Unilever Italia SpA v Central Food SpA.
Date: 2000-09-26
7 In paragraphs 54 and 55 of its judgment in Case C-194/94 CIA Security v Signalson and Securitel [1996] ECR I-2201 (hereinafter CIA Security) the Court held that Directive 83/189 was to be interpreted as meaning that breach of the obligation to notify rendered the technical regulations concerned inapplicable, so that they were unenforceable against individuals and that individuals might therefore rely on Articles 8 and 9 of Directive 83/189 before the national court, which must decline to apply a national technical regulation which has not been notified in accordance with that directive.
8 As the Court made clear in paragraph 35 of its judgment in Case C-226/97 Lemmens [1998] ECR I-3711, failure to notify technical regulations, which constitutes a procedural defect in their adoption, renders such regulations inapplicable inasmuch as they hinder the use or marketing of a product which is not in conformity therewith.
The Italian legislation and the notification procedure
25 Suffice is to note, on that point, that, according to Article 1(1) thereof, Directive 83/189 treats as products both industrial and agricultural products and that, according to paragraph 2 of the same article, Directive 83/189 treats as a technical specification any specification contained in a document which lays down the characteristics required of a product, including the requirements applicable to the product as regards labelling. National rules containing such specifications constitute technical specifications within the meaning of Directive 83/189 irrespective of the grounds on which they were adopted (see, to that effect, Case C-13/96 Bic Benelux v Belgian State [1997] ECR I-1753, paragraph 19).
29 That contention cannot be accepted. As the Commission has pointed out, that provision of Directive 79/112, drafted in general terms, leaves the Member States sufficient room for manoeuvre for it to be concluded that national rules on labelling relating to origin such as those adopted in the contested Law cannot be regarded as national provisions conforming to a binding Community act within the meaning of the first indent of Article 10(1) of Directive 83/189.
38 CIA Security related to a technical regulation which had not been notified in accordance with Article 8 of Directive 83/189. This explains why the operative part of that judgment confines itself to finding that technical regulations which have not been notified in accordance with that article are inapplicable.
40 Thus, in paragraph 40 of CIA Security, it was emphasised that Directive 83/189 is designed, by means of preventive control, to protect freedom of movement for goods, which is one of the foundations of the Community, and that, in order for such control to be effective, all draft technical regulations covered by the directive must be notified and, except in the case of those regulations whose urgency justifies an exception, their adoption or entry into force must be suspended during the periods laid down in Article 9.
41 Next, in paragraph 41 of that judgment, the Court held that notification and the period of postponement afford the Commission and the other Member States an opportunity to examine whether the draft regulations in question create obstacles to trade contrary to the EC Treaty or obstacles which were to be avoided through the adoption of common or harmonised measures and also to propose amendments to the national measures envisaged. That procedure also enables the Commission to propose or adopt Community rules regulating the matter dealt with by the envisaged measure.
42 In paragraph 50 of CIA Security the Court indicated that the aim of the directive was not simply to inform the Commission but is also, more generally, to eliminate or restrict obstacles to trade, to inform other States of technical regulations envisaged by a State, to give the Commission and the other Member States time to react and to propose amendments for lessening restrictions to the free movement of goods arising from the envisaged measure and to afford the Commission time to propose a harmonising directive.
43 The Court went on to hold that the wording of Articles 8 and 9 of Directive 83/189 was clear in that they provide a procedure for Community control of draft national regulations, the date of their entry into force being subject to the Commission's agreement or lack of opposition.
44 Although, in paragraph 48 of CIA Security, after reiterating that the aim of Directive 83/189 was to protect freedom of movement for goods by means of preventive control and that the obligation to notify was essential for achieving such Community control, the Court found that the effectiveness of such control would be that much greater if the directive were interpreted as meaning that breach of the obligation to notify constituted a substantial procedural defect such as to render the technical regulations in question inapplicable to individuals, it follows from the considerations set out in paragraphs 40 to 43 of this judgment that breach of the obligations of postponement of adoption set out in Article 9 of Directive 83/189 also constitutes a substantial procedural defect such as to render technical regulations inapplicable.
45 It is therefore necessary to consider, secondly, whether the inapplicability of technical regulations adopted in breach of Article 9 of Directive 83/189 can be invoked in civil proceedings between private individuals concerning contractual rights and obligations.
46 First, in civil proceedings of that nature, application of technical regulations adopted in breach of Article 9 of Directive 83/189 may have the effect of hindering the use or marketing of a product which does not conform to those regulations.
47 That is the case in the main proceedings, since application of the Italian rules is liable to hinder Unilever in marketing the extra virgin olive oil which it offers for sale.
48 Next, it must be borne in mind that, in CIA Security, the finding of inapplicability as a legal consequence of breach of the obligation of notification was made in response to a request for a preliminary ruling arising from proceedings between competing undertakings based on national provisions prohibiting unfair trading.
49 Thus, it follows from the case-law of the Court that the inapplicability of a technical regulation which has not been notified in accordance with Article 8 of Directive 83/189 can be invoked in proceedings between individuals for the reasons set out in paragraphs 40 to 43 of this judgment. The same applies to non-compliance with the obligations laid down by Article 9 of the same directive, and there is no reason, in that connection, to treat disputes between individuals relating to unfair competition, as in the CIA Security case, differently from disputes between individuals concerning contractual rights and obligations, as in the main proceedings.
50 Whilst it is true, as observed by the Italian and Danish Governments, that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual (see Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 20), that case-law does not apply where non-compliance with Article 8 or Article 9 of Directive 83/189, which constitutes a substantial procedural defect, renders a technical regulation adopted in breach of either of those articles inapplicable.
51 In such circumstances, and unlike the case of non-transposition of directives with which the case-law cited by those two Governments is concerned, Directive 83/189 does not in any way define the substantive scope of the legal rule on the basis of which the national court must decide the case before it. It creates neither rights nor obligations for individuals.
52 In view of all the foregoing considerations, the answer to the question submitted must be that a national court is required, in civil proceedings between individuals concerning contractual rights and obligations, to refuse to apply a national technical regulation which was adopted during a period of postponement of adoption prescribed in Article 9 of Directive 83/189.