Radiosistemi Srl v Prefetto di Genova.
Date: 2002-06-20
39 Under Article 28 EC, quantitative restrictions on imports and all measures having equivalent effect are prohibited between Member States. Moreover, according to settled case-law of the Court, any national measure which is capable of hindering, directly or indirectly, actually or potentially, intra-Community trade is to be deemed to be a measure having equivalent effect to quantitative restrictions (see, in particular, Case 8/74 Dassonville [1974] ECR 837, paragraph 5; Case C-379/98 PreussenElektra [2001] I-2099, paragraph 69).
40 However, under Article 30 EC, Article 28 EC does not preclude prohibitions or restrictions on imports justified on grounds such as public security, provided that those prohibitions or restrictions do not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
41 It should, moreover, be remembered that, according to equally settled case-law (see, in particular, Case 120/78 Rewe-Zentral [1979] ECR 649, known as Cassis de Dijon, paragraph 8), in the absence of common rules applying to the products concerned, the obstacles to free movement within the Community resulting from disparities between national provisions must be accepted in so far as those national provisions, which are applicable without distinction to national products and to imported products, can be justified as being necessary in order to satisfy imperative requirements of Community law, such as those relating to the protection of users and the proper functioning of the public telecommunications network (see Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraphs 30 and 31).
42 Whether they are based on the situations explicitly provided for in Article 30 EC or on imperative requirements recognised by the case-law, national provisions which derogate from Article 28 EC can only be justified if they are necessary in order to attain an authorised objective which cannot be achieved by means which place less of a restriction on the free movement of goods within the Community (see, in particular, Case 155/82 Commission v Belgium [1983] ECR 531, paragraph 12; GB-Inno-BM, cited above, paragraph 33).
43 In that connection, the Court has held that provisions of a Member State which prohibit the import, marketing or holding in stock, with a view to selling, of radio equipment that has not undergone national type-approval, such as the provisions at issue in the main proceedings, constitute a measure equivalent to a quantitative restriction within the meaning of Article 28 EC (see Case C-80/92 Commission v Belgium [1994] ECR I-1019, paragraph 21).
44 It is true that the national type-approval for radio equipment is of such a nature as to be justified by considerations of public security and imperative requirements relating to the proper functioning of the public telecommunications network. It is not disputed, however, that equipment such as that at issue in the main proceedings does in fact comply with the national provisions concerning the proper use of radio frequencies in the Member State of import.
47 Consequently, the first question should be answered as follows: Article 28 EC precludes legislation and/or national administrative practice which - in the context of a system where matters concerning conformity assessment procedures for the purposes of placing radio equipment on the market and putting such equipment into service have been delegated to the administrative authorities, to be decided at their discretion - prevents economic operators from importing, marketing or holding in stock, with a view to selling, radio equipment that has not undergone national type-approval, and which does not admit other forms of evidence, equally reliable but less burdensome to obtain, to prove that such equipment is in conformity with requirements concerning the proper use of the radio frequencies authorised under national law.
The second question
49 According to settled case-law, wherever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive (see Case 8/81 Becker [1982] ECR 53, paragraph 25; Case C-134/99 IGI [2000] ECR I-7717, paragraph 36).
50 Thus it should be examined whether some of the provisions of the Directive are of an unconditional nature and sufficiently precise as required by the case-law referred to in the preceding paragraph (Becker, cited above, paragraph 29).
53 The prohibition laid down in the second sentence of Article 6(1) of the Directive is clear and precise. As regards its unconditional character, it is true that, in the case of radio equipment which uses non-harmonised frequencies, Article 6(4) of the Directive requires the party responsible for placing the apparatus on the market to notify the national authority responsible for spectrum management of the intention to place such equipment on its national market. That procedural rule is intended to complement the implementation of the mechanisms of the Directive in national law, but it does not in any way confer on the Member States the power to impose additional conditions or limit the scope of the prohibition contained in the second sentence of Article 6(1) of the Directive.
64 By the second part of the second question, the national court asks whether Article 7(2) of the Directive allows for the maintenance in force of legislation and/or administrative practice which, after 8 April 2000, prohibits the marketing and/or the putting into service of radio equipment which does not bear the national type-approval stamp, where it has been confirmed that such equipment makes efficient and proper use of the radio frequencies authorised under national law, or where it is easy to verify that this is the case.
66 Consequently, the second question should be answered as follows: the provisions of the second sentence of Article 6(1), Article 7(1) and Article 8(1) of the Directive confer on individuals rights which may be relied upon before national courts even though the Directive itself has not been formally implemented in national law within the period prescribed, and Article 7(2) of the Directive does not allow for the maintenance in force of legislation and/or administrative practice which, after 8 April 2000, prohibits the marketing and/or the putting into service of radio equipment which does not bear the national type-approval stamp, where it has been confirmed that such equipment makes efficient and proper use of the radio frequencies authorised under national law, or where it is easy to verify that this is the case.
The third question
68 Article 1 of Decision 3052/95 contemplates the measures used by a Member State to prevent the free movement of products lawfully produced or marketed in another Member State. According to the last indent of Article 2 of the Decision, the term measure is defined as any measure other than a judicial decision. Thus the term includes any measure taken by a Member State, except for judicial decisions, which has the effect of restricting the free movement of goods lawfully produced or marketed in another Member State, regardless of its form or the authority from which it emanates.
78 According to the case-law of the Court, penalties, be they criminal or otherwise, involving national restrictive measures which have been recognised as being contrary to Community law are as incompatible with Community law as the restrictions themselves (see Case 179/78 Rivoira and Others [1979] ECR 1147, paragraph 14; Case 269/80 Tymen [1981] ECR 3079, paragraphs 16 and 17).
79 For this reason, a system of penalties intended to ensure compliance with national provisions which are contrary to Community provisions must be held to be contrary to Community law, without there being any need to examine whether or not it meets the tests of non-discrimination and proportionality.
80 Consequently, the fourth question should be answered as follows: where national provisions have been recognised as being contrary to Community law, the imposition of fines or other coercive measures for infringements of those provisions is also incompatible with Community law.