C-211/81

JUDGMENT OF 15. 12. 1982 — CASE 211/81

similar and sufficiently specific terms "optional harmonization" which the infringement alleged and the exempts Member Sutes not in reasons for which it considers that the possession of the necessary control Member State has failed to fulfil the equipment from having themselves to obligations imposed on it by the issue, in pursuance of Articles 2 (2) Treaty. and 8 (2) of Directive 71/316, the EEC type-approval signs and the EEC 3. It is dear from the scheme of initial verification marks in respect of framework Directive 71/316 on the the instruments presented. It is for approximation of the laws of the each Member Sute which finds itself Member Sutes relating to common in that situation to assess, having provisions for both measuring instru- regard in particular- to the interests of ments and methods of metrologica! traders esublished within its territory, control and of the implementing whether it ought to provide itself with Directive 76/891 relating to electrical the necessary equipment and thus energy meters that those directives become subject to the obligations laid were intended, as a first step, to go down by Articles 2 and 8 of Directive no further than a programme of 71/316.

In Case 211/81

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser Rolf "Wägenbaur, assisted by Hans Peter Hartvig, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Oreste Montako, Jean Monnet Building, Kirchberg, applicant, v

KINGDOM OF DENMARK, represented by Laurids Mikaelsen, Legal Adviser at the Ministry of Foreign Affairs, with an address for service in Luxembourg at the office of the Charge d'Affaires ad interim, Ib Bodenhagen, Ministerial Adviser, Embassy of Denmark, 1 lb Boulevard Joseph-II, defendant,

JUDGMENT

Facts and Issues

The facts of the case, the course of the Article 4 of Council Directive 76/891 procedure, the conclusions, submissions provides that "Member States shall put and arguments of the parties may be into force the laws, regulations and summarized as follows: administrative provisions needed in order to comply with this directive within 18 months of its notification and shall forthwith inform the Commission I — Facts and procedure thereof."

the EEC initial verification mark". Thus corroborated by the joint sutement of the Danish authorities took the view that the Council and the Commission Directive 76/891 required no specific included in the minutes of the Council implementing measures in Denmark. meeting at which the directive was adopted. According to the terms of the sutement "the Council and the Com mission note that the second paragraph By a letter dated 7 June 1978 the of Article 2 refers only to the electrical Commission informed the Danish energy meters mentioned in the first Government that the obligations imposed paragraph of the same article, and that on the Member Sutes by Directive the directive therefore does not oblige 76/891 were not confined to those laid Member Sutes to obuin EEC pattern- down in Article 3 thereof but also approval for electrical energy meters or concerned the admission into Denmark to submit them for EEC initial verif of the electrical energy meters referred ication where no equivalent national to in the directive. Furthermore, controls are prescribed". Directive 76/891 required the Member Sutes to introduce provisions to the

had implemented the measures needed to comply with the directive, it invited the Danish Government, by a letter dated 23 On 2 February 1981, in reply to the May 1979, in pursuance of the first Commission's reasoned opinion the paragraph of Article 169 of the Treaty, Danish Government stated that it main to submit its observations within a period tained its view that the obligations of two months. imposed on Member Sutes by Directive 76/891 were confined to those conuined

The Danish Government finally EEC type-approval and to carry out the emphasized that the joint sutement of EEC initial verification and furthermore the Commission and the Council, the directive in no way required the pre mentioned above, had been adopted scribed controls necessarily to be carried because Denmark had clearly sužed at out on the territory of the Member Sute the time of the negotiations that iž w « in which the electrical energy meters unable to accept a directive requiring it were manufactured. In the opinion of the to insul control equipment on its Danish authorities that point of view is territory.

The Commission brought these and, on the other hand, formulated the proceedings by application registered at application in terms different from those the Court Registry on 13 July 1981. contained in the reasoned opinion. Upon hearing the report of the Judge- Rapporteur and the views of the In the Danish Government's view the Advocate General, the Court decided to Commission has failed in its duty of open the oral procedure without any diligence which is necessarily involved in preparatory inquiry. action taken in implementation of Article 169. The objective of the Article 169 procedure is not to bring as many actions as possible but to attempt to settle them II — Conclusions of the parties amicably by means of a fruitful dialogue opened by the Commission with the The Commission claims that the Court Member Sute in question. In the present should: case, the course of the pre-contentious phase of the procedure leads to the (1) Declare that, by not implementing conclusion that the Commission formed within the prescribed period the a clear idea of the obligations which the laws, regulations and administrative combined provisions of the framework provisions needed to comply with Directive 71/316 and of the specific Council Directive 76/891 on the Directive 76/891 impose on Member approximation of the laws of the Sutes only at the time when it was Member States relating to electrical formulating its application. energy meters, the Kingdom of Denmark has failed to fulfil the The Danish Government considers that, obligations imposed on it by the in so far as there was a difference of EEC Treaty; opinion as to the interpreution of the (2) Order the Kingdom of Denmark to provisions and the definition of the pay the costs. default the Commission ought to have described and given a reasoned expla- The Kingdom of Denmark contends that nation of the nature of the infringement the Court should: alleged in the letter of 23 May 1979 giving formal notice in order that a (1) Declare the application inadmissible; useful dialogue with the Danish auth- (2) In the alternative, declare the orities might take place. Formulated as a application to be unfounded; simple letter of reminder of the alleged infringement, without taking account of (3) In any event order the Commission the sute of the discussions between the to pay the costs. Danish authorities and the Commission's officers, the letter giving formal notice was not in conformity with its purpose Ill — Submissions and argu- and with the objective assigned to the ments of the parties different suges of the pre-contentious phase of the procedure provided for by A — Admissibility Article 169. In the Danish Government's view, it was not open to the The Danish Government claims that the Commission, in those circumsunces, to Commission's application is inadmissible issue a reasoned opinion, a step which on the ground that, on the one hand, the presupposes that the Member Sute in Commission issued a reasoned opinion question has had the opportunity of without first enabling the Danish submitting its observations on the basis Government to submit its observations, of clear information.

According to the Danish Government, infringement of the Treaty and the the reasoned opinion and the application reasons which in law miliute in favour are formulated in different terms both of the position it has adopted, that is not from the point of view of the content of the case at the suge of the application. If the infringement alleged and the grounds the Commission feels the need to amend on which the allegation is based. the application in any decisive respect it should serve an amended reasoned opinion on the Member Sute concerned. Only at the suge of the application did According to the Danish Government an the Commission base its interpretation action for failure to fulfil an obligation on the combined provisions of the under the Treaty constitutes such a framework Directive 71/316 and of serious step on the part of the specific Directive 76/891. The Com- Commission that a prior and exhaustive mission ought to have taken care to do investigation is necessary.

It July 1981 the Commission presented considers however that the legal dispute matters differently by stating in arising as a result of the alleged default particular that the Danish authorities must not be restricted in the course it were not "obliged themselves to install takes so that the Commission and the control equipment in the form of lab- Member Sute concerned may develop oratories or technical equipment" and their legal arguments and elaborate their that it was sufficient "to approve the points of view, particularly by adducing tests carried out in certain laboratories new interpreutive factors. either in Denmark or in other Member Sutes or to require the person making The Commission sutes that whilst the the request to make available the means letter of 23 May 1979 giving formal in material and personnel necessary for notice was formulated in brief terms that the tests, for example at the place of was because the Danish Government, as manufacture." a result of the exchange of correspondence which preceded that formal notice, was aware of the subject- The Danish Government considers that matter of the infringement alleged although the observations of the Member against it and the grounds on which the Sute may lead the Commission in its allegation was based. In a letter dated 7 reasoned opinion to alter its point of June 1978 the Commission claimed that view both as regards the scope of the the directive in question required

Denmark to establish machinery which preamble to Directive 76/891 and the would enable the Danish authorities to first and second recitals in the preamble issue the EEC type-approval and to carry to the framework Directive 71/316 the out the EEC initial verification. In the matter involved is one of harmonizing Commission's view it was not necessary laws with a view to eliminating to supply supplementary details relating impediments to intra-Community trade to the form and methods of in the products in question.

prescribed in Annexes I and II to reducers and dealers in the Sute which Directive 71/316 of the Council, as amended by the Act of Accession of E as not provided for that possibility would be obliged, if they wished to 1972, Annex I para. X. 12, to which the Commission refers in its application. market electrical energy meters mentioned by the directive in other Member Sutes, to call upon the auth- The Commission stresses that the orities of one of the other Member considerations on the subject of the Sutes to enable the EEC type-approval framework directive which are set out in and EEC initial verification to be carried the application were merely intended to out.

After recalling that according to a consistent line of decisions of the Court The second paragraph of Article 2 of the mandatory nature of the directive Directive 76/891 provides in general requires the Member Sutes concerned to terms that the electrical energy meters comply with its provisions within the mentioned by the directive are to be the prescribed period, the Commission sutes subject of EEC type-approval and are to that the combined provisions of Directive be submitted for an EEC initial veri- 76/891 and of framework Directive fication. Annexes I and II to the 71/316 go further than the Danish auth- framework Directive 71/316, as orities think. amended by the Act of Accession of

JUDGMENT OF 15. 12. 1982 — CASE 211/81

that provision that the Danish Govern- Danish authorities may approve the tests ment is obliged to adopt measures carried out either in Denmark or in enabling the Danish authorities to issue other Member States or require that the the signs and marks referred to. person making the request should himself make available, for example at the place of manufacture, the means in The Commission takes the view that the material and personnel needed for the joint statement of the Council and the tesu. Commission inserted in the minutes of the Council meeting to which the Danish Government has referred was concerned The Commission adds that the only with the question whether the effect Community provisions in question relate of the directive was that all electrical to dealers wishing to expon to other energy meters mentioned in the proposal Member Sutes electrical energy meters must have obtained EEC type-approval which have either been manufactured in and have passed the EEC initial veri- Denmark or have been imported into fication as a pre-condition of their being Denmark from other countries, including placed on the market. non-member countries. The directives in question therefore concern both existing

pattern-approval . . ." and ". . . shall carry out EEC initial verification . . .". According to the Danish Government it is clear from Articles 2 (2) and 8 (2) of the The words "their" which the framework Directive 71/316 that Commission says should be read in Member Sutes are required to grant conjunction with the provisions of EEC type-approval and EEC initial veri- Annexes I and II to the framework ficauon only in so far as they themselves directive has a very wide meaning and have the necessary control equipment for covers not only the possibility of having that purpose.

The Commission is seeking io evade the porated in the framework directive in precise meaning of those provisions by case Denmark should decide to maintaining in its application that, in introduce an EEC type-approval and an order to satisfy the obligations resulting EEC initial verification for the products from the directive, it is sufficient for the in question. Member States to make it possible for their national authorities to avail themselves of the control equipment of In the Danish Government's view there private laboratories which may be is nothing to support the Commission's situated in other Member Sutes. In the argument to the effect that the obligation Danish Government's view, if that to create the means for individuals to interpretation were correa, the existence benefit from the EEC type-approval and of a single centre adequate for the EEC initial verification is inherent in the purpose would be sufficient to enable the purpose of the directive. two directives in question to be implemented in all the Member States. The aim of the directive is to eliminate technical barriers to the marketing in the In the Danish Government's view there Community of electrical energy meters mentioned by the directive. However, is no doubt that the aforementioned the Commission found that such barriers provisions must be understood in their never existed in Denmark. In the Danish natural meaning, namely that it is the Government's view the duty to authorities themselves which must in fact contribute actively to the promotion of possess the equipment necessary for the exports of Danish energy meters to other technical controls. A contrario, that Member Sutes cannot be regarded as means that those Member Sutes without inherent in the purpose of the directive. such an infrastructure are not required to issue the EEC type-approval and carry out EEC initial verification. According to the Danish Government it should be observed that, irrespective of the legal value of the joint sutement of According to the Danish Government the Commission and the Council the interpreution of the provisions annexed to.the minutes of the Council advocated by the Commission rests on meeting at which Directive 76/891 was shaky foundations. adopted, the Commission, during the course of these proceedings, has That is particularly so in the case of the departed from a conception of the law second paragraph of Article 2 of which it had expressed and which it Directive 76/891 which, in the Danish knew was of decisive importance to the Government's view, simply means that to Danish Government. That can only have be able to bear the EEC signs and marks a negative effect on future harmon- electrical energy meters must undergo ization work within the Council. the controls prescribed by the directive. The fact that the symbol' applicable to Denmark was laid down in Annex I, para. X. 12, of the ACT of Accession of IV — Oral procedure 1972, has no effect on the content of the obligations imposed on the Member Sutes which is clearly defined in Articles 2 (2) and 8 (2) of the framework The Commission of the European Directive 71/316. That symbol is incor- Communities, represented by H. P.

2 Directive 76/891 is one of the directives implementing Directive 71/316 of the Council of 26 July 1971 on the approximation of the laws of the Member States relating to common provisions for both measuring instruments and methods of metrologicai control (Official Journal, English Special Edition 1971 (II), p. 707). Adopted for the purpose of eliminating the technical barriers to intra-Communiry trade in measuring instruments and the risks of unequal conditions of competition, Directive 71/316, which is in the nature of a framework directive, provides that, in respect of each category of measuring instruments, a separate directive will establish the measurement characteristics of the technical requirements for design and functioning.

COMMISSION v DENMARK

3 By virtue of Article 4 of Directive 76/891 relating to electrical energy meters, Member Sutes had to put into force the measures needed in order to comply with the directives within 18 months of its notification which in the present case expired on 9 May 1978.

« The Danish Government's primary submission is that the Commission's application is inadmissible. In the alternative it requests that the application be declared unfounded.

Admissibility

s The Danish Government claims the application is inadmissible on the grounds that, in breach of Article 169 of the Treaty, the Commission on the one hand issued a reasoned opinion without first having enabled the Danish Government to submit observations in regard to a clearly defined obligation and, on the other hand, formulated the application in terms different from those of the reasoned opinion.

10 It appears from the documents before the Court that by a letter dated 23 May 1979 giving formal notice the Commission merely asserted that in its view the Danish Government had not put into force the measures necessary to transpose Directive 76/891 into national law but refrained from specifying the obligations which, in its view, were imposed on that State by virtue of the directive and which had been disregarded.

n In the present case, however, that fact did not have the effect of depriving the Danish Government of the opportunity of submitting its observations to good effect. On 7 June 1978 the Commission had addressed to the Danish Government a letter setting out the precise reasons which led it to conclude that the Kingdom of Denmark had failed to fulfil one of the obligations imposed on it by Directive 76/891. It was by reference to the position adopted by the Commission in that letter of 7 June 1978 that the Danish Government submitted its observations on 22 August 1979.

u That submission must therefore be rejected.

o Secondly the Danish Government claims that the reasoned opinion and the application are not identical.

M It should be remembered that the subject-matter of an application brought under Article 169 is determined by the Commission's reasoned opinion and that therefore the two documents must be founded on the same grounds and submissions.

is It is clear from the documents before the Court that that obligation has been fulfilled. The terms of the application correspond to those of the reasoned opinion issued on 6 October 1980. In both documents the Commission, having re-stated the point of view of the Danish authorities, defines in

1» In the Commission's view it follows from those provisions that the Member States, without being obliged to install control equipment, are nevertheless required to make it possible for EEC signs and marks to be issued at the request of manufacturers or importers. That obligation corresponds to the objective of the directives which were adopted for the purpose of eliminating technical barriers to trade and are intended to enable electrical energy meters bearing EEC signs and marks to be freely placed on the market and put into service in the whole of the Community.

JO The Commission emphasizes that in fulfilling its obligation Denmark may, in accordance with Annexes I and II to the framework directive either approve the tests carried out on its territory or in other Member States or require applicants to make available to it the means in material and personnel necessary for the tests. The existence of that obligation imposed on Denmark is confirmed by paragraph X, point 12, of Annex I to the Act of Accession of 1972 which assigns to Denmark the seal DK as the distinctive symbol to be

JUDGMENT OF 15. 12. 1912 — CASE 211/81

added to the EEC approved signs and the EEC initial verification marks granted by that State.

2i In the Danish Government's view it is clear from the combined provisions of framework Directive 71/316 and of Directive 76/891 that those directives require no specific implementing measure in Denmark since that country does not have at its disposal any equipment enabling it to carry out type- approval controls and initial verifications. According to the Danish Government it cannot be accepted that inherent in the purpose of a directive which seeks to eliminate technical barriers to trade in electrical energy meters there is an obligation to establish administrative machinery enabling EEC signs and marks to be issued on request and to ensure the functioning of a system of mutual recognition of control operations, where there is no equivalent control at national level.

26 It must therefore be recognized that the framework Directive 71/316 by itself only imposes on the Member States an obligation to issue EEC marks and signs which is conditional on and subject to the availability to each State of control equipment enabling those marks and signs to be issued.

27 It is true, however, that Article 1 (4) of the framework Directive 71/316 provides that separate directives may specify that the categories of instru- ments with which they are concerned "must undergo both EEC pattern approval and EEC initial verification or just one of these" in all Member States. That provision therefore leaves open the possibility that a specific directive concerning a category of instruments may, in respect of that category, transform the conditional obligation to issue EEC marks and signs into an unconditional obligation imposed on each Member State without distinction. The specific Directive 76/891 relating to electrical energy meters must therefore be examined to see whether it intended to alter in that way the scope of the obligations imposed on Member States by the framework directive in respect of that category of instruments.

30 First, Article 3 of Directive 76/891 requires all the Member States without exception n o t to "prevent, prohibit or restrict the placing o n the market or entry into service of electrical energy meters if such meters bear the E E C type-approval sign and the EEC initial verification mark". Any national legislation or rules contrary to those requirements must be adapted as necessary. As to the establishment of a system of national authorities empowered t o issue E E C marks and signs, it is clear from the scheme of the directives in question that they were intended, as a first step, to g o n o further than a programme of mere "optional harmonization" which exempts M e m b e r S u t e s n o t in possession of the necessary control equipment from having themselves t o issue EEC marks and signs. It is for each Member S u t e which finds itself in that situation t o assess, having regard in particular t o the interests of traders esublished within its territory, whether it ought to provide itself with the necessary equipment· and thus become subject t o the obligations laid d o w n by Articles 2 and 8 of Directive 7 1 / 3 1 6 .

On those grounds,

THE COURT

hereby:

1. Dismisses the application;

2. Orders the applicant to pay the costs.

Mertens de Wilmars Pescatore Everling