Funke Sp. z o.o. v Landespolizeidirektion Wien (C-626/21)

Contents

Judgment of the Court (Fifth Chamber)17 May 2023^note(Reference for a preliminary ruling — Approximation of laws — Directive 2001/95/EC — Article 12 and Annex II — Technical standards and regulations — European Union Rapid Information System (RAPEX) — Guidelines — Dangerous non-food products — Implementing Decision (EU) 2019/417 — Regulation (EC) No 765/2008 — Articles 20 and 22 — Notifications to the European Commission — Administrative decision — Prohibition on the sale of certain pyrotechnic articles and obligation to withdraw — Request from a distributor of the products concerned that the notification be supplemented — Authority competent to give a decision on the request — Article 47 of the Charter of Fundamental Rights of the European Union — Effective judicial protection)In Case C‑626/21,REQUEST for a preliminary ruling under Article 267 TFEU from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria), made by decision of 29 September 2021, received at the Court on 11 October 2021, in the proceedingsFunke sp. z o.o.vLandespolizeidirektion Wien,THE COURT (Fifth Chamber),composed of E. Regan, President of the Chamber, D. Gratsias, M. Ilešič, I. Jarukaitis and Z. Csehi (Rapporteur), Judges,Advocate General: T. Ćapeta,Registrar: S. Beer, Administrator,having regard to the written procedure and further to the hearing on 21 September 2022,after considering the observations submitted on behalf of:– Funke sp. z o.o., by K. Pateter and C.M. Schwaiger, Rechtsanwälte,– the Austrian Government, by A. Posch, J. Schmoll, H. Perz, V. Reichmann and F. Werni, acting as Agents,– the European Commission, by G. Goddin, B.‑R. Killmann and F. Thiran, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 1 December 2022,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 12 of and Annex II to Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety (OJ 2002 L 11, p. 4), as amended by Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 (OJ 2008 L 218, p. 30) (‘Directive 2001/95’), Articles 20 and 22 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 Regulation (EEC) No 339/93 (OJ 2008 L 218, p. 30), and of Commission Implementing Decision (EU) 2019/417 of 8 November 2018 laying down guidelines for the management of the European Union Rapid Information System ‘RAPEX’ established under Article 12 of Directive 2001/95/EC on general product safety and its notification system (OJ 2019 L 73, p. 121).

2The request has been made in proceedings between Funke sp. z o.o. and Landespolizeidirektion Wien (Regional Police Directorate, Vienna, Austria; ‘the LPD’) concerning notifications made by the LPD via the European Union Rapid Information System (‘RAPEX’) regarding certain pyrotechnic products imported by that company.

Legal context

European Union law

Directive 2013/29/EU

3Article 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), headed ‘Subject matter’, is worded as follows:1. This Directive establishes rules designed to achieve the free movement of pyrotechnic articles in the internal market while 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.2. This Directive establishes the essential safety requirements which pyrotechnic articles are to fulfil with a view to their being made available on the market. Those requirements are set out in Annex I.’

4Article 3 of that directive, headed ‘Definitions’, states, in point 12:‘For the purposes of this Directive, the following definitions shall apply:…(12) “economic operators” means the manufacturer, the importer and the distributor’.

5Article 38 of that directive, headed ‘Union market surveillance and control of pyrotechnic articles entering the Union market’, provides, in paragraphs 1 and 2:1. Member States shall take all appropriate measures to ensure that pyrotechnic articles may be placed on the market only if, when properly stored and used for their intended purpose, they do not endanger the health and safety of persons.2. Article 15(3) and Articles 16 to 29 of Regulation [No 765/2008] shall apply to pyrotechnic articles.’

6Article 39 of that directive, headed ‘Procedure for dealing with pyrotechnic articles presenting a risk at national level’, states:1. Where the market surveillance authorities of one Member State have sufficient reasons to believe that a pyrotechnic article presents a risk to the health or safety of persons or to other aspects of public interest protection covered by this Directive, they shall carry out an evaluation in relation to the pyrotechnic article concerned covering all relevant requirements laid down in this Directive. The relevant economic operators shall cooperate as necessary with the market surveillance authorities for that purpose.Where, in the course of the evaluation referred to in the first subparagraph, the market surveillance authorities find that the pyrotechnic article does not comply with the requirements laid down in this Directive, they shall without delay require the relevant economic operator to take all appropriate corrective actions to bring the pyrotechnic article into compliance with those requirements, to withdraw the pyrotechnic article from the market, or to recall it within a reasonable period, commensurate with the nature of the risk, as they may prescribe.The market surveillance authorities shall inform the relevant notified body accordingly.Article 21 of Regulation [No 765/2008] shall apply to the measures referred to in the second subparagraph of this paragraph.2. Where the market surveillance authorities consider that non-compliance is not restricted to their national territory, they shall inform the Commission and the other Member States of the results of the evaluation and of the actions which they have required the economic operator to take.3. The economic operator shall ensure that all appropriate corrective action is taken in respect of all the pyrotechnic articles concerned that it has made available on the market throughout the Union.4. Where the relevant economic operator does not take adequate corrective action within the period referred to in the second subparagraph of paragraph 1, the market surveillance authorities shall take all appropriate provisional measures to prohibit or restrict the pyrotechnic articles being made available on their national market, to withdraw the pyrotechnic article from that market or to recall it.The market surveillance authorities shall inform the Commission and the other Member States, without delay, of those measures.5. The information referred to in the second subparagraph of paragraph 4 shall include all available details, in particular the data necessary for the identification of the non-compliant pyrotechnic article, the origin of the pyrotechnic article, the nature of the non-compliance alleged and the risk involved, the nature and duration of the national measures taken and the arguments put forward by the relevant economic operator. …6. Member States other than the Member State initiating the procedure under this Article shall without delay inform the Commission and the other Member States of any measures adopted and of any additional information at their disposal relating to the non-compliance of the pyrotechnic article concerned, and, in the event of disagreement with the adopted national measure, of their objections.7. Where, within three months of receipt of the information referred to in the second subparagraph of paragraph 4, no objection has been raised by either a Member State or the Commission in respect of a provisional measure taken by a Member State, that measure shall be deemed justified.8. Member States shall ensure that appropriate restrictive measures, such as withdrawal of the pyrotechnic article from the market, are taken in respect of the pyrotechnic article concerned without delay.’

Regulation No 765/2008

7Recital 30 of Regulation No 765/2008 is worded as follows:‘Situations of serious risk posed by a product require rapid intervention, which may entail the withdrawal of the product, its recall or the prohibition of its being made available on the market. In those situations it is necessary to have access to a system of rapid exchange of information between Member States and the Commission. The system provided for in Article 12 of Directive 2001/95/EC has proved its effectiveness and efficiency in the field of consumer products. To avoid unnecessary duplication, that system should be used for the purposes of this Regulation. Moreover, coherent market surveillance throughout the Community requires a comprehensive exchange of information on national activities in this context which goes beyond this system.’

8Article 2 of Regulation No 765/2008, headed ‘Definitions’, states, in point 7:‘For the purposes of this Regulation the following definitions shall apply:…7. “economic operators” shall mean the manufacturer, the authorised representative, the importer and the distributor’.

9Article 20 of that regulation, headed ‘Products presenting a serious risk’, provides, in paragraph 1:‘Member States shall ensure that products which present a serious risk requiring rapid intervention, including a serious risk the effects of which are not immediate, are recalled, withdrawn or that their being made available on their market is prohibited, and that the Commission is informed without delay thereof, in accordance with Article 22.’

10Article 21 of that regulation, headed ‘Restrictive measures’, provides, in paragraphs 1 and 2:1. Member States shall ensure that any measure taken, pursuant to the relevant Community harmonisation legislation, to prohibit or restrict the product’s being made available on the market, to withdraw it from the market or to recall it, is proportionate and states the exact grounds on which it is based.2. Such measures shall be communicated without delay to the relevant economic operator, which shall at the same time be informed of the remedies available under the law of the Member State concerned and of the time limits to which such remedies are subject.’

11Article 22 of that regulation, headed ‘Exchange of information – Community Rapid Information System’, provides, in paragraphs 1, 3 and 4:1. Where a Member State takes or intends to take a measure in accordance with Article 20 and considers that the reasons which prompted the measure or the effects of the measure go beyond its territory, it shall immediately notify the Commission of that measure, in accordance with paragraph 4 of this Article. It shall also inform the Commission without delay of the modification or withdrawal of any such measure.…3. The information provided in accordance with paragraphs 1 and 2 shall include all available details, in particular the data necessary for the identification of the product, the origin and the supply chain of the product, the related risk, the nature and the duration of the national measure taken and any voluntary measures taken by economic operators.4. For the purposes of paragraphs 1, 2 and 3, the market surveillance and information exchange system provided for in Article 12 of Directive 2001/95/EC shall be used. Paragraphs 2, 3 and 4 of Article 12 of that Directive shall apply mutatis mutandis.’

Directive 2001/95

12Recital 27 of Regulation No 2001/95 is worded as follows:‘Effective supervision of product safety requires the setting-up at national and Community levels of a system of rapid exchange of information in situations of serious risk requiring rapid intervention in respect of the safety of a product. …’

13Under Article 12(2) and (3) of Directive 2001/95:2. On receiving such notifications, the Commission shall check whether they comply with this Article and with the requirements applicable to the functioning of RAPEX, and shall forward them to the other Member States, which, in turn, shall immediately inform the Commission of any measures adopted.3. Detailed procedures for RAPEX are set out in Annex II. They shall be adapted by the Commission. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 15(5).’

14Annex II to that directive, headed ‘Procedures for the application of RAPEX and guidelines for notifications’, is worded as follows:‘1. RAPEX covers products as defined in Article 2(a) that pose a serious risk to the health and safety of consumers.…2. RAPEX is essentially aimed at a rapid exchange of information in the event of a serious risk. The guidelines referred to in point 8 define specific criteria for identifying serious risks.3. Member States notifying under Article 12 shall provide all available details. In particular, the notification shall contain the information stipulated in the guidelines referred to in point 8 and at least:(a) information enabling the product to be identified;(b) a description of the risk involved, including a summary of the results of any tests/analyses and of their conclusions which are relevant to assessing the level of risk;(c) the nature and the duration of the measures or action taken or decided on, if applicable;(d) information on supply chains and distribution of the product, in particular on destination countries.Such information must be transmitted using the special standard notification form and by the means stipulated in the guidelines referred to in point 8.…5. The Commission shall, in the shortest time possible, verify the conformity with the provisions of the Directive of the information received under RAPEX and, may, when it considers it to be necessary and in order to assess product safety, carry out an investigation on its own initiative. In the case of such an investigation, Member States shall supply the Commission with the requested information to the best of their ability.…7. Member States shall immediately inform the Commission of any modification or lifting of the measure(s) or action(s) in question.8. The Commission shall prepare and regularly update, in accordance with the procedure laid down in Article 15(3), guidelines concerning the management of RAPEX by the Commission and the Member States.…10. Responsibility for the information provided lies with the notifying Member State.…’

Implementing Decision 2019/417

15Recitals 11, 12 and 13 of Implementing Decision 2019/417 provide:(11) Directive [2001/95] and Regulation [No 765/2008] are complementary and provide a system to improve the safety of non-food products.(12) RAPEX helps to prevent and restrict the supply of products posing a serious risk to health and safety or, in the case of products covered by Regulation [No 765/2008], also to other relevant public interests. It enables the Commission to monitor the effectiveness and consistency of market surveillance and enforcement activities in the Member States.(13) RAPEX provides a basis for identifying the need for action at EU level and makes for consistent enforcement of EU product safety requirements and therefore contributes to the smooth functioning of the single market.’

16Article 1 of that implementing decision provides:‘The guidelines for the management of [RAPEX] established under Article 12 of Directive [2001/95] and its notification system are set out in the Annex to this Decision.’

17Part I of the annex to that implementing decision, headed ‘Guidelines for the management of [RAPEX] established under Article 12 of Directive [2001/95] and its notification system’, (‘the RAPEX Guidelines’) governs the scope and addressees of those guidelines.

18Point 2 of Part I of the RAPEX Guidelines, headed ‘Addressees of the Guidelines’, states as follows:‘The Guidelines are addressed to all Member States authorities acting on product safety and participating in the RAPEX network, including market surveillance authorities responsible for monitoring the compliance of products with safety requirements and authorities in charge of external border controls.’

19Point 4 of Part I of the RAPEX Guidelines, headed ‘Measures’, states:‘4.1. Types of measuresPreventive and restrictive measures can be taken in relation to products posing a risk either on the initiative of the economic operator who placed and/or distributed it on the market (“voluntary measures”), or as ordered by an authority of a Member State competent to monitor the compliance of products with the safety requirements (“compulsory measures”).…’

20Point 1 of Part II of the RAPEX Guidelines, headed ‘Introduction’, states:‘1.1. Objectives of RAPEX…RAPEX plays an important role in the area of product safety. It complements other actions taken both at national and at EU level to ensure a high level of product safety in the EU.RAPEX data helps to(a) prevent and restrict the supply of dangerous products;(b) monitor the effectiveness and consistency of market surveillance and enforcement activities carried out by Member State authorities;(c) identify needs and provide a basis for action at EU level; and(d) make for consistent enforcement of the EU product safety requirements and therefore contribute to the smooth functioning of the single market.…’

21Point 3 of Part II of the RAPEX Guidelines, headed ‘Notifications’, provides:‘…3.2. Content of notifications3.2.1 Scope of dataNotifications sent to the Commission through the RAPEX application include the following types of data:(a) Information enabling the notified product to be identified, i.e. product category, product name, brand, model and/or type number, barcode, batch or serial number, customs code, description of the product and its packaging accompanied by pictures showing the product, its packaging and labels. Detailed and accurate product identification is a key element for market surveillance and enforcement, as it allows national authorities to identify the notified product, to distinguish it from other products of the same or similar type or category that are available on the market and to find it on the market and take or agree on appropriate measures.…3.2.2 Completeness of dataNotifications should be as complete as possible. The elements to be contained in the notification are listed in Appendix 1 to these Guidelines and are included in the RAPEX application. All fields of the notification template should be completed with the required data. Where the required information is not available at the time a notification is submitted, this is clearly indicated and explained on the form by the notifying Member State. Once the missing information becomes available, the notifying Member State updates its notification. The updated notification is examined by the Commission before being validated and distributed through the system.RAPEX Contact Points provide all national authorities that participate in the RAPEX network with instructions on the scope of data required to complete the notification. This helps to ensure that the information provided by these authorities to the RAPEX Contact Point is correct and complete (see Part II, Chapter 5.1).Where part of the information required by these Guidelines is not yet available, Member States should nonetheless comply with the established deadlines and not delay sending a RAPEX notification on a product that poses a life-threatening risk to the health and safety of consumers or other end-users and/or where a RAPEX notification requires emergency action by Member States.…3.2.3 Updating of dataThe notifying Member State informs the Commission (as soon as possible and not later than by the deadlines specified in Appendix 4 to these Guidelines) of any developments that require changes to a notification transmitted through the RAPEX application. In particular, Member States inform the Commission of any changes (e.g. following a ruling by a court during an appeal procedure) to the status of the notified measures, to the risk assessment and to new decisions regarding confidentiality.The Commission examines the information provided by the notifying Member State and updates the information concerned in the RAPEX application and on the RAPEX website, where necessary.3.2.4 Responsibility for the information transmittedResponsibility for the information provided lies with the notifying Member State.The notifying Member State and the national authority responsible ensure that all data provided through the RAPEX application are accurate so as to avoid any confusion with similar products of the same category or type that are available on the EU market.The authority(ies) involved in the notification procedure (e.g. by performing the risk assessment of the notified product or by providing information on distribution channels) take responsibility for the information provided through the RAPEX application. The RAPEX Contact Point checks and validates all notifications received from the authorities responsible before transmitting them to the Commission (See also Part II, Chapter 5.1).Any action taken by the Commission, such as examining notifications, validating and distributing them through the RAPEX application and publishing them on the RAPEX website, does not imply any assumption of responsibility for the information transmitted, which remains with the notifying Member State.3.3. Actors and roles involved in the notification processThe parties involved in the notification process and their responsibilities therein are the following:3.3.1 Economic operatorsEconomic operators are not directly involved in the submission of notifications in the RAPEX application.However, in case of a product posing a risk, economic operators shall immediately inform the competent authorities in all Member States where the product was made available. The conditions and details for providing such information are laid down in Annex I to [Directive 2001/95].…3.3.2 Member States authoritiesMember States authorities notify the Commission through the RAPEX application about both compulsory and voluntary measures taken on their own territory against products posing a risk.…3.4. Workflow3.4.1 Creation of a notification3.4.1.1. By a national authorityAccording to the national arrangements, different national authorities involved in the RAPEX process (local/regional market surveillance authorities, external border control authorities, etc.) may be allowed to create a notification.3.4.1.2. By the CommissionIn certain cases, the Commission may create a notification as explained in point 3.3.4.3.4.2 Submission of notifications to the CommissionThe RAPEX Contact Point is responsible for the submission of all notifications for validation by the Commission. (See Part II, Chapter 5.1).3.4.3 Examination of notifications by the CommissionThe Commission checks all notifications received through the RAPEX application before transmitting them to Member States to ensure that they are correct and complete.…3.4.3.5. InvestigationWhere necessary, the Commission may carry out an investigation to assess the safety of a product. This investigation may be conducted in particular where there are serious doubts as to the risks posed by the product notified via the RAPEX application. These doubts can either arise during the examination of a notification by the Commission, or be brought to the attention of the Commission by a Member State (e.g. through a follow-up notification) or by a third party (e.g. a producer).…3.4.4 Validation and distribution of notificationsThe Commission validates and distributes through the RAPEX application, by the deadlines specified in Appendix 5 to these Guidelines, all notifications assessed as correct and complete during the examination.…3.4.5. Publication of notifications3.4.5.1. Disclosure of information as a general ruleThe public has the right to be informed about products posing a risk. To meet this obligation, the Commission publishes overviews of new notifications on the RAPEX website.For external communication reasons, the RAPEX website will in future be called “Safety Gate”.Member States equally provide the public with information in the national languages on products posing a serious risk to consumers and on measures taken to address this risk. Such information may be distributed via the internet, on paper, by electronic media, etc.The information made available to the public is a summary of a notification and includes in particular the elements which allow the identification of the product, as well as the information about the risks and measures taken to prevent or restrict those risks. The Commission and the Member States may decide to disclose other elements of the notifications to the public, only when this information, due to its nature, is not confidential (professional secrets) and does not need to be protected.…3.4.6. Follow-up to notifications…3.4.6.2. Objectives of the follow-up activitiesOn receipt of a notification, a Member State examines the information provided in the notification and takes appropriate action in order to:(a) establish whether the product was marketed on its territory;(b) assess what preventive or restrictive measures should be taken with regard to the notified product found on its market, taking into account the measures taken by the notifying Member State and any special circumstances that could justify different types of measures or no action being taken;(c) perform additional risk assessment and testing of the notified product, if necessary;(d) collect any additional information that may be relevant for other Member States (e.g. information on distribution channels of the notified product in other Member States).3.4.6.3. Follow-up techniquesTo ensure efficient and effective follow-up, best practice follow-up techniques should be employed by national authorities, including:(a) Checks on the marketNational authorities organise regular (planned and random) checks on the market in order to establish whether consumer products notified through the RAPEX application are made available to consumers. When the Member State is mentioned as a country of destination, reinforced checks on the market shall be carried out, notably by contacting the economic operator(s) indicated in the notification.(b) Cooperation with business associationsNational authorities provide, when necessary, business associations with overviews of the most recent notifications and enquire whether any of the notified products were produced or distributed by their members. National authorities provide businesses only with summaries of notifications, such as the weekly overviews published on the RAPEX website. Whole notifications should not be transmitted to third parties, as certain information (e.g. details of the risk description or information on distribution channels) is often confidential and should be protected.(c) Publication of RAPEX data via the internet or other electronic and paper mediaNational authorities regularly alert consumers and businesses about consumer products notified through the RAPEX application via their websites and/or other media, e.g. referring consumers and business to the RAPEX website. Information published in this way allows consumers to check whether they have and use products posing a risk and often provides the authority with useful feedback.…3.4.7 Withdrawal/removal of notifications3.4.7.1. Permanent withdrawal of a notification from RAPEXNotifications distributed through the RAPEX application are kept in the system for an unlimited period of time. The Commission may, however, in the situations presented in this Chapter, permanently withdraw a notification from RAPEX.3.4.7.1.1. Situations where withdrawal of a submitted or validated notification is possible(a) There is proof that one or more of the notification criteria … are not met and thus a notification is not justified. This concerns cases in particular where it is established that the original risk assessment was performed incorrectly and that the notified product does not pose a risk. It also covers situations where the notified measures were successfully challenged in court or in other proceedings and they are no longer valid.…3.4.7.1.2. Request for permanent or temporary withdrawal by Member StatesThe Commission may withdraw notifications from RAPEX only at the request of the notifying Member State, as the latter takes full responsibility for the information transmitted through the system. Other Member States, however, are encouraged to inform the Commission of any facts that may justify withdrawal.…3.4.7.2. Temporary removal of a notification from the RAPEX website3.4.7.2.1. Situations where temporary removal is possibleWhere justified, the Commission may temporarily remove a notification from the RAPEX website, especially where the notifying Member State suspects that a risk assessment submitted in a notification has been performed incorrectly and thus the notified product may not pose a risk. A notification can be temporarily removed from the RAPEX website until the risk assessment of the notified product has been clarified.3.4.7.2.2. Request for temporary removal by Member StatesThe Commission may temporary remove notifications from the RAPEX application only at the request of the notifying Member State, as the latter takes full responsibility for the information transmitted through the application. Other Member States, however, are encouraged to inform the Commission of any facts that may justify such removal.…’

Austrian law

22The Bundesgesetz, mit dem polizeiliche Bestimmungen betreffend pyrotechnische Gegenstände und Sätze sowie das Böllerschießen erlassen werden (Pyrotechnikgesetz 2010 – PyroTG 2010) (Federal Law enacting police provisions concerning pyrotechnic articles and sets of pyrotechnic articles and cannon shooting (Law on pyrotechnics 2010 – PyroTG 2010)) (BGBl. I, 131/2009) in the version in force at the material time (BGBl. I, 32/2018) (‘the PyroTG’), provides, in Paragraph 27, headed ‘Market surveillance’:(1) The competent authority shall have a market surveillance obligation with a view to ensuring that only pyrotechnic articles and sets of pyrotechnic articles that conform to the requirements of this federal law are placed on the market and made available. It shall have the power to carry out investigations and take the necessary actions on the premises of economic operators, such as, in particular, the power to enter production sites, storage areas and other commercial premises, to take samples free of change, and to consult the relevant commercial documents.…’

23Paragraph 27a of the PyroTG, headed ‘Surveillance measures’, states:(1) The surveillance measures of the competent authority under Article 27 shall be orders…3. for recall.(2) The surveillance measures referred to in points 2 and 3 under subparagraph 1 can be taken by any competent authority within whose geographical area of competence pyrotechnic articles or sets of pyrotechnic articles are placed on the market or made available that must be the subject of such a measure and shall take effect on the activity of the economic operator across the whole of the federal territory.’

24The Bundesgesetz zum Schutz vor gefährlichen Produkten (Produktsicherheitsgesetz 2004 – PSG 2004) (Federal Law on protection against dangerous products (Law on product safety 2004 – PSG 2004)) (BGBl. I, 16/2005) in the version in force at the material time (BGBl. I, 32/2018), provides, in Paragraph 10, headed ‘Authorisation to exchange data internationally’:(1) The Federal Minister for Social Security, Generations and Consumer Protection shall communicate to the authorities laid down in international treaties, within the prescribed periods, information on dangerous products and the measures referred to in Paragraphs 11, 15 and 16. This shall apply, in particular, to the notification procedures under Articles 11 and 12 of Directive [2001/95] and Articles 22 and 23 of Regulation [No 765/2008].…’

25The Allgemeines Verwaltungsverfahrensgesetz 1991 (General Law on Administrative Procedure 1991 (BGBl. 51/1991) in the version in force at the material time (BGBl. I, 58/2018) (‘the AVG’) provides, in Paragraph 8, headed ‘Interested parties, parties to the proceedings’:‘Persons who avail themselves of an activity of the authority or to whom the activity of the authority relates shall be interested parties and, in so far as they are interested by virtue of a legal entitlement or a legal interest, they shall be parties to the proceedings.’

26Paragraph 17 of the AVG, headed ‘Access to the file’ provides, in subparagraph 1:‘In the absence of administrative provisions to the contrary, the parties may have access to the file relating to their matter at the authorities’ premises and may make copies themselves of all or part of the file at those premises or may arrange for copies of all or part of the file be made at their expense. Where the administrative authority manages the file relating to the matter electronically, a party may, on request, be granted access to the file in any format that is technically possible.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

27While the LPD was conducting market surveillance under Paragraph 27(1) of the PyroTG at the premises of a distributor of pyrotechnic articles, it was found that some pyrotechnic articles stocked by that distributor were not safe for users to handle. Subsequently, the LPD issued that distributor with a decision prohibiting the sale of the relevant pyrotechnic products and ordered that they be recalled under point 3 of Paragraph 27a(1) of the PyroTG. In addition, the LPD sent the European Commission three notifications concerning those products via the national RAPEX Contact Point (‘the relevant notifications’).

28The appellant in the main proceedings, Funke, a company established in Poland, is the importer of the products that are the subject of the relevant notifications.

29In response to a request for information from Funke, the LPD made the latter aware of the steps taken against a distributor with regard to the pyrotechnic products concerned.

30By letter of 30 April 2020, Funke sent to the LPD, first, a request asking the relevant notifications to be supplemented by the addition of the lot numbers of the products at issue and, second, a request for access, under Paragraph 17 of the AVG, to the procedural documents relating to the RAPEX notification sent to the Commission and, in particular, the risk assessment in respect of those products.

31By decision of 29 June 2020, the LPD refused Funke’s request for access on the basis that it was invalid, and its request that the relevant notifications be supplemented on the basis that it was unfounded.

32The Verwaltungsgericht Wien (Administrative Court, Vienna, Austria) dismissed the action lodged by Funke against that decision. That court found that a notification to the Commission via RAPEX is to be categorised as a material act and is therefore different from an administrative act (a decision). It also found that the judicial protection required in accordance with recital 37 of Directive 2001/95 is safeguarded, in principle, by the possibility of challenging before the administrative courts the administrative acts underlying the procedure of notification via RAPEX.

33In addition, that court held, in essence, that neither Austrian law nor the RAPEX Guidelines permitted the inference that an economic operator, such as Funke, had the right to submit a request asking for a RAPEX notification to be supplemented or a request for access to documents relating to that procedure, with the result that the requests submitted by Funke to the LPD had no legal basis and were, therefore, invalid.

34The action brought by Funke against that judgment before the Verfassungsgerichtshof (Constitutional Court, Austria) was dismissed by the latter and referred to the Verwaltungsgerichtshof (Supreme Administrative Court, Austria).

35Funke subsequently brought before the referring court an appeal on a point of law against the judgment of the Verwaltungsgericht Wien (Administrative Court, Vienna). According to the referring court, for the purposes of assessing that appeal, the matter of whether the provisions of EU law confer on Funke the right to have the relevant notifications supplemented, in the absence of any provision to that effect under Austrian law, is decisive. Such a right is also contingent on Funke’s right to access the documents to which it seeks access.

36In those circumstances, the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the main proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘Are– Directive [2001/95], in particular Article 12 thereof and Annex II thereto,– Regulation [No 765/2008], in particular Articles 20 and 22 thereof, and– [Implementing Decision 2019/417], to be interpreted as meaning that(1) the right of an economic operator to supplement a RAPEX notification arises directly from those provisions?(2) the [Commission] is competent to decide on such a request ?or(3) the authority of the Member State concerned is competent to decide on such a request?(If Question 3 is answered in the affirmative)(4) the (national) judicial protection against such a decision is sufficient where it is not afforded to everyone but only to the economic operator affected by the (obligatory) measure [vis-à-vis] the (obligatory) measure taken by the authority?’

Consideration of the questions referred

Questions 1, 2 and 3

37By Questions 1, 2 and 3, the referring court asks, in essence, whether Articles 20 and 22 of Regulation No 765/2008, Article 12 of and Annex II to Directive 2001/95 and the RAPEX Guidelines (‘the RAPEX rules’) must be interpreted as giving an economic operator whose interests may be adversely affected by a notification under Article 22 of that regulation by a Member State to the Commission, such as an importer of the products that are the subject of that notification, the right to request that that notification be supplemented and, if so, whether that request falls within the competence of the Member State of that notification or that of the Commission.

38As a preliminary point, the Court notes that making pyrotechnic articles available on the market has, under Directive 2013/29, been the subject of specific harmonisation at EU level. Specifically, Article 39 of that directive lays down the procedure for dealing with pyrotechnic articles presenting a risk at national level. In addition, in accordance with Article 38(2) of that directive, Article 15(3) and Articles 16 to 29 of Regulation No 765/2008 also apply to pyrotechnic articles.

39According to Article 20 of Regulation No 765/2008, Member States are to ensure that products which present a serious risk requiring rapid intervention are recalled or withdrawn, or that their being made available on their market is prohibited. It follows from Article 21(2) of that regulation that such measures are to be subject to appeal under the law of the relevant Member State.

40Under Article 22 of Regulation No 765/2008, where a Member State takes or intends to take a measure in accordance with Article 20 of that regulation and considers that the reasons which prompted the measure or the effects of the measure go beyond its territory, it is to notify the Commission of that measure immediately via RAPEX.

41Under Article 22(4) of Regulation No 765/2008, Article 12(2) to (4) of Directive 2001/95 is to apply mutatis mutandis to notifications made to the Commission via RAPEX under Article 22 of that Regulation.

42The Court notes that, as is apparent from Article 12(3) of Directive 2001/95, the manner in which RAPEX is intended to function is set out in Annex II to that directive. In addition, under point 8 of Annex II to that directive, the Commission is to prepare and update regularly guidelines concerning the management of RAPEX by the Commission and the Member States. Those guidelines appear in the annex to Implementing Decision 2019/417.

43As is stated in Annex II to Directive 2001/95, and in particular in point 2 of that annex, RAPEX is essentially aimed at a rapid exchange of information between Member States and the Commission in the event of a serious risk.

44It is clear from recital 27 of Directive 2001/95, recital 30 of Regulation No 765/2008 and point 1.1 of Part II of the RAPEX Guidelines that RAPEX is to play an important role in the area of product safety and is to complement other actions taken both at national and at EU level to ensure a high level of product safety in the EU.

45In addition, it follows from recitals 11, 12 and 13 of Implementing Decision 2019/417 and point 1.1 of Part II of the RAPEX Guidelines that the RAPEX data are to help, first, to prevent and restrict the supply of non-food products posing a serious risk to health and safety or, where appropriate, also to other relevant public interests and, second, to make for consistent enforcement of EU product safety requirements and therefore contribute to the smooth functioning of the single market.

46Turning to notifications under Article 22 of Regulation No 765/2008, as the Advocate General stated, in essence, in point 29 of her Opinion, RAPEX functions in three stages. First, where the conditions laid down in Article 22 of Regulation No 765/2008 are satisfied and, in particular, where the competent authorities of a Member State have adopted the restrictive measures referred to in Article 20 of that regulation, those authorities notify the Commission of those measures via the national RAPEX Contact Point (the notification phase). Second, the Commission checks that notification and then transmits it to the Member States by then distributing an overview of the notification on the RAPEX website (the validation and distribution phase). Third, as soon as the Member States receive a notification via RAPEX, they examine the information provided and take appropriate measures, which they also notify to the Commission (the follow-up phase).

47It is apparent from the RAPEX rules and, in particular, from the RAPEX Guidelines, which, according to point 2 of Part I thereof, are addressed to the competent authorities of the Member States, that the notifying Member State plays a central role in the context of that procedure on both a procedural and a substantive level.

48In the first place, aside from the creation of a notification under Article 22 of Regulation No 765/2008 and the submission of that notification to the Commission (see, inter alia, points 3.3.1, 3.4.1.1 and 3.4.2 of Part II of the RAPEX Guidelines), that Member State is obliged to inform the Commission of any developments that require changes to a notification transmitted through RAPEX (point 3.2.3 of Part II of the RAPEX Guidelines). Moreover, the Commission may withdraw notifications sent to it via RAPEX only at the request of the notifying Member State (point 3.4.7.1.2 of Part II of the RAPEX Guidelines). The same applies to the temporary removal of information transmitted via the RAPEX website (point 3.4.7.2.2 of Part II of the RAPEX Guidelines).

49In the second place, when notifying the Commission via RAPEX, the notifying Member State must provide all available information including, in particular, information enabling the product that is the subject of that notification to be identified, as is apparent from Article 22(3) of Regulation No 765/2008, point 3 of Annex II to Directive 2001/95 and point 3.2.1 of Part II of the RAPEX Guidelines.

50In the third place, according to point 5.1 of Part II of the RAPEX Guidelines, each Member State is required to establish a single RAPEX Contact Point to operate RAPEX at the national level. It is apparent from points 3.2.4 and 5.1.2(e) of Part II of the RAPEX Guidelines that that national contact point is to check and validate the completeness of the information received from the competent authorities before transmission to the Commission through RAPEX.

51In the fourth place, it follows from the RAPEX rules and, in particular, from point 10 of Annex II to Directive 2001/95 and from point 3.2.4 of Part II of the RAPEX Guidelines that the responsibility for the information provided to the Commission lies with the notifying Member State. Therefore, the RAPEX Guidelines require the notifying Member State to ensure that all data provided through RAPEX are accurate so as to avoid any confusion with similar products of the same category or type that are available on the EU market (see point 3.2.4 of Part II of the RAPEX Guidelines).

52As is apparent from point 5 of Annex II to Directive 2001/95 and points 3.4.3 and 3.4.4 of Part II of the RAPEX Guidelines, the Commission, on its side, is obliged to verify, in the shortest time possible, each notification to ensure that it is correct and complete, and validates and distributes via RAPEX all notifications assessed as correct and complete. In addition, under point 3.4.5.1 of Part II of the RAPEX Guidelines, the Commission publishes overviews of new notifications on the RAPEX website.

53According to point 3.2.4 of Part II of the RAPEX Guidelines, any action taken by the Commission, such as validating and distributing notifications via RAPEX and publishing them on the RAPEX website, does not imply any assumption of responsibility by that institution for the information transmitted. As alluded to in paragraph 48 of the present judgment, it also follows from points 3.4.7.1.2 and 3.4.7.2.2 of Part II of the RAPEX Guidelines that, given that the notifying Member State takes full responsibility, the Commission can definitively or temporarily remove a notification only at the request of that Member State.

54In those circumstances, the Court notes that, as the Advocate General states, in essence, in points 39 to 42 of her Opinion, although the RAPEX rules place the burden of checking the notifications submitted by the notifying Member State so as to ensure that they are correct and complete on the Commission, that check does not replace the obligation on that Member State to ensure that a notification via RAPEX is accurate and complete.

55Consequently, it follows from a combined reading of Article 22 of Regulation No 765/2008, Annex II to Directive 2001/95 and the RAPEX Guidelines that that Member State is still responsible for the notified data for so long as the notification in respect of certain products is still in RAPEX, and that that Member State must inform the Commission of any developments requiring that notification to be modified.

56That is the context in which Questions 1, 2 and 3 from the referring court arise.

57In that regard, the Court finds that it follows explicitly from point 3.3.1 of Part II of the RAPEX Guidelines that economic operators do not participate directly in submitting notifications via RAPEX. In that regard, the Court points out that, in accordance with both Article 3(12) of Directive 2013/29 and Article 2(7) of Regulation No 765/2008, the importer of the products concerned falls within the concept of ‘economic operator’.

58Moreover, nor do the obligation on economic operators, under point 3.3.1 of Part II of the RAPEX Guidelines, to inform immediately the competent authorities of all Member States in which a product that poses a risk is made available or the possibility open to them of bringing to the attention of the Commission, as a third party, information allowing the conclusion to be reached that there are serious doubts as to the risks presented by a notified product, in accordance with point 3.4.3.5 of Part II of the RAPEX Guidelines, give them the status of being a party to the RAPEX notification procedure.

59Nevertheless, it is appropriate to take into account the fact that, as was found in paragraphs 47 and 55 of the present judgment, the RAPEX rules impose on the notifying Member State numerous obligations concerning the content of a notification made by that Member State under Article 22 of Regulation No 765/2008 via RAPEX, which include the obligation to indicate data allowing the notified product to be identified.

60According to the notification template set out in the RAPEX Guidelines, certain information concerning the product – including the type/model number, the batch number/bar code and the product and packaging description – are designated as mandatory fields, which means that in principle they must be completed (see Part III of Annex 1 to the RAPEX Guidelines).

61As follows from point 3.2.1(a) of Part II of the RAPEX Guidelines, detailed and accurate product identification is a key element for market surveillance and enforcement, as it allows national authorities to identify the notified product, to distinguish it from other products of the same or similar type or category that are available on the market and to find it on the market and take or agree on appropriate measures.

62For this purpose, as emphasised in the RAPEX Guidelines, notifications sent to the Commission via RAPEX should be as complete as possible, and all fields of the notification template should be completed with the required data. Where that data is not available on the date a notification is submitted, this should be clearly indicated and explained, and once the information becomes available, the notifying Member State must update the notification (see point 3.2.2 of Part II of the RAPEX Guidelines).

63In addition, the Court notes that, according to point 3.2.3 of Part II of the RAPEX Guidelines, the notifying Member State is obliged to inform the Commission of any developments that require changes to a notification transmitted via RAPEX.

64Consequently, as the Commission maintains, in essence, in its written observations, the RAPEX rules require the notifying Member State to ensure that data that is correct and as complete as possible is submitted, thereby enabling the products concerned to be identified through a notification via RAPEX, and, if that is not the case, to correct that data or to supplement it so that the objectives pursued, which include the effective supervision of product safety, can be met.

65With regard to pyrotechnic articles, the Court notes that a detailed and accurate description of those articles, when they are the subject of a notification to the Commission via RAPEX, is also essential so that they can be distinguished from those which comply with the requirements laid down by Directive 2013/29 and which, therefore, must be allowed to circulate freely on the internal market.

66In addition, the Court finds that a description of the pyrotechnic articles that are the object of a notification transmitted via RAPEX, the content of which is not consistent with the RAPEX rules, may disrupt or make less attractive the economic activities relating to those articles undertaken by an economic operator, such as the importer of those articles, and that is something that would, in some circumstances, go beyond what is necessary to achieve the protection of public interests referred to in Directive 2013/29, such as the protection of human health and public security and the protection and safety of consumers.

67Although transmission by the Commission to other Member States of a notification via RAPEX by a Member State under Article 22 of Regulation No 765/2008 does not directly affect the making available on the market of the products that are the subject of the notification and does not, therefore, have direct binding effects on an economic operator such as an importer of those products, since such effects result either from measures taken or envisaged by the notifying Member State in accordance with Article 20 of Regulation No 765/2008 or from preventive or restrictive measures decided upon by other Member States in response to a notification via RAPEX, the Court notes that, according to point 3.4.5.1 of Part II of the RAPEX Guidelines, an overview of each new notification is to be transmitted on the RAPEX website. That publication, aimed at the public, of key information on the products concerned, including the type/model number, the batch number/bar code and the product and packaging description, may discourage distributors from selling those products and end-consumers from buying them.

68Moreover, in accordance with point 6 of Annex II to Directive 2001/95 and point 3.4.6 of Part II of the RAPEX Guidelines, the Member States to whom notifications transmitted via RAPEX are addressed are obliged to ensure appropriate follow-up using certain techniques, such as checks on the market, cooperation with business associations and the transmission of RAPEX data to consumers and businesses. Those measures strengthen the dissuasive effects that follow from publishing overviews of new notifications on the RAPEX website.

69It follows that the economic operators who are known to carry out activities relating to the products that are the subject of a notification transmitted via RAPEX, such as the importers of those products, may be adversely affected by a notification that is incorrect or incomplete according to the RAPEX rules governing the identification of the notified products.

70However, the Court notes that the RAPEX rules that impose on the notifying Member State an obligation to ensure that a notification under Article 22 of Regulation No 765/2008 is accurate and as complete as possible, in particular as far as concerns the data required to identify the products that are the subject of that notification and, where appropriate, the obligation to correct or supplement that notification, are sufficiently clear and precise for economic operators who may be adversely affected by a notification transmitted via RAPEX that is incomplete because the products that are the subject of that notification are not properly identified, such as an importer of such products, to be entitled to require compliance with those rules.

71As follows from paragraphs 47 to 55 of the present judgment, it is for the competent authorities of the notifying Member State, which plays a central role in the RAPEX procedure and remains responsible for the data notified for so long as the notification in respect of certain products is available in RAPEX, to examine any request to that end from those economic operators.

72Having regard to the findings above, the answer to Questions 1, 2 and 3 is that the RAPEX rules must be interpreted as giving an economic operator whose interests may be adversely affected by a notification under Article 22 of Regulation No 765/2008 by a Member State to the Commission, such as an importer of the products that are the subject of that notification, the right to request that the competent authorities of the notifying Member State supplement that notification.

Question 4

73By Question 4, the referring court asks, in essence, whether the RAPEX rules, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) must be interpreted as requiring effective judicial protection to be granted in the notifying Member State to an economic operator, such as an importer of the products that are the subject of a notification under Article 22 of Regulation No 765/2008, who is not the addressee of the measure that gave rise to that notification and who takes the view that its interests may be adversely affected because that notification is incomplete.

74The Court notes at the outset that, as is apparent from the answer given to Questions 1, 2 and 3, under the RAPEX rules, economic operators, who may be adversely affected by the incomplete nature of a notification made by a Member State under Article 22 of Regulation No 765/2008 and submitted via RAPEX which results, inter alia, from the products that are the subject of that notification being insufficiently identified, such as an importer of those products, are entitled to require the competent authorities of the notifying Member State to meet the obligations incumbent on that Member State in that regard and therefore derive rights to that effect under EU law.

75According to settled case-law, the Member States are required, when they implement EU law, to ensure compliance with the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter, a provision which constitutes a reaffirmation of the principle of effective judicial protection (see, to that effect, judgment of 10 February 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Limitation period), C‑219/20, EU:C:2022:89, paragraph 42 and the case-law cited).

76As the procedure for notification via RAPEX is governed by EU law, a notification from a Member State under Article 22 of Regulation No 765/2008 constitutes such an implementation of EU law within the meaning of Article 51(1) of the Charter, meaning that Article 47 of the Charter is applicable (see, by analogy, judgment of 11 November 2021, Gavanozov II, C‑852/19, EU:C:2021:902, paragraph 29 and the case-law cited).

77It follows that economic operators, who may be adversely affected by the incomplete nature of a notification made by a Member State under Article 22 of Regulation No 765/2008 and submitted via RAPEX, which results from the products that are the subject of that notification being insufficiently identified, such as an importer of those products, must not only be able to contest such a notification before the competent national authorities of that Member State, but must also, where appropriate, to be able bring an action before the national courts with jurisdiction where they believe that the relevant rules under EU law have not been complied with.

78According to settled case-law, in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State, in accordance with the principle of procedural autonomy of the latter, to lay down the detailed procedural rules governing actions brought to safeguard rights which individuals derive from EU law (see, to that effect, judgment of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 59 and the case-law cited, and of 15 July 2021, FBF, C‑911/19, EU:C:2021:599, paragraphs 62 and 63).

79In the present case, it is apparent from the file submitted to the Court that Funke contested before the Verwaltungsgericht Wien (Administrative Court, Vienna) the LPD’s decision refusing as unfounded Funke’s request asking that the relevant notifications be supplemented and that that court refused to grant that request, in the absence of any legal basis for such a request, on the basis that it was invalid.

80In those circumstances, it is for the referring court to interpret Austrian law so that the rights referred to in paragraph 77 of the present judgment are guaranteed.

81In the light of all of the findings above, the answer to Question 4 is that the RAPEX rules, read in the light of Article 47 of the Charter, must be interpreted as meaning that an economic operator, such as an importer of products that are the subject of a notification under Article 22 of Regulation No 765/2008, who is not the addressee of the measure that gave rise to that notification and whose interests may be adversely affected because of the incomplete nature of that notification, must have a legal remedy open to it in the notifying Member State so that it can ensure that the obligations incumbent in that regard on that Member State are fulfilled.

Costs

82Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Fifth Chamber) hereby rules:

1.Articles 20 and 22 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 Regulation (EEC) No 339/93, Article 12 of and Annex II to Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety, as amended by Regulation No 765/2008, and the annex to Commission Implementing Decision (EU) 2019/417 of 8 November 2018 laying down guidelines for the management of the European Union Rapid Information System ‘RAPEX’ established under Article 12 of Directive 2001/95/EC on general product safety and its notification system,must be interpreted as giving an economic operator whose interests may be adversely affected by a notification under Article 22 of Regulation No 765/2008 by a Member State to the Commission, such as an importer of the products that are the subject of that notification, the right to request that the competent authorities of the notifying Member State supplement that notification.

2.Articles 20 and 22 of Regulation No 765/2008, Article 12 of and Annex II to Directive 2001/95, as amended by Regulation No 765/2008, and the annex to Implementing Decision 2019/417, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,must be interpreted as meaning that an economic operator, such as an importer of products that are the subject of a notification under Article 22 of Regulation No 765/2008, who is not the addressee of the measure that gave rise to that notification and whose interests may be adversely affected because of the incomplete nature of that notification, must have a legal remedy open to it in the notifying Member State so that it can ensure that the obligations incumbent in that regard on that Member State are fulfilled.