# C_2023235EN.01000201.xml

| 3.7.2023 | EN | Official Journal of the European Union | C 235/2 |
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3.7.2023

EN

Official Journal of the European Union

C 235/2

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Judgment of the Court (Fifth Chamber) of 17 May 2023 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Funke Sp. z o.o. v Landespolizeidirektion Wien

(Case C-626/21, (1) Funke)

(Reference for a preliminary ruling - Approximation of laws - Directive 2001/95/EC - Article 12 and Annex II - Technical standards and regulations - European Union Rapid Information System (RAPEX) - Guidelines - Dangerous non-food products - Implementing Decision (EU) 2019/417 - Regulation (EC) No 765/2008 - Articles 20 and 22 - Notifications to the European Commission - Administrative decision - Prohibition on the sale of certain pyrotechnic articles and obligation to withdraw - Request from a distributor of the products concerned that the notification be supplemented - Authority competent to give a decision on the request - Article 47 of the Charter of Fundamental Rights of the European Union - Effective judicial protection)

(2023/C 235/02)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Appellant: Funke Sp. z o.o.

Respondent: Landespolizeidirektion Wien

Operative part of the judgment

| 1. | Articles 20 and 22 of Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93, Article 12 of and Annex II to Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety, as amended by Regulation No 765/2008 and the annex to Commission Implementing Decision (EU) 2019/417 of 8 November 2018 laying down guidelines for the management of the European Union Rapid Information System ‘RAPEX’ established under Article 12 of Directive 2001/95/EC on general product safety and its notification system
  must be interpreted as giving an economic operator whose interests may be adversely affected by a notification under Article 22 of Regulation No 765/2008 by a Member State to the Commission, such as an importer of the products that are the subject of that notification, the right to request that the competent authorities of the notifying Member State supplement that notification. |
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1.

Articles 20 and 22 of Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93, Article 12 of and Annex II to Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety, as amended by Regulation No 765/2008 and the annex to Commission Implementing Decision (EU) 2019/417 of 8 November 2018 laying down guidelines for the management of the European Union Rapid Information System ‘RAPEX’ established under Article 12 of Directive 2001/95/EC on general product safety and its notification system

must be interpreted as giving an economic operator whose interests may be adversely affected by a notification under Article 22 of Regulation No 765/2008 by a Member State to the Commission, such as an importer of the products that are the subject of that notification, the right to request that the competent authorities of the notifying Member State supplement that notification.

| 2. | Articles 20 and 22 of Regulation No 765/2008, Article 12 of and Annex II to Directive 2001/95, as amended by Regulation No 765/2008, and the annex to Implementing Decision 2019/417, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,
  must be interpreted as meaning that an economic operator, such as an importer of products that are the subject of a notification under Article 22 of Regulation No 765/2008, who is not the addressee of the measure that gave rise to that notification and whose interests may be adversely affected because of the incomplete nature of that notification, must have a legal remedy open to it in the notifying Member State so that it can ensure that the obligations incumbent in that regard on that Member State are fulfilled. |
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2.

Articles 20 and 22 of Regulation No 765/2008, Article 12 of and Annex II to Directive 2001/95, as amended by Regulation No 765/2008, and the annex to Implementing Decision 2019/417, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that an economic operator, such as an importer of products that are the subject of a notification under Article 22 of Regulation No 765/2008, who is not the addressee of the measure that gave rise to that notification and whose interests may be adversely affected because of the incomplete nature of that notification, must have a legal remedy open to it in the notifying Member State so that it can ensure that the obligations incumbent in that regard on that Member State are fulfilled.

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(1)  OJ C 37, 24.1.2022.

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