Commission of the European Communities v Kingdom of Belgium.
Date: 2007-06-07
27. As regards, in the first place, the requirement of conformity to standard NBN S 21‑100 imposed by the Belgian rules and by the administrative practice of certain Belgian public services, it must be borne in mind that, according to settled case-law, all commercial rules enacted by the Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be regarded as measures having an effect equivalent to quantative restrictions prohibited by Article 28 EC (Case 8/74 Dassonville  [1974] ECR 837, paragraph 5, and Case C-270/02 Commission  v Ital y [2004] ECR I‑1559, paragraph 18).
28. Accordingly, in the absence of harmonisation of laws, obstacles to the free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods, even if those rules apply without distinction to all products, constitute measures of equivalent effect prohibited by Article 28 EC (Joined Cases C‑267/91 and C‑268/91 Keck and Mithouard  [1993] ECR I-6097, paragraph 15, and Case C‑217/99 Commission  v Belgium [2000] ECR I-10251, paragraph 16).
30. It follows that, as regards the marketing in one Member State of products or components lawfully manufactured and marketed in another Member State, and in the absence of Community harmonisation, the requirement of conformity to standard NBN S 21-100 imposed by the Belgian regulations may have the effect of forcing economic operators of other Member States to adapt their apparatus and equipment to the requirements of standards or technical regulations of the Member State of importation and to bear the additional costs associated with such adaptation ( Commission  v Belgium , paragraph 17; Case C-14/02 ATRAL  [2003] ECR I-4431, paragraph 63; and Commission v Italy , paragraph 19), or of deterring them from marketing the products concerned in Belgium (Case 45/87 Commission  v Ireland  [1988] ECR I- 4929, paragraph 19, and Commission  v Belgium , paragraph 18).
33. Such a measure may be justified only by one of the public-interest reasons laid down in Article 30 EC or by one of the overriding requirements referred to in the case-law of the Court, provided that, in either case, 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 ( ATRAL , paragraph 64, and Case C‑432/03 Commission  v Portugal  [2005] ECR I‑9665, paragraph 42).
35. However, although it cannot be denied that such grounds are among those which, under Article 30 EC, may be relied on by a Member State in order to justify such an obligation, and 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 (Case C‑293/94 Brandsma  [1996] ECR I-3159, paragraph 11, and Commission v Portugal , paragraph 44), the fact remains that an exception to the principle of the free movement of goods may be justified under that article only if the national authorities show that it is necessary in order to attain one or more objectives mentioned in that article and that it is in conformity with the principle of proportionality (Case 227/82 Van Bennekom  [1983] ECR 3883, paragraph 40; Case C‑358/95 Morellato  [1997] ECR I-1431, paragraph 14; ATRAL , paragraph 67; and Commission v Italy , paragraph 22).
36. In that regard, the reasons which may be invoked by a Member State by way of justification must be accompanied by appropriate evidence or by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State, and precise evidence enabling its arguments to be substantiated (Case C‑42/02 Lindman  [2003] ECR I‑13519, paragraph 25; Case C‑8/02 Leichtle  [2004] ECR I-2641, paragraph 45; Case C‑147/03 Commission  v Austria  [2005] ECR I‑5969, paragraph 63; Case C‑137/04 Rockler  [2006] ECR I‑1441, paragraph 25; and Case C‑185/04 Öberg  [2006] ECR I‑1453, paragraph 22).
39. In this regard it is sufficient to observe that according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C‑423/00 Commission  v Belgium  [2002] ECR I‑593, paragraph 14, and Case C‑433/03 Commission  v Germany  [2005] ECR I‑6985, paragraph 32).