Opinion of Advocate General Ruiz-Jarabo Colomer
delivered on 28 November 1996(*)
1. The question on which the Court's ruling is sought in the present case is whether the obligation to affix a distinctive sign on products subject to an environmental tax constitutes a technical specification or technical regulation within the meaning of Directive 83/189/EEC,(1) as amended by Directive 88/182/EEC(2)
2. That question has been raised by the Conseil d'État (Council of State), Belgium, in the context of proceedings brought by Bic Benelux SA (‘Bic’), seeking annulment of the Belgian legislation under which disposable razors with handles are subject to payment of the environmental tax and must accordingly be marketed bearing the relevant distinctive sign.
3. The environmental tax was introduced under Belgian law by Articles 369 to 401 of the Ordinary Law of 16 July 1993 completing the Federal Structure of the State (‘the 1993 Law’),(3) implemented by Ministerial Order of 24 December 1993 concerning products subject to environmental tax (‘the Ministerial Order’).(4)
Article 369 of the 1993 Law defines environmental tax in the following terms:
‘For the purposes of this Law, the following definitions shall apply:
1. environmental tax: a tax assimilated to excise duty, applicable to a products which has been released on to the market, on account of the environmental damage which that product is deemed to cause’.
That environmental tax applies to drinks containers, disposable articles, batteries, containers of certain industrial products, pesticides and plant protection products, and paper.
Article 369 of the 1993 Law defines a disposable article as follows: ‘an article designed to be used either once only or a limited number of times and which loses its usefulness either after being used once or a limited number of times, or because one of its essential parts has been used, emptied or exhausted and cannot be replaced, refilled or recharged’.
4. Article 376(1) of the 1993 Law lays down the amount of tax applicable to disposable articles, as follows:
‘1. Where the disposable articles listed below, save those intended for medical purposes, are released on to the market, they are subject to an environmental tax at the rates shown in the following table:
Products
Environmental tax
Environmental tax — reduced rate
Disposable razors
10 francs
—
Disposable cameras
300 francs
100 francs
...’
5. Article 2 of the Ministerial Order provides that, for the purposes of applying the environmental tax, disposable items are ‘disposable razors and disposable cameras’ and that disposable razors are ‘safety razors lacking any means of changing the blades’. In reply to an enquiry from Bic as to how those provisions were to be interpreted, the Finance Minister explained by letter of 17 January 1994 that ‘in accordance with Article 2(5) of the Ministerial Order of 24 December 1993 on the treatment of products subject to environmental tax ..., only integral disposable razors (with handle) are subject to environmental tax’. Consequently, razors whose handle is separable from the blade-holder, with blades which may be replaced after being used one or more times, are not subject to environmental tax. In razors of that type, only the blade or blades and blade-holder are disposable, but not the handle into which they are inserted, unlike safety razors, which are disposable in their entirety.
6. To ensure that the tax is collected, Article 391 of the 1993 Law provides as follows:
‘To ensure that the collection of environmental tax is monitored and consumers are informed, all containers or products subject to one of the environmental taxes provided for by this Law must be clearly marked by a distinctive sign indicating either that environmental tax is payable and the amount of such tax, or the reason for their exemption or the amount of the returnable deposit. The Finance Minister shall lay down detailed rules for the implementation of this Article; he may provide inter alia for a stamp, tape, seal, disc, label or other to be affixed to each container, product or packaging.
The King shall determine the products to be exempted from the requirement to indicate the amount of the returnable deposit’.
The detailed rules concerning the affixing of the distinctive sign or tax marking are contained in Article 11 of, and Annex 1 to, the Ministerial Order. Those rules provide for a specific distinctive sign which must appear on the labels of all products subject to the environmental tax, require the amount of the tax to be stated and allow the distinctive sign to be placed on the packaging where a number of products subject to the tax are marketed in a single package.
7. Finally, Article 18 of the Ministerial Order allows products subject to the environmental tax to be sold without paying that tax in the context of diplomatic tax-free sales.
8. It should be pointed out that, at the drafting stage of the 1993 Law, the Legislative Division of the Conseil d'État, in its opinion of 14 April 1993 on the draft Law, recommended that the legislation should be notified to the Commission pursuant to Directive 83/189, on the ground that an obligation to affix distinctive signs or tax markings might constitute a technical specification.(5) The Belgian State did not follow that recommendation and adopted the legislation without notifying to the Commission at the draft stage.
9. Bic, which in Belgium markets only integral disposable razors, has suffered a considerable drop in sales since the introduction of the environmental tax, causing it to question the lawfulness of the Belgian legislation establishing the tax by various means, including the proceedings which it has brought before the Conseil d'État for annulment of the Ministerial Order and of the letter of the Finance Minister interpreting it. One of the grounds for annulment relied on by Bic was infringement of Articles 30 and 95 of the EC Treaty and of Directive 83/189.
10. The Conseil d'État considered that the Belgian legislation was not contrary to Article 30 of the Treaty, which prohibits measures having equivalent effect to quantitative restrictions. Nor, it held, did the Belgian rules infringe Article 95 of the Treaty, which prohibits discriminatory internal taxation. The Conseil d'État did not, however, rule on another of the grounds for annulment advanced by Bic, namely that Directive 83/189 had been infringed because the Ministerial Order was not notified to the Commission at the draft stage, even though it was a technical regulation, since it laid down the labelling or marking requirements for products subject to the environmental tax. In order to rule on that point, the Conseil d'État considered it necessary to refer the following question to the Court of Justice for a preliminary ruling:
‘Do the obligation to affix a particular distinctive sign on products subject to a tax payable on account of the environmental damage which they are deemed to cause, prior to the release of such products on to the market, and the obligation to affix another distinctive sign on products of the same type if they are exempt from that tax by virtue of diplomatic privilege, constitute “technical specifications” within the meaning of Article 1(1) 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, as amended by Council Directive 88/182/EEC of 22 March 1988, or “technical regulations” within the meaning of Article 1(5) of that Directive?’
11. The question raised is confined to that of the compatibility with Directive 83/189 of the obligation to affix a distinctive tax sign as provided for in the Belgian legislation establishing the environmental tax. This Court is therefore not called upon to rule on the possible application of Articles 30 and 95 of the Treaty to national rules such as those in issue here.
Before proposing an answer to the national court's question, I consider it necessary to analyse the procedure for the provision of information set up by Directive 83/189 in the field of technical standards and regulations.
12. Directive 83/189 has been amended by Directives 88/182 and 94/10/EC.(6) Since the Belgian legislation concerning the introduction of the environmental tax was adopted in 1993, the question whether it is a technical regulation must be examined in the light of Directive 83/189 as amended by Directive 88/182. The changes made to the procedure for the provision of information by Directive 94/10, which came into force on 1 July 1995, do not affect the Belgian rules concerning the environmental tax.
13. Directive 83/189 set up a procedure intended to prevent technical barriers in intra-Community trade arising out of the differences between the national rules of the Member States concerning the production and marketing of goods. That preventive procedure supplements the prohibition, in Articles 30 to 36 of the EC Treaty, of measures having equivalent effect to quantitative restrictions, and the harmonization of national rules with a view to achieving free movement of goods within the internal market.
14. Article 1 of Directive 83/189 defines the main terms used in the directive. Although, in the Spanish, French, Italian and Portuguese versions, the preamble speaks of technical rules, Article 1 does not use that term, and distinguishes between ‘standards’ and ‘technical regulations’,(7) depending on whether compliance is compulsory.
Articles 2 to 7 go on to set up a procedure for information and cooperation between the European and national standards institutions, which applies to standards. Articles 8, 9 and 10 set up the procedure for information regarding technical regulations, with which the present case is concerned.
15. Article 8 of Directive 83/189, as amended by Directive 88/182, requires Member States to communicate to the Commission any draft technical regulation, except where it merely transposes an international or European standard, in the following terms:
‘1.Member States shall immediately communicate to the Commission any draft technical regulation, except where such technical regulation 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 brief statement of the grounds which make the enactment of such a technical regulation necessary, where these are not already made clear in the draft. Where appropriate, Member States shall simultaneously communicate the text of the basic legislative or regulatory provisions principally and directly concerned, should knowledge of such text be necessary to assess the implications of the draft technical regulation.
The Commission shall immediately notify the other Member States of any draft it has received; it may also refer this draft to the Committee referred to in Article 5 and, if appropriate, to the Committee responsible for the field in question for its opinion.
...’
Under Article 10 of Directive 83/189, there is no obligation to notify where technical regulations are adopted as a result of a Community standard or an international agreement.
The Commission is to notify the other Member States immediately of such drafts and, in addition, to publish a list in the Official Journal of the European Communities in order to bring them more effectively to the attention of individuals.(8)
16. Following notification, Article 9 of Directive 83/189 gives the Commission and the other Member States an opportunity to examine the compatibility of the draft technical regulation with Community law and to deliver, where appropriate, a detailed opinion within three months of the date of notification. Where no detailed opinion is delivered, the Member State may adopt the technical regulation on the expiry of the three-month standstill period. That period is extended to six months if a detailed opinion is delivered, and to 12 months if the Commission notifies the State of its intention to propose or adopt a Community measure in the field.(9) The notification and standstill period enable the Commission and the Member States to examine whether the draft technical regulation creates any barriers to trade contrary to the Treaty or trading restrictions which must be avoided by adopting Community harmonizing rules. In addition, the Commission and the Member States may suggest amendments to the national measures envisaged to the State which drew up the draft, although that State is not obliged to take them into account and its right to adopt the technical regulation once the standstill period has expired remains intact.
17. Under Article 9(3) of the directive in question, the standstill obligation does not apply in serious and unforeseeable circumstances which require a Member State to draw up technical regulations urgently in order to protect fundamental social interests, such as public health or safety or the protection of health and life of animals or plants.(10)
18. The case-law of the Court of Justice has considerably strengthened the application of the procedure for the provision of information, by recognizing, in CIA Security,(11) that Articles 8 and 9 of Directive 83/189 have direct effect and that technical regulations not notified at the drafting stage cannot be relied upon as against individuals.
19. The question on which the national court seeks this Court's ruling is whether the obligation to affix a distinctive sign on products subject to the environmental tax, as provided for in the Belgian legislation, constitutes a technical specification or technical regulation subject to the procedure for the provision of information established by Directive 83/189.
20. The French Government and Bic consider in their observations that such a marking requirement constitutes a technical specification and that the Belgian legislation in which it is laid down is a technical regulation, notification of which was compulsory in accordance with Directive 83/189. In support of that view, they refer to the judgment in Commission ν Germany,(12) in which the Court held that German legislation extending to sterile medical instruments the obligations applicable to medicinal products with regard to labelling, and in particular the obligation to show 30 June or 31 December as the expiry date, was a technical regulation.
21. The Commission and the Belgian Government, on the other hand, consider that the obligation to mark products subject to the environmental tax is not a technical specification and that the Belgian legislation was therefore not a technical regulation subject to the application of Directive 83/189. The Commission considers that the Belgian rules are of a fiscal nature and that the marking requirement constitutes an accompanying measure. In its opinion, technical specifications linked to fiscal measures were brought within the scope of Directive 83/189 when it was amended by Directive 94/10 and, since the Belgian legislation preceded the entry into force of the latter directive, it was not subject to the notification requirement.
The Belgian Government considers that the aim of its legislation was to protect the environment by means of a fiscal mechanism, the environmental tax. In its opinion, Directive 83/189 applied only to rules concerning products which directly give rise to barriers to free movement of goods. National environmental measures could not be regarded as technical specifications or regulations prior to the amendment of Directive 83/189 by Directive 94/10. The Belgian State was therefore under no obligation to notify the rules in issue, which were adopted prior to the entry into force of Directive 94/10.
22. For the purposes of the application of Directive 83/189, Article 1, as amended by Directive 88/182, defines the terms ‘technical specification’ and ‘technical regulation’. Article 1(1) defines ‘technical specification’ as:
‘a specification 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 terminology, symbols, testing and test methods, packaging, marking or labelling, and the production methods and procedures for agricultural products as defined in Article 38(1) of the Treaty and for products intended for human and animal consumption and for medicinal products as defined in Article 1 of Directive 65/65/EEC, as last amended by Directive 87/21/EEC’.
Article 1(5) defines ‘technical regulation’ in the following terms:
‘technical specifications, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of [the] marketing or use [of a product] in a Member State or a major part thereof, except those laid down by local authorities’.
23. The Court of Justice has delivered a number of judgments on whether various national provisions constitute technical regulations without, however, in any case giving a substantive analysis of the concept in Directive 83/189. Inter alia, the Court has held the following to be technical regulations:
the German legislation extending to sterile medical instruments the obligations applicable to medicinal products with regard to labelling;(13)
the Netherlands legislation establishing conditions for the production and marketing of new types of margarine and substitute products differing from those applicable to ordinary margarine;(14)
the rules defining the conditions concerning the quality tests and function tests for an alarm system or network to be approved and marketed in Belgium;(15)
the Italian rules concerning the quality of the waters intended for the cultivation of lamellibranch molluscs, the production and marketing of molluscs and various safety measures concerning proprietary medicinal products made from cattle organs and tissues.(16)
On the other hand, it has held that the Belgian rules laying down requirements for the operation of a security firm did not constitute a technical regulation within the meaning of Directive 83/189, since they did not refer to the characteristics of products.(17)
24. In the light of the provisions of Directive 83/189 and the case-law of the Court, I take the view that technical regulations are all the practices, laws, regulations and administrative provisions of Member States which require the fulfilment of conditions for the production and marketing of goods.(18)
25. In order to determine whether, having regard to their mandatory nature, the Belgian rules requiring a distinctive sign to be affixed for the marketing of products subject to the environmental tax constitute a technical specification and thus a technical regulation within the meaning of Directive 83/189, it is necessary to examine the nature and characteristics of those national rules.
26. The Belgian Law and Ministerial Order establishing the environmental tax are fiscal measures, which affect the production and marketing of goods only in so far as Article 391 of the Law and the provisions of the Ministerial Order implementing it require a distinctive sign to be affixed on products subject to the environmental tax. Consequently, only that marking requirement may possibly be capable of constituting a technical regulation.
27. The requirement of a distinctive sign or mark constitutes, as the Commission points out, a fiscal accompanying measure intended to ensure collection of the environmental tax and is thus of a fiscal nature. The distinctive sign also plays the further role of informing consumers that the product is subject to an environmental tax because it has a negative impact on the environment. I do not, however, consider that the consumer information aspect detracts from the fiscal nature of the marking requirement.
28. It must be noted that tax markings are frequently used to ensure the collection of special taxes, in accordance with Article 21(1) of Directive 92/12/EEC,(19) under which ‘... Member States may require that products released for consumption in their territory shall carry tax markings or national identification marks used for fiscal purposes’.
By virtue of Article 3(1), Directive 92/12 applies to mineral oils, alcohol and alcoholic beverages and manufactured tobacco, but Article 3(3) recognizes the right of the Member States to introduce or maintain taxes which are levied on other products provided that those taxes do not give rise to border-crossing formalities in trade between Member States. The environmental tax introduced by Belgium is a special tax which can be classed within that definition and the marking requirement for products subject to it does not give rise to border-crossing formalities.
29. Despite its nature as a fiscal accompanying measure, it cannot be denied that the obligation to affix a distinctive sign has an effect on the marketing of goods, since products subject to the environmental tax cannot be sold unless they bear the tax marking showing that the tax has been paid and the amount thereof or, alternatively, that they are exempt. In my opinion, that marking requirement constitutes a technical specification linked to a fiscal measure with an environmental aim.
30. That conclusion is not affected by the arguments put forward by the Belgian Government to the effect that measures intended to protect the environment, such as the present environmental tax, fall outwith the scope of Directive 83/189, which, it claims, is confined to technical rules concerning products, which may be subject to harmonization by means of Community rules based on Article 100a of the Treaty.
That argument cannot be accepted. Technical specifications are a basic element of standards concerning the production and marketing of goods but may also form an ancillary element of rules of a different kind pursuing various objectives. In the present case, the marking requirement is an ancillary measure contained in rules of a fiscal nature intended to protect the environment. Consequently, the scope of Directive 83/189 cannot be limited to technical specifications contained in national rules, harmonization of which would have Article 100a as its legal basis. Technical specifications and regulations which appear to be ancillary to national rules which do not directly concern the production and marketing of goods may hinder intra-Community trade and it is therefore logical that they should be subject to the procedure for the provision of information in Directive 83/189, in order to assess whether they are compatible with the Treaty or allow the Commission to find that it is necessary to adopt Community standards in the field in question.
31. Technical specifications linked to fiscal measures, made compulsory by action ascribable to a Member State, give rise to de facto technical regulations which must, beyond any shadow of a doubt, be notified to the Commission since Directive 83/189 was amended by Directive 94/10. The latter directive extended and further defined, in the light of the practical experience acquired in the application of the procedure for the provision of information, the concept of a technical regulation, originally laid down by Directive 83/189. The second subparagraph of Article 1(9) lists examples of de f acto technical regulations, including the following:
‘De facto technical regulations include:
...
technical specifications or other requirements which are linked to fiscal or financial measures affecting the consumption of products by encouraging compliance with such technical specifications or other requirements; technical specifications or other requirements linked to national social security systems are not included’.
32. Directive 94/10 also introduced two provisions into Directive 83/189 which confer a special status on technical specifications linked to fiscal or financial measures.(20) Under the last subparagraph of Article 8(1), ‘the detailed comments or opinions of the Commission or the Member States may concern only the aspect which may hinder trade and not the fiscal or financial aspect of the measure’ and, under Article 10(4), the standstill requirement in Article 9 does not apply to that type of technical regulation.
33. In the present case, the marking requirement for products subject to the environmental tax was introduced by two items of legislation adopted in Belgium in 1993, thus before Directive 94/10 came into force on 1 July 1995. Those items of legislation can therefore constitute technical regulations subject to the requirement of notification to the Commission at the drafting stage only if it is considered that the concept of a technical regulation laid down in Directive 83/189, as amended by Directive 88/182, already extended to technical specifications linked to fiscal measures and that Directive 94/10 merely defined that concept more precisely, without altering or extending it.
Some support for such a broad interpretation of the concept of technical regulation in Directive 83/189 may be found in the wording of Article 1(9) following its amendment by Directive 94/10. The first subparagraph of Article 1(9) maintains, with some amplification and further definition, the concept of a technical regulation initially laid down in Directive 83/189, which distinguished between de jure and de facto technical regulations; in addition, a second subparagraph is introduced giving a non-exhaustive list of instances of de facto technical regulations, including those linked to fiscal or financial measures affecting the consumption of products. It might be thought that the second subparagraph provides a clarification, in the light of the practical experience acquired in the application of the procedure for the provision of information, of the concept of a de facto technical regulation, giving examples but not amplifying or altering that concept. Under that interpretation, the Belgian rules concerning the environmental tax would constitute de facto technical regulations, which would have had to be notified to the Commission.
34. I consider, however, that there are various arguments which militate against such a broad interpretation of the initial concept of a technical regulation in Directive 83/189 and lead me to conclude that technical regulations linked to fiscal measures did not fall within the scope of Directive 83/189 prior to its amendment by Directive 94/10.
35. In the first place, the Commission has stated that there was considerable debate and discussion during the drafting of Directive 94/10 as to whether it was appropriate to extend the application of the procedure for the provision of information introduced by Directive 83/189 to technical regulations linked to fiscal and financial measures. In that connection, the second recital in the preamble to Directive 94/10 states that the scope of Directive 83/189 should be extended, and the twelfth recital mentions the need to clarify the concept of a de facto technical regulation.
36. That dual objective of Directive 94/10, to extend and clarify the scope of Directive 83/189, may be seen in the way in which it redefines to a certain extent the concept of a technical regulation, specifically in three basic points:
the origin of a technical regulation is still to be found in a technical specification, but may also be found in an ‘other requirement’, defined in Article 1(3) of Directive 83/189 as ‘a requirement, other than a technical specification, imposed on a product for the purpose of protecting, in particular, consumers or the environment, and which affects 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’;
the definition of a technical regulation, given in Article 1(9) of Directive 83/189, includes ‘... laws, regulations or administrative provisions of Member States ... prohibiting the manufacture, importation, marketing or use of a product’; and
a second subparagraph is inserted in Article 1(9) of Directive 83/189 in order to clarify and define the scope of the concept of a de facto technical regulation, which had raised problems of implementation because it had not been specified in the initial version of Directive 83/189; Directive 94/10 lists examples of de f acto technical regulations, including those linked to fiscal and financial measures.
37. Secondly, according to the Commission, the practice followed during the years of implementation of the procedure for the provision of information came to embrace the idea that there was no obligation to notify technical regulations linked to fiscal and financial measures.
38. Finally, fiscal and financial measures which also contain a provision affecting the production and marketing of goods form a particular type of technical regulation, subject to different rules from those applicable to other technical regulations. In that connection, Directive 94/10 introduced Article 10(4), under which regulations of that type must be notified, but their adoption is not subject to the standstill obligation in Article 9. Furthermore, the final subparagraph of Article 8(1), added by Directive 94/10, stipulates that any detailed opinions relating to technical regulations linked to fiscal or financial measures may concern only aspects which may hinder trade and never those of a fiscal or financial nature.
Specific provisions of that kind, which Directive 94/10 lays down for technical regulations linked to fiscal and financial measures, were absent both from the initial version of Directive 83/189 and from the version amended by Directive 88/182. That circumstance demonstrates, in my view, that technical regulations of that type were not subject to the procedure for the provision of information prior to the entry into force of Directive 94/10. The contrary conclusion — that Directive 83/189 applied from the outset to technical regulations of that type — would be illogical, since it would presuppose that the rules governing technical regulations linked to fiscal and financial measures laid down in Directive 94/10, which was adopted in order to strengthen the procedure for the provision of information, were less strict than those applicable under the original version of Directive 83/189.
39. Consequently, I consider that prior to the entry into force of Directive 94/10 the obligation to affix a distinctive sign or tax marking to products subject to the environmental tax did not constitute a technical specification and that the Belgian rules concerning that tax cannot therefore be regarded as technical regulations subject to the application of Directive 83/189, as amended by Directive 88/182.
40. In the light of the foregoing considerations, I propose that the Court should answer the question raised as follows:
The provisions of Article 1(1) and (5) 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, as amended by Council Directive 88/182/EEC, are to be interpreted as meaning that neither the obligation to affix a distinctive sign or tax marking on products subject to a tax payable on account of the environmental damage which they are deemed to cause nor the obligation to affix another distinctive sign on products of the same type if they are exempt from that tax by virtue of diplomatic privilege constitute ‘technical specifications’ or ‘technical regulations’.