C-123/76

In Case 123/76

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser Antonio Abate, acting as Agent, with an address for service in Luxembourg at the offices of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg,

applicant, v

ITALIAN REPUBLIC, represented by its Ambassador Adolfo Maresca, acting as Agent, assisted by Ivo Maria Braguglia, Debuty State Advocate, with an address for service in Luxembourg at the Italian Embassy,

defendant,

Application for a declaration that the Italian Republic has failed to fulfil its obligations under Article 13 of Council Directive (73/23/EEC) of 19 February 1973 on the harmonization of the laws of Member States relating to electrical equipment designed for use within certain voltage limits (OJ L 77, p. 29),

JUDGMENT

Facts and issues

The facts, the course of the procedure, requirements recognized in all Member the conclusions and the arguments of the States. Without prejudice to any other parties may be summarized as follows: form of proof, the proof of compliance with these requirements may be established by reference to harmonized I — Facts standards which incorporate these conditions (fifth recital). On 19 February 1973 the Council adopted Directive No 73/23/EEC on the As a transitional measure, the free harmonization of the laws of Member movement of electrical equipment for States relating to electrical equipment which harmonized standards do not yet designed for use within certain voltage exist may be achieved by applying the limits. In the preamble the directive safety provisions or standards already laid states, in particular, that the provisions in down by other international bodies or by force in the Member States designed to one of the bodies which establish ensure safety in the use of the electrical harmonized standards (seventh recital). equipment concerned may differ, thus impeding trade. As regards the products concerned the scope of the directive is defined in In certain Member States, in respect of Article 1: it covers 'any equipment certain electrical equipment, the safety designed for use with a voltage rating of legislation takes the form of preventive between 50 and 1 000 v for alternating and repressive measures by means of current and between 75 and 1 500 v for binding provisions, whereas in other direct current, other than the equipment Member States the safety legislation and phenomena listed in Annex II. refers to technical standards laid down by standards bodies. Within the Community Articles 2 to 4 lay down fundamental the free movement of electrical requirements. Electrical equipment may equipment should follow when this be placed on the market of a Member equipment complies with certain safety State only 'if, having been constructed

piece of electrical equipment complies inform the Commission thereof. with the requirements of Article 2, there However, in the case of Denmark, the are four possibilities: time-limit shall be extended to five 1. The first is that harmonized standards years. exist. Article 5 of the directive 2. The Member States shall communi­

provides that standards shall be cate to the Commission the text of

regarded as harmonized once they are the main provisions of national laws drawn up by common agreement which they adopt in the field covered between the bodies notified by the by this directive.' Member States, and published under national procedures. The directive was notified to the Member 2. If no harmonized standards exist, the States on 21 February 1973. equipment concerned may already have been the subject of standards Taking the view that Italy had failed to drawn up on an international basis. fulfil its obligations under Article 13 of Article 6 of the directive lays down the directive, the Commission, pursuant the procedure whereby such standards to Article 169 of the EEC Treaty, invited may be published and applied. the Italian Government, by letter of 15 3. For cases in which there is no July 1975, to submit its observations to it harmonized standard and no in­ within a period of two months from the ternational standard published in receipt of the letter. accordance with Article 6, Article 7 provides that the Member States must On 30 April 1976 the Italian Govern­ allow the placing on the market of ment communicated to the Commission 'electrical equipment manufactured in a draft law 'applying the directive of the accordance with the safety provisions Council of the European Communities of the standards in force in the (73/23/EEC) concerning the security Member State of manufacture if it standards with which electrical

The Government of the Italian Republic III — Conclusions of the parties explains that the draft law for the implementing of the directive in The Commission claims that the Court question was adopted by the Senate of should: the Republic at its sitting on 26 February — Declare that the Italian Republic, in 1976 and sent to the Chamber of not having brought into force, within Deputies on 10 March 1976. The fact the precribed period, the provisions that the Vlth legislature was prematurely necessary in order to comply with dissolved meant that the draft law was Council Directive No 73/23/EEC lost. of 19 February 1973 on the harmonization of the laws of Member When the draft law was reintroduced States relating to electrical equipment during the present legislature the designed for use within certain observations of the Commission were voltage limits, has failed to fulfil an taken into account. The new text of the obligation under the Treaty; draft law was approved by the Council of — (Order the Italian Republic to bear Ministers at its meeting on 21 January the costs. 1977.

COMMISSION v ITALY

applied. The standards of the Italian established in such a way as to ensure Electrotechnical Committee are identical that the safety objectives shall be in substance to the standards set by the respected. corresponding committees in the other Member States in that they are all In summarizing the position the derived — for the most part — from Commission points out the following security provisions adopted by the points from Community rules: International Eletrotechnical Commis­ 1. Prohibition on the marketing or sion. Since the Italian standards conform electrical equipment which does not in substance with those in force in the comply with the safety objectives, other Member States, the provision in both at national level and at Article 7 of the directive is at present Community level; observed in the Italian legal system, and 2. introduction, at Community level, of it continues to apply in the absence of the concept of 'good engineering any harmonized standards and of any practice' in connexion with the safety international provisions referred to by of persons, domestic animals and Article 6. property; 3. Definition of the concept of good Thus the obligation laid down by Article engineering practice' by the laying 2 of the directive is in practice applied in down of safety objectives; the Italian legal system. 4. Provisions for the drawing up of (b) As regards Article 3 of the directive technical measures, that is to say, measures of a kind such as to ensure Since it is established that the that the safety objectives shall be requirements as to conformity are in observed and put into practice.

The Commission points out that the The Commission produces — as an Italian law to which the defendant refers annex to its reply — the letter from the does not contain any definition of good Italian Permanent Representation of 30 engineering practice. Under that law, April 1976 and the list of harmonized good engineering practice can at the standards forwarded by the Represen most be ascertained case by case from tation on the same date. The Italian the standards set by the Italian Republic's alleged failure is all the more Electrotechnical Committee. serious in that the Italian legislation at present in force is such that traders can It follows that the Italian law is more judge whether electrical equipment is of restrictive than the directive inasmuch as the correct standard only by reference to it only accepts a presumption as to the standards set by the Italian compliance in respect of products Electrotechnical Committee.

Those arguments are based on an unconfirmed supposition, namely the absence of EEC harmonized (b) As regards Article 3 of the directive standards, and they pre-suppose — but do not demonstrate — that the standards This article establishes a complete system of the various national committees are of technical standards which confer on substantially identical. electrical equipment a presumption as to compliance with the safety objectives. Referring to the data furnished by the The (EEC) harmonized standards men Italian authorities, the Commission tioned in Article 5 are of prime enumerates products for which standards

Thus the defendant cannot Article 189 of the EEC Treaty the argue that the harmonized standards 'do Member States are not required to not yet exist'. They do not exist in Italy introduce into their legal system inasmuch as the failure to apply the standards the content of which is directive prevents those standards from identical to those set out in the directive. becoming part of the Italian legal system. From the purely formal point of view,

therefore, the Italian Government cannot Commission ought to have produced be criticized on the ground that there them or to have referred to the does not at present exist in the national provisions in which they are to be found. legal system any position identical to Similarly it ought to have produced the Article 2 of Directive No 73/23/EEC. As minutes of the deliberations regarding regards the results, it is necessary to harmonization. It would not appear that repeat that the first paragraph of Article any such deliberations have resulted in 1 of Law No 186/68 satisfies the any progress in the Community context fundamental requirements set out in or that the Italian Electrotechnical Article 2 of the directive. Committee (a body designated under Article 11 of the directive) has ever taken Any definition of good engineering part in Community preparations for practice (whether it be at Community harmonization for the purposes of Article level or national level) is necessarily 5 of the directive. general and all-embracing. Its meaning cannot be rendered specific otherwise The documents produced by the than by means of individual technical Commission do not justify an assertion rules relating to each piece of electrical to the contrary because: apparatus in particular. Good engineering (a) The letter from the Permanent practice as required by the national law Representation of Italy dated 30 April presupposes and necessarily includes the 1976 does not give a list of whole of the Community objectives and harmonized standards referred to in requirements, mentioned by the Article 5 of the directive, but refers to Commission, of good engineering the 'list of harmonized standards practice. worked out by the European standards bodies', namely as regards The defendant denies the Commission's the present case the European assertion that the Italian law is more Committee for Electrotechnical restrictive than the directive. In fact Standardization (hereinafter referred Article 2 of Law No 186/68 establishes to as 'the European Committee'). a presumption that the equipment (b) The European Committee is a private complies with good engineering practice, body in which the electrotechnical but does not in any way exclude the committees of 15 European states possibility that compliance may be participate — in a private capacity — established by other means. It often (at least as regards Italy). Decisions happens that electrical equipment in are adopted by a majority of the shown before the courts by means of an committees composing it. expert technical examination to comply (c) As regards the list produced by with good engineering practice and with the Commission, the European the safety objectives and this also applies Committee did no more than

complies with the provisions of Article 2 is to be found (except for the provision The same considerations may apply to in Article 8) only in Article 7 of the said the 'divergences' mentioned by the directive has still to be confirmed. Commission, which have been alleged but not proved. As regards Article 8 the failure to comply is purely formal. In practice, however, in the event of a challenge it is possible Summarizing its submissions, the Italian Government states that in substance for the manufacturer or trader to demonstrate that the equipment Directive No 73/23/EEC is in practice complies with good engineering practice applied in Italy and that the failure by means of the report mentioned in complained of can only concern a Article 8 (2), since conformity with good marginal and formal aspect (relating to engineering practice, for the purposes of Article 8 (2) [sic] of the directive). It Law No 186/68, may be demonstrated by hopes that the reason for the dispute in this case will cease to exist, since the any means. draft law for the application of the Finally, as to the lack of and divergences directive in its entirety (including from the standards indicated by the matters of form) was submitted for Commission, the defendant makes the approval to the Senate of the Republic following observations: although national on 15 February 1977. rules are lacking they are lacking with reference to the harmonization of standards achieved within the European V — Oral procedure Committee and not to the harmonized standards mentioned in Article 5 of the The parties submitted their oral argu­ directive, which do not yet exist. ments at the hearing on 7 June 1977.

4 However, although the adoption of a new law was necessary in order to ensure the implementation of the directive in its entirety, in the submission of the Italian Government the essential provisions thereof were already applicable in the Italian legal system by virtue of existing legislation and rules.

5 For, the defendant claims, in the absence of harmonized standards, such as those mentioned in Article 5, and of safety measures laid down at international level, such as are mentioned in Article 6 of the directive, the only article which can be applied is Article 7, which provides that in their absence 'the Member States shall take all appropriate measures to ensure that, for the purpose of placing on the market or free movement as referred to in Articles 2 and 3 respectively, their competent administrative authorities shall also regard as complying with the provisions of Article 2 electrical equipment manufactured in accordance with the safety provisions of the standards in force in the Member State of manufacture, if it ensures a safety level equivalent to that required in their own territory'.

6 Thus, since the standards applied by virtue of Italian legislation are, it is claimed, substantially the same as those in force in the other Member States, the principal objectives of the directive are, for the time being, substantially satisfied and therefore the Commission's application should be rejected.

JUDGMENT OF 14. 7. 1977 — CASE 123/76

7 That defence gave rise to an argument between the parties in particular on the questions whether harmonized standards within the meaning of Article 5 of the directive had already reached an advanced stage of elaboration and under what procedure those standards must be adopted.

COMMISSION v ITALY

that stricter safety requirements than those laid down in Article 2 are not imposed by electricity supply bodies for connexion to the grid, or for the supply of electricity to users of electrical equipment.

13 The purpose of those provisions is to ensure a positive effect, namely that any equipment complying with the requirements of Article 2 may be freely placed on the market, whilst ensuring, negatively, that only equipment complying with those requirements may be marketed.

14 It is in any event essential for the Italian legislation to be supplemented in order to ensure that those objectives shall be clearly and unmistakably achieved.

15 Accordingly the application is well founded and it must be declared that the Italian Republic, in not having brought into force, within the prescribed period, the provisions necessary in order to comply with Council Directive No 73/23/EEC of 19 February 1973, has failed to fulfil an obligation under the Treaty.

Costs

electrical equipment designed for use within certain voltage limits, has failed to fulfil an obligation under the Treaty;

2. Orders the defendant to pay the costs.

Kutscher Donner Pescatore Mertens de Wilmars Sørensen

Mackenzie Stuart O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 14 July 1977.

A. Van Houtte H. Kutscher

Accordingly, on 13 February 1973, the In 1975 the Commission came to the Council adopted, under Article 100 of conclusion that two Member States,