The Commission’s Approach to European Conformity: The System of CE Marking
-
A Legal Analysis of the Use of National Conformity Marks exemplified by the Im-plementation of the European Construction Products Regulation in Germany and
the Netherlands
Author: Larissa Felicitas Flügge
E-mail: larissa.fluegge@googlemail.com Student number: 12681776
Mastertrack: European Union Law Supervisor: Dr. Ronald van Ooik Word count: 12 995
ABSTRACT
The free movement of goods within the single market constitutes one of the cornerstones of the European Union. But in order to enjoy the benefits of the single market, manufac-turers have to take European safety legislation into account when launching their prod-ucts. One way to demonstrate a product complies with relevant European requirements and standards is the application of the CE marking symbol. Contrary to the opinion of many stakeholders, the CE marking neither equals a quality mark, nor a marketing tool. In fact, it solely indicates a product complies with specific product requirements under EU law. Since every Member State used to lay down their own product requirements, the Commission established a set of CE directives and regulations in order to harmonize na-tional laws of product safety and technical standards, thereby simplifying the complex CE conformity procedure for manufacturers. This approach is known as the New Legis-lative Framework.
Nonetheless, several Member States are still using national quality marks in addition to the CE marking to demonstrate that certain products also comply with national safety and health requirements. This Thesis thus explores whether these national marks are compat-ible with European CE marking. This might raise the question whether national marks influence the purchase behavior of consumers by creating confusion and distorting com-petition between Member States. The analysis will focus on the objectives of the Com-mission’s new approach regarding European conformity by means of two judgments in-volving Member States (mis)using national conformity marks in the construction sector: Germany and the Netherlands. By comparing their national marks with European CE marking, this research will illustrate that national marks go against the initial objectives of the Commission’s approach. The Thesis aims to identify and describe the legal system of CE marking, by subsequently assessing whether national quality marks are still neces-sary, if not illegitimate, taking into account the Commission’s new harmonization ap-proach.
LIST OF ABBREVIATIONS
CEN European Committee for Standardization
CENELEC European Committee for Electrotechnical Standard-ization
CJEU Court of Justice of the European Union
CPD Construction Products Directive
CPR Construction Products Regulation
EEA European Economic Area
ETSI European Telecommunication Standards Institute
EU European Union
Table of Contents
ABSTRACT ... II LIST OF ABBREVIATIONS ... III
Introduction ... 1
Chapter I The European Legislative Framework ... 3
A. The European Single Market ... 3
I. The European Harmonization Project ... 4
1. The ‘old approach’ ... 5
2. The ‘new approach’ ... 6
a. Harmonized Standards and Directives ... 8
b. Interim Conclusion ... 10
II. The New Legislative Framework ... 10
B. CE Conformity Marking ... 12
I. The Council Decision on CE Conformity Marking ... 12
1. Directives affected by CE Marking ... 13
a. Legal Effects, Consequences and Benefits of CE Marking ... 14
b. CE Marking Assessment Procedure ... 16
2. The Relationship between CE Marking and Other (National) Markings ... 17
II. CE Marking and the Issue of Legal Uncertainty ... 18
III. The Construction Products Regulation ... 19
Chapter II The New Legislative Framework on National Level: The Use of National Conformity Marks ... 22
A. The Use of National Conformity Marks ... 22
I. The Construction Products Regulation in Germany ... 23
1. The Application of the German ‘Ü-mark’ ... 24
a. CJEU Judgment C-100/13: Commission vs. Germany ... 24
b. Effects of the Judgment ... 28
2. Interim Conclusion ... 30
II. The Construction Products Regulation in the Netherlands ... 31
1. The Application of the Dutch ‘KOMO’ mark ... 31
a. The ‘Desmepol’ Judgment of the Council of State ... 32
2. Interim Conclusion ... 37
B. Outlook and Recommendations ... 37 Conclusions ... 41 BIBLIOGRAPHY ... VI APPENDICES ... XVIII
Introduction
Launching a product on the European market involves many people of the supply chain, such as the manufacturer, the importer, the seller and, ultimately, the consumer benefit-ting from the product. Within this process, the European Union (EU) has to ensure that only safe products find their way to the European internal market. Therefore, European legislation lays down certain product requirements and responsibilities for economic op-erators before launching their products. Assuming a Dutch manufacturing company has been appointed to sell their exterior doors to a German construction company which is assigned to build a new elementary school in a German city. Before the Dutch company is able to sell these doors, it has to ensure that they comply with relevant European build-ing legislation laybuild-ing down EU safety, health and environmental requirements.
Within the European internal market, conformity with European safety requirements shall be demonstrated by using the CE marking, which needs to be affixed by the manufacturer on his product in order to sell it on the market. In the given example, the Dutch construc-tion company has to ensure that their exterior doors bear the CE marking, thereby demon-strating that they comply with European standards for construction products. These con-formity standards are essential to protect the consumers exposed to hazards, such as toxic construction materials emanated from products. Consequently, the EU has to provide for safeguarding measures in order to ensure that only safe products are placed on the market.
This research thus addresses the purpose behind product safety regulations and shall in-crease the awareness of the CE marking system by providing an overview of European harmonized safety legislation. The Thesis is subdivided into two chapters: the first chap-ter will illustrate the background and the intended purpose of European conformity mark-ing by explainmark-ing its developments against the background of the European smark-ingle market. After pointing out the objectives of CE marking legislation, this research will focus on challenges economic operators and other stakeholders are exposed to. Manufacturers spe-cifically face difficulties when selling their products in Member States that still use na-tional certifications and quality marks next to CE marking.1 These national marks are
1 Commission, Guidance Document on (EC) No 764/2008, para. 4.1; Egan, Constructing a European
especially used in the construction sector.2 Therefore, this Thesis will examine the
Euro-pean Construction Products Regulation in detail before analyzing the actual impact of national marks exemplified by the approach of two Member States: Germany and the Netherlands.
Since Germany’s prosperity clearly depends on foreign trade, thereby benefitting from the European single market3, it is important to address national mechanisms which may
hinder export and therefore jeopardize the internal market objectives. Moreover, Ger-many and the Netherlands have established long-standing commercial relations. Their products are exported all over the world and, in addition to the classic manufacturing sector, often end up in other adjacent sectors such as food and agriculture, medical or oil and gas extraction. The use of national quality marks could potentially endanger the com-mercial relationship between Germany and the Netherlands. This finding thus invites deeper comparative study of how both countries deal with standardization challenges.
The question posed is whether manufacturers are obliged to obtain these national marks, if their products fall under harmonized European standards and thus already bear the CE marking. Member States could argue that effective market access and the procedure for attaining the CE marking may be undermined if national marks are used additionally. Hence, this research addresses the question to what extent national (quality) marks con-stitute a barrier to trade within the EU. In attempting to answer this question, the Thesis provides for a legal analysis of the current status regarding national marks in Germany and the Netherlands from an external and comparative perspective with special reference to the objectives of harmonized CE marking legislation on EU level.
Since the CE marking system represents a complex system of rules and regulations, it is necessary to reconstruct the background and the systematic approach of the Commission in terms of product safety. The goal of this research is to identify and analyze the legal system regarding CE marking on European and national level by pointing out the issues and effects resulting from the use of national marks.
2 Commission (2016) 445 final, p. 5.
3 EPLF e.V./ MMFA e.V.,
Chapter I
The European Legislative Framework
A. The European Single Market
The single market constitutes one of the cornerstones of the EU.4 Focusing on the free
movement of goods, services, people and capital, the single market aims to prevent bar-riers to trade, business and traveling within the EU.5 The development of the single
mar-ket therefore implicates auspicious benefits not only for EU citizens, but also for EU trad-ers and businesses.6 Part of the EU single market are the 27 EU Member States as well as
the EEA countries Iceland, Liechtenstein and Norway.7 Although Switzerland is neither
an EU, nor an EEA member, it is part of the single market through bilateral agreements and its citizens can therefore enjoy the same free movement rights.8
Particularly for traders, the right to free movement of goods9 increases competition and
ensures that products can be traded efficiently and freely, thereby enhancing economic integration within the EU.10 This is primarily achieved by the customs union pursuant to
Art. 30 TFEU and the prohibition of discrimination and quantitative restrictions on trade.11 Referring to that, the CJEU went even further in the late 1970s and established
the principle of mutual recognition in its famous Cassis de Dijon judgment.12 According
to that, the host Member State is obliged to accept goods which were produced lawfully in the home Member State, unless the host State can invoke reasons for a contrary as-sumption.13 On this account, barriers to the free movement of goods can be solely
ap-proved if the national measure considered as hindering the free movement is necessary to
4 Schütze, EU Law, p. 248; Commission, A deeper and fairer Single Market, p. 1. 5 Commission, https://ec.europa.eu/growth/single-market_en.
6 Katainen / Cox, Le Europe, p. 4.
7 Damen / Garcés de los Fayos,
https://www.europarl.europa.eu/factsheets/en/sheet/169/the-european-economic-area-eea-switzerland-and-the-north.
8 Bilateral Agreement OJ L 300, 1972; Pelkmans / Hanf / Chang, The EU Internal Market in Comparative
Perspective, p. 232, albeit, according to the authors, with limited access.
9 Art. 28 TFEU.
10 Barnard/Peers, EU Law, p. 319. 11 Ibid.
12 Case C 120/78 Cassis de Dijon [1979]. 13 Ibid, p. 659.
satisfy mandatory requirements, such as public health or the environment.14 Moreover, it
must serve a legitimate purpose which prevails over the free movement of goods and can be considered proportionate.15 Hence, due to the notion of mutual recognition, those
prod-ucts can move freely throughout the Member States and the EEA countries without being subject to further investigation.16 Besides, the CJEU clarified in Cassis de Dijon that in
case a certain field is not exhaustively harmonized by the EU, Member States are allowed to legislate on national level within the Treaty framework.17 Therefore, the principle of
mutual recognition contributed to the success of the internal market, as it achieved to eliminate any obstacles and barriers to the free movement of goods in the non-harmonized sector.18
I. The European Harmonization Project
Since the free movement of goods implicates tremendous advantages for manufacturers, sellers and consumers, the Commission must ensure that European legislation provides clear and transparent instruments and standards in order to unlock the full potential of the internal market.19 This approach by the Commission is known as the single market
strat-egy.20 According to that, EU products are subject to harmonized safety rules in order to
protect the environment, public health and particularly the consumer.21 Due to the
diver-sity of national laws, harmonization may be necessary in order to avoid a fragmentation of national product safety rules.22
European legislation in terms of CE marking has the purpose of enhancing free movement of goods by harmonizing entire commercial sectors, such as, inter alia, toys, building materials, machines or gas appliance.23 Therefore, Art. 114 (1) TFEU is the legal basis
for the harmonization of national laws containing product safety and technical
14 Ibid. 15 Ibid.
16 Messerlin, AJIA, p. 410. 17 Ibid, p. 655.
18 Janssens, The Principle of Mutual Recognition in EU Law, p. 123. 19 Commission, https://ec.europa.eu/growth/single-market/strategy_en. 20 Ibid.
21 Ibid.
22 Ibid; Schütze, EU Law, p. 251. 23 Council Decision 93/465/EEC.
requirements.24 According to Art. 114 (3) TFEU, the EU has to guarantee a high level of
protection of the public interest.
The Commission promotes the free movement of goods by setting high safety and pro-tection standards for consumers and the environment.25 This approach is reflected by the
fact that the EU defined the most important principles and elements in Regulation (EC) No 764/2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State.26 Two important
phases of the Commission’s harmonization approach will be amplified in the following.
1. The ‘old approach’
Historically, the Commission’s approach regarding product safety has gone through sev-eral phases.27 Initially, the EU intended to eliminate any barriers and obstacles to the free
movement of goods within the internal market.28 This ‘old approach’ or ‘traditional
ap-proach’ focused on very detailed provisions, laying down technical and administrative requirements for goods in order to allow them to ‘move’ freely within the EU.29
There-fore, since every Member State was allowed to set its own laws and standards, the national public authorities came up with extensive technical legislation leading to the fragmenta-tion of nafragmenta-tional laws.30
However, two main legal and practical issues occurred with this approach.31 On the one
hand, the large technical legislation was actually intended to conceal the public authori-ties’ lack of knowledge regarding public health, economy and safety issues.32 Therefore,
the public authorities themselves developed the first certificates of conformity, which producers and manufacturers were required to use in certain sectors.33 And on the other
24 Barnard / Peers, EU Law, p. 689.
25 Commission, https://ec.europa.eu/growth/single-market/goods_en. 26 Regulation (EC) No 764/2008.
27 Commission, Blue Guide, 2016/C 272, p. 6; Messerlin, AJIA, p. 410. 28 Commission, Blue Guide, 2016/C 272, p. 6.
29 Ibid; Messerlin, AJIA, p. 412. 30 Ibid, p. 414.
31 Commission, Blue Guide, 2016/C 272, p. 6. 32 Ibid.
hand, new legislation in technical fields required unanimity on EU level, thereby making the adaption of new technical legislation very cumbersome.34 Hence, contrary to the
ini-tial intention of the EU, the creation of detailed technical requirements actually resulted in new barriers and obstacles to the free movement of goods.35
In sum, the old approach was based on the assumption that only highly detailed harmo-nized technical specifications could reconcile the Member States’ different interests.36
However, due to the variety of existing products, this approach led to a very slow and burdensome process which was almost impossible for national authorities to cope with.37
Hence, the Commission opted for a new approach in order to ensure both a high level of protection as well as clear and transparent standards through the harmonization of na-tional laws.38
2. The ‘new approach’
Focusing on Cassis de Dijon and the principle of mutual recognition, the new approach led to important principles and guidelines in the field of European Conformity in 1985.39
The new approach aims to eliminate the different national legal and technical require-ments of the Member States, thereby recovering mistakes of the old approach and stimu-lating fair competition within the EEA.40
The new approach is based on four assumptions: (1) harmonization of legislation shall be limited to essential requirements, (2) only products that meet these essential requirements may be placed on the market, (3) members of the European standard organizations CEN and CENELEC are obliged to adopt a European standard and (4) the application of the harmonized standards remains voluntary.41
34 Ibid. 35 Ibid.
36 Messerlin, AJIA, p. 414.
37 Ibid, p. 413; Delaney / van de Zande, NIST, p. 2. 38 Ibid, p. 415.
39 Commission, Blue Guide, 2016/C 272, p. 7. 40 Lohbeck, EDN, p. 1.
41 Lohbeck, CE Marking Handbook, xii; Messerlin, AJIA, p. 415; Commission, Blue Guide, 2016/C 272,
The EU therefore opted for Regulation (EU) No. 1025/2012 on European standardization laying down obligatory harmonized essential requirements, which are ensured by a har-monized conformity assessment policy.42 A guideline for the implementation of
direc-tives based on the new approach has been developed by the Commission’s so-called Blue Guide.43
As regards the extent of harmonization, the new approach directives and regulations are based on total harmonization since they substitute diverging domestic laws in the field of product safety.44 The fact that they shall be limited to the essential requirements, meaning
that European legislation shall only lay down performance and functional requirements45,
does not contradict this perception. In fact, the detailed rules are set up by European standardization bodies, such as CEN and CENELEC and therefore also constitute Euro-pean harmonized legislation.46 Consequently, Member States may not adopt measures
which are stricter than those set in the directives and regulations.47 The Commission
in-tended to promote the free circulation of products within the EU and opted for consistent European standardization.48 With this goal in mind, it considered complete harmonization
of national product safety laws necessary.49 This is also justified by the value assigned to
consumer protection within the EU, meaning that European law shall be the only source in the field of consumer protection to guarantee uniform legislation without national au-thorities to implement lower or higher standards.50 A uniform approach through total
har-monization thus not only simplifies trade across borders, but also enhances consumer protection among Member States.51
42 Regulation (EU) No. 1025/2012. 43 Commission, Blue Guide, 2016/C 272.
44 Preamble, Council Decision 93/465/EEC; European Committee for Standardization,
https://boss.cen.eu/reference%20material/guidancedoc/pages/newapproach.aspx; s. also Annex II of Council Resolution 85/C 136/01, stating that the directives would provide for total harmonization as a general rule; Commission (2016) 445 final, p. 5.
45 Commission, Blue Guide, 2016/C 272, p. 8. 46 Barnard/Peers, EU Law, p. 320.
47 Ibid; s. also Commission (2016) 445 final, p. 4, where the Commission claims that the adoption of
Member States' own approaches would hamper consistency and contribute to the fragmentation of the single market.
48 Barnard/Peers, EU Law, p. 687; Commission, Blue Guide, 2016/C 272, p. 8 49 Ibid.
50 Barnard/Peers, EU Law, p. 690. 51 Ibid.
Furthermore, the new approach consists of four important concepts: harmonized stand-ards, harmonized directives (known as new approach directives), harmonized conformity assessment procedures and CE marking.52 This part of the Thesis shall inform the reader
about the concepts of harmonized standards and directives, whereas the following part will deal with CE marking and its conformity assessment procedure in detail.
a. Harmonized Standards and Directives
With the new approach, the task of drawing up technical specifications is performed by competent European standards organizations, such as CEN, CENELEC or ETSI. Harmo-nized standards, also known as European norms (EN), are European technical specifica-tions which are adopted by these European standard organizaspecifica-tions.53 Those standards are
established by the European Commission, submitting a request to one of these organiza-tions.54 Manufacturers can use these harmonized standards to demonstrate their products
comply with EU legislation.55 Since harmonized standards are only laid down in
Euro-pean directives, Member States have to implement these standards fully into national law.56 These national standards have to be published in the Official Journal of the EU
(OJEU) in order to make them available for economic operators.57 On this account, it is
important that national standardization bodies update their lists of harmonized standards regularly to ensure economic operators always have access to the latest version of harmo-nized standards.58
Hence, the new approach is based on two important assumptions: on the one hand, Euro-pean directives lay down essential requirements in order to guarantee the quality of prod-ucts. On the other hand, national public authorities remain responsible to protect their territory by monitoring EU products on the market.59
52 Lohbeck, EDN, p. 1.
53 Delaney / van de Zande, NIST, p. 11. 54 Lohbeck, CE Marking, p. 42. 55 Ibid.
56 Lohbeck, CE Marking, p. 11; Rott, Certification-Trust, Accountability, Liability, p. 86.
57 Commission, https://ec.europa.eu/growth/single-market/european-standards/harmonised-stanards_en.;
Lohbeck, CE Marking, p. 4.
58 Ibid.
Put simply, harmonized standards provide a presumption of conformity with the essential requirements they tend to cover.60 Since the new approach also aims to prevent extensive
technical legislation, EU harmonization tends to limit legislation to several essential re-quirements that are of public interest, such as public health, user’s safety and the environ-ment.61 Essential Requirements can be basically found in annexes of the relevant EU
di-rectives and regulations.62
Although the application of harmonized standards is voluntary, many economic operators refer to these standards in order to demonstrate their products are manufactured following EU legislation.63 This can be explained by the fact that other technical specifications do
not benefit from the presumption of conformity.64 However, the principle of presumption
does only apply if the harmonized standard, to which the manufacturer refers to, has al-ready been published in the Official Journal.65 If a manufacturer chooses to not apply
harmonized standards, it is his obligation to demonstrate the conformity of his product with EU legislation by different means.66 The use of harmonized standards may be also
advantageous for the effectiveness of the internal market, as the conformity assessment procedure for economic operators is simplified, thereby preventing excessive demands for public authorities.67
In sum, the developments in technical harmonization and standards of products have led to several European (new approach) directives, applicable to the industrial sector.68 Each
directive thus now contains specific European harmonized standards. EN standards pro-vide for a way to meet the essential requirements of the relevant EU directives in a certain
60 Commission, Blue Guide, 2016/C 272, p. 40. 61 Ibid, p. 39.
62 S. e.g.: Annex 1 of Directive 98/79/EC; Annex 1 of Directive 2006/24/EC. 63 Lohbeck, CE Marking, p. 11.
64 Ibid.
65 Ibid; Tricker, CE Conformity Marking, p. 51;
66 Lohbeck, CE Marking, p. 11; e.g. through technical specifications which are not harmonized and thus
not published in the OJEU.
67 Ibid.
industrial field.69 Whereas EU directives are mandatory, the application of EN standards
remains voluntary.70
b. Interim Conclusion
In essence, the Commission’s new approach on the implementation of EU product safety rules has created a new level playing field for economic operators and industries in order to sell their products efficiently while, simultaneously, promoting competition as well as protecting consumers in the EU.
Nonetheless, legal enforcement mechanisms are essential to transfer the revised system of harmonized standards and directives effectively. In this regard, a completely new EU legislative framework was deemed necessary.71 After more than 20 years, the new
ap-proach has been revised and updated. Therefore, the so-called New Legislative Frame-work was adopted in 2008, which is amplified in the Commission’s Blue Guide.72
II. The New Legislative Framework
In order to improve enforcement of the new approach directives and regulations, the Com-mission started an initiative together with the Member States, focusing on certain ele-ments of the new approach which needed change in order to be more effective.73 A
Coun-cil Resolution thus followed in 2013, holding the title ‘Enhancing the implementation of the New Approach Directives’.74 The major elements which required revision were the
overall coherence and consistency, the conformity assessment procedure and CE mark-ing.75 The revision of these elements was subject to the new legislation, adopted by the
Council and the European Parliament in 2008. This new legislation consists of Regulation 765/2008/EC and of Decision 768/2008/EC.76
69 Lohbeck, CE Marking, p. 45. 70 Ibid.
71 Commission, Blue Guide, 2016/272, p. 9. 72 Ibid.
73 Tricker, CE Conformity Marking, p. 1. 74 Council Resolution 2003/C 282/02. 75 Commission, Blue Guide, 2016/C 272, p. 9.
76 Commission, https://ec.europa.eu/growth/single-market/goods/new-legislative-framework_en;
Regulation 765/2008/EC sets up the requirements and the legal basis for accreditation and market surveillance as well as a consolidated version of CE marking and the labeling of products.77 Furthermore, Decision 768/2008/EC aims to harmonize and consolidate
technical instruments of the already existing framework.78 Therefore, the Decision
estab-lishes a framework for the marketing of products and includes criteria as regards con-formity assessment bodies and procedures, responsibilities of the economic operators and consolidated rules for CE marking.79 These two legislative actions thus provide for the
New Legislative Framework by establishing a new structure in terms of a transparent and stable regulatory framework.80
The purpose of the New Legislative Framework is two-fold: on the one hand, it clarifies definitions and responsibilities of the economic operators and on the other hand, it em-phasizes the relationship between the economic operators and the consumers by obliging the former to provide their customers with more transparent information in order to strengthen their responsibilities.81 The New Legislative Framework is hence focusing on
the responsibilities within the supply circle, which are subject to the control of market surveillance authorities in order to make sure that only safe products reach the consum-ers.82 Referring to that, a product is now not only subject to scrutiny after it was already
placed on the market.83 In fact, the New Legislative Framework brought market access to
an earlier stage, namely when the product was made available on the market, hence when entering the EU.84 This new market access approach differs from the traditional free
movement of goods language and illustrates the reason behind the revision of the market surveillance system, laying in the facilitation of tracing back noncompliant products to the manufacturer.85
77 Maynard, IEEE, II, B.
78 Commission, Blue Guide, 2016/C 272, p. 10. 79 Maynard, IEEE, II, B.
80 Commission, Blue Guide, 2016/C 272, p. 10. 81 Ibid.
82 Maynard, IEEE, II, b. 83 Messerlin, AJIA, p. 422.
84 Ibid; Commission, Blue Guide, 2016/C 272, p. 10. 85 Commission, Blue Guide, 2016/C 272, p. 9.
In a nutshell, the New Legislative Framework reinforces the responsibility of all eco-nomic operators and provides for a clear harmonized legislative framework, supporting the economic operators in making their products legally available on the market.86 The
New Legal Framework focuses on an efficient market of EU conform products through exhaustive harmonization.87
One of the major subjects which was revised according to the New Legislative Frame-work constitutes the CE Conformity Marking, which was also subject to full harmoniza-tion.88 Whereas prior to the new approach it was designated as ‘CE mark’, it is now
la-belled as ‘CE marking’, covering a large field of EU conformity.89
The following part will thus amplify the main characteristics of CE marking as well as the structure and potential problems arising from this European harmonization tool.
B. CE Conformity Marking
The CE marking90 is a symbol that either the manufacturer or its authorized representative
has to affix on his product or machine to indicate that it complies with the relevant Euro-pean safety standards laid down in the new approach directives and regulations.91 CE
stands for the French phrase ‘Conformité Européenne’, meaning ‘European Conformity’ and is applicable within the EEA and the Turkish market.92
I. The Council Decision on CE Conformity Marking
The Council Decision on CE Conformity Marking 93/465/EEC became effective in 1997 and lays down the CE marking aims the Member States have agreed on.93 According to
the Decision, ‘the aim of the CE marking is to symbolize the conformity of a product with the levels of protection of collective interests imposed by total harmonization
86 Ibid, p. 10.
87 Tricker, CE Conformity Marking, p. 2. 88 Commission, Blue Guide, 2016/c 272, p. 9. 89 Tricker, CE Conformity Marking, p. 87. 90 S. Appendix 1.
91 Ibid, p. 35; Wende, IEEE, p. 125; Egan, Constructing a European Market, p. 130. 92 Wende, IEEE, p. 125; Commission, Blue Guide, 2016/C 272, p. 58.
directives’.94 A product bearing the CE marking therefore indicates that the manufacturer
has undergone the necessary evaluation phases laid down in EU law.95 The Decision
fur-ther stipulates that the use of the CE marking in technical harmonization directives is essential to enable national authorities to ensure that products comply with EU health and safety legislation to protect users and consumers.96
The CE marking thus not only facilitates the implementation of a product within the EU, but also simplifies product safety surveillance for public authorities in order to guarantee a high level of consumer protection. To strengthen these aims, the Decision stipulates that the CE marking directives constitute total harmonization directives.97 The Council further
agreed on solely using the CE marking to demonstrate conformity of industrial products with the new approach directives.98
1. Directives affected by CE Marking
In total, 28 new approach directives and regulations lay down the requirements for indus-trial products and the conformity assessment procedure, all covered by the Council Deci-sion on CE Conformity Marking.99 Considering the new approach directives do not
nec-essarily contain health or safety requirements, they must be seen together with the rele-vant European standards, covering health, environmental and safety concerns.100 CE
marking is thus obligatory if an industrial device falls under one or more of the 28 direc-tives and regulations.101
Finding the relevant laws can be challengeable for economic operators, as it is not always clear which, and even whether, CE directives are applicable to a certain product.102 The
28 directives and regulations relate to the different industrial sectors, such as machinery, electrical equipment, construction products, medical devices or toys. On top of that, often
94 Ibid, Preamble. 95 Ibid.
96 Ibid, Annex, I, A, a). 97 Ibid.
98 Ibid; Commission, Blue Guide, 2016/C 272, p. 59. 99 S. Appendix 2.
100 Lohbeck, CE Marking, p. 11.
101 Commission, https://ec.europa.eu/growth/single-market/ce-marking_en. 102 Delaney / van de Zande, NIST p. 21.
more than one directives are applicable to one product.103 For instance, whereas
machin-ery is clearly regulated by the Machinmachin-ery Directive104, it can also be part of the Low
Voltage Directive105 in case the machinery is powered by electricity.106 In this case, the
latter Directive sets out the potential hazards which are associated with the electrical parts of the machine.107 In this case, the affixed CE marking would demonstrate that the
ma-chinery complies with all relevant CE directives.108
Since the manufacturer is responsible for affixing the CE symbol on his product, he is also responsible for finding the right directive(s).109 He remains responsible, even if he
decides to outsource the conformity assessment.110 Notably, directives and regulations
differ from each other in regard to their aims: directives, on the one hand, lay down the results which must be achieved, but shall leave to the Member States the choice of form and methods.111 Hence, Member States may decide themselves how to transpose an EU
directive into domestic law. On the other hand, regulations shall have general application and be binding in its entirety and directly applicable.112 This distinction may become
im-portant in terms of incongruent national laws and will be further examined in chapter two of this Thesis.
a. Legal Effects, Consequences and Benefits of CE Marking
If a product complies with relevant EU secondary law, it benefits from the free movement of goods as long as non-conformity is not proven.113 Within the internal market, that
prod-uct may not be subject to any restrictions and must thus be accepted by all EEA countries. This is the consequence of the so-called presumable effect: a product bearing the CE marking is presumed to be complied with the relevant requirements laid down in the new
103 Ibid, p. 17.
104 Directive 2006/42/EC. 105 Directive 2014/35/EU.
106 Delaney / van de Zande, NIST, p. 21. 107 Ibid. 108 Ibid. 109 Wende, IEEE, p. 125. 110 Lohbeck, CE Marking, p. 68. 111 Art. 288 (3) TFEU. 112 Art. 288 (2) TFEU.
approach directives and can move freely within the EEA.114 Due to this, CE marking is
also commonly referred to as a ‘passport’ to the European Market.115
In general, CE marking is mandatory for products which fall under one or more of the 28 CE directives and regulations.116 Notably, there are also products which are not covered
by secondary EU law and therefore do not require CE marking, i.e., for instance, phar-maceuticals, chemicals, cosmetics and food.117 In case a CE symbol is wrongly placed on
a product, it is national law which lays down the consequences.118 This is the reason why
the General Product Safety Directive gives national authorities the right to control non-conforming products.119 For instance, Member States may impose fines on a
manufac-turer, who has wrongly affixed the CE marking on his product.120 The General Product
Safety Directive also constitutes a maximal harmonization directive.121 Hence, Member
States may not implement higher measures than those stated in the Directive. Nonethe-less, the new approach encourages national authorities to supervise the performance of EU products and therefore facilitates cooperation between European and national author-ities.
Apart from that, it is the consumer who enjoys a high level of protection when using a CE marked product. In case the manufacturer applied harmonized standards to comply with the European requirements laid down in the directives and regulations, he declares that the current requirements for health, safety and environmental protection are fulfilled and thus benefits the consumer.122
However, solely affixing the CE marking on a certain product does not indicate to which directive(s) the manufacturer refers.123 He therefore has to provide a declaration of
114 Ibid.
115 Ibid; Egan, Constructing a European Market, p. 129.
116 Commission, https://ec.europa.eu/growth/single-market/ce-marking_en. 117 Tricker, CE Conformity Marking, p. 78.
118 Wende, IEEE, p. 126.
119 Council Directive 92/59/EEC. 120 Wende, IEEE, p. 126.
121 Barnard/Peers, EU Law, p. 704. 122 Lohbeck, CE Marking, p. 42.
conformity which contains all details of the applicable directive(s) as well as the standards the manufacturer relied upon.124 This declaration also intends to provide the necessary
information for national surveillance authorities to facilitate the supervision of the prod-ucts’ performances.125 By means of the manufacturer’s self-declaration, he can make sure
that the relevant directives are taken into account.126 As soon as the manufacturer signed
the declaration of conformity, he is liable for all steps taken in order to use the CE mark-ing, such as assessment, documentation and declaration.127
b. CE Marking Assessment Procedure
The CE-trajectory is a quite ambitious procedure, consisting of various steps, which eco-nomic operators have to traverse to comply with EU mandatory safety requirements.128
On this account, the manufacturer can perform a self-assessment of the product con-cerned, but he is also allowed to outsource the assessment to an authorized third-party.129
The conformity assessment procedure intends to provide the national surveillance author-ities with an assurance that a certain device is manufactured conform EU requirements as stipulated in the relevant directive(s) before placed on the market.130
Therefore, in order to ensure that the device complies with EU legislation, the manufac-turer or the authorized representative needs to determine the relevant directive(s), apply the relevant standards, carry out the conformity assessment and, ultimately, affix the CE marking symbol on the end product that will be placed on the market.131 In order to
sim-plify these phases, a clear and consistent legal framework on which the manufacturer can rely, seems indispensable, since the manufacturer remains responsible for the whole as-sessment procedure and should thus be provided with transparent and uniform rules on EU level.
124 Ibid.
125 Tricker, CE Conformity Marking, p. 61.
126 Twigg-Flesner, Journal of Consumer policy, p. 410. 127 Lohbeck, EDN, p. 2.
128 S. Tricker, CE Conformity Marking, p. 56, stating that eight separate modules are existent for
con-formity assessment.
129 Wende, IEEE, p. 125; Lohbeck, CE Marking, p. 53.
130 Commission,
https://ec.europa.eu/growth/single-market/goods/building-blocks/market-surveil-lance_en; Commission, Blue Guide 2016/C 272, p. 58.
131 Lohbeck, CE Marking, pp. 27, 37; Commission,
2. The Relationship between CE Marking and Other (National) Markings
In principle, the CE marking is the only marking that economic operators may use to certify that their products comply with EU product safety legislation and its intended high level of protection.132 To not undermine this fundamental characteristic, the Member
States have agreed on not using other conformity markings of their own national legal orders other than the CE symbol.133
Hence, industrial devices falling under the new approach directives only require the Eu-ropean CE marking to be considered safe; they do not need additional (national) mark-ings.134 This is also due to the fact that Member States are obliged to implement the CE
directives into national law.135 In fact, CE marking replaces all national markings which
existed before the new harmonization approach and may have the same meaning as CE marking.136 If a manufacturer wishes to affix another legal (national) marking in addition
to the CE marking, i.e. a protected trademark or a certification mark, EU legislation im-poses limits.137 An additional conformity mark is only permitted if it does not create
con-fusion to the consumer, for instance by preventing the visibility or legibility of the CE marking.138 According to EU law, national marks are allowed as long as they contribute
to the protection of public interests.139 Yet, they have to serve another purpose than that
of the CE marking, i.e. covering aspects, which are not encompassed by the new approach directives.140
However, an exception to this rule is conceivable if a directive explicitly foresees an ad-ditional mark which is solely complementary to CE marking and not overlapping it.141
132 Commission, Blue Guide, 2016/C 272, p. 63.
133 Council Decision 93/465/EEC, Annex I, B, e), considering that the Council consists of the Heads of
State of the Member States, the Decision lays down that Member States must refrain from introducing into their national regulations any reference to a conformity marking other than the CE marking in connection with conformity to all the provisions contained in the directives on CE marking; s. also
Tricker, CE Conformity Marking, p. 77.
134 Ibid, p. 79; Delaney / van de Zande, NIST, p. 35. 135 Commission, Blue Guide, 2016/C 272, p. 63.
136 Tricker, CE Conformity Marking, p. 80; Delaney / van de Zande, NIST, p. 35. 137 Ibid.
138 Ibid; Commission, Blue Guide, 2016/C 272, p. 63. 139 Commission, Blue Guide, 2016/C 272, p. 63. 140 Ibid.
According to some CE directives, national marks are permitted, such as the EU energy label for energy-related products.142 Those exceptions do not breach EU secondary law
since the additional marks do not replace CE markings, but in fact serve another pur-pose.143
II. CE Marking and the Issue of Legal Uncertainty
Although the new approach and its new legislative framework were meant to ensure trans-parency and consistency by harmonizing national safety standards, manufacturers have found themselves struggling in the large field of harmonized standards and CE mark-ing.144 In order to provide for a well-balanced image of the CE marking system and
par-ticularly for the purpose of this Thesis, it is necessary to discuss the difficulties arising from the CE marking rules.
First, many manufacturers are misinterpreting the value of the CE marking.145 By
over-stating its value, manufacturers expect high selling rates from over-stating that their products comply with European safety, health and environmental requirements. However, the CE marking does not constitute a quality mark.146 In fact, it merely states that a product
com-plies with European legislation and standards.147 More specifically, CE marking can be
solely seen as a self-declaration of the manufacturer or its authorized representative.148
Yet, it is true that a CE marked product gains access to the single market (‘passport’) and can move freely within the EEA. Nonetheless, it is neither a certification nor an approval mark.149
142 Ibid, p. 65. 143 Ibid.
144 Ibid; Commission, Analysis CPR, p. 5. 145 Lohbeck, CE Marking, p. 66.
146 Lohbeck, EDN, p. 1; Tricker, CE Conformity Marking, pp. 34, 36; OLG Frankfurt, 21 June 2012, 6 U
24/11, ECLI:DE:OLGHE:2012:0621:0621.6U24.11.0A, where the Higher Regional Court ruled that advertising with a CE-marked product as 'CE tested' is not permitted as it is against unfair competition; OLG Düsseldorf, 25 February 2016, I-15 U 58/15, ECLI:DE:OLGD:2016:0225.I15U58.15.00, where the Higher Regional Court ruled that the advertisement of a CE-marked product as 'CE tested' could confuse the consumer as regards the meaning of CE marking.
147 Commission, Blue Guide, 2016/ C 272, p. 63. 148 Ibid.
Second, the risks of non-conformity are often unclear to economic operators.150 In this
regard, the fact that the consequences of non-conform products are laid down in national law leads to ignorance and uncertainty of potential risks.151 Therefore, one could claim
that the directives and regulations are not transparent enough and do not inform manu-facturers properly as regards its risks and consequences.
Third, a lot of confusion may be at stake considering the plurality of laws in the field of CE marking. The fact that manufacturers need to find the relevant directives themselves causes a lot of uncertainty, which is, in fact, contrary to the new approach, aiming to improve transparency and legal certainty for the stakeholders.
It is therefore still disputed whether the Commission’s new approach managed to achieve its objectives and whether it has simplified conformity assessment in terms of product safety and European conformity. To assess whether these concerns are justified, the dis-cussion about the actual effects of the new harmonization approach on European level as well as on national level will be revisited in the course of this research.
In order to provide a more detailed picture and to dive into the matter of CE marking on European level, the following part will focus on one of the new approach directives and regulations, before illustrating the field of CE marking on national level. The Construc-tion Products RegulaConstruc-tion152 will thus serve as an example to offer a deeper insight into
CE marking and to provide the reader with the relevant information necessary for the second chapter, which will deal with national difficulties in the construction sector.
III. The Construction Products Regulation
The Construction Products Regulation (EU) No 305/2011 (CPR) is applicable since 1 July 2013 and replaces the Construction Products Directive 89/106/EEC153 (CPD) to
150 Lohbeck, CE Marking, p. 126.
151 This could lead to uncertainty, since manufacturers are also obliged to know the relevant national
leg-islation.
152 Regulation (EU) No 305/2011. 153 Council Directive 89/106/EEC.
simplify and improve the existing legal framework and its transparency154. By clarifying
concepts and definitions, the CPR shall increase the credibility of the new approach.155
The CPR aims to remove technical barriers to trade of construction products to make the single market work better.156 Art. 1 of the CPR lays down the conditions for construction
products by establishing harmonized rules regarding their performances and the use of CE marking. These harmonized rules ensure that consumers can determine the construc-tion product’s demands and guarantee that public authorities have access to reliable in-formation within one common structure.157 The CPR is therefore following the guidelines
set out in the CE Conformity Marking Decision mentioned above.
Hence, the CPR facilitates safe construction works within the EEA.158 It contains the
con-ditions for the marketing of construction products and includes methods and criteria in order to assess and finalize the performance of a construction product and to affix the CE marking.159 This system can only be efficient, if a uniform application on EU level is
ensured.160 Therefore, the CPR lays down that the harmonized conditions must be set on
EU level, meaning that Member States shall refrain from adopting own approaches for marketing construction products.161
Certainly, the CPR is also subject to market surveillance.162 National authorities have to
make sure that their countries comply with the CPR. In case a product does not comply with the CPR, the surveillance authorities must immediately inform the manufacturer, who is obliged to adjust its product in a way that it is compliant with the Regulation or to withdraw it from the market.163
154 Preamble (8) Regulation (EU) No 305/2011; Commission Report on CPR 2017, p. 13. 155 Commission (2016) 445 final, p. 3.
156 Ibid; Borthwick, Analysis of the Impact of CPD, p. 44. 157 Commission (2016) 445 final, p. 4.
158 Commission, Analysis CPR, p. 1.
159 Art. 1 Regulation (EU) 305/2011; Commission, Analysis CPR, p. 1; Commission,
https://ec.eu-ropa.eu/growth/sectors/construction/product-regulation_en; Commission Report on CPR 2017, para. 2.
160 Commission (2016) 445 final, p. 4.
161 Art. 8 Regulation (EU) 305/2011; Commission (2016) 445 final, p. 4 162 Commission, Analysis CPR, pp. 5, 12.
163 Art. 11 no. 7 Regulation 305/2011; Council Decision 93/465 EEC, Annex, I, B, l); Lohbeck, CE
In 2016, the Commission has established a report to the European Parliament and the Council on the implementation of the CPR in which it assesses its developments and current issues.164 The findings of this report and the fact that the former CPD had been
revised, illustrate why the CPR represents a descriptive example for the purpose of this research. The CPD has been subject to several legal proceedings before the CJEU, the content of which shall be subject of the following part of this Thesis.
Chapter II
The New Legislative Framework on National Level: The Use of National Con-formity Marks
A. The Use of National Conformity Marks
Although the Commission’s new legislative framework constitutes an important approach to enhance transparency and effectiveness of the CE marking system, some positions in the construction sector still claim that mandatory CE marking has not improved the inter-nal market.165 This is predominantly due to the fact that the use of national (quality) marks
and assessment procedures are still apparent in several Member States, thereby creating confusion for manufacturers and consumers.166 Those marks can be defined as procedures
creating ex ante requirements for manufacturers with a national connotation.167
According to the Commission, the situation under the CPD had been quite problematic.168
Some Member States resisted to consider European harmonized standards and require-ments and instead relied upon their (mandatory) national technical standards, thereby es-tablishing obstacles to the free movement of goods.169 However, national assessment
pro-cedures could be also difficult for manufacturers to get approved by national authorities, even if a construction product already bears the CE marking.170 Hence, additional
require-ments had been brought by national authorities which were contrary to European harmo-nized provisions and therefore hindered the free circulation of CE-marked construction products.171
As already mentioned before in this Thesis, the CPR is intended to fix these issues as regards the use of national marks and its resultant legal uncertainty. According to the Commission, CE marking should consolidate its role as the sole marking demonstrating
165 Commission, Analysis CPR, p. 10.
166 Commission, Guidance Document on (EC) No 764/2008, para. 4.1; Commission, Analysis CPR, para.
2.2.1; Wende, IEEE, p. 137. 167 Commission (2016) 445 final p. 5. 168 Ibid, para. 4.1. 169 Ibid. 170 Ibid. 171 Ibid.
conformity with harmonized requirements and standards.172 In fact, Art. 8 (4) CPR
clearly stipulates that Member States shall not prohibit or impede, the making available on the market or the use of construction products bearing the CE marking when the de-clared performances correspond to the requirements for such use in that Member State.173
These findings thus invite deeper comparative study of how Member States are dealing with additional national quality marks. The following part will focus on whether the CPR’s objectives have been achieved by analyzing the implementation of the CPR in Germany and in the Netherlands against the background of the use of national conformity marks.
I. The Construction Products Regulation in Germany
In Germany, the CPR provisions are taken into account in the Model Building Regulation (‘Musterbauordnung’).174 However, technically, the German regulatory system for
con-struction products and techniques is laid down in 16 different Building Codes of the Ger-man Länder, since building law falls within the legislative competence of the Federal States in Germany175. Hence, the Model Building Regulation only constitutes the basis of
the 16 Building Codes and does not have direct legal effects.176 The Building Codes
con-tain the approval procedures for construction products as well as the general require-ments.177
The relevant provision for the purpose of this research is § 16 c of the Model Building Regulation laying down the requirements for the use of CE-marked construction products. According to § 16 c, a construction product bearing the CE marking may be used if the declared performances meet the requirements laid down in the Model Building Regula-tion. It further stipulates that the following provisions shall not apply to construction products which already bear the CE marking on grounds of the CPR.178
172 Ibid, para. 4.2.
173 Art. 8 (4) Regulation (EU) No 305/2011.
174 Decision of the Building Ministers Conference, Model Building Regulation,
https://www.bauminister-konferenz.de/Dokumente/42322694.pdf; Hildner, DS 2013, p. 219.
175 Art. 70 (1), 74 (1) Nr. 16 Basic Constitutional Law ('Grundgesetz'). 176 Simon/Busse/Kraus, BayBO, Teil A, 7.
177 Ibid.
1. The Application of the German ‘Ü-mark’
In addition to that, the federal Building Codes refer to so-called construction rules (‘Bauregellisten’), which contain detailed requirements for certain construction products and differ between products which fall under a Union harmonized provision and those who do not.179 These construction rules contain conditions on when and how to affix the
national Ü-mark (‘Übereinstimmungszeichen’) on a construction product.180
The German Ü-mark181 is a quality mark with legal standing imposing additional
manda-tory requirements on certain construction products next to CE marking.182 Those
require-ments are, for instance, linked to the flammability or compressive strength of a construc-tion product and shall therefore guarantee the product’s safety.183 After the conformity
assessment procedure, the Ü-mark will be affixed on the construction product, confirmed by the German Institute for Construction Technology (‘DIBt’).184 In Germany,
construc-tion products with CE marking were not permitted to be used in construcconstruc-tion if the re-spective federal building law has linked further requirements to the construction prod-uct.185
The relationship between the CE marking and the Ü-mark was long disputed and subject of an infringement procedure before the European Court of Justice (CJEU). The following part will elaborate the Court’s judgment against the background of the CE marking aims and the additional use of national quality marks.
a. CJEU Judgment C-100/13: Commission vs. Germany
The case Commission vs. Germany deals with an infringement procedure against Ger-many initiated by the Commission on grounds of failing to respect EU harmonized
179 Balensiefen in BeckOK, § 73 BWLBO, s. e.g.: Bauregellisten B, C LBO-BW (State Building Code
Baden-Württemberg).
180 S. e.g.: § 16 HBO (Building Law Hessen). 181 S. Appendix 3.
182 Simon/Busse/Nolte, BayBO, Art. 20, para. 21.
183 Ibid; Harte-Bavendamm/Henning-Bodewig/Weidert, § 5 (1) 2 Nr.1 UWG, para. 293. 184 Ibid; Hildner, DS 2013, p. 218.
legislation regarding the marketing of construction products by using the national Ü-mark.186 The Commission is of the opinion that the German Ü-mark hinders the free
movement of goods by imposing additional requirements for construction products which are already subject to European harmonized legislation and therefore bear the CE mark-ing.187
aa. Facts
The Federal Republic of Germany has imposed additional requirements for certain con-struction products through the use of national concon-struction rules.188 These rules laid down
that the products at stake first have to fulfill the national requirements before they may be used in construction.189 The German authorities obliged all manufacturers to undergo the
national conformity assessment to affix the Ü-mark in order to demonstrate compliance with the construction rules next to CE marking.190 For this reason, the Commission has
received several complaints from different stakeholders stating that the additional require-ments would infringe EU secondary law.191 The Commission has examined the case
be-fore it transmitted a reasoned opinion to Germany, claiming that the national construction rules would indeed infringe Art. 4 (2) and Art. 6 (1) of the CPD.192 Since the arguments
raised by the German Government did not satisfy the Commission, the latter referred Germany to the CJEU, stating that the Ü-mark would violate EU harmonized law.193
(1) Arguments of the Commission
According to the Commission, the Ü-mark would be an illegitimate additional mark to CE marking and would therefore constitute a barrier to market access and the use of con-struction products in the EU, since the concon-struction rules of the German Länder stipulate that certain construction products require the Ü-mark in addition to the CE marking to
186 Case C-100/13, Commission v Germany [2014]. 187 Ibid, para. 43. 188 Ibid, para. 24 ff. 189 Ibid, para, 20 f. 190 Ibid, para. 20. 191 Ibid, para. 27. 192 Ibid. 193 Ibid, para. 30.
also comply with national law.194 These construction products would further cause
diffi-culties because they would be updated slowly and irregularly, thereby going against the CE marking aims.195
The Commission claims that Member States may only use national marks as long as they do not infringe European provisions.196 If a construction product would fall under an EU
harmonized provision, it cannot be treated like an unregulated product.197
Lastly, the Commission contends that even in case the German construction rules would not infringe EU harmonized secondary law, the German authorities were not allowed to take unilateral measures by using a national quality mark if they consider higher standards necessary.198 In fact, they would have to respect the procedure provided for in the CPD.199
Therefore, the Commission considers the German construction regulations illegitimate and requests the Court to rule accordingly.
(2) Arguments of the German Government
In the first place, Germany admits that its authorities would indeed use a national quality mark after traversing a national assessment procedure, which differs from the one stipu-lated in EU legislation.200 However, the German Government argues that the European
harmonized norms were fragmentary and therefore would not comply with the require-ments of the CPD.201 They argue that the Ü-mark related to necessary higher health and
environmental standards, since the construction products at stake were not covered by European harmonized standards.202
194 Ibid, para. 27, 38. 195 Ibid, para. 27. 196 Ibid, para. 44. 197 Ibid. 198 Ibid, para. 48. 199 Ibid. 200 Ibid, para. 28. 201 Ibid. 202 Ibid, para. 50.
According to the German Government, the construction rules cannot be considered as additional requirements to exhaustively harmonized European legislation.203 In fact, the
construction rules would only refer to construction products which are subject to incom-plete European norms.204 On this account, the Government argues that the CPD would
solely contain requirements regarding construction itself (and thus civil works), but not construction products.205 Therefore the CPD would not apply, since the construction
products at stake were not covered by the European provisions.206
On this account, Germany states that as long as the European standards do not comply fully with the CPD, the German authorities would continue to use the Ü-mark to ensure effective danger prevention for consumers.207
Lastly, the Government states that the construction rules were indeed compatible with the free movement of goods, since no trade restrictions were at stake.208 In any event, the
requirements stated in the national regulations were justified by mandatory reasons of public interest, particularly as regards the protection of health and life of consumers and of the environment.209
bb. Judgment and Findings of the Court
The Court starts with analyzing the main purpose of the CPD, laying in the elimination of trade barriers to enable the free movement of construction products within the EU.210
According to the Court, Art. 6 (1) of the CPD clearly stipulates that Member States may not hinder the free movement of construction products on their territory.211 In this regard,
the Court agrees with the Commission and rules that in case a Member State considers a European harmonized provision to be fragmentary, it has to follow the procedure
203 Ibid, para. 36. 204 Ibid. 205 Ibid, para. 45. 206 Ibid. 207 Ibid, para. 36, 47. 208 Ibid, para. 50. 209 Ibid.
210 Ibid, para. 51, referring to Case C 385/10 Elenca [2012], para. 15. 211 Case C-100/13, Commission v Germany [2014], para. 55.
provided for in the CPD.212 The Court motivates its ruling by stating that the practical
effectiveness of the CPD would be undermined if each Member State could set up new measures solely because they consider higher standards necessary.213
Moreover, the Court rules that it is not sufficient to state that the contested measures are compatible with the free movement of goods provisions.214 In fact, in case of exhaustive
harmonization, the measures must be assessed in light of EU harmonized legislation and not in light of the Treaty provisions.215
On these grounds, the Court declared the national Ü-mark incompatible with EU second-ary law.216 The Court has thus withdrawn the German Ü-mark as a symbol of approval
on the ground that the additional requirements of the German construction rules represent inadmissible trade barriers to the European internal market.217
b. Effects of the Judgment
On national level, the judgment of Commission vs. Germany had extensive effects regard-ing the treatment of conformity marks for construction products in Germany. Due to the fact that German authorities already made use of the Ü-mark for several decades, the judgment alienated not only the German building authorities, but particularly manufac-turers of construction products. In the past, the only construction products which were permitted in Germany were those indicating the Ü-mark independent from European har-monization and CE marking.218 However, on this account, the Court’s judgment is clear:
the harmonized CE marking is a sufficient standard to indicate compliance with EU prod-uct safety rules.
As a consequence of the judgment, the German authorities were forced to adapt their legal framework in terms of construction products. The Model Building Regulation had been
212 Ibid, para. 57, 58. 213 Ibid, para. 60. 214 Ibid, para. 62.
215 Ibid, para. 63, also referring to Case C-216/11, Commission v French Republic [2013], para. 27. 216 Case C-100/13, Commission v Germany [2014], para. 64.
217 Ibid.
