61979C0815
OPINION OF MR ADVOCATE GENERAL WARNER
DELIVERED ON 23 SEPTEMBER 1980
Contents
Introductory
The first and second questions
The third and fourth questions
The fifth question
Conclusions
My Lords,
Introductory
This case comes before the Court by way of a reference for a preliminary ruling ordered under Article 177 of the EEC Treaty by the Pretura Penale of Como. I have found it a difficult case, despite the fact that we have had, in it, the benefit of a carefully reasoned order for reference and, in addition to observations on behalf of the defendants in the proceedings before the Pretura (Mr Gaetano Cremonini and Mrs Maria Luisa Vrankovich) the benefit of observations from four governments, those of France, Italy, the Netherlands and the United Kingdom, and from the Commission.
The case raises questions as to the interpretation and effect of Council Directive No 73/23/EEC of 19 February 1973“on the harmonization of the laws of Member States relating to electrical equipment designed for use within certain voltage limits” and it is, in a sense, a sequel to Case 123/76 Commission v Italy [1977] 2 ECR 1449. That was an action under Article 169 of the Treaty, where the Court, in a judgment dated 14 July 1977, held that, in not having brought into force within the prescribed period the legal and administrative provisions necessary to comply with that directive, the Italian Republic had failed to fulfil an obligation under the Treaty.
On 18 October 1977 the Italian Parliament enacted a Statute, Statute No 791, implementing or purporting to implement the Directive. Whether that Statute fully gave effect to the provisions of the Directive is one of the questions that the Pretore has to decide. The Statute did not wholly repeal Articles 314 and 315 of a Presidential Decree, DPR No 547 of 27 April 1955, which in Case 123/76 the Commission had submitted and I had said were incompatible with the Directive. Putting it shortly, Article 314 requires electrical equipment having a motor powered by current in excess of a certain voltage to be earthed, whilst Article 315 requires portable electrical equipment to have additional insulation. The Commission says that safety considerations do not make it neccessary for equipment to be both earthed and provided with additional insulation; and that the cumulative requirements of Articles 314 and 315, from which the Italian authorities frequently derogate, exist for protectionist rather than safety purposes.
The facts of the Case are in outline these :
In 1979 Mr Cremonini and Mrs Vrankovich (whom I shall henceforth call “the defendants”) imported into Italy from Belgium electric smoothing irons bearing the trademarks “Calor” and “Rowenta”, electric drills bearing the trademark “Metabo” and electric lawnmowers bearing the trademark “Gazonette”. None of those goods complied with the requirements of Articles 314 and 315 of the DPR of 1955. The irons had an earth connection but lacked the additional insulation required by Article 315. The drills and the lawnmowers had that insulation but no provision for an earth. It seems that in consequence the importation of the goods may have constituted a criminal offence under Italian law. On 7 July 1979 criminal proceedings were instituted against the defendants in the Pretura Penale of Como, which ordered the goods to be impounded. That order was carried out on 9 October 1979. On 22 October 1979 the defendants applied for the release of the goods, on the ground that they complied with the requirements of the Directive. Hence the reference by the Pretore to this Court, which he ordered on 27 November 1979.
To one who is not an Italian lawyer the procedure before the Pretura is strange, because it seems that the proceedings were instituted and that the order impounding the goods was made on the initiative of the Pretura itself, i.e. of a judicial authority. I mention this because it helps to explain why the questions referred by the Pretore to this Court arė formulated as they are.
We were told by Counsel for the defendants that the case was typical of hundreds that had occured in Italy, particularly in Milan, where Pretori Penali have ordered the impounding of goods, both imported and of Italian manufacture, on the ground of their noncompliance with the provisions of the DPR of 1955. Your Lordships' decision in this case, which is the first of its kind to have been referred to this Court, will therefore, Counsel said, be of far-reaching importance. That view was endorsed by the Commission, which has, so it told us, initiated fresh proceedings against the Italian Republic under Article 169 on the subject. Those proceedings have not yet, it seems, reached the stage of an application by the Commission to this Court.
The Directive is, as Counsel for the French Government observed, at first sight full of contradictions and difficult to interpret.
Before I embark on an examination of its terms may I remind Your Lordships of the distinction to which I drew attention in Case 123/76 between the two senses in which the word “standard” may be used in the present context. 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. It is of paramount importance to bear that in mind when reading the provisions of the Directive.
In its operative part, 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”. That covers the vast bulk of electrical equipment used for industrial, commercial and domestic purposes. It includes the smoothing irons, drills and lawnmowers here in question. I need not, I think, trouble Your Lordships with the exceptions in Annex II. 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. 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.
As the Court held in Case 123/76, the obligations in the first group aim at both the “negative result” that no goods should be placed on the market anywhere in the Community that do not comply with the appropriate safety requirements and the “positive result” that goods that do comply with those requirements 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 of that Article 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 states that “the principal elements of the safety objectives referred to in paragraph 1 are listed in Annex I”. I will come to Annex I in due course.
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 electrical 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 connection to the grid, or for the supply of electricity to users of electrical equipment”.
Articles 5 to 10 of the Directive contain the second main group of obligations imposed on Member States to which I have referred. Articles 5, 6, 7 and 8 lay down ways of establishing conformity with the safety objectives of Article 2, based on a kind of hierarchy of standards. Articles 9 and 10 contain important ancillary provisions.
Neither Article 5 nor Article 6 is in point in this case, so I can deal with them shortly.
Article 5 provides for the drawing-up and publication of Community “harmonized standards”, and for electrical equipment that complies with the safety provisions of 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”. Harmonized standards are placed at the top of the hierarchy in the sense that, where available, they are to be used in preference to other methods of establishing conformity with Article 2. A first list of such standards has been published as part of a “Communication”by the Commission which is to be found in the Official Journal (C 184 of 23. 7. 1979).
Article 6 provides that, where harmonized standards have not yet been drawn up and published, goods that comply with what may be called “international standards”, namely the safety provisions of the International Commission on the Rules for the Approval of Electrical Equipment or of the International Electro-technical Commission, are to be regarded as complying with Article 2. International standards, therefore, come second in the hierarchy. They represent a transitional solution, as the preamble to the Directive expressly states and as the wording of Article 6 confirms.
Third in the hierarchy, and also providing a transitional solution, 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 Article is invoked here in relation to the Calor and Rowenta smoothing irons. We were told by the Dutch Government that international standards (within Article 6) have existed in respect of smoothing irons since 29 January 1979. At the hearing we were told by an expert called on behalf of the Commission that in fact there was a harmonized standard (within Article 5) applicable to smoothing irons. Neither the existence of the international standard, nor that of the harmonized standard, seems, however, to have been drawn to the attention of the Pretore. This being a reference under Article 1 77 of the Treaty, Your Lordships' duty is, I apprehend, to answer the Pretore's questions as they have been put on the basis of the issues raised before him. If those issues are false ones, because based on out-of-date facts, that is a matter that must be raised by the defendants before the Pretore.
Article 8 differs from 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. We were told on behalf of the Commission that one reason why it is of permanent application is that it is intended to deal with cases where technical progress has outstripped published standards. On behalf of the United Kingdom Government we were told that it can apply in two types of case: (i) the simple type of case where the equipment does not purport to comply with the safety provisions of any relevant standard and (ii) the more complex type where, for instance, the equipment does purport to conform to a standard but it is found on examination that that standard is inappropriate.
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 Articles 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 8 is invoked in this case in relation to the Metabo drills and the Gazonette lawnmowers.
Article 9 provides:
“1.   If, for safety reasons, a Member State prohibits the placing on the market of any electrical equipment or impedes its free movement, it shall immediately inform the other Member States concerned and the Commission, indicating the grounds for its decision and stating in particular:
—
whether its nonconformity with Article 2 is attributable to a shortcoming in the harmonized standards referred to in Article 5, the provisions referred to in Article 6 or the standards referred to in Article 7;
—
whether its nonconformity is attributable to faulty application of such standards or publications or to failure to comply with good engineering practice as referred to in Article 2.
2.   If other Member States raise objections to the decision referred to in paragraph 1, the Commission shall immediately consult the Member States concerned.
3.   If an agreement. has not been reached within three months from the date of notification as laid down in paragraph 1, the Commission shall obtain the opinion of one of the bodies notified in accordance with the procedure laid down in Article 11 having its registered office outside the territory of the Member States concerned and which has not been involved in the procedure provided for in Article 8. The opinion shall state the extent to which the provisions of Article 2 have not been complied with.
4.   The Commission shall communicate the opinion of this body to all the Member States which may, within a period of one month, make their observations known to the Commission. The Commission shall at the same time note any observations by the parties concerned on the abovementioned opinion.
5.   Having taken note of these observations the Commission shall, if necessary, formulate the appropriate recommendations or opinions”.
It is common ground that that procedure has not been put in motion by Italy in this case, or indeed ever. That fact is much relied upon by the defendants.
Article 10 provides:
“1.   Without prejudice to other methods of proof, the Member States shall take all appropriate steps to ensure that their competent administrative authorities shall accept that there is a presumption of conformity with the provisions of Articles 5, 6 and 7 where a mark has been placed on the electrical equipment denoting conformity, or where a certificate of conformity is produced or, in the absence thereof, and in particular in the case of industrial equipment, the manufacturer's declaration of conformity.
2.   The marks or certificates shall be established, separately or by common agreement, by the bodies notified in accordance with the procedure laid down in Article 11. Specimens of these marks or certificates shall be published by these bodies and, for information purposes in the Official Journal of the European Communities”.
The Commission's “Communication” published in the Official Journal to which I referred earlier also sets out specimens of the marks established under Article 10. They include the Belgian “CEBEC” mark and the German “VDE” mark, which the Calor and Rowenta smoothing irons respectively bore. I shall call a mark established under Article 10 a “mark of conformity”.
Article 11 of the Directive provides for the Member States to inform each other and the Commission of, inter alia, the identity of the bodies chosen by them (i) to take part in the process of drawing up harmonized standards under Article 5, (ii) to establish marks and certificates under Article 10, and (iii) to produce reports and opinions under Articles 8 and 9. It appears from the “Communication” to which I have already twice referred that such bodies have been appointed by all the Member States, except that none has been appointed by Luxembourg for the purposes of Articles 8, 9 or 10.
Your Lordships will remember that Article 2 of the Directive refers to Annex I as listing the “principal elements of the safety objectives” to be sought for equipment to which the Directive applies. Although the text of that Annex is important, it is rather long and I propose to refrain from reading it. It is in three parts, of which Part 1 contains “General Conditions”, Part 2 requires “measures of a technical nature” to be “prescribed” for protection in various ways “against hazards arising from the electrical equipment”, and Part 3 requires similar measures to be prescribed for protection “against hazards which may be caused by external influences on the electrical equipment”. Nowhere is it stated by whom those measures are to be prescribed. I infer that they are to be prescribed by the standards to which the Directive relates and, in the absence of a relevant standard, by the laws of Member States. As the Commission
pointed out, however, that does not mean that the laws of Member States may prescribe measures going beyond what is needed to comply with the provisions of the Annex — or, for that matter, falling short of what is needed for that purpose.
I mentioned earlier that the order for reference in this case was carefully reasoned. It is a feature of it that it sets out the Pretore's tentative views on the arguments presented to him on behalf of the defendants. The Pretore observes in particular that those arguments are such as to attribute to the provisions of the Directive a direct effect equivalent to that of provisions of a directly applicable Community regulation. Citing Article 189 of the Treaty, the Pretore wonders whether the effect of the Directive may not be limited to indicating to Member States “the result to be achieved” without its having the binding force inherent in a Community regulation. He acknowledges, however, that there are cases in which this Court has held that provisions contained in a directive can have a “binding effect”. He gives as an example Case 148/78, the Ratti case [1979] ECR 1629. That being so the Pretore does not consider that it would be right for him to take upon himself the task of deciding as to the scope of the Directive. He gives as an added reason for making this reference that an authoritative interpretation of the Directive will assist him in placing a proper interpretation on the Italian Statute of 1977.
The question raised by the Pretore on Article 189 of the Treaty is of course a familiar one. I dealt with it at some length recently in my opinion in Case 131/79, the Scintillo case (not yet reported — see pages 10 to 18 of the typescript), where I cited the Ratti case among other authorities. I will spare Your Lordships a repetition of what I there said. The Court itself did not find it necessary to deal with the question in that case but it did so in Case 102/79 Commission v Belgium (not yet reported — see paragraphs 6, 7 and 12 of the judgment), in a way which, if I may say so, appears to me entirely to coincide with the views I had expressed. The crux, in my opinion, is that direct applicability and direct effect, though they may overlap, are different concepts. It is never appropriate to speak of the direct applicability of a directive, but there are circumstances in which a provision in a directive may have a direct effect. Where such a provision requires a Member State to confer, by its own law, rights on private persons and defines those rights with sufficient precision, a Member State that has failed to comply with that obligation, or has complied with it imperfectly, may not rely upon that fact as against a private person and seek to enforce against him provisions of its own law that are incompatible with the requirements of the directive. Having regard to the circumstances of this case I would add that in my opinion that principle undoubtedly applies where the failure to comply with the obligation imposed by the directive is the fault of the Member State's legislature whilst the steps to enforce the incompatible national law are taken by its judiciary. That is because, as is well established, the entity to which, fundamentally, Community law looks for compliance with a Member State's obligations under the Treaty is the Member State itself, without regard to which of its constitutional organs is responsible for its action or inaction in particular circumstances — see as to that the authorities that I collected in Case 30/77 Regina v Bouchereau [1977] 2 ECR at p. 2020.
The Italian Government in its observations in this case conceded, in the light of the Ratti case, that the principle was as I have stated it to be, but submitted that that principle was inapplicable here because Directive No 73/23 had been implemented in Italy by the Statute of 1977. It was therefore, so the Italian Government argued, that Statute that the Pretore must interpret and apply, not the Directive. The Italian Government went so far as to submit, on the strength of that argument, that the Pretore's reference to this Court was inadmissible. In my opinion that submission is plainly misconceived, if only because it is apparent from the order for reference that the defendants have put in issue before the Pretore the question whether the Statute of 1977 fully complies with the Directive. Moreover this Court has held that, regardless of the effects of a directive, a ruling on its interpretation may be sought by a national court to assist it in interpreting the national implementing legislation — see Case The United Kingdom Government (in written observations) and the French Government (in oral observations) submitted that none of the provisions of Directive No 73/23 relied upon by the defendants could have any direct effect. The starting point of the United Kingdom Government's argument to that effect was the proposition that “A provision in a directive can have direct effect only if it is clear and precise, unconditional, is not subject to further Community legislation and leaves no discretion to the Member States other than in respect of the form and method of implementation”. The starting point of the French Government's argument was the same proposition worded more succinctly. For the reasons that I gave in my opinion in the Santillo case, that proposition is not, in my view a correct formulation of the relevant principle. It places the emphasis on the wrong factors and overlooks that, fundamentally, the direct effect of a directive is a phenomenon that arises where a Member State, in breach of its obligations under the directive, fails to confer on a private person a right enforceable in its own courts. It is true of course that that phenomenon cannot arise where the terms of the directive are so imprecise, or the discretion they leave to Member States so wide, that they cannot be interpreted as intended to beget such rights. For an example of that, see Case 152/79 Lee v Minister of Agriculture (6 May 1980, not yet reported).
In approaching the question whether a provision in Directive No 73/23 can have a direct effect one must, in my opinion, bear in mind that Articles 30 and 36 of the Treaty have direct effect. Thus, in the absence of the Directive, if a Member State sought to restrict imports of electrical equipment from another Member State on grounds of safety, it would be open to an importer to challenge the restriction in the courts of that State if he could show that, in the words of Article 36, it constituted “a means of arbitrary discrimination or a disguised restriction on trade between Member States”. The purpose of the Directive, in so far as it is designed to achieve the “positive result” to which I referred earlier, is to substitute for that broad formula something much more precise. It would be strange, to take an extreme example, if, where a harmonized standard had been established, and its validity was unchallenged, a Member State could deny to an importer the right to rely on it and could still compel him to rely on Articles 30 and 36.
Before I turn to the Pretore's actual questions I must mention a cognate general point. It is noteworthy that some articles of the Directive, Articles 5, 6, 7, 8 and 10, in imposing obligations on the Member States, use a formula that refers to “their competent administrative authorities”. Under those Articles the Member States are to “take all appropriate measures to ensure that their competent administrative authorities” do this or that. Other articles, and notably Articles 2, 3 and 9, impose obligations on the Member States simpliciter. From that it might seem that the authors of the Directive had meant to draw a distinction, for certain purposes but not others, between Member States' administrative authorities and their judicial authorities. No one, however, suggested that that entailed that the provisions of Articles 5, 6, 7, 8 and 10 bound only the administrative authorities of Member States and could be ignored by their courts. Indeed the Italian Government expressly conceded that the substantive law must be the same for administrators and for judges (“per l'amministratore pubblico e per il giudice”). That must in my opinion be right.
The first and second questions
I turn to the Pretore's first and second questions, which relate to the smoothing irons. They are, in slightly abbreviated form, as follows:
“1.
Are the provisions of Articles 10, 7, 3 and 2 of Directive No 73/23, taken together, to be interpreted as meaning that a presumption of conformity with the provisions of the Directive is to be regarded as precluding any judicial authority in the Member States from taking any measure restricting the free movement of goods within the EEC when the equipment in question bears marks duly issued by bodies notified under the Directive (even though not all the Member States have designated such bodies with reference to their national law)?
2.
If the answer to the first question is in the affirmative, does that presumption prevent a national judicial authority from taking a measure restricting the free movement of goods within the EEC on the basis of a mandatory provision in national safety regulations requiring the inclusion of a feature different from that with which the equipment is provided, when no national administrative authority has yet adopted restrictive measures applicable to the whole of the national territory and accordingly set in motion the procedure laid down in Article 9 of the Directive?”
Those questions give rise to a number of points.
With the minor one raised by the final parenthesis in the Pretore's first question I can deal quite shortly. I do not think that the mere circumstance that Luxembourg has omitted to designate a body to establish marks under Article 10 can be of any relevance.
A more difficult point is this.
Under Article 7 two conditions must be met. First, the equipment must have been manufactured in accordance with the safety provisions of the standards in force in the Member State of manufacture. Secondly, it must ensure a safety level equivalent to that required in the Member State of importation. On the nature of that second condition three different views were put before us.
At one extreme was the view, put forward on behalf of the Italian and United Kingdom Governments (and less explicitly on behalf of the French Government), that compliance with the relevant standard in the Member State of manufacture provides no dispensation from the necessity of complying with whatever criteria may be in force in the importing Member State (whether they take the form of standards in the narrow sense or of legislative requirements such as those of Article 315 of the DPR of 1955). That, in my opinion, cannot be right. If it were, Article 7 would, as I pointed out in my opinion in Case 123/76, be retrograde, because in its absence compliance with the criteria in force in the importing Member State would have been sufficient. Nor is Article 7 needed to protect imported equipment against discrimination: it would be a clear breach of Article 30 of the Treaty if more rigorous safety criteria were applied to imported equipment than to domestic products.
At the other extreme, it was submitted on behalf of the Commission that the second condition in Article 7 effectively adds nothing to the first since all the Member States are now required to ensure that equipment covered by the Directive attains the same level of safety, i.e. that prescribed by Article 2, no more and no less. That view seems to me to be open to two criticisms. It amounts to treating national standards as if they were harmonized standards and it ignores the transitional nature of Article 7. The authors of the Directive must have had it in mind that, pending the establishment of harmonized standards, there might remain in force in this or that exporting Member State national standards falling short of the requirements of Article 2 and have wished to ensure that, in such a case, the safety level applicable in any importing Member State should not be undermined.
An intermediate interpretation, corresponding to the view that I tentatively expressed in Case 123/76, was urged by the Dutch Government, and I think it is the right interpretation. It is that Article 7 requires an importing Member State to accept equipment complying with the standards of the Member State of manufacture unless the safety level they afford falls short of what is secured by its own law. That does not mean that the imported equipment must comply with the specific requirements of the importing Member State's law. The point here is that the same safety level can be attained by different methods. In particular, it may be found that more rigorous legislation in the importing Member State produces a safety level no higher than that produced by less rigorous standards in force in the Member State of manufacture. There is of course also this limit on what the importing Member State may do, that it may not require a higher safety level than that required by Article 2 and Annex I.
Next, two points arise on the interpretation of Article 10.
The first is as to whether the presumption that arises by virtue of that Article as a result of the placing on electrical equipment of a mark of conformity covers only the first of the conditions in Article 7 (i.e. the condition that the equipment should have been manufactured in accordance with the safety provisions of the standards in force in the Member State of manufacture) or covers also the second condition (that it should ensure a safety level equivalent to that required in the territory of the importing Member State). The Commission submitted that it covered both, the United Kingdom Government that it covered only the first. I think that, on this point, the United Kingdom Government must be right. Article 10 refers to “a presumption of conformity with the provisions of Articles 5, 6 and 7”, but in so doing, it is manifestly loosely worded, if only because Articles 5, 6 and 7 afford alternative, not cumulative, methods of showing that equipment complies with the requirements of Article 2. Articles 5 and 6 enable that to be shown on the basis only of compliance with a standard (harmonized or international). Unlike Article 7 neither of them imposes an additional condition. I find it wholly comprehensible that the authors of the Directive should have envisaged that the placing of a mark of conformity on goods by a body designated for that purpose under Article 11 should raise a presumption that those goods comply with an appropriate standard (in the narrow sense). But I find it difficult to believe that they envisaged that such a body should be empowered also to certify that the goods complied with the safety level imposed in another Member State, for that could involve, not merely checking the conformity of the goods with the technical specifications of a standard, but interpreting the laws of that State. My disbelief is enhanced by the fact that Article 10 provides for a manufacturer's own “declaration of conformity” to raise the like presumption as a mark or certificate of conformity. I observe lastly that, under Article 8 (2), a body designated under Article 11 may be asked to draw up a report on the conformity of goods with Article 2. Such a report is not stated to raise any presumption. Yet it must be easier for such a body to interpret Article 2 and Annex I, which are published in all the languages of the Community, than to interpret the laws of another Member State. I conclude that a mark, certificate or declaration of conformity under Article 10, can relate only to conformity with a standard.
The other point arising on the interpretation of Article 10 is as to whether the presumption raised by a mark, certificate or declaration of conformity is rebuttable or irrebuttable. Only the defendants submitted that it might be irrebuttable. The Commission and such of the intervening governments as adverted to the point submitted that it was rebuttable. That that must be so is, to my mind, so obvious, that I will not take up Your Lordships' time further on it.
I turn to what is perhaps the most difficult point of all on the interpretation of the Directive: the scope and effect of Article 9.
None of those who submitted observations to the Court went so far as to suggest that Article 9 afforded the only procedure whereby the lawfulness of a restriction placed by a Member State on the marketing or the free movement of electrical equipment might be tested. All accepted (expressly or impliedly) that there could be concurrent judicial proceedings for that pupose. That must in my opinion be so, if only because the procedure under Article 9 can be set in motion only by the Member State concerned and can result at most in recommendations or opinions of the Commission, i.e. in acts which Article 189 of the Treaty provides shall have no binding force.
The issue in this case is whether there are circumstances in which judicial proceedings concerning the lawfulness of such a restriction can take place before a national court without the procedure under Article 9 being set in motion, particularly where, as here, the restriction is imposed by a judicial authority in the Member State concerned on its own initiative.
As to that, a preliminary question arises whether Article 9 applies only where a Member State imposes a restriction on one of the grounds expressly mentioned in Article 9 (1), or applies whatever the grounds on which it does so. The grounds there mentioned are, Your Lordships remember, briefly, nonconformity of the equipment in question with Article 2 either because of a shortcoming in the standards relied on under Article 5, Article 6 or Article 7, or because of faulty application of such standards or “failure to comply with good engineering practice.” Other grounds on which a Member State may, consistently with the Directive, impose a restriction on specific goods are (i) where Article 7 is relied on and the competent authorities in the Member State consider that those goods do not ensure a safety level equivalent to that required in its own territory and (ii) where Article 8 is relied on and those authorities consider, in the light of an unfavourable report under Article 8 (2) or despite a favourable one, that the goods do not comply with the provisions of Article 2. I have come to the conclusion that Article 9 extends to such cases. The express reference in Article 9 (3) to “the procedure provided for in Article 8” points that way, for it would be quite illogical to hold that, in a case where Article 8 was relied on, Article 9 applied only if the Member State's objection to the goods was that their manufacturer had failed to comply with good engineering practice — all the more so since Article 8 is concerned with goods to which no standard applies, a situation in which the procedure for consultation laid down in Article 9 appears to be particularly apposite. If that be right, I can see no sensible reason for leaving out of the scope of Article 9 only one type of case, namely that where the Member State's objection is that the second condition in Article 7 is not satisfied. I therefore think that Article 9 is to be interpreted as applying whatever the grounds on which the Member State concerned imposes the restriction. That is not to say of course that Article 9 authorizes a Member State to impose a restriction on goods on the mere ground that they do, not comply with the specific requirements of its own legislation.
The defendants and the Commission submitted that the wording and the content of Article 9 were such as to presuppose that only the executive or administrative authorities in a Member State could take the initiative of imposing a restriction, first because only they were equipped to set in motion and take part in the procedure under Article 9, which was mandatory in all cases, and secondly because such a restriction must apply to all goods of a particular type and not merely to those that were the subject of particular judicial proceedings. It was therefore incompatible, they argued, with Article 9 for a judicial authority to act in such a matter on its own initiative. Such an authority could act only after a general measure applicable to goods of the type in question had been taken by the appropriate executive or administrative authority, and in pursuance of that measure. They pointed to Article 9 of the Italian Statute of 1977, which, they said, conferred exclusive powers of enforcement on the Minister for Industry, Trade and Crafts and expressly enjoined upon him to observe the procedure under Article 9 of the Directive if he prohibited the marketing or restricted the free movement of any equipment to which the Statute applied.
I agree that Article 9 is mandatory in all cases. Indeed no one pressed the contrary view upon us. But the submissions of the defendants and of the Commission go too far, in my opinion, in two respects.
Firstly, as was pointed out by the Dutch and Italian Governments, the Directive does not purport to lay down, nor would it have been appropriate for it to lay down, which particular authorities in a Member State should be charged with the duty of complying, on behalf of that State, with Article 9. That is a matter for the law of each State. The Dutch Government said, and I agree, that the legislature of a Member State was free, if it thought fit, to entrust its judicial authorities with the task of ascertaining whether particular equipment complied with the safety levels prescribed by the Directive, but that, if it did so, any decision taken by those authorities to restrict the marketing or free movement of that equipment must at once be notified under Article 9 (1).
Secondly, I do not think it right to say that a restriction imposed by the authorities of a Member State on the marketing or free movement of particular goods must necessarily extend to all goods of that type. Obviously, if the restriction is imposed by the executive authorities of a Member State at national level, it will normally do so. But if, say, a local authority finds that goods that have been brought into its area are defective and dangerous (e.g. because of faulty manufacture) it must be able to stop their sale or distribution without waiting for a national measure. Similarly if a court, before which the compliance of particular goods with the requirements of the Directive has been put in issue, finds that they are defective_-it may order appropriate measures in relation to those goods. The requirement of Article 9 (1) is only that, in every such case, other Member States and the Commission should be informed of the decision.
It was suggested on behalf of the defendants that the procedure under Article 9 was too complex to be set in motion in such circumstances. As to that I would make two comments. The first is that there is nothing in Article 9 to limit the circumstances in which it is to apply by reference to the scope of the restriction imposed. The second is that, in practice, the degree of complexity of the procedure will depend on the importance attached to the case by the Member States and by the Commission and in particular on the course they respectively adopt pursuant to paragraphs 2 and 3 of Article 9.
I would emphasize the word “decision” which is used in Article 9 (1). Its significance is, in my opinion, that a Member State comes under a duty to inform other Member States and the Commission under that provision only when a definitive decision has been taken by a competent authority in that State (whether administrative or judicial) to prohibit the marketing or impede the free movement of goods. There is no such duty when all that that authority has done is to restrain the marketing or the free movement of the goods pending such a decision.
The problems to which Article 9 gives rise do not end there. The United Kingdom Government submitted that that Article could not have any direct effect “since it relates only to the relationship between Member States and between them and the Commission”. That is not entirely correct. Paragraph 1 of Article 9, in so far as it enables a Member State to impose restrictions on the marketing and free movement of goods on the ground of an alleged shortcoming in a standard, operates by way of derogation from Articles 3, 5, 6 and 7, and thereby undoubtedly, in my opinion, can affect private rights. Moreover, paragraph 4 requires the Commission to “note any observations by the parties concerned” on any opinion obtained under paragraph 3. The parties concerned there must include the manufacturer and the importer, and their observations are among those in the light of which, by virtue of paragraph 5, the Commission is to formulate its recommendations or opinions. The obligation imposed on a Member State by paragraph 1 is precise: it must “immediately inform the other Member States concerned and the Commission” of the decision. So the question is whether a Member State's failure to fulfil that obligation confers on the manufacturer or importer a right to assert in the competent national courts that the decision is unenforceable. No reason was suggested to us why it should not. After some hesitation, I have come to the conclusion that it does. The requirement that the Member State should set in motion the procedure under Article 9 affords the manufacturer or importer an added safeguard for his rights.
The third and fourth questions
I turn to the third and fourth questions referred to the Court by the Pretore. They relate to the Metabo drills and the Gazonette lawnmowers, for which, Your Lordships, remember, the benefit of Article 8 is claimed. Those questions are, in slightly abbreviated form, as follows :
“3.
Are the provisions of Articles 8, 3 and 2 of Directive No 73/23, taken together, to be interpreted as precluding a judicial authority in a Member State from adopting a measure restricting the free movement within the EEC of electrical equipment to which the Directive applies before a report by one of the special bodies referred to in Article 8 of the Directive has been requested or submitted, where that equipment, though provided with other safety features prescribed by Community law, lacks a feature (earthing) expressly required by a mandatory provision of the national law?
4.
If the answer to the third question is in the affirmative, may the restrictive measure be applied by the judicial authority of the Member State concerned only after the adoption of a measure valid for the whole of the national territory by the administrative authority of that Member State, which is intended to initiate the procedure under Article 9 of the Directive?”
I can deal with those questions more shortly, particularly as my opinion on Question 4 follows from what I have said on Question 2.
As to Question 3 it was submitted by the Italian Government that Article 8 could not override the provisions of the importing Member State's own law. That, with great respect, must be wrong. As was pointed out by the Dutch and United Kingdom Governments Article 8 only comes into play where the equipment sought to be imported does not comply with the requirements of the importing Member State's law. Where it does comply with those requirements there is no need to resort to Article 8 to prevent its importation and marketing from being impeded. Thus, if here the drills and lawnmowers had had earth connexions as required by Article 314 of the DPR, no problem would have arisen.
Article 8 affords a procedure for solving the problem that arises where equipment that does not conform to any standard or to the requirements of the importing Member State's law is none the less claimed to comply with the provisions of Article 2. Faced with such a claim a competent authority in the importing Member State may either concede it or “challenge” it. If it concedes it, cadit quaestio. In the event of a challenge the manufacturer or importer may submit a report drawn up by a body designated under Article 11 on the conformity of the equipment with Article 2. The task of the competent authority, including any court before which the matter may go, is then to decide in the light of that report and of any other evidence before it, whether in fact the equipment complies with the provisions of Article 2. That will normally involve a consideration of the requirements of Annex I.
There was some discussion before us as to the status of the report, in particular as to whether it should be regarded as conclusive or as raising a presumption. The Directive is silent on that question. Our attention was drawn by the Italian Government to Article 6 of the Italian Statute of 1977 which enables contrary evidence to be adduced but provides in effect that, in its absence, the report shall be conclusive. In my opinion the report is in the nature of expert evidence. It will be conclusive if it is convincing and uncontradicted.
It appears from the order for reference that, at the time when it was made, no report under Article 8 (2) had been submitted by the defendants. (One relating to the Metabo drills was put in evidence in this Court.) In my opinion, as was submitted by the Dutch and United Kingdom Governments, it was clearly open to the Pretura to restrain the marketing and free movement of the goods pending the submission of reports on them and the Pretore's definitive decision.
The fifth question
The Pretore's fifth and last question is as follows :
“5.
Should any prohibition on the exercise by a judicial authority in the Member State concerned of its power to adopt measures restricting the freedom of movement of goods in the circumstances indicated in each of the foregoing questions be regarded as imposed upon that authority regardless of any provisions in its national law relating to the rules for installing the electrical equipment in question?”
Owing, I think, to an error in the English translation of the order for reference (where “installazione” was translated as “construction”) the United Kingdom Government misunderstood the question and was led to think that it was concerned with the direct effect of the Directive. It is possible that the Dutch translation was imperfect too for the Dutch Government said that the question was not clear and that it might be concerned with the direct effect of the Directive. None the less the Dutch Government understood the question correctly and its observations on it were the only ones of any substance submitted to us. I will say at once that I entirely agree with them.
It appears from what the Pretore says in the body of the order for reference that the question is prompted by the terms of Article 10 of the Italian Statute of 1977 which expressly preserve “the full validity” (“la piena validità”) of the provisions of the DPR of 1955 “as regards the rules for installing the equipment to which this statute applies” (“per quanto riguarda le regole di installazione dei materiali oggetto della presente legge”).
As the Dutch Government points out, the marketing and free movement of electrical equipment must inevitably be impeded if its installation is impeded. People will not buy equipment that they may not install. Article 4 of the Directive makes it clear that its authors were conscious of that, for that Article requires Member States to ensure that undertakings supplying electricity shall not impose stricter safety requirements than those laid down in Article 2 for the connexion of equipment to the supply or for the supply of electricity to users of the equipment.
So in my opinion the Pretore's fifth question calls for an affirmative answer.
Conclusions
In the result I am of the opinion that, in answer to the questions referred to the Court by the Pretore, Your Lordships should rule as follows:
1.
The existence in an importing Member State's own safety regulations of a mandatory provision requiring the inclusion in electrical equipment for which the benefit of Article 7 or of Article 8 of Directive No 73/23 is claimed of a feature different from that with which the equipment is provided does not of itself enable any authority in that Member State (judicial or otherwise) to restrict the marketing or free movement of that equipment within the Community.
2.
Where the benefit of Article 7 of the Directive is claimed for any such equipment the authorities of the importing Member State (whether judicial or otherwise) may not restrict the marketing or free movement of that equipment within the Community if the following conditions are satisfied :
(i)
that the equipment has been manufactured in accordance with the safety provisions of the standards in force in the Member State of manufacture (and there is not shown to be any shortcoming in those standards) ;
(ii)
that the equipment ensures a safety level equivalent to that required in the territory of the importing Member State.
3.
A rebuttable presumption that the equipment has been manufactured in accordance with the safety provisions of the standards in force in the Member State of manufacture is raised if it bears a mark duly issued in accordance with Article 10 of the Direcitve by a body notified for that purpose under Article 11, whether or not such bodies have been designated by all the Member States.
4.
The condition that the equipment should ensure a safety level equivalent to that required in the territory of the importing Member State is satisfied even if that level is attained by a method different from that prescribed by that Member State's own safety regulations. Nor may the importing Member State require a safety level in excess of (or falling short of) that required by Article 2 of the Directive.
5.
National rules for the installing of electrical equipment are incompatible with the Directive if and in so far as they impede the marketing and free movement of equipment that complies with the requirements of the Directive.
6.
A competent authority of the importing Member State may, if in doubt as to whether equipment complies with the requirements of the Directive, restrict the marketing or free movement of that equipment pending its decision on that question and in particular, where the benefit of Article 8 is claimed for the equipment, it may do so pending the submission of a report under paragraph 2 of that Article.
7.
The Directive is not concerned with the attribution of functions between authorities within a Member State, which is a matter for the law of each Member State. In particular Article 9 of the Directive does not make it a precondition of any action on the part of a judicial authority in a Member State that an administrative authority in that Member State should have adopted a measure of any kind.
8.
Where any authority in a Member State (judicial or otherwise) definitively decides to restrict the marketing or free movement within the Community of any electrical equipment to which the Directive applies, that Member State is under an obligation immediately to inform the other Member States concerned and the Commission of the decision. If that obligation is not fulfilled the decision becomes unenforceable against any private person concerned.