Opinion of the Advocate General — ECLI:EU:C:2001:147
Date: 2001-03-08
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Free movement of goods;Measures having equivalent effect;Approximation of laws;Quantitative restrictions;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 
1. Preliminary rulings — Jurisdiction of the Court — Limits — Manifestly irrelevant 
questions and questions regarding hypothetical problems in a context which precludes 
any useful answer — Questions not related to the purpose of the main proceedings 
(Art. 234 EC) 
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SUMMARY — CASE C-390/99 
2. Approximation of laws — Transmission of television signals — Directive 95/47 — 
Ability of the Member States to establish prior authorisation procedures — Conditions 
for exercise 
(Directive of the European Parliament and of the Council 95/47) 
3. Free movement of goods — Freedom to provide services — Restrictions — National 
legislation on digital television — Activities of the operators of conditional-access 
services and the marketing of their products made subject to prior authorisation — 
justification — Conditions —· Criteria for assessment 
(EC Treaty, Arts 30 and 59 (now, after amendment, Arts 28 EC and 49 EC)) 
4. Approximation of laws — Procedure for the provision of information in the field of 
technical standards and regulations — Technical regulations within the meaning of 
Directive 83/189 — Meaning — National legislation on digital television requiring 
operators of conditional-access services to enter information in a register and to obtain 
prior certification for their products — Whether included — Obligation of Member 
States to communicate the draft of such a technical regulation to the Commission —· 
Scope 
(Council Directive 83/189, Art. 1, points 8, 9 and 10) 
1. In the context of the cooperation 
between the Court of Justice and the 
national courts established by Article 234 
EC, it is solely for the national court 
before which the dispute has been 
brought, and which must assume 
responsibility for the subsequent judi­
cial decision, to determine in the light 
of the particular circumstances of the 
case both the need for a preliminary 
ruling in order to enable it to deliver 
judgment and the relevance of the 
questions which it submits to the 
Court. Consequently, where the ques­
tions submitted by the national court 
concern the interpretation of Commu­
nity law, the Court of Justice is, in 
principle, bound to give a ruling. 
In exceptional circumstances, however, 
the Court can examine the conditions 
in which the case was referred to it by 
the national court, in order to assess 
whether it has jurisdiction. The Court 
may refuse to rule on a question 
referred for a preliminary ruling by a 
national court only where it is quite 
obvious that the interpretation of 
Community law that is sought bears 
no relation to the actual facts of the 
main action or its purpose, where the 
problem is hypothetical, or where the 
Court does not have before it the 
factual or legal material necessary to 
give a useful answer to the questions 
submitted to it. 
(see paras 18-19) 
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CANAL SATÉLITE DIGITAL 
2. Although Directive 95/47, on the use of 
standards for the transmission of televi­
sion signals, does not contain any 
provisions concerning detailed admin­
istrative rules for implementing 
Member States' obligations under that 
directive, that finding does not justify 
the conclusion that the Member States 
may not establish a prior authorisation 
procedure consisting of compulsory 
entry in a register together with the 
requirement of a prior technical report 
drawn up by the national authorities. 
However, where they establish such an 
administrative procedure, Member 
States must at all times comply with 
the fundamental freedoms guaranteed 
by the Treaty. 
(see paras 27-28) 
3. National legislation which makes the 
marketing of apparatus, equipment, 
decoders or digital transmission and 
reception systems for television signals 
by satellite and the provision of related 
services by operators of conditional-
access services subject to a prior auth­
orisation procedure restricts both the 
free movement of goods and the free­
dom to provide services. Therefore, in 
order to be justified with regard to 
those fundamental freedoms, such 
legislation must pursue a public-inter­
est objective recognised by Community 
law and comply with the principle of 
proportionality; that is to say, it must 
be appropriate to ensure achievement 
of the aim pursued and not go beyond 
what is necessary in order to achieve it. 
In determining whether such national 
legislation complies with the principle 
of proportionality, account must be 
taken of the following considerations 
in particular: 
— for a prior administrative authori­
sation scheme to be justified even 
though it derogates from those 
fundamental freedoms, it must, in 
any event, be based on objective, 
non-discriminatory criteria which 
are known in advance, in such a 
way as to circumscribe the exercise 
of the national authorities' discre­
tion, so that it is not used arbit­
rarily; 
— a measure introduced by a Member 
State cannot be regarded as necess­
ary to achieve the aim pursued if it 
essentially duplicates controls 
which have already been carried 
out in the context of other pro­
cedures, either in the same State or 
in another Member State; 
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SUMMARY — CASE C-390/99 
— a prior authorisation procedure will 
be necessary only where subsequent 
control must be regarded as being 
too late to be genuinely effective 
and to enable it to achieve the aim 
pursued; 
— a prior authorisation procedure 
does not comply with the funda­
mental principles of the free move­
ment of goods and the freedom to 
provide services if, on account of its 
duration and the disproportionate 
costs to which it gives rise, it is such 
as to deter the operators concerned 
from pursuing their business plan. 
(see para. 43, and operative part 1-2) 
4. National legislation which requires 
operators of conditional-access services 
to enter the equipment, decoders or 
systems for the digital transmission and 
reception of television signals by satel­
lite which they propose to market in a 
register and to obtain prior certifi­
cation for those products before being 
able to market them constitutes a 
'technical regulation' within the mean­
ing of Article 1, point 9, of Directive 
83/189, laying down a procedure for 
the provision of information in the field 
of technical standards and regulations, 
as amended and updated by Directive 
94/10. 
Concerning the obligation under 
Article 8 of the directive to communi­
cate the draft of such a technical 
regulation to the Commission, that 
obligation applies to the said national 
legislation in so far as the latter estab­
lishes a system of prior administrative 
authorisation, and cannot therefore be 
regarded as legislation, referred to in 
the exemption laid down by Article 10, 
whereby the Member State complies 
with a binding Community measure 
resulting in the adoption of technical 
specifications. 
(see paras 48-50, and operative part 3) 
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