C-329/95

VAG SVERIGE

OPINION OF ADVOCATE GENERAL TESAURO delivered on 20 February 1997 *

1. The questions referred to the Court of relevant to this case for a better understand­ Justice for a preliminary ruling by the Län­ ing of the meaning of the questions referred srätten (County Administrative Court), to the Court for a preliminary ruling. Stockholm, concern the interpretation of Council Directive 70/156/EEC of 6 Febru­ ary 1990 on the approximation of the laws of the Member States relating to type-approval of motor vehicles and their trailers, 1and of Articles 30 and 36 of the Treaty. Community law

The framework directive for the sector is, the sale or entry into service of new vehicles specifically, Directive 70/156/EEC, as on grounds relating to their construction and amended by Directive 92/53/EEC. 3It lays functioning if, and only if, they are accom­ down the procedure for Community type- panied by a valid certificate of conformity'. approval of motor vehicles and their trailers Article 7(3) then provides that '[I]f a Mem­ built in one or more stages, and of systems, ber State finds that vehicles, components or components and separate technical units separate technical units of a particular type intended for use on such vehicles and trailers are a serious risk to road safety although (Article 1). Applications for Community they are accompanied by a valid certificate of type-approval are to be submitted in one conformity or are properly marked, then Member State only by the manufacturer to that State may, for a maximum period of six the approval authority competent to grant months, refuse to register such vehicles or approval and must be accompanied by the may prohibit the sale or entry into service in specific information required; until the date its territory of such vehicles, components or on which approval is either issued or refused, separate technical units. It shall forthwith the information package in respect of each notify the other Member States and the separate directive is to be made available to Commission thereof, stating the reasons on the approval authority (Article 3(1)). The which its decision is based. If the Member authorities of the Member State to which the State which granted type-approval disputes application is submitted are to draw up a the risks to road safety notified to it the type-approval certificate attesting that the Member States concerned shall endeavour to vehicle type conforms to the particulars in settle the dispute. The Commission shall be the information folder and meets the techni­ kept informed and shall, where necessary, cal requirements of the relevant separate hold appropriate consultations for the pur­ 4 directives (Article 4(1)). Consequently, Com­ pose of reaching a settlement'. munity type-approval is evidence that the vehicle type concerned complies with all the technical requirements laid down by each separate directive.

4. Council Directive 70/220/EEC of 20 March 1970 on the approximation of the laws of the Member States relating to mea­ sures to be taken against air pollution by gases from positive-ignition engines of 5 motor vehicles is also relevant to this case. That 'separate' directive provides inter alia 5. According to Point 9 of the first subpara­ that 'no Member State may refuse to grant graph of Section 12 of the 'Bilregisterkun­ EEC type approval or national type approval görelsen' (Vehicle Registration Order), regis­ of a vehicle on grounds relating to air pollu­ tration is conditional upon production of a tion by gases from positive-ignition engines national certificate of conformity in addition of motor vehicles' where that vehicle satisfies to the Community certificate of conformity. certain requirements (Article 2). The same That certificate, issued by the Swedish directive, as amended by Directive importer, must attest that the engine family to which the vehicle in question belongs has 91/441/EEC, 6provides moreover that 'the obtained approval certifying that the vehicle components liable to affect tailpipe and satisfies the conditions laid down by the evaporative emissions must be so designed, Swedish rules on exhaust emissions (Bilav- constructed and assembled as to enable the gasforordningen (Vehicle Emission Ordi­ vehicle, in normal use, to comply with the nance ...), 'BAF'). When manufacturers bring requirements of this directive despite the out a new model of car they must submit an vibrations to which they may be subjected. application for a national certificate which The technical measures taken by the manu­ covers an 'engine family', that is to say a cat­ facturer must be such as to ensure that the egory of vehicles with a similar engine tailpipe and evaporative emissions are effec­ (Article 2 of the BAF). Manufacturers them­ tively limited, pursuant to this directive, selves choose the engine family in which the throughout the normal life of the vehicle and new vehicle model is to be classified. The under normal conditions of use. For tailpipe requirements laid down by the BAF are held emissions, these provisions are deemed to be to be satisfied when the engine family to which the vehicle in question belongs has been approved by an authority within the European Economic Area (Section 6(2) of 5 — OJ, English Special Edition 1970 (I), p. 171. 6 — OJ 1991 L 242, p. 1. the BAF).

7 — The certificate, which is valid for an engine family, must be applied for each year. 8 — In addition to an annual technical test, mandatory for vehicles more than three years old, vehicles may have to undergo a much more thorough test of the quality of their anti-pollution system carried out by the Swedish Environ- mental Protection Agency. The agency periodically carries out checks on a sample of vehicles from one engine family in 7. By decision of 24 May 1995 the Stock­ respect of the requirements laid down by Community law. If, as a result of the test, the vehicles involved are found to holm County Administrative Board refused be faulty, the manufacturer concerned is required to take the necessary measures in relation to all vehicles belonging to VAG Sverige AB's application for the regis­ that engine family. tration of an Audi A 4. The ground for the

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VAG SVERIGE

refusal was that, although the vehicle in of Rome, or does it constitute a "meas­ question had been issued with a valid Com­ ure having equivalent effect"? munity certificate of conformity, the national certificate provided for by Point 9 of the first subparagraph of Section 12, cited above, namely the certificate attesting that the engine family to which the vehicle in ques­ tion belonged conformed to the exhaust 3. If the answer to Question 1 is "Yes" emission requirements laid down by the and the answer to Question 2 is that the BAF, had not been produced. measure must be regarded as a "measure having equivalent effect", can the insis­ tence by Sweden that such a certificate should be produced be maintained on the basis of Article 36?'

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OPINION OF MR TESAURO — CASE C-329/95

10. I shall begin by noting that the relevant making registration subject to the satisfac­ Community legislation could not be clearer: tion of additional requirements or the pro­ duction of additional evidence. Conse­ quently, Article 7(1) must be interpreted as meaning that a vehicle accompanied by the certificate in question must be registered.

(a) the Member States are to register new vehicles or permit their sale or entry into service 'if, and only if, they are accompa­ nied by a valid certificate of conformity' (Article 7(1));

11. Let me point out that, in the case before the Court, registration was refused precisely because no national certificate was produced attesting that the vehicle concerned complied (b) Member States may refuse to register or with the requirements of a national law on may prohibit the sale or entry into ser­ exhaust emissions. We are therefore con­ vice of vehicles accompanied by a valid fronted by a requirement — what is more, certificate of conformity only 'where the systematically imposed — which does not vehicles 'are a serious risk to road safety' stem from reasons specific to road safety and and in any event for a period of no which therefore cannot in any way fall longer than six months during which, if within the scope of Article 7(3). the State which granted type-approval disputes the risk to road safety, a settle­ ment must be reached under the supervi­ sion of the Commission (Article 7(3)).

12. In reality, the national legislation in issue instead meets the need to ensure that manu­ facturers incur liability, in particular by oper­ ating a recall procedure. That need cannot, however, alter the terms of the problem, since it is beyond dispute that, save in the 13. To sum up, it does not appear to me that circumstances and within the narrow limits the need to ensure that manufacturers incur laid down in Article 7(3), Directive liability, even if it is linked — albeit indi­ 70/156/EEC does not admit the possibility rectly — to environmental concerns, can be of refusing or even delaying registration of considered in isolation in the context of a vehicles accompanied by a valid Community harmonized system such as that under con­ certificate of conformity. sideration. Moreover, I fail to see how that system could result in a denial of the liability of the manufacturer, who is most certainly identifiable from the certificate of confor­ mity and who may well incur liability — we may reasonably assume — quite apart from any undertaking to that effect.

16. In the light of the conclusion I have That declaration, far from permitting the reached with regard to the first question, national legislation under discussion to there is plainly no need to reply to the sec­ remain in force, does no more therefore than ond and third. However, it is strikingly obvi­ leave open the possibility of negotiations on ous that the requirement of a national certifi­ that point. In any event, it suffices to note cate of conformity constitutes a measure here that the Court has consistently held that having equivalent effect to a quantitative declarations recorded in minutes are of lim­ restriction, as prohibited by Article 30 of the ited value, since they cannot be used 'for the Treaty. Even the Swedish Government, purpose of interpreting a provision of sec­ which cited the judgment in Keck and Mith- 12 ondary legislation where (...) no reference is ouard during the hearing — albeit without made to the content of the declaration in the a great deal of conviction and in any event wording of the provision in question. The without good grounds — does not deny it. document therefore has no legal signifi­ Indeed, it would be hard to dispute the 1 cance'. 1 infringement of Article 30, given that the provision in question (a) requires additional documents to be produced and an official representative to be present in Sweden and (b) entails, in addition to the payment of not unsubstantial sums, a delay of about eight weeks in registration.

Conclusion

18. In the light of the foregoing considerations , I suggest that the Court should reply as follows to the questions referred by the Länsrätten i Stockholms Län :

(1) Council Directive 70 / 156 / EEC is to be construed as precluding national leg­ islation under which motor vehicles, although covered by a valid Community type-approval certificate, cannot be registered unless a national certificate is produced attesting to their conformity with national requirements concerning exhaust emissions ;

(2) In light of the answer given to the first question , there is no need to reply to the second and third questions .

13 — See, for example, Case 124/81 Commission v United King- 14 — Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph dom [1983] ECR 203, paragraph 18. 18.

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