C-37/99
ECLI:EU:C:2000:195
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DONKERSTEEG
OPINION OF ADVOCATE GENERAL FENNELLY delivered on 6 April 2000 *
1. The present reference for a preliminary measures governing agricultural activities. ruling from the Hoge Raad der Nederlan- The two national provisions which are at den (Supreme Court of the Netherlands) issue in the present proceedings are Arti- concerns the definition of 'technical regula- cle 2(1) of the Verordening Minimumeisen tions' for the purposes of Council Directive Varkenshouderij 1993 (1993 Regulation on 83/189/EEC of 28 March 1983 laying the Minimum Requirements for Pig Keep- down a procedure for the provision of ing, hereinafter 'VMV') and Article 2(1) of information in the field of technical stan- the Verordening Bestrijding Ziekte van dards and regulations, and the interpreta- Aujeszky 1993 (1993 Regulation on the tion of the derogation allowed under Arti- Combating of Aujeszky's disease, herein- cle 10 thereof for national measures after 'VBZA'). adopted to fulfil obligations arising out of Community directives and regulations. 1
I — Facts and procedural background 3. Article 2(1) of the VMV provides as follows:
2. The appellant, a pig farmer in the Netherlands, was convicted at first instance of a number of offences, committed on or before 22 March 1995, under national
* Original language: English. 1 — OJ 1983 L 109, p. 8, as amended by Council Directive 88/182/EEC of 22 March 1988; OJ 1988 L 8 1 , p. 75. The facts arose before the expiry of the deadline for compliance with Directive 94/10/EC of the European Parliament and 'The operator is required to ensure that one the Council of 23 March 1994 materially amending for the second tune Directive 83/189/EEC laying down a procedure or more proper disinfectant containers or for the provision of information in the field of technical standards and regulations, OJ 1994 L 100, p. 30, which appropriate cleaning facilities for disinfect- also amended the Directive. ing footwear are present on his holding.'
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4. Article 2(1) of the VBZA provides that: required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards terminology, sym- bols, testing and test methods, packaging, marking or labelling and the production methods and procedures for agricultural 'Every operator is required to have (meat) products as defined in Article 38(1) of the pigs 2present on his holding vaccinated Treaty... .' against Aujeszky's disease in accordance with the vaccination scheme set up for the animal species concerned and the indivi- dual areas by the Afdeling [Pig Breeding Department] on the recommendation of the Stichting [Veterinary Care Association].' 7. Article 1(5) defines 'technical regulation' as follows:
5. On appeal to the Hoge Raad der Neder- 'technical specifications, including the rele- landen the accused argued that these provi- vant administrative provisions, the obser- sions should have been notified to the vance of which is compulsory, de jure or de Commission in accordance with Direc- facto, in the case of marketing or use in a tive 83/189/EEC, and relied upon the direct Member State or a major part thereof, effect of Articles 8 and 9 thereof estab- except those laid down by local authori- lished by the Court in CIA Security. 3 ties.'
8. Article 1(7) defines 'product' as includ- 6. Article 1(1) of Directive 83/189 defines ing 'any agricultural product'. the term 'technical specification' as follows:
9. Article 8(1) requires the Member States to notify the Commission of 'any draft 'a specification contained in a document technical regulation, except where such which lays down the characteristics technical regulation merely transposes the full text of an international or European standard, in which case information 2 — A distinction is drawn in this area between pigs for meat and regarding the relevant standard shall suf- pigs for reproduction. fice'. Article 9 obliges the Member States to 3 — Case C-194/94 CIA Security v Signakon and Securiteì [1996] ECR I-2201 (hereinafter 'CIA Security'). 'postpone the adoption of a draft technical
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regulation for six months from the date of 3. Where a draft technical regulation notification referred to in Article 8(1) if the within the meaning of Directive Commission or another Member State 83/189/EEC is not communicated to delivers a detailed opinion, within three the Commission pursuant to Articles 8 months of that date', to the effect that the and 9 of that Directive, does that draft regulation would cause a barrier to render such a regulation inapplicable trade, and to postpone the adoption of any to the extent to which it constitutes a such measure where the Commission sub- barrier to trade or the free movement mits a legislative proposal on the same of goods in a particular case, or should subject-matter to the Council. Article 10 it be ruled that such a provision cannot allows a derogation for national provisions be applied where the regulation con- which implement Community obligations. stitutes, or may constitute, a barrier to trade in general irrespective of the particular case?
10. The Hoge Raad referred the following questions to the Court: 4. If the second question is to be answered in the affirmative, does the fact that in December 1995 the Netherlands pro- gramme for combating Aujeszky's dis- ease in pigs was approved by the European Commission for 1996 have any bearing on the question whether '1. Is Article 1 of Directive 83/189/EEC to Article 2(1) of the Verordening be interpreted as meaning that the Bestrijding Ziekte van Aujeszky is provision in Article 2(1) of the Veror- applicable to the present case? If so, dening Minimumeisen Varkenshouderij what bearing does it have?' 1993... must be regarded as a technical regulation within the meaning of that Directive?
11. Denmark, the Netherlands, the United Kingdom and the Commission have sub- mitted written observations. They also took part in the oral hearing. Counsel for the 2. Is Article 1 of Directive 83/189/EEC to appellant appeared at the oral hearing be interpreted as meaning that the without submitting any substantive obser- provision in Article 2(1) of the Veror- vations. Denmark's observations concern dening Bestrijding Ziekte van Aujeszky the first question only, the United King- 1993... must be regarded as a technical dom's only the first two. The third and regulation within the meaning of that fourth questions do not arise if negative Directive? answers are given to the first two.
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I I — Analysis Article 1(1) of Directive 83/189, but merely that disinfectant containers or appropriate cleaning facilities for disinfect- ing footwear be present on the pig farmers' holdings.
(a) Article 2(1) of the VMV
14. In Commission v Italy, the Court 12. The parties who have submitted writ- considered an Italian law laying down ten observations agree that, though pig- 'limits for concentrations of inhalable meat is a 'product' for the purposes of asbestos fibres at workplaces ...' and held Directive 83/189/EEC, Article 2(1) of the that, since it did 'not define a characteristic VMV is not a 'technical specification' as it required of a product, it [did] not in neither regulates the production of pigmeat principle fall within the definition of a nor defines the characteristics of pigmeat as technical specification'.4 That judgment a product. The United Kingdom adds that, makes it clear that, if the observance of even if it were considered a technical such a national rule is to be regarded as specification, the contested provision is having 'consequences as regards the char- not a technical regulation as it has no acteristics of the product in question', those direct impact on the marketing and use of consequences would have to be demonstra- the product. The Commission and Den- ted before it could be considered a technical mark argue that the national legislation specification. 5 does not make observance of this provision compulsory de jure or de facto in the marketing or use of the product in the Netherlands. Consequently it does not amount to a technical regulation.
15. In two other cases, the Court has adverted to the need for a clear link with the 'characteristics of a product' before a 13. I would agree that Article 2(1) of the national rule qualifies as a technical speci- VMV does not 'lay down the characteristics fication. In CIA Security 6a rule laying required of a product', in casu, pigmeat. down conditions governing the establish- While it may be desirable that pig farmers ment of security firms and in Semeraro comply with this provision, it does not 'lay down the characteristics required of a product ...', namely pigmeat, or a 'method' 4 — Case C-279/94 [1997] ECR I-4743, paragraph 34. or 'procedure' for the production of pig- 5 — Loc. cit. meat as those terms are employed in 6 — Loc. cit., at footnote 3 above.
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Casa Uno and Others v Sindaco del 'very close correlation' which, in the view Comune di Erbusco and Others7 rules of the Court, obtained between the water regulating the closing times of shops failed quality standards in Commission v Italy to satisfy the definition for the same reason. and the marketing of the products there at issue (lamellibranch molluscs). 8 The Italian law at issue in that case prohibited the marketing of lamellibranch molluscs not grown in waters complying with the stan- dards laid down. While, as I suggest later (paragraph 32), 'a very close correlation' may not be required, there is no link at all 16. Since Article 2(1) of the VMV is not a in the present case. I am of the view that technical specification, it cannot, in any Article 2(1) of the VMV is not, in any case, event, be a technical regulation. a technical regulation which the Nether- lands was obliged to notify to the Commis- sion under Article 8 of Directive 83/189.
17. However, I would further agree with the United Kingdom, Denmark and the Commission that, even if it were to be considered a 'technical specification', quod non, Article 2(1) of the VMV could not, on (b) Article 2(1) of the VBZA any view, amount to a 'technical regula- tion'. Its observance is not 'compulsory, de jure or de facto, in the case of marketing or use' of pigmeat, as distinct from that of the operation of a pig farm.
19. The Netherlands argues that this pro- vision also has no link with the character- istics required of the product, as non- vaccinated pigs are not necessarily infected with Aujeszky's disease, and they may 18. The VMV does not establish, as legally be marketed. However, the Nether- between the national standards required lands does point out that an infected pig of pig farmers in regard to the disinfectant may not be exported to countries or regions facilities at issue and the marketing or use subject to additional guarantees as regards of pigmeat, anything corresponding to the Aujeszky's disease, in accordance with the applicable Community legislation. At most, there is a very tenuous connection between 7 — Joined Cases C-418/93 to C-421/93, C-460/93 to C-462/93, C-464/93, C-9/94 to C-11/94, C-14/94 and C-15/94, C-23/94 and C-24/94, and C-332/94 [1996] ECR I-2975. paragraph 38. 8 — Case C-289/94 [1996] ECR I-4405, paragraph 32.
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vaccination and the characteristics of the Government, in its observations, says that product, and the national provision cannot the article involves no limitation concern- therefore be considered a technical regula- ing the marketing of pigs. The only applic- tion. The United Kingdom also argues that able restrictions arise from Community Article 2(1) of the VBZA does not specifi- rules. 9 cally define the characteristics of the pro- duct and is not sufficiently directly corre- lated with the marketing and use of the product to constitute a technical regulation.
22. The Commission maintains, none the less, that, even if Article 2(1) is not linked to any marketing condition, the vaccination requirement amounts to a compulsory provision relating to the 'use' of pigs, so as to bring it within the scope of the definition of a technical regulation.
20. The Commission, on the other hand, is of the view that this provision is a technical specification, in that the vaccination requirement has a direct impact on the production of pigmeat and on the charac- 23. This raises a very precise question of teristics of the product, and in particular interpretation relating to a word, 'use', of the essential characteristic, viz. the health almost entirely indeterminable application. of the animals concerned. It can only be usefully answered, in my view, in accordance with the accepted manner of interpretation of Community law, i.e. by having regard, not only to the words used, but also to the context in which they appear and the purpose of the scheme of which they form part.
21. It is important, in my view, to identify clearly the precise nature and scope of Article 2(1) of the VBZA. It applies to 24. The purpose of Directive 83/189 is, as operators of holdings upon which pigs are has recently been explained by Advocate kept, obliging them to have their pigs General Jacobs, '... the protection of free vaccinated in accordance with a vaccina- tion scheme organised officially for that purpose. The order for reference does not 9 — Commission Decision 93/24/EEC of 11 December 1992 concerning additional guarantees relating to Aujeszky's state that it is associated with any other disease for pigs destined to Member States or regions free of the disease (OJ 1993 L 16, p. 18); Commission Decision Dutch national provisions regarding 93/244/EEC of 2 April 1993 concerning additional guaran- restrictions on movement or sale of pigs, tees relating to Aujeszky's disease for pigs destined for certain parts of the territory of the Community, OJ 1993 whether vaccinated or not. The Dutch L 111, p. 21.
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movement of goods by means of a preven- of 'use' runs the risk of eliminating the tive control mechanism'. 10 Though it is distinction and is not, in my view, accep- not coterminous with Article 30 of the EC table. Treaty (now, after amendment, Article 28 EC), it is based, as the second recital states, on the premiss that 'barriers to trade resulting from technical regulations relating to products may be allowed only when they are necessary in order to meet essential requirements and have an objective in the public interest...'. 11 Consequently, the Directive should be interpreted as being designed'to prevent obstacles to trade. 27. It is necessary, in the first instance, to consider whether the vaccination require- ment 'lays down the characteristics of a product'. I think it does. I am not persua- ded by the arguments of the Dutch Gov- ernment that, for example, an unvaccinated animal does not necessarily have Aujeszky's 25. The Commission rightly emphasised at disease or that of the United Kingdom that the hearing that there is a clear distinction the vaccination requirement does not relate between the definitions of 'technical speci- to production methods or define the char- fication' and 'technical regulation'. acteristics of the product. In my view, a vaccination requirement indisputably lays down characteristics required of a product, i.e. in the case of a pig, that it be vaccinated. In any event, it seems to me unarguable that it comes within the scope of the particular rule for agricultural pro- ducts by virtue of amounting to a rule relating to 'production methods and proce- 26. The definition of 'technical specifica- dures'. Neither the need for nor the effec- tion' concentrates on rules laying down 'the tiveness of the vaccination is relevant. A characteristics of a product', but not every vaccinated pig, by that very fact, has a such rule is also a 'technical regulation'. characteristic which is different from an For that result, something more is neces- unvaccinated pig. The rule in question does sary. Otherwise, there would be no distinc- not differ in principle from the types of tion between the two definitions. In parti- prior-approval requirement that were con- cular, the Commission's suggestion, made sidered in both CIA Security 12 and Lem- at the hearing, that the mere possession or mens. 13 Each of those cases concerned keeping of a product through the different rules providing for the examination, testing stages of production satisfied the definition and approval of equipment. The fact that they did not purport to affect or alter their 10 — Case C-443/98 Unilever Italia v Central Food, Opinion delivered on 27 January 2000, paragraph 79, judgment pending. See also Case C-13/96 Die Benelux v Belgian 12 — Loc. cit., footnote 3 above, paragraph 26. State [1997] ECR I-1753, paragraph 19. 13 — C a s e C-226/97 lemmens [1998] ECR I-3711, para- 11 — Recital in the preamble to the Directive. graphs 24 and 25.
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characteristics had no bearing on whether tation by the Court that a provision must they should be treated as technical specifi- have a binding legal character to satisfy the cations and, ultimately, technical regula- definition. That principle applies most tions. obviously to legal prohibitions on market- ing: these are 'compulsory, de jure ...'.
28. It remains, then, to consider whether 31. The second element is that it must the vaccination requirement amounts also concern the 'marketing or use' of the to a technical regulation. It neither contains product in question. The Court has princi- nor is associated with any provision inde- pally had to rule in its case-law on provi- pendent of that already considered in sions that were very clearly related to relation to the vaccination itself other than marketing. 16 the one which creates the offence of which the appellant was convicted.
32. In Case C-289/94 Commission v Italy, the Court, in a passage much cited by the 29. The definition of 'technical regulation' intervening parties, emphasised the 'very envisages a provision which, in addition to close correlation between the quality of being a 'technical specification', is 'com- waters used for [the] cultivation and the pulsory, de jure or de facto, in the case of marketing of lamellibranch molluscs for marketing or use in a Member State or a human consumption'. 17 It did not there, major part thereof ...'. however, as was implied in argument, go so far as to suggest that this 'very close correlation' was required in order for the rule to satisfy the definition of a 'technical regulation'.
30. In CIA Security, the Court held that '[a] rule is classified as a technical regula- tion for the purposes of Directive 83/189 if it has legal effects of its own', in the sense 33. There are two cases where the national of not being a mere enabling provision. 14 rule appeared to combine a marketing ban In Case C-279/94 Commission v Italy it with other provisions. Case C-279/94 considered that 'distinct legal effects' were Commission v Italy (the 'Asbestos case') required. 15 It follows both from the word- ing of the definition and from its interpre- 16 — CIA Security, loc. cit., paragraph 27; Case C-279/94 Commission v Italy, loc. cit., paragraph 30; Case C-289/94 Commission v Italy [1996] ECR I-4405; Bic 14 — Loc. cit., paragraph 29. Benelux, op. cit., [1997] ECR I-1753, paragraph 23. 15 — Op. cit., paragraph 36. 17 — Loc. cit., paragraph 32.
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concerned a provision of a law which 35. Both the Asbestos case and Albers 'prohibit[ed] the extraction, importation, concerned laws containing a prohibition exportation, marketing and production of on marketing combined with other provi- asbestos, asbestos products and products sions. It might, in particular, be suggested containing asbestos ...'. 18 The Court con- that there is an analogy between Arti- sidered that to be a prohibition on the cle 2(1) of the VBZA at issue in this case 'marketing and use' of asbestos, but did not and that part of Article 3 of the law at issue have to consider the hypothetical possibi- in Albers which prohibited keeping or lity of a mere ban on extraction or produc- having in stock cattle that had been treated tion. with growth promoters.
34. Albers was a case concerning a Dutch 36. That view would, in my view, be law prohibiting the administration to cattle mistaken. The rule considered in Albers of certain growth promoters, in particular inseparably linked the ban on keeping or Clenbuterol. 19 This was Article 1 of the having cattle in stock to the marketing ban, law. A separate provision, Article 3, of the i.e. that on buying and selling. The Court same law provided: did not have to consider the purely theore- tical hypothesis of a ban limited to keeping or having in stock.
'It is prohibited to keep or to have in stock, to buy or to sell fattening cattle to which ... 37. In my opinion, the word 'use' in the [growth promoters] ... have been adminis- definition of a technical regulation refers to tered ...'. The Court ruled, firstly, that use in a market-related context or, perhaps, Article 1 constituted a technical specifica- in part of a market. It is, I think, more tion, as it defined 'production methods and instructive to consider Lemmens. 21 That procedures'. 20 It did not separately address case was concerned with the Dutch breath- the question of whether Article 3 related to analysis regulation, part of the road traffic marketing or use but simply ruled that the provisions relating to driving under the law constituted a technical regulation. influence of alcohol. One regulation laid down a requirement that breath-analysis apparatus used by the police to test suspects 18 — Op. cit., paragraph 30. 19 —Joined Cases C-425/97 to C-427/97 Albers and Others [1999] ECR I-2947. 20 — Loc. cit.. paragraphs 16 and 17. 21 — Loc. cit.. at footnote 13 above.
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had to be of a type approved by a Brussels laid down quality and safety designated control body. There was no standards for the letting of furnished general prohibition on the marketing of accommodation, applying specific gener- unapproved breath-analysis apparatus. The ally known technical standards for gas and regulation concerned only the use of electrical appliances. There was no general approved apparatus by the police. None restriction on the marketing of such pro- the less, the Court ruled it to be a technical ducts. But the rule regulating use was a regulation, stating that: 'the fact remains technical regulation because it affected that the rules laid down by that regulation access to part of the market. must be complied with by those who sell such apparatus to the police, which is a major user of that product . . . ' . 22
38. It is, in my view, only obligatory provisions concerning the use of a product 39. Article 2(1) of the VBZA contains no and which are such as to affect trade in that provision regulating 'use' of pigs in any of product or in related products which are the senses I have described. Nor is it linked covered by the word 'use' in the present to any national rule affecting marketing or context. A prohibition on keeping an use. As I have pointed out at paragraph 21, unvaccinated cow, i.e. its 'use', might have the only applicable rules are Community an effect on the sale of milk. Safety rules. Accordingly, it is not a technical regulations of many kinds lay down rules regulation. on the materials or equipment permitted in premises open to the public so as to affect the 'use' of products even in the absence of direct marketing rules. It is possibly this kind of partial or indirect effect on market- ing that is intended to be covered by the expression 'de facto' in Article 1(5) of Directive 83/189. An excellent example of the type of 'use' rule that amounts to a technical regulation was presented to the Court in an uncontested infringement action against Belgium. 23 A Decree of the Government of the Region of Metropolitan
40. In view of the answers I propose to the 22 — Op. cit., paragraph 25. 23 — Case C-145/97 Commission v Belgium [1998] first two questions, there is no need to ECR I-2643. address the third and fourth questions.
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I I I— Conclusion
41. In the light of the foregoing, I propose that the Court reply as follows to the first two questions submitted by the Hoge Raad der Nederlanden:
Neither a provision such as Article 2(1) of the Verordening Minimumeisen Varkenshouderij 1993 nor a provision such as Article 2(1) of the Verordening Bestrijding Ziekte van Aujeszky 1993 is to be regarded as a technical regulation within the meaning of Article 1 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, as amended by Council Directive 88/182/ EEC of 22 March 1988.
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