Keywords

Summary



Keywords

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1. Competition ° Public undertakings ° Concept ° Bodies forming part of the public administration ° Inclusion

(Commission Directive 88/301, Art. 1, second indent)

2. Competition ° Public undertakings and undertakings to which the Member States grant special or exclusive rights ° Market in telecommunications terminal equipment ° Independence of the body responsible for drawing up technical specifications, monitoring their application and granting type-approval ° Incorporation in an authority also responsible for operating the public network and for the commercial policy on telecommunications ° Not permissible

(Commission Directive 88/301, Art. 6)

3. Competition ° Public undertakings and undertakings to which the Member States grant special or exclusive rights ° National rules prohibiting the marketing of telecommunications terminal equipment without type-approval ° Drawing-up of technical specifications and grant of type-approval by a body not satisfying the condition of independence in relation to any trader operating on the market in telecommunications ° Not permissible

(EEC Treaty, Arts 3(f), 86 and 90; Commission Directive 88/301, Art. 6)

Summary

1. Where the operation of the public telecommunications network and the marketing of terminal equipment are entrusted to bodies forming part of the public administration, that cannot prevent those bodies from being classified as public undertakings for the purposes of Community law and, in particular, the second indent of Article 1 of Directive 88/301. A body carrying on economic activities of an industrial or a commercial nature does not need to have legal personality separate from that of the State in order to be regarded as a public undertaking. If it were otherwise, the effectiveness of the directive in question and its uniform application in all the Member States would be undermined.

2. The different directorates of a single authority, responsible simultaneously for operating the public network, implementing the commercial policy on telecommunications, drawing up technical specifications, monitoring their application and granting type-approval in respect of terminal equipment cannot be regarded as independent of each other for the purposes of Article 6 of Directive 88/301, according to which the body responsible for drawing up technical specifications, monitoring their application and granting type-approval must be independent of public or private undertakings offering goods and/or services in the telecommunications sector, and of the system of undistorted competition laid down by the Treaty.

3. Articles 3(f), 86 and 90 of the Treaty and Article 6 of Commission Directive 88/301/EEC of 16 May 1988 preclude national rules which prohibit economic operators, with penalties for infringement, from manufacturing, importing, stocking for sale, selling or distributing terminal equipment without showing, by the submission of a type-approval certificate or any other document regarded as equivalent, that the equipment complies with certain fundamental requirements relating, in particular, to user safety and the proper functioning of the network, where there is no guarantee of the independence, in relation to any operator offering goods and/or services in the telecommunications sector, of the body which issues the type-approval certificate or other equivalent document and draws up the technical specifications with which such equipment must comply.