C-13/96

I-1755

OPINION OF MR RUIZ-JARABO COLOMER — CASE C-13/96

Article 369 of the 1993 Law defines a dispos- 5. Article 2 of the Ministerial Order pro- able article as follows: 'an article designed to vides that, for the purposes of applying the be used either once only or a limited number environmental tax, disposable items are 'dis- of times and which loses its usefulness either posable razors and disposable cameras' and after being used once or a limited number of that disposable razors are 'safety razors lack- times, or because one of its essential parts ing any means of changing the blades'. In has been used, emptied or exhausted and reply to an enquiry from Bic as to how those cannot be replaced, refilled or recharged'. provisions were to be interpreted, the Finance Minister explained by letter of 17 January 1994 that 'in accordance with Article 2(5) of the Ministerial Order of 24 December 1993 on the treatment of products subject to environmental tax ..., only integral dispos- able razors (with handle) are subject to envi- 4. Article 376(1) of the 1993 Law lays down ronmental tax'. Consequently, razors whose the amount of tax applicable to disposable handle is separable from the blade-holder, articles, as follows: with blades which may be replaced after being used one or more times, are not sub- ject to environmental tax. In razors of that type, only the blade or blades and blade- holder are disposable, but not the handle into which they are inserted, unlike safety razors, which are disposable in their entirety. '1. Where the disposable articles listed below, save those intended for medical pur- poses, are released on to the market, they are subject to an environmental tax at the rates shown in the following table:

The King shall determine the products to be exempted from the requirement to indicate the amount of the returnable deposit'.

9. Bic, which in Belgium markets only inte- gral disposable razors, has suffered a consid- erable drop in sales since the introduction of the environmental tax, causing it to question The detailed rules concerning the affixing of the lawfulness of the Belgian legislation the distinctive sign or tax marking are con­ establishing the tax by various means, tained in Article 11 of, and Annex 1 to, the including the proceedings which it has Ministerial Order. Those rules provide for a brought before the Conseil d'État for annul- specific distinctive sign which must appear ment of the Ministerial Order and of the let- on the labels of all products subject to the ter of the Finance Minister interpreting it. environmental tax, require the amount of the One of the grounds for annulment relied on tax to be stated and allow the distinctive sign by Bic was infringement of Articles 30 and to be placed on the packaging where a num­ 95 of the EC Treaty and of Directive 83/189. ber of products subject to the tax are mar­ keted in a single package.

The procedure for the provision of infor- mation under Directive 83/189

'Do the obligation to affix a particular dis- tinctive sign on products subject to a tax payable on account of the environmental damage which they are deemed to cause, prior to the release of such products on to the market, and the obligation to affix 12. Directive 83/189 has been amended by another distinctive sign on products of the Directives 88/182 and 94/10/EC. 6 Since the same type if they are exempt from that tax Belgian legislation concerning the introduc- by virtue of diplomatic privilege, constitute tion of the environmental tax was adopted in "technical specifications" within the meaning 1993, the question whether it is a technical of Article 1(1) of Council Directive regulation must be examined in the light of 83/189/EEC of 28 March 1983 laying down Directive 83/189 as amended by Directive a procedure for the provision of information 88/182. The changes made to the procedure in the field of technical standards and regula- for the provision of information by Directive tions, as amended by Council Directive 94/10, which came into force on 1 July 1995, 88/182/EEC of 22 March 1988, or "technical do not affect the Belgian rules concerning the regulations" within the meaning of Article environmental tax. 1(5) of that Directive?'

11. The question raised is confined to that of the compatibility with Directive 83/189 of 13. Directive 83/189 set up a procedure the obligation to affix a distinctive tax sign as intended to prevent technical barriers in provided for in the Belgian legislation estab- intra-Community trade arising out of the lishing the environmental tax. This Court is differences between the national rules of the therefore not called upon to rule on the pos- Member States concerning the production sible application of Articles 30 and 95 of the and marketing of goods. That preventive Treaty to national rules such as those in issue procedure supplements the prohibition, in here. Articles 30 to 36 of the EC Treaty, of

' 1 . Member States shall immediately com­ municate to the Commission any draft tech­ nical regulation, except where such technical regulation merely transposes the full text of 14. Article 1 of Directive 83/189 defines the an international or European standard, in . main terms used in the directive. Although, which case information regarding the rel­ in the Spanish, French, Italian and Portu­ evant standard shall suffice; they shall also let guese versions, the preamble speaks of tech­ the Commission have a brief statement of nical rules, Article 1 does not use that term, the grounds which make the enactment of and distinguishes between 'standards' and such a technical regulation necessary, where 'technical regulations', 7 depending on these are not already made clear in the draft. whether compliance is compulsory. Where appropriate, Member States shall simultaneously communicate the text of the 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. Articles 2 to 7 go on to set up a procedure for information and cooperation between the European and national standards institu­ tions, which applies to standards. Articles 8, 9 and 10 set up the procedure for infor­ mation regarding technical regulations, with The Commission shall immediately notify which the present case is concerned. the other Member States of any draft it has received; it may also refer this draft to the Committee referred to in Article 5 and, if appropriate, to the Committee responsible for the field in question for its opinion.

regulations are adopted as a result of a Com- a Community measure in the field. 9 The munity standard or an international agree- notification and standstill period enable the ment. Commission and the Member States to examine whether the draft technical regu- lation creates any barriers to trade contrary to the Treaty or trading restrictions which must be avoided by adopting Community harmonizing rules. In addition, the Commis- sion and the Member States may suggest amendments to the national measures envis- aged to the State which drew up the draft, although that State is not obliged to take them into account and its right to adopt the The Commission is to notify the other technical regulation once the standstill Member States immediately of such drafts period has expired remains intact. and, in addition, to publish a list in the Official Journal of the European Communi- ties in order to bring them more effectively to the attention of individuals. 8

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BIC BENELUX ν BELGIAN STATE

order to protect fundamental social interests, 20. The French Government and Bic con­ such as public health or safety or the protec­ sider in their observations that such a mark­ tion of health and life of animals or plants. 10 ing requirement constitutes a technical speci­ fication and that the Belgian legislation in which it is laid down is a technical regu­ lation, notification of which was compulsory in accordance with Directive 83/189. In sup­ port of that view, they refer to the judgment in Commission ν Germany, 12 in which the 18. The case-law of the Court of Justice has Court held that German legislation extend­ considerably strengthened the application of ing to sterile medical instruments the obliga­ the procedure for the provision of infor­ tions applicable to medicinal products with mation, by recognizing, in CIA Security, 11 regard to labelling, and in particular the obli­ that Articles 8 and 9 of Directive 83/189 gation to show 30 June .or 31 December as have direct effect and that technical regula­ the expiry date, was a technical regulation. tions not notified at the drafting stage cannot be relied upon as against individuals.

10 — Article 9(3) of Directive 83/189, as amended by Directive 88/182, provides as follows: 'Paragraphs 1, 2 and 2(a) shall not apply in those cases where, for urgent reasons relating to the protection of pub­ lic health or safety, the protection of health and life of ani­ mals or plants, a Member State is obliged to prepare techni­ The Belgian Government considers that the cal regulations in a very short space of time m order to enact and introduce them immediately without any consul­ aim of its legislation was to protect the envi­ tations being possible. The Member State shall give, in the communication referred to in Article 8, the reasons which ronment by means of a fiscal mechanism, the warrant the urgency of the measures taken. The Commis­ sion shall take appropriate action in cases where improper use is made of this procedure'. 11 — Case C-194/94 CIA Security v Signalson and Securitel [1996] ECR I-2201. 12 — Case C-317/92 Commission v Germany [1994] ECR I-2039.

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OPINION OF MR RUIZ-JARABO COLOMER — CASE C-13/96

environmental tax. In its opinion, Directive Article 1(5) defines 'technical regulation' in 83/189 applied only to rules concerning the following terms: products which directly give rise to barriers to free movement of goods. National envi­ ronmental measures could not be regarded as technical specifications or regulations prior to the amendment of Directive 83/189 by Directive 94/10. The Belgian State was there­ fore under no obligation to notify the rules 'technical specifications, including the rel­ in issue, which were adopted prior to the evant administrative provisions, the obser­ entry into force of Directive 94/10. vance of which is compulsory, de jure or de facto, in the case of [the] marketing or use [of a product] in a Member State or a major part thereof, except those laid down by local authorities'.

— the rules defining the conditions concern­ ing the quality tests and function tests for an alarm system or network to be approved and marketed in Belgium; 15

25. In order to determine whether, having regard to their mandatory nature, the Belgian rules requiring a distinctive sign to be affixed for the marketing of products subject to the environmental tax constitute a technical specification and thus a technical regulation — the Italian rules concerning the quality of within the meaning of Directive 83/189, it is the waters intended for the cultivation of necessary to examine the nature and charac­ lamellibranch molluscs, the production teristics of those national rules. and marketing of molluscs and various safety measures concerning proprietary medicinal products made from cattle organs and tissues. 16

27. The requirement of a distinctive sign or classed within that definition and the mark- mark constitutes, as the Commission points ing requirement for products subject to it out, a fiscal accompanying measure intended does not give rise to border-crossing formali- to ensure collection of the environmental tax ties. and is thus of a fiscal nature. The distinctive sign also plays the further role of informing consumers that the product is subject to an environmental tax because it has a negative impact on the environment. I do not, how- ever, consider that the consumer information aspect detracts from the fiscal nature of the 29. Despite its nature as a fiscal accompany- marking requirement. ing measure, it cannot be denied that the obligation to affix a distinctive sign has an effect on the marketing of goods, since prod- ucts subject to the environmental tax cannot be sold unless they bear the tax marking showing that the tax has been paid and the amount thereof or, alternatively, that they are 28. It must be noted that tax markings are exempt. In my opinion, that marking frequently used to ensure the collection of requirement constitutes a technical specifica- special taxes, in accordance with Article tion linked to a fiscal measure with an envi- 21(1) of Directive 92/12/EEC, 1 9 under ronmental aim. which '... Member States may require that products released for consumption in their territory shall carry tax markings or national identification marks used for fiscal purposes'.

marketing of goods but may also form an of Article 1(9) lists examples of de f acto tech­ ancillary element of rules of a different kind nical regulations, including the following: pursuing various objectives. In the present case, the marking requirement is an ancillary measure contained in rules of a fiscal nature intended to protect the environment. Conse­ quently, the scope of Directive 83/189 can­ not be limited to technical specifications contained in national rules, harmonization of 'De facto technical regulations include: which would have Article 100a as its legal basis. Technical specifications and regula­ tions which appear to be ancillary to national rules which do not directly concern the pro­ duction and marketing of goods may hinder intra-Community trade and it is therefore logical that they should be subject to the procedure for the provision of information in Directive 83/189, in order to assess whether they are compatible with the Treaty or allow the Commission to find that it is necessary to adopt Community standards in — technical specifications or other require­ the field in question. ments which are linked to fiscal or finan­ cial measures affecting the consumption of products by encouraging compliance with such technical specifications or other requirements; technical specifica­ tions or other requirements linked to national social security systems are not included'.

33. In the present case, the marking require- ment for products subject to the environ- mental tax was introduced by two items of legislation adopted in Belgium in 1993, thus before Directive 94/10 came into force on 1 July 1995. Those items of legislation can 34. I consider, however, that there are vari- therefore constitute technical regulations ous arguments which militate against such a subject to the requirement of notification to broad interpretation of the initial concept of the Commission at the drafting stage only if a technical regulation in Directive 83/189 it is considered that the concept of a techni- and lead me to conclude that technical regu- cal regulation laid down in Directive 83/189, lations linked to fiscal measures did not fall as amended by Directive 88/182, already within the scope of Directive 83/189 prior to extended to technical specifications linked to its amendment by Directive 94/10. fiscal measures and that Directive 94/10 merely defined that concept more precisely, without altering or extending it.

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BIC BENELUX ν BELGIAN STATE

83/189, may be seen in the way in which it the initial version of Directive 83/189; redefines to a certain extent the concept of a Directive 94/10 lists examples of de f acto technical regulation, specifically in three technical regulations, including those basic points: linked to fiscal and financial measures.

— the origin of a technical regulation is still to be found in a technical specification, but may also be found in an 'other requirement', defined in Article 1(3) of Directive 83/189 as 'a requirement, other 37. Secondly, according to the Commission, than a technical specification, imposed on the practice followed during the years of a product for the purpose of protecting, implementation of the procedure for the in particular, consumers or the environ­ provision of information came to embrace ment, and which affects its life cycle after the idea that there was no obligation to it has been placed on the market, such as notify technical regulations linked to fiscal conditions of use, recycling, reuse or dis­ and financial measures. posal, where such conditions can signifi­ cantly influence the composition or nature of the product or its marketing';

Specific provisions of that kind, which provision of information, were less strict Directive 94/10 lays down for technical than those applicable under the original ver- regulations linked to fiscal and financial mea- sion of Directive 83/189. sures, were absent both from the initial ver- sion of Directive 83/189 and from the ver- sion amended by Directive 88/182. That circumstance demonstrates, in my view, that technical regulations of that type were not subject to the procedure for the provision of 39. Consequently, I consider that prior to information prior to the entry into force of the entry into force of Directive 94/10 the Directive 94/10. The contrary conclusion — obligation to affix a distinctive sign or tax that Directive 83/189 applied from the outset marking to products subject to the environ- to technical regulations of that type — mental tax did not constitute a technical would be illogical, since it would presuppose specification and that the Belgian rules con- that the rules governing technical regulations cerning that tax cannot therefore be regarded linked to fiscal and financial measures laid as technical regulations subject to the appli- down in Directive 94/10, which was adopted cation of Directive 83/189, as amended by in order to strengthen the procedure for the Directive 88/182.

Conclusion

40. In the light of the foregoing considerations, I p r o p o s e that the C o u r t s h o u l d answer the question raised as follows:

T h e provisions of Article 1(1) and (5) of C o u n c i l Directive 8 3 / 1 8 9 / E E C of 28 M a r c h 1983 laying d o w n a p r o c e d u r e for the provision of information in the field of technical standards and regulations, as a m e n d e d b y C o u n c i l Directive 8 8 / 1 8 2 / E E C , are t o be interpreted as meaning that neither the obligation t o affix a distinctive sign or tax marking o n p r o d u c t s subject t o a tax payable o n account of the e n v i r o n m e n - tal damage w h i c h they are d e e m e d t o cause n o r the obligation t o affix a n o t h e r dis- tinctive sign o n p r o d u c t s of the same t y p e if they are exempt from that tax b y virtue of diplomatic privilege constitute 'technical specifications' o r 'technical regulations'.