Opinion of the Advocate General — ECLI:EU:C:2002:113
Date: 2002-02-21
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Quantitative restrictions;Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 
1. Free movement of goods — Quantitative restrictions — Measures having equivalent 
effect — National legislation prohibiting the marketing of radio apparatus which does 
not bear the national type-approval stamp — Not permissible 
(Art. 28 EC) 
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SUMMARY — JOINED CASES C-388/00 AND C-429/00 
2. Approximation of laws — Radio equipment and telecommunications terminal equip­
ment and the mutual recognition of their conformity — Directive 1999/5 — 
Articles 6(1), 7(1) and 8(1) — Direct effect — National legislation or administrative 
practice prohibiting the marketing or putting into service of radio apparatus which 
does not bear the national type-approval stamp — Not permissible — Conditions 
(Directive 1999/5/EC of the European Parliament and of the Council, Art. 6(1), 7(1 
and (2), and 8(1)) 
3. Free movement of goods — Derogations — Procedure for the exchange of infor­
mation on national measures derogating from the principle of the free movement of 
goods — Definition of measure which is an obstacle to the free movement of goods or 
to their being placed on the market — Scope — Continuance of an administrative 
seizure of a certain model or type of products lawfully marketed in another Member 
State following checks by the competent national authorities that the product complies 
with national and Community legislation — Inclusion 
(Decision No 3052/95/EC of the European Parliament and of the Council, Art. 1) 
4. Community law — National legislation contrary to Community law — Imposition of 
fines or other coercive measures for infringements of those provisions — Incompatible 
with Community law 
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-ap­
proval, 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. 
(see para. 47, operative part 1) 
2. The provisions of the second sentence 
of Article 6(1), Article 7(1) and 
Article 8(1) of Directive 1999/5 on 
radio equipment and telecommuni­
cations terminal equipment and the 
mutual recognition of their conformity 
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 the date of expiry of the 
time-limit for transposing the Direc­
tive, prohibit the marketing or the 
putting into service of radio equipment 
which does not bear the national type-
approval stamp, where it has been 
confirmed that such equipment makes 
efficient and proper use of the radio 
frequencies authorised under national 
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RADIOSISTEMI 
law, or where it is easy to verify that 
this is the case. 
(see para. 66, operative part 2) 
3. The term 'measure' within the meaning 
of Article 1 of Decision No 3052/95 
establishing a procedure for the 
exchange of information on national 
measures derogating from the principle 
of the free movement of goods within 
the Community 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 particu­
lar 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 respon­
sible for technical checks to ascertain 
that the product in question is in 
conformity with both national and 
Community legislation, that is a 'meas­
ure' which must be notified to the 
Commission within the meaning of 
that provision. 
(see para. 73, operative part 3) 
4. Where national provisions have been 
recognised as being contrary to Com­
munity law, the imposition of fines or 
other coercive measures for infringe­
ments of those provisions is also 
incompatible with Community law. 
(see para. 80, operative part 4) 
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