Mr Lemmens was prosecuted in the Netherlands for driving a vehicle while under the influence of alcohol.

In the Netherlands, evidence of an infringement of that kind is provided by a breath analysis carried out by means of a breathalyser of the type prescribed by the Minister of Justice and approved by an official control body. Such approval is given on the basis of technical characteristics specified by the relevant Netherlands legislation.

A Community directive requires Member States to notify draft technical regulations to the Commission. In a previous judgment (Case C-194/94 CIA Security International), the Court held that breach of that obligation to notify rendered the technical regulations concerned inapplicable, so that they were unenforceable against individuals.

On discovering that the Netherlands measures concerning the approval of breathalysers had not been notified to the Commission, Mr Lemmens raised the question of the effect of that omission in the criminal proceedings which had been instituted against him.

The Netherlands court thus asked the Court of Justice to establish whether breach by a Member State of the obligation to notify a technical regulation on breathalysers had the effect of making it impossible for evidence obtained by means of such apparatus to be relied upon against individuals charged with driving under the influence of alcohol.

To begin with, the Court recalled that the directive is designed to protect the free movement of goods in so far as technical regulations are liable to constitute obstacles to trade in goods between the Member States. The Court went on to point out that, in criminal proceedings, the regulations applied to the accused are those which, on the one hand, prohibit and penalise driving while under the influence of alcohol and, on the other, require a driver to exhale his breath into an apparatus in order to provide evidence. Such regulations differ from those which, not having been notified to the Commission, are unenforceable against individuals.

Hence the absence of such notification does not have the effect of rendering unlawful any use of a product that is in conformity with regulations which have not been notified. The use of a product by the public authorities in criminal proceedings is not liable to create an obstacle to trade which could have been avoided if the notification procedure had been followed.

In conclusion, the absence of notification does not have the effect of making it impossible for evidence obtained by means of a breathalyser, authorised in accordance with regulations which have not been notified, to be relied upon against individuals charged with driving while under the influence of alcohol.

This press release is an unofficial document for media use which does not bind the Court of First Instance.

For the full text of the judgment, consult our Internet page www.curia.eu.int at around 3 pm today. For further information, contact Jessica Larsson phone: (352) 4303 3651 fax: (352) 4303 2500