OPINION OF ADVOCATE GENERAL

MAZÁK

delivered on 8 February 2007 (1)

Case C-254/05

Commission of the European Communities

v

Kingdom of Belgium

(Automatic fire detection systems with point detectors without CE marking – Requirement of type approval – Tests and checks already carried out in another Member State)

1.        In this case the Commission seeks a declaration under Article 226 EC that Belgium has failed to fulfil its obligations under Article 28 EC by requiring that automatic fire detection systems with point detectors which were lawfully manufactured or marketed in another Member State but which do not have the ‘CE’ marking: (2) (1) comply with a specific Belgian standard (‘standard NBN S21‑100’); (2) are subject to type approval, in this case by an organisation named ‘BOSEC’, an obstacle made worse by the disproportionate costs which that approval incurs; (3) undergo tests and checks in connection with that type approval which, essentially, duplicate the controls which have already been carried out under other procedures in another Member State.

I –  Relevant national legislation

2.        The Order of the Executive of the French Community of 24 December 1990 determines the detailed rules and procedure for obtaining a safety certificate for establishments providing accommodation in existence on 1 January 1991 and lays down safety standards on fire protection specific to establishments providing accommodation (‘the Order of 24 December 1990’).

3.        According to Articles 2 and 3 of this Order, an establishment providing accommodation may be put in use only when it has been issued with a safety certificate, the issue of which is subject to meeting the safety standards on fire protection which are specific to establishments providing accommodation, as provided for in Annex 1 to the order.

4.        According to point 7.4.4 of Annex 1 to that order, generalised installation of equipment for automatic fire detection by point detectors is to be undertaken and checked in accordance with standard NBN S21‑100 and the equipment is to be the subject of a certificate of conformity to that standard.

5.        As far as the Walloon region is concerned, the Order of 24 December 1990 was repealed by Article 158 of the Decree of the Walloon Region of 18 December 2003 relating to establishments providing tourist accommodation. The provisions of that Order still apply in relation to the Brussels Region.

6.        The Order of the Walloon Government of 3 December 1998 implements a Decree of 5 June 1997 relating to convalescent homes, serviced residences and day-care centres for the elderly and creating the Walloon Council for Retirement (‘the Order of 3 December 1998’).

7.        Article 27 of that order provides:

8.        ‘The standards relating to protection against fire and panic laid down in Annex I shall apply to convalescent homes, serviced residences and day-care centres for the elderly.’

9.        Point 7.7.1 of Annex I to the Order of 3 December 1998 states:

10.      ‘Generalised automatic detection systems shall be checked in accordance with Belgian standard NBN S21‑100 “Design of systems for automatic fire detection by point detectors”. However, the controls must be applied to all parts of the system (detectors, exchanges, repeater signal panels, servo devices, etc …).’

11.      Belgian standard NBN S21‑100 lays down the rules for the design of generalised systems for automatic fire detection by point detectors.

12.      Point 4.2 of that standard, headed ‘Description’, is worded as follows:

‘An automatic fire detection system shall comprise mainly:

–        sensors, sensitive to one of the characteristics specific to combustion, called detectors,

–        a network of wires and electric cables,

–        a control panel, designed to give the alarm and indicate the detection zone and the nature of the problem,

–        power supplies.

Such equipment shall be of a type which conforms to the specifications of the European CEN or Belgian standards and both the fitter and the system must be certified by BOSEC [Belgian Organisation for Security Certification]. All the components in one and the same system must be compatible.

Repeaters, manual warning devices or any other servo device may be added to the system, provided that they meet the requirements of this standard.

The detector-base assembly or connector shall be equipped with an optical alert signal.’

13.      Under point 4.3.1 of Belgian standard NBN S21‑100, every type of detector is to conform to the specifications of the Belgian standards.

14.      Points 4.4.6 and 4.4.8.2 of that standard lay down the required features for, respectively, the back-up power supply and the cables for systems for automatic fire detection by point detectors.

II –  Pre-litigation procedure

15.      In January 2003, following receipt of a complaint from a United Kingdom operator who had experienced difficulties in marketing a certain type of fire detector system in Belgium, the Commission sent a formal letter to the Belgian Government, setting out how it believed that certain Belgian rules might hinder imports of certain types of fire detector systems into Belgium.

16.      The Belgian Government presented its observations to the Commission by letter dated 9 September 2003.

17.      Taking the view that Belgium had infringed its obligations under Article 28 EC, the Commission issued on 7 July 2004 a reasoned opinion, in which it invited Belgium to take the necessary measures to comply with this opinion within two months of its notification.

18.      The Belgian Government replied to the abovementioned reasoned opinion by a letter dated 9 September 2004.

19.      As the Commission was not satisfied with the answer it received from the Belgian Government, it decided to bring the present action.

III –  Submissions

20.      The Commission submits that the Orders of 24 December 1990 and of 3 December 1998 restrict the free movement of automatic fire detection systems with point detectors which do not have CE marking but which were lawfully manufactured or marketed in another Member State. By requiring compliance with standard NBN S21‑100, the Belgian regulations exclude from a part of the Belgian market the use of certain automatic fire detection systems with point detectors which were lawfully manufactured or marketed in another Member State but which do not have the CE marking if they do not comply with the Belgian standard. Indeed, no establishment providing accommodation or serviced residence for the elderly will purchase automatic fire detection systems with point detectors which were lawfully manufactured or marketed in another Member State and which guarantee an equivalent level of protection but which do not comply with the Belgian standard. Such products are therefore excluded from the Belgian market to the benefit of goods which comply with the Belgian standard.

21.      Similarly, a number of municipal regulations on fire prevention also require that fire detectors comply with standard NBN S21‑100. Moreover, when fire services are requested to determine fire prevention measures for a building which is not subject to any other specific rule on fire prevention, they usually also use standard NBN S21‑100 for that purpose. For reasons similar to those stated with respect to the two abovementioned Orders, these practices constitute measures having equivalent effect to quantitative restrictions.

22.      Indeed, as a result of Belgian regional and municipal legislation as well as of administrative practice by fire services, economic operators producing or marketing automatic fire detection systems with point detectors which were lawfully manufactured or marketed in another Member State but which do not have the CE marking might decide not to place their products on the Belgian market or be obliged to modify them in order to gain access to the market in question.

23.      The Commission also contends that standard NBN S21‑100 contains, in particular at points 4.2, 4.3.1, 4.4.6, and 4.4.8.2, requirements concerning the components used in automatic fire detection systems with point detectors. Manufacturers will therefore be obliged to modify their products if they are not in strict compliance with these requirements. The application of standard NBN S21‑100 implies a differentiated production depending on the destination of these products and will therefore restrict the free movement of products lawfully manufactured or marketed in another Member state which do not have the CE marking and which do not present the specific characteristics set out in the standard at issue.

24.      Furthermore, standard NBN S21‑100 makes automatic fire detection systems with point detectors generally subject to approval by BOSEC. By requiring compliance with standard NBN S21‑100, the Orders of 24 December 1990 and of 3 December 1998 make automatic fire detection systems with point detectors which were lawfully manufactured or marketed in a Member state other than Belgium and which do not have the CE marking subject to approval by BOSEC, if they are to be used in premises covered by the two abovementioned Orders.

25.      Not only does such an approval procedure constitute in itself a measure having equivalent effect to a quantitative restriction prohibited by Article 28 CE, but this restriction is exacerbated by the disproportionate delays and costs generated by that procedure and also by the fact that BOSEC does not take into account the tests and checks already carried out in another Member State.

26.      Lastly, these obstacles to free movement of goods are not justified because the Belgian authorities do not demonstrate their necessity and their conformity with the principle of proportionality.

27.      Belgium contends that proposals for modification, concerning notably the modification entailing the removal of compulsory approval by BOSEC as certifying authority, are in progress and were the subject of a public inquiry between 30 March and 30 September 2005. As a result, standard NBN S21‑100 is now in compliance with Article 28 EC and no longer introduces an obstacle to the free movement of automatic fire detection systems with point detectors without CE marking which were lawfully manufactured or marketed in another Member State.

28.      Moreover, the Belgian standard is in fact a mere repetition of European standards, namely the EN‑54 series of technical standards drawn up by the CEN. (3) It is in conformity with those standards and does not contain any additional requirements necessitating the adaptation or modification of the products composing the complete automatic fire detection systems. Indeed, the checks imposed by the standard at issue do not concern the components of the systems but only the functioning of the system as a whole.

29.      In any event, such a check is justified on grounds of public security and the protection of health and life of humans, animals, or plants. In this respect, the Belgian authorities contend that the provisions of standard NBN S21‑100 apply without distinction to any automatic fire detection systems with point detectors not having the CE marking. The checking of fire detection systems in accordance with that standard is additional to the approval by a competent body, whether national or foreign, that the components forming part of the installation comply with European, Belgian, or equivalent standards. Thus standard NBN S21‑100 ensures that the design of the fire detection system as a whole is correct and that the system, made up of components which were tested separately and which may have been purchased from different manufacturers, functions properly. The Belgian Government therefore maintains that the tests carried out in accordance with standard NBN S21‑100 do not duplicate controls which have already been carried out in other Member States. As a result, they are necessary and proportionate to the objective pursued.

IV –  Legal appraisal

A –    Preliminary remarks

30.      In substance, the main objection which the Commission expresses with respect to the Orders of the Walloon Region and the French Community is their reference to standard NBN S21‑100. The same objection applies to municipal regulations which refer to this standard and also to the administrative practices of the fire services, which tend to apply it in the absence of any other standard. The result is that standard NBN S21‑100 operates like a binding standard for producers who wish to market their fire detection systems with point detectors without the CE marking on the Belgian market.

31.      According to the Commission, the main problematic features of standard NBN S21‑100 are that it requires compliance with certain detailed technical requirements concerning automatic fire detection systems with point detectors without CE marking as well as a type approval to be carried out by BOSEC, where the latter allegedly does not take into account checks and tests already carried out in the Member State of origin.

32.      It is therefore necessary, for the purposes of the present proceedings, to assess whether these features are measures having equivalent effect to a quantitative measure, thereby infringing Article 28 EC, and, if so, whether they can be justified by one of the public-interest grounds set out in Article 30 EC or by one of the mandatory requirements laid down by the Court’s case-law where the national rules are applicable without distinction.

33.      Before undertaking this assessment, I consider it useful to make the following two observations.

34.      First, the goods concerned by the present proceedings are automatic fire detection systems with point detectors which were lawfully manufactured or marketed in another Member State but which do not have the CE marking. In this connection, it should be recalled that the CE marking carries with it the presumption that products so marked are in conformity with the ‘essential requirements’ laid down in terms of results to be attained or hazards to be dealt with in the annexes to ‘New Approach’ directives. Goods bearing the CE marking may thus benefit from free movement throughout the Community.

35.      The essential requirements contained in the annexes to ‘New Approach’ directives define the results to be attained or the hazards to be dealt with, but do not specify or predict the technical solutions for doing so. In contrast, harmonised European standards (also called ‘European norms’ or ‘EN’) lay down the technical solutions which, if complied with, ensure the fulfilment of the essential requirements contained in the various ‘New Approach’ directives. These standards are usually developed by the European standardisation bodies, in particular the European Committee for Standardisation (CEN), pursuant to a mandate drawn up by the Commission. Whereas essential requirements set out in ‘New Approach’ Directives are binding, compliance with standards remains in principle voluntary and manufacturers may prove that their products comply with the essential requirements laid down in the ‘New Approach’ directives, and therefore obtain a CE marking, by any other means of their choice. (4)

36.      The second observation concerns the existence of harmonised standards of components of fire detection devices and the status of harmonisation in this area. The components of fire detection devices are not yet harmonised, but harmonisation is currently in progress. The harmonisation of fire detection devices is being undertaken within the framework of Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products. (5) On the basis of a mandate given to this effect by the Commission, (6) CEN developed standards pertaining to the EN‑54 series which concerns components of fire detectors.

37.      It should also be noted that Directive 89/106 differs from most other ‘New Approach’ Directives in that harmonised standards established under that directive are intended to become binding on Member States (7) after the publication of their reference in the Official Journal and the expiry of a transition period. (8) Once the transition period has expired, Member States are not anymore allowed to apply diverging national standards. (9)

38.      As far as the EN‑54 standards are concerned, the first transition periods to expire concerned only three components of fire detection devices (10) and expired on 30 June 2005. The transition periods for other standards of the EN‑54 series concerning a number of other components of fire detection devices are set at various later dates, whereas for some components of fire detection devices harmonised standards have not yet been drawn up. As a result, the status of harmonisation of technical requirements for components of fire detection devices is still very uneven.

B –    Compliance with the Belgian standard

1.      Does the Belgian rule constitute a measure having an effect equivalent to a quantitative restriction?

39.      The first objection which the Commission expresses with respect to standard NBN S21‑100 is that it sets a number of detailed technical requirements, some of which, according to the Commission, concern the components of fire detection systems with point detectors without the CE marking. As a result, imported fire detection systems without the CE marking have to be modified in order to be marketed in Belgium.

40.      Belgium claims in substance that the requirements contained in standard NBN S21‑100 are limited to ensuring that the conception of the fire detection system as a whole is good and that the system as a whole functions properly. Thus, the Belgian standard does not restrict the marketing of automatic fire detection systems with point detectors which are lawfully marketed in another Member State without CE marking.

41.      The Court has consistently held that the prohibition of measures having equivalent effect to quantitative restrictions set out in Article 28 EC covers all measures which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade. (11) What is essential is therefore not the object, but the effect – whether actual or potential – of a measure on intra-Community trade.

42.      Furthermore, it is established by the case-law beginning with ‘Cassis de Dijon’ (12) that, in the absence of harmonisation of legislation, 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 (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article 28 EC. This is so even if those rules apply without distinction to all products. (13)

43.      The Court also held in ATRAL that to impose as a condition the attestation of conformity of imported alarm systems and networks to technical standards or rules which guarantee a level of protection equivalent to that required by the Member State of importation amounts to obliging manufacturers of other Member States to adapt their apparatus and equipment to the requirements of the Member State of importation. Such an obligation is contrary to Article 28 EC. (14)

44.      In the present case, Belgian standard NBN S21‑100 contains requirements concerning the proper installation and functioning of automatic fire detection systems with point detectors, such as points 6.3 (‘Essais par foyers-types‘/‘Beproeving door type haarden’) and 6.4 (‘Temps de réponse’/‘Reactietijd’). However, it also seems to contain technical specifications on the design and the form of the fire detection systems concerned, such as point 4.4.5.2 concerning components (‘Equipements’/‘Uitrusting’) and point 4.4.6 concerning power supply.

45.      Thus, the Member State of importation, in the present case Belgium, does not only require that the imported fire detector, which does not have the CE marking, fulfils a certain level of security. It requires that such a fire detector complies with certain technical specifications in order to achieve that level of security. By doing so, it imposes on producers a single way of achieving a given level of security. In this respect, it is significant that standard NBN S21‑100 clearly states at point 4.3.1. that ‘all kinds of detectors shall be in conformity with the requirements of the Belgian norm’.

46.      As regards the Belgian authorities’ argument that standard NBN S21‑100 is merely based on existing European standards, namely the so-called EN‑54 series drawn up by the CEN, and that for this reason it cannot be regarded as an obstacle to free movement of goods in the Community, it cannot be upheld. Indeed, such an argument could succeed only if the standard on which the Member State relies were a harmonised, binding standard and if all Member States could impose strict compliance with such a standard on all producers.

47.      As mentioned in the preliminary remarks, the harmonisation of components of fire detection devices is ongoing and therefore still very uneven. For the purpose of the present case, the relevant status of harmonisation is the end of the period laid down in the reasoned opinion, namely two months after its receipt by the Belgian authorities, which can be reasonably put at around 15 September 2004. Indeed, as the Court has consistently held, 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. (15)

48.      For the EN‑54 series of standards, which concern components of fire detection devices, the transition periods after which harmonised standards drawn up under Directive 89/106 became binding on Member States all ended well after 15 September 2004. (16) This means that at the material time for the present assessment there were no technical specifications for fire detectors which were binding on all EU Member States. Under such circumstances, compliance with the relevant standards of the EN‑54 series remains voluntary for manufacturers. It only leads to a presumption of conformity of the good with the essential requirements set out in Directive 89/106. Manufacturers are, under such conditions, free to choose any technical solution that meets the essential requirements set out in the applicable Directive.

49.      Furthermore, harmonisation is so far only partial in its material scope, because thus far the EN‑54 series has covered only a limited although growing number of components of fire detection devices, such as, for example, sounders, (17) power supply, (18) or heat detectors. (19)

50.      Moreover, as the Belgian authorities acknowledge in their submissions, at various instances the applicable standards drawn up by the CEN establish a number of options from which the Member States may choose. This appears to give Member States a certain margin of appreciation in the transposition of the standards of the CEN series, thus possibly leading to differences between the national standards governing fire detectors.

51.      For all these reasons, it appears that standard NBN S21‑100 as a whole cannot be considered to be a mere transposition, without modifications, of a compulsory, uniform EU-wide standard, as the Belgian authorities seem to suggest. Requiring compliance with standard NBN S21‑100 therefore amounts to a restriction to free movement of goods between Member States.

52.      Lastly, the fact that the Order of 24 December 1990 was repealed by Article 158 of the Decree of the Walloon Region of 18 December 2003 relating to establishments providing tourist accommodation cannot change these findings, because the provisions of the Order of 24 December 1990 still apply in relation to the Brussels Region.

53.      Under such conditions, requiring that any automatic fire detection systems with point detectors which has no CE marking complies with standard NBN S21‑100 constitutes a measure having equivalent effect to a quantitative restriction on imports within the meaning of Article 28 EC.

54.      However, the Court has consistently held that a national rule which hinders the free movement of goods is not necessarily contrary to Community law if it may be justified by one of the public-interest grounds set out in Article 30 EC or by one of the mandatory requirements laid down by the Court’s case-law where the national rules are applicable without distinction. (20)

2.      Can the rule be justified?

55.      In the present case, the Belgian Government contends that compliance with standard NBN S21‑100 can be justified on grounds of public security and the protection of health and life of humans, animals, or plants.

56.      Both of these grounds are set out in Article 30 EC and it is undeniable that a measure which ensures the proper functioning of fire detection devices plays a role in preventing material and physical damage and may therefore contribute to achieving the stated objectives.

57.      It is settled case-law that, in the absence of harmonising rules, 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. (21)

58.      However, as the Court has consistently held, in order to claim successfully that Article 30 EC justifies an exception to the principle of the free movement of goods, the national authorities must 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. (22)

59.      In the present case, on the basis of the evidence provided by the Belgian Government, it is questionable whether strict compliance with Belgian standard NBN S21‑100 may be considered necessary and proportionate. Indeed, what raises particular concern with the Belgian standard is that it does not limit itself to the control of the functioning of the fire detection system as a whole in a given environment. It lays down specific technical requirements, including those relating to certain components, to be fulfilled by fire detectors which are to be placed on the Belgian market. Thus it imposes its specific technical requirements as the only ones capable of achieving a sufficient level of security.

60.      This means that the strict obligation to comply with standard NBN S21‑100 does not even allow operators to prove that the devices they import achieve, perhaps by using different technical means, an equivalent or even higher level of security than that set by the regulations of the Member State of importation.

61.      Such imposition of strict technical requirements concerning the components would appear to be justifiable only if the Belgian authorities were able to demonstrate that the technical requirements provided for in standard NBN S21‑100 were the only ones capable of achieving a given level of protection. Indeed, as previously held by the Court, the justification of an exception to the principle of the free movement of goods under Article 30 EC or in accordance with a mandatory requirement recognised by Community case-law can be specifically demonstrated only by reference to the circumstances of the case. (23) In the present case the detailed character of the requirements contained in the Belgian standard would therefore have warranted more detailed evidence of the necessity and the proportionality of such strict and detailed requirements for the achievement of the objective of public security and the protection of health and life of humans, animals, or plants. In the present case, however, the Belgian authorities have failed to provide such evidence.

62.      Under such conditions, it does not appear that requiring strict compliance with standard NBN S21‑100 could possibly be considered proportionate to the objective of public security and the protection of health and life of humans, animals, or plants. As a result, such a restriction on the free movement of fire detection systems with point detectors is not justified by one of the public-interest grounds set out in Article 30 EC or by any of the overriding requirements laid down by the Court’s case-law.

C –    Requirement of type approval and the relevant procedure

1.      Does it constitute a measure having an effect equivalent to a quantitative restriction?

63.      Besides a number of detailed technical requirements, standard NBN S21‑100 requires the approval of automatic fire detection systems with point detectors by BOSEC. As compliance with standard NBN S21‑100 is laid down for fire detection systems with point detectors without the CE marking by means of various pieces of Belgian legislation, the approval by BOSEC becomes necessary in order to market such fire detection systems, at least for certain purposes which fall under the scope of the relevant Belgian legislation, such as, for example, their use in establishments providing tourist accommodation or residences for the elderly.

64.      The Belgian authorities do not deny that standard NBN S21‑100, with which producers must comply as a result of the two impugned orders, requires a type approval by BOSEC. However they do not consider that such approval constitutes an obstacle to free movement of goods because, by merely checking that the fire detection system as a whole functions, it does not duplicate tests already carried out in the Member State of origin of the goods.

65.      It is well established in case-law that a product which is lawfully marketed in one Member State must in principle be able to be marketed in any other Member State without being subject to additional controls, save in the case of exceptions provided for or allowed by Community law. (24)

66.      In this sense, the Court has consistently held that the prohibition by a Member State of products which have not been previously authorised from being marketed, acquired, offered, put on display or sale, kept, prepared, transported, sold, disposed of for valuable consideration or free of charge, imported or used, constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of Article 28 EC. (25)

67.      Furthermore, as regards the marketing in a Member State of products lawfully manufactured and marketed in another Member State, and in the absence of harmonising Community measures, a national provision which requires that imported products undergo the same tests as products placed for the first time on the market and be approved beforehand constitutes a measure equivalent to a quantitative restriction on imports within the meaning of Article 28 EC. (26)

68.      More precisely, the refusal, in that context, to recognise the equivalence of certificates issued by another Member State restricts 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. (27)

69.      In the present case, standard NBN S21‑100 systematically requires type approval for automatic fire detection systems with point detectors which do not have the CE marking, even if they were lawfully manufactured or marketed in another Member State. Indeed, pursuant to an addendum of 2 August 1996 to standard NBN S21‑100, the latter provides at point 4.2. that ‘the system must be certified by BOSEC’.

70.      Furthermore, it is undisputed that tests carried out in the Member State of origin in the absence of a bilateral agreement with the approval body in the Member State of origin were not taken into account by BOSEC in the framework of the approval under standard NBN S21‑100. As a result, in the framework of the type approval procedure by BOSEC, automatic fire detection systems with point detectors which were lawfully manufactured or marketed in another Member State but which do not have the CE marking have to undergo tests and checks which had been carried out already in the Member State of origin.

71.      Under such circumstances, the requirement of type approval as required by Belgian standard NBN S21‑100 constitutes a measure equivalent to a quantitative restriction on imports within the meaning of Article 28 EC. It is therefore necessary to determine whether this requirement of type approval and the way it is carried out may be justified by one of the public-interest grounds set out in Article 30 EC or by one of the overriding requirements laid down by the Court’s case-law.

2.      Can type approval by BOSEC be justified?

72.      In the present case, the Belgian Government maintains that the approval of fire detectors in accordance with standard NBN S21‑100 is justified on grounds of public security and the protection of health and life of humans, animals, or plants.

73.      It is undeniable that the latter constitute grounds on the basis of which measures having equivalent effect to quantitative restrictions may be justified under Article 30 EC, provided that they are necessary and proportionate to the aim pursued.

74.      Nevertheless, whilst a Member State is free to require a product of the type in question, 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 required to assist in bringing about a relaxation of the controls existing in intra-Community trade and to take account of technical or chemical analyses or laboratory tests which have already been carried out in another Member State. (28) Thus, 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. (29)

75.      This means that for an approval procedure to be proportionate, the control mechanism of the Member State of importation must be sufficiently flexible to take into account whether the practical effects of the control carried out in the Member State of origin satisfy the requirements of the protection of public security and health in the importing Member State. By requiring strict compliance with the Belgian norm, which, as demonstrated earlier, goes further than a simple testing of the appropriate functioning of the fire detection device in a given environment, and by not taking into account tests carried out in another Member State according to different national standards, the type approval procedure carried out by BOSEC clearly does not satisfy such requirements of flexibility.

76.      Furthermore, as the Court has previously held, for a prior authorisation procedure to comply with the fundamental principles of the free movement of goods, it must not, on account of its duration, the amount of costs to which it gives rise, or any ambiguity as to the conditions to be fulfilled, be such as to deter the operators concerned from pursuing their business plan. (30)

77.      In the present case, according to the Commission, the costs of obtaining approval by BOSEC are EUR 24 800. Such relatively high costs are in practice likely to deter a foreign producer from marketing his products in Belgium. Indeed, in the case of a foreign producer the costs of obtaining approval in Belgium will be additional to any costs incurred by the manufacturer in the Member State where the fire detector was manufactured or first marketed. As a result, the Belgian Government’s argument that the costs of approval in Belgium are lower than in other Member States, such as the United Kingdom, is irrelevant.

78.      In any event, as previously mentioned, the justification of an exception to the principle of the free movement of goods under Article 30 EC or in accordance with an overriding requirement recognised by Community case-law can be specifically demonstrated only by reference to the circumstances of the case. (31) Thus, even if in principle the necessity of an appropriate verification of the overall functioning of a fire detection system in a given environment before it is put into service can be accepted, the abovementioned procedure for obtaining the type approval from BOSEC would require a more detailed justification by the Belgian authorities in order to be possibly considered proportionate. The Belgian authorities failed to provide such specific evidence.

79.      Lastly, in response to the Belgian Government’s argument concerning ongoing changes to the national measures requiring type approval by BOSEC, it is sufficient to recall 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. (32)

80.      Under such conditions, the obligation for automatic fire detection systems with point detectors which were lawfully manufactured or marketed in another Member State but which do not have the CE marking to be subject to type approval by BOSEC, without any checks and tests which were carried out in the Member State of origin being adequately taken into account, seems not to be proportionate to the objective of public security and the protection of health and life of humans, animals, or plants and therefore cannot be justified by one of the public-interest grounds set out in Article 30 EC or by one of the overriding requirements laid down by the Court’s case-law.

V –  Costs

81.      Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to pay the costs if they have been applied for in the successful party’s pleadings. The Commission has applied for costs in the present proceedings.

VI –  Conclusion

82.      I am consequently of the opinion that the Court should

(1)      declare that Belgium has failed to fulfil its obligations under Article 28 EC by requiring that automatic fire detection systems with point detectors which were lawfully manufactured or marketed in another Member State but which do not have the CE marking: (1) comply with a specific Belgian standard (called ‘standard NBN S21‑100’); (2) are subject to type approval by ‘BOSEC’, an obstacle made worse by the disproportionate costs which that approval incurs; (3) undergo tests and checks in connection with that type approval which, essentially, duplicate the controls which have already been carried out under other procedures in another Member State;

(2)      order the Kingdom of Belgium to pay the costs.

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1 – Original language: English.

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2 – CE marking carries with it the presumption that products so marked fulfil the ‘essential requirements’ laid down in terms of results to be attained or hazards to be dealt with in the annexes to ‘New Approach’ directives and may thus benefit from free movement throughout the Community. Those essential requirements define the results to be attained or the hazards to be dealt with, but do not specify or predict the technical solutions for doing so. See further EC Commission, Guide to the implementation of the directives based on the New Approach and the Global Approach, 2000, at p. 27 et seq.

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3 – European Committee for Standardisation (the abbreviation ‘CEN’ is derived from the French name ‘Comité Européen de Normalisation’).

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4 – See further, EC Commission, Guide to the implementation of the directives based on the New Approach and the Global Approach, 2000, at p. 27 et seq. See also Opinion of Advocate General Sharpston delivered on 21 November 2006 in Case C‑6/05 Medipac, pending before the Court, at footnote 5.

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5 – OJ 1989 L 40, p. 12.

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6 – Fire detection devices are subject to a mandate drawn up according to Article 7 of Directive 89/106.

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7 – See, in particular, Guide to the implementation of the directives based on the New Approach and the Global Approach, cited at footnote 2 above.

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8 – The Commission regularly publishes titles and references of harmonised standards under Directive 89/106 in the OJ under the title Commission communication in the framework of the implementation of the Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products. See, as mentioned by the Commission, OJ 2002 C 320, p. 5, and, for a more recent updated version, OJ 2006 C 134, p. 1. Each communication integrates and updates the content of the preceding one.

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9 – The periodical Commission communication in the framework of the implementation of the Council Directive 89/106 consistently states: ‘The date of the end of the coexistence period is the same as the date of withdrawal of conflicting national technical specifications, after which presumption of conformity must be based upon harmonised European specifications’. See, for example, OJ 2002 C 320, p. 5, and OJ 2006 C 134, p. 1.

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10 – They concern the following standards: EN 54‑3 (Sounders), EN 54‑5 (Heat detectors — Point detectors), EN 54‑7 (Smoke detectors — Point detectors using scattered light, transmitted light or ionisation).

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11 – See, in particular, Case 8/74 Dassonville [1974] ECR 837, paragraph 5; Case 178/84 Commission v Germany [1987] ECR 1227 (‘Beerpurity’), paragraph 27; Joined Cases C‑267/91 and C‑268/91 Keck and Mithouard [1993] ECR I‑6097, paragraph 11; Case C‑192/01 Commission v Denmark [2003] ECR I‑9693, paragraph 39; Case C‑270/02 Commission v Italy [2004] ECR I‑1559, paragraph 18; Case C‑366/04 Schwarz [2005] ECR I‑10139, paragraph 28; and Joined Cases C‑158/04 and C‑159/04 Alfa Vita Vassilopoulos and Carrefour Marinopoulos [2006] ECR I‑0000, paragraph 15.

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12 – Case 120/78 Rewe-Zentral [1979] ECR 649 (‘Cassis de Dijon’), paragraph 14.

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13 – See, for example, Case C‑293/93 Houtwipper [1994] ECR I‑4249, paragraph 11, and Case C‑84/00 Commission v France [2001] ECR I‑4553, paragraph 24.

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14 – See Case C‑14/02 ATRAL [2003] ECR I‑4431, paragraph 63.

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15 – See, inter alia, Case C‑384/99 Commission v Belgium [2000] ECR I‑10633, paragraph 16; Case C‑147/00 Commission v France [2001] ECR I‑2387, paragraph 26; and Case C‑272/01 Commission v Portugal [2004] ECR I‑6767, paragraph 29.

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16 – See point 36 above.

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17 – Norm EN 54‑3.

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18 – Norm EN 54‑4.

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19 – Norm EN 54‑5.

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20 – See, for example, Alfa Vita Vassilopoulos and Carrefour Marinopoulos, cited in footnote 11, paragraph 20 and the case-law cited therein.

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21 – See Case C‑293/94 Brandsma [1996] ECR I‑3159, paragraph 11, and Case C‑432/03 Commission v Portugal [2005] ECR I‑9665, paragraph 44.

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22 – Case 227/82 Van Bennekom [1983] ECR 3883, paragraph 39, and Case C‑358/95 Morellato [1997] ECR I‑1431, paragraph 14.

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23 – See, to this effect, ATRAL, cited in footnote 14, paragraph 67.

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24 – See, to that effect, Case C‑390/99 Canal Satélite [2002] ECR I‑607, paragraph 37, and the case-law mentioned therein.

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25 – See, for instance, Brandsma, cited in footnote 21, paragraph 6, and Case C‑400/96 Jean Harpegnies [1998] ECR I‑5121.

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26 – See, to that effect, ATRAL, cited in footnote 14, paragraph 62, and Canal Satélite, cited in footnote 24, paragraphs 12, 25 and 29.

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27 – See Case C‑432/03 Commission v Portugal, cited in footnote 21, paragraph 41.

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28 – See Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 3277, paragraph 14, and Brandsma, cited in footnote 21, paragraph 12.

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29 – See Canal Satélite, cited in footnote 24, paragraph 36, and Case C‑432/03 Commission v Portugal, cited in footnote 21, paragraph 45.

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30 – To this effect, see Canal Satélite, cited in footnote 24, paragraph 41.

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31 – See ATRAL, cited in footnote 14, paragraph 67.

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32 – See, inter alia, Commission v Belgium, cited in footnote 15, paragraph 16; Case C‑147/00 Commission v France, cited in footnote 15, paragraph 26; and Case C‑272/01 Commission v Portugal, cited in footnote 15, paragraph 29.