Opinion of the Advocate General — ECLI:EU:C:2006:782
Date: 2006-12-14
Language of the case: Swedish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Approximation of laws;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 1. Approximation of laws – Recreational craft – Directive 94/25 (European Parliament and Council Directives 94/25, Art. 2(2), and 2003/44) 2. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – Meaning (Art. 28 EC) 3. Free movement of goods – Quantitative restrictions – Measures having equivalent effect (Arts 28 EC and 30 EC) 1. Directive 94/25 on the approximation of the laws, regulations and administrative provisions of the Member States relating to recreational craft, as amended by Directive 2003/44, does not preclude national regulations which, for reasons relating to the protection of the environment, prohibit the use of personal watercraft on waters other than designated waterways. Directive 2003/44, which widened the scope of Directive 94/25 inter alia to include personal watercraft was not applicable at the time when the facts at issue occurred. Furthermore, Article 2(2) of Directive 94/25 states that its provisions do not prevent Member States from adopting, in compliance with the Treaty, provisions concerning navigation on certain waters for the purpose of protection of the environment, the fabric of waterways, and ensuring safety of waterways, providing that that does not require modification to craft conforming to that directive. (see paras 17, 19-20, 44 and operative part) 2. Measures taken by a Member State, the aim or effect of which is to treat goods coming from other Member States less favourably and, in the absence of harmonisation of national legislation, obstacles to the free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods, even if those rules apply to all products alike, must be regarded as ‘measures having equivalent effect to quantitative restrictions on imports’ for the purposes of Article 28 EC. Any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept. Even if the national regulations at issue do not have the aim or effect of treating goods coming from other Member States less favourably, the restriction which they impose on the use of a product in the territory of a Member State may, depending on its scope, have a considerable influence on the behaviour of consumers, which may, in turn, affect the access of that product to the market of that Member State. (see paras 24, 26) 3. Articles 28 EC and 30 EC do not preclude national regulations which, for reasons relating to the protection of the environment, prohibit the use of personal watercraft on waters other than designated waterways, provided that: - the competent national authorities are required to adopt the implementing measures provided for in order to designate waters other than general navigable waterways on which personal watercraft may be used; - those authorities have actually made use of the power conferred on them in that regard and designated the waters which satisfy the conditions laid down in the national regulations, and - such measures have been adopted within a reasonable period after the entry into force of those regulations. It is for the national court to ascertain whether those conditions have been satisfied. It is true that where the national regulations for the designation of navigable waters and waterways have the effect of preventing users of personal watercraft from using them for the specific and inherent purposes for which they were intended or of greatly restricting their use, which is for the national court to ascertain, such regulations may have a considerable influence on the behaviour of consumers who, knowing that the use permitted by such regulations is very limited, have only a limited interest in buying that product. Such regulations therefore have the effect of hindering the access to the domestic market in question for those goods and therefore constitute measures having equivalent effect to quantitative restrictions on imports prohibited by Article 28 EC. Such regulations may, however, be justified by the aim of the protection of the environment provided that the above conditions are complied with. As a restriction or a prohibition on the use of personal watercraft is an appropriate means for the purpose of ensuring that the environment is protected, it is also incumbent on the national authorities to show, for the national regulations to be capable of being regarded as justified, that their restrictive effects on the free movement of goods do not go beyond what is necessary to achieve that aim. In that regard, although it is possible to envisage that measures other than the prohibition in question could guarantee a certain level of protection of the environment, the fact remains that Member States cannot be denied the possibility of attaining an objective such as the protection of the environment by the introduction of general rules which are necessary on account of the particular geographical circumstances of the Member State concerned and easily managed and supervised by the national authorities. However, since the wording of the national regulations themselves suggests that, on waters which must be designated by implementing measures, personal watercraft may be used without giving rise to risks or pollution deemed unacceptable for the environment, it follows that a general prohibition on using such goods on waters other than general navigable waterways constitutes a measure going beyond what is necessary to achieve the aim of protection of the environment. Furthermore, if the national court were to find that implementing measures were adopted within a reasonable time but after the material time of the events in the main proceedings and that those measures designate as navigable waters the waters in which the accused in the main proceedings used personal watercraft and consequently had proceedings brought against them, then, for the national regulations to remain proportionate and therefore justified in the light of the aim of protection of the environment, the accused would have to be allowed to rely on that designation; that is also dictated by the general principle of Community law of the retroactive application of the most favourable criminal law and the most lenient penalty. (see paras 26-28, 34, 36, 38, 40, 43-44, operative part)