Opinion of Advocate General Van Gerven
Mr President,
Members of the Court,
1. The Commission has brought two actions before the Court for declarations that, by adopting various rules without notifying them at the drafting stage, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 8 and 9 of Directive 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations.
Directive 83/189/EEC
2. The purpose of that directive is to forestall the introduction of new measures having equivalent effect to quantitative restrictions on the movement of goods resulting from the Member States' adoption of technical regulations relating to products. The method chosen for the attainment of that objective is the obligation for the Member States to communicate to the Commission any draft technical regulation and not to adopt that regulation for specified periods, giving time for the Commission and the other Member States to study the draft and to make observations if they consider that the draft regulation is likely to constitute a barrier to trade. A first amending directive was adopted in 1988 and a second in March of this year.
Pre-litigation procedure
3. In the action commenced by application of 26 January 1993 (Case C-52/93), the Commission alleges that the Kingdom of the Netherlands adopted on 9 October 1990 Amendment XIII to the PVS regulation on quality standards for flower bulbs (iris, lily) without giving notification of it at the drafting stage. On 31 July 1991 the Commission sent a letter before action to the Netherlands authorities, which submitted observations on 4 November 1991. The Commission then sent a reasoned opinion in accordance with Article 169 of the EEC Treaty on 18 May 1992, which was answered on 23 July 1992.
4. The letters before action sent by the Commission on 16 October 1989 (electricity meters), 27 October 1989 (bottles), 9 February 1990 (pesticides) and 31 July 1991 (flower bulbs) are almost identical. The Commission draws the Government's attention to the national technical measure, a copy of which it annexes to its letter. The Commission notes that that measure falls within the ambit of Directive 83/189 but that it has not been notified at the drafting stage in accordance with Article 8 of the directive, and that its adoption has not been postponed in accordance with Article 9. The applicant concludes, therefore, that this is an obvious case of noncompliance with the obligations imposed on the Member States by the said directive, requiring ... the immediate suspension of the measure. Moreover, the Commission points out that, as it made clear in its communication 86/C 245/05, it considers that as a result of that infringement of procedure, this technical regulation may not take legal effect and is unenforceable against third parties. Consequently, the Commission, pursuant to Article 169 of the Treaty, requests your Government to put forward its observations on the views presented above ..., reserving the possibility of issuing a reasoned opinion later.
5. In its various reasoned opinions, the Commission again states that the Kingdom of the Netherlands has failed to fulfil its obligations to notify draft technical regulations and to suspend their adoption for the periods provided for in the directive. In particular, it develops the argument that a regulation adopted without the prior notification required by Article 8 of Directive 83/189/EEC is unenforceable against third parties in the legal system of the Member State in question. It states that that principle is enshrined in the decisions of the Court concerning the direct effect of directives and embodies both the maxim nemo allegans turpitudinem suam est audiendus (reasoned opinions of 30 October 1991 and 18 May 1992), and the prohibition of venire contra factum proprium (reasoned opinions of 2 April 1991). The Commission concludes that in order to put an end to that situation, the measure at issue ought to be suspended. Subsequently, it could be notified at the drafting stage. Finally it requested the Kingdom of the Netherlands to take the measures necessary to comply with this reasoned opinion within a period of two months.
Written procedure before the Court
6. The requests made by the Commission in the forms of order sought in its applications are straightforward, since they can be summarized as seeking a declaration that the Netherlands has failed to fulfil its obligations under Articles 8 and 9 of the directive and an order that it should pay the costs of the action. It is nevertheless the case that it is the suspension of the legislation at issue which is the central problem in the case. As in its reasoned opinions, the Commission develops the argument that a national regulation of which prior notification was not given at the drafting stage is unenforceable against third parties and it seems to conclude that the failure is still continuing since in order to put an end to that situation, the measure at issue ought to be suspended. Subsequently, it could be notified at the drafting stage.
Previous cases on Directive 83/189
7. Before I come to consider whether the actions are well founded, I must mention the several cases concerning the application of Directive 83/189 which have been brought before the Court, and in which the question whether national regulations of which prior notification had not been given were unenforceable against third parties was raised.
Ascertaining the subject-matter of the actions
8. Although the forms of order sought by the Commission refer only to a declaration that the defendant has failed to fulfil its obligations under Articles 8 and 9 of Directive 83/189, the Kingdom of the Netherlands' defence refers to different subject-matter. The defendant has never denied that it forgot to notify its various draft laws in accordance with the procedure laid down in Directive 83/189. What it does challenge is the obligations which the Commission has sought to impose on it by virtue of its argument that the directive has direct effect and that national regulations which have not been notified are unenforceable against third parties.
9. That theory, to which the Commission seems to attach great importance, is undeniably interesting. It may be wondered why, if the Commission regards that proposition as being essential to the proper working of the procedure established by Directive 83/189, it has never proposed to the European Parliament and the Council that it should be adopted in an amending directive. In any case, like Advocate General Darmon, I consider that it is not appropriate to consider the validity of that argument in the course of an action under Article 169. The Court's task is to decide whether or not the Member State in question has failed to fulfil its obligations under Community law, in this particular case Articles 8 and 9 of the directive. In such actions, it is not for the Court to decide on the consequences that a finding of such failure may have in the national legal systems of the Member States. National courts will be bound by virtue of Article 171 of the Treaty to draw the necessary inferences from the judgments of the Court and to take all appropriate measures to enable Community law to be given full effect.
Assessment of legal interest in bringing proceedings
10. At the hearing, the representative of the Kingdom of the Netherlands several times expressed satisfaction with the details given by the Commission regarding the subject-matter of the actions. Just as in its rejoinders, it nevertheless disputed that the Commission had a legal interest in bringing an action under Article 169 concerning a failure that the defendant has always acknowledged.
Costs
At the hearing, the representative of the Kingdom of the Netherlands asked the Court to take into consideration in deciding the costs the confusion caused by the Commission with regard to the actual subject-matter of the action. Under Article 69(3) of the Rules of Procedure, it is possible for the Court to order that the costs be shared, where the circumstances are exceptional.
It seems to me that such exceptional circumstances are to be found in this case. Even if the discrepancies between the object of the letters before action, the reasoned opinions and the applications for a declaration of failure under Article 169 did not prejudice the Kingdom of the Netherlands' right to a fair hearing, since of necessity the defendant had the opportunity to submit its observations with respect to the existence of the alleged breaches of Articles 8 and 9 of the directive, it should be noted that the absence of clarity on the part of the Commission made the defence more difficult. It was not completely clear even to the Commission itself what the object of the letters before action and reasoned opinions was, since, according to its representative, those documents did not mention suspending the laws, while their actual wording could be construed as having a different meaning. I therefore propose that the Court should order the costs to be shared.
Conclusion
Following that analysis, I propose that the Court should:
In Case C-52/93
In Case C-61/93
1 Original language: French.
2 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).
3 Council Directive 88/182/EEC of 22 March 1988, amending Directive 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1988 L 81, p. 75).
4 Directive 94/10/EC of the European Parliament and the Council of 23 March 1994 materially amending for the second time Directive 83/189/EEC laying down a procedure for the provision of information in tne field of technical standards and regulations (OJ 1994 L 100, p. 30).
5 OJ 1986 C 245, p. 4.
6 Case C-139/92 Commission v Italy [1993] ECR I-4707.
7 Case C-69/91 Decoster [1993] ECR I-5335.
8 Letter before action of 16 October 1989 in the proceedings relating to tne decree concerning electricity meters.
9 Reasoned opinion of 30 October 1991, in the same proceedings.
10 Opinion presented on 15 December 1993 in Case 317/92 Commission v Germany [1994] ECR I-2039, at p. I-2042, point 67.
11 Judgments in Joined Cases 314/81, 315/81, 316/81 and 83/82 Procureur de la République and Comité National de Défense contre l'Alcoolisme v Waterkeyn and others [1982] ECR 4337, paragraph 16, and Case C-101/91 Commission v Italy [1993] ECR I-191, paragraph 24.
12 See the Opinion presented by Advocate General Darmon on 15 December 1993 in Case 317/92 Commission v Germany, points 65 and 66.
13 Opinion presented on 17 November 1992 in Case C-243/89 Commission v Denmark [1993] ECR I-3353.