CELEX: 62014CJ0354
Reference for a preliminary ruling
Free movement of goods
Measures having equivalent effect
Products in free circulation in Germany
Products subject to homologation inspections in Romania
Certificate of conformity issued by a distributor in another Member State
Certificate deemed insufficient to allow the free marketing of those products
Principle of mutual recognition
Partly inadmissible

This request for a preliminary ruling concerns the interpretation of Article 34 TFEU and of Article 31(1) of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (
OJ 2007 L 263, p. 1
) and Article 1(1)(t) and (u) of Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (
OJ 2002 L 203, p. 30
).
The request has been made in proceedings between SC Capoda Import-Export SRL (‘Capoda’), on the one hand, and the Registrul Auto Român (Romanian Automobile Register; ‘RAR’) and Mr Bejan, on the other, concerning the marketing by Capoda of new spare parts for motor vehicles.
Legal context
European Union law
Directive 2007/46
Recitals 14 and 15 in the preamble to Directive 2007/46 state:
‘(14)
The main objective of the legislation on the approval of vehicles is to ensure that new vehicles, components and separate technical units put on the market provide a high level of safety and environmental protection. This aim should not be impaired by the fitting of certain parts or equipment after vehicles have been placed on the market or have entered service. Thus, appropriate measures should be taken in order to make sure that parts or equipment which can be fitted to vehicles and which are capable of significantly impairing the functioning of systems that are essential in terms of safety or environmental protection, are subject to a prior control by an approval authority before they are offered for sale. These measures should consist of technical provisions concerning the requirements that those parts or equipment have to comply with.
(15)
These measures should only apply to a limited number of parts or equipment. … In establishing the list [of those parts or equipment], the Commission should … strive for a fair balance between the requirements of improving road safety and environmental protection, as well as the interests of consumers, manufacturers and distributors in preserving competition in the aftermarket.’
Article 1 of that directive provides:
‘This Directive establishes a harmonised framework containing the administrative provisions and general technical requirements for approval of all new vehicles within its scope and of the systems, components and separate technical units intended for those vehicles, with a view to facilitating their registration, sale and entry into service within the Community.
This Directive also establishes the provisions for the sale and entry into service of parts and equipment intended for vehicles approved in accordance with this Directive.
…’
Article 3(26) of that directive defines ‘original parts or equipment’ as ‘parts or equipment which are manufactured according to the specifications and production standards provided by the vehicle manufacturer for the production of parts or equipment for the assembly of the vehicle in question. This includes parts or equipment which are manufactured on the same production line as these parts or equipment. It is presumed unless the contrary is proven, that parts constitute original parts if the part manufacturer certifies that the parts match the quality of the components used for the assembly of the vehicle in question and have been manufactured according to the specifications and production standards of the vehicle manufacturer’.
Article 31 of Directive 2007/46, entitled ‘Sale and entry into service of parts or equipment which are capable of posing a significant risk to the correct functioning of essential systems’, provides:
‘1.   Member States shall permit the sale, the offer for sale or entry into service of parts or equipment which are capable of posing a significant risk to the correct functioning of systems that are essential for the safety of the vehicle or for its environmental performance, only if those parts or equipment have been authorised by an approval authority in accordance with paragraphs 5 to 10.
2.   Parts or equipment subject to authorisation in accordance with paragraph 1 shall be inserted in the list to be established in Annex XIII. …
…
11.   This Article shall not be applicable to a part or piece of equipment before it is listed in Annex XIII. …
12.   As long as a decision as to whether or not a part or piece of equipment is to be included in the list referred to in paragraph 1 has not been taken, Member States may maintain national provisions dealing with parts or equipment which are capable of posing a significant risk to the correct functioning of systems that are essential for the safety of the vehicle or its environmental performance.
Once such a decision in this regard has been taken, the national provisions dealing with the parts or equipment in question shall cease to be valid.
…’
Regulation No 1400/2002
Article 1 of Regulation No 1400/2002 provides:
‘1.   For the purposes of this Regulation:
…
(t)
“original spare parts” means spare parts which are of the same quality as the components used for the assembly of a motor vehicle and which are manufactured according to the specifications and production standards provided by the vehicle manufacturer for the production of components or spare parts for the motor vehicle in question. ... It is presumed, unless the contrary is proven, that parts constitute original spare parts if the part manufacturer certifies that the parts match the quality of the components used for the assembly of the vehicle in question and have been manufactured according to the specifications and production standards of the vehicle manufacturer;
(u)
“spare parts of matching quality” means exclusively spare parts made by any undertaking which can certify at any moment that the parts in question match the quality of the components which are or were used for the assembly of the motor vehicles in question;
…’
According to Article 12(3) of Regulation No 1400/2002:
‘This Regulation shall expire on 31 May 2010.’
Romanian law
Article 1 of Government Decree No 80/2000, concerning the homologation or approval of products and consumable materials used in road vehicles, and also the conditions of placing on the market and the marketing of the same, as amended (‘Government Decree No 80/2000’), provides, in paragraphs 1, 2, 4, 5 and 8 thereof:
‘1.   New products and consumable materials, intended for use in road vehicles, may be placed on the market and/or marketed only if they comply with the conditions laid down in this decree.
2.   New products and consumable materials, included in the category of those relating to the safety of road traffic, environmental protection, energy efficiency … may be placed on the market and/or marketed only where they are approved or homologated, as the case may be.
…
4.   The homologation of the products referred to in paragraph (2) shall be carried out by the [RAR], a specialised technical body attached to Ministry of Transport and Infrastructure …, on the basis of the results of tests conducted by the RAR or by the technicians authorised by the RAR.
5.   The approval of the products and consumable materials referred to in paragraph (2) shall be carried out by the RAR on the basis of the results of tests conducted by the RAR or by the technicians authorised by the RAR.
…
8.   The provisions referred to in paragraphs (4) and (5) shall not apply:
(a)
to products homologated by the competent authorities of the Contracting Parties under the Geneva Accord;
(b)
to products approved or homologated by the competent authorities of the Member States in accordance with the directives/regulations of the European Union;
(c)
to original products or to original spare parts;
(d)
to new products and consumable materials manufactured exclusively for the purposes of using vehicles for sporting competitions, not intended for use on public roads. This exception shall not apply in cases where the products and consumable materials in question have a dual use, for vehicles intended for sporting competitions and for vehicles intended for use on the road as well.’
Article 1b of that decree is worded as follows:
‘For the purposes of applying this decree, the following terms and expressions shall be construed as follows:
1.   product — a system, a device, a part, a component or technical unit used for the construction of a vehicle, for the replacement of such elements of a vehicle or for the further assembly/use of a homologated vehicle. It may include:
1.1.
an original product — a product manufactured according to the specifications and production standards provided by the vehicle manufacturer for the manufacture of products used for the assembly of the vehicle in question. These include products made on the same production line as the products in question. It is presumed, unless the contrary is proven, that the products are original if the part manufacturer certifies that the products match the quality of the components used for the assembly of the vehicle in question and have been manufactured in accordance with the specifications and production standards of the vehicle manufacturer.
…’
Article 4(1) of Government Decree No 80/2000 provides:
‘For the purpose of their placing on the market and/or marketing, products and consumable materials must be accompanied by the documents required by the regulatory framework in force.’
Article 6 of Government Decree No 80/2000 provides:
‘The following constitute administrative offences and shall be punished in the following manner:
(a)
failure to observe the provisions in Article 1(2) … which is punishable by a fine ranging between 1000 and 5000 [Romanian lei (RON) (approximately EUR 227 to EUR 1135)];
…’
The Annex to Ministerial Decree No 2135 of 8 December 2005 of the Minister of Transport, Construction and Tourism, on the approval of the regulatory framework relating to the approval and homologation of products and consumable materials used in road vehicles, and also the conditions for the placing on the market of the same, contains a Chapter II entitled ‘The methodology and the conditions governing the homologation or approval of the products used in road vehicles’. That chapter includes point 2.1, which provides:
‘Products manufactured in the country or imported, included in the list referred to in Chapter V, may be placed on the market only if they are certified or approved by the RAR. The approval or homologation shall be applied for by manufacturers, their representatives, importers or distributors. …’
Chapter V of the same annex contains a list of the products and supplies which require such approval or homologation by the RAR in order to be placed on the market. That list sets out the products and consumable materials used by road vehicles relating to the safety of road traffic, environmental protection, energy efficiency and protection against theft. Chapter V contains a point 5.1.3 which covers fuel filters and a point 5.3.2. which covers water pumps.
The dispute in the main proceedings and the questions referred for a preliminary ruling
Capoda, a company established in Romania, markets, in that Member State, products and spare parts allowing the repair, maintenance and operation of motor vehicles, which it acquires from companies established in other Member States.
It is apparent from the order for reference that, following an inspection carried out on 21 June 2011, the RAR found that Capoda marketed, in Romania, water pumps and fuel filters for road vehicles which were within the category of parts relating to road safety and environmental protection but which had not been homologated and/or approved in accordance with the national legislation. Consequently, by a report of 28 June 2011 finding and penalising that infringement, the RAR imposed a fine of RON 2000 (approximately EUR 454) on Capoda.
Capoda claimed that those products had been acquired from companies established in Germany and that they were accompanied by documents certifying that they were original spare parts or spare parts of matching quality, within the meaning of Article 1 of Regulation No 1400/2002, in free circulation in other Member States. Furthermore, those documents also certified that the products in question had been manufactured in the same production units as the original equipment, and that they had been homologated by the competent authorities of the Member States in which they had been produced. In those circumstances, Capoda submitted that, in accordance with the principle of mutual recognition, those products should be exempted from the requirement of approval or homologation laid down by Romanian law.
Capoda brought an action before the Judecătoria Cluj-Napoca (Court of First Instance, Cluj-Napoca, Romania) for the annulment of that report of 28 June 2011. By its judgment delivered in 2012, that court upheld that claim, considering that although the parts in question fall within the category of parts which relate to road traffic security and environmental protection, in respect of which Romanian law lays down an approval or homologation procedure, they may, in accordance with the definition of ‘original spare parts’ and of ’spare parts of matching quality’ set out in Article 1(1)(t) and (u) of Regulation No 1400/2002, be equated to original products, within the meaning of Article 1b, paragraph 1.1, of Government Decree No 80/2000. Consequently, it held that those parts should be exempt from the approval or homologation procedure, in accordance with Article 1(8) of that decree.
Ruling on the appeal brought against that judgment by the RAR and by the agent which drew up the report of 28 June 2011, Mr Bejan, the Tribunalul Cluj (Regional Court, Cluj) revised that judgment and upheld the validity of the report of 28 June 2011. It held that the documents adduced by Capoda did not prove that the parts at issue had been approved by the RAR or certified their original quality, since they were documents issued by distributors and not by the manufacturers.
On 26 October 2013, Capoda lodged an application for revision of that judgment before the Tribunalul Cluj. Capoda maintains, in particular, that the application of an approval or homologation procedure to the parts in question is contrary to the free movement of goods.
In those circumstances, the Tribunalul Cluj decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)
Can European Union law, and specifically Article 34 TFEU, Article 31(1) of [Directive 2007/46] and Article 1(1)(t) and (u) of [Regulation No 1400/2002] be interpreted as precluding a rule of national law such as that referred to in Article 1(2) of Government Decree No 80/2000, in so far as it puts in place a measure having an effect equivalent to a quantitative restriction on imports, given that, in accordance with that rule, for the free movement (sale, distribution) of new products and consumable materials included in the category of those relating to the safety of road traffic, the protection of the environment, energy efficiency and the protection against thefts of road vehicles, either an approval or homologation certificate for release for free circulation and/or marketing released by the manufacturer must be presented by the seller/distributor/dealer, or, where the seller/distributor/dealer had not obtained or was not in possession of such a certificate, the homologation procedure for the products in question must be completed with the [RAR] and a homologation certificate for release for free circulation and/or marketing issued by the RAR must be obtained, and given that, even where the seller/distributor/dealer is in possession of a certificate of conformity for release for free circulation and/or marketing of parts made available by the distributor of a European Union Member State, which distributes freely such parts within the territory of that European Union Member State, such a certificate is not sufficient to allow for free movement/sale/distribution of the goods in question?
(2)
Can EU law, and specifically Article 34 TFEU, relating to the notion of “measures having equivalent effect to a quantitative restriction”, Article 31(1) of Directive 2007/46 and Article 1(1)(t) and (u) of [Regulation No 1400/2002], be interpreted as precluding a national rule which provides that the certificate of conformity for the purpose of the placing on the market and/or marketing provided by a distributor in another Member State in relation to new products and consumable materials, included in the category of those relating to the safety of road traffic, environmental protection, energy efficiency and protection against thefts of road vehicles, is insufficient to allow the free marketing of new products and consumable materials, included in the category of those relating to the safety of road traffic, environmental protection, energy efficiency and protection against thefts of road vehicles, given that that distributor from another Member State distributes these parts freely within the territory of that [Member State], and notwithstanding the fact that, in accordance with the said certificate, the parts in question may be marketed in the territory of the European Union?’
Admissibility of the questions referred
The Romanian Government objects that the questions referred in relation to the interpretation of Article 34 TFEU and Article 1(1)(t) and (u) of Regulation No 1400/2002 are inadmissible. It submits that, since Directive 2007/46 fully harmonises the area that it governs, reliance on primary law is no longer possible. In addition, it submits that Regulation No 1400/2002 was no longer in force at the time of the inspection carried out by the RAR and that the new provisions of EU law no longer contain the definitions the interpretation of which is sought by the referring court.
In that regard, it should be borne in mind that, according to settled case-law, the procedure provided for by Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (see, inter alia, judgment in Klarenberg,
C‑466/07
,
EU:C:2009:85
, paragraph
).
In the context of that cooperation, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (see, inter alia, judgment in Klarenberg,
C‑466/07
,
EU:C:2009:85
, paragraph
).
It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgment in Klarenberg,
C‑466/07
,
EU:C:2009:85
, point
).
In the present case, it cannot be maintained that Article 34 TFEU is manifestly unrelated to the actual facts of the main action or its object. Moreover, the issue whether that article should not be interpreted because Directive 2007/46 fully harmonised the area in question is not a ground of inadmissibility and must be assessed in the context of the consideration of the questions referred. Consequently, the plea of inadmissibility raised by the Romanian Government as regards Article 34 TFEU cannot be upheld.
On the other hand, Article 12 of Regulation No 1400/2002 provides that that regulation is to expire on 31 May 2010. Since the report at issue in the main proceedings was adopted on 28 June 2011, that regulation is not applicable to the dispute in the main proceedings. It may also be noted that the definitions of original parts and spare parts of matching quality set out in Article 1(1)(t) and (u) of that regulation are, in any event, applicable only for the purposes of that regulation, which concerns only the application of the former Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector.
Accordingly, the questions referred are inadmissible in so far as they concern that regulation.
The Romanian Government also submits that the provisions of Article 31(1) of Directive 2007/46 are clear and leave no scope for any reasonable doubt that might justify a request for interpretation. Since that argument does not constitute a ground of inadmissibility of a question referred for a preliminary ruling, it must be rejected.
In view of the foregoing, it must be held that the questions referred are inadmissible in so far as they concern the interpretation of Article 1(1)(t) and (u) of Regulation No 1400/2002.
Consideration of the questions referred
By its two questions, which it is appropriate to deal with together, the referring court asks, in essence, whether Article 34 TFEU and Article 31(1) of Directive 2007/46 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which makes the marketing in a Member State of new spare parts for road vehicles — in this case, water pumps and fuel filters — subject to the application of an approval or homologation procedure in that Member State, unless it is shown, by means of a certificate of approval or homologation, that those products have already been subject to such a procedure in another Member State or that they are original parts or spare parts of matching quality within the meaning of that legislation, a document issued in that respect by the distributor not, however, being considered sufficient.
As a preliminary point, it must be recalled that, according to Article 1 of Directive 2007/46, that directive establishes (i) a harmonised framework containing the administrative provisions and general technical requirements for approval of all new vehicles within its scope and of the systems, components and separate technical units intended for those vehicles, with a view to facilitating their registration, sale and entry into service within the European Union, and (ii) the provisions for the sale and entry into service of parts and equipment intended for vehicles approved in accordance with that directive.
It would appear from the file sent to the Court that the main proceedings concern that second category of provisions, but that is a matter for the referring court to verify.
In that context, Article 31(1) of Directive 2007/46 provides that the Member States are to permit the sale, the offer for sale or entry into service of parts or equipment which are capable of posing a significant risk to the correct functioning of systems that are essential for the safety of the vehicle or for its environmental performance only if those parts or equipment have been authorised by a competent authority, in accordance with paragraphs 5 to 10 of that article.
However, as can be seen from Article 31(2) and (11) of Directive 2007/46, the parts or equipment subject to authorisation in accordance with paragraph 1 of that article must be listed in Annex XIII to that directive. As the Commission notes, it has not established any list in that annex.
In that case, and as the Commission and the Romanian Government submit, it is necessary to refer to paragraph 12 of Article 31, which provides that, as long as a decision as to whether or not a part or piece of equipment is to be included in the list in Annex XIII to that directive has not been taken, Member States may maintain national provisions dealing with parts or equipment which are capable of posing a significant risk to the correct functioning of systems that are essential for the safety of the vehicle or its environmental performance, although those national provisions are to cease to be valid once a decision in this regard has been taken.
That provision therefore concerns the sale and entry into service of parts or equipment which are not only listed in Annex XIII to Directive 2007/46 but are also capable of posing a significant risk to the correct functioning of systems that are essential for the safety of the vehicle in which they are installed or its environmental performance; it is for the referring court to verify whether that is the case as regards the parts at issue in the main proceedings.
Next, it must be examined whether the law of the Member State in relation to the sale and entry into service of those parts, to which Article 31(12) of that directive refers, is in accordance with EU law and in particular with Article 34 TFEU.
In that respect, it is settled case-law that all measures of a Member State which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union must be considered to be measures having an effect equivalent to quantitative restrictions within the meaning of Article 34 TFEU (see, inter alia, judgments in Dassonville,
8/74
,
EU:C:1974:82
, paragraph
, and in Juvelta,
C‑481/12
,
EU:C:2014:11
, paragraph
).
It follows, in particular, that, even in the absence of harmonising European Union measures, products lawfully produced and marketed in a Member State must be able to be marketed in another Member State without being subject to additional controls. In order to be justified, national legislation imposing such controls must be covered by one of the exceptions provided for in Article 36 TFEU or one of the overriding requirements recognised by the case-law of the Court and, in either case, must be appropriate for securing the attainment of that objective and not go beyond what is necessary in order to attain it (see judgments in ATRAL,
C‑14/02
,
EU:C:2003:265
, paragraph
, and Commission v Portugal,
C‑432/03
,
EU:C:2005:669
, paragraph
).
It is apparent from the file sent to the Court that the legislation at issue in the main proceedings imposes the application of an approval or homologation procedure to the products at issue in those proceedings, which is liable to constitute a measure having equivalent effect for the purpose of Article 34 TFEU unless that legislation also lays down exceptions to those procedures so as to ensure that products lawfully produced and marketed in other Member States are exempted.
However, it would also appear from that file that Article 1(8) of Government Decree No 80/2000 lays down such exceptions; it is for the referring court to verify whether that is the case.
If that should prove not to be the case, it would then be for the competent national authorities to show that that barrier to trade can be justified, in view of the products liable to be affected, by the objectives of protection of road safety and protection of the environment, which, according to the case-law, constitute overriding reasons in the public interest capable of justifying a measure having an effect equivalent to quantitative restrictions and that it is not only necessary, but proportionate in relation to such objectives (see, inter alia, judgment in Commission v Belgium,
C‑150/11
,
EU:C:2012:539
, paragraphs
and
).
As to whether EU law precludes the refusal to consider documents such as those adduced by Capoda as being sufficient to demonstrate that parts, such as those at issue in the main proceedings, have already been approved or homologated or that they are original parts or spare parts of matching quality, for the purpose of national law, which are exempted, on that basis, from the procedure of approval or homologation by the RAR, it must be noted that it is for the Member States, in the absence of any European Union rules governing the matter, to determine the evidence which may be adduced in that respect, subject to the principles of equivalence and of effectiveness.
Subject to that proviso, EU law therefore does not preclude a rule that only certificates issued by the manufacturer and not by the distributor are capable, in principle, of establishing that the parts in question have already been approved or homologated or constitute original parts or spare parts of matching quality, for the purpose of national law. It should, moreover, be pointed out that Article 3(26) of Directive 2007/46, which defines the concept of ‘original parts or equipment’ for the purpose of that directive, provides that it is presumed, unless the contrary is proven, that parts constitute original parts if the manufacturer certifies them as being so.
Consequently, the answer to the questions referred is that Article 34 TFEU and Article 31(1) and (12) of Directive 2007/46 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which makes the marketing in a Member State of new spare parts for road vehicles — in this case, water pumps and fuel filters — subject to the application of an approval or homologation procedure in that Member State, provided that that legislation also lays down exceptions such as to ensure that parts lawfully produced and marketed in other Member States are exempted or, failing this, that the parts in question are capable of posing a significant risk to the correct functioning of systems that are essential for the safety of the vehicle or its environmental performance and that that approval or homologation procedure is strictly necessary and proportionate in relation to the objectives of protection of road safety or of protection of the environment. The conditions for proving that such parts have already been approved or homologated or constitute original parts or parts of matching quality are governed, in the absence of European Union rules on the matter, by the law of the Member States, subject to the principles of equivalence and of effectiveness.
Costs
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 (Seventh Chamber) hereby rules:

Article 34 TFEU and Article 31(1) and (12) of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which makes the marketing in a Member State of new spare parts for road vehicles — in this case, water pumps and fuel filters — subject to the application of an approval or homologation procedure in that Member State, provided that that legislation also lays down exceptions such as to ensure that parts lawfully produced and marketed in other Member States are exempted or, failing this, that the parts in question are capable of posing a significant risk to the correct functioning of systems that are essential for the safety of the vehicle or its environmental performance and that that approval or homologation procedure is strictly necessary and proportionate in relation to the objectives of protection of road safety or of protection of the environment.

The conditions for proving that such parts have already been approved or homologated or constitute original parts or parts of matching quality are governed, in the absence of European Union rules on the matter, by the law of the Member States, subject to the principles of equivalence and of effectiveness.

[Signatures]
(
*
)   Language of the case: Romanian.