Elenca Srl v Ministero dell’Interno.
Date: 2012-10-18
15. First, it must be noted that the principal purpose of Directive 89/106 is to remove obstacles to trade by creating conditions which enable construction products to be marketed freely within the European Union. To that end, that directive specifies the essential requirements which construction products must satisfy and which are put into effect by harmonised standards as well as national implementing standards, European technical approvals and national technical specifications recognised at European Union level (see, to that effect, judgment of 13 March 2008 in Case C-227/06 Commission  v Belgium , paragraph 31).
18. However, as regards a construction product not covered by Article 4(2) of Directive 89/106, Article 6(2) of that directive provides that the Member States are to allow such a product to be placed on the market in their territory if it satisfies national provisions consistent with the Treaty until the European technical specifications provide otherwise (see, to that effect, Commission  v Belgium , paragraph 33, and Case C-484/10 Ascafor and Asidac  [2012] ECR, paragraph 40).
19. It follows that a Member State may not require the affixing of CE marking on a construction product not covered by Article 4(2) of Directive 89/106, originating from another Member State, in order for that product to be marketed on its territory. That Member State may subject the placing on the market of that construction product only to national provisions which comply with its obligations under the Treaty, in particular with the principle of the free movement of goods set out in Articles 34 TFEU and 36 TFEU (see Commission  v Belgium , paragraph 34, and Ascafor and Asidac , paragraph 50).
22. According to settled case-law, all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are to be considered as measures having an effect equivalent to quantitative restrictions and are, on that basis, prohibited by Article 34 TFEU (see, inter alia, Case 8/74 Dassonville [1974] ECR 837, paragraph 5, and Case C-108/09 Ker-Optika [2010] ECR I-12213, paragraph 47). Thus, the mere fact that an importer might be dissuaded from introducing or marketing the products in question in the Member State concerned constitutes a restriction on the free movement of goods for the importer (Case C-171/11 Fra.bo  [2012] ECR, paragraph 22 and the case-law cited).
23. It is also apparent from settled case-law that Article 34 TFEU reflects the obligation to comply with the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other Member States, as well as the principle of ensuring free access of EU products to national markets (see Case C-110/05 Commission  v Italy  [2009] ECR I-519, paragraph 34, and Ker-Optika , paragraph 48).
26. It is established that a restriction on the free movement of goods may be justified on one of the public interest grounds set out in Article 36 TFEU or in order to meet overriding requirements. In either case, the national provision must be appropriate for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it (see Ker-Optika , paragraph 57, and Ascafor and Asidac , paragraph 58).
28. Although, in that regard, it is established that, in the absence of harmonising rules, the Member States are free to decide on their intended level of protection of human life and health and on the need to monitor the goods concerned when being used (see, to that effect, Case C-293/94 Brandsma [1996] ECR I-3159, paragraph 11, and Case C-432/03 Commission  v Portugal [2005] ECR I-9665, paragraph 44), it must be observed that legislation which prohibits, absolutely and automatically, the marketing on national territory of products lawfully marketed in other Member States because those products do not have CE marking is not compatible with the requirement of proportionality imposed by European Union law.
32. Consequently, the third and fourth questions put by the referring court are inadmissible (see, to that effect, Case C-393/08 Sbarigia [2010] ECR I-6337, paragraphs 29 and 38).
Costs