C-80/92
ECLI:EU:C:1994:2
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OPINION OF MR TESAURO — CASE C-80/92
OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 12 January 1994 *
Mr President, the same Law is contrary to Article 34 of Members of the Court, the Treaty.
1. The subject-matter of this action is certain Article 59 features of the Belgian rules concerning tele communications, which are laid down by the Law of 30 July 1979 and the relevant imple menting decrees of 15 October 1979 and 19 October 1979. In its reasoned opinion and in its application, the Commission pointed out in particular that:
2. It should be noted that the Commission, in its reply, stated that it was discontinuing its complaint that Article 59 of the Treaty had been infringed. It acknowledged that the •— by prohibiting the reception of radio and complaint was founded on an incorrect read television broadcasts, Article 4 (c) of the ing of the relevant provisions of the Belgian Law of 30 July 1979 is contrary to Arti legislation. Moreover, the Commission stated cle 59 of the Treaty; at the hearing that, already in its reply to the reasoned opinion, the Belgian Government had in fact explained that the contested pro visions did not exhibit any features incom patible with Article 59 and the Commission added that, in the circumstances, to maintain — by requiring receivers to be submitted for its allegation relating to Article 59 in its orig administrative authorization, Article 7 of inating application was merely the result of a the same Law is contrary to Article 30 of 'misunderstanding'. the Treaty;
— by providing that authorization may be dispensed with for transmitters or trans ceivers intended for export, Article 7 of 3. I consider therefore that the Court can simply declare that the Commission has waived its submission concerning Article 59 * Original language: Italian. as unfounded.
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Article 30 the new system was adopted, or to supply information concerning the nature, scope and consequences of those acts.
4. In its application, the Commission claimed that, by adopting and maintaining in force a system for authorizing receivers, the Belgian Government has failed to fulfil its obligations under Article 30 of the Treaty.
7. In that connection, I believe it will suffice to point out that, as the Court has consis tently held, 'the maintenance of national leg According to the Commission, such a system islation which is in itself incompatible with would be justified only for transmitters or Community law, even if the Member State transceivers. concerned acts in accordance with Commu nity law, gives rise to an ambiguous state of affairs by maintaining, as regards those who are concerned, a state of uncertainty as to the possibilities available to them of relying on Community law', an uncertainty that 'can 5. The Belgian Government does not deny only be reinforced by the internal character that the system of authorization laid down of the purely administrative directions to by the abovementioned Law of 1979 is waive the application of the national law' incompatible with the Treaty. Nevertheless, (judgment in Case C-307/89 Commission v it does contend that even before the action France [1991] ECR I-2903). was brought — though after the end of the period prescribed in the reasoned opinion —, that system was replaced by an obligation to make a declaration, which the Commission itself has acknowledged to be compatible with the requirements of Article 30.
6. The Belgian Government has, however, 8. In the light of those factors, I believe that admitted that the new system is merely an the replacement, simply by means of an administrative procedure — based on direc administrative procedure, of the contested tions given by the Minister — which does authorization system by a declaration not derive from any act forming the subject requirement — which, moreover, is not the of an official publication. Furthermore, in result of any formal act — is quite insufficent replying to a specific question put to it by to terminate the alleged infringement. I the Court, the Belgain Government was therefore consider that the Commission's unable to explain by what formal legal acts complaint in this respect is well founded.
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Article 34 11. In this case, it must be pointed out that:
— the Belgian rules (Article 7 of the Law of 30 July 1979) established a system of 9. The Commission has claimed that, by authorization for transmitters and trans providing for a system of dispensation from ceivers; authorization for transmitters and transceiv- ers intended for export, the Belgian legisla tion is incompatible with Article 34 of the Treaty. Such equipment may not be subject to any export authorization. It follows — — the Commission acknowledges that, with according to the Commission — that a sys respect to such equipment, the authoriza tem providing for authorization to be dis tion system is justified and complies with pensed with, and left to the discretion of the the requirements laid down by the rules administrative authorities, in any case consti of the Treaty relating to the free move tutes an unjustified barrier to exports. ment of goods;
— that system applies to products intended It must be pointed out, moreover, that the for the domestic market and to products Commission's complaint concerns the sys intended for export; tem of authorization applicable to transmit ters and transceivers (see paragraph 2 (c) of the application). On the other hand, the Commission makes no observations regard ing equipment capable only of reception. — the latter are not only not subject to less favourable treatment but on the contrary benefit from a preferential system, in so far as it is in their case alone that the pos sibility of exemption from authorization is provided for.
10. In that connection, it must first of all be borne in mind that the Court has consis tently held (most recently in its judgment in Case C-47/90 Delhaize Frères [1992] ECR 1-3669) that Article 34 of the Treaty does not 12. From those considerations it seems to forbid Member States to issue technical rules me to follow, first of all, that the Belgian leg which apply uniformly both to products islation providing for the authorization of intended for the domestic market and to transmitters and transceivers establishes a products intended for export to other Mem general system of advance regulation ber States. intended to ensure the proper working of the
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telecommunications network and user safety. ably, but on the contrary they also benefit It is therefore a system that meets objective from a preferential system of administrative and legitimate requirements of general inter rules, consisting precisely in the possibility est. of obtaining exemption from authorization.
13. As regards that system, the sole obliga On the other hand, the Commission's writ tion imposed on Member States by Arti ten observations — which are, frankly, dis cle 34 of the Treaty consists in the prohibi concertingly brief — do not in any way tion on applying technical rules on explain why a rule which prima facie appears supervision in a manner which is such as to to be less onerous for exported goods should place exported products at a disadvantage in be regarded as incompatible with Article 34 comparison with products intended for sale of the Treaty, as interpreted by the Court. on the domestic market. As has been pointed out, there is nothing in the documents before the Court to suggest that, in this case, the Belgian rules in dispute give rise to such dis crimination on account of the fact that the 14. I consider therefore that the complaint products in question are intended for export: relating to Article 34 of the Treaty should be not only are exports not treated less favour rejected.
15. In the light of those considerations, I propose that the Court:
(1) declare that, by adopting and maintaining in force the system for authorizing telecommunications receivers laid down by Article 7 of the Law of 30 July 1979 and the relevant implementing decrees, the Kingdom of Belgium has failed to fulfil its obligations under Article 30 of the Treaty;
(2) reject the remaining complaints;
(3) order the Commission to bear two-thirds and the Kingdom of Belgium to bear one-third of the costs of the proceedings;
(4) order the United Kingdom, as intervener, to bear its own costs.
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