30.7.2011

Official Journal of the European Union

C 226/9

(Case C-171/11)

2011/C 226/15

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Fra.bo S.p.A.

Defendant: Deutsche Vereinigung des Gas- und Wasserfaches e.V. (DVGW) — Technisch-Wissenschaftlicher Verein

Intervener: DVGW-Cert GmbH

Questions referred

1.Is Article 28 EC (now Article 34 TFEU), if appropriate in conjunction with Article [86(2)] EC (Article [106(2)] TFEU), to be interpreted as meaning that private-law establishments which have been set up for the purpose of drawing up technical standards in a particular field and certifying products on the basis of those technical standards are bound by the aforementioned provisions when drawing up technical standards and in the certification process if the national legislature expressly regards the products in respect of which certificates have been issued as lawful, thus making it at least considerably more difficult in practice to distribute products in respect of which certificates have not been issued?

2.If the answer to the first question is in the negative: Is Article 81 EC (Article 101 TFEU) to be interpreted as meaning that the activity pursued by a private-law establishment in the field of drawing up technical standards and certifying products on the basis of those technical standards, as defined in paragraph 1, is to be regarded as ‘economic’ if the establishment is controlled by undertakings? If the first part of this question is answered in the affirmative: Is Article 81 to be interpreted as meaning that the drawing-up of technical standards and the certification of products on the basis of those technical standards by an association of undertakings is capable of impeding trade between the Member States if a product lawfully manufactured and distributed in another Member State cannot be distributed in the importing Member State, or can be distributed there only with considerable difficulty, because it does not meet the requirements of the technical standard and, in the light of the predominance of the technical standard on the market and of a legal provision adopted by the national legislature to the effect that a certificate from the association of undertakings must indicate compliance with the requirements laid down by law, distribution without such a certificate is virtually impossible, and if the technical standard would not be applicable if it had been adopted directly by the national legislature because it infringes the principles of the free movement of goods?