Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The present case comes before the Court by way of an application brought by the Commission under Article 169 of the Treaty of Rome for a declaration that the Kingdom of Denmark has failed to fulfil an obligation imposed on it by the EEC Treaty. That Member State is said not to have implemented, with the period prescribed, the laws, regulations and administrative provisions needed to comply with Council Directive 76/891/EEC of 4 November 1976 on the approximation of the laws of the Member States relating to electrical energy meters (Official Journal L 336, P- 30).

2. I will summarize the contents of Directive 76/891. It is based on Article 100 of the EEC Treaty and forms pan of a larger series of directives issued by the Council for the purposes of eliminating technical barriers to intra-Community trade stemming from the laws, regulations and administrative provisions of the Member States which make the placing on the market and entry into service of certain products subject to compliance with certain technical requirements. In particular, Directive 76/891 concerns a specific aspect of measuring, a sector expressly contemplated by the General Programme for the Elimination of Technical Barriers to Trade, approved by the Council, on a proposal from the Commission, by resolution of 28 May 1969 (Official Journal, English Special Edition, Second Series No DC, p. 25).

3. I will recall the facts leading up to the Commission's application.

4. The first aspea which must be examined concerns the objection of inadmissibiiity put forward by the Danish Government on the basis of an alleged discrepancy between the issues raised at the stage of the pre-contenuous, administrative phase of the procedure and those raised in the contentious phase before the Court. The Danish Government observes in particular that the Commission's letter giving forma notice is formulated in absolutely general terms whereas the Commission is required to define the alleged default and give the reasons on which the allegation is based in such a way as temake it possible for there to be a fruitful dialogue with the Member State. It then maintains that the grounds on which the Commission based its arguments in the reasoned opinion were amended in the application. Only in the latter did the Commission refer to framework Directive 71/316 and infer from it the obligations which, in its view, were binding on the Danish Government. That alteration of its line of argument ought to have led it to issue a fresh reasoned opinion. The Commissions conduct did not therefore comply with the duty of diligence which is incumbent on the Executive in initiating the procedure under Article 169 of the EEC Treaty and unacceptably restricted Denmark's rights of defence.

5. The question relating to the substance of the case must now be examined. As the Court is aware these are concerned with the scope of the Member States' obligations with regard to Directive 76/891 on electrical energy meters.

6. Of the two arguments I lean in favour of that put forward by the Danish Government. I am persuaded that the scope of the obligation imposed on the Member Sutes is determined by Articles 2 (2) and 8 (2) of Directive 71/316. Member Sutes, therefore, are obliged to esublish a department for EEC approval and initial verification only if they already have available the technical and administrative machinery, even if only in an elementary form, for the control of instruments for measuring electrical energy. My view is based on a number of considérations relating to the letter and scope of the provisions, to their arrangement in the system, to the relationship between the framework directive and the specific directive and the features of the situation in regard to the approximation of laws in that sphere.

7. The interpretation which I propose to the Court finds confirmation in several places in the preparatory working documents leading to framework Directive 71/316. It is well known that the Court, on a number of occasions, has examined the preparatory working documents relating to secondary Community legislation in order to ascertain the general structure of a body of rules (see for example the judgments of 12 November 1969 in Case 29/69 Stauder v City of Uim [1969] ECR 419, of 9 October 1974 in Joined Cases 112, 144 and 145/73 Campogrande and Others v Commission [1974] ECR 957, of 5 June 1973 in Case 81/72 Commission v Comuti [1973] ECR 575 and of 26 June 1975 in Case 70/74 Commission v Council [1975] ECR 795).

8. To resolve the question of interpretation it is also appropriate to examine the correlation between the framework directive and the specific directive. The real scope of the provisions of the latter directive can be understood only if they are read in conjunction with the provisions of the former. On the other hand the framework directive clearly demonstrates the partially conditional, and thus contingent, nature of the obligations imposed on the Member Sutes.

9. In that respect the features of the harmonization of laws in the matter of eliminating technical barriers to trade in the field of measuring instruments are of importance. That harmonization began with framework Directive 71/316 and then evolved into a toul or optional harmonization, according to the type of measuring instrument. In the case of toul harmonization the measure adopted to apply Community directives replace earlier national provisions and Member Sutes lose all their powers in that field. In the case of optional harmonization, on the other hand, Member Sutes may retain their own national provisions and these coexist with the Community rules. That demonstrates the reasonableness of an interpretation of the directive which differentiates the obligations of the Member Sutes according to the actual structure of their national administrations.

10. The Danish Government refers in its defence to the stance it adopted during the negotiations which led to the adoption of Directive 76/891. In particular it recalls the sûrement made on 11 March 1975 within the Council's working party. According to that statement, Denmark was unable to accept a directive which would oblige it to establish the administrative machinery necessary to carry out EEC controls and verifications. The sunce uken by the Danish Government was then recorded in another sutement of the Council and the Commission which is annexed to the Council minutes. It reads as follows: The Council and the Commission note that the second sentence of Article 2 refers only to the electrical energy meters mentioned in the first sentence of the same article, and that the directive therefore does not oblige Member States to obtain EEC pattern approval for electrical energy meters or to submit them for EEC initial verification where no equivalent national controls are prescribed. In the Danish Government's view that sutement should be interpreted as meaning that the directive imposes on Member Sutes not equipped with national administrative machinery for verifying and approving electrical energy meters, merely the obligation not to impede the marketing and the entry into use on its own territory of the meters subject to EEC controls in another Member Sute. The Commission thinks on the contrary, however, that the sutement concerns the way in which the Sute is obliged to organize its own administrative departments. The Member Sute, which is obliged to receive applications from interested manufacturen, to check the documenution and supervise the various suges of the technical investigation, might avail itself for that purpose of private laboratories and technicians.

11. In conclusion I propose that the Court dismiss the anion brought on 3 July 1981 by the Commission of the European Communities against the Kingdom of Denmark and that the Commission, having failed in its submissions, be ordered to pay the costs.

1 Translated from the Italian.