C-443/98

UNILEVER

OPINION OF ADVOCATE GENERAL JACOBS delivered on 27 January 2000 *

1. In civil proceedings between individuals requirements for goods marketed or used arising from a contract, should a national within their territories. Essentially, a Mem- court disapply a national technical regula- ber State which intends to adopt such tion which, although notified to the Com- provisions must notify them in advance mission in accordance with Council Direc- and then refrain from enacting them for a tive 83/189, 1 was adopted before the specified standstill period, in order to allow expiry of the 'standstill' period applicable the Commission and the other Member under that directive? That is the question States to submit observations concerning posed in the present case, in the wake of the possible obstacles to trade at a stage at Court's judgment in CIA Security.2 which they can be taken into account, and to allow the Community legislature, if it thinks fit, to adopt legislation regulating the field in question. The relevant provi- sions of Directive 83/189, as amended, are as follows.

The Community legislation

3. Article 1 contains, inter alia, the follow- 2. Directive 83/189 prescribes certain pro- ing definitions: cedures to be followed when a Member State intends to adopt technical regulations. The purpose of those procedures, as is clear from the preamble, is to facilitate the proper functioning of the internal market ' 1 . "product", any industrially manufac- by obviating the restrictions on the free tured product and any agricultural movement of goods which might arise if product; Member States were to enjoy complete freedom in laying down different technical

The Commission shall immediately notify the other Member States of the draft and all documents which have been forwarded to 9. "technical regulation", technical speci- it... fications... the observance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof...

2. The Commission and the Member States may make comments to the Member State which has forwarded a draft technical regulation; that Member State shall take 10. "draft technical regulation", the text of such comments into account as far as a technical specification..., the text possible in the subsequent preparation of being at a stage of preparation at the technical regulation. which substantial amendments can still be made.'

3 — The extension of the definition contained in the second subparagraph of Article 1(2) was not present in the original version of the Directive; it was introduced by Directives ...' 88/182 and 94/10, cited in note 1.

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5. Article 9 contains the following provi- poses to take on such detailed opinions. sions: The Commission shall comment on this reaction.

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binding Community acts which result in the stressed the usefulness of the notification adoption of technical specifications'. and standstill requirements in the directive in order to prevent the creation of new technical barriers to trade. It concluded:

7. Directive 83/189 was transposed into Italian law, as was pointed out at the hearing, by Law No 317 of 21 June 'Member States' obligations are therefore 1986. 4Article 1 of that Law, as amended, 5 clear and unequivocal: defines terms in a way similar, though not identical, to the directive provisions cited above. Article 9 transposes, essentially, Articles 8, 9 and 10 of the directive. It provides in particular that technical regula- tions may not be brought into effect before three months from their communication to 1. they must notify all draft technical the Commission, that if within that period regulations falling under the Directive; there are detailed observations from the Commission or observations from a Mem- ber State concerning possible technical barriers to trade implementation must be deferred for four or six months as the case may be, and that if within the same three- month period the Commission gives notice of proposed Community legislation imple- 2. they must suspend the adoption of the mentation is to be deferred for 12 months. draft technical regulations automati- cally for three months, other than in the special cases covered by Arti- cle 9(3) 7 of the Directive;

8. On 1 October 1986, the Commission published a communication concerning the non-respect of certain provisions of Direc- tive 83/189. 6In that communication, it 3. they must suspend the adoption of the draft technical regulations for a further period of three or nine months depend- 4 — Gazzetta Ufficiale della Repubblica Italiana ('GURI') 1986 ing on whether objections have been No 151, p. 3. raised or whether Community legisla- 5 — Most recently by Law No 52 of 6 February 1996, GURI tion is envisaged. Supplemento ordinario No 24, p. 1, Article 46 of which implements Directive 94/10. 6 — Commission communication concerning the non-respect of certain provisions of Council Directive 83/189/EEC, OJ 1986 C 245, p. 4. 7 — The equivalent of Article 9(7) in the version quoted above.

8 — Cited in note 2; see paragraphs 36 to 55 of the judgment, and point 2 of the operative part. 9 — GURI No 201 of 29 August 1998.

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authorities. Article 5, however, lays down cial journal of the European Communi- penalties for infringements; in particular, ties, 10 stating that the three-month stand- any person producing, possessing for sale still period under Article 9(1) of Directive or placing on the market virgin or extra 83/189 — specifically described as the virgin olive oil not in compliance with 'period during which the draft may not be Article 1 incurs an administrative fine of adopted' — ran until 5 August 1998 ITL 800 000 per 100 kilograms of oil. (although it might be questioned whether that date should not have been 4 August if notification took place on 4 May).

12. It appears from indications in the GURI that the draft of Law No 313 was first presented to the Italian Parliament on 15. In a text appended to the notification in 27 January 1998; it was examined by the the Official Journal, the Commission drew Senate in February and March of that year attention to the fact that, according to the and by the Chamber of Deputies in April judgment in CIA Security, national courts and June, being finally approved by the must decline to apply a national technical latter on 28 July and by the former on regulation which has not been notified in 29 July 1998. accordance with Directive 83/189, so that the technical regulations concerned are rendered unenforceable against individuals.

President, the Prime Minister and the main proceedings arose. However, a num- Minister for Agriculture, following final ber of subsequent developments may be approval by both houses of the Italian mentioned, to paint a slightly fuller picture Parliament — on 3 August 1998, two days of the relevant context. before the end of the initial three-month standstill period as indicated in the notice in the Official Journal. On the following day, the Commission informed the Perma- nent Representative of the Italian Republic that it would initiate proceedings under Article 169 of the EC Treaty (now Arti- 21. On 22 December 1998, the Commis- cle 226 EC) if the Law were published in sion adopted the legislation it had the GURI and stated that the Law would be announced to the Italian authorities, in unenforceable against individuals if pub- the form of Regulation No 2815/98. 11 lished before 4 May 1999. That regulation lays down rules governing designations of origin on the labelling or packaging of virgin and extra virgin olive oils, and prohibits the use of such a designation for olive oils and olive-residue oils. For virgin and extra virgin olive oils, 18. On 4 August 1998, still within the the designation may be either a registered initial three-month period, the Commission protected designation of origin or protected received detailed opinions, within the geographical indication, 12 or the name of a meaning of Article 9(2) of Directive Member State, the European Community 83/189, on the draft Law from the Spanish or a third country. Where the designation and Portuguese Governments and on of origin is the name of a Member State, it 5 August it received comments, within the must be that of the State where the oil was meaning of Article 8(2), from the Nether- Obtained'; in other words, the mill in lands Government. which the oil was extracted must be located there. Blends must be indicated as such but, if more than 75% of the oil was obtained in one Member State, that fact may also be stated, together with the relevant percen- 19. On 29 August 1998, Law No 313 was tage. published in the GURI as adopted on 3 August, and it entered into force on the following day.

23. On 27 January 1999, the Commission ings, ordered 648 litres of 'Dante' extra delivered a reasoned opinion to Italy in virgin olive oil from Van den Bergh, a accordance with Article 169 of the EC division of Unilever Italia SpA. That oil was Treaty, asserting that the adoption and delivered to Central Food on 29 September. entry into force of Law No 313 infringed From what was said at the hearing, it Article 9 of Directive 83/189. That proce- appears that it was oil a certain proportion dure does not appear to have reached the of which originated in Spain and Greece. stage of being brought before the Court. On 30 September 1998, Central Food wrote to Unilever Italia, stating that the oil supplied was not labelled in accordance with the provisions of Law No 313 and that it was thus unable to pay the relevant invoice. It requested Unilever Italia to take 24. On 17 March 1999, however, the the oil back and supply oil labelled in Italian Government brought proceedings accordance with the Law. against the Commission before the Court of Justice in Case C-99/99, seeking the annul- ment of Regulation No 2815/98. It argues, essentially, that the purpose of an indica- tion of origin is to inform the consumer of the distinctive qualities of the finished product, which derive largely from the area of origin of the olives rather than where they were pressed and which are just as present in ordinary olive oil as in virgin and extra virgin oils. 27. On 2 October 1998, Unilever Italia replied to Central Food that the Commis- sion had enjoined Italy not to apply any new national provisions on the labelling of olive oil until after 4 May 1999. The provisions of Law No 313 could thus not 25. It further transpired at the hearing that be applied before that date, and the oil a Law repealing Articles 1 and 2 of Law supplied was in complete conformity with No 313 was currently at the draft legisla- the legislation in force. tive stage.

Admissibility of the reference 'May a national provision which has been promulgated and entered into force in the Member State (Law No 313 of 3 August 1998) be disapplied by a national court called upon to issue an order for payment 31. At the hearing there was discussion as in relation to the supply of extra virgin to the precise provisions of Law No 313 olive oil labelled in a manner not in which were in issue in the present case — accordance with the provisions of the namely whether it was those relating to the aforementioned national provision, consid- use of the terms 'made (or produced) in ering that, following the notification and Italy' in Article 1(1) or those concerning the subsequent examination of a draft the labelling of oils originating wholly or national Law concerning the labelling of partly in other Member States in Arti- extra virgin olive oil, virgin olive oil and cle 1(2). The agent for the Italian Govern- olive oil, the European Commission, on the ment submitted that the reference for a basis of Article 9(3) of Council Directive preliminary ruling was inadmissible on the 83/189/EEC laying down a procedure for ground that it was not clear which provi- the provision of information in the field of sions were in issue. technical standards and regulations, for- mally requested the notifying State not to legislate, prescribing a period (until 14 Sep- tember 1999) 13 in respect of the marketing rules for olive oil, pending the adoption of a Community regulation on the matter at 32. I cannot agree. It is clear from the order issue?' for reference and the national case-file accompanying it that the dispute on which the national court has to decide turns on 13 — It is common ground that the date given here is the result the enforceability of the labelling require- of an error, and should read '4 May 1999'. ments in Law No 313 and that a ruling is

The applicable version of the Community legislation 35. In any event, no changes material to the issues in the present case were made to the relevant provisions of Directive 83/189 by Directive 98/34. Although, less than one 33. Another preliminary point which may month after its adoption, the latter was merit brief attention concerns the appro- amended by Directive 98/48, those amend- priate version of the Community legislation ments — the deadline for transposition of to be considered here. which was in any event 5 August 1999 — merely extend the scope of the relevant provisions to cover 'Information Society services' — namely those requested and provided, at a distance, by electronic means — an area quite extraneous to the 34. Directive 83/189 has been repealed, dispute in the present case. and its provisions consolidated and exten- ded, by Directive 98/34, 14 which entered into force on 10 August 1998. 15 Law No 313 entered into force, and the facts giving rise to the dispute in the main proceedings all took place, after that date. However, it seems clear that the enforce- ability of the Law falls to be assessed in the The substantive issues 14 — Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, OJ 1998 L 204, p. 37, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, OJ 1998 L 217, p. 18. 15 — Directive 98/34 contains no deadline for transposition, but 36. There are, essentially, two substantive maintains the deadlines for transposition of Directive 83/189 and its amending directives. issues to be addressed when answering the

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45. The argument that there is no obstacle to the free movement of goods seems to turn on the contention that the labelling rules in issue do not impose any obligation to mention Italian origin on the label but 43. The Commission's argument based on merely lay down the conditions for its use the actual notification of the Law cannot, I should the labeller choose to do so. There is

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UNILEVER

thus no actual labelling requirement, and technical specifications. The Italian Gov- no impediment to intra-Community trade. ernment submits that the rules in issue comply with an obligation laid down in Directive 79/112, Article 3(1)(7) of which requires origin or provenance to be inclu- ded on the labelling of a foodstuff where failure to do so might materially mislead the consumer as to its true origin or 46. I do not consider that a labelling rule provenance. may be considered any less of a require- ment simply because it may prohibit, rather than impose, the mention of certain parti- culars in certain circumstances. In addition, the rules as to indication of non-Italian origin in Article 1(2) of Law No 313 — which appear to be relevant in the main proceedings since, we have been told, the disputed oil is partly of Greek and Spanish origin — have a specific effect on trade between Member States (and so, by exten- sion, do those in Article 1(1)). 49. The Commission considers that the directive provisions cited are couched in general terms, allowing the Member States a certain margin for manœuvre and that it is precisely that margin that Directive 83/189 is intended to regulate. 47. I therefore have no difficulty in con- cluding that the labelling rules in Article 1 of Italian Law No 313 constitute technical specifications falling within the scope of Directive 83/189.

(7) particulars of the place of origin or provenance in the cases where failure to give such particulars might mislead the consumer to a material degree as to the true origin or provenance of the foodstuff'. 54. Finally, the fact that the Italian Gov- ernment notified the Law in accordance with Directive 83/189, at the Commission's request, whilst not conclusive evidence that 52. If, as the Italian Government says, the the labelling rules constitute technical spe- disputed Italian rules do not in fact require cifications, does suggest that the Italian any indication of origin on labelling, then it Government did not at that time consider is very difficult to see how they could itself to be enacting legislation implement- transpose that provision, which does ing obligations under a binding Commu- appear to require such an indication. nity act, in which case there would have been no requirement for notification under that directive. It would seem an implau- sible concatenation of circumstances that the Italian authorities should have left 53. In any event, as the Commission Article 3(1 )(7) of Directive 79/112 inade- pointed out at the hearing, Directive quately implemented for many years, 79/112 was transposed into Italian law in should then have experienced the need to 1982, by Presidential Decree No 322 of repair the inadequacy, with specific regard 18 May 1982, 17 under Article 3(g) of to olive oil, with such urgency that they which the labelling of foodstuffs is to were compelled to disregard the Commis- include 'the place of origin or provenance'. sion's enjoinder not to legislate during a Since it contains no further qualification, limited period, pending forthcoming Com- that provision presumably requires such munity legislation, but should have omitted

59. The fact that the Law entered into force only on 30 August 1998, one day after Breaches of the standstill requirements publication in the GURI, and thus after the under Article 9 of Directive 83/189 expiry of the standstill period does not affect the finding that Italy infringed Arti- cle 9(1). That is, first, because according to the clear wording of that rule the decisive — The three-month period act is the adoption of the draft technical regulation and not its entry into force. Secondly, Article 9(1) refers to the adop- tion of a 'draft technical regulation'. Under Article 1(10) of the directive a technical regulation is at the draft stage only where it 56. In the first place Italy infringed Arti- is 'at a stage of preparation at which cle 9(1) of the directive according to which substantial amendments can still be made'. Member States must postpone the adoption Since a draft law ceases to be in an of a draft technical regulation for three amendable form at the very latest when it months from the date of receipt by the is signed by the competent constitutional Commission of the notification referred to authorities, 'adoption' within the meaning in Article 8(1). of Article 9(1) cannot mean entry into force

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63. In the present case the national court's question is concerned with a second poten- — The six-month period tial consequence of Italy's breach of the standstill requirements. The referring court asks, in essence, whether in civil proceed- ings between individuals concerning rights and obligations arising out of a contract a national court should disapply a technical 61. As regards, finally, Article 9(2) of the regulation which, although notified to the directive, I shall leave open the question Commission in accordance with the

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UNILEVER

requirements of the directive, was adopted obligation to notify renders the technical before the expiry of a standstill period regulations concerned inapplicable, so that applicable under the directive. they are unenforceable against individuals'.

65. The Court held, at paragraph 54 of that judgment, that 'Directive 83/189 is to be 69. As regards the question whether unno- interpreted as meaning that breach of the tified technical regulations should be unen-

19 — See note 2. 20 — See paragraphs 42 to 44 of the judgment.

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forceable, the aim of the directive is Italian Law in question was correctly decisive. Directive 83/189 is designed to notified to the Commission. Italy's in- protect freedom of movement for goods by fringement lay not in a failure to notify means of preventive control. The obligation but in a breach of the standstill require- to notify is essential for achieving such ments imposed by the directive. Community control. The effectiveness of Community control will be enhanced if the breach of the obligation to notify consti- tutes a substantial procedural defect such as to render the technical regulations in ques- tion inapplicable to individuals. 21 72. The three questions to be addressed are thus as follows.

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Central Food, to answer the last two of form and methods of transposition into questions in the affirmative. First of all, the national legal system. the Italian legislator has blatantly disregar- ded the standstill requirements of the directive despite being urged by the Com- mission not to do so. Then, from a substantive point of view the Court might 77. Where a Member State fails to trans- have the strong impression that the label- pose a directive of that kind into national ling rules in Law No 313 create an unjus- law before expiry of the time-limit, or fails tifiable obstacle to trade in goods and thus to transpose it properly, the effectiveness also infringe the prohibition of Article 30 and the uniformity of Community law are of the EC Treaty (now Article 28 EC). threatened and individuals might be deprived of the rights the directive intended to confer on them.

74. None the less, I am of the opinion that 78. In order to counter those problems, in the Court should answer both those ques- particular as regards private litigants, the tions in the negative. The present case Court has developed what Community shows that, if 'hard cases make bad law', lawyers often refer to as the doctrines of the same danger arises sometimes in 'soft consistent interpretation of national law in cases'. the light of directives, 24 vertical direct effect of directives, 25 and the absence of horizontal direct effect of directives. 26 In many cases, however, those catchwords hide a more complex legal reality 27

75. Before discussing the three questions set out above, it is necessary to clarify the nature of Directive 83/189. 79. Directive 83/189, which applies in the present case, is of an entirely different nature. Its purpose is not the approxima- tion of laws, but the protection of free movement of goods by means of a preven-

tive control mechanism. It lays down a no difference to the legal analysis, in my procedure for the provision of information view, that it was enacted in the form of a in the field of technical standards and directive. regulations. The Member States' obligation is not to legislate, but to notify draft legislation and then to await and take account of any reactions from other Mem- ber States or the Commission. As regards the procedure under Article 8 and 9 of the 81. The differences between Directive directive, the use of concepts such as 83/189 and 'normal' directives on the one 'transposition into national law' and 'fail- hand, and the fact that procedures compar- ure to do so within the applicable time- able to those contained in the directive are limit' is thus clearly not helpful. laid down in Community acts of a different legal nature, such as regulations, on the other hand, make it in my view clear that the above-mentioned case-law on the con- sequences of failures to comply with 'nor- mal' directives is of no relevance for the questions with which the present case is concerned. It is, therefore, necessary to consider those question on the basis of general principles of Community law alone.

ness of Article 30 of the Treaty or the rights requirement does not affect any rights of individuals derive from Community law. individuals under the directive. As regards the rights of individuals under Article 30 of the Treaty, the substantive compatibility of the rules in question with free movement of goods is decisive. It must be borne in mind that if a technical regulation does constitute 84. As regards, first, uniformity, the direc- an obstacle to trade between Member tive's purpose is to provide for a control States, individuals can rely directly on the and coordination mechanism designed to Treaty, without the need to resort to the prevent the adoption of measures which directive. might impede the free movement of goods; its purpose is not to harmonise national rules. Only as a last resort will the Com- mission propose harmonisation measures. Uniformity is thus not directly affected where a technical regulation is not notified. 87. In view of those considerations, it does not come as a surprise that the Court, when it ruled in CIA Security that unnotified technical regulations are not enforceable against individuals, relied only on the effectiveness of the directive's control 85. Secondly, as to the effectiveness of mechanism. Article 30 of the Treaty, an unnotified technical regulation might infringe Arti- cle 30, but it might equally not do so. It might even eliminate a pre-existing obstacle to trade. The directive contains only pro- cedural rules which are by definition neu- tral from a substantive point of view. The 88. Are the threats to the effectiveness of ex fact that a technical regulation was not ante control, and indirectly to the free notified therefore gives no clear indication movement of goods, sufficiently grave to whether the rules it contains comply with justify precluding a Member State from the substantive requirements of Article 30 enforcing unnotified technical regulations of the Treaty. against individuals?

90. If a Member State is aware that it is 92. For those reasons, it is in my view unable to enforce unnotified technical reg- correct to hold, as the Court did in CIA ulations against individuals, the incentive Security, that in order to safeguard the to notify is strong. It is always possible that effectiveness of the control mechanism a trader will find out that the Member State established by the directive, a Member did not notify a technical regulation and State should not be able to enforce against object to its enforceability on that ground. individuals a technical regulation adopted A lack of notification will thus constantly without prior notification. threaten, like the sword of Damocles, the enforceability of the unnotified national measure.

93. It might be added that the unenforce- 91. If, by contrast, unnotified technical ability of unnotified technical regulations regulations were to remain enforceable may, as a side effect, create windfall against individuals, a Member State might benefits for some traders. They will be able be tempted to refrain from notification, in to rely against a Member State on an particular where it is aware that a planned infringement of a procedural rule which technical regulation would in fact create an was not intended to confer rights on them, obstacle to trade in goods. In the absence of and that will be so independently of notification there is little risk that the whether the technical regulation in ques- Commission or other Member States will tion constitutes an unjustifiable obstacle to discover the obstacle to trade contained in trade under Article 30 of the Treaty.

97. I consider, however, that the Court cannot have intended that the sanction of (2) Are the procedural requirements of the unenforceability should apply in all types of directive, and in particular the notification proceedings between individuals. requirement, such that a breach should render the measure unenforceable in all types of proceedings between individuals, in particular those arising out of a con- tract? 98. In the first place, the Court's ruling must be read in the light of the special procedural circumstances of the case. Where competitors seek to enforce a tech- nical regulation on the basis of national rules on unfair trading practices, the pos- sible outcome of such proceedings, such as 95. According to CIA Security a technical for example an order to cease a certain regulation adopted without prior notifica- activity or to pay periodic penalties, is not tion may not be enforced in civil proceed- very different from the possible outcome of ings between competitors on the basis of a Member State's enforcement activities in national rules prohibiting unfair trading the same field when it acts through a public practices. The question is whether that rule prosecutor or an administrative authority. should be extended to civil proceedings between individuals concerning rights and obligations arising out of a contract. Should a trader such as Unilever be able to rely on the Member State's failure to comply with the procedural requirements 99. Secondly, there are more fundamental of Directive 83/189 in proceedings against considerations to be taken into account. The fact that a Member State did not comply with the procedural requirements 30 — Case C-226/97 Lemmens [1998] ECR I-3711. of the directive as such should not, in my

100. That is, first, because such effects 101. The second problem is possible injus- would be difficult to justify in the light of tice. If failure to notify were to render a the principle of legal certainty. For the day- technical regulation unenforceable in pri- to-day conduct of trade, technical regula- vate proceedings an individual would lose a tions which apply to the sale of goods must case in which such a regulation was in be clearly and readily identifiable as issue, not because of his own failure to enforceable or as unenforceable. Although comply with an obligation deriving from the present dispute concerns a relatively Community law, but because of a Member small quantity of bottled olive oil of a value State's behaviour. The economic survival of which may not affect the finances of either a firm might be threatened merely for the Unilever or Central Food to any drastic sake of the effectiveness of a mechanism extent, it is easy to imagine an exactly designed to control Member States' regu- comparable case involving highly perish- latory activities. That would be so inde- able goods and sums of money which pendently of whether the technical regula- represent the difference between prosperity tion in question constituted an obstacle to and ruin for one or other of the parties trade, a measure with neutral effects on concerned. In order to avoid difficulties in trade, or even a rule furthering trade. 31 his contractual relations, an individual The only redress for a trader in such a trader would have to be aware of the situation would be to bring ex post a existence of Directive 83/189, to know the hazardous and costly action for damages judgment in CIA Security, to identify a against a Member State. Nor is there any technical regulation as such, and to estab- reason for the other party to the proceed- lish with certainty whether or not the ings to profit, entirely fortuitously, from a Member State in question had complied Member State's failure to comply with the with all the procedural requirements of the directive. directive. The last element in particular might prove to be extremely difficult because of the lack of publicity of the procedure under the directive. There is no obligation on the Commission to publish the fact that a Member State has notified or failed to notify a given draft technical 102. It follows, in my view, that the correct regulation. In respect of the standstill solution in proceedings between individuals periods under Article 9 of the directive, is a substantive solution. The applicability there is no way for individuals to know that of a technical regulation in proceedings other Member States have triggered the six- month standstill period by delivering detailed opinions to the Commission. Simi- 31 — That seems to follow from the reasoning in paragraph 51 of the judgment in CIA Security, cited in note 2.

(3) In the alternative: should the breach of the standstill requirements entail the unen- forceability of a technical regulation?

104. If, contrary to what has just been 106. Despite those factors, I consider that a stated, the Court were to decide that failure to respect the standstill periods technical regulations which are adopted in should not in itself entail the unenforce- breach of essential procedural requirements ability of the technical regulation in ques- laid down in the directive are unenforce- tion. I have argued above that the only able in all types of proceedings between consideration justifying the unenforceabil- individuals, the question is whether the standstill requirement constitutes such a procedural requirement. 32 — See above, paragraph 8.

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ity of an unnotified technical regulation on 108. I consider, therefore, that it would be procedural grounds is the potential under- disproportionately severe to impose the mining of the effectiveness of Community sanction of unenforceability for infringe- control. However, while compliance with ments of procedural requirements other the duty to notify a draft technical regula- than the obligation to notify under Arti- tion is crucial for the effectiveness of that cle 8(1) of the directive. control, compliance with the standstill period is less important.

107. Once a draft technical regulation has been notified, it has been impelled into the 109. I accordingly conclude that in civil open. Other Member States and the Com- proceedings between individuals a national mission are then in a position to monitor court should not disapply a technical effectively the respect for the procedural regulation which, although notified to the requirements of the directive and the sub- Commission in accordance with the stantive requirements of Article 30 and, requirements of the directive, was adopted where necessary, to start infringement pro- before the expiry of a standstill period ceedings. applicable under the directive.

113. If, as I have argued, the failure of a Member State to notify a technical regulation should not be treated as affecting contractual relations between individuals and as founding a breach of contract, then it is clear that infringement of the standstill requirements should not be so treated either. There are several arguments common to both. In particular, the arguments based on legal certainty, on injustice, and on the absence of transparency apply, in different ways, to all the consequences of procedural irregularities on the part of Member States.

114. The truth is that the code of procedure laid down by the directive is a code designed to regulate relations between the Commission and the Member States. It was not designed to confer substantive rights on individuals, still less to have adverse effects on them. Nor does it seem necessary that it should be given such effects. The Community's overriding interest in ensuring the free movement of I - 7563

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goods does not arise until it is established that the technical regulation does obstruct such freedom of movement. In cases such as the present the Community's interest can be fully secured by reliance on Article 30 of the Treaty.

115. Accordingly the question referred by the Pretura Circondariale di Milano should in my opinion be answered as follows:

Where a Member State fails to comply with the procedural requirements laid down by Articles 8 and 9 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, such a failure cannot be relied upon in national courts in proceedings between individuals arising from a contract.