CELEX: 62006CJ0080
Directive 89/106/EC
Construction products
Procedure for attestation of conformity
Commission Decision 1999/93/EC
Horizontal direct effect
No such effect

1       This reference for a preliminary ruling concerns the interpretation, the possibility of relying on, and the validity of Articles
2 and 3 of Commission Decision 1999/93/EC of 25 January 1999 on the procedure for attesting the conformity of construction
products pursuant to Article 20(2) of Council Directive 89/106/EEC as regards doors, windows, shutters, blinds, gates and
related building hardware (OJ 1999 L 29, p. 51), as well as of Annexes II and III thereto.
2       The reference was made in the course of proceedings between the company Carp Snc di L. Moleri e V. Corsi (‘Carp’) and Ecorad
Srl (‘Ecorad’) regarding the performance of a contract for the sale of doors fitted with panic bars.

Legal context

Directive 89/106/EEC
3       Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of
the Member States relating to construction products (OJ 1989 L 40, p. 12) as amended by Council Directive 93/68/EEC of 22
July 1993 (OJ 1993 L 220, p. 1; ‘Directive 89/106’ or ‘the Directive’) is designed in particular to remove barriers to the
free movement of construction products. Pursuant to Article 1(1) of Directive 89/106, the Directive applies to construction
products in so far as the essential requirements in respect of construction works, under Article 3(1) of the Directive, relate
to them.
4       Article (4)(2) of Directive 89/106 provides that Member States are to presume that products are fit for use if they enable
works in which they are employed to satisfy those essential requirements, where those products bear the CE marking. That marking
indicates that the products comply with the relevant national standards transposing the harmonised standards, or with a European
technical approval, or with the national technical specifications referred to in Article 4(3) in so far as harmonised specifications
do not exist.
5       The first subparagraph of Article 6(1) of Directive 89/106 provides that Member States are not to impede the free movement,
placing on the market or use in their territory of products which satisfy the provisions of the Directive.
6       Under Article 13(1) of Directive 89/106, the manufacturer, or his agent established in the Community, is to be responsible
for the attestation that products are in conformity with the requirements of a technical specification within the meaning
of Article 4 of the Directive. Article 13(2) provides that products that are the subject of an attestation of conformity are
to benefit from the presumption of conformity with technical specifications. That conformity is to be established by means
of testing or other evidence on the basis of the technical specifications in accordance with Annex III.
7       Article 13(3) and (4) of Directive 89/106 provide:
‘3.      The attestation of conformity of a product is dependent on:
(a)      the manufacturer having a factory production control system to ensure that production conforms with the relevant technical
specifications; or
(b)      for particular products indicated in the relevant technical specifications, in addition to a factory production control system,
an approved certification body being involved in assessment and surveillance of the production control or of the product itself.
4.      The choice of the procedure within the meaning of paragraph 3 for a given product or family of products shall be specified
by the Commission, after consultation of the committee referred to in Article 19, according to:
(a)      the importance of the part played by the product with respect to the essential requirements, in particular those relating
to health and safety;
(b)       the nature of the product;
(c)       the effect of the variability of the product’s characteristics on its serviceability;
(d)       the susceptibility to defects in the product manufacture;
in accordance with the particulars set out in Annex III.
In each case, the least onerous possible procedure consistent with safety shall be chosen.
The procedure thus determined shall be indicated in the mandates and in the technical specifications or in the publication
thereof.’
8       Article 14 of Directive 89/106 specifies:
‘1. In accordance with Annex III, the procedures described shall lead:
(a)       in the case of Article 13(3)(a), to the production of a declaration of conformity for a product by the manufacturer, or his
agent established in the Community; or
(b)      in the case of Article 13(3)(b), to the issue by an approved certification body of a certificate of conformity for a system
of production control and surveillance or for the product itself.
Detailed rules for the implementation of the procedures of attestation of conformity are given in Annex III.
2. The manufacturer’s declaration of conformity or the certificate of conformity shall entitle the manufacturer, or his agent
established in the Community, to affix the corresponding CE marking on the product itself, on a label attached to it, on its
packaging or on the accompanying commercial documents. The model of the CE marking and the rules for its use in respect of
each of the procedures of attestation of conformity are given in Annex III.’
Decision 1999/93
9       The Commission adopted Decision 1999/93 in order to specify the procedures for attesting the conformity of doors, windows,
shutters, blinds, gates and related building hardware.
10     Under Article 1 of Decision 1999/93, the products and families of products set out in Annex I thereto are to be subject to
a procedure for attesting conformity which is based on a factory-production control system under the sole responsibility of
the manufacturer. Article 2 of Decision 1999/93 provides that the products set out in Annex II to that decision are to have
their conformity attested, not only by means of that factory-production control system but, additionally, by means of a procedure
in which an approved certification body is involved in assessment and surveillance of the production control or of the product
itself.
11     Annex II to Decision 1999/93 refers to the following products:
‘Doors and gates (with or without related hardware):
–       for use in fire/smoke compartmentation and on escape routes.
...
Building hardware related to doors and gates:
–       for use in fire/smoke compartmentation and on escape routes.’
12     Article 3 of Decision 1999/93 states that the procedure for attesting conformity as set out in Annex III thereto is to be
indicated in mandates for guidelines for European technical approvals. Annex III grants authority to the European Committee
for Standardisation (‘CEN/Cenelec’) to specify the attestation of conformity systems in the relevant harmonised standards.
Thus, for doors, gates and associated hardware intended for use in fire/smoke compartmentation or on escape routes, Annex
III to Decision 1999/93 requires use of the procedure for certification of conformity by an approved certification body, as
referred to in point 2(i) of Annex III to Directive 89/106.
13     It is common ground that, at the material time, harmonised standards did not yet exist for exterior doors to be fitted with
panic bars.

The dispute in the main proceedings and the questions referred for a preliminary ruling
14     During the month of April 2005, Ecorad ordered from Carp the supply and installation of three exterior doors fitted with panic
bars. In May 2005, following the installation of the first of those doors, Ecorad formed the view that the product installed
did not comply with Community legislation, since Carp did not have a certificate of conformity issued by an approved certification
body as referred to in Decision 1999/93 (or ‘type 1 certification’). Consequently, Ecorad refused to perform its contractual
obligations.
15     Carp thereupon brought an action for damages before the Tribunale ordinario di Novara (District Court, Novara). In the context
of those proceedings, Ecorad relied on the non-conformity with Community legislation of the product sold and alleged, in that
connection, that Carp had failed to comply with Decision 1999/93.
16     In its order for reference, the Tribunale ordinario di Novara considers that the dispute requires the interpretation of Decision
1999/93 and questions the validity of that decision, assuming it is directly applicable.
17     It is in those circumstances that the Tribunale ordinario di Novara decided to stay proceedings and to refer to the Court
of Justice the following questions for a preliminary ruling:
‘1.      Are Articles 2 and 3 of Decision 1999/93/EC and Annexes II and III thereto to be interpreted as meaning that it is not possible
for doors intended to be fitted with panic bars to be manufactured by operators (door fitters) who do not comply with the
requirements of the system of attestation of conformity No 1?
2.      If the answer to Question 1 is yes: regardless of whether technical standards have been adopted by the European Committee
for Standardisation (CEN), are the requirements under Articles 2 and 3 of Decision 1999/93/EC and Annexes II and III thereto
legally binding from the date when that decision entered into force in so far as regards the type of attestation of conformity
procedure to be complied with by manufacturers (door fitters) of doors intended to be fitted with panic bars?
3.      Are Articles 2 and 3 of Decision 1999/93/EC and Annexes II and III thereto to be regarded as being invalid on the basis that
they are contrary to the principle of proportionality in so far as they require all producers to comply with the attestation
of conformity procedure No 1 in order to be able to mark doors fitted with panic bars they have themselves manufactured with
the CE conformity marking (the mandate to adopt the relevant technical standards being given to the CEN)?’

The questions referred for a preliminary ruling
18     Examination of the first and third questions – relating, respectively, to the interpretation and the validity of Decision
1999/93 – pre-supposes an affirmative answer to the second question, by which the referring court asks, in essence, whether
Decision 1999/93 produces legally binding effects. Firstly, however, it is necessary to examine whether that decision can
be relied upon in a dispute between individuals.
19     On that point, Carp claims that Decision 1999/93 does not actually impose legally binding obligations upon it, in so far as
it – Carp – is not the addressee of that decision. Ecorad maintains, on the other hand, that it – Ecorad – has the right to
rely upon Decision 1999/93 in the dispute in the main proceedings.
20     In that context, without it being necessary first to examine the validity of Decision 1999/93, it should be recalled that,
according to settled case-law, a directive cannot of itself impose obligations on an individual and cannot therefore be relied
upon as such against an individual. It follows that even a clear, precise and unconditional provision of a directive seeking
to confer rights or impose obligations on individuals cannot of itself apply in proceedings exclusively between private parties
(Case 152/84
Marshall
[1986] ECR 723, paragraph 48; Case C-91/92
Faccini Dori
[1994] ECR I-3325, paragraph 20; Case C-192/94
El Corte Inglés
[1996] ECR I-1281, paragraphs 16 and 17; Case C-201/02
Wells
[2004] ECR I-723, paragraph 56; and Joined Cases C-397/01 to C-403/01
Pfeiffer and Others
[2004] ECR I-8835, paragraphs 108 and 109).
21     Decision 1999/93 was adopted on the basis of Article 13(4) of Directive 89/106 and is addressed to the Member States. It is
an act of general application which specifies the types of attestation of conformity procedures that are applicable, respectively,
to doors, windows, shutters, blinds, gates and related building hardware and which authorises CEN/Cenelec to specify the content
of those procedures in the relevant harmonised standards, which will then be transposed by the standardisation bodies of each
Member State. In accordance with Article 249 EC, Decision 1999/93 is binding only upon the Member States, which, under Article
4 of that decision, are the sole addressees. Accordingly, the considerations underpinning the case-law referred to in the
preceding paragraph with regard to directives apply
mutatis mutandis
to the question whether Decision 1999/93 may be relied upon as against an individual.
22     It should therefore be stated in reply to the second question referred by the national court that an individual cannot rely,
in the context of legal proceedings against another individual concerning contractual liability, on the infringement by the
latter of Articles 2 and 3 of Decision 1999/93 and of Annexes II and III thereto.
23     In light of that reply, it is not necessary to answer the first and third questions referred for a preliminary ruling.

Costs
24     Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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 (Third Chamber) hereby rules:
An individual cannot rely, in the context of legal proceedings against another individual concerning contractual liability,
on the infringement by the latter of Articles 2 and 3 of Commission Decision 1999/93/EC of 25 January 1999 on the procedure
for attesting the conformity of construction products pursuant to Article 20(2) of Council Directive 89/106/EEC as regards
doors, windows, shutters, blinds, gates and related building hardware, and of Annexes II and III thereto.
[Signatures]
*
Language of the case: Italian.