CELEX: 61984CC0188
Language: en
Date: 1985-10-15 00:00:00
Title: Opinion of Mr Advocate General VerLoren van Themaat delivered on 15 October 1985. # Commission of the European Communities v French Republic. # Failure of a State to fulfil its obligations - Type approval for woodworking machines. # Case 188/84.

OPINION OF MR ADVOCATE GENERAL
      VERLOREN VAN THEMAAT
      delivered on 15 October 1985 (
            *1
         )
      Mr President,
      Members of the Court,
      1. Summary of the case
      1.1. General remarks
      So far as I have been able to ascertain, these proceedings brought by the Commission against France are the first in which the Court has been called upon to consider, in all their complexity, the restrictions on trade which may result from technical provisions for machines and other technical apparatus and products.
      Speaking very generally, so-called ‘technical barriers to trade’ in industrial products can arise in three different ways, of increasing gravity.
      In the first place, they may be the practical consequences of divergent technical norms laid down by private-sector standards institutes in the various States. In so far as such technical standards are in practice applied systematically by private customers it is clear that significant restrictions on trade can arise. The Commission's efforts seem to be directed towards the elimination of such private trade barriers by replacing the national standards concerned with European standards. Where it is established that private-sector customers engage in concerted practices aimed at the exclusive application of national standards and that products which meet only the standards of other Member States are kept out, clearly Article 85 of the EEC Treaty may also be applicable.
      The restrictive effect of technical standards laid down by private bodies becomes more severe where public authorities, in awarding contracts, require suppliers to comply with such private national standards. If in so doing the authorities cannot rely on one of the exceptions laid down in Article 36 of the EEC Treaty (which will seldom be possible in the case of purely private standards), such restrictions on trade resulting from established administrative practices can be attacked under Article 30 or, in the case of new or more restrictive measures, Articles 31 or 32 of the EEC Treaty.
      However, the most serious form of technical barriers to trade results from Government measures which require all domestic and foreign suppliers of certain products to comply with specific technical standards (which may or may not refer to standards drawn up by national standards institutes). These technical barriers to trade are not the result solely of differences between national standards. They may be exacerbated by the test procedures laid down and by the administrative and financial burdens which they cause, directly or indirectly, for the manufacturers concerned. In general a Member State will consider such provisions necessary for the protection of the safety, health or life of users of the products. In such cases the Commission — and, if the matter is brought before it, the Court — must consider the applicability not only of Article 30 but also of Article 36 of the EEC Treaty. Indeed, in these proceedings the key issue seems to be the application to the relevant national provisions of Article 36 of the EEC Treaty.
      1.2. The background of the proceedings
      These proceedings were brought by the Commission after it received complaints in 1982 and 1983 from the Permanent Representation of a Member State and from a trade organization in another Member State regarding restrictions on trade resulting from a series of new provisions adopted by the French authorities between 1979 and 1981. Those provisions concerned the technical and administrative requirements which must be fulfilled before woodworking machines could be marketed in France. The texts of the provisions are attached as Annexes I and II to the Commission's application. Their scope is defined in Decree No 80-542 of 15 July 1980. The basic thrust of the provisions is indicated by Article R 233-85 of Decree No 80-543 of 15 July 1980, which provides that the machines in question must be so constructed that their operation, adjustment and maintenance present no risks for workers if those operations are carried out under the conditions laid down by the manufacturer or importer. That basic principle is implemented in detail by the decree in a number of specific technical and administrative provisions (Articles R 233-86 to R 233-107).
      The technical provisions are supplemented by Decree No 80-544 of 15 July 1980 and further amended by Decrees Nos 81-170, 81-171, 81-172 and 81-173 of 20 February 1981, Decrees Nos 81-408, 81-409, 81-410 and 81-411 of 15 April 1981 and in a number of technical implementing measures promulgated by the Ministers of Labour and of Agriculture on 1, 2 and 3 April and 2 June 1981. All those provisions are annexed to the application.
      The administrative testing procedures are laid down in Decree No 79-229 of 20 March 1979. In that decree the most dangerous new machines and their protective equipment are required to undergo prior technical inspection by the Institut nationale de recherche et de sécurité [National Institute for Research and Safety, hereinafter referred to as ‘the INRS’]; final approval is however issued by the Minister of Labour. Some types of equipment are required only to undergo technical examination by the INRS, which may issue a certificate of examination under which marketing of the type of product concerned is authorized. Articles R 233-68 and R 233-69 lay down the procedure for equipment in respect of which the manufacturer or importer need only give a declaration of conformity. Detailed rules for such declarations were established by the competent ministries on 28 November 1980 and 15 December 1981. Article R 233-70 et seq. of the decree concern the inspection of equipment already in use and are not relevant to these proceedings.
      According to the annexes submitted the tariff of fees which manufacturers or importers may be charged by the INRS for prior technical examination of certain types of woodworking machines is also fixed by the Ministry of Labour; according to the tariff submitted (which is to be updated annually) the fees could vary between FF 1470 and FF 3890 depending on the type of machines If the manufacturer or importer makes use of his right under Article R 233-64 of Decree No 79-229, subject to the consent of the INRS, to have equipment inspected at a place other than the premises of the INRS, the travel expenses of the inspector are added to those fees.
      On 29 October 1982 and 29 September 1983, the dates originally set for the entry into force of the obligation of prior inspection were postponed in respect of certain equipment to various dates between 1 May 1983 and 1 January 1985. On 29 September 1983 the date of expiry of authorizations issued without prior inspection under the earlier system in respect of machinery made subject to prior inspection under the new regulations was postponed from 1 October 1983 to 1 January 1985.
      During the four administrative stages of the procedure under Article 169 the French Government, in response to the Commission's request for information on 18 June 1982, merely provided it with details of the dates of entry into force of the new regulations and the dates from which the persons concerned would be obliged to comply with the new procedure. On 21 February 1983 the Commission gave the French Government the opportunity to comment on the Commission's view that the provisions in question conflicted with Article 30 of the EEC Treaty; the French Government made no reply. Nor did it reply within the prescribed time-limit of 30 days to the Commission's reasoned opinion issued on 29 August 1983. At a meeting in Paris on 1 and 2 February 1984 the French authorities agreed to provide supplementary information regarding in particular the time required for the processing of applications. Since that information was still not forthcoming on 10 July 1984 the Commission brought the present action.
      1.3. Submissions and conclusions made in the application
      In its application the Commission maintains its point of view that the French provisions in question must be regarded as measures having equivalent effect to quantitative restrictions on imports. It refers in that respect to the consistent case-law of the Court since the judgment in Case 8/74, Dassonville [1974] ECR 837).
      The measures concerned must therefore be held to be inconsistent with Article 30, unless they are justified on grounds of the protection of the health and life of humans.
      The Commission considers, however, that the provisions adopted by the French Government (as summarized above) as a whole are not necessary for the protection of the life and health of persons and that Article 30 is therefore applicable while Article 36 does not provide any justification.
      The Commission does not dispute the principle that the woodworking machines in question should be subject to prior inspection. For the following reasons the Commission considers, however, that the measures are either more restrictive than is necessary in order to ensure the safety of users or not appropriate for that objective:
      
               (a)
            
            
               In certain cases at least, the Commission claims, machines constructed in accordance with the legal requirements of other Member States offer the same guarantees of safety but cannot be used in France. For example, the protective device required in the Federal Republic of Germany is not permitted in France, because the French provisions accept only one specific type of protective device.
            
         
               (b)
            
            
               Even after their prolongation the time-limits laid down are often too short and the delays which have arisen themselves constitute measures having equivalent effect as referred to in Article 30; according to the judgment of the Court of 22 March 1983 in Case 42/82 (Commission v France [1983] ECR 1013), they therefore require justification, in which respect it is not enough to claim that the administrative departments concerned are overworked.
            
         
               (c)
            
            
               The combined effect of the French requirements is such that only highly automated machines subject to prior inspection can satisfy them. Measures less restrictive of trade could however provide adequate protection; the application gives a number of examples.
            
         
               (d)
            
            
               The fees charged for prior technical inspection can amount to FF 15000 or more where it takes place at the manufacturer's premises, and could, in the Commission's view, therefore discourage potential importers. In particular the manufacture to order of specific machines according to a user's requirements is made very difficult for foreign manufacturers. Although they are in principle calculated according to the same criteria for domestic and foreign manufacturers, the fees therefore, especially for foreign manufacturers located far away from the INRS, ‘make importation more difficult or costly than the disposal of domestic production’, contrary to Directive 70/50/EEC of 22 December 1969 (Official Journal, English Special Edition 1970 (I), p. 17).
            
         
               (e)
            
            
               The delays in obtaining approval for machines subject to prior technical inspection or to prior approval by the Minister of Labour, and the associated costs, may increase as a result of:
            
         
               (i)
            
            
               the fact that the procedures depend on a discretionary decision on the part of the administration as to whether or not all necessary information has been provided;
            
         
               (ii)
            
            
               the administration's practice of requiring separate prior inspection of machines belonging to the same group or family and offering the same guarantees of safety as a machine which has already obtained a certificate of examination or approval of the Minister;
            
         
               (iii)
            
            
               the requiring of separate procedures for each machine which is part of a combined machine.
            
         In conclusion the Commission submits that the Court should:
      
               —
            
            
               Declare that, by adopting the aforementioned measures regarding the inspection of woodworking machines, the French Republic has failed to fulfil its obligations under the Treaty establishing the European Economic Community, and in particular Article 30 thereof, in so far as such measures impose obligations on the importation of such machines from other Member States which are not necessary in order to ensure safety or which are out of proportion with what is required to satisfy that need;
            
         
               —
            
            
               Order the French Republic to pay the costs.
            
         In reply to questions put by the Court the Commission has stated which articles of the French regulations and which practical and administrative inspection measures it considers unnecessary for the protection of the life and health of humans.
      1.4. The French Government's defence
      Relying on the Court's judgments in Case 788/79 (Gilli and Andres [1980] ECR 2071, paragraphs 5 and 6 of the decision) and in particular in Case 104/75 (9De Peijper[1976] ECR 613) the French Government concludes from the Court's case-law regarding Article 36 that ‘health and the life of humans rank first among the property or interests protected by Article 36 and it is for the Member States, within the limits imposed by the Treaty, to decide what degree of protection they intend to assure and in particular how strict the checks to be carried out are to be’(De Peijper case, paragraph 15 of the decision). Since no Community provisions regarding the safety of woodworking machines have yet been adopted it is for the Member States to take all necessary measures in that regard. That is all the more true inasmuch as woodworking machines are among the most dangerous machines for their users, so that it is not surprising that France, like most other Member States, has adopted rules governing them. The first regulation in -this field was adopted in 1893. At an early stage the principle was accepted on which the present rules are based, namely that safety objectives must be integrated in the very design of the machinery. In 1946 prior verification of conformity with the prescribed technical requirements was introduced for the 14 groups of machines considered most dangerous. The abovementioned basic principle was adapted to technical progress in the Law of 6 December 1976 and its implementing provisions; at that time the safety requirements were extended to all components of woodworking machines. According to the French Government the provisions now at issue made no significant practical changes to the system established by the 1976 Law, but merely amended it again in line with technical developments. The system of prior inspection was maintained, but the procedure to be followed with regard to the most dangerous machinery was split into two closely related systems: an approval procedure and a ‘certificate of technical examination’ procedure. Approval is given by the Minister of Labour on the basis of a dossier which includes in particular a report on the prior technical examination by the designated organization. Certificates of examination are issued directly by the INRS for the seven groups of machines for which that certificate is sufficient. The essential difference between the present system and that which was previously in force lies in the requirement that the machine type or individual machine itself is now examined, and not only the information provided in the dossier. It has therefore become necessary to pass on the resulting significandy higher inspection costs to applicants. The scale of fees for the certificate procedure is published in the French Official Journal; a scale of fees has also been drawn up for the approval procedure and is available on request.
      The French Government maintains that the new procedure offers manufacturers greater certainty than a mere examination of the dossier, and constitutes an important argument in their dealings with customers.
      The French Government makes the following detailed arguments in reply to the Commission's submissions summarized in points (a) to (e) above:
      With regard to submission (a) (the failure to recognize safety guarantees of other Member States), the French Government first reiterates that it is for the Member States to establish the level of protection which they consider necessary. For example, French experts consider the provisions applicable in the Federal Republic of Germany inadequate, partly because they assume that the user of the machines in question will have had adequate training, while the French provisions take into account the risk of errors on the part of the user. Furthermore, it is not true that the French provisions permit only one particular type of protective device. Decree No 81-171 of 20 February 1981 simply defines the objectives which must be achieved.
      With regard to submission (b) (the fact that the time-limits prescribed were too short, resulting in delays due to the excessive workload of the administrative departments concerned) the French Government points out first that the objective of the rules (the safety of users) requires that the time-limit should be as short as possible, so that the new provisions should take full effect. At the request of the manufacturers the most important time-limits were however extended, while the administrative departments concerned were asked to avoid delays by means of certain procedural measures. Delays which have occurred may therefore be attributed exclusively to delays on the part of the manufacturers in submitting documentation. On average, applicants can now obtain a decision within two months. Furthermore, the French Government maintains, delays in the decision-making procedure are to the advantage of applicants, since they are thus enabled to supply further documentation and, if necessary, modify the machines concerned. They may thus avoid having their application rejected. Although an appeal procedure is available, no use has yet been made of it, which confirms that the problem of the time taken by the procedure arose only temporarily in a few cases where the delay was attributable to the applicants themselves. In the annual review of certificates issued by the INRS there is no indication of any discrimination against foreign manufacturers.
      With regard to submission (c) (the assertion that the result of the French provisions is that only highly automated machines can be marketed) the French Government denies that its rules favour automated machines or that automation has ever been required. Fully automated machines are, however, exempt from prior inspection.
      With regard to submission (d) (the high cost of the examination procedure) the French Government points out that the fact that the passing on of the costs of examinations to applicants is justified by the thoroughness of the examination carried out. The fixed scale of fees makes no distinction between French and foreign manufacturers, although in certain circumstances travel expenses may be higher for foreign manufacturers (but not, for example, for all German manufacturers) than for French manufacturers. In practice the German system entails comparable costs. Furthermore, the costs of prior inspection are balanced by the advantage of virtually absolute certainty that the machines in question comply with the regulations.
      With regard to submission (e) (factors resulting in delays in examination and increased costs) the French Government makes the following remarks in its defence.
      There is no question of any discretion on the part of the administration as to whether or not a dossier is complete, since the composition of the dossier is governed by ministerial decrees (of 30 October 1981 for the certificate procedure and of 12 March 1982 for the approval procedure). Authorization to market a product (granted by approval or by certificate) applies to a given type of machine and thus to all machines of the same model.
      Contrary to the Commission's assertion the administrative departments responsible for inspection do in fact group certain machines of a given type in ‘families’. Such grouping is not possible, however, for machines of differing dimensions and protective systems.
      Finally, combined machines cannot be treated as simple assemblages of the machines of which they are made up. They give rise to specific risks and certain safety aspects must be considered from the point of view of the whole machine. In such cases it is in the interest of the manufacturer to submit the most complete combination of machines for inspection.
      The French Government concludes that the requirement of prior inspection for woodworking machines is justified by the dangerous nature of such machines, that the measures applied are appropriate for the objective to be achieved, that the resulting restrictions on trade are no more than is necessary in order to ensure the safety of users, that the measures are applied in a nondiscriminatory manner to domestic and imported products, that the Commission's action must therefore be dismissed and that the Commission should be ordered to pay the costs.
      1.5. The subsequent course of the procedure
      For reasons which were not made altogether clear during the proceedings the Commission's agent received the French Government's defence too late, and therefore was not able to submit a reply. The French Government therefore did not submit a rejoinder. However, the written replies of the parties to questions posed by the Court do provide some useful information regarding the effect of the French measures, the provisions applicable in other Member States and the costs of inspection in the various Member States. In so far as is necessary I shall deal with them further in my analysis of the case.
      During the oral procedure the Commission accepted that the key issue in the case was the principle underlying the French provisions, referred to above, to the effect that safety objectives must be integrated in the design of the machinery in question. Unlike some other Member States the French legislature adopts the premise that the worker must be protected against himself and that the safety devices of the machine must be automatic in so far as is possible. Other Member States, in particular the Federal Republic of Germany, work on the principle that the worker must receive thorough and continued training in the use of machines, so that even if they malfunction, as is always possible, he can react correctly. The question of law raised by the Commission in that connection was whether the Member States in a Community should not be required to modify their regulations, or the way that those regulations are applied to imported products, so as to take into account the views of other Member States, if it is established by statistics that the provisions based on such different views do not result in a higher accident rate.
      Furthermore, many of the complaints received by the Commission are directed particularly at the high costs of the new inspection procedure itself.
      According to the Commission, it appears from the answers given by the French Government to questions posed by the Court that out of three types of protective devices acccepted elsewhere in certain machines only one is accepted in France. Furthermore, the quotation given in the French Government's defence from the judgment in De Peijper was incomplete.
      The Commission noted with satisfaction that according to the answer given by the French Government to questions put by the Court the French administration does in fact take into account certificates and approvals given by the authorities of other Member States. Under Articles R 233-54 and R 233-57 of the Labour Code that may in certain cases even result in the admission to the French market of products which do not comply with all the prescribed technical specifications.
      The favourable position enjoyed by fully automated machines is, says the Commission, expressly confirmed by the French Government's defence, where it is stated that such machines are not subject to prior inspection. According to the Commission inspection costs are in particular excessive for foreign manufacturers where the machine in question, because of its weight or size, is difficult to transport, so that it must be inspected at the manufacturer's premises and the inspector's travel expenses must be paid. Those costs are not only more onerous for foreign manufacturers, in so far as travel expenses in their case are higher because of the greater distances involved. They are also relatively more onerous for foreign manufacturers inasmuch as French manufacturers, irrespective of the country to which they sell, are always subject to prior inspection. Since foreign manufacturers are subject to the inspection measures only in respect of their relatively modest sales on the French market, the associated costs are relatively more significant. Comparative figures on the costs of inspection in the four other Member States that charge inspection costs to applicants were not produced by the Commission in its written answer to a question put by the Court or at the hearing. Owing to the failure of the complainants to cooperate, the Commission was not able to provide information at the hearing on the submission regarding the delays experienced and the excessively short time-limits so as to rebut the defence put forward by the French Government in that respect.
      For reasons which I shall explain in my assessment of this case I shall not here summarize the discussions regarding the new technical aspects of the case which took place at the hearing and were supplemented after the hearing by written explanations provided by the French Government in a letter of 18 July 1985.
      With regard to the discretion of the French authorities to decide whether or not a dossier is complete, on which the Commission gave further details, the French Government pointed out at the hearing that it follows from the text of the decree in question that the possibility of providing more information than the minimum required was made available primarily in the interest of applicants. It did however admit that that possibility can also be used in the interest of the authorities in order to request supplementary information.
      2. Assessment of the case
      2.1. Procedural remarks
      The failure of the Commission to investigate this technically highly complicated case in a satisfactory manner is, I think, largely to be laid at the door of the French Government. Although the French Government must have known, and in fact admitted during the proceedings before the Court, that the new provisions entailed significantly greater administrative and financial burdens for manufacturers and importers, it is apparent from my outline of the course of events that during the usual administrative stage of the Article 169 procedure it failed to cooperate sufficiently in order to enter into a dialogue with the Commission at that stage and thus perhaps settle the matter out of court. I think such a failure to cooperate on the part of a Member State is contrary to the scheme of Article 169. It is clear, moreover, that the resulting necessity for the Commission to complete the investigation of the case during the proceedings before the Court also makes the Court's task much more difficult. I think that failure to cooperate should be taken into account in making a decision on the costs of the proceedings.
      Had the Commission so requested, I should probably even have concluded that by failing to consult the Commission before enacting its more stringent provisions the French Government acted contrary to Article 5 of the EEC Treaty, in conjunction with Article 32 of the Treaty, Commission Recommendation No 65/428/EEC of 20 September 1965 (Official Journal 160 of 20 September 1965, p. 2611) and the agreement to the same effect of 28 May 1969 of the Representatives of the Governments of the Member States meeting in the Council (Official Journal, English Special Edition, Second Series, Vol. IX, p. 32), in which the representatives of the Member States accepted far-reaching obligations to consult and to maintain the status quo, even with regard to provisions to which Article 36 might be applied. The directive on the same topic of 28 March 1983 (Official Journal 1983, L 108, p. 8) is of course not relevant to the present case, but may prevent such proceedings in the future.
      2.2. The substance of the application
      The applicability of Article 30 is not disputed in this case. The debate between the parties properly concentrated on the application to the provisions at issue of Article 36 of the Treaty. At the hearing the Commission correctly pointed out in that respect that the De Peijper judgment, paragraph 15 of which was relied on by the French Government in support of its point of view, goes on to state in paragraph 17 that ‘national rules or practices do not fall within the exceptions specified in Article 36 if the health and life of humans can be as effectively protected by measures which do not restrict intra-Community trade so much’. It is not impossible, in my view, that after consulting the Commission and the authorities of the other Member States the French authorities could, while maintaining their basic approach, have found somewhat different solutions, taking more account of the specific difficulties facing importers from other Member States. The assumption that a proper consultation procedure may have such an effect clearly underlies both Article 5 of the EEC Treaty and the 1965 Commission Recommendation as well as the agreement of 28 May 1969 of the representatives of the Member States and the 1983 Directive which I have referred to.
      I think the Commission's first submission must nevertheless be rejected. As Community law now stands a Member State which applies the principle that workers must be protected even against their own imprudence cannot reasonably be expected to admit to its market dangerous equipment manufactured in accordance with the provisions of a Member State which adopts the principle that workers will have received adequate training making them aware of the dangers of such equipment. Accident statistics which are said to show that in the Federal Republic of Germany, for instance, accidents are no more frequent than in France do not support the conclusion that the application of the German provisions (which assume well-trained workers) would have the same favourable results in France (which works on a different assumption). If the application of the German approach were to lead to more favourable results, that would at most constitute a reason for the Community legislature to consider a switch to the German system (after a reasonable transition period) throughout the Community.
      The Commission's second submission must also, I think, be rejected, since the Commission was not able to provide concrete examples showing that the disputed time-limits caused more than transitional problems, which are in practice unavoidable.
      The Commission's third submission, the factual basis of which is moreover disputed by the French Government, is in my view based to such an extent on the assumption underlying its first submission, which I have already held to be incorrect, that on the basis of the information currently available concerning the technical merits of the French provisions it must also be rejected.
      The Commission did not support its fourth submission with figures showing the inspection costs charged in other Member States in similar cases. In those circumstances, and because the Commission did not assert that the fees (which are also applied to French manufacturers) are higher than is necessary to cover costs, in my view this submission must also be rejected. The problem of the restrictions on imports which undoubtedly result from the charging of those costs to manufacturers located at a distance, when for practical reasons their machines can be inspected only at their premises, can in my view satisfactorily be resolved only by the Community legislature. In that respect it might be possible to adopt the rules already applied for agricultural products, which allow inspections to be carried out in the country of export on the basis of the requirements of the country of import. I have not been able to find any basis in the case-law of the Court for a different point of view, and I refer in particular to paragraph 18 of the decision in the De Peijper case. I do agree with the view expressed by a French trade organization, quoted by the Commission, that in a common market of 10 Member States (soon to be 12) rules on costs which oblige manufacturers who wish to sell their products throughout the common market to pay such costs 10 or 12 times over is contrary to the objectives of a common market. As I have already said, however, I think that the Court can give at best a partial solution to that problem, on the basis of comparative data from all the Member States, which have not been provided in this case.
      In my view the Commission's fifth submission is also so closely linked to the assumption underlying the first submission, which I have already held to be incorrect, that it must be rejected.
      My findings naturally do not exclude the possibility that in certain individual cases the Court might, in proceedings for a preliminary ruling, decide that there was a conflict with Community law.
      2.3. Costs
      Although I shall, on the basis of the foregoing assessment of the Commission's submissions, recommend that the application be dismissed, I do think that France should be ordered to pay the costs of the proceedings under the second paragraph of Article 69 (3) of the Rules of Procedure. By failing to cooperate during the administrative stage of the procedure the French Government certainly made it impossible to settle the dispute out of court and thus caused the Commission to incur unnecessary costs. I find that failure on the part of the French Government all the more serious inasmuch as, by its very nature, the significant increase in restrictions on trade which clearly resulted from the new provisions in question could in the first instance, because of the technical complexity of the provisions, have been more easily assessed and perhaps mitigated in meetings of experts than by the Court.
      3. Conclusion
      I therefore propose that the Court:
      
               3.1.
            
            
               Dismiss the Commission's application;
            
         
               3.2.
            
            
               Order the French Republic to pay the costs of the case.
            
         (
            *1
         )	Translated from the Dutch.