Request for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium) lodged on 20 March 2017 — Criminal proceedings against Van Gennip BVBA and Others
(Case C-37/17)
Language of the case: Dutch
Referring court
Rechtbank van eerste aanleg te Antwerpen
Party/parties to the main proceedings
Van Gennip BVBA, Antonius Johannes Maria ten Velde, Original BVBA, Antonius Cornelius Ignatius Maria van der Schoot
Questions referred
Do the following infringements of the Belgian legislation on pyrotechnic articles qualify as “serious infringements” within the meaning of Article 45 of Directive 2013/29/EU 1 of the European Parliament and of the Council of 12 June 2013 on the harmonisation of the laws of the Member States relating to the making available on the market of pyrotechnic articles:
(a) the sale of pyrotechnic articles in the amount of 2.666 kg of pyrotechnic composition, being an infringement of Articles 265(7) and 257 of the Royal Decree of 23 September 1958 laying down general rules on the manufacture, storage, detention, sale, transport and use of explosives, which prohibits the sale of pyrotechnic articles in quantities exceeding 1 kg of pyrotechnic composition, if the consumer is not in possession an individually-obtained administrative authorisation to hold a larger quantity of pyrotechnic articles;
(b) the exceeding of the determined storage limit and the non-compliance with the storage locations indicated in a federal fireworks authorisation, even though a regional environmental permit had already been issued for the storage of the actual higher quantities in question, in the locations in question;
(c) the very temporary storage of extremely small quantities of pyrotechnic articles in various locations not specifically authorised for storage, on the premises of an establishment for the retail sale of pyrotechnic articles, possessing both a federal fireworks authorisation and a regional environmental permit?
Does the principle of the free movement of pyrotechnic articles, as laid down in Article 6(1) of Directive 2007/23/EC 2 of the European Parliament and of the Council of 23 May 2007 on the placing on the market of pyrotechnic articles (now Article 4(1) of Directive 2013/29/EU of the European Parliament and of the Council of 12 June 2013 on the harmonisation of the laws of the Member States relating to the making available on the market of pyrotechnic articles), read in conjunction, if necessary, with Article 10 of Directive 2006/123/EC 3 of the European Parliament and of the Council of 12 December 2006 on services in the internal market, preclude national legislation which makes the storage of directive-compliant pyrotechnic articles associated with the retail trade subject to the twofold requirement of possessing (i) an authorisation granted pursuant to the legislation governing the manufacture, storage, holding, sale, transport and use of explosives, and (ii) an authorisation granted under the legislation on environmental authorisations for nuisance-causing structures, when both authorisation regimes essentially have the same objective (the preventive assessment of safety risks), and one of those two authorisation regimes (in this case, that relating to explosives) sets a (very) low maximum threshold for the storage of party fireworks (in the amount of 50 kg of pyrotechnic composition (that is, the active substance))?
Does the principle of the free movement of pyrotechnic articles, as laid down in Article 4(1) of Directive 2013/29/EU of the European Parliament and of the Council of 12 June 2013 on the harmonisation of the laws of the Member States relating to the making available on the market of pyrotechnic articles and Article 6(2) of Directive 2007/23/EC of the European Parliament and of the Council of 23 May 2007 on the placing on the market of pyrotechnic articles (read together, if necessary, with Articles 34, 35 and 36 of the Treaty on the Functioning of the European Union), in conjunction with the principle of proportionality, preclude national legislation which prohibits party fireworks (fireworks from categories 2 and 3 [as set out in Article 3(1)(a)] of Directive 2007/23/EC) containing more than 1 kg of pyrotechnic composition from being held or used by, or sold to, consumers?
____________1 OJ 2013 L 178, p. 27.
2 OJ 2007 L 154, p. 1.
3 OJ 2006 L 376, p. 36.