Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Sixth Chamber)

7 May 1998 (1)

(Failure to fulfil obligations - Obligation of prior communication under Directive 83/189/EEC)

In Case C-145/97,

Commission of the European Communities, represented by Richard B. Wainwright, Principal Legal Adviser, and Jean-Francis Pasquier, a national civil servant on secondment to the Legal Service of the Commission, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Kingdom of Belgium, represented by Jan Devadder, General Adviser at the Legal Service of the Ministry of Foreign Affairs, External Trade and Cooperation with Developing Countries, acting as Agent, with an address for service in Luxembourg at the Belgian Embassy, 4 Rue des Girondins,

defendant,

APPLICATION for a declaration that, by adopting the Decree of 9 November 1993 of the Government of the Region of Metropolitan Brussels concerning

standards of quality and safety in furnished accommodation without first communicating it to the Commission in draft form, the Kingdom of Belgium has failed to fulfil its obligations under Article 8 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 (OJ 1983 L 109, p. 8), as amended by Council Directive 88/182/EEC of 22 March 1988 (OJ 1988 L 81, p. 75),

THE COURT (Sixth Chamber),

composed of: H. Ragnemalm (Rapporteur), President of the Chamber, R. Schintgen, G.F. Mancini, G. Hirsch and K.M. Ioannou, Judges,

Advocate General: N. Fennelly,

Registrar: H.A. Rühl, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 11 December 1997, at which the Commission was represented by Olivier Couvert-Castera, a national civil servant on secondment to the Legal Service of the Commission, acting as Agent, and the Kingdom of Belgium by Jan Devadder,

after hearing the Opinion of the Advocate General at the sitting on 29 January 1998,

gives the following

Judgment

1. By application lodged at the Court Registry on 16 April 1997, the Commission of the European Communities brought an action under Article 169 of the EC Treaty seeking a declaration that, by adopting the Decree of 9 November 1993 of the Government of the Region of Metropolitan Brussels concerning standards of quality and safety in furnished accommodation without first communicating it to the Commission in draft form, the Kingdom of Belgium has failed to fulfil its obligations under Article 8 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 (OJ 1983 L 109, p. 8), as amended by Council Directive 88/182/EEC of 22 March 1988 (OJ 1988 L 81, p. 75, hereinafter 'the Directive').

2. The Decree of 9 November 1993 of the Government of the Region of Metropolitan Brussels concerning quality and safety standards for the letting of furnished

   accommodation (Moniteur Belge of 31 December 1993, p. 29194, hereinafter 'the contested decree') provides inter alia:

   Article 12

   'Electrical appliances shall comply with the relevant Belgian standards and Royal Decrees. They must bear the mark "CEBEC"';

   Article 13(3) and (4)

   'Natural-gas installations must comply with standard NBN D51-003: "Installations for combustible gas, lighter than air, distributed by pipes".

   Natural-gas installations must comply with the relevant Belgian standards and bear the mark "BENOR"; in the absence of such standards, they must be approved by the Association Royale des Gaziers Belges (A.R.G.B.)';

   Article 23

   'Without prejudice to the application of the provisions laid down by statute or regulation concerning fire prevention, the lessor shall take measures to ensure:

   ...

   2. that swift and effective action can be taken against any outbreak of fire, using the necessary equipment for protection against fire. The said equipment, defined in agreement with the Fire Service, must comply with the relevant standards and bear the mark "BENOR".'

3. The Commission takes the view that the contested decree should have been communicated to it in draft form, in accordance with the first subparagraph of Article 8(1) of the Directive which provides:

   '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.'

4. Article 1(5) defines the term 'technical regulation', used in Article 8, as follows:

   '"technical regulation", technical specifications, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof, except those laid down by local authorities'.

5. In accordance with Article 1(1) of the Directive, the term 'technical specification' should be understood to cover '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'.

6. Taking the view that the contested decree contained technical regulations which should have been communicated to it in draft form under Article 8 of the Directive, the Commission, by letter of 23 February 1995, gave the Belgian Government formal notice that it should submit its observations within two months.

7. Having received no reply from the Belgian authorities, the Commission, by letter of 2 May 1996, issued a reasoned opinion pursuant to Article 169 of the Treaty.

8. As the Kingdom of Belgium took no action in response to the reasoned opinion, the Commission brought this action.

9. It should be noted that from the start of the administrative phase the Belgian Government acknowledged that the contested decree contained technical regulations. It also confirmed, at the hearing, that it had failed to fulfil its obligations of communication, at least in respect of Articles 12, 13 and 23.

10. First, Articles 12, 13 and 23 of the contested decree contain technical regulations within the meaning of the first subparagraph of Article 8(1), which should thus have been communicated to the Commission immediately.

11. Secondly, as regards the precise scope of the obligation to communicate, the last sentence of the first subparagraph of Article 8(1) of the Directive provides that Member States are also to 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.

12. As the Court made clear in its judgment in Case C-279/94 Commission v Italy [1997] ECR I-4743, paragraph 40, the aim of that provision is to enable the Commission to have as much information as possible on any draft technical regulation with respect to its content, scope and general context in order to enable it to exercise as effectively as possible the powers conferred on it by the Directive.

13. It follows that, since it contains technical regulations, the contested decree should have been communicated to the Commission in draft form.

14. Accordingly, by adopting the contested decree without first communicating it to the Commission in draft form, the Kingdom of Belgium has failed to fulfil its obligations under the first subparagraph of Article 8(1) of the Directive.

    Costs

15. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Kingdom of Belgium has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT (Sixth Chamber),

hereby:

1. Declares that by adopting the Decree of 9 November 1993 of the Government of the Region of Metropolitan Brussels concerning standards of quality and safety in furnished accommodation without first communicating it to the Commission in draft form, the Kingdom of Belgium has failed to fulfil its obligations under the first subparagraph of Article 8(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;

2. Orders the Kingdom of Belgium to pay the costs.

RagnemalmSchintgen Mancini HirschIoannou

Delivered in open court in Luxembourg on 7 May 1998.

R. Grass H. Ragnemalm

Registrar President of the Sixth Chamber

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1: Language of the case: French.