Município de Palmela v Autoridade de Segurança Alimentar e Económica (ASAE) – Divisão de Gestão de Contraordenações.
Date: 2017-02-01
20


It should be observed as a preliminary point that, according to settled case-law of the Court, in the procedure laid down by Article 267 TFEU, providing 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. With that in mind, the Court may have to reformulate the questions referred to it (judgment of 28 April 2016, Oniors Bio, C‑233/15, EU:C:2016:305, paragraph 30 and the case-law cited). Further, the Court may decide to take into consideration rules of EU law to which the national court has made no reference in the wording of its question (order of 14 July 2016, BASF, C‑456/15, not published, EU:C:2016:567, paragraph 15, and the case-law cited).
25


It must be noted in that context that the concept of a ‘technical regulation’ extends to four categories of measures, namely (i) the ‘technical specification’, within the meaning of Article 1(3) of Directive 98/34, (ii) ‘other requirements’, as defined in Article 1(4) of that directive, (iii) the ‘rule on services’, covered in Article 1(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(11) of that directive (judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 70).
26


In that regard, it should be clarified, in the first place, that the concept of ‘technical specification’ presupposes that the national measure necessarily refers to the product or its packaging as such and therefore lays down one of the characteristics required of a product. In contrast, where a national measure lays down conditions governing the establishment of undertakings, such as provisions making the exercise of a business activity subject to prior authorisation, those conditions do not constitute technical specifications (judgment of 13 October 2016, M. and S., C‑303/15, EU:C:2016:771, paragraph 19 and the case-law cited).
27


In the second place, before a condition can be classified within ‘other requirements’, within the meaning of Article 1(4) of Directive 98/34, a national measure must constitute a ‘condition’ which can significantly influence the composition or nature of the product concerned or its marketing. However, it is necessary to determine whether such a measure is to be deemed a ‘condition’ relating to the use of the product concerned or whether it is, rather, a national measure falling within the category of technical regulations referred to in Article 1(11) of that directive. Whether a national measure falls within one or other of those two categories of technical regulations depends on the scope of the prohibition laid down by that measure (judgment of 13 October 2016, M. and S., C‑303/15, EU:C:2016:771, paragraph 20 and the case-law cited).
28


In the third place, the concept of a ‘rule on services’, referred to in Article 1(5) of Directive 98/34, covers solely regulations relating to information society services, that is, any service provided at a distance by electronic means and at the individual request of a recipient of services (see, to that effect, judgment of 13 October 2016, M. and S., C‑303/15, EU:C:2016:771, paragraph 21 and the case-law cited).
30


First, it must be held that such a provision does not fall within the category of technical specifications within the meaning of Article 1(3) of Directive 98/34, in so far as it is undisputed that the provisions that lay down the requirements and general objectives in relation to safety and protection, without necessarily referring to the product concerned or its packaging as such and thus without laying down the characteristics of that product, do not constitute technical specifications (see, to that effect, judgment of 9 June 2011, Intercommunale Intermosane and Fédération de l’industrie et du gaz, C‑361/10, EU:C:2011:382, paragraphs 17 and 18).
33


First, it is common ground that a provision such as that at issue in the main proceedings does not amount to an ‘other requirement’ within the meaning of Article 1(4) of Directive 98/34, taking account of the general nature of the requirements which it sets out (see, to that effect, judgment of 9 June 2011, Intercommunale Intermosane and Fédération de l’industrie et du gaz, C‑361/10, EU:C:2011:382, paragraph 21). On the other hand, it does not contain any prohibitions which could bring it within the category of the prohibitions set out in Article 1(11) of that directive.
36


Moreover, the penalty for failure to comply with such a notification obligation is that technical rules which have not been notified will be inapplicable (see, to that effect, with regard to Directive 83/189, judgment of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraph 54, and, with regard to Directive 98/34, judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 67 and the case-law cited).
37


As regards the extent of such a penalty, even though Article 8(1) of Directive 83/189 and Article 8(1) of Directive 98/34 require the entire draft of a law containing technical regulations to be communicated to the Commission, the non-applicability which results from the breach of that obligation extends, not to all of the provisions of such a law, but only to the technical regulations contained therein (see, to that effect, judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 68).