Opinion of the Advocate General — ECLI:EU:C:1998:343
Date: 1998-07-09
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Action for failure to fulfil obligations - successful
Origin: Italy

Summary of the Judgment 
1. Approximation of laws — Appliances burning gaseous fuels — Directive 90/396 — Complete 
harmonisation — National rules impeding the putting into service of heaters which comply 
with the Directive — Not permissible 
(Council Directive 90/396, Art. 4(1)) 
2. Free movement of goods — Derogations — Purpose — Existence of directives on the approxi­
mation of laws •— Effects 
(EC Treaty, Art. 36) 
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SUMMARY — CASE C-112/97 
1. Directive 90/396 on the approximation of 
the laws of the Member States relating to 
appliances burning gaseous fuels has com­
pletely harmonised the essential require­
ments which gas appliances must satisfy. 
Consequently, if the appliances referred to 
in the Directive meet those requirements, 
that is sufficient to enable them to be 
placed on the market and put into service. 
A Member State therefore fails to fulfil its 
obligations under that Directive if it estab­
lishes and maintains in force a system 
which, in cases where gas appliances are 
newly installed or converted, requires that 
only 'sealed' heaters be used in living areas, 
thereby implicitly prohibiting the installa­
tion of other types of heater which comply 
with the Directive. 
2. Where Community directives provide for 
the harmonisation of the measures neces­
sary to ensure the protection of animal 
and human health and establish Commu­
nity procedures to monitor compliance, 
recourse to Article 36 of the Treaty is no 
longer justified and the appropriate checks 
must be carried out and the measures of 
protection adopted within the framework 
outlined by the harmonising directive. 
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