JUDGMENT OF CASE 815/79

Transcription

1 JUDGMENT OF CASE 815/79 of implementing the directive did not keep within the limits of the discretion outlined by this directive. Indeed any overstepping of these limits might create new disparities and therefore fresh barriers to trade and as a result prevent the free movement of goods in a field in which the Community legislature had adopted provisions in order to ensure such freedom. 2. If the imported electrical material bears marks denoting conformity duly issued by bodies notified in accordance with Directive No 73/23, there is a presumption of conformity which prevents the adoption of any measure restricting the free movement of that equipment by a judicial authority of a Member State, even if the Member States have not all designated the bodies which are empowered to issue such marks. Where there is such a presumption of conformity, measures restricting the free movement of the goods may be adopted only in the context of the procedure of Article 9 of the said directive by a national administrative authority acting on behalf of the Member State and empowered to participate in that procedure. 3. A judicial authority of a Member State may, on the basis of the requirements of its national law, adopt a measure restricting the free movement of electrical equipment in respect of which there is no presumption of conformity within the meaning of Article 10 of Directive No 73/23 so long as the equipment has not been the subject of a report within the meaning of Article 8 (2) of the directive. On the other hand, the judicial authority of a Member State does not have that power in other circumstances in which Community law and procedures apply. In Case 815/79 REFERENCE to the Court of Justice under Article 177 of the EEC Treaty by the Pretura Penale di Como [Distri«Criminal Court, Como] for a preliminary ruling in the criminal proceedings against GAETANO CREMONINI AND MARIA LUISA VRANKOVICH on the interpretation of Council Directive No 73/23 of 19 February 1973 on the harmonization of the laws of Member States relating to electrical equipment designed for use within certain voltage limits (Official Journal L 77 of 26 March 1973, p. 29), 3584

2 CREMONINI AND VRANKOVICH THE COURT composed of: J. Mertens de Wilmars, President, P. Pescatore and T. Koopmans (Presidents of Chambers), Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and A. Touffait, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte gives the following JUDGMENT Facts and Issues The facts of the case, the course of the procedure and the written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows: I Facts and procedure In 1979 Gaetano Cremonini and Maria Luisa Vrankovich imported from Belgium a number of smoothing irons (Calor and Rowenta brands), electric drills (Metabo brand) and lawn-mowers (Gazonette brand). Since none of those articles complied with the standards set by Articles 314 and 315 of the Decree of the President of the Republic (hereinafter referred to as "the DPR") No 547 of 27 April 1955 (Gazzetta Ufficiale della Repubblica Italiana [Official Gazette of the Italian Republic] No 158 of 12 July 1955, Supplement), the Pretore [Magistrate] in Como instituted criminal proceedings against the two accused by virtue of which he ordered the said articles to be seized. The accused have applied to have the seizure lifted submitting, on the one hand, that the articles in question comply with the objectives regarding safety laid down by Article 2 of the abovementioned Directive No 73/23 and, on the other hand, that the provisions of the DPR No 547 are incompatible with those of Directive No 73/23 which was also the view expressed by Mr Advocate General J.-P. Warner in his opinion delivered in Case 123/76 Commission of the European Communities v Italian Republic (judgment of 14 July 1977, [1977] ECRatp. 1459). The judgment delivered in that case found that Italy had failed to fulfil an obligation under the Treaty by not having taken the necessary steps to implement Directive No 73/23. In consequence of that judgment Italy passed Law No 791 of 18 October 1977 (Gazzetta Ufficiale della Repubblica 3585

3 JUDGMENT OF CASE 815/79 Italiana No 208 of 2 November 1977, p. 7913) adopting measures for the implementation of the directive in question. It is in this context that the Pretore in Como, giving his reasons for referring the questions to the Court, has made the following observations : He considers first that Directive No 73/23 does not have direct effect. He states that in his opinion a directive does not have "the binding force inherent in a Community regulation". When he then considers the provisions of the directive he thinks that Article 10 thereof is "restricted to the creation of a presumption of conformity". That article, which has also been reproduced in Article 7 of the implementing Italian law, "is so drafted that it raises doubts as to whether the provisions creating the presumption [of conformity] contained in it may enable the mandatory provisions of Decree No 547/55 to be overridden". That doubt is confirmed by the fact that the Italian implementing law and in particular the second part of the first paragraph of Article 10, "when speaking of derogation from the provisions of the DPR No 547, expressly excludes such a derogation as regards provisions relating to construction". Those findings show the intention of the Italian Republic to restrict the scope of the provisions contained in Directive No 73/23. Consequently, the Pretore is of the opinion that the court may always check whether aricles in free circulation in Italy are of a type which complies with the safety requirements of national law prior to the directive, with the exception of the presumptions of conformity raised by Articles 5 and 6 of Directive No 73/23 which alone "could enable the court to defer the immediate application of the mandatory provisions of national laws"; on the other hand, Articles 7 and 8 even if given effect by the national implementing law ought not to allow the said mandatory provisions to be overridden. However, the Pretore, having regard to the case-law of the Court of Justice (he cites the judgment of 9 March 1978 in Case 106/77, Amministrazione delle Finanze dello Stato v Simmenthai SpA [1978] ECR at p. 645 and the judgment of 5 April 1979 in Case 148/78, Pubblico Ministero v Tullio Ratti [1979] ECR at p. 1646) has stayed proceedings by an order of 27 November 1979 and requested the Court of Justice to give a preliminary ruling on the following five questions: 1. Are the combined provisions of Articles 10, 7, 3 and 2 of Directive No 73/23 of 19 February 1973 (Official Journal L 77 of 26 March 1973) to be interpreted in such manner that a presumption of conformity with the provisions of the said directive is to be regarded as a presumption which prevents the taking of any measure restricting the free movement of goods within the EEC by any judicial authority of the Member States (and of the Italian State in particular) when the imported electrical equipment (in the case in question: smoothing irons) bears marks (CEBEC and VDE marks) duly issued by bodies notified in accordance with the EEC directive by the Belgian and German Governments (cf. Documents Nos 7 and 8 produced in the case) (even if not all Member States have designated bodies competent to issue the marks referred to in the said directive with reference to their national law)? 3586

4 CREMONINI AND VRANKOVICH 2. In the event of the answer to the first question being in the affirmative, is the said presumption of conformity such as to prevent the national court from adopting a measure restricting the free movement of goods within the EEC which is based upon a mandatory provision of national safety regulations requiring the inclusion of a feature (additional insulation) differing from that with which the imported product (smoothing iron) is provided, when no national administrative body has yet adopted restrictive measures valid for the whole of the national territory and accordingly set in motion the procedure laid down in Article 9 of the EEC directive? 3. Must the combined provisions of Articles 8, 3 and 2 of Directive (EEC) No 73/23 be interpreted in such manner as to preclude a judicial authority of a Member State from adopting a measure restricting the free movement within the EEC of electrical eqipment to which the directive applies when the said equipment (in the case in question: drills and lawn-mowers), though provided with other safety features laid down by Community law, lacks a feature (earthing) expressly required by a mandatory provision of national law, before a report by one of the special bodies referred to in Article 8 of the directive has been requested or submitted? 4. In the event of the answer to the third question being in the affirmative, may the measure restricting the free movement of electrical equipment described in Question 3 be applied by the judicial authority of the Member State concerned only after the adoption of a measure valid for the whole of the national territory by the administrative body of the Member State which has been designated to initiate the procedure laid down in Article 9 of the said directive? 5. Must any prohibition on the exercise of the power to adopt measures restricting the free movement of goods on the terms and conditions mentioned in all the preceding questions be regarded as imposed upon the judicial authority of the Member State regardless of any national provisions relating to the rules for the installation of the electrical equipment in question? The order making the reference was registered at the Court on 17 December In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were submitted on 18 February 1980 by the Commission of the European Communities, represented for these purposes by its Legal Adviser, Antonio Abate, acting as Agent; on 20 March 1980 by the Government of the Kingdom of the Netherlands, represented for this purpose by the Secretary General at the Ministry for Foreign Affairs, F. Italianer, acting as Agent; on 24 March 1980 by the Government of the United Kingdom, represented for this purpose by M. A. D. Preston, of the Treasury Solicitor's Department, acting as Agent; on 25 March 1980 by the Italian Government, represented for this purpose by F. Favara, Avvocato dello Stato, and A. Squillante, acting as Agent; and on 1 April 1980 by the accused in the criminal proceedings, represented for this purpose by A. Berini, Advocate at the Como Bar, and by G. M. Ubertazzi and F. Vapelli, Advocates at the Milan Bar. Upon hearing the report of the Judge- Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without holding any preparatory inquiry. 3587

5 JUDGMENT OF CASE 815/79 II Written observations submitted to the Court pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC A Observations of the accused in the criminai proceedings (a) The facts The accused in the criminal proceedings submit first that the criminal proceedings in question in this case are identical to a number of other proceedings brought by Italian Pretori against many undertakings which manufacture and import electrical equipment. Since all these proceedings resulted in orders for the seizure of the equipment concerned which were enforced after the Court of Justice delivered judgment against Italy in Case 123/76 (mentioned above) Italian traders, through their trade association (ANIE), informed Commissioner Davignon of the actions of the Italian courts. According to the accused, the Commission has "only very recently" intervened to declare that the conduct of the Italian Government is inconsistent with the provisions of Directive No 73/23 (registered letter sent to the Italian Government on 27 July 1979). They also point out that as far as concerns the importation of the Metabo drills and the Gazonette lawn-mowers, which do not bear any marks, they have supplemented their defence, which has already been produced to the Pretura di Como, with a report of the kind referred to in Article 8 (2) of Directive No 73/23 in order to dispel all doubts, even factually, as to the functional nature of the imported equipment and its compliance with the general safety rules provided for by Article 2 of the directive in question. (b) The law ( 1 ) General observations The accused in the criminal proceedings consider that it is necessary first of all to place Directive No 73/23 in the context of Article 100 of the Treaty before examining its provisions. The fact that Directive No 73/23 is based upon the said Article 100 tends to show that it is intended to approximate such national provisions laid down by law, regulation or administrative action "as directly affect the establishment or functioning of the common market" and consequently to eliminate those which stand in the way of such approximation. This assessment is confirmed by the fact that, in general, the objective of harmonization directives is to seek to remove legal or administrative barriers which stand in the way of the establishment of a single market. Consequently, when the Council adopts a harmonization directive the interests of Community integration must prevail over the national interests of the Member States, with the result that the interpretation of directives on the approximation of laws must give precedence to Community integration rather than to the degree of freedom left to the Member States. The accused in the criminal proceedings lay stress on the difference which exists between Community and international law on standardization; in the latter case 3588

6 CREMONINI AND VRANKOVICH the approximation is accomplished by means of a single instrument as for example happens at an international conference. There is no unitary machinery for administering the standardized legal field and usually there is also no single source of amendment or interpretation of the levels of standardization which have been reached and, finally, there is no court to ensure a uniform interpretation for the whole of the standardized legal field. In the case of Community law, on the other hand, once the methods adopted for the approximation of laws have resulted in uniform rules they remain available for the purpose of making any amendments or additions which may be necessary, and the uniformity of Community law is guaranteed by the interpretation of a single court which "ensures that the law is observed". It therefore runs counter to a system of that kind to acknowledge that a Member State may unilaterally cause a breach of this legal uniformity save where the standardization texts provide for exceptional cases and for the adoption of exceptional measures. The accused in the criminal proceedings draw from this analysis an "interpretative premise", reasoning that, in the context of this directive, the Member States may obstruct free movement only in exceptional circumstances and in compliance with Article 9 of Directive No 73/23. The accused in the criminal proceedings go on to analyse the specific content of Directive No 73/23 and maintain that the latter purports to restrict the field of application of Article 36 of the Treaty, "that is to say, the field of application of a rule which derogates from the principle of free movement". This reduction of the scope of the derogation must be interpreted so as to give it the maximum possible effect. Furthermore, the aim of Directive No 73/23 is to bring about "complete harmonization" and goes further than "the positive assertion of the domestic law of the Member States" which is the typical objective of the approximation of laws. Directive No 73/23 purports "to have a direct bearing on the powers of the Member States", in particular by introducing a Community procedure for ' prohibiting, on grounds of safety, the placing of electrical equipment on the market. This kind of "Europeanization" usually entails a corresponding limitation of the powers of the Member States in the legislative and administrative fields as well as in the judicial field. This is also apparent in the procedure presented by Article 9 of Directive No 73/23 which provides for just this kind of Community supervision on the basis of which "recourse to Article 36 ceased to be justified"; "the appropriate checks must be carried out and the measures of protection adopted within the framework outlined by the harmonizing directive" (judgment of 5 October 1977 in Case 5/77, Carlo Tedeschi v Denkavit Commerciale Sri [1977] ECR at p. 1577). It is immaterial that in the case of Directive No 73/23 the review procedure is initiated after the Member State has prohibited the entry into circulation of certain equipment and that that procedure ends with mere recommendations or opinions of the Commission because if the Member State were to fail to comply with those recommendations or opinions the Commission could initiate the procedure prescribed by Article 169 and in this way 3589

7 JUDGMENT OF CASE 815/79 the procedure of Article 9 would attain its objectives, namely: (1) to bring to the notice of the other Member States the unilateral prohibitions of certain Member States; (2) to arrange co-operation on a large scale between Member States and the Community institutions on a question of interest to the Community; (3) to remove illegal prohibitions. (2) Specific observations on the directive in question The accused in the criminal proceedings first point out that, according to the directive, equipment which satisfies the provisions of Articles 5, 6 and 7 complies with the safety provisions of Article 2. Furthermore, the presumption of conformity raised by Article 10 of the directive produces the effects "which usually flow from legal presumptions", that is to say that it not only transfers the burden of proof in civil proceedings but also produces effects in the field of domestic administrative law and of criminal law: In the field of administrative law it prevents the administrative authority from forbidding or preventing the placing on the market or the movement of electrical equipment which conforms with the standards, save in the case of the derogation provided for in Article 9. In the field of criminal law this "legal presumption not only transposes the burden of proof but also limits the scope for punishment". It is to be expected that the directive imposes such a restriction on the powers of the court since Community case-law has shown that the mere threat of punishment amounts to a deterrent preventing the free movement of goods. Such a restriction on the domestic criminal courts is all the more justified in the case in point as the threat of punishment may result in the equipment being completely unavailable. The accused in the criminal proceedings also consider that these conclusions are borne out by another argument based on the Italian implementing law. Article 6 of that Law allows "evidence to the contrary" intended to rebut the presumption of conformity in relation to electrical equipment only where the manufacturer has declared that the equipment conforms with the standards (the case covered by Article 8 of the directive), whereas Article 7 of the Italian Law, by referring to the other presumptions of conformity, raises a presumption which cannot be rebutted by any "evidence to the contrary". Finally, the accused in the criminal proceedings consider that their conclusions are also confirmed by an argument a contrario based on the directive. In fact if the latter had been intended to permit the criminal courts unilaterally to prohibit the placing on the market of electrical equipment it would have achieved legal fragmentation instead of organizing an approximation of laws. The restriction on the powers of the criminal courts is also confirmed by Article 9 of Directive No 73/23; that article, which provides that the placing on the market of electrical equipment may be prohibited unilaterally, is intended to refer only to national measures of a general nature, "such as 3590

8 CREMONINI AND VRANKOVICH provisions relating to all units of a specific type of electrical equipment". The complexity of the Community review procedure prescribed by Article 9 confirms such an interpretation because it is difficult to imagine such a procedure being used in the case of a measure having in view the withdrawal of an individual item of equipment. This interpretation is also confirmed by Article 9 of the Italian implementing law which entrusts the task of supervision to the Ministry for Industry; power is thus conferred on "an authority which is able to act at centralized (and therefore general) national level rather than on a limited scale (and, in the extreme case, with reference to a given, individual item of electrical equipment)". Furthermore, if the obligation to consult imposed by Article 9 of the directive were extended to protective measures of the national courts, it would have to be accepted that the Community review procedure had already been set in motion as a result of the decisions of the courts. But since this has not been the case it must indeed be accepted in the view of the accused that Article 9 of the directive is not concerned with protective measures and refers only to general prohibitions. Consequently, the national court cannot forbid the placing on the market of equipment which complies with Community standards because such a power was not provided for in Directive No 73/23. Having regard to all these observations the accused in the criminal proceedings propose that the questions referred to the Court be answered as follows: In the first place, the courts of the Member States (even criminal courts) ought not to be allowed to order directly that unilateral measures be adopted which limit the free movement of electrical products because of their presumed noncompliance with national laws for the prevention of accidents, where those products carry marks duly issued by institutions designated pursuant to the directive itself by the Member States concerned. The same reasoning applies where, in the case of the electrical equipment which it is thought does not comply with national provisions for the prevention of accidents, a technical report drawn up by the special body mentioned in Article 8 of Directive No 73/23 can be submitted if requested. In any event, the judicial measure must follow and not precede the administrative measure of the competent authorities adopted during or at the end of the procedure prescribed by Article 9 of the said directive. The arguments developed above also apply where the court proposes to base its reasons for holding that equipment does not comply with the national laws for the prevention of accidents on domestic provisions relating to construction. B Observations of the Commission In its preliminary observations the Commission takes the view that the measure "by which the Pretura di Como initiated the criminal proceedings in question is certainly inconsistent with the above-mentioned judgment of the Court in Case 123/76". Furthermore, the statement of the grounds upon which the order of the Pretura making the reference is based leads to the view that, as far as the trial judge is concerned, the 3591

9 JUDGMENT OF CASE 815/79 main problem is that of the conflict between Community law provisions contained in a directive and the earlier provisions of domestic law contained in legislation and not that of determining the effect of the directive. According to the Commission, such conflicts may be regarded as having been resolved since the above-mentioned Simmenthal judgment and the judgment of 5 April 1979 in Case 148/78, Pubblico Ministero v Tullio Ratti [1979] ECR Before answering the questions set out in the order making the reference the Commission first of all considers the scope of Directive No 73/23 and then the provisions of the directive the interpretation of which has been requested and finally the Italian law implementing Directive No 73/23. (1) The scope of Directive No 73/23 The Commission draws attention first of all to the fact that the provisions of the directive are described in the "Facts and issues" of the above-mentioned judgment of the Court in Case 123/76, and that the main principle governing Directive No 73/23 is the abolition of trade restrictions by harmonizing and establishing the safety standards (provided for in Article 2) with which manufacturers must comply and by requiring Member States to ensure that stricter safety requirements than those laid down in Article 2 are not imposed by electricity supply bodies for connexion to the grid, or for the supply of electricity to users of electrical equipment (Article 4 of the directive). The second principle is that the manufacturer or importer has the right to prove that the electrical equipment complies with the safety objectives by reference : either to harmonized standards which should be drawn up in accordance with a Community procedure (as provided for in Article 5 of the directive) ; or, in the absence of harmonized standards, to international standards (as provided for in Article 6 thereof); or, where neither harmonized standards nor international standards published in accordance with the conditions laid down in Article 6 thereof are in existence, to national standards (as provided for in Article 7 thereof); or, if there are no harmonized, national or international standards, or if equipment does not infringe such standards if they exist, to the fact that the manufacturer or importer may submit a report drawn up by one of the national bodies referred to above (cf. Article 8 (2)). The Commission states that, since reference to all those standards is optional, "corresponding standards cannot be mandatory and are therefore no more than mere presumptions". Finally, the third principle governing Directive No 73/23 implies that every exception to the rule of free movement introduced by a particular Member State shall be the subject-matter of a Community procedure under the control of the Commission. (2) The provisions of the directive which the national court has requested the Court to interpret The Commission, having pointed out that Articles 2 and 3 lay down "on the one hand, the safety objectives at a Community level with which it is obligatory to comply when manufac- 3592

10 CREMONINI AND VRANKOVICH turing electrical equipment for the common market and, on the other hand, the right to offer for sale electrical equipment manufactured in accordance with the said safety objectives" and that "the Court has confirmed in paragraph 11 of its decision in the above-mentioned Case 123/76 the mandatory effect of the said articles", goes on to state more clearly the scope of Articles 7, 8, 9 and 10, maintaining that the questions formulated by the court making the reference are concerned primarily with the interpretation of those articles. Those four articles comprise the four obligations prescribed by the machinery set up by the directive to ensure that Member States comply with the guarantees laid down for the purpose of safeguarding users and trade. (a) The first obligation: Article 7 According to the Commission the Member States are obliged to accept as evidence that equipment complies with the safety objectives references to the technical requirements of a Member State. Consequently the technical requirements of the importing Member State even if at one time they were unconditional and mandatory are now no more than mere presumptions and therefore inapplicable to imported products which offer equivalent guarantees according to the standards in force in other Member States. This rule, which is clearly formulated in Article 7 of the directive, merely gives expression to one of the fundamental principles of the free movement of goods, "according to which products lawfully manufactured and offered for sale in one Member State must be able to be marketed in all the Member States" (see judgment of 20 February 1979 in Case 120/78 [1979] ECR 649). (b) The second obligation: Article 10 According to the Commission the Member States are bound to accept the marks denoting conformity and the certificates of conformity mentioned in Article 10 of the directive as sufficient evidence of compliance with the technical requirements mentioned in Article 7. The said Article 10 gives expression to the principle of the equivalence of guarantees (see judgment of 15 December 1976 in Case 35/76 Simmenthal [1976] ECR 1887). Consequently, Article 10 of the directive imposes the obligation on each Member State to recognize on a basis of reciprocity marks denoting conformity and certificates of conformity established by the competent bodies of the other Member States in accordance, with the procedure laid down in Article 10 (2). (c) The third obligation: Article 8 The Member States have to allow importers the opportunity to prove that their goods comply with the objectives of Article 2. That obligation reflects the inability of the law to regulate the whole field of standardization and its purpose is to maintain the dynamism of the electrotechnical industry and to ensure that its progress is not checked. But at the same time that requirement is tempered and conditioned by the need to comply with measures aimed at protecting the health and guaranteeing the safety of users and that is why Article 8 (2) established an administrative 3593

11 JUDGMENT OF CASE 815/79 procedure which takes account of the principle that all parties have the right to be heard for the purpose of settling any disputes concerning compliance with the safety objectives referred to in Article 2 of the directive. And it is only after having had recourse to and exhausted all avenues of administrative inquiry that the various legal orders may institute criminal proceedings against the manufacturer or importer. The Commission also points out that the Court clearly stressed in paragraph 10 of its decision in the above-mentioned Case 123/76 the need to adopt the requisite measures in good time so that "... Articles 5 to 8 of the directive shall apply fully and immediately in the cases to which they relate" and that a Member State is precluded from relying upon any failure by it to fulfil its obligations under the Treaty against persons who have complied with the directive. (d) The fourth obligation: Article 9 According to the Commission the Member States are obliged to make any prohibition on the placing on the market and every restriction on the free movement of electrical equipment subject to the ad hoc procedure prescribed by Article 9 of the directive. Under that procedure a Member State which adopts measures involving restrictions on trade (whether direct or indirect) is under an obligation to inform all those concerned immediately, indicating the grounds for its "national" decision. According to the Commission compliance with the procedural and formal requirements prescribed by Article 9 is a precondition for the validity of national measures which derogate from the directive and this proposition follows from the above-mentioned judgment in Ratti. The Commission states that it is not only a question of abiding by purely formal requirements and that the purpose of the procedure laid down by Article 9 is to protect the health of all EEC users. If this procedure is to function properly it is the executive which must decide upon the imposition of prohibitions since the procedure is administrative in character and expression is given to the intentions of the Member States by the administrative authorities and not by the national courts. Furthermore, the reference in Article 9 (1) of the directive to Article 7 introduces "transparency in relation to national laws and gives each Member State the right to draw attention to 'loopholes' in the legislations of the other Member States". On the basis of these considerations the Commission believes that the primary function of the safeguard clauses introduced into the harmonization directive is to: bring the derogative powers provided for in Article 36 of the Treaty within the ambit of a thoroughgoing Community procedure which aims at protecting the health and safety of all Community nationals; create a forum enabling each Member State to express its opinion on the legality and advisability of the derogations introduced by a Member State ; resolve at Community level the problems which arise at national level in connexion with the implementation of the directive. Consequently national courts have punitive powers only "in relation to 3594

12 CREMONINI AND VRANKOVICH measures restricting the market implemented by the competent administrative authorities as preventative measures" in accordance with the procedure laid down in Article 9 of the directive. The Commission concludes this section by maintaining that these four articles confer on individuals absolute rights which domestic courts must protect. (3) The Italian Law implementing Directive No 73/23 The Commission maintains that Law No 791 which is designed to implement the directive in Italy does not achieve the complete and unconditional implementation of the directive. Thus the derogation provided for by Article 10 of that Law is too vague because it does not state that the requirements of the DPR No 547 are no more than mere presumptions and because it leaves Italian law virtually unchanged as compared with powers and exclusive jurisdiction to adopt any protective measures on the Ministry for Industry, Trade and Craft Trades. In this connexion the Commission asks "why the Italian court does not consider that it is bound by the specific provisions of Article 9 of Law No 791" and considers "that the Court should determine as a matter of urgency" the question of the powers of the administrative or judicial bodies which may have recourse to the safeguard clause, especially as according to a complaint made in June 1978 by a Community manufacturers' association "at least 149 restrictions" have been imposed by the Italian authorities (administrative and judicial) without the procedure prescribed by Article 9 of the directive ever being complied with. On this ground the Commission initiated a procedure under Article 169 for infringement of that article by sending on 27 July 1979 a registered letter to Italy and, since it did not receive a complete explanation from the Italian Government, it delivered a reasoned opinion on the matter on 4 March Furthermore, when Article 10 of that Law confirms the validity of the requirements of the DPR No 547 concerning the installation of electrical equipment it lays down conditions which are more restrictive than those provided for by the directive. (4) Replies to the questions referred by the Pretura di Como The Commission submits that the questions formulated in the order making the reference should be answered as follows: Finally the Commission takes the view that it is from the wording of Article 10 that the Italian courts claim to derive their power to adopt measures restricting the free movement of goods without abiding by the procedure of Article 9 of the directive and in spite of Article 9 of Law No 791 which confers supervisory "It is clear from Directive No 73/23/EEC taken as a whole that Member States may not maintain in force or introduce mandatory national provisions which impede, whether directly or indirectly for example, by insisting that requirements as to construction which run counter to the 3595

13 JUDGMENT OF CASE 815/79 objectives of the directive are complied with the placing on the market of domestically manufactured or imported electrical equipment which fulfils the conditions prescribed by Articles 2, 3, 7, 8 and 10 of the directive. It is clear from Directive No 73/23/EEC taken as a whole and in particular from Article 7 that, without prejudice to the provisions of Article 9, Member States may not, whether directly or indirectly, impede the free movement of electrical equipment bearing marks or accompanied by certificates of conformity which have been duly established by the competent bodies in the other Member States within the meaning of Article 10 of the directive. The national court which is called upon to apply within the context of its own powers Articles 2, 3, 7, 8 and 10 of Directive No 73/23/EEC must ensure that those provisions are fully and directly applied and must not in the particular case apply on its own initiative any contrary provision of national legislation, even if enacted subsequently. The derogating measures provided for by Article 9 of Directive No 73/23/EEC are compatible with Community law only if they have been adopted by the competent national administrative body in accordance both with the procedure laid down and the mandatory formal requirements prescribed by Article 9 of the said directive. Once such measures have been adopted it is for the national court to ensure that they are observed in specific cases". C Observations of the Italian Government The Italian Government, after having recalled the Italian legislation applicable in this case, maintains that the Italian court is constrained to interpret the provisions of the 1977 Law implementing the directive and not the directive itself which no longer has any binding force and effectiveness as Italy has adopted the necessary provisions in order to comply with that directive. Consequently it is not very consistent with the system upon which the relationship between the Community legal order and the national legal orders is based for a national court to ask the Court of Justice to interpret a directive which it does not have to apply and which it may not apply since that directive has already been "incorporated" into the national legal order. According to the Italian Government the court making the reference has simply stated that "the interpretation of the directive will also permit the national legislation to be correctly interpreted". In these circumstances that directive is only submitted to the Court of Justice as an historical antecedent and that Court is called upon not to express an "opinion" but to furnish "the material" for an exercise in interpretation which remains entrusted to the national court alone. Such an action by the Court of Justice would in the end diminish its role. It is true that the Court of Justice has held in certain cases (judgment of 20 May 1976 in Case 111/75 Quirino Mazzolai [1976] ECR 657) that it had jurisdiction to interpret a directive in implementation whereof a national law 3596

14 CREMONINI AND VRANKOVICH had already been adopted. But such references for an interpretation have been held to be admissible in cases where in contradistinction to the case in point it was specifically a question of achieving a uniform application of Community directives. The "direct effect" mentioned by the court a quo is limited to the case where the Member State fails to comply with the directive by, for example, not adopting within the period specified the implementing measures required by the directive (cf. the above-mentioned Ratti case). In this case, since the Member State has complied with the directive, the Court of Justice should hold that it does not have jurisdiction or at least that the questions referred to it are inadmissible. Nevertheless the Italian Government has considered the questions referred to the Court by the Pretore. On the strength of these observations the Italian Government argues that for Article 3 of the directive to be applied it is not enough that marks have been placed on goods and this is confirmed by the sixth recital of the preamble to the directive which states that the importing Member State should recognize such marks as elements of proof and it ends by expressing the opinion that, although Community or international standards (provided for in Articles 5 and 6 respectively) prevail over conflicting national standards, national standards cannot prevail over other conflicting national standards; consequently, according to the Italian Government, the smoothing irons imported into Italy by the accused in the criminal proceedings do not comply with the Italian standards which have not been abolished or rendered inapplicable by Belgian and German standards. The third and fourth questions The first two questions referred to the Court The Italian Government is of the opinion that in order to answer these first two questions Articles 5 to 7 as well as Article 10 should first be construed. It points out that Mr Advocate General Warner observed in his opinion delivered in the above-mentioned Case 123/76 that Articles 6 and 7 of Directive No 73/23 are transitional measures in anticipation of the adoption of harmonized Community standards as provided for by Article 5 and that "Probably Article 7 means that the importing Member State is to accept equipment complying with the standards of the manufacturing State unless the safety level afforded by these falls short of what is secured by its own law". According to the Italian Government this reasoning is even more valid in these circumstances. After pointing out that Article 6 of the Italian Law which corresponds to Article 8 of Directive No 73/23 is in its view much more liberal than the latter, it submits that it "stands to reason" that the restriction provided for in Article 7 in fine (the requirement of equivalent safety) "applies a fortiori in the case referred to in Article 8 of the directive", since a mark of conformity no longer has to be affixed but a report merely has to be drawn up and that report carries in law less weight than a mark of conformity. For the Italian Government the problem is not so much evidential as a problem of the compatibility of technical standards. Therefore "even if Article 8 of Directive 3597

15 JUDGMENT OF CASE 815/79 No 73/23 applies, the domestic technical standards of the Member States where the equipment is manufactured cannot prevail over those of the importing Member State which conflict with them". Lastly, the Italian Government states that no such report has been submitted in this case and that the argument relates only to the problem of the hypothetical possibility of submitting one. General questions The Italian Government is of the opinion that the five questions raise two other general problems. 1. In substance, do the rules only bind the administrative authorities or do they also bind the national courts? 2. Are the national courts bound by a kind of "administrative prerequisite"? On the first point the Italian Government is of the opinion that, since national standards have equal force inter se, there is no derogation from Italian standards which may be applied by the administration and the courts. Furthermore, since the implementing law has removed the reference to the administrative authorities contained in Articles 5, 6, 7, 8 and 10 of the directive, the Italian court may apply the national rules with the exceptions constituted by the harmonized international standards. The Italian Government submits that the second point concerns national law alone since Article 9 of the implementing Law states that the Minister may prohibit the placing on the market of electrical equipment which does not comply with the safety standards whereas the directive does not confer any administrative power of this kind, which moreover has not been exercised and is not at issue in this case. The directive merely imposes upon Member States the obligation to provide information, and this obligation does not have any effect on the judicial functions of the national courts, with the result that the administration complements but does not take the place of the judiciary. Consequently the Italian Government suggests that the Court should rule as follows : "The Court of Justice may not be asked to give a ruling which interprets a Community directive where, since the latter is not directly applicable, the sole purpose of the above-mentioned ruling is to provide the national court with guidance as to the interpretation of the provisions whereby the Member State has complied with the directive; As a subsidiary matter, Articles 7, 8 and 10 of Directive No 73/23/EEC must be interpreted as meaning that 'marks of conformity' affixed to electrical equipment and 'reports' drawn up on the basis of technical standards in the Member State where the equipment was manufactured do not prevent the application of the stricter technical standards of the importing Member State by the administrative authorities and national courts of that State". D Observations of the Government of the United Kingdom Questions 1 and 2 The Government of the United Kingdom submits two preliminary observations : 1. Article 10 of the directive provides that the authorities of the Member States shall accept that there is a 3598

16 CREMONINI AND VRANKOVICH presumption of conformity with the provisions of Articles 5, 6 and 7 where a mark has been placed on the equipment denoting conformity. That mark must denote conformity with the safety provisions of a standard; it is not enough that the body establishing the mark considers that the equipment is safe without reference to a standard. conditions laid down in Articles 5, 6, 7 and 8 and does not therefore apply where Article 7 provides otherwise. This is explained by the fact that Article 7 is only a transitional provision which remains in force pending the harmonization by Community or international standards provided for in Articles 5 and This presumption is a rebuttable one but it places the burden of proof on the authorities. Thus if the two conditions are satisfied free movement is obligatory. But if the equipment fails to satisfy one of these conditions free movement is not obligatory. The United Kingdom follows up these two preliminary points with the submission that the first question may be recast as follows: "In a case in which equipment bears an appropriate mark denoting conformity with the safety provisions of a standard to which Article 7 applies and the presumption to that effect is not rebutted, what is the obligation of the importing State under Article 7?" According to the United Kingdom, the meaning of the directive is perfectly clear on this point. For the equipment to comply with Article 2 two conditions must be satisfied: first, the equipment must comply with the safety standards existing in the Member State where it was manufactured and, secondly, the equipment must ensure a safety level equivalent to that required by the importing Member State. It is not enough that only one of those two conditions is satisfied for Article 3 which contains the obligation to allow free movement to apply; in fact that article is expressly subject to the It is only in the first case, where Article 7 imposes upon the importing Member State the obligation to allow free movement of electrical equipment, that the second question arises. According to the Government of the United Kingdom the second question consists of two elements. The first is whether, in the case of equipment which, in accordance with Article 7, is to be regarded as complying with the provisions of Article 2, the authorities of a Member State may take action to prohibit its marketing and free circulation without going on to apply the procedure laid down in Article 9. The United Kingdom does not have a concluded view on this point. It considers that it may be argued that Article 9 is a "safeguard clause" such as appears in many directives under Article 100 of the Treaty. On this argument the procedure of Article 9 must be used. On the other hand, it may be argued that Article 9 is concerned with regulatory measures relating to classes of equipment, not with routine enforcement or the directive and any national implementing measures in respect of individual items of equipment. On that second argument, routine enforcement by the authorities of a Member State 3599

17 JUDGMENT OF CASE 815/79 should not involve the length and complexity of the procedure in Article 9. safety depends on the facts of the case; and The second element of the question referred by the Pretura Penale relates to the general or particular nature of the prohibition on importation imposed by an importing Member State. The United Kingdom is of the opinion that a Member State may impose a prohibition not only in respect of a class of equipment but also in particular cases, subject to Articles 7 and 30 of the Treaty, because the purpose of Article 9 is to prohibit the marketing of equipment which is unsafe. Moreover it would be impossible for a Member State to impose a prohibition if, before it could do so, it had to make a generally applicable law. The Member State must therefore be free to take immediate emergency action, it being understood that it ought to make a generally applicable law as soon as possible. Consequently the British Government suggests that the first two questions referred by the Pretura Penale might be answered as follows: "(a) Article 10 of Directive No 73/23/EEC creates only a rebuttable presumption that equipment bearing an established mark denoting conformity with the safety provisions of a standard in force in the Member State of manufacture does so conform; (b) whether Article 7 obliges the authorities of a Member State to regard such equipment as complying with the provisions of Article 2 in relation to a particular aspect of (c) where, on the facts, Article 7 does impose such an obligation then, if a Member State which imposes a further prohibition on marketing and free circulation must follow the procedure in Article 9, it may none the less impose the prohibition in particular cases and is not obliged to make a generally applicable law." Questions 3 and 4 Since these questions are principally concerned with the interpretation of Article 8 of the directive, the United Kingdom submits that this article is to be "read as a whole" and that it is not correct to read Article 8 (1) as imposing an obligation upon Member States whether or not a report is submitted under Article 8 (2). In fact Article 2 of the directive is insufficiently precise for it to be possible for a Member State to determine what constitutes compliance with its provisions unless further guidance is given. Thus it is necessary for there to be machinery to establish what constitutes compliance with Article 2. Only if the equipment does not satisfy those national legislative provisions is Article 8 (2) to be applied. Thus the manufacturer or importer who is unable to have recourse to one of the standards laid down by Articles 5, 6 and 7 of the directive may be prevented from marketing that equipment unless he 3600

18 submits a report. Consequently, the United Kingdom proposes that the third question should be answered as follows: "(a) If no report is submitted under Article 8 (2), Article 8 (1) places no obligation on the authorities of a Member State to permit the marketing and free circulation of equipment where it does not comply with the national law of the Member State. (b) The authorities of a Member State are not obliged to await such a report before taking action." Having regard to this negative answer to the third question the United Kingdom is of the opinion that the fourth question does not fall to be answered. It simply points out that the procedure prescribed by Article 9 has no role to play when Articles 5, 6, 7 and 8 (2) do not apply, because on that assumption the Member State which imports the equipment is under no obligation to allow free movement as Article 2 of the directive merely enjoins Member States not to permit the marketing of non-complying equipment. Consequently the United Kingdom submits that the fourth question be answered as follows: "Article 9 plays no role where Articles 5, 6 and 7 do not apply and no report is submitted under Article 8 (2)." The fifth question According to the United Kingdom the fifth question asks whether any of the CREMONINI AND VRANKOVICH provisions of the directive referred to in the first five questions has direct effect. Before considering each provision in detail the United Kingdom's immediate reply is that in its opinion none of them does. Articles 2 and 3 do not have direct effect because the terms in which they are expressed are too general. Annex I to the directive simply lists the objectives but does not prescribe the precise requirements with which equipment must comply. It expressly contemplates that further measures are required to give effect to Article 2 (and hence to Article 3, which depends on Article 2), whether by the drawing-up of harmonized standards under Article 5 or the publication of safety provisions under Article 6 or, in default thereof, by national measures to implement the directive under Article 13. At the end of this passage on Articles 2 and 3 the United Kingdom expresses the view that Directive No 73/23 differs from Directives Nos 73/173 and 73/728 in respect of which the Court decided in the above-mentioned judgment in Ratti that they must have direct effect. Article 7 does not have direct effect because it is not unconditional and leaves a measure of discretion to the Member States. Accordingly there is no unqualified right to import equipment which satisfies the provisions of Article 7. With regard to Article 8 the United Kingdom submits that, since Article 2 does not have direct effect, then a fortiori Article 8, which refers to it, does not either. In addition further national measures must be introduced to give effect to Article 8. Article 9 cannot have direct effect since it relates only to the relationship between Member States and between them and the Commission. 3601

19 JUDGMENT OF CASE 815/79 With regard to Article 10 the United Kingdom simply repeats that, since the presumption raised in that aniele is rebuttable, it is consequently not unconditional and does not therefore have direct effect. In conclusion, the United Kingdom's suggested answer to the fifth question is that "none of the provisions of Directive No 73/23/EEC referred to in the first four questions has direct effect". E Observations of the Netherlands Government By way of preliminary observation the Netherlands Government expressed the view that the provisions of Directive No 73/23 should be interpreted in the light of the directive viewed as a whole. According to the Netherlands Government the aim of that directive is to remove technical barriers to trade in electrical equipment by providing that any equipment which does not endanger persons, domestic animals and property must be admitted to the markets of the Member States. If such safety is ensured in one of the ways indicated in Articles 5, 6, 7 and 8, the Member States may not prevent electrical equipment being placed on the market. That obligation to allow free movement provided for in Article 3 of the directive may seem to be counterbalanced by the procedure provided for in Article 9 thereof. But this contradiction is only apparent because the two articles reconcile the two essential requirements, safety and free movement. With regard to the problem of the direct effect of certain articles of the directive the Netherlands Government submits that "Articles 2 and 3 in particular satisfy the conditions on the basis of which the Court finds that a provision has direct effect". The first question The Government of the Netherlands points out in the first place that a mark within the meaning of Article 10 of the directive only raises a presumption of conformity with one of the standards referred to in Articles 5, 6 and 7 and that only actual compliance with those standards can permit free movement and prevent any national provision restricting the latter. Thus, if equipment complies with a standard in the country of origin as provided for in Article 7, it is also necessary to check whether that standard ensures a level of safety equivalent to that set by the standards of the importing Member State. On the other hand, "a mere finding that the standard complied with differs from that of the country of destination is not as such sufficient to permit the conclusion that an equivalent level of safety has not been ensured". Such a conclusion can only be derived from specific evidence based on facts, especially as the difference between the two standards is a precondition of Article 7. And the Netherlands Government repeats that by virtue of Article 3 of the directive, if equipment satisfies the provisions of Articles 5, 6, 7 or 8 of that directive, the free movement of that equipment can no longer be impeded by a national measure and that it is immaterial from what authority that restrictive measure emanates. The second question The Netherlands Government is of the opinion that, since Article 9 is an exception to Article 3, it must be strictly interpreted. Thus it submits that Article 9 does not permit a Member State to substitute its own standards for any of the provisions referred to in Articles 5, 6 and 7 because in such circumstances Article 3 would lose its purpose. This implies that the derogation provided for in Article

20 CREMONINI AND VRANKOVICH may only be applied if it is proved that the equipment in question is an actual and pressing danger, the mere finding that the equipment does not comply with national standards not being in itself a reason for allowing the derogation provided for in Article 9 to be applied. Consequently even the first measures adopted in the course of judicial proceedings should be regarded as derogative measures within the meaning of Article 9 of the directive and should therefore be notified to the Commission and the Member States in accordance with the procedure prescribed by the said Article 9. electrical equipment may be impeded until a report within the meaning of Article 8 (2) of the directive has been drawn up. But that challenge differs from the measures mentioned in Article 9 (1). In fact under Article 9 equipment complies with the requirements of a standard but there is a specific finding that an item does not satisfy conditions laid down in Article 2 whereas, under Article 8, a Member State merely disputes the statement of a manufacturer. Consequently the Netherlands Government submits that the application of Article 8 (2) makes the application of Article 9 unnecessary. The third question Even if equipment does not fulfil the conditions mentioned in Articles 5, 6 or 7 it must nevertheless be allowed access to the market if it satisfies the safety requirements, in accordance with Article 8 (1). Article 8 (2) permits the national authorities, and consequently the courts, on the basis of a finding that equipment does not comply with a provision of national law, to dispute the safety of the said equipment within the meaning of Article 2 of the directive. Accordingly a Member State may deny such equipment access to the home market. Nevertheless, the manufacturer or importer may instruct a body notified in accordance with Article 11 of the directive to draw up a report within the meaning of Article 8 (2), the conclusions whereof must be accepted by the importing Member State. The fourth question The Netherlands Government is of the opinion that the free movement of The fifth question According to the Netherlands Government the fifth question is not clear. If the Pretore wishes to ascertain to what extent the various provisions of the directive have direct effect, the Netherlands Government "considers that it has already made known its point of view in a general way". But assuming that the Pretore intended to ask the Court to what extent the national provisions relating to the connection to the grid of electrical equipment also fall within the provisions of Articles 2 and 3 of the directive, it points out that the installation and utilization of electrical equipment constitute the final use to which the latter is put, that every barrier to that use is in fact an obstacle to trade and that the safety requirements provided for in Article 2 of the directive also refer to the installation of electrical equipment. Furthermore, in order that the free movement ensured by Article 3 of the directive does not become in practice an illusion, Article 4 of the said directive enjoins Member States to 3603

21 JUDGMENT OF CASE 815/79 ensure that electrical supply bodies do not impose stricter safety requirements for connexion to the grid than those laid down in Article 2. Accordingly the Netherlands Government is of the opinion that the fifth question may be answered as follows: "Article 3 of the directive also forbids Member States to impede the installation of electrical equipment which satisfies the provisions of the directive or to prevent that installation". Ill Oral procedure At the sitting on 25 June 1980 F. Capelli and G. M. Ubertazzi appeared for the accused in the criminal proceedings, A. Abate for the Commission and Th. Le Roy and B. Botte for the Government of the French Republic. The accused in the criminal proceedings and the Commission developed the arguments which they had stated in their written observations and submitted their comments on the arguments contained in the observations of the other interveners submitted pursuant to Article 20 of the Statute of the Court of Justice. The Commission applied for and obtained the report of an expert, Dr R. Winckler, in his capacity as former President of the European Electro-technical Standardization Committee. The French Government, which did not submit written observations, put forward the following arguments: Two coherent systems of interpretation of Directive No 73/23 are proposed: either the provisions of Articles 2 and 3, which are directly applicable, are sufficiently precise for all harmonization difficulties to be resolved by objective reference to them by resort to the arbitration of experts; or the view is taken that this directive is only a stage in harmonization and that the objectives of Article 2 will only be transformed step by step into mandatory standards and that, in the meantime, in those fields where still only national standards apply the directive has only raised a presumption, which is not irrebuttable, that these national standards conform to these objectives; on this second assumption the Member States may still under certain circumstances enforce their national safety standards. The first hypothesis cannot be upheld as such, because the harmonization which has not been entirely achieved by the Council would be carried out by experts on the basis of the least strict legislation, which would lead to harmonization by elimination so that, although freedom of movement would certainly benefit, in the end products with questionable safety features would be put into circulation. It would therefore be desirable, in the absence of complete harmonization, to leave the national authorities some supervisory powers, whilst taking care not to allow the introduction of concealed restrictions on trade. Article 7 of the directive provides for nonharmonized national standards to continue in force, and the Community legislature, in order to prevent arbitrary discrimination, has established a mandatory procedure for concerted action and conciliation described in Article 9 in which the Commission participates. This amicable procedure cannot in fact force a Member State to withdraw its prohibitions on the placing on the market of any electrical equipment if it considers it to be justified in the light of the safety requirements which it alone remains competent to lay down in the absence of Community harmonization. If the Commission is of the opinion that the conduct of a 3604