CELEX: C1997/166/08
Language: en
Date: 1997-05-31 00:00:00
Title: Action brought on 18 March 1997 by the Commission of the European Communities against the Italian Republic (Case C-112/97)

31 . 5 . 97               EN                 Official Journal of the European Communities                                   No C 166/5
      acceptance in more than 50% of the trade circles                  Such a specific prohibition is contrary to Article 4 of
      concerned is required and is to be demonstrated,                  Directive    90/396/EEC       inasmuch     as it constitutes an
      compatible with that provision ?                                  obstacle to the putting into service of appliances to which
                                                                        the directive applies and which conform to the essential
                                                                        requirements provided for therein.
      Do requirements follow from this provision as to the
      manner in which descriptive character acquired by use
      is to be ascertained ?                                            The argument that Article 5 ( 10 ) of DPR 412/93 is
                                                                        compatible with Directive 90/396/EEC on account of the
C ) First Council Directive of 21 December 1988 to approximate          safety requirements on which it is based is unfounded .
    the laws of the Member States relating to trade marks ( 89/         Indeed, the essential requirements laid down by the
     104/EEC ) ( OJ No L 40, 1989, p. 1 ).                              directive in respect of the installation and use of
                                                                        appliances burning gaseous fuels — including of the ' open'
                                                                        type — are exhaustive in that they conform to all the
                                                                        relevant safety requirements and are mandatory in nature .
                                                                        In the present case, the national authority is no longer
                                                                        able to maintain in force nor to adopt national provisions
                                                                        which require compliance with additional requirements,
Action brought on 18 March 1997 by the Commission of                    otherwise the achievement and the functioning of the
   the European Communities against the Italian Republic                internal market would be unlawfully hindered.
                            Case C-l 12/97
                             ( 97/C 166/08 )                            The argument that Article 5 ( 10 ) of DPR 412/93 should
                                                                        be regarded as a lawful derogation under Article 36 and
                                                                        100a (4 ), or Article 129a of the EC Treaty from the
An action against the Italian Republic was brought before               principle of the free movement of goods is also
the Court of Justice of the European Communities on                     unfounded .
18 March 1997 by the Commission of the European
Communities, represented by Paolo Stancanelli and Hans
                                                                        (') OJ No L 196 , 26 . 7. 1990 , p . 15 .
Stovlbaek, of its Legal Service, acting as Agents, with an
address for service in Luxembourg at the office of Carlos
Gomez de la Cruz, Wagner Centre, Kirchberg.
The applicant claims that the Court should :
                                                                        Action brought on 19 March 1997 by Commission of the
— declare that, by establishing and maintaining a system                     European Communities against Kingdom of Spain
      which requires the installation in inhabited areas only                                    (Case C-l 14/97)
      of 'shielded' heaters, thus impliedly prohibiting the
      installation of heaters of any other type which comply                                       ( 97/C 166/09 )
      with Directive 90/396/EEC ( 1 ), the Italian Republic has
       failed to fulfil its obligations under Community law,
                                                                         An action against the Kingdom of Spain was brought
                                                                         before the Court of Justice of the European Communities
— order the Italian Republic to pay the costs.                           on 17 March 1997 by the Commission of the European
                                                                         Communities, represented by A. Caeiro and F. Castillo de
                                                                         la Torre, acting as Agents, with an address for service in
 Pleas in law and main arguments adduced in support:                     Luxembourg at the office of Carlos Gomez de la Cruz,
                                                                         Wagner Centre, Kirchberg.
Article 5 ( 10 ) of Decreto del Presidente della Repubblica
 ( Decree of the President of the Republic ) of 26 August                The applicant claims that the Court should:
 1993 (hereinafter DPR 412/93 ) provides that in cases of
 new installations or restructuring of heating systems which
 involve the installation of individual heaters, except in               — declare that, by maintaining in force Articles 7, 8 and
 cases of mere replacement, heaters insulated from the                       10 of Law No 23/1992 of 30 July 1992 0 ), in so far
 inhabited area may be used or, where installation is                        as those provisions make the grant of authorization to
 external or in suitable industrial premises, appliances of                  carry on private security activities in the case of
 any type may be fitted .                                                    ' security companies' subject to the requirement of
                                                                             being constituted in Spain and the requirement that
                                                                             their directors and managers should reside in Spain
 Although Article 5 ( 10 ) of DPR 412/93 does not contain a                  and the requirement that the 'security staff should
 prohibition on the marketing of non-insulated ('open')                      possess Spanish nationality, the Kingdom of Spain has
 heaters or a general prohibition on their installation, it is               failed to fulfil its obligations under the EC Treaty, in
 none the less true that that provision does prohibit                        particular Articles 48 , 52 and 59,
 specifically, albeit impliedly, the fitting of such heaters in
 inhabited areas when installing anew or restructuring
 heating systems.                                                        — order the defendant to pay the costs.