Lidl Magyarország Kereskedelmi bt v Nemzeti Hírközlési Hatóság Tanácsa.
Date: 2009-04-30
24. Articles 6 and 8 of Directive 1999/5 ensure the free movement of apparatus which satisfy the provisions of that directive (Case C-14/02 ATRAL  [2003] ECR I-4431, paragraph 50).
26. Directive 1999/5 confers a presumption of compliance on apparatus which bears the ‘CE’ marking. That marking attests the conformity of the apparatus with all the provisions of that directive, including the conformity assessment procedures provided for by that directive (see ATRAL , paragraph 51).
28. Consequently, products bearing the ‘CE’ marking may be placed on the market without having to undergo a prior authorisation procedure (see, to that effect, ATRAL , paragraph 52) or any other procedure designed to multiply the number of persons required to affix the conformity marking.
32. “producer”: any economic entity responsible for the planning, production, packaging, labelling and marketing of equipment, regardless of whether it performs those tasks itself or has them carried out by someone else on its behalf. Anyone who, for the purposes of marketing, makes significant modifications or additions to existing equipment, which affect its essential characteristics, or makes new equipment out of it must also be regarded as the producer. If the producer’s head office is not situated in Hungary, the importer of the equipment must be regarded as the producer.’
15. Under Article 1(2) of Decree No 5/2004 (IV.13.) of the Ministry of Information, Technology and Communications (IHM) on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (5/2004. (IV.13.) IHM rendelet a rádióberendezésekről és az elektronikus hírközlő végberendezésekről, valamint megfelelőségük kölcsönös elismeréséről) ‘the scope of this Decree covers in Hungary, in addition to the Hungarian Communications Authority, all natural or legal persons, all entities without legal personality, and all branches or representatives of undertakings whose head office is established abroad which produce, import, market (jointly, “producers”), distribute, certify, put into service and use equipment referred to in paragraph 1’.
16. According to Article 4(4) of that decree, where radio equipment uses frequencies or frequency bands which are not harmonised in the European Union, the producer must inform the competent authority, in accordance with specific provisions laid down in that regard, of its intention to market the equipment concerned in Hungary.
17. The producer must, in accordance with Article 10(6) of the decree, ‘issue a declaration that the equipment conforms to the essential requirements. For the purposes of the marketing of apparatus manufactured in Hungary, a declaration of conformity must be issued in Hungarian or in other languages, including Hungarian. Where the apparatus was not manufactured in Hungary, the declaration may be issued in an official language of any Member State of the European Union. The substantive requirements relating to the declaration of conformity are set out in Annex 6’.
The dispute in the main proceedings and the questions referred for a preliminary ruling
18. Lidl markets, in Hungary, radio equipment of the type ‘UC Babytalker 500’, manufactured by a Belgian company which affixed the ‘CE’ marking and issued a declaration of conformity for that product. That equipment uses a frequency which is not harmonised.
19. Following an inspection in 2007 at one of Lidl’s retail outlets, the Hatóság formed the view that that equipment did not satisfy the declaration of conformity provided for by Hungarian law. It consequently prohibited Lidl from marketing the equipment concerned until such time as a declaration of conformity issued in accordance with Hungarian law had been submitted. The Hatóság argued that Lidl was to be regarded as the manufacturer of the equipment since it placed the equipment on the market in Hungary.
20. Since the Hatóság did not accept the declaration of conformity issued by the Belgian manufacturer, Lidl brought an action against the decision prohibiting the marketing of that equipment, requesting its annulment.
21. Taking the view that the product concerned may, in accordance with the applicable Community directives, be marketed in all the Member States, the Fővárosi Bíróságs, in the light of the contrary opinion expressed by the defendant in the main proceedings, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Can Article 8 of Directive [1999/5] be interpreted as meaning that no obligations apart from those concerning the free movement of radio equipment and telecommunications terminal equipment (“equipment”) in the directive may be laid down as regards the marketing of equipment which falls within the scope of the directive and which has ha d the “CE” marking affixed by its producer, established in another Member State?
2. Can Article 2(e) and (f) of Directive [2001/95] be interpreted, as regards obligations relating to marketing, as meaning that an entity may also be regarded as a producer if it markets equipment in a Member State (without being involved in the manufacture of the equipment) and is established in a Member State other than the one where the producer is established?
3. Can Article 2(e)(i), (ii) and (iii), and (f) of Directive [2001/95] be interpreted as meaning that the distributor of equipment manufactured in another Member State (who is not the same person as the producer) can be required to issue a declaration of conformity setting out the technical data relating to the equipment?
4. Can Article 2(e)(i), (ii) and (iii), and (f) of Directive [2001/95] be interpreted as meaning that an entity which carries out only distribution in one Member State and is established in that State, must also be regarded as the producer of the distributed equipment where the activity of the distributor does not affect the safety characteristics of the equipment?
5. Can Article 2(f) of Directive [2001/95] be interpreted as meaning that the distributor, as defined in the directive, can be required to fulfil the obligations which under the directive are required only of the producer as defined in Article 2(e), such as the issuing of a declaration of conformity as regards technical conditions?
6. Can Article 30 [EC] and the so-called mandatory requirements justify an exception to the application of the formula [derived from the judgment in Case 8/74 Dassonville  [1974] ECR 837], having regard to the principles of equivalence and mutual recognition?
7. Can Article 30 [EC] be interpreted as meaning that trade in and import of goods in transit cannot be restricted for any reason other than those listed there?
8. Is the “CE” marking sufficient to satisfy the principle of equivalence or the principle of mutual recognition and the conditions of Article 30 [EC]?
9. Can the “CE” marking be interpreted as meaning that Member States are not justified in applying any other technical provisions or provisions regarding quality to equipment bearing the mark?
10. Can the provisions of Article 6(1) and of the second sentence of Article 8(2) of Directive [2001/95] be interpreted as meaning that, for the purposes of marketing of goods, the producer and the distributor can be considered to be subject to the same obligations, where the producer does not market the products?’
The questions referred for a preliminary ruling
The interpretation of Directive 1999/5
22. By its first question, the referring court seeks, essentially, to ascertain whether a Member State may, pursuant to Directive 1999/5, require an operator placing radio equipment on the national market to provide a declaration of conformity even though the manufacturer of that equipment, whose head office is situated in another Member State, has affixed the ‘CE’ marking on it and has issued a declaration of conformity for that product.
23. In that connection, it must be stated that Directive 1999/5, which establishes a legal framework for the placing on the market, free movement and putting into service in the Community of radio equipment contains, in Articles 6, 8 and 12, the rules which are relevant for the resolution of the dispute in the main proceedings.
24. Articles 6 and 8 of Directive 1999/5 ensure the free movement of apparatus which satisfy the provisions of that directive (Case C-14/02 ATRAL  [2003] ECR I-4431, paragraph 50).
25. Although the Member States are required to ensure, in accordance with the first sentence of Article 6(1) of Directive 1999/5, that apparatus is placed on the market only if it complies with the appropriate essential requirements identified in that directive, the second sentence of Article 6(1) provides that they must not subject that apparatus to other national requirements in respect of placing on the market. Furthermore, Article 8(1) of that directive provides that Member States must not impede the placing on the market in their territory of apparatus bearing the ‘CE’ marking.
26. Directive 1999/5 confers a presumption of compliance on apparatus which bears the ‘CE’ marking. That marking attests the conformity of the apparatus with all the provisions of that directive, including the conformity assessment procedures provided for by that directive (see ATRAL , paragraph 51).
27. Under that scheme the ‘CE’ marking is, according to the second sentence of the first subparagraph of Article 12(1) of Directive 1999/5, affixed under the responsibility of the manufacturer, his authorised representative within the Community or the person responsible for placing the apparatus on the market.
28. Consequently, products bearing the ‘CE’ marking may be placed on the market without having to undergo a prior authorisation procedure (see, to that effect, ATRAL , paragraph 52) or any other procedure designed to multiply the number of persons required to affix the conformity marking.
29. The Member States are therefore obliged, without prejudice to the provisions of Articles 6(4), 7(2) and 9(5) of Directive 1999/5, to recognise the ‘CE’ marking affixed by one of the persons listed in Article 12(1) of that directive. To require one of those persons to provide a declaration of conformity for radio equipment on which the ‘CE’ marking has already been affixed by one of the other persons identified in Article 12(1) of Directive 1999/5 would be tantamount to impeding the placing of that product on the market by making it subject to requirements other than those laid down by Directive 1999/5.
30. It follows that Directive 1999/5 precludes national rules which, in the field harmonised by that directive, require the persons responsible for the placing on the market of a product bearing the ‘CE’ marking and accompanied by a declaration of conformity issued by the producer also to provide a declaration of conformity.
31. The fact that the producer who affixed the ‘CE’ marking is based in a Member State other than that in which the product is placed on the market has no bearing on that assessment. Indeed, the contrary is the case: since it concerns the free movement of radio equipment and the mutual recognition of the conformity of such equipment, Directive 1999/5 precisely covers that situation.
32. Furthermore, the fact that the apparatus concerned in the main proceedings uses a frequency which has not been harmonised also cannot, in the light of Article 6(4) of Directive 1999/5, alter that assessment. The procedural rule laid down in that provision merely imposes on the manufacturer, his authorised representative within the Community or the person responsible for placing the apparatus on the market the obligation to notify the national authority responsible for spectrum management of the intention to place such equipment on its national market. Although it is intended to complement the implementation of the mechanisms of Directive 1999/5 in national law, that procedural rule 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 Directive 1999/5 (see Joined Cases C‑388/00 and C-429/00 Radiosistemi  [2002] ECR I‑5845, paragraph 53).
42. In that regard, it should be borne in mind, as the Commission in particular submits, that, where a matter is regulated in a harmonised manner at Community level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not of Articles 28 EC and 30 EC (see Case C-324/99 DaimlerChrysler  [2001] ECR I-9897, paragraph 32 and the case-law cited).
43. As regards the obligation to provide a declaration of conformity for radio equipment, Directive 1999/5 contains specific rules. It is clear from the wording and the objective of that directive that it pursues complete harmonisation in its field of application.  It follows that, in the fields covered by that directive, the Member States must conform to them in their entirety and cannot maintain national provisions to the contrary (see ATRAL , paragraph 44).
45. Furthermore, as the Commission observes, where, in support of a restriction, a Member State invokes grounds external to the field harmonised by Directive 1999/5, it may refer to Article 30 EC. In such a case, the Member State may invoke only one of the public-interest reasons laid down in Article 30 EC or one of the overriding requirements referred to in the judgments of the Court (see, in particular, Case 120/78 Rewe-Zentral  (‘ Cassis de Dijon ’) [1979] ECR 649, paragraph 8). In either case, the national provision must be appropriate for securing the attainment of that objective and must not go beyond what is necessary in order to attain it (see Radiosistemi , paragraph 42, and ATRAL , paragraph 64).
46. In the light of the foregoing considerations, the answer to Questions 6 to 9 is that where a matter is regulated in a harmonised manner at Community level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not in that of Articles 28 EC and 30 EC. In matters coming under Directive 1999/5, Member States must comply in full with the provisions of that directive and may not maintain in force contrary national provisions. In the case where a Member State takes the view that conformity with a harmonised standard does not guarantee compliance with the essential requirements laid down by that directive which that standard is supposed to cover, that Member State is required to follow the procedure set out in Article 5 of that directive. By contrast, a Member State may, in support of a restriction, invoke grounds external to the field harmonised by Directive 1999/5. In such a case, it may invoke only the reasons laid down in Article 30 EC or mandatory requirements relating to the public interest.
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