1 By application lodged at the Court Registry on 30 September 1994, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by adopting on 19 September 1990 an order derogating from the Margarinebesluit (Margarine Decree) without notifying it to the Commission at the drafting stage, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 8 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, hereinafter "the directive"), as amended by Council Directive 88/182/EEC of 22 March 1988 (OJ 1988 L 81, p. 75).
2 The Vrijstellingsregeling Margarinebesluit (Order on derogations from the Margarine Decree, hereinafter "the disputed order") provides for the following derogations from provisions of the Margarine Decree (Staatsblad 1961, 398), as last amended by the Royal Decree of 13 June 1985 (Staatsblad 1985, 386): ° a low-sodium substitute may be used in place of sodium chloride (Article 1(1)(a)); ° E472c (citric acid esters) may be used as an emulsifier in margarine provided that the E472c content in the foodstuff does not exceed 1 gram per 100 grams (Article 1(1)(b)); ° the use of Vitamin D2 (ergocalciferol) instead of Vitamin D3 (cholecalciferol) is permitted; it is now possible to produce a totally vegetable margarine since Vitamin D2 is produced from a raw material which is not of animal origin (Article 1(2) and (4) and Article 2); ° the water content of margarine may now exceed 16% (Article 1(3)); ° the words "low-sodium food" or "for low-sodium diets" may replace "for a low-salt diet" or "low-salt food" (Article 1(5)); ° the maximum sodium content for unsalted margarine is increased from 40 to 50 milligrams per 100 grams (Article 1(6)).
3 The Commission considers that the disputed order should have been notified to it at the drafting stage, in accordance with the first subparagraph of Article 8(1) of the directive, which provides that: "1. Member States shall immediately communicate to the Commission any draft technical regulation, except where such technical regulation merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a brief statement of the grounds which make the enactment of such a technical regulation necessary, where these are not already made clear in the draft. Where appropriate, Member States shall simultaneously communicate the text of the basic legislative or regulatory provisions principally and directly concerned, should knowledge of such text be necessary to assess the implications of the draft technical regulation."
4 The concept of technical regulation, mentioned in Article 8, is defined in Article 1(5) of the directive as follows: "5. 'technical regulation' , 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 Since it considered that the disputed order was a technical regulation which should have been notified to it at the drafting stage, in accordance with Article 8(1) of the directive, the Commission, by letter of formal notice of 6 March 1992, called on the Netherlands Government to submit its observations.
6 By letter of 2 June 1992, the Netherlands Government maintained that the directive was not applicable to national technical regulations where, as in the present case, they did not create a new barrier to trade.
7 Notwithstanding those explanations, on 15 January 1993 the Commission sent the Kingdom of the Netherlands a reasoned opinion in which it pointed out that the disputed order did not provide for mere derogation from the Margarine Decree but determined the conditions under which substitute products are to be used. The Commission accordingly considered that the disputed order contained technical regulations and was therefore covered by the directive. As to the Netherlands Government' s argument that the disputed order did not create a new barrier to trade, the Commission observed that such an argument could have been confirmed or rebutted if the Netherlands authorities had notified the disputed order to the Commission at the drafting stage in accordance with Article 8 of the directive.
8 By letter of 3 June 1993, the Netherlands Government transmitted to the Commission its observations on the reasoned opinion referring to two letters which it had sent to the Commission, including that of 2 June 1992, which constituted its response to the letter of formal notice.
9 The Commission thereupon brought this action.
10 The Commission considers that the fact that the disputed order provides for derogations from certain technical regulations contained in the Margarine Decree does not relieve the Netherlands authorities from the obligation to notify the measure to it at the drafting stage. That order does not merely grant an exemption but lays down the conditions governing the use of certain substitute products which may now be used in the manufacture of margarine. Where a manufacturer wishes to benefit from those exemptions, he must necessarily comply with the conditions now laid down in the disputed order.
11 According to the Netherlands Government, the disputed order is not a technical regulation since it derogates from existing technical regulations. While there is no denying that technical regulations which, by imposing obligations on economic operators, are or may be barriers to trade fall under the directive, according to the Netherlands Government, provisions derogating from conditions to which products had previously been subject are not covered by it. That view is borne out by Article 1(5) of the directive which defines a technical regulation as referring to "... technical specifications, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto ...". The words "compulsory observance" refer to obligations imposed by the Member States and not to elimination of or derogation from such obligations. In the latter case, the regulations concerned need not be notified and, therefore, neither elimination nor exemption constitutes a technical regulation within the meaning of Article 1(5) of the directive.
12 That argument cannot be accepted.
13 The application to a specific product such as margarine of a regulation derogating from another technical regulation already in existence concerning the same product constitutes a technical regulation within the meaning of Article 1(5) of the directive since it establishes technical specifications within the meaning of Article 1(1) the observance of which is compulsory, de jure or de facto, when that product is marketed or used. If margarine is not manufactured in accordance with the provisions of the Margarine Decree, it may only be manufactured using substitute products authorized by the disputed order. Not only is the use of those substitute products restricted by the conditions laid down in the disputed order, but those products are the only alternatives to the products which may be used under the Margarine Decree. The disputed order should therefore have been notified in accordance with the directive.
14 That assessment cannot be undermined by the Netherlands Government' s argument that the effect of the disputed order is to encourage the marketing of margarine and that it therefore complies with the directive' s main objective of eliminating barriers to intra-Community trade in goods.
15 Member States are required to communicate to the Commission any draft technical regulation in accordance with Article 8 of the directive. Such an obligation cannot be subject to the unilateral assessment by the Member State which drafted the regulation of the effects which it may have on trade between Member States.
16 Accordingly, it must be held that, by adopting on 19 September 1990 the disputed order without notifying it to the Commission at the drafting stage, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 8 of the directive.