Opinion of Mr Advocate General Tesauro delivered on 12 January 1994. - Commission of the European Communities v Kingdom of Belgium. - Failure to fulfil obligations - Legislation applicable to radio-communications transmitters and receivers. - Case C-80/92.



European Court reports 1994 Page I-01019



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The subject-matter of this action is certain features of the Belgian rules concerning telecommunications, which are laid down by the Law of 30 July 1979 and the relevant implementing decrees of 15 October 1979 and 19 October 1979. In its reasoned opinion and in its application, the Commission pointed out in particular that:

- by prohibiting the reception of radio and television broadcasts, Article 4(c) of the Law of 30 July 1979 is contrary to Article 59 of the Treaty;

- by requiring receivers to be submitted for administrative authorization, Article 7 of the same Law is contrary to Article 30 of the Treaty;

- by providing that authorization may be dispensed with for transmitters or transceivers intended for export, Article 7 of the same Law is contrary to Article 34 of the Treaty.

Article 59

2. It should be noted that the Commission, in its reply, stated that it was discontinuing its complaint that Article 59 of the Treaty had been infringed. It acknowledged that the complaint was founded on an incorrect reading of the relevant provisions of the Belgian legislation. Moreover, the Commission stated at the hearing that, already in its reply to the reasoned opinion, the Belgian Government had in fact explained that the contested provisions did not exhibit any features incompatible with Article 59 and the Commission added that, in the circumstances, to maintain its allegation relating to Article 59 in its originating application was merely the result of a "misunderstanding".

3. I consider therefore that the Court can simply declare that the Commission has waived its submission concerning Article 59 as unfounded.

Article 30

4. In its application, the Commission claimed that, by adopting and maintaining in force a system for authorizing receivers, the Belgian Government has failed to fulfil its obligations under Article 30 of the Treaty.

According to the Commission, such a system would be justified only for transmitters or transceivers.

5. The Belgian Government does not deny that the system of authorization laid down by the abovementioned Law of 1979 is incompatible with the Treaty. Nevertheless, it does contend that even before the action was brought - though after the end of the period prescribed in the reasoned opinion -, that system was replaced by an obligation to make a declaration, which the Commission itself has acknowledged to be compatible with the requirements of Article 30.

6. The Belgian Government has, however, admitted that the new system is merely an administrative procedure - based on directions given by the Minister - which does not derive from any act forming the subject of an official publication. Furthermore, in replying to a specific question put to it by the Court, the Belgain Government was unable to explain by what formal legal acts the new system was adopted, or to supply information concerning the nature, scope and consequences of those acts.

7. In that connection, I believe it will suffice to point out that, as the Court has consistently held, "the maintenance of national legislation which is in itself incompatible with Community law, even if the Member State concerned acts in accordance with Community law, gives rise to an ambiguous state of affairs by maintaining, as regards those who are concerned, a state of uncertainty as to the possibilities available to them of relying on Community law", an uncertainty that "can only be reinforced by the internal character of the purely administrative directions to waive the application of the national law" (judgment in Case C-307/89 Commission v France [1991] ECR I-2903).

8. In the light of those factors, I believe that the replacement, simply by means of an administrative procedure, of the contested authorization system by a declaration requirement - which, moreover, is not the result of any formal act - is quite insufficent to terminate the alleged infringement. I therefore consider that the Commission' s complaint in this respect is well founded.

Article 34

9. The Commission has claimed that, by providing for a system of dispensation from authorization for transmitters and transceivers intended for export, the Belgian legislation is incompatible with Article 34 of the Treaty. Such equipment may not be subject to any export authorization. It follows - according to the Commission - that a system providing for authorization to be dispensed with, and left to the discretion of the administrative authorities, in any case constitutes an unjustified barrier to exports.

It must be pointed out, moreover, that the Commission' s complaint concerns the system of authorization applicable to transmitters and transceivers (see paragraph 2(c) of the application). On the other hand, the Commission makes no observations regarding equipment capable only of reception.

10. In that connection, it must first of all be borne in mind that the Court has consistently held (most recently in its judgment in Case C-47/90 Delhaize Frères [1992] ECR I-3699) that Article 34 of the Treaty does not forbid Member States to issue technical rules which apply uniformly both to products intended for the domestic market and to products intended for export to other Member States.

11. In this case, it must be pointed out that:

- the Belgian rules (Article 7 of the Law of 30 July 1979) established a system of authorization for transmitters and transceivers;

- the Commission acknowledges that, with respect to such equipment, the authorization system is justified and complies with the requirements laid down by the rules of the Treaty relating to the free movement of goods;

- that system applies to products intended for the domestic market and to products intended for export;

- the latter are not only not subject to less favourable treatment but on the contrary benefit from a preferential system, in so far as it is in their case alone that the possibility of exemption from authorization is provided for.

12. From those considerations it seems to me to follow, first of all, that the Belgian legislation providing for the authorization of transmitters and transceivers establishes a general system of advance regulation intended to ensure the proper working of the telecommunications network and user safety. It is therefore a system that meets objective and legitimate requirements of general interest.

13. As regards that system, the sole obligation imposed on Member States by Article 34 of the Treaty consists in the prohibition on applying technical rules on supervision in a manner which is such as to place exported products at a disadvantage in comparison with products intended for sale on the domestic market. As has been pointed out, there is nothing in the documents before the Court to suggest that, in this case, the Belgian rules in dispute give rise to such discrimination on account of the fact that the products in question are intended for export: not only are exports not treated less favourably, but on the contrary they also benefit from a preferential system of administrative rules, consisting precisely in the possibility of obtaining exemption from authorization.

On the other hand, the Commission' s written observations - which are, frankly, disconcertingly brief - do not in any way explain why a rule which prima facie appears to be less onerous for exported goods should be regarded as incompatible with Article 34 of the Treaty, as interpreted by the Court.

14. I consider therefore that the complaint relating to Article 34 of the Treaty should be rejected.

15. In the light of those considerations, I propose that the Court:

(1) declare that, by adopting and maintaining in force the system for authorizing telecommunications receivers laid down by Article 7 of the Law of 30 July 1979 and the relevant implementing decrees, the Kingdom of Belgium has failed to fulfil its obligations under Article 30 of the Treaty;

(2) reject the remaining complaints;

(3) order the Commission to bear two-thirds and the Kingdom of Belgium to bear one-third of the costs of the proceedings;

(4) order the United Kingdom, as intervener, to bear its own costs.

(*) Original language: Italian.