C-92/91
ECLI:EU:C:1992:241
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OPINION OF MR TESAURO — CASE C-92/91
OPINION OF ADVOCATE GENERAL TESAURO delivered on 3 June 1992 *
Mr President, Article 6 of the directive provides that Mem- Members of the Court, ber States are to ensure that, from 1 July 1989, responsibility for drawing up technical specifications, monitoring their application and granting type-approval is entrusted to a body independent of public or private undertakings offering goods and/or services in the telecommunications sector. 1. These proceedings concern a case on all fours with Case C-69/91 Decoster in which I am to deliver my Opinion today. Criminal proceedings have been brought against Mrs Neny, née Taillandier, for selling in May 1990 telecommunication terminals (in partic- ular, telephones) which had not been previ- ously approved in accordance with French Decree No 85-712 of 11 July 1985.
As I said in my Opinion in the Decoster case, As in the Decoster case, the national court is to which I refer in its entirety, the body asking the Court of Justice whether the said responsible in France at the material time for decree is compatible with Community law. granting type-approval (or an equivalent In particular, it is asking whether the obliga- document) and for laying down the relevant tions provided for in Decree N o 85-712 to technical specifications did not fulfil, at least submit for type-approval equipment in the light of the information contained in intended to be marketed, and to refer to such the documents before the Court, the require- approval on the equipment, with a fine of ment of independence laid down in Article between FF 1 300 and FF 2 500 as the pen- 6 of the directive. As I pointed out in alty for infringement, are to be considered Decoster, lack of independence goes to the incompatible with Commission Directive very heart of the system of approval pro- 88/301/EEC of 16 May 1988 on competition vided for in Decree No 85-712 thus entailing in the markets in telecommunications termi- the inapplicability of the provision in the nal equipment. 1 decree which requires traders seeking to market terminal equipment to demonstrate by means of type-approval or an equivalent procedure that such equipment complies * Original language: Italian. I — OJ 1988 L 131, p. 73. with certain requirements.
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TAILLANDIER
Accordingly, without its being necessary to consider whether the fines provided for in Decree No 85/712 are in themselves, in view of their size, incompatible with Community law, the question submitted by the national court can in my view be answered as follows:
Article 6 of Commission Directive 88/301/EEC precludes the application of a national provision such as that contained in French Decree No 85-712, which requires traders seeking to market terminal equipment to demonstrate, by means of type-approval or an equivalent procedure, that the equipment complies with certain requirements, where there is at the same time no guarantee of the independence, in relation to any trader offering goods or services in the telecommunications 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).
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