"Now you CE it, now you don't ..."

The IPKat checks
for CE marks ...

Trade marks, trade dress, certification and collective marks, geographical indications -- all of these are part and parcel of the skill-set of the intellectual property practitioner who deals with branding, marketing and labelling matters. While trade marks have won most of our attention we have now seen, twice in the the past week, how important it is to keep an eye on some of the less prominent species of legal issue that product manufacturers and sellers must deal with.  First we considered whether makers of a product which contained up to 58% water were entitled to call it "butter" (see earlier Katpost here).  Now, in the case noted below, we take a look at a species of sign that is rarely the subject of high-profile litigation: the CE mark -- a symbolic means by which a manufacturer declares that a product conforms with the essential requirements of the applicable European Union directives.

The case in question is Case C-385/10 Elenca srl v Ministero dell'Interno, a reference for a preliminary ruling from the Consiglio di Stato, which was lodged with the Court of Justice of the European Union (CJEU) on 30 July 2010.  What is this case, which has taken almost 27 months, all about?

Elenca imports Hungarian-made inflatable thermosetting liners for flues and chimney pipes into Italy, where it distributes them. Those liners are used to restore old flues and old chimney pipes without the need for masonry work. This technology has been replacing the traditional system of installing chimney pipes, usually made of stainless steel or ceramics, or rigid pipes, inside buildings.

This apparently innocent trading activity ran into trouble after the Central Prevention and Technical Safety Directorate of the Italian Ministry of the Interior's  fire, public rescue and civil defence department issued Circular No 4853/2009, which read thus:

‘…Plastic chimney pipe lining systems fall within the scope of Directive 89/106/EEC. There is at present no specific harmonised standard available. The only standard developed by the [European Committee for Standardisation (Comité Européen de Normalisation (CEN))] applicable to plastic chimney pipes [is] Standard EN 1447/2005, which expressly rules out such solutions used with the aim of modifying the properties of the surface in contact with the combustion products. Such systems may therefore only display CE marking which indicates European technical approval (ETA) issued by an EOTA [European Organisation for Technical Approvals] body.

– the use of the flue liners in question is not to be permitted in civil heating installations with a nominal power greater than 35 kW;

– for installations below 35 kW … [the competent Ministry which issued the circular in any event takes the view that] only those products which bear the CE marking indicating European technical approval may be used, in accordance with the use intended by the manufacturer.’

Elenca objected that the circular infringed inter alia Articles 34 to 37 TFEU because it made the marketing of a product originating from another EU Member State Union (Hungary) subject to a technical condition, the affixing of the CE marking, a requirement that was impossible to fulfil because there was no corresponding harmonised standard in Hungary, which made it impossible in practice to import and distribute the product in question. The Tribunale amministrativo regionale per il Lazio ruled that Elenca's application to annul the circular was inadmissible: since it was not a legislative measure it could not be challenged through legal proceedings [Just imagine what a galvanising effect this would have on the legislative tendencies of bureaucrats throughout Europe if it were true, mewses Merpel]. Elenca's appeal to the Consiglio di Stato was however ruled admissible and, since the Consiglio shared Elenca’s doubts as to the validity of the national legislation under European Union law, that tribunal decided to stay the proceedings and to refer the following questions to the CJEU for a preliminary ruling:

1. Are the circular contested at first instance and the national rules [under which it was issued] compatible with Community law and with the rules specifically referred to [in the order]? In particular, do the circular and the national rules infringe the principles and rules laid down by Directive 89/106 relating to construction products, which does not in any way make EC marking mandatory, but, on the contrary, provides (at Article 6(1) and (2)) that Member States 'shall not impede the free movement, placing on the market or use in their territory of products which satisfy the provisions' of that directive, and are to ensure that 'the use of such products, for the purpose for which they were intended, shall not be impeded by rules or conditions imposed by public bodies or private bodies acting as a public undertaking or acting as a public body on the basis of a monopoly position' and are to allow 'products not covered by Article 4(2) to be placed on the market in their territory if they satisfy national provisions consistent with the Treaty until the European technical specifications referred to in Chapters II and III provide otherwise'?

2. Do the contested circular and the national rules referred to therein infringe Articles 28 to 31 of the EC Treaty in particular, which prohibit restrictions on imports and measures having equivalent effect, in so far as making the marketing of a product originating in another Member State of the Community subject, as in the present case, to a technical requirement, namely affixing the EC mark - which would be possible and lawful only if there were a corresponding harmonised standard - in fact prevents the import and distribution of the product in question in Italy, in breach of the principles laid down by the provisions of the EC Treaty referred to and Community law, which ensure freedom of competition, requiring principles capable of ensuring equal non-discriminatory treatment, as well as transparency, proportionality and respect for the rights of individual undertakings?

3. Under Community rules on workable competition in the sector involving the present dispute, ought the national legislature and administrative authorities to have avoided adopting the legislative measures referred to in the circular ... ?

4. Lastly, is pluralism and competition in the sector in question, which is guaranteed by European law, secured by national rules ... which introduce and impose the restrictions referred to?

On Thursday the Court ruled as follows:

1. Council Directive 89/106 ... on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products, as amended ..., must be interpreted as precluding national provisions which automatically make the marketing of construction products, such as those at issue in the main proceedings, originating from another Member State, subject to the affixing of CE marking.

2. Articles 34 TFEU to 37 TFEU must be interpreted as precluding national provisions which automatically make the marketing of construction products, such as those at issue in the main proceedings, originating from another Member State, subject to the affixing of CE marking.

The IPKat thinks this ruling is perfectly sensible, and feels that attempts to require businesses to affix CE marks where there is no corresponding pan-European standard are the sort of things that help bring the concept of European unity into disrepute.