OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 7 July 2016 (1)
Case C‑220/15
European Commission
v
Federal Republic of Germany
(Failure of a Member State to fulfil obligations — Free movement of goods — Directive 2007/23/EC — Placing on the market of pyrotechnic articles — Definition of ‘placing on the market’ — Notification procedure before a national authority imposed on pyrotechnic articles bearing the CE marking — Power of the national authority to check and, if necessary, to modify the instructions of use)
I – Introduction
1. In the present case, the European Commission has brought before the Court an application under Article 258 TFEU seeking a declaration that the Federal Republic of Germany has infringed Article 6(1) 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. (2)
2. The national provision which forms the subject matter of the infringement action obliges producers and importers to notify pyrotechnic articles to the Bundesanstalt für Materialforschung und -prüfung (Federal Institute for Materials Research and Testing, ‘the BAM’) in order to get an identification number. It also gives the BAM the power to check and, if necessary, to modify the instructions of use of those articles.
3. The present case has several layers. Beneath the rather technical layer lies another, more general one, with broader implications: may a Member State be reproached for not having ‘reinterpreted’, for the purpose of its national implementation, the clear wording of a directive where that clear wording may seem questionable in terms of the overall purpose of that directive?
II – Legal framework
A – EU law
4. According to Article 1(1) of Directive 2007/23, ‘this Directive establishes rules designed to achieve the free movement of pyrotechnic articles in the internal market while, at the same time, ensuring a high level of protection of human health and public security and the protection and safety of consumers and taking into account the relevant aspects related to environmental protection’.
5. Article 2(2) of Directive 2007/23 provides that, for the purposes of this Directive: ‘“placing on the market” means the first making available on the Community market of an individual product, with a view to its distribution and/or use, whether for payment or free of charge. Fireworks built by a manufacturer for his own use and which have been approved by a Member State for use on its territory are not to be considered as having been placed on the market’.
6. Article 6 of Directive 2007/23, entitled ‘Free Movement’, provides as follows:
‘1. Member States shall not prohibit, restrict or hinder the placing on the market of pyrotechnic articles which satisfy the requirements of this Directive.
2. The provisions of this Directive shall not preclude measures taken by a Member State to prohibit or restrict the possession, use and/or the sale to the general public of category 2 and 3 fireworks, theatrical pyrotechnic articles and other pyrotechnic articles, which measures are justified on grounds of public order, security or safety, or environmental protection.
…’
7. Article 14 of Directive 2007/23, entitled ‘Market surveillance’, states that:
‘1. Member States shall take all appropriate measures to ensure that pyrotechnic articles may be placed on the market only if, when properly stored and used for their intended purpose, they do not endanger the health and safety of persons.
2. Member States shall carry out regular inspections of pyrotechnic articles on entry into the Community and at storage and manufacturing sites.
…
4. Member States shall organise and perform appropriate surveillance of products placed on the market taking due account of the presumption of the conformity of products bearing a CE marking.
…
6. Where a Member State ascertains that a pyrotechnic article, bearing a CE marking, accompanied by the EC declaration of conformity and used in accordance with its intended purpose, is liable to endanger the health and safety of persons, it shall take all appropriate provisional measures to withdraw that article from the market, to prohibit its being placed on the market or to restrict its free movement. The Member State shall inform the Commission and the other Member States thereof.
…’
B – German law
8. Paragraph 6 of the First Regulation relating to the Law on Explosives, (3) (Erste Verordnung zum Sprengstoffgesetz, ‘the 1. SprengV’) (4) provides that:
‘(4) Notice of explosive substances and pyrotechnic articles must be given to the [BAM] by the manufacturer or importer before the first use within the scope of application of the Law. The notice must enclose
…
2. the instructions required under point 3(h) of Annex I to Directive 2007/23/EC for pyrotechnic articles.
The [BAM] shall issue an identification number as proof of notice. The identification number must be included in the instructions. The [BAM] may, for the prevention of danger to the life and health of employees and third parties or to property, restrict or complete the instructions on use adopted by the manufacturer; a subsequent restriction or addition is permissible. The fourth sentence does not apply to pyrotechnic articles for vehicles or fireworks in categories 1 and 4, if the identification number is included in the lists to be maintained under point 3 of Paragraph 13(1).’
9. The BAM’s exceptional authorisation of 11 March 2014 on the labelling of pyrotechnic articles, (5) granted ex officio a general derogation from the provisions on the labelling duty under Paragraph 14(1) of the 1.SprengV in conjunction with Paragraph 6(4) of the 1. SprengV. According to this derogation, ‘contrary to the third sentence of Paragraph 6(4) of the 1. SprengV, for pyrotechnic articles within the meaning of Directive 2007/23, the inclusion of the identification number in the instructions is not required.’
III – Pre-litigation procedure
10. In the course of a control on the application of Directive 2007/23 in 2011, the Commission detected the existence of the notification procedure in Germany. After an exchange of correspondence pursuant to the EU Pilot procedure (3631/12/ENTR), the Commission sent a letter of formal notice to the Federal Republic of Germany on 25 January 2013.
11. In the letter of formal notice, the Commission stated that Article 6(4) of the 1. SprengV is not in conformity with Article 6(1) of Directive 2007/23 essentially for two reasons. First, Article 6(4) of the 1. SprengV obliges producers and importers to notify pyrotechnic articles before the BAM in order to get an identification number and to indicate that number in the instructions of use. Second, the BAM was given the power to check and, if necessary, to modify the instructions of use of those articles. In the Commission’s view, those requirements go beyond what is provided for in Directive 2007/23. Therefore, they are liable to entail an impermissible restriction on the free movement of pyrotechnic articles which have already undergone a conformity assessment in a different Member State.
12. By letter in reply of 21 March 2013, the Federal Republic of Germany contested the existence of an infringement of Directive 2007/23.
13. By letter of 23 January 2014, the Commission issued a reasoned opinion to the Federal Republic of Germany setting out its failure to fulfil its obligations under Article 6(1) of Directive 2007/23 for the reasons outlined above. The Federal Republic of Germany responded by letters of 20 March and 2 April 2014. In its response, the Federal Republic of Germany stated that, according to the derogation introduced by the BAM on 11 March 2014, the obligation to insert the identification number attributed by the BAM in the instructions of use has not been applicable since 27 March 2014. The Commission has taken note of this modification in its application but considers that that does not remedy the other breaches of Article 6(1) of Directive 2007/23 outlined in its reasoned opinion. Therefore, the Commission has decided to bring the present action under Article 258 TFEU.
IV – Procedure before the Court and forms of order sought
14. By its application of 12 May 2015, the Commission claims that the Court should:
– declare that the Federal Republic of Germany has failed to fulfil its obligations under Article 6(1) of Directive 2007/23 by prescribing, beyond the requirements of the directive, that, despite a previous successful conformity assessment of pyrotechnic articles (i) those articles are subject to the procedure of Article 6(4) of the 1. SprengV before their being placed on the market; and that (ii) pursuant to the fifth sentence of Article 6(4) of the 1. SprengV, the BAM has the power to control and, where required, to modify the instructions of every pyrotechnic article; and
– order Germany to pay the costs.
15. Germany contends that the Court should:
– dismiss the Commission’s application; and
– order the Commission to pay the costs.
16. Written observations were submitted by the Commission and by the Federal Republic of Germany. Both parties also made oral submissions at the hearing held on 27 April 2016.
V – Analysis
A – The alleged failure to comply with Article 6(1) of Directive 2007/23 and the term ‘placing on the market’
1. Subject matter of the present action
17. The present case is an infringement action under Article 258 TFEU. That fact has significant implications for the requirements relating to the action itself and ensuing proceedings. Three of those implications will be outlined by the way of an introduction in this section.
18. First, as follows from Article 120(c) of the Rules of Procedure of the Court of Justice and from relevant case-law, (6) an application by the Commission under Article 258 TFEU must state clearly and precisely the pleas in law on which the application is based, so as to enable the defendant to prepare its defence and the Court to rule on the application. The essential points of law and fact on which an action for infringement is based must be indicated coherently and intelligibly in the application itself and in the heads of claim, so that the Court does not rule ultra petita or indeed fails to rule on a complaint. (7)
19. Thus, in the context of a procedure under Article 258 TFEU, the applicant bears a dual burden. First, it must clearly identify the pertinent provisions of EU law on which it relies. Second, it carries the burden of establishing the facts which prove a violation of the specific provision(s) of EU law invoked.
20. In that regard, it has to be underlined that the present application of the Commission is based solely and exclusively on Article 6(1) of Directive 2007/23. The Commission has not invoked the infringement of any other provisions of that directive. Nor has it claimed that the Federal Republic of Germany has failed to fulfil its obligations under the Treaty provisions on the free movement of goods. Being bound by the scope of the claim as delineated by the Commission, the analysis that follows is confined to the examination of the alleged failure to comply with the specific provision of Directive 2007/23 invoked, namely Article 6(1).
21. Second, the Commission’s application is based on the argument that the German provision at issue in the present case is imposed on pyrotechnic articles that have already been subjected to a conformity assessment pursuant to the provisions of Directive 2007/23. The Commission argues that the regime under Article 6(4) of the 1. SprengV hinders the free movement of pyrotechnic articles which already bear the CE marking and is, therefore, contrary to Article 6(1) of Directive 2007/23. The Commission does not address or raise the further argument relating to the effects that the contested national provision might have on pyrotechnic articles that have not yet been subjected to conformity assessments pursuant to the directive.
22. Third, Directive 2007/23 has been repealed with effect from 1 July 2015 by 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. (8) However, as the Federal Republic of Germany has rightly pointed out, the present proceedings are solely concerned with an alleged infringement of Directive 2007/23, and therefore do not have any bearing on the situation under Directive 2013/29.
2. The meaning of Article 6(1) of Directive 2007/23
23. As is apparent from the three points made above and in view of the way in which the Commission has pleaded this action before the Court, a lot rides on the interpretation of the specific term of ‘placing on the market’ in Article 6(1) of Directive 2007/23.
24. The application of the Commission with regard to its first claim (the notification procedure of Article 6(4) of the 1. SprengV) and to its second claim (the power of the BAM to check, and if necessary, to modify and complete instructions of use, according to the fifth sentence of Article 6(4), of the 1. SprengV) maintains that the German provisions at issue in the present case are imposed on pyrotechnic articles that have already been subjected to a conformity assessment pursuant to the provisions of Directive 2007/23. According to the Commission, that is contrary to Article 6(1) of Directive 2007/23 in so far as it hinders the free movement of the pyrotechnic articles that already comply with the requirements of the directive.
25. The Federal Republic of Germany contests the claims made by the Commission. It maintains that Article 6(1) of Directive 2007/23 only relates to the ‘placing on the market’, as understood according to the definition in Article 2(2) of that directive, which refers to the ‘first making available’ on the EU market. According to Germany, this means that once a pyrotechnic article has already been made available on the EU market, Article 6(1) ceases to apply. Arguably, any further obstacles to free movement might be covered by the general provisions of the Treaty on the free movement of goods. However, since the Commission has exclusively based its application on Article 6(1) of Directive 2007/23, consideration of a possible infringement of Article 34 TFEU does not fall within the ambit of the present proceedings.
26. To my mind, the legal obligations of Member States under Article 6(1) of Directive 2007/23 lie at the heart of the present case. Two approaches to its interpretation are conceivable: (a) literal or (b) teleological. Both will be examined in turn.
a) Literal interpretation
27. Article 6(1) of Directive 2007/23 provides that ‘Member States shall not prohibit, restrict or hinder the placing on the market of pyrotechnic articles which satisfy the requirements of this Directive’. (9) For the purposes of the directive, the meaning of the term ‘placing on the market’ is clearly and explicitly defined in Article 2(2) of Directive 2007/23. Thus, the directive provides a legislative definition of the term ‘placing on the market’, defining it as the ‘first making available on the Community market of an individual product, with a view to its distribution and/or use, whether for payment or free of charge’. (10)
28. That definition, and in particular the reference to the ‘first’ making available, has the same content in the different linguistic versions of the directive. (11) A textual interpretation, including its comparative linguistic textual dimension, therefore leaves no room for doubt about the scope of that provision. (12)
b) Teleological interpretation
29. In spite of its wording, several arguments could be put forward in support of the view that the concept of ‘placing on the market’ contained in Article 6(1) of Directive 2007/23 ought to cover, in spite of its text, not only the ‘first’ making available on the EU market, but also any subsequent making available on the market(s) of the Member States, as advocated by the Commission.
30. First, it could be assumed that Article 6 was meant to be a free movement clause, as is apparent from its very title. Second, the objective of Directive 2007/23 is the promotion of the free movement of pyrotechnic articles, as follows from Article 1, and from recitals 2, 13 and 19 of the directive. Third, the structure and the system of Directive 2007/23 arguably correspond to that of a harmonisation directive, following the principles set out in the Council Resolution of 7 May 1985 on a new approach to technical harmonisation and standards, (13) at the heart of which lies the principle of the free movement of goods.
3. The limits of teleological interpretation
31. In a nutshell, the crux of this case is this: for EU law standards, a remarkably clear text of a provision of EU law states X. The Commission comes to the Court and asks it to declare that the Federal Republic of Germany has infringed its obligation under the Treaty by not interpreting that provision, against its clear wording, but arguably in the light of the overall spirit of the Directive, so as to mean Y (or rather X and Y and perhaps even Z) and has not adapted its national laws accordingly.
32. For a number of reasons, which I set out below in the remainder of this section, I am of the opinion that such a declaration would be profoundly problematic, to say the least. The Commission’s application ought to be dismissed. Three reasons stand out in this regard: the limits of legal interpretation; the separation of powers; and the principles of legality and legal certainty.
33. First, there are limits to legal interpretation, as opposed to legislative drafting. Certainly, according to the Court’s established case-law, when interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. (14) Furthermore, where a provision of EU law is open to several interpretations, preference must be given to the interpretation which ensures that the provision retains its effectiveness. (15) The objectives and the general context of an instrument of secondary law are therefore naturally relevant for the determination of the meaning and scope of concepts for which EU law provides no definition. (16)
34. However, the standard statements of the Court’s approach to legal interpretation are preceded by a qualification: the text of the provision itself must be open to different interpretations, presenting some degree of textual ambiguity and vagueness.
35. Naturally, interpretative ambiguity is not bipolar. A provision is not either entirely clear or entirely unclear: there is a sliding scale. There are degrees of ambiguity. It is precisely on such scale of ambiguity that the traditional methods of interpretation (text, context, purpose) complement each other. The more textual ambiguity, the greater the need for reliance on context and/or purpose. Conversely, the greater textual precision and clarity, the less need there is, in general, for context and purpose.
36. In the present case, Article 2(2) of Directive 2007/23 contains a precise and unambiguous legislative definition of the concept of ‘placing on the market’: it is the ‘first making available in the Community market’. The same is true, as already mentioned, of the other linguistic versions of Article 2(2) of the directive. There is therefore little doubt as to the meaning of the said provision that would need to be resolved by reference to the context and/or purpose of the provision.
37. The subsequent elements of that definition, relating to the purpose of the ‘placing on the market’, and the exception for pyrotechnic articles manufactured for one’s own use, do not change the fact that Article 2(2) of Directive 2007/23 refers to a particular event corresponding to the point in time when a product is first made available on the EU market, (17) as confirmed by the recital 8 of the Directive.
38. Thus, in the light of its own case-law, the Court cannot, in the face of the clear and precise wording of a provision of an EU legislative act, interpret that provision ‘with the intention of correcting it and thereby extending the obligations of the Member States relating to it’. (18) Recourse to an interpretation ‘in the light of the context’ of the provision at issue encounters its limitations when the text of the provision itself is unambiguously worded. (19) Stated differently, the clear wording of a provision is the outer limit of any interpretative endeavour, which the Court set itself by prohibiting contra legem interpretation. (20)
39. Those interpretative limits are closely connected to the second element outlined above, that of the separation of powers (or rather, in the European Union context, the institutional balance). The Court has declared that it is ‘not entitled to assume the role of the Community legislature and interpret a provision in a manner contrary to its express wording’, emphasising that ‘it is for the Commission to submit proposals for appropriate legislative amendments to that end’. (21)
40. Third, as regards the principle of legality and that of legal certainty, it is settled case-law that EU rules should enable those concerned to know precisely the extent of the obligations which are imposed on them. (22) The principle of legal certainty requires that EU legislation must be certain and its application foreseeable, (23) which entails, inter alia, ‘that rules of law be clear, precise and predictable in their effect’. (24)
41. I readily acknowledge that a Member State is not an individual, that is, a physical or (private) legal person. Thus, I am aware that the yardsticks set out in the case-law of the Court relating to legal certainty with regard to individuals are not fully transposable to infringement proceedings which concern Member States. (25)
42. On the other hand, does the fact that infringement proceedings are by their nature ‘institutional’ disputes, involving only the Commission and/or Member States, mean that not even ‘residual’ elements of legal certainty or legality apply? (26) Should not the imperative that one may reproach (in a declaration pursuant Article 258 TFEU) and potentially later adopt sanctions (under Article 260 TFEU) only on the basis of a clearly worded legal obligation be of universal application to any exercise of public power, certainly in a Union based on the rule of law? (27)
43. In the present case, much has been said in relation to the context in which the Directive 2007/23 was adopted, essentially for the purposes of interpretatively overriding the clear wording of Article 6(1). However, contextual arguments and drawing analogies with various other EU law instruments obfuscate the meaning of Article 6(1) rather than providing any interpretative certainty.
44. As the European legislator itself acknowledged, the concepts and definitions used in the harmonising legislation on the free movement of goods lacked consistency when Directive 2007/23 was drafted and adopted. Indeed, the subsequent Decision No 768/2008/EC (28) expressly addresses this, stating that ‘in the past, legislation on the free movement of goods has used a set of terms partly without defining them and guidelines for explanation and interpretation have consequently been necessary. Where legal definitions have been introduced they differ to some extent in their wording and sometimes in their meaning, which gives rise to difficulties in their interpretation and correct implementation …’. (29) To remedy that situation, that decision established new definitions of fundamental concepts that have since been incorporated in subsequent instruments of secondary law, one of which is the new Directive 2013/29. (30)
45. The new terminology and definitions in Directive 2013/29 particularly affect the term ‘placing on the market’ and also introduce the new notion of ‘making available on the market’. (31) In the light of the important changes in terminology introduced in order to adjust secondary legislation to the new terminological framework laid down by Decision 768/2008, the argument of the Commission, according to which the definitions and obligations under the free movement clause of Directive 2007/23 correspond to those under Directive 2013/29, cannot be upheld.
46. New terminology adopted by a later instrument can hardly be used to interpret an earlier instrument which clearly employed different terminology. (32) In fact, a contrary conclusion to that advanced by the Commission could also be plausibly drawn: the fact that the new Directive 2013/29 uses a different, arguably more pertinent, terminology than its predecessor, Directive 2007/23, could also signify that the terminology of the two was recognised as being different and intentionally corrected in the subsequent instrument. To put the same point bluntly: if the scope of the previous provision was so obvious and clear, why rewrite it?
47. Furthermore, other provisions of Directive 2007/23 illustrate that there is a distinction between ‘placing on the market’ understood as the first making available on the EU market and the subsequent free movement of pyrotechnic articles. For example, Article 14 of Directive 2007/23 (which relates to market surveillance) provides for different surveillance mechanisms for articles to be placed on the market and those already placed on the market.
48. Due to the incoherence of the terminology and bearing in mind the specificity of the sector covered by Directive 2007/23, it is difficult to make any conclusions by drawing analogies with other harmonisation directives in other sectors and the case-law of the Court interpreting them.
49. First, a number of this Court’s judgments cited by the Commission to support its application concern the Treaty provisions on the free movement of goods. (33) The case-law of the Court in those cases is therefore not transposable per se to the interpretation of the provision of secondary law at issue in the present case. Further case-law put forward by the Commission, as well as other cases related to free movement clauses in harmonisation directives, concern either instruments that do not contain any specific definition of the notion of ‘placing on the market’ or that contain free movement clauses drafted in a broader way so as to expressly encompass ‘free movement’, the placing on the market on the territory of the Member States, or the stages subsequent to ‘placing on the market’ — ‘putting into service’ or ‘use’. (34)
50. Second, Article 6(1) forms part of Directive 2007/23. That directive is concerned with pyrotechnic articles which are inherently dangerous. The particular concerns about public order, security or safety and environmental protection in this sensitive sector have led, as the Commission acknowledges, to important competences being reserved to the Member States. This is reflected in the allocation of competences in Article 6(2) of that directive which permits Member States to prohibit or restrict the sale, use and possession of certain categories of pyrotechnic articles. (35)
4. Conclusion (and a post scriptum)
51. For all the reasons set out above, I am of the view that the Federal Republic of Germany cannot be reproached for adopting and keeping in force national rules which are in line with the clear wording of Article 6(1) of the Directive 2007/23 even though that may be arguably at odds with the overall spirit and purpose of the directive. (36)
52. The Commission’s action in the present case is based exclusively on the application of Article 6(4) of the 1. SprengV to pyrotechnic articles that have already been subjected to a conformity assessment, and therefore, already placed on the market. In the light of that fact and in the light of the preceding discussion about the scope of Article 6(1) of Directive 2007/23, I do not believe that it is appropriate to declare that the German notification obligation and the power of the BAM to check and modify instructions of use prohibits, restricts or hinders the placing on the market of pyrotechnic articles in the sense of Article 6(1) of the directive.
53. I therefore propose that the action brought by the Commission be dismissed.
54. However, three points ought to be added, reflecting to an extent the introductory remarks made above in Section V.A.1 of the present Opinion. First, a general prohibition on restricting or hindering free movement of goods exists, in any case, under Article 34 TFEU which prohibits not only quantitative restrictions on imports and all measures having equivalent effect, but also requires the mutual recognition of products lawfully manufactured and marketed in other Member States. (37) Second, Directive 2007/23 arguably contains several other substantive provisions designed to protect free movement. (38) However, the Commission has pleaded its case exclusively on Article 6(1) of the directive, not mentioning in the heads of claim of its application any other substantive provisions of Directive 2007/23 or the provisions of the Treaty. Third, in the particular context of infringement proceedings the Court cannot, without going ultra petita, (39) reformulate the arguments as they have been presented before it, as may be sometimes possible in a preliminary ruling.
B – The alternative
55. For the reasons outlined in the previous section of this Opinion, I believe that the present action ought to be dismissed. If, however, the Court decided not to embrace the reasoning outlined above, I shall offer, in this section, a concise outline of an alternative path, thus fulfilling the constitutional role of the Advocate General and fully assisting the Court (Article 252 TFEU).
56. However, it ought to be stressed at the outset that all that follows would only be of relevance if the term ‘first placing on the (EU) market’, clearly articulated in Articles 6(1) and 2(2) of Directive 2007/23, were effectively rewritten so as to read ‘free movement’.
1. The notification procedure in Article 6(4) of the 1. SprengV
57. The Commission claims that the notification procedure in Article 6(4) of the 1. SprengV (which continues to be applied in spite of the derogation of 11 March 2014 removing the obligation to insert the identification number in the instructions of use) violates Article 6(1) of the directive. That procedure is applied before pyrotechnic articles gain access to the German market. According to the Commission it constitutes a supplementary financial and administrative burden which, in the absence of a ‘de minimis’ rule, goes beyond the requirements of Directive 2007/23 and thus entails an obstacle to the free movement of pyrotechnic articles which already satisfy the requirements of that directive.
58. In its defence, the Federal Republic of Germany argues that the notification procedure does not constitute a violation of Article 6(1) of the directive, since it is applicable after the pyrotechnic articles have actually been made available on the German market. It therefore does not constitute a double conformity assessment of those articles. In the alternative, Germany maintains that the notification procedure constitutes a measure for the preparation of market surveillance, aimed at easing the traceability of pyrotechnic articles. Moreover, the notification procedure could also be considered as a measure for the preparation of the surveillance of users, since it makes it possible for the BAM to control and modify the instructions of use of pyrotechnic articles to ensure that they are used correctly and safely.
59. In my view, if Article 6(1) of Directive 2007/23 encompassed ‘free movement’ and not only the first ‘placing on the market’, the notification procedure in Article 6(4) of the 1. SprengV would constitute a restriction to free movement.
60. The procedure laid down in Article 6(4) of the 1. SprengV contains formalities additional to those established by Directive 2007/23, imposing on producers and importers an obligation to notify pyrotechnic articles to the BAM before their first use on German territory. In order to complete the notification procedure, and subject to a fee, the BAM gives an importer/producer an identification number. As clarified by the Federal Republic of Germany at the hearing, failure to comply with this obligation amounts to an infraction and may give rise to sanctions. The Commission claims that this procedure is also applicable to products already bearing the CE marking and already marketed in other Member States.
61. I agree with the Federal Republic of Germany that the notification procedure does not amount to a repetition of the conformity assessment provided for in the directive. However, I cannot accept the argument that the national regime at issue does not hinder access to the German market. Even if the notification procedure does not constitute a formal precondition for the placing of pyrotechnic articles on the market, it constitutes a hindrance to free movement. It imposes formalities on imports of pyrotechnic products lawfully produced and marketed in other Member States and is thus capable of amounting to an obstacle to access to the German market.
62. Further, the argument put forward in the alternative by the Federal Republic of Germany, according to which the notification procedure constitutes a mechanism of preparation for the surveillance of the market and that it would therefore be covered by Article 14 of Directive 2007/23, cannot be upheld either.
63. First, Article 14(4) is based on the presumption of conformity. Therefore, market surveillance activities on pyrotechnic articles already bearing a CE marking are limited to checks on pyrotechnic articles and their documentation. It cannot be understood as allowing systematic controls on all pyrotechnic articles entering the market of a Member State. (40)
64. In addition, at the hearing, the Federal Republic of Germany clarified that market surveillance does not fall within the competence of the BAM but of the German Länder and their appropriate authorities. That fact further confirms the difficulty of subsuming the notification procedure under Article 14 of Directive 2007/23 and classifying it as a mechanism of market surveillance.
65. Second, with regard to the argument put forward by the Federal Republic of Germany relating to the objective of being able to trace pyrotechnic articles, it is true that the implementing measures, envisaged in Article 18(2)(a) of Directive 2007/23, regarding ‘the setting up of a traceability system’ (41) were only actually adopted by Directive 2014/58/EU. (42) They were therefore not in force at the end of the period laid down in the Commission’s reasoned opinion. However, notwithstanding the delay in adopting such implementing measures, the fact remains that the directive foresees the adoption of an EU-wide registration system. Article 18(2)(a) of the directive can hardly be regarded as empowering Member States, in the period before implementing measures have been adopted, to set up their own national registration system applicable to products which have already undergone a conformity assessment.
66. I am also not convinced by the arguments put forward in the alternative by the Federal Republic of Germany, according to which the notification procedure constitutes a measure for the preparation of the surveillance of users covered by the exception of Article 6(2) of Directive 2007/23.
67. First, as the Federal Republic of Germany itself acknowledges, the national measures at issue neither restrict nor prohibit possession, use and/or sales.
68. Second, the exception provided for in Article 6(2) of Directive 2007/23 is only applicable to specific categories pyrotechnic articles. Without starting a discussion about the proper national legal basis of Paragraph 6(4) of the 1. SprengV, (43) suffice it to say that the national provision at issue is drafted in a general way without distinguishing between the different categories of pyrotechnic articles. (44) That in itself is already problematic in view of the clear wording of Article 6(2) of Directive 2007/23.
69. It is true that the Court has recently held (45) that national legislation which requires an importer to register chemical products with the competent national authority when that importer is already under an obligation, pursuant to the REACH Regulation, (46) to register the same products with the European Chemicals Agency, is not, under certain conditions, precluded by that regulation. However, in my view, the reasoning underlying that judgment cannot be transposed to the context of Directive 2007/23. First, both EU law instruments pursue different objectives and have a different structure. Second, and more importantly, the reasoning of the Court in that judgment placed paramount importance on Article 128(2) of the REACH Regulation, which leaves certain instances of ‘placing on the market’ unharmonised. (47) Very differently, in the present context, Article 6(2) does not operate under the assumption that Directive 2007/23 leaves certain instances of ‘placing on the market’ unharmonised. Instead, under Article 6(2) Member States may only restrict, for specific reasons, the use, possession or sales of certain categories of pyrotechnic articles.
2. The power of the BAM to check and modify the instructions of use (fifth sentence of Article 6(4) of the 1. SprengV)
70. The Commission claims that the power conferred on the BAM by the fifth sentence of Article 6(4) of the 1. SprengV, allowing this body to complete and modify the instructions of use of pyrotechnic articles, is exercised notwithstanding the fact that those articles may already have been subjected to a conformity assessment. This practice is therefore contrary to Article 6(1) of Directive 2007/23. The Commission admits that Article 6(2) of Directive 2007/23 leaves important powers regarding possession, use and/or sale of certain categories of pyrotechnic articles to the Member States. However, the power to modify instructions of use does not constitute a measure which prohibits or restricts possession, use and/or sale of pyrotechnic articles. Moreover, the presumption of conformity of pyrotechnic articles with a CE marking extends to their instructions of use.
71. The Federal Republic of Germany argues that Directive 2007/23 and, in particular, Annex I, Section 3(h) does not involve a complete assessment of instructions of use. It claims that the conformity assessments carried out under Directive 2007/23 cannot involve a control on the language of instructions of use since it is not foreseeable at that assessment stage in which Member States those pyrotechnic articles will be sold and traded. In addition, Member States can modify age limitations and minimal security distances. The bodies which have to be notified under the directive would obviously therefore encounter considerable difficulties carrying out a proper control of those requirements. In the alternative, the Federal Republic of Germany claims that the powers of the BAM are for market surveillance or for the protection of users, in conformity with Article 14 and Article 6(2) of Directive 2007/23.
72. I am not convinced by the arguments put forward by the Federal Republic of Germany.
73. First, as the Commission correctly notes, the essential safety requirements with which the manufacturer (and the importer, if appropriate) must comply are set out in Annex I to Directive 2007/23. Once a pyrotechnic article satisfies those requirements, Member States shall not, pursuant to Article 6(1), prohibit, restrict or hinder its placing on the market (if understood as encompassing free movement of pyrotechnic articles among the Member States).
74. Section 3(h) of Annex I to Directive 2007/23 includes, among the information and properties that notified bodies must consider or test, the ‘suitable instructions and, where necessary, markings in respect of safe handling, storage, use (including safety distances) and disposal in the official language or languages of the recipient Member State’.
75. As a consequence, the Federal Republic of Germany cannot claim that the national provision at issue in the present case is meant to ensure that instructions of use are correctly drafted in German, and that the specific safety distances prescribed by Germany are properly reflected. Section 3(h) of Annex I to Directive 2007/23 explicitly refers to suitable instructions and, where necessary, markings in respect of safe handling, storage and use, including safety distances, in the official language of the recipient Member State as one of the essential safety requirements. In the same vein, and contrary to what the Federal Republic of Germany claims, the essential safety requirements of Annex I to Directive 2007/23 also cover ignition devices. (48)
76. Second, the fact that Member States are allowed, according to Article 7(2) of Directive 2007/23, to increase the age limits stipulated in Article 7(1) does not lead to a different conclusion. According to Article 12(2) of the directive, the labelling of pyrotechnic articles shall include, inter alia, the minimum age limits as stipulated in Article 7(1) and (2). Moreover, as the Commission has submitted, a European harmonised standard concerning minimum labelling requirements has been approved. (49)
77. As to the arguments put forward by the Federal Republic of Germany in the alternative, the reasons set out above relating to the notification procedure (50) are fully applicable to the power of the BAM to complete and modify the instructions of use. The latter power is inextricably linked to the notification procedure, which itself constitutes neither a measure for the protection of users covered by Article 6(2) of the directive nor a measure for the preparation of market surveillance liable to be covered by Article 14 of that directive.
78. Finally, it is to be mentioned that Member States cannot unilaterally adopt corrective measures reacting to potential shortcomings in the application of EU law by other Member States. They are bound to act within the procedures and legal remedies laid down by the Treaty. (51)
79. On the other hand, the system of the directive and the presumption of conformity of articles bearing the CE marking do not prevent Member States from acting if a risk appears. (52) On the contrary: Directive 2007/23 sets out rules designed to achieve the free movement of pyrotechnic articles in the internal market while ensuring a high level of protection of human health and public security as well as the protection and safety of consumers. With those objectives in mind, Article 14 of Directive 2007/23 lays down conditions under which market surveillance can be carried out by the Member States. In particular, Article 14(6) permits Member States to take all appropriate measures to withdraw products bearing a CE marking which are liable to endanger the health and safety of persons.
80. In the context of market supervision, Member States can moreover oversee the fulfilment of the obligations imposed on distributors of pyrotechnic articles. Under Article 4(3) of Directive 2007/23, distributors shall verify that a pyrotechnic article bears the required conformity marking(s) and that it is accompanied by the required documents. (53) Furthermore, Article 20 of the directive states that Member States shall lay down rules on the penalties applicable to infringements of provisions of national law implementing the directive. Finally, Regulation (EU) No 1025/2012 (54) provides for a procedure for objections to the harmonised standards adopted where Member States consider that these standards do not entirely satisfy the objectives of the directive.
81. In conclusion, it is not disputed that within the sensitive context of pyrotechnic articles, Member States are entitled to survey and to inspect, as expressly recognised by Directive 2007/23 itself. The question is thus not whether to inspect, but how to carry it out. Within that context, ex ante overall notification regimes that are applicable to all products, even those already approved and cleared by the authorities of other Member States, are unlikely to be compatible with a system based on free movement and mutual recognition.
VI – Costs
82. I propose that the action should be dismissed. In accordance with Article 138(1) of the Rules of Procedure of the Court of Justice, the Commission should therefore be ordered to pay the costs.
VII – Conclusion
83. I therefore propose that the Court should:
(1) dismiss the action;
(2) order the European Commission to pay the costs.