61997J0226

Approximation of laws - Procedure for the provision of information in the field of technical standards and regulations - Obligation on the Member States to notify any draft technical regulation to the Commission - National rules on breath-analysis apparatus - Failure to notify the Commission - Evidence obtained by means of breath-analysis apparatus authorised in accordance with rules which have not been notified - Whether permissible

(Council Directive 83/189, Arts 1 and 8)

Directive 83/189, laying down a procedure for the provision of information in the field of technical standards and regulations, is to be interpreted as meaning that breach of the obligation imposed by Article 8 thereof to notify a technical regulation on breath-analysis apparatus does not have the effect of making it impossible for evidence obtained by means of such apparatus, authorised in accordance with a regulation which has not been notified, to be relied upon against an individual charged with driving while under the influence of alcohol.

While failure to notify technical regulations, which constitutes a procedural defect in their adoption, renders such regulations inapplicable inasmuch as they hinder the use or marketing of a product which is not in conformity therewith, it does not have the effect of rendering unlawful any use of a product which is in conformity with regulations that have not been notified. The use of breath-analysis apparatus by the public authorities is not liable to create an obstacle to trade which could have been avoided if the notification procedure had been followed.

In Case C-226/97,

REFERENCE to the Court under Article 177 of the EC Treaty by the Arrondissementsrechtbank (District Court), Maastricht (Netherlands), for a preliminary ruling in the criminal proceedings before that court against

Johannes Martinus Lemmens,

on the interpretation 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 (OJ 1983 L 109, p. 8),

THE COURT,

composed of: C. Gulmann (Rapporteur), President of the Third and Fifth Chambers, acting for the President, H. Ragnemalm, M. Wathelet, R. Schintgen (Presidents of Chambers), G.F. Mancini, P.J.G. Kapteyn, J.L. Murray, D.A.O. Edward, J.-P. Puissochet, P. Jann and L. Sevón, Judges,

Advocate General: N. Fennelly,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

- the Netherlands Government, by J.G. Lammers, Deputy Legal Adviser at the Ministry of Foreign Affairs, acting as Agent,

- the United Kingdom Government, by J.E. Collins, Assistant Treasury Solicitor, acting as Agent, and N. Green, Barrister,

- the Commission of the European Communities, by B.J. Drijber, of its Legal Service, and M. Schotter, a national civil servant seconded to the Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the Netherlands Government, represented by M. Fierstra, Deputy Legal Adviser at the Ministry of Foreign Affairs, acting as Agent, the French Government, represented by R. Loosli-Surrans, Chargé de Mission in the Directorate for Legal Affairs, Ministry of Foreign Affairs, acting as Agent, and the Commission, represented by B.J. Drijber, at the hearing on 16 December 1997,

after hearing the Opinion of the Advocate General at the sitting on 12 February 1998,

gives the following

Judgment

1 By order of 13 June 1997, received at the Court on 18 June 1997, the Arrondissementsrechtbank, Maastricht, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions concerning the interpretation 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 (OJ 1983 L 109, p. 8, hereinafter `the Directive').

2 Those questions were raised in criminal proceedings instituted against Mr Lemmens, who was charged with driving a vehicle while under the influence of alcohol.

3 Article 8(2)(a) of the Wegenverkeerswet 1994 (Road Traffic Law, Stb. 1995, 475) makes it an offence for any person to drive or ride a vehicle after consuming intoxicating liquor so that, upon testing, the alcohol content of his breath is shown to be higher than 220 micrograms of alcohol per litre of expelled breath.

4 Article 163(1) and (2) of that Law is worded as follows:

`1. If he suspects the driver of a vehicle of infringing Article 8, the police officer may order him to undergo a test within the meaning of Article 8(2)(a).

2. The driver to whom the order referred to in paragraph 1 is addressed is required to exhale his breath in an apparatus used for the test and to comply with all the instructions given to him by the police officer in order to ensure that the test is properly carried out'.

5 Article 163(10) provides that the Minister for Justice is to lay down, by an administrative regulation, further rules for the application of those provisions.

6 The Besluit Alcoholonderzoeken (Decree on the conduct of tests to determine the alcohol level) of 24 September 1987 (Stb. 432), as frequently amended (hereinafter `the 1987 Decree'), provides in Article 3 that in order to carry out a breathalyser test, breath-analysis apparatus must be used of a type designated by the Minister for Justice, which presupposes that the apparatus has been approved following a test carried out by the control body designated by the Minister for Justice. Article 5 of the 1987 Decree further provides that the Minister for Justice is to lay down the requirements for breath-analysis apparatus and the rules for testing such apparatus.

7 The rules referred to in Article 5 of the 1987 Decree were laid down by the Regeling Ademanalyse (Regulation on breath analysis) of 25 September 1987 (Stcrt. 1987), as frequently amended (hereinafter `the 1987 Regulation'). That Regulation provides, in Article 2(1), that in order to be capable of being used by the police for measuring alcohol content, breath-analysis apparatus must be of a type approved in a test carried out by the control body on the basis of paragraph 4.3 of Annex 1 thereto and, in Article 3(1), that the breath-analysis apparatus must also have been approved in a test carried out by the control body on the basis of paragraph 4.4 or 4.5 of that annex.

8 Annex 1 to the 1987 Regulation sets out the characteristics which breath-analysis apparatus must exhibit, in particular so far as concerns quality, performance, testing and test methods as well as the procedures for assessing conformity.

9 Articles 8 and 9 of the Directive, in the version initially in force at the time when the 1987 Decree and the 1987 Regulation were adopted, require Member States to communicate to the Commission any draft technical regulation falling within the scope of the Directive, and to postpone the adoption of such draft regulations for three months, except in specific cases where urgent reasons are involved, which are described in Article 9(3). In certain circumstances, described in Article 9(1) and (2), that period is to be extended by three or by nine months.

10 In its judgment of 30 April 1996 in Case C-194/94 CIA Security International [1996] ECR I-2201, paragraph 54, the Court interpreted the Directive as meaning that breach of the obligation to notify, imposed by Articles 8 and 9 thereof, renders the technical regulations concerned inapplicable, so that they are unenforceable against individuals. The Court therefore held that individuals may rely on the aforesaid provisions in proceedings before the national court which must decline to apply a national technical regulation which has not been notified in accordance with the Directive.

11 Following that judgment, the Netherlands Government drew up a list of national measures which should possibly have been notified to the Commission in accordance with the Directive and which included both the 1987 Decree and the 1987 Regulation. In an attempt to make up for lost time, the Netherlands Government notified the Commission of the 1997 Decree on the conduct of tests to determine the alcohol level and the 1997 Regulation on breath analysis, which are identical to their predecessors from 1987.

12 It is apparent from the order for reference that, in the course of the criminal proceedings instituted against him, Mr Lemmens said `I understand from the press that there are difficulties regarding the breath-analysis apparatus. I maintain that this apparatus has not been notified to Brussels and wonder what the consequences of this could be for my case'.

13 In those circumstances, the national court decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

`(1) Can a defendant in criminal proceedings instituted for an offence contrary to Article 8(2)(a) of the Wegenverkeerswet (Road Traffic Law) 1994 successfully rely on the application of the Regeling Ademanalyse (Regulation on breath analysis) ... , as amended, laying down further rules concerning the requirements for breath-analysis apparatus and the tests which such apparatus must undergo, being set aside

- where, for the purposes of the investigation referred to in Article 8(2)(a) of the Wegenverkeerswet 1994, that Regulation is based, pursuant to Article 65 of the Invoeringswet Wegenverkeerswet (Law implementing the Road Traffic Law) 1994, on Article 163 of the Wegenverkeerswet viewed in conjunction with Article 5 of the Besluit Alcoholonderzoeken (Decree on the conduct of tests to determine alcohol level) ... , as amended,

- in view of the failure to notify the Regulation to the European Commission, as required by Article 8 of Directive 83/189/EEC?

(2) Should a court in criminal proceedings of the kind referred to above disapply that Regulation of its own motion on account of the failure to notify it as required?'

14 As the Netherlands and French Governments contend that the 1987 Regulation is not a technical regulation within the meaning of the Directive, it is appropriate to examine this point at the outset.

15 In that regard, it should be noted that the term `technical regulation' is defined in Article 1(5) of the Directive as `technical specifications, including the relevant administrative provisions, the observance which is compulsory, 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'. According to Article 1(1), the term `technical specification' is to be interpreted as meaning `a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards terminology, symbols, testing and test methods, packaging, marking or labelling'.

16 The Netherlands and French Governments submit that, although the 1987 Regulation sets out the characteristics for breath-analysis apparatus and the police is required to use approved apparatus in order to establish that an infringement has actually been committed, the Regulation does not fall within the scope of the Directive for two reasons.

17 To begin with, the Netherlands Government submits that the 1987 Regulation applies in the field of criminal law, which falls outside the sphere of Community law.

18 The French Government, for its part, contends that the Directive does not apply to products which, like those in this case, are intended to be used in connection with the exercise of public authority and a fortiori in criminal proceedings instituted by the Member States.

19 Those arguments cannot be accepted. Although in principle criminal legislation and the rules of criminal procedure are matters for which the Member States are responsible, it does not follow that this branch of the law cannot be affected by Community law (see, to that effect, Case 186/87 Cowan [1989] ECR 195, paragraph 19, and Case 203/80 Casati [1981] ECR 2595, paragraph 27).

20 In this case, there is nothing in the Directive to suggest that technical regulations within the meaning of Article 1 thereof are excluded from the notification requirement because they fall within the scope of criminal law, or that the scope of the Directive is limited to products intended to be used otherwise than in connection with the exercise of public authority. As the Court has already stated in Case C-13/96 Bic Benelux [1997] ECR I-1753, paragraph 19, a directive applies to technical regulations irrespective of the grounds on which they were adopted.

21 Secondly, the Netherlands Government submits that the regulations in question apply not to persons manufacturing or marketing breath-analysis apparatus, but only to a certain type of purchaser, namely the police. Breath-analysis apparatus not in conformity with the 1987 Regulation can be marketed and used without any restrictions on the part of the market in such apparatus which is not concerned.

22 Furthermore, according to the Netherlands Government, the instructions contained in the 1987 Regulation are addressed to police officers and are designed to ensure that breath-analysis apparatus is reliable inasmuch as it provides evidence that a driver is under the influence of alcohol, but they do not specify the conditions for marketing such apparatus.

23 The French Government states, along the same lines, that, in order to be classified as technical regulations within the meaning of the Directive, the regulations concerned must apply to products intended for everyday use.

24 Those arguments cannot be accepted. Admittedly, certain measures may impose, in respect of a product intended for a particular group of users, technical specifications whose content depends on the specific objective pursued by that group and which are too remote in terms of their relationship with the production and marketing of the product to be classified as technical regulations within the meaning of the Directive. However, that is not the case here.

25 Even on the assumption that in the Netherlands there is a market for breath-analysis apparatus that is not in conformity with the 1987 Regulation, the fact remains that the rules laid down by that regulation must be complied with by those who sell such apparatus to the police, which is a major user of that product on the Netherlands market.

26 The 1987 Regulation therefore constitutes a technical regulation which should, prior to its adoption, have been notified to the Commission in accordance with Article 8 of the Directive.

27 In its first question, the national court essentially asks whether the Directive is to be interpreted as meaning that, if the obligation imposed by Article 8 thereof to notify a technical regulation on breath-analysis apparatus has been infringed, the effect is that evidence obtained by means of such apparatus, authorised in accordance with that regulation, cannot be relied upon against an individual charged with driving while under the influence of alcohol.

28 The Commission and the Governments which have submitted observations to the Court consider that this question calls for a negative answer.

29 The Netherlands Government submits, in particular, that, in this case, the accused has no interest worthy of protection in pleading that the technical regulation is inapplicable. Since the aim of the Directive is to guarantee the free movement of goods, only individuals who manufacture or import goods have a direct interest in the technical rules contained in the 1987 Regulation having been verified on the basis of the Directive.

30 According to the United Kingdom Government, it follows from the CIA Security International judgment, cited above, that it is the technical regulation itself, which has not been notified, that cannot be enforced against an individual. The Directive, which is aimed merely at removing obstacles to trade, does not have as its purpose to render unlawful the use of a product marketed in accordance with a technical regulation which has not been notified.

31 The Commission and the French Government submit that, while the conditions for Article 8 of the Directive to have direct effect and the penalty for breach of that provision, namely that a regulation which has not been notified may not be enforced against individuals, are laid down in mandatory terms by Community law, it is for national law to determine the content and specific consequences of that penalty, on the understanding, first, that the conditions in which an individual may rely on the breach of Community law cannot be less favourable to him than those which he must comply with in the event of a comparable breach of national law and, secondly, that the effectiveness of Community law must remain intact. The Commission therefore considers that Community law does not preclude the application of a principle of national law to the effect that breach of the obligation to notify technical regulations does not render inapplicable the legislation on driving while under the influence of alcohol, provided the accused is also precluded from relying on breach of a similar obligation under national law.

32 In that regard, it should be noted that, in paragraph 40 of its judgment in CIA Security International, cited above, the Court emphasised that the Directive is designed to protect, by means of preventive control, freedom of movement for goods, which is one of the foundations of the Community. This control serves a useful purpose in that technical regulations covered by the Directive may constitute obstacles to trade in goods between Member States, such obstacles being permissible only if they are necessary to satisfy compelling requirements relating to the public interest.

33 In paragraphs 48 and 54 of that judgment, the Court pointed out that the obligation to notify is essential for achieving such Community control and went on to state that the effectiveness of such control will be that much greater if the Directive is interpreted as meaning that breach of the obligation to notify constitutes a substantial procedural defect such as to render the technical regulations in question inapplicable, and thus unenforceable against individuals.

34 In criminal proceedings such as those in the main action, the regulations applied to the accused are those which, on the one hand, prohibit and penalise driving while under the influence of alcohol and, on the other, require a driver to exhale his breath into an apparatus designed to measure the alcohol content, the result of that test constituting evidence in criminal proceedings. Such regulations differ from those which, not having been notified to the Commission in accordance with the Directive, are unenforceable against individuals.

35 While failure to notify technical regulations, which constitutes a procedural defect in their adoption, renders such regulations inapplicable inasmuch as they hinder the use or marketing of a product which is not in conformity therewith, it does not have the effect of rendering unlawful any use of a product which is in conformity with regulations which have not been notified.

36 The use of the product by the public authorities, in a case such as this, is not liable to create an obstacle to trade which could have been avoided if the notification procedure had been followed.

37 The answer to the first question must therefore be that the Directive is to be interpreted as meaning that breach of the obligation imposed by Article 8 thereof to notify a technical regulation on breath-analysis apparatus does not have the effect of making it impossible for evidence obtained by means of such apparatus, authorised in accordance with regulations which have not been notified, to be relied upon against an individual charged with driving while under the influence of alcohol.

38 In the light of the answer to the first question, there is no need to answer the second question.

Costs

39 The costs incurred by the Netherlands, French and United Kingdom Governments, and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Arrondissementsrechtbank, Maastricht, by order of 13 June 1997, hereby rules:

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 is to be interpreted as meaning that breach of the obligation imposed by Article 8 thereof to notify a technical regulation on breath-analysis apparatus does not have the effect of making it impossible for evidence obtained by means of such apparatus, authorised in accordance with regulations which have not been notified, to be relied upon against an individual charged with driving while under the influence of alcohol.