C-815/79

JUDGMENT OF 2. 12. 1980 — CASE 815/79

of implementing the directive did not conformity, measures restricting the keep within the limits of the free movement of the goods may be discretion outlined by this directive. adopted only in the context of the Indeed any overstepping of these procedure of Article 9 of the said limits might create new disparities and directive by a national administrative therefore fresh barriers to trade and authority acting on behalf of the as a result prevent the free movement Member State and empowered to of goods in a field in which the participate in that procedure. Community legislature had adopted provisions in order to ensure such freedom. 3. A judicial authority of a Member State may, on the basis of the requirements of its national law, 2. If the imported electrical material adopt a measure restricting the free bears marks denoting conformity duly movement of electrical equipment in issued by bodies notified in respect of which there is no accordance with Directive No 73/23, presumption of conformity within the there is a presumption of conformity meaning of Article 10 of Directive No which prevents the adoption of any 73/23 so long as the equipment has measure restricting the free movement not been the subject of a report within of that equipment by a judicial the meaning of Article 8 (2) of the authority of a Member State, even if directive. On the other hand, the the Member States have not all judicial authority of a Member State designated the bodies which are does not have that power in other empowered to issue such marks. circumstances in which Community Where there is such a presumption of law and procedures apply.

composed of: J. Mertens de Wilmars, President, P. Pescatore and T. Koopmans (Presidents of Chambers), Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and A. Touffait, Judges,

Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the instituted criminal proceedings against procedure and the written observations the two accused by virtue of which he submitted under Article 20 of the ordered the said articles to be seized. Protocol on the Statute of the Court of Justice of the EEC may be summarized The accused have applied to have the as follows: seizure lifted submitting, on the one hand, that the articles in question comply with the objectives regarding safety laid down by Article 2 of the above- mentioned Directive No 73/23 and, on I — Facts and procedure the other hand, that the provisions of the DPR No 547 are incompatible with those of Directive No 73/23 which was In 1979 Gaetano Cremonini and Maria also the view expressed by Mr Advocate Luisa Vrankovich imported from General J.-P. Warner in his opinion Belgium a number of smoothing irons delivered in Case 123/76 Commission of (Calor and Rowenta brands), electric the European Communities v Italian drills (Metabo brand) and lawn-mowers Republic (judgment of 14 July 1977, (Gazonette brand). Since none of those [1977] ECRatp. 1459). articles complied with the standards set by Articles 314 and 315 of the Decree The judgment delivered in that case of the President of the Republic found that Italy had failed to fulfil an (hereinafter referred to as "the DPR") obligation under the Treaty by not No 547 of 27 April 1955 (Gazzetta having taken the necessary steps to Ufficiale della Repubblica Italiana implement Directive No 73/23. In [Official Gazette of the Italian Republic] consequence of that judgment Italy No 158 of 12 July 1955, Supplement), passed Law No 791 of 18 October 1977 the Pretore [Magistrate] in Como (Gazzetta Ufficiale della Repubblica

Italiana N o 208 of 2 November 1977, sumptions of conformity raised by p. 7913) adopting measures for the Articles 5 and 6 of Directive No implementation of the directive in 73/23 which alone "could enable the question. court to defer the immediate application of the mandatory It is in this context that the Pretore in provisions of national laws"; on the Como, giving his reasons for referring other hand, Articles 7 and 8 — even the questions to the Court, has made the if given effect by the national following observations : implementing law — ought not to allow the said mandatory provisions — He considers first that Directive No to be overridden. 73/23 does not have direct effect. He states that in his opinion a directive However, the Pretore, having regard to does not have "the binding force the case-law of the Court of Justice (he inherent in a Community regulation". cites the judgment of 9 March 1978 in Case 106/77, Amministrazione delle — When he then considers the Finanze dello Stato v Simmenthai SpA provisions of the directive he thinks [1978] ECR at p. 645 and the judgment that Article 10 thereof is "restricted of 5 April 1979 in Case 148/78, Pubblico to the creation of a presumption of Ministero v Tullio Ratti [1979] ECR at conformity". That article, which has p. 1646) has stayed proceedings by an also been reproduced in Article 7 of order of 27 November 1979 and the implementing Italian law, "is so requested the Court of Justice to give a drafted that it raises doubts as to preliminary ruling on the following five whether the provisions creating questions: the presumption [of conformity] contained in it may enable the 1. Are the combined provisions of mandatory provisions of Decree No Articles 10, 7, 3 and 2 of Directive 547/55 to be overridden". N o 73/23 of 19 February 1973 (Official Journal L 77 of 26 March — That doubt is confirmed by the fact 1973) to be interpreted in such that the Italian implementing law and manner that a presumption of in particular the second part of the conformity with the provisions of the first paragraph of Article 10, "when said directive is to be regarded as a speaking of derogation from the presumption which prevents the provisions of the D P R No 547, taking of any measure restricting the expressly excludes such a derogation free movement of goods within the as regards provisions relating to EEC by any judicial authority of the construction". Member States (and of the Italian State in particular) when the imported — Those findings show the intention of electrical equipment (in the case in the Italian Republic to restrict the question: smoothing irons) bears scope of the provisions contained in marks (CEBEC and VDE marks) Directive N o 73/23. duly issued by bodies notified in accordance with the EEC directive by — Consequently, the Pretore is of the the Belgian and German Governments opinion that the court may always (cf. Documents Nos 7 and 8 check whether aricles in free circu- produced in the case) (even if not all lation in Italy are of a type which Member States have designated complies with the safety requirements bodies competent to issue the marks of national law prior to the directive, referred to in the said directive with with the exception of the pre- reference to their national law)?

2. In the event of the answer to the first initiate the procedure laid down in question being in the affirmative, is Article 9 of the said directive? the said presumption of conformity such as to prevent the national court 5. Must any prohibition on the exercise from adopting a measure restricting of the power to adopt measures the free movement of goods within restricting the free movement of the EEC which is based upon a goods on the terms and conditions mandatory provision of national mentioned in all the preceding safety regulations requiring the questions be regarded as imposed inclusion of a feature (additional insu- upon the judicial authority of the lation) differing from that with which Member State regardless of any the imported product (smoothing national provisions relating to the iron) is provided, when no national rules for the installation of the administrative body has yet adopted electrical equipment in question? restrictive measures valid for the whole of the national territory and accordingly set in motion the The order making the reference was procedure laid down in Article 9 of registered at the Court on 17 December the EEC directive?

Secretary General at the Ministry for drills and lawn-mowers), though Foreign Affairs, F. Italianer, acting as provided with other safety features Agent; on 24 March 1980 by the laid down by Community law, lacks a Government of the United Kingdom, feature (earthing) expressly required represented for this purpose by M. A. D. by a mandatory provision of national Preston, of the Treasury Solicitor's law, before a report by one of the Department, acting as Agent; on 25 special bodies referred to in Article 8 March 1980 by the Italian Government, of the directive has been requested or represented for this purpose by

JUDGMENT OF 2. 12. 1980 — CASE 815/79

II — Written observations sub- factually, as to the functional nature of mitted to the Court the imported equipment and its pursuant to Article 20 of compliance with the general safety rules the Protocol on the Statute provided for by Article 2 of the directive of the Court of Justice of in question. the EEC

(b) The law A — Observations of the accused in the criminai proceedings ( 1 ) General observations

CREMONINI AND VRANKOVICH

Directive N o the standardized legal field. 73/23 purports "to have a direct bearing on the powers of the Member States", in particular by introducing a Community procedure for ' prohibiting, on grounds In the case of Community law, on the of safety, the placing of electrical other hand, once the methods adopted equipment on the market. for the approximation of laws have resulted in uniform rules they remain available for the purpose of making any amendments or additions which may be This kind of "Europeanization" usually necessary, and the uniformity of entails a corresponding limitation of the Community law is guaranteed by the powers of the Member States in the interpretation of a single court which legislative and administrative fields as "ensures that the law is observed". It well as in the judicial field.

protection adopted within the framework outlined by the harmonizing directive" (judgment of 5 October 1977 in Case The accused in the criminal proceedings 5/77, Carlo Tedeschi v Denkavit draw from this analysis an "interpretative Commerciale Sri [1977] ECR at p. 1577). premise", reasoning that, in the context of this directive, the Member States may obstruct free movement only in exceptional circumstances and in It is immaterial that in the case of compliance with Article 9 of Directive Directive No 73/23 the review No 73/23. procedure is initiated after the Member State has prohibited the entry into circu- lation of certain equipment and that that procedure ends with mere The accused in the criminal proceedings recommendations or opinions of the go on to analyse the specific content of Commission because if the Member State Directive No 73/23 and maintain that were to fail to comply with those the latter purports to restrict the field of recommendations or opinions the application of Article 36 of the Treaty, Commission could initiate the procedure "that is to say, the field of application of prescribed by Article 169 and in this way

the procedure of Article 9 would attain expected that the directive imposes its objectives, namely: such a restriction on the powers of the court since Community case-law has shown that the mere threat of (1) to bring to the notice of the other punishment amounts to a deterrent Member States the unilateral preventing the free movement of prohibitions of certain Member goods. Such a restriction on the States; domestic criminal courts is all the more justified in the case in point as the threat of punishment may result (2) to arrange co-operation on a large in the equipment being completely scale between Member States and unavailable. the Community institutions on a question of interest to the Community; The accused in the criminal proceedings also consider that these conclusions are (3) to remove illegal prohibitions. borne out by another argument based on the Italian implementing law. Article 6 of that Law allows "evidence to the (2) Specific observations on the directive contrary" intended to rebut the in question presumption of conformity in relation to electrical equipment only where the manufacturer has declared that the The accused in the criminal proceedings equipment conforms with the standards first point out that, according to the (the case covered by Article 8 of the directive, equipment which satisfies the directive), whereas Article 7 of the provisions of Articles 5, 6 and 7 complies Italian Law, by referring to the other with the safety provisions of Article 2. presumptions of conformity, raises a Furthermore, the presumption of presumption which cannot be rebutted conformity raised by Article 10 of the by any "evidence to the contrary". directive produces the effects "which usually flow from legal presumptions", that is to say that it not only transfers Finally, the accused in the criminal the burden of proof in civil proceedings proceedings consider that their but also produces effects in the field of conclusions are also confirmed by an domestic administrative law and of argument a contrario based on the criminal law: directive. In fact if the latter had been intended to permit the criminal courts unilaterally to prohibit the placing on the — In the field of administrative law it market of electrical equipment it would prevents the administrative authority have achieved legal fragmentation from forbidding or preventing the instead of organizing an approximation placing on the market or the of laws. movement of electrical equipment which conforms with the standards, The restriction on the powers of the save in the case of the derogation criminal courts is also confirmed by provided for in Article 9. Article 9 of Directive No 73/23; that article, which provides that the placing — In the field of criminal law this "legal on the market of electrical equipment presumption not only transposes the may be prohibited unilaterally, is burden of proof but also limits the intended to refer only to national scope for punishment". It is t o be measures of a general nature, "such as

This interpretation is also confirmed by — The same reasoning applies where, in Article 9 of the Italian implementing law the case of the electrical equipment which entrusts the task of supervision to which it is thought does not comply the Ministry for Industry; power is thus with national provisions for the conferred on "an authority which is able prevention of accidents, a technical to act at centralized (and therefore report drawn up by the special body general) national level rather than on a mentioned in Article 8 of Directive limited scale (and, in the extreme case, N o 73/23 can be submitted if with reference to a given, individual item requested. of electrical equipment)". — In any event, the judicial measure must follow — and not precede — Furthermore, if the obligation to consult the administrative measure of the imposed by Article 9 of the directive competent authorities adopted during were extended to protective measures of or at the end of the procedure pre- the national courts, it would have to be scribed by Article 9 of the said accepted that the Community review directive. procedure had already been set in motion as a result of the decisions of the courts. But since this has not been the — The arguments developed above also case it must indeed be accepted in the apply where the court proposes to view of the accused that Article 9 of the base its reasons for holding that directive is not concerned with protective equipment does not comply with the measures and refers only to general national laws for the prevention of prohibitions. Consequently, the national accidents on domestic provisions court cannot forbid the placing on the relating to construction. market of equipment which complies with Community standards because such a power was not provided for in B — Observations of the Commission Directive No 73/23. In its preliminary observations the Having regard to all these observations Commission takes the view that the the accused in the criminal proceedings measure "by which the Pretura di Como propose that the questions referred to the initiated the criminal proceedings in Court be answered as follows: question is certainly inconsistent with the above-mentioned judgment of the Court in Case 123/76". Furthermore, the — In the first place, the courts of the statement of the grounds upon which the Member States (even criminal courts) order of the Pretura making the ought not to be allowed to order reference is based leads to the view that, directly that unilateral measures be as far as the trial judge is concerned, the

The Commission draws attention first of The Commission states that, since all to the fact that the provisions of the reference to all those standards is directive are described in the "Facts and optional, "corresponding standards issues" of the above-mentioned judgment cannot be mandatory and are therefore of the Court in Case 123/76, and that no more than mere presumptions". the main principle governing Directive No 73/23 is the abolition of trade Finally, the third principle governing restrictions by harmonizing and estab- Directive No 73/23 implies that every lishing the safety standards (provided for exception to the rule of free movement in Article 2) with which manufacturers introduced by a particular Member State must comply and by requiring Member shall be the subject-matter of a States to ensure that stricter safety Community procedure under the control requirements than those laid down in of the Commission. Article 2 are not imposed by electricity supply bodies for connexion to the grid, or for the supply of electricity to users of (2) The provisions of the directive which electrical equipment (Article 4 of the the national court has requested the directive). Court to interpret

The second principle is that the manu- The Commission, having pointed out facturer or importer has the right to that Articles 2 and 3 lay down "on the prove that the electrical equipment one hand, the safety objectives at a complies with the safety objectives by Community level with which it is reference : obligatory to comply when manufac-

CREMONINI AND VRANKOVICH

JUDGMENT OF 2. 12. 1980 — CASE 815/79

CREMONINI AND VRANKOVICH

measures restricting the market powers and exclusive jurisdiction to implemented by the competent ad- adopt any protective measures on the ministrative authorities as preventative Ministry for Industry, Trade and Craft measures" in accordance with the Trades. procedure laid down in Article 9 of the directive. In this connexion the Commission asks "why the Italian court does not consider The Commission concludes this section that it is bound by the specific provisions by maintaining that these four articles of Article 9 of Law No 7 9 1 " and confer on individuals absolute rights considers "that the Court should de- which domestic courts must protect. termine as a matter of urgency" the question of the powers of the administrative or judicial bodies which may have recourse to the safeguard (3) The Italian Law implementing clause, especially as according to a Directive No 73/23 complaint made in June 1978 by a Community manufacturers' association "at least 149 restrictions" have been imposed by the Italian authorities The Commission maintains that Law No (administrative and judicial) without the 791 which is designed to implement the procedure prescribed by Article 9 of the directive in Italy does not achieve directive ever being complied with. On the complete and unconditional this ground the Commission initiated a implementation of the directive. Thus the procedure under Article 169 for derogation provided for by Article 10 of infringement of that article by sending that Law is too vague because it does not on 27 July 1979 a registered letter to state that the requirements of the DPR Italy and, since it did not receive a No 547 are no more than mere complete explanation from the Italian presumptions and because it leaves Government, it delivered a reasoned Italian law virtually unchanged as opinion on the matter on 4 March 1980. compared with 1955.

objectives of the directive are complied C — Observations of the Italian Govern- with — the placing on the market of ment domestically manufactured or imported electrical equipment which fulfils the conditions prescribed by Articles 2, 3, 7, 8 and 10 of the directive. The Italian Government, after having recalled the Italian legislation applicable in this case, maintains that the Italian court is constrained to interpret the provisions of the 1977 Law implementing the directive and not the directive itself It is clear from Directive No 73/23/EEC which no longer has any binding force taken as a whole and in particular from and effectiveness as Italy has adopted the Article 7 that, without prejudice to the necessary provisions in order to comply provisions of Article 9, Member States with that directive. may not, whether directly or indirectly, impede the free movement of electrical equipment bearing marks or ac- companied by certificates of conformity Consequently it is not very consistent which have been duly established by the with the system upon which the competent bodies in the other Member relationship between the Community States within the meaning of Article 10 legal order and the national legal orders of the directive. is based for a national court to ask the Court of Justice to interpret a directive which it does not have to apply and which it may not apply since that directive has already been "incorpor- ated" into the national legal order. The national court which is called upon to apply within the context of its own powers Articles 2, 3, 7, 8 and 10 of Directive No 73/23/EEC must ensure According to the Italian Government the that those provisions are fully and court making the reference has simply directly applied and must not in the stated that "the interpretation of the particular case apply on its own initiative directive will also permit the national any contrary provision of national legislation to be correctly interpreted". legislation, even if enacted subsequently. In these circumstances that directive is only submitted to the Court of Justice as an historical antecedent and that Court is called upon not to express an "opinion" but to furnish "the material" for an exercise in interpretation which remains The derogating measures provided for by entrusted to the national court alone. Article 9 of Directive No 73/23/EEC Such an action by the Court of Justice are compatible with Community law would in the end diminish its role. only if they have been adopted by the competent national administrative body in accordance both with the procedure laid down and the mandatory formal It is true that the Court of Justice has requirements prescribed by Article 9 of held in certain cases (judgment of 20 the said directive. Once such measures May 1976 in Case 111/75 Quirino have been adopted it is for the national Mazzolai [1976] ECR 657) that it had court to ensure that they are observed in jurisdiction to interpret a directive in specific cases". implementation whereof a national law

The first two questions referred to the According to the Italian Government this Court reasoning is even more valid in these circumstances. After pointing out that Article 6 of the Italian Law — which The Italian Government is of the opinion corresponds to Article 8 of Directive N o that in order to answer these first two 73/23 — is in its view much more liberal questions Articles 5 to 7 as well as than the latter, it submits that it "stands Article 10 should first be construed. It to reason" that the restriction provided points out that Mr Advocate General for in Article 7 in fine (the requirement Warner observed in his opinion delivered of equivalent safety) "applies a fortiori in in the above-mentioned Case 123/76 the case referred to in Article 8 of the that Articles 6 and 7 of Directive No directive", since a mark of conformity no 73/23 are transitional measures in longer has to be affixed but a report anticipation of the adoption of merely has to be drawn up and that harmonized Community standards as report carries in law less weight than a provided for by Article 5 and that mark of conformity. "Probably Article 7 means that the importing Member State is to accept equipment complying with the standards For the Italian Government the problem of the manufacturing State unless the is not so much evidential as a problem of safety level afforded by these falls short the compatibility of technical standards. of what is secured by its own law". Therefore "even if Article 8 of Directive

JUDGMENT OF 2. 12. 1980 — CASE 815/79

N o 73/23 applies, the domestic technical case. The directive merely imposes upon standards of the Member States where Member States the obligation to provide the equipment is manufactured cannot information, and this obligation does not prevail over those of the importing have any effect on the judicial functions Member State which conflict with them". of the national courts, with the result that the administration complements but does not take the place of the judiciary. Lastly, the Italian Government states that no such report has been submitted in this case and that the argument relates only Consequently the Italian Government to the problem of the hypothetical suggests that the Court should rule as possibility of submitting one. follows :

2. Are the national courts bound by a — As a subsidiary matter, Articles 7, 8 kind of "administrative prerequisite"? and 10 of Directive No 73/23/EEC must be interpreted as meaning that 'marks of conformity' affixed to On the first point the Italian electrical equipment and 'reports' Government is of the opinion that, since drawn up on the basis of technical national standards have equal force inter standards in the Member State where se, there is no derogation from Italian the equipment was manufactured do standards which may be applied by the not prevent the application of the administration and the courts. Further- stricter technical standards of the more, since the implementing law has importing Member State by the removed the reference to the administrative authorities and administrative authorities contained in national courts of that State". Articles 5, 6, 7, 8 and 10 of the directive, the Italian court may apply the national rules with the exceptions constituted by the harmonized international standards. D — Observations of the Government of the United Kingdom The Italian Government submits that the second point concerns national law alone Questions 1 and 2 since Article 9 of the implementing Law states that the Minister may prohibit the The Government of the United Kingdom placing on the market of electrical submits two preliminary observations : equipment which does not comply with the safety standards whereas the directive does not confer any administrative power 1. Article 10 of the directive provides of this kind, which moreover has not that the authorities of the Member been exercised and is not at issue in this States shall accept that there is a

The United Kingdom follows up these two preliminary points with the submission that the first question may be It is only in the first case, where Article 7 recast as follows: imposes upon the importing Member State the obligation to allow free movement of electrical equipment, that the second question arises. According to "In a case in which equipment bears an the Government of the United Kingdom appropriate mark denoting conformity the second question consists of two with the safety provisions of a standard elements. The first is whether, in the case to which Article 7 applies and the of equipment which, in accordance with presumption to that effect is not Article 7, is to be regarded as complying rebutted, what is the obligation of the with the provisions of Article 2, the auth- importing State under Article 7?" orities of a Member State may take action to prohibit its marketing and free circulation without going on to apply the procedure laid down in Article 9. The According to the United Kingdom, the United Kingdom does not have a meaning of the directive is perfectly clear concluded view on this point. It on this point. For the equipment to considers that it may be argued that comply with Article 2 two conditions Article 9 is a "safeguard clause" such as must be satisfied: first, the equipment appears in many directives under Article must comply with the safety standards 100 of the Treaty. On this argument the existing in the Member State where it procedure of Article 9 must be used. On was manufactured and, secondly, the the other hand, it may be argued that equipment must ensure a safety level Article 9 is concerned with regulatory equivalent to that required by the measures relating to classes of importing Member State. It is not equipment, not with routine enforcement enough that only one of those two or the directive and any national conditions is satisfied for Article 3 — implementing measures in respect of which contains the obligation to allow individual items of equipment. On that free movement — to apply; in fact that second argument, routine enforcement article is expressly subject to the by the authorities of a Member State

The second element of the question (c) where, on the facts, Article 7 does referred by the Pretura Penale relates to impose such an obligation then, if a the general or particular nature of the Member State which imposes a prohibition on importation imposed by further prohibition on marketing an importing Member State. The United and free circulation must follow the Kingdom is of the opinion that a procedure in Article 9, it may none Member State may impose a prohibition the less impose the prohibition in not only in respect of a class of particular cases and is not obliged equipment but also in particular cases, to make a generally applicable subject to Articles 7 and 30 of the law." Treaty, because the purpose of Article 9 is to prohibit the marketing of equipment which is unsafe. Moreover it would be impossible for a Member State to impose a prohibition if, before it could do so, it Questions 3 and 4 had to make a generally applicable law. The Member State must therefore be free to take immediate emergency action, it being understood that it ought to make a generally applicable law as soon as Since these questions are principally possible. concerned with the interpretation of Article 8 of the directive, the United Kingdom submits that this article is to be "read as a whole" and that it is not correct to read Article 8 (1) as imposing Consequently the British Government an obligation upon Member States suggests that the first two questions whether or not a report is submitted referred by the Pretura Penale might be under Article 8 (2). In fact Article 2 of answered as follows: the directive is insufficiently precise for it to be possible for a Member State to determine what constitutes compliance with its provisions unless further "(a) Article 10 of Directive No guidance is given. Thus it is necessary 73/23/EEC creates only a for there to be machinery to establish rebuttable presumption that equip- what constitutes compliance with ment bearing an established mark Article 2. denoting conformity with the safety provisions of a standard in force in the Member State of manufacture does so conform; Only if the equipment does not satisfy those national legislative provisions is Article 8 (2) to be applied. Thus the (b) whether Article 7 obliges the auth- manufacturer or importer who is unable orities of a Member State to regard to have recourse to one of the standards such equipment as complying with laid down by Articles 5, 6 and 7 of the the provisions of Article 2 in directive may be prevented from relation to a particular aspect of marketing that equipment unless he

submits a report. Consequently, the provisions of the directive referred to in United Kingdom proposes that the third the first five questions has direct effect. question should be answered as follows: Before considering each provision in detail the United Kingdom's immediate reply is that in its opinion none of them "(a) If no report is submitted under does. Article 8 (2), Article 8 (1) places no obligation on the authorities of a Member State to permit the Articles 2 and 3 do not have direct effect marketing and free circulation of because the terms in which they are equipment where it does not expressed are too general. Annex I to the comply with the national law of the directive simply lists the objectives but Member State. does not prescribe the precise requirements with which equipment must comply. It expressly contemplates that (b) The authorities of a Member State further measures are required to give are not obliged to await such a effect to Article 2 (and hence to Article report before taking action." 3, which depends on Article 2), whether by the drawing-up of harmonized standards under Article 5 or the pub- lication of safety provisions under Article Having regard to this negative answer to 6 or, in default thereof, by national the third question the United Kingdom is measures to implement the directive of the opinion that the fourth question under Article 13. At the end of this does not fall to be answered. It simply passage on Articles 2 and 3 the United points out that the procedure prescribed Kingdom expresses the view that by Article 9 has no role to play when Directive N o 73/23 differs from Articles 5, 6, 7 and 8 (2) do not apply, Directives Nos 73/173 and 73/728 in because on that assumption the Member respect of which the Court decided in State which imports the equipment is the above-mentioned judgment in Ratti under no obligation to allow free that they must have direct effect. movement as Article 2 of the directive merely enjoins Member States not to permit the marketing of non-complying Article 7 does not have direct effect equipment. because it is not unconditional and leaves a measure of discretion to the Member States. Accordingly there is no Consequently the United Kingdom unqualified right to import equipment submits that the fourth question be which satisfies the provisions of Article 7. answered as follows: With regard to Article 8 the United Kingdom submits that, since Article 2 "Article 9 plays no role where Articles 5, does not have direct effect, then a 6 and 7 do not apply and no report is fortiori Article 8, which refers to it, does submitted under Article 8 (2)." not either. In addition further national measures must be introduced to give effect to Article 8. The fifth question Article 9 cannot have direct effect since it relates only to the relationship between According to the United Kingdom the Member States and between them and fifth question asks whether any of the the Commission.

With regard to Article 10 the United The first question Kingdom simply repeats that, since the presumption raised in that aniele is rebuttable, it is consequently not The Government of the Netherlands unconditional and does not therefore points out in the first place that a mark have direct effect. within the meaning of Article 10 of the directive only raises a presumption of conformity with one of the standards In conclusion, the United Kingdom's referred to in Articles 5, 6 and 7 and that suggested answer to the fifth question is only actual compliance with those that "none of the provisions of Directive standards can permit free movement and N o 73/23/EEC referred to in the first prevent any national provision restricting four questions has direct effect". the latter. Thus, if equipment complies with a standard in the country of origin as provided for in Article 7, it is also E — Observations of the Netherlands necessary to check whether that standard Government ensures a level of safety equivalent to that set by the standards of the importing

And the Netherlands Government persons, domestic animals and property repeats that by virtue of Article 3 of the must be admitted to the markets of the directive, if equipment satisfies the Member States. If such safety is ensured provisions of Articles 5, 6, 7 or 8 of that in one of the ways indicated in Articles directive, the free movement of that 5, 6, 7 and 8, the Member States may equipment can no longer be impeded by not prevent electrical equipment being a national measure and that it is placed on the market. That obligation to immaterial from what authority that allow free movement provided for in restrictive measure emanates. Article 3 of the directive may seem to be counterbalanced by the procedure provided for in Article 9 thereof.

This implies that effect". the derogation provided for in Article 9

Even if equipment does not fulfil the conditions mentioned in Articles 5, 6 or 7 it must nevertheless be allowed access to the market if it satisfies the safety According to the Netherlands Govern- requirements, in accordance with Article ment the fifth question is not clear. If the 8 (1). Article 8 (2) permits the national Pretore wishes to ascertain to what authorities, and consequently the courts, extent the various provisions of the on the basis of a finding that equipment directive have direct effect, the does not comply with a provision of Netherlands Government "considers that national law, to dispute the safety of the it has already made known its point of said equipment within the meaning of view in a general way". But assuming Article 2 of the directive. Accordingly a that the Pretore intended to ask the Member State may deny such equipment Court to what extent the national access to the home market. Nevertheless, provisions relating to the connection to the manufacturer or importer may the grid of electrical equipment also fall instruct a body notified in accordance within the provisions of Articles 2 and 3 with Article 11 of the directive to draw of the directive, it points out that the up a report within the meaning of Article installation and utilization of electrical 8 (2), the conclusions whereof must be equipment constitute the final use to accepted by the importing Member State. which the latter is put, that every barrier to that use is in fact an obstacle to trade and that the safety requirements provided for in Article 2 of the directive The fourth question also refer to the installation of electrical equipment. Furthermore, in order that the free movement ensured by Article 3 of the directive does not become in The Netherlands Government is of the practice an illusion, Article 4 of the said opinion that the free movement of directive enjoins Member States to

Ill — Oral procedure The first hypothesis cannot be upheld as such, because the harmonization which At the sitting on 25 June 1980 F. Capelli has not been entirely achieved by the and G. M. Ubertazzi appeared for the Council would be carried out by experts accused in the criminal proceedings, on the basis of the least strict legislation, A. Abate for the Commission and T h . Le which would lead to harmonization by Roy and B. Botte for the Government of elimination so that, although freedom of the French Republic. movement would certainly benefit, in the end products with questionable safety features would be put into circulation. It The accused in the criminal proceedings would therefore be desirable, in the and the Commission developed the absence of complete harmonization, to arguments which they had stated in their leave the national authorities some written observations and submitted their supervisory powers, whilst taking care comments on the arguments contained in not to allow the introduction of the observations of the other interveners concealed restrictions on trade. Article 7 submitted pursuant to Article 20 of the of the directive provides for non- Statute of the Court of Justice. The harmonized national standards to Commission applied for and obtained the continue in force, and the Community report of an expert, Dr R. Winckler, in legislature, in order to prevent arbitrary his capacity as former President of the discrimination, has established a European Electro-technical Standardiz- mandatory procedure for concerted ation Committee. action and conciliation — described in Article 9 — in which the Commission participates. This amicable procedure The French Government, which did not cannot in fact force a Member State to submit written observations, put forward withdraw its prohibitions on the placing the following arguments: on the market of any electrical equipment if it considers it to be justified Two coherent systems of interpretation in the light of the safety requirements of Directive No 73/23 are proposed: which it alone remains competent to lay either the provisions of Articles 2 and 3, down in the absence of Community which are directly applicable, are harmonization. If the Commission is of sufficiently precise for all harmonization the opinion that the conduct of a

Decision

1 By an o r d e r of 27 N o v e m b e r 1979 which was received at the C o u r t o n 17 D e c e m b e r 1979 the P r e t o r e [Magistrate], C o m o , referred to the C o u r t for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y a n u m b e r of questions as t o the interpretation of Council Directive N o 7 3 / 2 3 of 19 F e b r u a r y 1973 on the h a r m o n i z a t i o n of the laws of M e m b e r States relating to electrical e q u i p m e n t designed for use within certain voltage limits (Official J o u r n a l L 77 of 26 M a r c h 1973, p. 29) raised in the context of criminal proceedings d u r i n g which the P r e t o r e o r d e r e d the seizure of electrical e q u i p m e n t (Calor and R o w e n t a s m o o t h i n g irons, M e t a b o electric drills and G a z o n e t t e l a w n - m o w e r s ) imported into Italy from M e m b e r States of the Community.

2 This seizure — which the importers asked the P r e t o r e to lift — was effected because the e q u i p m e n t in question did n o t comply with the s t a n d a r d s laid

JUDGMENT OF 2. 12. 1980 — CASE 815/79

down by Articles 314 and 315 of the Decree of the President of the Italian Republic (DPR N o 547 of 27 April 1955 — Official Gazette of the Italian Republic N o 158 of 12 July 1955, Supplement) adopted in connexion with the prevention of industrial accidents because the first-mentioned equipment, with reference to the requirements of Article 315 thereof, lacked the additional safety insulation between the parts under tension and the outer metallic casing, and the second and third items of equipment, with reference to the requirements of Article 314, lacked a metallic casing connected to earth.

with the EEC directive by the Belgian and German Governments (cf. documents Nos 7 and 8 produced in the case) (even if not all Member States have designated bodies competent to issue the marks referred to in the said directive with reference to their national law)?

2. In the event of the answer to the first question being in the affirmative, is the said presumption of conformity such as to prevent the national court from adopting a measure restricting the free movement of goods within the EEC which is based upon a mandatory provision of national safety regulations requiring the inclusion of a feature (additional insulation) differing from that with which the imported product (smoothing iron) is provided, when no national administrative body has yet adopted restrictive measures valid for the whole of the national territory and accordingly set in motion the procedure laid down in Article 9 of the EEC directive?"

— Where harmonized standards as defined in Article 5 have not yet been drawn up and published, the published international standards issued by two international bodies, the International Commission on the Rules for the Approval of Electrical Equipment (CEE) or of the International Electro-technical Commission (IEC) (Article 6 (1) of the directive);

— Where harmonized standards as defined in Article 5 of the directive, or international standards as defined in Article 6 of the directive, are not yet in existence, the national standards in the Member States of manufacture if they ensure a safety level equivalent to that required in the importing Member State (Article 7 of the directive) ;

— In the case of equipment which does not comply with the standards referred to in Articles 5, 6 and 7 the standards corresponding to "good engineering practice" and to the requirements of Article 2 specified in Annex I to the directive (Article 8 (1) of the directive).

If the electrical equipment complies with these standards the Member States are bound to ensure its freedom of movement.

9 Under Article 10 of the directive the conformity of electrical equipment with harmonized and international and national standards, that it to say with the first three categories of standards, may be certified — inter alia — by affixing marks denoting conformity established by bodies a list of which is notified by each Member State to the other Member States and to the Commission. In that case — and without prejudice to other methods of proof left to the discretion of the Member States in order to permit the free movement of electrical equipment in respect of which there is no presumption of conformity — the Member States must take all necessary steps to ensure that their competent administrative authorities shall accept that this equipment is presumed to conform to Articles 5, 6 and 7 of the directive.

1 3 The answer to the first question of the Pretore di Como must therefore be that, if the imported electrical material bears marks denoting conformity duly issued by bodies notified in accordance with Directive N o 73/23, the presumption of conformity prevents the adoption of any measure restricting the free movement of that equipment by a judicial authority of a Member State, even if the Member States have not all designated the bodies which are empowered to issue such marks.

The answer to the second question must be that since a judicial authority is not empowered, where there is a presumption of conformity, to adopt any

JUDGMENT OF 2. 12. 1980 — CASE 815/79

measure restricting the free movement of the goods, such a step may be taken only in the context of the procedure of Article 9 of the directive by a national administrative authority acting on behalf of the Member State and empowered to participate in that procedure.

The third and fourth questions

H The Pretore di Como then refers to electrical equipment, in this case Metabo and Gazonette equipment, which does not conform either to the harmonized standards or to international standards accepted by the directive or to the standards of the State of manufacture ensuring a safety level equivalent to that required in the importing territory and which does not bear marks of conformity. In this connexion he refers to the Court the following questions :

i6 On this question the Pretore di Como is viewing the matter from the standpoint of Article 8 of the directive under which the Member States shall take all appropriate steps to ensure that their competent administrative auth- orities shall also allow the placing on the market or free movement of electrical equipment which, although not conforming with the first three categories laid down by the directive, complies with the provisions of Article 2, that is to say, has been constructed in accordance with good engineering practice in safety matters in force in the Community and does not endanger the safety of persons, domestic animals or property when properly installed and maintained and used in applications for which it was made. Article 8 (2) then provides that in the event of a challenge the manu- facturer or importer may submit a report, drawn up by a body which is notified in accordance with the procedure set out in Article 11 of the directive, on the conformity of the electrical equipment with the provisions of Article 2.

i7 In the absence of a report — drawn up by the competent body within the meaning of Articles 8 (2) and 11 of the directive — certifying the conformity of the equipment in question with the provisions of Article 2, the national authorities are entitled to ascertain whether this conformity in fact exists; in that case they must do so on the basis of the criteria laid down by Article 2 as supplemented by Annex I; if those criteria do not seem to include the principal features of the safety objectives for the electrical equipment in question, they may refer to the safety requirements of their national law, since all the resources of Community law provided for by the directive are exhausted.

2i Lastly the Pretore di Como puts the following question:

" 5 . Must any prohibition on the exercise of the power to adopt measures restricting the free movement of goods on the terms and conditions mentioned in all the preceding questions be regarded as imposed upon the judicial authority of the Member State regardless of any national provisions relating to the rules for the installation of the electrical equipment in question?"

22 In order to answer the fifth question it is enough to state that since it is permissible for a judicial authority of a Member State to adopt measures restricting the free movement of any electrical equipment only in the marginal circumstances mentioned above and subject to the conditions which have been specified in the answer to the third question, such a judicial authority does not have that power in other circumstances in which Community law and procedures apply.

CREMONINI AND VRANKOVICH

Costs

23 The costs incurred by the Netherlands, British, French and Italian Governments and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties are concerned, in the nature of a step in the proceedings before the national court, the decision as to costs is a matter for that court.

OPINION OF MR WARNER — CASE 815/79

4. Since it is permissible for a judicial authority of a Member State to adopt measures restricting the free movement of any electrical equipment only under the conditions which have been specified in the answer to the third question, such a judicial authority does not have that power in other circumstances in which Community law and procedures apply.

Mertens de Wilmars Pescatore Koopmans

Mackenzie Stuart O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 2 December 1980.

A. Van Houtte J. Mertens de Wilmars Registrar President

Conclusions 3631