CELEX: 62001CJ0013
Directive 1999/5/EC
Radio equipment and telecommunications terminal equipment
Effective judicial protection of rights conferred by the Community legal order
Permissibility of administrative penalties under national legislation
Application to set aside a seizure measure against a third party

By orders of 4 January 2001 and 30 July 2002, received at the Court on 11 January 2001 and 19 August 2002 respectively, the
Giudice di pace di Genova (Magistrates Court, Genoa) referred to the Court for a preliminary ruling under Article 234 EC a
question on the interpretation of the principles of proportionality, effectiveness and judicial protection of rights conferred
by the Community legal order.
That question arose in the course of a dispute between Safalero Srl (hereinafter
Safalero) and the Prefetto di Genova (Prefect of Genoa) over the seizure of a certain number of radio-controls sold by Safalero to
a retailer and seized from that retailer by the Italian authorities.
Relevant provisions
Community legislation
Article 1 of Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications
terminal equipment and the mutual recognition of their conformity (OJ 1999 L 91, p. 10, hereinafter
the Directive) establishes a regulatory framework for the placing on the market, free movement and putting into service in the Community
of radio equipment and telecommunications terminal equipment.
Article 2(c) of the Directive defines radio equipment as
a product, or relevant component thereof, capable of communication by means of the emission and/or reception of radio waves
utilising the spectrum allocated to terrestrial/space radio communication.
Article 3(1) of the Directive provides that certain essential requirements are applicable to all apparatus.  In addition,
Article 3(2) provides that radio equipment is to be so constructed that it effectively uses the spectrum allocated to terrestrial/space
radio communication so as to avoid harmful interference.
Article 5 of the Directive states that, when apparatus meets the harmonised standards, there is a presumption of compliance
with the essential requirements of Article 3.
Article 6(1) of the Directive provides:  Member States shall ensure that apparatus is placed on the market only if it complies with the appropriate essential requirements
identified in Article 3 and the other relevant provisions of this Directive when it is properly installed and maintained and
used for its intended purpose.  It shall not be subject to further national provisions in respect of placing on the market.
Article 6(4) of the Directive provides: In the case of radio equipment using frequency bands whose use is not harmonised throughout the Community, the manufacturer
or his authorised representative established within the Community or the person responsible for placing the equipment on the
market shall notify the national authority responsible in the relevant Member State for spectrum management of the intention
to place such equipment on its national market.This notification shall be given no less than four weeks in advance of the start of placing on the market and shall provide
information about the radio characteristics of the equipment (in particular frequency bands, channel spacing, type of modulation
and RF-power) and the identification number of the notified body referred to in Annex IV or V.
Article 7(1) and (2) of the Directive provide:
1.
Member States shall allow the putting into service of apparatus for its intended purpose where it complies with the appropriate
essential requirements identified in Article 3 and the other relevant provisions of this Directive.
2.
Notwithstanding paragraph 1, and without prejudice to conditions attached to authorisations for the provision of the service
concerned in conformity with Community law, Member States may restrict the putting into service of radio equipment only for
reasons related to the effective and appropriate use of the radio spectrum, avoidance of harmful interference or matters relating
to public health.
Article 8(1) of the Directive provides: Member States shall not prohibit, restrict or impede the placing on the market and putting into service in their territory
of apparatus bearing the CE marking referred to in Annex VII, which indicates its conformity with all provisions of this Directive,
including the conformity assessment procedures set out in Chapter II. This shall be without prejudice to Articles 6(4), 7(2)
and 9(5).
Article 9(1) of the Directive reads as follows: Where a Member State ascertains that apparatus within the scope of this Directive does not comply with the requirements of
this Directive, it shall take all appropriate measures in its territory to withdraw the apparatus from the market or from
service, prohibit its placing on the market or putting into service or restrict its free movement.
Article 9(5) of the Directive provides:
(a)
Notwithstanding the provisions of Article 6, a Member State may, acting in conformity with the Treaty, and in particular Articles
30 and 36 thereof, adopt any appropriate measures with a view to:
(i)
prohibiting or restricting the placing on its market, and/or
(ii)
requiring the withdrawal from its market, of radio equipment, including types of radio equipment, which has caused or which it reasonably considers will cause harmful
interference, including interference with existing or planned services on nationally allocated frequency bands.
(b)
Where a Member State takes measures in accordance with subparagraph (a) it shall immediately inform the Commission of the
said measures, specifying the reasons for adopting them.
Article 12(1) of the Directive provides:  Apparatus complying with all relevant essential requirements shall bear the CE conformity marking referred to in Annex VII.
...
Article 19(1) of the Directive provides: Member States shall not later than 7 April 2000 adopt and publish the laws, regulations and administrative provisions necessary
to comply with this Directive. They shall forthwith inform the Commission thereof.  They shall apply these provisions as from
8 April 2000....
In addition, Article 1 of Decision No 3052/95/EC of the European Parliament and of the Council of 13 December 1995 establishing
a procedure for the exchange of information on national measures derogating from the principle of the free movement of goods
within the Community (OJ 1995 L 321, p. 1) provides:  Where a Member State takes steps to prevent the free movement or placing on the market of a particular model or type of product
lawfully produced or marketed in another Member State, it shall notify the Commission accordingly where the direct or indirect
effect of the measure is:
─
a general ban on the goods,
a general ban on the goods,
─
a refusal to allow the goods to be placed on the market,
a refusal to allow the goods to be placed on the market,
─
the modification of the model or type of product concerned before it can be placed or kept on the market, or
the modification of the model or type of product concerned before it can be placed or kept on the market, or
─
withdrawal of the goods from the market.
withdrawal of the goods from the market.
Article 3 of Decision 3052/95 states:
1.
The notification requirement laid down in Article 1 shall apply to measures taken by the competent authorities of the Member
States so authorised, with the exception of judicial decisions.
Where a particular model or type of product is the subject of several measures, adopted under identical substantive conditions
and procedures, only the first of those measures shall be subject to the notification requirement.
2.
Article 1 shall not apply to:
─
measures taken solely in pursuance of Community harmonisation measures,
measures taken solely in pursuance of Community harmonisation measures,
─
measures notified to the Commission under specific provisions,
measures notified to the Commission under specific provisions,
─
draft measures notified to the Commission under specific Community provisions,
draft measures notified to the Commission under specific Community provisions,
─
measures preparing or leading up to the main measure referred to in Article 1, such as preventive measures or investigations,
measures preparing or leading up to the main measure referred to in Article 1, such as preventive measures or investigations,
─
measures relating solely to the protection of public morality or public order,
measures relating solely to the protection of public morality or public order,
─
measures relating to second-hand goods which, with time or use, have become unsuitable for being placed or kept on the market.
measures relating to second-hand goods which, with time or use, have become unsuitable for being placed or kept on the market.
3.
The initiation of proceedings for judicial review of such a main measure shall under no circumstances result in suspension
of the application of Article 1.
National legislation
In Italy, the marketing and use of radio apparatus, including apparatus for non-professionals, is regulated by the Codice
postale (hereinafter
the Postal Regulations) established by Presidential Decree No 156 of 29 March 1973 (GURI No 113 of 3 May 1973, p. 2), as amended by Law No 209 of
22 May 1980 (GURI No 155 of 7 June 1980, p. 4988).
Article 398 of the Postal Regulations lays down rules for the prevention and elimination of interference with the transmission
and reception of radio signals.  It reads as follows in its amended version: It is forbidden to build or to import into the national territory, for commercial purposes, to use or to operate, in any capacity,
electrical or radio-electrical equipment or systems or networks, which do not comply with the standards established for the
prevention and elimination of interference with the transmission and reception of radio signals.Those rules, which also lay down the methods for checking conformity, shall be published by decree of the Minister for Posts
and Telecommunications, acting together with the Minister for Industry, Commerce and Crafts, in accordance with the directives
of the European Communities.The placing on the market and the importation for commercial purposes of the equipment referred to in the first paragraph
are conditional upon the issue of a certificate, marking or attestation of conformity or upon production of a declaration
of conformity in accordance with rules to be established by decree as referred to in the second paragraph.The bodies and persons authorised to endorse type-approval stamps or issue conformity certificates as provided for in the
preceding paragraph shall be appointed by decree of the Minister for Posts and Telecommunications, acting together with the
Minister for Industry, Commerce and Crafts.
The rules laid down in Article 398 of the Postal Regulations were enacted by Ministerial Decree of 15 July 1977 (GURI No 226
of 20 August 1977, p. 6104) concerning the frequencies reserved for low-power receiving and transmitting radio apparatus,
as amended by Ministerial Decree of 8 November 1996 (GURI No 274 of 22 November 1996, p. 9), which provides for the obligation
to affix a stamp attesting to type-approval by the postal authorities (now the Ministry of Communications).
Article 2 of the Ministerial Decree of 15 July 1977 provides: The apparatus referred to in the preceding article must be of a type approved by the authorities based on technical standards
set out in Annex 1 to the present decree.The approval certificate shall indicate for which purposes the apparatus is to be used and the particulars of the approval.
Those particulars are to be shown on the stamp provided for in Article 334(2)(c) of the Postal Regulations in accordance
with the example given in Annex 2.The use of the apparatus remains subject to possession of such approval by the owner thereof.
Article 399 of the Postal Regulations, as amended, provides for penalties in the event of non-compliance with Article 398
thereof.  It reads as follows: Any person who infringes the provisions of Article 398 shall be fined in an amount between ITL 15 000 and ITL 300 000 by way
of administrative penalty.Where such a person may be classified as a manufacturer or importer of electrical or radio-electrical equipment or systems,
the fine to be imposed by way of administrative penalty shall be in an amount between ITL 50 000 and ITL 1 000 000 and, in
addition, products or equipment which are not certified as being in conformity in accordance with the provisions of Article
398 shall be subject to confiscation.
The Italian Government has not implemented the Directive in its national law within the period it prescribes.  However, circular
No GM/123709/4517 DL/CR of 17 April 2000  of the Ministry of Communications (GURI No 101 of 3 May 2000, p. 67) provides:
1.
For the purposes of placing on the market and putting into service of telecommunications terminal equipment and radio equipment,
the services of the Ministry of Communications shall comply with the provisions of Directive 1999/5/EC of the European Parliament
and of the Council of 9 March 1999, within the limits set out in Article 1(4) of the Directive.
2.
The Ministry of Communications shall take the necessary measures to prohibit the placing on the market and the putting into
service, to withdraw from the market or from service, or to limit the free movement of apparatus which does not comply with
the prescribed conditions.
In addition, the fourth paragraph of Article 20 of Law No 689 of 24 November 1981 (GURI No 329 of 30 November 1981, General
Supplement), amending the penal system, provides:
The administrative confiscation of goods whose manufacture, use, carriage, possession or disposal constitutes an administrative
offence shall always be ordered even where an order for payment is not made.
In the order for reference, the Giudice di pace di Genova adds that, according to the case-law of the Corte suprema di Cassazione
(Supreme Court of Cassation, Italy) in respect of administrative offences, the scope of the objection procedure is confined
to the verification of the lawfulness of the penalty imposed on the author of the administrative offence, such procedure not
permitting, for the purpose of opposition, either intervention, joinder or third-party proceedings in respect of a guarantee.
The
Radiosistemi
case
The Court of Justice, to which the Giudice di pace di Genova referred questions for a preliminary ruling in the course of
a dispute over the seizure of a certain number of radio-controls marketed in Italy for scale models of powered cars, gave
its ruling by judgment of 20 June 2002 in Joined Cases C-388/00 and C-429/00
Radiosistemi
[2002] ECR I-5845.  In that judgment the Court held:
(1)
Article 28 EC precludes legislation and national administrative practice which ─ in the context of a system where matters
concerning conformity assessment procedures for the purposes of placing radio equipment on the market and putting such equipment
into service have been delegated to the administrative authorities, to be decided at their discretion ─ prevents economic
operators from importing, marketing or holding in stock, with a view to selling, radio equipment that has not undergone national
type-approval, and which does not admit other forms of evidence, equally reliable but less burdensome to obtain, to prove
that such equipment is in conformity with requirements concerning the proper use of the radio frequencies authorised under
national law.
(2)
The provisions of the second sentence of Article 6(1), Article 7(1) and Article 8(1) of [the] Directive ... confer on individuals
rights which may be relied upon before national courts even though the Directive itself has not been formally implemented
in national law within the period prescribed.  Article 7(2) of the Directive does not allow for the maintenance in force of
legislation or administrative practice which, after 8 April 2000, prohibits the marketing or the putting into service of radio
equipment which does not bear national type-approval stamp, where it has been confirmed that such equipment makes efficient
and proper use of the radio frequencies authorised under national law, or where it is easy to verify that this is the case.
(3)
The term
measure within the meaning of Article 1 of  Decision No 3052/95 ... includes any measures, other than judicial decisions, taken by
a Member State having the effect of restricting the free movement of goods lawfully produced or marketed in another Member
State.  Where the administrative authorities, having seized a particular model or a particular type of product which is lawfully
marketed in another Member State, continue to withhold that model or product after a check has been carried out by the public
authorities responsible for technical checks to ascertain that the product in question is in conformity with both national
and Community legislation, that is a
measure which must be notified to the Commission within the meaning of that provision.
(4)
Where national provisions have been recognised as being contrary to Community law, the imposition of fines or other coercive
measures for infringements of those provisions is also incompatible with Community law.
The main dispute and the question referred for a preliminary ruling
Safalero is an Italian undertaking which produces radio-controlled scale model aeroplanes propelled by combustion engines
or electric motors.  It manufactures the scale models but not the remote control units, which are imported from Member States
of the European Union and distributed by the importer, in this instance Safalero, which sells to retailers the complete kits
consisting of the scale model, the motor and the radio-control unit.
On 8 February 2000, officers of the Ligurian Postal Police visited the premises of an undertaking called Vitale (hereinafter
Vitale), which is a retailer operating at Genoa (Italy) in the model-making sector.  They seized seven radio-control units, which
that undertaking had purchased from Safalero, on the ground that they did not bear the type-approval stamp required by Article
398 of the Postal Regulations.
Vitale brought an administrative appeal before the Prefetto di Genova, who, by order of 26 April 2000, rejected the appeal,
fined Vitale ITL 33 000 and ordered the confiscation of the previously seized goods with a view to their destruction.  Vitale
has not brought any court proceedings against that prefectoral decision.
By reports dated 17 February 2000, the Postal Police charged Safalero, as the company which had sold the seized apparatus,
with having infringed Articles 398 and 399 of the Postal Regulations, and imposed on it an administrative penalty of ITL 100 000
for each infringement charged, that is a total of ITL 300 000.
On 18 April 2000, Safalero brought an administrative appeal against those decisions before the Prefetto di Genova, as well
as an application for the return of the seized radio-control units, which Vitale had bought from it, claiming, among other
things, that the seized apparatus are technically in conformity with the national rules in force, since they function only
on the radio frequencies authorised and bear the required CE marking.
By order of 21 April 2000, the Prefetto di Genova rejected Safalero's appeal and application for the return of the goods,
and ordered it to pay, by way of fine for the infringements, the sum of ITL 330 000.  He based his decision on the grounds
that Safalero had no standing to challenge the decision ordering such seizure, which was addressed to Vitale, that the failure
to affix the national type-approval stamp constituted, in itself, an infringement of Article 398 of the Postal Regulations
and that that article is consistent with the Community legislation.
On 22 June 2000, Safalero brought an action for judicial review of that prefectoral order before the Guidice di pace di Genova,
claiming that the decision to seize the radio-control units constituted a
general ban on the goods within the meaning of Decision No 3052/95 which should have been notified to the Commission by virtue of Article 1 of that
decision.  Safalero argued further that as it was not ordered for a preventive or evidential purpose, but with a view to the
confiscation of the apparatus, such seizure is contrary both to the principle of proportionality guaranteed by the Community
legal order and to the Directive.
In the order for reference, the Guidice di pace states that the compliance of the apparatus in question was not only confirmed
by the documentation submitted by Safalero but also accepted, on the technical level, by the Prefecture and that it is no
longer in issue.
Furthermore, the Giudice di pace held that, since opposition proceedings, under the special rules laid down by Law No 689,
are limited to reviewing the lawfulness of the penalty imposed on the author of the administrative offence, where there is
a chain of sales, the first seller cannot assert directly against the administrative authorities the legal conformity of the
apparatus which has been seized from the purchaser.
The Giudice di pace has also pointed out that, by virtue of Articles 1490 and 1497 of the Italian Civil Code, the seller must
provide a guarantee both to the purchaser and to the final consumer as to the quality and fitness for purpose of the products
sold.
In those circumstances, the Giudice di pace di Genova, by order of 4 January 2001, decided to stay the proceedings and to
refer two questions to the Court for a preliminary ruling.
By order of 30 July 2002 that court, after noting that the judgment in
Radiosistemi
, cited above, answers the second question referred, withdrew it, but maintained the reference for a preliminary ruling in
relation to the first question, which is in the following terms. Are the rules on procedure and on sanctions for administrative offences laid down by Law No 689 of 24 November 1981 compatible
with the principles of proportionality, effectiveness and adequate legal protection of the rights conferred by Community law
on individuals, laid down in the Treaty and/or set out and defined in the case-law of the Court of Justice, where:
─
the offender cannot institute court proceedings against a measure authorising seizure adopted by the administrative authorities
until the administrative authorities themselves, without being constrained by procedural time-limits, have issued a payment
order or a confiscation order;
the offender cannot institute court proceedings against a measure authorising seizure adopted by the administrative authorities
until the administrative authorities themselves, without being constrained by procedural time-limits, have issued a payment
order or a confiscation order;
─
a person directly and individually concerned by a measure adopted by the administrative authorities is not allowed to institute
court proceedings where the measure itself is addressed to other persons;
a person directly and individually concerned by a measure adopted by the administrative authorities is not allowed to institute
court proceedings where the measure itself is addressed to other persons;
─
a person directly and individually concerned by a measure adopted by the administrative authorities and addressed to other
persons is not allowed to participate, even as a voluntary intervener, in opposition proceedings brought against such a measure;
a person directly and individually concerned by a measure adopted by the administrative authorities and addressed to other
persons is not allowed to participate, even as a voluntary intervener, in opposition proceedings brought against such a measure;
─
provision is made, with no possibility for a court to make a different and discretionary assessment, for the additional penalty
of confiscation of the goods where the offence is purely administrative, the main penalty being pecuniary and involving payment
of a sum of money which may be quite modest?
provision is made, with no possibility for a court to make a different and discretionary assessment, for the additional penalty
of confiscation of the goods where the offence is purely administrative, the main penalty being pecuniary and involving payment
of a sum of money which may be quite modest?
Findings of the Court
The first paragraph of the question referred concerns cases where the public authorities do not issue a payment order or a
confiscation order.
In that regard, it is clear from the file as forwarded to the Court by the national court that such is not the case in the
main proceedings, since the Prefetto di Genova, by his order of 26 April 2000, ordered the confiscation of the seized apparatus.
As that question is hypothetical, it is unnecessary to reply to it (see Case C-379/98
PreussenElektra
[2001] ECR I-2099, paragraph 39).
As regards the third paragraph of the question referred, it deals with the case where a person concerned by a measure adopted
by the public authorities with regard to a third party is not allowed to intervene in the court proceedings brought by that
third party against such measure.
As the Advocate General pointed out in paragraph 39 of her Opinion, since Vitale has not brought court proceedings against
the measure taken against it, the question whether the fact that a person concerned by that measure, such as Safalero, is
not allowed to intervene in court proceedings brought by a third party such as Vitale against that measure is compatible with
Community law is a hypothetical question to which it is not necessary to reply.
With regard to the fourth paragraph of the question referred, the national court has held that the apparatus in question was
seized solely because it did not bear the national type-approval mark provided for by the Italian legislation.
The judgment in
Radiosistemi
, cited above (particularly paragraphs 47 and 66), states that such a requirement of national law is incompatible with Community
law which has direct effect, whether it be Article 28 EC or the provisions of the Directive which acquire direct effect after
the expiry of the time-limit for its implementation.
Furthermore, it follows from the judgment in
Radiosistemi
(particularly paragraphs 79 and 80), that a system of penalties which provides for fines or other coercive measures to ensure
compliance with national rules that are recognised as being contrary to Community law must be held, from that fact alone,
to be contrary to Community law, without there being any need to examine whether it meets the tests of non-discrimination
or proportionality.
It follows therefrom that a seizure of goods such as that in issue in the main proceedings is contrary to Community law.
Consequently, it is unnecessary to answer the question whether the limitation of the national court's power to a simple review
of the lawfulness of the penalty imposed, without any possibility to make a different and unfettered assessment of that penalty,
is compatible with Community law.
As for its second paragraph, the question does not refer to the fine imposed on Safalero, but only Safalero's application
for return of the apparatus seized from the purchaser.  In that regard, it is clear from the order for reference and from
the file of the main proceedings that the Prefetto di Genova, by his decision of 21 April 2000, rejected that application
on the ground that Safalero had no standing to challenge the decision pronouncing such seizure, which was addressed to Vitale.
The question is therefore, in essence, whether, in circumstances such as those in the main proceedings, Community law precludes
national legislation by virtue of which an importer cannot bring court proceedings to challenge a measure adopted by the public
authorities under which goods sold to a retailer are seized.
As a preliminary point, it should be recalled that, in the absence of Community rules governing the matter, it is for the
domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed
procedural rules governing actions for safeguarding rights which individuals derive directly from Community law, provided
that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that
they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle
of effectiveness) (see, among others, Case 33/76
Rewe
[1976] ECR 1989, paragraph 5, and Case C-453/99
Courage and Crehan
[2001] ECR I-6297, paragraph 29).
Moreover, while it is, in principle, for national law to determine an individual's standing and legal interest in bringing
proceedings, Community law nevertheless requires that the national legislation does not undermine the right to effective judicial
protection (see Joined Cases C-87/90 to C-89/90
Verholen and Others
[1991] ECR I-3757, paragraph 24).
As has been stated in paragraphs 27 and 43 of this judgment, the apparatus in issue in the main proceedings was seized from
Vitale solely because it did not bear the type-approval stamp required by Article 398 of the Postal Regulations.
It has been noted in paragraph 44 of this judgment that Community law precludes such a requirement of national law.
As noted in paragraphs 29 and 31 of this judgment, Safalero was also charged, as the seller of the seized apparatus, with
having infringed Article 398 of the Postal Regulations and subjected to an administrative fine on that account.
Since, in a situation such as that in the main proceedings, an importer such as Safalero can claim in court proceedings against
the public authorities that the fine imposed on it because the apparatus sold did not bear the type-approval stamp required
by Article 398 of the Postal Regulations is illegal under Community law, it is necessary to consider whether there is available
to it a legal remedy which ensures effective judicial protection of the rights which it derives from Community law.
In the present case it is clear that such an importer's interest in not having his trade impeded because of a national provision
which is contrary to Community law is sufficiently protected where he can obtain a court decision establishing the incompatibility
of that provision with Community law.
In the light of all the foregoing, the answer to the question referred is that the principle of effective judicial protection
of the rights which the Community legal order confers on individuals is to be construed, in circumstances such as those in
the main proceedings, as not precluding national legislation under which an importer cannot bring court proceedings to challenge
a measure adopted by the public authorities under which goods sold to a retailer are seized, where there is available to that
importer a legal remedy which ensures respect for the rights conferred on him by Community law.
Costs
The costs incurred by the Italian and French Governments and by the Commission, 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.
On those grounds,
THE COURT (Sixth Chamber),
in answer to the question referred to it by the Giudice di pace di Genova by orders of 4 January 2001 and 30 July 2002, hereby
rules:
Puissochet
Schintgen
Gulmann
Macken
Cunha Rodrigues
Delivered in open court in Luxembourg on 11 September 2003.
R. Grass
J.-P. Puissochet
Registrar
President of the Sixth Chamber
–
Language of the case: Italian.