Asociación para la Calidad de los Forjados (Ascafor) and Asociación de Importadores y Distribuidores de Acero para la Construcción (Asidac) v Administración del Estado and Others.
Date: 2012-03-01
32. It should be noted from the outset that the procedure laid down in Article 267 TFEU is based on a clear separation of functions between the national courts and the Court of Justice. It is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the question submitted concerns the interpretation of European Union law, the Court is in principle bound to give a ruling (see Joined Cases C-290/05 and C-333/05 Nádasdi  and Németh  [2006] ECR I‑10115, paragraph 28, and Case C-213/07 Michaniki  [2008] ECR I‑9999, paragraph 32).
33. However, it is not the task of the Court of Justice, in preliminary ruling proceedings, to rule upon the compatibility of provisions of national law with European Union law or to interpret national legislation or regulations (see, inter alia, Case C-151/02 Jaeger  [2003] ECR I-8389, paragraph 43; Case C-380/05 Centro Europa 7  [2008] ECR I-349, paragraph 49; order of 17 September 2009 in Joined Cases C-404/08 and C-409/08 Investitionsbank Sachsen-Anhalt , paragraph 25, and order of 13 January 2010 in Joined Cases C-292/09 and C-293/09 Calestani and Lunardi , paragraph 15).
34. The Court has, however, repeatedly held that it is competent to give the referring court full guidance on the interpretation of European Union law in order to enable it to determine the issue of compatibility for the purposes of the case before it (see, inter alia, Case C-292/92 Hünermund and Others  [1993] ECR I-6787, paragraph 8; Centro Europa 7 , paragraph 50, and the order in Calestani and Lunardi , paragraph 16).
38. 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).
40. 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).
50. However, it is accepted that a Member State may subject the placing on the market in its territory of a construction product not covered by technical specifications harmonised or recognised at European Union level 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).
52. 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 within the meaning of 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-0000, paragraph 47).
53. 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 European Union products to national markets (see Case C-110/05 Commission v Italy  [2009] ECR I-519, paragraph 34, and Ker-Optika , paragraph 48).
58. 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).
60. 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 C-432/03 Commission v Portugal  [2005] ECR I-9665, paragraph 44).
68. As regards certificates of quality granted in Member States other than the Kingdom of Spain by approved bodies within the meaning of Directive 89/106, the Court has already held that the process of recognition of the equivalence of such certificates requires an active approach on the part of the national body to which an application is made for recognition. Further, such an active approach is also required, where appropriate, of the body which grants the certificate, and it is for the Member States to ensure that the competent approved bodies cooperate with each other with a view to facilitating the procedures to be followed to obtain access to the market of the importing Member State (see, to that effect, Commission v Portugal , paragraph 47).