# C_2009153EN.01001201.xml

| 4.7.2009 | EN | Official Journal of the European Union | C 153/12 |
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4.7.2009

EN

Official Journal of the European Union

C 153/12

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Judgment of the Court (Eighth Chamber) of 30 April 2009 (reference for a preliminary ruling from the Fővárosi Bíróság (Republic of Hungary)) — Lidl Magyarország Kereskedelmi bt. v Nemzeti Hírközlési Hatóság Tanácsa

(Case C-132/08) (1)

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(Free movement of goods - Radio equipment and telecommunications terminal equipment - Mutual recognition of conformity - Non-recognition of the declaration of conformity issued by the manufacturer established in another Member State)

2009/C 153/23

Language of the case: Hungarian

Referring court

Referring court

Fővárosi Bíróság

Parties to the main proceedings

Parties to the main proceedings

Applicant: Lidl Magyarország Kereskedelmi bt.

Applicant:

Defendant: Nemzeti Hírközlési Hatóság Tanácsa

Defendant:

Re:

Re:

Reference for a preliminary ruling — Fővarosi Bíróság — Interpretation of Article 30 EC, of Article 8 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) and of Articles 2(e) and (f), 6(1) and 8(2) of Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety (OJ 2002 L 11, p. 4) — National legislation requiring importers of radio equipment using frequency bands whose use is not harmonised throughout the Community and bearing the CE mark to issue a declaration of conformity in accordance with the provisions of national law, even if the equipment at issue is accompanied by a declaration of conformity issued by the producer established ion another Member State

Operative part of the judgment

Operative part of the judgment

| 1. | Member States cannot require a person who places radio equipment on the market to provide a declaration of conformity even though the producer of that equipment, whose head office is situated in another Member State, has affixed the ‘CE’ marking to that product and issued a declaration of conformity in its regard. |
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1.

Member States cannot require a person who places radio equipment on the market to provide a declaration of conformity even though the producer of that equipment, whose head office is situated in another Member State, has affixed the ‘CE’ marking to that product and issued a declaration of conformity in its regard.

| 2. | Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety does not apply to the determination of questions concerning the obligation of a person to provide a declaration of conformity of radio equipment. As regards the power of the Member States, in accordance with Directive 2001/95, in connection with the marketing of radio equipment, to impose obligations other than the presentation of a declaration of conformity, a person who markets a product may be regarded as being the producer of that product only under the conditions laid down by Directive 2001/95 itself in Article 2(e), and as being the distributor of that product only under the conditions set out in Article 2(f). The producer and the distributor may be bound only by obligations which Directive 2001/95 imposes on each of them respectively. |
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2.

Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety does not apply to the determination of questions concerning the obligation of a person to provide a declaration of conformity of radio equipment. As regards the power of the Member States, in accordance with Directive 2001/95, in connection with the marketing of radio equipment, to impose obligations other than the presentation of a declaration of conformity, a person who markets a product may be regarded as being the producer of that product only under the conditions laid down by Directive 2001/95 itself in Article 2(e), and as being the distributor of that product only under the conditions set out in Article 2(f). The producer and the distributor may be bound only by obligations which Directive 2001/95 imposes on each of them respectively.

| 3. | Where a matter is regulated in a harmonised manner at Community level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not in that of Articles 28 EC and 30 EC. In matters coming under Directive 1999/5 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, Member States must comply in full with the provisions of that directive and may not maintain in force contrary national provisions. In the case where a Member State takes the view that conformity with a harmonised standard does not guarantee compliance with the essential requirements laid down by Directive 1999/5 which that standard is supposed to cover, that Member State is required to follow the procedure set out in Article 5 of that directive. By contrast, a Member State may, in support of a restriction, invoke grounds external to the field harmonised by Directive 1999/5. In such a case, it may invoke only the reasons laid down in Article 30 EC or mandatory requirements relating to the public interest. |
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3.

Where a matter is regulated in a harmonised manner at Community level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not in that of Articles 28 EC and 30 EC. In matters coming under Directive 1999/5 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, Member States must comply in full with the provisions of that directive and may not maintain in force contrary national provisions. In the case where a Member State takes the view that conformity with a harmonised standard does not guarantee compliance with the essential requirements laid down by Directive 1999/5 which that standard is supposed to cover, that Member State is required to follow the procedure set out in Article 5 of that directive. By contrast, a Member State may, in support of a restriction, invoke grounds external to the field harmonised by Directive 1999/5. In such a case, it may invoke only the reasons laid down in Article 30 EC or mandatory requirements relating to the public interest.

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(1)  OJ C 183, 19.7.2008.

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