DIMCO Dimovasili M.I.K.E. v Ypourgos Perivallontos kai Energeias (C-499/20)

Contents

Judgment of the Court (Ninth Chamber)10 February 2022^note(Reference for a preliminary ruling — Approximation of laws — Directive 97/23/EC — Pressure equipment — CE marking — Placing on the market and putting into service — Restrictions aimed at ensuring the protection of persons — Articles 34 and 36 TFEU — National legislation imposing restrictions on the method of installation of gas pipes)In Case C‑499/20,REQUEST for a preliminary ruling under Article 267 TFEU from the Symvoulio tis Epikrateias (Council of State, Greece), made by decision of 27 August 2020, received at the Court on 1 October 2020, in the proceedingsDIMCO Dimovasili M.I.K.E.vYpourgos Perivallontos kai Energeias,THE COURT (Ninth Chamber),composed of K. Jürimäe, President of the Third Chamber, acting as President of the Ninth Chamber, S. Rodin and N. Piçarra (Rapporteur), Judges,Advocate General: H. Saugmandsgaard Øe,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– DIMCO Dimovasili M.I.K.E., by S. Papageorgiou, D. Tsarapatsanis and P. Yatagantzidis, dikigoroi,– the Greek Government, by S. Charitaki, A. Magrippi, K. Nasopoulou and K. Boskovits, acting as Agents,– the Spanish Government, by J. Rodríguez de la Rúa Puig, acting as Agent,– the European Commission, by A. Katsimerou and M. Jáuregui Gómez, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 2, Article 4(1)(1.1), Article 7(4) and Article 8 of, and Annex I to, Directive 97/23/EC of the European Parliament and of the Council of 29 May 1997 on the approximation of the laws of the Member States concerning pressure equipment (OJ 1997 L 181, p. 1), as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003 (OJ 2003 L 284, p. 1) (‘Directive 97/23’).

2The request has been made in proceedings between DIMCO Dimovasili M.I.K.E. (‘Dimco’) and the Ypourgos Perivallontos kai Energeias (Minister for the Environment and Energy, Greece) concerning the legality of a ministerial order of 20 March 2012 approving the technical regulation on internal natural gas installations with an operating pressure of up to 0.5 bar.

Legal context

European Union law

3According to recitals 3 and 6 of Directive 97/23:(3) Whereas the harmonisation of national legislation is the only means of removing these barriers to free trade; whereas this objective cannot be achieved satisfactorily by the individual Member States; whereas this Directive only lays down indispensable requirements for the free circulation of the equipment to which it is applicable;…(6) … this Directive harmonises national provisions on hazards due to pressure; … the other hazards which this equipment may present accordingly may fall within the scope of other Directives dealing with such hazards; … however, pressure equipment may be included among products covered by other Directives based on Article 100a of the [EC] Treaty; … the provisions laid down in some of those Directives deal with the hazard due to pressure [and] those provisions are considered adequate to provide appropriate protection where the hazard due to pressure associated with such equipment remains small; … therefore, there are grounds for excluding such equipment from the scope of this Directive’.

4Article 1 of that directive, entitled ‘Scope and definitions’, provides:1. This Directive applies to the design, manufacture and conformity assessment of pressure equipment and assemblies with a maximum allowable pressure PS greater than 0[.]5 bar.2.For the purposes of this Directive:2.1. “Pressure equipment” means vessels, piping, safety accessories and pressure accessories. Where applicable, pressure equipment includes elements attached to pressurised parts, such as flanges, nozzles, couplings, supports, lifting lugs, etc.…2.1.2. “Piping” means piping components intended for the transport of fluids, when connected together for integration into a pressure system. ……’

5Article 2 of that directive, entitled ‘Market surveillance’, provides, in paragraphs 1 and 2:1. Member States shall take all appropriate measures to ensure that the pressure equipment and the assemblies referred to in Article 1 may be placed on the market and put into [service] only if, when properly installed and maintained and used for their intended purpose, they do not endanger the health and safety of persons and, where appropriate, domestic animals or property.2. The provisions of this Directive shall not affect Member States’ entitlement to lay down, with due regard to the provisions of the Treaty, such requirements as they may deem necessary to ensure that persons and, in particular, workers are protected during use of the pressure equipment or assemblies in question provided that this does not mean modifications to such equipment or assemblies in a way not specified in this Directive.’

6Article 3 of Directive 97/23, entitled ‘Technical requirements’, provides, in paragraph 1:‘The pressure equipment referred to in 1.1, 1.2, 1.3 and 1.4 must satisfy the essential requirements set out in Annex I:…’

7Article 4 of that directive, entitled ‘Free movement’, states, in paragraph 1(1.1):‘Member States shall not, on grounds of the hazards due to pressure, prohibit, restrict or impede the placing on the market or putting into service under the conditions specified by the manufacturer of pressure equipment or assemblies referred to in Article 1 which comply with this Directive and bear the CE marking indicating that they have undergone conformity assessment in accordance with Article 10.’

8Under Article 7 of that directive, entitled ‘Committee on Pressure Equipment’, where a Member State considers that, for very serious safety reasons, an item of pressure equipment, an assembly or family of assemblies of such equipment should be subject to the provisions of Article 3 of, or Annex II to, Directive 97/23, it is to request the European Commission, assisted by a standing committee, to take the necessary measures. In accordance with Article 7(4), that committee may furthermore examine any other matter relating to the implementation and practical application of that directive and raised by its chairperson either on his or her own initiative or at the request of a Member State.

9Article 8 of that directive, entitled ‘Safeguard clause’, provides, in paragraph 1, that where a Member State ascertains that pressure equipment or assemblies referred to in Article 1, bearing the ‘CE’ marking and used in accordance with their intended use are liable to endanger the safety of persons and, where appropriate, domestic animals or property, it is to take all appropriate measures to withdraw such equipment or assemblies from the market, prohibit the placing on the market, putting into service or use thereof, or restrict free movement thereof. It is to immediately inform the Commission of such measures and to indicate the reasons for its decision.

10Annex I to Directive 97/23, entitled ‘Essential safety requirements’, provides, in Part 1, entitled ‘General’:1.1. Pressure equipment must be designed, manufactured and checked, and if applicable equipped and installed, in such a way as to ensure its safety when put into service in accordance with the manufacturer’s instructions, or in reasonably foreseeable conditions.…’

Greek law

11By Order D3/Α’/oik.6598 of 20 March 2012, the Secretary of State for the Environment, Energy and Climate Change approved the regulation on internal natural gas installations with an operating pressure of up to 0.5 bar and laid down the guidelines on the design, materials, installation, inspection, testing, safety and operation of internal systems and domestic gas installations (FEK B’ 976/28.3.2012) (‘the regulation of 20 March 2012’).

12Paragraph 1.2.4 of that regulation provides:‘The method of installation of gas pipes does not fall within the scope of [Directive 97/23 or other] directives and is governed by the present regulation, taking into account the specific characteristics of the country (for example, earthquakes).’

13Annex 9 to that regulation, entitled ‘Specifications for pipe systems’, provides, in point P.9.5.6.9:‘Pipe conduits in structural cavitiesWhere pipelines are installed in structural cavities, for example, in false ceilings, the cavity must be ventilated, for example via– peripheral openings in the surrounding walls,– two diagonally opposed ventilation apertures each measuring 20 cm².It is recommended that the system be welded and, if possible, protected by conduits.’

14Point P.9.5.8.2 of Annex 9 to that regulation provides:‘Gas pipe lines must not be placed within concrete slabs or within flooring. They may be installed in conduits, in cavities in a false ceiling or within a layer of sound insulation (or similar) above a false ceiling, provided measures are taken to protect them against corrosion as required for buried pipes.’

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

15Dimco trades in, imports and distributes high-technology products used in the fitting of natural gas installations in buildings. It imports, from the United Kingdom, and sells, in Greece, flexible stainless steel pipes.

16On 16 May 2012, Dimco brought an action before the Symvoulio tis Epikrateias (Council of State, Greece) seeking the annulment of various provisions of the regulation of 20 March 2012, claiming, inter alia, that those provisions are aimed at promoting the use of conventional steel and copper gas pipes, to the detriment of those which Dimco sells, making it impossible in practice to use and therefore sell the pipes which it imports. Dimco thus considers that paragraph 1.2.4 of that regulation and points P.9.5.6.9 and P.9.5.8.2 of Annex 9 to that regulation infringe Article 4(1)(1.1) of Directive 97/23.

17Dimco submits, in that regard, that the pipes which it sells bear the CE marking. It follows from Annex I to, and Article 4(1)(1.1) of, Directive 97/23 that the additional conditions and restrictions imposed for reasons relating to protection against earthquakes cannot apply to gas pipes which bear the CE marking and which the manufacturer, in its instructions, has certified can be safely installed and used.

18The referring court considers that the provisions of the regulation of 20 March 2012, which lay down conditions and restrictions as to the method of installation of gas pipes in light of the specific characteristics of the country, in particular earthquakes, have their basis in Article 2 of Directive 97/23 and comply with the provisions of that article. According to that court, those conditions and restrictions comply with Article 36 TFEU, in so far as they apply without distinction to all types of pipes, regardless of the material from which they are made or their country of origin, have been deemed necessary by the competent national authority in order to ensure the health and safety of persons, comply with the principle of proportionality and do not entail any modification of the material sold by the applicant in the main proceedings. The referring court thus considers that the plea for annulment raised by the applicant in the main proceedings and directed against those provisions could be rejected as unfounded. Nevertheless, it has doubts as to whether certain provisions of the regulation of 20 March 2012 comply with Article 4(1)(1.1), Article 7(4) and Article 8 of, and Annex I to, Directive 97/23.

19In those circumstances, the Symvoulio tis Epikrateias (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Must Article 4(1)(1.1), Article 7(4) and Article 8 of, and Annex I to, [Directive 97/23] be interpreted as precluding national regulations, such as paragraphs 1.2.4 of, and points P9.5.6.9 and P9.5.8.2 of Annex 9 to, the regulation [of 20 March 2012] on internal natural gas installations with an operating pressure of up to 0.5 bar, which impose conditions and restrictions as to the installation method used for pressure equipment (gas pipes), such as compulsory ventilation and a ban on underfloor pipe lines, in order to protect persons, in particular from earthquakes, in view of the fact that those conditions and restrictions also apply indiscriminately to pipes which, as in this case, have the “CE” marking and which the manufacturer guarantees can be safely installed and used without complying with the abovementioned conditions and restrictions?(2) Or, conversely, must the above provisions of [Directive 97/23], read in conjunction with Article 2 of that directive, be interpreted as not precluding conditions and restrictions as to the installation method used for pressure equipment (gas pipes), such as those at issue in this case?’

Consideration of the questions referred for a preliminary ruling

20By its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 4(1)(1.1) of, and Annex I to, Directive 97/23, read in conjunction with Article 2 of that directive, must be interpreted as precluding national legislation which, in order to ensure the safety of persons, in particular against earthquakes, imposes certain methods of installation for pressure equipment, including equipment bearing the CE marking.

21In the first place, it must be noted, firstly, that Article 1(1) of Directive 97/23 provides that the directive applies to the design, manufacture and conformity assessment of pressure equipment and, secondly, that Article 3 of that directive provides that that equipment must satisfy certain essential technical requirements set out in Annex I to that directive.

22It is thus apparent from those provisions, read in the light of recital 6 of Directive 97/23, that that directive aims to harmonise the essential requirements for the design and manufacture of pressure equipment, with regard to the risk due to pressure, so that that equipment can have the CE marking (see, by analogy, judgment of 17 December 2020, Germany v Commission, C‑475/19 P and C‑688/19 P, EU:C:2020:1036, paragraph 70) and not the conditions for the installation of such equipment.

23It is true that Annex I to Directive 97/23, which lists the essential technical requirements which pressure equipment must meet pursuant to Article 3 of that directive, in the section entitled ‘General’, states, in point 1.1, that ‘pressure equipment must be designed, manufactured and checked, and if applicable equipped and installed, in such a way as to ensure its safety’. However, in that provision, reference is made to the conditions for the installation of that equipment only by way of reference to the other applicable texts in that area. That annex therefore does not lay down any specific conditions for the installation of that equipment.

24The same is true of the reference to normal conditions of installation and use in Article 2(1) of Directive 97/23, which requires Member States to take all appropriate measures to ensure that the pressure equipment may be placed on the market and put into service only if it does not endanger the health and safety of persons ‘when properly installed and maintained and used for [its] purpose’. Nor does that provision lay down any condition concerning the installation of that equipment.

25As regards, in the second place, Article 4(1)(1.1) of Directive 97/23, it is apparent from that provision that Member States may not, on grounds of the hazards due to pressure, prohibit, restrict or impede the placing on the market or putting into service, under the conditions specified by the manufacturer, of pressure equipment which complies with the provisions of that directive and bears the CE marking so as not to undermine the objective of harmonising the national provisions pursued by that directive with regard to those risks. However, that provision does not prohibit Member States from taking measures to prevent risks other than those due to pressure, so that such equipment can be placed on the market and put into service without compromising the health and safety of persons.

26In the third place, Article 2(2) of Directive 97/23 expressly provides that the provisions of that directive do not affect Member States’ entitlement to lay down, with due regard to the provisions of the Treaty, such requirements as they may deem necessary to ensure that persons are protected, in particular during use of the pressure equipment, provided that that does not mean modifications to such equipment or assemblies when they comply with that directive.

27Among the specific provisions of the Treaty which the Member States are required to comply with when exercising the entitlement conferred on them by Article 2(2) of Directive 97/23, it is necessary, in the light of the objective pursued by that directive, namely to eliminate obstacles to the free movement of pressure equipment within the internal market, to refer to Articles 34 and 36 TFEU which govern the free movement of goods and prohibit, between Member States, quantitative restrictions on imports and all measures having equivalent effect.

28In that regard, it follows from settled case-law that measures adopted by a Member State the object or effect of which is to treat products coming from other Member States less favourably are to be regarded as measures having equivalent effect to quantitative restrictions prohibited by Article 34 TFEU, as is any other measure which hinders access of products originating in other Member States to the market of a Member State, unless they can be objectively justified on one of the public interest grounds set out in Article 36 TFEU or in order to meet imperative requirements in the public interest. In either case, the national provisions must be appropriate for securing the attainment of the objective pursued and not go beyond what is necessary in order to attain it (see, to that effect, judgment of 10 February 2009, Commission v Italy, C‑110/05, EU:C:2009:66, paragraphs 37 and 59 and the case-law cited).

29In the present case, the referring court states that the conditions imposed by the regulation of 20 March 2012, namely the obligation to ventilate cavities where natural gas pipelines are installed and the prohibition on the installation of those pipelines within concrete slabs or within flooring so that they remain accessible, do not lead to any modification of the material sold by the applicant in the main proceedings, which, moreover, is not disputed by the parties to the main proceedings, and those conditions are aimed at ensuring the safety of persons in the light of risks that exist due to factors that are external to pressure equipment, such as earthquakes.

30Furthermore, the referring court considers that the provisions of the regulation of 20 March 2012 comply with Article 36 TFEU since they apply to all types of pipes irrespective of the material used or the country of origin, have been deemed necessary by the competent national authority in order to ensure the health and safety of persons, and comply with the principle of proportionality.

31In the light of all the foregoing considerations, the answer to the questions referred by the referring court is that Article 4(1)(1.1) of, and Annex I to, Directive 97/23, read in conjunction with Article 2(2) of that directive, must be interpreted as not precluding national legislation which, in order to ensure the safety of persons, in particular against earthquakes, lays down certain methods of installation for pressure equipment, such as pipes for the transport of gas, including those with the CE marking, provided that that legislation does not lead to any modification of that equipment and does not constitute an obstacle prohibited by Articles 34 and 36 TFEU.

Costs

32Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Ninth Chamber) hereby rules: Article 4(1)(1.1) of, and Annex I to, Directive 97/23/EC of the European Parliament and of the Council of 29 May 1997 on the approximation of the laws of the Member States concerning pressure equipment, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, read in conjunction with Article 2(2) of Directive 97/23, must be interpreted as not precluding national legislation which, in order to ensure the safety of persons, in particular against earthquakes, lays down certain methods of installation for pressure equipment, such as pipes for the transport of gas, including those with the CE marking, provided that that legislation does not lead to any modification of that equipment and does not constitute an obstacle prohibited by Articles 34 and 36 TFEU.