C-112/97

JUDGMENT OF 25. 3. 1999 — CASE C-112/97

J U D G M E N T O F T H E C O U R T (Sixth Chamber) 25 March 1999 "''

In Case C-112/97,

Commission of the European Communities, represented by Paolo Stancanelli and Hans Støvlbaek, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of the same service, Wagner Centre, Kirchberg,

applicant,

v

T H E C O U R T (Sixth Chamber),

composed of: G. Hirsch (President of the Second Chamber), acting as President of the Sixth Chamber, G. F. Mancini, H . Ragnemalm, R. Schintgen and K. M. Ioannou (Rapporteur), Judges,

Advocate General: S. Alber, Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 9 July 1998,

gives the following

3 In that regard, the first recital in the preamble to the Directive states that 'Member States are responsible for ensuring the health and safety on their territory of their people and, -where appropriate, of domestic animals and goods in relation to the hazards arising out of the use of appliances burning gaseous fuels'. It is also stated in the fifth recital in the preamble that, in accordance with the new approach to the approximation of laws, 'the harmonisation of legislation in the present case must be limited to the provisions necessary to satisfy both the mandatory and essential requirements regarding safety, health and energy conservation in relation to gas appliances; [and] ... these requirements must replace the national provisions in this matter because they are essential requirements'.

4 Under Article 1(1), first indent, the Directive is to apply to 'appliances burning gaseous fuels used for cooking, heating, hot water production, refrigeration, lighting or washing and having, where applicable, a normal water temperature not exceeding 105°C, hereinafter referred to as "appliances". Forced draught burners and heating bodies to be equipped with such burners will also be considered as appliances'.

s According to Article 2(1) of the Directive, 'Member States shall take all necessary steps to ensure that the appliances referred to in Article 1 may be placed on the market and put into service only if, when normally used, they do not compromise the safety of persons, domestic animals and property'.

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6 Article 3 provides:

s

9 Under Article 6(1),

'[wjhere a Member State or the Commission considers that the standards referred to in Article 5(1) do not entirely meet the essential requirements referred to in Article 3, the Commission or the Member State concerned shall bring the matter before the standing committee set up under Directive 83/189/EEC, hereinafter referred to as "the committee", giving the reasons therefor. The committee shall deliver an opinion without delay.

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In the light of the committee's opinion, the Commission shall inform the Member States whether or not it is necessary to withdraw those standards from the publica- tions referred to in Article 5(1).'

2. The Commission shall enter into consultation with the parties concerned as soon as possible. Where, after such consultation, the Commission finds that any measure as referred to in paragraph 1 is justified, it shall immediately so inform the Member State that took the measure and the other Member States.

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Where the decision referred to in paragraph 1 is attributed to shortcomings in the standards, the Commission, after consulting the parties concerned, shall bring the matter before the committee within two months if the Member State which has taken the measures intends to maintain them, and shall initiate the procedures referred to in Article 6.

>

n Finally, Articles 8 to 11 of the Directive and Annexes II and III thereto indicate the circumstances in which appliances satisfying the essential requirements referred to therein are to bear the EC mark of conformity. Those provisions establish the verification and surveillance procedures necessaiy for that purpose.

The national legislation concerned

13 In Italy, Article 5(10) of Decree of the President of the Republic N o 412 of 26 August 1993, a regulation on the standards relating to the design, installation, use and servicing of heating in buildings in order to limit energy consumption, in accor- dance with Article 4(4) of Law N o 10 of 9 January 1991 (ordinary supplement of' G U R I N o 242 of 14 October 1993, 'Decree N o 412/93'), requires, in cases of new installation or conversion of heating appliances entailing the installation of indi- vidual heaters, excluding cases of mere replacement, the use of heaters which are insulated from the living areas, or of appliances of any other type if they are installed externally or in technically appropriate rooms.

The pre-litigation procedure

w Since the Commission took the view that that provision was incompatible with Article 4 of the Directive, it called on the Italian Government, by formal letter of 3 October 1994, to submit observations to it in that regard, in accordance with Article 169 of the Treaty.

is The Italian Government replied by letter of 5 December 1994. That letter contained observations on the actual scope of the provision challenged, its substantive rea- soning and its compatibility with Community legislation.

16 Since it considered that that reply was not satisfactory, the Commission sent a rea- soned opinion to the Italian Government, by letter of 28 November 1995, requesting it to comply with the opinion within two months of its receipt.

20 That specific prohibition, even if it is neither a prohibition on the marketing of 'open' heaters nor a generalised prohibition on installing them, is, according to the Commission, contrary to Article 4 of the Directive, in so far as it constitutes an obstacle to the putting into service of appliances to which that directive applies and which satisfy the essential requirements it lays down.

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2i Those requirements are exhaustive and take the place of national provisions on the subject. This is borne out both by the wording of the fifth recital in the preamble to the Directive and by the logic which underpins Articles 3 and 4 thereof, according to which, so long as appliances satisfy the essential Community requirements, Member States may not prohibit, restrict or impede their free movement and use in the Community by imposing other requirements.

22 The Italian Government contends that a non-insulated heater does not satisfy the essential requirements of the Directive. In particular, among the different sections of Annex I to the Directive which specify those requirements, section 3.4.3 provides that £[a]ppliances connected to a flue for the dispersal of combustion products must be so constructed that in abnormal draught conditions there is no release of com­ bustion products in a dangerous quantity into the room concerned.' It follows that in no case must there be such a release into the room where the appliance is installed.

23 However, such a possibility exists for all 'open' appliances. According to the Italian Government, despite the fact that all 'open' appliances must be equipped with an appropriate safety device designed to stop combustion when combustion products are released, a series of tests carried out by the Laboratory for Thermal and Tech­ nological Tests of the įtaigas company in Asti have shown that, in certain circum­ stances and in particular where there was:

24 A n a l o g o u s observations could b e m a d e w i t h regard t o sections 3.1.9 and 3.2.1 of t h e same A n n e x I t o the Directive, w h i c h p r o v i d e that appliances m u s t b e so designed and constructed that any failure m a y n o t lead t o an unsafe situation and a gas leak is n o t dangerous. T h o s e r e q u i r e m e n t s are fully satisfied o n l y w h e r e the appliance is insulated from the living area.

25 The Commission submits that full compliance with the essential requirements defined in the Directive ensures the technical safety of all gas appliances to which it applies.

26 It states in particular that harmonised standard E N 297, adopted by the European Standardisation Committee (OJ 1995 C 187, p. 9), which concerns inter alia 'open' boilers, provides in section 3.5.8 that boilers must be equipped with a safety device which blocks the functioning of the appliance where the dispersal of combustion products is abnormal during a specified period. Consequently, unless there is evi- dence to the contrary, Member States should presume, on the basis of Article 5 of the Directive, that 'open' appliances fitted with that device satisfy the essential requirement laid down in section 3.4.3 of Annex I to the Directive.

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27 The tests carried out by the laboratory of the įtaigas company were known to the Commission, which considered them to be disproportionate in so far as their refer­ ence conditions are difficult to imagine in reality.

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33 T h a t is t h e reason for w h i c h Article 4 of t h e Directive requires t h e M e m b e r States n o t t o prohibit, restrict o r i m p e d e t h e placing o n t h e market and the p u t t i n g into service of appliances w h i c h satisfy t h e essential requirements of the Directive.

34 Consequently, if the appliances referred t o in the Directive, including ' o p e n ' heaters, meet t h e essential requirements defined b y it, that is sufficient t o enable t h e m t o be placed o n t h e m a r k e t a n d p u t into service.

35 Among those requirements is the one laid down in section 3.4.3 of Annex I to the Directive. According to that provision, appliances must be so constructed that in abnormal draught conditions there is no release of combustion products in a dan­ gerous quantity into the room concerned.

36 Contrary to what is submitted by the Italian Government, 'open' heaters arc such as to satisfy that requirement. It is clear from the file that all appliances of that type are, in accordance with harmonised standard E N 297, equipped with a safety device which blocks the functioning of the appliance where the dispersal of combustion products is abnormal during a specified period.

37 The results of the tests carried out by the laboratory of the įtaigas company, upon which the Italian Government relies, are not such as to invalidate that finding.

42 Consequently, that allegation must also be rejected.

43 The Italian Government also contends that the contested provision of Decree N o 412/93 does not in any way prohibit the installation of appliances which are dif- ferent from the 'sealed' type, but merely contains provisions relating to the places and methods for installing them. Thus, for there to be a limitation or an actual obstacle to the placing on the market of 'open' heaters, it would be necessary to establish that it would not be possible to instai an appliance of that type externally or to insulate it if it had to be installed in a living area. However, the Commission has confined itself to stating, in a theoretical way, that that provision is

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incompatible with the Community legislation, and has provided no evidence to show that that provision actually prohibits, limits or impedes the placing on the market and the putting into service of such an appliance.

4 In that regard, it is common ground that, according to the provision complained of, only 'sealed' heaters may be installed in living areas in cases of new installation or conversion of a heating appliance.

49 It follows that Article 5(10) of Decree N o 412/93 is incompatible with Article 4 of the Directive.

so The Italian Government contends, however, that that provision, to the extent that it seeks to protect the health, life and safety of persons and domestic animals, may be justified under Article 36 of the EC Treaty and Article 7(1) of the Directive.

si It argues, in particular, that the possibility of relying on Article 36 of the Treaty is apparent from the Directive itself which not only imposes on the Member States, in the first recital of the preamble thereto, the obligation to ensure the health and safety on their territory of their people, but also provides, in Article 7, that those same States, where they find that normally used appliances might compromise the safety of persons and domestic animals, are authorised to take all appropriate mea- sures to prohibit or restrict the placing on the market of those appliances.

52 In any event, it contends, reliance on Article 36 of the Treaty cannot be precluded where the particular interest at issue is not sufficiently safeguarded by Community measures because it concerns situations which are not provided for in the harmo- nising directives (Case 72/83 Campus Oil and Others v Minister for Industry and Energy [1984] ECR 2727).

53 It states, finally, that the possibility for a Member State to resort to Article 36 of the Treaty is expressly provided for in Article 100a thereof, on the basis of which the Directive was adopted.

54 It must be pointed out in that regard that, according to well-established case-law, where Community directives provide for the harmonisation of the measures

t It follows that the Directive has brought about, as regards gas appliances, the com- plete harmonisation of the measures necessary for those appliances to satisfy the essential requirements of health and safety.

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59 A Member State is, therefore, no longer authorised to plead Article 36 of the Treaty before the Court of Justice in order to justify a national measure designed to satisfy those same requirements.

60 That conclusion is not invalidated, in this case, by Article 100a(4) of the Treaty.

61 That article provides:

63 However, it is common ground that, in this case, the Italian Government did not initiate the procedure laid down in Article 100a(4) of the Treaty.

54 Similarly, a Member State cannot plead Article 7 of the Directive before the Court of Justice in order to justify a national measure where it has not followed the pro- cedure laid down in that provision.

ss In those circumstances, the argument put forward by the Italian Government on the basis of Articles 36 of the Treaty and 7(1) of the Directive must be rejected.

¡6 In the light of the foregoing considerations it must be held that, by establishing and maintaining a system which, in cases of new installation or conversion of gas appli- ances, requires that only 'sealed' heaters be used in living areas, thereby implicitly prohibiting the installation of other types of heaters which comply with the Direc- tive, the Italian Republic has failed to fulfil its obligations under that directive.

Costs

7 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has asked for the unsuccessful party to be ordered to pay the costs and the Italian Republic has been unsuccessful, it must be ordered to pay the costs.

2. Orders the Italian Republic to pay the costs.

Hirsch Mancini Ragnemalm

Schintgen Ioannou

Delivered in open court in Luxembourg on 25 March 1999.

R. Grass P. J. G. Kapteyn

Registrar President of the Sixth Chamber