OPINION OF ADVOCATE GENERAL

FENNELLY

delivered on 12 February 1998 (1)

Case C-226/97

Criminal proceedings against Johannes Martinus Lemmens

I — Introduction

1.

    What happens if the breathalyser is not 'notified to Brussels‘? The present proceedings raise the question of whether a defendant in criminal proceedings before a national court can rely upon the fact that national provisions governing the use of breath-testing apparatus, which prima facie constitute technical regulations for the purposes 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 (hereinafter 'the Directive‘), (2) have not been notified to the Commission.

II — Factual and legal background

(a)    The facts and the order for reference

2.

    The judgment of the Court in CIA Security (3) seems to have caused something of a commotion in the Netherlands. The judgment prompted the Government to draw up a list of some 400 measures which might be considered technical regulations within the meaning of the Directive, which had not been notified and against which, therefore, the direct effect of Article 8 of the Directive could in principle be invoked before the national courts. The matter was taken up by the press in June 1997 and, following proceedings under the Netherlands law on openness in government, the list was published on 21 July 1997. By then the Netherlands had notified to the Commission, in accordance with the urgent procedure provided under the Directive, the '1997 Regulation on breath analysis‘, whose provisions are identical to the national measure which is at issue in the present proceedings.

3.

    The facts as they appear from the order for reference and from information supplied by the Netherlands in its observations are that the defendant in the main proceedings was accused of driving a motor vehicle at a time when the level of alcohol in his breath exceeded the legal limit. Before the Arrondissementsrechtbank (District Court), Maastricht, on 13 June 1997, the defendant made the following statement: 'I understand from the press that there are difficulties regarding the breath-sampling apparatus. I refer to the fact that this apparatus has not been notified to Brussels and wonder what the consequences, if any, of this could be for my case‘. On the ground that a decision on certain points

was necessary to enable it to give judgment, the Arrondissementsrechtbank Maastricht referred the following questions to the Court:

'1.    Can a defendant in criminal proceedings instituted for an offence contrary to Article 8(2)(a) of the Wegenverkeerswet (Road Traffic Law) 1994 successfully rely on the application of the Regeling Ademanalyse (Regulation on breath analysis) (Ned. Stcrt 1987, 187), as amended, laying down further rules concerning the requirements for breath-analysis apparatus and the tests which such apparatus must undergo, being set aside

—    where, for the purposes of the investigation referred to in Article 8(2)(a) of the Wegenverkeerswet 1994, that Regulation is based, pursuant to Article 65 of the Invoeringswet Wegenverkeerswet (Law implementing the Road Traffic Law) 1994, on Article 163 of the Wegenverkeerswet viewed in conjunction with Article 5 of the Besluit Alcoholonderzoeken (Decree on the conduct of tests to determine alcohol level) (Stb. 1987, 432), as amended,

—    in view of the failure to notify the Regulation to the European Commission, as required by Article 8 of Directive 83/189/EEC?

2.    Should a court in criminal proceedings of the kind referred to above disapply that Regulation of its own motion on account of the failure to notify it as required?‘

4.

    The Netherlands, the United Kingdom and the Commission submitted written observations. The Netherlands, France and the Commission took part in the oral hearing.

(b)    The national provisions

5.

    Article 8(2)(a) of the Wegenverkeerswet 1994 reads in relevant part:

'[it] shall be an offence for any person to drive or ride a vehicle ... after consuming intoxicating liquor so that, upon testing, the alcohol content of his breath is shown to be higher than 220 micrograms of alcohol per litre of expelled breath.‘

Article 163 of the same Law establishes the procedure for carrying out breathalyser tests, while Article 163(10) provides for the adoption of provisions for the implementation of this article and of Article 160(5). The Minister for Justice is charged with adopting measures to give effect to these implementing provisions.

6.

    Article 3 of the Decree on alcohol testing of 24 September 1987, as amended to take account of the 1994 road traffic law, provides that breath analysis may only be carried out using breath-analysis apparatus of a type designated by the

Minister for Justice. Article 5 of the Decree charges the Minister for Justice with laying down detailed requirements for breath-analysis apparatus and for testing such apparatus.

7.

    Articles 2 and 3 of the Regulation on breath analysis of 25 September 1987, as amended (hereinafter 'the 1987 Regulation‘), provide for the testing and type approval of breath-testing apparatus by a control body in accordance with paragraphs 4.3 to 4.5 of Annex 1 thereto, concerning, respectively, the type approval test, the first individual test and the repeat individual test.

III — Opinion

(a)    Admissibility

8.

    The factual and legal background set out in the order for reference is rather short on detail. None of the Member States which have submitted observations on the request has suggested that this should be declared inadmissible on the ground that the information supplied is so defective as to prevent the Court interpreting the relevant provisions of Community law in the light of the situation at issue, as in Telemarsicabruzzo, (4) nor has the lack of detail prevented their submitting pertinent observations on the main questions of Community law which arise. (5) The Commission has suggested that, while the Court could declare the present request inadmissible, it should not do so in the present case, as there is a Community interest in clarifying the scope of the judgment in CIA Security.

9.

    It seems to me that, although the order for reference is extremely terse, the Court has at its disposal sufficient information on the factual and legal situation in the main proceedings to provide a useful answer. The order records the fact that the defendant is charged with an offence of driving with excess alcohol in his breath and specifies, in the questions, the national provisions whose non-notification is at issue. To that extent this case bears comparison with Gallotti and Others. In that case the several orders for reference merely stated that the various defendants were charged with offences under Italian legislation on waste and described the issue of Community law whose interpretation was sought. The Court held that 'having regard to the very general nature of the questions submitted and the detailed interpretation of Directive 91/156/EEC set out by the national court in the grounds of the orders, the Court has sufficient information to provide a helpful answer to

those questions‘. (6) Similarly, in Vaneetveld, the Court held that the information requirement was 'less pressing where the questions relate to specific technical points and enable the Court to give a useful reply even where the national court has not given an exhaustive description of the legal and factual situation‘. (7)

10.

    In my view, the sufficiency of the information supplied by the national court must be judged in the light of the questions of Community law posed. Since the court in the present proceedings has raised an issue of interpretation of Community law and adequately, if briefly, recited the relevant facts, the Court is bound to provide a ruling. (8)

(b)    The temporal application of the Directive

11.

    A second preliminary matter which has been raised is the need to identify the version of the Directive which was applicable to the factual situation which gave rise to the present proceedings. The Commission maintains that this is the original version prior to the 1988 and 1994 amendments, as it is this version which was in force at the time of the adoption of the 1987 Regulation. The Netherlands and the United Kingdom, on the other hand, appear to take the view that it is the version of the Directive as amended by both subsequent Directives which applies, while France has not expressed any view on the matter.

12.

    The successive modifications of the Directive have in particular sought to extend and clarify its provisions; while the concept of 'technical regulation‘ has been widened on each occasion, these amendments do not appear germane to the evaluation of the national provisions at issue in the present case. It is therefore permissible to use the definition of this term provided in the original version of the Directive, as suggested by the Commission, as the modifications, even if they were found to apply on the facts, would not affect the classification of the 1987 Regulation.

(c)    The substantive questions referred

13.

    The first substantive question which arises in the present case is whether the 1987 Regulation is a 'technical regulation‘ within the meaning of the Directive. In essence, a 'technical regulation‘ is a set of technical specifications 'the observance of which is compulsory, de jure or de facto, in the case of marketing or

use [of a product] in a Member State or a major part thereof, except those laid down by local authorities‘ (Article 1(5)). A 'technical specification‘ is in turn defined by the Directive as any specification 'which lays down the characteristics required of a product‘ (Article 1(1)). Subject to certain exceptions which are not here relevant, Article 8 obliges Member States to communicate to the Commission all draft technical regulations, and, if necessary, the basic legislative or regulatory provisions. In CIA Security, the Court held that 'Directive 83/189 must be interpreted as meaning that breach of the obligation to notify renders the technical regulations concerned inapplicable, so that they are unenforceable against individuals‘. (9) It subsequently held in Bic Benelux that the technical regulations caught by the Directive were any national measures which are 'capable of hindering, directly or indirectly, actually or potentially, intra-Community trade in goods‘. (10)

14.

    The Netherlands has argued that the 1987 Regulation does not seek to implement a provision of Community law and, being a provision of criminal law, governs a matter outside the scope of Community law. It therefore argues that, for these reasons, the Regulation may not be considered a technical regulation.

15.

    I do not agree. It is clear from the established case-law of the Court that '[although] in principle criminal legislation and the rules of criminal procedure ... are matters for which the Member States are responsible ... Community law sets certain limits to their power‘. (11) The Directive does not allow any derogation in favour of provisions of criminal law which could constitute technical regulations and, as a matter of principle, the obligation to notify could therefore arise in respect of such provisions.

16.

    In the light of the judgments in CIA Security and Bic Benelux, the following criteria apply for determining whether a national measure is a technical regulation:

—    does it lay down technical specifications? (12)

—    is its observance compulsory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof? and

—    is it capable of hindering, directly or indirectly, actually or potentially, intra-Community trade in goods?

17.

    There is little doubt that the 1987 Regulation contains 'technical specifications‘; Annex 1 lays down in detail the characteristics required of breath-testing apparatus, particularly as regards quality, performance, testing and test methods and conformity-assessment procedures. There is also little doubt that observance of the Regulation is compulsory de jure, in the sense that the police must use approved apparatus in order to prove the essence of the offence. There remains the question of whether it could be said to be capable of hindering trade within the Bic Benelux test.

18.

    It may be true, as the Netherlands has observed, that the 1987 Regulation sets out to ensure the reliability of breath-analysis apparatus, rather than to establish rules regarding the marketing or use of such apparatus. It is in my view clear from the Court's case-law, however, that it is the potential effects on trade of a national regulation which give rise to the obligation to notify, rather than the objective these provisions seek to attain. In Commission v Netherlands, the Court held that an Order defining the conditions under which substitute products could be marketed as margarine was a technical regulation: '[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 ... [the] obligation [to notify] 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‘. (13) More generally, in Bic Benelux, the Court held that hindrances to trade 'may arise from the adoption of national technical regulations ... irrespective of the grounds on which they were adopted‘, and continued: 'the fact that a national measure was adopted in order to protect the environment or that it does not implement a technical standard which may itself constitute a barrier to free movement does not mean that the measure in question cannot be a technicalregulation within the meaning of Directive 83/189‘. (14)

19.

    The Netherlands has also pointed out that the 1987 Regulation does not apply globally to the market in breath-testing apparatus, but only to a single purchaser, the police, and that apparatus which is not in conformity with the Regulation may be fully marketed and used. It cites the example of retailers of intoxicating beverages who may wish to make such apparatus available to their customers.

20.

    It may be the case that there exists, or could exist, a secondary market in breath-testing apparatus; this does not, in my opinion, suffice to exclude the possibility that the 1987 Regulation is capable of hindering trade between the Member States in such goods. As the Court held in Van de Haar, 'Article 30 of the Treaty does not distinguish between measures having an effect equivalent to quantitative restrictions according to the degree to which trade between Member

States is affected. If a national measure is capable of hindering imports it must be regarded as a measure having an effect equivalent to a quantitative restriction, even though the hindrance is slight and even though it is possible for imported products to be marketed in other ways‘. (15) As the Directive embraces all potential obstacles to trade, the obligation to notify must, in my view, include measures such as the 1987 Regulation, even if it were to be shown that other breath-testing apparatus could be marketed in the Netherlands. I am therefore of the opinion that the 1987 Regulation constitutes a technical regulation for the purposes of the Directive.

21.

    The next and more difficult issue which arises is whether an individual in a legal situation such as that of the defendant in national criminal proceedings can, as a matter of Community law, rely on the Netherlands' failure to notify the 1987 Regulation. The question raises the 'delicate problem of ascertaining who may rely on Community law before a national court‘ (16) and the extent of the direct effect of provisions of directives.

22.

    In this context, it is perhaps useful to recall that, in accordance with the third paragraph of Article 189 of the Treaty, '[a] directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed‘. It therefore follows that results which could arise as a consequence of the application of a directive but which are not those it seeks to achieve are in principle not binding, as a matter of Community law, on the Member State.

23.

    The results the Directive at issue in the present proceedings seeks to achieve were identified by the Court in CIA Security in the following terms:

'Directive 83/189 is designed to protect, by means of preventive control, freedom of movement for goods, which is one of the foundations of the Community. This control serves a useful purpose in that technical regulations covered by the directive may constitute obstacles to trade in goods between Member States, such obstacles being permissible only if they are necessary to satisfy compelling public interest requirements.‘ (17)

24.

    After holding that Articles 8 and 9 of the Directive were unconditional and sufficiently precise to be relied upon against conflicting national provisions, the Court went on to establish 'the legal consequences to be drawn from a breach by the Member States of their obligation to notify and, more precisely, whether

Directive 83/189 is to be interpreted as meaning that a breach of the obligation to notify, constituting a procedural defect in the adoption of the technical regulations concerned, renders such technical regulations inapplicable so that they may not be enforced against individuals‘. (18) This same formulation is repeated in the Court's conclusion on this point in paragraph 54 of the judgment.

25.

    For the purposes of the Directive, the consequence of the non-notification of a technical regulation is that a Member State authority may not enforce this against individuals. It does not follow that non-notified technical regulations are inapplicable for all purposes, and hence in effect null and void; such a consequence would only arise if the Community had a power to annul provisions of national law. Such a power has never been claimed by the Court. The qualification by the Court of the obligation to notify as 'procedural‘ does not imply that it is in principle any different from the general obligation properly to transpose, implement and enforce substantive provisions of directives. Nor does it imply that the failure to respect such a procedural obligation has legal effects any different from those which arise from the failure to respect substantive obligations.

26.

    The inapplicability of national provisions which are on their face incompatible with Community provisions is not universal in its effects, but depends on the result the directive seeks to achieve. The conflicting national provisions are, therefore, only inapplicable in so far as this is required for the purposes of '[facilitating] the free movement of goods by preventing the creation of new barriers to trade‘, as the objective of the Directive is described in the second recital in the preamble to the 1988 Directive. In the circumstances of the present case, I cannot see how the non-application of the 1987 Regulation in the criminal proceedings against the defendant would contribute to facilitating the free movement of goods. Such a consequence is therefore not encompassed within the 'result to be achieved‘ by the Directive.

27.

    The direct effect of provisions of directives may be limited ratione personae in accordance with Article 189 of the Treaty. In Faccini Dori, for example, the Court noted that 'the case-law on the possibility of relying on directives against State entities is based on the fact that under Article 189 a directive is binding only in relation to ”each Member State to which it is addressed”. That case-law seeks to prevent ”the State from taking advantage of its own failure to comply with Community law”‘. (19) In such cases, a provision of national law may be ruled inapplicable for some purposes, but remain fully applicable to situations outside the reach of Community law.

28.

    The provisions of a directive which have direct effect may be relied upon by persons other than those for whose primary benefit it was adopted, where this

is justified to achieve the result intended. Thus, in Stoeckel, (20) an employer was entitled to rely upon the injunction that Member States 'ensure that ... any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished‘ laid down in Article 5(2)(a) of Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotions, and working conditions. (21) In this case, the objective of the directive was defined in Article 5(1) primarily in terms of workers' rights: '[application] of the principle of equal treatment ... means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex‘. Admittedly, this decision may be explained on the basis that the useful effect of a prohibition of discrimination against workers inescapably involves their employers, at least. That is undoubtedly so, in so far as it imposes obligations. But Stoeckel is an example of an employer claiming the benefit of it.

29.

    In Verholen, on the other hand, a case which has been cited by a number of the parties to these proceedings, the Court held that 'the right to rely on the provisions of Directive 79/7 is not confined to individuals coming within the scope ratione personae of the directive, in so far as the possibility cannot be ruled out that other persons may have a direct interest in ensuring that the principle of non-discrimination is respected as regards persons who are protected‘. (22) This judgment has been interpreted in some quarters as meaning that not only those within the personal scope of a directive, but also 'those having a direct interest in the application of a directive's provision must be able to rely on it‘. (23)

30.

    It can, of course, be argued that the defendant in the main proceedings has an interest in a literal sense in the application of the Directive. He would benefit from a declaration by the national court that the 1987 Regulation is inapplicable in his case because this might lead to the exclusion of the proof on which the criminal charges laid against him are based. It seems to me, however, that the expression 'direct interest‘ used by the Court in Verholen does not cover such merely consequential effects but refers to an interest which arises by virtue of Community law. Article 4(1) of Directive 79/7 defines its scope ratione materiae as covering 'the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement of benefits‘. In the main proceedings in that case, the amount of the pension to which the applicant before the national court, Mr Heiderijk, was

entitled depended directly on the periods for which his wife was an 'insured person‘; under the relevant national provisions, 'a pension representing rights acquired by and on behalf of each of the two spouses was paid to the husband alone‘. (24) The Court held that 'an individual who bears the effects of a discriminatory national provision may be allowed to rely on Directive 79/7 only if his wife, who is the victim of the discrimination, herself comes within the scope of that directive‘. (25)

31.

    Although the calculation of the increase of benefits for spouses was within the material scope of Directive 79/7, Mr Heiderijk's interest in its application was held to depend on his spouse's coming within its terms; if Mrs Heiderijk were found not to come within the personal scope of the directive, then her husband's reliance on Article 4(1) would not contribute to the implementation of the principle of equal treatment, and he therefore had no Community-law interest in ensuring the application of this provision. It appears to me that the defendant in the present proceedings is in a position analogous to that of Mr Heiderijk, assuming that the latter's wife was outside the personal scope of Directive 79/7; though each may have 'an interest‘ in the application of the relevant provisions of the directive, this interest arises exclusively as a matter of national law, and they may not therefore rely upon the directive in that context. Contrariwise, both the employer in Stoeckel, and Mr Heiderijk if his wife was within the personal scope of Directive 79/7, had an interest arising from Community law in the proper application of the relevant provision of the directive.

32.

    In the case of Directive 83/189, it seems to me that those who would be able to rely on the Treaty rules guaranteeing the free movement of goods have an interest as against the Member State in the application of the Directive, and may therefore rely upon it in the national court. Such, for example, was clearly the case of the applicant in CIA Security, whose alarm system comprised goods manufactured in two other Member States as well as Belgium. (26) Once an interest which was cognisable in Community law had been established, the fact that the applicant's interest arose in proceedings under national law against commercial competitors was essentially irrelevant. Equally clearly, in my view, the defendant in the present case has no such interest; no element of his legal situation could be said to concern the free movement of goods within the Community.

33.

    In the present case, it has not been suggested that the national provision which the Netherlands is enforcing against the defendant, to wit, Article 8(2)(a) of the Wegenverkeerswet, is a technical regulation for the purposes of the Directive.

Contrariwise, while the 1987 Regulation may be a technical regulation, its enforcement against the defendant in circumstances such as the present is not a matter of which he is entitled to complain as a matter of Community law. He is not affected by provisions defining the technical characteristics of such apparatus by reason of any personal or professional characteristic or activity which comes within the ambit of Community law. If the defendant is not so affected by the 1987 Regulation considered alone, the fact that he may be concerned by the application of this Regulation by virtue of national provisions of criminal law defining the methods of proving a road traffic offence does not change his position under Community law.

34.

    It follows from the above that the first question should be answered in the negative, in which case no answer to the second question is necessary.

IV — Conclusion

35.

    In the light of the foregoing, I recommend to the Court that it answer the questions referred by the Arrondissementsrechtbank Maastricht on 13 June 1997 as follows:

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 should be interpreted as not requiring a Member State to abstain from applying national provisions such as the Regeling Ademanalyse, which have not been notified to the Commission in accordance with Article 8 of the Directive, in criminal proceedings instituted for an offence contrary to Article 8(2)(a) of the Wegenverkeerswet 1994.

1: Original language: English.

2: —     OJ 1983 L 109, p. 8. The Directive has subsequently been amended by Directive 88/182/EEC (OJ 1988 L 81, p. 75, hereinafter 'the 1988 Directive‘), and by Directive 94/10/EC (OJ 1994 L 100, p. 30, hereinafter 'the 1994 Directive‘); the question of which version of the Directive applies in principle to the present proceedings is examined in paragraphs 11 and 12 below.

3: —     Case C-194/94 CIA Security v Signalson and Securitel [1996] ECR I-2201.

4: —     Joined Cases C-320/90 to C-322/90 [1993] ECR I-393.

5: —     Joined Cases 141/81 to 143/81 Holdijk [1982] ECR 1299, paragraph 6; Case C-2/96 Sunino and Data [1996] ECR I-1543, paragraph 5.

6: —     Joined Cases C-58/95, C-75/95, C-119/95, C-123/95, C-135/95, C-140/95, C-141/95, C-154/95 and C-157/95 [1996] ECR I-4345.

7: —     Case C-316/93 [1994] ECR I-763, paragraph 13.

8: —     See, for example, Case C-28/95 Leur-Bloem [1997] ECR I-4161, paragraphs 25 to 27, and the cases cited.

9: —     Case C-194/94, cited in footnote 2 above, paragraph 54.

10: —     Case C-13/96 Bic Benelux v Belgian State [1997] ECR I-1753, paragraph 19.

11: —     Case 186/87 Cowan v Trésor Public [1989] ECR 195, paragraph 19; Case 203/80 Casati [1981] ECR 2595, paragraph 27.

12: —     Where the Directive as amended by the 1994 Directive applies to a particular set of facts, the words 'or other requirements‘ should be added; this term is defined in Article 1(3) of the amended Directive.

13: —     Case C-273/94 [1996] ECR I-31, paragraphs 13 to 15.

14: —     Case C-13/96, cited in footnote 9 above, paragraphs 19 and 20.

15: —     Joined Cases 177/82 and 178/82 Van de Haar and Kaveka de Meern [1984] ECR 1797, paragraph 13.

16: —     Paragraph 32 of the Opinion of Advocate General Darmon in Verholen and Others, Joined Cases C-87/90 to C-89/90 [1991] ECR I-3757.

17: —     Case C-194/94, cited in footnote 2 above, paragraph 40.

18: —     Ibid., paragraph 45.

19: —     Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraph 22.

20: —     Case C-345/89 [1991] ECR I-4047; see also my Opinion of 4 December 1997 in Case C-350/96 Clean Car Autoservice.

21: —     OJ 1976 L 39, p. 40.

22: —     Joined Cases C-87/90 to C-89/90, cited in footnote 15 above, paragraph 23.

23: —     Prechal, Directives in European Community Law, Proefschrift Universiteit Amsterdam, 1995, SLSN, 1995, p. 167.

24: —     As noted by Advocate General Darmon at paragraph 35 of his Opinion, Joined Cases C-87/90 to C-89/90, cited in footnote 15 above.

25: —     Joined Cases C-87/90 to C-89/90, cited in footnote 15 above, paragraph 25.

26: —     Case C-194/94, cited in footnote 2 above, Opinion of Advocate General Elmer, paragraph 29.