referred to the fact that in this case what is at the Treaty is misconceived, since the Mem­ issue is the trader's legal position in relation ber State's ultimate implementation of a to the State under national rules which were measure in the case of State aid is conditional implemented without complying with the on the Commission's prior express or notification procedure laid down in the implied approval. Non-compliance with the Directive. obligation to notify does not necessarily mean that the provision is substantively in breach of the Treaty. If obstacles were put in the way of enforcement of non-notified reg­ ulations, that would in many cases affect reg­ ulations which were substantively compati­ 50. In its observations Signalson did not ble with Community law. It could weaken comment on that question.

controls on dangerous products to the detri­ deliver a detailed opinion to the effect that ment of the individual. the measure envisaged should be amended in order to eliminate or reduce any barriers which it might create to the free movement of goods. If such an opinion is delivered, final adoption is postponed for a further six months calculated from notification. If the Commission gives notice of its intention of 52. Under the Court's consistent case-law, proposing or adopting a directive on the after expiry of the time-limit for implement­ subject, the period is extended to 12 months ing a directive, an individual may rely, from notification. Those obligations are, in against the State, on provisions of that direc­ my view, unconditional and sufficiently pre­ tive which appear, as far as their subject- cise so as to be capable of having direct matter is concerned, to be unconditional and effect. The question is accordingly whether sufficiently precise, in so far as they define those provisions in Articles 8 and 9 confer rights which individuals are able to assert 20 rights on individuals. against the State. Provisions in a directive which have direct effect take precedence over 21 contrary provisions in national legislation. A directive cannot, however, of itself impose obligations on an individual and cannot therefore be relied upon as such against an 22 individual. The Court pointed out that the case-law on the possibility of relying on directives against State entities is based on the fact that under Article 189 a directive is binding only in relation to 'each Member 54. The Court has previously had occasion State to which it is addressed'. 23 in certain cases to assess the extent to which individuals may rely on Community law procedural provisions. Its judgment in Case 24 174/84 Bulk Oil concerned a provision in a Council decision whereby Member States contemplating a change in the state of liber­ alization in trade with third countries were 53. Article 8(1) of the Directive imposes an obliged to inform the other Member States obligation on the Member States to notify and the Commission. After notification, con­ the technical regulations defined in the sultation would then take place before final Directive. Article 9(1) and (2) contains a adoption. No detailed procedural rules or number of suspensory provisions. The Com­ time-limits were laid down in that connec­ mission and the Member States thus have a tion. The Court held that the provisions in period of three months to investigate and question concerned only the institutional relationship between a Member State and the Community and the other Member States and did not create individual rights which 20 — See, for example, Case 8/81 Becker [1982] ECR 53, para- 25 graphs 24 and 25. national courts must protect. 21 — See, for example, Case 190/87 Moormann [1988] ECR 4689, paragraph 23. 22 — See, most recently, Case C-91/92 Faccini Dori[1994] ECR I-3325, paragraph 20. 23 — See Case C-91/92 Faccini Dori, cited in footnote 22, para- 24 — [1986] ECR 559. graph 22. 25 — See paragraph 62.

In his Opinion, at point 14, Advocate Gen­ eral Jacobs stated that when assessing the 56. On the other hand, reference should be consequences of a failure to inform the made to the Court's case-law concerning Commission a comparison between Direc­ Article 93(3), which is worded as follows: tive 83/189 and Directive 75/442 on waste 'The Commission shall be informed, in suf­ was instructive. In contrast with Directive ficient time to enable it to submit its com­ 75/442, Directive 83/189 contained a number ments, of any plans to grant or alter aid. If it of detailed provisions enabling the Commis­ considers that any such plan is not compati­ sion and other Member States to make com­ ble with the common market having regard ments on the notified drafts and required to Article 92, it shall without delay initiate Member States in certain circumstances to the procedure provided for in paragraph 2. postpone the adoption of the drafts for cer­ The Member State concerned shall not put tain periods. The Advocate General pointed its proposed measures into effect until this out that since Directive 75/442 did not pre­ procedure has resulted in a final decision.' scribe any procedure for suspension of intro­ duction of the measure, or for Community control, it could not be maintained that a failure to inform the Commission had the effect of rendering the measures unlawful. The Court has held that the prohibition on implementation in the last sentence in Article 93(3) has direct effect and confers rights for 30 individuals. In its judgment in Case 31 120/73 Lorenz, the Court stated that the objective pursued by Article 93(3), which was to prevent the implementation of aid The Court, which came to the same conclu­ contrary to the Treaty, meant that a Member sion as the Advocate General, held that the Member States were merely required to inform the Commission in good time of any 28 — See paragraph 20. 29 — See paragraphs 22 and 23. 30 — See, for example, Case C-44/93 Namur-Les Assurances du Crédit [1994] ECR I-3829, paragraphs 16 and 17; Case 26 — [1989] ECR 2491. C-120/73 Lorenz [1973] ECR 1471, paragraph 8; and Case 27 — Council Directive 75/442/EEC of 15 July 1975 on waste 6/64 Costa v ENEL [1964] ECR 585. (OJ 1975 L 194, p. 47). 31 — See footnote 30, at paragraph 4.

State should await the result of the Commis­ comments on a draft, under Article 8(2) the sion's assessment as to whether a measure is Member State which has notified the meas­ incompatible with the common market. ure is to take such comments into account as Notification thus has suspensory effect. The far as possible in the subsequent preparation Court further stated that the direct effect of of the regulation. The actual implementation the prohibition extended to all aid which had of that part of the procedure is ensured by 32 been implemented without being notified. the fact that the Member State is bound to postpone the adoption of the regulation for three months calculated from the date of notification. Further postponements of six and 12 months calculated from the same date follow, if the Commission or a Member State delivers a detailed opinion to the effect that the measure envisaged should be amended, 57. From that case-law it can be concluded or the Commission gives notice of its inten­ that a rule which merely lays down an obli­ tion to propose or adopt a directive on the gation to notify a draft national rule without subject. If a detailed opinion is delivered, the linking that obligation to a subsequent for­ Member State which has notified the regu­ mal procedure does not of itself confer rights lation must, under Article 9(1), report to the on individuals. If, however, the obligation to Commission on the action it proposes to notify is linked to a procedure under which take on that detailed opinion. The Commis­ the draft must be examined at Community sion is to comment on that reaction. The level and the Member States are bound not Directive thus introduces a Community pro­ to implement a notified draft before that cedure whereby the adoption of national procedure has been terminated, rights will regulations may be suspended for up to ensue that can be relied upon by individuals. 12 months. The Community legislature con­ In that connection no requirement can be sidered it necessary to lay down those sus­ implied that the procedural provision in pensory provisions despite the fact that the question should expressly confer rights on Commission is empowered to bring Article individuals. It is the content and object of 169 proceedings on the basis of Article 30 or the provision in question that are decisive. submit a proposal for a directive should it take the view that a technical regulation that has been notified is incompatible with the free movement of goods.

1993 385 104 80 64 88 4 5

60. Differences between national technical regulations continue to constitute a signifi­ cant source of obstacles to free movement of goods. Those obstacles can either be elimi­ nated by harmonization measures or limited It is clear that the number of notifications in by making the principle of mutual recogni­ that period was relatively constant, at about tion more effective. In my view care should 380 per annum. It is also clear that both the be taken not to underestimate the Directive's Commission and the Member States often significance in that connection. The Direc­ submit comments and detailed opinions with tive's requirement that there should be prior regard to drafts notified. The number formalized discussions between the Member declined over the period. A possible reason States and the Commission form a specific might be that the Member States are becom­ basis for giving effect to that principle. Fur­ ing ever more aware of the obligations aris­ thermore, it opens up the possibility that in ing from the Treaty provisions on the free the light of the comments submitted a Mem­ movement of goods. In 1993, 385 drafts were ber State will amend a regulation which, notified. The Commission made comments regardless of its possible compatibility with in 80 and detailed opinions in 88 cases. The Article 30 et seq. of the Treaty, has an effect corresponding figures for the Member States on free trade in goods. It is thus not neces­ were 104 and 64 respectively. The extent to sarily the case that an obstacle to trade which which those comments and detailed opinions is eliminated by way of the procedure under had an effect on the drafts is not apparent. the Directive could also be removed on the basis of Article 30 of the Treaty.

submitted by the Member States. The scope not, however, ensure that a measure's effect and consequences of a notified regulation as an obstacle to trade is averted before it is can best be judged by those who will be implemented. Nor does it ensure that the affected by the regulation in practice. Trade Commission will bring an action for organizations and undertakings are made infringement of the Treaty as a result of fail­ aware of the existence of the draft by the ure to notify. Once a regulation has been Commission's notices in the Official Journal introduced in breach of the Treaty undertak­ of the European Communities before the ings will have to conform to it until a judg­ expiry of the three month period. Thus indi­ ment has been delivered in any case that viduals are ensured of a real opportunity to might be brought. Damage that will be diffi­ submit their comments to the competent cult to redress as regards the trader will authorities in the Member State in which therefore often have been incurred before they are established. If a regulation is not judgment is delivered. Many individuals notified, they are deprived of that opportu­ would, in my view, on that ground alone nity to affect the set of rules which they will refrain from bringing an action in the encounter in export markets. If Articles 8(1) national courts and instead adapt themselves and 9 of the Directive were held not to have to the regulation in question. In that way the direct effect, undertakings would have no trader does not risk jeopardizing his rela­ possibility of preventing such an infringe­ tionship with the national authorities. In ment. It will be noted that the provision con­ addition, the Directive's notification pro­ cerning confidentiality in Article 8(4) of the cedure might also result in obstacles to trade Directive does not prevent Member States which are compatible with the Treaty being from consulting natural and legal persons in reduced or eliminated. the private sector. Furthermore, to all appearances those provisions have not been strictly complied with in practice. Thus it is clear from the Commission's 1989 communi­ 34 cation that undertakings can obtain further information concerning a notified draft from specified authorities. 64. In interpreting the Directive no weight can be attached to the assertions of certain Member States concerning the background to any amendments which might have been made in proposals for a directive while they were being discussed in the Council. Under 63. Substantial considerations as regards the Court's consistent case-law, views and protecting the rights of individuals and declarations which have not been expressly ensuring that the Member States comply reproduced in the text adopted have no legal with the Directive militate in my view deci­ significance when the Court is interpreting a sively in favour of the Directive having legal measure. 35 That must be especially true direct effect. Individuals are, it is true, able to where, as in this case, the legal measure claim, when a case is being heard before a referred to was adopted after the point in national court, that a technical regulation is in breach of Article 30. That possibility does

a non-notified regulation could not be Thus the interest of the consumer cannot enforced. Their reasoning was that such an justify a Member State's omission to notify a effect could weaken the protection of con­ regulation. Failure to approve a product in sumers since a provision which has not been accordance with a non-notified regulation is, notified is not necessarily substantively in moreover, by no means tantamount to the breach of Community law. On this point I product being a danger to the consumer. The would point out that nor is a provision Member State in which the product is man­ which has been notified necessarily substan­ ufactured or put into free circulation will tively in breach of Community law. The typically have drawn up safety requirements. duty to notify covers any draft technical If a consumer product is involved, it follows regulation. The object is to bring that draft from the product safety directive that the into the light of day. It cannot be completely Member States are to ensure that only safe excluded that failure to notify is in some 37 products are placed.on the market. If there cases due to a pure oversight. It should not, is an actual safety risk in relation to con­ however, be forgotten that failure to notify sumer products action can be taken on the might also be regarded as an indication that 38 basis of the product safety directive. In the authorities in question do not wish the other areas specific action may be taken by draft to undergo prior examination, because virtue of Article 36 of the Treaty and the they know it will not stand up to scrutiny in the light of day. The likelihood that a non- general interests recognized by the Court. notified regulation is substantively in breach of Community law is thus no less than the likelihood that a notified regulation would 36 — At the hearing the Commission stated that that exemption be, rather the contrary. To accept the views is applied in some 10% of notifications. 37 — See Council Directive 92/59/EEC of 29 June 1992 on gen­ of the United Kingdom and the Netherlands eral product safety, OJ 1992 L 228, p. 24, Article 5. Government would therefore imply a situa­ 38 — Under Article 6(1)(h) of that directive, Member States can tion favouring Member States which did not even require products that have already been placed on the market to be withdrawn.

67. In summary, I consider that the notifica­ which has been specifically introduced in tion rule and suspensory provisions in Arti­ order to implement the directive and to pro­ cles 8(1) and 9 of the Directive confer rights visions in other legislation, and it applies on individuals and are unconditional and regardless whether the legislation preceded 43 sufficiently precise so that they may be relied the directive or vice versa. upon by an individual before a national court; accordingly technical regulations which have not been notified will not be enforceable in relation to individuals. A non- notified regulation will consequently not fur­ nish a basis for imposing a penalty on a trader or prevent him from marketing a 69. In the main proceedings Signalson and product which does not comply with the Securitel have claimed that C. I. A. should regulations. cease marketing the Andromede system since it has not received type approval under the provisions contained in the Law and 1991 Decree. They have further claimed that C. I. A. should be ordered to pay a periodic penalty payment as a result. Those claims are based on national regulations which have not been notified in accordance with the Direc­ tive, namely the Law and the 1991 Decree. On the basis of the Belgian Law on Com­ mercial Practices it is claimed that those reg­ 68. Consideration must, however, be given ulations should be enforced in relation to a to the question whether the direct effect of trader by way of an order that he cease mar­ the notification procedure in the Directive keting and pay a periodic penalty. Such can be relied upon in a case such as that in enforcement must, in my view, be contrary the main proceedings, where the action is to the direct effect of the notification pro­ between two individuals. Under the Court's 39 cedure set out in Articles 8(1) and 9 of the case-law a directive cannot, as stated, of Directive. That would, under the Court's itself impose obligations on an individual. A case-law hitherto, be clear without more if it provision in a directive cannot therefore be was the State which, as prosecutor, consumer relied upon as such against an individual, in ombudsman or similar had brought proceed­ the same way as the Community may not ings against C. I. A. The fact that the ques­ issue rules in the form of a directive which 40 tion in this case has been raised in the con­ impose obligations on an individual. On text of a private action, however, in my view the other hand, when applying national law, can make no difference whatsoever. It is the national courts must interpret national legal State which lays down rules on penalties, provisions, as far as possible, in the light of prohibitions on marketing, etc. and it is the the wording and purpose of the directive so 41 courts which must impose such sanctions as to achieve the result it has in view. That regardless of who, under the national rules obligation applies both to provisions in a law on procedure, might have brought the case.

73. If it were held that C. I. A. was not able to point to the incompatibility of the Belgian regulations with Community law in its claims against Signalson and Securitel that 71. The notification procedure in the Direc­ would, in my view, create an unsatisfactory tive imposes a number of obligations on the and incomprehensible situation where Com­ Member States. The Directive does not, munity law would on the one hand be seek­ however, on its wording, aim to impose ing to prevent a Member State from prose­ duties on individuals and therefore no ques­ cuting an individual who had not complied tion arises as to whether the Directive should with a non-notified technical provision, but have direct effect as far as individuals' obliga­ on the other hand would debar the same tions are concerned. The Directive is thus individual from relying on the same circum­ essentially different from Directive stance in a case against a competitor who had 85/577/EEC which was at issue in Case stated that the individual in question had 44 C-91/92 Faccini Dori. conducted himself unlawfully by not com­ plying with the (unlawful) national regu­ lation.

72. C. I. A.'s claim is itself based on national law. The purpose of the reference to the Court would appear, in the light of C. I. A.'s claims, to obtain the necessary basis for the It might be useful to illustrate what such a national court's interpretation of the Belgian legal situation could entail by means of an Law on Commercial Practices. I would refer example based on the Court's leading case to what was stated above concerning the on the direct effect of provisions in a direc­ national court's duty, as far as possible, to tive, Case 8/81 Becker. It would mean that

76. In view of the foregoing, I suggest that the Court should give the following replies to the questions referred to it by the Tribunal de Commerce , Liège:

(1) Article 30 of the Treaty should be interpreted as not precluding a system of type approval of alarm systems and networks such as that contained in Articles 4 and 12 of the Law of 10 April 1990 on caretaking firms, security

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undertakings and internal caretaking services or in Article 2 of the Royal Decree of 14 May 1991 laying down the procedure for approving the alarm systems and networks referred to in the Law of 10 April 1990.

(2) Article 8 of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations must be interpreted as meaning that provisions and specifica­ tions such as those contained in Article 12 of the Law of 10 April 1990 on caretaking firms, security undertakings and internal caretaking services and in Article 2 of the Royal Decree of 14 May 1991 laying down the procedure for approving the alarm systems and networks referred to in the Law of 10 April 1990 are covered by the requirement of notification under that provision.