Opinion of the Advocate General — ECLI:EU:C:2018:272
Date: 2018-04-19
Language of the case: Dutch
Based on: Treaty on the Functioning of the European Union (consolidated version 2008)
Subject matter: Right of establishment;Free movement of goods;Internal market - Principles;Measures having equivalent effect;Principles, objectives and tasks of the Treaties;Consumer protection;Approximation of laws;Quantitative restrictions;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Fifth Chamber), 26 September 2018 1. Approximation of laws — Information procedure in the field of technical standards and regulations and of rules on Information Society services — Directive 98/34 — Technical regulation — Concept — National legislation laying down restrictions on the sale of fireworks — Precluded (European Parliament and Council Directive 98/34, as amended by Directive 98/48, Art. 1 and 8(1)) 2. Approximation of laws — Placing on the market of pyrotechnic articles — Directive 2007/23 — Free movement of pyrotechnic articles compliant with the requirements of the directive — Possibility for the Member States to adopt prohibitive or restrictive measures — National legislation laying down restrictions on the sale of fireworks — Lawfulness (European Parliament and Council Directive 2007/23, Art. 6(2)) 3. Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Conditions for grant of authorisation — National legislation making the storage of pyrotechnic articles intended for the retail trade subject to obtaining dual authorisation — Lawfulness — Conditions (European Parliament and Council Directive 2006/123, Art. 10) 4. Approximation of laws — Placing on the market of pyrotechnic articles — Directive 2007/23 — Implementation of a penalty system under national law — Criminal nature — Lawfulness — Conditions (European Parliament and Council Directives 2006/123, Art. 1(5) and 2007/23, Art. 20) 1. See the text of the decision. (see paras 37-45) 2. The principle of free movement of pyrotechnic articles, as provided for, inter alia, in Article 6(2) 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, does not preclude national legislation, such as that at issue in the main proceedings, which restricts the possession or use by consumers and the sale to consumers of fireworks of which the pyrotechnic composition exceeds 1 kg, to the extent that such legislation is appropriate to guarantee public order and security and does not go beyond what is necessary to protect those fundamental interests, which it is for the referring court to ascertain. In the present case, it is appropriate to note, as the Advocate General observed in point 88 of his Opinion, that pyrotechnic articles are inherently dangerous products since, in particular articles of which the pyrotechnic composition exceeds 1 kg, they can prejudice the safety of persons. He also stated, correctly, that those articles, due to their very nature and depending on the circumstances in which they are used, can affect public order. Accordingly, the fact of making the sale to individuals of pyrotechnic articles of which the pyrotechnic composition exceeds 1 kg is subject to the acquisition of an authorisation by individuals is such as to prevent threats to the public order and safety since that national legislation permits the monitoring and, where appropriate, restrictions on the quantity of pyrotechnic composition is in the possession of an individual. Consequently, that national legislation appears appropriate for the protection of public order and safety. Furthermore, as the Advocate General observed in point 97 of his Opinion, less restrictive measures, such as registration following the purchase of products containing a certain weight of pyrotechnic composition, seem not to be as effective in protecting the fundamental interests relied on by the Belgian Government. Such a formality does enable the quantity of pyrotechnic composition acquired by a consumer to be determined, but not to affect the amount which may be acquired or, consequently, to fight effectively against infringements of the fundamental interests involved. Consequently, the national legislation at issue in the main proceedings does not appear to go beyond what is necessary for the purpose of protecting public order and safety. (see paras 59, 60, 64, 65, operative part 1) 3. Article 10 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market does not preclude national legislation which makes the storage of pyrotechnic articles compliant with Directive 2007/23 and intended for the retail trade subject to dual authorisation, namely a federal explosives authorisation and a regional environmental permit, provided that all the conditions set out in Article 10(2) of that directive are satisfied, which it is for the referring court to ascertain. (see para. 88, operative part 2) 4. Article 20 of Directive 2007/23 and Article 1(5) of Directive 2006/123 must be interpreted as meaning that Member States can adopt criminal law penalties provided that, as regards Directive 2007/23, those penalties are effective, proportionate and dissuasive and, as regards Directive 2006/123, the national rules of criminal law do not have the effect of circumventing the rules contained in that directive. (see para. 102, operative part 3)