Criminal proceedings against Karl Josef Wilhelm Schwibbert.
Date: 2007-11-08
21. It should be borne in mind that the information provided in orders for reference must not only be such as to enable the Court to reply usefully but must also enable the governments of the Member States and other interested parties to submit observations pursuant to Article 20 of the Statute of the Court of Justice (order in Case C‑422/98 Colonia Versicherung and Others  [1999] ECR I‑1279, paragraph 5). It is the Court’s duty to ensure that that opportunity is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties (Joined Cases 141/81 to 143/81 Holdijk and Others  [1982] ECR 1299, paragraph 6; order in Case C‑326/95 Banco de Fomento e Exterior  [1996] ECR I‑1385, paragraph 7; and Case C‑176/96 Lehtonen and Castors Braine  [2000] ECR I‑2681, paragraph 23). Thus, according to the case-law of the Court, it is essential that the national court should give at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute (see, in particular, order in Case C‑116/00 Laguillaumie  [2000] ECR I‑4979, paragraph 16, and Joined Cases C‑94/04 and C‑202/04 Cipolla and Others  [2006] ECR I‑11421, paragraph 38).
33. First, it is necessary to consider whether the obligation to affix such initials can be described as a ‘technical regulation’ within the meaning of Article 1 of Directive 98/34. If so, it will be necessary to check whether the draft technical regulation was notified to the Commission by the Italian authorities, failing which it would be unenforceable against Mr Schwibbert (see, in particular, Case C‑194/94 CIA Security International  [1996] ECR I‑2201, paragraphs 48 and 54; Case C‑226/97 Lemmens  [1998] ECR I‑3711, paragraph 33; and Case C‑159/00 Sapod Audic [2002] ECR I‑5031, paragraph 49).
34. It follows from Article 1(11) of Directive 98/34 that the definition of ‘technical regulation’ can be broken down into three categories: first, the ‘technical specification’ within the meaning of Article 1(3) of that directive; second, the ‘other requirement’, as defined in Article 1(4); and, third, the prohibition of the manufacture, importation, marketing or use of a product referred to in Article 1(11) (see, in particular, Case C‑267/03 Lindberg  [2005] ECR I‑3247, paragraph 54).
35. As the Court has held, the concept of technical specification presupposes that the national measure refers to the product or its packaging as such and thus lays down one of the characteristics required of a product (see, to that effect, Case C‑278/99 van der Burg  [2001] ECR I‑2015, paragraph 20; Case C‑390/99 Canal Satélite Digital  [2002] ECR I‑607, paragraph 45; and also Sapod Audic , paragraph 30, and Lindberg , paragraph 57).
37. Such a distinctive sign constitutes a ‘technical specification’ within the meaning of Article 1(3) of Directive 98/34, since it falls within the requirements applicable to the products concerned as regards marking or labelling. Therefore, since observance of that specification is compulsory de jure  for marketing those products, the specification constitutes a ‘technical regulation’ within the meaning of Article 1(11) of that directive (see, to that effect, Case C‑13/96 Bic Benelux  [1997] ECR I‑1753, paragraph 23).
41. In so far as the obligation to affix the distinctive sign ‘SIAE’ was extended to products such as those at issue in the main proceedings after the implementation of Directive 83/189, it must be borne in mind that, according to settled case-law, the aim of the second part of the first subparagraph of Article 8(1) of Directive 98/34 is to enable the Commission to have as much information as possible on any draft technical regulation with respect to its content, scope and general context in order to enable it to exercise as effectively as possible the powers conferred on it by the Directive (see, in particular, CIA Security International , paragraph 50; Case C‑279/94, Commission  v Italy  [1997] ECR I‑4743, paragraph 40; and Case C‑145/97 Commission  v Belgium  [1998] ECR I‑2643, paragraph 12).
42. Similarly, according to the third subparagraph of Article 8(1) of Directive 98/34, ‘Member States shall communicate the draft again … if they make changes to the draft that have the effect of significantly altering its scope …’. The inclusion of new media, such as CDs, within the scope of the obligation to affix the distinctive sign ‘SIAE’ must be regarded as such a change (see, to that effect, Case C‑317/92 Commission  v Germany  [1994] ECR I‑2039, paragraph 25, and Lindberg , paragraphs 84 and 85).
44. According to the case-law of the Court, failure to observe the obligation to notify constitutes a procedural defect in the adoption of the technical regulations concerned, and renders those technical regulations inapplicable and therefore unenforceable against individuals (see, in particular, CIA Security International , paragraph 54, and Lemmens , paragraph 33). Individuals may rely on that inapplicability before the national court which must decline to apply a national technical regulation which has not been notified in accordance with Directive 98/34 (see, in particular, CIA Security International , paragraph 55, and Sapod Audic , paragraph 50).