Judgment of the Court of 2 December 1980. - Criminal proceedings against Gaetano Cremonini and Maria Luisa Vrankovich. - Reference for a preliminary ruling: Pretura di Como - Italy. - Harmonization of electrical equipment. - Case 815/79.



European Court reports 1980 Page 03583

Greek special edition Page 00411



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . APPROXIMATION OF LAWS - ELECTRICAL EQUIPMENT - DIRECTIVE NO 73/23 - PURPOSE - DUTIES OF MEMBER STATES - SCOPE

( COUNCIL DIRECTIVE NO 73/23 )

2 . APPROXIMATION OF LAWS - ELECTRICAL EQUIPMENT - DIRECTIVE NO 73/23 - EQUIPMENT BEARING MARKS DENOTING CONFORMITY AND ENTITLED TO A PRESUMPTION OF CONFORMITY - RESTRICTION OF FREE MOVEMENT BY A JUDICIAL AUTHORITY - NOT PERMISSIBLE - OBLIGATION TO FOLLOW PROCEDURE OF ARTICLE 9 OF DIRECTIVE

( COUNCIL DIRECTIVE NO 73/23 , ARTS 9 AND 10 )

3 . APPROXIMATION OF LAWS - ELECTRICAL EQUIPMENT - DIRECTIVE NO 73/23 - EQUIPMENT NOT ENTITLED TO A PRESUMPTION OF CONFORMITY - RESTRICTION OF FREE MOVEMENT BY A JUDICIAL AUTHORITY - PERMISSIBILITY - LIMITS

( COUNCIL DIRECTIVE NO 73/23 , ARTS 8 ( 2 ) AND 10 )

Summary

1 . THE AIM OF DIRECTIVE NO 73/23 , WHICH WAS ADOPTED ON THE BASIS OF ARTICLE 100 OF THE EEC TREATY , IS , AS FAR AS CONCERNS THE DIFFERENT CONCEPTIONS OF SAFETY WITH WHICH THE PROVISIONS IN FORCE IN THE MEMBER STATES COMPLY , TO PERMIT THE FREE MOVEMENT OF ELECTRICAL EQUIPMENT DESIGNED FOR USE WITHIN CERTAIN VOLTAGE LIMITS , PROVIDED , HOWEVER , THAT CERTAIN SAFETY REQUIREMENTS PRESCRIBED BY THE DIRECTIVE ARE OBSERVED . ITS PURPOSE WOULD BE FRUSTRATED IF THE COMPETENT NATIONAL AUTHORITIES IN THE EXERCICE OF THE POWERS RESERVED TO THEM RELATING TO THE FORM AND METHOD OF IMPLEMENTING THE DIRECTIVE DID NOT KEEP WITHIN THE LIMITS OF THE DISCRETION OUTLINED BY THIS DIRECTIVE . INDEED ANY OVERSTEPPING OF THESE LIMITS MIGHT CREATE NEW DISPARITIES AND THEREFORE FRESH BARRIERS TO TRADE AND AS A RESULT PREVENT THE FREE MOVEMENT OF GOODS IN A FIELD IN WHICH THE COMMUNITY LEGISLATURE HAD ADOPTED PROVISIONS IN ORDER TO ENSURE SUCH FREEDOM .

2 . IF THE IMPORTED ELECTRICAL MATERIAL BEARS MARKS DENOTING CONFORMITY DULY ISSUED BY BODIES NOTIFIED IN ACCORDANCE WITH DIRECTIVE NO 73/23 , THERE IS A PRESUMPTION OF CONFORMITY WHICH PREVENTS THE ADOPTION OF ANY MEASURE RESTRICTING THE FREE MOVEMENT OF THAT EQUIPMENT BY A JUDICIAL AUTHORITY OF A MEMBER STATE , EVEN IF THE MEMBER STATES HAVE NOT ALL DESIGNATED THE BODIES WHICH ARE EMPOWERED TO ISSUE SUCH MARKS . WHERE THERE IS SUCH A PRESUMPTION OF CONFORMITY , MEASURES RESTRICTING THE FREE MOVEMENT OF THE GOODS MAY BE ADOPTED ONLY IN THE CONTEXT OF THE PROCEDURE OF ARTICLE 9 OF THE SAID DIRECTIVE BY A NATIONAL ADMINISTRATIVE AUTHORITY ACTING ON BEHALF OF THE MEMBER STATE AND EMPOWERED TO PARTICIPATE IN THAT PROCEDURE .

3 . A JUDICIAL AUTHORITY OF A MEMBER STATE MAY , ON THE BASIS OF THE REQUIREMENTS OF ITS NATIONAL LAW , ADOPT A MEASURE RESTRICTING THE FREE MOVEMENT OF ELECTRICAL EQUIPMENT IN RESPECT OF WHICH THERE IS NO PRESUMPTION OF CONFORMITY WITHIN THE MEANING OF ARTICLE 10 OF DIRECTIVE NO 73/23 SO LONG AS THE EQUIPMENT HAS NOT BEEN THE SUBJECT OF A REPORT WITHIN THE MEANING OF ARTICLE 8 ( 2 ) OF THE DIRECTIVE . ON THE OTHER HAND , THE JUDICIAL AUTHORITY OF A MEMBER STATE DOES NOT HAVE THAT POWER IN OTHER CIRCUMSTANCES IN WHICH COMMUNITY LAW AND PROCEDURES APPLY .

Parties

IN CASE 815/79

REFERENCE TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY BY THE PRETURA PENALE DI COMO ( DISTRICT CRIMINAL COURT , COMO ) FOR A PRELIMINARY RULING IN THE CRIMINAL PROCEEDINGS AGAINST

GAETANO CREMONINI AND MARIA LUISA VRANKOVICH

Subject of the case

ON THE INTERPRETATION OF COUNCIL DIRECTIVE NO 73/23 OF 19 FEBRUARY 1973 ON THE HARMONIZATION OF THE LAWS OF MEMBER STATES RELATING TO ELECTRICAL EQUIPMENT DESIGNED FOR USE WITHIN CERTAIN VOLTAGE LIMITS ( OFFICIAL JOURNAL L 77 OF 26 MARCH 1973 , P . 29 ),

Grounds

1 BY AN ORDER OF 27 NOVEMBER 1979 WHICH WAS RECEIVED AT THE COURT ON 17 DECEMBER 1979 THE PRETORE ( MAGISTRATE ), COMO , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A NUMBER OF QUESTIONS AS TO THE INTERPRETATION OF COUNCIL DIRECTIVE NO 73/23 OF 19 FEBRUARY 1973 ON THE HARMONIZATION OF THE LAWS OF MEMBER STATES RELATING TO ELECTRICAL EQUIPMENT DESIGNED FOR USE WITHIN CERTAIN VOLTAGE LIMITS ( OFFICIAL JOURNAL L 77 OF 26 MARCH 1973 , P . 29 ) RAISED IN THE CONTEXT OF CRIMINAL PROCEEDINGS DURING WHICH THE PRETORE ORDERED THE SEIZURE OF ELECTRICAL EQUIPMENT ( CALOR AND ROWENTA SMOOTHING IRONS , METABO ELECTRIC DRILLS AND GAZONETTE LAWN-MOWERS ) IMPORTED INTO ITALY FROM MEMBER STATES OF THE COMMUNITY .

2 THIS SEIZURE - WHICH THE IMPORTERS ASKED THE PRETORE TO LIFT - WAS EFFECTED BECAUSE THE EQUIPMENT IN QUESTION DID NOT COMPLY WITH THE STANDARDS LAID DOWN BY ARTICLES 314 AND 315 OF THE DECREE OF THE PRESIDENT OF THE ITALIAN REPUBLIC ( DPR NO 547 OF 27 APRIL 1955 - OFFICIAL GAZETTE OF THE ITALIAN REPUBLIC NO 158 OF 12 JULY 1955 , SUPPLEMENT ) ADOPTED IN CONNEXION WITH THE PREVENTION OF INDUSTRIAL ACCIDENTS BECAUSE THE FIRST-MENTIONED EQUIPMENT , WITH REFERENCE TO THE REQUIREMENTS OF ARTICLE 315 THEREOF , LACKED THE ADDITIONAL SAFETY INSULATION BETWEEN THE PARTS UNDER TENSION AND THE OUTER METALLIC CASING , AND THE SECOND AND THIRD ITEMS OF EQUIPMENT , WITH REFERENCE TO THE REQUIREMENTS OF ARTICLE 314 , LACKED A METALLIC CASING CONNECTED TO EARTH .

3 WHEN APPLICATION WAS MADE TO THE PRETORE TO LIFT THE SEIZURE HE INQUIRED WHAT WAS THE SCOPE , AS REGARDS NATIONAL RULES , OF DIRECTIVE NO 73/23 IMPLEMENTED UNDER HIS NATIONAL LEGAL ORDER BY LAW NO 791 OF 18 OCTOBER 1977 ( OFFICIAL GAZETTE NO 208 OF 2 NOVEMBER 1977 , P . 7913 ).

4 THESE WERE THE CIRCUMSTANCES IN WHICH THE PRETORE DI COMO REFERRED TO THE COURT FIVE QUESTIONS WHICH MUST BE CONSIDERED IN TURN .

THE FIRST TWO QUESTIONS

5 THE FIRST TWO QUESTIONS REFERRED TO THE COURT BY THE PRETORE CONCERN THE EQUIPMENT BEARING THE CALOR AND ROWENTA TRADE-MARKS WHICH ARE PRESUMED TO COMPLY WITH THE PROVISIONS OF THE DIRECTIVE BECAUSE THEY BEAR MARKS OF CONFORMITY , IN THIS CASE CEBEC AND VDE , ISSUED BY THE BODIES NOTIFIED BY MEMBER STATES IN ACCORDANCE WITH THE COMBINED PROVISIONS OF ARTICLES 10 AND 11 OF THE DIRECTIVE .

' ' 1 . ARE THE COMBINED PROVISIONS OF ARTICLES 10 , 7 , 3 AND 2 OF DIRECTIVE NO 73/23 OF 19 FEBRUARY 1973 ( OFFICIAL JOURNAL L 77 OF 26 MARCH 1973 ) TO BE INTERPRETED IN SUCH MANNER THAT A PRESUMPTION OF CONFORMITY WITH THE PROVISIONS OF THE SAID DIRECTIVE IS TO BE REGARDED AS A PRESUMPTION WHICH PREVENTS THE TAKING OF ANY MEASURES RESTRICTING THE FREE MOVEMENT OF GOODS WITHIN THE EEC BY ANY JUDICIAL AUTHORITY OF THE MEMBER STATES ( AND OF THE ITALIAN STATE IN PARTICULAR ) WHEN THE IMPORTED ELECTRICAL EQUIPMENT ( IN THE CASE IN QUESTION : SMOOTHING IRONS ) BEARS MARKS ( CEBEC AND VDE MARKS ) DULY ISSUED BY BODIES NOTIFIED IN ACCORDANCE WITH THE EEC DIRECTIVE BY THE BELGIAN AND GERMAN GOVERNMENTS ( CF . DOCUMENTS NOS 7 AND 8 PRODUCED IN THE CASE ) ( EVEN IF NOT ALL MEMBER STATES HAVE DESIGNATED BODIES COMPETENT TO ISSUE THE MARKS REFERRED TO IN THE SAID DIRECTIVE WITH REFERENCE TO THEIR NATIONAL LAW)?

2.IN THE EVENT OF THE ANSWER TO THE FIRST QUESTION BEING IN THE AFFIRMATIVE , IS THE SAID PRESUMPTION OF CONFORMITY SUCH AS TO PREVENT THE NATIONAL COURT FROM ADOPTING A MEASURE RESTRICTING THE FREE MOVEMENT OF GOODS WITHIN THE EEC WHICH IS BASED UPON A MANDATORY PROVISION OF NATIONAL SAFETY REGULATIONS REQUIRING THE INCLUSION OF A FEATURE ( ADDITIONAL INSULATION ) DIFFERING FROM THAT WITH WHICH THE IMPORTED PRODUCT ( SMOOTHING IRON ) IS PROVIDED , WHEN NO NATIONAL ADMINISTRATIVE BODY HAS YET ADOPTED RESTRICTIVE MEASURES VALID FOR THE WHOLE OF THE NATIONAL TERRITORY AND ACCORDINGLY SET IN MOTION THE PROCEDURE LAID DOWN IN ARTICLE 9 OF THE EEC DIRECTIVE?

' '

6 WITH REFERENCE TO THE FIRST TWO QUESTIONS IT SHOULD BE NOTED THAT , AS FAR AS CONCERNS THE DIFFERENT CONCEPTIONS OF SAFETY WITH WHICH THE PROVISIONS IN FORCE IN THE MEMBER STATES COMPLY , THE AIM OF DIRECTIVE NO 73/23 IS TO PERMIT THE FREE MOVEMENT OF ELECTRICAL EQUIPMENT PROVIDED , HOWEVER , THAT CERTAIN SAFETY REQUIREMENTS PRESCRIBED BY THE DIRECTIVE ARE OBSERVED . THE DIRECTIVE WAS ADOPTED ON THE BASIS OF ARTICLE 100 OF THE TREATY AND AIMS TO SECURE THE APPROXIMATION OF THE PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION OF THE MEMBER STATES TO THE EXTENT TO WHICH SUCH PROVISIONS ARE LIKELY TO FORM TECHNICAL OBSTACLES TO TRADE IN SUCH EQUIPMENT . THE PURPOSE OF SUCH A DIRECTIVE WOULD BE FRUSTRATED IF THE COMPETENT NATIONAL AUTHORITIES IN THE EXERCISE OF THE POWERS RESERVED TO THEM RELATING TO THE FORM AND METHOD OF IMPLEMENTING THE DIRECTIVE DID NOT KEEP WITHIN THE LIMITS OF THE DISCRETION OUTLINED BY THIS DIRECTIVE , BECAUSE ANY OVERSTEPPING OF THESE LIMITS MIGHT CREATE NEW DISPARITIES AND THEREFORE FRESH BARRIERS TO TRADE AND AS A RESULT PREVENT THE FREE MOVEMENT OF GOODS IN A FIELD IN WHICH THE COMMUNITY LEGISLATURE HAD ADOPTED PROVISIONS IN ORDER TO ENSURE SUCH FREEDOM .

7 IT IS IN THE LIGHT OF THESE OBJECTIVES THAT THE SCHEME AND PROVISIONS OF DIRECTIVE NO 73/23 MUST BE CONSIDERED .

8 THE DIRECTIVE HAS DRAWN UP CATEGORIES OF STANDARDS APPLICABLE TO ELECTRICAL EQUIPMENT WHICH ARE TAKEN INTO CONSIDERATION IN THE FOLLOWING ORDER FIXED BY THE DIRECTIVE ITSELF :

- HARMONIZED STANDARDS , 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 , AND , FOR PURPOSES OF INFORMATION , IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES ( ARTICLE 5 OF THE DIRECTIVE );

- WHERE HARMONIZED STANDARDS AS DEFINED IN ARTICLE 5 HAVE NOT YET BEEN DRAWN UP AND PUBLISHED , THE PUBLISHED INTERNATIONAL STANDARDS ISSUED BY TWO INTERNATIONAL BODIES , THE INTERNATIONAL COMMISSION ON THE RULES FOR THE APPROVAL OF ELECTRICAL EQUIPMENT ( CEE ) OR OF THE INTERNATIONAL ELECTRO-TECHNICAL COMMISSION ( IEC ) ( ARTICLE 6 ( 1 ) OF THE DIRECTIVE );

- WHERE HARMONIZED STANDARDS AS DEFINED IN ARTICLE 5 OF THE DIRECTIVE , OR INTERNATIONAL STANDARDS AS DEFINED IN ARTICLE 6 OF THE DIRECTIVE , ARE NOT YET IN EXISTENCE , THE NATIONAL STANDARDS IN THE MEMBER STATES OF MANUFACTURE IF THEY ENSURE A SAFETY LEVEL EQUIVALENT TO THAT REQUIRED IN THE IMPORTING MEMBER STATE ( ARTICLE 7 OF THE DIRECTIVE );

- IN THE CASE OF EQUIPMENT WHICH DOES NOT COMPLY WITH THE STANDARDS REFERRED TO IN ARTICLES 5 , 6 AND 7 THE STANDARDS CORRESPONDING TO ' ' GOOD ENGINEERING PRACTICE ' ' AND TO THE REQUIREMENTS OF ARTICLE 2 SPECIFIED IN ANNEX I TO THE DIRECTIVE ( ARTICLE 8 ( 1 ) OF THE DIRECTIVE ).

IF THE ELECTRICAL EQUIPMENT COMPLIES WITH THESE STANDARDS THE MEMBER STATES ARE BOUND TO ENSURE ITS FREEDOM OF MOVEMENT .

9 UNDER ARTICLE 10 OF THE DIRECTIVE THE CONFORMITY OF ELECTRICAL EQUIPMENT WITH HARMONIZED AND INTERNATIONAL AND NATIONAL STANDARDS , THAT IT TO SAY WITH THE FIRST THREE CATEGORIES OF STANDARDS , MAY BE CERTIFIED - INTER ALIA - BY AFFIXING MARKS DENOTING CONFORMITY ESTABLISHED BY BODIES A LIST OF WHICH IS NOTIFIED BY EACH MEMBER STATE TO THE OTHER MEMBER STATES AND TO THE COMMISSION . IN THAT CASE - AND WITHOUT PREJUDICE TO OTHER METHODS OF PROOF LEFT TO THE DISCRETION OF THE MEMBER STATES IN ORDER TO PERMIT THE FREE MOVEMENT OF ELECTRICAL EQUIPMENT IN RESPECT OF WHICH THERE IS NO PRESUMPTION OF CONFORMITY - THE MEMBER STATES MUST TAKE ALL NECESSARY STEPS TO ENSURE THAT THEIR COMPETENT ADMINISTRATIVE AUTHORITIES SHALL ACCEPT THAT THIS EQUIPMENT IS PRESUMED TO CONFORM TO ARTICLES 5 , 6 AND 7 OF THE DIRECTIVE .

10 THE FREE MOVEMENT OF THIS EQUIPMENT , WHICH IS PRESUMED TO CONFORM TO THE SAFETY STANDARDS REFERRED TO IN THE ABOVE-MENTIONED ARTICLES , MAY BE IMPEDED FOR REASONS OF SAFETY ONLY BY IMPLEMENTING THE COMMUNITY PROCEDURE PROVIDED FOR BY ARTICLE 9 UNDER WHICH A MEMBER STATE MAY FORBID THE PLACING ON THE MARKET OF ANY ELECTRICAL EQUIPMENT OR IMPEDE ITS FREE MOVEMENT ONLY ON CONDITION THAT IT IMMEDIATELY INFORMS THE OTHER MEMBER STATES AND THE COMMISSION , INDICATING THE GROUNDS FOR ITS DECISION AND FOR THE NON-CONFORMITY OF THE EQUIPMENT WITH THE STANDARDS PRESCRIBED BY THE DIRECTIVE , AND THE COMMISSION MUST THEN TAKE THE STEPS AS DESCRIBED IN THE SAID ARTICLE 9 . IN FACT WHERE A HARMONIZATION DIRECTIVE APPLIES THE APPROPRIATE SUPERVISION MUST BE CARRIED OUT AND THE PROTECTIVE MEASURE MUST BE ADOPTED WITHIN ITS FRAMEWORK .

11 IT FOLLOWS FROM THE SAID ARTICLE 9 OF THE DIRECTIVE THAT THE PROCEDURE WHICH IT LAYS DOWN CAN ONLY BE IMPLEMENTED BY A MEMBER STATE , AN EXPRESSION WHICH CLEARLY REFERS TO A NATIONAL ADMINISTRATIVE AUTHORITY ACTING ON BEHALF OF THE STATE AND THEREFORE EMPOWERED TO PARTICIPATE IN A PROCEDURE WHICH TAKES PLACE BETWEEN THE COMMISSION AND THE MEMBER STATES AND WHICH PRECLUDES IN THIS CONNEXION ANY ACTION BY THE JUDICIAL AUTHORITY AS SUCH .

12 FINALLY THE FACT THAT ALL THE MEMBER STATES HAVE NOT YET DESIGNATED THE BODIES EMPOWERED TO ISSUE THE MARKS INDICATED IN DIRECTIVE NO 73/23 DOES NOT RENDER THIS DIRECTIVE UNENFORCEABLE , SINCE A UNILATERAL ABSTENTION CANNOT PREVENT THE IMPLEMENTATION IN THE COMMUNITY OF THE SYSTEM WHICH THE SAID DIRECTIVE MAKES IT POSSIBLE TO SET UP .

13 THE ANSWER TO THE FIRST QUESTION OF THE PRETORE DI COMO MUST THEREFORE BE THAT , IF THE IMPORTED ELECTRICAL MATERIAL BEARS MARKS DENOTING CONFORMITY DULY ISSUED BY BODIES NOTIFIED IN ACCORDANCE WITH DIRECTIVE NO 73/23 , THE PRESUMPTION OF CONFORMITY PREVENTS THE ADOPTION OF ANY MEASURE RESTRICTING THE FREE MOVEMENT OF THAT EQUIPMENT BY A JUDICIAL AUTHORITY OF A MEMBER STATE , EVEN IF THE MEMBER STATES HAVE NOT ALL DESIGNATED THE BODIES WHICH ARE EMPOWERED TO ISSUE SUCH MARKS .

THE ANSWER TO THE SECOND QUESTION MUST BE THAT SINCE A JUDICIAL AUTHORITY IS NOT EMPOWERED , WHERE THERE IS A PRESUMPTION OF CONFORMITY , TO ADOPT ANY MEASURE RESTRICTING THE FREE MOVEMENT OF THE GOODS , SUCH A STEP MAY BE TAKEN ONLY IN THE CONTEXT OF THE PROCEDURE OF ARTICLE 9 OF THE DIRECTIVE BY A NATIONAL ADMINISTRATIVE AUTHORITY ACTING ON BEHALF OF THE MEMBER STATE AND EMPOWERED TO PARTICIPATE IN THAT PROCEDURE .

THE THIRD AND FOURTH QUESTIONS

14 THE PRETORE DI COMO THEN REFERS TO ELECTRICAL EQUIPMENT , IN THIS CASE METABO AND GAZONETTE EQUIPMENT , WHICH DOES NOT CONFORM EITHER TO THE HARMONIZED STANDARDS OR TO INTERNATIONAL STANDARDS ACCEPTED BY THE DIRECTIVE OR TO THE STANDARDS OF THE STATE OF MANUFACTURE ENSURING A SAFETY LEVEL EQUIVALENT TO THAT REQUIRED IN THE IMPORTING TERRITORY AND WHICH DOES NOT BEAR MARKS OF CONFORMITY . IN THIS CONNEXION HE REFERS TO THE COURT THE FOLLOWING QUESTIONS : ' ' 3 . MUST THE COMBINED PROVISIONS OF ARTICLES 8 , 3 AND 2 OF DIRECTIVE ( EEC ) NO 73/23 BE INTERPRETED IN SUCH MANNER AS TO PRECLUDE A JUDICIAL AUTHORITY OF A MEMBER STATE FROM ADOPTING A MEASURE RESTRICTING THE FREE MOVEMENT WITHIN THE EEC OF ELECTRICAL EQUIPMENT TO WHICH THE DIRECTIVE APPLIES WHEN THE SAID EQUIPMENT ( IN THE CASE IN QUESTION : DRILLS AND LAWN-MOWERS ), THOUGH PROVIDED WITH OTHER SAFETY FEATURES LAID DOWN BY COMMUNITY LAW , LACKS A FEATURE ( EARTHING ) EXPRESSLY REQUIRED BY A MANDATORY PROVISION OF NATIONAL LAW , BEFORE A REPORT BY ONE OF THE SPECIAL BODIES REFERRED TO IN ARTICLE 8 OF THE DIRECTIVE HAS BEEN REQUESTED OR SUBMITTED?

4.IN THE EVENT OF THE ANSWER TO THE THIRD QUESTION BEING IN THE AFFIRMATIVE , MAY THE MEASURE RESTRICTING THE FREE MOVEMENT OF ELECTRICAL EQUIPMENT DESCRIBED IN QUESTION 3 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 BODY OF THE MEMBER STATE WHICH HAS BEEN DESIGNATED TO INITIATE THE PROCEDURE LAID DOWN IN ARTICLE 9 OF THE SAID DIRECTIVE?

' '

15 THE PRETORE IN FACT IS INQUIRING WHETHER A NATIONAL COURT , IN THE ABSENCE OF A PRESUMPTION OF CONFORMITY RESULTING FROM THE AFFIXING OF A MARK OR THE ISSUE OF A CERTIFICATE OR OF A DECLARATION OF CONFORMITY WITH ONE OF THE AFOREMENTIONED THREE CATEGORIES OF STANDARDS , MAY , BEFORE APPLICATION FOR OR SUBMISSION OF THE REPORT ON CONFORMITY AS PROVIDED FOR BY ARTICLE 8 ( 2 ) IN THE EVENT OF A CHALLENGE , ADOPT ANY MEASURE RESTRICTING THE FREE MOVEMENT OF ELECTRICAL EQUIPMENT WHICH FALLS WITHIN ARTICLE 8 ( 1 ) OF THE DIRECTIVE BUT DOES NOT MEET THE EXPRESS REQUIREMENTS OF NATIONAL LAW WHILST HAVING ALL THE OTHER SAFETY DEVICES REFERRED TO IN THE COMMUNITY RULES .

16 ON THIS QUESTION THE PRETORE DI COMO IS VIEWING THE MATTER FROM THE STANDPOINT OF ARTICLE 8 OF THE DIRECTIVE UNDER WHICH 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 OF ELECTRICAL EQUIPMENT WHICH , ALTHOUGH NOT CONFORMING WITH THE FIRST THREE CATEGORIES LAID DOWN BY THE DIRECTIVE , COMPLIES WITH THE PROVISIONS OF ARTICLE 2 , THAT IS TO SAY , HAS BEEN CONSTRUCTED IN ACCORDANCE WITH GOOD ENGINEERING PRACTICE IN SAFETY MATTERS IN FORCE IN THE COMMUNITY AND 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 . ARTICLE 8 ( 2 ) THEN PROVIDES THAT 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 OF THE DIRECTIVE , ON THE CONFORMITY OF THE ELECTRICAL EQUIPMENT WITH THE PROVISIONS OF ARTICLE 2 .

17 IN THE ABSENCE OF A REPORT - DRAWN UP BY THE COMPETENT BODY WITHIN THE MEANING OF ARTICLES 8 ( 2 ) AND 11 OF THE DIRECTIVE - CERTIFYING THE CONFORMITY OF THE EQUIPMENT IN QUESTION WITH THE PROVISIONS OF ARTICLE 2 , THE NATIONAL AUTHORITIES ARE ENTITLED TO ASCERTAIN WHETHER THIS CONFORMITY IN FACT EXISTS ; IN THAT CASE THEY MUST DO SO ON THE BASIS OF THE CRITERIA LAID DOWN BY ARTICLE 2 AS SUPPLEMENTED BY ANNEX I ; IF THOSE CRITERIA DO NOT SEEM TO INCLUDE THE PRINCIPAL FEATURES OF THE SAFETY OBJECTIVES FOR THE ELECTRICAL EQUIPMENT IN QUESTION , THEY MAY REFER TO THE SAFETY REQUIREMENTS OF THEIR NATIONAL LAW , SINCE ALL THE RESOURCES OF COMMUNITY LAW PROVIDED FOR BY THE DIRECTIVE ARE EXHAUSTED .

18 IN THAT CASE JURISDICTION TO CONSIDER WHETHER THE CONFORMITY OF THE EQUIPMENT MEETS THE REQUIREMENTS OF ARTICLES 2 AND 3 OF THE DIRECTIVE MAY REVERT TO THE NATIONAL COURT , WHETHER OR NOT A MEASURE PROHIBITING THE PLACING OF THE EQUIPMENT ON THE MARKET AND APPLYING TO THE WHOLE OF THE NATIONAL TERRITORY HAS BEEN ADOPTED BY THE COMPETENT ADMINISTRATIVE AUTHORITY INITIATING THE PROCEDURE REFERRED TO IN ARTICLE 9 OF THE DIRECTIVE . THE NATIONAL COURT HAS THIS JURISDICTION ONLY UNTIL PRODUCTION OF A REPORT AS PROVIDED FOR BY ARTICLE 8 ( 2 ), AND PRODUCTION THEREOF BRINGS COMMUNITY LAW AGAIN INTO PLAY IN TERMS OF THE SAID ARTICLE 8 ( 2 ) OF THE DIRECTIVE .

19 THE ANSWER TO THE THIRD QUESTION PUT BY THE PRETORE DI COMO MUST THEREFORE BE THAT A JUDICIAL AUTHORITY OF A MEMBER STATE MAY , ON THE BASIS OF THE REQUIREMENTS OF ITS NATIONAL LAW , ADOPT A MEASURE RESTRICTING THE FREE MOVEMENT OF ELECTRICAL EQUIPMENT IN RESPECT OF WHICH THERE IS NO PRESUMPTION OF CONFORMITY WITHIN THE MEANING OF ARTICLE 10 OF DIRECTIVE NO 73/23 SO LONG AS THE EQUIPMENT HAS NOT BEEN THE SUBJECT OF A REPORT WITHIN THE MEANING OF ARTICLE 8 ( 2 ) OF THE DIRECTIVE .

20 SINCE THE THIRD QUESTION HAS BEEN ANSWERED IN THE NEGATIVE THERE IS NO NEED TO ANSWER THE FOURTH .

THE FIFTH QUESTION

21 LASTLY THE PRETORE DI COMO PUTS THE FOLLOWING QUESTION :

' ' 5 . MUST ANY PROHIBITION ON THE EXERCISE OF THE POWER TO ADOPT MEASURES RESTRICTING THE FREE MOVEMENT OF GOODS ON THE TERMS AND CONDITIONS MENTIONED IN ALL THE PRECEDING QUESTIONS BE REGARDED AS IMPOSED UPON THE JUDICIAL AUTHORITY OF THE MEMBER STATE REGARDLESS OF ANY NATIONAL PROVISIONS RELATING TO THE RULES FOR THE INSTALLATION OF THE ELECTRICAL EQUIPMENT IN QUESTION?

' '

22 IN ORDER TO ANSWER THE FIFTH QUESTION IT IS ENOUGH TO STATE THAT SINCE IT IS PERMISSIBLE FOR A JUDICIAL AUTHORITY OF A MEMBER STATE TO ADOPT MEASURES RESTRICTING THE FREE MOVEMENT OF ANY ELECTRICAL EQUIPMENT ONLY IN THE MARGINAL CIRCUMSTANCES MENTIONED ABOVE AND SUBJECT TO THE CONDITIONS WHICH HAVE BEEN SPECIFIED IN THE ANSWER TO THE THIRD QUESTION , SUCH A JUDICIAL AUTHORITY DOES NOT HAVE THAT POWER IN OTHER CIRCUMSTANCES IN WHICH COMMUNITY LAW AND PROCEDURES APPLY .

Decision on costs

23 THE COSTS INCURRED BY THE NETHERLANDS , BRITISH , FRENCH AND ITALIAN GOVERNMENTS AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PRETORE DI COMO BY AN ORDER OF 27 NOVEMBER 1979 , HEREBY RULES :

1 . IF THE IMPORTED ELECTRICAL EQUIPMENT BEARS MARKS DENOTING CONFORMITY DULY ISSUED BY THE BODIES NOTIFIED IN ACCORDANCE WITH DIRECTIVE NO 73/23 , THE PRESUMPTION OF CONFORMITY PREVENTS THE ADOPTION OF ANY MEASURE RESTRICTING THE FREE MOVEMENT OF THAT EQUIPMENT BY A JUDICIAL AUTHORITY OF A MEMBER STATE , EVEN IF THE MEMBER STATES HAVE NOT ALL DESIGNATED THE BODIES WHICH ARE EMPOWERED TO ISSUE SUCH MARKS .

2 . SINCE A JUDICIAL AUTHORITY IS NOT EMPOWERED , WHERE THERE IS A PRESUMPTION OF CONFORMITY , TO TAKE ANY STEP RESTRICTING THE FREE MOVEMENT OF THE GOODS , SUCH A STEP MAY BE TAKEN ONLY IN THE CONTEXT OF THE PROCEDURE OF ARTICLE 9 OF THE DIRECTIVE BY A NATIONAL ADMINISTRATIVE AUTHORITY ACTING ON BEHALF OF THE MEMBER STATE AND EMPOWERED TO PARTICIPATE IN THAT PROCEDURE .

3 . A JUDICIAL AUTHORITY OF A MEMBER STATE MAY , ON THE BASIS OF THE REQUIREMENTS OF ITS NATIONAL LAW , ADOPT A MEASURE RESTRICTING THE FREE MOVEMENT OF ELECTRICAL EQUIPMENT IN RESPECT OF WHICH THERE IS NO PRESUMPTION OF CONFORMITY WITHIN THE MEANING OF ARTICLE 10 OF DIRECTIVE NO 73/23 SO LONG AS THE EQUIPMENT HAS NOT BEEN THE SUBJECT OF A REPORT WITHIN THE MEANING OF ARTICLE 8 ( 2 ) OF THE DIRECTIVE .

4 . SINCE IT IS PERMISSIBLE FOR A JUDICIAL AUTHORITY OF A MEMBER STATE TO ADOPT MEASURES RESTRICTING THE FREE MOVEMENT OF ANY ELECTRICAL EQUIPMENT ONLY UNDER THE CONDITIONS WHICH HAVE BEEN SPECIFIED IN THE ANSWER TO THE THIRD QUESTION , SUCH A JUDICIAL AUTHORITY DOES NOT HAVE THAT POWER IN OTHER CIRCUMSTANCES IN WHICH COMMUNITY LAW AND PROCEDURES APPLY .