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3 — Article 3 provides that terminal equipment must: The national rules at issue, which the Court (a) possess specifications compatible with those of the net- has already had the opportunity of consider- work; (b) not interfere with the working of the network; ing in its judgments in Decoster ' and Tail- (c) under normal conditions, ensure that every type of signal can be exchanged with the network; landier, 2 are those laid down in Decree (d) transmit and regenerate communications accurately; N o 85-712 of 11 July 1985 and in Law (e) not cause unusual external electromagnetic induction and not be disturbed by such induction; N o 89-1008 of 31 December 1989. I shall (f) possess specifications capable of ensuring the combined use of materials of the same kind, including those that mention their main provisions. enable continuous service to be provided; (g) be supplied with connecting apparatus suitable to the net- work. Article 4 provides furthermore that the equipment must: (a) ensure that people, domestic animals and property are * Original language: Italian. protected against the risks arising from electrical overload occurring accidentally in the network; 1 — Case C-69/91 Decoster [1993] ECR 1-5335. (b) not transmit accidental electrical overload; 2 — Case C-92/91 Taillandier [1993] ECR 1-5383. (c) provide protection against sound shocks.

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In the proceedings before the national court, 3. The question submitted by the national the defendants contended inter alia in their court calls for some clarification. First, the defence that the abovementioned national wording of the question might suggest that provisions were incompatible with Commu- the national court is asking only whether the nity law. In their view, the requirement in prohibition on marketing non-approved ter- French law for equipment to be approved is minals (imposed by Decree N o 85-712) is not justified where the equipment offered for lawful, and not whether the prohibition on sale (or advertised) is not intended to be con- advertising such terminals (imposed by Arti- nected to the public telecommunications net- cle 8 of Law N o 89-1008) is lawful as well. It work, since it is intended in particular to be is however plain that the two questions are re-exported out of the country. indissolubly linked. The prohibition on advertising is ancillary to the prohibition on marketing, which it seeks to make more effective. Moreover, as I have said, in order to assess the position of one of the two defendants, Mr Rouffeteau, who is charged In view of that objection, the national court with a contravention of Article 8 of Law stayed the proceedings and referred a ques- N o 89-1008, it is essential to consider tion to the Court for a preliminary ruling on whether the ban on advertising is lawful. whether Article 30 of the Treaty and Direc- Taking account of those considerations, and tive 88/301/EEC 4 must be interpreted as in order to provide the national court with a helpful answer for the purposes of resolving the dispute before it, therefore, I consider it necessary for the Court to give a specific rul- 4 — Commission Directive of 16 May 1988 (OJ 1988 L 131, p. ing as to whether not only the prohibition 73).

5. Finally, for the sake of completeness, it should be pointed out that in the main pro- ceedings the defendants raised another objec- tion to the national legislation at issue. In their view, the French authorities have not laid down the technical specifications and type-approval procedures for terminals as 4. Secondly, as is apparent from the order provided for in Directive 88/301. The for reference, the defendants in the main national court rejected that objection as proceedings referred to a (not clearly identi- invalid, 6 however, noting that those specifi- fied) Commission document and challenged cations and procedures had already appeared the lawfulness of submitting for type in an avis (notice) on the application of approval terminals which are not in general Decree 85-712, which was published in the intended to be connected to the public net- Official Gazette of the French Republic on work, including both terminals intended for 1 November 1985 (and to which a supple- re-export and those intended to be con- ment was later,added in October 1991). 7 nected to private networks. Throughout the proceedings, however, it has never been claimed that the terminals at issue are, or can be, used in private networks. In particular, the national court expressly restricts its ques- tion to re-exported terminals only, without any reference to the various problems relat- ing to terminals intended for use in private 6. Taking those considerations into account, networks. 5 Furthermore, both the Commis- I consider that the question submitted for a sion and the French Government have preliminary ruling should be set out in the confined themselves to considering only following terms: Do the provisions of Direc- whether or not it is lawful to extend the tive 88/301 and Article 30 of the Treaty pre- requirement of type approval to terminals clude national rules such as those laid down intended for re-export. I therefore consider that, in this case, it would be appropriate for the Court to rule on that point only, leaving 6 — See point I of the order for reference. open (except for some clarification set out 7 — Still according to the national court, Law N o 90-56S of 2 July 1990 —which endowed France Telecom with indepen- below) the question whether it is lawful to dent legal personality —clearly separated, in accordance with the provisions of Article 6 of Directive 88/301, the reg- ulatory duties and monitoring procedures carried out b y the Ministry of Posts and Telecommunications from the com- mercial operations carried on by France Telecom. It follows that at the material time (September 1991), and as distinct 5 — See point II of the order for reference, headed 'Incompatibil- from the findings of the Court in the abovementioned ity with Community law of the requirement of type Decoster and Taillandier cases, the technical specifications approval in respect of terminal equipment intended for and approval procedures applied in France did comply with re-export'. the provisions of Directive 88/301.

Directive 88/301/EEC It is apparent from that legislation that, although the directive recognizes the right of traders to import and market terminal equip- ment (Article 3), it is also true that the direc- tive does not affect the right of Member States to require the terminals to be checked for compliance with certain essential require- ments, relating mainly to the safety of users 7. O n this subject, a point to note is that and operators, and also to the protection and Directive 88/301 does not lay down any proper functioning of the public telecommu- rules specifically relevant to resolving the nications network (requirements laid down legal issue raised by the national court. The in Article 2(17) of Council Direc- purpose of the directive, adopted by the tive 86/361/EEC which is expressly referred Commission on the basis of Article 90(3) of to in Article 3 of Directive 88/301 8 ). It may the Treaty, is to encourage genuine competi- also be seen from the directive (Articles 5 tion on the market in telecommunications and 8 in particular) that testing for compli- terminals. To that end, the directive provides ance must be performed according to type- in substance for: the withdrawal of special or approval procedures laid down by the Mem- exclusive rights granted by Member States to ber States and — before the achievement of telecommunications undertakings (Article 2); harmonization at Community level 9 — on the right of traders — subject to certain essential requirements being satisfied — to import, market, connect and bring into ser- vice terminal equipment (Article 3); access 8 — Directive 86/361/EEC (OJ 1986 L 217, p. 21) was later replaced by Directive 91/263/EEC (OJ 1991 L 128, p. 1) for users to public network terminal points — mentioned below —, which subsequently set out (in (Article 4); notification to the Commission Article 4) the essential requirements which terminals must satisfy. and publication of technical specifications 9 — See Directive 91/263.

10 — The first indent of the second paragraph of Article 3 of Directive 88/301 also states that 'in the absence of technical specifications, [the Member States may] refuse to allow ter- minal equipment to be connected and brought into service where such equipment does not, according to a reasoned opinion of the body referred to in Article 6, satisfy the essential requirements laid down in Article 2(17) of Direc- (c) alternatively, if the legislation at issue tive 86/361/EEC'. were considered to constitute a measure

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having equivalent effect which is prohib- an interest in importing into a Member State ited by Anicie 30 of the Treaty, it would terminals which, precisely because they have have to be made clear that Article 30 is not been approved, cannot in any case be applicable only with respect to imports sold on the domestic market, but can only be of goods from other Member States and re-exported. Such an assumption hardly not from non-member countries. seems plausible. What interest would traders belonging to the normal distribution chan- nels have in buying products which, by def- inition, cannot be resold on the domestic market (that is to say, to their usual custom- (a) The contested national legislation is not a ers)? » barrier to imports from within the Community

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14. That conclusion might be reinforced by 16. Let me now summarize the positions of the consideration that the French legislation the parties. The Commission and the French — in so far as it is in fact aimed at (re- Government are at one in thinking that the exported products — would more properly requirement for terminal equipment to be lend itself to examination in the context of approved is, in principle, compatible with Anicie 34 rather than Article 30 of the Article 30 of the Treaty, because it is neces- Treaty. It is noteworthy that in Case C-80/92 sary in order to ensure that that equipment Commission v Belgium,13 the Commission satisfies certain essential requirements relat- challenged the legality of Belgian legislation ing especially to user safety and to the which did not exempt from type approval proper functioning of the public telecommu- certain terminal equipment intended for export, relying in fact on Article 34 of the nications network. Treaty. 14

(b) The barrier allegedly created by the contested legisUtion is in any event 'propor- tionate'

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18. The French Government, on the other 'In the absence of Community rules on the hand, considers that requiring type approval establishment of public telecom-munications may be considered unjustified only if it is networks, and in view of the technical diver- certain that the terminals will actually be sity of the networks in the Member States, re-exported. In general, however, that is far the Member States retain, on the one hand, from certain. When the terminals are mar- the power to lay down technical specifica- keted (and advertised) in France through the tions which telephone equipment must meet normal distribution channels, without there to be capable of being connected to the pub- being any specific guarantee that the pur- lic network and, on the other, the power to chaser will in fact export the equipment, it examine whether the said equipment is fit to must be thought more than likely that the be connected to the network in order to sat- purchaser of the terminal will use it in loco, isfy the imperative requirements regarding that is, by connecting it to the national net- the protection of users as consumers of ser- work. Therefore, to allow non-approved ter- vices and the protection of the public net- minals to be freely marketed, even if they are work and its proper functioning.' 15 stated to be exclusively for re-export, would amount to jeopardizing both the system of verifying compliance through the approval of equipment and the essential requirements of safety and proper functioning of the net- work, which such verification is intended to safeguard. In the same judgment, moreover, the Court stated, relying on the principle of propor- tionality, that since any refusal by the national supervisory authority to grant authorization can lead in practice to denial of access to the market of a Member State to terminal equipment imported from another Member State and hence to a barrier to the free movement of goods, it must be open to traders to challenge such refusal before the courts. 16

intended for re-export (and previously Government has rightly pointed out, such imported from other Member States) consti- equipment enters the normal commercial tutes a barrier to trade which is dispropor- distribution channel — to which, after all, tionate and thus incompatible with Arti- the defendants in the main proceedings cle 30 of the Treaty. belong — and is then offered for sale to cus- tomers who are normally interested, not in exporting it out of France but in using it in France by connecting it to the national net- work. If, therefore, non-approved equipment is permitted to be sold, with a mere indica- Let me at once say that, in my view, it does tion that it is intended for re-export, there is not, essentially for three reasons. First, I a strong risk that the purchasers — perhaps believe that in the absence of such an obliga- at the discreet suggestion of the vendors tion the system of type approval and the themselves — will buy a non-approved ter- requirements which it is aimed at satisfying minal, frequently at a lower price, and then could be systematically evaded by traders. connect it to the national network. After all, Secondly, it seems to me to be appropriate, the facts of the present case clearly speak for when considering whether the legislation at themselves. The defendants in the main pro- issue is proportionate, to repeat the point I ceedings are in fact traders operating in the made under (a), which is that requiring Reims region, who have obtained cordless approval for terminals intended for re-export telephones and fax machines which lack may create minor, if not negligible, barriers proper type approval or any other certificate to imports from within the Community. of compliance with the technical specifica- Thirdly, and finally, the conclusion advo- tions in force in France, and then offered cated here seems to me to be in agreement — those products to purchasers who, in all contrary to the Commission's assertion — probability (otherwise than in entirely hypo- with the system established by Direc- thetical cases), will be interested in using the tive 91/263/EEC for checking whether the telephones and fax machines in houses and terminals comply with the requirements laid offices in that region, or in adjacent regions, down. and certainly not in re-exporting them out of France.

intended for re-export, is tantamount purely type approval, it does not subject traders and and simply to authorizing the sale, poten- consumers to improper restrictions imposed tially on a large scale, of non-approved by the national authorities. Apart from equipment capable of being connected to the the consideration that, following Direc- national network. In other words, traders tive 91/263, type approval is granted on the and their customers would be given a conve- basis of harmonized technical specifications nient means of evading the compulsory type- which are not of national origin, the point is approval system for terminals. that in accordance with the abovementioned case-law both the technical specifications laid down, on the basis of which approval is granted, and refusals to grant approval must in any case be open to challenge before the courts, a safeguard which at least allows any misuse of the national authorities' power to grant approval to be remedied. 23. That outcome would appear to conflict with the approach so far taken both by the Court and by the Community legislature. It is clear from the case-law cited above and from Council Directives 86/361 and 91/263, as well as from Commission Direc- tive 88/301, that the requirement for termi- nals to be approved is an essential safeguard, in so far as it is intended to prevent equip- ment which is unsatisfactory from the point of view of safety or technical efficiency from (ii) Limited effect on trade of the requirement being marketed and connected to the of type approval in respect of terminals said to national network. be for re-export

approval terminals intended for re-export as with Council Directive 91/263 on the well. On the one hand, the flow of products approximation of the laws of the Member imported solely for the purpose of re-export States concerning telecommunications termi- is so marginal in economic terms as to sug- nal equipment, including the mutual recogni- gest that, even in the absence of the require- tion of their conformity (which, however, ment of type approval, there cannot in any came into force after the events material to case be any significant advantage in terms of this case). increased trade or integrated markets; on the other hand, as I have said already, to allow non-approved terminals to be freely sold in shops, with the mere indication 'for export only' (or other equivalent statement), runs the risk of making the system of type approval itself substantially ineffective. 28. The directive distinguishes between ter- minal equipment intended to be connected to a public network (Article 1(2)^ and equip- ment which, while capable of being con- nected to a public network, is not expressly intended for that purpose (Articles 1(3) 26. O n this point, I think it would also be and 2(1)). The former is subject to a harmo- helpful to make it clear that the cost of the nized system for assessing whether it satisfies type-approval procedure and the time it the essential requirements of safety and takes are, generally speaking, reasonable and proper functioning of the network; that acceptable to an undertaking interested in assessment, which takes the form inter alia marketing a new type of equipment (approv- of type approval, allows the ' C E ' mark and al is granted once only for each type of ter- also the symbol which indicates that the minal; the cost is therefore spread over the equipment is suitable for connection to the various models of each type of approved ter- network to be affixed to products (Articles 9 minal sold on the market in question; on and 11 and Annex VI). The second category average the cost of approval is about of equipment — which is not expressly BFR 100 000). intended to be connected to the public net- work — is governed instead by what might be described as a 'simplified' procedure. That procedure is based on a declaration by the manufacturer or supplier as to the intended purpose of the equipment (Article 2(1)) and permits a symbol to be affixed indicating that the equipment is not suitable for connection (iii) Directive 91/263/EEC to the public networks of the Member States (Article 11(4) and Annex VII). Equipment in one category or the other, bearing the pre- scribed symbols, may in principle move freely, except where national protective mea- sures are applied (it goes without saying that there is a much wider range of commercial 27. Finally, it is worth noting that the solu- outlets for equipment considered suitable for tion put forward here appears to be in line connection to the public network and that, if

the equipment satisfies the prescribed techni- Conversely, the French Government has cal standards, traders have, therefore, every argued that, even within the framework of interest in giving preference to the usual sys- the directive, equipment which appears tem rather than to the 'simplified' proce- objectively to possess the technical and oper- dure). ating characteristics of normal terminal equipment should in any event be subject to type approval. In its view, the simplified pro- cedure provided for by the directive can be chosen by the trader only where the equip- ment concerned exhibits distinctive charac- teristics making it particularly suitable for use in private networks and not in the public network. Any other solution would under- mine the practical effect of the system of type approval, considered in the directive itself to be of the first importance in safe- guarding the essential requirements laid down. It follows that even within the frame- work of the directive, traders should not be 29. According to the Commission, a manu- given the right to sell terminal equipment facturer or supplier of equipment intending merely accompanied by an indication that it to release it into circulation within the Com- is intended solely for re-export out of the munity is quite free to decide whether or not Community. that equipment is intended to be connected to the public network and, therefore, whether its conformity must be assessed with the essential requirements or with the 'simplified' procedure. Still according to the Commission, equipment which on the express declaration of the manufacturer or supplier is intended for re-export (outside the Community) should be counted as equipment not expressly intended to be con- nected to the public network; under the sys- tem established by the directive therefore, it is possible to release into circulation in the Community equipment which has not been approved (or whose compliance with the 30. The interpretation put forward by the essential requirements is not otherwise certi- French Government seems to me the more fied), merely accompanied by the indication convincing. It is true that the directive pro- that since the equipment is intended for vides for two kinds of system: one based on re-export, it is unsuitable for connection to verification of conformity, by means of type the public network. That shows, the Com- approval (or otherwise), in the case of termi- mission concludes, that even before the nal equipment intended for the public net- directive was adopted it would have been work, and the other based on the 'simplified' possible for the national legislature to adopt procedure for equipment not expressly a system that was less restrictive and thus intended for connection to the public net- consistent with the principle of proportion- work. It is also true, however, that the appli- ality. cation of the one type of system or the other

32. It is clear from those observations that, even within the framework of Direc- 31. It is scarcely necessary to point out that tive 91/263, equipment such as that forming a different interpretation of the directive the subject-matter of the main proceedings would conflict not only with the wording could never be marketed without prior type but also with the aims of the measure. One approval (or other equivalent certification of the principal objectives of the directive is provided for by that directive). As I have to ensure (in addition to the free movement said, in this case the Court is not called upon of terminals) that the abovementioned essen- to give a ruling regarding equipment tial requirements are satisfied. The method intended, on account of its objective charac- chosen in order to achieve that objective is teristics, to be used in private networks, but the compulsory approval of equipment only regarding equipment which, from the

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35. Here it will suffice to note that, in accor- dance with the Treaty 17 and the case-law of 34. In the light of all the considerations the C o u r t , , 8 Article 30 may be relied on developed up to this point, I consider the only to protect the free movement of goods requirement of type approval in respect of 'between Member States'. Conversely, that terminals intended for re-export to be fully provision may not be relied on where the justified since it is necessary in order to sat- national measure in question applies not to isfy imperative requirements which are products imported from other Member wholly consistent with the aims of the Com- States, but to products imported direct from munity order. It follows that neither the pro- hibition on marketing non-approved termi- nals, laid down in Decree N o 85-712, nor the secondary prohibition on advertising such 17 — Article 9(2). 18 — See the judgment in Case 96/75 EMI Records v CBS Schall- terminals, laid down in Article 8 of Law platten [1976] ECR 913.

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non-member countries (or to products of the penalties for which it provides, are fully domestic origin). applicable if the traders have put up for sale terminals imported direct from non-member countries (or manufactured within the State).

It follows that traders who, like Mr Rouffe- teau and Mr Badia, are charged with selling (and advertising) terminals without type It is of course for the national court to deter- approval can rely on Article 30 of the Treaty mine whether the offences with which the to resist the application of the national legis- defendants are charged concern the market- lation in question only if those terminals ing (and advertising) of terminal equipment have been imported from another Member imported from other Member States or from State; conversely, the national legislation, and non-member countries.