# C_2010274EN.01001401.xml

| 9.10.2010 | EN | Official Journal of the European Union | C 274/14 |
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9.10.2010

EN

Official Journal of the European Union

C 274/14

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Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 30 July 2010 — Elenca srl v Ministero dell’Interno

(Case C-385/10)

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2010/C 274/21

Language of the case: Italian

Referring court

Referring court

Consiglio di Stato

Parties to the main proceedings

Parties to the main proceedings

Applicant: Elenca srl

Applicant:

Defendant: Ministero dell’Interno

Defendant:

Questions referred

Questions referred

| 1. | Are the circular contested at first instance and the national rules referred to therein [namely, Circular No 4853 of the Ministry of the Interior of 18 May 2009 and, in particular, Legislative Decree No 152 of 2 April 2006] compatible with Community law and with the rules specifically referred to [in the order]? In particular, do the circular and the national rules infringe the principles and rules laid down by Directive 89/106/EEC (1) relating to construction products, which does not in any way make EC marking mandatory, but, on the contrary, provides (at Article 6(1) and (2)) that Member States ‘shall not impede the free movement, placing on the market or use in their territory of products which satisfy the provisions’ of that directive, and are to ensure ‘that the use of such products’, for the purpose for which they were intended, shall not be impeded by rules or conditions imposed by public bodies or private bodies acting as a public undertaking or acting as a public body on the basis of a monopoly position ‘and are to allow products not covered by Article 4(2) to be placed on the market in their territory if they satisfy national provisions consistent with the Treaty until the European technical specifications referred to in Chapters II and III provide otherwise’? |
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1.

Are the circular contested at first instance and the national rules referred to therein [namely, Circular No 4853 of the Ministry of the Interior of 18 May 2009 and, in particular, Legislative Decree No 152 of 2 April 2006] compatible with Community law and with the rules specifically referred to [in the order]? In particular, do the circular and the national rules infringe the principles and rules laid down by Directive 89/106/EEC (1) relating to construction products, which does not in any way make EC marking mandatory, but, on the contrary, provides (at Article 6(1) and (2)) that Member States ‘shall not impede the free movement, placing on the market or use in their territory of products which satisfy the provisions’ of that directive, and are to ensure ‘that the use of such products’, for the purpose for which they were intended, shall not be impeded by rules or conditions imposed by public bodies or private bodies acting as a public undertaking or acting as a public body on the basis of a monopoly position ‘and are to allow products not covered by Article 4(2) to be placed on the market in their territory if they satisfy national provisions consistent with the Treaty until the European technical specifications referred to in Chapters II and III provide otherwise’?

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| 2. | Do the contested circular and the national rules referred to therein infringe Articles 28 to 31 of the EC Treaty in particular, which prohibit restrictions on imports and measures having equivalent effect, in so far as making the marketing of a product originating in another Member State of the Community subject, as in the present case, to a technical requirement, namely affixing the EC mark — which would be possible and lawful only if there were a corresponding harmonised standard — in fact prevents the import and distribution of the product in question in Italy, in breach of the principles laid down by the provisions of the EC Treaty referred to and Community law, which ensure freedom of competition, requiring principles capable of ensuring equal non-discriminatory treatment, as well as transparency, proportionality and respect for the rights of individual undertakings? |
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2.

Do the contested circular and the national rules referred to therein infringe Articles 28 to 31 of the EC Treaty in particular, which prohibit restrictions on imports and measures having equivalent effect, in so far as making the marketing of a product originating in another Member State of the Community subject, as in the present case, to a technical requirement, namely affixing the EC mark — which would be possible and lawful only if there were a corresponding harmonised standard — in fact prevents the import and distribution of the product in question in Italy, in breach of the principles laid down by the provisions of the EC Treaty referred to and Community law, which ensure freedom of competition, requiring principles capable of ensuring equal non-discriminatory treatment, as well as transparency, proportionality and respect for the rights of individual undertakings?

| 3. | Under Community rules on workable competition in the sector involving the present dispute, ought the national legislature and administrative authorities to have avoided adopting the legislative measures referred to in the circular and in Legislative Decree No 152/2006? |
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3.

Under Community rules on workable competition in the sector involving the present dispute, ought the national legislature and administrative authorities to have avoided adopting the legislative measures referred to in the circular and in Legislative Decree No 152/2006?

| 4. | Lastly, is pluralism and competition in the sector in question, which is guaranteed by European law, secured by national rules — such as Legislative Decree No 152/2006 (in particular Article 285 and paragraphs 2.7 and 3.4 of Annex IX to part [V]) — which introduce and impose the restrictions referred to? |
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4.

Lastly, is pluralism and competition in the sector in question, which is guaranteed by European law, secured by national rules — such as Legislative Decree No 152/2006 (in particular Article 285 and paragraphs 2.7 and 3.4 of Annex IX to part [V]) — which introduce and impose the restrictions referred to?

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(1)  OJ 1989 L 40, p. 12.

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