CJEC, October 27, 1993, No C-92/91

THE COURT,

1 By judgment of 5 March 1991, received at the Court on 13 March 1991, the Tribunal de Police (Local Criminal Court), Vichy (France), referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Commission Directive 88-301-EEC of 16 May 1988 on competition in the market in telecommunications terminal equipment (OJ 1988 L 131, p. 73) in order to assess the compatibility therewith of the system established by French Decree No 85-712 of 11 July 1985 applying the Law of 1 August 1905 and concerning equipment capable of being connected to the public telecommunications network.

2 That question was raised in criminal proceedings against Mrs Neny, née Taillandier, who was charged with selling on 5 April 1990 telecommunications terminals (fax machines) without first applying for or obtaining type-approval under Articles 1 to 7 of the decree referred to above. The defendant, however, objected that the decree was unlawful in the light of Directive 88-301.

3 As the documents before the Court show, under the aforesaid decree equipment capable of being connected to the public network may not be manufactured for the domestic market, imported for consumption, stocked for sale, marketed or distributed either free of charge or for consideration unless it complies with a number of requirements aimed at safeguarding the proper functioning of the network and user safety (Articles 3 and 4). As evidence that the equipment complies with those requirements, the traders concerned must submit either a report drawn up by a body authorized by the Minister for Industry, or a type-approval certificate issued pursuant to the Postal and Telecommunications Code, or else a certificate of compliance issued pursuant to the law on consumer protection and information or other document recognized as equivalent by decree of the Minister for Industry (Article 6). Article 7 of the decree specifies the penalty to be imposed on those in breach of the obligation to show that the equipment in question complies with the requirements laid down.

4 On 1 November 1985, the Minister for Industrial Redeployment and Foreign Trade issued for the application of Decree No 85-712 a notice relating to terminal equipment capable of being connected to the public telecommunications network. The notice specifies inter alia how the parties concerned can show evidence that the terminal equipment complies with the regulations. It states that the Centre National d' Etudes des Télécommunications (CNET) has been authorized by the Minister for Industry to issue the report referred to in Article 6 of the aforesaid decree, that type-approval is to be granted by the Direction Générale des Télécommunications, pursuant to the Postal and Telecommunications Code, in respect of equipment complying with the specifications set out in the list annexed to the notice, and that the other documents attesting compliance, referred to in Article 6, are to be established in due course. The proceedings before the Court have not made clear whether, following the notice of November 1985, the system of issuing documents other than the type-approval certificate and the CNET report had been established.

5 Taking the view that the dispute raised a problem concerning the interpretation of the Community rules at issue, the Tribunal de Police, Vichy, decided to seek a preliminary ruling from the Court on the following question:

"Does Commission Directive 88-301-EEC of 16 May 1988 on competition in the markets in telecommunications terminal equipment prohibit a procedure whereby telecommunications equipment to be offered for sale to the consumer must be submitted for the approval of the national telecommunications authority, the absence of a reference to such approval on the equipment being punishable by a fine of between FF 1 300 and FF 2 500, as provided for in Decree No 85-712 of 11 July 1985?"

6 Reference is made to the Report for the Hearing for a fuller account of the facts, the legislative background to the dispute in the main proceedings, 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.

7 In its question, the national court asks in substance whether Article 6 of Directive 88-301 precludes national rules, of the kind referred to in the dispute in the main proceedings, which prohibit economic operators, with penalties for infringement, from manufacturing, importing, stocking for sale, selling or distributing terminal equipment without showing, by the submission of a type-approval certificate or any other document regarded as equivalent, that the equipment complies with certain fundamental requirements relating, in particular, to user safety and the proper functioning of the network, where there is no guarantee of the independence, in relation to any operator offering goods and/or services in the telecommunications sector, of the body which issues the type-approval certificate or other equivalent document and draws up the technical specifications with which such equipment must comply.

8 Article 6 of Directive 88-301 provides as follows: "Member States shall ensure that, from 1 July 1989, responsibility for drawing up the specifications ... 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."

9 It is apparent from the documents before the Court that, under the provisions of Decree No 86-129 of 28 January 1986 (Articles 13 to 15), the Direction Générale des Télécommunications in the Ministry for Posts and Telecommunications was responsible for operating the public network, implementing the commercial policy on telecommunications, drawing up technical specifications, monitoring their application and granting type-approval for terminal equipment. In the proceedings before the Court, the French Government pointed out that the CNET, whose report was regarded as equivalent to type-approval, formed part of the Direction Générale des Télécommunications as a research centre.

10 By Decree No 89-327 of 19 May 1989, amending Decree No 86-129, the tasks of drawing up technical specifications, monitoring their application and granting type-approval of terminal equipment were transferred to the new Direction de la Réglementation Générale in the same Ministry.

11 It appears from the rules at issue, therefore, that during the relevant period, different directorates of the French Ministry for Posts and Telecommunications were responsible simultaneously for operating the public network, implementing the commercial policy on telecommunications, drawing up technical specifications, monitoring their application and granting type-approval in respect of terminal equipment.

12 In those circumstances, it is necessary to verify, in the light of Article 6 of the directive, first, whether the French postal and telecommunications authorities can be regarded as a public undertaking for the purposes of Community law and, secondly, whether the criterion of the independence of the body responsible for drawing up the specifications, monitoring their application and granting type-approval has been satisfied.

13 With regard to the concept of "undertaking", the second indent of Article 1 of the directive defines it as meaning "a public or private body, to which a Member State grants special or exclusive rights for the importation, marketing, connection, bringing into service of telecommunications terminal equipment and/or maintenance of such equipment".

14 It is important to note that where, as in the main proceedings, the operation of the public network and the marketing of terminal equipment are entrusted to bodies forming part of the public administration, that cannot prevent those bodies from being classified as public undertakings. As the Court stated in connection with Commission Directive 80-723-EEC of 25 June 1980 on the transparency of financial relations between Member States and public undertakings (OJ 1980 L 195, p. 35), a body carrying on economic activities of an industrial or a commercial nature does not need to have legal personality separate from that of the State in order to be regarded as a public undertaking. If it were otherwise, the effectiveness of the directive in question and its uniform application in all the Member States would be undermined (see the judgment in Case 118-85 Commission v Italy [1987] ECR 2599, paragraph 13).

15 So far as concerns the requirement that the body responsible for drawing up the specifications, monitoring their application and granting type-approval must be independent, suffice it to note that the different directorates of a single authority cannot be regarded as independent of each other for the purposes of Article 6 of the directive.

16 In those circumstances, the answer to the national court' s question must be that Article 6 of Directive 88-301 precludes national rules which prohibit economic operators, with penalties for infringement, from manufacturing, importing, stocking for sale, selling or distributing terminal equipment without showing, by the submission of a type-approval certificate or any other document regarded as equivalent, that the equipment complies with certain fundamental requirements relating, in particular, to user safety and the proper functioning of the network, where there is no guarantee of the independence, in relation to any operator offering goods and/or services in the telecommunications sector, of the body which issues the type-approval certificate or other equivalent document and draws up the technical specifications with which such equipment must comply.

Costs

17 The costs incurred by the Government of the French Republic, the United Kingdom 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 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 referred to it by the Tribunal de Police, Vichy, by judgment of 5 March 1991, hereby rules:

Article 6 of Commission Directive 88-301-EEC of 16 May 1988 on competition in the markets in telecommunications terminal equipment precludes national rules which prohibit economic operators, with penalties for infringement, from manufacturing, importing, stocking for sale, selling or distributing terminal equipment without showing, by the submission of a type-approval certificate or any other document regarded as equivalent, that the equipment complies with certain fundamental requirements relating, in particular, to user safety and the proper functioning of the network, where there is no guarantee of the independence, in relation to any operator offering goods and/or services in the telecommunications sector, of the body which issues the type-approval certificate or other equivalent document and draws up the technical specifications with which such equipment must comply.