OPINION OF ADVOCATE GENERAL

BOT

Delivered on 19 April 2018 ( 1 )

Case C‑137/17

Van Gennip BVBA,

Antonius Johannes Maria ten Velde,

Original BVBA,

Antonius Cornelius Ignatius Maria van der Schoot

(Request for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Court of First Instance, Antwerp, Belgium))

(Reference for a preliminary ruling — Directive 2006/123/EC — Directive 2007/23/EC — Directive 2013/29/EU — Placing on the market and free movement of pyrotechnic articles — Freedom of establishment — Restrictive national measures — Public order — Criminal penalties — Authorisation scheme)

1. The present case, which has its origin in criminal proceedings brought against retailers of pyrotechnic articles, provides the Court with the opportunity to rule on the scope of the directives relating to pyrotechnic articles, on the conformity with EU law of national legislation restricting the sale of pyrotechnic articles containing more than 1 kg of pyrotechnic composition ( 2 ) and on the conformity to Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market ( 3 ) of a double authorisation scheme for the storage of pyrotechnic articles.

I. Legal framework

A. European Union law

1. The Services Directive

2. Article 1(5) of the Services Directive states: ‘This directive does not affect Member States’ rules of criminal law. However, Member States may not restrict the freedom to provide services by applying criminal law provisions which specifically regulate or affect access to or exercise of a service activity in circumvention of the rules laid down in this directive.’

3. According to Article 2(1) of that directive: ‘This directive shall apply to services supplied by providers established in a Member State.’

4. In Chapter III of that directive, entitled ‘Freedom of establishment for providers’, Article 9, entitled ‘Authorisation schemes’, states, in paragraph 1: ‘Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied: (a) the authorisation scheme does not discriminate against the provider in question; (b) the need for an authorisation scheme is justified by an overriding reason relating to the public interest; (c) the objective pursued cannot be attained by means of a less restrictive measure, in particular because an a posteriori inspection would take place too late to be genuinely effective.’

5. Article 10 of the Services Directive states: ‘1. Authorisation schemes shall be based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner. 2. The criteria referred to in paragraph 1 shall be: (a) non-discriminatory; (b) justified by an overriding reason relating to the public interest; (c) proportionate to the public interest objective; (d) clear and unambiguous; (e) objective; (f) made public in advance; (g) transparent and accessible. … 7. This article shall not call into question the allocation of the competences, at local or regional level, of the Member States’ authorities granting authorisations.’

2. Directive 2007/23/EC

6. Recital 4 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 ( 4 ) states: ‘Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances [ ( 5 )] sets out safety requirements for establishments where explosives, including pyrotechnic substances, are present.’

7. Article 1 of that directive provides: ‘1. This directive establishes rules designed to achieve the free movement of pyrotechnic articles in the internal market while, at the same time, ensuring a high level of protection of human health and public security and the protection and safety of consumers and taking into account the relevant aspects related to environmental protection. 2. This directive establishes the essential safety requirements which pyrotechnic articles must fulfil with a view to their being placed on the market. …’

8. Article 2 of that directive provides: ‘For the purposes of this directive: 1. “Pyrotechnic article” means any article containing explosive substances or an explosive mixture of substances designed to produce heat, light, sound, gas or smoke or a combination of such effects through self-sustained exothermic chemical reactions. … 3. “Firework” means a pyrotechnic article intended for entertainment purposes. … 8. “Distributor” means any natural or legal person in the supply chain who makes a pyrotechnic article available on the market in the course of his business. …’

9. Article 6 of Directive 2007/23 provides: ‘1. Member States shall not prohibit, restrict or hinder the placing on the market of pyrotechnic articles which satisfy the requirements of this directive. 2. The provisions of this directive shall not preclude measures taken by a Member State to prohibit or restrict the possession, use and/or the sale to the general public of category 2 and 3 fireworks, theatrical pyrotechnic articles and other pyrotechnic articles, which measures are justified on grounds of public order, security or safety, or environmental protection. …’

10. According to the first paragraph of Article 20 of that directive: ‘Member States shall lay down rules on penalties applicable to infringements of the provisions of national law adopted pursuant to this directive and ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.’

3. Directive 2013/29/EU

11. Article 45 of Directive 2013/29/EU of the European Parliament and of the Council of 12 June 2013 on the harmonisation of the laws of the Member States relating to the making available on the market of pyrotechnic articles ( 6 ) states: ‘Member States shall lay down rules on penalties applicable to infringements by economic operators of the provisions of national law adopted pursuant to this directive and shall take all the measures necessary to ensure that they are enforced. Such rules may include criminal penalties for serious infringements. The penalties provided for shall be effective, proportionate and dissuasive.’

B. Belgian law

12. Pursuant to Article 5 of the Wet betreffende ontplofbare en voor de deflagratie vatbare stoffen en mengsels en de daarmede geladen tuigen (Law on explosive and deflagration-prone substances and mixtures and apparatus loaded with them) ( 7 ) of 28 May 1956: ‘Infringements of the provisions adopted under Article 1 shall be punishable by a term of imprisonment of between 15 days and two years and a fine of between [BFR] 100 and 1000, or only one of those penalties.’

13. Article 200 of the Koninklijk besluit houdende algemeen reglement betreffende het fabriceren, opslaan, onder zich houden, verkopen, vervoeren en gebruiken van springstoffen (Royal Decree laying down general rules on the manufacture, storage, detention, sale, transport and use of explosives) ( 8 ) of 23 September 1958 provides: ‘No explosive shall be kept, in quantities in excess of those which may be held pursuant to Article 265, except in duly authorised shops or warehouses.’

14. According to Article 257 of that decree: ‘The sale of any explosive in quantities in excess of those which any individual may possess and indicated in Article 265 may take place only if the following conditions are fulfilled: 1. the purchaser is in possession of a transport authorisation as referred to in Article 72; 2. the purchaser is in possession of an authorisation to store or hold those products on a temporary basis; 3. the purchaser proves that he is active professionally in the explosives sector, as a manufacturer, dealer or user of explosives. The condition referred to in point 2 shall apply only if the goods purchased are intended to be stored or held on a temporary basis on Belgian territory. The seller shall check and archive all documents submitted by purchasers in order to prove compliance with the obligations referred to in the first paragraph. Those documents shall be kept available, for at least three years, for the agents of the Directorate-General for Quality and Security of the Federal Public Service for the Economy, SMEs, Middle Classes and Energy and the police and judicial authorities at the premises where the sales are made.’

15. Article 260 of the Royal Decree provides: ‘Retailers must always be in possession of a storage authorisation; they cannot hold or sell even the slightest quantity of explosives other than those indicated in Article 261. Their warehouses must be equipped and maintained as stated in Article 251.’

16. Pursuant to Article 261 of that decree: ‘The type and quantities of explosives that may be kept by retailers shall be determined in each individual case by the authorisation decree, depending on the degree of security which each warehouse presents. The amount of those products kept shall not exceed the following quantities: … 2. party fireworks and signalling flares, up to 50 kg of pyrotechnic composition contained therein; …’

17. Article 265 of that decree states: ‘No authorisation shall be required in order to keep: … 7. a quantity of party fireworks and signalling flares of up to 1 kg of pyrotechnic composition contained therein.’

18. The first paragraph of Article 300 of the Royal Decree provides: ‘Infringements of the provisions of this regulation, with the exception of Article 295, of the decrees adopted in order to implement those provisions, and the provisions of the authorisation decrees shall be punishable by the penalties imposed by the Law of 28 May 1956.’

II. The facts of the main proceedings and the questions for a preliminary ruling

19. In the main proceedings, the accused are Van Gennip BVBA, Original BVBA, Mr Antonius ten Velde and Mr Antonius van der Schoot.

20. Original is an undertaking whose registered office is in Olen (Belgium), not far from the Netherlands, and whose business consists in the import, wholesale and distribution of party fireworks. In that respect, it has, in particular, two sales outlets in Baerle-Duc (Belgium), a municipality which is partly in the province of Brabant-Septentrional (Netherlands) and contained within the municipality of Baarle-Nassau (Netherlands), which are operated by Van Gennip, whose registered office is in Baerle-Duc. Mr ten Velde and Mr van der Schoot, who are both Netherlands nationals, are the managers of those sales outlets, namely Zena-Tabak-O-Tiek and Zena-De Bunker, respectively.

21. The four accused in the main proceedings are, in essence, being prosecuted as retailers of pyrotechnic products for storing party fireworks whose pyrotechnic composition by weight exceeded the maximum weight stated in the authorisations issued to them by the Belgian authorities, for storing party fireworks in non-authorised storage facilities and for selling to an individual not in possession of an appropriate authorisation for a quantity of party fireworks the weight of which exceeded 1 kg of pyrotechnic composition.

22. It is apparent from the order for reference that Mr ten Velde and Mr van der Schoot claimed that the criminalisation of the infringements as provided for in the Belgian legislation is contrary to Article 45 of Directive 2013/29, under which criminal penalties are to be imposed only for serious infringements, and that none of the offences in respect of which they are accused constitutes a serious infringement.

23. According to the order for reference, the accused and the openbaar ministerie (Public Prosecutor’s Office, Belgium) are disagreed as to whether the obligation to have both a federal explosives authorisation and a regional environmental permit is consistent with Directives 2007/23 and 2013/29 and also with the Services Directive. In particular, some of the accused maintain that, as the Belgian legislation is contrary to EU law, certain of the acts in respect of which they are charged cannot be regarded as unlawful.

24. The interpretation of EU law may have an impact on whether the acts forming the basis of the charges against the accused are punishable.

25. In those circumstances, the Rechtbank van eerste aanleg te Antwerpen (Court of First Instance, Antwerp, Belgium) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Do the following infringements of the Belgian legislation on pyrotechnic articles qualify as “serious infringements” within the meaning of Article 45 of Directive 2013/29: (a) the sale of pyrotechnic articles in the amount of 2.666 kg of pyrotechnic composition, being an infringement of Articles 265(7) and 257 of [the Royal Decree], which prohibit the sale of pyrotechnic articles in quantities exceeding 1 kg of pyrotechnic composition, if the consumer is not in possession of an individually-obtained administrative authorisation to hold a larger quantity of pyrotechnic articles; (b) the exceeding of the determined storage limit and the non-compliance with the storage locations indicated in a federal fireworks authorisation, even though a regional environmental permit had already been issued for the storage of the actual higher quantities in question, in the locations in question; (c) the very temporary storage of extremely small quantities of pyrotechnic articles in various locations not specifically authorised for storage, on the premises of an establishment for the retail sale of pyrotechnic articles, possessing both a federal fireworks authorisation and a regional environmental permit? (2) Does the principle of the free movement of pyrotechnic articles, as laid down in Article 6(1) of Directive 2007/23 (now Article 4(1) of Directive 2013/29), read in conjunction, if necessary, with Article 10 of [the “services” directive], preclude national legislation which makes the storage of [Directive 2007/23]-compliant pyrotechnic articles associated with the retail trade subject to the twofold requirement of possessing (i) an authorisation granted pursuant to the legislation governing the manufacture, storage, holding, sale, transport and use of explosives, and (ii) an authorisation granted under the legislation on environmental authorisations for nuisance-causing structures, when both authorisation regimes essentially have the same objective (the preventive assessment of safety risks), and one of those two authorisation regimes (in this case, that relating to explosives) sets a (very) low maximum threshold for the storage of party fireworks (in the amount of 50 kg of pyrotechnic composition (that is, the active substance))? (3) Does the principle of the free movement of pyrotechnic articles, as laid down in Article 4(1) of Directive 2013/29 … and Article 6([1]) of Directive 2007/23 … (read together, if necessary, with Articles 34, 35 and 36 TFEU), in conjunction with the principle of proportionality, preclude national legislation which prohibits party fireworks (fireworks from categories 2 and 3 within the meaning of Directive 2007/23) containing more than 1 kg of pyrotechnic composition from being held or used by, or sold to, consumers?’

III. My analysis

A. First question referred

26. By its first question, the referring court asks the Court whether the offences in respect of which the accused in the main proceedings are being prosecuted are serious infringements within the meaning of Article 45 of Directive 2013/29.

27. In that regard, as a number of the parties emphasised at the hearing, the facts in respect of which the accused in the main proceedings are being prosecuted took place between 22 November 2010 and 27 January 2013 and therefore predated the adoption and entry into force of Directive 2013/29. ( 9 )

28. In addition, unlike Article 45 of Directive 2013/29, Article 20 of Directive 2007/23 does not state that Member States may impose criminal penalties for serious infringements, but merely states that Member States may lay down rules on penalties applicable to infringements of the provisions of national legislation adopted pursuant to that directive and that those penalties are to be effective, proportionate and dissuasive.

29. In those circumstances, I consider that there is no need to interpret the concept of ‘serious infringements’ that appears only in Directive 2013/29, since that directive is not applicable ratione temporis to the main proceedings.

30. Furthermore, on the assumption that it might be claimed that Article 45 of Directive 2013/29 is a lex melior that must apply retroactively because, unlike Article 20 of Directive 2007/23, it authorises Member States to lay down criminal penalties only for serious infringements, that allegation could not, in my view, be followed.

31. As a preliminary point, it should be emphasised that it follows from each of those provisions not only that Member States are under an obligation to lay down penalties applicable for infringements of the provisions of the national legislation adopted in accordance with Directives 2007/23 and 2013/29, but also that those penalties must be effective, proportionate and dissuasive. ( 10 )

32. That obligation borne by the Member States flows from the specific characteristics associated with the implementation and enforcement of EU law, which are largely a matter for the Member States, ( 11 ) and, in order to ensure the effectiveness of the rules relating to pyrotechnic articles, those rules must be accompanied by a scheme of penalties which it is for the Member States to determine. ( 12 )

33. Thus, provisions such as Article 20 of Directive 2007/23 or Article 45 of Directive 2013/29 are typical ( 13 ) of EU law, since they are never more than the reflection of the sui generis nature of the implementation and enforcement of EU law. ( 14 )

34. However, the interpretation of those provisions proposed by the accused in the main proceedings tends to confer on them a scope which they do not have.

35. In fact, it must be made clear that those provisions do not determine the offences, or the applicable penalties, ( 15 ) but that they merely state that the Member States are under an obligation to lay down those penalties.

36. In that regard, it should be emphasised that Directives 2007/23 and 2013/29 are based on Article 95 EC (now Article 114 TFEU) and Article 114 TFEU respectively, and not on Article 83 TFEU. Unlike measures based on the latter provision, therefore, Directives 2007/23 and 2013/29 lay down rules intended to ensure the free movement of pyrotechnic articles within the internal market and not rules designed to establish minimum rules in relation to criminal penalties applicable to certain facts or conduct. ( 16 )

37. Furthermore, since Article 20 of Directive 2007/23 does not specify the nature of the penalties which the Member States may adopt, the wording of that provision undoubtedly authorises them to determine the nature of the penalties and, consequently, to impose criminal penalties for infringements of the national rules adopted in accordance with Directive 2007/23. ( 17 )

38. Lastly, to my mind, that interpretation is not called into question by the change to the wording made by the legislature when Article 45 of Directive 2013/29 was drafted, since that wording cannot have the effect of restricting the Member States’ discretion as regards the nature of the penalties adopted pursuant to Article 20 of Directive 2007/23. ( 18 )

39. However, it should be borne in mind that the fact that a national court has, in formal terms, formulated a question for a preliminary ruling by reference to certain provisions of EU law does not preclude the Court from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. It is, in that context, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, regard being had to the subject matter of the dispute. ( 19 )

40. In that regard, first, it must be stated that, as the facts in respect of which the accused in the main proceedings are being prosecuted took place between 22 November 2010 and 27 January 2013, they come ratione temporis under Directive 2007/23. Consequently, I consider that, in order to provide a helpful answer to the referring court, it is appropriate to reformulate the question referred for a preliminary ruling in order to establish whether Article 20 of that directive allows the Member States to impose criminal penalties.

41. As I have already made clear in point 37 of this Opinion, the answer to that question is indisputably in the affirmative. However, it is for the referring court to ascertain that the penalties laid down are effective, proportionate and dissuasive.

42. Second, it follows from the second question referred that the referring court does not preclude the possibility that the Belgian system of double authorisation scheme for the storage of pyrotechnic articles for sale comes under the Services Directive. In addition, two infringements referred to in the first question are infringements of the authorisations issued under that double authorisation scheme. Consequently, it must be determined whether the Member States may lay down penalties for infringements of the national legislation governing access to or the exercise of the service activities.

43. Since Article 1(5) of the Services Directive provides that that directive does not affect Member States’ rules of criminal law, provided that they do not have the effect of circumventing the rules laid down in that directive, the answer to that question is in the affirmative.

44. Having regard to all of those considerations, I consider that the answer to the first question must be that, without there being any need to determine whether the infringements at issue are serious infringements, Article 20 of Directive 2007/23 and Article 1(5) of the Services Directive must be interpreted as meaning that the Member States may lay down criminal penalties provided that, in the case of Directive 2007/23, those penalties are effective, proportionate and dissuasive and that, in the case of the Services Directive, the national provisions do not have the effect of distorting the rules of that directive, which it is for the referring court to ascertain.

B. Second question

45. By its second question, the referring court asks the Court whether the principle of the free movement of pyrotechnic articles, as laid down in Article 6(1) of Directive 2007/23, read in conjunction, if necessary, with Article 10 of the Services Directive, preclude national rules which make the storage of Directive 2007/23-compliant pyrotechnic articles associated with the retail trade subject to possession of a twofold authorisation assuming (i) an authorisation granted pursuant to the legislation governing the manufacture, storage, holding, sale, transport and use of explosives, and (ii) an authorisation granted under the legislation on environmental authorisations for nuisance-causing structures, both having the same objective, namely the prevention of risks to safety, and one of them setting a low maximum threshold for the storage of party fireworks.

46. In that regard, although the referring court refers to Directive 2007/23 and the Services Directive, I consider that the national legislation at issue does not come within the scope of the former directive.

47. In fact, Directive 2007/23 regulates the treatment of pyrotechnic articles before they are placed on the market and their actual placing on the market. However, it regulates the storage of such articles in so far as that storage has a direct impact on the characteristics and safety of the articles. Thus, it follows, in particular, from recital 4 of Directive 2007/23 ( 20 ) and from Article 14(1) and (2) of that directive that storage is covered by that measure only in that the storage conditions must not compromise the compliance of the pyrotechnic product with the essential safety requirements set out in the directive.

48. The national legislation covers the storage of pyrotechnic articles that comply with the requirements of Directive 2007/23 and are intended for sale in the context of the retail trade.

49. Furthermore, while it is indeed true that the double authorisation scheme referred to in point 23 of this Opinion relates strictly to the storage of pyrotechnic articles and not to access to or the exercise of the activity of retailing those articles, which is a ‘service’ for the purposes of the application of the Services Directive, ( 21 ) the storage of pyrotechnic articles intended for sale is an essential precondition of that retail activity.

50. First, it is apparent from the file submitted to the Court that the provisions of the Royal Decree at issue refer to ‘retailers’ and therefore to storage with a view to sale. Second, making the quantity of pyrotechnic articles that can be stored in the context of a retail activity subject to authorisation undeniably has an effect on both access to and the exercise of that activity. Thus, the absence of authorisation for storage or a very low authorisation may restrict de facto access to or the exercise of that activity.

51. Consequently, I consider that it is by reference to the Services Directive and, in particular, to Article 10 thereof, ( 22 ) that the second question should be answered.

52. I also note that the scope of the referring court’s question is ultimately limited, since that court is doubtful as to the compatibility of the Belgian double authorisation scheme with EU law and not about the compatibility of the regional and federal arrangements with EU law.

53. In that regard, the argument of the accused in the main proceedings that the two authorisation arrangements pursue the same objective is based on an incorrect premiss.

54. In fact, it is apparent from the explanations provided by the Belgian Government at the hearing that, so far as the accused in the main proceedings are concerned, the storage of pyrotechnic articles for sale requires two authorisations. First, it is for the local authorities, which are responsible for environmental protection, to grant an environmental permit authorising the storage of a certain quota of pyrotechnic articles containing a certain quota of pyrotechnic composition. Second, since the federal authorities are responsible for the health and safety of the population, they must grant an authorisation for the storage of a certain quota of pyrotechnic articles containing a certain quota of pyrotechnic composition.

55. Consequently, contrary to the assertions of the accused in the main proceedings, those authorisation schemes necessarily pursue different objectives and the grant of each of those authorisations is subject to different criteria. In that regard, while it is indeed true that the quotas authorised on the basis of those authorisations may differ, those schemes are not contradictory, since compliance with the authorisation that determines the lowest quota necessarily entails compliance with the other authorisation.

56. As regards the conformity of the twofold authorisation system in question with Article 10 of the Services Directive, under paragraph 1 of that provision the authorisation schemes must be ‘based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner’, while paragraph 2 sets out those criteria.

57. I think that the Belgian scheme observes those criteria.

58. First, in the light of the information available to the Court, the criteria on which the Belgian system rests are, in my view, justified by an overriding reason relating to the general interest, namely the protection of public safety and the environment, and, because the federal and regional legislation is published, are made public in advance, transparent and accessible.

59. Second, to my mind those criteria are clear and unambiguous. In that regard, as I have already emphasised, the two authorisation schemes do not duplicate each other and are intended to protect different public interests; it cannot therefore be maintained that the intervention of the federal and regional authorities calls that assessment in question. In addition, the obligation to be in possession of both a federal authorisation and a regional authorisation cannot in itself constitute a ground for incompatibility with the Services Directive, since the EU legislature expressly stated in Article 10(7) of that directive that that article ‘shall not call into question the allocation of the competences, at local or regional level, of the Member States’ authorities granting authorisations’.

60. Third, the material before the Court does not allow me to evaluate the non-discriminatory, proportionate and objective nature of those criteria, which must therefore be verified by the referring court.

61. Having regard to all of those considerations, I consider that the Belgian double authorisation scheme for the storage of pyrotechnic articles is not incompatible with Article 10 of the Services Directive, provided that the criteria applicable to the exercise of the competent authorities’ discretion are non-discriminatory, proportionate and objective, which it is for the referring court to ascertain.

C. Third question referred

62. By its third question, the referring court asks the Court whether the principle of the free movement of pyrotechnic articles, as laid down in Directives 2007/23 and 2013/29, read in conjunction, if necessary, with Articles 34, 35 and 36 TFEU, together with the principle of proportionality, preclude national rules which prohibit party fireworks containing more than 1 kg of pyrotechnic composition from being held or used by, or sold to, consumers.

63. In the first place, it was contended, in the proceedings before the Court, that the Belgian legislation constitutes a technical regulation within the meaning of Directive 98/34/EC ( 23 ) and that, as it was not notified to the European Commission, that legislation cannot be applied. ( 24 )

64. At the hearing, the Belgian Government claimed that, since the national legislation is a measure ‘necessary … for the protection of persons, in particular workers, when products are used’ referred to in Article 1 of Directive 98/34, that directive is not applicable.

65. I am not convinced by that argument.

66. Although it is clear, as I shall show, that the Belgian legislation is intended to protect public safety and the safety of persons, it does not relate to the use of the products, but to their sale.

67. The Belgian Government also maintained that, in so far as the earlier legislation made the sale of pyrotechnic articles subject to possession by the purchaser of an authorisation when the product in question contained 500 g of pyrotechnic composition, the legislation at issue in the present case represents a relaxation of an earlier measure which does not need to be notified.

68. In that regard, the Court has held that amendments made to a draft technical regulation already notified to the Commission pursuant to the first subparagraph of Article 8(1) of Directive 98/34, which contain, in relation to the notified draft, merely a relaxation of the conditions of use of the product in question and which, therefore, reduce the possible impact of the technical regulation on trade, are not a significant alteration of the draft and are not, therefore, subject to the obligation of prior notification. ( 25 )

69. In the present case, however, it cannot be established with certainty from the material submitted to the Court whether the earlier more restrictive legislation had been notified to the Commission pursuant to Directive 98/34.

70. In those circumstances, I consider that it is for the referring court to determine whether such notification had taken place and whether the Belgian Government was therefore entitled not to notify the new legislation.

71. In any event, the Belgian legislation is not, in my view, a technical regulation within the meaning of Article 1, point 11, of Directive 98/34.

72. According to the Court, the concept of a ‘technical regulation’ extends to four categories of measures, namely (i) the ‘technical specification’, within the meaning of Article 1, point 3, of Directive 98/34; (ii) ‘other requirements’, as defined in Article 1, point 4, of that directive; (iii) the ‘rule on services’, covered in Article 1, point 5, of that directive; and (iv) the ‘laws, regulations or administrative provisions of Member States prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider’, under Article 1, point 11, of that directive. ( 26 )

73. In that regard, firstly, I consider that the legislation in question does not come within the categories of rules relating to services, since it does not concern Information Society services, within the meaning of Article 1, point 2, of that directive.

74. Secondly, the concept of ‘technical specification’ designates the specification found in a document defining the characteristics required of a product, such as the name under which the product is sold, the packaging, labelling and conformity assessment procedures. In the view of the Court, that concept presupposes that the national measure must necessarily refer to the product or its packaging as such and thus lay down one of the characteristics required of a product. ( 27 ) The Belgian legislation does not refer to the product or its packaging as such and, as the Commission claimed at the hearing, that legislation therefore does not lay down one of the requirements required of a product.

75. Thirdly, the Court has already stated that, in order to be classified as ‘other requirements’, the national measures at issue must constitute conditions which can significantly influence the composition or nature of the product concerned or its marketing. ( 28 )

76. As the legislation at issue makes the sale of pyrotechnic articles whose pyrotechnic composition content is more than 1 kg subject to possession of an authorisation, it is not a requirement imposed on the product in itself but a requirement imposed on economic operators and cannot therefore be characterised as ‘[an]other requirement’ within the meaning of Directive 98/34. ( 29 )

77. Fourthly, as regards the category referred to in Article 1, point 11, of Directive 98/34, namely the prohibition of the manufacture, importation, marketing or use of a product, it follows from the case-law that that category of technical regulations presupposes that the national provisions at issue have a scope which goes well beyond a limitation to certain possible uses of the product in question and must therefore be confined to a mere restriction of its use. That category is particularly intended to cover national measures which leave no room for any use which can reasonably be made of the product concerned other than a purely marginal one. ( 30 )

78. It must be stated that the national legislation at issue does not prohibit the sale of pyrotechnic articles containing more than 1 kg of pyrotechnic composition, but makes such sale subject to the purchaser’s being in possession of an authorisation. Consequently, such products may be sold to consumers having such an authorisation and to business users, so that, in my view, that legislation leaves room for marketing which is more than purely marginal.

79. In the second place, in order to answer the questions posed by the referring court, it is necessary to determine whether the principle of the free movement of pyrotechnic articles resulting from Directives 2007/23 and 2013/29, read in conjunction, if necessary, with Articles 34, 35 and 36 TFEU, together with the principle of proportionality, preclude national legislation which prohibits party fireworks containing more than 1 kg of pyrotechnic composition from being held or used by, or sold to, consumers.

80. In that regard, firstly, it should be borne in mind that Mr van der Schoot is being prosecuted for having, in particular, sold party fireworks and signalling flares amounting to more than 1 kg of pyrotechnic composition to an individual not in possession of the necessary authorisation; that, as the offence for which he is being prosecuted took place on 23 December 2012, Directive 2007/23 is applicable ratione temporis; and that, according to the order for reference, the party fireworks in question are fireworks in categories 2 and 3 within the meaning of Directive 2007/23, that have been made available on the market.

81. Secondly, since Directive 2007/23 fully harmonised the substantive and procedural conditions that pyrotechnic articles must fulfil in order to be placed on the market and since Article 6(1) of that directive guarantees not only the first placing on the market but also the free movement of pyrotechnic articles, ( 31 ) the pertinent Belgian measure must be assessed in the light of the provisions of that directive and not those of the Treaty. ( 32 )

82. Thirdly, there can be no doubt that the legislation at issue, by its very nature, restricts, within the meaning of Article 6 of Directive 2007/23, the possession and use by and/or the sale to individuals of fireworks containing more than 1 kg of pyrotechnic composition. However, I consider that that legislation is intended, as the Belgian Government has claimed, to protect the essential interests referred to in paragraph 2 of that provision and, in particular, public order, security or safety. ( 33 )

83. As regards the capacity of the legislation to protect public order, security and safety, I consider that the measure at issue is appropriate for ensuring the attainment of those objectives. ( 34 )

84. In that regard, it must be borne in mind that, pursuant to Articles 4 TEU and 72 TFEU, the Member States remain responsible for the maintenance of public order on their territory. Thus, they retain the freedom to determine the measures capable of maintaining public order ( 35 ) or safeguarding public security, ( 36 ) in accordance with their national requirements and according to the specific circumstances as regards time and place.

85. Nevertheless, reliance on the public order, security or safety exception is a derogation from the fundamental principle of free movement, which must be interpreted strictly, and the scope of which cannot be determined unilaterally by the Member States. ( 37 ) The discretion which the Member States enjoy must therefore be exercised within the limits imposed by EU law. ( 38 )

86. In that regard, it must be borne in mind that the Court has already held that, in order to be able to rely on public order and security as justification, there must be a genuine and sufficiently serious threat affecting one of the fundamental interests of society. ( 39 )

87. In the present case, there can be no doubt that making the sale to individuals of pyrotechnic articles containing more than 1 kg of pyrotechnic composition subject to an authorisation is capable of preventing harm to public order and public security.

88. As pyrotechnic articles ‘are inherently dangerous’, ( 40 ) they are capable, given their composition, especially in the case of articles containing more than 1 kg of pyrotechnic composition, of endangering personal security. In addition, because of their inherent nature, and depending on the circumstances in which they are used, such articles are capable of disrupting public order.

89. In addition, since the protection of public order and security are, as stated in point 84 of this Opinion, fundamentally linked to the circumstances of time and place, I cannot fail to note that the inherent danger of pyrotechnic articles containing more than 1 kg of pyrotechnic composition is exacerbated in the current context marked by the terrorist threat.

90. In those circumstances, it is lawful, in my view, for Member States to make the purchase by individuals of articles the pyrotechnic composition content of which exceeds a certain ceiling subject to an authorisation, since, on the one hand, it cannot be precluded that those articles will, on their own or in conjunction with other products, be diverted for non-festive purposes and since, on the other, the mere use of pyrotechnic articles with a high pyrotechnic composition content may, in the present context, cause stampedes and panic.

91. The national legislation at issue is undoubtedly appropriate for protecting public order, public security and public safety in that it enables the quantity of pyrotechnic composition in the possession of an individual to be monitored and, if necessary, limited.

92. As regards the need for the national legislation at issue, in view of the incomplete nature of the reference for a preliminary ruling, of the fact that it is for the referring court to determine whether and, if so, to what extent the national legislation is proportionate to the public-interest objective pursued, ( 41 ) but that the Court may provide the referring court with guidance taken from the file, ( 42 ) I shall confine myself to providing it with a framework analysis against which it will be for the referring court to determine whether the legislation goes beyond what is necessary in order to protect public order, public security and public safety.

93. First, Article 6(2) of Directive 2007/23 is drafted in such a way that it gives Member States a significant margin of discretion as regards the measures covered by that provision.

94. The scope of that provision is very wide, in that the objectives which may be pursued by the Member States are varied. The measures may be not only prohibitive measures but also restrictive measures and they may relate to the possession, the use and the sale of certain pyrotechnic products.

95. To my mind, that interpretation is reinforced by the fact that recital 10 of Directive 2007/23 establishes a causal relationship between, on the one hand, the fact that the use of pyrotechnic articles, and in particular of party fireworks, is governed by customs and cultural traditions that vary widely among the Member States and, on the other, the need to allow the Member States to adopt national measures in order to limit, for reasons of public order or public security, the use or sale to individuals of certain categories of party fireworks.

96. Second, the national legislation at issue, which does not impose an absolute prohibition on the sale of pyrotechnic articles, but makes their sale subject to the purchaser’s being in possession of a prior authorisation, is intended to restrict the sale of certain products to the consumer. In addition, that restrictive measure does not apply to all pyrotechnic products, but only to products containing a certain weight of pyrotechnic composition, which is dangerous.

97. Third, in the present context, less restrictive measures, such as registration following the sale of products containing a certain weight of pyrotechnic composition, are not, in my view, as effective for protecting the fundamental interests involved. Although such a formality makes it possible to determine the quantity of pyrotechnic composition acquired by a consumer, it does not make it possible to restrict such a quantity or, consequently, to combat effectively the harm to the fundamental interests which the Belgian Government invokes.

98. In the light of all of those considerations, I consider (i) that the Belgian legislation is not a technical regulation within the meaning of Directive 98/34 and (ii) that that legislation restricts, within the meaning of Article 6 of Directive 2007/23, the free movement of party fireworks, but that it was adopted on grounds of public order, public security and public safety and that it does not go beyond what is necessary for the purposes of protecting those interests, which it is for the referring court to ascertain.

IV. Conclusion

99. In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Rechtbank van eerste aanleg te Antwerpen (Court of First Instance, Antwerp, Belgium) as follows: (1) Article 20 of Directive 2007/23/EC of the European Parliament and of the Council 23 May 2007 on the placing on the market of pyrotechnic articles and Article 1(5) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market must be interpreted as meaning that Member States may lay down criminal penalties, provided that those penalties are effective, proportionate and dissuasive and that the national provisions do not have the effect of distorting the rules of that directive, which it is for the referring court to ascertain. (2) The double authorisation scheme at issue in the main proceedings for the storage of pyrotechnic articles is not incompatible with Article 10 of the Directive 2006/123, provided that the criteria applicable to the exercise of the competent authorities’ discretion are non-discriminatory, proportionate and objective, which it is for the referring court to ascertain. (3) The legislation making the sale of pyrotechnic articles containing more than 1 kg of pyrotechnic composition subject to the purchaser’s being in possession of an authorisation is not a technical regulation within the meaning of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 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/EC of the European Parliament and of the Council of 20 July 1998. That legislation restricts the free movement of party fireworks within the meaning of Article 6 of Directive 2007/23, but it is intended to protect public order, public security and public safety and does not go beyond what is necessary for the purposes of protecting those interests, which it is for the referring court to ascertain.

( 1 ) Original language: French.

( 2 ) Not relevant to the English translation.

( 3 ) OJ 2006 L 376, p. 36, ‘the Services Directive’.

( 4 ) OJ 2007 L 154, p. 1.

( 5 ) OJ 1997 L 10, p. 13.

( 6 ) OJ 2013 L 178, p. 27.

( 7 ) Belgisch Staatsblad, 9 June 1956, p. 3990.

( 8 ) Belgisch Staatsblad, 22 December 1958, p. 9075 (‘the Royal Decree’).

( 9 ) In that regard, I note that Directive 2013/29 was adopted on 12 June 2013, that, pursuant to Article 49 thereof, it entered into force on the day following that of its publication in the Official Journal of the European Union and that, according to Article 48, Directive 2007/23 was repealed with effect from 1 July 2015.

( 10 ) On the effective, proportionate and dissuasive nature of the penalties that Member States must adopt in accordance with EU law, see Hagueneau-Moizard, C., ‘Sanction nationale du droit communautaire: “Sanctions effectives, proportionnées et dissuasives”’, L’exécution du droit de l’Union, entre mécanismes communautaires et droits nationaux, Bruylant, Brussels, 2009, pp. 205 to 223.

( 11 ) See, in that regard, Declaration 43, annexed to the Final Act of the Treaty of Amsterdam, which states that ‘the administrative implementation of Community law shall in principle be the responsibility of the Member States in accordance with their constitutional arrangements’ (OJ 1997 C 340, p. 140). As Jean-Paul Jacqué has emphasised, ‘the implementation of [EU] law by the Member States is of crucial importance. In fact, the [EU] does not have the necessary powers for the direct implementation of [EU] law within the Member States’, Jacqué, J.-P., Droit institutionnel de l’Union européenne, 5th edition, Dalloz, Paris, 2009, p. 601.

( 12 ) According to Catherine Hagueneau-Moizard, ‘the real effect of [EU] law depends on its being applied by the States’, Hagueneau-Moizard, C., ‘Sanction nationale du droit communautaire: “Sanctions effectives, proportionnées et dissuasives”’, L’exécution du droit de l’Union, entre mécanismes communautaires et droits nationaux, Bruylant, Brussels, 2009, pp. 205 to 223, in particular p. 207. That obligation imposed on the Member States is reinforced, moreover, by the principle of sincere cooperation, since that principle requires the Member States to take all measures necessary to guarantee the application and effectiveness of EU legislation (see judgment of 21 September 1989, Commission v Greece (68/88, EU:C:1989:339, paragraphs 23 and 24)).

( 13 ) See, by way of example, Article 15 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).

( 14 ) A provision of a directive which provides that penalties are to be effective, proportionate and dissuasive is thus described by Catherine Hagueneau-Moizard as a ‘standard provision’, see Hagueneau-Moizard, C., ‘Sanction nationale du droit communautaire: “Sanctions effectives, proportionnées et dissuasives”’, L’exécution du droit de l’Union, entre mécanismes communautaires et droits nationaux, Bruylant, Brussels, 2009, pp. 205 to 223, in particular p. 210.

( 15 ) The term ‘penalty’ is understood here in a very broad sense in that it encompasses penalties of all types.

( 16 ) See, for example, Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (OJ 2014 L 173, p. 179), Article 1(1) of which provides: ‘This directive establishes minimum rules for criminal sanctions for insider dealing, for unlawful disclosure of inside information and for market manipulation to ensure the integrity of financial markets in the Union and to enhance investor protection and confidence in those markets.’

( 17 ) See, by analogy, judgment of 10 July 2008, Feryn (C‑54/07, EU:C:2008:397, paragraph 37).

( 18 ) In that regard, it is significant that the explicit recognition of the possibility for Member States to adopt criminal penalties for serious infringements was first provided for in Article 41 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 (OJ 2008 L 218, p. 30), and that since then a large number of directives setting out a ‘new approach to technical harmonisation and standardisation’ have contained provisions the wording of which is similar to that of Article 45 of Directive 2013/29, namely, in particular, Article 42 of Directive 2014/31/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of non-automatic weighing instruments (OJ 2014 L 96, p. 107), Article 46 of Directive 2014/53/EU of the European Parliament and of the Council of 16 April 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment and repealing Directive 1999/5/EC (OJ 2014 L 153, p. 62), or Article 47 of Directive 2014/68/EU of the European Parliament and of the Council of 15 May 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of pressure equipment (OJ 2014 L 189, p. 164).

( 19 ) See my Opinion in Essent Energie Productie (C‑91/13, EU:C:2014:312, point 35).

( 20 ) Recital 7 of Directive 2013/29 is even more explicit, in that it states that ‘safety during storage is governed by … Directive 96/82 … which sets out safety requirements for establishments where explosives, including pyrotechnic substances, are present’.

( 21 ) Judgment of 30 January 2018, X and Visser (C‑360/15 and C‑31/16, EU:C:2018:44, paragraphs 84 to 97).

( 22 ) In that regard, the national legislation at issue, which makes storage subject to authorisation, comes under that provision and does not constitute a requirement referred to in recital 9 of the Services Directive (see, to that effect, judgment of 30 January 2018, X and Visser (C‑360/15 and C‑31/16, EU:C:2018:44, paragraphs 113 to 123)). Furthermore, even if it should be maintained that all the elements of the main proceedings are confined to a single Member State, the Court has held that such a circumstance did not affect the applicability of Chapter III of the Services Directive (see, to that effect, judgment of 30 January 2018, X and Visser (C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 110)).

( 23 ) Directive of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18) (‘Directive 98/34’).

( 24 ) Judgment of 8 November 2007, Schwibbert (C‑20/05, EU:C:2007:652, paragraphs 38 to 42). See also judgment of 10 July 2014, Ivansson and Others (C‑307/13, EU:C:2014:2058, paragraph 48).

( 25 ) Judgment of 15 April 2010, Sandström (C‑433/05, EU:C:2010:184, paragraph 47).

( 26 ) Judgment of 1 February 2017, Município de Palmela (C‑144/16, EU:C:2017:76, paragraph 25 and the case-law cited).

( 27 ) Judgment of 10 July 2014, Ivansson and Others (C‑307/13, EU:C:2014:2058, paragraph 19 and the case-law cited).

( 28 ) Judgment of 27 October 2016, James Elliott Construction (C‑613/14, EU:C:2016:821, paragraph 69 and the case-law cited).

( 29 ) See, to that effect, judgments of 21 April 2005, Lindberg (C‑267/03, EU:C:2005:246, paragraph 87), and of 13 October 2016, M. and S. (C‑303/15, EU:C:2016:771, paragraphs 29 and 30).

( 30 ) Judgments of 21 April 2005, Lindberg (C‑267/03, EU:C:2005:246, paragraphs 76 and 77), and of 19 July 2012, Fortuna and Others (C‑213/11, C‑214/11 and C‑217/11, EU:C:2012:495, paragraphs 31 and 32).

( 31 ) That, to my mind, follows from the judgment of 27 October 2016, Commission v Germany (C‑220/15, EU:C:2016:815, paragraphs 35 to 47), and, in particular, from the interpretation of the scope of Article 2, point 2, and Article 6 of Directive 2007/23. I would also emphasise that, for that purpose, the Court rejected Germany’s argument that ‘Member States have competence to regulate all subsequent stages of [the] distribution [of pyrotechnic articles] until they are offered for retail sale to the final consumer’.

( 32 ) Judgment of 10 September 2014, Vilniaus energija (C‑423/13, EU:C:2014:2186, paragraph 39).

( 33 ) The concept of ‘public safety’ is seldom used in EU law. In addition, as the EU legislature made clear in recital 41 of the Services Directive, when it indicated that ‘the concept of public security includes issues of public safety’, that concept is not clearly distinguished from the concept of ‘public security’.

( 34 ) I consider that it must be ascertained that the national measure is appropriate for ensuring the attainment of the objective pursued and that it does not go beyond what is necessary in order to attain it, even though the requirement for proportionality is not strictly stated in Article 6 of Directive 2007/23. Having regard to the fact that the principle of proportionality, as a general principle of law, irrigates the whole of EU law and that measures adopted by Member States which restrict the freedoms of movement protected by the Treaty are subject to a review of proportionality, I believe that the measures adopted on the basis of Article 6(2) of Directive 2007/23 must, as exceptions, be subject to such review.

( 35 ) See, to that effect, my Opinion in Josemans (C‑137/09, EU:C:2010:433, point 116 and footnote 61).

( 36 ) The reasoning developed by Advocate General Mayras in his Opinion in van Duyn (41/74, not published, EU:C:1974:123, p. 1358), according to which ‘Member States have sole power, given the exceptions expressed in certain Community provisions …, to take measures for the safeguarding of public security within their territory and to decide the circumstances under which that security may be endangered’, so that the concept of public security ‘remains, at least for the present, national, and this conforms with reality inasmuch as the requirements of public security vary, in time and in space, from one State to another’, is in my view still wholly relevant.

( 37 ) See, by analogy, judgment of 31 January 2006, Commission v Spain (C‑503/03, EU:C:2006:74, paragraph 45).

( 38 ) See, by analogy, judgment of 4 December 1974, van Duyn (41/74, EU:C:1974:133, paragraph 18).

( 39 ) See, by analogy, judgment of 29 October 1998, Commission v Spain (C‑114/97, EU:C:1998:519, paragraph 46).

( 40 ) Opinion of Advocate General Bobek in Commission v Germany (C‑220/15, EU:C:2016:534, point 50).

( 41 ) See, to that effect, judgment of 23 October 2003, Schönheit and Becker (C‑4/02 and C‑5/02, EU:C:2003:583, paragraph 82).

( 42 ) See judgment of 13 April 2010, Bressol and Others (C‑73/08, EU:C:2010:181, paragraph 65 and the case-law cited).