C-296/00

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shall not preclude the adoption or B — National legislation application by Member States:

4. Article 398 of the codice postale italiano 4 (Italian Postal Code) prohibits the produc­ tion or importation into national territory (1) of prohibitions , quantitative of electrical and radio-electrical appliances restrictions or surveillance meas­ and installations, or cables for the trans­ ures on grounds of public morality, mission of electrical current, with the public policy or public security; the intention of marketing, using or operating protection of health and life of them, under whatever regime, if they do humans, animals or plants, the not meet the requirements established to protection of national treasures prevent interference with radio communi­ possessing artistic, historic or cations. The competent authorities are archaeological value, or the pro­ instructed to adopt, with due observance tection of industrial and commer­ of Community legislation, the appropriate cial property; measures for supervising compliance with this provision. The marketing and the importation with the intention to market of the goods mentioned above requires the submission or production of a certificate or a declaration of conformity. The bodies competent to issue the abovementioned certificates and declarations are appointed by Ministerial Decree.

7. By a decision of 17 February 1996 the 9. The Prefetto di Cuneo lodged an appeal Prefetto di Cuneo ordered the adminis­ in cassation from the Pretore di Saluzzo's trative confiscation , pursuant to judgment to the Corte Suprema di Cassa­ Article 20(4) of Law No 689 of 24 No­ zione. The Prefettura claims infringement vember 1981, of 20 non-approved cordless and misapplication of, inter alia, telephones which were on sale at the Article 19(2)(a) of Regulation No 519/94 private limited company 'Expo Casa and Article 24(2)(a) of Regulation Manta'. On 9 March 1995 the Guardia di No 3285/94. Finanza had seized those appliances in connection with the infringement of Articles 398 and 399 of the codice postale italiano.

14. The Italian Government contends that the abovementioned regulations exclusively concern imports into the Community from third countries. The marketing of these products falls outside the scope of the Regulations. Articles 398 and 399 of the codice postale were thus enacted in con­ formity with Community law.

12. According to the referring court, the appeal in cassation clearly raises questions concerning the interpretation of the regu­ 15. The Italian Government is of the lations in question, since the line of argu­ opinion that in the present case the prob­ ment followed by the Pretore in the con­ lem can be solved in accordance with the tested judgment and the argument exception clauses of Article 19 of Regu­ advanced by the appellant conflict as lation No 519/94 and Article 24 of Regu­ regards the extension of the effect of the lation No 3285/94. Under those provisions regulations to the placing on the home the seizure and confiscation of the cordless market of the products covered by the telephones would be in conformity with the regulations. In order to find a solution to rules of Community law in order to prevent this problem, the Corte Suprema is required interference with authorised radio fre­ to refer the matter to the Court of Justice quencies which are matters within the pursuant to Article 234, final paragraph, competence of the Italian authorities. EC. By an Order of 18 April 2000, regis­ Viewed from this perspective, it appears tered at the Court of Justice on 1 August that the question submitted by the Corte 2000, the Corte Suprema requested a pre­ Suprema could be answered at the national liminary ruling on the interpretation of the level. The Court would thus not be com­ regulations. petent to rule on it.

20. In order to clarify the scope and effect of the Regulations involved in regard to the distinction between liberalisation and mar­ 18. In its observations, the Commission keting measures, the Commission goes on dwells on the fact that the referring court to refer to the General Agreement on did not formulate a specific question. It Tariffs and Trade (GATT), especially to appears from the wording of the order for Article XI concerning quantitative trade reference that the Corte Suprema ordered restrictions and Article III concerning the the case to be referred to the Court of domestic marketing of products (national Justice for an interpretation of Regulations treatment). Nos 519/94 and 3285/94. Although the referring court has failed to supply certain factual information, e.g. concerning the country of origin of the cordless telephones, the Commission nevertheless considers that sufficient elements are present to enable the Court to give a reply such as to contribute to the solution of the dispute in the main 21. In addition the Commission discusses proceedings. the relevant rules concerning the internal

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24. As a preliminary issue, however, the matter of admissibility must be dealt with. The Italian Government and the Commis­ sion have briefly commented on the Court's competence to give a reply in response to 22. In conclusion, the Commission empha­ the request from the referring court. On the sised that cordless telephones or radio- basis of settled case-law, 5I am unequivo­ receivers are generally not always harmless cally certain that the Court must provide or neutral from an electro-magnetic point the Corte Suprema with an answer. The of view. They can interfere with other order for reference is extremely concise and equipment because of their electronic com­ lacks a specifically worded question. The ponents. In adopting the national legis­ referring Court has nevertheless provided lation in question, the national legislature sufficient information concerning the cir­ sought to introduce means of verifying all cumstances of the case and the applicable electrical and radio-electrical appliances or law, on the basis of which the Court can installations or cables for transmission of give a useful reply. From that information electrical current, in order to examine it may be deduced that there is an actual whether they comply with the rules to dispute between Carbone and the Prefetto prevent interference with transmitters and di Cuneo concerning the marketing in Italy receivers for radio communications. To of cordless telephones, which are, it may be that end, appliances are subject to the issue inferred, imported from third countries into of a certificate or declaration of conform­ the Community. The dispute focuses on the ity. Since the national rules apply to interpretation of the object and scope of domestic and imported products, the Com­ mission contends that they do not run counter to Article 28 EC and Article III of 5 — See, e.g., recent Case C-472/99 Clean Car Autoservice the GATT. [2001] ECR I-9687, paragraphs 13 and 14.

28. The regulations involved were adopted within the framework of the common commercial policy. To start with, this 26. I do not share this point of view. As the follows from their legal basis, i.e., Italian Government and the Commission Article 113 of the EC Treaty (now, after have convincingly explained, Regulations amendment , Article 133 EC ). Nos 519/94 and 3285/94 exclusively con­ Article 133(1) EC determines that the com­ mon commercial policy is to be based on uniform principles, among which is the 6 — It should also establish whether the cordless telephones were achievement of uniformity in measures of imported into the Community directly from a third country, or whether the appliances in question were perhaps imported into the Community via another Member State. The latter possibility is not an obvious one, in the light of the order for reference, but on the basis of the facts given it 7 — See Article 3(1)(a) and (c) EC. cannot be entirely discounted either. 8 —See Article 3(1)(b) EC.

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31. As soon as products coming from third countries have been lawfully imported into the Community, they are wholly assimi­ lated to products originating in Member States as regards the free circulation of 10 goods within the Community. This pre­ 29. The Court's case-law has made it clear supposes that the time when the goods are that the common commercial policy is the imported from third countries must be exclusive competence of the Community. distinguished from the time when they are The Member States are no longer able to consequently placed on the market. Rel­ found any competence to take national evant to the placing on the market of goods measures in the field of commercial policy within the Community are the Treaty on national law. Essentially, such measures provisions concerning the internal side of are still permitted only when specifically the common market. The elimination of authorised by the Community. 9 These quantitative restrictions as between the matters serve to explain the competence Member States is expressly regulated in which the Council has allowed the Member Articles 28 to 30 EC. Under Article 28 EC States pursuant to Article 24(2) of Regu­ quantitative restrictions on imports and all lation No 4285/94 and Article 19(2) of measures having equivalent effect are pro­ Regulation No 519/94. It also justifies the hibited as between Member States, while obligation on the part of the Member State Article 30 EC allows the Member States to to notify the Commission when it intends lay down conditions in regard to imports if to invoke a ground for exception.

these are necessary to protect a general 33. The Member States' competence to interest. The grounds for justification listed invoke a general interest under Article 30 in Article 30 EC are identical to the letter EC to justify a trade restriction will come to to the grounds mentioned in Article 24(2) an end when exhaustive and complete of Regulation No 4285 / 94 and harmonisation has been achieved within Article 19(2) of Regulation No 519/94. the Community. On 9 March 1999 the European Parliament and the Council approved Directive 1999/5/EC (hereinafter: 'the Directive') on radio equipment and telecommunications terminal equipment and the mutual recognition of their con­ 12 formity. The Directive, which is based on Article 100A of the EC Treaty (now, after amendment, Article 95 EC), provides a framework for the placing on the market, the free movement and the putting into service within the Community of the said equipment. The Member States are obliged to see to it that the equipment in question is 32. The manner in which the principles of only placed on the market when it complies free circulation are applied in intra-Com- with the essential requirements involved as munity movement differs on several points well as with several other provisions from from the scope of the comparable provi­ the Directive. As regards the placing on the sions in the Regulations. Without having to market, no further national provisions may go into too much detail, I call to mind that be imposed. 13 The Member States must the concept of 'quantitative restrictions' in also prohibit the placing on the market of the sense of the regulations should be apparatus not bearing the CE mark, which understood to mean instruments of com­ indicates its conformity with all provisions mercial policy, such as quotas. The words 14 of the Directive. Thus the Directive 'quantitative restrictions on imports and all assists the free movement of goods within measures having equivalent effect' within the Community, taking account of the the meaning of Article 28 EC have, on the necessary standards of safety which the other hand, through their extensive con­ Member States were previously able to struction by the Court, been accorded an adopt independently pursuant to Article 30 interpretation which is entirely their own. As a further example, the regulations do EC. Apart from this, the Directive goes not contain the condition from the last even further and declares the requirements reference of Article 30 EC that the trade- to be likewise applicable to products which restricting measures to be taken by the Member States may not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member 11 States.

36. As a result of the distinction indicated, Regulations Nos 3285/94 and 519/94 in my view do not interfere with Italy's competence to apply, in order to prevent 35. In order to emphasise this distinction, interference with radio communications, the Commission also rightly referred to the certain product standards to cordless tele­ system of the GATT. This analogy makes phones which have to be met for the sense, as the free movement provisions appliances to be lawfully placed on the concerning the circulation of goods in the market. This does not alter the fact that in original EEC Treaty are based to a signifi­ the exercise of this competence the product cant degree on the GATT. Article XI of the standards adopted must, where appropri­ GATT, concerning the elimination of ate, comply with other relevant Commu­ quantitative restrictions on imports in the nity provisions, such as Articles 28 and 30 commercial dealings between the parties to EC and the applicable Community direc­ the GATT, shares the Regulations' objec­ tives. 15

tive. Article III of the GATT, on the other hand, concerns the marketing of products within a contracting party's home market. 15 — This assessment is the subject of a request for a preliminary On the basis of this provision, it is pro­ ruling from the Giudice di Pace di Genova (Radiosistemi, Cases C-388/00 and C-429/00, judgment of 20 June 2002, hibited to apply national measures concern­ not yet published in the ECR).

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EXPO CASA MANTA

VI — Conclusion

37. In light of the foregoing, I propose that the Court should reply as follows to the reference for a preliminary ruling made by the Corte Supremo by order of 18 April 2000: