C-226/97

LEMMENS

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 12 February 1998 *

I — Introduction commotion in the Netherlands. The judg­ ment prompted the Government to draw up a list of some 400 measures which might be considered technical regulations within the meaning of the Directive, which had not 1. What happens if the breathalyser is not been notified and against which, therefore, 'notified to Brussels'? The present proceed­ the direct effect of Article 8 of the Directive ings raise the question of whether a defen­ could in principle be invoked before the dant in criminal proceedings before a national courts. The matter was taken up by national court can rely upon the fact that the press in June 1997 and, following pro­ national provisions governing the use of ceedings under the Netherlands law on breath-testing apparatus, which prima facie openness in government, the list was pub­ constitute technical regulations for the pur­ lished on 21 July 1997. By then the Nether­ poses of Council Directive 83/189/EEC of lands had notified to the Commission, in 28 March 1983 laying down a procedure for accordance with the urgent procedure pro­ the provision of information in the field of vided under the Directive, the '1997 Regu­ technical standards and regulations (hereinaf­ lation on breath analysis', whose provisions ter 'the Directive'), 1have not been notified are identical to the national measure which is to the Commission. at issue in the present proceedings.

II — Factual and legal background

(a) The facts and the order for reference

4. The Netherlands, the United Kingdom and the Commission submitted written observations. The Netherlands, France and the Commission took part in the oral hear­ ing. '1 . Can a defendant in criminal proceedings instituted for an offence contrary to Article 8(2)(a) of the Wegenverkeerswet (Road Traffic Law) 1994 successfully rely on the application of the Regeling Ademanalyse (b) The national provisions (Regulation on breath analysis) (Ned. Stert 1987, 187), as amended, laying down further rules concerning the requirements for breath-analysis apparatus and the tests which such apparatus must undergo, being set aside 5. Article 8(2)(a) of the Wegenverkeerswet 1994 reads in relevant part:

6. Article 3 of the Decree on alcohol testing inadmissible on the ground that the infor­ of 24 September 1987, as amended to take mation supplied is so defective as to prevent account of the 1994 road traffic law, provides the Court interpreting the relevant provi­ that breath analysis may only be carried out sions of Community law in the light of the 3 using breath-analysis apparatus of a type situation at issue, as in Telemarsicabruzzo, designated by the Minister for Justice. nor has the lack of detail prevented their Article 5 of the Decree charges the Minister submitting pertinent observations on the for Justice with laying down detailed main questions of Community law which 4 requirements for breath-analysis apparatus arise. The Commission has suggested that, and for testing such apparatus. while the Court could declare the present request inadmissible, it should not do so in the present case, as there is a Community interest in clarifying the scope of the judg­ ment in CIA Security.

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OPINION OF MR FENNELLY — CASE C-226/97

the Court has sufficient information to pro­ present proceedings. The Commission main­ vide a helpful answer to those questions'. tains that this is the original version prior to Similarly, in Vaneetveld, the Court held that the 1988 and 1994 amendments, as it is this the information requirement was 'less press­ version which was in force at the time of the ing where the questions relate to specific adoption of the 1987 Regulation. The Neth­ technical points and enable the Court to give erlands and the United Kingdom, on the a useful reply even where the national court other hand, appear to take the view that it is has not given an exhaustive description of the version of the Directive as amended by 6 the legal and factual situation'. both subsequent Directives which applies, while France has not expressed any view on the matter.

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LEMMENS

compulsory, de jure or de facto, in the case Regulation may not be considered a techni­ of marketing or use [of a product] in a Mem­ cal regulation. ber State or a major part thereof, except those laid down by local authorities' (Article 1(5)). A 'technical specification' is in turn defined by the Directive as any specifi­ cation 'which lays down the characteristics required of a product' (Article 1(1)). Subject to certain exceptions which are not here rel­ evant, Article 8 obliges Member States to communicate to the Commission all draft 15. I do not agree. It is clear from the estab­ technical regulations, and, if necessary, the lished case-law of the Court that '[although] basic legislative or regulatory provisions. In in principle criminal legislation and the rules CIA Security, the Court held that 'Directive of criminal procedure ... are matters for 83/189 must be interpreted as meaning that which the Member States are responsible ... breach of the obligation to notify renders the Community law sets certain limits to their 10 technical regulations concerned inapplicable, power'. The Directive does not allow any so that they are unenforceable against indi­ derogation in favour of provisions of crimi­ viduals'. 8 It subsequently held in Bic nal law which could constitute technical Benelux that the technical regulations caught regulations and, as a matter of principle, the by the Directive were any national measures obligation to notify could therefore arise in which are 'capable of hindering, directly or respect of such provisions. indirectly, actually or potentially, intra- 9 Community trade in goods'.

— is its observance compulsory, de jure or rather than the objective these provisions de facto, in the case of marketing or use seek to attain. In Commission v NetherUnds, in a Member State or a major part the Court held that an Order defining the thereof? and conditions under which substitute products could be marketed as margarine was a tech­ nical regulation: '[that] assessment cannot be undermined by the Netherlands Govern­ ment's argument that the effect of the dis­ puted order is to encourage the marketing of — is it capable of hindering, directly or indi­ margarine ... [the] obligation [to notify] can­ rectly, actually or potentially, intra- not be subject to the unilateral assessment by Community trade in goods? the Member State which drafted the regu­ lation of the effects which it may have on 12 trade between Member States'. More gen­ erally, in Bic Benelux, the Court held that hindrances to trade 'may arise from the adoption of national technical regulations ... irrespective of the grounds on which they were adopted', and continued: 'the fact that a 17. There is little doubt that the 1987 Regu­ national measure was adopted in order to lation contains 'technical specifications'; protect the environment or that it does not Annex 1 lays down in detail the characteris­ implement a technical standard which may tics required of breath-testing apparatus, par­ itself constitute a barrier to free movement ticularly as regards quality, performance, does not mean that the measure in question testing and test methods and conformity- cannot be a technical regulation within the assessment procedures. There is also little meaning of Directive 83/189'. 13

20. It may be the case that there exists, or could exist, a secondary market in breath- testing apparatus; this does not, in my opin­ ion, suffice to exclude the possibility that the 1987 Regulation is capable of hindering trade 22. In this context, it is perhaps useful to between the Member States in such goods. recall that, in accordance with the third para­ As the Court held in Wan de Haar, graph of Article 189 of the Treaty, '[a] direc­ 'Article 30 of the Treaty does not distinguish tive shall be binding, as to the result to be between measures having an effect equivalent achieved, upon each Member State to which to quantitative restrictions according to the it is addressed'. It therefore follows that degree to which trade between Member results which could arise as a consequence of States is affected. If a national measure is the application of a directive but which are capable of hindering imports it must be not those it seeks to achieve are in principle regarded as a measure having an effect not binding, as a matter of Community law, equivalent to a quantitative restriction, even on the Member State. though the hindrance is slight and even though it is possible for imported products 14 to be marketed in other ways'. As the Directive embraces all potential obstacles to trade, the obligation to notify must, in my view, include measures such as the 1987 23. The results the Directive at issue in the Regulation, even if it were to be shown that present proceedings seeks to achieve were other breath-testing apparatus could be mar­ identified by the Court in CIA Security in keted in the Netherlands. I am therefore of the following terms: the opinion that the 1987 Regulation consti­ tutes a technical regulation for the purposes of the Directive.

24. After holding that Articles 8 and 9 of the Directive were unconditional and sufficiently precise to be relied upon against conflicting national provisions, the Court went on to establish 'the legal consequences to be drawn from a breach by the Member States of their 26. The inapplicability of national provi­ obligation to notify and, more precisely, sions which are on their face incompatible whether Directive 83/189 is to be interpreted with Community provisions is not universal as meaning that a breach of the obligation to in its effects, but depends on the result the notify, constituting a procedural defect in the directive seeks to achieve. The conflicting adoption of the technical regulations con­ national provisions are, therefore, only inap­ cerned, renders such technical regulations plicable in so far as this is required for the inapplicable so that they may not be 17 purposes of '[facilitating] the free movement enforced against individuals'. This same of goods by preventing the creation of new formulation is repeated in the Court's con­ barriers to trade', as the objective of the clusion on this point in paragraph 54 of the Directive is described in the second recital in judgment. the preamble to the 1988 Directive. In the circumstances of the present case, I cannot see how the non-application of the 1987 Regulation in the criminal proceedings against the defendant would contribute to facilitating the free movement of goods. Such a consequence is therefore not encompassed 25. For the purposes of the Directive, the within the 'result to be achieved' by the consequence of the non-notification of a Directive. technical regulation is that a Member State authority may not enforce this against indi­ viduals. It does not follow that non-notified technical regulations are inapplicable for all purposes, and hence in effect null and void; such a consequence would only arise if the Community had a power to annul provisions of national law. Such a power has never been 27. The direct effect of provisions of direc­ tives may be limited ratione personae in accordance with Article 189 of the Treaty. In 16 — Case C-194/94, cited in footnote 2 above, paragraph 40. Faccini Dori, for example, the Court noted 17 — Ibid., paragraph 45. that 'the case-law on the possibility of

29. In Verholen, on the other hand, a case which has been cited by a number of the par­ ties to these proceedings, the Court held that 'the right to rely on the provisions of Directive 79/7 is not confined to individuals 28. The provisions of a directive which have coming within the scope ratione personae of direct effect may be relied upon by persons the directive, in so far as the possibility can­ other than those for whose primary benefit it not be ruled out that other persons may have was adopted, where this is justified to a direct interest in ensuring that the principle achieve the result intended. Thus, in Sto- 1 of non-discrimination is respected as regards eckel, 9an employer was entitled to rely 21 persons who are protected'. This judgment upon the injunction that Member States has been interpreted in some quarters as 'ensure that ... any laws, regulations and meaning that not only those within the per­ administrative provisions contrary to the sonal scope of a directive, but also 'those principle of equal treatment shall be abol­ having a direct interest in the application ished' laid down in Article 5(2)(a) of Direc­ of a directive's provision must be able to rely tive 76/207/EEC of 9 February 1976 on the 22 on it'. implementation of the principle of equal treatment for men and women as regards access to employment, vocational training 20 and promotions, and working conditions. In this case, the objective of the directive was defined in Article 5(1) primarily in terms of workers' rights: '[application] of the prin­ ciple of equal treatment ... means that men 30. It can, of course, be argued that the and women shall be guaranteed the same defendant in the main proceedings has an conditions without discrimination on interest in a literal sense in the application of grounds of sex'. Admittedly, this decision the Directive. He would benefit from a dec­ laration by the national court that the 1987

Regulation is inapplicable in his case because rial scope of Directive 79/7, Mr Heiderijk's this might lead to the exclusion of the proof interest in its application was held to depend on which the criminal charges laid against on his spouse's coming within its terms; if him are based. It seems to me, however, that Mrs Heiderijk were found not to come the expression 'direct interest' used by the within the personal scope of the directive, Court in Verholen does not cover such then her husband's reliance on Article 4(1) merely consequential effects but refers to an would not contribute to the implementation interest which arises by virtue of Commu­ of the principle of equal treatment, and he nity law. Article 4(1) of Directive 79/7 therefore had no Community-law interest in defines its scope ratione materiae as covering ensuring the application of this provision. It 'the calculation of benefits including appears to me that the defendant in the increases due in respect of a spouse and for present proceedings is in a position analo­ dependants and the conditions governing the gous to that of Mr Heiderijk, assuming that duration and retention of entitlement of ben­ the latter's wife was outside the personal efits'. In the main proceedings in that case, scope of Directive 79/7; though each may the amount of the pension to which the have 'an interest' in the application of the applicant before the national court, relevant provisions of the directive, this Mr Heiderijk, was entitled depended directly interest arises exclusively as a matter of on the periods for which his wife was an national law, and they may not therefore rely 'insured person'; under the relevant national upon the directive in that context. Contrari­ provisions, 'a pension representing rights wise, both the employer in Stoeckel, and acquired by and on behalf of each of the two Mr Heiderijk if his wife was within the per­ 23 spouses was paid to the husband alone'. sonal scope of Directive 79/7, had an interest The Court held that 'an individual who bears arising from Community law in the proper the effects of a discriminatory national provi­ application of the relevant provision of the sion may be allowed to rely on directive. Directive 79/7 only if his wife, who is the victim of the discrimination, herself comes 24 within the scope of that directive'.

Member States as well as Belgium. Once dant in circumstances such as the present is an interest which was cognisable in Commu­ not a matter of which he is entitled to com­ nity law had been established, the fact that plain as a matter of Community law. He is the applicant's interest arose in proceedings not affected by provisions defining the tech­ under national law against commercial com­ nical characteristics of such apparatus by rea­ petitors was essentially irrelevant. Equally son of any personal or professional charac­ clearly, in my view, the defendant in the teristic or activity which comes within the present case has no such interest; no element ambit of Community law. If the defendant is of his legal situation could be said to concern not so affected by the 1987 Regulation con­ the free movement of goods within the sidered alone, the fact that he may be con­ Community. cerned by the application of this Regulation by virtue of national provisions of criminal law defining the methods of proving a road traffic offence does not change his position under Community law.

33. In the present case, it has not been sug­ gested that the national provision which the Netherlands is enforcing against the defen­ dant, to wit, Article 8(2)(a) of the Wegenver­ keerswet, is a technical regulation for the 34. It follows from the above that the first purposes of the Directive. Contrariwise, question should be answered in the negative, while the 1987 Regulation may be a technical in which case no answer to the second ques­ regulation, its enforcement against the defen­ tion is necessary.

be interpreted as not requiring a Member State to abstain from applying national provisions such as the Regeling Ademanalyse, which have not been notified to the Commission in accordance with Article 8 of the Directive, in criminal proceedings instituted for an offence contrary to Article 8(2)(a) of the Wegenverkeerswet 1994.

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