61991C0093
OPINION OF ADVOCATE GENERAL
LENZ
delivered on 2 December 1992 (
*1
)
Mr President,
Members of the Court,
A — Introduction
1.
Case C-93/91 Evrard, which was joined for the hearing with Case C-46/90 Lagauche, in which the procedure was reopened, concerns the interpretation of certain provisions of the Treaty in their application to Belgian legal provisions regulating telecommunications and radiocommunications. The legal problem is in same as in Cases C-208/88 (
1
) and C-18/88. (
2
)
2.
The main action is a criminal prosecution similar to other cases in which the Court has already been asked to give a preliminary ruling. (
3
) The defendant in the main proceedings was charged with having possessed and offered for sale, between 1 January and 3 February 1989, a cordless telephone for which the RTT had not given type-approval and having possessed and offered for sale, on 23 January 1990, 11 radiocommunication sets which had similarly not been approved, namely two Carphone Plus sets, two MPT 1344 radio transmitters, three cordless telephones (one Betacom, one Betacom 7000 and one Answercall Ranger 2000), together with equipment consisting of a DNT personal call system and three DNT PRA 3000 receivers, without obtaining the authorization required under Article 3(1) of the Law of 30 July 1979.
3.
In his defence the defendant pleaded, inter alta, that one item of equipment had already been approved by the Deutches Bundespost.
4.
The national court was uncertain as to the compatibility of the applicable national provisions with Community law and therefore referred the following questions to the Court for a preliminary ruling:
‘Arc Articles 30 to 37 and 86 of the Treaty establishing the European Economic community, together with the European Commission directive of 16 May 1988 on competition in the markets in telecommunications terminal equipment, to be interpreted as prohibiting, in the field of radiocommunications, legal provisions such as the Law of 30 July 1979 and the Royal Decree of 15 October 1979 which impose penalties of imprisonment and/or fines, on persons who have:
(1)
possessed, within the Kingdom of Belgium or on board a vessel, boat, aircraft or any other structure governed by Belgian law, a radio transmitter or receiver or set up or operated in such place a radio station or network without having obtained the written, personal and revocable authorization of the minister or state secretary responsible for telegraphs and telephones, or;
(2)
offered for sale or hire a radio transmitter or receiver no model of which has been granted type-approval by the Régie des Télégraphes et des Téléphones as complying with the technical requirements laid down by the minister responsible, despite the possible existence of an official certification obtained under a procedure established by another Member State of the European Community?’
5.
For the details of the facts of the case, the applicable provisions and the submissions of the parties, reference is made to the Report for the Hearing.
B — Analysis
6.
To a large extent the present case shows parallels with Case C-46/90 Lagauche. Both sets of proceedings are based on the same national provisions. I therefore refer in full to my Opinions in that case, both the Opinion delivered on 11 July 1991 and that delivered today.
7.
In so far as they relate, in time, to the incidents of 1 January to 3 February 1989 and, as regards their substance, to cordless telephones and other radio equipment, the legal problems are similar to the problems discussed in Lagauche. The situation in the present case differs from, and indeed is wider than, the situation to be assessed in Lagauche, first, as regards the question of the treatment in law of equipment which has already been approved in another Member State and, secondly, as regards the question whether for the period after 1 July 1989, that is to say from the time when Article 6 of Directive 88/301/EEC (
4
) entered fully into force, a different legal assessment of the facts is called for.
1. The significance of the fact that one item of equipment was approved in another Member State
8.
First of all I shall deal with the consequences of the fact that certain equipment has already been approved in another Member State in accordance with the conditions applicable there. The national court's questions seek to ascertain whether approval in the Member State in which the equipment is to be marketed may be unnecessary if equipment of that type has already been approved in another Member State. In those circumstances the continued requirement for approval in the Member State in which the equipment is to be marketed might constitute an abuse.
9.
It must be assumed that — at least at present — the telecommunications systems in the individual Member States differ technically from one another. The aim is to bring about a technical approximation of the systems, so that in future general type-approval of equipment will also be recognized in other Member States. So far that aim has not been achieved. That is also shown by Directive 86/361/EEC on the initial stage of the mutual recognition of type approval for telecommunications terminal equipment. (
5
)
10.
In my Opinion in the Lagauche case I took the view that the approval of equipment is necessary on grounds of public security. In order to emphasize the requirement for type-approval, the Belgian Government pointed out that, for example, the general emergency services might be disrupted by unauthorized radio equipment. If we therefore assume that authorization as such is not unnecessary, it is necessary to ensure that equipment is compatible with the radio and telecommunications system in force in the Member State concerned.
11.
If the technical examination in the type-approval procedure related to the same characteristics as in another Member State a fresh examination would indeed be superfluous and would therefore constitute an abuse. It is precisely for that case, however, that — as the Belgian Government has submitted — there is a simplified procedure for a certificate of conformity, in which no technical examination is carried out.
12.
In my opinion, until the systems and legal provisions have been harmonized, it is impossible to object to the fact that a Member State requires authorization within the meaning of the abovementioned certificate of conformity.
2. The significance of the entry into force of Article 6 of Directive 88/301
13.
It now remains to answer the question of what legal consequences are to be attached to the entry into force of Article 6 of Directive 88/301/EEC on 1 July 1989. Article 6 of Directive 88/301/EEC provides that:
‘Member States shall ensure that, from 1 July 1989, responsibility for drawing up the specifications referred to in Article 5, 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.’
14.
In my Opinion in the Lagaitche case I argued that the combination of public-authority and commercial functions in a public undertaking is contrary to Articles 86 and 90 of the EEC Treaty. In that respect the requirement in Article 6 of Directive 88/301/EEC docs not alter the existing legal position, but is merely an instance of the Commission specifying, pursuant to Article 90(3), the Member States' obligations arising under the Treaty. (
6
) Any doubts which might have existed prior to 1 July 1989 as to whether the combination of tasks in a public undertaking infringed Community law can no longer be held since that date.
15.
In my Opinion in Lagauche I also maintained that the requirement to obtain type-approval does not in itself become unlawful under Community law because of the combination of tasks. On the other hand, the entry into force of Article 6 of Directive 88/301/EEC might have the effect of rendering the type-approval procedure unlawful in such a way that an economic operator who is prosecuted because he has failed to comply with the approval requirements could avoid the consequences by relying on the direct applicability of the provisions.
16.
To anticipate my conclusion, I am of the opinion that that is not possible. First, the grounds for retaining the type-approval procedure continue to be those which I indicated in the Lagauche case, even after the entry into force of Article 6 of Directive 88/301/EEC.
17.
In my view, however, the decisive factor is that a provision of a directive on which an individual relies must be capable of direct application. According to the settled caselaw of the Court of Justice, the provision must be precise and unconditional, so that in the event of conflict between the law of a Member State and Community law the case can be resolved by the supremacy of Community law.
18.
In the present case the infringement of Community law relates not to the content of the type-approval procedure but to the position granted to the public undertaking implementing it. If it is assumed that the requisite separation of public-authority and commercial functions was effected by a legal measure on 1 July 1989, the question remains how and by whom the different functions are carried out. The national rule which is to be disregarded because of the supremacy of Community law would leave a gap which Community law is quite incapable of filling. Legislative measures must be adopted to close that gap.
19.
In my view, Article 6 of Directive 88/301/EEC codifies a legal obligation directed at the Member States which only indirectly confers rights on individuals. That way of looking at things does not imply that a Member State's failure to fulfil its obligation has no consequences. Indeed, it is possible to conceive legal consequences over and above the possible solutions mentioned in my Opinion in the Lagauche case. In addition to the possibility of an action against the Member State for failure to fulfil its obligations under the Treaty, it might be possible to establish direct responsibility on the part of the Member State, which where appropriate would give grounds for an action for damages. (
7
)
20.
For the purposes of the present case, however, that approach means that there is no objection on grounds of Community law to a prosecution for failure to comply with the requirement to obtain authorization.
C — Conclusion
21.
Accordingly, I suggest that the answer to the national court should be as follows:
Articles 30 to 37 and 86 of the EEC Treaty and Directive 88/301/EEC on competition in the market in telecommunications terminal equipment are to be interpreted as meaning that they do not in themselves prohibit, in the field of radiocommunications, legal provisions such as the Law of 30 July 1979 and the Royal Decree of 15 October 1979 which impose penalties imprisonment and/or fines on persons who have:
(1)
possessed, within the Kingdom of Belgium or on board a vessel, boat, aircraft or any other structure governed by Belgian law, a radio transmitter or receiver or set up or operated in such place a radio station or network without having obtained the written, personal and revocable authorization of the minister or state secretary responsible for telephones and telecommunications; or,
(2)
offered for sale or hire a radio transmitter or receiver no model of which has been certified by the Régie des Télégraphes et des Téléphones as complying with the technical requirements laid down by the Minister responsible, if it is guaranteed that the authorities responsible for implementing such rules — as regards both their substance and their form — do not appear as competitors in the market for the marketing of such equipment.
22.
That also applies in cases where approval has already been granted within the framework of a procedure regulated in another Member State of the European Communities if the national examination serves to establish the certificate of conformity and a repetition of an examination procedure already carried out is avoided.
(
*1
)	Original language: German.
(
1
)	Case C 2C2/88 Commission v Denmark [1990] 1.CR I 4445.
(
2
)	Case C 18/88 RTT v GB Inno BM [1991] ECR I 5941.
(
3
)	Case C 46/90 Lagauche. Casc C 6/91 Decoster (1993) ECR I 5335, and Casc C 92/91 Taillandcr (1993) I-ECR I 5383
(
4
)	Commission Directive 88/301/EEC of 16 May 1988 on competition in the markets in
telecommunications terminal equipment (OJ 1988 L 131, p. 73).
(
5
)	Council Directive 86/361/EEC of 24 July 1986 (OJ 1986 I 217. p 21).
(
6
)	Sec Cmc C 202/88. cited above
(
7
)	Joined Cases C-6/90 and C-9/90 Francovich and Others v Italian Republic [1991] ECR I-5357.