1 This request for a preliminary ruling concerns the interpretation of Article 1(11) and Article 8(1) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 (OJ 2012 L 316, p. 12) (‘Directive 98/34’), and of Article 34 TFEU.
2 The request has been made in proceedings between SIA „EUROPARK LATVIA” (‘Europark’) and SKIDATA GmbH (‘Skidata’), on the one hand, and the Valsts ieņēmumu dienests (National Tax Authority, Latvia), on the other, concerning a decision by which the National Tax Authority removed from its database automatic payment devices manufactured by Skidata.
3 Article 1 of Directive 98/34/EC provided: ‘For the purposes of this Directive, the following meanings shall apply: …’
4 The first subparagraph of Article 8(1) of that directive provided: ‘Subject to Article 10, Member States shall immediately communicate to the Commission any draft technical regulation, except where it 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 statement of the grounds which make the enactment of such a technical regulation necessary, where these have not already been made clear in the draft.’
5 Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1) repealed and replaced Directive 98/34 as of 7 October 2015.
6 Article 1(1) of Directive 2015/1535 provides: ‘For the purposes of this Directive, the following definitions apply: …’
7 The first subparagraph of Article 5(1) of that directive provides: ‘Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it 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 statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.’
8 Article 281(41) of the Likums Par nodokļiem un nodevām (Law on taxes and duties) provides: ‘Taxpayers may use electronic devices and equipment that comply with the technical requirements applicable to electronic devices and equipment for registering taxes and other payments which have been subjected to a conformity assessment. Electronic devices and equipment may be maintained by a maintenance service provider having undergone a conformity assessment in accordance with the relevant rules.’
9 Article 1214(4) of the Ministru kabineta noteikumi Nr. 96 ‘Nodokļu un citu maksājumureģistrēšanas elektronisko ierīču un iekārtu lietošanas kārtība’ (Decree No 96 of the Council of Ministers laying down rules governing the use of electronic devices and equipment for registering taxes and other payments) of 11 February 2014 (‘the rules on use’) provides: ‘For the purposes of conformity-assessing models of POS terminals, hybrid POS terminals, POS systems, specialised devices and equipment, as well as modifications thereto and the software versions thereof, the maintenance service provider shall provide the [conformity assessment] body with the corresponding technical documentation in the language of the manufacturer, together with a notarially certified translation in the national language. That technical documentation shall include: the source code (human-readable computer instructions written by a programmer) and the executable code (set of symbols understood by a computer to execute a program compiled by a programmer) of the software and of the fiscal memory module.’
10 Article 1215 of those rules of use provides: ‘Within a period of six months from receipt of the documents referred to in Article 1214 of this Decree, the conformity assessment body shall issue to the maintenance service provider a statement as to the conformity of the model of the POS terminal, hybrid POS terminal, POS system, specialised device or equipment in question … with the technical requirements applicable to electronic devices and equipment for registering taxes and other payments … or shall inform it of its refusal to issue such a statement of conformity.’
11 Under Article 1294(6) of those rules of use: ‘When registering in the unified database (register) of the State Tax Administration the model of, or modification to, a POS terminal, a hybrid POS terminal, a POS system or a specialised device or piece of equipment maintained by a maintenance service provider, that provider, be it the manufacturer of the equipment or device or an authorised representative of the manufacturer, shall supply the source code for the registered software to the State Tax Administration within 24 hours, should the latter request it.’
12 Point 1.2.2 of 12917(1) of the rules of use provides: ‘The State Tax Administration shall remove from the unified database (register): POS terminals, hybrid POS terminals, POS systems, and specialised devices and equipment registered in the name of a user: [in the case where] the conditions laid down in the regulations governing the technical requirements applicable to electronic devices and equipment for registering taxes and other payments are not met. The State Tax Administration shall inform the user of such removal from the unified database (register) within 15 working days.’
13 Europark is a Latvian commercial company which provides parking services in the field of transport. Skidata is an Austrian trading company which manufactures automatic payment devices in Austria and exports them to 25 Member States, including Latvia.
14 On 30 June and 27 November 2015, Europark acquired eight automatic payment devices from Skidata, which, between 8 October and 30 December 2015, were registered as such by the national tax authority in its database.
15 By letter of 16 May 2022, SIA „Ernst & Young Baltic”, the body responsible for assessing conformity with the technical tax requirements of the cash registers and automatic devices, informed the national tax authority that it had refused to issue a declaration of conformity for those eight devices, on the ground that SIA „ 19 points”, the maintenance service provider, had not communicated to it the data provided for in Article 1214(4) of the rules of use, namely the source code and the executable code of the registered software for those devices.
16 Consequently, by decision of 2 September 2022, that authority removed them from its database.
17 Europark and Skidata then brought an action for annulment of that decision before the administratīvā rajona tiesa, Rīgas tiesu nams (District Administrative Court, Riga Section, Latvia), the referring court. They submit that the rules of use require the disclosure of the source code and the executable code of the registered software and constitute a technical requirement which should have been notified to the Commission, in accordance with the requirements of Directive 2015/1535.
18 Furthermore, they point out that Europark, as the acquirer of a right to use software, may not lawfully obtain and disclose on its own initiative the source code of the software without the consent of its manufacturer Skidata, since that code belongs to the manufacturer and is a trade secret. The obligation to provide the source code thus constitutes a disproportionate infringement of the manufacturer’s intellectual property rights.
19 In that context, the referring court notes, in the first place, that the automatic payment devices in the main proceedings are ‘products’ within the meaning of Article 1(1) of Directive 98/34. Accordingly, it is uncertain whether the obligation to provide the source code of the registered software of those devices is covered by the concept of ‘technical regulation’, within the meaning of Article 1(11) of that directive, which distinguishes four categories of measures. If the answer to that question is in the affirmative, the referring court is uncertain as to the category to which such an obligation should be linked.
20 According to the referring court, that obligation could fall within three of those categories and, therefore, be classified either as a ‘technical specification’ within the meaning of Article 1(3) of Directive 98/34, as ‘other requirements’ within the meaning of Article 1(4) of that directive, or as rules ‘prohibiting the manufacture, importation, marketing or use of a product’, referred to in Article 1(11) of that directive.
21 In the second place, the referring court seeks guidance as to whether the requirement to provide the source code for registered software to a conformity assessment body may be regarded as being a measure having an effect equivalent to a quantitative restriction on imports for the purposes of Article 34 TFEU.
22 It considers that that obligation pursues a legitimate objective in that it enables the national tax authority to ensure that the registrations are correct and to avoid any failure to register or pay taxes. However, it raises the question whether such an obligation is necessary in order to achieve that objective. It points out that Skidata provides in other Member States, for the purposes of carrying out the checks in question, an interface for programming the application of automatic devices, such as those in the main proceedings, enabling the body responsible for assessing conformity with tax requirements to obtain all the necessary information on payments. In addition, the referring court notes that Skidata had also agreed to provide the part of the source code relating to the registration of payments and taxes for the purposes of the conformity assessment. However, the regulatory body in the main proceedings did not approve that proposal and continues to require notification of the full source code.
23 In that regard, the referring court considers that, although the obligation laid down by the national legislation at issue in the main proceedings does not prohibit the marketing of automatic payment devices on the Latvian market, it imposes a double burden on the manufacturer of those devices, which must comply with both the rules of the country of manufacture and those of the country of marketing. Therefore, according to the referring court, such an obligation may increase the difficulty and cost of importing those devices, with the result that it could deter the operators concerned from marketing them in Latvia.
24 In those circumstances, the administratīvā rajona tiesa, Rīgas tiesu nams (District Administrative Court, Riga Section) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
25 As a preliminary point, it should be recalled that, as is apparent from Articles 10 and 11 of Directive 2015/1535, Directive 98/34 was repealed with effect from 7 October 2015, the date on which Directive 2015/1535 entered into force. It is apparent from the order for reference that Europark acquired some of the automatic payment devices at issue on 30 June 2015, while the others were acquired after 7 October 2015. The eight devices in question were registered in the national tax authority’s database, then removed from that database after that date. It follows that both the provisions of Directive 98/34 and those of Directive 2015/1535 are applicable ratione temporis to the facts in the main proceedings.
26 However, since the provisions of those directives relevant to the case in the main proceedings are drafted in comparable terms, it is appropriate for the Court to restrict its analysis to the provisions of Directive 2015/1535.
27 In addition, it should be noted that the referring court asked the Court, by its first question, to interpret Article 1(11) of Directive 98/34, in the light of Article 8(1) of that directive, under which Member States are immediately to communicate to the Commission any draft ‘technical regulation’ within the meaning of Article 1(11) of that directive. In that regard, it should be borne in mind, as the referring court also noted, that, according to settled case-law, failure by a Member State to comply with its obligation to communicate such a draft regulation in advance renders the ‘technical regulation’ unenforceable against individuals (judgment of 3 December 2020, Star Taxi App, C‑62/19, EU:C:2020:980, paragraph 57 and the case-law cited).
28 The Court therefore considers that, by its first question, the referring court is asking whether Article 1(1)(f) of Directive 2015/1535 must be interpreted as meaning that a national rule which requires the service provider responsible for maintaining automatic payment devices to provide the body responsible for assessing the conformity of those devices with the source code of their registered software constitutes a ‘technical regulation’, within the meaning of that provision, which may be enforced against individuals only if the corresponding draft regulation has been communicated to the Commission in advance, in accordance with the first subparagraph of Article 5(1) of Directive 2015/1535.
29 It must be borne in mind that Article 1(1)(f) of Directive 2015/1535 distinguishes four categories of measures which may be regarded as ‘technical regulations’ within the meaning of that directive: (i) ‘technical specifications’; (ii) ‘other requirements’; (iii) ‘rules on services’; and (iv) ‘laws, regulations or administrative provisions of Member States … prohibiting the manufacture, importation, marketing or use of a product’. The first three categories of measures are defined in points (c) to (e) of Article 1(1), respectively.
30 In order to answer the question referred, it is therefore necessary to examine whether the obligation to provide a conformity assessment body with the source code of the registered software in automatic payment devices, such as the obligation laid down by the rules of use, falls within one of those four categories of technical regulations.
31 It must be stated, in the first place, that the referring court’s questions do not relate to information society services, that is to say, services provided at a distance, by electronic means and at the individual request of a recipient, but to specific products and their use, automatic payment devices in this case. There is therefore no need to examine whether such an obligation falls within the category of ‘rules on services’ within the meaning of Article 1(1)(e) of Directive 2015/1535.
32 In the second place, it must be ascertained whether that obligation may fall within the category of ‘laws, regulations or administrative provisions of Member States … prohibiting the manufacture, importation, marketing or use of a product’ within the meaning of Article 1(1)(f) of Directive 2015/1535.
33 In the present case, although the failure to communicate the source code of the registered software package of automatic payment devices to the conformity assessment body makes it impossible to use those devices for the registration of transactions and payments, the rules of use at issue in the main proceedings do not, however, prohibit the manufacture, importation, marketing or use of such devices.
34 Consequently, the obligation to provide the source code of the registered software laid down in the rules of use at issue in the main proceedings cannot fall within the category of ‘laws, regulations or administrative provisions of Member States … prohibiting the manufacture, importation, marketing or use of a product’ within the meaning of Article 1(1)(f) of Directive 2015/1535.
35 In the third place, as regards whether that obligation is covered by the concept of ‘technical specification’ within the meaning of Article 1(1)(c) of Directive 2015/1535, it should be borne in mind that that concept refers to the specifications 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, inter alia, conformity assessment procedures.
36 In accordance with the Court’s settled case-law, the concept of ‘technical specification’ presupposes that the national measure necessarily refers to the product or its packaging as such and thus lays down one of the characteristics required of a product (judgment of 24 November 2022, Belplant, C‑658/21, EU:C:2022:925, paragraph 24 and the case-law cited).
37 The Court has also held that national legislation which makes the marketing of a product subject to prior authorisation must be classified as a ‘technical regulation’ within the meaning of Article 1(1)(f) of Directive 2015/1535 (see, to that effect, judgment of 22 January 2002, Canal Satélite Digital, C‑390/99, EU:C:2002:34, paragraph 46 and the case-law cited).
38 In the case in the main proceedings, the obligation imposed on the provider of maintenance services by Article 1214(4) of the rules of use to provide the body responsible for assessing the conformity of the products concerned with the technical documentation concerning those products, which must include the source code and the executable code of the registered software, refers to the products as such. More specifically, the national legislation provides that the source code consists of human-readable computer instructions written by a programmer and that the executable code has the set of symbols understood by a computer to execute a program. In addition, that legislation states that that documentation must be provided in the language of the manufacturer, together with a notarially certified translation in the national language. Therefore, the national legislation in the main proceedings refers to the product as such and requires maintenance service providers to provide the technical documentation containing, inter alia, the source code and the executable code of the registered software, which should be regarded as being required and specific characteristics for all automatic sales machines because they cannot be imposed on products which do not have the source code and the executable code of the registered software.
39 In addition, the obligation to communicate the source code and the executable code of the registered software is a requirement that applies to automatic payment devices in the context of the procedure for assessing their conformity with tax requirements. In this respect, those codes must be checked during the conformity assessment by the conformity assessment body. If this information is not provided, automatic payment devices cannot obtain the declaration of conformity necessary for them to be registered in the unified database of the national tax authority, which, in principle, prevents them from being placed on the market in Latvia. Lastly, the Court observes that the rules and requirements of the conformity assessment procedure are laid down by the rules on use which were not notified to the Commission in accordance with the first subparagraph of Article 5(1) of Directive 2015/1535.
40 Consequently, a national rule, such as that at issue in the main proceedings, which requires the service provider responsible for maintaining automatic payment devices to provide the body responsible for assessing the conformity of those devices with the technical documentation which contains, inter alia, the source code of the registered software falls within the concept of ‘technical specification’, within the meaning of Article 1(1)(c) of Directive 2015/1535, and thus constitutes a ‘technical regulation’ within the meaning of Article 1(1)(f) of that directive.
41 In the fourth and last place, it is necessary to assess whether the obligation to provide the source code of the registered software may be classified as a ‘technical regulation’ because it belongs to the category of ‘other requirements’ within the meaning of Article 1(1)(d) of Directive 2015/1535. Under that provision, that concept covers all requirements, other than a technical specification, imposed on a product for the purpose of protecting, in particular, consumers or the environment, and which affect 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.
42 The Court considers that, in so far as that obligation falls within the concept of ‘technical specification’, as stated in paragraph 40 of the present judgment, it cannot be classified as an ‘other requirement’. Indeed, in accordance with the definition of that concept set out in the preceding paragraph, it does not cover ‘technical specifications’.
43 However, for the sake of completeness, it should be noted that the Court has held that, in order to be classified as ‘other requirements’, the national measures concerned must constitute ‘conditions’ capable of significantly influencing the composition, nature or marketing of the product concerned (see, to that effect, judgment of 9 March 2023, Vapo Atlantic, C‑604/21, EU:C:2023:175, paragraph 39 and the case-law cited).
44 In the present case, it should be noted that a national rule such as that in the main proceedings, which requires service providers responsible for the maintenance of automatic payment devices to provide the body responsible for assessing the conformity of those devices with the source code and the executable code of the registered software of those devices in order to obtain a declaration of conformity necessary for those devices to be registered in the unified database of the national tax authority is liable to affect the marketing of those devices. Failure to comply with that obligation may significantly influence the marketing of automatic payment devices, since economic operators have no incentive to acquire them and the devices cannot, in reality, be used for their intended purpose. Furthermore, it must be borne in mind that, as is apparent from the order for reference, the obligation to provide the source code and the executable code of the registered software at issue in the main proceedings is not intended to protect consumers or the environment, but enables the State to ensure compliance with reporting obligations and to ensure the assessment of the payment of taxes.
45 Therefore, a national rule such as that at issue in the main proceedings cannot be regarded as constituting an ‘other requirement’ for the purposes of Article 1(1)(d) of Directive 2015/1535.
46 Having regard to all the foregoing considerations, the answer to the first question is that Article 1(1)(f) of Directive 2015/1535 must be interpreted as meaning that a national rule which requires the service provider responsible for maintaining automatic payment devices to provide the body responsible for assessing the conformity of those devices with the source code of their registered software constitutes a ‘technical regulation’, within the meaning of that provision, which may be enforced against individuals only if the corresponding draft regulation has been communicated to the Commission in advance, in accordance with the first subparagraph of Article 5(1) of that directive.
47 In the light of the answer given to the first question, there is no need to answer the second and third questions.
48 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.