C-278/99

VAN DER BURG

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 12 December 2000 1

1. The Hoge Raad der Nederlanden of approved equipment, and those permit- (Supreme Court of the Netherlands) has ting possession. made a reference to the Court under Article 234 EC for a ruling on the inter- pretation of Council Directive 83/189/EEC of 28 March 1983 laying down a proce- dure for the provision of information in the field of technical standards and regula- tions 2('Directive 83/189'). The order for Commercial operators specialising in the reference makes specific mention of Arti- trade of radioelectrical equipment may cle 1, which defines the terms 'technical obtain a licence to manufacture, market, specification' and 'technical regulation'. repair and install transmitting equipment. The licence contains several categories, which are classified into three groups. Groups I and II cover approved transmit- ting equipment. The Group III licence, which covers non-approved equipment, is granted exclusively for possession and not for use. The use of non-approved transmit- ting equipment is prohibited in the Nether- 1. National legislation governing radioelec- lands and the marketing of such equipment trical transmitting equipment is very strictly regulated in order to prevent disruption of the air waves. Companies operating in this sphere must keep a register of the transmitting equipment they manufacture, receive and deliver. Under Article D.I.4 of the Decree on Radio 2. Article 17(1) of the Law on Telecommu- Electrical Equipment (Besluit radio-elek- nications Services (Wet op de telecommu- trische inrichtingen) these companies are nicatievoorzieningen) prohibits, otherwise not permitted to keep transmitting equip- than by concession, the installation, use or ment belonging to Group III in places possession of radioelectrical transmitting which are accessible to the public. equipment without ministerial authorisa- tion. The licensing system distinguishes between licences permitting installation and use, which are only granted in respect

II. The facts of the main proceedings '1. Must Article 1 of Directive 83/189 be interpreted as meaning that Arti- cle C.11.1(1) of the Besluit radio elek- 3. In January 1994, Mr van der Burg trische inrichtingen (Decree on Radio placed advertisements for radio-frequency Electrical Equipment), which provides amplifiers with a capacity of 1000 and that "[i]t is prohibited to make com- 1500 watts in a magazine for radio ama- mercial advertisements, or to cause teurs. These amplifiers are active electronic commercial advertisements to be made, components which can increase the for transmitting equipment which is strength of a signal and are treated in the not of an approved type", should be same way as non-approved transmitting treated as a technical regulation within equipment. the meaning of Directive 83/189...?

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2. If the answer to Question 1 is in the to Article C. 11.1 ( 1 ) of the Decree on Radio affirmative: does this have the result Electrical Equipment. that such a provision must be disap- plied only if it constitutes a barrier to trade or to the free movement of goods in a specific case, or should it be held that such a provision must not be applied if the provision generally, and thus irrespective of the specific case, has or may have the effect of an IV. The relevant Community legislation obstacle to trade?'

6. Article 1 of Directive 83/189 3 defines 'technical specification', 'standard', 'stan- dards programme', 'draft standard', 'tech- nical regulation', 'draft technical regula- 5. The Hoge Raad requests that, in answer- tion' and 'product'. I have inferred from the ing the first question, the Court of Justice wording of the questions referred that the have regard to the legal context in which national court only requires an interpreta- this rule operates and to the relationship tion of paragraphs (1) and (5) of Article 1, between the requirements which transmit- which set out the definitions of 'technical ting equipment must satisfy and the prohi- specification' and 'technical regulation' bition of advertising. respectively.

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OPINION OF MR RUIZ-JARABO — CASE C-278/99

A 'technical regulation' is to be understood VI. Consideration of the questions referred as meaning 'technical specifications, for a preliminary ruling including the relevant administrative provi- sions, the observance of which is compul- sory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof, except those laid down by local authorities'. A. The first question

9. From the wording of this question, it is my understanding that, in essence, the 7. Under Article 8 of Directive 83/189, national court wishes to know whether Member States must immediately commu- the rule set out in Article C.11.1(1) of the nicate to the Commission any draft techni- Decree on Radio Electrical Equipment, cal regulation, except where the latter which provides that it is prohibited to merely transposes the full text of an make commercial advertisements or to international or European standard, in cause commercial advertisements to be which case information will suffice. made for non-approved transmitting equip- ment, is a technical regulation within the meaning of Directive 83/189.

V. The proceedings before the Court of 10. I agree with the view, shared by all Justice those who have submitted written observa- tions in these preliminary proceedings, that this question should be answered in the negative.

8. The Governments of France, Belgium, the Netherlands and the United Kingdom, together with the Commission, submitted written observations within the period 11. As the Court has indicated, the aim of prescribed for that purpose by Article 20 Directive 83/189 is to protect, by means of the EC Statute of the Court of Justice. of preventive control, the free movement of Since none of the interested parties applied goods, which is one of the foundations of to present oral observations, the Court the Community. This control is useful in decided not to hold a hearing, in accor- that the technical regulations covered by dance with Article 104(4) of the Rules of the Directive may constitute obstacles to Procedure. trade in goods between Member States,

such obstacles being permissible only if the provision does not in principle fall they are necessary to satisfy compelling within the definition of a technical specifi- public interest requirements. 4 cation and consequently cannot be regar- ded as a technical regulation which has to be notified to the Commission pursuant to the first subparagraph of Article 8(1) of the Directive. 6 Therefore, the obligation to notify laid down by Directive 83/189 does not apply to national rules which do not lay 12. As the Commission rightly points out, down the characteristics required of a the national rule in question cannot be product. 7 regarded as a technical specification or a technical regulation within the meaning of Directive 83/189, because the prohibition of advertising is not a specification defining the characteristics of transmitting equip- ment, but rather a procedural guideline to be followed where transmitting equipment has not been approved, and because com- pliance with the rule is not obligatory either for the marketing or for the use of trans- mitting equipment in the Netherlands. 14. Second, the definition of 'technical specification' provided by Article 1(1) of Directive 83/189 refers to the characteris- tics of a product but makes no mention of advertising, or of methods of sales promo- tion. In any event, this is an ancillary rule which does not regulate, either directly or 13. There are, moreover, further arguments indirectly, the characteristics required of in favour of this interpretation. First, transmitting equipment in order that it may advertising is a service rather than a be marketed and used and its application product, which means that it is not covered depends upon whether or not the transmit- by Article 30 of the EC Treaty (now, after ting equipment has been approved by the amendment, Article 28 EC) or by Directive authorities. The Court has taken the view 83/189, the aim of which is to prevent that the obligation to provide information obstacles to the free movement of goods. in a specified language does not in itself Pursuant to the Court's interpretation in constitute a 'technical regulation' within previous case-law, technical regulations the meaning of Directive 83/189, but an are, within the meaning of Directive ancillary rule necessary in order for the 83/189, specifications defining the charac- information to be effectively communi- teristics of products. 5Where a character- cated. 8 istic required of a product is not stipulated,

15. Third, the rule in question governs In my view, it is not necessary for the Court advertising, which is too remote from and to consider that hypothesis in the context of insufficiently directly connected to the the question referred for a preliminary production and marketing of a product. ruling since, as the Commission acknowl- The Court has stated, in this regard, that edges, it bears no relation to the events certain measures may impose, in respect of which gave rise to the proceedings against a product intended for a particular group of Mr van der Burg, who is a businessman users, technical specifications whose con- selling transmitting equipment, rather than tent depends on the specific objective a member of the media. pursued by that group and which are too remote in terms of their relationship with the production and marketing of the pro- duct to be classified as technical regulations within the meaning of Directive 83/189. 9

18. For the reasons stated, I believe that the rule set out in Article C.11.1(1) of the Decree on Radio Electrical Equipment prohibiting the advertisement of non- approved transmitting equipment does not a constitute a technical regulation within the meaning of Directive 83/189.

16. Finally, the prohibition of advertising does not mean that it is illegal to market non-approved transmitting equipment.

20. By its second, subsidiary, question, which is to be answered in the event that the reply to the first question is in the affirmative, the national court wishes to know whether, in order for a technical 22. The Court has ruled in the past on the regulation which has not been communi- legal consequences of failure by a Member cated to be rendered inapplicable, it must State to notify technical regulations to the constitute a barrier to the free movement of Commission. In this regard, the Court has goods in a specific case or whether it is stated that the aim of Directive 83/189 is to sufficient that the provision is generally protect the free movement of goods by likely to disrupt trade. means of preventive control and that the obligation to notify is essential for achiev- ing such control. The effectiveness of Community control will be that much greater if the Directive is interpreted as meaning that breach of the obligation to 21. It is the view of both the French and notify constitutes a substantive procedural Netherlands Governments that whether or defect such as to render technical regula- not a technical regulation which has not tions which have not been notified inap- been communicated is rendered inapplic- plicable to individuals. 10 able should be considered in each specific case, having regard to the aim of Directive 83/189, and that the regulation will only be rendered inapplicable if none of the grounds for justification set out in Arti- cle 36 of the EC Treaty (now, after amend- 23. I agree with the Commission when it ment, Article 30 EC) applies. draws attention to the fact that there is only a partial overlap between the scope of Directive 83/189 and that of Article 30 of the Treaty, 11 and with its assertion that the penalty of rendering technical regulations inapplicable, the purpose of which is to However, in the case before the Court, the increase the effectiveness of preventive rule at issue is vital in order to protect the control within the framework of Directive air waves and is therefore justified. The 83/189, should be restricted by its material need to prohibit commercial advertising of non-approved transmitting equipment aimed at the general public — since adver- 10 — CM Security International, cited in footnote 4 above, tisements aimed at specialised groups are paragraph 48. authorised — arises from the serious dis- 11 — The Commission suggests, by way of an example, that the linguistic requirements imposed by Member States with ruption that use of this type of apparatus regard to labelling are not technical regulations but do can cause to the communications network constitute a barrier to intra-Community trade, whereas production standards, which do not affect trade between and from the fact that it can affect, inter Member States, could be regarded as technical regulations, even though they do not fall within the scope of Article 30 alia, ambulance traffic, police communica- of the Treaty.

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regulations. That applies notwithstanding the existence of a direct relation- ship between the technical requirements which transmitting equipment must satisfy in order to be approved and the prohibition of advertising non- approved equipment, since such a prohibition only takes effect where an authorisation is required but has not been obtained.

(2) A technical regulation which has not been notified to the Commission should only be rendered inapplicable if it is likely to hinder the use or marketing of a specific product. Since Article C.11.1(1) of the Decree on Radio Electrical Equipment does not hinder the use or marketing of transmitting equipment, the Hoge Raad is not entitled to set aside this rule in the present proceedings.

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