Opinion of the Advocate General — ECLI:EU:C:2002:738
Date: 2002-12-10
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary of the Judgment 
1. Approximation of laws — Personal protective equipment — Directive 89/686 — 
National legislation making equipment for firefighters, notwithstanding its compliance 
with the directive, subject to additional requirements — Not permissible 
(Council Directive 89/686, Arts1I and 4, and point 1 of Annex I) 
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SUMMARY — CASE C-103/01 
2. Community law — Concepts — Interpretation — Reference to national law — Not 
permissible 
3. Approximation of laws — Personal protective equipment — Directive 89/686 — 
Measures harmonising equipment intended for the protection of firefighters in the 
performance of their usual duties — Breach of the principle of proportionality — 
Breach of the principle of subsidiarity — None 
(Council Directive 89/686) 
1. A Member State which makes personal 
protective equipment for firefighters 
subject to additional requirements, 
although it complies with the require­
ments of Directive 89/686 on the 
approximation of the laws of the 
Member States relating to personal 
protective equipment and bears the 
EC marking, fails to comply with its 
obligations under Articles 1 and 4 of 
that directive. 
It follows from Article 1(4) of that 
directive that personal protective 
equipment intended to be used by fire 
brigades falls outside the scope of that 
directive only if it can be considered to 
have been designed and manufactured 
specifically for the forces which main­
tain law and order within the meaning 
of point 1 of Annex I to the directive. 
The tasks of fire brigades ordinarily 
consist of rescuing persons and prop­
erty from fires, traffic accidents, 
explosions, floods or other disasters. 
Those tasks differ from those of the 
forces whose main task is the mainten­
ance of law and order. On the other 
hand, if fire brigades were called upon, 
in certain circumstances, to contribute 
to the maintenance of law and order 
and were provided, for that purpose, 
with personal protective equipment 
designed and manufactured specifically 
for the performance of that task, such 
equipment would be covered by the 
derogation provided for by point 1 of 
Annex I to the Directive. 
Although that directive does not pre­
clude a Member State from requiring 
fire brigades to be equipped with 
rescue apparatus which all complies 
with the same standards of manufac­
ture and safety in order to ensure its 
compatibility, in order to attain the 
objective of ensuring the free move­
ment of personal protective equipment 
between the Member States, that direc­
tive must preclude them from pro­
hibiting, restraining or interfering with 
the putting on the market of such 
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COMMISSION v GERMANY 
equipment, which satisfies its provi­
sions and which bears the EC marking. 
(see paras 30-31, 36, 39, 43, 50 
operative part) 
2. The Community legal order does not, 
in principle, aim to define concepts on 
the basis of one or more national legal 
systems unless there is express provi­
sion to that effect. 
(see para. 33) 
3. Directive 89/686 on the approximation 
of the laws of the Member States 
relating to personal protective equip­
ment does not infringe either the prin­
ciple of subsidiarity or that of propor­
tionality by harmonising the national 
provisions relating to such equipment 
intended for the protection of fire­
fighters in the performance of their 
usual duties. 
With regard to the principle of sub­
sidiarity, since the national provisions 
in question differ significantly from one 
Member State to another, they may 
constitute, as is noted in the fifth recital 
in the preamble to the directive, a 
barrier to trade with direct con­
sequences for the creation and oper­
ation of the common market. The 
harmonisation of such divergent provi­
sions may, by reason of its scope and 
effects, be undertaken only by the 
Community legislature. 
With regard to the principle of propor­
tionality, the inclusion of personal 
protective equipment intended for the 
protection of firefighters in the scope of 
the directive is appropriate in order to 
ensure the free movement of that 
equipment between the Member States 
and does not go beyond what is necess­
ary to obtain that aim. It does not 
encroach on the competence of those 
States to define the tasks and powers of 
fire brigades and to ensure their per­
sonal protection. Nor does it encroach 
on the organisation of the armed forces 
and those for the maintenance of law 
and order. 
(see paras 46-48) 
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