Régie des télégraphes et des téléphones v GB-Inno-BM SA.
Date: 1991-12-13
14 The national court asks whether Articles 3(f), 90 and 86 of the EEC Treaty preclude a Member State from granting to the company operating the public telecommunications network the power to lay down the standards for telephone equipment and to check that economic operators meet those standards when it is competing with those operators on the market for terminals.
15 Under Belgian law, the RTT holds a monopoly for the establishment and operation of the public telecommunications network. Moreover, only equipment supplied by the RTT or approved by it can be connected to the network. The RTT thus has the power to grant or withhold authorization to connect telephone equipment to the network, the power to lay down the technical standards to be met by that equipment, and the power to check whether the equipment not produced by it is in conformity with the specifications that it has laid down.
17 The Court has consistently held that an undertaking vested with a legal monopoly may be regarded as occupying a dominant position within the meaning of Article 86 of the Treaty and that the territory of a Member State to which that monopoly extends may constitute a substantial part of the common market (judgments in Case C-41/90 Hoefner [1991] ECR I-1979, paragraph 28, and in Case C-260/89 ERT [1991] ECR I-2925, paragraph 31).
18 The Court has also held that an abuse within the meaning of Article 86 is committed where, without any objective necessity, an undertaking holding a dominant position on a particular market reserves to itself an ancillary activity which might be carried out by another undertaking as part of its activities on a neighbouring but separate market, with the possibility of eliminating all competition from such undertaking (judgment in Case 311/84 CBEM [1985] ECR 3261).
20 However, Article 86 applies only to anti-competitive conduct engaged in by undertakings on their own initiative (see judgment in Case C-202/88 France v Commission "Telecommunications terminals", [1991] ECR I-1223), not to measures adopted by States. As regards measures adopted by States, it is Article 90(1) that applies. Under that provision, Member States must not, by laws, regulations or administrative measures, put public undertakings and undertakings to which they grant special or exclusive rights in a position which the said undertakings could not themselves attain by their own conduct without infringing Article 86.
21 Accordingly, where the extension of the dominant position of a public undertaking or undertaking to which the State has granted special or exclusive rights results from a State measure, such a measure constitutes an infringement of Article 90 in conjunction with Article 86 of the Treaty.
23 According to the RTT, there could be a finding of an infringement of Article 90(1) of the Treaty only if the Member State had favoured an abuse that the RTT itself had in fact committed, for example by applying the provisions on type-approval in a discriminatory manner. It emphasizes, however, that the order for reference does not state that any abuse has actually taken place, and that the mere possibility of discriminatory application of those provisions by reason of the fact that the RTT is designated as the authority for granting approval and is competing with the undertakings that apply for approval cannot in itself amount to an abuse within the meaning of Article 86 of the EEC Treaty.
24 That argument cannot be accepted. It is sufficient to point out in this regard that it is the extension of the monopoly in the establishment and operation of the telephone network to the market in telephone equipment, without any objective justification, which is prohibited as such by Article 86, or by Article 90(1) in conjunction with Article 86, where that extension results from a measure adopted by a State. As competition may not be eliminated in that manner, it may not be distorted either.
25 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 (judgment in Case C-202/88, paragraph 51).
26 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 (judgment in Case C-202/88, paragraph 52).
28 Accordingly, it must first be stated, in reply to the national court' s questions, that Articles 3(f), 90 and 86 of the EEC Treaty preclude a Member State from granting to the undertaking which operates the public telecommunications network the power to lay down standards for telephone equipment and to check that economic operators meet those standards when it is itself competing with those operators on the market for that equipment.
The free movement of goods
30 As the Court has consistently held (see in particular the judgment in Case 120/78 REWE-Zentral [1979] ECR 649, "Cassis de Dijon"), 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. The Court has, however, held that such rules must be proportionate to the object to be achieved and that, where a Member State has a choice between a number of measures suited to achieving the same purpose, it must choose the means that least hinders the free movement of goods.
31 In the absence of Community rules on the establishment of public telecommunications networks, and in view of the technical diversity of the networks in the Member States, the Member States retain, on the one hand, the power to lay down technical specifications which telephone equipment must meet to be capable of being connected to the public network and, on the other, the power to examine whether the said equipment is fit to be connected to the network in order to satisfy the imperative requirements regarding the protection of users as consumers of services and the protection of the public network and its proper functioning.
33 An exception to the principle of the free movement of goods based on an imperative requirement is justified only if the national rules are proportionate to the object to be achieved.
34 It is apparent from the judgment in Case 178/84 Commission v Germany [1987] ECR 1227, paragraph 46, that it must be open to traders to challenge before the courts an unjustified failure to grant authorization for imports. The same possibility must exist with regard to decisions refusing to grant type-approval since they can lead in practice to denial of access to the market of a Member State to telephone equipment imported from another Member State and hence to a barrier to the free movement of goods.