OPINION OF ADVOCATE GENERAL

LENZ

delivered 2 December 1992 ( *1 )

Mr President,

Members of the Court,

A — Facts and procedure

1. Case C-46/90 Lagauche, in which I am to give my Opinion today, was joined with Case C-93/91 Evrard for the hearing on 9 July 1992. Once again ( 1 ) the Court is called upon to assess the position under competion law of the Régie des Télégraphes et Téléphones (‘the RTT’), as regards both telecommunications and radiocommunications, although those questions are not to be inferred directly from the request for a preliminary ruling.

2. The Lagauche case was referred to the Court in February 1990 by the Tribunal de Première Instance, Brussels, in the context of criminal proceedings before that court. A hearing took place on 2 May 1991 and I delivered my Opinion on 11 July 1991. The procedure was reopened because in the course of the deliberations the case was referred back to the Full Court.

3. In the main proceedings eight accused were prosecuted for various offences against the provisions applicable to radio transmitting and receiving equipment. Since then, four of the accused have been acquitted. The relevant criminal provisions lay down penalties for failure to comply with the type-approval requirements for telecommunications terminal equipment, in particular radio transmitting or receiving equipment, and also the obligation to obtain ministerial authorization to keep and operate radio transmitting or receiving equipment. In the present case the charges related to keeping unapproved cordless telephones and a pair of walkie-talkies without the necessary ministerial authorization.

4. The national court expresses doubts as to the compatibility with Community law of the relevant Belgian legal provisions, both those which lay down controls for the possession of equipment and those which impose a requirement of type-approval for equipment, together with the provisions conferring on the RTT competence for implementing the provisions (Law of 30 July 1979 on radiocommunications and the provisions adopted to implement that law, in particular the Royal Decree of 15 October 1979 and the Ministerial Decree of 19 October 1979).

5. The national court referred the following questions to the Court: Are Articles 37 and 86 of the Treaty establishing the European Economic Community to be interpreted as prohibiting, in the field of radiocommunications and private 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) offered for sale or hire a transmitter or receiver, in this case cordless telephones, without type-approval having been granted by the RTT, or (2) kept, set up or operated transmitters, in this case cordless telephones and a pair of walkie-talkies, without obtaining the written, personal and revocable authorization of the competent minister?

6. For details of the facts of the case, in particular the parties' submissions, reference is made to the Report for the Hearing.

B — Analysis

7. I do not think that there has been any fundamental change in the legal assessment of the facts on which I based my Opinion of 11 July 1991. I therefore take the view now, as I did then, that, for the reasons set out in paragraphs 20 to 25 of my Opinion, Article 37 of the EEC Treaty is not applicable to the facts of the present case. In the same way, I adhere to my assessment of the RTT's position in the field of telecommunications in the context of Article 86 in conjunction with Article 90 of the EEC Treaty.

8. None the less, it is appropriate to consider the extent to which the discussion provoked by the questions put by the Court with a view to obtaining a better assessment of the role of the RTT in the field of radiocommunications gives cause for further reflection. Moreover, I consider that it is appropriate to express my views on the consequences of that discussion for the main proceedings.

(1) The consequences of the most recent case-law for the assessment of the RTT's position from the point of view of competition law

9. First of all, the Court has in the meantime delivered its judgment in Case C-18/88. In that case the Court was required, inter alia, to assess the position conferred on the RTT by the Belgian State in the market in telecommunications terminal equipment, in the special case of telephones for use as second telephones to be connected directly to the telecommunications network operated by the RTT. In such cases the RTT was responsible for drawing up the technical specifications for the equipment, for granting type-approval and for supervising compliance with those provisions, and, where appropriate, for enforcing them through criminal prosecutions. At the same time the RTT was a competitor in the market in second telephones.

10. In contrast to that case, the RTT does not itself establish the technical specifications for the equipment with which the Lagauche case is concerned, but simply applies the rules laid down by the Government. The RTT's position which fell to be assessed in Case C-18/88 was — although not identical — to a large extent analogous to the position to be assessed in the Lagauche case. That is so in any event for cordless telephones, which are only able to work through the public telecommunications network. For that equipment only access to the network is organized differently from access for equipment connected directly to the network.

11. The definition of terminal equipment within the meaning of Directive 88/301, ( 2 ) which was adopted to regulate competition in the market in telecommunications equipment intended to be connected to the network, covers ‘equipment directly or indirectly connected to the termination of a public telecommunications network’ and provides that the connection may be made electromagnetically. ( 3 ) Moreover, ‘mobile telephones’ are expressly mentioned in Annex I.

12. In assessing the relevant points of law in the Lagauche case it is appropriate to consider to what extent the technical facts may, since they are comparable, have been prejudged by the judgment in Case C-18/88.

13. Although the dispute in Case C-18/88 arose because the RTT came into competition with an undertaking in the field of terminal equipment sales and therefore the problem, from the point of view of competition law, of the position conferred on the RTT was quite evident, that does not mean that the Court's assessment of the facts of that case cannot be transferred to the present case. Even though the main proceedings here concern criminal prosecutions for failure to comply with the requirement to obtain type-approval for certain equipment or, in some cases, ministerial authorization, it is the RTT's position in competition law which give rise to doubts as to the compatibility of the national rules with Community law.

14. The assessment of the RTT's dominant position in the market within the meaning of Articles 86 and 90(1) of the EEC Treaty, as I submitted in my Opinion of 11 July 1991, ( 4 ) is not called in question by the judgment in Case C-18/88. ( 5 ) Consequently, it is possible to state that as a result both of its exclusive right to operate the telecommunications network and of being given the task of exercising what must be regarded as public authority in granting type-approval of equipment and monitoring compliance with the relevant provisions, the RTT was placed in a dominant position over undertakings selling terminal equipment by a State measure, reinforced by the combination of those tasks.

15. As regards the abuse of that dominant position, which without doubt relates to a substantial part of the common market, ( 6 ) my view that abusive conduct by an undertaking is not essential and that the structure of the competition situation created by the State measure may itself lead to abuse finds support in the judgment.

16. The judgment states that: ‘A system of undistorted competition, as laid down in the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators. To entrust an undertaking which markets terminal equipment with the task of drawing up the specifications for such equipment, monitoring their application and granting type-approval in respect thereof is tantamount to conferring upon it the power to determine at will which terminal equipment may be connected to the public network, and thereby placing that undertaking at an obvious advantage over its competitors ... In those circumstances, the maintenance of effective competition and the guaranteeing of transparency require that the drawing up of technical specifications, the monitoring of their application, and the granting of type-approval must be carried out by a body which is independent of public or private undertakings offering competing goods or services in the telecommunications sector ...’. ( 7 )

17. Although the RTT does not draw up the technical specifications for cordless telephones in the present case, but simply applies them, in my view that reasoning may none the less be transferred to the present case, since the authority to grant type-approval of equipment, to monitor compliance with the provisions and to prosecute any infringements confers unparalleled economic power. Furthermore, it also appears that the RTT takes part in the procedure for drawing up the technical specifications in the framework of consultations with international postal authorities, which only underlines the comparability of the cases.

18. The underlying concept that an alteration of the market structure by measures of public authority can constitute an abuse within the meaning of the Community rules on competition, without the need for any specific conduct on the part of the public undertaking, also finds support in the Opinion of Advocate General Van Gerven in Joined Cases C-48/90 and C-66/90. ( 8 )

19. Referring to the decisions in the Continental Can, ( 9 )Telemarketing ( 10 ) and Commercial Solvents ( 11 ) cases, Advocate General Van Gerven argued that an abuse within the meaning of Article 86 of the EEC Treaty can be seen in the mere reinforcement of a dominant position, regardless of the means and procedure by which it is achieved, provided that such strengthening fetters competition in such a way that only undertakings whose conduct is dependent on the dominant one can remain in the market. Such was the effect of the Netherlands postal law which formed the subject-matter of the dispute. ( 12 )

20. In my Opinion of 11 July 1991 in Case C-46/90, I considered that the position conferred on the RTT and its influence on the competition position in the market for terminal equipment, in which for the purposes of this case I included cordless telephones, is incompatible with the Community competition rules, and I believe that view is to be maintained in full, even in the light of subsequent case-law.

(2) The RTT's position in the context of the administration of frequencies and radio-communications

21. It is necessary, however, to draw a distinction which has proved essential in the course of the oral procedure. It concerns the assessment of the legal position regarding equipment which is not connected — either physically or by radio — to the public telecommunications network, in this particular case a pair of walkie-talkies.

22. None the less, that equipment must be approved, and offences are prosecuted and punished in the same way as for any equipment connected in one way or the other to the telecommunications network. Failure to comply with the requirement to obtain ministerial authorization for such equipment is also prosecuted by the RTT. The question is whether a dominant position and its abuse can be assumed for that market.

23. Equipment which operates without being connected to the network needs the airwaves to transmit impulses or data. It is therefore a physical reality which cannot be arranged or installed like the telecommunications network and the use of which thus comes up against natural limits. By convention the administration of that space which inevitably accompanies its exploitation is a function of the public authorities.

24. The administration of frequencies encompasses various functions, as the German Government clearly indicated in answer to the questions put by the Court. It is necessary to distinguish ‘— the allocation of frequencies for certain types of use, such as for military or civil purposes or fixed or mobile radiocommunications services, — the geographical allotment of frequencies, — the actual assignment of a particular frequency (or group of frequencies) to one or more natural or legal persons for a particular application, and — monitoring the use of the frequencies.’ ( 13 )

25. It is essential that the frequencies are administered by the public authorities because the nature of the airwaves means that international agreements must be reached and that frequencies must be administered in a uniform manner throughout the entire territory of a State. The circumstance that the frequencies are traditionally administered by the public authorities does not mean that when the tasks are conferred — in whole or in part — on a public undertaking the competition rules are not to be observed. The use of frequencies is without doubt possible on a commercial basis.

26. In general, the fact that certain functions are carried out by the public authorities does not preclude a presumption of a dominant position within the meaning of the rules on competition because of the way in which they are carried out. The conferring of public-authority tasks by the State may therefore have the effect of granting a dominant position.

27. Furthermore, granting type-approval for equipment and bringing criminal proceedings where the relevant provisions are not observed are generally matters for the public authorities. In that regard, there is no doubt that the fact that those tasks are delegated to the RTT may be relevant from the point of view of competition law. That conclusion is in my view inevitable, since otherwise a Member State, by conferring exclusive rights on a public undertaking, could place that undertaking outside the scope of the rules on competition merely because public powers have been conferred on it.

28. The real problem arises where exclusive rights are conferred on an undertaking, irrespective of whether they are exercised as public powers or in accordance with private law, when that undertaking at the same time engages in trade. In the present case that situation is also found in the RTT's administration of frequencies. The RTT is responsible for the administration of frequencies, presumably by allocating and actually assigning them, it brings criminal proceedings in the event of failure to comply with the relevant provisions and at the same time it supplies equipment ( 14 ) and, although this is of secondary importance for the purposes of the present case, services. ( 15 )

29. The delegation both of the administration of frequencies and of the power to grant type approval for equipment, including the power to enforce compliance with the rele vant provisions, where appropriate by criminal proceedings, is in my opinion to be regarded as granting of a dominant position within the meaning of Articles 86 and 90 of the EEC Treaty, where the combination of those tasks constitutes an abuse if conferred on an undertaking which at the same time is a competitor in the market for equipment and the provision of services. Moreover, that assessment of the legal situation was adopted by the Commission ( 16 ) in Decision 90/388. ( 17 ) In conclusion, the position occupied by the RTT in relation to radio equipment is in my view comparable to the position with regard to equipment intended to be connected to the network.

30. The ministerial authorization to keep radio equipment, also mentioned in the reference for a preliminary ruling, appears in a different legal light. The conferring of exclusive rights in the circumstances described is a national measure inconsistent with Articles 86 and 90 of the EEC Treaty. In so far as the State reserves to itself the exercise of regulatory powers there cannot be a situation prohibited by Articles 90 and 86 of the EEC Treaty. According to the relevant Belgian provisions, ( 18 ) authorization to keep radio equipment is to be issued by the minister or the state secretary of the competent ministry, so the public undertaking incriminated from the point of view of the rules on competition is not responsible for that decision.

31. However, it would seem that the RTT is involved in the approval procedure, if only because an effective administration of frequencies on its own responsibility would be impossible if another body had independent powers of decision in the framework of the procedure for authorizing the keeping and operation of equipment which presupposes the use of frequencies. The RTT's position would thus be further strengthened, which merely confirms my observations regarding the assessment of the position conferred on the RTT in the field of radiocommunications.

32. For the sake of completeness, I should explain that I have classified cordless telephones only in the category of equipment to be connected to the network and not as radio equipment, although access to the network is effected specifically by radio, because cordless telephones as a rule have such a low output that they play no part in the administration of frequencies. ( 19 )

33. If it is necessary to proceed from the assumption that the RTT's position as regards the type-approval of equipment and the associated supervisory authority affects the structure of the market in a way that is contrary to Community law, the question that expressly arises for the national court is that of consequences to be drawn for the criminal proceedings pending before it.

(3) The consequences for the criminal proceedings pending before the national court

34. It is certainly not for the Court to anticipate the decision to be taken by the national court, just as it is not the Court's task to examine the compatibility of national law with Community law. However, the Court has always endeavoured, by its interpretation of the questions referred to it, to provide the national court with criteria which will enable it to reach a decision in the case.

35. It is a particular feature of the present case that it docs not concern a traditional conflict between national law and Community law which might be resolved by applying the principle of the supremacy of Community law, because the relevant substantive provisions of Belgian law forming the basis of the criminal proceedings in the present case cannot be called in question from the point of view of Community law.

36. In the applicable directives, ( 20 ) the Commission proceeds from the assumption that the definition of binding technical specifications must be recognized as a condition of type-approval and the monitoring of compliance with the applicable provisions as a necessary requirement of the maintenance of a properly functioning communications network and the protection of users and consumers. For example, the eighth recital in the preamble to Directive 90/388 states that: ‘The only essential requirements derogating from Article 59 which could justify restrictions on the use of the public network are the maintenance of the integrity of the network, security of network operations and in justified cases, interoperability and data protection.’ ( 21 )

37. Moreover, the Court has left no doubts that the type-approval of equipment is an unavoidable necessity in the general interest. For example, Advocate General Darmon argued in his Opinion in Case C-18/88 ( 22 ) that a procedure for type approval should be recognized as being an imperative requirement in the general interest of consumer protection and the maintenance of the proper functioning of the network.

38. The Court held in Case C-18/88 that: ‘In order to ensure that the equipment meets the essential requirements of, in particular, the safety of users, the safety of those operating the network and the protection of public telecommunications networks against damage of any kind, it is sufficient to lay down specifications which the said equipment must meet and to establish a procedure for type-approval to check whether those specifications arc met.’ ( 23 )

39. Therefore, if the type-approval of equipment constitutes an essential requirement of the protection of public safety, the fact that criminal proceedings are brought in the event of failure to comply with that legal obligation cannot be unlawful in itself. The infringement of Community law refers not to the substantive legal provisions but to the purely formal element of the structure of the institution competent to take the relevant decision.

40. The conflict brought about by the improper combination of public-authority and commercial functions is in theory capable of being resolved if, for example, the public undertaking responsible for the different regulatory tasks is prohibited from pursuing commercial activities in the goods and services sector.

41. In the long term, it is in any event the aim of the directives on deregulation not to allow public-authority tasks and commercial activities to remain in the same hands. ( 24 )

42. Accordingly, a restructuring process is at present under way, in which, for example, the Belgian Law of 21 March 1991, establishing the Institut Belge des Services Postaux et de Télécommunications, has been adopted. Because the abovementioned structures are contrary to the Treaty, it is necessary to attach legal consequences to a situation that is contrary to Community law even before the end of restructuring process imposed by the directives on deregulation. Because the type-approval of equipment and the monitoring of compliance with the provisions in the interest of public security cannot be discontinued without substitute measures being enacted, and also because those public-interest tasks cannot be conferred on another institution with retroactive effect, the conflict of interests contrary to Community law can in my view be resolved for the future if the undertaking which acts with public authority is simply prohibited from pursuing commercial activities in the problem areas.

43. The question remains, however, how circumstances which have arisen in the past from precisely such a conflict can be resolved. In my view a slightly different approach is called for.

44. The accused in the main proceedings were prosecuted because they did not seek approval for the equipment, without its being apparent that competition aspects may have played a part. In those specific circumstances there is in my opinion no reason, from the point of view of Community law, why the prosecution should not proceed.

45. The assessment would be quite different in a case where the RTT's anticompetitive position might, albeit only potentially, have had an influence on the actual dispute. That was the situation in Case C-18/88, for example, where the RTT in its capacity as a competitor took proceedings against a competing undertaking using arguments based on competition law.

46. That might thus also be the position where, for example, a trader has sought but has been refused type-approval for a particular type of equipment or where the procedure has simply been delayed. In such a case it cannot be ruled out that the institution, in its capacity as a competitor in the market, has some influence on the decision (which may also consist in a failure to take action). In such a case it may be thought that the approval sought should be granted instead by a national court or by a national court acting together with the Court of Justice. There, the remedy sought in Case C-18/88 ( 25 ) would be relevant, either in the same or in a modified form. An action for damages against the undertaking might also be envisaged on the ground of its anticompetitive conduct in the specific case.

47. There is no need to go into that question in detail here, since those problems do not arise in the present case.

48. The above observations will all help the national court to reach its decision. In conclusion, I am of the opinion that Community law does not preclude the bringing of criminal proceedings in the specific circumstances of the main proceedings. The position would be different if the RTT's position under competition law had, albeit only potentially, had an effect on the failure to grant type-approval in respect of the equipment or to authorize its use. In the present context there is no need to express a conclusive opinion in regard to that series of problems.

C — Conclusion

49. In the light of all the above considerations, I suggest that, departing from my Opinion of 11 July 1991, the questions referred should be answered along the following lines: Articles 37 and 86 of the EEC Treaty are to interpreted, as meaning that in the field of radiocommunications and private radiocommunications they do not in themselves prohibit 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) offered for sale or hire transmitting or receiving apparatus, in this case) cordless telephones, without prior approval thereof by the RTT, or (2) kept, set up or operated transmitters, in this case cordless telephones and a pair of walkie-talkies, without obtaining the written personal and revocable authorization of the competent minister. However, Article 86, read together with Article 90, of the EEC Treaty prevents the institution entrusted with both the material and formal implementation of such rules from trading as a competitor in the market for the supply of such equipment.

( *1 ) Original language: German.

( 1 ) For the position of national postal and telecommunications authorities from the point of view of competition law, see Case C-202/88 France v Commission [1991] ECR I-1223 and Case C-18/88 RTT v GB Inno BM [1991] ECR I-5941.

( 2 ) Commission Directive SS/301/EEC of 16 May 1988 on competition in the markets in telecommunications terminal equipment (OJ 1988 L 131, p. 73).

( 3 ) See Article 1 of Directive 88/301.

( 4 ) See paragraph 35 et scq.

( 5 ) Case 18/88, paragraph 14 et scq.

( 6 ) Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 28; Case C-41/90 Höfner and Elser v Macrotron [1991] ECR I-1979, paragraph 28.

( 7 ) Case C-18/88, cited above, paragraphs 25 and 26.

( 8 ) Opinion in Joined Cases C 48/90 and C-66/90 Netherlands v Commission [1992] ECR I-565, paragraph 43.

( 9 ) Case 6/72 Europemballage and Continental Can v Commission [1973] ECR 215.

( 10 ) Case 311/84 CBEM v CLT and IBP [1985] ECR 3261.

( 11 ) Joined Cases 6/73 and 7/73 Commercial Solvents v Commission [1974] ECR 223.

( 12 ) Advocate General Van Gerven concluded in that case that the conditions of an abuse were not satisfied for reasons to do with the facts of the case. See paragraph 44.

( 13 ) See the German Government's answer of 9 April 1992. p. 2.

( 14 ) This is to be inferred from the Belgian Government's answer to the questions put by the Court.

( 15 ) For example, radio telephone and radio paging services, which however for the time being arc regarded as exclusive rights of the national telecommunications undertakings, see in that regard Articles 1(2) and 2 of Directive 9C/388/EEC.

( 16 ) Sec the 29th recital of the preamble to Directive 90/388.

( 17 ) Commission Directive 90/388/EEC of 28 June 1990 on competition in the telecommunications service market (OJ 1990 L 192, p. 10).

( 18 ) Sec Article 3(1) and (8) of the Law of 30 July 1979 on radiocommunications as amended by the Royal Decree of 15 October 1979 on private radiocommunications, Moniteur Belge, p. 826.

( 19 ) Sec Article 3(2) of the Law of 30 July 1979 and Article 5(3) of the Royal Decree of 15 October 1979, cited above, which provide for a derogation from the requirement to obtain a licence for equipment with an output capacity of under 10 milliwatts.

( 20 ) See the 15th and subsequent recitals in the preamble to Directive 88/331 and the eighth recital in the preamble to Directive 90/188

( 21 ) See reference above

( 22 ) See Opinion in Case C—18/88 RTT v CB Inno BM [1991] ECR I-5941, paragraph 17

( 23 ) See paragraph 22

( 24 ) See Directives 88/301 and 90/388.

( 25 ) Case C 18/88 RTT v CB Inno BM. cued above, paragraph 34, and the case law filed therein.