61976C0123
OPINION OF MR ADVOCATE-GENERAL WARNER
DELIVERED ON 28 JUNE 1977
My Lords,
It should go without saying that an essential characteristic of a common market must be that the safety standards (if any) with which goods are required to comply should be the same throughout it, so that goods manufactured anywhere in it can be marketed freely anywhere in it. Conscious of this, the Council, on 28 May 1969, adopted by resolution a General Programme ‘for the elimination of technical barriers to trade in industrial products which result from disparities between the provisions laid down by law, regulation or administrative action in Member States’ (OJ C 76/1 of 17. 6. 1969). Among the types of product included in the First Stage of that Programme was electrical equipment for use between certain voltage limits.
Accordingly, on 13 February 1973, the Council adopted, under Article 100 of the EEC Treaty, a Directive (73/23/EEC) ‘on the harmonization of the laws of Member States relating to electrical equipment designed for use within certain voltage limits’ (OJ L 77/29 of 26. 3. 1973). The Directive was addressed to the Member States and Article 13 (1) required them to ‘put into force the laws, regulations and administrative provisions necessary to comply with [it] within eighteen months of its notification’ and ‘forthwith inform the Commission thereof’. This was subject to an exception in the case of Denmark, for which the time limit was extended to five years. The Member States were also required, by Article 13 (2), to ‘communicate to the Commission the texts of the main provisions of national laws which they adopt in the field covered by this Directive’.
In 1975 the Commission came to the conclusion that two Member States, Belgium and Italy, had not complied with their obligations under the Directive within the 18 months time limit. It accordingly proceeded under Article 169 of the Treaty in an endeavour to secure their compliance. Eventually it brought an action in this Court against each of them, Case 122/76 against Belgium and the present case against Italy. On 23 March 1977 Belgium adopted an ‘Arrêté Royal’ repealing previous Belgian legislation about safety standards for equipment within the Directive and making the provisions of the Directive applicable in Belgium. Case 122/76 was thereupon, by consent, removed from the Register of the Court, on the terms that Belgium should pay the costs.
No such step has yet been taken by Italy. A Bill to give effect to the Directive was approved by a Committee of the Italian Senate on 26 February 1976 and sent to the Chamber of Deputies on 10 March 1976 (Annex I to the Application). That Bill however lapsed as a result of the subsequent dissolution of the Italian Parliament. A new Bill (No 536) was introduced on 15 February 1977. (The text of this was supplied to the Court at its request by the Italian Government). We were told at the hearing (on 7 June 1977) that the new Bill was passed by the Senate on 25 May 1977 and that it was to be debated in the Chamber of Deputies on 8 June 1977. This Bill would not however, in the Commission's view, if passed into law unamended, entirely give effect to Italy's obligations under the Directive, partly because it omits any repeal of earlier Italian legislation inconsistent with the Directive and partly because it provides for new restrictions inconsistent with the Directive. So anxious indeed is the Commission at the prospect of the Bill being enacted without amendment that a telex about it was, so we were told, sent on 6 June 1977 to the Italian Ministry of Industry by the Commissioner concerned, Viscount Davignon.
It is conceded on behalf of Italy that it has not completely complied with the Directive. That being so, this action must on any view succeed. The real dispute between the parties is not however about that. It is as to the extent to which Italy is in breach of the Directive. The Italian Government contends that current Italian law and administrative practice already comply in substance with it, the divergences between them and the requirements of the Directive being minor and mostly ‘formal’. The Commission on the other hand contends that Italy's failure to comply with the Directive is substantial.
It is therefore, I think, necessary for Your Lordships to look closely at the terms of the Directive.
In so doing one has to bear in mind that the word ‘standards’ in the present context can be used in two different senses. In one sense it means simply safety criteria or levels prescribed by legislation. In another and narrower sense it connotes technical documents drawn up by standards institutions and to which legislation may refer. As is indicated by the preamble to the Directive, the word is in the Directive used in this second sense.
The Directive begins by defining, by Article 1, the equipment to which it applies. This is electrical equipment ‘designed for use with a voltage rating of between 50 and 1000 v. for alternating current and between 75 and 1500 v. for direct current, other than the equipment and phenomena listed in Annex II’. The Commission explained how, by virtue of that definition, the Directive applies to the vast bulk of electrical equipment used for industrial, commercial and domestic purposes. The exceptions listed in Annex II are for special kinds of equipment, for which separate harmonization Directives either have been adopted or are envisaged. The exceptions include ‘Electrical equipment for use in an explosive atmosphere’ (e.g. miners' lamps), ‘Electrical equipment for radiology and medical purposes’_‘Electrical parts for goods and passenger lifts’, etc. There is also excepted from the scope of the Directive, by Article 12, ‘electrical equipment intended for export to third countries’.
Its scope having thus been defined, the Directive proceeds to impose a series of obligations on the Member States, most of them introduced by the words ‘The Member States shall take all appropriate measures to ensure that …’ (In this respect we were told by the Commission that there was an error in the French text of Article 3 as published in the Official Journal: see the French translation of the Application p. 2, footnote (1)).
So far as relevant for present purposes, those obligations fall into two main groups, the first relating to the basic objectives of the Directive and the second to the means by which those objectives are to be attained.
The structure of the first group is readily intelligible if one bears in mind that the harmonization of safety standards (in the wide sense) aims at two results. The first, which may be called the ‘negative result’, is that no goods should be placed on the market anywhere in the Community that do not comply with the appropriate standard. The second, the ‘positive result’, is that goods that do comply with the standard should be able to circulate freely within the Community.
Article 2 imposes on Member States a general obligation to secure the negative result. Paragraph 1 thereof provides:
‘The Member States shall take all appropriate measures to ensure that electrical equipment may be placed on the market only if, having been constructed in accordance with good engineering practice in safety matters in force in the Community, it does not endanger the safety of persons, domestic animals or property when properly installed and maintained and used in applications for which it was made.’
Paragraph 2 refers to Annex I in which what are described as ‘the principal elements of the safety objectives referred to in paragraph 1’ are listed. I need not, I think, set these out. They cover nearly a page of print and are fairly detailed. But, as their description indicates, they are not exhaustive and do not in themselves constitute a standard in the narrow sense. (They are more in the nature of guidelines as to what such standards should provide for). They are reproduced in Article 3 of the Belgian ‘Arrêté Royal’ that I have mentioned and in an Annex to the Bill at present before the Italian Parliament.
The general obligation to secure the positive result is imposed on Member States by Article 3 of the Directive. This reads:
‘The Member States shall take all appropriate measures to ensure that if electrical equipment is of such a nature as to comply with the provisions of Article 2, subject to the conditions laid down in Articles 5, 6, 7 and 8, the free movement thereof within the Community shall not be impeded for reasons of safety.’
That is completed by Article 4, which provides:
‘In relation to electrial equipment the Member States shall ensure that stricter safety requirements than those laid down in Article 2 are not imposed by electricity supply bodies for connexion to the grid, or for the supply of electricity to users of electrical equipment.’
Articles 5, 6, 7 and 8, to which reference is made in Article 3, contain the second main group of obligations imposed on Member States to which I have referred. They were described by the Commission as instituting ‘a hierarchy of standards’. This is in a sense true.
Article 5, to which I shall have to return, because its interpretation is a major bone of contention between the parties, provides for the drawing up of Community ‘harmonized standards’ and for goods complying with such standards to be regarded ‘as complying with the provisions of Article 2, for the purposes of placing on the market and free movement as referred to in Articles 2 and 3 respectively’.
Article 6 relates to what may be called ‘international standards’. Paragraph 1 of that Article provides:
‘Where harmonized standards as defined in Article 5 have not yet been drawn up and published, the Member States shall take all appropriate measures to ensure that, for the purposes of placing on the market or free movement as referred to in Articles 2 and 3 respectively, their competent administrative authorities shall also regard as complying with the provisions of Article 2, electrical equipment which complies with the safety provisions of the International Commission on the Rules for the Approval of Electrical Equipment (CEE) or of the International Electrotechnical Commission (IEC) in respect of which the publication procedure laid down in paragraphs 2 and 3 has been applied.’
I need not trouble Your Lordships with paragraphs 2 and 3 because it is common ground that the ‘publication procedure’ laid down in them has not in fact been applied to any of the safety provisions of the CEE or of the IEC. The Commission explained to us that the reason for this was that such rapid progress had been made with the drawing up of harmonized standards under Article 5 that such resort to international standards has not been thought worth while. The Commission says, and this indeed is confirmed by the preamble to the Directive, that Articles 6 and 7 were conceived as transitional measures to have effect only in so far and so long as harmonized standards had not been drawn up under Article 5. The result is that Article 6 has remained a dead letter.
Third in the ‘hierarchy’ of standards envisaged by the Directive are ‘national standards’. These are dealt with by Article 7, which provides:
‘Where harmonized standards within the meaning of Article 5 or safety provisions published in accordance with Article 6 are not yet in existence, the Member States shall take all appropriate measures to ensure that, for the purpose of placing on the market or free movement as referred to in Articles 2 and 3 respectively, their competent administrative authorities shall also regard as complying with the provisions of Article 2, electrical equipment manufactured in accordance with the safety provisions of the standards in force in the Member State of manufacture, if it ensures a safety level equivalent to that required in their own territory.’
That is not, to my mind, an easy provision to interpret. At first sight it seems to require compliance both with the standards in force in the Member State of manufacture and with whatever criteria may be in force in the importing Member State (whether they take the form of standards in the narrow sense or not). That however cannot be right for, if it were, the provision would be retrograde. In its absence it would have been enough for the equipment to comply with the criteria in force in the importing Member State. The arguments of the parties threw little light on the question, largely because the dispute between them is not concerned with it. Probably Article 7 means that the importing Member State is to accept equipment complying with the standards of the manufacturing Member State unless the safety level afforded by these falls short of what is secured by its own law: in other words it envisages the same safety level being achieved by different methods.
The functions of Article 8 differ from those of Articles 6 and 7 in that it is not merely transitional. It affords a means whereby a product may gain acceptance even though it complies with no published standard, whether harmonized, international or national. Article 8 reads:
‘1.   The Member States shall take all appropriate steps to ensure that their competent administrative authorities shall also allow the placing on the market or free movement, as referred to in Aricles 2 and 3 respectively, of electrical equipment which, although not conforming with the harmonized standards referred to in Article 5 or the provisions of Articles 6 and 7, complies with the provisions of Article 2.
2.   In the event of a challenge the manufacturer or importer may submit a report, drawn up by a body, which is notified in accordance with the procedure set out in Article 11, on the conformity of the electrical equipment with the provisions of Article 2.’
Article 11 provides for each Member State to notify the others and the Commission of, among other things, the identity of the bodies it has chosen to represent it in the harmonization procedure under Article 5 and to make reports under Article 8. Article 11 reserves to each Member State the power to amend any such notification. The body notified by Italy for both purposes is the Comitato Elettrotecnico Italiano (or ‘CEI’).
To complete that outline of the provisions of the Directive, I must mention that Article 9 prescribes a procedure to be invoked where a Member State prohibits the placing on the market of any equipment within the Directive, or impedes its free movement, on the ground that it does not, for some reason, comply with Article 2, whilst Article 10 deals with marks, certificates and declarations of conformity.
The Commission's case is, in a nutshell, that Italy has failed to legislate so as to make the provisions of the Directive applicable in Italy, in particular Articles 2 (with Annex I), 5, 6, 8, 9 and 10.
Italy (through its Government) admits its failure as regards Article 8, but says that it is of minor and marginal importance; and there was virtually no argument about Articles 9 and 10.
The dispute between the parties centres on the one hand on Articles 2 and 3, and on the other hand on Articles 5 and 6.
Italy's defence as regards Articles 2 and 3 rests on an Italian statute of 1 March 1968 (No 186). This incidentally was listed by the Commission in the Application (p. 10, footnote (1)) among the items of Italian legislation requiring modification to comply with the Directive. It provides that all electrical and electronic equipment ‘shall be constructed in accordance with good engineering practice’ (‘devono essere realizzati a regola d'arte’) and that equipment constructed according to the standards of the CEI (‘realizzati secondo le norme del Comitato elettrotecnico italiano’) shall be regarded as constructed in accordance with good engineering practice. The argument put forward on behalf of Italy is that that statute, bearing in mind that it does not make compliance with a CEI standard the sole criterion of compliance with its requirements, has the same effect as Article 2 of the Directive and, by the same token, the same effect as Article 3. As to the ‘elements’ set out in Annex I to the Directive, it is said on behalf of Italy that they do no more than spell out what constitutes ‘good engineering practice’. The Commission naturally disputes this. It submits that those elements are far too detailed and precise to be regarded as necessarily implicit in the general phrase good engineering practice. Furthermore it submits that other Italian legislation which remains in force, in particular Articles 314 and 315 of a Presidential Decree (DPR No 547) of 27 April 1955 and the provisions of a Ministerial Decree (No 307) of 20 December 1968, impose requirements differing from those in Annex I. It seems to me, may Lords, that, in all this, the Commission is right.
As regards Articles 5 and 6 Italy's defence is that what happens under current Italian legislation and administrative practice does not conflict with what the Directive requires, because in fact no harmonized standards have yet been drawn up under Article 5 nor (as is common ground) have any international standards been published in accordance with Article 6. It is candidly admitted on Italy's behalf that, if harmonized standards did exist, Italy would be in substantial breach of its obligations under the Directive.
In my opinion that argument is misconceived. The obligation of each Member State (other than Denmark) under Article 13 (1) of the Directive, in relation to Articles 5 and 6, was to put into force, within the 18 months time limit, the legislative or administrative provisions necessary to ensure that, as soon as harmonized standards had been adopted or international standards had been published, they would be recognized by its competent authorities. It was not enough for a Member State to wait until the actual adoption or publication of a standard before taking steps to ensure its recognition. It follows in my opinion that Italy is in breach of its obligations under those Articles and, if this is material, that the breach is substantial.
I would leave the case there, were it not that, in seeking to demonstrate that no harmonized standards yet existed, the Italian Government raised questions of far-reaching importance as to the interpretation of Article 5. It would be most unsatisfactory if those questions, which took up a great deal of the argument between the parties, were left unresolved.
Article 5 provides:
‘The Member States shall take all appropriate measures to ensure that, in particular, electrical equipment which complies with the safety provisions of harmonized standards shall be regarded by their competent administrative authorities as complying with the provisions of Article 2, for the purposes of placing on the market and free movement as referred to in Articles 2 and 3 respectively.
Standards shall be regarded as harmonized once they are drawn up by common agreement between the bodies notified by the Member States in accordance with the procedure laid down in Article 11, and published under national procedures. The standards shall be kept up to date in the light of technological progress and the developments in good engineering practice in safety matters.
For the purposes of information the list of harmonized standards and their references shall be published in the Official Journal of the European Communities.’
Your Lordships see that, under the procedure laid down in that Article, the adoption of a harmonized standard involves three steps:
(1)
It must be drawn up by common agreement between the bodies notified by the Member States under Article 11;
(2)
It must be published under national procedures; and
(3)
It must be included, for purposes of information, in a list published in the Official Journal of the Communities.
The Commission accepted that no such list had yet been published. We were told by the Commission that it was minded to publish one this month. We were also told by the Commission that only two Member States had yet published harmonized standards ‘under national procedures’, namely France and the Netherlands. We were not told what was causing delay in the other Member States (leaving aside Denmark and Italy itself). In the result there is perhaps something to be said for the Italian Governments view that no harmonized standard is yet in force.
The Italian Government's contention was not however based on anything to do with publication. It was concerned with what was required under the first step.
At one point it seemed to me that the Italian Government might be arguing that the CEI had not validly been notified under Article 11 as the body to represent Italy for the purposes of Article 5. Reference was made to the fact that the only document before the Court evidencing that notification, a telex dated 22 November 1974 (Annex 1 to the Rejoinder), described it as being ‘subject to confirmation’. Counsel for the Italian Government made it clear, however, at the hearing, in answer to a question of mine, that the validity of the CEI's appointment under Article 11 was not in doubt. Had it been, the question would of course have arisen whether Italy was in breach of Article 11.
The Italian Government's contention was that the procedure adopted by the bodies actually notified by the Member States under Article 11 to draw up harmonized standards had not been in accordance with what Article 5 called for. In order to explain that contention I must say a word about that procedure.
It seems that in the late 1950s the standards institutions of the original Member States of the Community (with the exception of Luxembourg) formed a committee, the ‘Comité Européen des Normes Electrotechniques de la Communauté’ or ‘CENELCOM’ with a view to harmonizing their standards. In the 1960s the members of the CENELCOM together with the standards institutions of the then Member States of the EFTA formed the ‘Comité Européen des Normes Electrotechniques’ or ‘CENEL’. After the accession of the new Member States to the Community in 1973, the CENELCOM and the CENEL were reorganized into the ‘Comité Européen de Normalisation Electrotechnique’ or ‘CENELEC’. (The CENELEC also has an English name, the ‘European Committee for Electrotechnical Standardization’, and a German name, the ‘Europäisches Kommitee fur Elektrotechnische Normung’).
The present ‘Internal Regulations’ of the CENELEC are in evidence (as Annex VII to the Commission's Answers to the questions put to it by the Court at the close of pleadings). Those Regulations open with the following:
‘1.
General
1.1.
Objectives
1.1.1.
In accordance with the aims of the Treaty of Rome ‘impediments to trade resulting from stipulations of a technical kind’ are to be eliminated. As regards electrotechnical standardization, this task devolves on the National Electrotechnical Committees of the member countries of the European Communities (EC).
For that reason, the National Electrotechnical Committees of the member countries of the European Communities are grouped together in an association called the European Committee for Electrotechnical Standardization abbreviated to ‘CENELEC’.
1.1.2.
Given the close trade relations between the countries of the former European Free Trade Association not becoming members of the European Communities on the one hand and the member countries of the European Communities on the other, there is a common interest in achieving the aforesaid objectives by cooperation between the National Committees of all EC countries and those of the former Free Trade Association. Therefore the National Committees of the latter have joined CENELEC’
The case was argued on the footing that the ‘National Committees’ of the Member States of the Communities that are ‘grouped together’ in the CENELEC are in fact the bodies notified by the Member States under Article 11 of the Directive. The list of such National Committees in paragraph 4.2 of the Regulations does not include one from Luxembourg, but no point was taken as to this, from which I assume that Luxembourg actually appointed to represent it the ‘National Committee’ of another Member State. Besides the ‘National Committees’ of the eight Member States other than Luxembourg, the list includes those of Austria, Finland, Norway, Portugal, Sweden and Switzerland.
The list in paragraph 4.2 indicates the weighting of the individual ‘National Committees’ for the purposes of voting. Those of France, Germany, Italy and the United Kingdom have 10 votes each, those of Belgium, the Netherlands, Sweden and Switzerland have 5 votes each and the remainder have 3 votes each. Paragraph 4.3 provides that a proposal submitted for voting is to be considered adopted ‘unless the number of weighted negative votes exceeds 15’. Paragraph 4.4 provides that, if it does, ‘the votes of the National Committees from member countries of the European Communities’ are to be counted separately, that ‘If more than two of these countries vote against the proposal, it is not adopted; if more than 15 weighted negative votes are cast by these countries, it is also not adopted’ and that, once a proposal is adopted, it is, to put it shortly, binding on ‘all National Committees of the member countries of the European Communities’ and on ‘those other National Committees … which voted in favour of the result’. Those provisions for majority voting are however regarded as ‘faute de mieux’. Paragraph 4.1 expressly stresses that ‘as far as possible, unanimity should be achieved’.
It appears that the CENELEC works mainly by means of ‘Harmonization Documents’ or ‘HDs’. These are provided for by the Regulations and four examples of them were put in evidence by the Commission (as Annexes II, III, IV and V to its Answers to the Court's questions). Each one of them states on its cover sheet: ‘Relevant EC Directive 73/23/CEE’. The Commission also put in (as Annex I to those Answers) a list of 59 HDs which, it said, constituted the harmonized standards so far agreed under Article 5 of the Directive. This is the list that the Commission told us it intended to publish in the Official Journal this month. The Commission added that, according to the information available to it, those HDs or standards represented about 60 % of the total that would eventually be published under Article 5, apart from republications occasioned by — to quote Article 5 — ‘technological progress and the developments in good engineering practice in safety matters’.
The contention put forward on behalf of Italy was that the activities as members of the CENELEC of the bodies notified by the Member States under Article 11 of the Directive were distinguishable in law from the activities that they were called upon to undertake under Article 5. CENELEC was a ‘private’ organization operating outside the framework of the Community and in accordance with rules as to majority voting inconsistent with the requirement of ‘common agreement’ in Article 5.
Quite what the Italian Government meant by dubbing the CENELEC a ‘private’ organization was not specified. It may be that the Italian Government had in mind the distinction that is drawn in the legal systems of some Member States between ‘bodies governed by private law’ and ‘bodies governed by public law’. If so it would be enough to say that that distinction is, in the present context, manifestly meaningless. Probably, however, the Italian Government was referring to the fact that the CENELEC, so it appears, was set up by its member institutions on their own initiative rather than on the initiative of the Commission. But that too is, in my opinion, neither here nor there. The Directive leaves the bodies to be notified by Member States under Article 11, which need not themselves be of a governmental nature, free to organize themselves for their task under Article 5 in any way they think fit.
There was in my view little more substance in the submission that the CENELEC operated outside the Community framework. In support of that submission the Italian Government referred to the presence in the CENELEC of the bodies representing EFTA countries and to the fact that the official languages of the CENELEC are English, French and German only (see paragraphs 1.5 and 7.6 — 9 of the Internal Regulations). As to the first of those points, it is to be observed that Article 5 does not preclude the bodies notified under Article 11 of the Directive from cooperating, however closely, with corresponding bodies in other countries. To my mind it is almost outrageous to suggest that so sensible an arrangement should be held to invalidate their proceedings for the purposes of Article 5. As to the second point, there is no rule of Community law that all Community business must be transacted in all six languages. Indeed such a rule would be quite impractical. The Commission said that, if any Italian representatives found themselves in linguistic difficulties in the CENELEC, it could make the necessary translation and interpretation facilities available. That seems to me the right approach: the problem here, if there be one, is of an administrative nature and without legal significance.
Perhaps the Italian Governments best point on this part of the case was as to the apparent inconsistency of the CENELEC's rules as to majority voting with the requirement of ‘common agreement’ in Article 5. The Commission met this point in two ways. It said first that in fact the rules as to majority voting had not been invoked in the drawing up of any of the 59 HDs to which it referred. All had been adopted unanimously, so far at all events as the representatives of the Member States of the Community were concerned. That seems to me to be in itself a sufficient answer. If those HDs were in fact adopted by common agreement, it cannot matter that they might not have been. Secondly the Commission said that, in any case, it was, under Article 5, open to the bodies notified by Member States under Article 11 to reach a ‘common agreement’ that they would be bound by rules as to majority voting to which they all assented. That proposition may well be correct, on the footing that the Council, by Article 5, gave a free hand to those bodies as to how they should reach agreement. It is not however, I think, necessary in this case to express a definite conclusion as to whether it is correct.
Lastly I should mention a point made by the Italian Government and arising from the fact that under the Internal Regulations of the CENELEC there are two kinds of HDs, one unqualified and the other specifying national ‘deviations’ (see paragraph 3.2.3.1 of those Regulations). Such deviations can be due only to ‘legislative, statutory or administrative regulations’ existing in a particular country. This, said the Italian Government, demonstrated that the members of the CENELEC, as such, could not bind the Member States and that the standards drawn up by them were not true harmonized standards. In my opinion it demonstrates nothing of the sort. It constitutes on the one hand an acknowledgment that some members of the CENELEC are from countries outside the Community which are not bound by Community Directives (and also an acknowledgment of the fact that Denmark is not yet bound by, at all events, the Directive here in question) and, on the other hand, an acknowledgment of the fact that neither the CENELEC nor any member of it has power to amend the national law of a Member State. This, if necessary, the Member State itself must do pursuant to its obligations under the Directive. It is noteworthy that, of the HDs put in evidence as examples by the Commission, two, namely HD 252 relating to ‘Vacuum Cleaners and Watersuction Cleaning Appliances’ and HD 253 relating to ‘Electric Irons, Ironers and Pressing Machines’, contain such ‘variations’. In HD 252, there are four. The first relates to France, where vacuum cleaners are expressly required to be constructed so as to be suitable for, or capable of adjustment to, a supply voltage of 220 v. — which could perhaps go without saying. The second relates to Denmark. The third relates to Italy, and is stated to be due to Articles 314 and 315 of DPR No 547 of 27 April 1955 (which, as I mentioned earlier, the Commission submits, in my opinion rightly, is inconsistent with the Directive). The fourth relates to Germany and is recorded as having ‘still to be removed’. In HD 253 the ‘variations’ are more numerous. Again there is one relating to Italy attributed to Articles 314 and 315 of DPR No 547; and there is a trivial one relating to both Denmark and France, recorded as having ‘still to be removed’. The remainder relate to Germany. Of these, two are recorded as having ‘still to be removed’.
The others are attributed to an item of German legislation (UVV VGB 7b) described as ‘outside the competence of the National Committee’. I imagine that, in order for Germany to comply with the Directive, that item of legislation must probably be repealed. But we have not of course heard Germany on the question.
In the result I would reject the contention of the Italian Government that the procedure adopted in the CENELEC by the bodies notified by the Member States under Article 11 does not accord with Article 5.
In any case, however, I am of the opinion, for the reasons I stated earlier, that the Commission is entitled —
(1)
to a declaration that the Italian Republic has failed to fulfil an obligation under the EEC Treaty by failing to comply with the Directive; and
(2)
to an order that the Italian Republic pay the costs of this action.