Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords
HARMONIZATION OF LAWS RELATING TO ELECTRICAL EQUIPMENT - COUNCIL DIRECTIVE NO 73/23 ( EEC ) - MANDATORY APPLICATION
Summary
IN SETTING A PRECISE PERIOD FOR THE PUTTING INTO FORCE OF NATIONAL PROVISIONS , ARTICLE 13 OF DIRECTIVE NO 73/23 ( EEC ) REQUIRES THE ADOPTION OF PROVISIONS ENSURING THAT ARTICLES 5 TO 8 OF THE DIRECTIVE SHALL APPLY FULLY AND IMMEDIATELY IN CASES TO WHICH THEY RELATE . FOR THE PURPOSES OF THE DIRECTIVE AND OF ARTICLE 13 THEREOF , IT DOES NOT SUFFICE FOR MEMBER STATES TO POSTPONE THE IMPLEMENTATION OF THAT ARTICLE UNTIL THE TIME WHEN THE STANDARDS CONCERNED HAVE BEEN ADOPTED .
Parties
IN CASE 123/76
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER ANTONIO ABATE , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,
APPLICANT ,
V ITALIAN REPUBLIC , REPRESENTED BY ITS AMBASSADOR ADOLFO MARESCA , ACTING AS AGENT , ASSISTED BY IVO MARIA BRAGUGLIA , DEBUTY STATE ADVOCATE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY ,
DEFENDANT ,
Subject of the case
APPLICATION FOR A DECLARATION THAT THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 13 OF COUNCIL DIRECTIVE ( 73/23/EEC ) OF 19 FEBRUARY 1973 ON THE HARMONIZATION OF THE LAWS OF MEMBER STATES RELATING TO ELECTRICAL EQUIPMENT DESIGNED FOR USE WITHIN CERTAIN VOLTAGE LIMITS ( OJ L 77 , P . 29 ),
Grounds
1 BY APPLICATION DATED 16 DECEMBER 1976 THE COMMISSION OF THE EUROPEAN COMMUNITIES HAS BROUGHT BEFORE THE COURT UNDER ARTICLE 169 OF THE EEC TREATY AN APPLICATION FOR A DECLARATION THAT THE ITALIAN REPUBLIC ' IN NOT HAVING BROUGHT INTO FORCE , WITHIN THE PRESCRIBED PERIOD , THE PROVISIONS NECESSARY IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE NO 73/23/EEC OF 19 FEBRUARY 1973 ON THE HARMONIZATION OF THE LAWS OF MEMBER STATES RELATING TO ELECTRICAL EQUIPMENT DESIGNED FOR USE WITHIN CERTAIN VOLTAGE LIMITS ( OJ L 77 , P . 29 ) HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY .
2 ARTICLE 13 OF THAT DIRECTIVE PROVIDES : ' THE MEMBER STATES SHALL PUT INTO FORCE THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS NECESSARY TO COMPLY WITH THE REQUIREMENTS OF THIS DIRECTIVE WITHIN EIGHTEEN MONTHS OF ITS NOTIFICATION AND SHALL FORTHWITH INFORM THE COMMISSION THEREOF ' .
3 IN ITS DEFENCE , THE GOVERNMENT OF THE ITALIAN REPUBLIC HAS EXPLAINED THAT FOR THE PURPOSE OF IMPLEMENTING THE PROVISIONS OF THE DIRECTIVE IN THEIR ENTIRETY A DRAFT LAW , NO 1742 , WAS LAID BEFORE THE ITALIAN PARLIAMENT IN 1974 AND ADOPTED BY THE SENATE ON 26 FEBRUARY 1976 , BUT THAT IT WAS NOT POSSIBLE FOR THE CHAMBER OF DEPUTIES TO APPROVE IT BECAUSE THE LEGISLATURE WAS PREMATURELY DISSOLVED , WHICH MEANT THAT THE DRAFT LAW WAS LOST . MOREOVER , DURING THE COURSE OF THE PROCEDURE , THE SAID GOVERNMENT INFORMED THE COURT THAT A NEW DRAFT LAW HAD BEEN INTRODUCED AND THAT IT WAS APPROVED BY THE SENATE ON 25 MAY 1977 .
4 HOWEVER , ALTHOUGH THE ADOPTION OF A NEW LAW WAS NECESSARY IN ORDER TO ENSURE THE IMPLEMENTATION OF THE DIRECTIVE IN ITS ENTIRETY , IN THE SUBMISSION OF THE ITALIAN GOVERNMENT THE ESSENTIAL PROVISIONS THEREOF WERE ALREADY APPLICABLE IN THE ITALIAN LEGAL SYSTEM BY VIRTUE OF EXISTING LEGISLATION AND RULES .
5 FOR , THE DEFENDANT CLAIMS , IN THE ABSENCE OF HARMONIZED STANDARDS , SUCH AS THOSE MENTIONED IN ARTICLE 5 , AND OF SAFETY MEASURES LAID DOWN AT INTERNATIONAL LEVEL , SUCH AS ARE MENTIONED IN ARTICLE 6 OF THE DIRECTIVE , THE ONLY ARTICLE WHICH CAN BE APPLIED IS ARTICLE 7 , WHICH PROVIDES THAT IN THEIR ABSENCE ' THE MEMBER STATES SHALL TAKE ALL APPROPRIATE MEASURES TO ENSURE THAT , FOR THE PURPOSE OF PLACING ON THE MARKET OR FREE MOVEMENT AS REFERRED TO IN ARTICLES 2 AND 3 RESPECTIVELY , THEIR COMPETENT ADMINISTRATIVE AUTHORITIES SHALL ALSO REGARD AS COMPLYING WITH THE PROVISIONS OF ARTICLE 2 ELECTRICAL EQUIPMENT MANUFACTURED IN ACCORDANCE WITH THE SAFETY PROVISIONS OF THE STANDARDS IN FORCE IN THE MEMBER STATE OF MANUFACTURE , IF IT ENSURES A SAFETY LEVEL EQUIVALENT TO THAT REQUIRED IN THEIR OWN TERRITORY ' .
6 THUS , SINCE THE STANDARDS APPLIED BY VIRTUE OF ITALIAN LEGISLATION ARE , IT IS CLAIMED , SUBSTANTIALLY THE SAME AS THOSE IN FORCE IN THE OTHER MEMBER STATES , THE PRINCIPAL OBJECTIVES OF THE DIRECTIVE ARE , FOR THE TIME BEING , SUBSTANTIALLY SATISFIED AND THEREFORE THE COMMISSION ' S APPLICATION SHOULD BE REJECTED .
7 THAT DEFENCE GAVE RISE TO AN ARGUMENT BETWEEN THE PARTIES IN PARTICULAR ON THE QUESTIONS WHETHER HARMONIZED STANDARDS WITHIN THE MEANING OF ARTICLE 5 OF THE DIRECTIVE HAD ALREADY REACHED AN ADVANCED STAGE OF ELABORATION AND UNDER WHAT PROCEDURE THOSE STANDARDS MUST BE ADOPTED .
8 HOWEVER THOSE QUESTIONS CANNOT BE DECIDED IN THIS JUDGMENT BECAUSE THE APPLICATION ORIGINATING THE PROCEEDINGS REFERS TO AN INFRINGEMENT OF ARTICLE 13 OF THE DIRECTIVE . THE COURT ' S EXAMINATION SHOULD THEREFORE BE LIMITED TO THE QUESTION WHETHER THE ITALIAN REPUBLIC HAS FAILED TO FULFIL AN OBLIGATION ARISING UNDER ARTICLE 13 OF THE DIRECTIVE .
9 AS REGARDS THIS , THE ARGUMENTS PUT FORWARD BY THE DEFENCE ARE TANTAMOUNT TO SAYING THAT SO LONG AS HARMONIZED STANDARDS OR INTERNATIONAL SAFETY PROVISIONS HAVE NOT YET BEEN ADOPTED , THE MEMBER STATES ARE NOT REQUIRED TO PUT INTO FORCE THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS NECESSARY TO COMPLY WITH THEM AND TO ENSURE THAT THEY SHALL BE APPLIED ON THEIR TERRITORY .
10 THIS ARGUMENT FAILS TO RECOGNIZE THAT IN SETTING A PRECISE PERIOD ( 18 MONTHS ) FOR THE PUTTING INTO FORCE OF NATIONAL PROVISIONS ARTICLE 13 REQUIRES THE ADOPTION OF PROVISIONS ENSURING THAT ARTICLES 5 TO 8 OF THE DIRECTIVE SHALL APPLY FULLY AND IMMEDIATELY IN THE CASES TO WHICH THEY RELATE . FOR THE PURPOSES OF THE DIRECTIVE AND OF ARTICLE 13 THEREOF IT DOES NOT SUFFICE FOR MEMBER STATES TO POSTPONE THE IMPLEMENTATION OF THAT ARTICLE UNTIL THE TIME WHEN THE STANDARDS CONCERNED HAVE BEEN ADOPTED .
11 THE DEFENDANT ' S ALTERNATIVE ARGUMENT , MOREOVER , ACCORDING TO WHICH THE ITALIAN PROVISIONS AND IN PARTICULAR LAW NO 186 OF 1 MARCH 1968 ( GAZZETTA UFFICIALE NO 77 OF 23 MARCH 1968 ) COMPRISE SUBSTANTIALLY THE SAME REQUIREMENTS AS ARTICLES 2 TO 4 OF THE DIRECTIVE , FAILS TO HAVE REGARD TO THE MANDATORY EFFECT OF THE LATTER PROVISIONS .
12 ARTICLE 2 OF THE DIRECTIVE PROVIDES THAT ELECTRICAL EQUIPMENT MAY BE PLACED ON THE MARKET ONLY ' IF , HAVING BEEN CONSTRUCTED IN ACCORDANCE WITH GOOD ENGINEERING PRACTICE IN SAFETY MATTERS IN FORCE IN THE COMMUNITY , IT DOES NOT ENDANGER THE SAFETY OF PERSONS , DOMESTIC ANIMALS OR PROPERTY WHEN PROPERLY INSTALLED AND MAINTAINED AND USED IN APPLICATIONS FOR WHICH IT WAS MADE ' . ARTICLE 3 PROVIDES THAT THE MEMBER STATES SHALL NOT IMPEDE THE FREE MOVEMENT OF ELECTRICAL EQUIPMENT WITHIN THE MARKET IF IT COMPLIES WITH THE REQUIREMENTS OF ARTICLE 2 . FINALLY , BY ARTICLE 4 THE MEMBER STATES SHALL ENSURE THAT STRICTER SAFETY REQUIREMENTS THAN THOSE LAID DOWN IN ARTICLE 2 ARE NOT IMPOSED BY ELECTRICITY SUPPLY BODIES FOR CONNEXION TO THE GRID , OR FOR THE SUPPLY OF ELECTRICITY TO USERS OF ELECTRICAL EQUIPMENT .
13 THE PURPOSE OF THOSE PROVISIONS IS TO ENSURE A POSITIVE EFFECT , NAMELY THAT ANY EQUIPMENT COMPLYING WITH THE REQUIREMENTS OF ARTICLE 2 MAY BE FREELY PLACED ON THE MARKET , WHILST ENSURING , NEGATIVELY , THAT ONLY EQUIPMENT COMPLYING WITH THOSE REQUIREMENTS MAY BE MARKETED .
14 IT IS IN ANY EVENT ESSENTIAL FOR THE ITALIAN LEGISLATION TO BE SUPPLEMENTED IN ORDER TO ENSURE THAT THOSE OBJECTIVES SHALL BE CLEARLY AND UNMISTAKABLY ACHIEVED .
15 ACCORDINGLY THE APPLICATION IS WELL FOUNDED AND IT MUST BE DECLARED THAT THE ITALIAN REPUBLIC , IN NOT HAVING BROUGHT INTO FORCE , WITHIN THE PRESCRIBED PERIOD , THE PROVISIONS NECESSARY IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE NO 73/23/EEC OF 19 FEBRUARY 1973 , HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY .
Decision on costs
COSTS
16 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS AND MUST THEREFORE BE ORDERED TO BEAR THE COSTS .
Operative part
ON THOSE GROUNDS ,
THE COURT
HEREBY :
1 . DECLARES THAT THE ITALIAN REPUBLIC , IN NOT HAVING BROUGHT INTO FORCE , WITHIN THE PRESCRIBED PERIOD , THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS NECESSARY TO COMPLY WITH COUNCIL DIRECTIVE NO 73/23/EEC OF 19 FEBRUARY 1973 ON THE HARMONIZATION OF THE LAWS OF MEMBER STATES RELATING TO ELECTRICAL EQUIPMENT DESIGNED FOR USE WITHIN CERTAIN VOLTAGE LIMITS , HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY ;
2 . ORDERS THE DEFENDANT TO PAY THE COSTS .
Full & Egal Universal Law Academy