CELEX: 62001CJ0455
Language: en
Date: 2003-10-16 00:00:00
Title: Judgment of the Court (Fourth Chamber) of 16 October 2003. # Commission of the European Communities v Italian Republic. # Failure by a Member State to fulfil its obligations - Directive 96/98/EC - Marine equipment - Free movement of goods - Measures having equivalent effect to quantitative restrictions - Obligation to be in possession of a certificate of conformity issued by a recognised national body - Non-recognition of tests carried out by bodies recognised in other Member States. # Case C-455/01.

Case C-455/01 Commission of the European CommunitiesvItalian Republic
            «(Failure of a Member State to fulfil obligations – Directive 96/98/EC – Marine equipment – Free movement of goods – Measures having equivalent effect to quantitative restrictions – Obligation to be in possession of a certificate of conformity issued by a recognised national body – Non-recognition of tests carried out by bodies recognised in other Member States)»
            
               
                  Judgment of the Court (Fourth Chamber), 16 October 2003  
                     
               I - 0000 
               
            
                   
               
               
            
            Summary of the Judgment
         
         
                  
                  Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National legislation making the marketing of marine equipment subject to the issue of a certificate of conformity – Not permissible(Art. 28 EC)A Member State which keeps in force legislation under which products in respect of which there has not yet been full harmonisation,
         intended for use on merchant vessels flying the flag of that Member State, may be marketed only if a certificate of conformity
         has been issued by a national body ─ so that in some cases the right to market the products is enjoyed only by the grantee
         of the certificate ─ and which does not recognise the validity of tests carried out in accordance with international standards
         by bodies recognised in the other Member States, even where the relevant information is made available to the competent authority
         and it is clear from the certificates that the equipment guarantees a degree of safety equivalent to that required for national
         products, has failed to fulfil its obligations under Article 28 EC.see para. 27, operative part
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Fourth Chamber)16 October 2003  (1)
         
         
            
         
               ((Failure by a Member State to fulfil its obligations – Directive 96/98/EC – Marine equipment – Free movement of goods – Measures having equivalent effect to quantitative restrictions – Obligation to be in possession of a certificate of conformity issued by a recognised national body – Non-recognition of tests carried out by bodies recognised in other Member States))
               
            In Case C-455/01, 
            
            
             Commission of the European Communities,  represented by R.B. Wainwright and R. Amorosi, acting as Agents, with an address for service in Luxembourg,
            
            
            applicant, 
            
            v
             Italian Republic,  represented by I.M. Braguglia, acting as Agent, assisted by M. Fiorilli, avvocato dello Stato, with an address for service
            in Luxembourg,
            
             defendant, 
            
            APPLICATION for a  declaration that, by keeping in force legislation under which products in respect of which there has not
            yet been full harmonisation, intended for use on merchant vessels flying the Italian flag, may be marketed only if a certificate
            of conformity has been issued by a national body ─ so that in some cases the right to market those products is enjoyed only
            by the grantee of the certificate ─ and by not recognising the validity of tests carried out in accordance with international
            standards by bodies recognised in the other Member States or in States signatory to the Agreement of 2 May 1992 on the European
            Economic Area (OJ 1994 L 1, p. 3), even where the relevant information is made available to the competent authority and it
            is clear from the certificates that the equipment guarantees a degree of safety equivalent to that required for Italian products,
            the Italian Republic has failed to fulfil its obligations under Articles 28 EC and 30 EC,
            
            
            THE COURT (Fourth Chamber),,
            
            composed of: C.W.A. Timmermans (Rapporteur), President of the Chamber, D.A.O. Edward and S. von Bahr, Judges, 
            
            Advocate General: S. Alber, Registrar: R. Grass, 
            
            
            having regard to the report of the Judge-Rapporteur,
            
            having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
         gives the following
         
         
         Judgment
         1
            
         By application lodged at the Court Registry on 27 November 2001, the Commission of the European Communities brought an action
         under Article 226 EC for a  declaration that, by keeping in force legislation under which products in respect of which there
         has not yet been full harmonisation, intended for use on merchant vessels flying the Italian flag, may be marketed only if
         a certificate of conformity has been issued by a national body ─ so that in some cases the right to market those products
         is enjoyed only by the grantee of the certificate ─ and by not recognising the validity of tests carried out in accordance
         with international standards by bodies recognised in the other Member States or in States signatory to the Agreement of 2
         May 1992 on the European Economic Area (OJ 1994 L 1, p. 3;  
         the EEA Agreement), even where the relevant information is made available to the competent authority and it is clear from the certificates
         that the equipment guarantees a degree of safety equivalent to that required for Italian products, the Italian Republic has
         failed to fulfil its obligations under Articles 28 EC and 30 EC. 
         
            
               Relevant provisions
            Community legislation
         
         
         2
            
         Article 28 EC provides:Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
         
         
         3
            
         Article 30 EC provides: The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit
         justified on grounds of ... the protection of health and life of humans ... Such prohibitions or restrictions shall not, however,
         constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
         
         
         4
            
         Article 4(1) and (2) of Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and
         survey organisations and for the relevant activities of maritime administrations (OJ 1994 L 319, p. 20) read as follows: 
         
         1.
          Member States may only recognise such organisations which fulfil the criteria set out in the Annex. The organisations shall
         submit to the Member States from which recognition has been requested complete information concerning, and evidence of, compliance
         with these criteria. The Member States will notify the organisations in an appropriate manner of their recognition.
         
         
         2.
          Each Member State shall notify to the Commission and the other Member States those organisations it has recognised.
         
         
         
         5
            
         Article 1 of Council Directive 96/98/EC of 20 December 1996 on marine equipment (OJ 1997 L 46, p. 25), as amended by Commission
         Directive 98/85/EC of 11 November 1998 (OJ 1998 L 315, p. 14; hereinafter  
         Directive 96/98), provides: The purpose of this Directive shall be to enhance safety at sea and the prevention of marine pollution through the uniform
         application of the relevant international instruments relating to equipment listed in Annex A to be placed on board ships
         for which safety certificates are issued by or on behalf of Member States pursuant to international conventions and to ensure
         the free movement of such equipment within the Community.
         
         
         6
            
         Directive 96/98/EC lays down for that purpose provisions harmonising national laws on the documentation and conditions necessary
         to obtain certification for the equipment to be placed on board ships which is listed in Annex A.1, namely equipment for which
         detailed testing standards already exist in the international instruments referred to in that Annex. 
         
         
         7
            
         Equipment for which no detailed testing standards exist in international instruments is listed in Annex A.2 to Directive 96/98.
          
         National legislation
         
         
         8
            
         As provided in Article 2(1) of Presidential Decree No 347 of 18 April 1994 (GURI No 132 of 8 June 1994, Ordinary Supplement;
          
         Decree No 347/94): On ships for which the provisions of international conventions regarding the protection of human life at sea ... require the
         adoption of devices, systems and materials ... referred to in Table A annexed to Book I of these regulations, these shall
         be of a type approved by the Ministry, with the exception of exemptions laid down in the regulations.
         
         
         9
            
         Article 3 of Decree No 347/94 provides: 
         
         1.
          The application for the declaration of type-approval shall be lodged or sent by post to the Ministry.
         
         
         2.
          The application must be accompanied by the technical report of the Italian Ships Registry, which the applicant must obtain.
         
         
         
         10
            
         Following legislative developments subsequent to the adoption of the regulations in Decree No 347/94, the abovementioned provisions
         of it now apply only to the equipment listed in Annex A.2 to Directive 96/98. 
         
         
         11
            
         It follows from these provisions that, in order to place on the market and install  on ships equipment listed in Annex A.2
         to Directive 96/98, it is necessary to produce a certificate of conformity issued by the Italian Ships Registry (
         RINA) and a declaration of type-approval issued by the competent Ministry. The certificate of conformity may only be issued if
         tests and analyses have been carried out by RINA.  
         Pre-litigation procedure
         
         12
            
         Following a complaint lodged in 1997 by a Danish producer of marine equipment, the Commission sent the Italian Republic a
         letter of formal notice on 11 June 1998, supplemented by a letter on 30 July 1999. In these letters, the Commission stated
         in particular that the absence of recognition, on the one hand, of certificates of conformity of marine equipment issued in
         the other Member States or States signatory to the EEA Agreement, and, on the other hand, of tests of conformity of this equipment
         carried out in these States was incompatible with Articles 28 EC and 30 EC and with Article 11 of the EEA Agreement. 
         
         
         13
            
         The Italian authorities replied to these letters on 28 October 1999, stating that they had remedied the shortcomings complained
         of by the Commission by adopting legislation to transpose Directive 96/98 into Italian law.  
         
         
         14
            
         Taking the view that the adoption of this legislation did not bring an end to the infringement in relation to the equipment
         referred to in Annex A.2 to Directive 96/98, the Commission issued a reasoned opinion by letter of 17 February 2000, repeating
         the complaints set out in the letter of formal notice but restricting them to the abovementioned equipment. 
         
         
         15
            
         At a meeting on 6 June 2000, the Italian authorities acknowledged that the national legislation was incompatible with Directive
         96/98 and informed the Commission of their intention to comply with the reasoned opinion by amending that legislation. They
         also stated that, whilst awaiting the entry into force of the amendments, circulars would be issued to give the instructions
         necessary to comply with the obligations arising from Directive 96/98. 
         
         
         16
            
         By letter of 8 June 2000, the Italian authorities informed the Commission of the adoption of the circular of 22 February 2000,
         which recognised, for the marine equipment referred to in Annex A.2 to the directive, the certificates of type-approval issued
         by the authorities of the other Member States. As to the recognition of tests, they stated that legislative amendments were
         under consideration.   
         
         
         17
            
         By letter of 16 November 2000 addressed to the Commission, the Italian authorities stated that the procedure for the amendment
         of Decree No 347/94 had been initiated. In the same letter, they sent the Commission the text of Service Order No 57/2000
         of 4 August 2000 issued by the authority governing harbourmasters, which states that the competent bodies are to take account
         of tests and checks already carried out in the other Member States.   
         
         
         18
            
         By letter of 29 March 2001, the Commission drew the attention of the Italian authorities to the fact that the only way to
         bring national legislation into line with Community law was to adopt a provision of a status at least equal to that of Decree
         No 347/94 and that therefore a service order was not capable of remedying the incompatibility.   
         
         
         19
            
         By letter of 2 May 2001, the Italian authorities informed the Commission that the legislative procedure was under way and
         enclosed with the letter the proposed amendments to Decree No 347/94.  
         
         
         20
            
         On noting that more than a year had elapsed since the meeting of 6 June 2000 at which the Italian authorities stated their
         intention to amend the legislation in question, the Commission brought the present action.  
         The action
         
         21
            
         It follows from Article 2(1) and (3) of Decree No 347/94 that all marine equipment intended for use on merchant vessels flying
         the Italian flag, from a Member State other than the Italian Republic and listed in Annex A.2 to Directive 96/98, must, in
         order to be marketed in Italy, be covered by both a declaration of type-approval issued by a body subject to the Italian authorities,
         namely RINA, and by tests and analyses which may only be carried out by RINA. 
         
         
         22
            
         The abovementioned national provisions are thus capable of hindering intra-Community trade and therefore constitute a measure
         having an effect equivalent to a quantitative restriction prohibited by Article 28 EC (see Case 8/74  
          Dassonville  [1974] ECR 837, paragraph 5, and Case C-383/97  
          Van der Laan  [1999] ECR I-731, paragraph 18). 
         
         
         23
            
         Although in the absence of harmonisation a restriction on the free movement of goods may be justified under Article 30 EC,
         in relation in particular to the protection of health and life of humans or on overriding grounds in the general interest,
         the Italian Republic has not pleaded such a justification in this case. In its defence, Italy merely states that the amendment
         of Decree No 347/94 is under way and sets out the reasons for the delay.   
         
         
         24
            
         In any event, since Decree No 347/94 does not enable analyses and tests already carried out in an approval procedure in another
         Member State to be taken into account, the restriction on intra-Community trade which results from the need to obtain a declaration
         of approval issued by RINA does not fulfil the condition of proportionality and therefore cannot be justified in Community
         law (see, to that effect, Case C-400/96  
          Harpegnies  [1998] ECR I-5121,  paragraphs 34 and 35). 
         
         
         25
            
         Service Order No 57/2000 cannot remedy the incompatibility between Article 2(1) and (3) of Decree No 347/94 and Article 28
         EC. The Court has consistently held that the incompatibility of national legislation with Community provisions, even provisions
         which are directly applicable, can be finally remedied only by means of national provisions of a binding nature which have
         the same legal force as those which must be amended (see, in particular, Case C-207/96  
          Commission  v  
          Italy  [1997] ECR I-6869, paragraph 26).
         
         
         26
            
         It therefore follows that those national provisions infringe Article 28 EC. Since the Commission's action does not relate
         specifically to Article 11 of the EEA Agreement, unlike the subject-matter of the pre-litigation procedure, the Court's findings
         must be restricted to Article 28 EC.  
         
         
         27
            
         In the light of the foregoing, it should be held that, by keeping in force legislation under which products in respect of
         which there has not yet been full harmonisation, intended for use on merchant vessels flying the Italian flag, may be marketed
         only if a certificate of conformity has been issued by a national body ─ so that in some cases the right to market the products
         is enjoyed only by the grantee of the certificate ─ and by not recognising the validity of tests carried out in accordance
         with international standards by bodies recognised in the other Member States, even where the relevant information is made
         available to the competent authority and it is clear from the certificates that the equipment guarantees a degree of safety
         equivalent to that required for Italian products, the Italian Republic has failed to fulfil its obligations under Article
         28 EC. 
         
         Costs
         28
            
         Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party's pleadings. Since the Commission has applied for costs and the Italian Republic has been
         unsuccessful, the Italian Republic must be ordered to pay the costs. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Fourth Chamber)
         
         
         hereby: 
         
            
            1.
             Declares that, by keeping in force legislation under which products in respect of which there has not yet been full harmonisation,
            intended for use on merchant vessels flying the Italian flag, may be marketed only if a certificate of conformity has been
            issued by a national body ─ so that in some cases the right to market the products is enjoyed only by the grantee of the certificate
            ─ and by not recognising the validity of tests carried out in accordance with international standards by bodies recognised
            in the other Member States, even where the relevant information is made available to the competent authority and it is clear
            from the certificates that the equipment guarantees a degree of safety equivalent to that required for Italian products, the
            Italian Republic has failed to fulfil its obligations under Article 28 EC; 
            
            
            2.
             Orders the Italian Republic to pay the costs. 
            
            
                  Timmermans
               
               
                  Edward
               
               
                  von Bahr
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
         Delivered in open court in Luxembourg on 16 October 2003. 
         
         
         
         
                  R. Grass 
               
               
                  V. Skouris  
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
             Language of the case: Italian.