Commission of the European Communities v Portuguese Republic.
Date: 2005-11-10
35. Accordingly, Directive 89/106 confirms that a Member State may only subject the placing on the market in its territory of a construction product not covered by technical specifications harmonised or recognised at Community level to national provisions which comply with obligations under the Treaty, in particular, the principle of the free movement of goods set out in Articles 28 EC and 30 EC.
41. It should be noted that the requirement of prior approval attesting to a product’s fitness for a given use, like refusal, in that context, to recognise the equivalence of certificates issued by another Member State, restrict access to the market of the importing Member State and must therefore be regarded as a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 28 EC (see, to that effect, Case C-14/02 ATRAL  [2003] ECR I-4431, paragraphs 62 and 63).
42. According to settled case-law, such a measure may be justified only on one of the grounds of public interest listed in Article 30 EC or by one of the overriding requirements referred to in the case-law of the Court, provided in particular that that measure is appropriate for securing the attainment of the objective pursued and does not go beyond what is necessary in order to attain it (see Case C-390/99 Canal Satélite Digital  [2002] ECR I-607, paragraph 33; Joined Cases C-388/00 and C-429/00 Radiosistemi [2002] ECR I-5845, paragraphs 40 to 42; and Case C‑40/04 Yonemoto [2005] ECR I-0000, paragraph 55).
44. It is settled case-law that, in the absence of harmonising rules, the Member States are free to decide on their intended level of protection of health and life of humans and on whether to require prior authorisation for the marketing of the products concerned (see Case C‑293/94 Brandsma [1996] ECR I-3159, paragraph 11).
45. However, a measure introduced by a Member State cannot be regarded as not going beyond what is necessary to attain the objective pursued if it duplicates controls which have already been carried out in the context of other procedures, either in the same State or in another Member State (see, to that effect, Canal Satélite Digital , cited above, paragraph 36).
46. As the Court has already held, whilst a Member State is free to require a product which has already received approval in another Member State to undergo a fresh procedure of examination and approval, the authorities of the Member States are nevertheless required to assist in bringing about a relaxation of the controls existing in intra-Community trade. It follows that they are not entitled unnecessarily to require technical or chemical analyses or laboratory tests where those analyses and tests have already been carried out in another Member State and their results are available to those authorities, or may at their request be placed at their disposal (Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 3277, paragraph 14, Brandsma , cited above, paragraph 12, and Case C-400/96 Harpegnies [1998] ECR I-5121, paragraph 35).
47. Strict compliance with that obligation requires an active approach on the part of the national body to which an application is made for approval of a product or recognition, in that context, of the equivalence of a certificate issued by an approval body of another Member State. Further, such an active approach is also required, where appropriate, of the latter body, and in this respect it is for the Member States to ensure that the competent approval bodies cooperate with each other with a view to facilitating the procedures to be followed to obtain access to the national market of the importing Member State.
49. By making use of the product in question subject to an approval procedure under Article 17 of the Decree-Law, without taking account, in that procedure, of a certificate issued by an approval body in another Member State and without seeking the necessary information from the applicant undertaking or that body, the Portuguese authorities have failed in their duty of cooperation which arises, in the context of an application for approval of a product imported from another Member State, from Articles 28 EC and 30 EC.
50. In respect of the specific requirements to which approval of the pipes in question is subject in Portugal, and which, according to the Portuguese authorities, go beyond the technical requirements accepted by IIP, it must be noted that, if a prior administrative authorisation scheme is to be justified even though it derogates from fundamental freedoms, it must, in any event, be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion, so that it is not used arbitrarily ( Canal Satélite Digital , cited above, paragraph 35).
51. However, in so far as Article 17 of the Decree-Law provides solely that the use of new construction materials or methods in respect of which there are no official specifications and no sufficient practical experience is subject to a prior opinion being given by the LNEC, that provision does not fulfil those requirements.
52. By making the pipes in question subject to an approval procedure such as that provided for in Article 17 of the Decree-Law, the Portuguese rules do not therefore comply with the principle of proportionality and, accordingly, are contrary to Articles 28 EC and 30 EC.
57. Decision No 3052/95 defines ‘measure’ as any measure taken by a Member State, except for judicial decisions, which has the effect of restricting the free movement of goods lawfully produced or marketed in another Member State, regardless of its form or the authority from which it emanates ( Radiosistemi , cited above, paragraph 68).