Criminal proceedings against Van Gennip BVBA and Others.
Date: 2018-09-26
37


In that regard, it must be recalled that the concept of a ‘technical regulation’ extends to four categories of measures, namely, (i) the ‘technical specification’, within the meaning of Article 1, point 3, of Directive 98/34; (ii) ‘other requirements’, as defined in Article 1, point 4, of that directive; (iii) the ‘rule on services’, covered in Article 1, point 5, of that directive, and (iv) the ‘laws, regulations or administrative provisions of Member States prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider’, under Article 1, point 11, of that directive (judgment of 13 October 2016, M. and S., C‑303/15, EU:C:2016:771, paragraph 18 and the case-law cited).
38


As regards, firstly, the concept of ‘technical specification’, it should be recalled that that concept 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, such as the dimensions, the sales description, labelling or marking (judgment of 10 July 2014, Ivansson and Others, C‑307/13, EU:C:2014:2058, paragraph 19 and the case-law cited). However, as the Advocate General observed in point 74 of his Opinion, the Belgian legislation does not refer to pyrotechnic articles or their packaging as such, so that that legislation does not lay down one of the required characteristics of these products. Accordingly, that legislation does not constitute a ‘technical specification’, within the meaning of Article 1, point 3, of Directive 98/34.
39


Secondly, as regards the category of ‘other requirements’, it is appropriate to note that, in order to be classified as ‘other requirements’, within the meaning of Article 1, point 4, of Directive 98/34, a national measure must constitute a ‘condition’ which can significantly influence the composition, nature or marketing of the product concerned (judgment of 13 October 2016, M. and S., C‑303/15, EU:C:2016:771, paragraph 20 and the case-law cited).
40


In that regard, it must be noted, as did the Advocate General in point 76 of his Opinion, that the Belgian legislation makes the sale of pyrotechnic articles of which the pyrotechnic composition exceeds 1 kg subject to the buyer acquiring an authorisation. Thus, the required authorisation does not constitute a requirement in respect of the product concerned, but for potential buyers and, indirectly, for economic operators selling pyrotechnic articles (see, to that effect, judgments of 21 April 2005, Lindberg, C‑267/03, EU:C:2005:246, paragraph 87, and of 13 October 2016, M. and S., C‑303/15, EU:C:2016:771, paragraph 29).
42


Concerning, thirdly, the category ‘rule on services’, it must be recalled that, under Article 1, point 5, of Directive 98/34, such a rule constitutes any requirement of a general nature relating to the taking-up and pursuit of services referred to in Article 1, point 2, of that directive, which designate ‘any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’ (judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 74).
48


Next, it must be recalled that, in accordance with recital 2 and from Article 1(1) of Directive 2007/23, the main purpose of that directive is to counter barriers to trade within the EU which arise due to differences in the laws, regulations and administrative provisions of the Member States on the placing on the market of pyrotechnic articles which it defines, and thus to guarantee the free movement of such articles in the internal market, while ensuring a high level of protection of human health and public security and the protection and safety of consumers and professional users (judgment of 27 October 2016, Commission v Germany, C‑220/15, EU:C:2016:815, paragraph 40).
49


As regards the free movement of pyrotechnic articles, Article 6(1) of Directive 2007/23 provides that Member States may not prohibit, restrict or impede the marketing of pyrotechnic articles throughout the EU, unless the measures which they adopt fall within the exceptions laid down in Article 6(2) of that directive or within the market surveillance activity provided for in Article 14(6) of that directive (see judgment of 27 October 2016, Commission v Germany, C‑220/15, EU:C:2016:815, paragraph 43).
56


As regards, in the first place, the appropriateness of the national legislation to the protection of public order and security, it must be recalled that the Member States remain free to determine, in accordance with their national needs, which can vary from one Member State to another and from one time to another, the requirements of public policy and public security. Thus, the Member States alone are responsible for the maintenance of law and order and the safeguarding of internal security on their territory and enjoy a margin of discretion in determining, according to particular social circumstances and to the importance they attach to a legitimate objective under EU law, the measures which are likely to achieve concrete results (see, to that effect, judgments of 15 June 1999, Heinonen, C‑394/97, EU:C:1999:308, paragraph 43; of 14 March 2000, Église de scientologie, C‑54/99, EU:C:2000:124, paragraph 17, and of 10 July 2008, Jipa, C‑33/07, EU:C:2008:396, paragraph 23).
57


In that regard, it is appropriate to add that, in accordance with the settled case-law of the Court, reliance on the exception of public policy and security constitutes a derogation from the fundamental principle of the free movement of goods, which must be interpreted strictly and the scope of which cannot be determined unilaterally by the Member States without any control by the institutions of the EU (see, by analogy, judgments of 31 January 2006, Commission v Spain, C‑503/03, EU:C:2006:74, paragraph 45; of 19 June 2008, Commission v Luxembourg, C‑319/06, EU:C:2008:350, paragraph 30, and of 13 July 2017, E, C‑193/16, EU:C:2017:542, paragraph 18 and the case-law cited).
58


The Court’s case-law has accordingly made it clear that the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat to one of the fundamental interests of society (see, by analogy, judgments of 31 January 2006, Commission v Spain, C‑503/03, EU:C:2006:74, paragraph 46; of 19 June 2008, Commission v Luxembourg, C‑319/06, EU:C:2008:350, paragraph 50, and of 17 November 2011, Aladzhov, C‑434/10, EU:C:2011:750, paragraph 35).
76


Furthermore, the Court has already stated that the activity of retail trade in goods constitutes a ‚service’ within the meaning of Article 4, point 1, of Directive 2006/123 (see, to that effect, judgment of 30 January 2018, X and Visser, C‑360/15 and C‑31/16, EU:C:2018:44, paragraphs 91 and 97).
80


Under that provision, the conditions for grant of an authorisation must be non-discriminatory, justified by imperative reasons in the general interest and proportionate to that objective, which means that they are suitable for securing the attainment of that objective and do not go beyond what is necessary in order to attain it (see judgment of 1 October 2015, Trijber and Harmsen, C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 70). Moreover, that provision requires that those conditions be clear and unambiguous, objective, transparent, accessible and made public in advance.
81


It is settled case-law that it is ultimately for the national court, which has sole jurisdiction to assess the facts of the dispute pending before it, to determine whether a measure fulfils the requirements referred to in paragraph 80 of this judgment. The Court, however, which is called on to provide answers of use to the referring court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to the Court, in order to enable the referring court to give judgment (see judgments of 1 October 2015, Trijber and Harmsen, C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 55; of 15 October 2015, Grupo Itevelesa and Others, C‑168/14, EU:C:2015:685, paragraph 77; and of 30 January 2018, X and Visser, C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 56 and the case-law cited).
93


It must, however, be borne in mind that, even though, formally, the referring court has limited its question to the interpretation of Article 45 of Directive 2013/29, that does not prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating on the case before it, whether or not that court has specifically referred to them in its question (see, by analogy, judgment of 28 February 2018, MA.T.I. SUD and Duemme SGR, C‑523/16 and C‑536/16, EU:C:2018:122, paragraph 41 and the case-law cited).
99


That having been said, it must be recalled that it is also for the national court to ascertain whether the penalties applicable are effective, proportionate and dissuasive. In assessing the proportionality of sanctions, it is for the national court to take account of the gravity of the infringement (see, by analogy, judgment of 9 February 2012, Urbán, C‑210/10, EU:C:2012:64, paragraphs 41 and 44).