Case C‑171/11, Fra.bo SpA

Can Article 28 EC (now Article 34 TFEU) be applied to a private-law certification body?

>> Fra.bo was an undertaking established in Italy which manufactured and sold copper fittings. The DVGW was a non-profit body governed by private law, set up in 1859, the object of which, according to its Acts of association, was to promote the gas and water sector. The DVGW was recognised in Germany as a “public benefit” body.
For the water sector, there were approximately 350 standards drew up by the DVGW. Technical standard W 534 was relevant to the dispute in the main proceedings. It served as the basis for certification, on a voluntary basis, of products which came into contact with drinking water.

In 1999, Fra.bo applied to the DVGW for certification of the copper fittings at issue in the main proceedings. In November 2000, the DVGW granted a water industry certificate for a period of five years.
After complaints by third parties, the DVGW instituted a re-assessment. In June 2005 the DVGW cancelled Fra.bo’s certificate for copper fittings on the ground that it had not submitted a positive test report on the 3 000-hour test. The DVGW also rejected an application for extension of the certificate on the ground that compliance certificates could no longer be extended.

Fra.bo brought an action against the DVGW before the Landgericht Köln (Regional Court, Cologne), arguing that the cancellation and/or the refusal to extend the certificate was contrary to European Union law. As a private-law association, the DVGW considered that it was not bound by the provisions governing the free movement of goods and that only Germany was required to answer for any infringements of Art. 28 EC. Consequently, there was nothing preventing the DVGW from drawing up technical standards which went beyond those in place in Member States other than Germany and to apply them to its certification activities. It was also free, on quality-related grounds, to take account only of laboratories accredited by it. Moreover, it argued that as a standard-setting body, it did not pursue economic activities for the purpose of agreements, with the result that Article 81 EC did not apply in the present case.
The Oberlandesgericht Düsseldorf asked the Court of Justice whether Art. 28 EC must be interpreted as meaning that it applied to standardisation and certification activities of a private-law body, where the national legislation considered the products certified by that body to be compliant with national law and that had the effect of restricting the marketing of products which were not certified by that body.

The Court of Justice reiterated that all rules enacted by Member States which were capable of hindering, directly or indirectly, actually or potentially, intra-Community trade were to be considered as measures having an effect equivalent to quantitative restrictions, prohibited by Art. 28 EC (Case 8/74 Dassonville [1974]; Case C270/02 Commission v Italy [2004]. Thus, the mere fact that an importer might be dissuaded from introducing or marketing the products in question in the Member State concerned constituted a restriction on the free movement of goods for the importer (Case C286/07 Commission v Luxembourg [2009]).

The Court also reiterated that a Member State fails to fulfil its obligations under Arts 28 EC and 30 EC when, without valid justification, it encourages economic operators wishing to market in its territory construction products lawfully manufactured and/or marketed in another Member State to obtain national marks of conformity or when it refused to recognise the equivalence of approval certificates issued by another Member State (see, to that effect, Case C432/03 Commission v Portugal [2005]).

The Court pointed out that the DVGW was a non-profit, private-law body whose activities were not financed by Germany. Moreover, that Member State had no decisive influence over the DVGW’s standardisation and certification activities, although some of its members were public bodies.

The Court held that DVGW, by virtue of its authority to certify the products, in reality held the power to regulate the entry into the German market of products such as the copper fittings at issue in the main proceedings.
Accordingly, the Court found that Article 28 EC must be interpreted as meaning that it applied to standardisation and certification activities of a private-law body, where the national legislation considered the products certified by that body to be compliant with national law and that had the effect of restricting the marketing of products which were not certified by that body.