C-69/91

2 — There arc, obviously, differences between the various cases. Those differences do not, however, relate to the event at * issue, which is invariably the marketing of terminals without Original language: Italian. approval of the specific type of terminal under consideration 1 — Besides the present case and Taillandier, I would point out — a difference which sometimes carries implications for the RTT v GB-Inno-BM, on which judgment was delivered on scope of the national provisions which apply. 13 December 1991 (Case C-18/88 [1991] ECR I-5941) In addition, the event in question may clearly arise in the together with the references to the Court in Lagattchc (Case context of different legal relations, whether substantive or C-46/90 [1993] ECR I-5267, in which the Court decided procedural. For example, whereas the reference to the Court to reopen the oral procedure following the Opinion of in RTT v GB-Inno-BM arose from an action brought by a Advocate General Lenz), Evrard (Case C-93/91 [1993] competitor, namely the national telecommunications body, ECR I-5267), Sauges (Case C-164/91, still pending), which sought an injunction against a trader selling terminal Henryon and Others (Joined Cases C-238 to 240/91, still equipment without type-approval, this case derives from pending), Gleyzes (Case C-288/91, still pending) and criminal proceedings brought against a trader who had been Marchandeait (Case C-323/91, still pending). selling equipment without type-approval.

I-5354

DECOSTER

legal relations 3, which has tended gradually 16 May 1988 on competition in the markets to eliminate national monopolies and privi- in telecommunications terminal equipment 5 leges and hence to secure acceptance of the (hereinafter 'the directive on terminal equip- right of traders to import and market freely ment'), and was finally upheld by the Court the equipment concerned. in the well-known judgment in Case 202/88 (France v Commission [1991] ECR I-1223).

Although the enforcement omic and legal structures in the telecommunications sector in general and in the market for terminals in particular. The of such rules and inspections is to some speed of innovation, the merging of sectors wnich were pre- extent indispensable in the absence of a viously separate and characterized by diflering economic and legal structures (postal services and telecommunications, framework of Community or international information and audio-visual activities), the variety of means provisions, it may in some circumstances for transmitting information (which, of course, has its coun terparl in the range of terminals available) — in short, the have the effect of obstructing trade in a man- emergence of that broad and complex area of activity com monly known as 'information technology' — have pro- ner which is unjustified or at least dispropor- foundly changed the nature and characteristics of the goods tionate to the (legitimate) aims pursued. and services bought and sold, opening up new fields of action to vigorous international competition. Hence the need for proper guarantees, pre- As far as telecommunications terminal equipment is con cerned, there is no doubt that, even before Community pro- cisely with a view to preventing the freedom visions were adopted, the changes mentioned above had far- reaching repercussions on the structure and functioning of to import and sell terminal equipment from the European markets. The competition (mainly) from non- remaining a dead letter, having no practical member countries (the USA, Japan and the newly industri- alized countries) and the necci for industrial cooperation on effect. account of the scale of the investment required have gradu- ally reduced the divisions between the various national mar- kets of Europe, thereby weakening not only the exclusive rights enjoyed (de pure or de facto) by national (public) bod- ies with regard to the supply of terminal equipment but also the privileged links between such bodies and certain national producers (Alcatel, Siemens, Italici and so on). It is precisely the influence of those factors which explains Amongst those guarantees, the first and per- why the Member States were largely willing to accept the haps most important is the rule set out in the liberalization programme set out by the Commission in the Green Paper and later embodied in the directive on terminal Green Paper and laid down in Article 6 of

and equipment, COM (87) 29C of 30 June 1987. 5 — OJ 1988 L 131, p. 73.

Pursuant to Article D440 et seq. of the French Code des Postes et Télécommunica- tions (Postal and Telecommunications Code) (hereinafter 'the PTT Code'), terminal equip- That being so, it may readily be seen that the ment (telephonic, telegraphic and radio- extent of the scope of those guarantees is the electrical equipment) may be supplied either central issue in the judicial proceedings aris- by the PTT or by private competitors. In the ing from the marketing of terminal equip- latter case the PTT does not intervene in ment without type-approval. On that issue dealings between user and supplier but there are two opposing interests: on the one requires type-approval for the equipment in hand, the interest of traders in being allowed question (Article D444 of the PTT Code, as to market terminal equipment as freely as amended by Article 3 of Decree No possible, and in any event without impedi- 85/336 of 12 March 1985). ments or restrictions lacking any objective justification, and, on the other, the public interest in ensuring that such marketing complies with the provisions and procedures which are the only means of upholding cer- tain essential requirements, the most impor- tant of which are the safety of users and In pursuance of that principle, and for the operators and the proper functioning of the purpose of regulating the marketing of ter- public telecommunications network. minal equipment intended for connection to the public telecommunications network, the French Government adopted Decree No 85-712 on 11 July 1985. Article 2 of Decree No 85-712 provides that terminal equipment may not be manufactured for the domestic market, imported, kept for sale, sold or dis- tributed (with or without a charge) unless it complies with the provisions laid down in The Court of Justice has already made an the decree. important contribution to resolving the issue in its judgment in RTT v GB-Inno-BM, mentioned above. The present case should serve to enlarge upon that earlier ruling, not only — I believe — on account of the special nature of the legal arguments adduced but also because, of the cases cited, Decoster is Under Articles 3 and 4 the equipment must the first to involve events which occurred meet a number of essential requirements for after the entry into force of the directive on the proper functioning of the network and terminal equipment. user safety.

— type-approval (agrément) is to be issued by the Direction Générale des Télécom- munications, pursuant to the PTT Code, Article 6 further provides that the evidence in respect of equipment complying with may be supplied by the person concerned by the specifications set out in the list submitting any one of four documents, annexed to the Notice; namely a report drawn up by a body autho- rized by the Minister for Industry, a type- approval certificate (agrément) issued pursu- ant to the PTT Code, a certificate of — other documents attesting compliance, compliance issued under Law No 78-23 of referred to in Article 6, are to be estab- 10 January 1978 on consumer protection and lished later. information, or any other document accepted as equivalent by decree of the Min- ister for Industry. It should be noted that the judicial proceed- ings have not disclosed whether, following the Notice issued in November 1985, any evidential documents other than the type- In order to implement Decree No 85-712 the approval certificate and the CNET report Ministère du Redéploiement Industriel et du were drawn up. Commerce Extérieur issued a formai 'Notice' on 1 November 1985 regarding the terminal equipment liable to be connected to the State telecommunications network. The Notice first contains a list, updated to Proceedings before the national court 30 September 1985, of the technical stan- dards and specifications to be used for the purposes of Articles 3 and 4 of Decree No 85 712, and establishes that equipment com The facts of the case before the national plying with those standards or specifications court are extremely straightforward: between is regarded as being in conformity with those May and October 1989 Francine Gillon, née two articles. Dccoster, marketed telecommunications equipment (in particular telefax machines) without first obtaining either the type- approval certificate or any other document accepted as evidence of compliance with the The Notice further describes how interested essential requirements under Articles 2 and parties can show evidence, in accordance 3 of Decree No 85-712. Indeed, it is clear with the requirements of Article 6 of Decree from the order for reference that Mrs Gillon No 85-712, that the terminal equipment did not even apply for the documents in complies therewith. It establishes that: question.

Neither at first instance nor on appeal did The accused claims that at the material time the accused deny the facts as alleged. How- the French authority responsible for drawing ever, she disputes their relevance under crim- up technical specifications and monitoring inal law, claiming that the marketing of the compliance of equipment with the pre- equipment without type-approval or other scribed requirements was not independent of certificates of compliance does not constitute the body which managed the public telecom- an offence, because Decree No munications network and, simultaneously, 85-712 requiring the prior acquisition of marketed terminal equipment in competition such documents is inapplicable inasmuch as with other economic operators. It follows — it conflicts with certain provisions of the according to the accused — that application directive on terminal equipment and Council of Decree No 85-712 must be suspended on Directive 83/189/EEC of 28 March 1983 lay- the ground that it subjects traders to techni- ing down a procedure for the provision of cal specifications and monitoring procedures information in the field of technical stan- which are respectively laid down and con- dards and rules 6 (hereinafter 'the directive ducted by a body unable to provide the on technical standards'). essential guarantee of independence required by the Community directive.

There are two objections raised by Mrs Gillon which are recorded in the order for reference.

(a) Legal basis for the requirement of inde- pendence It should, however, be noted that in the pro- cedure before the Court of Justice Mrs Gillon presented arguments on matters not included amongst those discussed in the order for reference. Besides repeating the As pointed out earlier, the rule under which points regarding lack of independence on the Member States must entrust responsibility part of the regulatory and supervisory body, for drawing up technical specifications, mon- and failure to communicate the relevant itoring their application and granting the rel- technical specifications (respectively Chapter evant type-approval, to a body independent II and Chapter I of her observations), she of public or private undertakings offering put forward three further arguments, as fol- goods or services in the telecommunications lows: the existence of discriminatory prac- sector — envisaged earlier in the Commis- tices by the French authorities to the detri- sion's Green Paper — was expressly set out ment of terminals imported from other in Article 6 of the directive on terminal Member States (Chapter III); practices by equipment. France Télécom involving abuse of a domi- nant position (Chapter IV); and the question whether national technical specifications which have not been harmonized under Community law arc applicable to terminals The preamble to the directive shows clearly which have already received type-approval in that Article 6 is an essential part of the gen- another Member State (Chapter V). eral plan to liberalize the market in telecom- munications terminals which underlies the directive. The guarantee of independence — that is, the impartiality of the regulatory, 7 It is wotrh emphasizing that in all the requests tor prelimi supervisory and licensing functions — is nary rulings from French courts arising from proceedings brought against persons charged with the marketing ol unap rightly presented as a key to ensuring that no proved terminals, the questions submitted to the Court arc conflict of interests arises in the market in the same as. or at least largely comparable to. the questions raised here question and hence that transparency and

8 — To that end paragraph 9 of the preamble to the directive states: 'a system of undistorted competition, as laid 'Stronger competition in the terminal equipment market requires the introduction of transparent technical specifica- down in the Treaty, can be guaranteed only if tions and type-approval procedures . . . To ensure that [these] arc applied transparently, objectively and without discrimi- nation, the drawing-up and application of such rules should be entrusted to bodies independent of competitors in the market in question.' 10 — In this connection it may be useful to point out that the Similarly, paragraph 17 states that: directives adopted by the Commission under Article 90(3) 'Monitoring of type-approval specifications and rules cannot are binding for the purposes of Article 189 of the Treaty be entrusted to a competitor in the terminal equipment mar- (see judgment in Case 226/87 Commission v Greece [1988] ket in view of the obvious conflict of interest. Member States ECR 3611), so that the obligations laid down in those should therefore ensure that the responsibility for drawing directives, even if limited to defining (or 'determining* or up type-approval specifications and rules is assigned to a 'expressing', to use other terms occurring in the judgment) body independent of the operator of the network and of any obligations already substantively embodied in the Treaty, other competitor in the market for terminals.' arc still to be regarded as formally autonomous.

lished in AA. W . , Deregidation or Re-regulation}, London, failure to implement the directive is entitled to raise, as an 1990, p. 103; M. Coleman, 'European Competition Law in ancillary matter, the issue of its legality by reference to the the Telecommunications and Broadcasting Sectors', Euro- exception under Article 184 of the Treaty. pean Competition Law Review, 1990, p. 204; AA. W . , 'Vers It will be recalled that, in the case of a decision adopted by une Nouvelle Réglementation des Télécommunications', op. the Commission under Article 90(3), the Court held in cit., pp. 200 ff and pp. 224 ff; J. Schcrcr, 'European Telecom- Case 226/87 that the Member State to which the decision munication Law', published in AA. W , The Law of Infor- was addressed may not — having failed to challenge it in mation Technology in Europe, Deventer, 1991, p. 228; time — plead its illegality in proceedings brought by the C. Overbury, P. Ravaioli, op. cit, pp. 282 ff and 302 ff; Commission for failure to give effect to it. B. Amory, Vers une Nouvelle Réglementation Européenne However, the right of a Member State, in an action for failure des Télécommunications', Revue Française d'Administration to fulfil its obligations, to object that a regulation or (more Publique, 1989, p. 671; E. Bordón Iglesias, 'La Libertad de importantly) a directive is illegal (and Article 184 refers to Circulación de Mercancías y Política de la Competencia en el regulations alone), is a matter of dispute for which no firm Mercado de Terminales de Telecommunicaciones', Revista de guidance may be found in previous judgments.

I-5360

DECOSTKR

— it distorts competition in the neighbour- ing market in terminal equipment; As is evident from the reasons given by the Court for its decision, such a distortion of competition may be said to arise whenever — it docs so by virtue of a national measure the body enjoying a monopoly in the which enables it to alter unilaterally the

I - 5361

O P I N I O N O F MR TESAURO — CASE C-69/91

conditions under which terminal equip- the one hand, and of legislation and supervi- ment is marketed. sion, on the other, will, if it interferes with equal opportunities as between competitors, automatically result in discrimination — at least potential discrimination — against imported products, irrespective of whether the body in question is present and holds a Furthermore — even though in RTT v monopoly or at least a dominant position in GB-Inno-BM the Court gives no express the separate market in telecommunication ruling on the point — the basis for the services. requirement of independence in question may be found not only in Articles 3(f), 86 and 90 of the Treaty but also in Article 30 thereof. According to the case-law of the Court, a national provision whose effect is to facilitate an abuse of a dominant position lia- ble to impair intra-Community trade is usu- It is precisely that broader view which is ally incompatible with the prohibition under reflected by Article 6 of the directive on ter- Article 30 of measures having equivalent minal equipment. Article 6 demands, with- effect (judgments in Case C-179/90 Merci out qualification, the separation of marketing Convenzionali Porto di Genova v Siderur- activities from regulatory and monitoring gica Gabrielli [1991] ECR I-5889 and Case activities, and it shows clearly that this sepa- 13/77 Inno v ATAB [1977] ECR 2115). ration is required even where the body mar- Moreover, in the RTT ruling the Court made keting terminal equipment does not at the a point of observing that the national mea- same time operate in the market for telecom- sures in dispute were likely to impede munication services. 12 imports of equipment from other Member States and thereby adversely affect trade between Member States 11 for the purposes of Article 86.

Since it has been established that Article That being so, the reply to the questions of 6 has direct effect, it is necessary briefly to interpretation raised in this case seems rela- deal with a second issue. It seems desirable tively simple. To begin with, as far as Article to outline the law as it stood prior to the 6 of the directive on terminal equipment (the commencement date (1 July 1989) after subject of the second question from the which, pursuant to Article 6, Member States national court) is concerned, I believe that its come under the obligation to ensure the direct effect should be recognized without independence of bodies responsible for any hesitation. As was observed above, Arti- drawing up specifications, monitoring their cle 6 in fact merely defines obligations which application and granting type-approval. the Treaty itself lays down and imposes on Admittedly, the latter point was not specifi- Member States. It would thus be illogical to cally referred to by the national court; how- maintain that the specific provision adopted ever, it is undoubtedly relevant to the settle- by the Commission pursuant to Article 90(3) ment of the dispute, inasmuch as the material does not have direct effect when the general events (that is, the marketing by Mrs Gillon provisions of the Treaty to which it gives of terminal equipment without type- effect do. Moreover, whilst it is true that approval) occurred between May and Octo- Article 6, in obliging Member States to ber 1989, and hence during a period which entrust regulatory and supervisory functions straddles the date laid down by Article 6. to an independent body, allows them a mar- gin of discretion as to the system to be cre- ated to that end, it is equally true that, if viewed in the light of the preamble to the In the light of the earlier observations, more- directive, that provision lays down a clear, over, the answer presents no difficulties. It is precise and unconditional prohibition of the sufficient to note that, even prior to the date retention of any system whatsoever which under Article 6, and indeed before the adop- allows any single entity to combine those tion of the directive on terminal equipment functions with the supply of goods and/or itself, the requirement of independence services in the telecommunications sector. existed and was binding on Member States, Furthermore, since that prohibition is by virtue of the Treaty provisions on the designed to ensure that equal conditions of movement of goods and on competition. The competition prevail in the relevant market, it RTT judgment which was seen earlier to is also clear that the provision is intended to refer to an episode comparable to the events protect the legitimate interests of undertak- in the present case but occurring before the ings operating in that market, which may, by adoption of the directive on terminal equip- virtue of Article 6 and the aforesaid Treaty ment, shows that legislation which docs not provisions, require Member States not to ensure independent regulating and monitor confer regulatory or supervisory functions ing of terminal equipment and thereby gives

It follows that even before the directive on — the second falls within the period terminal equipment was adopted, Member between Decree No 89-327 and Law N o States were bound under the Treaty to 90-568 of 2 July 1990; ensure that the drawing-up of technical spec- ifications, the monitoring of their application and the granting of type-approval for the — the third belongs to the period following equipment was performed by a body inde- Law No 90-568. pendent of the undertakings offering goods or services in the telecommunications sec- tor. 13 Of those three stages, only the second and, conceivably, the first are relevant for present 13 — It must be said that, in the light of that conclusion, the very purposes. The third stage, on the other hand, introduction of a commencement date under Article 6 of the directive seems superfluous. That is probably due to the belongs to a period (Law No 90-586 having fact that, at the time when the directive was adopted, RTTv entered into force on 1 January 1991) which GB-Inno-BM had not yet been decided. Accordingly, the Commission was entitled to the view that the obligation to clearly post-dates the events material to this ensure independent rules and inspections could not be inferred from the Treaty but was, at least in part, created by case. the directive. Hence, in so far as the Commission may have believed that, in view of the substantive obligations laid down by the directive (that is to say, those under Articles 2, 3, 6 and 7), the directive itself was instituting new obliga- tions rather than merely setting out obligations already contained in the Treaty, it may have considered it advisable to make the effects of one of the provisions of the directive That being so, it is tolerably clear from the subject to a commencement date, clearly intended to allow States a period of grace for enacting the legislative amend- evidence produced before the Court that, ments required. either in the first or in the second stage, the On the other hand, it must be emphasized that the com- mencement date relates only to Article 6 of the directive, national system in question did not afford and docs not in any way seek to — nor indeed could it sufficient guarantees of independence, inas- — limit the effects of the obligations directly imposed by the Treaty. much as all the activities in question — that

In particular, the situation prior to Decree No 89-327 was as follows: — although the French Government has not clearly defined the formal status of France Télécom at the time, it was clearly part of — under Decree No 86-129 of 28 January the central administration of the PTT and 1986 (Article 2), the drawing-up of regu- responsible at managerial level for con- lations on telecommunications and the ducting trade in the telecommunications monitoring of compliance with their gen- sector; 14 eral principles were entrusted to the Délégation Générale à la Stratégie, directly under the aegis of the Minister for Posts and Telecommunications (PTT); — as regards the report issued by the CNET and considered equivalent to type- approval for the purposes of the ministe- — the Délégation Générale à la Stratégie rial notice, it is clear that the CNET operated in concert with the other direc- forms part of France Télécom as a 'centre torates general of that ministry, including dc recherche de l'exploitant public' (reply in particular the Direction Générale des of the French Government to a question Télécommunications (Article 2 of Decree from the Court) — which evidently rules No 86-129); out any guarantee of independence in the issuing of the certificate of compliance.

14 — The assertions of the Commission and Mrs Gillon, which — the Direction Générale des Télécommuni- incidentally were in no way contradicted by the French cations embraced the Direction des Government, to the effect that iranci; Télécom was simply the 'shop front' for the F I T administration, are borne out Affaires Commerciales et Télématiques, in specialized publications Sec in particular AA. VV. 'Vers une Nouvelle Réglementation des Télécommunications', op whose task was to propose and imple- cit., p 93, which explains that France Telecom is the trade ment policy on trade and telematics name of the Direction genérale des télecommunications, sec also J. Chevallier, 'La Mutation des Postes et Télécommum (Article 14 of Decree No 86 129); calions', AJDA, 1990, p. 667.

— it sets up a Direction de la réglementation générale — in place of the Delegation In brief, those points disclose that at the générale à L· strategie — which defines material time neither the adoption of rules and enacts the general legal framework nor the granting of type-approval for termi- for the activities of the sector in question; nal equipment (nor more generally the mon- in particular, the directorate is responsible itoring of compliance 16 were carried out by for: a body independent of the entity marketing the terminal equipment itself. On the con- trary, all those activities were conducted by a single entity (namely the central administra- tion of the PTT). Of course, those tasks — monitoring compliance with the regula- could have been distributed between various tions in force; general directorates or other departments of that administration. Nevertheless, the tasks could be traced back to a single State admin- istration and were, in hierarchical terms, sub- — preparing draft laws and regulations and ject to a single decision-making authority. drawing up directives governing the activities of the various economic opera- tors in the sector; 15 — The French Government has not explained whether under Decree N o 89-312 type-approval was invariably issued by the Direction générale des télécommunications or by some other directorate within the Ministry for Posts and Tele- communications. The decree itself is silent on this point. In any case, even if responsibility for type-approval had been transferred to another directorate, this would not substan- tially change matters. — establishing and publishing technical 16 — Indeed, it is not clear from the documents before the Court specifications and type-approval proce- whether, subsequent to the abovementioned Ministerial Notice of November 1985, certificates of compliance were dures for terminal equipment (Article introduced which were distinct from type-approval certifi- 2 of Decree No 89-327); cates and the C N E T report. However, that is irrelevant. Even on the supposition that certificates of compliance were issued by a body totally unconnected with the PTT administration, and hence that there was at least a possibil- ity of having equipment checked for compliance pursuant to Decree N o 85-712 by an independent and impartial body, the fact remains that the technical specifications serv- ing as parameters for the inspection would nevertheless have been laid down by the PTT administration, and hence — it does not alter the commercial functions by an entity which — as wc have seen — was not indepen- performed by the PTT administration; dent.

— by reference to technical parameters laid down by a body independent of the PTT In the light of the foregoing considerations I administration. believe that the conclusion must be that, at least until Law No 90-568 entered into force, the drawing-up and monitoring of regula- tions and the granting of type-approval were emphatically not performed by a body inde- Subject to the findings and appraisals which pendent of the traders who marketed termi- are the exclusive preserve of the national nal equipment, and that this points to an court, I can do no more than reiterate that infringement both of Article 6 of the direc- according to the documents before the Court tive on terminal equipment and, for the rea- the situation prevailing in France at the sons stated above, of Article 30 of the Treaty. material time did not lend itself to that Furthermore, it may safely be assumed in hypothesis in any way.

I - 5367

OPINION OF MR TESAURO - CASE C 69/91

Lack of independence therefore constitutes a defect which not only vitiates a particular Thus the safeguarding of those requirements decision on a given request for type-approval comes, in effect, to be subordinated to the but which goes to the very heart of the entire protection of competition: an unsatisfactory system of rules and inspections introduced result, both in general terms (since in the by a Member State with regard to the mar- Treaty non-economic imperatives of that keting of terminal equipment. It follows that kind take precedence over the protection of in this case the procedures laid down by competition and trade) and in the light of the Decree No 85-712 for the granting of type- specific provisions of the directive on termi- approval for terminal equipment do not fulfil nal equipment, which preserves the right of the essential conditions under Community Member States to refuse to allow such equip- law and must accordingly be regarded as ment to be connected when it does not meet inapplicable. essential requirements such as those specified above (Article 3 of the directive, referring to the requirements laid down in Article 2(17) of Directive 86/361/EEC). If, where the granting of type-approval is not impartial, I am, of course, perfectly aware of the impli- traders cannot be obliged to seek it, it fol- cations of that conclusion. Expressed simply, lows that the national authority, rather than it means that Member States are not entitled refusing to allow equipment to be connected, to apply type-approval (or similar) proce- will only be able to intervene ex post facto to dures unless their impartiality is guaranteed have it disconnected and, if need be, to react

Hence there is every reason to believe that, as a result of the Court's decision, the The defendant had pleaded inter alia the national court considered that there were no incompatibility with Community law of the legal grounds for the injunction sought by national provisions (Articles 3 and 91 of the the RTT, and accordingly permitted the Belgian Decree of 20 September 1978) which defendant to market equipment without made the connection of terminal equipment type-approval, and indeed to do so without subject to authorization by the RTT and informing the purchaser that such approval required prior type-approval for terminal had not been granted. equipment supplied by operators other than RTT. GB-Inno-BM contended that these obligations to seek authorization and type- approval were illegal inasmuch as RTT Consequently, unless the Court sees fit to thereby assumed, simultaneously, the role of revise that precedent, I believe that the regulatory and supervisory body and that of national court's question should be answered interested party, with the result that even the as follows: Articles 30, 3(f), 86 and 90 of the obligation to inform the purchaser of the EEC Treaty, together with Article 6 of the absence of type-approval had to be regarded directive on terminal equipment, preclude as illegal. the application of national provisions such as those laid down in French Decree No

17 - P. Ravaioli, op. cit.. p 113. note 18, observes significantly that since the connection of equipment, pursuant to the 18 — The Court had also noted that 'the existing situation, in directive on termina! equipment, ts no longer governed by which the R I T alone determines the conditions governing exclusive rights or subject to prior authorization, the retusai approval and also decides on the grant of approvalwas very under Article 3 to allow such connection will be permissi debatable when the RTT was also a competitor on the mar ble only in the context of the tvpc approval procedure. kct in equipment for connection to the network.'

— the existence of abuses by France Télécom In view of the answer given to the question of its dominant position. as to the independence of the body laying down the rules and granting type-approval in the market for terminal equipment, no purpose would be served by considering the Those matters call for a general remark: the other questions raised in this case. It is only criticisms set out above — unlike the objec- for the sake of completeness and, of course, tion that the regulatory and supervisory for the eventuality that the Court may body is not independent — do not cast decide not to follow the solution advocated doubt on the entire system established by above that I now propose to examine briefly Decree No 85-712 for the granting of type- the remaining points which have emerged approval for terminal equipment. What infer- during the proceedings. ence would have to be drawn if those

I - 5370

DECOSTER

criticisms were found to be valid? The reply On the other hand, the mere possibility that to that question is, in my opinion, very sim- refusal to grant type-approval might prove ple. It is clear that the application of techni- to be illegal could not in any way serve to cal specifications which, on substantive or exempt Mrs Gillon from seeking it and could procedural grounds, are illegal invalidates an not therefore positively authorize her to individual decision (whether favourable or market terminal equipment 'en dehors de unfavourable) given by the national auth- toute procédure d'agrément ou homologa- ority. The result is the same when the tion'. decision regarding type-approval involves discrimination against the imported product. Finally, it is self-evident that any infringe- ment of Article 86 of the Treaty by a public undertaking renders illegal the abusive con- duct in question.

application of national provisions such as those contained in French Decree N o 85-712, which require traders seeking to market terminal equipment to demonstrate — by means of type-approval or an equivalent procedure — that the equipment complies with certain requirements (relating in particular to user safety and proper functioning of the network) where there is at the same time no guarantee of the independence, in relation to any trader offering goods or services in the telecommu- nications sector, of the body which:

— issues the type-approval certificate (or an equivalent document);

— draws up the technical specifications used for the purpose of issuing the type- approval certificate (or an equivalent document).

Should the Court find it necessary to consider the other points raised in these pro- ceedings, I propose that the following answer be given to the national court:

Neither the alleged incompatibility with Community law, on grounds of form or substance, of national technical specifications for terminal equipment, nor the alleged implementation by the national authorities of discriminatory practices in the granting of type-approval for such equipment nor the alleged implementation by France Télécom of conduct constituting an abuse of a dominant position within the meaning of Article 86 of the Treaty can serve to exempt those marketing such equipment from the need to seek type-approval (or an equivalent document) in accordance with French Decree N o 85-712.

I-5372