Canal Satélite Digital SL v Adminstración General del Estado, and Distribuidora de Televisión Digital SA (DTS).
Date: 2002-01-22
12 According to the national court, the most coherent interpretation of that legislation is that, by means of Article 2 of Decree 136/1997, in conjunction with Article 1(2) of Decree-Law 1/1997 and the single additional provision thereof, the Spanish authorities created a compulsory register in which operators of conditional-access services are required to record details not only of themselves but also of the telecommunications apparatus, equipment, devices and systems which they market or offer. Registration in that register is by no means automatic, but is subject to a prior administrative decision which may be negative. To be entered in the register, it is not sufficient for the operator concerned to undertake to comply with the technical specifications, but he first has to obtain a prior technical report by officials of the Ministry of Public Works stating that the technical and other requirements laid down in Decree-Law 1/1997 have been complied with. Only after successfully completing the registration procedure and obtaining the relevant certification is it legally possible to market, distribute, transfer or hire out the equipment, systems and decoders necessary for the digital transmission of television signals. Operators engaging in the marketing, distribution, transfer or hiring-out of the aforementioned apparatus without having obtained such certification commit a serious or a very serious offence punishable under administrative law.
The main proceedings and the questions referred to the Court
18 It is settled case-law that, in the context of the cooperation between the Court of Justice and the national courts established by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, for example, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59).
19 However, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia [1981] ECR 3045, paragraph 21). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, for example, Case C-379/98 PreussenElektra [2001] I-2099, paragraph 39).
24 In that respect, it is sufficient to point out that the Court of Justice has no jurisdiction either to decide whether the referring Court's interpretation of provisions of national law is correct or to rule, in the context of a reference for a preliminary ruling, on the conformity of those provisions with Community law. It is the task of the Court solely to interpret provisions of Community law in order to give the national court all the guidance on matters of Community law that it needs in order to decide the case before it (Case C-58/98 Corsten [2000] ECR I-7919, paragraph 24).
25 The relevant interpretation of national law for the Court of Justice is therefore that adopted by the referring court and reproduced in paragraph 12 of this judgment.
Directive 95/47
27 On the other hand, Directive 95/47 does not contain any provisions concerning detailed administrative rules for implementing the obligations incumbent on Member States under that directive. That finding does not, however, justify the conclusion that the Member States may not establish a prior authorisation procedure consisting of compulsory entry in a register together with the requirement of a prior technical report drawn up by the national authorities.
28 However, where they establish such an administrative procedure, Member States must at all times comply with the fundamental freedoms guaranteed by the Treaty.
The existence of restrictions on the fundamental freedoms guaranteed by the Treaty
29 The requirement imposed on an undertaking wishing to market apparatus, equipment, decoders or digital transmission and reception systems for television signals by satellite to register as an operator of conditional-access services and to state in that register the products which it proposes to market restricts the free movement of goods and the freedom to provide services guaranteed by Articles 30 and 59 of the Treaty respectively (see, as regards crafts businesses, Corsten, paragraph 34).
30 Moreover, the need in certain cases to adapt the products in question to the rules in force in the Member State in which they are marketed prevents the abovementioned requirements from being treated as selling arrangements within the meaning of paragraph 16 of Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097.
Justification for the restrictions found to exist
31 Where a national measure restricts both the free movement of goods and the freedom to provide services, the Court will in principle examine it in relation to one only of those two fundamental freedoms where it is shown that, in the circumstances of the case, one of them is entirely secondary in relation to the other and may be considered together with it (see, in relation to lottery activities, Case C-275/92 Schindler [1994] ECR I-1039, paragraph 22).
33 Accordingly, the question whether the restrictions referred to in paragraph 29 of this judgment are justified must be examined simultaneously in the light of both Article 30 and Article 59 of the Treaty, in order to determine whether the national measure at issue in the main proceedings pursues an objective of public interest and whether it complies with the principle of proportionality, that is to say whether it is appropriate for securing the attainment of that objective and does not go beyond what is necessary in order to attain it (see, in particular, Case C-76/90 Säger [1991] ECR I-4221, paragraph 15; Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-8453, paragraph 35; and Corsten, paragraph 39).
34 It is undisputed that informing and protecting consumers, as users of products or services, constitute legitimate grounds of public interest which are in principle capable of justifying restrictions on the fundamental freedoms guaranteed by the Treaty. However, in order to determine 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 considerations which include the following.
35 First, it is settled case-law that a system of prior administrative authorisation cannot legitimise discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of provisions of Community law, particularly those relating to the fundamental freedoms at issue in the main proceedings (Joined Cases C-358/93 and C-416/93 Bordessa and Others [1995] ECR I-361, paragraph 25; Case C-205/99 Analir and Others [2001] ECR I-1271, paragraph 37; Case C-157/99 Smits and Peerbooms [2001] ECR I-5473, paragraph 90). Therefore, if a prior administrative authorisation scheme is to be justified even though it derogates from such fundamental freedoms, it must, in any event, be based on objective, non-discriminatory criteria which are known in advance to the undertakings concerned, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily (Analir, paragraph 38).
36 Second, 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.
37 First, it is well established in case-law that a product which is lawfully marketed in one Member State must in principle be able to be marketed in any other Member State without being subject to additional controls, save in the case of exceptions provided for or allowed by Community law (see, in particular, Case 120/78 Rewe-Zentral (Cassis de Dijon) [1979] ECR 649, paragraph 14, and Case C-123/00 Bellamy and English Shop Wholesale [2001] ECR I-2795, paragraph 18).
38 Second, it is incompatible in principle with the freedom to provide services to make a provider subject to restrictions for safeguarding the public interest in so far as that interest is already safeguarded by the rules to which the provider is subject in the Member State where he is established (see, in particular, Case 279/80 Webb [1981] ECR 3305, paragraph 17; Arblade, paragraph 34).
42 In that regard, once examination of the conditions for obtaining registration has been carried out and it has been established that those conditions have been satisfied, the requirement to obtain certification for the apparatus, equipment or conditional-access telecommunication systems after that registration procedure must neither delay nor complicate exercise of the right of the undertaking concerned to market those products and related services. Moreover, the requirements of entry on a register and the obtaining of certification, assuming they are justified, must not give rise to disproportionate administrative expenses (Corsten, paragraphs 47 and 48).
45 As regards the first part of that question, the Court has already held that national provisions which merely lay down conditions governing the establishment of undertakings, such as provisions making the exercise of an activity subject to prior authorisation, do not constitute technical regulations within the meaning of Article 1, point 9, of Directive 83/189. Technical regulations within the meaning of that provision are specifications defining the characteristics of products and not specifications concerning economic operators (Case C-194/94 CIA Security [1996] ECR I-2201, paragraph 25; Case C-278/99 Van der Burg [2001] ECR I-2015, paragraph 20).