Opinion of the Advocate General — ECLI:EU:C:2007:85
Date: 2007-02-08
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Quantitative restrictions
Procedure: Action for failure to fulfil obligations - successful
Origin: Belgium

Summary of the Judgment Free movement of goods – Quantitative restrictions – Measures having equivalent effect (Arts 28 EC and 30 EC) A Member State which requires automatic fire detection systems with point detectors which were lawfully manufactured or marketed in another Member State but which do not have the EC marking: – to comply with a national rule containing technical requirements to be met by certain components of those systems; – to be subject to approval by a certification body, that obstacle being made worse by the disproportionate costs which that approval incurs; and – to undergo tests and checks in connection with that type approval which, essentially, duplicate the controls which have already been carried out under other procedures in another Member State fails to fulfil its obligations under Article 28 EC. Even if it is applicable without distinction to all products, a requirement of conformity to a national standard hinders intra-Community trade and constitutes a measure having an effect equivalent to a quantitative restriction on imports prohibited by Article 28 EC inasmuch as it may have the effect of forcing economic operators of other Member States to adapt their apparatus and equipment to the requirements of standards or technical regulations of the Member State of importation and to bear the additional costs associated with such adaptation, or of deterring them from marketing the products concerned in that Member State. Furthermore, the requirement of prior approval attesting to a product’s fitness for a given use restricts access to the market of the importing Member State and must therefore be regarded as a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 28 EC. That requirement is disproportionate where, in the absence of a bilateral agreement with the certification body of the Member State of origin of a product, the certification body does not take into account the controls carried out in that other Member State. The testing and checking costs which that approval procedure incurs must be regarded as disproportionate in so far as such a procedure does not preclude the imposition of tests and checks which have already been carried out in the Member State of origin of the product concerned. Whilst, in the absence of harmonising rules, the Member States are free to decide on their intended level of protection of health and life of humans, the fact remains that an exception to the principle of the free movement of goods may be justified under Article 30 EC only if the national authorities show that it is necessary in order to attain one or more objectives mentioned in that article and that it is in conformity with the principle of proportionality. In that regard, the reasons which may be invoked by a Member State by way of justification must be accompanied by appropriate evidence or by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State, and precise evidence enabling its arguments to be substantiated. (see paras 29-30, 32, 35-36, 41-42, 45, operative part)