Court of Justice of the European Communities (including Court of First Instance Decisions)

Legal framework

Community legislation

'1. The Member States shall take all appropriate measures to ensure 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 notendanger the safety of persons, domestic animals or property when properly installed and maintained and used in applications for which it was made.

2. The principal elements of the safety objectives referred to in paragraph 1 are listed in Annex I'.

'The Member States shall ... ensure that if electrical equipment is of such a nature as to comply with the provisions of Article 2, subject to the conditions laid down in Articles 5, 6, 7 and 8, the free movement thereof within the Community shall not be impeded for reasons of safety.'

'Before being placed on the market, the electrical equipment referred to in Article 1 must have affixed to it the CE marking provided for in Article 10 attesting to its conformity to the provisions of this directive, including the conformity assessment procedure described in Annex IV.'

'This directive applies to apparatus liable to cause electromagnetic disturbance or the performance of which is liable to be affected by such disturbance.'

'Member States shall take all appropriate measures to ensure that the apparatus referred to in Article 2 may be placed on the market or taken into service only if it bears the CE marking provided for in Article 10 indicating its conformity to all the provisions of this directive, including the conformity assessment procedures laid down in Article 10, when it is properly installed and maintained and when it is used for the purposes for which it is intended.'

'Member States shall not impede for reasons relating to electromagnetic compatibility the placing on the market and the taking into service on their territory of apparatus covered by this directive which satisfies the requirements thereof.'

'Member States shall ensure that apparatus is placed on the market only if it complies with the appropriate essential requirements identified in Article 3 and the other relevant provisions of this directive when it is properly installed and maintained and used for its intended purpose. It shall not be subject to further national provisions in respect of placing on the market.'

'Member States shall allow the putting into service of apparatus for its intended purpose where it complies with the appropriate essential requirements identified in Article 3 and the other relevant provisions of this directive.'

'Member States shall not prohibit, restrict or impede the placing on the market and putting into service in their territory of apparatus bearing the CE marking referred to in Annex VII, which indicates its conformity with all provisions of this directive, including the conformity assessment procedures set out in Chapter II. This shall be without prejudice to Articles 6(4), 7(2) and 9(5).'

'Member States shall not later than 7 April 2000 adopt and publish the laws, regulations and administrative provisions necessary to comply with this directive. Theyshall forthwith inform the Commission thereof. They shall apply these provisions as from 8 April 2000.'

The national legislation

'The alarm systems and networks referred to in Article 1(4) and their components may be marketed or otherwise made available to users only after prior approval has been granted under a procedure to be laid down by royal decree.

The conditions for installing, maintaining and using the alarm systems and networks referred to in Article 1(4) and their components shall also be determined by royal decree.'

'A fine of BEF 1 000 to BEF 1 000 000 may be imposed on any natural or legal person contravening this Law or any of its implementing decrees, with the exception of the offences mentioned in Article 18.'

'1. No manufacturer, importer, wholesaler or any other natural or legal person may market new equipment or otherwise make it available to users in Belgium if it has not been previously approved by a committee established for that purpose (the equipment committee).

2. The equipment committee shall issue in respect of each equipment prototype which is approved an approval certificate, in conformity with the model set out in Annex 1 to this decree, to be kept by the applicant.

The applicant shall affix to the equipment, at his own cost, a label of conformity corresponding to the prototype to be marketed or made available to users.

...

The departments responsible for monitoring the application of the abovementioned 1990 Law and of its implementing decrees may require compliance of the equipment marketed or made available to users to be checked by one of the bodies mentioned in Article 4(1) of this decree. Such a body shall forward an examination report to the equipment committee which, on the basis of such a report, shall declare whether the equipment is in compliance.

The cost of examination shall be borne by the person who commissions approval tests which may lead to approval.'

'The Minister for Home Affairs, after hearing the opinion of the equipment committee, shall draw up a list of bodies specialising in carrying out the tests which may lead to the equipment being approved or in verifying the reports mentioned in Article 9 of this decree.

Applications for approval of the equipment must be sent directly to one of those bodies, which alone are competent to carry out the tests.'

'Before conducting the tests themselves, the laboratories must examine the equipment.

The examination shall consist in:

1. identifying the equipment;

2. checking electrical circuits against the documents submitted by the manufacturer;

3. checking the minimum required functions, as described in Annex 3 to this decree.

...'

'The tests carried out on the equipment concern:

1. functional adequacy

2. mechanical aspects;

3. mechanical and/or electronic reliability;

4. sensitivity to false alarms;

5. protection against fraud or attempts to disable the equipment;

To that end, the equipment shall undergo the tests listed in Annexes 3 and 4 to this decree. Those tests may be applied to the various types of components.

Equipment which uses radio transmission is, moreover, subject to the tests listed in Annex 6.'

'The laboratories of the bodies referred to in Article 4(1) shall verify whether the equipment submitted meets the requirements listed in Annex 7.

To that end, the applicant must provide the abovementioned laboratories with all the documents relevant to such examination'.

'Certificates and test reports drawn up by bodies approved in other Member States of the European Union and in Member States of the European Free Trade Association, contracting parties to the Agreement on the European Economic Area, are acceptable for the purposes of approving alarm systems and networks imported from those States in so far as they attest to the compliance of those systems and networks with technical standards or rules which guarantee a level of protection equivalent to that provided by this decree.'

'The operating and administrative costs entailed by the application procedure, tests and compliance verification shall be borne by the applicant.'

The dispute in the main proceedings and the questions referred for a preliminary ruling

'1. Should Directives 73/23, 89/336 and 1999/5 be interpreted:

(a) as applicable to alarm systems and networks, in particular to products of that type which use radio transmission, commonly known as wireless alarm systems,

(b) and, should the answer be in the affirmative, as producing sufficiently significant harmonisation in that field that national provisions governing the same field, such as Article 12 of the 1990 Law and the 1999 decree, must necessarily conform to them?

2. In the event that the reply to the first question is in the affirmative:

(a) Should Article 3 of Directive 73/23, Article 5 of Directive 89/336 and Article 6(1) of Directive 1999/5 be interpreted as prohibiting national provisions which, like Article 12 of the 1990 Law and the 1999 decree, make the placing on the market in a Member State of all alarm systems and networks lawfully produced and/or marketed in another Member State subject to a prior approval procedure relating to components of those alarm systems and networks which satisfy the requirements of the directives referred to?

(b) Secondly, should Directive 73/23, Directive 89/336 and Directive 1999/5 be interpreted as establishing the essential requirements, in relation to alarm systems and networks, for electrical safety, electromagnetic compatibility and radio equipment and, consequently, as precluding national provisions, such as the 1999 decree, which make the placing on the market in Belgium of all alarm systems and networks subject to requirements other than those established in those directives?

(c) Should Articles 28 EC to 30 EC be interpreted as meaning that the prohibition on quantitative restrictions on imports and on measures having equivalent effect applies to national provisions, such as the 1999 decree, which require components of alarm systems and networks not covered by Community harmonisation measures to undergo the same tests in an approved laboratory as equipment placed on the market for the first time?

(d) Should Articles 28 EC to 30 EC be interpreted as meaning that the prohibition on quantitative restrictions on imports and on measures having equivalent effect allows a Member State to adopt national provisions, such as the 1999 decree, which makes the placing on the market in a Member State of all alarm systems and networks lawfully manufactured and/or marketed in another Member State subject to prior approval and to tests and specific technical requirements, merely relying in the abstract on an overriding reason or requirement, such as consumer protection and/or public policy, which the State considers the Community harmonisation measures do not take into account or, in other words, without specifically demonstrating either that the overriding reason or requirement relied on actually exists or that the Community harmonisation measures do not already take that overriding reason or requirement into account or that the restrictive measure is proportionate to the aim pursued?

3. In the event that the reply to the first question is negative:

(a) Should Articles 28 EC to 30 EC be interpreted as meaning that the prohibition on quantitative restrictions on imports and on measures having equivalent effect applies to national provisions, such as Article 9 of the 1999 decree, which, rather than applying the requirement of mutual recognition to the alarm systems and networks themselves, confine the requirement of mutual recognition to the tests which alarm systems and networks lawfully manufactured and/or marketed in another Member State must undergo in order to obtain authorisation to be placed on the market of a Member State?

(b) Should Articles 28 EC to 30 EC be interpreted as meaning that the prohibition on quantitative restrictions on imports and on measures having equivalent effect applies to national provisions, such as Article 12 of the 1990 Law and the 1999 decree, which impose a prior approval procedure for the placing on the market of a Member State of all alarm systems and networks lawfully manufactured and marketed in another Member State?

(c) Should Articles 28 EC to 30 EC be interpreted as meaning that the prohibition on quantitative restrictions on imports and on measures having equivalent effect applies to national provisions, such as the second paragraph of Article 2 of the 1999 decree, which require the affixing of a national conformity mark to alarm systems and networks lawfully manufactured and/or marketed in another Member State?

(d) Should Articles 28 EC to 30 EC be interpreted as meaning that the prohibition on quantitative restrictions on imports and on measureshaving equivalent effect applies to national provisions, such as Article 9 of the 1999 decree, which require components of alarm systems and networks to undergo the same tests in an authorised laboratory as equipment being placed on the market for the first time?

(e) Should Articles 28 EC to 30 EC be interpreted as meaning that the prohibition on quantitative restrictions on imports and on measures having equivalent effect applies to national provisions, such as Article 9 of the 1999 decree, which make the placing on the market in a Member State of all alarm systems and networks lawfully manufactured and/or marketed in another Member State subject to prior approval and to tests and specific technical requirements, by merely relying in the abstract on an overriding reason or requirement, such as consumer protection and/or public policy, or, in other words, without specifically demonstrating either that the overriding reason or requirement relied on actually exists or that the restrictive measure is proportionate to the aim pursued?'

The first question

The second question

The third question

Costs