CJEC, October 27, 1993, No C-46/90

THE COURT,

1 By judgments of 19 April 1989 and 11 March 1991, which were received at the Court on 28 February 1990 and 15 March 1991 respectively, the 57th and 55th Chambers of the Tribunal de Première Instance (Court of First Instance), Brussels, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Articles 30 to 37 and 86 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), with a view to ascertaining the compatibility with those provisions of a national system which lays down a requirement of ministerial authorization for the possession of radio transmitters or receivers and prohibits the offering for sale or hire of transmitters or receivers unless a model has first been granted type-approval by a public body under the authority of the competent minister as satisfying the technical requirements laid down by that minister.

2 Those questions were raised in two sets of criminal proceedings.

3 The first proceedings, which gave rise to Case C-46-90, were brought against Jean-Marie Lagauche and seven others, who were charged with, inter alia, being in possession of cordless telephones and a pair of walkie-talkies without having obtained the necessary ministerial authorization and with offering for sale or hire cordless telephones without a model having previously been granted type-approval by the Régie des Télégraphes et Téléphones (Belgian telecommunications authority, hereinafter "the RTT").

4 The second proceedings, which gave rise to Case C-93-91, were brought against Pierre Evrard, who was charged with possessing and offering for sale, between 1 January 1989 and 2 February 1989, a cordless telephone which had not been granted type-approval by the RTT and with possessing and offering for sale, on 23 January 1990, 11 radiocommunication sets, which had also not been granted type-approval, without previously obtaining the requisite ministerial authorization.

5 In his defence Mr Evrard claimed that one of those sets bore the mark of the Deutsche Bundespost, which had granted type-approval. He also produced a certificate issued by a laboratory approved by British Telecom, which confirmed that a number of those sets had an output of less than 10 milliwatts. He considers, and the prosecution accepts, that in those circumstances possession of those sets was not subject to ministerial authorization. However, he disputes the prosecution' s view that it was none the less necessary for all the sets in question to meet the Belgian technical specifications and possess the corresponding type-approval from the RTT, and cites Directive 88-301 in support of his argument.

6 It is appears from the documents before the Court that Article 3 (1) of the Law of 30 July 1979 on radiocommunications (Moniteur Belge, 30 August 1979) makes it an offence to "be in possession of a radio transmitter or receiver ... without obtaining the written authorization of the [competent] minister". Article 3 (1) also provides that the ministerial authorization is personal and revocable.

7 In Article 5(3) of the Royal Decree of 15 October 1979 on private radiocommunications (Moniteur Belge, 30 October 1979), the King, who, pursuant to Article 3 (2) of the Law of 30 July 1979, is empowered to determine the cases in which no authorization is required, granted dispensation from authorization for "radioelectric installations approved by the RTT with an output power not exceeding 10 milliwatts", which includes cordless telephones.

8 Under a Law of 13 October 1930, the RTT has the sole right to establish and operate for public use telegraph and telephone lines and offices (including wireless telephony) in Belgium. Furthermore, under Article 2 of the Law on radiocommunications, the RTT is authorized to "undertake and operate any radiocommunication service".

9 Pursuant to Article 17 of the Royal Decree of 15 October 1979, the RTT is also responsible for "the management of the spectrum of radio frequencies and the regulation of their use in the Kingdom". To that end it is responsible for assigning the frequencies necessary for the operation of authorized radio stations and networks and with co-ordinating them at both national and international level. The RTT is also responsible for examining applications to the minister for authorization to keep a radio transmitter or receiver.

10 Lastly, Article 7 of the Belgian Law on radiocommunications provides that "no radio transmitter or receiver may be offered for sale or hire unless a model has been granted type-approval by the RTT as complying with the technical requirements laid down by the minister" and that "the detailed rules concerning type-approval shall be decreed by the minister".

11 In that regard, Article 1 of the Ministerial Decree of 19 October 1979 on private radiocommunications (Moniteur Belge, 30 October 1979), which lays down the detailed rules concerning type-approval, stipulates that those rules apply to all equipment made in or imported into Belgium for sale or hire and also to any equipment made by an individual for his own use. However, the RTT may, without first testing them, grant type-approval for imported radio transmitters or receivers which have already been approved for use in one of the Member States of the European Conference of Postal and Telecommunications Administrations, as meeting technical specifications equivalent to those defined in Article 6 of the Ministerial Decree.

12 Failure to comply with the requirements for authorization and type-approval is a punishable offence. RTT inspectors, acting as law-enforcement officers, check that users are complying with the applicable provisions and report any offences against the Law of 30 July 1979 and the implementing decrees.

13 Article 1 of Directive 88-301, on the markets in telecommunications terminal equipment, defines "terminal equipment" as equipment directly or indirectly connected to the termination of a public telecommunications network to send, process or receive information.

14 Article 5 of the directive provides that Member States are to publish all technical specifications and type-approval procedures which are used for terminal equipment.

15 Article 6 of the Directive provides:

"Member States shall ensure that, from 1 July 1989, responsibility for drawing up the specifications referred to in Article 5, monitoring their application and granting type-approval is entrusted to a body independent of public or private undertakings offering goods and/or services in the telecommunications sector."

16 Since it had doubts as to the compatibility with Community law of the legislation on which the prosecution relied against the accused in the main proceedings, the Tribunal de Première Instance, Brussels, stayed the proceedings and sought a ruling by Court on the following questions in Case C-46-90 Lagauche and Others:

"Are Articles 37 and 86 of the Treaty establishing the European Economic Community to be interpreted as prohibiting, in the field of radiocommunications and private radiocommunications, legal provisions such as the Law of 30 July 1979 and the Royal Decree of 15 October 1979, which impose penalties of imprisonment and/or fines on persons who have:

(1) offered for sale or hire transmitter or receiver, in this case cordless telephones, without type-approval having been granted by the RTT,

or

2. kept, set up or operated transmitters, in this case cordless telephones and a pair of walkie-talkies, without obtaining the written, personal and revocable authorization of the competent minister?"

and on the following questions in Case C-93-91, Evrard:

"Are Articles 30 to 37 and 86 of the Treaty establishing the European Economic community, together with the European Commission Directive of 16 May 1988 on competition in the markets in telecommunications terminal equipment, to be interpreted as prohibiting, in the field of radiocommunications, legal provisions such as the Law of 30 July 1979 and the Royal Decree of 15 October 1979 which impose penalties of imprisonment and/or fines on persons who have:

(1) possessed, within the Kingdom of Belgium or on board a vessel, boat, aircraft or any other structure governed by Belgian law, a radio transmitter or receiver or set up or operated in such place a radio station or network without having obtained the written, personal and revocable authorization of the minister or state secretary responsible for telegraphs and telephones; or,

(2) offered for sale or hire a radio transmitter or receiver no model of which has been granted type-approval by the Régie des Télégraphes et des Téléphones as complying with the technical requirements laid down by the minister responsible,

despite the possible existence of an official certification obtained under a procedure established by another Member State of the European Community?"

17 In Case C-46-90, which was assigned to the Fifth Chamber, there was a public hearing on 2 May 1991 and the Advocate General delivered his Opinion on 11 July 1991. Subsequently, pursuant to Article 95(3) of the Rules of Procedure, that case was referred back to the Court in plenary session. Following the Opinion of the Advocate General, it was decided, by order of 14 July 1993, to join the two cases for judgment.

18 Reference is made to the Reports for the Hearing for a fuller account of the facts of the main proceedings, the applicable Belgian legislation, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

19 By its questions, the national court seeks in substance to ascertain whether Articles 30 to 37 and 86 of the Treaty and Directive 88-301 preclude the application of national provisions such as those described above (paragraphs 6 to 12).

20 First of all, as regards the Treaty provisions on the free movement of goods, it is sufficient to examine those questions in turn from the point of view of Article 30 and from that of Article 37 of the Treaty.

21 Then, since Article 86 of the Treaty is aimed only at anti-competitive conduct engaged in by undertakings of their own initiative (see, inter alia, Case C-202-88 France v Commission [1991] ECR I-1223, paragraph 55), whereas the questions referred to the Court concern State measures, they must be examined from the point of view of Article 90 (1) of the Treaty, read in conjunction with Article 86.

22 It should also be observed that in Case C-46-90 the main proceedings concern conduct which took place prior to 1 July 1989, the date of the entry into force of Article 6 of Directive 88-301, while in Case C-93-91 it took place partly before and partly after that date.

23 Finally, it must be borne in mind that Directive 88-301 covers only equipment directly or indirectly connected to the termination of a public telecommunications network, so that not all the equipment concerned in the main proceedings falls within its scope.

24 Therefore, independently of the interpretation of Articles 30 and 37 of the Treaty, the questions must be examined in the light of Articles 86 and 90 (1) of the Treaty as regards the facts prior to 1 July 1989 and in the light of the directive as regards the facts subsequent to that date, observing the distinction between equipment which falls within the scope of the directive and that which does not.

Article 30 of the Treaty

25 In Case C-18-88 RTT v GB-Inno-BM [1991] ECR I-5941, the Court ruled that Article 30 of the Treaty precludes a public undertaking from being given the power to approve telephone equipment which is intended to be connected to the public network and which it has not supplied if the decisions of that undertaking cannot be challenged before the courts.

26 That interpretation must be extended to situations where a public undertaking approves radio transmitters or receivers, whether or not they are intended to operate over the public network.

27 The Belgian Government stated in its observations that where the RTT refuses to grant the type-approval in question an appeal lies to the Belgian Conseil d' État (Council of State).

28 Accordingly, and in so far as the type-approval procedure in question complies with the criteria laid down in the GB-Inno-BM judgment, it cannot be regarded as contrary to Article 30 of the Treaty.

29 It follows that Article 30 of the Treaty does not preclude a public undertaking from being given the power to grant type-approval for radio transmitters or receivers which it has not supplied, provided that the decisions of that undertaking can be challenged before the courts.

Article 37 of the Treaty

30 It must first be borne in mind that Article 37, which provides that the Member States are to adjust any State monopolies of a commercial character, applies to "any body through which a Member State, in law or in fact, either directly or indirectly supervises, determines or appreciably influences imports or exports between Member States. These provisions shall likewise apply to monopolies delegated by the State to others".

31 It must also be stressed that a ban on the possession of certain equipment without ministerial authorization does not fall within the scope of Article 37.

32 The prerogatives with which a public body such as the RTT is endowed include the examination of applications to the minister for authorization to possess radio transmitting or receiving equipment, the allocation and coordination of airwave frequencies and the granting of type-approval after checking that the equipment marketed complies with the technical specifications laid down by the minister. They are intended to avoid interference between radiocommunications.

33 Those prerogatives are therefore exercised in the context of a matter of State concern, namely the regulation of the public airwaves, and do not constitute a supply of services. Such an activity falls in any event outside the scope of Article 37 of the Treaty, which, as the Court has ruled (see, inter alia, Case 271-81 Amélioration de l' Élevage v Mialocq [1983] ECR 2057), applies to trade in goods and relates to monopolies over the provision of services only in so far as such a monopoly contravenes the principle of the free movement of goods by discriminating against imported products to the advantage of products of domestic origin.

34 Article 37 of the Treaty therefore does not preclude the application of national laws or regulations which prohibit the sale or hire of radio transmitters or receivers where a model has not been granted type-approval by the competent public body as complying with the technical requirements determined by the Minister.

Directive 88-301-EEC

35 It is now necessary to consider the implications of Directive 88-301 as regards the equipment to which it applies.

36 Directive 88-301 was adopted by the Commission pursuant to its legislative power under 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) (France v Commission, cited above, paragraphs 14 and 15).

37 Article 6 of the directive draws a distinction between activities or functions connected with drawing up the specifications of terminal equipment, monitoring their application and granting type-approval of such equipment, and those connected with the offering of goods and/or services in the telecommunications sector by public or private undertakings.

38 Article 6 requires the Member States to ensure that, from 1 July 1989, activities in the first category are entrusted to a body independent of undertakings engaging in activities in the second category.

39 It is agreed, as the Belgian Government accepted at the hearing, that that division of activities was not observed in Belgium during the period after 1 July 1989 relevant to the main proceedings.

40 It follows that, for equipment covered by Directive 88-301, and for the period after 1 July 1989, Article 6 of that directive precludes national rules which prohibit and lay down penalties for the offering for sale or hire of equipment without a model having been granted type-approval by a public undertaking offering goods and/or services in the telecommunications sector. It is for the national court to draw the conclusions from that finding.

41 As regards the period prior to 1 July 1989 and equipment not covered by the directive either prior to or subsequent to that date, the problem must be considered in the light of Article 90 (1), read in conjunction with Article 86, of the Treaty.

Article 90 (1), read in conjunction with Article 86, of the Treaty

42 Articles 86 and 90 form part of a set of rules designed to ensure, in the words of Article 3 (f) of the Treaty, that competition in the common market is not distorted.

43 As has been stated above, regulation of the public airwaves is necessary for the proper functioning of radiocommunications, both in the public service sector and in that of commercial and private activities. Such regulation is also necessary to achieve undistorted competition between economic operators who make use of radiocommunications and between producers and sellers of equipment, since they have every interest in having equipment which can be used without interference.

44 At the same time, it should be pointed out that a system of undistorted competition, as envisaged in the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators. That would not be the case if an undertaking which markets terminal equipment were entrusted with the task of drawing up the specifications for such equipment, monitoring their application and granting type-approval in respect thereof (France v Commission, paragraph 51, and RTT v GB-Inno-BM, paragraph 25).

45 The compatibility of national legislation such as the Belgian Law of 30 July 1979 with the requirements of the Treaty must be assessed in the light of those considerations.

46 As regards the requirement that written authorization for possession of transmitting or receiving equipment must be obtained from the minister responsible for telegraphs and telephones, as provided for in Article 3 (1) of the Belgian Law, it must be pointed out that only measures adopted by the Member States in regard to public undertakings and undertakings to which they grant special and/or exclusive rights fall within the scope of Article 90 (1). That provision of the Treaty cannot therefore be relied on as against a power of authorization conferred on a minister within the normal framework of his powers.

47 The same finding must apply to the mere function, as entrusted, for example, to the RTT, of examining applications to the minister for authorization, since that function is only incidental to the exercise of the ministerial power.

48 As regards the authority to grant type-approval, the Belgian Law applies without distinction to all radio transmitting or receiving equipment, including equipment, like cordless telephones, designed to be indirectly connected to a public telecommunications network.

49 It is clear from the wording of Article 7 of the Belgian Law that, in contrast to the situation in the GB-Inno-BM case, it is the minister who determines the technical requirements necessary for type-approval of such equipment and the detailed rules concerning that approval, and he does so within the framework of his powers to regulate radiocommunications in Belgian territory. While it is true that the RTT is authorized by Article 2 of that Law to undertake and operate any radiocommunication service, it is clear from the wording of Article 7 that its sole task as regards the type-approval of transmitting or receiving equipment is to check that such equipment complies with the requirements determined by the minister.

50 As regards equipment approved by the competent body of another Member State, it must be pointed out that as long as the telecommunication and radiocommunication systems of the Member States have not been harmonized, the fact that equipment has been approved by one Member State does not guarantee that it will not interfere with the proper functioning of those systems in the territory of another State whose technical requirements may still be different.

51 It follows that Article 90 (1), read in conjunction with Article 86, of the Treaty does not preclude the application of national provisions which prohibit the possession of radio transmitters or receivers without ministerial authorization and the sale or hire of such equipment without a model having been granted type-approval as complying with the technical requirements determined by the competent minister, even if the equipment has been approved in another Member State.

Costs

52 The costs incurred by the Belgian Government, the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in a nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions submitted to it by the Tribunal de Première Instance, Brussels, by judgments of 19 April 1989 and 11 March 1991, hereby rules:

1. Article 30 of the EEC Treaty does not preclude a public undertaking from being given the power to grant type-approval for radio transmitters or receivers which it has not supplied, provided that the decisions of that undertaking can be challenged before the courts.

2. Article 37 of the EEC Treaty does not preclude the application of national laws or regulations which prohibit the sale or hire of radio transmitters or receivers where a model has not been granted type-approval by the competent public body as complying with the technical requirements determined by the minister.

3. For equipment covered by Commission Directive 88-301-EEC of 16 May 1988 on competition in the markets in telecommunications terminal equipment, and the period after 1 July 1989, Article 6 of that directive precludes national rules which prohibit and lay down penalties for the offering for sale or hire of equipment without a model having been granted type-approval by a public undertaking offering goods and/or services in the telecommunications sector. It is for the national court to draw the conclusions from that finding.

4. Article 90 (1), read in conjunction with Article 86, of the EEC Treaty does not preclude the application of national provisions which prohibit the possession of radio transmitters or receivers without ministerial authorization and the sale or hire of such equipment without a model having been granted type-approval as complying with the technical requirements determined by the competent minister, even if the equipment has been granted approval in another Member State.