CELEX: 62005CC0142
Language: en
Date: 2006-12-14 00:00:00
Title: Opinion of Advocate General Kokott delivered on 14 December 2006. # Åklagaren v Percy Mickelsson and Joakim Roos. # Reference for a preliminary ruling: Luleå tingsrätt - Sweden. # Directive 94/25/EC - Approximation of laws - Recreational craft - Prohibition of using personal watercraft on waters other than general navigable waterways - Articles 28 EC and 30 EC - Measures having equivalent effect - Access to the market - Impediment - Protection of the environment - Proportionality. # Case C-142/05.

OPINION OF ADVOCATE GENERAL
      KOKOTT
      delivered on 14 December 2006 1(1)
      
      Case C-142/05
      Åklagaren
      v
      Percy Mickelsson
      and
      Joakim Roos
      
      
      (Reference for a preliminary ruling from the Luleå Tingsrätt (Sweden))
      
      (Approximation of laws – Recreational craft – Rules on the use of personal watercraft – Directive 94/25/EC – Article 28 EC – Measure having equivalent effect)I –  Introduction
      1.        The present reference for a preliminary ruling raises the question whether Articles 28 EC and 30 EC or Directive 94/25/EC
         of the European Parliament and of the Council of 16 June 1994 on the approximation of the laws, regulations and administrative
         provisions of the Member States relating to recreational craft (2) (hereinafter: the Recreational Craft Directive) preclude Swedish rules on the use of personal watercraft. There are therefore
         grounds to examine the extent to which national provisions by which the use of products is restricted should be assessed on
         the basis of Article 28 EC.
      
      2.        The main proceedings concern the criminal liability of two defendants who are accused of having infringed the Swedish jet-ski
         regulations (3) (hereinafter: the Swedish regulations). Under those regulations, the use of personal watercraft other than on general navigable
         waterways and on waters on which the county administrative board has permitted the use of personal watercraft is prohibited
         and punishable by a fine.
      
      3.        This reference for a preliminary ruling also gives cause to interpret 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 (4) (hereinafter: the Information Directive).
      
      II –  Legal framework
      A –    Community law
      4.        The scope of the Recreational Craft Directive initially covered only recreational craft. The scope of the directive was extended
         to include personal watercraft by Directive 2003/44/EC. 
      
      5.        Article 2(2) of the Recreational Craft Directive provides:
      
      ‘The provisions of this Directive shall 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 this does not require modification to craft conforming to this Directive.’
      
      6.        Article 4(1) of the Recreational Craft Directive states:
      
      ‘Member States shall not prohibit, restrict or impede the placing on the market and/or putting into service in their territory
         of products referred to in Article 1(1) bearing the CE marking referred to in Annex IV, which indicates their conformity with
         all the provisions of this Directive, including the conformity procedures set out in Chapter II’.
      
      7.        Article 1 of the Information Directive provides:
      
      ‘For the purposes of this Directive, the following meanings shall apply:
      …
      4.      “other requirements”, a requirement, other than a technical specification, imposed on a product for the purpose of protecting,
         in particular, consumers or the environment, and which affects its life cycle after it has been placed on the market, such
         as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the composition or nature
         of the product or its marketing;
      
      …
      11.      “technical regulation”, technical specifications and other requirements or rules on services, including the relevant administrative
         provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service,
         establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative
         provisions of Member States, except those provided for in Article 10, 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. 
      
      …’
      8.        The first subparagraph of Article 8(1) of the Information Directive provides that, subject to Article 10, Member States must
         immediately communicate to the Commission any draft technical regulation. 
      
      9.        Under the third subparagraph of Article 8(1) of the Information Directive, Member States must communicate the draft again
         under the above conditions if they make changes to the draft that have the effect of significantly altering its scope, shortening
         the timetable originally envisaged for implementation, adding specifications or requirements, or making the latter more restrictive.
      
      10.      Under the third subparagraph of Article 9(2), the Member State concerned must report to the Commission on the action it proposes
         to take on detailed opinions. The Commission shall comment on this reaction.
      
      11.      Article 10(1) provides for various situations where the obligation to notify does not apply.
      
      B –    National law
      12.      The Swedish jet-ski regulations (1993:1053) entered into force in the version applicable in the present case on 15 July 2004.
         
      
      13.      For the purposes of the Swedish regulations a personal watercraft is a craft of less than four metres in length which has
         an internal combustion engine with a water jet unit as its primary source of propulsion and is designed to be operated by
         a person or persons sitting, standing or kneeling on, rather than within the confines of, the hull.
      
      14.      Under Paragraph 2 of the regulations, personal watercraft may be used only on general navigable waterways and on such waters
         as defined in Paragraph 3(1).
      
      15.      Paragraph 3 of the regulations provides as follows:
      
      ‘The länsstyrelsen may issue rules regarding the waters in the county, other than general navigable waterways, on which personal
         watercraft may be used. Such rules are in any event to be issued for
      
      1.      waters which are subject to such a great amount of other human activity that future noise and other disturbances from the
         use of personal watercraft cannot be regarded as constituting a significant nuisance for the public or the environment,
      
      2.      waters other than in the vicinity of residential or holiday home areas which are of little value in the protection of the
         natural and cultural environment, biological diversity, outdoor life, recreational or professional fishing, and
      
      3.      other waters where the use of personal watercraft does not cause a nuisance to the public by way of noise or other disturbances
         or cause a significant risk of injury or disturbance to flora or fauna or the spreading of infectious diseases.
      
      The länsstyrelsen may also issue rules regarding the designation of general navigable waterways for the use of personal watercraft,
         if necessary to avoid the nuisances and risks of injury referred to in point 3 of the first subparagraph, and regarding travel
         to and from general navigable waterways.’
      
      16.      Paragraph 5 of the regulations provides that anyone who drives a personal watercraft in violation of Paragraphs 2, 3 or rules
         issued under Paragraph 3 shall be subject to a fine.
      
      17.      According to the referring court, the Sjöfartsverket (National Maritime Administration) decides what are to be regarded as
         general navigable waterways and publishes this in its statute book. General navigable waterways are designated on maritime
         charts. A general navigable waterway may be established if the waterway is of material importance for general traffic, if
         it is of material importance for the fishing industry or if it is of material importance for recreational craft traffic and
         is necessary for the safety of the waterway.
      
      III –  Facts and main proceedings
      18.      A Swedish Public Prosecutor has brought proceedings before the Luleå Tingsrätt (Luleå District Court) (5) (Sweden) against Percy Mickelsson and Joakim Roos (hereinafter: the defendants in the main proceedings). They are accused
         of having driven personal watercraft on 8 August 2004 on waters on which personal watercraft may not be used under the Swedish
         regulations. It is common ground that those waters are neither general navigable waterways within the meaning of the Swedish
         regulations, on which personal watercraft may be driven, nor had the competent county administrative board permitted the use
         of personal watercraft on those waters pursuant to Article 3 of the Swedish regulations. 
      
      19.      In their defence, the defendants in the main proceedings essentially claim that the Swedish regulations are contrary to Community
         law since they infringe Articles 28 and 30 EC, the Recreational Craft Directive and the Information Directive.
      
      IV –  Reference for a preliminary ruling and proceedings before the Court of Justice
      20.      By order of 21 March 2005, the Luleå Tingsrätt stayed its proceedings and made reference to the Court of Justice for a preliminary
         ruling on the following questions:
      
      1.(a) Do Articles 28 EC to 30 EC preclude national provisions, such as those in the Swedish jet-ski regulations, prohibiting the
         use of personal watercraft other than on a general navigable waterway or waters in respect of which the local authority has
         issued rules permitting their use?
      
      1.(b) In the alternative, do Articles 28 EC to 30 EC prevent a Member State from applying provisions of that kind in such a way
         as to prohibit the use of personal watercraft also on waters which have not yet been the subject of an investigation by the
         local authority of whether or not rules permitting their use in the area are to be issued?
      
      2.      Does Directive 2003/44/EC of the European Parliament and of the Council of 16 June 2003 amending Directive 94/25/EC on the
         approximation of the laws, regulations and administrative provisions of the Member States relating to recreational craft preclude
         such national provisions prohibiting the use of personal watercraft as set out above?
      
      21.      In the proceedings before the Court, written and oral observations were submitted by the defendants in the main proceedings,
         the Swedish, Norwegian and Austrian Governments and the Commission. The German Government submitted written observations.
      
      V –  Assessment
      22.      The questions asked by the referring court are to be answered in reverse order; it is necessary first to examine the legislative
         content of the Recreational Craft Directive. If it transpires that the directive contains exhaustive rules on the use of personal
         watercraft, it would not be possible, within their scope and in the context of the examination of Article 28 EC, to justify
         unilateral national measures under Article 30 EC. (6)
      
      A –    Interpretation of the Recreational Craft Directive
      1.      Application in time of the Recreational Craft Directive
      23.      The defendants in the main proceedings derive from the directive a right to unrestricted use of personal watercraft and therefore
         consider the conflicting Swedish rules to be inapplicable. However, it must be examined whether the directive is applicable
         at all as regards time.
      
      24.      The Recreational Craft Directive has applied to personal watercraft only since it was amended by Directive 2003/44. Under
         Article 3(1) of Directive 2003/44, the directive had to be implemented by 30 June 2004, although the implementing rules did
         not have to be applied by the Member States until 1 January 2005 (hereinafter: the application period). The offences which
         are the subject-matter of the main proceedings occurred on 8 August 2004, after the end of the implementation period, but
         before the end of the application period. If, as is to be assumed, national law takes the time when the offence was committed
         as the basis for assessing criminal liability, the problem therefore arises that the application period for the directive
         had not yet ended at that time. It must be considered whether this prevents the defendants relying on the directive.
      
      25.      A directive is not directly applicable before the end of the implementation period. (7) This must also be the case for the course of the application period. In order to substantiate the applicability in time of
         the directive, the defendants rely on the Court’s case-law according to which the Member States may not take any measures
         during the implementation period which are liable seriously to compromise the result prescribed by the directive. (8) However, the direct applicability of the directive does not follow from this either. (9)
      
      26.      Nevertheless, it follows from the principle of the retroactive application of the more lenient penalty, (10) as recognised in Community law, that a defendant may claim impunity from prosecution or reduced criminal liability in respect
         of his act under a directive even where the implementation or application period for the directive had ended at the time of
         the conviction, but not at the time the offence was committed. The principle of the retroactive application of the more lenient
         penalty is based on the idea that a defendant should not be convicted for behaviour that is no longer punishable at the time
         of the conviction based on the modified view of the legislature. (11) If a directive provision therefore precludes criminal liability at the time of the conviction, the defendant must be able
         to rely on these assessments by the Community legislature, which regards the conduct in question as exempt from punishment,
         even if the application or implementation period for the directive had not yet ended at the time of the offence. Nor does
         this constitute a departure from the principle that a directive provision cannot be directly applicable during its implementation
         or application period, since the defendants benefit from the more favourable assessments under the directive retroactively
         only at the time of the conviction.
      
      27.      Against this background, it must therefore be examined below whether Directive 94/25 precludes national rules prohibiting
         the use of personal watercraft in principle other than on general navigable waterways, for the purpose of protection of the
         environment, and, moreover, permits such use only on waters which the county administrative boards have designated for the
         use of personal watercraft.
      
      2.      Legislative content of the Recreational Craft Directive
      28.      In the view of the governments which have submitted observations, the Recreational Craft Directive governs only the technical
         requirements for personal watercraft and not their use. It is not therefore possible to infer from it any prohibition of national
         restrictions on the use of personal watercraft either. The defendants in the main proceedings, on the other hand, understand
         the Recreational Craft Directive as precluding any restriction on the use of personal watercraft if they satisfy the technical
         requirements laid down in the Recreational Craft Directive. They base their arguments on Article 4(1) of the directive. Under
         that provision Member States may not prohibit, restrict or impede the placing on the market and/or putting into service of
         personal watercraft which meet the requirements laid down in the directive. The question therefore arises whether national
         rules which limit the possibilities for using personal watercraft constitute an unlawful restriction of putting into service
         within the meaning of Article 4(1).
      
      29.      It is settled case-law that, in interpreting a provision of Community law, its wording, context and objectives must all be
         taken into account. (12)
      
      30.      The natural meaning of the expression ‘putting into service’ suggests that it does not cover any use behaviour, since the
         broad range of uses of equipment takes place after it is simply put into service and must be distinguished from it. In particular,
         in general parlance rules concerning putting into service are understood to mean provisions which relate to the requirements
         for the equipment to be put into service and thus deal with its characteristics, whilst rules on use are rules which concern
         the use of equipment which has already been put into service, i.e. the way in which it is used. Provisions on putting into
         service and on use therefore have clearly different regulatory objects. In so far as the Community legislature employs the
         specific term ‘putting into service’ in Article 4(1) of the directive, this precludes a reading under which national restrictions
         on use are also covered by the prohibition. 
      
      31.      This conclusion is confirmed by Article 2(2) of the Recreational Craft Directive, to which the governments making submissions
         rightly refer. Article 2(2) makes clear that the directive does 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 this does not require modification to craft conforming to this
         directive’.
      
      32.      Aside from simple traffic rules, ‘provisions concerning navigation’ undoubtedly also mean restrictions on use, since in navigation
         – as in road transport – different forms of restriction going as far as the exclusion of individual means of transport are
         conventional means of control. They therefore cover both rules on the way watercraft are used and rules on where they are
         used. Even though Article 2(2) mentions only provisions concerning navigation on ‘certain’ waters in this regard, the provision
         make clear that rules on use are not harmonised by the directive.
      
      33.       A teleological interpretation also confirms that only technical requirements and not use are the regulatory object of the
         Recreational Craft Directive.
      
      34.      Thus, the directive’s 12th recital expressly states that the directive does not contain any provisions directed towards limiting
         the use of the recreational craft after it has been put into service. It can be seen from other recitals that the directive
         merely seeks to remove barriers to trade resulting from different technical requirements through the harmonisation of technical
         requirements for recreational craft and personal watercraft. (13)
      
      35.      The historical background also confirms that the Recreational Craft Directive does not seek to lay down rules on the use of
         personal watercraft, but only to harmonise the technical requirements for personal watercraft. (14) In the Council’s Common Position on the amendment of Directive 94/25 it is stated that after the amendment of the directive
         the possibilities for Member States to apply stricter standards regarding the use of certain types of boats are being maintained. (15) Special restrictions on the use are subject to national legislation following the principle of subsidiarity. (16)
      
      36.      A comprehensive interpretation of the Recreational Craft Directive therefore shows that the directive sought to harmonise
         only the technical requirements, but not the use of recreational craft and personal watercraft. (17)
      
      3.      Interim conclusion
      37.      Therefore, to summarise:
      
      The Recreational Craft Directive does not preclude national provisions prohibiting the use of personal watercraft for the
         purpose of protection of the environment provided they do not infringe the provisions of the Treaty, in particular Article
         28 EC. It must therefore be examined below whether Articles 28 EC and 30 EC preclude national rules like the Swedish regulations.
      
      B –    Interpretation of Articles 28 EC and 30 EC
      1.      Article 28 EC – Measure having equivalent effect 
      38.      Article 28 EC prohibits quantitative restrictions on imports and all measures having equivalent effect between Member States.
      
      39.      In the view of the Commission, restrictions on use as contained in the Swedish regulations constitute measures having equivalent
         effect.
      
      a)      Dassonville formula
      40.      According to the definition developed by the Court in Dassonville all measures which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to
         be considered as measures having an effect equivalent to quantitative restrictions. (18)
      
      41.      According to the arguments put forward by the defendants in the main proceedings – which are, however, disputed by the Swedish
         Government – the restriction on the use of personal watercraft introduced by the new Swedish regulations would lead to a fall
         in personal watercraft sales of more than 90 per cent. Accordingly, the Swedish regulations would impair trade between Member
         States directly and actually. In any case, however, according to the Dassonville formula a potential impairment would be sufficient for classification as a measure having equivalent effect. At any rate it is not inconceivable
         that national rules restricting the number of waters on which personal watercraft may be used have a bearing on purchasers’
         interest in that product and thus lead to a decline in sales and therefore also to a decline in sales of products from other
         Member States. Such national rules are therefore at least potentially capable of impairing trade between Member States. Accordingly,
         the Swedish regulations would constitute a measure having equivalent effect.
      
      b)      Application of the Keck criteria to arrangements for use
      
      42.      However, because the Dassonville formula is so broad, ultimately any national rules restricting the use of a product may be classified as a measure having
         equivalent effect and need to be justified.
      
      43.      The question therefore arises which the Court also raised – albeit in another connection – in its judgment in Keck, which is whether any measure which potentially also affects the volume of sales of products from other Member States can
         be characterised as a measure having equivalent effect. (19)
      
      44.      It becomes clear that this question regarding arrangements for use, that is to say national rules governing how and where
         products may be used, is particularly pressing when we consider a few examples.
      
      45.      For example, a prohibition on driving cross-country vehicles off-road in forests or speed limits on motorways would also constitute
         a measure having equivalent effect. In the case of these restrictions on use too, it could be argued that they possibly deter
         people from purchasing a cross-country vehicle or a particularly fast car because they could not use them as they wish and
         the restriction on use thus constitutes a potential hindrance for intra-Community trade.
      
      46.      With regard to the delimitation of the broad scope of Article 28 EC when the Dassonville formula is applied, the Court has attempted from time to time to exclude national measures whose effects on trade are too
         uncertain and too indirect from the scope of Article 28 EC. (20) However, an argument against these criteria is that they are difficult to clarify and thus do not contribute to legal certainty.
         
      
      47.      Instead I suggest excluding arrangements for use in principle from the scope of Article 28 EC, in the same way as selling
         arrangements, where the requirement set out by the Court in Keck and Mithouard is met.
      
      48.      In its judgment in Keck and Mithouard the Court found that there is an increasing tendency of traders to invoke Article 28 EC as a means of challenging any rules
         whose effect is to limit their commercial freedom even where such rules are not aimed at products from other Member States. (21) In the context of arrangements for use, ultimately individuals may even invoke Article 28 EC as a means of challenging national
         rules whose effect is merely to limit their general freedom of action.
      
      49.      With regard to selling arrangements the Court ruled in Keck and Mithouard that the application to products from other Member States of such national provisions is not such as to hinder directly or
         indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment, so long as those provisions apply to all relevant traders operating within the national territory and so long as
         they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. (22) The ‘Keck exception’ does not cover product-related rules, which relate to the characteristics of products. (23) The judgment in Keck and Mithouard concerned the prohibition on selling goods below the purchase price. Following that judgment the Court has for example classified
         prohibitions on Sunday trading and the prohibition on anyone other than specially authorised retailers selling tobacco as
         provisions on selling arrangements. (24)
      
      50.      The consequence of this case-law is that national rules which satisfy the selling arrangement criterion do not fall within
         the scope of Article 28 EC with the result that they are permissible under Community law without the need for the Member State
         to justify them.
      
      51.      Against this background the present case now gives grounds to consider whether arrangements for use should not, by analogy
         with the Court’s ruling in Keck, be excluded from the scope of Article 28 EC.
      
      52.      If we consider the characteristics of arrangements for use and selling arrangements, it is clear that they are comparable
         in terms of the nature and the intensity of their effects on trade in goods.
      
      53.      Selling arrangements apply in principle only after a product has been imported. Furthermore, they indirectly affect the marketing
         of a product through consumers, for example because they cannot buy the product on certain days of the week or advertising
         for a product is subject to restrictions. Arrangements for use also affect the marketing of a product only indirectly through
         their effects on the purchasing behaviour of consumers. 
      
      54.      National legislation which governs selling arrangements is not normally designed to regulate trade in goods between Member
         States. (25) A national legislature does not in general seek to regulate trade between Member States with arrangements for use either.
      
      55.      Against this background, it therefore appears logical to extend the Court’s Keck case-law to arrangements for use and thus to exclude such arrangements from the scope of Article 28 EC.
      
      56.      Consequently, a national provision restricting or prohibiting certain arrangements for use does not come under the prohibition
         laid down by Article 28 EC, so long as it is not product-related, so long as it applies to all relevant traders operating
         within the national territory and so long as it affects in the same manner, in law and in fact, the marketing of domestic
         products and of those from other Member States.
      
      c)      Application of the Keck criteria to the present case
      
      57.      The Swedish regulations are not product-related since they do not make use dependent in particular on personal watercraft
         meeting technical requirements other than those harmonised in the Recreational Craft Directive. The restriction on use does
         not therefore require any modifications to the personal watercraft themselves. 
      
      58.      The Swedish regulations also apply to all relevant traders operating within the national territory, since they do not discriminate
         according to the origin of the products in question.
      
      59.      However, it is uncertain whether the Swedish regulations affect in the same manner, in law and in fact, the marketing of domestic
         products and of those from other Member States. At first sight, this requirement is also met. A restriction on use may make
         a product less attractive to consumers and thus impair the marketing of the product. However, as a rule domestic products
         and foreign products are affected in the same manner by that consequence.
      
      60.      Nevertheless, it became apparent in the oral procedure that Sweden does not produce personal watercraft domestically. It must
         therefore be considered how the fact that there is no domestic production affects the examination of the Keck criterion, according to which products from other Member States and domestic products must be affected in the same manner
         by the national rules. 
      
      61.               In connection with a selling arrangement, the Court has ruled that the existence of domestic production cannot be relevant. (26) As grounds the Court states that such a purely fortuitous factual circumstance may, moreover, change with the passage of
         time; if it were the relevant factor, this would have the illogical consequence that the same legislation would fall under
         Article 28 EC in certain Member States but not in other Member States, depending on whether or not there was domestic production.
         The situation would be different only if the national rules at issue protected domestic products which were similar to products
         covered by the contested rule or which were in competition with those products. (27)
      
      62.      Those principles can be applied by analogy to arrangements for use. It must therefore be examined whether the national measure
         protects domestic products which are in competition in the sense that it affects products from other Member States more than competing
         domestic products.
      
      63.      Motorboats are possibly products which are in competition with personal watercraft. In the absence of sufficient factual information
         it is not possible to assess in the present case whether motorboats are in competition with personal watercraft and whether
         personal watercraft are more affected by the Swedish rules than the comparable domestic products; this is a question for the
         national court. If the referring court answers these questions in the negative, the Swedish rules would not fall within the
         scope of Article 28 EC for that reason. If, on the other hand, the questions are to be answered in the affirmative, the referring
         court would then be required to examine whether the unequal treatment could be justified on grounds of protection of the environment. (28) However, there could be no justification under the second sentence of Article 30 EC if the Swedish rules proved to be a protectionist
         measure or arbitrary discrimination. (29)
      
      64.      However, it is possibly not actually necessary, for the purposes of assessing the present case, to examine whether there are
         domestic products which are in competition with personal watercraft and whether those comparable products are less affected
         by the Swedish rules. 
      
      65.      In its judgment in Keck the Court held that national selling arrangements which satisfy the Keck criteria are not by nature such as to prevent their access to the market or to impede access any more than they impede the access of domestic products and therefore fall
         outside the scope of Article 28 EC. (30)
      
      66.      It may be concluded from this finding that, conversely, a national measure restricting or prohibiting an arrangement for use
         is not excluded from the scope of Article 28 EC if it prevents access to the market for the product in question. (31)
      
      67.      In this respect it is not only rules which result in complete exclusion, such as a general prohibition on using a certain
         product, that are to be regarded as preventing access to the market. A situation where only a marginal possibility for using
         a product remains because of a particularly restrictive rule on use is to be regarded as preventing access to the market.
         
      
      68.               It is for the national court to decide whether national rules prevent access to the market. In the present case there are
         several reasons to suggest that the Swedish rules prevent access to the market for personal watercraft. The provisions of
         the Swedish regulations lay down a prohibition on the use of personal watercraft with the sole exception of use on general
         navigable waterways – at least for the period until the county administrative boards have designated other waters for the
         use of personal watercraft.
      
      69.      In determining whether the Swedish rules amount to general prohibition on use in the transitional period until other waters
         have been designated by the county administrative boards the crucial question is whether permission to use personal watercraft
         on general navigable waterways is given more than a merely marginal importance which does not affect the character of the
         Swedish regulations as a general prohibition on use. 
      
      70.      The Swedish Government has argued that there are roughly 300 such general navigable waterways, although it was not able to
         indicate the surface covered by the general navigable waterways. On the other hand, the statement by the defendants in the
         main proceedings during the oral procedure gave the impression that despite their number general navigable waterways offer
         only marginal possibilities for using personal watercraft. They claimed that such waterways simply do not exist in much of
         the country, they are not interconnected, are difficult to reach and, moreover, are often not suitable for the use of personal
         watercraft on safety grounds, since they are, for example, frequently used by heavy tankers or are a long way from the coast.
         The Commission also takes the view that the rules amount to a complete prohibition on use. The exclusion of general navigable
         waterways from the prohibition on using personal watercraft does not therefore appear to affect the character of the Swedish
         regulations as a fundamental prohibition on use during the transitional period until other waters have been designated by
         the county administrative boards. It is irrelevant that the prevention of access to the market would be only temporary since
         access would be prevented not only for a negligibly short period.
      
      71.      For the purposes of the examination it will therefore be assumed hereinafter that the Swedish rules constitute a barrier to
         access to the market and that they should not therefore be excluded from the scope of Article 28 EC. In order to be compatible
         with Community law they must therefore be justified under Article 30 EC or by imperative requirements in the general interest.
      
      72.      If the referring court finds that the Swedish regulations are not to be classified as a barrier to access to the market, it
         would have to undertake the examination described above, but put aside, that is to say it would have to investigate whether
         there are domestic products which are in competition with personal watercraft which are less affected in law or in fact. (32)
      
      2.      Justification
      73.      According to the Cassis-de-Dijon case-law, national measures having equivalent effect which apply without distinction may be justified where they are necessary
         in order to satisfy imperative requirements. (33) Since the Swedish rules do not discriminate according to the origin of the product, they are applicable without distinction
         to domestic products and to products from other Member States. (34) The Swedish Government relies on protection of the environment in order to justify its regulations on the use of personal
         watercraft. This is recognised as an imperative requirement in case-law. (35) The Court has also repeatedly stressed that protection of the environment constitutes one of the essential objectives of
         the Community. (36)
      
      74.      The national rules must also comply with the principle of proportionality, that is to say they must be appropriate, necessary
         and suitable for the purpose of attaining the desired objective. (37) This means in particular that if a Member State has a choice between equally appropriate measures it should choose the means
         which least restricts the free movement of goods. (38)
      
      75.      On account of their exhaust and noise emissions and because they can be ridden in areas where there are breeding and spawning
         grounds, personal watercraft can cause damage to the environment. Against the background of the various negative effects of
         personal watercraft on the environment, to which all the governments which have made submission in the proceedings have referred,
         national rules which limit the use of personal watercraft are undoubtedly appropriate for the purpose of protecting the environment.
      
      76.      However, it must still be considered whether national rules like the Swedish regulations are necessary, i.e. whether there is no equally appropriate but less onerous means of protecting the environment.
      
      77.      As far as necessity is concerned, the question arises first of all whether rules which differentiate according to the way
         in which the personal watercraft in question is used would constitute a less drastic, but equally appropriate, means. The
         defendants in the main proceedings have argued that personal watercraft have different effects on the environment depending
         on the way they are used. Thus, only the use of personal watercraft as sports vehicles or toys, with the characteristic circuit
         driving and fast acceleration, is detrimental to the environment, whereas the use of personal watercraft as a means of transport
         would not have any greater effects on the environment in terms of noise and exhaust emissions than small motor boats – indeed
         it would even have lesser effects as a result of lower fuel consumption. 
      
      78.      Even assuming that these statements are correct, (39) however, the Swedish rules could not be classified as disproportionate for that reason, since compliance with rules that
         differentiate according to the driving method would, as the Swedish Government has rightly pointed out, be more difficult
         to monitor and to implement than rules which prohibit use on certain waters in principle, and are not therefore equally appropriate.
      
      79.      However, the principle of proportionality could possibly require national rules on the use of personal watercraft to distinguish
         between different types of personal watercraft. The defendants in the main proceedings have argued that a distinction should
         be drawn between different kinds of personal watercraft. Only jet-skis would be used for play and sport and are characterised
         by driving methods which are harmful to the environment. Personal watercraft, on the other hand, would merely be used as a
         means of transport and are even less damaging to the environment than motorboats, which are also to be taken into consideration.
         The Court does not have all the information on the properties and effects of different kinds of personal watercraft to give
         a definitive answer to the question of proportionality from this point of view. Nor was it possible to infer from the statements
         made by the other parties to the proceedings before the Court that such a differentiation could be made with regard to effects
         on the environment; rather, they took the view that all personal watercraft had identical characteristics. If, however, the
         referring court is able to confirm that different kinds of personal watercraft also have different effects on the environment
         in terms of intensity, it would have to take into account, when examining the question of proportionality, the extent to which
         a proportionate measure on the use of personal watercraft can include such a differentiation on grounds of protection of the
         environment.
      
      80.      In a situation like the present case, nor does the principle of proportionality preclude the criminalisation of a prohibition
         which may be necessary in order to reinforce the prohibition, in particular because the penalty is only a fine.
      
      81.      The Swedish regulations, aside from general navigable waterways, chose the form of a fundamental prohibition subject to authorisation
         and not the less drastic form of authorisation subject to prohibition. General authorisation subject to prohibition as a rule
         constitutes the less drastic measure. Nevertheless, the principle of proportionality does not automatically require that approach
         to be taken. Authorisation subject to prohibition would have to be equally appropriate for the purpose of protecting the environment.
         In assessing this question, particular attention should be paid to the specific regional features of each Member State. In
         this regard, the Swedish Government has argued that Sweden is characterised by a very large number of lakes and a long coast
         with sensitive flora and fauna which require protection. Against this background, Sweden’s argument that in view of the specific
         geographical features the approach of authorisation subject to prohibition is not practicable and as such not equally appropriate
         as the opposite model of prohibition subject to authorisation is persuasive.
      
      82.      However, problems appear to be raised by the proportionality of rules like the Swedish regulations in view of the fact that
         during the period until a decision is taken by the county administrative boards the use of personal watercraft is generally
         prohibited other than on general navigable waterways. 
      
      83.      This means that until a decision is taken by the county administrative boards riding is also prohibited on waters in respect
         of which the protection of the environment may not actually require this. The Swedish rules themselves assume that aside from
         general navigable waterways there are waters on which protection of the environment would permit personal watercraft to be
         used. 
      
      84.      However, if it were required that until other waters are designated by the county administrative boards personal watercraft
         may be ridden, this could mean that the flora and fauna of many waters which are sensitive to encroachments by personal watercraft
         would be destroyed irretrievably. Such rules would not therefore be as appropriate for the protection of the environment as
         the approach chosen.
      
      85.      In order to satisfy the principle of proportionality, however, as the Commission has rightly pointed out, rules like the contested
         regulations must include a deadline by which the county administrative boards must have complied with their obligation to
         designate other waters. As Norway has rightly stated, the length of the deadline must take account of the fact that the county
         administrative boards require a certain time to obtain the information that they require in order to decide on which waters
         the use of personal watercraft has no detrimental effect. On the other hand, the legal certainty of traders, such as importers
         of personal watercraft, requires that the date by which the county administrative boards must have taken their decisions be
         fixed in order to allow those traders, amongst other things, to plan their business. As the Swedish Government acknowledged
         in the oral procedure, by the time of the oral procedure only 15 of 21 counties had adopted relevant provisions. National
         rules which do not provide by which date a very far-reaching prohibition of personal watercraft remains therefore breach the
         principle of proportionality.
      
      86.      If use of a certain category of personal watercraft were permissible without any great restriction before the Swedish regulations
         were adopted – according to the submissions made by the defendants in the main proceedings this seems to have been the case
         for personal watercraft –, the principle of proportionality could also require that a transitional period should have been
         introduced for them. (40)
      
      3.      Interim conclusion
      87.      Thus, to summarise:
      
      National legislation which lays down arrangements for use for products does not constitute a measure having equivalent effect
         within the meaning of Article 28 EC so long as it applies to all relevant traders operating within the national territory
         and so long as it affects in the same manner, in law and in fact, the marketing of domestic products and of those from other
         Member States, and is not product-related. However, prohibitions on use or national legislation which permit only a marginal
         use for a product, in so far as they (virtually) prevent access to the market for the product, constitute measures having
         equivalent effect which are prohibited under Article 28 EC, unless they are justified under Article 30 EC or by an imperative
         requirement.
      
      National rules which also lay down a prohibition on using personal watercraft in waters in respect of which the county administrative
         boards have not yet taken any decision on whether protection of the environment requires a prohibition on use there are disproportionate
         and therefore not justified unless they include a reasonable deadline by which the county administrative boards must have
         taken the relevant decisions.
      
      C –    Interpretation of the Information Directive
      88.      Finally, it must be considered what requirements the Information Directive imposes for the adoption of the Swedish regulations.
      
      89.      The referring court has not explicitly asked the Court of Justice for an interpretation of the Information Directive, but
         it nevertheless appears appropriate, on the basis of the parties’ submissions in particular, to give the referring court the
         information necessary in order to examine whether there is a breach of the obligation to notify under the Information Directive.
      
      90.      With regard to the subject-matter of references for preliminary rulings, the Court has ruled that the right to determine the
         questions to be brought before the Court devolves upon the national court alone and the parties may not change the tenor of
         the questions. (41) On the other hand, as the Court has consistently held, in the procedure laid down by Article 234 EC for cooperation between
         national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be
         of use to it and enable it to determine the case before it. (42)
      
      91.      An answer which will be of use in the present reference for a preliminary ruling must also include a discussion of the implications
         of the Information Directive for the Swedish regulations, since according to the Court’s case-law the infringement of the
         obligation to notify laid down in the Information Directive renders the unnotified provision inapplicable and therefore unenforceable
         against individuals. (43)
      
      92.      If the obligation to notify laid down in the Information Directive was breached in the adoption of the Swedish regulations,
         the referring court should not therefore rely on the Swedish regulations as grounds for the criminal liability of the defendants
         in the main proceedings. An answer which will be of use to the referring court must also therefore consider this aspect of
         the conformity of the Swedish regulations with Community law.
      
      93.      Furthermore, not only have the parties raised the aspect of the Information Directive, but the referring court itself also
         considered the subject in its order for reference. In that order it stated that the defendants in the main proceedings had
         complained that the Swedish Government had failed to notify the Commission of the Swedish regulations in the correct manner
         and therefore they were invalid and were not to be applied.
      
      94.      Under Article 8(1) of the Information Directive Member States must immediately communicate to the Commission any draft technical
         regulation. Under Article 1 a ‘technical regulation’ for the purposes of the Information Directive includes a ‘technical specification’,
         ‘other requirement’ or a law, regulation or administrative provision prohibiting inter alia the use of a product.
      
      95.      Rules like the Swedish regulations do not come under the first-mentioned category of ‘technical specifications’. For that
         purpose they would have to lay down the characteristics required of a product in accordance with Article 1(3) of the Information
         Directive. (44) However, the Swedish regulations do not lay down any characteristics required of personal watercraft.
      
      96.      However, the Swedish regulations may be either an ‘other requirement’ or a ‘technical regulation’ within the meaning of the
         Information Directive.
      
      97.      On the one hand, they may be an ‘other requirement’ within the meaning of Article 1(4) of the Information Directive since
         in that article ‘other requirements’ are defined as a requirement imposed on a product for the purpose of protecting, in particular,
         the environment, and which affects its life cycle after it has been placed on the market, such as conditions for its use,
         where such conditions can significantly influence the composition or nature of the product or its marketing. 
      
      98.      However, it might also be possible to classify the prohibition on the use of personal watercraft contained in the Swedish
         regulations as a ‘technical regulation’ within the meaning of Article 1(11) of the Information Directive. Under that provision,
         ‘technical regulations’ are inter alia laws of Member States prohibiting the use of a product.
      
      99.      The Court has stated that the classification of a national measure in one or the other of the categories depends on the scope
         of the prohibition laid down by that measure. (45) The prohibition on use laid down in Article 1(11) must be a measure whose scope goes well beyond a limitation to certain
         possible uses of the product and must thus not be confined to a mere restriction of its use; it is therefore 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. (46)
      
      100. If the Swedish regulations amount to a de facto general prohibition on the use of personal watercraft, at least for the period
         until the county administrative boards have designated other waters for the use of personal watercraft, and leave room for
         only a marginal use of personal watercraft, the Swedish regulations would fall within the scope of Article 1(11) of the Information
         Directive. It is for the referring court to make the final assessment on whether the Swedish regulations constitute a prohibition
         on use in that sense. (47)
      
      101. If the examination by the referring court reveals that the national restriction on use is not a prohibition on use within
         the meaning of Article 1(11), the Swedish regulation could possibly be regarded as a requirement within the meaning of Article
         1(3). For that purpose the restriction on use would also have to influence significantly the composition or nature of the
         product or its marketing. The contested regulations influence neither the composition nor the nature of the product. However,
         it appears likely that the contested national restriction on use does significantly influence the marketing of personal watercraft.
         This would again have to be ascertained definitively by the referring court. 
      
      102.  National provisions which fall within the scope ratione materiae of the Information Directive must be communicated to the
         Commission pursuant to Article 8(1) of the Commission. However, Article 10(1) of the Information Directive provides for exceptions
         to this generally applicable obligation to notify. 
      
      103. The obligation to notify ceases to apply under the first indent of Article 10(1) of the Information Directive where the Member
         States adopt laws by which they comply with binding Community acts which result in the adoption of technical specifications.
         The Court has already ruled that Article 2(2) of the Recreational Craft Directive, under which Member States have the power
         to adopt provisions concerning navigation, does not constitute a binding Community act in this sense. (48)
      
      104. Under the third indent of Article 10(1) of the Information Directive the obligation to notify ceases to apply if the Member
         States adopt laws which make use of safeguard clauses provided for in binding Community acts. In Article 7 the Recreational
         Craft Directive contains a provision which is expressly entitled ‘safeguard clause’. Under that provision, the Member States
         may take certain interim measures in situations of serious danger to humans or the environment, for example. However, the
         provisions of the Swedish regulations are not interim measures, with the result that for that reason they do not constitute
         an application of Article 7 of the Recreational Craft Directive and the obligation to notify cannot be inapplicable for that
         reason either. (49)
      
      105. The obligation to notify likewise ceases to apply under the sixth indent of Article 10(1) of the Information Directive where
         Member States restrict themselves to amending a technical regulation, in accordance with a Commission request, with a view
         to removing an obstacle to trade. However, this exception can be relevant only where specific amendments have been proposed
         by the Commission and they have been implemented precisely by a Member State. Only in such a case does the purpose of a prior
         check pursued by the obligation to notify cease to apply, since the Commission already knows which national provision is being
         adopted and no longer needs to check this. However, there has been nothing in the proceedings before the Court to indicate
         that such a situation had existed in the present case.
      
      106. The Swedish regulations should therefore have been communicated to the Commission pursuant to Article 8(1) of the Information
         Directive.
      
      107. As the Commission argued in the oral procedure before the Court of Justice, a first draft of the Swedish regulations was communicated
         to the Commission on 1 April 2003. (50) Thereupon the Commission sent the Swedish Government a detailed opinion within the meaning of the first subparagraph of Article
         9(2) of the Information Directive on 27 June 2003. Receipt of such a detailed opinion initiates a three-month standstill obligation
         under Article 9(1), i.e. the Member State must wait three months before adopting planned and notified rules. The Swedish Government
         also complied with this standstill period since, according to the statement made by the Commission in the oral procedure,
         it did not adopt the final text of the Swedish regulations until 10 June 2004. (51) At first sight the Swedish Government therefore appears to have complied with the notification requirement and the standstill
         period under Articles 8 and 9.
      
      108. According to the defendants in the main proceedings, however, the text of the regulations finally adopted departs from the
         draft notified to the Commission. In any case, as is apparent from the Commission’s statements in the oral procedure, the
         text finally adopted was not notified again to the Commission before it was adopted. The question therefore arises in this
         connection whether under the Information Directive the text of the regulations should have been notified again in the version
         in which they were adopted before they were adopted. 
      
      109. An obligation to give notification again of an amended draft could follow from two considerations. 
      
      110. First of all, under the third subparagraph of Article 8(1), a Member State is required to communicate the draft again if it
         makes changes to the draft that have the effect of significantly altering its scope, shortening the timetable originally envisaged
         for implementation, adding specifications or requirements, or making the latter more restrictive. A breach of the obligation
         to notify again must, just like a breach of the initial obligation to notify, render the unnotified rule inapplicable. The
         spirit and purpose of the Information Directive is to protect, by means of preventive monitoring of national measures, the
         free movement of goods. (52) This monitoring can be carried out by the Commission effectively only if it is also notified of significant changes to the
         notified draft.
      
      111. According to the information available to the Court, however, there are grounds to assume that the regulations adopted do
         not contain any significant changes compared with the notified draft. The content of the notified original draft was to have
         been a fundamental prohibition of the use of personal watercraft other than on general navigable waterways. It appears that
         the last adopted modification only incorporated into the regulations the duty of the county administrative boards to designate
         other waters for use by personal watercraft. That change would not constitute a ‘significant change’ within the meaning of
         the Information Directive, since the change would make the requirement not more restrictive, but less so, also in terms of
         a possible effect on trade in goods, which the Information Directive seeks to protect by means of preventive monitoring. However,
         the question whether significant changes were made to the draft of the notified regulations and whether the changes were not
         notified again must be assessed definitively by the referring court, which is competent to interpret national law and which
         can ascertain the times and the contents of the relevant communications which are necessary for the assessment.
      
      112. The second consideration to be examined stems from the third subparagraph of Article 9(2) of the Information Directive. Under
         that provision, a Member State must report to the Commission on the action it proposes to take on such detailed opinions,
         following which the Commission must comment on this reaction. In the present case, however, according to the statement made
         by the Commission in the oral procedure, the Swedish Government reacted only after the contested national regulations were
         adopted. Nevertheless, in the oral procedure the Commission rightly pointed out that this does not produce any legal consequences.
         If there is no dialogue between the Commission and the Member State, as provided for in the third subparagraph of Article
         9(2), this cannot render the national regulation inapplicable, since the Information Directive permits a Member State in principle
         to adopt a national measure even where the Commission has objected to it, provided it was notified and the standstill requirement
         has expired. Furthermore, the Member State is also required to notify again any significant change to a draft. These requirements
         imposed on the Member State’s action are sufficient for the purpose of effective preventive monitoring by the Commission,
         which is the aim of the Information Directive. In addition, it is not necessary for the purposes of effective monitoring by
         the Commission to make the penalty for failure by the Member State to react to the Commission’s detailed opinion the inapplicability
         of the national measure.
      
      113. Therefore, to summarise:
      
      Under the Information Directive, a Member State is required to notify again a regulation which has already been notified only
         under the conditions mentioned in the third subparagraph of Article 8(1).
      
      VI –   Conclusion
      114. On the basis of the above considerations, I propose that the Court give the following answers to the referring court:
      
      (1)      Directive 94/25/EC as amended by Directive 2003/44/EC does not preclude national provisions prohibiting the use of personal
         watercraft for the purpose of protection of the environment provided they do not infringe the provisions of the Treaty, in
         particular Article 28 EC. 
      
      (2)      National legislation which lays down arrangements for use for products does not constitute a measure having equivalent effect
         within the meaning of Article 28 EC so long as it applies to all relevant traders operating within the national territory
         and so long as it affects in the same manner, in law and in fact, the marketing of domestic products and of those from other
         Member States, and is not product-related. However, prohibitions on use or national legislation which permit only a marginal
         use for a product, in so far as they (virtually) prevent access to the market for the product, constitute measures having
         equivalent effect which are prohibited under Article 28 EC, unless they are justified under Article 30 EC or by an imperative
         requirement.
      
      (3)      National rules which also lay down a prohibition on using personal watercraft in waters in respect of which the county administrative
         boards have not yet taken any decision on whether protection of the environment requires a prohibition on use there are disproportionate
         and therefore not justified unless they include a reasonable deadline by which the county administrative boards must have
         taken the relevant decisions.
      
      (4)      Under the Information Directive, a regulation which has already been notified must be notified again by a Member State only
         under the conditions referred to in the third subparagraph of Article 8(1).
      
      1 –	Original language: German.
      
      2 –	OJ 1994 L 164, p. 15, as amended by Directive 2003/44/EC of the European Parliament and of the Council of 16 June 2003 amending Directive 94/25/EC on the approximation
            of the laws, regulations and administrative provisions of the Member States relating to recreational craft (OJ 2003 L 214, p. 18).
      
      3 –	Regulations 1993:1053, which entered into force on 15 July 2004.
      
      4 –	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).
      
      5 –	Hereinafter also: the referring court.
      
      6 –	See inter alia Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 19, Case C-324/99 DaimlerChrysler [2001] ECR I-9897, paragraph 32, and Case C-322/01 Deutscher Apothekerverband [2003] ECR I‑14887, paragraph 64.
      
      7 –	Case C-316/93 Vaneetveld [1994] ECR I-763, paragraph 16, and Case C‑348/98 Mendes Ferreira [2000] ECR I-6711, paragraph 33. The situation appears to be different, according to the judgment in Case C-144/04 Mangold [2005] ECR I-9981, paragraph 78, in the case where a general principle of Community law lies behind a directive provision.
         With regard to interpretation in conformity with a directive see Case C-212/04 Adeneler [2006] ECR I-0000, paragraph 123 et seq.
      
      8 –	See Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411, paragraph 45, Case C-14/02 ATRAL [2003] ECR I-4431, paragraph 58, and Case C-138/05 Stichting Zuid-Hollandse Milieufederatie [2006] ECR I-0000, paragraph 42.
      
      9 –	Case C-157/02 Rieser Internationale Transporte [2004] ECR I-1477, paragraph 69.
      
      10 –	See, with regard to the existence of this principle in Community law, Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconi and Others [2005] ECR I-3565, paragraph 69.
      
      11 –	See in this regard my Opinion in Case C-457/02 Niselli [2004] ECR I-10853, paragraph 69 et seq., and Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconi and Others [2005] ECR I-3565, paragraph 155 et seq.
      
      12 –	See, most recently, Case C‑280/04 Jyske Finans [2005] ECR I-10683, paragraph 34, and Case C-323/03 Commission v Spain [2006] ECR I-2161, paragraph 32.
      
      13 –	See the second, third and fifth recitals of the Recreational Craft Directive.
      
      14 –	See Case C-310/90 Egle [1992] ECR I‑177, paragraph 12, on using the historical background to confirm a conclusion reached by means of another interpretation
         method.
      
      15 –	Common Position (EC) No 40/2002 of 22 April 2002 adopted by the Council, acting in accordance with the procedure referred
            to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament
            and of the Council amending Directive 94/25/EC on the approximation of the laws, regulations and administrative provisions
            of the Member States relating to recreational craft (OJ 2002 C 170 E, p. 1,especially p. 16).
      16 –	Common Position (cited in footnote 15, p. 19).
      
      17 –	See also, to that effect, Case C-83/05 Voigt [2006] ECR I-0000, paragraph 17 et seq.
      
      18 –	See inter alia Case 8/74 Dassonville [1974] ECR 837, paragraph 5, Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, paragraph 11, and Joined Cases C-158/04 and C-159/04 AlfaVita Vassilopoulos [2006] ECR I-0000, paragraph 15.
      
      19 –	See Joined Cases C-267/91 and C-268/91 Keck and Mithouard (cited in footnote 18, paragraph 13).
      
      20 –	Case C-93/92 CMC Motorradcenter [1993] ECR I-5009, paragraph 12, Case C-67/97 Ditlev Bluhme [1998] ECR I-8033, paragraph 22, and Case C-20/03 Burmanjer and Others [2005] ECR I-4133, paragraph 31, in which the criterion ‘too insignificant and uncertain’ is used. With regard to freedom to provide services see Case C-134/03 Viacom Outdoor [2005] ECR I-1167, paragraph 38.
      
      21 –	Joined Cases C-267/91 and C-268/91 Keck and Mithouard (cited in footnote 18, paragraph 14).
      
      22 –	Joined Cases C-267/91 and C-268/91 Keck and Mithouard (cited in footnote 18, paragraph 16).
      
      23 –	Case C-470/93 Mars [1995] ECR I-1923, paragraph 13, and Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 11. With regard to a proposed modification of the Keck criteria, in particular in order to avoid difficulties in distinguishing between product-related and sales-related rules,
         see the Opinion of Advocate General Poiares Maduro of 30 March 2006 in Joined Cases C-158/04 and C-159/04 Alfa Vita Vassilopoulos [2006] ECR I-0000, paragraph 42 et seq.
      
      24 –	See Joined Cases C-69/93 and C-258/93 Punto Casa and PPV [1994] ECR I-2355 and Case C-387/93 Banchero [1995] ECR I-4663.
      
      25 –	See, for example, Joined Cases C-267/91 and C-268/91 Keck and Mithouard (cited in footnote 18, paragraph 12) for the national prohibition on selling below the purchase price. It should be made
         clear that the criterion of intention cannot in itself be a suitable distinguishing criterion.
      
      26 –	Case C-391/92 Commission v Greece [1995] ECR I-1621, paragraph 17.
      
      27 –	Case C-391/92 Commission v Greece (cited in footnote 26, paragraph 18).
      
      28 –	With regard to the justification of a difference in treatment, see for example Case C-322/01 Deutscher Apothekerverband (cited in footnote 6, paragraph 75 et seq.).
      
      29 –	See Case 34/79 Henn and Darby [1979] ECR 3795, paragraph 21.
      
      30 –	Joined Cases C-267/91 and C-268/91 Keck and Mithouard (cited in footnote 18, paragraph 17).
      
      31 –	Whether a measure prevents access to the market or impedes access to the market significantly is often also regarded as
         a crucial criterion for determining the scope of Article 28 EC; see the Opinions of Advocate General Jacobs in Case C-412/93
         Leclerc-Siplec [1995] ECR I-179, point 38 et seq., and of Advocate General Stix-Hackl in Case C-322/01 Deutscher Apothekerverband [2003] ECR I-14887, paragraph 78. 
      
      32 –	See point 63 of this Opinion.
      
      33 –	Case 120/78 Rewe (‘Cassis de Dijon’) [1979] ECR 649, paragraph 8; Case 113/80 Commission v Ireland [1981] ECR 1625, paragraph 10 et seq.
      
      34 –	The question can therefore remain open whether in the Court’s case-law the requirement of applicability without distinction
         has been abandoned in favour of the imperative requirement of the protection of the environment in particular; see, to this
         effect, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 75.
      
      35 –	See Case 302/86 Commission v Denmark [1988] ECR 4607, paragraph 8, and Case C-2/90 Commission v Belgium [1992] ECR I-4431, paragraph 22.
      
      36 –	Case C-213/96 Outokumpu [1998] ECR I-1777, paragraph 32, and Case C-320/03 Commission v Austria [2005] ECR I-9871, paragraph 72.
      
      37 –	See inter alia Case C-463/01 Commission v Germany [2004] ECR I-11705, paragraph 78, and Case C-309/02 Radlberger Getränkegesellschaft and S. Spitz [2004] ECR I-11763, paragraph 79. 
      
      38 –	See Case 261/81 Rau [1982] ECR 3961, paragraph 12, and Case C-270/02 Commission v Italy [2004] ECR I-1559, paragraph 25.
      
      39 –	It would be for the referring court to assess these points of fact.
      
      40 –	Case C-320/03 Commission v Austria [2005] ECR I-9871, paragraph 90, and Case C-463/01 Commission v Germany (cited in footnote 37, paragraphs 79 and 80), and Case C-309/02 Radlberger Getränkegesellschaft and S. Spitz (cited in footnote 37, paragraphs 80 and 81).
      
      41 –	Case C-402/98 ATB [2000] ECR I‑5501, paragraph 29, and Case C-412/96 Kainuun [1998] ECR I-5141, paragraph 23.
      
      42 –	Case C-62/00 Marks & Spencer [2002] ECR I-6325, paragraph 32, Case C-88/99 Roquette Frères [2000] ECR I-10465, paragraph 18, and Case C-334/95 Krüger [1997] ECR I-4517, paragraph 22.
      
      43 –	Case C-303/04 Lidl Italia [2005] ECR I-7865, paragraph 23, and Case C-194/94 CIA Security International [1996] ECR I-2201, paragraph 54, on the predecessor Directive 83/189/EWG.
      
      44 –	See, with regard to the essentially identical provisions of the predecessor Directive 83/189/EEC, Case C‑267/03 Lindberg [2005] ECR I-3247, paragraph 57, and Case C-159/00 Sapod Audic [2002] ECR I-5031, paragraph 30.
      
      45 –	See Case C‑267/03 Lindberg (cited in footnote 44, paragraph 74).
      
      46 –	Case C‑267/03 Lindberg (cited in footnote 44, paragraph 75 et seq.).
      
      47 –	See Case C‑267/03 Lindberg (cited in footnote 44, paragraph 77).
      
      48 –	Judgment of 8 September 2005 in Case C-500/03 Commission v Portugal, not published in the ECR, which may be consulted at www.curia.europa.eu, paragraph 34.
      
      49 –	Case C-500/03 Commission v Portugal (cited in footnote 48, paragraph 37).
      
      50 –	See also the Commission’s TRIS database (see http://ec.europa.eu/enterprise/tris/pisa/app/search/index.cfm?fuseaction=pisa_notif_overview&iYear=2003&inum=119&lang=EN&sNLang=EN).
      
      51 –	The jet-ski regulations then entered into force on 15 July 2004.
      
      52 –	See Case C-303/04 Lidl Italia (cited in footnote 43, paragraph 22), Case C-194/94 CIA Security International (cited in footnote 43, paragraph 40) and Case C-226/97 Lemmens [1998] ECR I-3711, paragraph 32.