C-406/85

7. Mr Gilliard therefore contacted the 3. On 5 March 1984, one of the accused, company Lada (France), which informed Alfred Gilliard, a French national residing him in a letter dated 27 March 1984 that in France, purchased a second-hand Lada it was unable to issue a certificate of * Translated from the Portuguese.

OPINION OF MR DA CRUZ VILAÇA—CASE 406/85

conformity in respect of a vehicle which had for registering an imported vehicle in not been imported by it, and of which it France, and also to consider the applicable therefore had no knowledge whatsoever. In Community legislation now in force. order to 'be of assistance' it nevertheless agreed to inspect the vehicle in order to check all the points subject to type-approval or otherwise governed by French regu­ 12. (b) The applicable French rules in force lations. However, since the inspection at the material time were contained in involved more than 10 hours work, the total Decree No 54-724 of 10 July 1954, which amount charged would be FF 1 874.58, was subsequently incorporated in the Code excluding the cost of any components de la route, and in the Order of 19 July required. 1954 concerning the type-approval of auto­ motive vehicles, which was adopted pursuant to the said decree and has been amended on a number of occasions. 8. In those circumstances, Mr Gilliard decided to put the vehicle on the road in France with a false registration plate and without the required permits or documents, 13. Subsequently those rules were amended in particular the 'carte grise' (registration by an Order of 5 November 1984 certificate). concerning vehicle registration.

10. The accused did not dispute the facts but Alfred Gilliard claimed in his defence that the requirements imposed upon him 16. There is 'type-approval' which applies were incompatible with Community law, in to new production vehicles. The manu­ particular Article 30 of the Treaty. The facturer or his authorized representative in French court therefore submitted a question France submits an application in respect of a to the Court of Justice for a preliminary type of vehicle which is to be mass- ruling, and the Commission and the French produced. The Service des mines issues an Government have submitted written obser­ 'approval certificate' after checking that the vations with respect to it. vehicle conforms with the French regu­ lations. Thereafter, it is the manufacturer or his authorized representative in France who furnishes purchasers of vehicles of the II— 11. (a) For a full understanding of the model in question with the approval problems raised in the question submitted it certificate and a 'certificate of conformity' is appropriate to summarize the national indicating that it conforms to the approved rules and practice regarding the conditions type.

PROCUREUR DE LA RÉPUBLIQUE v GOFETTE AND GILLIARD

24. (c) As regards the Community rides in 20. That circular provides that 'although force, they are concerned with the removal the conformity of these vehicles cannot be of obstacles to the free movement of goods certified, technical tests will not be carried and are contained in directives intended to out as a matter of course apart from those harmonize national law. concerned with the general state and proper functioning of the parts affecting safety; however, the noise and pollution tests may be required and further evidence may be 25. The relevant framework directive is called for if there is any doubt as to the Council Directive 70/156/EEC of 6 conformity of the vehicle with the prototype February 1970 ' which enables a manu­ in any particular respect'. facturer or his representative to obtain in a Member State for new vehicles of a specific type an 'EEC type-approval' which will be valid throughout the Community. 21. Neither the French regulations nor the last-mentioned administrative provisions provide for the submission of a declaration 26. That will only be the case, however, of the kind which was required by the when all the particulars and the charac- Service des mines from the defendant in the main proceedings, Alfred Gilliard. 1 — Official Journal, English Special Edition 1970 (I) p. 96.

OPINION OF MR DA CRUZ VILAÇA — CASE 406/85

teristics listed in the 'EEC type-approval attempt to clarify the problem with a view certificate' annexed to the directive have to providing the national court with an been harmonized by special directives, and appropriate answer to the question that has not yet happened. submitted for a preliminary ruling.

30. With respect to second-hand vehicles, 35. (b) It is not in fact appropriate here to the Commission considers that it is rule as to whether the national provisions in necessary to draw a distinction between the question are in conformity with Community technical specifications of imported vehicles law. at the time of their manufacture and the physical condition of the vehicle when regis­ tration is applied for, in order to determine 36. In proceedings for a preliminary ruling the extent to which the requirements of the under Article 177 of the Treaty, the Court's Member State of importation are compatible role is to furnish the national court with all with the provisions of Articles 30 and 36 of the interpretative criteria required to enable the EEC Treaty and the directives already it to apply the Community rules correctly in adopted in that field. order to decide the action brought before it, determining for itself whether or not the

III— 31. In view of the foregoing 2 — See for example judgments of 24 January 1978 in Case 82/77 Openbaar Ministerie of the Netherlands v Van Tiggele considerations, and having regard to the [1978] ECR 25; of 12 October 1978 in Case 13/78 Eggers v Freie Hansestadt Bremen [1978] ECR 1935; and of 13 observations submitted by the French March 1979 in Case 119/78 Peureux v Services fiscaux de la Government and the Commission, I shall Haute-Saône et du Territoire de Belfort [1979] ECR 975.

PROCUREUR DE LA RÉPUBLIQUE v GOFETTE AND GILLIARD

national rules are compatible with the substantially whether the cars are new or Community rules relied upon. 3 used.

40. As far as the technical specifications are concerned, the problem does not differ 46. One of them is indeed production of a declaration of conformity issued by the 3 — See for example judgments of 26 January 1977 in Case administrative authorities in the State of 49/76 Gesellschaft fir Überseehandel v Handelskammer Hamburg [1977] ECR 41 ; of 23 November 1977 in Case importation or by the manufacturer or his 38/77 Enka v Inspecteur der Invoerrechten en Accijnzen representative in that country, for which [1977] ECR 2203; of 29 June 1978 in Case 154/77 Procureur du Roi v Dec/mann [1978] ECR 1573; and of 17 purpose the vehicle in question is described December 1981 in Case 272/80 Frans-Nedertandie Maat- schappij voor Biologische Producten [1981] ECR 3277, at in terms of the technical rules with which it p. 3290, paragraph 9. 4 — Judgment in Case 272/80, supra, pp. 3291-3293. 5 — Judgment in Case 272/80, supra, at paragraph 13.

OPINION OF MR DA CRUZ VILAÇA —CASE 406/85

54. Hence, on the one hand, any refusal by 49. That delegation of authority does not such representatives to issue a 'certificate' or however relieve them of their responsibility a 'declaration' of conformity and, on the to ensure that the conditions governing the other, the imposition of conditions as to issue of the certificate or declaration are in cost or time-limits for the issue of such conformity with Community law. documents which are unjustifiable, may constitute conduct liable to be penalized at national or Community level as an abuse of 50. In particular, it would be contrary to a dominant position. the principle of the free movement of goods if the fulfilment of that formality were subject to conditions as to cost, time-limits 55. In any event, as far as Article 30 is or other matters which made importation concerned, it follows from the previous impossible, exceedingly difficult or very decisions of the Court that Member States burdensome. That view has already been may be held to have infringed the Treaty taken by the Court, for example in the where they permit or facilitate the improper Frans-Nederlandse Maatschappij voor Bio- exploitation of a dominant position by logische Producten judgment mentioned manufacturers or importers whose acts or earlier, in which it ruled that checks should omissions have a restrictive effect on not exceed what is necessary to achieve the imports. 7 intended purpose or subject the importer to excessive obligations or unnecessary expenses. 56. It is not in dispute, as was emphasized by the French Government and the 51. The practice of delegating authority for Commission itself at the hearing, that in the checks to the manufacturer or his auth­ orized representative is not entirely 6 — See Commission Regulation No 123/85 of 12 December 1984, Official Journal 1985, L 15, p. 16. untainted by doubts in the light of the 7 — See judgment of 16 November 1977 in Case 13/77 INNO competition rules contained in the Treaty. v ATAB [1977] ECR 2115 at pp. 2143-2146.

great majority of cases most French traders system of partial type-approval certificates is called upon to act as representatives comply not only inadequate — since not all the with the requirements concerning free directives for the implementation of movement of goods when they issue Directive 70/156 have been published certificates or declarations of conformity. yet — and excessively burdensome — since it involves undue bureaucracy and a considerable delay — but is also inapplicable 57. However, it is a fact that the importer to imports of second-hand vehicles which of the vehicle in question here was required are subject to the 'individual approval' (in terms, moreover, which were procedure. ambiguous) by a standard letter from the French administration, without being given any apparent alternative, to produce a 63. It is apparent from the directive and document to be issued by the manufacturer from the explanations given at the hearing or the representative thereof and that the that it is impossible for an individual latter imposed disproportionate require­ importer to obtain partial type-approval ments for the issue of that document. certificates with a view to securing regis­ tration of a vehicle which was previously approved and registered in another Member 58. And it is to a situation of this kind — or State. the mere possibility thereof — that the question submitted by the national court relates. 64. Such certificates may be used only in cases where a manufacturer, having obtained approval of a new model of vehicle 59. In those circumstances, if the State of in a particular Member State, applies for importation does not have effective means approval of it in another Member State. of ensuring that the manufacturer or his representative complies scrupulously with the conditions of Community law, that State 65. In such cases, in order to obtain type- is under an obligation to accept alternative approval of the parts of the vehicle arrangements for making certain that conforming with the requirements of the vehicles conform with their technical specifi­ harmonizing directives, it is sufficient for cations. the manufacturer to present the partial type- approval certificates relating to those components, and type-approval in the 60. The French Government refers to the second Member State cannot be withheld. 'partial type-approval certificates' provided for in Directive 70/156/EEC of 6 February 1970 as a possible alternative of that kind. 66. What therefore remains to be done, to ensure the correct application of the Community rules, is to provide, as an 61. That suggestion prompts me to consider essential alternative, for the possibility of to what extent the partial harmonization applying directly for type-approval and already achieved in that area affects cases of registration to the administrative authorities importation of second-hand vehicles already in the Member State of importation on the registered in another Member State. basis of production of the documents issued by the Member State of exportation. Basically, those documents are the 62. At the hearing the Commission repre­ certificate of registration and the certificate sentatives drew attention to the fact that the proving conformity with an approved type

(i) The cost of and the period required for the issue of that declaration are reasonable;

(ii) The importer is expressly granted the alternative possibility of producing the documents issued in the Member State of exportation, in so far as they contain the information required for the fresh type approval;

(iii) No workshop tests or similar checks are required, subject to the condition that they have already been carried out in the Member State of exportation and the results thereof are readily available or may be readily obtained by the authorities in the Member State of importation'.

8 — See judgment of 20 May 1976 in Case 104/75 De Peijper [1976] ECR 613, at p. 637.