Opinion of the Advocate General — ECLI:EU:C:2022:954
Date: 2022-12-01
Language of the case: German
Subject matter: External relations;Internal market - Principles;Commercial policy;Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-626/21 – 1 
Case C-626/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
11 October 2021 
Referring court: 
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
29 September 2021 
Appellant on a point of law: 
Funke Sp. zo.o. 
Defendant authority before the Verwaltungsgericht Wien (Austria): 
Landespolizeidirektion Wien 
      
Subject matter of the main proceedings 
Product safety – RAPEX Guidelines – Interpretation – Right of an economic 
operator to complete a RAPEX notification – Request – Competence – Judicial 
protection 
Subject matter and legal basis of the request 
Interpretation of Directive 2001/95/EC, Regulation (EC) No 765/2008 and 
Implementing Decision (EU) 2019/417; Article 267 TFEU 
Questions referred for a preliminary ruling 
Are 
- Directive 2001/95/EC of the European Parliament and of the Council of 
3 December 2001 on general product safety, OJ 2002 L 11, p. 4, as amended by 
Regulation (EC) No 765/2008, OJ 2008 L 218, p. 30, and Regulation (EC) 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-626/21 
 
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No 596/2009, OJ 2009 L 188, p. 14 (‘Product Safety Directive’), in particular 
Article 12 and Annex II, 
- 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, OJ 2008 L 218, p. 30 (‘Market Surveillance Regulation’), in particular 
Articles 20 and 22, and 
- 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, OJ 2019 L 73, 
p. 121 (‘RAPEX Guidelines’), to be interpreted as meaning that 
1. the right of an economic operator to complete a RAPEX notification arises 
directly from those provisions? 
2. the European Commission (‘the Commission’) is competent to decide on 
such a request? 
or 
3. the authority of the Member State concerned is competent to decide on such 
a request? 
(If Question 3 is answered in the affirmative) 
4. the (national) judicial protection against such a decision is sufficient where it 
is not afforded to everyone but only to the economic operator affected by the 
(obligatory) measure against the (obligatory) measure taken by the authority? 
Provisions of European Union law relied on 
Directive 2001/95/EC of the European Parliament and of the Council of 
3 December 2001 on general product safety (‘Product Safety Directive’): 
Article 12 and Annex II; 
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 
(‘Market Surveillance Regulation’): Articles 20 and 22; 
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 (‘RAPEX Guidelines’): 
Article 1 and Annex. 
FUNKE 
 
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Provisions of national law relied on 
Bundesgesetz, mit dem polizeiliche Bestimmungen betreffend pyrotechnische 
Gegenstände und Sätze sowie das Böllerschießen erlassen werden (Federal Law 
enacting police provisions concerning pyrotechnic articles and substances and 
cannon shooting; ‘the PyroTG 2010’): Paragraphs 4-6, 27 and 27a; 
Bundesgesetz zum Schutz vor gefährlichen Produkten (Federal Law on protection 
against dangerous products; ‘the PSG 2004’): Paragraphs 1, 2 and 10. 
Succinct presentation of the facts and procedure in the main proceedings 
1 While conducting market surveillance in respect of a distributor of pyrotechnic 
articles in accordance with Paragraph 27(1) of the PyroTG 2010, the 
Landespolizeidirektion Wien (Regional Police Directorate, Vienna, Austria; ‘the 
LPD’) found that various pyrotechnic articles stocked by that distributor were not 
safe for the user to handle. By administrative decision, a prohibition on the sale of 
the firecrackers was imposed on the distributor concerned and the recall of those 
articles was ordered in accordance with point 3 of Paragraph 27a(1) of the 
PyroTG 2010. 
2 Subsequently, a RAPEX notification procedure regarding the pyrotechnic articles 
objected to was initiated by the LPD in its capacity as market surveillance 
authority under the PyroTG 2010 and notifications regarding the articles were 
submitted to the Commission. 
3 The appellant on a point of law is the importer of the pyrotechnic articles 
concerned by the RAPEX notifications (notification numbers A12/00297/20, 
A12/00290/20 and A12/00289/20). 
4 By letter of 30 April 2020, the appellant on a point of law submitted requests for 
completion of the RAPEX notifications and for access to files to the LPD in 
accordance with Paragraph 17 of the Allgemeines Verwaltungsverfahrensgesetz 
1991 (1991 General Law on administrative procedure; ‘the AVG’). Specifically, 
the appellant on a point of law requested that the abovementioned RAPEX 
notifications be completed by adding the batch numbers of the pyrotechnic articles 
objected to and that it be granted access to the files of the RAPEX notification 
procedure, in particular the risk classification of the products covered by RAPEX 
notifications A12/00289/20, A12/00290/20 and A12/00297/20. 
5 In the contested judgment of the Verwaltungsgericht Wien (Administrative Court, 
Vienna; ‘Administrative Court’), both the request for access to the files in the 
RAPEX notification procedure and the request for completion of the RAPEX 
notifications were refused in that case (following an appeal on the merits brought 
by the appellant on a point of law against the administrative decision of the LPD 
of 29 June 2020 issued in relation to those requests). The appeal on a point of law 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-626/21 
 
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before the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) was 
declared admissible. 
6 In its reasoning, the Administrative Court stated, in essence, that the RAPEX 
notification procedure begins when the market surveillance authority becomes 
aware of facts relevant to RAPEX. The ‘rapid alert notification’ to be issued in 
that system enters into consideration only if there is a situation with a cross-border 
element. As a market surveillance authority under the PyroTG 2010, the LPD 
acted in the exercise of State authority. However, this consists in administrative 
action going beyond an administrative act (administrative decision). This is 
because notifications in the RAPEX rapid alert system are to be categorised as 
material acts (that is to say, as simple administrative action aimed at a concrete 
result). However, a review by an administrative court is constitutionally provided 
for only within the framework of Articles 131 and 132 of the Bundes-
Verfassungsgesetz (Federal Constitutional Law; ‘the B-VG’), in accordance with 
which only persons who claim that their rights have been violated by the decision 
of an administrative authority may bring an appeal before the administrative 
courts on the ground of illegality. 
7 Judicial protection, as required by recital 37 of the Product Safety Directive 
(2001/95/EC), is in principle guaranteed by the possibility for the administrative 
measures underlying the RAPEX notification procedure to be challenged before 
the administrative courts (and subsequently the supreme courts of public law). It 
cannot be inferred from the statutory provisions that, under the Austrian legal 
system, economic operators such as the appellant on a point of law (that is to say, 
the manufacturer or importer of a product) have been granted a right of request 
with regard to the points asserted concerning access to files or the completion of 
the RAPEX notification. However, there is also nothing in Commission 
Implementing Decision (EU) 2019/417 (RAPEX Guidelines) to suggest that the 
appellant on a point of law has a right of request or the status of party in the 
RAPEX notification procedure. 
The essential arguments of the parties in the main proceedings 
8 In the appeal on a point of law brought before the Supreme Administrative Court 
against the decision of the Administrative Court, the appellant on a point of law 
argued that, as an economic operator, it was directly concerned in the matter by 
the administrative action taken by the LPD in the exercise of State authority and 
therefore has the rights of a party under Austrian administrative procedural law 
(Paragraph 8 of the AVG). It submits that this also gives rise to the right of access 
to the RAPEX notifications (in accordance with Paragraph 17 of the AVG). There 
is no case-law of the Supreme Administrative Court on the right of request with 
regard to the action of public authorities under the RAPEX notification procedure. 
In particular, there is no case-law on the question of whether a right for the 
appellant on a point of law, as an economic operator concerned, to request the 
correction, completion or withdrawal of a RAPEX notification can be derived 
FUNKE 
 
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directly from the RAPEX Guidelines. Nor is there any case-law on the question of 
whether adequate judicial protection is guaranteed with regard to action taken in 
the exercise of State authority in the RAPEX notification procedure. It was 
precisely the measures in the RAPEX notification procedure that led to the direct 
impairment of the ability of the appellant on a point of law, as an economic 
operator, to sell its products on the Austrian and European markets. This is 
exacerbated by the lack of the batch numbers of the pyrotechnic articles objected 
to. The denial of any judicial protection in the RAPEX notification procedure 
conducted by the authorities must be regarded as having significance that goes 
beyond the individual case, because every other economic operator in a RAPEX 
notification procedure would also be denied such judicial protection. 
9 In its response to the appeal on a point of law, the LPD submits, in essence, that it 
was in relation to the distributor that the LPD withdrew the pyrotechnic articles 
from the market. The distributor would therefore be free to contest that 
administrative decision and thus to challenge the administrative measure before 
the administrative courts and the supreme courts of public law. Referring to 
points 3.4.3 and 3.4.3.5 of the RAPEX Guidelines, the LPD submits that, on those 
legal bases, the appellant on a point of law would have had the possibility at any 
stage of the RAPEX procedure to take the matter to the competent body, namely 
the Commission, in order to bring about the correction/completion of the RAPEX 
notification submitted. Furthermore, the Commission can permanently withdraw a 
notification from RAPEX in accordance with point 3.4.7.1. of the RAPEX 
Guidelines. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The request for a preliminary ruling seeks to clarify, in particular, whether the 
RAPEX Guidelines directly give rise to a right of the economic operator to 
request the completion of a RAPEX notification – whereby, if that is the case, 
competence in that regard is to be clarified – and to adequate judicial protection 
for the economic operator against adverse effects arising from a RAPEX 
notification. 
11 As regards the right to complete the RAPEX notification, the Supreme 
Administrative Court takes the view that certain provisions of the RAPEX 
Guidelines suggest that EU law does not provide for a right of an economic 
operator to complete a RAPEX notification, and a request to that effect is 
therefore inadmissible. 
12 Accordingly, those guidelines state, in relation to the actors and roles involved in 
the notification process, that economic operators are not directly involved in the 
submission of notifications in the RAPEX application (Part II, Chapter 3.3.1.). In 
particular, the provisions concerning the permanent withdrawal of a notification 
from RAPEX state that the Commission may withdraw notifications from RAPEX 
only at the request of the notifying Member State, as the latter takes full 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-626/21 
 
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responsibility for the information transmitted through the system (Part II, Chapter 
3.4.7.1.2. of the RAPEX Guidelines). 
13 This might mean that, under the relevant EU law, the economic operator does not 
have a right to complete what it considers to be an incomplete RAPEX 
notification, but, rather, the RAPEX notification procedure is conducted 
exclusively between the Commission and the (authorities of the) Member States, 
without the economic operators being given any rights of their own in that respect. 
14 As regards the competence to decide on an economic operator’s request to 
complete a RAPEX notification, the Supreme Administrative Court takes the view 
that a number of provisions militate in favour of the authority of the Member State 
concerned being competent to decide on such requests. Examples of such 
provisions are Chapter 3.2.4. of Part II of the RAPEX Guidelines, according to 
which responsibility for the information provided lies with the notifying Member 
State, and the Commission does not assume any responsibility for the information 
transmitted, or Chapter 5.4. of Part I of the RAPEX Guidelines, according to 
which responsibility for the information provided lies with the notifying Member 
State. 
15 On the other hand, the Supreme Administrative Court takes the view that other 
provisions militate in favour of the Commission having such competence. 
Examples of such provisions are Chapters 3.4.3. and 3.4.3.2. of Part II of the 
RAPEX Guidelines, according to which the Commission must check all 
notifications to ensure that they are correct and complete, and Chapter 3.4.4. of 
Part II of the RAPEX Guidelines, according to which the Commission is to 
validate and distribute through the RAPEX application all notifications assessed 
as correct and complete during its examination. 
16 As regards judicial protection, clarification is sought as to whether the RAPEX 
Guidelines must be interpreted as meaning that the obligatory measure (namely 
the order to recall the pyrotechnic articles, issued vis-à-vis the distributor and not 
vis-à-vis the appellant on a point of law, as the importer) is to be regarded only as 
the starting point for further investigations conducted by the authorities of the 
Member States for the purposes of a RAPEX notification, and as meaning, in 
particular, that additional information going beyond the obligatory measure is 
processed in the RAPEX notification and subsequently distributed. In that case, a 
separate judicial protection procedure would most likely be required.