Åklagaren v Percy Mickelsson and Joakim Roos.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Arestis
• ECLI: ECLI:EU:C:2006:782
• Date: 14 December 2006
• Docket Number: C-142/05
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 14 December 2006 ¹(1)

Case C-142/05

Åklagaren

v

Percy Mickelsson

and

Joakim Roos

(Reference for a preliminary ruling from the Luleå Tingsrätt (Sweden))

(Approximation of laws – Recreational craft – Rules on the use of personal watercraft – Directive 94/25/EC – Article 28 EC – Measure having equivalent effect)

I – Introduction

1. The present reference for a preliminary ruling raises the question whether Articles 28 EC and 30 EC or Directive 94/25/EC of the European Parliament and of the Council of 16 June 1994 on the approximation of the laws, regulations and administrative provisions of the Member States relating to recreational craft (2) (hereinafter: the Recreational Craft Directive) preclude Swedish rules on the use of personal watercraft. There are therefore grounds to examine the extent to which national provisions by which the use of products is restricted should be assessed on the basis of Article 28 EC.

2. The main proceedings concern the criminal liability of two defendants who are accused of having infringed the Swedish jet-ski regulations (3) (hereinafter: the Swedish regulations). Under those regulations, the use of personal watercraft other than on general navigable waterways and on waters on which the county administrative board has permitted the use of personal watercraft is prohibited and punishable by a fine.

3. This reference for a preliminary ruling also gives cause to interpret Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (4) (hereinafter: the Information Directive).

II – Legal framework

A – Community law

4. The scope of the Recreational Craft Directive initially covered only recreational craft. The scope of the directive was extended to include personal watercraft by Directive 2003/44/EC.

5. Article 2(2) of the Recreational Craft Directive provides:

‘The provisions of this Directive shall not prevent Member States from adopting, in compliance with the Treaty, provisions concerning navigation on certain waters for the purpose of protection of the environment, the fabric of waterways, and ensuring safety of waterways, providing that this does not require modification to craft conforming to this Directive.’

6. Article 4(1) of the Recreational Craft Directive states:

‘Member States shall not prohibit, restrict or impede the placing on the market and/or putting into service in their territory of products referred to in Article 1(1) bearing the CE marking referred to in Annex IV, which indicates their conformity with all the provisions of this Directive, including the conformity procedures set out in Chapter II’.

7. Article 1 of the Information Directive provides:

‘For the purposes of this Directive, the following meanings shall apply:

…

4. “other requirements”, 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;

…

11. “technical regulation”, technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 10, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider.

…’

8. The first subparagraph of Article 8(1) of the Information Directive provides that, subject to Article 10, Member States must immediately communicate to the Commission any draft technical regulation.

9. Under the third subparagraph of Article 8(1) of the Information Directive, Member States must communicate the draft again under the above conditions if they make changes to the draft that have the effect of significantly altering its scope, shortening the timetable originally envisaged for implementation, adding specifications or requirements, or making the latter more restrictive.

10. Under the third subparagraph of Article 9(2), the Member State concerned must report to the Commission on the action it proposes to take on detailed opinions. The Commission shall comment on this reaction.

11. Article 10(1) provides for various situations where the obligation to notify does not apply.

B – National law

12. The Swedish jet-ski regulations (1993:1053) entered into force in the version applicable in the present case on 15 July 2004.

13. For the purposes of the Swedish regulations a personal watercraft is a craft of less than four metres in length which has an internal combustion engine with a water jet unit as its primary source of propulsion and is designed to be operated by a person or persons sitting, standing or kneeling on, rather than within the confines of, the hull.

14. Under Paragraph 2 of the regulations, personal watercraft may be used only on general navigable waterways and on such waters as defined in Paragraph 3(1).

15. Paragraph 3 of the regulations provides as follows:

‘The länsstyrelsen may issue rules regarding the waters in the county, other than general navigable waterways, on which personal watercraft may be used. Such rules are in any event to be issued for

1. waters which are subject to such a great amount of other human activity that future noise and other disturbances from the use of personal watercraft cannot be regarded as constituting a significant nuisance for the public or the environment,

2. waters other than in the vicinity of residential or holiday home areas which are of little value in the protection of the natural and cultural environment, biological diversity, outdoor life, recreational or professional fishing, and

3. other waters where the use of personal watercraft does not cause a nuisance to the public by way of noise or other disturbances or cause a significant risk of injury or disturbance to flora or fauna or the spreading of infectious diseases.

The länsstyrelsen may also issue rules regarding the designation of general navigable waterways for the use of personal watercraft, if necessary to avoid the nuisances and risks of injury referred to in point 3 of the first subparagraph, and regarding travel to and from general navigable waterways.’

16. Paragraph 5 of the regulations provides that anyone who drives a personal watercraft in violation of Paragraphs 2, 3 or rules issued under Paragraph 3 shall be subject to a fine.

17. According to the referring court, the Sjöfartsverket (National Maritime Administration) decides what are to be regarded as general navigable waterways and publishes this in its statute book. General navigable waterways are designated on maritime charts. A general navigable waterway may be established if the waterway is of material importance for general traffic, if it is of material importance for the fishing industry or if it is of material importance for recreational craft traffic and is necessary for the safety of the waterway.

III – Facts and main proceedings

18. A Swedish Public Prosecutor has brought proceedings before the Luleå Tingsrätt (Luleå District Court) (5) (Sweden) against Percy Mickelsson and Joakim Roos (hereinafter: the defendants in the main proceedings). They are accused of having driven personal watercraft on 8 August 2004 on waters on which personal watercraft may not be used under the Swedish regulations. It is common ground that those waters are neither general navigable waterways within the meaning of the Swedish regulations, on which personal watercraft may be driven, nor had the competent county administrative board permitted the use of personal watercraft on those waters pursuant to Article 3 of the Swedish regulations.

19. In their defence, the defendants in the main proceedings essentially claim that the Swedish regulations are contrary to Community law since they infringe Articles 28 and 30 EC, the Recreational Craft Directive and the Information Directive.

IV – Reference for a preliminary ruling and proceedings before the Court of Justice

20. By order of 21 March 2005, the Luleå Tingsrätt stayed its proceedings and made reference to the Court of Justice for a preliminary ruling on the following questions:

1.(a) Do Articles 28 EC to 30 EC preclude national provisions, such as those in the Swedish jet-ski regulations, prohibiting the use of personal watercraft other than on a general navigable waterway or waters in respect of which the local authority has issued rules permitting their use?

1.(b) In the alternative, do Articles 28 EC to 30 EC prevent a Member State from applying provisions of that kind in such a way as to prohibit the use of personal watercraft also on waters which have not yet been the subject of an investigation by the local authority of whether or not rules permitting their use in the area are to be issued?

2. Does Directive 2003/44/EC of the European Parliament and of the Council of 16 June 2003 amending Directive 94/25/EC on the approximation of the laws, regulations and administrative provisions of the Member States relating to recreational craft preclude such national provisions prohibiting the use of personal watercraft as set out above?

21. In the proceedings before the Court, written and oral observations were submitted by the defendants in the main proceedings, the Swedish, Norwegian and Austrian Governments and the Commission...