1. 

The present case, which has its origin in criminal proceedings brought against retailers of pyrotechnic articles, provides the Court with the opportunity to rule on the scope of the directives relating to pyrotechnic articles, on the conformity with EU law of national legislation restricting the sale of pyrotechnic articles containing more than 1 kg of pyrotechnic composition ( 2 ) and on the conformity to Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market ( 3 ) of a double authorisation scheme for the storage of pyrotechnic articles.

2.

Article 1(5) of the Services Directive states:

‘This directive does not affect Member States’ rules of criminal law. However, Member States may not restrict the freedom to provide services by applying criminal law provisions which specifically regulate or affect access to or exercise of a service activity in circumvention of the rules laid down in this directive.’

3.

According to Article 2(1) of that directive:

‘This directive shall apply to services supplied by providers established in a Member State.’

4.

In Chapter III of that directive, entitled ‘Freedom of establishment for providers’, Article 9, entitled ‘Authorisation schemes’, states, in paragraph 1:

‘Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied:

5.

Article 10 of the Services Directive states:

‘1.   Authorisation schemes shall be based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner.

2.   The criteria referred to in paragraph 1 shall be:

…

7.   This article shall not call into question the allocation of the competences, at local or regional level, of the Member States’ authorities granting authorisations.’

6.

Recital 4 of Directive 2007/23/EC of the European Parliament and of the Council of 23 May 2007 on the placing on the market of pyrotechnic articles ( 4 ) states:

‘Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances [ ( 5 )] sets out safety requirements for establishments where explosives, including pyrotechnic substances, are present.’

7.

Article 1 of that directive provides:

‘1.   This directive establishes rules designed to achieve the free movement of pyrotechnic articles in the internal market while, at the same time, ensuring a high level of protection of human health and public security and the protection and safety of consumers and taking into account the relevant aspects related to environmental protection.

2.   This directive establishes the essential safety requirements which pyrotechnic articles must fulfil with a view to their being placed on the market.

…’

8.

Article 2 of that directive provides:

‘For the purposes of this directive:

…

…

…’

9.

Article 6 of Directive 2007/23 provides:

‘1.   Member States shall not prohibit, restrict or hinder the placing on the market of pyrotechnic articles which satisfy the requirements of this directive.

2.   The provisions of this directive shall not preclude measures taken by a Member State to prohibit or restrict the possession, use and/or the sale to the general public of category 2 and 3 fireworks, theatrical pyrotechnic articles and other pyrotechnic articles, which measures are justified on grounds of public order, security or safety, or environmental protection.

…’

10.

According to the first paragraph of Article 20 of that directive:

‘Member States shall lay down rules on penalties applicable to infringements of the provisions of national law adopted pursuant to this directive and ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.’

11.

Article 45 of Directive 2013/29/EU of the European Parliament and of the Council of 12 June 2013 on the harmonisation of the laws of the Member States relating to the making available on the market of pyrotechnic articles ( 6 ) states:

‘Member States shall lay down rules on penalties applicable to infringements by economic operators of the provisions of national law adopted pursuant to this directive and shall take all the measures necessary to ensure that they are enforced. Such rules may include criminal penalties for serious infringements.

The penalties provided for shall be effective, proportionate and dissuasive.’

12.

Pursuant to Article 5 of the Wet betreffende ontplofbare en voor de deflagratie vatbare stoffen en mengsels en de daarmede geladen tuigen (Law on explosive and deflagration-prone substances and mixtures and apparatus loaded with them) ( 7 ) of 28 May 1956:

‘Infringements of the provisions adopted under Article 1 shall be punishable by a term of imprisonment of between 15 days and two years and a fine of between [BFR] 100 and 1000, or only one of those penalties.’

13.

Article 200 of the Koninklijk besluit houdende algemeen reglement betreffende het fabriceren, opslaan, onder zich houden, verkopen, vervoeren en gebruiken van springstoffen (Royal Decree laying down general rules on the manufacture, storage, detention, sale, transport and use of explosives) ( 8 ) of 23 September 1958 provides:

‘No explosive shall be kept, in quantities in excess of those which may be held pursuant to Article 265, except in duly authorised shops or warehouses.’

14.

According to Article 257 of that decree:

‘The sale of any explosive in quantities in excess of those which any individual may possess and indicated in Article 265 may take place only if the following conditions are fulfilled:

The condition referred to in point 2 shall apply only if the goods purchased are intended to be stored or held on a temporary basis on Belgian territory.

The seller shall check and archive all documents submitted by purchasers in order to prove compliance with the obligations referred to in the first paragraph. Those documents shall be kept available, for at least three years, for the agents of the Directorate-General for Quality and Security of the Federal Public Service for the Economy, SMEs, Middle Classes and Energy and the police and judicial authorities at the premises where the sales are made.’

15.

Article 260 of the Royal Decree provides:

‘Retailers must always be in possession of a storage authorisation; they cannot hold or sell even the slightest quantity of explosives other than those indicated in Article 261.

Their warehouses must be equipped and maintained as stated in Article 251.’

16.

Pursuant to Article 261 of that decree:

‘The type and quantities of explosives that may be kept by retailers shall be determined in each individual case by the authorisation decree, depending on the degree of security which each warehouse presents.

The amount of those products kept shall not exceed the following quantities:

…

…’

17.

Article 265 of that decree states:

‘No authorisation shall be required in order to keep:

…

18.

The first paragraph of Article 300 of the Royal Decree provides:

‘Infringements of the provisions of this regulation, with the exception of Article 295, of the decrees adopted in order to implement those provisions, and the provisions of the authorisation decrees shall be punishable by the penalties imposed by the Law of 28 May 1956.’

19.

In the main proceedings, the accused are Van Gennip BVBA, Original BVBA, Mr Antonius ten Velde and Mr Antonius van der Schoot.

20.

Original is an undertaking whose registered office is in Olen (Belgium), not far from the Netherlands, and whose business consists in the import, wholesale and distribution of party fireworks. In that respect, it has, in particular, two sales outlets in Baerle-Duc (Belgium), a municipality which is partly in the province of Brabant-Septentrional (Netherlands) and contained within the municipality of Baarle-Nassau (Netherlands), which are operated by Van Gennip, whose registered office is in Baerle-Duc. Mr ten Velde and Mr van der Schoot, who are both Netherlands nationals, are the managers of those sales outlets, namely Zena-Tabak-O-Tiek and Zena-De Bunker, respectively.

21.

The four accused in the main proceedings are, in essence, being prosecuted as retailers of pyrotechnic products for storing party fireworks whose pyrotechnic composition by weight exceeded the maximum weight stated in the authorisations issued to them by the Belgian authorities, for storing party fireworks in non-authorised storage facilities and for selling to an individual not in possession of an appropriate authorisation for a quantity of party fireworks the weight of which exceeded 1 kg of pyrotechnic composition.

22.

It is apparent from the order for reference that Mr ten Velde and Mr van der Schoot claimed that the criminalisation of the infringements as provided for in the Belgian legislation is contrary to Article 45 of Directive 2013/29, under which criminal penalties are to be imposed only for serious infringements, and that none of the offences in respect of which they are accused constitutes a serious infringement.

23.

According to the order for reference, the accused and the openbaar ministerie (Public Prosecutor’s Office, Belgium) are disagreed as to whether the obligation to have both a federal explosives authorisation and a regional environmental permit is consistent with Directives 2007/23 and 2013/29 and also with the Services Directive. In particular, some of the accused maintain that, as the Belgian legislation is contrary to EU law, certain of the acts in respect of which they are charged cannot be regarded as unlawful.

24.

The interpretation of EU law may have an impact on whether the acts forming the basis of the charges against the accused are punishable.

25.

In those circumstances, the Rechtbank van eerste aanleg te Antwerpen (Court of First Instance, Antwerp, Belgium) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

26.

By its first question, the referring court asks the Court whether the offences in respect of which the accused in the main proceedings are being prosecuted are serious infringements within the meaning of Article 45 of Directive 2013/29.

27.

In that regard, as a number of the parties emphasised at the hearing, the facts in respect of which the accused in the main proceedings are being prosecuted took place between 22 November 2010 and 27 January 2013 and therefore predated the adoption and entry into force of Directive 2013/29. ( 9 )

28.

In addition, unlike Article 45 of Directive 2013/29, Article 20 of Directive 2007/23 does not state that Member States may impose criminal penalties for serious infringements, but merely states that Member States may lay down rules on penalties applicable to infringements of the provisions of national legislation adopted pursuant to that directive and that those penalties are to be effective, proportionate and dissuasive.

29.

In those circumstances, I consider that there is no need to interpret the concept of ‘serious infringements’ that appears only in Directive 2013/29, since that directive is not applicable ratione temporis to the main proceedings.

30.

Furthermore, on the assumption that it might be claimed that Article 45 of Directive 2013/29 is a lex melior that must apply retroactively because, unlike Article 20 of Directive 2007/23, it authorises Member States to lay down criminal penalties only for serious infringements, that allegation could not, in my view, be followed.

31.

As a preliminary point, it should be emphasised that it follows from each of those provisions not only that Member States are under an obligation to lay down penalties applicable for infringements of the provisions of the national legislation adopted in accordance with Directives 2007/23 and 2013/29, but also that those penalties must be effective, proportionate and dissuasive. ( 10 )

32.

That obligation borne by the Member States flows from the specific characteristics associated with the implementation and enforcement of EU law, which are largely a matter for the Member States, ( 11 ) and, in order to ensure the effectiveness of the rules relating to pyrotechnic articles, those rules must be accompanied by a scheme of penalties which it is for the Member States to determine. ( 12 )

33.

Thus, provisions such as Article 20 of Directive 2007/23 or Article 45 of Directive 2013/29 are typical ( 13 ) of EU law, since they are never more than the reflection of the sui generis nature of the implementation and enforcement of EU law. ( 14 )

34.

However, the interpretation of those provisions proposed by the accused in the main proceedings tends to confer on them a scope which they do not have.

35.

In fact, it must be made clear that those provisions do not determine the offences, or the applicable penalties, ( 15 ) but that they merely state that the Member States are under an obligation to lay down those penalties.

36.

In that regard, it should be emphasised that Directives 2007/23 and 2013/29 are based on Article 95 EC (now Article 114 TFEU) and Article 114 TFEU respectively, and not on Article 83 TFEU. Unlike measures based on the latter provision, therefore, Directives 2007/23 and 2013/29 lay down rules intended to ensure the free movement of pyrotechnic articles within the internal market and not rules designed to establish minimum rules in relation to criminal penalties applicable to certain facts or conduct. ( 16 )

37.

Furthermore, since Article 20 of Directive 2007/23 does not specify the nature of the penalties which the Member States may adopt, the wording of that provision undoubtedly authorises them to determine the nature of the penalties and, consequently, to impose criminal penalties for infringements of the national rules adopted in accordance with Directive 2007/23. ( 17 )

38.

Lastly, to my mind, that interpretation is not called into question by the change to the wording made by the legislature when Article 45 of Directive 2013/29 was drafted, since that wording cannot have the effect of restricting the Member States’ discretion as regards the nature of the penalties adopted pursuant to Article 20 of Directive 2007/23. ( 18 )

39.

However, it should be borne in mind that the fact that a national court has, in formal terms, formulated a question for a preliminary ruling by reference to certain provisions of EU law does not preclude the Court from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. It is, in that context, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, regard being had to the subject matter of the dispute. ( 19 )

40.

In that regard, first, it must be stated that, as the facts in respect of which the accused in the main proceedings are being prosecuted took place between 22 November 2010 and 27 January 2013, they come ratione temporis under Directive 2007/23. Consequently, I consider that, in order to provide a helpful answer to the referring court, it is appropriate to reformulate the question referred for a preliminary ruling in order to establish whether Article 20 of that directive allows the Member States to impose criminal penalties.

41.

As I have already made clear in point 37 of this Opinion, the answer to that question is indisputably in the affirmative. However, it is for the referring court to ascertain that the penalties laid down are effective, proportionate and dissuasive.

42.

Second, it follows from the second question referred that the referring court does not preclude the possibility that the Belgian system of double authorisation scheme for the storage of pyrotechnic articles for sale comes under the Services Directive. In addition, two infringements referred to in the first question are infringements of the authorisations issued under that double authorisation scheme. Consequently, it must be determined whether the Member States may lay down penalties for infringements of the national legislation governing access to or the exercise of the service activities.

43.

Since Article 1(5) of the Services Directive provides that that directive does not affect Member States’ rules of criminal law, provided that they do not have the effect of circumventing the rules laid down in that directive, the answer to that question is in the affirmative.

44.

Having regard to all of those considerations, I consider that the answer to the first question must be that, without there being any need to determine whether the infringements at issue are serious infringements, Article 20 of Directive 2007/23 and Article 1(5) of the Services Directive must be interpreted as meaning that the Member States may lay down criminal penalties provided that, in the case of Directive 2007/23, those penalties are effective, proportionate and dissuasive and that, in the case of the Services Directive, the national provisions do not have the effect of distorting the rules of that directive, which it is for the referring court to ascertain.

45.

By its second question, the referring court asks the Court whether the principle of the free movement of pyrotechnic articles, as laid down in Article 6(1) of Directive 2007/23, read in conjunction, if necessary, with Article 10 of the Services Directive, preclude national rules which make the storage of Directive 2007/23-compliant pyrotechnic articles associated with the retail trade subject to possession of a twofold authorisation assuming (i) an authorisation granted pursuant to the legislation governing the manufacture, storage, holding, sale, transport and use of explosives, and (ii) an authorisation granted under the legislation on environmental authorisations for nuisance-causing structures, both having the same objective, namely the prevention of risks to safety, and one of them setting a low maximum threshold for the storage of party fireworks.

46.

In that regard, although the referring court refers to Directive 2007/23 and the Services Directive, I consider that the national legislation at issue does not come within the scope of the former directive.

47.

In fact, Directive 2007/23 regulates the treatment of pyrotechnic articles before they are placed on the market and their actual placing on the market. However, it regulates the storage of such articles in so far as that storage has a direct impact on the characteristics and safety of the articles. Thus, it follows, in particular, from recital 4 of Directive 2007/23 ( 20 ) and from Article 14(1) and (2) of that directive that storage is covered by that measure only in that the storage conditions must not compromise the compliance of the pyrotechnic product with the essential safety requirements set out in the directive.

48.

The national legislation covers the storage of pyrotechnic articles that comply with the requirements of Directive 2007/23 and are intended for sale in the context of the retail trade.

49.

Furthermore, while it is indeed true that the double authorisation scheme referred to in point 23 of this Opinion relates strictly to the storage of pyrotechnic articles and not to access to or the exercise of the activity of retailing those articles, which is a ‘service’ for the purposes of the application of the Services Directive, ( 21 ) the storage of pyrotechnic articles intended for sale is an essential precondition of that retail activity.

50.

First, it is apparent from the file submitted to the Court that the provisions of the Royal Decree at issue refer to ‘retailers’ and therefore to storage with a view to sale. Second, making the quantity of pyrotechnic articles that can be stored in the context of a retail activity subject to authorisation undeniably has an effect on both access to and the exercise of that activity. Thus, the absence of authorisation for storage or a very low authorisation may restrict de facto access to or the exercise of that activity.

51.

Consequently, I consider that it is by reference to the Services Directive and, in particular, to Article 10 thereof, ( 22 ) that the second question should be answered.

52.

I also note that the scope of the referring court’s question is ultimately limited, since that court is doubtful as to the compatibility of the Belgian double authorisation scheme with EU law and not about the compatibility of the regional and federal arrangements with EU law.

53.

In that regard, the argument of the accused in the main proceedings that the two authorisation arrangements pursue the same objective is based on an incorrect premiss.

54.

In fact, it is apparent from the explanations provided by the Belgian Government at the hearing that, so far as the accused in the main proceedings are concerned, the storage of pyrotechnic articles for sale requires two authorisations. First, it is for the local authorities, which are responsible for environmental protection, to grant an environmental permit authorising the storage of a certain quota of pyrotechnic articles containing a certain quota of pyrotechnic composition. Second, since the federal authorities are responsible for the health and safety of the population, they must grant an authorisation for the storage of a certain quota of pyrotechnic articles containing a certain quota of pyrotechnic composition.

55.

Consequently, contrary to the assertions of the accused in the main proceedings, those authorisation schemes necessarily pursue different objectives and the grant of each of those authorisations is subject to different criteria. In that regard, while it is indeed true that the quotas authorised on the basis of those authorisations may differ, those schemes are not contradictory, since compliance with the authorisation that determines the lowest quota necessarily entails compliance with the other authorisation.

56.

As regards the conformity of the twofold authorisation system in question with Article 10 of the Services Directive, under paragraph 1 of that provision the authorisation schemes must be ‘based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner’, while paragraph 2 sets out those criteria.

57.

I think that the Belgian scheme observes those criteria.

58.

First, in the light of the information available to the Court, the criteria on which the Belgian system rests are, in my view, justified by an overriding reason relating to the general interest, namely the protection of public safety and the environment, and, because the federal and regional legislation is published, are made public in advance, transparent and accessible.

59.

Second, to my mind those criteria are clear and unambiguous. In that regard, as I have already emphasised, the two authorisation schemes do not duplicate each other and are intended to protect different public interests; it cannot therefore be maintained that the intervention of the federal and regional authorities calls that assessment in question. In addition, the obligation to be in possession of both a federal authorisation and a regional authorisation cannot in itself constitute a ground for incompatibility with the Services Directive, since the EU legislature expressly stated in Article 10(7) of that directive that that article ‘shall not call into question the allocation of the competences, at local or regional level, of the Member States’ authorities granting authorisations’.

60.

Third, the material before the Court does not allow me to evaluate the non-discriminatory, proportionate and objective nature of those criteria, which must therefore be verified by the referring court.

61.

Having regard to all of those considerations, I consider that the Belgian double authorisation scheme for the storage of pyrotechnic articles is not incompatible with Article 10 of the Services Directive, provided that the criteria applicable to the exercise of the competent authorities’ discretion are non-discriminatory, proportionate and objective, which it is for the referring court to ascertain.

62.

By its third question, the referring court asks the Court whether the principle of the free movement of pyrotechnic articles, as laid down in Directives 2007/23 and 2013/29, read in conjunction, if necessary, with Articles 34, 35 and 36 TFEU, together with the principle of proportionality, preclude national rules which prohibit party fireworks containing more than 1 kg of pyrotechnic composition from being held or used by, or sold to, consumers.

63.

In the first place, it was contended, in the proceedings before the Court, that the Belgian legislation constitutes a technical regulation within the meaning of Directive 98/34/EC ( 23 ) and that, as it was not notified to the European Commission, that legislation cannot be applied. ( 24 )

64.

At the hearing, the Belgian Government claimed that, since the national legislation is a measure ‘necessary … for the protection of persons, in particular workers, when products are used’ referred to in Article 1 of Directive 98/34, that directive is not applicable.

65.

I am not convinced by that argument.

66.

Although it is clear, as I shall show, that the Belgian legislation is intended to protect public safety and the safety of persons, it does not relate to the use of the products, but to their sale.

67.

The Belgian Government also maintained that, in so far as the earlier legislation made the sale of pyrotechnic articles subject to possession by the purchaser of an authorisation when the product in question contained 500 g of pyrotechnic composition, the legislation at issue in the present case represents a relaxation of an earlier measure which does not need to be notified.

68.

In that regard, the Court has held that amendments made to a draft technical regulation already notified to the Commission pursuant to the first subparagraph of Article 8(1) of Directive 98/34, which contain, in relation to the notified draft, merely a relaxation of the conditions of use of the product in question and which, therefore, reduce the possible impact of the technical regulation on trade, are not a significant alteration of the draft and are not, therefore, subject to the obligation of prior notification. ( 25 )

69.

In the present case, however, it cannot be established with certainty from the material submitted to the Court whether the earlier more restrictive legislation had been notified to the Commission pursuant to Directive 98/34.

70.

In those circumstances, I consider that it is for the referring court to determine whether such notification had taken place and whether the Belgian Government was therefore entitled not to notify the new legislation.

71.

In any event, the Belgian legislation is not, in my view, a technical regulation within the meaning of Article 1, point 11, of Directive 98/34.

72.

According to the Court, the concept of a ‘technical regulation’ extends to four categories of measures, namely (i) the ‘technical specification’, within the meaning of Article 1, point 3, of Directive 98/34; (ii) ‘other requirements’, as defined in Article 1, point 4, of that directive; (iii) the ‘rule on services’, covered in Article 1, point 5, of that directive; and (iv) the ‘laws, regulations or administrative provisions of Member States prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider’, under Article 1, point 11, of that directive. ( 26 )

73.

In that regard, firstly, I consider that the legislation in question does not come within the categories of rules relating to services, since it does not concern Information Society services, within the meaning of Article 1, point 2, of that directive.

74.

Secondly, the concept of ‘technical specification’ designates the specification found in a document defining the characteristics required of a product, such as the name under which the product is sold, the packaging, labelling and conformity assessment procedures. In the view of the Court, that concept presupposes that the national measure must necessarily refer to the product or its packaging as such and thus lay down one of the characteristics required of a product. ( 27 ) The Belgian legislation does not refer to the product or its packaging as such and, as the Commission claimed at the hearing, that legislation therefore does not lay down one of the requirements required of a product.

75.

Thirdly, the Court has already stated that, in order to be classified as ‘other requirements’, the national measures at issue must constitute conditions which can significantly influence the composition or nature of the product concerned or its marketing. ( 28 )

76.

As the legislation at issue makes the sale of pyrotechnic articles whose pyrotechnic composition content is more than 1 kg subject to possession of an authorisation, it is not a requirement imposed on the product in itself but a requirement imposed on economic operators and cannot therefore be characterised as ‘[an]other requirement’ within the meaning of Directive 98/34. ( 29 )

77.

Fourthly, as regards the category referred to in Article 1, point 11, of Directive 98/34, namely the prohibition of the manufacture, importation, marketing or use of a product, it follows from the case-law that that category of technical regulations presupposes that the national provisions at issue have a scope which goes well beyond a limitation to certain possible uses of the product in question and must therefore be confined to a mere restriction of its use. That category is particularly intended to cover national measures which leave no room for any use which can reasonably be made of the product concerned other than a purely marginal one. ( 30 )

78.

It must be stated that the national legislation at issue does not prohibit the sale of pyrotechnic articles containing more than 1 kg of pyrotechnic composition, but makes such sale subject to the purchaser’s being in possession of an authorisation. Consequently, such products may be sold to consumers having such an authorisation and to business users, so that, in my view, that legislation leaves room for marketing which is more than purely marginal.

79.

In the second place, in order to answer the questions posed by the referring court, it is necessary to determine whether the principle of the free movement of pyrotechnic articles resulting from Directives 2007/23 and 2013/29, read in conjunction, if necessary, with Articles 34, 35 and 36 TFEU, together with the principle of proportionality, preclude national legislation which prohibits party fireworks containing more than 1 kg of pyrotechnic composition from being held or used by, or sold to, consumers.

80.

In that regard, firstly, it should be borne in mind that Mr van der Schoot is being prosecuted for having, in particular, sold party fireworks and signalling flares amounting to more than 1 kg of pyrotechnic composition to an individual not in possession of the necessary authorisation; that, as the offence for which he is being prosecuted took place on 23 December 2012, Directive 2007/23 is applicable ratione temporis; and that, according to the order for reference, the party fireworks in question are fireworks in categories 2 and 3 within the meaning of Directive 2007/23, that have been made available on the market.

81.

Secondly, since Directive 2007/23 fully harmonised the substantive and procedural conditions that pyrotechnic articles must fulfil in order to be placed on the market and since Article 6(1) of that directive guarantees not only the first placing on the market but also the free movement of pyrotechnic articles, ( 31 ) the pertinent Belgian measure must be assessed in the light of the provisions of that directive and not those of the Treaty. ( 32 )

82.

Thirdly, there can be no doubt that the legislation at issue, by its very nature, restricts, within the meaning of Article 6 of Directive 2007/23, the possession and use by and/or the sale to individuals of fireworks containing more than 1 kg of pyrotechnic composition. However, I consider that that legislation is intended, as the Belgian Government has claimed, to protect the essential interests referred to in paragraph 2 of that provision and, in particular, public order, security or safety. ( 33 )

83.

As regards the capacity of the legislation to protect public order, security and safety, I consider that the measure at issue is appropriate for ensuring the attainment of those objectives. ( 34 )

84.

In that regard, it must be borne in mind that, pursuant to Articles 4 TEU and 72 TFEU, the Member States remain responsible for the maintenance of public order on their territory. Thus, they retain the freedom to determine the measures capable of maintaining public order ( 35 ) or safeguarding public security, ( 36 ) in accordance with their national requirements and according to the specific circumstances as regards time and place.

85.

Nevertheless, reliance on the public order, security or safety exception is a derogation from the fundamental principle of free movement, which must be interpreted strictly, and the scope of which cannot be determined unilaterally by the Member States. ( 37 ) The discretion which the Member States enjoy must therefore be exercised within the limits imposed by EU law. ( 38 )

86.

In that regard, it must be borne in mind that the Court has already held that, in order to be able to rely on public order and security as justification, there must be a genuine and sufficiently serious threat affecting one of the fundamental interests of society. ( 39 )

87.

In the present case, there can be no doubt that making the sale to individuals of pyrotechnic articles containing more than 1 kg of pyrotechnic composition subject to an authorisation is capable of preventing harm to public order and public security.

88.

As pyrotechnic articles ‘are inherently dangerous’, ( 40 ) they are capable, given their composition, especially in the case of articles containing more than 1 kg of pyrotechnic composition, of endangering personal security. In addition, because of their inherent nature, and depending on the circumstances in which they are used, such articles are capable of disrupting public order.

89.

In addition, since the protection of public order and security are, as stated in point 84 of this Opinion, fundamentally linked to the circumstances of time and place, I cannot fail to note that the inherent danger of pyrotechnic articles containing more than 1 kg of pyrotechnic composition is exacerbated in the current context marked by the terrorist threat.

90.

In those circumstances, it is lawful, in my view, for Member States to make the purchase by individuals of articles the pyrotechnic composition content of which exceeds a certain ceiling subject to an authorisation, since, on the one hand, it cannot be precluded that those articles will, on their own or in conjunction with other products, be diverted for non-festive purposes and since, on the other, the mere use of pyrotechnic articles with a high pyrotechnic composition content may, in the present context, cause stampedes and panic.

91.

The national legislation at issue is undoubtedly appropriate for protecting public order, public security and public safety in that it enables the quantity of pyrotechnic composition in the possession of an individual to be monitored and, if necessary, limited.

92.

As regards the need for the national legislation at issue, in view of the incomplete nature of the reference for a preliminary ruling, of the fact that it is for the referring court to determine whether and, if so, to what extent the national legislation is proportionate to the public-interest objective pursued, ( 41 ) but that the Court may provide the referring court with guidance taken from the file, ( 42 ) I shall confine myself to providing it with a framework analysis against which it will be for the referring court to determine whether the legislation goes beyond what is necessary in order to protect public order, public security and public safety.

93.

First, Article 6(2) of Directive 2007/23 is drafted in such a way that it gives Member States a significant margin of discretion as regards the measures covered by that provision.

94.

The scope of that provision is very wide, in that the objectives which may be pursued by the Member States are varied. The measures may be not only prohibitive measures but also restrictive measures and they may relate to the possession, the use and the sale of certain pyrotechnic products.

95.

To my mind, that interpretation is reinforced by the fact that recital 10 of Directive 2007/23 establishes a causal relationship between, on the one hand, the fact that the use of pyrotechnic articles, and in particular of party fireworks, is governed by customs and cultural traditions that vary widely among the Member States and, on the other, the need to allow the Member States to adopt national measures in order to limit, for reasons of public order or public security, the use or sale to individuals of certain categories of party fireworks.

96.

Second, the national legislation at issue, which does not impose an absolute prohibition on the sale of pyrotechnic articles, but makes their sale subject to the purchaser’s being in possession of a prior authorisation, is intended to restrict the sale of certain products to the consumer. In addition, that restrictive measure does not apply to all pyrotechnic products, but only to products containing a certain weight of pyrotechnic composition, which is dangerous.

97.

Third, in the present context, less restrictive measures, such as registration following the sale of products containing a certain weight of pyrotechnic composition, are not, in my view, as effective for protecting the fundamental interests involved. Although such a formality makes it possible to determine the quantity of pyrotechnic composition acquired by a consumer, it does not make it possible to restrict such a quantity or, consequently, to combat effectively the harm to the fundamental interests which the Belgian Government invokes.

98.

In the light of all of those considerations, I consider (i) that the Belgian legislation is not a technical regulation within the meaning of Directive 98/34 and (ii) that that legislation restricts, within the meaning of Article 6 of Directive 2007/23, the free movement of party fireworks, but that it was adopted on grounds of public order, public security and public safety and that it does not go beyond what is necessary for the purposes of protecting those interests, which it is for the referring court to ascertain.

99.

In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Rechtbank van eerste aanleg te Antwerpen (Court of First Instance, Antwerp, Belgium) as follows: