Opinion of the Advocate General — ECLI:EU:C:2005:514
Date: 2005-09-08
Language of the case: Portuguese
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Approximation of laws;Quantitative restrictions
Procedure: Action for failure to fulfil obligations - successful
Origin: Portugal

Summary of the Judgment 1. Approximation of laws – Construction products – Directive 89/106 – Special procedure in the absence of technical specifications harmonised or recognised at Community level – Application in the absence of information given by the producing Member State to the Member State of destination regarding the approval body approved – Not included – Special procedure unconnected with the application of Articles 28 EC and 30 EC (Arts 28 EC and 30 EC; Council Directive 89/106, Art. 16) 2. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National rule making polyethylene pipes subject to an approval procedure without taking account of approval certificates issued by the Member States of origin – Not permissible – Justification – None – Breach of the principle of proportionality –Failure to fulfil obligations under the procedure for the exchange of information on national measures derogating from the principle of the free movement of goods (Arts 28 EC and 30 EC; European Parliament and Council Decision No 3052/95, Arts 1 and 4(2)) 1. Under the special procedure provided for in Article 16 of Directive 89/106 relating to construction products, a construction product originating in a Member State and for which there are no technical specifications harmonised or recognised at Community level must be considered by the Member State of destination as being in conformity with the provisions in force in that State, if they have satisfied tests and inspections carried out by an approved body in the producing Member State according to the methods in force in the Member State of destination or recognised as equivalent by that State. However, Article 16 of Directive 89/106 does not deal with the situation of an economic operator who has imported a construction product for which there are no technical specifications harmonised or recognised at Community level, where the producing Member State has not informed the Member State of destination of the body it has approved or intends to approve for that purpose. In addition, the special procedure provided for in Article 16 of the directive does not preclude from being evaluated in the light of Articles 28 EC and 30 EC the refusal by an approval body to give an attestation of the equivalence of a certificate issued by an approval body of another Member State. (see paras 36, 38, 40) 2. The requirement of prior approval attesting to a product’s fitness for a given use, like refusal, in that context, to recognise the equivalence of approval certificates issued by another Member State, restrict 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. Accordingly, a Member State has failed to fulfil its obligations under Articles 28 EC and 30 EC when it fails to take account of approval certificates issued by other Member States in a procedure for approval of polyethylene pipes imported from those Member States. Whilst a Member State is free to require a product which has already received approval in another Member State to undergo a fresh procedure of examination and approval, the authorities of the Member States are nevertheless required to assist in bringing about a relaxation of the controls existing in intra-Community trade. It follows that they are not entitled unnecessarily to require technical or chemical analyses or laboratory tests where those analyses and tests have already been carried out in another Member State and their results are available to those authorities, or may at their request be placed at their disposal. 3. Strict compliance with that obligation requires an active approach both on the part of the national body to which an application is made for approval of a product or recognition of the equivalence of a certificate and on the part of the approval body of another Member State which issued such a certificate. It is for the Member States to ensure that the competent approval bodies cooperate with each other with a view to facilitating the procedures to be followed to obtain access to the national market of the importing Member State. A measure introduced by a Member State cannot be regarded as not going beyond what is necessary to attain the objective pursued if it duplicates controls which have already been carried out in the context of other procedures, either in the same State or in another Member State. Moreover, by failing to communicate such a measure to the Commission within 45 days, under Decision No 3052/95 establishing a procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community, the Member State in question has failed to fulfil its obligations under Articles 1 and 4(2) of that decision. (see paras 41, 45-47, 60, 62, operative part)