EN Official Journal of the European Union C 228/7

Action brought on 12 May 2015 — European Commission v Federal Republic of Germany

(Case C-220/15)

(2015/C 228/09)

Language of the case: German

Parties

Applicant: European Commission (represented by: D. Kukovec, A. C. Becker, Agents)

Defendant: Federal Republic of Germany

Form of order sought

— Declare that the Federal Republic of Germany acted in breach of its obligations under Article 6(1) of Directive 2007/23/EC (1) by stipulating, in the First ordinance to the Law on Explosives (Erste Verordnung zum Sprengstoffgesetz, ‘the First SprengV’), beyond the requirements of the directive, that, notwithstanding a previous conformity assessment of pyrotechnic articles, the procedure laid down in Paragraph 6(4) of the First SprengV must be completed before their placing on the market, and that, pursuant to the fifth sentence of Paragraph 6(4) of the First SprengV, the Bundesanstalt für Materialforschung und -prüfung (Federal Institute for Materials Research and Testing) is entitled to examine and, if necessary, amend instructions of all pyrotechnic articles.

— Order Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The present action concerns the question to what extent the Member States can impose additional national requirements for the placing on the market of pyrotechnic articles on manufacturers and importers of pyrotechnic articles within the meaning of Directive 2007/23/EC also for such products which, as evidenced by a marking with the CE marking, comply with the essential requirements of the directive. In this connection, the legislation contested by the Commission does not set any content requirements for those products, but merely provides for an additional procedure which is preliminary to market access within the territory of the defendant.

Regardless of the evidence of conformity, the defendant requires that all pyrotechnic articles within the meaning of Directive 2007/23/EC be indicated to a federal institute provided for by law, which assigns an identification number in proof of the identification. Where the procedure takes a significant length of time, that procedure may inter alia also involve the payment of an administrative charge and the delivery of test samples. The Commission considers the requirement of such a procedure to be an infringement of the free movement, guaranteed in Article 6 of Directive 2007/23/EC, for all pyrotechnic articles which conform to the requirements of the directive.

The adoption of Directive 2013/29/EU (2), with which Directive 2007/23/EC is repealed with effect from 1 July 2015, has also not changed that situation. That is because, first, the time period which is relevant for assessing whether a Member State has failed to fulfil its obligations is the expiry of the time period stated in the reasoned opinion (in the present case 27 March 2014). Secondly, in Article 4(1) thereof, Directive 2013/29/EU contains a provision which is identical to Article 6(1) of Directive 2007/23/EC, for the purpose of guaranteeing free movement for all pyrotechnic articles which conform to the requirements of EU law.

The infringement, alleged in the present case, by the defendant therefore consists, essentially, in a procedural condition for the placing on the market of pyrotechnic articles which, in the Commission’s view, is inadmissible and beyond the harmonised requirements of EU law. As a procedural requirement, the contested legislation might at first sight give the impression of merely causing, in a very few cases, a reasonable delay in the marketing of those products. However, the actual effects of that legislation are not to be underestimated. In this regard account should first of all be taken of the fact that the defendant is one of the biggest, if not the biggest, sales markets for pyrotechnic articles in the internal market. In addition, it should be noted that certain pyrotechnic articles within the territory of the defendant may be sold to consumers only once a year, and only for a short period of time, by which the temporal dimension of that market access is all the more important. In this respect, lastly, the fact that, under national law, the legislation contested in the present case is implemented by the same authority which is also authorised to conduct the conformity assessment as the notified body within the meaning of Directive 2007/23/EC also merits consideration. The requirement of an additional procedure in the national law of the defendant therefore gives that authority a competitive advantage over the notified bodies of other Member States. In view of those practical effects of the contested legislation, the present case by no means involves merely the legal assessment, on grounds of principle, of a hindrance to economic operators from marketing products which have already been assessed by a notified body other than the German notified body as in compliance with the requirements of EU law.

(1) Directive 2007/23/EC of the European Parliament and of the Council of 23 May 2007 on the placing on the market of pyrotechnic articles, OJ 2007 L 154, p. 1.

(2) Directive 2013/29/EU of the European Parliament and of the Council of 12 June 2013 on the harmonisation of the laws of the Member States relating to the making available on the market of pyrotechnic articles (recast), OJ 2013 L 178, p. 27.