Key facts of the case:
- In the current proceedings the Oberlandesgericht (Higher Regional Court) Düsseldorf begins by requesting clarification as to whether a private-law association which inter alia draws up technical standards for products used in the drinking water supply sector and certifies products, or has products certified, on the basis of those technical standards must comply with the principle of the free movement of goods when undertaking those activities, if it is presumed ipso jure that products equipped with such certificates meet the requirements applicable to those products for use in the drinking water supply sector. The referring court thus touches on the question of the horizontal effect of the fundamental freedoms in general and of the free movement of goods in particular. If a horizontal effect of the free movement of goods can be dismissed in a case such as that in the main proceedings, the referring court would like to know, alternatively, whether the activities of the technical and scientific association in question are subject to the prohibition of concerted practices laid down in Article 101 TFEU.
- In the following I will begin by addressing the question whether the standardisation and certification activities of a private-law association at issue in the main proceedings may be subject to the principle of the free movement of goods. As I consider that the answer to that question as to the horizontal effect of the free movement of goods in a case such as the main proceedings must be, ultimately, in the affirmative, I will not discuss the second question referred as an alternative.
Results (sanctions) and key consequences of the case:
Private-law institutions established for the purpose of drawing up technical standards in a certain area and of certifying products on the basis of those technical standards are bound by Article 34 TFEU when undertaking that standardisation and certification activity, if the national legislature explicitly regards products equipped with a certificate of that private-law institution as complying with the law and it is therefore virtually impossible in practice to market products which are not equipped with such a certificate.