Opinion of Mr Advocate General Vilaça delivered on 17 March 1987. - Procureur de la République v Daniel Gofette and Alfred Gilliard. - Reference for a preliminary ruling: Tribunal de grande instance de Charleville-Mézières - France. - Articles 30 and 36 of the EEC Treaty - Registration of imported vehicles. - Case 406/85.



European Court reports 1987 Page 02525



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . The tribunal de grande instance ( Regional Court ), Charleville-Mézières, has requested the Court to give a ruling under Article 177 of the EEC Treaty on the interpretation of Article 30 of the Treaty, with a view to establishing whether that provision prohibits a Member State "from introducing by legislation, regulation or administrative practice, for vehicles imported from another Member State where they have already been approved for use, a system imposing a further approval procedure - known as 'individual approval' - whereby the vehicle must be submitted for laboratory testing unless a certificate is produced either from the manufacturer or from an authorized representative in the importing country who is empowered to sign certificates of conformity for the relevant vehicle type, stating that the imported vehicle conforms to an approved type ".

I - 2 . The question was raised in criminal proceedings in France in connection with a number of offences under the Code de la route ( road traffic laws ).

3 . On 5 March 1984, one of the accused, Alfred Gilliard, a French national residing in France, purchased a second-hand Lada vehicle in Belgium where it had been registered on 25 April 1980 .

4 . The vehicle type in question had been approved by the Belgian Ministry of Transport in 1979, and the car concerned was accompanied by a certificate issued by the manufacturer' s representative confirming type-approval .

5 . On 6 March 1984, the French Customs Administration issued a certificate to be attached to the application for registration in France, according to which the vehicle in question fulfilled the conditions laid down by the customs and exchange regulations for registration as part of a normal series .

6 . Accordingly Mr Gilliard submitted an application for approval to the Service des mines ( Vehicle Registration Office ), Charleville-Mézières, which sent him in reply a standard letter requesting various documents, including a "declaration issued either by the French manufacturer or by the representative accredited in France and authorized to sign certificates of conformity of the relevant type stating that the vehicle in question is in conformity with an approved type ".

7 . Mr Gilliard therefore contacted the company Lada ( France ), which informed him in a letter dated 27 March 1984 that it was unable to issue a certificate of conformity in respect of a vehicle which had not been imported by it, and of which it therefore had no knowledge whatsoever . In order to "be of assistance" it nevertheless agreed to inspect the vehicle in order to check all the points subject to type-approval or otherwise governed by French regulations . However, since the inspection involved more than 10 hours work, the total amount charged would be FF 1*874.58, excluding the cost of any components required .

8 . In those circumstances, Mr Gilliard decided to put the vehicle on the road in France with a false registration plate and without the required permits or documents, in particular the "carte grise" ( registration certificate ).

9 . On 6 May 1984 the French police commenced proceedings against him for a number of offences under the Code de la route; he appeared before the court in Charleville-Mézières, with Daniel Gofette who was accused of aiding and abetting him by supplying the false registration plate .

10 . The accused did not dispute the facts but Alfred Gilliard claimed in his defence that the requirements imposed upon him were incompatible with Community law, in particular Article 30 of the Treaty . The French court therefore submitted a question to the Court of Justice for a preliminary ruling, and the Commission and the French Government have submitted written observations with respect to it .

II - 11 . ( a ) For a full understanding of the problems raised in the question submitted it is appropriate to summarize the national rules and practice regarding the conditions for registering an imported vehicle in France, and also to consider the applicable Community legislation now in force .

12 . ( b ) The applicable French rules in force at the material time were contained in Decree No 54-724 of 10 July 1954, which was subsequently incorporated in the Code de la route, and in the Order of 19 July 1954 concerning the type-approval of automotive vehicles, which was adopted pursuant to the said decree and has been amended on a number of occasions .

13 . Subsequently those rules were amended by an Order of 5 November 1984 concerning vehicle registration .

14 . The combined effect of those provisions is that a vehicle may be registered in France only if it has previously been the subject of an approval showing that it conforms with the regulations in force .

15 . There are two kinds of approval .

16 . There is "type-approval" which applies to new production vehicles . The manufacturer or his authorized representative in France submits an application in respect of a type of vehicle which is to be mass-produced . The Service des mines issues an "approval certificate" after checking that the vehicle conforms with the French regulations . Thereafter, it is the manufacturer or his authorized representative in France who furnishes purchasers of vehicles of the model in question with the approval certificate and a "certificate of conformity" indicating that it conforms to the approved type .

17 . The approval known as "individual approval" is required for any vehicle in respect of which an application is made for the first time for registration in France as a normal production vehicle, where it is impossible to produce a certificate showing that it conforms to the approved type . This procedure applies to certain categories of new vehicles, to vehicles which have been substantially converted and to used vehicles without a "carte grise" ( registration certificate ).

18 . For approval of this kind, the Service des mines certifies that a particular imported vehicle corresponds to the specifications contained in the French regulations .

19 . For such cases, Circular No 74-121 of 19 July 1974 laid down the implementing conditions for the Order of 19 July 1954, particularly with regard to imported used vehicles corresponding to a type already approved in France - like the one in the present case .

20 . That circular provides that "although the conformity of these vehicles cannot be certified, technical tests will not be carried out as a matter of course apart from those concerned with the general state and proper functioning of the parts affecting safety; however, the noise and pollution tests may be required and further evidence may be called for if there is any doubt as to the conformity of the vehicle with the prototype in any particular respect ".

21 . Neither the French regulations nor the last-mentioned administrative provisions provide for the submission of a declaration of the kind which was required by the Service des mines from the defendant in the main proceedings, Alfred Gilliard .

22 . However, it has become the general administrative practice to require individuals to produce such a "declaration of conformity" issued by the manufacturer or an authorized representative thereof in France, identifying the vehicle, and stating that it conforms with an approved type or indicating in what respects it differs from that type .

23 . In order to avoid "excessive difficulties for individuals importing a vehicle from another Member State" the Road Safety and Traffic Directorate of the Ministry of Transport sent a letter on 6 February 1985 to the Chambre syndicale des importateurs des automobiles ( Association of Motor Vehicle Importers ) reminding them that they were "responsible for issuing to any applicant" a declaration of conformity and stating that that document "must be issued without any presentation of the vehicle, without any unjustified request for information, without delay and at a price compatible with the French rules and Community law applicable in this sphere ".

24 . ( c ) As regards the Community rules in force, they are concerned with the removal of obstacles to the free movement of goods and are contained in directives intended to harmonize national law .

25 . The relevant framework directive is Council Directive 70/156/EEC of 6 February 1970 ( 1 ) which enables a manufacturer or his representative to obtain in a Member State for new vehicles of a specific type an "EEC type-approval" which will be valid throughout the Community .

26 . That will only be the case, however, when all the particulars and the characteristics listed in the "EEC type-approval certificate" annexed to the directive have been harmonized by special directives, and that has not yet happened .

27 . In the meantime, more than 50 special directives have been adopted in order to facilitate national approval in the various Member States .

28 . The harmonization envisaged by the framework directive and the special directives is "optional", so that the Member States retain the power to lay down, in parallel with the harmonized provisions, other technical specifications for the approval of a particular type of vehicle .

29 . Having received a large number of complaints and aware of the possible obstacles to the free movement of goods, on 20 September 1984 the Commission sent to the Member States a communication on "approval and registration formalities for vehicles imported from another Member State and the compatibility thereof with Community law ".

30 . With respect to second-hand vehicles, the Commission considers that it is necessary to draw a distinction between the technical specifications of imported vehicles at the time of their manufacture and the physical condition of the vehicle when registration is applied for, in order to determine the extent to which the requirements of the Member State of importation are compatible with the provisions of Articles 30 and 36 of the EEC Treaty and the directives already adopted in that field .

III - 31 . In view of the foregoing considerations, and having regard to the observations submitted by the French Government and the Commission, I shall attempt to clarify the problem with a view to providing the national court with an appropriate answer to the question submitted for a preliminary ruling .

32 . ( a ) It should be stated at the outset that no one disputes that the obligation imposed on an individual, by whatever means, to arrange for an imported vehicle already registered in another Member State to undergo an inspection by the manufacturer or his representative in the Member State of importation to check that the vehicle conforms with the regulations of that State must be regarded as a measure having an effect equivalent to a quantitative restriction, which is in principle prohibited by Article 30 of the EEC Treaty .

33 . Moreover, that conclusion necessarily follows from previous decisions of the Court . ( 2 )

34 . This means that a measure of that type can only be regarded as compatible with Community law if it is justified on one of the grounds set out in Article 36 of the EEC Treaty, in particular "public security ".

35 . ( b ) It is not in fact appropriate here to rule as to whether the national provisions in question are in conformity with Community law .

36 . In proceedings for a preliminary ruling under Article 177 of the Treaty, the Court' s role is to furnish the national court with all the interpretative criteria required to enable it to apply the Community rules correctly in order to decide the action brought before it, determining for itself whether or not the national rules are compatible with the Community rules relied upon . ( 3 )

37 . ( c ) Let us return to the distinction drawn by the Commission between the two types of checks to which second-hand vehicles already registered in another Member State may be subjected on importation .

38 . In the first place, there may be checks relating to the physical condition of the vehicle at the time of importation . The Member States may require tests to be carried out to ensure that the physical condition of the vehicle sought to be imported is such as to provide equivalent protection, as regards public safety and the environment, to that required in similar circumstances for vehicles registered in the Member State of importation . Such checks are justified under Article 36 of the Treaty provided that, as ruled by the Court, ( 4 ) they are really necessary and are not a repetition of tests already carried out in another Member State whose results are available to the importing State .

39 . But what is essentially at issue in the main proceedings and in the question submitted by the national court is the second type of check, which relates to the technical specifications of the vehicle when it is manufactured .

40 . As far as the technical specifications are concerned, the problem does not differ substantially whether the cars are new or used .

41 . As the Commission points out, the technical rules applicable to motor vehicles are essentially designed to promote road safety or to protect the environment or both .

42 . Therefore, in most Member States, a precondition for registration of a vehicle is the production of proof that it conforms with those technical rules or specifications .

43 . Where the specifications of the imported vehicle provide a lesser degree of safety than is required by the legislation of the importing country or the Community directives, the vehicle in question can be registered only after the necessary changes have been made to it .

44 . In simple terms, although the principle of the inspections is beyond dispute - in view of the objectives pursued - the detailed procedures for such inspections may possibly amount to a disguised restriction on trade between Member States within the meaning of the last sentence of Article 36 . ( 5 )

45 . There are various ways of proving conformity with the technical specifications of the importing State .

46 . One of them is indeed production of a declaration of conformity issued by the administrative authorities in the State of importation or by the manufacturer or his representative in that country, for which purpose the vehicle in question is described in terms of the technical rules with which it complied on leaving the factory, and the differences from the technical specifications in force in the importing country are indicated .

47 . The purpose of the "declaration of conformity" is, thus, different from that of the "certificate of conformity" which serves only to prove that new vehicles conform with an approved type .

48 . For practical reasons, the national authorities in general prefer to delegate responsibility for the issue of the certificates and declarations of conformity to the manufacturer or his authorized representative, since they are in a better position to know the vehicle and its technical specifications .

49 . That delegation of authority does not however relieve them of their responsibility to ensure that the conditions governing the issue of the certificate or declaration are in conformity with Community law .

50 . In particular, it would be contrary to the principle of the free movement of goods if the fulfilment of that formality were subject to conditions as to cost, time-limits or other matters which made importation impossible, exceedingly difficult or very burdensome . That view has already been taken by the Court, for example in the Frans-Nederlandse Maatschappij voor Biologische Producten judgment mentioned earlier, in which it ruled that checks should not exceed what is necessary to achieve the intended purpose or subject the importer to excessive obligations or unnecessary expenses .

51 . The practice of delegating authority for checks to the manufacturer or his authorized representative is not entirely untainted by doubts in the light of the competition rules contained in the Treaty .

52 . The Commission has already accepted, however, as a matter of competition policy, that exclusive distribution agreements in the motor vehicle industry are compatible with Article 85 ( 3 ), provided that they do not have the effect of preventing "parallel imports ". ( 6 )

53 . That does not mean, however, that as far as national practices concerning the delegation of responsibility of the kind adopted in France are concerned, the traders appointed as representatives might not ultimately achieve a dominant position, within the meaning of Article 86, as regards the issue of "certificates" and "declarations" of conformity .

54 . Hence, on the one hand, any refusal by such representatives to issue a "certificate" or a "declaration" of conformity and, on the other, the imposition of conditions as to cost or time-limits for the issue of such documents which are unjustifiable, may constitute conduct liable to be penalized at national or Community level as an abuse of a dominant position .

55 . In any event, as far as Article 30 is concerned, it follows from the previous decisions of the Court that Member States may be held to have infringed the Treaty where they permit or facilitate the improper exploitation of a dominant position by manufacturers or importers whose acts or omissions have a restrictive effect on imports . ( 7 )

56 . It is not in dispute, as was emphasized by the French Government and the Commission itself at the hearing, that in the great majority of cases most French traders called upon to act as representatives comply with the requirements concerning free movement of goods when they issue certificates or declarations of conformity .

57 . However, it is a fact that the importer of the vehicle in question here was required ( in terms, moreover, which were ambiguous ) by a standard letter from the French administration, without being given any apparent alternative, to produce a document to be issued by the manufacturer or the representative thereof and that the latter imposed disproportionate requirements for the issue of that document .

58 . And it is to a situation of this kind - or the mere possibility thereof - that the question submitted by the national court relates .

59 . In those circumstances, if the State of importation does not have effective means of ensuring that the manufacturer or his representative complies scrupulously with the conditions of Community law, that State is under an obligation to accept alternative arrangements for making certain that vehicles conform with their technical specifications .

60 . The French Government refers to the "partial type-approval certificates" provided for in Directive 70/156/EEC of 6 February 1970 as a possible alternative of that kind .

61 . That suggestion prompts me to consider to what extent the partial harmonization already achieved in that area affects cases of importation of second-hand vehicles already registered in another Member State .

62 . At the hearing the Commission representatives drew attention to the fact that the system of partial type-approval certificates is not only inadequate - since not all the directives for the implementation of Directive 70/156 have been published yet - and excessively burdensome - since it involves undue bureaucracy and a considerable delay - but is also inapplicable to imports of second-hand vehicles which are subject to the "individual approval" procedure .

63 . It is apparent from the directive and from the explanations given at the hearing that it is impossible for an individual importer to obtain partial type-approval certificates with a view to securing registration of a vehicle which was previously approved and registered in another Member State .

64 . Such certificates may be used only in cases where a manufacturer, having obtained approval of a new model of vehicle in a particular Member State, applies for approval of it in another Member State .

65 . In such cases, in order to obtain type-approval of the parts of the vehicle conforming with the requirements of the harmonizing directives, it is sufficient for the manufacturer to present the partial type-approval certificates relating to those components, and type-approval in the second Member State cannot be withheld .

66 . What therefore remains to be done, to ensure the correct application of the Community rules, is to provide, as an essential alternative, for the possibility of applying directly for type-approval and registration to the administrative authorities in the Member State of importation on the basis of production of the documents issued by the Member State of exportation . Basically, those documents are the certificate of registration and the certificate proving conformity with an approved type in the Member State of exportation, which refers to the type-approval report, a document which appears to be easily available, and in which reference is made to the EEC type-approval or national type-approval of each component of the vehicle .

67 . The authorities in the Member State of importation will then check the divergences from the technical specifications in force within its territory and may at the same time, if appropriate, examine the physical condition of the vehicle .

68 . Previous decisions of the Court support this conclusion, inspired as it is by the concern to persuade the Member States to accept the documents and checks carried out in the Member State of exportation, to the extent to which they satisfy the requirements of the Member State of importation . ( 8 )

IV - 69 .

In view of the foregoing considerations, I propose that the Court should give the following answer to the question submitted for a preliminary ruling by the national court :

70 . "The combined provisions of Articles 30 and 36 of the EEC Treaty do not prevent a Member State from introducing by legislation, regulation or administrative practice a system imposing in respect of vehicles imported from another Member State in which they have already been registered a further approval procedure - known as 'individual approval' - involving production of a declaration issued by the manufacturer or his authorized representatives in the territory of importation to the effect that the imported vehicle conforms to an approved type or to the technical specifications in force in that territory, provided that :

( i ) The cost of and the period required for the issue of that declaration are reasonable;

( ii ) The importer is expressly granted the alternative possibility of producing the documents issued in the Member State of exportation, in so far as they contain the information required for the fresh type approval;

( iii ) No workshop tests or similar checks are required, subject to the condition that they have already been carried out in the Member State of exportation and the results thereof are readily available or may be readily obtained by the authorities in the Member State of importation ".

(*) Translated from the Portuguese .

( 1 ) Official Journal, English Special Edition 1970 ( I ) p . 96

( 2 ) See for example judgments of 24 January 1978 in Case 82/77 Openbaar Ministerie of the Netherlands v Van Tiggele (( 1978 )) ECR 25; of 12 October 1978 in Case 13/78 Eggers v Freie Hansestadt Bremen (( 1978 )) ECR 1935; and of 13 March 1979 in Case 119/78 Peureux v Services fiscaux de la Haute-Saône et du Territoire de Belfort (( 1979 )) ECR 975 .

( 3 ) See for example judgments of 26 January 1977 in Case 49/76 Gesellschaft fuer UEberseehandel v Handelskammer Hamburg (( 1977 )) ECR 41; of 23 November 1977 in Case 38/77 Enka v Inspecteur der Invoerrechten en Accijnzen (( 1977 )) ECR 2203; of 29 June 1978 in Case 154/77 Procureur du Roi v Dechmann (( 1978 )) ECR 1573; and of 17 December 1981 in Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Produkten (( 1981 )) ECR 3277, at p . 3290, paragraph 9 .

( 4 ) Judgment in Case 272/80, supra, pp . 3291-3 .

( 5 ) Judgment in Case 272/80, supra, at paragraph 13 .

( 6 ) See Commission Regulation No 123/85 of 12 December 1984, Official Journal 1985, L 15, p . 16

( 7 ) See judgment of 16 November 1977 in Case 13/77 INNO v ATAB (( 1977 )) ECR 2115 at pp . 2143-6 .

( 8 ) See judgment of 20 May 1976 in Case 104/75 De Peijper (( 1976 )) ECR 613, at p . 637 .