Reason:
Firearms devices/systems are not subject to harmonised EU rules and must therefore be subject to the rule of mutual recognition and be able to be marketed without administrative barriers, in a completely non-discriminatory manner, as is the case for non-imported products (following the rule laid down in Case 120/78 Casis de Dijon).
We have obtained a document from the Ministry of Agriculture and Rural Development stating that Prevectron products are not construction products (document No 315-21/2006-2 of 11.04.2006).
The Regulation on the protection of buildings against lightning ( Official Journal of the RS No 28/2009) clearly allows, in Article 6, the use of other technical solutions, provided that they ensure at least the same level of safety as a project prepared using the technical guideline TSG-N-003:2009.
However, according to Article 12 of the Regulation on the protection of buildings against lightning, the level of safety must be demonstrated by a revision of the part of the equipment used as the subject matter or the state-of-the-art solution.
Prior to the adoption of the new Building Construction Act (ZGO 1D Official Gazette of the Republic of Slovenia No. 57/2012) - in January 2010, we commissioned a legal opinion from PF Maribor regarding the interpretation of the obligation to audit according to Article 12 of the Lightning Protection of Buildings Regulations, in which it was legally argued that only one reference audit would be sufficient to prove that Prevectron as a stand-alone protection system is an adequate lightning protection system. However, all but the first audit constitute a so-called double burden and violate the rule on free movement of goods (Article 34 TFEU) because they are a measure that has the same characteristics as a quantitative restriction. Similarly, e.g. in the case of type-approval of cars (in case 50/85, Bernhard Schloh), the CJEU ruled that type-approval is only justified if it is the first test of a car imported into a country (i.e. not justified if such a car is already on the road in a Member State) and if the same applies to domestic cars.
The RS has already received a reminder from the European Commission on this issue (document No 2007-4831 of 19.03.2009) and the Government has replied to it (document No 5423-7/2007/148 of 22.05.2009) that the matter is settled. The European Commission has stopped the procedure for the time being, but has asked us to report to them if we still have problems (document ENTR/C2/LS/kd D(2010)2015 of 25.01.2010.
With the new Act on the Construction of Buildings ZGO-1D (Official Gazette of the RS 57/2012), the audit is no longer mandatory, as Article 53 of ZGO-1D provides that the audit of the project documentation shall be carried out if the investor so requests. Article 48 of the ZGO-1D also states that in addition to the regulations and standards in the Republic of Slovenia, other normative documents must also be taken into account in the design process.
However, the following is happening in the Republic of Slovenia:
- Electricity inspectors in the RS, who inspect buildings on which Prevectron lightning protection according to NFC 17-102 has been installed, either years ago or recently, decide that it is not an adequate lightning protection and that it should be replaced by a conventional lightning protection.
- The electricity inspectors in the RS claim that the NFC 17-102 standard has not been adopted in the RS and is therefore not valid and does not comply with the Government Decision and the European Commission documents.
- The electricity inspectors in the RS claim that the Prevectron lightning conductor is like an ordinary metal rod and that it also has such a shielding radius that it is not certified. This has been technically refuted by the EU certification bodies (TUV Austria, Beroau Veritas. SIQ, Končar - Quality Austria,...) which have certified this lightning protection system according to NFC 17-102).
In other words, for a product which is marketed and used in 26 Member States on an equivalent basis to that in France, where it is manufactured, the RS is requesting audits which impose a double burden and thus have an effect equivalent to quantitative restrictions.
The RS is thus in breach of Article 34 TFEU and does not recognise the use of the product as it is recognised elsewhere.
The RS responds that it is not infringing anything by allowing marketing, but this is not the case, because if unrestricted use is not allowed, marketing is also hindered. The reference to the General Product Safety Act (that it requires mandatory auditing) does not hold water, because there is no such provision in the Act. Thus, the obligation to revise in the above-mentioned Regulation is also inconsistent with the Constitution of the Republic of Slovenia, since the rules of by-laws must have a basis, criteria and framework in the law.
Solution:The Treaty on the Functioning of the EU on the Free Movement of Goods should be taken into account (with interpretive case law) and direct and indirect administrative barriers in the field of lightning protection - defined as safe and not dangerous to human health and life by Standard NFC 17-102 - should be removed.Proposal for amendment of the Regulation on the Protection of Buildings against the Effects of Lightning
Article 6(use of other measures)(1) In the design, construction and maintenance of a lightning protection system, the use of lightning risk analysis methodologies and lightning protection system devices according to a standard that is legally used and marketed in the EU Member States may be used instead of the measures specified in the technical guideline.(2) The measures referred to in the preceding paragraph shall constitute compliance with the regulations governing construction. Compliance with the requirements of this Regulation shall in such a case be ensured in accordance with Article 12 of this Regulation.
 
Article 12 (obligation to audit)(1) The audit of a project for the purpose of obtaining a building permit shall, in addition to the cases specified in the Act on the Construction of Buildings (Official Gazette of the Republic of Slovenia, No. 102/04 - officially consolidated text, 14/05 - am, 92/05 - ZJC-B, 111/05 - Decree of the US, 93/05 - ZVMS, 120/06 - Decree of the US and 126/07), is also mandatory when the designer designs the lightning protection system in accordance with Article 6 of these Regulations and is carried out in accordance with the procedure and with the participants specified in the Act regulating the construction of buildings. An audit pursuant to this Article shall not be required if the installation of such a lightning protection system device is already legally marketed in the EU Member States and if an audit has already been carried out in the Republic of Slovenia in respect of the same type of device, or a device with identical characteristics.(2) The subject of the audit referred to in the preceding paragraph shall be exclusively the checking of the faultlessness of those parts of the design of the electrical installations and electrical equipment in the project for obtaining a building permit, which prove that the submitted project with regard to the lightning protection system meets the requirements of this Regulation (3) In the summary of the audit report within the meaning of the Regulation governing project documentation, the responsible auditor shall enter only those data which are essential for the scope of the audit referred to in the preceding paragraph. By signing the audit report, he shall only confirm that his audit shows that the project complies with the requirements of this Regulation.
 
Explanation:These amendments reduce the administrative burden for those lightning protection system products which have already been found to be equivalent in degree of protection to the technical guideline and thus also respect the prohibition of double burden under the Treaty on the Functioning of the EU (Article 34 TFEU, which prohibits quantitative restrictions and measures having equivalent effect, which includes double burden and other administrative burdens). This provision has also been interpreted in the case-law of the CJEU as meaning that Member States are entitled to require an assessment of the safety of a product and its installation, not for each individual case, but only for the first case; however, once it has been established, by means of an audit of the first case, that the product and its installation comply with the safety conditions and rules and do not pose a risk to human beings and their health, such an assessment may no longer be required. The amendments added follow this and regulate the issue of lightning protection system products originating in EU Member States (or legally marketed on the internal market) in a way that is consistent with EU rules.