C-314/98

OPINION OF MR LÉGER — CASE C-314/98

O P I N I O N OF ADVOCATE GENERAL LÉGER delivered on 17 February 2000 *

1. A dispute has been referred to the erning the way in which the date of Nederlandse Raad van State (Council of first authorisation of vehicles is deter- State of the Kingdom of the Netherlands) mined. regarding the Netherlands rules for estab- lishing the way in which the date of first authorisation of motor vehicles for use on the public highway is determined. By this reference for a preliminary ruling the Nederlandse Raad van State is asking the As a preliminary point to those questions, Court of Justice for its interpretation of two the Nederlandse Raad van State would also series of questions: It is asking it to say like to know which version of Directive whether: 83/189 is applicable ratione temporis to the dispute in the main proceedings.

(a) a rule such as that in issue in the main proceedings constitutes a technical reg- ulation subject to an obligation to notify as laid down in Directive I — The legal background 83/189/EEC, 1as amended by Directive 88/182/EEC 2('Directive 83/189'), and whether

Directive 83/189

(b) Articles 30 and 36 of the EC Treaty (now amended to Articles 28 and 30 2. Directive 83/189 seeks to protect the free EC) should be interpreted as meaning movement of goods by preventive control. 3 that they preclude national rules gov- To that end it establishes a procedure obliging Member States to notify the Com- mission of their plans in the field of * Original language: French. 1 — Council Directive of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983 L 109, p. 8). 3 — See, in particular, Case C-13/96 Bic Benelux [1997) ECR 2 — Council Directive of 22 March 1988 (OJ 1988 L 81, p. 75). I-1753, paragraph 19.

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6. In its judgment in the CIA Security 9. Article 1 of Directive 94/10 contains the International case, 5the Court of Justice following new definitions: interpreted Directive 83/189 as meaning that failure to comply with the obligation to notify, imposed by Articles 8 and 9 thereof, renders the technical regulations in question inapplicable so that they cannot be enforced against private individuals. Accordingly, the Court of Justice ruled that '(2) "technical specification": a specifica- private individuals may rely on Articles 8 tion contained in a document which and 9 of Directive 83/189 in national lays down the characteristics required proceedings and it is for the national court of a product such as levels of quality, to refuse to enforce a national technical safety or dimensions, including the regulation which has not been notified in requirements applicable to the product accordance with that directive. as regards the name under which the product is sold, terminology symbols, testing and test methods, packaging, marking or labelling and conformity assessment procedures.

7. On 23 March 1994, the European Par- liament and the Council adopted Directive 94/10/EEC materially amending for the second time Directive 83/189. 6

(3) "other requirement": a requirement other than a technical specification, imposed on a product for the purpose 8. The 12th recital of the preamble to that of protecting, in particular, consumers directive states '...whereas the implementa- or the environment, and which affects tion of Directive 83/189/EEC has revealed its life cycle after it has been placed on the need to clarify the concept of a de facto the market, such as conditions of use, technical regulation ...'. Furthermore, the recycling, reuse or disposal, where such fourteenth recital states '... whereas experi- conditions can significantly influence ence of the operation of Directive 83/189/ the composition or nature of the pro- EEC has also revealed the need to clarify or duct or its marketing; explain in more detail certain definitions, rules of procedure or obligations of the Member States under the directive ...'.

7 — The description I give of the national legal context is based 8 — Article 10.1(1) of the Voertuigreglement 1994 (Netherlands on the French translation of the order for reference (pp. 4 order implementing the Wegenverkeerswet) provides that and 5), the observations of the Netherlands Government the date on which a vehicle enters service is to be understood (points 3, 4 and 30 to 52) and the observations of the as meaning the date on which it was first authorised for use Commission (points 15 to 29). on the public highway.

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by the Netherlands Minister of Transport authorisation the date on which the Neth- and Public Works on 9 December 1994. It erlands registration certificate was issued. entered into force on 1 January 1995. However, the certificate is only issued on condition that the person applying for registration produces an official document vouching for the fact that the vehicle has been registered earlier. 11 14. Essentially, the contested regulation 9 provides for three situations for the pur- pose of determining the date of first authorisation.

15. The first situation concerns vehicles 16. The second situation concerns vehicles which have never been registered in the which have already been registered in the Netherlands or abroad. In this case, Arti- Netherlands. In this case, Article 2 of the cle 3 of the contested regulation provides contested regulation provides that the that the DW is responsible for checking details shown on the previous Netherlands whether the vehicle shows 'clear signs of registration certificate must be transferred use'. to the new certificate. So the date on which a vehicle is first authorised is that which appears on the previous Netherlands regis- tration certificate.

(a) a foreign registration certificate issued for a period not exceeding two days,

19. On 6 August 1996, it registered a BMW saloon car in Germany. The compe- tent authorities issued a registration certi- and ficate in the name of Autohaus Werner so that the vehicle was first authorised in that State.

(b) the original purchase invoice showing the following information: the number 20. On 13 August 1996, Snellers Auto's BV of kilometres covered by the vehicle, ('Snellers'), a parallel Netherlands impor- which must be less than 2 500, and a ter, bought the vehicle from Autohaus declaration from the vendor stating Werner. The invoice stated that the vehicle that the vehicle is new and unused. was new and had covered 800 kms. The registration in Germany was cancelled that day.

On the other hand, if the vehicle shows clear signs of use or if it has been registered abroad for a period exceeding two days, 21. On 14 August 1996, Snellers collected the DW issues a registration certificate the vehicle from Gronau and imported it showing, as the date of first authorisation into the Netherlands. On 15 August, it of the vehicle for use on the public high- presented the vehicle for testing at the way, the date on which it was first regis- Lichtenvoorde Vehicle Testing Centre tered abroad as evidenced by the foreign (Netherlands) and applied for it to be registration certificate. registered in that State.

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The DW justified its decision by the fact 25. In the main proceedings, Snellers puts that the vehicle had been registered outside forward two sets of arguments. Firstly, it the Netherlands for more than two days. In maintains that the contested regulation accordance with Articles 4 and 5 of the constitutes a technical regulation which contested regulation, the DW was not was not notified to the Commission in therefore entitled to issue a 'blank' regis- accordance with Directive 83/189. That tration certificate but had to fix the date of regulation could therefore not be enforced first authorisation of the vehicle as the date against it pursuant to the Court's decision on which it was authorised to travel on the in CIA Security International. Further- public highway in Germany. more, Snellers takes the view that the contested regulation is incompatible with Articles 30 and 36 of the Treaty because it constitutes a measure having an effect equivalent to a quantitative restriction which is not capable of being justified by requirements relating to environmental protection or road safety.

23. Snellers took the view that the DW's decision had the effect of reducing the resale value of the vehicle. In fact, on 10 January 1997, the date on which the Netherlands registration certificate was issued, the vehicle would be deemed to be a vehicle manufactured in 1996 because of the words 'date of first authorisation 26. In its order for reference, 13the Neder- 06.08.96'. If, however, the DW had issued landse Raad van State finds that the a 'blank' registration certificate, the vehicle contested regulation had not been notified could have been treated, on that same date, to the Commission in accordance with the as having been manufactured in 1997. 12 provisions of Directive 83/189.

(b) If not, does such a regulation fall within the scope of Article 1(5) of the directive as thus amended (which defines the term "technical regulation")?'

'(1) For the purposes of applying Directive 83/189/EEC, as amended by Directive 88/182/EEC, to national rules adopted on 9 December 1994, is it necessary also to take into consideration the (4) Where national rules concerning the amendments introduced after that date issue of blank registration certificates by Directive 94/10/EC, having regard do not formally differentiate between to, inter alia, the wording used in the official importers and parallel impor- preamble to the latter directive? ters but in fact make it more difficult for parallel importers to supply vehicles with a blank registration certificate, because they can obtain from abroad only vehicles which are already regis- tered, and those rules make the issue of a blank registration certificate condi- tional on inter alia, the relevant vehicle imported from another Member State (2) If Question 1 is answered in the having been registered in that other affirmative: does a regulation such as Member State for a period not exceed- the 1995 Regulation fall within the ing two days, do those rules constitute scope of Directive 83/189/EEC, as a measure having an effect equivalent amended by Directive 94/10/EEC? to a quantitative restriction on imports

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which is prohibited by Article 30 of the IV — The replies to the questions referred EC Treaty?

The first question

29. The reasons for the first question are easy to understand. Directive 94/10 was adopted on 23 March 1994. However, in (6) If Question 5 is answered in the accordance with common practice, it fixed affirmative, must such an obstacle to a time-limit at the end of which Member trade be regarded as proportional to States were obliged to implement the the objective pursued by the national provisions necessary to comply with that rules concerning the issue of blank directive. This time-limit — commonly registration certificates if those rules known as 'the transposition period' — make it impossible to prove that the expired on 1 July 1995. vehicle is new? Is the answer to that question affected by the fact that a parallel importer may agree with his supplier in another Member State that, following the issue of a foreign certifi- cate of registration, the supplier is to seek suspension of the authorisation In the case in point, the contested regula- thus granted and is to have that tion was adopted on 9 December 1994. It suspension lifted when the parallel was therefore adopted after the adoption of importer applies for registration in the Directive 94/10 but before the transposi- country of import? tion period expired.

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SNELLERS

Consequently, the referring court is seeking directives take effect on the date on which to identify which version of Directive they are notified to the States to whom they 83/189 should be used to examine whether are addressed. 15 the contested regulation constitutes a tech- nical regulation, and, if it does, whether it was subject to the obligation to notify imposed by that legislation. 31. In simple terms, one might consider that the aforementioned provisions and the directive itself impose two sets of successive 30. In my view, the reply to the first obligations on Member States: firstly an question referred for a preliminary ruling Obligation to transpose' a directive and is apparent from two provisions of the EC then 'an obligation to implement' the Treaty. directive.

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directive enters into force 16 — that is to 33. With regard to the 'obligation to say on the date on which it is notified, on implement', this requires Member States the date prescribed by the directive or, if to comply with the wording or the purpose none is fixed, on the twentieth day follow- of the result prescribed by the Community ing publication thereof in the Official directive. Member States, like the compe- Journal. In addition, under the third para- tent authorities and persons concerned, graph of Article 189 of the Treaty, the must implement and comply with the obligation to transpose continues through- substantive provisions of the directive in out the entire period prescribed by the the situations governed by the directive. directive for that purpose. That obligation arises from the transposi- tion measures adopted by Member States, or, in the absence of such measures, from the direct effect which the relevant provi- sions of the directive in question may have.

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Furthermore, in its judgment in lnter- It is apparent that the main basis of the Environnement Wallonie cited above, the Court's recognition of the direct effect of Court held that: directives lies in the Member State's failure to act. The Court has stated that '... a Member State which has not adopted the implementing measures required by the directive in the prescribed period may not rely, as against individuals, on its own failure to perform the obligations which the directive entails'. 24 By this ruling the Court seeks '... to prevent the State from taking advantage of its own failure to comply with Community law'. 25 It considers that 'It would be unacceptable if a State, when required by the Community legislature to 'Since the purpose of such a period [for adopt certain rules intended to govern the transposition] is, in particular, to give State's relations or those of State entities Member States the necessary time to adopt with individuals and to confer certain rights transposition measures, they cannot be on individuals, were able to rely on its own faulted for not having transposed the failure to discharge its obligations so as to directive into their internal legal order deprive individuals of the benefits of those before expiry of that period ... In that rights'. 26 respect ... Member States are not obliged to adopt those measures before the end of the period prescribed for transposi- tion . . . ' . 22

expired, a Member State cannot be con- States any 'obligation to implement' since sidered to be 'in default' because it has not the transposition period for this piece of yet transposed that directive into its own legislation had not yet expired. Under the national law. 2 8 third paragraph of Article 189 of the Treaty, that obligation only took effect on the date when the transposition period expired, that is to say on 1 July 1995. Before the end of that period, the only obligations incumbent on Member States 35. In the case at issue, the referring court related to what I have called the 'obligation asks whether, in order to determine whe- to transpose' Directive 94/10. ther the contested regulation is a technical regulation subject to the obligation to notify laid down in Directive 83/189, it is appropriate to apply the provisions of that directive as amended by Directive 94/10. 36. In those circumstances, the Nether- lands authorities cannot be accused of failing to examine, and, where appropriate, of failing to notify the contested regulation pursuant to Directive 94/10. In that respect, it should be pointed out that, if the contested regulation were to be categorised as a 'technical regulation' within the meaning of Directive 94/10, that categorisation would follow from the sub- 37. I therefore propose that the Court's stantive provisions of that directive. In reply to the national court's first question other words, any obligation to notify the should be that, in order to establish whe- contested regulation to the Commission in ther a national regulation adopted on accordance with Directive 94/10 would fall 9 December 1994 constitutes a technical entirely within the scope of what I have regulation subject to the obligation to referred to as 'the obligation to implement' notify laid down by Directive 83/189, only Directive 94/10. the provisions of that directive should be applied and not the provisions of that directive as amended by Directive 94/10.

The second question

Identifying a technical regulation 39. In view of the above proposed reply, the second question submitted by the Nederlandse Raad van State becomes irre- levant.

4 1 . In my Opinion in Joined Cases C-425/97 to C-427/97 Albers and Others, 30 I stated that the wording of Article 1(1) and (5) of Directive 83/189 was sufficiently clear, precise and general to The third question be applied to the various situations arising in the context of proceedings for a pre- liminary ruling. I also identified all the factors to be taken into consideration when 40. By its third question, the Raad van applying the definition of 'technical regula- State asks whether the date of first author- tion' laid down by that legislation. isation of a vehicle for use on the public highway constitutes a technical specifica- tion within the meaning of Directive 29 — See pages 10 and 16 of the French translation. 30 — Joined Cases C-425/97 and C-427/97 [1999] ECR 1-2947, 83/189 and whether the national rule paragraphs 15 to 19.

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42. Accordingly, it follows from the afore- words, only a national rule capable of mentioned provisions of Directive 83/189 '... hindering, directly or indirectly, and from the Court's relevant case-law 31 actually or potentially, intra-Commu- that: nity trade in goods' 33 can be categor- ised as a technical regulation within the meaning of Directive 83/189.

45. Secondly, in accordance with Arti- cle 1(1) of Directive 83/189, the date of first authorisation of a vehicle for use on — as regards the penalty for failure to the public highway is a piece of express comply with national legislation: this information which appears on an adminis- must consist of a ban on marketing or trative document (the registration certifi- use of the product in the Member State or in a large part thereof. In other 33 — Paragraph 19 of Bic Benelux, cited above. 34 — See the observations of the Austrian Government (pages 6 and 7 of the French translation); the observations of the 31 — In particular the CIA Security International and Bic Belgian Government (page 2); the observations of the Benelux cases cited earlier. French Government (points 6.1 to 6.3); the observations of 32 — See paragraphs 29 and 30 of the judgment in Cia Security the Netherlands Government (points 87 to 93), and the International, cited above. observations of the Commission (points 66 to 71).

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cate) and which defines certain character- authorisation of the vehicle is dependent on istics of the product (the vehicle). It con- technical information such as: stitutes a distinctive, recognisable detail allowing the vehicle to be identified and distinguishing it from any other.

(a) whether or not there are 'clear signs of use' on the vehicle;

(b) whether the vehicle is new or used; So, a vehicle's date of first authorisation determines the date on which the compe- tent authorities officially authorised the use for which the product was intended and the potential duration for which it is used. Moreover, that date entails certain require- (c) the number of kilometres it has cov- ments regarding the 'use of the product', ered, which, depending on the case, is such as the obligation to present the vehicle more or less than 2 500 km, and for periodic testing. According to Directive 96/97/EC, 35 such an obligation is pre- scribed, as a rule, four years from the 'date of first use' of the vehicle. 36

47. Fourthly, there is little doubt that the the registration of vehicles falls within the contested regulation contains provisions scope of the rights and powers of the public the observance of which is compulsory for authorities of the Member States. In fact, the purposes of selling and using vehicles in the main purpose of the national provisions the Netherlands. An individual or a legal regarding the registration of vehicles is to entity which refused to comply with the enable the competent authorities to identify registration procedure under which the DW people who have infringed the highway determines a vehicle's date of first autho- code and to apply the appropriate penal- risation could not lawfully sell or use the ties. Accordingly, those provisions would vehicle in the Netherlands. The contested fall outside the scope of Directive 83/189. regulation is therefore a measure which is likely to directly or indirectly, actually or potentially hinder intra-Community trade. 39

That line of argument cannot be accepted.

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notify the contested regulation to the of alcohol had been proven by those Commission pursuant to Article 8 of Direc- intoximeters. tive 83/189 or whether they were exempt from that obligation under Article 10 of that directive.

In that case, the Court held that: '... While failure to notify technical regulations, which constitutes a procedural defect in their adoption, renders such regulations The obligation to notify inapplicable inasmuch as they hinder the use or marketing of a product which is not in conformity therewith, it does not have the effect of rendering unlawful any use of a product which is in conformity with regulations which have not been noti- fied'. 41 51. As a preliminary point, I consider it may be useful to ascertain whether Snellers may indeed rely on the Court's decision in CIASecurity International before the refer- ring court. The Court held that the national rules applied to the accused in the main proceed- ings — that is to say the rules prohibiting driving in a state of inebriation and those which oblige the driver to breathe into an intoximeter — were different from those 52. We know that, in its judgment in the which, because they had not been notified, Lemmens case, the Court found it neces- were not enforceable against individuals. In sary to circumscribe the scope of the direct that case, the Court observed that 'the use effect of Article 8 of Directive 83/189. of the product by the public authorities, in a case such as this, is not liable to create an obstacle to trade which could have been avoided if the notification procedure had been followed'. 42

54. In my view, in the case in point Snellers has provided evidence of such an interest because it imported a vehicle on a parallel basis and applied to have it registered in the That directive seeks to harmonise the Netherlands. Furthermore, Snellers consid- layout and wording of registration certifi- ers that the rules applicable under the cates in order to make them easier to registration procedure have the effect of understand, thereby contributing to the reducing the resale value of the vehicle and free movement of road traffic in other thereby constitute a hindrance to the free Member States, in so far as vehicles regis- movement of goods. Snellers therefore has tered in a Member State are concerned. 44 an obvious direct interest in having the Annexes I and II to the directive 45 require technical regulations contained in the con- registration certificates to show in particu- tested regulation reviewed on the basis of lar the 'date of first registration of the Directive 83/189. vehicle'.

Relying on those annexes, the Netherlands Government maintained that the effect of 55. That said, I believe that the contested Directive 1999/37 was to remove the free- regulation is not likely to fall within the dom of Member States with regard to the scope of application of exemption from the method used to determine the date of first obligation to notify laid down by Article 10 authorisation of vehicles in their country. of Directive 83/189. Conversely, the French Government takes the view that Directive 1999/37 only imposes an obligation to show the date on which the vehicle was first registered on registration certificates and its purpose is not to govern the manner in which Member

It is sufficient to point out that Directive 1999/37 was adopted by the Council on 29 April 1999, that is to say well after the The other questions contested regulation (adopted on 9 Decem- ber 1994). Thus, on the date on which that regulation was adopted, Directive 1999/37 did not therefore lay down any obligation which the Netherlands Government ought to have fulfilled. 61. It is clear from the order for reference that the other questions posed by the Nederlandse Raad van State were submit- ted to the Court only in case the second or third questions should elicit a negative reply. 4 6 In view of the fact that I am asking 59. In those circumstances, I take the view the Court to give an affirmative reply to that the Netherlands authorities were those questions, there is no need to give a obliged to notify the contested regulation ruling on whether Articles 30 and 36 of the to the Commission pursuant to Article 8 of Treaty preclude a national rule such as that Directive 83/189. at issue in the main proceedings.

46 — In its order for reference, the Nederlandse Raad van State expressly stated that: 'If the 1995 Regulation should have been notified, it must, in view of the fact that it has not been so notified, and having regard to the judgment of the Court of Justice in Case C-194/94 CIA Security v Signalson and Securitel, be left out of account. In the event that it follows from the answer to Question 2 or Question 3 that 60. I therefore propose that the Court the 1995 Regulation did not need to be notified, it will be should reply to the third preliminary ques- necessary to consider whether it contains a restriction of trade prohibited by Article 30 of the EC Treaty' (page 16 tion that the date on which a vehicle is first of the French translation).

A Member State which adopts a national rule such as that described above is obliged to notify the Commission pursuant to Article 8 of Directive 83/189 as amended by Directive 88/182.

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