Sapod Audic v Eco-Emballages SA.
Date: 2002-06-06
20 In that regard, it must be observed, first, that, if the relevant provisions of Decree No 92-377 constitute technical regulations, the drafts of those regulations should have been notified to the Commission pursuant to Directive 83/189, as amended by Directive 88/182 and, second, that the amendments effected by Directive 94/10 to the provisions relevant to this case are material amendments and do not merely clarify the terms which appear in Directive 83/189 (see, to that effect, inter alia, Case C-33/97 Colim [1999] ECR I-3175, paragraphs 25 and 26, and Case C-314/98 Snellers [2000] ECR I-8633, paragraphs 31 to 33).
30 Accordingly, since the obligation to identify the packaging prescribed by the second paragraph of Article 4 of Decree No 92-377 does not seem to imply an obligation to mark or label that packaging, that obligation does not appear necessarily to refer to the product or its packaging as such. Interpreted in that way, that provision cannot be said to lay down the characteristics required of a product within the meaning of Article 1(1) of Directive 83/189 and, hence, cannot be regarded as a technical specification (see, in particular, Case C-278/99 Van der Burg [2001] ECR I-2015, paragraph 20).
34 In that case, even though the detailed rules regarding the marking or the labelling remained to be defined, marking or labelling would, in itself, be compulsory, also for imported products (see, in particular, Case C-13/96 Bic Benelux [1997] ECR I-1753, paragraph 23). In addition, having regard to the aim of Directive 83/189, namely the protection of free movement of goods by means of preventive control (see, in particular, Case C-194/94 CIA Security International [1996] ECR I-2201, paragraphs 40 and 48), such a control, implemented in accordance with the procedure prescribed by that directive, would be both appropriate and possible.
37 Accordingly, that provision differs from the regulations which, in a case such as that at issue in the main proceedings, can be applied to producers of products marketed in packaging (see, in particular, Case C-226/97 Lemmens [1998] ECR I-3711, paragraph 34).
44 That point of view cannot be accepted. As pointed out by the Commission, that question must be answered in the negative because, although Decree No 92-377 refers in its preamble to Directive 75/442, that directive establishes only a general framework, leaving Member States a significant degree of freedom (on that point see, in particular, Case C-443/98 Unilever [2000] ECR I-7535, paragraph 29). Directive 75/442 does not contain provisions imposing specific obligations on Member States which are implemented by the second paragraph of Article 4 of Decree 92-377.
49 In that regard, it should be observed, first, that according to settled case-law Directive 83/189 must be interpreted as meaning that a failure to observe the obligation to notify laid down in Article 8 of that directive constitutes a substantial procedural defect such as to render the technical regulations in question inapplicable and thus unenforceable against individuals (see, in particular, CIA Security International, paragraphs 48 and 54, and Lemmens, paragraph 33).
50 Second, it should be borne in mind that according to the case-law of the Court the inapplicability of a technical regulation which has not been notified to the Commission in accordance with Article 8 of Directive 83/189 may be invoked in legal proceedings between individuals concerning, inter alia, contractual rights and duties (see Unilever, paragraph 49).
52 It should, however, be observed that the question of the conclusions to be drawn in the main proceedings from the inapplicability of the second paragraph of Article 4 of Decree No 92-377 as regards the severity of the sanction under the applicable national law, such as nullity or unenforceability of the contract between Sapod and Eco-Emballages, is a question governed by national law, in particular as regards the rules and principles of contract law which limit or adjust that sanction in order to render its severity proportionate to the particular defect found. However, those rules and principles may not be less favourable than those governing similar domestic actions (principle of equivalence) and may not be framed in such a way as to render impossible in practice the exercise of rights conferred by Community law (principle of effectiveness) (see, inter alia, Case 33/76 Rewe v Landwirtschaftskammer für das Saarland [1976] ECR 1989, paragraph 5, and Joined Cases C-52/99 and C-53/99 Camorotto and Vignone [2001] ECR I-1395, paragraph 21).
60 In that regard, it should be noted that in paragraphs 20 to 23 of its judgment in Enichem Base, the Court observed that neither the wording nor the purpose of Article 3(2) of Directive 75/442 in its original version provides any support for the view that failure by the Member States to observe their obligation under that provision to give prior notice in itself renders unlawful the national rules thus adopted, inasmuch as that provision merely requires the Member States to inform the Commission of any draft rules to which it applies, without laying down any procedure for Community control of those draft rules or making implementation of the planned rules conditional upon agreement by the Commission or its failure to object (see, also, CIA Security International, paragraph 49).
61 In the light of those considerations, the Court held, in paragraph 24 of its judgment in Enichem Base, that Article 3(2) of Directive 75/442, in its original version, properly construed, does not give individuals any right which they may enforce before national courts in order to obtain the annulment or suspension of national rules falling within the scope of that provision on the ground that the rules were adopted without having been previously communicated to the Commission.
62 Although it is true that since the judgment in Enichem Base was delivered, Article 3(2) of Directive 75/442 has been amended by Directive 91/156 and that now, under that provision, after a Member State has notified the Commission of the measures it plans to take, the Commission informs the other Member States and the committee provided for in Article 18 of Directive 75/442 of those draft measures, that amendment does not in any way affect the substance of the reasoning underlying that judgment, which is set out in paragraph 60 of this judgment, nor does it therefore affect the conclusions reached by the Court in Enichem Base, which are set out in paragraph 61 of this judgment.
63 In view of the foregoing considerations, the answer to the second part of the second question, in so far as it concerns Directive 75/442, must be that Article 3(2) of that directive, properly construed, does not give individuals any right which they may enforce before national courts in order to obtain the annulment or suspension of national rules falling within the scope of that provision on the ground that the rules were adopted without having been previously communicated to the Commission.
The third question
69 Second, while it is settled case-law that in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to determine whether it has jurisdiction. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-36/99 Idéal tourisme [2000] ECR I-6049, paragraph 20; Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 39; Case C-340/99 TNT Traco [2001] ECR I-4109, paragraph 31, and Case C-472/99 Clean Car Autoservice [2001] ECR I-9687, paragraph 14).
72 In that regard, it should be observed that, even if that national provision were to be interpreted in that way, the obligation imposed by that provision does not relate as such to the product or its packaging and therefore does not, of itself, constitute a rule laying down requirements to be met by goods, such as requirements concerning their labelling or packaging (see, in particular, Case C-123/00 Bellamy and English Shop Wholesale [2001] ECR I-2795, paragraph 18).
73 On the other hand, in such a case, the general obligation to identify the packaging as provided for in that national provision may be regarded as a selling arrangement. It is for the national court to verify whether the relevant conditions, under the case-law of the Court, for exempting such an obligation from the scope of application of Article 30 of the Treaty are met, namely that the provision at issue applies to all relevant traders operating within the national territory and that it affects in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States (see, in particular, Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, paragraph 16, and Case C-254/98 TK-Heimdienst [2000] ECR I-151, paragraph 23).
74 Finally, it must be observed that if the general obligation to identify the packaging laid down in the second paragraph of Article 4 of Decree No 92-377 has taken the form of an obligation on Sapod to mark the packaging by affixing the Green Dot logo, that latter obligation arises out of a private contract between the parties to the main proceedings. Such a contractual provision cannot be regarded as a barrier to trade for the purposes of Article 30 of the Treaty since it was not imposed by a Member State but agreed between individuals (see, to that effect, inter alia, Case 8/74 Dassonville [1974] ECR 837, paragraph 5, and Colim, paragraph 36).