C-390/99

CANAL SATÉLITE DIGITAL

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 8 March 2001 1

I — Introduction I I — Factual background

1. In this case the Tribunal Supremo of Spain (Third Chamber for Administrative Cases) essentially seeks to establish whether 2. The undertaking Canal Satelite Digital the Spanish regulations under which oper- supplies the digital broadcasting of televi- ators of conditional-access digital television sion signals via satellite and the reception services via satellite (hereinafter 'oper- of conditional-access television pro- ators'), before marketing the apparatus, grammes. The digital broadcasting and equipment, decoders or systems necessary access to the encoded television services for that purpose (hereinafter 'decoders'), are made possible by purchasing or renting are required to obtain certification, as a special decoding apparatus. Canal Satélite condition of which they must complete a Digital supplies such decoders in Spain. preliminary procedure and register details The decoders were lawfully manufactured of themselves and the decoders in a register, and marketed in Belgium and the United are compatible with Community law. The Kingdom. Despite a request from the operators and their decoders are entered in Spanish authorities, Canal Satelite Digital the register upon application. Before regis- had had neither itself nor the decoders it tration, an assessment or technical report marketed entered in the Spanish register. on the compliance of all decoders with the After the competent authorities had set a technical standards have to be obtained deadline, registration was denied by from the technical services of the Direc- decision of the Commission for the Tele- torate-General of Telecommunications at communications Market. Despite the lack the Ministry of Internal Development. of registration in Spain, Canal Satelite Digital has a large number of customers who use its decoders. An administrative 1 — Original language: German. penalty was not applied.

5. Article 4 states in particular:

»

'In relation to conditional access to digital television services broadcast to viewers in

6. Council Directive 83/189/EEC of 2 — OJ 1995 L 281, p. 51. 28 March 1983 laying down a procedure

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those provided for in Article 10, pro- agreements by means of which Member hibiting the manufacture, importation, States: marketing or use of a product.

5 — comply with binding Community acts which result in the adoption of tech- nical specifications; ...

8. The first subparagraph of Article 8(1)

B — National law Subject to Article 10, Member States shall immediately communicate to the Commis- sion any draft technical regulation, except where it merely transposes the full text of an international or European standard, in 10. The provisions of national law con- which case information regarding the rel- sidered relevant by the court of reference evant standard shall suffice; they shall also are contained in Royal Decree-Law No 1 let the Commission have a statement of the of 1997 and Royal Decree No 136 of1997. grounds which make the enactment of such To the extent that appears necessary, I have a technical regulation necessary, where cited them below in the course of my these have not already been made clear in consideration of the legal situation. the draft.

IV — The dispute in the main proceedings '(1) Does Article 30 of the EC Treaty, in and the questions submitted for a prelimi- conjunction with the provisions of nary ruling Articles 1 to 5 of Directive 95/47/EC of the European Parliament and of the Council of 24 October 1995 on the use of standards for the transmission of television signals (OJ 1995 L 281, p. 51), preclude national rules which 13. Under Spanish law natural or legal impose on operators of conditional- persons whose interests may be adversely access services, as a condition of their affected by a general provision of delegated being permitted to market apparatus, legislation can bring an action for annul- equipment, decoders or systems for the ment directly before the courts. If the digital transmission and reception of provision has emanated from the Council television signals by satellite — of Ministers (as in the case of a Royal including those lawfully manufactured Decree) and are therefore not laws in the or marketed in other Member States — formal sense, action against the provision the following cumulative requirements: must be brought under a special procedure before the Tribunal Supremo, whose Third Chamber for contentious administrative proceedings has sole and final jurisdiction to declare provisions of delegated legis- — the obligation to register details of lation void. themselves and of the aforemen- tioned apparatus, equipment, decoders and systems in a com- pulsory official register, such regis- tration being conditional not only on a solemn declaration by the operator concerned that he has complied with the technical spec- 14. The action in the main proceedings ifications, but also on a prior tech- relates to the Spanish regulations on the nical report from the national registration of operators and their authorities on compliance with decoders. Canal Satélite Digital seeks a the technical and other require- finding that the provisions are void on the ments laid down in the national grounds that they are incompatible with legislation;

17. The registration provisions would be incompatible with Community law only if registration were a constitutive condition (2) Does Article 59 of the EC Treaty, in for the marketing of the decoders and the conjunction with Articles 1 to 5 of provision of conditional-access television Directive 95/47/EC, preclude national signals which they make possible. It main- legislation which imposes the adminis- tains that analysis of the Spanish legislation trative requirements set out above on shows, however, that Royal Decree No 136 operators of conditional-access ser- of 1997, which is the only provision that vices? can be challenged in the main proceedings, in itself relates only to the establishment and operation of the Register and the procedure. Hence, according to the Spanish Government, it neither requires registration nor imposes legal penalties for the provi- (3) Is a national legislative provision which sion of services and the marketing of the prescribes compliance with such decoders without prior registration. Royal requirements to be regarded as a "tech- Decree No 136 of 1997 therefore in itself nical regulation" for the purposes of has nothing to do with those provisions of the duty to notify the Commission Community law for which the order for a referred to in Council Directive preliminary ruling seeks an interpretation. 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983 L 109, p. 8)?' 18. The Spanish Government concedes that, as the Tribunal Supremo indicates, a legal requirement to register in conjunction with penalties for placing products on the market without such registration could make the arrangements as a whole appear V — Admissibility of the reference for a inadmissible in the light of Community preliminary ruling law. It states, however, that the legal requirement and penalties for contraven- tion are not contained in Royal Decree No 136 of 1997 but in Royal Decree-Law 16. The Spanish Government contests the No 1 of 1997. Since its approval by admissibility of the reference for a prelimi- Parliament on 3 May 1997, Royal Decree-

Law No 1 of 1997 has had the status of a case the interpretation of Community law law and under Spanish law cannot be the is of relevance to the main proceedings in subject of an action such as that brought in so far as it relates to the validity of national the main proceedings. Moreover, according legislation against the background of the to the Spanish Government, the interpre- Community legislation to be interpreted. tation of the arrangements both in the directives and in the EC Treaty — as these could be a problem only with regard to Royal Decree-Law No 1 of 1997 — is purely hypothetical as it is inapplicable in 21. In accordance with established case- the main proceedings and the reference for law of the Court, an examination of a preliminary ruling is therefore inadmiss- admissibility can be based only on the legal ible according to settled case-law of the classification made by the court of refer- Court. ence in the circumstances of national law. Matters which typically fall within the jurisdiction of the national court relate, inter alia, to national procedural arrange- ments, in particular questions of the admissibility of particular domestic legal 19. The scope of the issue in the main procedures. It is not for the Court 'to proceedings that is of relevance from the determine whether the decision whereby a point of view of Community law is matter is brought before it was taken in described by the Tribunal Supremo as accordance with the rules of national law follows: 'Article 2 of Royal Decree No 136 governing the organisation of the courts of 1997, in conjunction with Article 1(2) of and their procedure'. 6 Royal Decree-Law No 1 of 1997'. In paragraph 2 of the order for reference, the Tribunal Supremo states that the object of this national procedure is to exercise abstract scrutiny over general provisions 22. According to the grounds of the order of delegated legislation emanating from the for reference, the Tribunal Supremo pre- Council of Ministers. sumes that in the present case, in the context of the Spanish system of legal protection, Royal Decree-Law No 1 of 1997 is relevant for the purposes of a ruling that Royal Decree No 136 of 1997 is 20. As a matter of principle, it is for the void. national court to assess the need to obtain a preliminary ruling to enable it to give judgment in the dispute before it. It should be remembered that in a variety of cases it 23. In view of these considerations, the has been found that the Court lacked questions submitted for a preliminary rul- jurisdiction to answer questions referred ing are admissible. for a preliminary ruling. 5In the present

VI — The first and second questions operators are a constitutive condition for the marketing of the decoders and hence are inadmissible restrictions of Articles 28 EC and 49 EC. In their view, registration depends on a decision of the Commission for the Telecommunications Market, which 24. These questions relate to the compati- may be negative, and the marketing of the bility of the Spanish regulations at issue decoders without registration is punishable. with primary legislation and with Directive In the opinion of the Commission, such 95/47. As explained in the order for regulations are a disproportionate restric- reference, these regulations stipulate regis- tion on the fundamental freedoms, particu- tration of the decoders and operators and larly as verification of compliance with any require a prior assessment or technical legitimate consumer interests could be per- report to be obtained from the national formed subsequently. authorities. Both requirements are precon- ditions for certification of the marketing of the decoders. I shall now proceed to describe the main features of these two preconditions for certification.

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tested registration (either because it has not 29. Canal Satélite Digital, the Commission been applied for or because the application and the EFTA Surveillance Authority con- has been rejected) without incurring an test the requirement to obtain a prior administrative penalty. Moreover, the assessment or technical report on the Spanish Government contends that the decoders from the national authority for regulations had been issued to protect decoders to the extent that this is laid down public interests. They served to protect the for equipment which has been manufac- interests of consumers, in particular to tured or marketed in other Signatory States protect against abuse of a dominant pos- of the EEA in accordance with the require- ition. According to the Spanish Govern- ments of Directive 95/47. In contrast, the ment, there was a strong trend towards Spanish Government maintains that an concentration in the Spanish market in assessment is not or is only partially digital satellite television. In order to required for products from other Member counter the danger of operators acquiring States, as corresponding tests carried out in a dominant market position that could be the country of manufacture would be taken abused, the authorities were attempting to into account. establish transparency in the market of the operators and the decoders they used. In this connection the Spanish Government also points to its obligation under Article 4(c) of Directive 95/47, which requires Member States to take 'all the necessary measures' in the field of con- ditional-access television services to ensure A — Directive 95/47 compliance with Community competition law, in particular if a dominant position appears.

34. As the decoders, the marketing of which is allegedly being impeded, are products of a new technological develop- ment offering various technical possibil- ities, it is first necessary to examine which 32. Directive 95/47 is to be viewed in the of the so-called fundamental freedoms may context of the Community's overall strat- be affected and then whether the regis- egy for establishing the internal market for tration provisions and the requirement to advanced television technology. It is obtain a prior assessment or technical designed to promote the accelerated deve- report from the national authorities con- lopment of television services in the wide- stitutes inadmissible restrictions of funda- screen 16:9 aspect ratio and the intro- mental freedoms. duction of high-definition television (HDTV) in Europe and contains provisions for the new market in digital conditional- access television services (pay TV). It con- tains no express provisions on the manner of enforcing or verifying the technical specifications and other requirements it 1. Digital television technology in the con- lays down. Nor do the stated purposes of text of the fundamental freedoms the directive indicate that certain means of enforcement are necessary. It can therefore not be ruled out a priori that verification of the substance of the directive can in prin- ciple also be performed by means of regu- lations requiring registration in conjunction 35. The registration provisions relate both with a prior assessment or technical report to the operators of services (scrambled from national authorities. television services via satellite, so-called 'pay TV') and to goods (decoders). In digital television services, however, services 9 — See, for example, Case C-127/95 Norbrook Laboratories v Ministry of Agriculture, Fisheries and Food [1998] and goods are closely interrelated, as the ECR I-1531, paragraph 32 et seq. decoders make it possible not only to

convert the digital signals themselves but possible, given that the common television also to access certain digital television transmitters broadcast in both analogue services and overcome the access restric- and digital formats. In addition, they tions on conditional-access digital televi- enable viewers to gain access to special sion services. digital television channels. Finally, they also permit the transmission and use of scrambling software for conditional-access television services (pay TV). 12 The fact that all these functions are performed by one device must not, however, obscure the fact 36. It was in the Sacchi judgment 10 that that two inherently different objects of the Court of Justice first adopted a position trade are involved here, which can be on the dividing-line between the freedom of classified under different provisions of the movement for goods and the freedom to EC Treaty. supply services in the field of television technology. In that case it drew a distinc- tion by ruling that 'a television signal must, by reason of its nature, be regarded as provision of services' and that 'trade in material, sound recordings, films, appar- atus and other products used for the diffusion of television signals are subject to the rules relating to freedom of move- ment for goods'. The Court subsequently elaborated on this fundamental distinc- tion. 11 38. To the extent that simply converting digital signals into analogue signals pro- duces better picture and sound quality on the normal, freely accessible television channels, the fact that for technical reasons 37. With the decoders in question, the new this is currently still performed by devices transmission technology for digital televi- (decoders) which are separate from the sion introduces a new product into inter- television set does not in principle appear national trade. First, they serve to convert to justify any treatment different to that for television signals from digital to analogue any other equipment which serves to so that television sets of the kind commonly improve picture and sound quality. In so available can display television pictures and far as decoders are thus 'products used for sound in the better quality this makes the diffusion of television signals' within the meaning of the Sacchi judgment, they can be classified as falling under the free- 10 — Case 155/73 Sacchi [1974] ECR 409, paragraph 6 et seq. dom of movement for goods in accordance 11 — Sec Case 52/79 Debauve and Others [1980] ECR 833, with Article 28 EC. Case 352/85 Bond van Adverteerders and Others v The Netherlands [ 1988] ECR 2085, Case 260/89 ERT [1991] ECR I-2925, Case C-23/93 TV10 v Commissariaat voor de Media [1994] ECR I-4795, Case 412/93 Leclerc-Siplec v Tf/ Publicité and M6 Publicité [1995] ECR I-179 and 12 — For this reason undertakings such as the plaintiff i nthe Joined Cases C-34/95, C-35/95 and C-36/95 Konsumen- main proceedings operate as suppliers of conditional- tombudsmannen v De Agostini (Svenska) Förlag and access television services and generally also as marketers of Others [1997] ECR I-3843. decoders.

42. If a State establishes penalties for the marketing of goods or the provision of services without complying with national registration provisions and hence calls the lawfulness of their marketing into question, such registration provisions do in any case 40. Under the Spanish regulations, it is have constitutive legal effects for trade in necessary to register both the decoders the goods or services, and those effects before they are marketed and the operators represent a restriction on the fundamental of digital television services offering con- freedoms. 13 By contrast, registration provi- ditional-access television services (pay TV). sions whose legal consequences can be On the basis of the above considerations, in described as 'declarative' in so far as they the case of the operators this could con- do not affect the lawfulness of the market- stitute a restriction on the freedom to supply services (pay TV) and in that of decoders a restriction on both the freedom 13 — Case 227/82 van Beimekom [1983] ECR 3883, Case of movement for goods (devices to convert C-80/92 Commission v Belgium [1994] ECR I-1019, more recently the Opinion of Mr General Advocate Cosmas in digital signals) and the freedom to supply Case C-58/98 Conten [2000] ECR I-7919 and the judg- services (decoding of scrambled television ment in that case, Case C-358/98 Commission v Italy [2000] ECR I-1255 and Case C-55/99 Commission v programmes). France [2000] ECR I-11499.

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44. The Court can answer the questions submitted for a preliminary ruling only on the basis of the interpretation of national law made by the national court of refer­ — 'This Chamber considers that, for these ence. 1 4 In this way the use to which the purposes, the most coherent interpretation answers to the questions are put in the of the block of legislation referred to above subsequent course of the main proceedings is the following: by means of Article 2 of is closely bound up with the situation of Royal Decree No 136 of 1997, in con­ national law as set out for the Court in the junction with Article 1(2) of Royal Decree- order for reference. Law No 1 of 1997 and the Sole Additional Provision thereof, the Spanish Government created a compulsory register in which operators of conditional-access services are required to record details not only of themselves but also of the telecommuni­ cations apparatus, equipment, devices and 45. Hence, if we assume, as does the court systems which they themselves market or of reference, that the marketing of decoders offer. Registration in that register is by no without registering the equipment and the means automatic, but is subject to a prior administrative decision which may be negative ... Nor does registration take place 14 — According to established case-law, it is for the national courts to interpret national law; see Case 75/63 Hoekstra solely on the basis of the "solemn declar­ (née Unger) v Bestuur der Bedrųfsvereniging voor Detail- handel en Ambachten [1964] ECR 177, and Case 77/72 ation as to compliance with the technical Capolongo v Azienda Agricole Maya [1973] ECR 611.

49. There are, however, serious doubts Overriding public interest requirements whether the registration provisions in ques- tion as a precondition for marketing the decoders and offering digital television services are 'necessary' within the meaning of the case-law of the Court. The Court has 47. Restrictions on the free movement of repeatedly ruled that a restriction on a goods or the freedom to provide services fundamental freedom can be 'necessary' can, however, be warranted in individual only if the objective cannot be attained by a cases on justified grounds, for example if they serve to safeguard imperative require- 16 — Case 120/78 REWE-Zentral v Bundesmonopolverwaltung für Branntivein [1979] ECR 649, paragraph 8, and Case 33/74 van Binsbergen v Bestuur van de Bedrijfsvereniging 15 — Cited in footnote 8. voor de Metaalnijverheid [1974] ECR 1299, paragraph 10.

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milder means which restricts the funda- the registration provisions represent an mental freedom to a lesser extent or not at implementation of the provisions of Direc- all. 17 tive 95/47.

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3. Assessment or technical report by the 56. The following remarks are in order in national authorities this connection. Ensuring compliance (here by means of controls) with technical requirements for decoders produced in Spain or marketed in that country for the first time is not only permissible but also required by Directive 95/47. However, 54. The parties disagree as to whether and Directive 95/47 deals with an area of the to what extent tests of compliance with the internal market which has been harmonised technical specifications of Directive 95/47 in accordance with Article 57(2) of the EC previously conducted in other Member T r e a t y ( n o w , after a m e n d m e n t , States are taken into account in the assess- Article 47(2) EC), Article 66 of the EC ments or technical reports (hereinafter also Treaty (now Article 55 EC) and referred to as evaluation) that have to be Article 100a of the EC Treaty (now, after obtained from the national authorities or amendment, Article 95 EC). Hence it may even lead to these requirements being should be assumed that regulations trans- waived. posing Directive 95/47 exist in every Member State and that they govern decoders manufactured or marketed there. As has been explained, the Spanish regu- lations nevertheless clearly require a prior assessment or technical report from the 55. Under national legislation, as described national authorities, without distinction for by the national court of reference in the decoders of Community origin. first question in the order for reference, the Spanish regulations impose

58. Hence, in so far as national regulations 61. The Commission and Canal Satélite make a prior assessment or prior technical Digital emphasise the constitutive effect of report from national authorities a con- the Spanish regulations for the marketing dition for the lawful marketing of the of the decoders. In their opinion these are decoders in question, which have been 'technical regulations', as compliance lawfully manufactured or marketed in therewith is a condition for the lawful other Member States, as described in the marketing of the decoders. The Spanish dispute in the main proceedings, they are Government disputes the applicability of incompatible with Articles 28 EC and Directive 83/189 and relies upon its 49 EC. description of the registration provisions under national law as being purely decla- rative. In its view, the regulations cannot be 'technical regulations' within the meaning of Directive 83/189, as the term relates only to national provisions, the observance of which is compulsory, de jure or de facto, for the marketing of the appliances.

VII — The third question

lations are not 'other requirements', as they the exemption set out in the first subpara- have no direct impact on the characteristics graph of Article 10(1) of Directive 83/189 of the decoders in question. also applies to Directive 97/13. The fact that the latter directive did not come into force until after the Spanish provisions is, it contends, immaterial. The Spanish Govern- ment maintains that the national regu- lations in question constituted timely trans- position, which was acknowledged by 63. The Spanish Government and the Community law. EFTA Surveillance Authority further point out that these regulations were expressly declared to be measures transposing Direc- tive 95/47 and hence that the exemption contained in the first subparagraph of Article 10(1) of Directive 83/189 applies. According to the abovementioned parties, the purpose of Article 10 is to simplify administrative procedures. The Spanish 65. It must first be observed that the regu- regulations in question were communicated lations on registration of the operators and to the Commission in accordance with the decoders on the one hand and the require- special notification requirements of Direc- ment to obtain a prior assessment or tech- tive 95/47 and in that context declared to nical report from the national authorities be a mechanism for verifying compliance on the other are two different things for the with the technical specifications it contains. purposes of Directive 83/189 and must The fact that the directive contains no therefore be dealt with separately here. provisions for registration and that in that respect the national measure goes beyond the content of the directive is irrelevant, in their opinion, provided that it serves to attain the objectives of the directive, which is the case here. The Belgian Government, Canal Satélite Digital and the Commission essentially hold the opposite view.

68. It must first be clarified whether the Spanish regulations are arrangements for the marketing of 'products' within the meaning of Article 1(1) of Directive 83/189. Registration relates primarily to the decoders. These are to be regarded as 70. Services were not covered in the version 'products' within the meaning of the Direc- of Directive 83/189 in force at the time in tive, at least in so far as they convert digital question. It was only as a result of the last television signals into analogue ones. The amendment of the 1998 codified directive decoders also perform an ancillary tech- that certain services, namely Information nical function for the provision of services, Society services, were expressly brought namely access to special digital television within the scope of the directive. 23 Hence, channels. In addition, by receiving the as a matter of principle, national provisions descrambling software, they enable users regulating the supply of services per se are to lift the access restrictions for pay TV. excluded from the scope of the directive, and were so at the relevant time. It cannot, however, be excluded that Member States sought to regulate services by issuing provisions for the marketing of apparatus or products whose use was an essential

condition for the provision of certain ser- in settling the question of the scope of the vices. As in fact the regulation of services directive. 24 was the central concern, it appears legit- imate to ask whether in such cases the provisions are 'provisions, the observance of which is compulsory ... in the case of marketing or use [of the products]', and hence should have been notified. 73. For Directive 83/189 to apply, the registration requirement therefore need relate neither to the possible subject of the requirement (e.g. providers of television services) nor to particular functions of the products (e.g. access to special digital television channels and removal of the restriction on access to television services) if it is clear that the registration provisions 71. Notifiable provisions for 'products' relate to the marketing of 'products' within could possibly be distinguished from non- the meaning of Article 1(1) of notifiable or not necessarily notifiable Directive 83/189. This holds true in the provisions for 'services' by considering the present case. purpose of the national provision regarding marketing. However, this approach seems to offer little help, as differentiation is likely to be particularly difficult where national provisions on the marketing of products consider both the characteristics 74. Hence, if the Spanish registration of the products themselves and the regu- provisions relate to the marketing of 'prod- lation of the services for which they are to ucts', it is necessary to examine whether be used. they are 'technical regulations' within the meaning of Article 1(9) of Directive 83/189. As defined in Directive 83/189, 'technical regulations' are 'technical specifications' (Article 1(2)) or 'other requirements' (Article 1(3)).

76. The scope of Directive 83/189 was 78. It must also be observed that the widened in 1994, when the clause relating Spanish regulations, in so far as they make to 'other requirements' was introduced. In the lawful marketing of decoders contin- order to interpret the provision, it is necess- gent on registration of the decoders and of ary to refer to the case-law of the Court on the operators, do not constitute 'technical the definition of 'technical specifications'. regulations' notifiable under Article 8(1) of According to that case-law, only national the directive. provisions which relate to the character- istics of a product fall within the scope of Directive 83/189. 2 5The wording of the provision on 'other requirements' also assumes that compliance with the national regulation affects the substance ('composi- 79. In case the Court does not endorse tion', 'nature') of the product. The provi- these arguments, it is also necessary to sion was extended by the addition of the examine the Spanish Government's argu- term 'marketing'. ment that the non-notification of the regis- tration provisions in accordance with the first subparagraph of Article 10(1) of Directive 83/189 was legitimate in view of the pre-transposition effects 26 of Directive 97/13.

77. As according to the submissions of the Spanish Government the purpose of the registration provisions is to monitor the 80. This line of argument clearly relies on the judgment of the Court in the Inter- 25 — Case C-279/94 Commission v Italy [1997] ECR I-4743, paragraph 34, Case C-194/94 (cited in footnote 22), paragraph 25, Case C-418/93 Semeraro Casa Uno and 26 — The Spanish regulations came into force on 31 January Others ECR I-2975, paragraph 38, and Case C-314/98 1997. Directive 97/13/EC came into force on 27 May 1997 Snellers Auto's v Algemeen Directeur van de Dienst and the period prescribed for its transposition expired on Wegverkeer [2000] ECR I-8633, paragraph 37 et seq. 31st December 1997.

81. In accordance with the case-law of the Court, the prior legal effects of a directive stem from the principle of sincere cooper- ation resulting from Article 10 EC. 28 Exemptions — such as that stated in the first subparagraph of Article 10(1) of Directive 83/189 — are, in accordance with consistent case-law, to be interpreted 84. The third sentence of Article 2(4) of narrowly and the principle of sincere coop- Royal Decree No 136 of 1997 reads as eration hardly appears an appropriate follows: instrument for extending the scope of Community legislation which grants indi- vidual Member States exemptions from the application of Community law in narrowly defined circumstances. — '... In any event, it [the Commission for the Telecommunications Mar- ket] shall request the mandatory report produced by the technical services of the Directorate-General of Telecommunications at the Min- istry of Internal Development on compliance with the provisions of 82. It follows that a Member State cannot Royal Decree-Law No 1 of rely on Community law which at the time 31 January 1997 transposing into of the notification requirement was not yet Spanish law Directive 95/47/EC of in force in order to claim the exemption the European Commission (sic) of provided for in the first subparagraph of 24 October 1995 on the use of Article 10(1) of Directive 83/189. standards for the transmission of television signals and approving additional measures to liberalise 27 — Case C-129/96 Inter-Environnement Wallonie v Région the sector [final wording incor- wallonne [1997] ECR 1-7411. 28 — Article 5 of the EC Treaty at the time in question. porating corrections].'

(1) Article 28 EC is to be interpreted as precluding national rules which establish for operators of conditional-access services as a condition for the lawful marketing of the necessary apparatus — including apparatus which has been lawfully manufactured or marketed in other Member States — adminis- trative requirements such as those described in the main proceedings.

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(2) Article 49 EC is to be interpreted as precluding national arrangements which establish for operators of conditional-access services administrative require- ments such as those described in the main proceedings.

(3) Articles 1 to 5 of Directive 95/47/EC are to be interpreted as not precluding national arrangements, such as those described in the main proceedings, provided they are compatible with Community law of a higher order.

(4) Directive 83/189/EEC in the version contained in Directive 94/10/EC is to be interpreted as meaning that national regulations requiring operators of conditional-access services, as a condition for the lawful marketing of the necessary apparatus,