1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 13 JULY 1981 THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE KINGDOM OF DENMARK HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER THE THIRD PARAGRAPH OF ARTICLE 189 OF THE TREATY BY FAILING TO ADOPT , WITHIN THE PRESCRIBED PERIOD , THE MEASURES NEEDED TO COMPLY WITH COUNCIL DIRECTIVE 76/891 OF 4 NOVEMBER 1976 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO ELECTRICAL ENERGY METERS ( OFFICIAL JOURNAL 1976 , L 336 , P . 30 ).
2 DIRECTIVE 76/891 IS ONE OF THE DIRECTIVES IMPLEMENTING DIRECTIVE 71/316 OF THE COUNCIL OF 26 JULY 1971 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO COMMON PROVISIONS FOR BOTH MEASURING INSTRUMENTS AND METHODS OF METROLOGICAL CONTROL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 707 ). ADOPTED FOR THE PURPOSE OF ELIMINATING THE TECHNICAL BARRIERS TO INTRA-COMMUNITY TRADE IN MEASURING INSTRUMENTS AND THE RISKS OF UNEQUAL CONDITIONS OF COMPETITION , DIRECTIVE 71/316 , WHICH IS IN THE NATURE OF A FRAMEWORK DIRECTIVE , PROVIDES THAT , IN RESPECT OF EACH CATEGORY OF MEASURING INSTRUMENTS , A SEPARATE DIRECTIVE WILL ESTABLISH THE MEASUREMENT CHARACTERISTICS OF THE TECHNICAL REQUIREMENTS FOR DESIGN AND FUNCTIONING .
3 BY VIRTUE OF ARTICLE 4 OF DIRECTIVE 76/891 RELATING TO ELECTRICAL ENERGY METERS , MEMBER STATES HAD TO PUT INTO FORCE THE MEASURES NEEDED IN ORDER TO COMPLY WITH THE DIRECTIVES WITHIN 18 MONTHS OF ITS NOTIFICATION WHICH IN THE PRESENT CASE EXPIRED ON 9 MAY 1978 .
4 THE DANISH GOVERNMENT ' S PRIMARY SUBMISSION IS THAT THE COMMISSION ' S APPLICATION IS INADMISSIBLE . IN THE ALTERNATIVE IT REQUESTS THAT THE APPLICATION BE DECLARED UNFOUNDED . ADMISSIBILITY
5 THE DANISH GOVERNMENT CLAIMS THE APPLICATION IS INADMISSIBLE ON THE GROUNDS THAT , IN BREACH OF ARTICLE 169 OF THE TREATY , THE COMMISSION ON THE ONE HAND ISSUED A REASONED OPINION WITHOUT FIRST HAVING ENABLED THE DANISH GOVERNMENT TO SUBMIT OBSERVATIONS IN REGARD TO A CLEARLY DEFINED OBLIGATION AND , ON THE OTHER HAND , FORMULATED THE APPLICATION IN TERMS DIFFERENT FROM THOSE OF THE REASONED OPINION .
6 THE DANISH GOVERNMENT CLAIMS , IN THE FIRST PLACE , THAT THE LETTER GIVING FORMAL NOTICE IS FORMULATED IN TERMS WHICH ARE INSUFFICIENTLY PRECISE TO CONSTITUTE NOTICE OF INITIATION OF THE PROCEDURE UNDER ARTICLE 169 OF THE TREATY .
7 IT SHOULD BE RECALLED THAT BY VIRTUE OF ARTICLE 169 OF THE TREATY THE COMMISSION MAY BRING BEFORE THE COURT AN ACTION FOR FAILURE OF A STATE TO FULFIL ITS OBLIGATIONS ONLY AFTER GIVING THE MEMBER STATE CONCERNED THE OPPORTUNITY OF SUBMITTING ITS OBSERVATIONS .
8 IT FOLLOWS FROM THE PURPOSE ASSIGNED TO THE PRE-CONTENTIOUS STAGE OF THE PROCEEDINGS FOR FAILURE OF A STATE TO FULFIL ITS OBLIGATIONS THAT A LETTER GIVING FORMAL NOTICE IS INTENDED TO DELIMIT THE SUBJECT-MATTER OF THE DISPUTE AND TO INDICATE TO THE MEMBER STATE WHICH IS INVITED TO SUBMIT ITS OBSERVATIONS THE FACTORS ENABLING IT TO PREPARE ITS DEFENCE .
9 AS THE COURT HELD IN ITS JUDGMENT OF 17 FEBRUARY 1970 IN CASE 31/69 COMMISSION V ITALY ECR 25 , THE OPPORTUNITY FOR THE MEMBER STATE CONCERNED TO SUBMIT ITS OBSERVATIONS CONSTITUTES AN ESSENTIAL GUARANTEE REQUIRED BY THE TREATY AND , EVEN IF THE MEMBER STATE DOES NOT CONSIDER IT NECESSARY TO AVAIL ITSELF THEREOF , OBSERVANCE OF THAT GUARANTEE IS AN ESSENTIAL FORMAL REQUIREMENT OF THE PROCEDURE UNDER ARTICLE 169 .
10 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT BY A LETTER DATED 23 MAY 1979 GIVING FORMAL NOTICE THE COMMISSION MERELY ASSERTED THAT IN ITS VIEW THE DANISH GOVERNMENT HAD NOT PUT INTO FORCE THE MEASURES NECESSARY TO TRANSPOSE DIRECTIVE 76/891 INTO NATIONAL LAW BUT REFRAINED FROM SPECIFYING THE OBLIGATIONS WHICH , IN ITS VIEW , WERE IMPOSED ON THAT STATE BY VIRTUE OF THE DIRECTIVE AND WHICH HAD BEEN DISREGARDED .
11 IN THE PRESENT CASE , HOWEVER , THAT FACT DID NOT HAVE THE EFFECT OF DEPRIVING THE DANISH GOVERNMENT OF THE OPPORTUNITY OF SUBMITTING ITS OBSERVATIONS TO GOOD EFFECT . ON 7 JUNE 1978 THE COMMISSION HAD ADDRESSED TO THE DANISH GOVERNMENT A LETTER SETTING OUT THE PRECISE REASONS WHICH LED IT TO CONCLUDE THAT THE KINGDOM OF DENMARK HAD FAILED TO FULFIL ONE OF THE OBLIGATIONS IMPOSED ON IT BY DIRECTIVE 76/891 . IT WAS BY REFERENCE TO THE POSITION ADOPTED BY THE COMMISSION IN THAT LETTER OF 7 JUNE 1978 THAT THE DANISH GOVERNMENT SUBMITTED ITS OBSERVATIONS ON 22 AUGUST 1979 .
12 THAT SUBMISSION MUST THEREFORE BE REJECTED .
13 SECONDLY THE DANISH GOVERNMENT CLAIMS THAT THE REASONED OPINION AND THE APPLICATION ARE NOT IDENTICAL .
14 IT SHOULD BE REMEMBERED THAT THE SUBJECT-MATTER OF AN APPLICATION BROUGHT UNDER ARTICLE 169 IS DETERMINED BY THE COMMISSION ' S REASONED OPINION AND THAT THEREFORE THE TWO DOCUMENTS MUST BE FOUNDED ON THE SAME GROUNDS AND SUBMISSIONS .
15 IT IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT THAT THAT OBLIGATION HAS BEEN FULFILLED . THE TERMS OF THE APPLICATION CORRESPOND TO THOSE OF THE REASONED OPINION ISSUED ON 6 OCTOBER 1980 . IN BOTH DOCUMENTS THE COMMISSION , HAVING RE-STATED THE POINT OF VIEW OF THE DANISH AUTHORITIES , DEFINES IN SIMILAR AND SUFFICIENTLY SPECIFIC TERMS THE INFRINGEMENT ALLEGED AND THE REASONS FOR WHICH IT CONSIDERS THAT THE KINGDOM OF DENMARK HAS FAILED TO FULFIL THE OBLIGATIONS IMPOSED ON IT BY THE TREATY .
16 ALTHOUGH THE COMMISSION DID PLEAD , FOR THE FIRST TIME IN THE APPLICATION , THE PROVISIONS OF FRAMEWORK DIRECTIVE 71/316 , IT WAS MERELY REPLYING TO A DEFENCE RAISED BY THE DANISH GOVERNMENT IN RESPONSE TO THE REASONED OPINION AND , IN DOING SO , ALTERED NEITHER THE DEFINITION NOR THE BASIS OF THE ALLEGED FAILURE TO FULFIL AN OBLIGATION .
17 THEREFORE THE SECOND SUBMISSION OF THE DANISH GOVERNMENT MUST BE REJECTED . SUBSTANCE OF THE CASE
18 THE DISPUTE IS CONCERNED WITH THE CONTENT AND SCOPE OF THE OBLIGATIONS STEMMING FROM THE COMBINED PROVISIONS OF FRAMEWORK DIRECTIVE 71/316 AND OF DIRECTIVE 76/891 RELATING TO ELECTRICAL ENERGY METERS .
19 IN THE COMMISSION ' S VIEW IT FOLLOWS FROM THOSE PROVISIONS THAT THE MEMBER STATES , WITHOUT BEING OBLIGED TO INSTALL CONTROL EQUIPMENT , ARE NEVERTHELESS REQUIRED TO MAKE IT POSSIBLE FOR EEC SIGNS AND MARKS TO BE ISSUED AT THE REQUEST OF MANUFACTURERS OR IMPORTERS . THAT OBLIGATION CORRESPONDS TO THE OBJECTIVE OF THE DIRECTIVES WHICH WERE ADOPTED FOR THE PURPOSE OF ELIMINATING TECHNICAL BARRIERS TO TRADE AND ARE INTENDED TO ENABLE ELECTRICAL ENERGY METERS BEARING EEC SIGNS AND MARKS TO BE FREELY PLACED ON THE MARKET AND PUT INTO SERVICE IN THE WHOLE OF THE COMMUNITY .
20 THE COMMISSION EMPHASIZES THAT IN FULFILLING ITS OBLIGATION DENMARK MAY , IN ACCORDANCE WITH ANNEXES I AND II TO THE FRAMEWORK DIRECTIVE EITHER APPROVE THE TESTS CARRIED OUT ON ITS TERRITORY OR IN OTHER MEMBER STATES OR REQUIRE APPLICANTS TO MAKE AVAILABLE TO IT THE MEANS IN MATERIAL AND PERSONNEL NECESSARY FOR THE TESTS . THE EXISTENCE OF THAT OBLIGATION IMPOSED ON DENMARK IS CONFIRMED BY PARAGRAPH X , POINT 12 , OF ANNEX I TO THE ACT OF ACCESSION OF 1972 WHICH ASSIGNS TO DENMARK THE SEAL DK AS THE DISTINCTIVE SYMBOL TO BE ADDED TO THE EEC APPROVED SIGNS AND THE EEC INITIAL VERIFICATION MARKS GRANTED BY THAT STATE .
21 IN THE DANISH GOVERNMENT ' S VIEW IT IS CLEAR FROM THE COMBINED PROVISIONS OF FRAMEWORK DIRECTIVE 71/316 AND OF DIRECTIVE 76/891 THAT THOSE DIRECTIVES REQUIRE NO SPECIFIC IMPLEMENTING MEASURE IN DENMARK SINCE THAT COUNTRY DOES NOT HAVE AT ITS DISPOSAL ANY EQUIPMENT ENABLING IT TO CARRY OUT TYPE-APPROVAL CONTROLS AND INITIAL VERIFICATIONS . ACCORDING TO THE DANISH GOVERNMENT IT CANNOT BE ACCEPTED THAT INHERENT IN THE PURPOSE OF A DIRECTIVE WHICH SEEKS TO ELIMINATE TECHNICAL BARRIERS TO TRADE IN ELECTRICAL ENERGY METERS THERE IS AN OBLIGATION TO ESTABLISH ADMINISTRATIVE MACHINERY ENABLING EEC SIGNS AND MARKS TO BE ISSUED ON REQUEST AND TO ENSURE THE FUNCTIONING OF A SYSTEM OF MUTUAL RECOGNITION OF CONTROL OPERATIONS , WHERE THERE IS NO EQUIVALENT CONTROL AT NATIONAL LEVEL .
22 THE DANISH GOVERNMENT CONSIDERS THEREFORE THAT THE PROVISIONS OF ANNEXES I AND II TO FRAMEWORK DIRECTIVE 71/316 , READ IN CONJUNCTION WITH THOSE OF ARTICLES 2 ( 2 ) AND 8 ( 2 ) OF THAT DIRECTIVE , WERE ADOPTED SOLELY TO COVER THE EVENTUALITY OF DENMARK ' S DECIDING TO INTRODUCE A SYSTEM OF METROLOGICAL CONTROL OF MEASURING INSTRUMENTS .
23 IT IS NECESSARY FOR THE COURT , IN ORDER TO RESOLVE THE ISSUE , TO ANALYSE THE COMBINED DECISIONS OF FRAMEWORK DIRECTIVE 71/316 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO MEASURING INSTRUMENTS AND METHODS OF METROLOGICAL CONTROL AND OF THE SPECIFIC DIRECTIVE 76/891 RELATING TO ELECTRICAL ENERGY METERS .
24 ACCORDING TO THE WORDING OF ARTICLES 2 ( 2 ) AND 8 ( 2 ) OF THE FRAMEWORK DIRECTIVE 71/316 , IT IS ONLY ' ' IN SO FAR AS THEIR CONTROL EQUIPMENT PERMITS ' ' THAT MEMBER STATES ARE OBLIGED TO GRANT , AT THE REQUEST OF THE MANUFACTURER OR HIS AUTHORIZED REPRESENTATIVE , EEC TYPE-APPROVAL OR TO CARRY OUT EEC INITIAL VERIFICATION OF INSTRUMENTS SUBMITTED . IT SHOULD ALSO BE NOTED THAT NO PROVISION IN THE FRAMEWORK DIRECTIVE IMPOSES AN OBLIGATION ON MEMBER STATES WHICH DO NOT HAVE CONTROL EQUIPMENT AVAILABLE TO PROCURE WITHIN A GIVEN PERIOD CONTROL EQUIPMENT REGULATING THE ISSUE , BY THOSE STATES , OF EEC MARKS AND SIGNS .
25 IT IS IMPOSSIBLE TO ACCEPT , AS THE COMMISSION WOULD WISH , THAT ANNEXES I AND II TO THE FRAMEWORK DIRECTIVE ARE INTENDED TO ALTER OR MIGHT HAVE THE EFFECT OF ALTERING THE SCOPE OF THE OBLIGATIONS IMPOSED ON THE MEMBER STATES BY ARTICLES 2 AND 8 MENTIONED ABOVE . THE PROVISIONS OF THOSE ANNEXES ARE LIMITED TO SPECIFYING THE PRACTICAL PROCEDURES FOR EEC TYPE-APPROVAL AND FOR EEC INITIAL VERIFICATION . THE REQUIREMENTS WHICH THEY LAY DOWN ARE THUS APPLICABLE ONLY TO THOSE MEMBER STATES WHICH HAVE PROCURED OR WILL PROCURE CONTROL EQUIPMENT ENABLING THEM TO ISSUE EEC MARKS AND SIGNS .
26 IT MUST THEREFORE BE RECOGNIZED THAT THE FRAMEWORK DIRECTIVE 71/316 BY ITSELF ONLY IMPOSES ON THE MEMBER STATES AN OBLIGATION TO ISSUE EEC MARKS AND SIGNS WHICH IS CONDITIONAL ON AND SUBJECT TO THE AVAILABILITY TO EACH STATE OF CONTROL EQUIPMENT ENABLING THOSE MARKS AND SIGNS TO BE ISSUED .
27 IT IS TRUE , HOWEVER , THAT ARTICLE 1 ( 4 ) OF THE FRAMEWORK DIRECTIVE 71/316 PROVIDES THAT SEPARATE DIRECTIVES MAY SPECIFY THAT THE CATEGORIES OF INSTRUMENTS WITH WHICH THEY ARE CONCERNED ' ' MUST UNDERGO BOTH EEC PATTERN APPROVAL AND EEC INITIAL VERIFICATION OR JUST ONE OF THESE ' ' IN ALL MEMBER STATES . THAT PROVISION THEREFORE LEAVES OPEN THE POSSIBILITY THAT A SPECIFIC DIRECTIVE CONCERNING A CATEGORY OF INSTRUMENTS MAY , IN RESPECT OF THAT CATEGORY , TRANSFORM THE CONDITIONAL OBLIGATION TO ISSUE EEC MARKS AND SIGNS INTO AN UNCONDITIONAL OBLIGATION IMPOSED ON EACH MEMBER STATE WITHOUT DISTINCTION . THE SPECIFIC DIRECTIVE 76/891 RELATING TO ELECTRICAL ENERGY METERS MUST THEREFORE BE EXAMINED TO SEE WHETHER IT INTENDED TO ALTER IN THAT WAY THE SCOPE OF THE OBLIGATIONS IMPOSED ON MEMBER STATES BY THE FRAMEWORK DIRECTIVE IN RESPECT OF THAT CATEGORY OF INSTRUMENTS .
28 ACCORDING TO THE TERMS OF ARTICLE 2 OF DIRECTIVE 76/891 ' ' THE ELECTRICAL ENERGY METERS WHICH MAY BE GIVEN EEC MARKS AND SIGNS ARE DESCRIBED IN THE ANNEX TO THIS DIRECTIVE . THEY SHALL BE THE SUBJECT OF EEC TYPE-APPROVAL AND SHALL BE SUBMITTED FOR EEC INITIAL VERIFICATION ' ' . THAT VERY GENERAL PROVISION MUST BE REGARDED AS MERELY BEING INTENDED TO BRING ELECTRICAL ENERGY METERS WITHIN THE SYSTEM OF TYPE-APPROVAL AND INITIAL VERIFICATION ESTABLISHED BY THE FRAMEWORK DIRECTIVE . IT CANNOT BE SAID THAT THE CONDITIONAL OBLIGATION DEFINED BY THE FRAMEWORK DIRECTIVE HAS BEEN TRANSFORMED INTO AN UNCONDITIONAL OBLIGATION SINCE THERE IS NOTHING IN THE STATEMENT OF THE REASONS ON WHICH DIRECTIVE 76/891 IS BASED OR IN THE DOCUMENTS BEFORE THE COURT , NOR IS THERE ANYTHING ARISING OUT OF THE ORAL PROCEDURE , TO SUGGEST THAT THERE ARE SPECIAL REASONS FOR INCREASING THE BURDENS IMPOSED ON THE MEMBER STATES BY THE FRAMEWORK DIRECTIVE IN RESPECT OF THE ISSUE OF EEC SIGNS AND MARKS RELATING TO ELECTRICAL ENERGY METERS .
29 THE COMMISSION ' S ARGUMENT TO THE EFFECT THAT THE OBJECTIVE PURSUED BY THE DIRECTIVE MAY BE ACHIEVED ONLY IF ALL THE MEMBER STATES ARE OBLIGED TO ISSUE ON REQUEST EEC SIGNS AND MARKS CANNOT BE UPHELD .
30 FIRST , ARTICLE 3 OF DIRECTIVE 76/891 REQUIRES ALL THE MEMBER STATES WITHOUT EXCEPTION NOT TO ' ' PREVENT , PROHIBIT OR RESTRICT THE PLACING ON THE MARKET OR ENTRY INTO SERVICE OF ELECTRICAL ENERGY METERS IF SUCH METERS BEAR THE EEC TYPE-APPROVAL SIGN AND THE EEC INITIAL VERIFICATION MARK ' ' . ANY NATIONAL LEGISLATION OR RULES CONTRARY TO THOSE REQUIREMENTS MUST BE ADAPTED AS NECESSARY . AS TO THE ESTABLISHMENT OF A SYSTEM OF NATIONAL AUTHORITIES EMPOWERED TO ISSUE EEC MARKS AND SIGNS , IT IS CLEAR FROM THE SCHEME OF THE DIRECTIVES IN QUESTION THAT THEY WERE INTENDED , AS A FIRST STEP , TO GO NO FURTHER THAN A PROGRAMME OF MERE ' ' OPTIONAL HARMONIZATION ' ' WHICH EXEMPTS MEMBER STATES NOT IN POSSESSION OF THE NECESSARY CONTROL EQUIPMENT FROM HAVING THEMSELVES TO ISSUE EEC MARKS AND SIGNS . IT IS FOR EACH MEMBER STATE WHICH FINDS ITSELF IN THAT SITUATION TO ASSESS , HAVING REGARD IN PARTICULAR TO THE INTERESTS OF TRADERS ESTABLISHED WITHIN ITS TERRITORY , WHETHER IT OUGHT TO PROVIDE ITSELF WITH THE NECESSARY EQUIPMENT AND THUS BECOME SUBJECT TO THE OBLIGATIONS LAID DOWN BY ARTICLES 2 AND 8 OF DIRECTIVE 71/316 .
31 THE COMMISSION DOES NOT DISPUTE THAT , IN THE ABSENCE OF ANY DANISH RULES RELATING TO ELECTRICAL ENERGY METERS , THE KINGDOM OF DENMARK DOES NOT HAVE TO ADOPT ANY MEASURE IN ORDER TO COMPLY WITH ARTICLE 3 OF DIRECTIVE 76/891 AND THAT FREE ACCESS TO THE DANISH MARKET IS GUARANTEED FOR ELECTRICAL ENERGY METERS ORIGINATING IN OTHER MEMBER STATES , WHETHER OR NOT BEARING EEC MARKS AND SIGNS . NOR DOES IT DISPUTE THE FACT THAT THE KINGDOM OF DENMARK DOES NOT HAVE AVAILABLE TO IT THE CONTROL EQUIPMENT NECESSARY FOR THE ISSUE OF EEC TYPE-APPROVAL AND EEC INITIAL VERIFICATION OF ELECTRICAL ENERGY METERS . IT FOLLOWS THEREFORE FROM THE FOREGOING THAT THE COMBINED PROVISIONS OF DIRECTIVES 71/316 AND 76/891 DO NOT IMPOSE ON THE KINGDOM OF DENMARK ANY OBLIGATION TO ESTABLISH THE STRUCTURES NECESSARY FOR THE ISSUE , AT THE REQUEST OF INTERESTED MANUFACTURERS OR DEALERS , OF EEC MARKS AND SIGNS RELATING TO ELECTRICAL ENERGY METERS .
32 CONSEQUENTLY , THE KINGDOM OF DENMARK HAS NOT FAILED TO FULFIL ITS OBLIGATIONS UNDER THE ABOVE-MENTIONED DIRECTIVES .
33 THE COMMISSION ' S APPLICATION MUST THEREFORE BE DISMISSED .