CELEX: 62021CJ0653
Reference for a preliminary ruling
Internal market
Harmonisation of the laws of the Member States relating to machinery, electrical equipment and pressure equipment
Directive 2006/42/EC
Directive 2014/35/EU
Directive 2014/68/EU
‘CE marking’
Imposition, by national regulations, of requirements additional to the essential safety requirements laid down by those directives
Conditions
National safety regulations to counter the risks of fire and panic in establishments open to the public

This request for a preliminary ruling concerns the interpretation of Article 6(1) and Article 7(1) of Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC (OJ 2006 L 157, p. 24), point 14  of Article 2  and Article 4 of Directive 2014/35/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of electrical equipment designed for use within certain voltage limits (OJ 2014 L 96, p. 357), of point 31  of Article 2  and Article 3(2) of Directive 2014/68/EU of the European Parliament and of the Council of 15 May 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of pressure equipment (OJ 2014 L 189, p. 164) and of Regulation (EU) No 517/2014 of the European Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases and repealing Regulation (EC) No 842/2006 (OJ 2014 L 150, p. 195).
The request has been made in proceedings between the Uniclima association and the Ministre de l’Interior (Minister for the Interior, France) concerning the lawfulness of the order of 10 May 2019 amending the order of 25 June 1980 approving general safety regulations to counter the risks of fire and panic in establishments open to the public (ERP) (JORF of 17 May 2019, text No 20).

Legal context

European Union law

Regulation No 517/2014
Article 1 of Regulation No 517/2014 provides:
‘The objective of this Regulation is to protect the environment by reducing emissions of fluorinated greenhouse gases. Accordingly, this Regulation:
(a)      establishes rules on containment, use, recovery and destruction of fluorinated greenhouse gases, and on related ancillary measures;
(b)      imposes conditions on the placing on the market of specific products and equipment that contain, or whose functioning relies upon, fluorinated greenhouse gases;
(c)      imposes conditions on specific uses of fluorinated greenhouse gases; and
(d)      establishes quantitative limits for the placing on the market of hydrofluorocarbons.’

Directive 2014/68
According to recitals 37 and 62 of Directive 2014/68:
‘(37)      Pressure equipment and assemblies should, as a general rule, bear the CE marking …, [which indicates] the conformity of pressure equipment or assemblies [and] is the visible consequence of a whole process comprising conformity assessment in a broad sense. … Rules governing the affixing of the CE marking should be laid down in this Directive.
…
(62)      … the objective of this Directive …  [is] to ensure that pressure equipment or assemblies on the market fulfil the requirements providing a high level of protection of health and safety of persons and protection of domestic animals or property while guaranteeing the functioning of the internal market …’
Article 1 of that directive provides:
‘1.      This Directive shall apply to the design, manufacture and conformity assessment of pressure equipment and assemblies with a maximum allowable pressure PS greater than 0.5 bar.
2.      This Directive shall not apply to:
…
(f)      equipment …  covered by one of the following Directives:
(i)      Directive 2006/42 …
…
(iii)      Directive 2014/35 …
…’
Article 2 of that directive provides:
‘For the purposes of this Directive, the following definitions shall apply:
…
(6)      “assemblies” means several pieces of pressure equipment assembled by a manufacturer to constitute an integrated and functional whole;
…
(15)      “making available on the market” means any supply of pressure equipment or assemblies for distribution or use on the [European] Union market in the course of a commercial activity, whether in return for payment or free of charge;
…
(17)      “putting into service” means the first use of pressure equipment or an assembly by its user;
…
(31)      “CE marking” means a marking by which the manufacturer indicates that the pressure equipment or assembly is in conformity with the applicable requirements set out in Union harmonisation legislation providing for its affixing;
…’
Article 3 of that directive, entitled ‘Making available on the market and putting into service’, provides, in paragraphs 1 and 2:
‘1.      Member States shall take all appropriate measures to ensure that pressure equipment and assemblies may be made available on the market and put into service only if they satisfy the requirements of this Directive when properly installed and maintained and used for the purposes for which they are intended.
2.      This Directive shall not affect Member States’ entitlement to lay down such requirements as they may deem necessary to ensure that persons and, in particular, workers are protected during use of the pressure equipment or assembly in question provided that this does not mean modifications to such equipment or assembly in a way not specified in this Directive.’
The first subparagraph of Article 5(1) of Directive 2014/68 provides:
‘Member States shall not, on grounds of the risks due to pressure, prohibit, restrict or impede the making available on the market or the putting into service under the conditions specified by the manufacturer of pressure equipment or assemblies which comply with this Directive.’
Article 40 of that directive, entitled ‘Procedure for dealing with pressure equipment or assemblies presenting a risk at national level’, provides:
‘1.      Where the market surveillance authorities of one Member State have sufficient reasons to believe that pressure equipment or assemblies covered by this Directive present a risk to the health or safety of persons or to domestic animals or property, they shall carry out an evaluation in relation to the pressure equipment or assembly concerned covering all relevant requirements laid down in this Directive. …’
Where, in the course of the evaluation referred to in the first subparagraph, the market surveillance authorities find that the equipment or assembly does not comply with the requirements laid down in this Directive, they shall without delay require the relevant economic operator to take all appropriate corrective actions to bring the pressure equipment or assembly into compliance with those requirements, to withdraw the equipment or assembly from the market, or to recall it within a reasonable period, commensurate with the nature of the risk, as they may prescribe.
…
4.      Where the relevant economic operator does not take adequate corrective action within the period referred to in the second subparagraph of paragraph 1, the market surveillance authorities shall take all appropriate provisional measures to prohibit or restrict the equipment’s or assembly’s being made available on their national market, to withdraw the equipment or assembly from that market or to recall it.
The market surveillance authorities shall inform the [European] Commission and the other Member States, without delay, of those measures.
…’
Article 41 of that directive, entitled ‘Union safeguard procedure’, provides, in paragraph 2 thereof:
‘If the national measure is considered justified, all Member States shall take the necessary measures to ensure that the non-compliant equipment or assembly is withdrawn from their market, and shall inform the Commission accordingly. If the national measure is considered unjustified, the Member State concerned shall withdraw that measure.’

National law
Article  CH 35, on equipment or installations using refrigerants, of the order of 25 June 1980 approving general safety regulations to counter the risks of fire and panic in establishments open to the public (ERP) (JORF of 14 August 1980), in its version resulting from the order of 10 May 2019 (‘the order of 25 June 1980’),  provides, in the first subparagraph of paragraph 3 thereof, entitled ‘Provisions applicable in the event of the use of flammable refrigerants’, that the provisions of the other subparagraphs of that paragraph ‘shall not apply to hermetically sealed equipment bearing the ‘CE marking’.
Those provisions include provisions prohibiting  the installation of dismountable connectors on pipes conveying flammable refrigerants, except for the connection of units;  provisions requiring that those pipes be protected against any risk of clean break and  that they be installed at a minimum height in relation to the ground;  provisions limiting the internal diameter of pipes conveying those refrigerants in their liquefied form;  provisions requiring the thermal insulation of units containing those refrigerants by certain classes of materials and provisions specifying the quantity of inflammable refrigerant that may circulate within the  equipment’s cooling circuits.

The dispute in the main proceedings and the questions referred for a preliminary ruling
Syndicat Uniclima asks the referring court, inter alia, to annul the first subparagraph of Article  CH 35(3) of the order of 25 June 1980, claiming that the condition which it imposes, namely that machinery, electrical equipment or pressure equipment must be hermetically sealed, constitutes an additional requirement to those laid down by Directive 2006/42, Directive 2014/35 and Directive 2014/68, even though that equipment bears the CE marking and therefore complies with the requirements of those directives. Consequently, that condition, in addition to infringing those directives, is also contrary to Articles 34 to 36 TFEU.
According to the referring court, it follows, in particular, from point 31 of Article 2 and Article 3(2) of Directive 2014/68 that, if equipment falling within the scope of that directive complies with the essential safety requirements which it prescribes, as attested by the affixing of the CE marking, that equipment may move freely on the EU market.
That court also notes that, under the first subparagraph of Article  CH 35(3) of the order of 25 June 1980, the safety requirements which that provision imposes on the use of flammable refrigerants in equipment installed in establishments open to the public do not apply to equipment bearing the CE marking, provided, however, that that equipment is ‘hermetically sealed’.
In those circumstances, the Conseil d’État (Council of State, France), decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Does the harmonisation required by Directives  [2006/42], [2014/35] and [2014/68] permit Member States to lay down safety requirements for the equipment governed by those directives, and if so under what conditions and within what limits, where those requirements do not entail any modification of equipment that is, as attested by the affixing of the “CE marking”, in conformity with the requirements of those directives?
(2)      Does the harmonisation required by them permit Member States to lay down, solely for use of that equipment in premises open to the public and in the light of specific fire safety risks, safety requirements which may entail the modification of equipment that, as attested by the affixing of the “CE marking”, is nevertheless in conformity with the requirements of those directives?
(3)      If the preceding question is answered in the negative, can it be answered in the affirmative if the safety requirements in question apply only where that equipment uses flammable refrigerants as alternatives to fluorinated greenhouse gases, in accordance with the objectives set out in Regulation No 517/2014 …, and, in addition, relate only to equipment which, although in conformity with the requirements of those directives, does not, having regard to the fire risk from the use of flammable refrigerants, offer the protection of being hermetically sealed?’

Consideration of the questions referred
The questions referred by the referring court concern the interpretation of Directives 2006/42, 2014/35 and 2014/68, all of which were adopted on the basis of Article 114 TFEU and contain equivalent provisions designed to harmonise the conditions under which equipment bearing the CE marking is made available on the market and put into service, so as to ensure not only the free movement of that equipment within the European Union but also a high level of protection of, inter alia, the health and safety of persons.
It is also apparent from Article 1(2)(f)(i) and (iii) of Directive 2014/68 that those three directives do not apply cumulatively. Thus, where equipment is covered by a directive specifically aimed at it, the other directives do not apply.
In the light of the foregoing, the questions referred for a preliminary ruling must be examined in the light of Directive 2014/68, bearing in mind that the interpretation of the provisions of that directive applies,
mutatis mutandis
, to the corresponding provisions of Directives 2006/42 and 2014/35.
By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(2) of Directive 2014/68, read in conjunction with point 31 of Article 2 and the first subparagraph of Article 5(1) thereof, must be interpreted as precluding national legislation which, in order to protect the health and safety of persons against risks of fire in premises open to the public, imposes on pressure equipment and assemblies using flammable refrigerants,  requirements which do not appear among the essential safety requirements laid down by that directive, for the purposes of the making available on the market or the putting into service of that equipment, even though that equipment bears the CE marking.
Under Article 1(1) thereof, Directive 2014/68 is to apply to the design, manufacture and conformity assessment of pressure equipment and assemblies with a maximum allowable pressure PS greater than 0.5 bar. Article 3(1) thereof provides, in essence, that Member States are to take all appropriate measures to ensure that pressure equipment and assemblies may be made available on the market and put into service, within the meaning of points 15 and 17 of Article 2 of that directive, only if they satisfy the requirements of that directive. Annex I to that directive thus sets out the ‘essential safety requirements’ which must be satisfied.
The first subparagraph of Article 5(1) of Directive 2014/68 states that Member States may not, on grounds of the risks due to pressure, prohibit, restrict or impede the placing on the market or putting into service, under the conditions specified by the manufacturer, of pressure equipment which complies with the provisions of that directive and bears the CE marking so as not to undermine the objective of harmonising the national provisions pursued by that directive, as set out in recital 62  thereof (see, as regards Directive  97/23/EC (OJ 1997 L 181, p. 1), which was repealed by Directive  2014/68, judgment of 10 February 2022,
DIMCO Dimovasili M.I.K.E.
, C‑499/20, EU:C:2022:93, paragraphs 22 and 25).
Under  point 31  of Article 2 of Directive 2014/68, read in the light of recital 37 thereof, ‘CE marking’ allows the manufacturer to indicate that the pressure equipment or assembly in question is in conformity with the applicable requirements set out in the EU harmonisation legislation providing for its affixing. Thus, that marking indicates the conformity of the equipment and assemblies with those requirements and is the visible consequence of a whole process comprising conformity assessment in a broad sense.
It follows that Member States may not impose, on equipment and assemblies bearing the CE marking, requirements additional to the essential safety requirements set out in Annex I to Directive 2014/68, for the purposes of placing on the market and putting into service such equipment and assemblies.
However, Article 3(2) of that directive recognises the Member States’ entitlement to lay down such requirements as they may deem necessary to ensure that persons, and in particular, workers are protected during use of the pressure equipment or assembly in question, provided that that does not mean modifications to that equipment or assembly  in a way not specified in  that directive. That provision must be interpreted as not precluding national legislation which imposes, during the installation or use of pressure equipment or assemblies, including those with CE marking, certain requirements aimed at ensuring the safety of persons, provided that that  legislation does not entail modifications to that equipment or assemblies and does not constitute a restriction prohibited by Article 34 and 36 TFEU (see, to that effect, judgment of 10 February 2022,
DIMCO Dimovasili M.I.K.E.
, C‑499/20, EU:C:2022:93, paragraphs 26  to 28).
In the present case, it is apparent from the information before the Court that the order of 25 June 1980 makes the use of equipment using flammable refrigerants, in establishments open to the public, subject to compliance with a number of requirements referred to in paragraph  12 above. However, the first subparagraph of Article  CH 35(3) of the order of 25 June 1980 makes the non-application of those requirements to equipment using flammable refrigerants bearing the CE marking subject to the condition that that equipment be hermetically sealed.
Such a condition does not, however, appear among the essential safety requirements laid down by Directive 2014/68, inter alia in Annex I thereto. As stated in paragraphs  24 and 25 above, additional requirements for the purposes of the making available on the market and the putting into service of equipment and assemblies bearing the CE marking are not covered by Article 3(2) of Directive 2014/68. Therefore, Member States cannot impose such additional requirements, whether or not they entail a modification of the equipment or assemblies concerned.
In those circumstances, contrary to what the French Government maintains, the Member States may not, including ‘solely for the use of that equipment in premises open to the public and having regard to specific fire safety risks’, impose, for the purposes of the making available on the market and the putting into service of that equipment, requirements additional to those laid down by Directive 2014/68. Such national requirements would amount to depriving the harmonisation measures laid down by that directive of their effectiveness.
Furthermore, it is true that the safeguard procedure, laid down, in particular in Articles 40 and 41 of that directive, and relied on, in that context, by the French Government, allows Member States to adopt measures relating to equipment and assemblies bearing the CE marking, where they identify equipment or assemblies which do not comply with the applicable provisions of EU law, or where there is a lacuna in those provisions, which could undermine the safety of persons, by requiring the Member States to inform the Commission promptly so that the latter can determine whether those measures are justified. However, that procedure takes place, by definition, after the equipment concerned has been made available on the market and put into service, and is therefore not capable of covering a provision such as the first subparagraph of Article  CH 35(3) of the order of 25 June 1980.
Lastly, it must be pointed out that the fact that that order amends the existing national legislation in order to take account of the requirements of Regulation No 517/2014, which provide for the reduction in the use of hydrofluorocarbons used, inter alia, in refrigeration equipment, air conditioning equipment and heat pumps, in order to reduce emissions of fluorinated greenhouse gases, is not capable of calling into question the interpretation of Article 3(2) of Directive 2014/68  set out in  paragraph 27  above. Although that regulation, pursuant to Article 1(b) thereof, imposes conditions on the placing on the market of specific products and equipment that contain, or whose functioning relies upon, fluorinated greenhouse gases, it does not govern the design, manufacture and conformity assessment of pressure equipment and assemblies, which fall within the scope of Directive 2014/68.
In the light of the foregoing, the answer to the questions referred is that Article 3(2) of Directive 2014/68, read in conjunction with point 31 of Article 2 and the first subparagraph of  Article 5(1) thereof, must be interpreted as precluding national legislation which, in order to protect the health and safety of persons against risks of fire in premises open to the public, imposes on pressure equipment and assemblies using flammable refrigerants, requirements which do not appear among the essential safety requirements laid down by that directive, for the purposes of the making available on the market or the putting into service of such equipment and assemblies, even though they  bear the CE marking.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Eighth Chamber) hereby rules:
Article 3(2) of Directive 2014/68/EU of the European Parliament and of the Council of 15 May 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of pressure equipment, read in conjunction with point 31 of Article 2 and the first subparagraph of Article 5(1) of Directive 2014/68,
must be interpreted as precluding national legislation which, in order to protect the health and safety of persons against risks of fire in premises open to the public, imposes on pressure equipment and assemblies using flammable refrigerants, requirements which do not appear among the essential safety requirements laid down by that directive, for the purposes of the making available on the market or the putting into service of such equipment and assemblies, even though they bear the CE marking.
[Signatures]
*
Language of the case: French.