C-112/97

COMMISSION v ITALY

OPINION OF ADVOCATE GENERAL ALBER delivered on 9 July 1998 *

A — Introduction the Directive, which reads as follows: 'Mem- ber States may not prohibit, restrict or impede the placing on the market and the putting into service of appliances which satisfy the essential requirements of this Directive'. Those requirements arc 'essential requirements regarding safety, health and energy conserva- 1. In this action the Commission seeks a tion in relation to gas appliances', 2 and they declaration that, by establishing and main- arc listed in Annex 1 of the Directive. taining a system which is incompatible with Council Directive 90/396/EEC of 29 June 1990 on the approximation of the laws of the Member States relating to appliances burning gaseous fuels,' ('the Directive') the Italian Republic has failed to fulfil its obligations under Community law.

Dismiss all counterclaims, objections and sub- missions to the contrary and

6. Consequently in October 1994 the Com- mission initiated a procedure under Article 169 of the EC Treaty. In the pre-litigation procedure, Italy contended that open-type — declare that, by establishing and main- heaters installed in living rooms and spaces taining a system which requires the instal- could under certain circumstances constitute lation in living rooms and spaces only of a danger because they could lead to a harmful leakproof heaters, thus impliedly prohib- accumulation of combustion products and to iting the installation of heaters of any a reduction in the oxygen of the ambient air. other type which comply with Directive 90/396/EEC, 4 the Italian Republic has failed to fulfil its obligations under Com- munity law;

7. The Italian Republic was late in replying — order the Italian Republic to pay the to the Commission's reasoned opinion of costs. November 1995 and finally submitted a proposal for amending the provision in ques- tion. 4 — See footnote 1.

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9. The Italian Republic claims that the Court preamble to the Directive, which states that should: 'these requirements must replace the national provisions in this matter because they are essential requirements'. The Commission adds that it also follows from the underlying logic of Articles 3 5 and 4 of the Directive that national safety requirements arc incompatible — dismiss the Commission's application and with Community law.

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OPINION OF ADVOCATE GENERAL ALBER — CASE C-112/97

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COMMISSION v ITALY

17. In order to conclude that Article 4 of the a wind speed of more than 0.5 m/s in the flue Directive is contravened, it must be appli­ and 88% occlusion in the heat-exchanger. cable. This may be questionable if, as the Italian Governments maintains, an open-type appliance installed in a living room cannot meet the essential requirements of the Direc­ tive.

20. In contrast, leakproof appliances were found to be completely safe in such situations and fulfilled the requirements of the Direc­ tive because of the physical separation between the combustion chamber and the room. 18. In this connection Italy refers to point 3.4.3 of Annex I of the Directive, which states that 'appliances connected to a flue for the dispersal of combustion products must be so constructed that in abnormal draught condi­ tions there is no release of combustion prod­ ucts in a dangerous quantity into the room concerned'. As the Directive does not explain 21. Furthermore, open-type appliances could the phrase 'in abnormal draught conditions', not meet the requirements of points 3.1.9 and this must be construed as meaning that under 3.2.1 of Annex I of the Directive. According no circumstances may combustion products to point 3.1.9, the appliance must be so be released in dangerous quantities into the designed and constructed that the failure of a room where the appliance is used. However, safety, controlling or regulating device may this risk is said to arise with all open-type not lead to an unsafe situation. Point 3.2.1 appliances, even if they have a safety device requires appliances to be so constructed that and there is adequate ventilation. the gas leakage rate is not dangerous. The Italian Government considers that the same considerations apply to these points as to point 3.4.3, that is to say, here again, on the basis of the abovementioned tests, it cannot be presumed that open-type appliances fulfil these requirements of the Directive.

25. The Italian Government questions whether that is so. It considers that it is 23. However, the breach of Article 4 alleged impossible to construct open-type heaters in by the Commission can exist only if that pro- such a way that they fulfil the requirements vision is relevant at all here. O n this point it of the Directive. The Commission replies is necessary to ascertain the purpose of the that, if that were the case, the Directive would Directive. According to the title, it serves to have taken it into account. It adds that this is harmonise the laws of the Member States clear from the sixth recital of the Directive, relating to gas appliances. According to the which states that the maintenance or improve- fifth recital of the preamble, such harmonisa- ment of the level of safety attained in Member tion is to be limited to provisions necessary States constitutes one of the essential aims of to satisfy both the mandatory and essential the Directive. In so far as the Directive does requirements regarding safety, health and not prohibit the installation of open appli- energy conservation. This means that the ances in living rooms and spaces and makes safety requirements for all appliances within no distinction between open-type appliances the scope of the Directive are set out in the and leakproof appliances, the Commission Annex to the Directive. In the present case concludes that it is impossible to accept the the Italian Government does not deny that Italian Government's argument that open open-type, i. e. non-leakproof, appliances are, appliances can under no circumstances meet according to Article 1, covered by the Direc- the requirements of the Directive. tive. Therefore the safety requirements in the Annex are the only ones which apply to appliances of that kind. If they meet those requirements, Article 4 then prevents the Member States from prohibiting, restricting or impeding the marketing and use of such appliances.

29. Furthermore, the Commission claims that, during the prc-litigation procedure, the Italian Republic never formally relied on Article 7 of 27. Article 7 sets out the procedure to be fol­ the Directive, but merely reserved the right to lowed where a Member State finds that nor­ use this procedure at a later date. Italy has mally used appliances bearing the E C mark not expressly denied this, but it would not be might compromise the safety of persons, sufficient for a Member State merely to rely domestic animals or property. In that situa­ on Article 7 without adhering to the proce­ tion, the Member State must take all appro­ dure for which it provides. The Commission priate measures to withdraw those appliances observes correctly that, under Article 7, it is from the market and prohibit or restrict their not possible to refrain from informing the being placed on the market. It must immedi­ Commission so as to enable it to take the ately inform the Commission of any such necessary steps to enter into consultation with measures, indicating the reasons for its deci­ the parties concerned. sion. At a later stage in the procedure, the Commission enters into consultation with the parties concerned and under certain circum­ stances, if shortcomings in the standards are alleged, it will bring the matter before the standing committee. In that case, the Com­ mission initiates the procedures referred to in Article 6, which provides for the situation where a Member State or the Commission 30. In this connection reference should be considers that the standards do not entirely made to the judgment in the Tedeschi case, 8 meet the essential requirements of the Direc­ where the directive in question 9 contained a tive. provision similar to the abovementioned Article 7. Article 5 of Directive 74/63/EEC provided that where a Member State consid­ ered that a maximum content fixed in the Annex to the directive, or that a substance not listed therein as undesirable presented a danger to animal or human health, the Member 28. Article 7 also requires the Commission to State could provisionally reduce such content, inform the other Member States of the progress fix a maximum content, or forbid the 7 and outcome of the procedures. However, it does not appear from the file that the

33. Finally, the Italian Republic's arguments are also challenged by the Commission in the technical respect. According to the Commis- sion, the Directive contains adequate provi- sions in relation to all the risks and dangers 31. The Commission also points out that to which Italy refers. Article 7 permits the Member States only exceptionally to take their own measures. Normally the Community provisions should replace national provisions in the context of the Directive. n In such a case, the Member State concerned could rely on a rule such as that in Article 7 only if the Member State ful- fils all the conditions for using the procedure laid down therein. Accordingly the Court has held, in the context of Article 100a(4) of the Treaty, that that procedure also can be used 34. With regard to the Italian Government's only if all the conditions attaching to it are objections that the release of combustion fulfilled. 12 The Commission considers that products into a room constitutes a risk in the that judgment may be applied to the present case of open-type appliances, the Commis- case and therefore the Italian Republic can be sion refers to points 1.2.1, 1.2.3 and 3.4.1 to required to fulfil all the conditions of the 3.4.2 of Annex I to the Directive. Point 1.2.1 procedure laid down in Article 7. As already requires the instructions for the installer to mentioned, Italy has not done so. specify the conditions for the dispersal of combustion products. Point 1.2.3 relates to warning notices on the appliance and the 10 — See the Tedeschi judgment, cited in footnote 8, paragraphs packaging and states that they must draw 37 to 40. attention to the fact that the appliance must 11 — See the fifth recitai of the preamble to the Directive. be installed only in areas where there is suf- 12 — See the judgment in Case C-41/93 France v Commission [1994] ECR 1-1829. ficient ventilation.

36. However, in examining the Commission's arguments, it must again be borne in mind that it presumes that open appliances can be so constructed that they fulfil the require- ments of the Directive and, on that presump- tion, may also be regarded as safe, which Italy denies in principle. Therefore, in accordance with the requirements mentioned by the Com- mission, the dispersal of combustion prod- ucts must be ensured in some way. Likewise it is necessary to ensure that the premises where the appliance is installed are adequately ventilated. According to the Italian Govern- 38. With regard to the release of combustion ment, however, in certain situations where products under abnormal draught conditions, open appliances are used, even where pre- the Commission refers to the harmonised mises are adequately ventilated, that is not standard E N 297, which relates mainly to sufficient to prevent poisoning if, in those open-type heating boilers. This is said to pro- particular cases, combustion products pen- vide that boilers must be fitted with a safety etrate the room in spite of the safety device. device which stops the appliance operating if the release of combustion products is abnormal for a specified period. Consequently the Com- mission considers that, subject to proof of the contrary, Member States must presume that open appliances fitted with a safety device conforming to standard E N 297 fulfil the essential requirements of point 3.4.3 of Annex 37. On the other hand, the requirements of I of the Directive. This is said to follow from the Directive ensure that, where appliances Article 5 of the Directive.

If, therefore, as in the present case, such a standard exists, it must be presumed that an appliance, even of the open type, fitted with the safety device referred to in the standard meets the safety requirements of the Direc- tive with regard to the risks associated with 42. With regard to the failure of a safety an abnormal draught. In other words, it must device, i. e. point 3.1.9, the Italian Govern- be presumed that open heaters also in prin- ment gives no details to show why open ciple meet or may meet the requirements of appliances cannot meet this requirement. The the Directive in this respect. Government refers vaguely to the safety device which is intended to prevent the release of combustion products. However, as I have said, it must be presumed that such a device is capable of preventing the release of com- bustion products by both leakproof appli- ances and open appliances, and consequently there is no difference between the two in this respect. Likewise there is no difference with regard to point 3.1.9, as it must be presumed that with both types combustion products 40. If a Member State considers that the stan- may be released in the event of abnormal dards referred to in Article 5(1) do not entirely operation without a safety device. fulfil the essential requirements, it must once again rely on the procedure laid down by Article 6 of the Directive, which requires it to bring the matter before the standing com- 13 — Point 3.1.9 of Annex I to the Directive. mittee, giving its reasons for doing so. 14 — Point 3.2.1 of Annex I of the Directive.

45. Should the Court find that the Directive has been contravened, the Italian Government contends that the provisions of the Decree are justified by Article 7 of the Directive itself. As I have said, this provides that a Member State may take all appropriate measures to withdraw from the market and prohibit or restrict the marketing of appliances bearing the EC mark which, in its opinion, might compromise the safety of persons, domestic animals or property. These measures can be 44. Finally, the Commission points out that envisaged only in the context of the entire the Italian provisions require open-type procedure laid down by Article 7, which Italy boilers to be fitted with a safety device : 5 and did not initiate. Moreover, the Commission that legally no other technical arrangement would first have to find that the measures exists. Moreover, the Decree in question is were justified. said to cite another standard 16 which lays down the installation conditions for open gas appliances. According to the Commission, this provides that open appliances must not be installed in bedrooms or, under certain conditions, in bathrooms and shower rooms. The Commission correctly concludes that the standard in question permits the installation of open appliances in other rooms and, in certain cases, in bathrooms and shower rooms. However, this only serves to indicate that the Italian Government's doubts when standard 46. The Commission goes on to observe, quite U N I - C I G 7129 was adopted did not exist to rightly, that Italy cannot rely on Article 7 the extent which is now claimed. The same now, in the action before the Court. It ought applies to the fact that in exceptional to have availed itself of Article 7 in the pre- litigation procedure or in the course of cor- respondence with the Commission. Above all, the procedure laid down in Article 7 cannot 15 — InaccordanccwithstandardUNI-CIG727I/FA.2,approvcd and published by Ministerial Decree of 21 April 1993. be initiated in the framework of the proceed- 16 — UNI-CIG 7129. ings before the Court.

50. I agree with the Commission that the 48. O n this point the Commission refers cor- Directive in the present case makes provision rectly to the settled case-law of the Court, for full harmonisation with regard to the particularly the judgments in the Tedeschi and mandatory and essential requirements Motte cases. 1 7 In the former the Court regarding safety, health and energy conserva- observed that 'Article 36 is not designed to tion in relation to gas appliances and also lays reserve certain matters to the exclusive juris- down the procedures necessary for moni- diction of Member States but permits national toring compliance therewith. O n this point laws to derogate from the principle of the reference should be made to the fifth recital free movement of goods to the extent to of the preamble to the Directive, which states which such derogation is and continues to be that the harmonisation of legislation in the justified for the attainment of the objectives present case must be limited to the manda- referred to in that Article. Where, in applica- tory and essential requirements mentioned tion of Article 100 of the Treaty, Community above. The fifth recital adds that these require- directives provide for the harmonisation of ments must replace the national provisions in the measures necessary to ensure the protec- this matter. In addition, Chapter II of the tion of animal and human health and estab- Directive regulates the means of certification lish Community procedures to check that of conformity and Chapter III provides for they are observed, recourse to Article 36 is the introduction of an EC mark of confor- no longer justified and the appropriate checks mity. Therefore it is clear that the Directive in must be carried out and the measures of pro- the present case makes provision for full har- tection adopted within the framework out- monisation and the Member States can no lined by the harmonising directive.' l s longer have recourse to Article 36.

and, on the other, Article 7 of the Directive Article 36 even if they restrict the free move­ authorises the Member States to take all appro­ ment of goods. priate measures to withdraw from the market and to prohibit or restrict the marketing of such appliances if they are found to compro­ mise the safety of persons or property. O n this point I cannot agree with the Italian Government. In the Tedeschi case the direc­ tive in question contained similar provisions to Article 7, but nevertheless the Court found that recourse could not be had to Article 36. The Court merely observed that within the context of the article of the directive in ques­ tion, 'subject to the material and procedural 53. In the judgment cited above, the Court requirements laid down therein', the Member held that, even where there exist Community States had the power to take certain provi­ rules on the matter, the possibility for a sional measures. 2 1 However, the Commission Member State to rely on Article 36 to justify was not informed of the measures proposed appropriate complementary measures at by Italy and therefore it was unable to deter­ national level cannot be excluded if the mine whether they were justified for the pur­ Member State concerned docs not have an pose of Article 7. unconditional assurance, on the basis of the Community rules, that essential supplies of petroleum products will in any event be main­ tained at least at a level sufficient to meet its minimum needs. 2 3

57. The Italian Government finally refers to Article 100a(4) of the Treaty to justify the application of Article 36.

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59. It should be mentioned that the Directive must be found that the Italian Republic has does not prevent the Italian Republic from failed to fulfil its obligations. taking any steps whatever. If it considers that a standard or an appliance does not fulfil the safety requirements of the Directive, it may Costs take appropriate measures under Articles 6 and 7 of the Directive provided, however, that it adheres to the procedure laid down in those 60. Under Article 69(2) of the Rules articles. As I have said, the Italian Republic of Procedure, the unsuccessful party is to be did not initiate such procedure. Therefore the ordered to pay the costs if they have rules laid down by it in lieu of that procedure been applied for in the successful party's contravene Artide 4 of the Directive and it pleadings.

C — Conclusion

61. I p r o p o s e that the C o u r t

(1) declare that, b y requiring, in Article 5(10) of D e c r e e 412 of 26 A u g u s t 1993 of the President of the Republic, heaters only of the leakproof t y p e t o be installed in living r o o m s and spaces, and thus b y implicitly p r o h i b i t i n g the installation of heaters of a n y o t h e r t y p e fulfilling the r e q u i r e m e n t s of C o u n c i l Directive 9 0 / 3 9 6 / E E C of 29 J u n e 1990 o n t h e a p p r o x i m a t i o n of the laws of the M e m b e r States relating t o appliances b u r n i n g gaseous fuels, the Italian Republic has failed t o fulfil its obligations u n d e r C o m m u n i t y law;