Åklagaren v Percy Mickelsson and Joakim Roos.
Date: 2009-06-04
20. Furthermore, Article 2(2) of Directive 94/25 states that its provisions do not prevent Member States from adopting, in compliance with the Treaty, provisions concerning navigation on certain waters for the purpose of protection of the environment, the fabric of waterways, and ensuring safety of waterways, providing that that does not require modification to craft conforming to that directive.
21. Therefore, under Article 2(2) thereof, that directive does not preclude national provisions prohibiting the use of personal watercraft on certain waters for reasons connected with the protection of the environment, provided that they do not infringe the provisions of the Treaty.
24. It must be borne in mind that measures taken by a Member State, the aim or effect of which is to treat goods coming from other Member States less favourably and, in the absence of harmonisation of national legislation, obstacles to the free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods, even if those rules apply to all products alike, must be regarded as ‘measures having equivalent effect to quantitative restrictions on imports’ for the purposes of Article 28 EC (see to that effect, Case 120/78 Rewe-Zentral (Cassis de Dijon)  [1979] ECR 649, paragraphs 6, 14 and 15; Case C-368/95 Familiapress  [1997] ECR I-3689, paragraph 8; and Case C-322/01 Deutscher Apothekerverband  [2003] ECR I-14887, paragraph 67). Any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept (see Case C-110/05 Commission  v Italy  [2009] ECR I-0000, paragraph 37).
26. Even if the national regulations at issue do not have the aim or effect of treating goods coming from other Member States less favourably, which is for the national court to ascertain, the restriction which they impose on the use of a product in the territory of a Member State may, depending on its scope, have a considerable influence on the behaviour of consumers, which may, in turn, affect the access of that product to the market of that Member State (see to that effect, Commission  v Italy , paragraph 56).
27. Consumers, knowing that the use permitted by such regulations is very limited, have only a limited interest in buying that product (see to that effect, Commission  v Italy , paragraph 57).
29. Moreover, in either case, the national provision must be appropriate for securing the attainment of the objective pursued and not go beyond what is necessary in order to attain it (see Commission  v Italy , paragraph 59 and the case-law cited).
32. Furthermore, according to settled case-law, national measures capable of hindering intra-Community trade may be justified by the objective of protection of the environment provided that the measures in question are proportionate to the aim pursued (see Case C-524/07 Commission  v Austria  [2008] ECR I-0000, paragraph 57 and the case-law cited).
36. In that regard, although it is possible, in the present case, to envisage that measures other than the prohibition laid down in Paragraph 2 of the national regulations could guarantee a certain level of protection of the environment, the fact remains that Member States cannot be denied the possibility of attaining an objective such as the protection of the environment by the introduction of general rules which are necessary on account of the particular geographical circumstances of the Member State concerned and easily managed and supervised by the national authorities (see, by analogy, Commission  v Italy , paragraph 67).
41. In that regard, it must be observed that, in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court (Case C-450/06 Varec  [2008] ECR I-581, paragraph 23). However, in order to give the national court a useful answer, the Court may, in a spirit of cooperation with national courts, provide it with all the guidance that it deems necessary (see, inter alia, Case C-49/07 MOTOE  [2008] ECR I-0000, paragraph 30).
43. Furthermore, if the national court were to find that implementing measures were adopted within a reasonable time but after the material time of the events in the main proceedings and that those measures designate as navigable waters the waters in which the accused in the main proceedings used personal watercraft and consequently had proceedings brought against them, then, for the national regulations to remain proportionate and therefore justified in the light of the aim of protection of the environment, the accused would have to be allowed to rely on that designation; that is also dictated by the general principle of Community law of the retroactive application of the most favourable criminal law and the most lenient penalty (see, to that effect, Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconi and Others  [2005] ECR I-3565, paragraph 68).
44. In the light of the foregoing, the answer to the questions referred is that Directive 94/25, as amended by Directive 2003/44, does not preclude national regulations which, for reasons relating to the protection of the environment, prohibit the use of personal watercraft on waters other than designated waterways. Articles 28 EC and 30 EC do not preclude such national regulations, provided that:
– the competent national authorities are required to adopt the implementing measures provided for in order to designate waters other than general navigable waterways on which personal watercraft may be used;
– those authorities have actually made use of the power conferred on them in that regard and designated the waters which satisfy the conditions laid down in the national regulations, and
– such measures have been adopted within a reasonable period after the entry into force of those regulations.
It is for the national court to ascertain whether those conditions have been satisfied in the main proceedings.
Costs