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

JUDGMENT OF THE COURT (Second Chamber)

5 April 2001 (1)

(Failure by a Member State to fulfil its obligations - Undisputed failure - Directive 73/23/EEC - Electric water heaters - Conditions not prescribed by the directive)

In Case C-100/00,

Commission of the European Communities, represented by R.B. Wainwright and G. Bisogni, acting as agents, with an address for service in Luxembourg,

applicant,

v

Italian Republic, represented by U. Leanza, acting as agent, assisted by G. Aiello, avvocato dello Stato, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by subjecting electric storage water heaters to safety conditions not prescribed by Council Directive 73/23/EEC of 19 February 1973 on the harmonisation of the laws of Member States relating to electrical equipment designed for use within certain voltage limits (OJ 1973 L 77, p. 29), and thus not recognising the presumption of compliance with the safety conditions of products manufactured in accordance with standard EN 60335-2-21, the Italian Republic has failed to fulfil its obligations under Community law,

THE COURT (Second Chamber),

composed of: V. Skouris, President of the Chamber, R. Schintgen and N. Colneric (Rapporteur), Judges,

Advocate General: F.G. Jacobs,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 18 January 2001,

gives the following

Judgment

1. By application lodged at the Court Registry on 16 March 2000, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by subjecting electric storage water heaters to safety conditions not prescribed by Council Directive 73/23/EEC of 19 February 1973 on the harmonisation of the laws of Member States relating to electrical equipment designed for use within certain voltage limits (OJ 1973 L 77, p. 29), and thus not recognising the presumption of compliance with the safety conditions of products manufactured in accordance with standard EN 60335-2-21, the Italian Republic has failed to fulfil its obligations under Community law.

2. Electric storage water heaters fall within the scope of Directive 73/23. Article 3 provides that the Member States are to take all appropriate measures to ensure that the free movement of electrical equipment is not impeded for reasons of safety.

3. According to Article 5 of Directive 73/23, electric water heaters manufactured in compliance with harmonised standard EN 60335-2-21 must be regarded as complyingwith the conditions prescribed by the directive. The abovementioned standard provides in particular that water heaters must contain a device which cuts off the electricity supply when the water temperature reaches 130°C.

4. However, Italian law provides that the thermostatic device with which water heaters must be fitted in accordance with the standard must be set so as not to allow the temperature to exceed 100°C.

5. Taking the view that the condition thus prescribed constitutes an infringement of Directive 73/23, the Commission initiated the infringement procedure. After giving the Italian Republic formal notice to submit its observations, the Commission, on 30 January 1997, sent that Member State a reasoned opinion calling on it to take the necessary measures to comply with that opinion two months from its notification. Since the Italian Republic failed to do so, the Commission brought the present action.

6. The Italian Republic no longer contests the infringement and states that it will make sure to put an end to it.

7. That being so, and in view of the matters set out in paragraphs 3 and 4 of this judgment, it must accordingly be held that, by subjecting electric storage water heaters to safety conditions not prescribed by Directive 73/23 and thus not recognising the presumption of compliance with the safety conditions of products manufactured in accordance with standard EN 60335-2-21, the Italian Republic has failed to fulfil its obligations under that directive.

   Costs

8. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Italian Republic has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (Second Chamber)

hereby:

1. Declares that, by subjecting electric storage water heaters to safety conditions not prescribed by Council Directive 73/23/EEC of 19 February 1973 on the harmonisation of the laws of Member States relating to electrical equipment designed for use within certain voltage limits, and thus not recognising the presumption of compliance with the safety conditionsof products manufactured in accordance with standard EN 60335-2-21, the Italian Republic has failed to fulfil its obligations under that directive;

2. Orders the Italian Republic to pay the costs.

SkourisSchintgen Colneric

Delivered in open court in Luxembourg on 5 April 2001.

R. Grass V. Skouris

Registrar President of the Second Chamber

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1: Language of the case: Italian.