JUDGMENT OF THE COURT (Third Chamber)

27 October 2016 ( *1 )

‛Failure of a Member State to fulfil obligations — Free movement of goods — Directive 2007/23/EC — Placing on the market of pyrotechnic articles — Article 6 — Free movement of pyrotechnical articles compliant with the requirements of Directive 2007/23/EC — National rules making the placing on the market of pyrotechnic articles subject to additional requirements — Obligation to make a prior notification before a national body entitled to review and modify instructions for use of pyrotechnic articles’

In Case C‑220/15,

ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 12 May 2015,

European Commission , represented by D. Kukovec and A. C. Becker, acting as Agents, assisted by B. Wägenbaur, Rechtsanwalt,

applicant,

v

Federal Republic of Germany , represented by T. Henze, J. Möller and K. Petersen, acting as Agents,

defendant,

THE COURT (Third Chamber),

composed of L. Bay Larsen, President of the Chamber, M. Vilaras (Rapporteur), J. Malenovský, M. Safjan and D. Šváby, Judges,

Advocate General: M. Bobek,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 27 April 2016,

after hearing the Opinion of the Advocate General at the sitting on 7 July 2016,

gives the following

Judgment

1By its application, the European Commission asks the Court to declare that, by providing, over and above the requirements 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 ( OJ 2007 L 154, p. 1 ), and notwithstanding a previous conformity assessment of pyrotechnic articles, that (i) those articles are to be subject to the procedure laid down in Paragraph 6(4) of the Erste Verordnung zum Sprengstoffgesetz (First Regulation relating to the Law on Explosives, BGBl. 1991 I, p. 169), as amended by the Law of 25 July 2013 (BGBl. 2013 I, p. 2749) (‘the SprengV’) (‘the notification procedure’), before being placed on the market; and that (ii) pursuant to Paragraph 6(4) of the SprengV, the Bundesanstalt für Materialforschung und-prüfung (Federal Institute for Materials Research and Testing, Germany; ‘the BAM’) is to have the power to review and, where required, to modify their instructions for use (‘the power to modify the instructions for use’), the Federal Republic of Germany has failed to fulfil its obligations under Article 6(1) of Directive 2007/23.

Legal context

EU law

2Recitals 1, 2, 8, 16, 19 and 20 of Directive 2007/23 state:

‘(1)

The laws, regulations and administrative provisions in force in the Member States with regard to the placing on the market of pyrotechnic articles are divergent, in particular as regards aspects such as safety and performance characteristics.

(2)

Those laws, regulations and administrative provisions, being liable to cause barriers to trade within the Community, should be harmonised in order to guarantee the free movement of pyrotechnic articles within the internal market whilst ensuring a high level of protection of human health and safety and the protection of consumers and professional end users.

…

(8)

According to the principles set out in the Council Resolution of 7 May 1985 on a new approach to technical harmonisation and standards [ OJ 1985 C 136, p. 1 ], a pyrotechnic article should comply with this Directive when the article is placed on the Community market for the first time. ...

…

(16)

In line with the “New Approach to technical harmonisation and standardisation”, pyrotechnic articles manufactured in compliance with harmonised standards should benefit from a presumption of conformity with the essential safety requirements provided for in this Directive.

…

(19)

In order to be placed on the market, pyrotechnic articles should bear a CE marking indicating their conformity with the provisions of this Directive to enable them to move freely within the Community.

(20)

According to the “New Approach to technical harmonisation and standardisation”, a safeguard clause procedure is necessary to allow the possibility for contesting the conformity of a pyrotechnic article or failures. Accordingly, Member States should take all appropriate measures to prohibit or restrict the placing on the market of products bearing a CE marking or to withdraw such products from the market if they endanger the health and safety of consumers when the products are used for their intended purpose.’

3Article 1(1) of Directive 2007/23 provides:

‘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.’

4Article 2(2) of Directive 2007/23 defines ‘placing on the market’ 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. 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.’

5Article 5(1) of Directive 2007/23 states:

‘Member States shall take all appropriate measures to ensure that pyrotechnic articles may be placed on the market only if they satisfy the requirements of this Directive, bear a CE marking, and comply with the obligations relating to the conformity assessment.’

6Article 6(1) and (2) of Directive 2007/23 is worded 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.’

7Article 14(4) and (6) of Directive 2007/23 provides:

‘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.’

German law

8Pursuant to Paragraph 6(1) of the Sprengstoffgesetz (Law on explosive substances, BGBl. 2002 I, p. 3518), as amended by the Law of 7 August 2013 (BGBl. 2013 I, p. 3154):

‘The Federal Ministry of the Interior is authorised, by ordinance,

...

3.to provide, for the protection of the legal interests indicated in point 1 of Paragraph 6(1),

...

d)

that notification of acquired or imported explosive substances under Paragraph 1(1) must be given and that specific documents must be enclosed with the notification.’

9Paragraph 6(4) of the SprengV states:

‘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).’

Pre-litigation procedure and proceedings before the Court

10Following an exchange of correspondence during 2012, in the context of an ‘EU Pilot’ procedure (3631/12/ENTR), the Commission sent a letter of formal notice to the Federal Republic of Germany on 25 January 2013. In that letter, the Commission stated that the obligations imposed by German legislation on pyrotechnic articles went beyond the requirements laid down in Directive 2007/23 and were liable to constitute a restriction on the free movement of such articles, at the very least in relation to pyrotechnic articles which had already undergone a successful conformity assessment by a notified body in accordance with Article 10 of that directive.

11The formal notice concerned the contested notification procedure and the power to modify the instructions for use.

12The Federal Republic of Germany replied to the letter of formal notice by letter of 21 March 2013. In describing the notification procedure, Germany claimed that the BAM did not act as a notified body responsible for assessing the conformity of pyrotechnic articles, but rather exercised a market surveillance role which fell outside the scope of the harmonisation effected by Directive 2007/23. It also argued that, whilst access to the market of pyrotechnic articles was subject to harmonised requirements, the same did not apply to ignition devices. In addition, it asserted that the notification procedure was a negligible burden for manufacturers and importers, and therefore could not be regarded as a disproportionate burden. Lastly, it maintained that the procedure did not result in any discriminatory effect on consumers or traders of Member States.

13On 27 January 2014, the Commission sent the Federal Republic of Germany a reasoned opinion restating its complaints in relation to the notification procedure and the power to modify the instructions for use, rebutting the arguments put forward by that Member State and calling on it to comply with its obligations under Directive 2007/23 within two months from the date of receipt of the reasoned opinion.

14In addition, with a complaint it had received serving as evidence, the Commission further developed its argument that the notification procedure resulted in additional costs and required extra work and time, and did not, therefore, constitute a negligible burden. According to the complaint received, the notification procedure could last up to three months and required the payment of a fee and the provision of samples. The reasoned opinion also stated that the presence of instructions for use which met the requirements of Directive 2007/23 was one of the essential requirements under that directive and was subject to review by a notified body as part of the conformity procedure, so that a further review of those instructions in the light of national provisions was not allowed. Lastly, it noted that the notification procedure did not fall under the provisions of Article 6(2) of Directive 2007/23, allowing Member States to prohibit or restrict the possession, use and/or the sale of fireworks on grounds of public order, security, health and safety, or environmental protection.

15The Federal Republic of Germany replied to the reasoned opinion by letters of 20 March and 2 April 2014.

16With regard to the notification procedure, it stated that the requirement for manufacturers and importers of pyrotechnic articles to include in the instructions for use the identification number issued by the BAM would cease to apply from 27 March 2014 and that the BAM had never performed checks on pyrotechnic articles whose conformity had already been assessed. Lastly, it contended that the average duration of the procedure was two to three weeks and that a duration of three months would arise only in special circumstances.

17With regard to the power to modify the instructions for use, the defendant maintained its previous arguments. The harmonisation effected by Directive 2007/23 applied only to the placing on the market of pyrotechnic articles and not to their use. Furthermore, the labelling requirements provided for in Articles 12 and 13 of that directive constituted only minimum requirements which could be supplemented by national market surveillance authorities. Lastly, it contended that the power to modify the instructions for use was justified not only on grounds of consumer protection, but, more widely, by the obligation to protect life which arises from Paragraph 2(2) of the Grundgesetz (Basic Law) and Article 2(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, as well as Article 3(1) of the Charter of Fundamental Rights of the European Union.

18In those circumstances, the Commission decided to bring the present action.

The action

Arguments of the parties

19The Commission submits that Article 6(4) of the SprengV requires all manufacturers and importers of pyrotechnic articles to complete the notification procedure, to which their access to the market is subject and, therefore, constitutes an infringement of Article 6(1) of Directive 2007/23. Even though that national provision does not impose substantive requirements, it obliges all manufacturers and importers to declare all pyrotechnic articles (regardless of whether or not they have been subject to a conformity assessment in relation to the essential requirements of Directive 2007/23 by a notified body), pay a fee, wait for the issue of an identification number and, in some cases, accept amendments to the relevant instructions for use before being permitted to market those articles on German territory.

20That assessment is not altered by the fact that the notification procedure applies without distinction to both domestic and imported products and does not discriminate against economic operators established in Member States other than the Federal Republic of Germany. Indeed, Article 6(1) of Directive 2007/23 does not provide for a mere prohibition of discrimination, but rather guarantees the free movement of all pyrotechnic articles which satisfy the requirements of that directive. Directive 2007/23 contains no indication that a measure must constitute a burden exceeding a certain threshold in order to be regarded as a restriction or hindrance within the meaning of Article 6(1).

21The Commission also rejects the argument that the BAM does not intervene as a notified body within the meaning of Article 10 of Directive 2007/23, but rather as a market surveillance authority within the meaning of Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Council Regulation (EEC) No 339/93 ( OJ 2008 L 218, p. 30 ) and therefore the notification procedure cannot be assessed in the light of Directive 2007/23. Even if the BAM were to be regarded as acting as a market surveillance authority, it would not be entitled to impose an additional procedure which is contrary to the free movement of pyrotechnic articles. In any event, according to the Commission, Directive 2007/23 governs both market access and market surveillance, with Article 14(4) of that directive stating that Member States are to perform surveillance of the market of pyrotechnic articles ‘taking due account of the presumption of the conformity of products bearing a CE marking’.

22Furthermore, the Commission takes the view that the power to modify the instructions for use also constitutes a breach of Article 6(1) of Directive 2007/23 since it is in fact an additional assessment imposed without distinction on all products, even those that have previously undergone a conformity assessment as attested by the CE marking.

23The Commission disputes that the power to modify the instructions for use is intended to prohibit or restrict the possession or use of pyrotechnic articles within the meaning of Article 6(2) of Directive 2007/23. It is true that the possession and use of pyrotechnic articles fall within the regulatory powers of Member States, but the assessment carried out by the BAM is for the purpose of verifying that the instructions for use of pyrotechnic articles are appropriate in the light of other national provisions before those articles can be placed on the market, rather than of adopting rules in relation to the use of those products. Yet, the appropriateness of the instructions is an integral part of the conformity assessment of pyrotechnic articles with respect to the essential requirements set out in Annex I to Directive 2007/23 and the presumption of conformity of pyrotechnic articles with a CE marking extends also to the appropriateness of their instructions for use.

24The Federal Republic of Germany principally contends that the obligation on Member States to refrain, in accordance with Article 6(1) of Directive 2007/23, from prohibiting, restricting or hindering the placing on the market of pyrotechnic articles applies only to the first making available on the EU market of an individual product, with a view to its distribution and/or use, whether for payment or free of charge, in accordance with the definition set out in Article 2(2) of that directive. According to the defendant, unlike Article 4(1) of Directive 2013/29/EU of the European Parliament and of the Council of 12 June 2013 on the harmonisation of the laws of the Member States relating to the making available on the market of pyrotechnic articles ( OJ 2013 L 178, p. 27 ), that article does not guarantee the free movement of pyrotechnic articles in the EU but rather applies only to the first stage of their marketing.

25The defendant concludes that since Member States retain the power to regulate the marketing and distribution of pyrotechnic articles following their first placing on the market, neither the notification procedure nor the power to modify the instructions for use is incompatible with Directive 2007/23.

26As regards the notification procedure, the main contention of the Federal Republic of Germany is that that procedure cannot be regarded as duplicating the conformity assessment procedure carried out by a notified body which every pyrotechnic article must undergo in accordance with Articles 4(4)(a), 9 and 10 of Directive 2007/23. Firstly, the notification procedure takes place long after an article is first placed on the EU market and made available on the German market. Secondly, the BAM does not carry out a technical conformity assessment as provided for in Article 9 of Directive 2007/23, but simply issues a registration or identification number and verifies, in accordance with the documents supplied, whether the labelling of pyrotechnic articles is correct.

27The identification number issued, which is provided only as proof of proper notification to the BAM and in order to make pyrotechnic articles traceable throughout the supply chain, does not carry any additional substantive requirements which go beyond the essential requirements set out in Annex I to Directive 2007/23. Moreover, the requirement to include the identification number in the instructions has been removed.

28In any event, the defendant maintains that the notification procedure, as a simple formal declaration, entails only a minimal administrative burden, particularly in view of the risk to the health and safety of persons posed by pyrotechnic articles (which should, at any rate, be used only by people with appropriate technical qualifications) and that that administrative burden is lighter than that associated with import licences or the checks carried out by market surveillance authorities.

29In the alternative, the Federal Republic of Germany contends that the notification procedure, which is a preparatory measure for market and user surveillance, is in any event compatible with the market surveillance principles laid down in Directive 2007/23.

30As regards the power to modify the instructions for use, the Federal Republic of Germany maintains that that power cannot be regarded as duplicating the conformity assessment procedure in so far as point 3(h) of Annex I to Directive 2007/23 does not strictly require notified bodies to review instructions for use of pyrotechnic articles.

31It maintains that, as part of the notification procedure, the BAM does not carry out a technical assessment as provided for in Article 9 of Directive 2007/23, but simply checks that the instructions are appropriate on the basis of the documents provided. Furthermore, when amending instructions, the BAM is not imposing any additional requirements on pyrotechnic articles, or on the appropriateness of their instructions, which go beyond those contained in Annex I to Directive 2007/23. Its review is limited to verifying compliance with the requirements imposed on instructions under Directive 2007/23 and regards only the principal labelling requirements where non-compliance would entail particularly serious risks to the safety and health of persons.

32The Federal Republic of Germany also stresses that, at the time of the conformity assessment, notified bodies are unable to undertake a full review of the appropriateness of instructions for and labelling on pyrotechnic articles in the official language or languages of the Member State in which the article will reach the final user. Indeed, the relevant Member States are unknown at the time of the conformity assessment. Furthermore, it states that the elements which must be included in the labelling pursuant to Article 12(2) of Directive 2007/23, namely, age limits, instructions for use and minimum safety distance are also unknown at the time of the conformity assessment of the articles.

Findings of the Court

Preliminary observations on the scope of Article 2(2) and Article 6 of Directive 2007/23.

The compatibility of the notification procedure with Directive 2007/23

49It should be noted that under Article 6(4) of the SprengV, the use of pyrotechnic articles in Germany is conditional on the manufacturer or importer having previously declared those articles and their instructions to the BAM and having received an identification number which must be included in the instructions.

51Such national legislation therefore constitutes a restriction on the free movement of pyrotechnic articles as guaranteed by Article 6(1) of Directive 2007/23.

52The fact that those formalities are applied without distinction to both domestic and imported products, that they do not duplicate the conformity assessment procedure provided for under Article 9 of Directive 2007/23 or that they represent only a minimal administrative and financial burden for the producers or manufacturers cannot alter that conclusion.

53It should further be borne in mind that, according to settled case-law, a measure capable of hindering imports must be classified as an obstacle to the free movement of goods even where the hindrance is slight (see, to that effect, judgment of 14 December 2004, Radlberger Getränkegesellschaft and S. Spitz, C‑309/02 , EU:C:2004:799 , paragraph 68 and the case-law cited).

54The mere fact that the notification procedure applies to all pyrotechnic articles made available on the market of one of the Member States in accordance with the requirements of Directive 2007/23 is sufficient to substantiate the alleged infringement since it should be noted that the Federal Republic of Germany has not raised any justifications on grounds of public order, security or safety, or environmental protection, as provided for in Article 6(2) of the directive.

55The Federal Republic of Germany submits, however, that the notification procedure constitutes a preparatory measure for market and user surveillance which is, in any event, compatible with the principles laid down in Article 14 of Directive 2007/23.

56Nonetheless, that argument cannot be accepted.

57It is true that where a Member State ascertains that a pyrotechnic article which is compliant with the requirements of Directive 2007/23, that is to say, 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, Article 14(6) of that directive provides the possibility for the Member State to take appropriate provisional measures to withdraw that article from the market, to prohibit its being placed on the market or to restrict its free movement.

58Nonetheless, as the Advocate General stated in point 63 of his Opinion, the market surveillance that Member States are required to organise and perform is based, in accordance with Article 14(4) of Directive 2007/23, on the presumption of conformity of products bearing a CE marking and therefore cannot justify a systematic assessment of all pyrotechnic articles marketed in Germany, such as that carried out under the notification procedure.

59In any case, pursuant to the final sentence of Article 14(6) of Directive 2007/23, a Member State which wishes to adopt such a measure is required to inform the Commission in advance and, under Article 16(1), the Commission alone has the power to decide whether that measure is justified or not. Yet the notification procedure does not provide for the Commission to be notified and has been imposed, without prior authorisation from the Commission, on all manufacturers and importers that wish to place pyrotechnical articles on the German market.

60It follows from the foregoing analysis that, by providing, over and above the requirements of Directive 2007/23, and notwithstanding a previous conformity assessment, that pyrotechnic articles are to be subject to the notification procedure before being placed on the market, the Federal Republic of Germany has failed to fulfil its obligations under Article 6(1) of that directive.

The compatibility of the power to modify the instructions for use with Directive 2007/23

61It should be noted that Article 6(4) of the SprengV provides that 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 and that a subsequent restriction or addition is permissible.

62The power to modify the instructions for use, which is part of the notification procedure, means that access to the German market for pyrotechnic articles placed on the market in a Member State other than the Federal Republic of Germany is subject to a systematic assessment of their instructions for use, which is in addition to the assessments carried out as part of the conformity assessment procedure laid down by Directive 2007/23.

63Indeed, as the Advocate General stated in point 74 of his Opinion, point 3(h) of Annex I to Directive 2007/23 provides that the instructions for each pyrotechnic article and, where necessary, the markings in respect of safe handling, storage, use (including safety distances) and disposal must be assessed in the official language or languages of the recipient Member State.

64Thus the power conferred on the BAM constitutes a restriction on the free movement of pyrotechnic articles as guaranteed by Article 6(1) of Directive 2007/23.

65It follows from the foregoing analysis that, by providing, over and above the requirements of Directive 2007/23, and notwithstanding a previous conformity assessment of pyrotechnic articles, that the BAM is to have the power to modify the instructions for use, the Federal Republic of Germany has failed to fulfil its obligations under Article 6(1) of that directive.

Costs

66Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Federal Republic of Germany has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the Court (Third Chamber) hereby:

1.Declares that, by providing, over and above the requirements 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, and notwithstanding a previous conformity assessment of pyrotechnic articles, that (i) those articles are to be subject to the procedure laid down in Paragraph 6(4) of the Erste Verordnung zum Sprengstoffgesetz (First Regulation relating to the Law on Explosives), as amended by the Law of 25 July 2013, before being placed on the market; and that (ii) pursuant to that paragraph, the Bundesanstalt für Materialforschung und-prüfung (Federal Institute for Materials Research and Testing, Germany) is to have the power to review and, where required, to modify their instructions for use, the Federal Republic of Germany has failed to fulfil its obligations under Article 6(1) of Directive 2007/23/EC;

2.Orders the Federal Republic of Germany to pay the costs.

[Signatures]

( *1 ) Language of the case: German.