Opinion of the Advocate General — ECLI:EU:C:2007:387
Date: 2007-06-28
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Intellectual, industrial and commercial property;Approximation of laws;Quantitative restrictions;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Preliminary rulings – Admissibility – Need to supply the Court of Justice with sufficient explanation of the factual and legislative context (Art. 234 EC; Statute of the Court of Justice, Art. 20) 2. Approximation of laws – Provision of information in the field of technical standards and regulations and of rules on Information Society services – Directive 98/34 (European Parliament and Council Directive 98/34, Arts 1(3) and (11) and 8(1)) 1. The information provided in orders for reference must not only be such as to enable the Court to reply usefully but must also enable the governments of the Member States and other interested parties to submit observations pursuant to Article 20 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that opportunity is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties. Thus it is essential that the national court making the reference should give at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute. (see para. 21) 2. Directive 98/34, laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48, must be interpreted as meaning that national provisions which introduced, after the implementation of Directive 83/189 laying down a procedure for the provision of information in the field of technical standards and regulations, the obligation to affix a given distinctive sign to compact discs of works of figurative art for the purposes of marketing them in the Member State concerned, constitute a technical regulation which, if not notified to the Commission, cannot be invoked against an individual. Since such a distinctive sign, which is intended to inform consumers and the national authorities that the reproductions are lawful, is affixed to the actual medium containing the intellectual work and thus to the product itself, and thus falls within the requirements applicable to the products concerned as regards marking or labelling, such a sign constitutes a ‘technical specification’ within the meaning of Article 1(3) of Directive 98/34, presupposing that the national measure necessarily refers to the product or its packaging as such. Therefore, since that specification is compulsory de jure for the marketing of compact discs, the said specification constitutes a ‘technical regulation’ within the meaning of the first subparagraph of Article 1(11) of the directive. The inclusion of new media, such as compact discs, within the scope of the obligation to affix the given distinctive sign must be regarded as a change to a draft technical regulation within the meaning of the third subparagraph of Article 8(1) of that directive, and should therefore have been notified to the Commission in so far as the obligation to affix the said sign was extended to the products in question after the implementation of Directive 83/189, which is a matter for the national court to determine. In that case, individuals may rely on the inapplicability of such a technical regulation before the national court, which must decline to apply it. (see paras 35-37, 40-42, 44-45 and operative part)