Judgment;Summary — ECLI:EU:C:2023:238
Date: 2023-03-23
Language of the case: French
Court formation: Eighth Chamber
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: France

Translation C-653/21 – 1 
Case C-653/21 
Request for a preliminary ruling 
Date lodged: 
27 October 2021 
Referring court: 
Conseil d’État (France) 
Date of the decision to refer: 
16 July 2021 
Applicant: 
Syndicat Uniclima 
Defendant: 
Ministre de l’Intérieur 
  
THE CONSEIL D’ÉTAT (COUNCIL OF STATE) 
acting in a judicial capacity 
[…] Decision of 16 July 2021 
Having regard to the following procedure: 
By an application, a reply and a further written pleading, lodged at the secretariat 
of the judicial section of the Council of State on 25 October 2019, 16 March 2020 
and 25 June 2021, the trade union Uniclima claims that the Council of State 
should: 
1. annul as ultra vires the order of 10 May 2019 amending the order of 25 June 
1980 approving general safety regulations to counter the risks of fire and panic in 
establishments open to the public and the decision of 21 August 2019 by which 
the Ministre de l’Intérieur (Minister for the Interior) dismissed its informal appeal; 
2. in the alternative, annul the refusal by the Minister for the Interior on 21 August 
2019 to rescind that order; 
EN 
REQUEST FOR A PRELIMINARY RULING OF 16. 7. 2021 – CASE C-653/21 
 
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3. order the Minister for the Interior to issue a new order after undertaking a new 
consultation; 
[…] 
Uniclima asserts that the contested order and the contested decision are vitiated 
by: 
- a failure by the Minister for the Environment to countersign the order, in 
breach of Article 22 of the Constitution; 
- an infringement of Article 7 of the Charter for the Environment, since the 
order was not preceded by a public consultation; […] 
- an infringement of Regulation (EU) No 517/2014 of the European 
Parliament and of the Council of 16 April 2014, in so far as the contested order 
does not sufficiently promote the reduction of fluorinated greenhouse gas 
emissions; 
- an infringement of Directive 2006/42/EC of the European Parliament and of 
the Council of 17 May 2006 on machinery, Directive 2014/35/EU of the European 
Parliament and of the Council of 26 February 2014 on live electrical equipment 
and Directive 2014/68/EU of the European Parliament and of the Council of 
15 May 2014 on pressure equipment, in so far as the contested order lays down 
stricter safety standards than those directives; 
- an infringement of Articles 34 to 36 of the Treaty on the Functioning of the 
European Union and Directive 2015/1535 of the European Parliament and of the 
Council of 9 September 2015 laying down a procedure for the provision of 
information inter alia in the field of technical regulations; 
- a breach of the principle of legal certainty in the absence of transitional 
measures; 
- a failure to have regard to the objective of clarity and intelligibility of the 
law; 
- disproportionate interference with the freedom to conduct a business and the 
right to a healthy environment. 
By a defence, lodged on 24 December 2019, the Minister for the Interior contends 
that the application should be dismissed. He asserts that the claims for annulment 
are inadmissible and that the pleas in law raised are unfounded. 
Having regard to the other documents in the file; 
Having regard to: 
- […] 
SYNDICAT UNICLIMA 
 
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- the Treaty on the Functioning of the European Union; 
- Regulation (EU) No 517/2014 of the European Parliament and of the 
Council of 16 April 2014; 
- Directive 2006/42/EC of the European Parliament and of the Council of 
17 May 2006; 
- Directive 2014/35/EU of the European Parliament and of the Council of 
26 February 2014; 
- Directive 2014/68/EU of the European Parliament and of the Council of 
15 May 2014; 
- Directive 2015/1535 of the European Parliament and of the Council of 
9 September 2015; 
- the Code de la construction et de l’habitation (Construction and Housing 
Code); 
- […] 
- the order of 25 June 1980 approving general safety regulations to counter the 
risks of fire and panic in establishments open to the public; 
- […] 
[…] 
Whereas: 
1 By an order of 10 May 2019, the Minister for the Interior amended the order of 
25 June 1980 approving general safety regulations to counter the risks of fire and 
panic in establishments open to the public so as to authorise, under certain safety 
conditions laid down therein, the operation of equipment using flammable 
refrigerants in such establishments. The Uniclima trade union, which, principally, 
is seeking the annulment of that order of 10 May 2019 and of the decision 
dismissing its informal appeal, must be considered, in the light of the pleas in law 
on which it relies, to be seeking the annulment of only the provisions of the new 
paragraph 3 that the order of 10 May 2019 inserted into Article CH 35 of the order 
of 25 June 1980, with the exception of the provisions laid down in points (a) and 
(c) of that paragraph. 
Admissibility of the principal claims for annulment: 
2 […] [Remarks on the plea of inadmissibility which are not relevant to the present 
proceedings] […] 
Formal legality of the contested order: 
REQUEST FOR A PRELIMINARY RULING OF 16. 7. 2021 – CASE C-653/21 
 
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3 […] [Remarks on national law which are not relevant to the present 
proceedings] […] 
4 […] 
Substantive legality of the contested order: 
The safety standards introduced by the contested provisions: 
5 The file shows that, in their version in force prior to the contested order, the 
provisions of Article CH 35 of the order of 25 June 1980 prohibited the use, in 
establishments open to the public within the meaning of Article L.111-8 of the 
Construction and Housing Code, of refrigerants ‘the dominant characteristics of 
which are flammability and explosive power’. The contested order amends those 
provisions such that the use of flammable refrigerants is now authorised in those 
establishments subject to the safety conditions laid down therein. The contested 
provisions thus establish a number of standards for equipment that uses flammable 
refrigerants, prohibiting inter alia the installation of dismountable connectors on 
pipes conveying the refrigerants in question, requiring that those pipes be 
protected against any risk of clean break, limiting the internal diameter of pipes 
conveying those refrigerants in their liquefied form, requiring thermal insulation 
for units containing them by materials in certain classes and specifying the 
quantity of inflammable refrigerant that may circulate within their cooling 
circuits. The contested order provides, lastly, that these standards do not apply to 
the use of flammable refrigerants in equipment bearing the ‘CE marking’, 
provided, however, the equipment is ‘hermetically sealed’. 
6 First, it is clear from the wording of Regulation No 517/2014 of the European 
Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases 
that its provisions, whose purpose is to encourage the use of technologies with no 
impact or lower impact on the climate through reduced use of fluorinated 
greenhouse gases and which simply stipulate, with regard to alternative 
refrigerants to fluorinated greenhouse gases, that professionals should be trained 
in the regulatory requirements for working with them, do not prevent a Member 
State from placing restrictions on the use of equipment containing flammable 
refrigerants, for safety reasons in particular. The plea in law alleging that the 
contested provisions are unlawful on that ground must therefore be rejected. 
7 Second, the fact that it is not possible to identify the impact of the rules laid down 
by the contested order on greenhouse gas alternatives and that the order does not 
contribute effectively to the attainment of the objectives established in the 
regulation of 16 April 2014, assuming it were proven, has no bearing on its 
lawfulness. The applicant trade union wrongly asserts inter alia that the contested 
order breaches the principle of clarity and intelligibility of the law on this ground. 
8 Third, the pleas in law alleging that the contested provisions cause 
disproportionate interference with the freedom to conduct a business and the ‘right 
to a healthy environment’ are not further clarified so as to allow their validity to 
SYNDICAT UNICLIMA 
 
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be assessed. The same holds for the plea in law alleging the infringement of 
Directive 2015/1535 of 9 September 2015 laying down a procedure for the 
provision of information inter alia in the field of technical regulations. 
9 Fourth and last, since, as has been explained, the purpose of the contested 
provisions is to establish safety conditions under which the use of previously 
prohibited flammable refrigerants may be authorised in establishments open to the 
public, the principle of legal certainty did not require the Minister for the Interior 
to adopt transitional measures, contrary to the assertion made by the applicant 
trade union. 
The application of the contested standards to equipment bearing the ‘CE 
marking’: 
10 Under Article 6 of Directive 2006/42/EC of 17 May 2006 on machinery: ‘1. 
Member States shall not prohibit, restrict or impede the placing on the market 
and/or putting into service in their territory of machinery which complies with this 
Directive …’ and, under Article 7: ‘1. Member States shall regard machinery 
bearing the CE marking and accompanied by the EC declaration of conformity … 
as complying with the provisions of this Directive …’. Under Article 4 of 
Directive 2014/35/EU of 26 February 2014 relating to the making available on the 
market of electrical equipment designed for use within certain voltage limits: ‘The 
Member States shall not impede, for the aspects covered by this Directive, the 
making available on the market of electrical equipment which complies with this 
Directive’, while Article 2 of that directive provides that ‘“CE marking” means a 
marking by which the manufacturer indicates that the electrical equipment is in 
conformity with the applicable requirements set out in Union harmonisation 
legislation providing for its affixing’. Lastly, under Article 3 of Directive 
2014/68/EU of 15 May 2014 on the harmonisation of the laws of the Member 
States relating to the making available on the market of pressure equipment: ‘… 2. 
This Directive shall not affect Member States’ entitlement to lay down such 
requirements as they may deem necessary to ensure that persons and, in 
particular, workers are protected during use of the pressure equipment or 
assembly in question provided that this does not mean modifications to such 
equipment or assembly in a way not specified in this Directive’, while Article 2 of 
that directive provides that ‘“CE marking” means a marking by which the 
manufacturer indicates that the pressure equipment or assembly is in conformity 
with the applicable requirements set out in Union harmonisation legislation 
providing for its affixing’. It follows from these provisions that, if equipment 
falling within the scope of one of those directives complies with the essential 
safety guarantees which they prescribe, as attested by the affixing of the ‘CE 
marking’, it may move freely on the European Union market. 
11 Although, as was stated in paragraph 5, the contested order provides that the 
safety standards which it introduces do not apply to equipment using flammable 
refrigerants where it bears the ‘CE marking’, it does so only on the proviso that 
the equipment is ‘hermetically sealed’. The applicant trade union submits that, in 
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so far as this restriction establishes additional requirements for machinery, 
electrical equipment or pressure equipment governed by one of the three 
abovementioned directives which bears the ‘CE marking’ and is therefore in 
conformity with the requirements laid down in the Community directives, it fails 
to have regard to the objectives of those directives and the provisions of 
Articles 34, 35 and 36 of the Treaty on the Functioning of the European Union. 
12 Contrary to the assertion made by the Minister for the Interior, the fact that the 
contested order was adopted for fire safety reasons and governs the use of that 
equipment only in establishments open to the public does not prevent its 
lawfulness being assessed in the light of its conformity with the abovementioned 
directives. 
13 The response to the pleas in law raised by the applicant association depends on: 
- first, whether the harmonisation required by Directive 2006/42/EC of the 
European Parliament and of the Council of 17 May 2006, Directive 2014/35/EU 
of the European Parliament and of the Council of 26 February 2014 and Directive 
2014/68/EU of the European Parliament and of the Council of 15 May 2014 
permits Member States to lay down safety requirements for the equipment 
governed by those directives, and if so under what conditions and within what 
limits, where those requirements do not entail any modification of equipment that 
is, as attested by the affixing of the ‘CE marking’, in conformity with the 
requirements of those directives; 
- second, whether the harmonisation required by them permits Member States 
to lay down, solely for use of that equipment in premises open to the public and in 
the light of specific fire safety risks, safety requirements which may entail the 
modification of equipment that, as attested by the affixing of the ‘CE marking’, is 
nevertheless in conformity with the requirements of those directives; 
- third, if the preceding question is answered in the negative, whether it can be 
answered in the affirmative if the safety requirements in question apply only 
where that equipment uses flammable refrigerants as alternatives to fluorinated 
greenhouse gases, in accordance with the objectives set out in Regulation 
No 517/2014 of the European Parliament and of the Council of 16 April 2014 on 
fluorinated greenhouse gases, and, in addition, relate only to equipment which, 
although in conformity with the requirements of those directives, does not, having 
regard to the fire risk from the use of flammable refrigerants, offer the protection 
of being hermetically sealed. 
14 These questions, which are decisive to the outcome of the dispute, are particularly 
difficult. The matter should therefore be referred to the Court of Justice of the 
European Union pursuant to Article 267 of the Treaty on the Functioning of the 
European Union and, until it has given a ruling, the proceedings in respect of the 
application lodged by Uniclima should be stayed. 
DECIDES: 
SYNDICAT UNICLIMA 
 
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Article 1: The proceedings in respect of the application are stayed until the Court 
of Justice of the European Union has given a ruling on the following questions: 
1. Does the harmonisation required by Directive 2006/42/EC of the European 
Parliament and of the Council of 17 May 2006, Directive 2014/35/EU of the 
European Parliament and of the Council of 26 February 2014 and Directive 
2014/68/EU of the European Parliament and of the Council of 15 May 2014 
permit Member States to lay down safety requirements for the equipment 
governed by those directives, and if so under what conditions and within what 
limits, where those requirements do not entail any modification of equipment that 
is, as attested by the affixing of the ‘CE marking’, in conformity with the 
requirements of those directives? 
2. Does the harmonisation required by them permit Member States to lay down, 
solely for use of that equipment in premises open to the public and in the light of 
specific fire safety risks, safety requirements which may entail the modification of 
equipment that, as attested by the affixing of the ‘CE marking’, is nevertheless in 
conformity with the requirements of those directives? 
3. If the preceding question is answered in the negative, can it be answered in the 
affirmative if the safety requirements in question apply only where that equipment 
uses flammable refrigerants as alternatives to fluorinated greenhouse gases, in 
accordance with the objectives set out in Regulation No 517/2014 of the European 
Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases, 
and, in addition, relate only to equipment which, although in conformity with the 
requirements of those directives, does not, having regard to the fire risk from the 
use of flammable refrigerants, offer the protection of being hermetically sealed? 
… [Formalities]