Judgment of the Court 22 January 2002 in Case C-390/99 (Reference for a preliminary ruling from the Tribunal Supremo): Canal Satélite Digital SL and Administracíon General del Estado, intervener: Distribuidora de Televisión Digital SA (DTS), v Administración General del Estado (Articles 30 and 59 of the EC Treaty (now, after amendment, Articles 28 EC and 49 EC) — Directive 5/47/EC — National legislation requiring operators of conditional-access television services to register in a national register created for that purpose, indicating the characteristics of the technical equipment they use, and subsequently to obtain administrative certification thereof — Directive 83/189/EEC — Meaning of "technical regulation")
Date: 2002-04-06
Institutions: Court of Justice
Subjects: European standard, cable distribution, harmonisation of standards, high-definition television, interpretation of the law, satellite communications

C 84/10

EN

Official Journal of the European Communities

6.4.2002

JUDGMENT OF THE COURT

22 January 2002

in Case C-390/99 (Reference for a preliminary ruling from
the Tribunal Supremo): Canal Satélite Digital SL and
Administracı´on General del Estado, intervener: Distribui-
dora de Televisio´ n Digital SA (DTS), v Administracio´ n
General del Estado (1)

(Articles 30 and 59 of the EC Treaty (now, after amendment,
Articles 28 EC and 49 EC) — Directive 5/47/EC —
National legislation requiring operators of conditional-access
television services to register in a national register created for
that purpose, indicating the characteristics of the technical
equipment they use, and subsequently to obtain administrat-
ive certification thereof — Directive 83/189/EEC — Mean-
ing of ‘technical regulation’)

(2002/C 84/17)

(Language of the case: Spanish)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-390/99: Reference to the Court under Article 234
of the EC Treaty by the Tribunal Supremo (Spain) for a
preliminary ruling in the proceedings pending before that
court between Canal Satélite Digital SL and Administracı´on
General del Estado,
intervener: Distribuidora de Televisio´ n
Digital SA (DTS), and on the interpretation of Articles 30 and
59 of the EC Treaty (now, after amendment, Articles 28 EC
and 49 EC), read in conjunction with Articles 1 to 5 of
Directive 95/47/EC of the European Parliament and of the
Council of 24 October 1995 on the use of standards for the
transmission of television signals (OJ 1995 L 281, p. 51) and
of Article 1, point 9, of Council Directive 83/189/EEC of
28 March 1983 laying down a procedure for the provision of
information in the field of technical standards and regulations
(OJ 1983 L 109, p. 8), as amended and updated by Directive
94/10/EC of the European Parliament and of the Council of
23 March 1994 (OJ 1994 L 100, p. 30),the Court, composed
of: G.C. Rodrı´guez Iglesias, President, F. Macken, and N. Col-
neric (Presidents of Chambers), C. Gulmann, D.A.O. Edward
(Rapporteur), A. La Pergola, J.-P. Puissochet, R. Schintgen and
V. Skouris, Judges, Advocate General: C. Stix-Hackl, Registrar:
H. von Holstein, Deputy Registrar, J. Svenningsen, acting as
Agents, has given a judgment on 22 January 2002, in which it
has ruled:

1. 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 authorisation procedure restricts both the free
movement of goods and the freedom to provide services.

in order

Therefore,
to be justified with regard to those
fundamental freedoms, such legislation must pursue a public-
interest 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.

2.

In determining whether national legislation such as that at
issue in the main proceedings complies with the principle of
proportionality, the referring court must take into account the
following considerations in particular:

— for a prior administrative authorisation 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’ discretion, so that it is not used
arbitrarily;

— a measure introduced by a Member State cannot be
regarded as necessary to achieve the aim pursued if it
essentially duplicates controls which have already been
carried out in the context of other procedures, either in the
same State or in another Member State;

— 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
fundamental principles of the free movement 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.

3. 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
satellite which they propose to market in a register and to
obtain prior certification for those products before being able to
market them constitutes a ‘technical regulation’ within the
meaning of Article 1, point 9, of Council Directive
83/189/EEC of 28 March 1983 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/EC of the European Parliament and of the Council of
23 March 1994.

(1) OJ C 6 of 8.1.2000.