C-14/02

OPINION OF MR GEELHOED — CASE C-14/02

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 12 December 2002 1

I — Introduction I I — Legal background

A — Community law

1. Directive 73/23

1. In this case, the Belgian Conseil d'État 2. Pursuant to Article 1 thereof, Directive (Council of State) has raised a number of 73/23 applies to electrical equipment questions concerning the interpretation of designed for use with a voltage rating of C o u n c i l D i r e c t i v e 7 3 / 2 3 / E E C of between 50 and 1 000 V for alternating 19 February 1973 on the harmonisation current and between 75 and 1 500 V for of the laws of Member States relating to direct current, other than the equipment electrical equipment designed for use listed in Annex II. within certain voltage limits 2 (hereinafter 'Directive 73/23'), Council Directive 89/336/EEC of 3 May 1989 on the approximation of the laws of the Member States relating to electromagnetic compati- 3. Article 2 of Directive 73/23 provides bility 3 (hereinafter 'Directive 89/336'), that: Directive 1999/5/EC of the European Par- liament and of the Council of 9 March 1999 on radio equipment and telecom- munications terminal equipment and the mutual recognition of their conformity 4 '1. The Member States shall take all (hereinafter 'Directive 1999/5') and appropriate measures to ensure that Articles 28 and 30 EC. electrical equipment may be placed on the market only if, having been con- structed in accordance with good 1 — Original language: Dutch. engineering practice in safety matters 2 — OJ 1973 L 77, p. 29. 3 — OJ 1989 L 139, p. 19. in force in the Community, it does not 4 — OJ 1999 L 91, p. 10. endanger the safety of persons,

'The Member States shall take all appropri- ate measures to ensure that if electrical equipment is of such a nature as to comply with the provisions of Article 2, subject to 6. Article 1(1) of Directive 89/336 defines the conditions laid down in Articles 5, 6, 7 'apparatus' as all electrical and electronic and 8, the free movement thereof within appliances together with equipment and the Community shall not be impeded for installations containing electrical and/or reasons of safety.' electronic components.

5. Article 8(1) of Directive 73/23 as amended by Directive 93/68 5 reads as 7. The first paragraph of Article 2( 1 ) of that directive provides that:

5 — C o u n c i l Directive 93/68/EEC of 22 July 1993 amending D i r e c t i v e s 8 7 / 4 0 4 / E E C ( s i m p l e p r e s s u r e vessels), 88/378/EEC(safety of toys), 89/106/EEC (construction products), 89/336/EEC(electromagnetic compatibility), 89/392/EEC (machinery), 89/686/EEC (personal protective equipment), 90/384/EEC(non-automatic weighing instru- ments), 90/381/EEC (active implantable medical devices), 9 0 / 3 9 6 / E E C ( a p p l i a n c e s b u r n i n g g a s e o u s fuels), 91/263/EEC(telecommunications terminal equipment). ' 1 . This directive applies to apparatus 9 2 / 4 2 / E E C ( n e w hot-water boilers fired with liquid or gaseous fuels) and 7 3 / 2 3 / E E C ( e l e c t r i c a l equipment liable to cause electromagnetic disturbance designed for use within certain voltage hunts) Ol 199Ì or the performance of which is liable to be L 220, p. 1. affected by such disturbance.'

3. Directive 1999/5 14. Article 6(1) of Directive 1999/5 reads as follows:

10. Article 1 of Directive 1999/5 estab- lishes a regulatory framework for the plac- 'Member States shall ensure that apparatus ing on the market, free movement and is placed on the market only if it complies putting into service in the Community of with the appropriate essential requirements

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identified in Article 3 and the other relevant 17. Under the first p a r a g r a p h of provisions of this directive when it is Article 19(1) of that directive: properly installed and maintained and used for its intended purpose. It shall not be subject to further national provisions in respect of placing on the market.'

'Member States shall not later than 7 April 2000 adopt and publish the laws, regu- lations and administrative provisions 15. Article 7(1) provides that: necessary to comply with this directive. They shall forthwith inform the Commis- sion thereof. They shall apply these provi- sions as from 8 April 2000.'

'The alarm systems and networks referred to in Article 1(4) and their components may be marketed or otherwise made avail- 21. On the basis of the first paragraph of able to users only after prior approval has Article 12 of the Law of 10 April 1990, a been granted under a procedure to be laid royal decree laying down the procedure for down by the King. approving the alarm systems and networks referred to in the Law of 10 April 1990 on caretaking firms, security firms and internal caretaking services 8 was adopted on 23 April 1999 (hereinafter 'the Royal Decree of 23 April 1999'). The royal decree The alarm systems and networks referred entered into force on 19 June 1999. to in Article 1(4) and their components, marketed or otherwise made available to users, must always conform to the proto- type approved under the procedure to be laid down by the King referred to in paragraph 1. 22. Under Article 1(2) of the Royal Decree of 23 April 1999, 'equipment' means 'the alarm systems and networks and their components intended to prevent or record crimes against persons or property'.

The King shall also determine the con- ditions governing installation, maintenance and use of the alarm systems and networks referred to in Article 1(4) and their com- ponents.' 23. Article 2 of that royal decree reads as follows:

20. As provided for in the first paragraph of Article 19(1) of the Law of 10 April ' 1 . No manufacturer, importer, wholesaler or any other natural or legal person may 7 — Law amending the Law of 10 April 1990 on caretaking firms, security firms and internal caretaking services, Moniteur belge, 29 July 1999, p. 28316. 8 — Moniteur belge, 19 June 1999, p. 23217.

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That examination shall consist of: 3. mechanical and/or electronic reliability;

1. identifying the equipment; 4. sensitivity to false alarms;

2. checking electrical circuits against the documents submitted by the manufacturer; 5. protection against fraud or attempts to neutralise the equipment;

3. checking the minimum required func- tions, as described in Annex 3 to this decree. For that purpose, equipment shall be sub- jected to the tests listed in Annexes 3 and 5 to this decree. Those tests shall be appli- cable to the different types of component.

To that end, the applicant must provide the Equipment to which alterations arc made abovementioned laboratories with all the must be re-submitted to one of the bodies documents relevant to that examination.' referred to in Article 4(1), which shall decide whether supplementary tests arc necessary.'

28. Article 9 of the royal decree provides that: 30. Article 12 provides that the adminis- tration and operation costs involved in the application procedure, the tests and the conformity check are to be borne by the applicant. 'For the purposes of approval of the alarm systems and networks imported from other Member States of the European Union and from Member States of the European Free Trade Association, contracting parties to the Agreement on the European Economic Area, certificates and reports of tests drawn III — Main proceedings and course of the up by an approved or accredited body in procedure those States shall be accepted in so far as they attest to the conformity of those systems and networks to technical stan- dards or regulations which ensure a level of protection equivalent to that which is provided by this decree.' A — Main proceedings

31. ATRAL, a public limited company 29. Article 11 of the Royal Decree of incorporated under French law, having its 23 April 1999 provides that: registered office in France (hereinafter 'ATRAL'), manufactures and markets alarm systems and networks using radio transmission (commonly referred to as 'wireless' alarm systems). Since 1996, ATRAL has been marketing its alarm 'Approvals shall be valid for a period of systems and networks in Belgium, primarily three years and may be extended, each time via large-scale retailers. for the same period, on application. Appli- cations for extension shall be submitted to one of the bodies referred to in Article 4( 1 ) and shall be processed and examined in accordance with the abovementioned 32. Until the Royal Decree of 23 April Articles 4 to 9. 1999 entered into force, the sale of

34. On 16 August 1999, ATRAL asked the Conseil d'État to annul the Royal Decree of 23 April 1999.

37. ATRAL also argued that the Belgian 35. In addition, on 31 August 1999, State could regulate only the non-harmon- ATRAL lodged a complaint with the Euro- ised area of the field in question, and even pean Commission alleging that the import then must do so in compliance with the of alarm systems and networks into Bel- Treaty and in particular Article 28 EC. In gium was being obstructed. As a result of that respect, ATRAL takes the view that that complaint, the Commission gave the the Royal Decree of 23 April 1999, in Kingdom of Belgium formal notice to particular Article 9 thereof, is not com- submit comments on the matter. Those patible with the principle of mutual recog- proceedings are still pending. ATRAL also nition, under which any product imported brought an action before the Tribunal de from a Member State must be admitted Première Instance de Bruxelles (Court of into the territory of the importing Member First Instance, Brussels) with a view to State if it has been lawfully manufactured obtaining an order prohibiting the Belgian and marketed in the State of origin, even if State from making the sale of its products that product was manufactured in accord- in Belgium subject to prior approval. Those ance with technical or qualitative specifi- proceedings are still pending. cations different from those applicable to

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40. By order of 8 January 2002, the Conseil d'État referred the following questions to the Court:

38. The Belgian State disputes first of all the assertion that Directives 73/23/EEC and 89/336/EEC relate to the subject-matter '(1) Should Council Directive 73/23/EEC of regulated by the Royal Decree of 23 April 19 February 1973 on the harmon-

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isation of the laws of Member States (2) In the event that the reply to the first relating to electrical equipment question is in the affirmative: designed for use within certain voltage limits, Council Directive 89/336/EEC of 3 May 1989 on the approximation of the laws of the Member States relating to electromagnetic compatibil- ity and Directive 1999/5/EC of 9 March — Should Article 3 of Council Direc- 1999 of the European Parliament and tive 73/23/EEC of 19 February of the Council on radio equipment and 1973, Article 5 of Council Direc- telecommunications terminal equip- tive 89/336/EEC of 3 May 1989 ment and the mutual recognition of and Article 6(1) of Directive their conformity be interpreted: 1999/5/EC of the European Parlia- ment and of the Council of 9 March 1999 be interpreted as prohibiting national provisions which, as do Article 12 of the Law of 10 April 1990 and the Royal Decree of 23 April 1999, make the placing on the market in a Member State of all alarm systems and networks (a) as applicable to alarm systems and lawfully produced and/or mar- networks, in particular to products keted in another Member State... of that type which use radio trans- subject to a prior authorisation mission, commonly known as procedure relating to components wireless alarm systems, of those alarm systems and net- works which satisfy the require- ments of the directives referred to?

make the placing on the market in munity harmonisation measures do Belgium of all alarm systems and not take into account or, in other networks subject to requirements words, without specifically demon- other than those established in strating either that the overriding those directives? reason or compelling requirement relied on actually exists or that the Community harmonisation meas- ures do not already take that over- riding reason or compelling requirement into account or that — Should Articles 28 to 30 EC be the restrictive measure is propor- interpreted as meaning that the tionate to the aim pursued? prohibition on quantitative restric- tions on imports and on measures having equivalent effect applies to national provisions, such as the Royal Decree of 23 April 1999, which require components of (3) In the event that the reply to the first alarm systems and networks not question is negative: covered by Community harmon- isation measures to undergo the same tests in an authorised labora- tory as equipment placed on the market for the first time? — Should Articles 28 to 30 EC be interpreted as meaning that the prohibition on quantitative restric- tions on imports and on measures having equivalent effect applies to — Should Articles 28 to 30 EC be national provisions, such as interpreted as meaning that the Article 9 of the Royal Decree of prohibition on quantitative restric- 23 April 1999, which, rather than tions on imports and on measures applying the requirement of having equivalent effect allows a mutual recognition to the alarm Member State to adopt national systems and networks themselves, provisions, such as the Royal confine the requirement of mutual Decree of 23 April 1999, which recognition to the tests which makes the placing on the market in alarm systems and networks law- a Member State of all alarm sys- fully manufactured and/or mar- tems and networks lawfully manu- keted in another Member State factured and/or marketed in must undergo in order to obtain another Member State subject to authorisation to be placed on the prior approval and to tests and market of a Member State? specific technical requirements, merely relying in the abstract on an overriding reason or a compel- ling requirement, such as consumer protection and/or public policy, — Should Articles 28 to 30 EC be which the State considers the Com- interpreted as meaning that the

C — Proceedings before the Court — Should Articles 28 to 30 EC be interpreted as meaning that the prohibition on quantitative restric- tions on imports and on measures having equivalent effect applies to national provisions, such as Article 9 of the Royal Decree of 41. In the proceedings before the Court, 23 April 1999, which require com- written observations were submitted by ponents of alarm systems and net- ATRAL, the Belgian Government and the works to undergo the same tests in Commission. They expanded on their views an authorised laboratory as equip- at the hearing of 3 October 2002. The ment being placed on the market French Government also put forward its for the first time? views at that hearing.

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44. I concur with that view. Alarm systems 46. The Commission, the French Govern- and networks consist of various com- ment and the parties to the main proceed- ponents which fall within the scope of the ings agree that each of the three directives three directives. Thus, Directive 73/23 referred to is intended to achieve complete applies to electrical equipment within the harmonisation within the field to which it voltage limits laid down in the directive. applies. I share that view, which follows The components of systems and networks without any doubt from the letter and spirit

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of those directives. The Belgian legislation together below. The questions on the inter- and regulations must therefore comply with pretation of Articles 28 and 30 EC will then the directives in full where they extend to each be addressed in turn. the matters covered by the directives. I need hardly add that that legislation and those regulations cannot impose on economic transactions relating to the apparatus in question restrictions which go beyond what the abovementioned directives expressly allow. 49. Article 3 of Directive 73/23, Article 5 of Directive 89/336 and Articles 6 and 8 of Directive 1999/5 guarantee the free move- ment of goods, both apparatus and its components, which satisfy the require- ments laid down therein.

47. Nevertheless, the directives do not govern all aspects of the performance of alarm systems and networks. For example, depending on how it is to be used, such 50. As the Commission explained in apparatus must comply with certain greater detail in its written observations, requirements as regards its functionality, the harmonisation achieved by those direc- such as reliability, sensitivity to false tives confers a presumption of conformity alarms, and durability. These points are on apparatus bearing the CE marking. That addressed in the second question. marking indicates the conformity of the product in question to all the provisions of the relevant directives, including the pro- cedures for assessment of conformity to standard, as provided for in the directives. The directives contain a number of dero- gations from that basic rule but these are of no relevance in this case.

55. In my view, Questions 2(a) and (b) should be answered to that effect. 53. Article 9 of the Royal Decree of 23 April 1999 also infringes the rules contained in the directives. That provision states that, for the purposes of approval of the alarm systems and networks imported from other Member States of the European Union and Member States of the European Free Trade Association, contracting parties 56. Questions 2(c) and (d) relate to the to the Agreement on the European Econ- components or characteristics of alarm omic Area, 'test certificates and reports systems and networks which are not drawn up by an approved or accredited covered by Community harmonisation body in those States shall be accepted in so measures. far as they attest to the conformity of those systems and networks to technical stan- dards or regulations which ensure a level of protection equivalent to that which is provided by this decree'. The directives, on the other hand, provide for a presump- tion of conformity in the case of products bearing the CE marking or otherwise 57. Question 2(c) relates to the require- shown to conform to the directives. ment under the Belgian legislation that the Article 9 of the royal decree is clearly components of alarm systems and networks incompatible with those rules. which are not covered by Community harmonisation measures undergo the same tests in an approved laboratory as equip- 9 — This is also true of the old version of Article 12 of the Law ment placed on the market for the first of 10 April 1990, which included a similar prior approval requirement. time.

58. In the absence of Community rules, it is 59. Firstly, I would point out, as the open to the Member States to retain or Commission has, that a national measure adopt national measures provided that they which imposes tests which are the same as are compatible with the free movement of those already carried out in the country of goods. This means that quantitative restric- origin is a measure having equivalent effect tions on imports and any measures having within the meaning of Article 28 EC even if equivalent effect are prohibited. It is settled the field in question is not harmonised. case-law of the Court that all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be regarded as measures having an effect equivalent to quantitative restric- tions. 10 Pursuant to Article 30 EC, 60. The same applies to a provision which, Article 28 EC does not preclude prohib- for the purposes of approval of alarm itions or restrictions on imports which can systems and networks imported from be justified on the grounds set out in that another Member State, accepts test certifi- article provided that such prohibitions or cates and reports drawn up by an approved restrictions do not constitute a means of or accredited body in that Member State arbitrary discrimination or a disguised only in so far as they attest to the conform- restriction on trade between Member ity of those systems and networks to tech- States. Moreover, obstacles to movement nical standards and regulations guaran- within the Community resulting from dis- teeing the same level of protection as in parities between the national laws must be the country of importation. After all, a accepted in so far as they are necessary in consequence of such an approval system is order to satisfy mandatory requirements. 11 that a producer who wishes to export his Nevertheless, whether it is covered by the systems and networks to Belgium must situations referred to in Article 30 EC or have that equipment tested and approved in whether it is based on imperative require- his own country in order to satisfy the ments in the public interest established by requirements of the Belgian legislature, case-law, national legislation which dero- even if the equipment can be marketed in gates from Article 28 EC can be justified his own country without the intervention of only if it is consistent with the principles of an approval body. necessity and proportionality. 12

65. The dispute in the main proceedings concerns a question of European law raised 63. The Commission has rightly pointed before a national court. It is subject in out that, even if an obstacle to the freedom principle to national rules of procedure, of movement could be justified on the including rules of evidence. The case-law of grounds relied on by the Belgian Govern- the Court lays clown a number of require- ment, it is for the national court to assess ments in that regard. To wit, rules of whether the requirement of a prior appro- evidence cannot render virtually impossible val procedure is necessary to attain the or excessively difficult the implementation objective pursued and whether it is pro- of Community legislation. 13 Moreover, the portionate. The necessity and proportional- rules of evidence laid down in the relevant ity of the test certificate or report required national law cannot be less favourable than under Article 9 of the royal decree must those governing similar domestic pro- also be assessed in this context. As the cedures. 14 Commission also points out, the national court does not ask whether the grounds of justification relied on by the Belgian Gov- ernment satisfy the conditions laid down by Article 30 EC or by case-law. The fourth question is, in essence, concerned exclus- ively with the burden of proof. 66. It is settled case-law that a derogation from the principle of free movement of goods set out in Article 30 EC can be justified only where thenational authorities

64. The question is whether it is sufficient for a Member State to rely on an abstract 13 — Judgment in CASE 199/82 San Giorgio [1983] ECR 3 5 9 5 . 14 — Judgment in Case C-212/94 FMC and Others [1996] ECR reference to an imperative requirement or I-389.

67. This means that the imperative require- ments or overriding reasons must be defined so specifically as to make it possible to assess whether the measure taken by the Member State is justified as such. This degree of definition is also necessary because it would otherwise be impossible to assess whether the national rules at issue are effective and proportionate, that is to say whether or not they go beyond what is strictly necessary as regards the interest to be protected. 69. To prevent that consequence, which I consider to be unacceptable, it is the responsibility of the national legislature, 15 — Judgment in Case 227/82 van Bennekom [1983] ECR 3883. when laying down the rules governing

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certain outstanding characteristics of sys- of subsequent checks as the relevant direc- tems and apparatus, to take into account tives in this instance permit. all the existing harmonisation rules appli- cable to other characteristics of that appar- atus. The principle of Community solidar- ity contained in Article 10 EC imposes an obligation on legislatures to draw up their national legislation by reference to the requirements and procedures to which Community law subjects those prod- C — The third set of questions referred ucts — both components and apparatus. (Question 3) That means here that the national legis- lature should have confined itself either to recognising that apparatus lawfully mar- keted elsewhere in the Community con- 70. In the light of the answer to Question forms to standard or to setting up a system 1, it is not necessary to answer Question 3.

networks, in particular to products of that type which use radio transmission, commonly known as wireless alarm systems.

(b) It follows from Directives 73/23/EEC, 89/336/EEC and 1999/5/EC that, in the fields covered by those directives, the Member States cannot make marketing of components and finished products subject to requirements other than those which are expressly provided for in those directives. It follows that provisions laid down by law or administrative action which have the purpose or effect of imposing such excessive requirements are incompatible with those directives.

73. Question 2

— The harmonisation achieved by Directives 73/23/EEC, 89/336/EEC and 1999/5/EC entails a presumption of conformity to standard, which includes the procedures for assessment of conformity to standard, in relation to apparatus bearing the CE marking. Article 3 of Directive 73/23/EEC, Article 5 of Directive 89/336/EEC and Article 6(1) and Article 8(1) of Directive 1999/5/EC therefore preclude national provisions such as Article 12 of the Law of 10 April 1990 and Article 9 of the Royal Decree of 23 April 1999, which make the placing on the market in a Member State of all alarm systems and networks lawfully produced and/or marketed in another Member State subject to a prior approval procedure relating to components of those alarm systems and networks which satisfy the requirements of the directives referred to.

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— The adducing of evidence is governed by national rules of procedure. None the less, the national court must ensure the effective application of Community law. The effective application of Articles 28 and 30 EC therefore requires that, in the event of a restriction of a fundamental freedom, the national court must be able to ascertain whether the ground of justification relied on is compatible with Community law. This means that a national authority which relies on a ground justifying a restriction of the free movement of goods must provide tangible evidence that there is a public interest to be protected, that the measure is necessary and that it is proportionate to the objective to be attained. When assessing the propor- tionality of the national measure, the national court must also determine what impact it has on the effectiveness of the existing harmonisation measures and whether it is compatible with them.

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