Summary
Parties
Grounds
Decision on costs
Operative part
Keywords
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Free movement of goods ° Quantitative restrictions ° Measures having equivalent effect ° National rules prohibiting the marketing of telecommunications terminals which have not been approved, even where those are stated to be intended for re-export ° Whether permissible ° Corollary of the power conferred on the Member States by Directive 88/301
(EEC Treaty, Art. 30; Commission Directive 88/301/EEC, Art. 3)
Summary
Neither Article 30 of the EEC Treaty nor Directive 88/301 on competition in the markets in telecommunications terminal equipment, certain provisions of which implement Article 30, precludes national rules which prohibit traders, with penalties for infringement, from importing terminal equipment which has not been approved for release for consumption, possessing it with a view to sale, selling, distributing or advertising it, even if the importer, holder or vendor has clearly stated that such equipment is intended solely for re-export, where there is no certainty that it will actually be re-exported, and is therefore not suitable for connection to the public network, but where on the contrary the findings of the national court indicate that most of it is not re-exported.
While Article 3 confers on traders the right to import and market terminal equipment, it permits the Member States to check the equipment in order to establish whether it satisfies certain essential requirements, that is to say in particular, user safety, safety of employees of public telecommunications network operators, protection of public telecommunications networks from harm and interworking of terminal equipment in justified cases. The power so conferred on the Member States would be rendered ineffective if it were possible to undertake the abovementioned activities without any guarantee that the equipment in question will actually be re-exported.
Parties
In Case C-314/93,
REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Grande Instance, Reims (France), for a preliminary ruling in the criminal proceedings pending before that court against
François Rouffeteau,
Robert Badia,
on the interpretation of Article 30 of the EEC Treaty and Commission Directive 88/301/EEC of 16 May 1988 on competition in the markets in telecommunications terminal equipment (OJ 1988 L 131, p. 73),
THE COURT,
composed of: O Due, President, G.F. Mancini and D.A.O. Edward (Presidents of Chambers), R. Joliet, F.A. Schockweiler, G.C. Rodríguez Iglesias, F. Grévisse, M. Zuleeg (Rapporteur) and J.L. Murray, Judges,
Advocate General: G. Tesauro,
Registrar: R. Grass,
after considering the written observations submitted on behalf of:
° the French Government, by J.-M. Belorgey, Chargé de mission in the Legal Department of the Ministry of Foreign Affairs, and C. de Salins, Adviser on foreign affairs in the same department, acting as Agents,
° the Commission of the European Communities, by A.C. Jessen, of the Legal Service, and V. Melgar, a national civil servant seconded to the Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of the French Government and the Commission, represented by V. Melgar, acting as Agent, assisted by A. Jaume, technical expert, at the hearing on 2 March 1994,
after hearing the Opinion of the Advocate General at the sitting on 19 April 1994,
gives the following
Judgment
Grounds
1 By judgment of 18 May 1993, received at the Court on 14 June 1993, the Tribunal de Grande Instance (Regional Court), Reims (France), referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 30 of the Treaty and of Commission Directive 88/301/EEC of 16 May 1988 on competition in the markets in telecommunications terminal equipment, with a view to ascertaining the compatibility therewith of the system established in France by Decree No 85-712 of 11 July 1985 implementing the Law of 1 August 1905 and relating to equipment capable of being connected to the State telecommunications network (Official Journal of the French Republic of 14 July 1985, p. 7976) and by Law No 89-1008 of 31 December 1989 on the development of commercial and craft undertakings and the improvement of their economic, legal and social environment (Official Journal of the French Republic of 2 January 1990, p. 9).
2 That question was raised in criminal proceedings against Mr Rouffeteau and Mr Badia, the former charged with advertising, possessing and offering for sale, and the latter with possessing and offering for sale telephone equipment in September 1991 without obtaining type approval or any other document certifying compliance with the specifications required in respect of equipment capable of being connected to the public network, being offences contrary to Decree No 85-712 and Law No 89-1008. Mr Rouffeteau and Mr Badia have objected that the legislation is unlawful in relation to Article 30 of the Treaty and Directive 88/301.
3 Under Decree No 85-712, equipment capable of being connected to the public network may be manufactured for the domestic market, imported for release for consumption, held with a view to sale, offered for sale or distributed only if it complies with a number of requirements intended to ensure the proper functioning of the network and user safety (Articles 2, 3 and 4). As evidence that the equipment complies with those requirements, the traders concerned must produce a report drawn up by a body approved by the Minister for Industry, type approval granted pursuant to the Postal and Telecommunications Code, an evaluation certificate issued pursuant to the law on consumer protection and information or other documentary evidence recognized as equivalent by order of the Minister for Industry (Article 6). Article 7 of the decree lays down the penalty for breach of that obligation to provide evidence.
4 Article 8 of Law No 89-1008 provides that it is prohibited, and punishable by a fine, to advertise in any way equipment which is capable of being connected to the State telecommunications network but which cannot be shown to comply with the regulations concerning such equipment.
5 Taking the view that the case involved the interpretation of the Community legislation at issue, the Reims criminal court referred the following question to the Court for a preliminary ruling:
"Must Article 30 of the Treaty and Directive 88/301/EEC be interpreted as precluding national legislation, such as the French legislation, which prohibits the import, possession with a view to sale and offering for sale of all telephone equipment which has not been granted type approval, even where it is clearly stated by the importer, holder or seller of that equipment, in this case cordless telephones and answering machines, that the equipment is intended solely for re-export and is not, therefore, suitable for connection to the public network?"
6 The first sentence of Article 3 of Directive 88/301 confers on traders the right to import and market terminal equipment. In accordance with the second sentence of that provision, however, Member States may check terminal equipment in order to establish whether it satisfies certain essential requirements such as those listed in Article 2(17) of Council Directive 86/361/EEC of 24 July 1986 on the initial stage of the mutual recognition of type approval for telecommunications terminal equipment (OJ 1986 L 217, p. 21), that is to say in particular user safety, safety of employees of public telecommunications network operators, protection of public telecommunications networks from harm and interworking of terminal equipment in justified cases.
7 It should be borne in mind that Directive 88/301 was adopted by the Commission in the exercise of the legislative power conferred on it by Article 90(3) of the Treaty to lay down general rules specifying the obligations arising from the Treaty, which are binding on the Member States as regards the undertakings referred to in Article 90(1) and (2) (judgment in Case C-202/88 France v Commission ("Terminals") [1991] ECR I-1223, paragraph 14). Article 3 of the directive forms part of the provisions implementing Article 30 of the Treaty (see to that effect the same judgment, paragraphs 37 to 39).
8 The power so conferred on the Member States would be rendered ineffective if it were possible to import equipment which has not been approved for release for consumption, to possess it with a view to sale, to sell or distribute it or to advertise it without any guarantee that it will actually be re-exported.
9 According to the French Government, most of the equipment which has not been approved and is marketed in a Member State is in fact subsequently connected to the public network, despite the written or oral information which is sometimes provided at the time of sale, to the effect that the equipment is intended for re-export and is not suitable for connection to the public network.
10 It is for the national court to establish whether that statement is true.
11 In those circumstances, the answer to the question from the national court must be that neither Article 30 of the Treaty nor Directive 88/301 precludes national rules which prohibit traders, with penalties for infringement, from importing terminal equipment which has not been approved for release for consumption, possessing it with a view to sale, selling, distributing or advertising it, even if the importer, holder or vendor has clearly stated that such equipment is intended solely for re-export, where there is no certainty that it will actually be re-exported and is therefore not suitable for connection to the public network.
Decision on costs
Costs
12 The costs incurred by the French Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
Operative part
On those grounds,
THE COURT,
in answer to the question referred to it by the Tribunal de Grande Instance, Reims, by judgment of 18 March 1993, hereby rules:
Neither Article 30 of the EEC Treaty nor Directive 88/301/EEC precludes national rules which prohibit traders, with penalties for infringement, from importing terminal equipment which has not been approved for release for consumption, possessing it with a view to sale, selling, distributing or advertising it, even if the importer, holder or vendor has clearly stated that such equipment is intended solely for re-export, where there is no certainty that it will actually be re-exported, and is therefore not suitable for connection to the public network.
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