Procureur du Roi v Jean-Marie Lagauche and others.
Date: 1993-10-27
21 Then, since Article 86 of the Treaty is aimed only at anti-competitive conduct engaged in by undertakings of their own initiative (see, inter alia, Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 55), whereas the questions referred to the Court concern State measures, they must be examined from the point of view of Article 90(1) of the Treaty, read in conjunction with Article 86.
25 In Case C-18/88 RTT v GB-Inno-BM [1991] ECR I-5941, the Court ruled that Article 30 of the Treaty precludes a public undertaking from being given the power to approve telephone equipment which is intended to be connected to the public network and which it has not supplied if the decisions of that undertaking cannot be challenged before the courts.
26 That interpretation must be extended to situations where a public undertaking approves radio transmitters or receivers, whether or not they are intended to operate over the public network.
27 The Belgian Government stated in its observations that where the RTT refuses to grant the type-approval in question an appeal lies to the Belgian Conseil d' État (Council of State).
28 Accordingly, and in so far as the type-approval procedure in question complies with the criteria laid down in the GB-Inno-BM judgment, it cannot be regarded as contrary to Article 30 of the Treaty.
33 Those prerogatives are therefore exercised in the context of a matter of State concern, namely the regulation of the public airwaves, and do not constitute a supply of services. Such an activity falls in any event outside the scope of Article 37 of the Treaty, which, as the Court has ruled (see, inter alia, Case 271/81 Amélioration de l' Élevage v Mialocq [1983] ECR 2057), applies to trade in goods and relates to monopolies over the provision of services only in so far as such a monopoly contravenes the principle of the free movement of goods by discriminating against imported products to the advantage of products of domestic origin.
36 Directive 88/301 was adopted by the Commission pursuant to its legislative power under Article 90(3) of the Treaty to lay down general rules specifying the obligations arising from the Treaty which are binding on the Member States as regards the undertakings referred to in Article 90(1) and (2) (France v Commission, cited above, paragraphs 14 and 15).
44 At the same time, it should be pointed out that a system of undistorted competition, as envisaged in the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators. That would not be the case if an undertaking which markets terminal equipment were entrusted with the task of drawing up the specifications for such equipment, monitoring their application and granting type-approval in respect thereof (France v Commission, paragraph 51, and RTT v GB-Inno-BM, paragraph 25).
49 It is clear from the wording of Article 7 of the Belgian Law that, in contrast to the situation in the GB-Inno-BM case, it is the minister who determines the technical requirements necessary for type-approval of such equipment and the detailed rules concerning that approval, and he does so within the framework of his powers to regulate radiocommunications in Belgian territory. While it is true that the RTT is authorized by Article 2 of that Law to undertake and operate any radiocommunication service, it is clear from the wording of Article 7 that its sole task as regards the type-approval of transmitting or receiving equipment is to check that such equipment complies with the requirements determined by the minister.