Case C-385/10

Elenca Srl

v

Ministero dell’Interno

(Reference for a preliminary ruling from the Consiglio di Stato)

‛Free movement of goods — Quantitative restrictions and measures having equivalent effect — Internal liners in flues and chimney pipes — Lack of CE conformity marking — Marketing precluded’

Summary – Judgment of the Court (Fifth Chamber), 18 October 2012

1. Approximation of laws — Construction products — Directive 89/106 — Purpose

   (Council Directive 89/106, as amended by European Parliament and Council Regulation No 1882/2003)

2. Approximation of laws — Construction products — Directive 89/106 — National rules automatically making the marketing of construction products originating from another Member State subject to the affixing of CE marking — Not permissible

   (Arts 34 TFEU and 36 TFEU; Council Directive 89/106, as amended by European Parliament and Council Regulation No 1882/2003)

3. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — National rules automatically making the marketing of construction products originating from another Member State subject to the affixing of CE marking — Not permissible — Justification — Protection of public health — None — Breach of principle of proportionality

   (Arts 34 TFEU to 37 TFEU)

1.  See the text of the decision.

   (see para. 15)

2.  Directive 89/106 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products, as amended by Regulation No 1882/2003, must be interpreted as precluding national provisions which automatically make the marketing of construction products originating from another Member State subject to the affixing of CE marking.

   A Member State may not require the affixing of CE marking on a construction product not covered by Article 4(2) of Directive 89/106, originating from another Member State, in order for that product to be marketed on its territory. That Member State may subject the placing on the market of that construction product 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 paras 19, 20, operative part 1)

3.  Articles 34 TFEU to 37 TFEU must be interpreted as precluding national provisions which automatically make the marketing of construction products originating from another Member State subject to the affixing of CE marking.

   Such rules must be regarded as measures having an effect equivalent to quantitative restrictions within the meaning of Article 34 TFEU which constitute a restriction on the free movement of goods for the importer.

   It is true 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 that regard, 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. However, legislation which prohibits, absolutely and automatically, the marketing on national territory of products do not have CE marking is not compatible with the requirement of proportionality imposed by European Union law.

   (see paras 22, 26-28, 30, operative part 2)

Case C-385/10

Elenca Srl

v

Ministero dell’Interno

(Reference for a preliminary ruling from the Consiglio di Stato)

‛Free movement of goods — Quantitative restrictions and measures having equivalent effect — Internal liners in flues and chimney pipes — Lack of CE conformity marking — Marketing precluded’

Summary – Judgment of the Court (Fifth Chamber), 18 October 2012

1. Approximation of laws — Construction products — Directive 89/106 — Purpose

   (Council Directive 89/106, as amended by European Parliament and Council Regulation No 1882/2003)

2. Approximation of laws — Construction products — Directive 89/106 — National rules automatically making the marketing of construction products originating from another Member State subject to the affixing of CE marking — Not permissible

   (Arts 34 TFEU and 36 TFEU; Council Directive 89/106, as amended by European Parliament and Council Regulation No 1882/2003)

3. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — National rules automatically making the marketing of construction products originating from another Member State subject to the affixing of CE marking — Not permissible — Justification — Protection of public health — None — Breach of principle of proportionality

   (Arts 34 TFEU to 37 TFEU)

1.  See the text of the decision.

   (see para. 15)

2.  Directive 89/106 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products, as amended by Regulation No 1882/2003, must be interpreted as precluding national provisions which automatically make the marketing of construction products originating from another Member State subject to the affixing of CE marking.

   A Member State may not require the affixing of CE marking on a construction product not covered by Article 4(2) of Directive 89/106, originating from another Member State, in order for that product to be marketed on its territory. That Member State may subject the placing on the market of that construction product 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 paras 19, 20, operative part 1)

3.  Articles 34 TFEU to 37 TFEU must be interpreted as precluding national provisions which automatically make the marketing of construction products originating from another Member State subject to the affixing of CE marking.

   Such rules must be regarded as measures having an effect equivalent to quantitative restrictions within the meaning of Article 34 TFEU which constitute a restriction on the free movement of goods for the importer.

   It is true 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 that regard, 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. However, legislation which prohibits, absolutely and automatically, the marketing on national territory of products do not have CE marking is not compatible with the requirement of proportionality imposed by European Union law.

   (see paras 22, 26-28, 30, operative part 2)