1 By judgment of 10 August 1998, received at the Court on 14 August 1998, the Nederlandse Raad van State (Council of State, the Netherlands) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) six questions on the interpretation of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983 L 109, p. 8), as amended by Council Directive 88/182/EEC of 22 March 1988 (OJ 1988 L 81, p. 75, hereinafter Directive 83/189) and by Directive 94/10/EC of the European Parliament and the Council of 23 March 1994 materially amending for the second time Directive 83/189 (OJ 1994 L 100, p. 30), and of Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC).
2 Those questions were raised in proceedings between Snellers Auto's BV (Snellers), established in Deurningen (The Netherlands), and the Algemeen Directeur van de Dienst Wegverkeer (Director-General of the Road Traffic Office) regarding the determination of the date on which an imported vehicle was first authorised for use on the public highway. Community law
3 Pursuant to Article 30 of the Treaty, quantitative restrictions on imports and measures having equivalent effect are to be prohibited between Member States. Article 36 of the Treaty provides that prohibitions and restrictions on imports between Member States which are justified on grounds, inter alia, of public policy, public security and the protection of health of humans are permitted, so long as they do not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
4 Article 1(5) of Directive 83/189 defines the term technical regulation as meaning technical specifications, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof, except those laid down by local authorities.
5 According to Article 1(1) of the Directive, a technical specification is a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards terminology, symbols, testing and test methods, packaging, marking or labelling.
6 Articles 8 and 9 of Directive 83/189 require Member States both to communicate to the Commission any draft technical regulation falling within its scope and, in certain cases, to postpone the adoption of such drafts for several months to allow the Commission to verify whether such drafts are compatible with Community law or to propose or adopt a directive on the subject.
7 It follows from the 12th and 14th recitals in the preamble to Directive 94/10, first, that the implementation of Directive 83/189 has revealed the need to clarify the concept of a de facto technical regulation, in particular as regards the provisions by which the public authority refers to technical specifications or other requirements, or encourages the observance thereof, and, second, that experience of the operation of Directive 83/189 has also revealed the need to clarify or explain in more detail certain definitions, rules of procedure or obligations of the Member States under the Directive.
8 Thus, Article 1(2) and (3) of Directive 83/189, as amended by Directive 94/10, contains the following new definitions: 2. "technical specification", a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking or labelling and conformity assessment procedures; ... 3. "other requirement", a requirement, other than a technical specification, imposed on a product for the purpose of protecting, in particular, consumers or the environment, and which affects its life cycle after it has been placed on the market, such as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the composition or nature of the product or its marketing.
9 Article 1(9) of Directive 83/189, as amended by Directive 94/10, provides that technical regulation for the purposes of that directive is to mean technical specifications and other requirements, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 10, prohibiting the manufacture, importation, marketing or use of a product.
10 Under Article 2 of Directive 94/10, Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with that directive before 1 July 1995. National law
11 The Wegenverkeerswet 1994 (Road Traffic Law) forms the basis of the Netherlands road traffic regulations. It sets up a public body, the Dienst Wegverkeer (Road Traffic Office), which is responsible for issuing motor vehicle registration certificates in the Netherlands.
12 Those certificates consist of three parts. Part I contains the detailed technical data concerning the vehicle and a section, entitled Details, which states the date on which the vehicle was first authorised for use on the public highway.
13 The rules concerning the way in which that date is determined are laid down in the Regeling houdende vaststelling van regels omtrent de wijze waarop de datum van eerste toelating tot de openbare weg op het kentekenbewijs, dan wel het registratiebewijs van een voertuig wordt bepaald (Regulation establishing the procedure for determining the date on which a vehicle was first authorised for use on the public highway which is to be entered on its registration certificate, hereinafter the regulation). That regulation was adopted by the Minister for Transport and Public Works on 9 December 1994 and entered into force on 1 January 1995.
14 For the purpose of determining the date on which a vehicle was first authorised for use on the public highway, the regulation essentially envisages three cases.
15 The first case concerns vehicles which have never been registered either in the Netherlands or abroad. In that event, Article 3 of the regulation provides that the Dienst Wegverkeer is to determine whether the vehicle shows clear signs of previous use. If it does, the date of first authorisation for use on the public highway is the date on which the vehicle was manufactured. If the vehicle shows no clear signs of previous use, the Dienst Wegverkeer issues a blank registration certificate, namely one on which the date of first authorisation for use on the public highway is stated to be the date of issue of the registration certificate.
16 The second case concerns vehicles which have already been registered in the Netherlands. In that event, Article 2 of the regulation provides that the information on the old Netherlands registration certificate is to be transferred to the new certificate.
17 The third case concerns vehicles which have already been registered outside the Netherlands. In that event, Article 4 of the regulation provides that the Dienst Wegverkeer is to determine whether the vehicle shows clear signs of previous use. If it does not, the Dienst Wegverkeer is authorised to issue a blank registration certificate, provided that the applicant produces: - a foreign registration certificate issued not more than two days previously, and - the original purchase invoice, indicating the seller's VAT number, the vehicle's odometer reading, which must not be more than 2 500 km, its Vehicle Identification Number and a declaration by the seller that the vehicle is new and has not been used.
18 Where the vehicle has been registered abroad for more than two days, the Dienst Wegverkeer issues a registration certificate on which the date of first authorisation for use on the public highway is stated to be the date on which such authorisation was first granted abroad. Main proceedings and questions referred to the Court
19 On 6 August 1996 Autohaus Werner Pelster GmbH (Autohaus Werner), established in Gronau (Germany), had a BMW motor car registered at the Zentrale Fahrzeugregister (Vehicle Registration Office). On the same date the German vehicle registration authority issued a registration certificate in the name of Autohaus Werner. Under German legislation, the vehicle was thus authorised for use on the public highway in Germany.
20 On 13 August 1996 Autohaus Werner, an official dealer on the BMW AG distributor network, sold the vehicle to Snellers, which, although it is not on the BMW AG distributor network, markets in the Netherlands, inter alia, BMW vehicles which it imports through parallel channels. On that date Snellers had not yet found a buyer for the vehicle. On the sales invoice the vehicle was described as new and the odometer reading, 800 km, was ascribed to the fact that the vehicle had been delivered by road from the factory to Gronau.
21 On 14 August 1996 Snellers took delivery of the vehicle in Gronau and imported it into the Netherlands. On 15 August 1996 Snellers took the vehicle to the Dienst Wegverkeer's technical inspection centre in Lichtenvoorde. During the course of that inspection Snellers was handed a form of declaration for vehicle tax/turnover tax containing, under the heading concerning the date of first authorisation for use on the public highway, the word new.
22 On 10 January 1997 the Dienst Wegverkeer issued a registration certificate containing, in Part I, under the heading Details, the following: Date of first authorisation for use on the public highway 060896.
23 By letter of 27 January 1997 Snellers lodged a complaint with the Dienst Wegverkeer against the decision that the vehicle had been authorised for use on the public highway on 6 August 1996. Snellers contended that the Dienst Wegverkeer's decision had the consequence of reducing the vehicle's value, having regard to the date of issue of the Netherlands registration certificate, 10 January 1997. Because the registration certificate stated Date of first authorisation for use on the public highway 060896, the vehicle was regarded as a 1996 vehicle, so that the purchaser found by Snellers might have cancelled the contract for the sale of the vehicle. If, on the other hand, the Dienst Wegverkeer had issued a blank certificate, the vehicle could have been regarded as a 1997 vehicle, having regard to the date on which the certificate was issued.
24 By decision of 13 February 1997 the Dienst Wegverkeer declared Snellers' complaints unfounded.
25 Snellers brought an action against that decision before the Arrondissementsrechtbank te Almelo (District Court, Almelo) and also requested the President of that court to adopt a number of interim measures. By decision of 3 April 1997 the President of the Arrondissementsrechtbank declared the action well founded and annulled the decision of 13 February 1997. By letter received on 16 April 1997 the Dienst Wegverkeer appealed against that decision before the Afdeling Bestuursrechtspraak (Administrative Appeals Division) of the Nederlandse Raad van State.
26 On appeal, Snellers maintained, first, that the regulation was a technical regulation within the meaning of Directive 83/189 which had not been communicated to the Commission as it should have been under the obligation laid down in that directive. It also claimed that, in accordance with the judgment in Case C-194/94 CIA Security International v Signalson and Securitel [1996] ECR I-2201, the Nederlandse Raad van State could not, for that reason, apply the regulation in the proceedings before it. Second, Snellers contended that the regulation was incompatible with Articles 30 and 36 of the Treaty, on the ground that it constituted a measure having an effect equivalent to a quantitative restriction on imports which could not be justified by requirements relating to protection of the environment or road safety. Questions referred to the Court
27 In those circumstances, the Nederlandse Raad van State decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: 1. For the purposes of applying Directive 83/189/EEC, as amended by Directive 88/182/EEC, to national rules adopted on 9 December 1994, is it necessary also to take into consideration the amendments introduced after that date by Directive 94/10/EC, having regard to, inter alia, the wording used in the preamble to the latter directive? 2. If Question 1 is answered in the affirmative: do rules such as [the regulation] fall within the scope of Directive 83/189/EEC, as amended by Directive 88/182/EEC and Directive 94/10/EC? 3. If Question 1 is answered in the negative: (a) Must the term "technical specification" appearing in Article 1(1) of Directive 83/189/EEC, as amended by Directive 88/182/EEC, be interpreted as meaning that it also covers rules such as [the regulation]? (b) If not, do such rules fall within the scope of Article 1(5) of the directive as thus amended (which defines the term "technical regulation")? 4. Where national rules concerning the issue of blank registration certificates do not formally differentiate between official importers and parallel importers but in fact make it more difficult for parallel importers to supply vehicles with a blank registration certificate, because they can obtain from abroad only vehicles which are already registered, and those rules make the issue of a blank registration certificate conditional on, inter alia, the relevant vehicle imported from another Member State having been registered in that other Member State for a period not exceeding two days, do those rules constitute a measure having an effect equivalent to a quantitative restriction on imports which is prohibited by Article 30 of the EC Treaty? 5. If Question 4 must be answered in the affirmative, are rules such as those contained in [the regulation] justified by considerations relating to road safety and/or protection of the environment, particularly on account of their link with the requirements applicable to vehicles and with the determination of the date from which vehicles become subject to a general obligation to undergo periodic tests? 6. If Question 5 is answered in the affirmative, must such an obstacle to trade be regarded as proportionate to the objective pursued by the national rules concerning the issue of blank registration certificates if those rules make it impossible to prove that a vehicle is new? Is the answer to that question affected by the fact that a parallel importer may agree with his supplier in another Member State that, following the issue of the foreign certificate of registration, the supplier is to seek suspension of the authorisation thus granted and is to have that suspension lifted when the parallel importer applies for registration in the country of import? First and second questions
28 By its first question, the national court is essentially asking whether, for the purposes of determining whether national rules, such as the regulation adopted on 9 December 1994, constitute a technical regulation covered by the obligation to notify the Commission laid down in Directive 83/189, it is necessary to take into account the amendments subsequently introduced by Directive 94/10.
29 In the judgment referring the questions to the Court, the national court states that, having regard to the date on which it was adopted, the regulation falls outside the scope ratione temporis of Directive 94/10, since Member States were only required to transpose that directive by 1 July 1995. Having regard to the preamble to Directive 94/10, however, the latter directive might only represent a clarification of the terms already appearing in Directive 83/189, not an extension or amendment of those terms.
30 In that regard, Snellers contends, it is significant that in the 14th recital in the preamble to Directive 94/10 the Community legislature states that experience has revealed the need to clarify certain definitions in Directive 83/189. Snellers thus maintains that the introduction of the expression name under which the product is sold into Article 1(2) of Directive 83/189, as amended by Directive 94/10, merely clarifies the definition of the term technical specification already found in Directive 83/189. Thus, Directive 94/10 is relevant to the question for the national court as to whether the regulation should have been communicated to the Commission when it was adopted.
31 It should be pointed out first of all that, as the Netherlands, Belgian, French, Austrian and United Kingdom Governments and the Commission have observed, the purpose of Directive 94/10 is not solely to clarify the terms which appear in Directive 83/189. It is clear from the title, from the second recital in the preamble to and from the actual provisions of Directive 94/10, that that directive materially amends the scope ratione materiae of Directive 83/189.
32 Consequently, and in accordance with the conclusions reached by the abovementioned Governments and the Commission, it must be held that, for the purposes of determining whether the regulation is to be classified as a technical regulation within the meaning of the Community rules, it is necessary to have regard to the definition of that term set out in Directive 83/189, since the amendment of that definition introduced by Directive 94/10 does not merely serve to clarify the term.
33 The answer to the first question must therefore be that, for the purposes of determining whether national rules, such as the regulation adopted on 9 December 1994, constitute a technical regulation covered by the obligation to notify the Commission laid down in Directive 83/189, the subsequent amendments introduced by Directive 94/10 should not be taken into consideration.
34 In the light of the answer to the first question, there is no need to answer the second question. Third question
35 By its third question, the national court is essentially asking whether national rules concerning the determination of the date on which a vehicle was first authorised for use on the public highway, such as the regulation, are covered by Directive 83/189.
36 Snellers contends that the regulation comes within the definition of technical specification in Article 1(1) of Directive 83/189. It refers to the fact that Article 1(1) provides that the requirements relating to the marking or labelling of products are to be covered by that definition. Snellers maintains that the indication on a document of the date on which a vehicle was first authorised for use on the highway, which varies according to whether the vehicle in question has been registered for more than or less than two days, must be regarded as the marking and labelling of a product as a new, unused product.
37 In that regard, it must be held that, as the Netherlands, French and Austrian Governments and the Commission observe, rules which, like those at issue in the main proceedings, are designed to determine the date on which a vehicle is first authorised for use on the public highway are not technical specifications for the purposes of Directive 83/189 and cannot therefore be classified as technical regulations falling within the scope of that directive.
38 Article 1(1) of Directive 83/189 provides that, as regards products such as those at issue in the main proceedings, a technical specification for the purposes of that directive is a specification contained in a document which lays down the characteristics required of a product. Technical specifications for the purposes of Directive 83/189 must thus refer to the product as such; that is, moreover, confirmed by the non-exhaustive list of the specifications concerned provided by way of example in Article 1(1) of that directive.
39 The regulation lays down a number of criteria for establishing the date on which a vehicle, for the purposes of the Wegenverkeerswet, is deemed to have been first authorised for use on the public highway, for the purposes of drawing up a registration certificate. The regulation does not therefore define any characteristic required of the product as such.
40 In those circumstances, the answer to the third question must be that national rules concerning the determination of the date on which a vehicle was first authorised for use on the public highway, such as the regulation, do not fall within the scope of Directive 83/189. Fourth question
41 By its fourth question, the national court is essentially asking whether national rules which provide that the date on which an imported vehicle was first authorised for use on the public highway is to be fixed at the date on which its registration certificate is issued only where the vehicle has not been registered for more than two days in another Member State (the contested condition) constitute a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the Treaty.
42 The national court observes that the regulation draws no formal distinction between official importers and parallel importers, but that its practical effect is to place parallel importers at a disadvantage by comparison with official importers.
43 Snellers claims that the regulation constitutes a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the Treaty. It observes that in practice it is virtually impossible for parallel importers to obtain supplies of unregistered vehicles from approved dealers in other Member States, since vehicle manufacturers and suppliers generally prohibit their approved dealers from selling unregistered vehicles. Snellers further contends that as a result of the regulation it is only able to sell vehicles at a lower price than it paid for them, although it informs purchasers that the vehicles in question are new and unused. Purchasers take into account the price they might receive if they resold the vehicles in question as used vehicles. In the Netherlands, that price is essentially determined by the date of first authorisation shown on the Netherlands registration certificate. When a vehicle is resold there is no documentary proof of whether the vehicle was a new, unused vehicle when the certificate was issued, since that fact is not indicated on the certificate. It is precisely because the vehicle would realise a lower resale price that Netherlands purchasers do not purchase such vehicles, or do not purchase them at the same price.
44 The Netherlands Government maintains that the way in which the date of first authorisation for use on the public highway is determined in the Netherlands does not constitute a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the Treaty. It follows from the regulation that where application is made in the Netherlands for a registration certificate for a vehicle which has already been authorised for use on the public highway on a previous date, in principle it is the latter date which is entered on the registration certificate as the date of first authorisation for use on the public highway. In that regard, no distinction is made according to the place where such authorisation was first granted. Any obstacles which parallel importers may encounter are the result of the constraints which manufacturers impose on their approved distributors.
45 The Austrian Government and the Commission maintain that a national rule such as the regulation has the effect that the parallel distribution channel is placed at a disadvantage by comparison with the official network and can therefore be regarded as a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the Treaty.
46 In that regard, it must be pointed out that, even though the regulation draws no formal distinction between official importers and parallel importers, in practice it places parallel importers at a disadvantage in that they must comply with strict requirements which are difficult to satisfy in order to obtain registration certificates on which the date on which the vehicle was first authorised for use on the public highway is shown as the date on which the certificate was issued. The regulation thus does not have the same effect on the marketing of vehicles imported by approved distributors and the marketing of vehicles imported via parallel channels by non-approved distributors.
47 The fact that the difficulties which parallel importers experience in complying with the contested condition may be caused by problems which they encounter in obtaining from approved dealers in other Member States vehicles registered on a date which enables them to comply with that condition, as the Netherlands Government has observed, does not mean that that condition does not constitute an obstacle to the free movement of goods for the purposes of Article 30 of the Treaty.
48 Therefore the answer to the fourth question must be that national rules which provide that the date on which an imported vehicle was first authorised for use on the public highway is to be fixed at the date on which its registration certificate was issued only where the vehicle has not been registered for more than two days in another Member State constitute a measure having an effect equivalent to a quantitative restriction on imports for the purposes of Article 30 of the Treaty. Fifth and sixth questions
49 By its fifth and sixth questions, the national court is essentially asking whether, in spite of having restrictive effects on the free movement of goods, national rules such as the regulation may be justified by considerations relating to road safety and/or protection of the environment and, if so, whether such a restriction is proportionate to the objectives pursued.
50 In that context, the national court asks whether the answer to that question is affected by the fact that a parallel importer may agree with his supplier in the Member State of export that, after the registration certificate has been issued in that State, the supplier is to seek suspension of the authorisation thus granted and is to have that suspension lifted when the parallel importer applies for registration in the Member State of import.
51 Snellers contends that considerations of road safety and/or protection of the environment cannot justify the contested condition. Furthermore, if such an obstacle to trade were to be regarded as justified, it could not be considered proportionate to the objective pursued if it prevented the vehicle from being shown to be new.
52 The Netherlands Government claims that the contested condition is justified by considerations of road safety and protection of the environment. The interests which the regulation seeks to protect in determining the date on which the vehicle is first authorised for use on the highway are such that it is only to a very limited extent that exceptions to the rule that that date is to be determined in accordance with the true situation can be allowed. Were that not so, the aims pursued would not be achieved, or would not be sufficiently achieved. The regulation provides for one exception to the rule that it is the date on which the first registration is issued that is decisive, and such relaxation of the rule cannot be granted unless strict conditions apply.
53 The French Government contends that the protection of health and the environment by means of rules to control vehicles and polluting gas emissions from those vehicles may justify the regulation. As regards the proportionality of the measure, the French Government contends that the geographical situation of the Netherlands is such that it is possible, within a radius of 2 500 km and within a period of two days, to purchase and import a vehicle, in parallel to the official network, from any of the Member States.
54 The Commission maintains that road safety may be regarded as a ground which justifies a restriction on the free movement of goods. The older a vehicle is and the more it has been used, the more important it is to ensure that it still satisfies basic safety requirements. However, the national rule must be necessary and proportionate to the objective pursued, which is not the case here. The fact that a vehicle has been registered for more than two days in another Member State is no indication of its age or of the extent to which it has been used.
55 In that regard, it should be pointed out that it follows from settled case-law that restrictions on the free movement of goods within the meaning of Article 30 of the Treaty may be justified by imperative requirements such as road safety (see Case C-55/93 Van Schaik [1994] ECR I-4837) and protection of the environment (see Case C-341/95 Bettati [1998] ECR I-4355, paragraph 62), and that it cannot be precluded that national rules which define criteria for the determination of the date on which a vehicle was first authorised for use on the public highway, such as the regulation, may be justified. It is for the national court to ascertain whether that is actually so in the case before it.
56 If, having done so, the national court finds that such a rule is justified by considerations relating to road safety and/or protection of the environment, it still remains, according to a consistent line of decisions (see the judgment in Bettati, cited above, paragraphs 63 and 64), to be ascertained whether the restriction on the free movement of goods arising under the contested condition specifically for parallel importers is necessary to ensure road safety and/or protection of the environment and whether that restriction is not disproportionate to its objectives, particularly in the sense that no other, less restrictive, measures are available.
57 In that regard, as the Commission has observed, the fact that a vehicle has been registered in another Member State for more than two days does not provide any information as to its age or the extent to which it has been used, and, furthermore, the technical inspection makes it possible, at least to a certain degree, to establish the vehicle's technical condition and to ascertain the truth of the seller's declaration that the vehicle is new and unused.
58 Furthermore, the possibility that the parallel importer and his supplier may reach agreements in terms such as those referred to in paragraph 50 of this judgment may be taken into account for the purpose of determining whether or not the contested condition is proportionate to its objective. In order that such a factor may be taken into account, however, there must be a real possibility that the parallel importer can conclude such an agreement.
59 It is for the national court to ascertain, in the light of the foregoing considerations, whether in the present case the contested condition is actually necessary to ensure road safety and/or protection of the environment, and whether the resulting restriction is not disproportionate to those objectives, particularly in the sense that no other, less restrictive, measures are available.
60 Having regard to the foregoing, the answer to the fifth and sixth questions must be that national rules such as the regulation may, in spite of their restrictive effects on the free movement of goods, be justified by imperative requirements such as road safety and/or protection of the environment if it can be shown that the resulting restriction is necessary to ensure road safety and/or protection of the environment and that the restriction is not disproportionate to those objectives, particularly in the sense that no other, less restrictive, measures are available.