C-388/00

OPINION OF MR GEELHOED — JOINED CASES C-388/00 AND C-429/00

O P I N I O N OF ADVOCATE GENERAL GEELHOED delivered on 21 February 2002 1

I — Introduction the market, the free movement and the putting into service in the Community of radio equipment and telecommunications terminal equipment. 1. In these two joined cases, the Giudice di Pace di Genova (Italy) refers four questions regarding the seizure of remote control units which did not bear the national type-approval stamp. The questions con- cern the interpretation of Community law immediately prior to and immediately after 3. Article 2(c) of the directive defines radio the expiry of the period fixed for the equipment as 'a product, or relevant com- transposition of Directive 1999/5/EC of ponent thereof, capable of communication the European Parliament and of the Coun- by means of the emission and/or reception cil of 9 March 1999 on radio equipment of radio waves utilising the spectrum allo- and telecommunications terminal equip- cated to terrestrial/space radiocommuni- ment and the mutual recognition of their cation'. conformity (hereinafter 'the directive'). 2

4. Article 3 provides that certain essential I I — Legal framework requirements are applicable to all appar- atus. In addition, radio equipment is to be so constructed that it effectively uses the spectrum allocated to terrestrial/spatial communication and orbital resources so as to avoid harmful interference. A — Community law

2. Article 1 of the directive establishes a regulatory framework for the placing on 5. Article 5 of the directive provides that apparatus which meets the harmonised 1 — Original language: Dutch. standards is presumed to meet the essential 2 — OJ 1999 L 91, p. 10. requirements set out in Article 3.

This notification shall be given no less then four weeks in advance of the start of placing on the market and shall provide information about the radio characteristics of the equipment (in particular frequency ...’.

I - 5849

OPINION OF MR GEELHOED — JOINED CASES C-388/00 AND C-429/00

9. Article 8(1) provides: 12. Article 19 of the directive provides that Member States must no later than 7 April 2000 adopt and publish the laws, regu- lations and administrative provisions necessary to comply with the directive and forthwith inform the Commission thereof. They must apply the provisions as 'Member States shall not prohibit, restrict from 8 April 2000. or impede the placing on the market and putting into service in their territory of apparatus bearing the CE marking referred to in Annex VII, which indicates its con- formity with all provisions of this directive, including the conformity assessment pro- 13. Further, Article 1 of Decision cedures set out in Chapter II. This shall be No 3052/95/EC of the European Parlia- without prejudice to Articles 6(4), 7(2) and ment and of the Council of 13 December 9(5)'. 1995 establishing a procedure for the exchange of information on national meas- ures derogating from the principle of the free movement of goods within the Com- munity 3 (hereinafter 'the decision') pro- vides: 10. Article 9(1) of the directive provides:

'Where a Member State takes steps to prevent the free movement or placing on the market of a particular model or type of 'Where a Member State ascertains that product lawfully produced or marketed in apparatus within the scope of this directive another Member State, it shall notify the does not comply with the requirements of Commission accordingly where the direct this directive, it shall take all appropriate or indirect effect of the measure is: measures in its territory to withdraw the apparatus from the market or from service, prohibit its placing on the market or putting into service or restrict its free movement'. — a general ban on the goods,

— measures notified to the Commission under specific provisions,

— withdrawal of the goods from the market'.

— draft measures notified to the Commis- sion under specific Community provi- sions,

14. Article 3 of the decision provides:

— measures preparing or leading up to the main measure referred to in Article 1, such as preventive measures or investi- ' 1 . The notification requirement laid down gations, in Article 1 shall apply to measures taken by the competent authorities of the Member States so authorised, with the exception of judicial decisions.

— measures relating solely to the protec- tion of public morality or public order,

The bodies and persons authorised to endorse type-approval stamps or issue compliance certificates as provided for in the preceding paragraph shall be appointed 17. Pursuant to Article 398(2) the compet- by decree of the Minister for Posts and ent authorities are required to adopt, in Telecommunications, acting together with

4 — GURI No 113, 3 May 1973. 6 — GURI No 274, 22 November 1996. 5 — GURI No 155, 7 June 1980. 7 — GURI No 226, 20 August 1977.

I - 5852

RADIOSISTEMI

the Minister for Industry, Commerce and I I I— Facts and procedure Crafts'.

20. The Italian authorities did not trans- pose the directive into domestic law within 23. On 18 February 2000, a charge was the time-limit. However, the Ministry of drawn up alleging that Radiosistemi had Posts and Communications, pending infringed Articles 398 and 399(2) of the approval of the draft law designed to Codice Postale. transpose the directive, issued a circular on 17 April 2000 8 instructing its services to abide by the provisions of the directive as regards the placing on the market and the putting into service of radio equipment. It includes further provisions as regards equipment which does not comply with the requirements, which may be prohibited, 24. Radiosistemi contested the charge removed from the market or banned from before the Prefect of Genoa, requesting use, or the free movement of which may be the release of the equipment. Radiosistemi restricted. contended, inter alia, that the technical report provided by the administrative auth- ority which had ordered the seizure showed 8 — GURI No 101, 3 May 2000. that the equipment was technically in

I - 5853

OPINION OF MR GEELHOED — JOINED CASES C-388/00 AND C-429/00

I - 5854

RADIOSISTEMI

30. The Giudice di Pace noted that Radio- reference of 11 November 2000 was sistemi was alleged to have infringed received at the Registry of the Court on Article 398 of the Codice Postale, not 20 November 2000. because it had imported and sold equip- ment which objectively failed to meet the technical standards established for the pre- vention of interference with the reception and transmission of radio signals (use of designated frequencies and electromagnetic compatibility), but simply because the equipment sold did not bear the national Proceedings before the Court type-approval stamp. The investigation carried out by the Ministry had confirmed that the equipment operated on the fre- quencies authorised under the legislation in 33. By order of the President of the Court force and complied with the harmonised of 14 December 2000, Cases C-388/00 and rules on electromagnetic compatibility, as C-429/00 were joined. Radiosistemi, the attested to by the CE marking. Commission and the Government of the United Kingdom submitted written obser- vations, which were amplified at the hear- ing of 28 November 2001.

31. Given that there were doubts concern- ing the compatibility of that administrative practice with Community law, the Giudice di Pace di Genova, by order of 16 October IV — The questions referred 2000, received at the Registry of the Court on 23 October 2000, referred four ques- tions for a preliminary ruling. 34. The orders for reference in both cases contain the following questions:

' 1 . Is Community law, including its Case C-429/00 unwritten fundamental principles, compatible with national adminis- trative provisions and/or practices which — by delegating conformity assessment procedures for the purposes 32. Following a similar seizure and in light of placing radio equipment on the of a similar subsequent case between the market and putting such equipment same parties, the Giudice di Pace di Genova into service to the sole discretion of the referred the same questions. The order for administration — prevent economic

2. Does Directive 1999/5/EC of the Euro- pean Parliament and of the Council of 4. Is Community law, in the light of the 9 March 1999 confer on individuals principles of non-discrimination and rights upon which they may rely before proprotionality, compatible with pen- the national courts, where the Directive alties such as those provided for under itself has not been formally imple- Article 399 of the Codice Postale mented in national law and the dead- Italiano Presidential Decree line for such implementation has No 156/1973?' already expired? If that question is answered in the affirmative, is it com- patible with Article 7(2) of the Direc- tive to maintain in force legislation and/or administrative practice which, after 8 April 2000, prohibits the mar- keting and/or the putting into service of V — Assessment radio equipment which does not bear the national type-approval stamp, where it has been confirmed that such equipment makes efficient and proper use of the radio frequencies authorised under national law, or where it is easy The first question to verify that this is the case?

35. By the first question the national court seeks to ascertain whether Italian admini- strative provisions and/or practices are 3. On a proper construction of Article 1 compatible with Community law. The case of Decision 3052/95/EC of the Euro- concerns a provision which precludes eco- pean Parliament and of the Council of nomic operators from importing, marketing 13 December 1995, how is the term or holding in stock, with a view to selling, "measure" to be interpreted and does radio equipment which does not hear the that term cover the situation where the national type-approval, and which does not administrative authorities, having admit other means, equally reliable but less seized a particular model or a particu- burdensome, of demonstrating that such

equipment is in conformity with Italian the Italian requirement of a national type- legislation concerning the proper use of approval stamp is to check whether radio radio frequencies. equipment satisfies national regulations designed to prevent interference with the reception and transmission of radio signals. In the absence of harmonisation and in the interests of proper use of frequencies, such 36. The first question, in contrast to the rules on conformity may be justified. How- second, refers to the period prior to the ever, where the absence of a national date by which the directive should have type-approval stamp is systematically inter- been transposed into domestic law. preted as meaning that the goods in ques- tion are not in conformity, such a require- ment is disproportionate. That seems to be the case here. Whilst Article 398 of the Codice Postale is neutral as regards the verification of conformity, which means 37. It should be noted at the outset that that in addition to the type-approval stamp until a specific sector is governed by issued by the Ministry other means of Community legislation Member States are verification are also possible, such as cer- free to maintain or adopt national measures tificates, statements and/or declarations of provided that the free movement of goods compliance or other such proof issued by is not restricted. Thus, quantitative restric- the authorities designated for the purpose, tions on imports and all measures having that possibility is limited by the ministerial equivalent effect are prohibited. According decrees implementing Article 398 of the to the Court's settled case-law, measures Codice Postale making the type-approval enacted by Member States which are stamp issued by the Ministry of Posts and capable of hindering, directly or indirectly, Communications the sole proof of con- actually or potentially, intra-Community formity. The result, which is that economic trade are to be considered to be measures operators are not permitted to employ any having an effect equivalent to quantitative other means to prove that the equipment restrictions within the meaning of Article 28 satisfies the requirements concerning the EC. 9 Derogations from that provision are proper use of frequencies authorised by possible either where the exception pro- domestic law, entails a restriction which vided for under Article 30 applies or where goes beyond what is necessary. Thus, the there are overriding requirements of the effect given by the ministerial decrees to public interest. 10 However, for either Article 398 of the Codice Postale is dispro- exception to apply, the requirements of portionate. necessity and proportionality must be sat- isfied.

42. For the purpose of resolving this ques- tion I will first consider which provision or The second question provisions of the directive apply to the facts of the case in the main proceedings and whether such provision or provisions have direct effect. Finally, I will consider whether the Italian authorities may in respect of the contested measures rely on 40. As already indicated in paragraph 36, the derogation in Article 7(2) of the direc- this question refers to the period in which tive. the directive should have been transposed into domestic law. It is also not disputed that by 8 April 2000 the Italian Govern- ment had still not fulfilled its obligation to transpose the directive as required under that directive. Accordingly, the national court asks whether the directive confers 43. Article 6 of the directive refers to rights on individuals and, if so, whether the placing on the market, whilst Article 8 Italian practice of prohibiting the market- deals with free movement. Under Article 6 ing or putting into service of radio equip- of the directive Member States from where ment which does not bear the national the equipment originates are obliged to type-approval stamp is compatible with check that the equipment satisfies the Article 7(2) of the directive. requirements of the directive. Further, that provision stipulates that no further national provisions be adopted in respect of placing on the market. Article 8 of the directive requires the country importing the equip- ment not to restrict or impede the market- ing of equipment lawfully placed on the market elsewhere in the Community. 4 1 . According to the Commission, Article 8(1) of the directive has in any case direct effect. The United Kingdom Govern- ment takes the view that that also applies to the second sentence of Article 6(1), which in its opinion is the relevant provision in this case, and to Article 7(1) of the direc- 44. Together with the Commission and tive, whilst Radiosistemi contends that the unlike the United Kingdom Government, I whole directive has direct effect. All the consider that in this case Article 8 of the parties contend that the Italian Govern- directive and not Article 6 applies.

49. I would point out that as long as the Italian Government has not transposed the directive into domestic law it cannot rely on the derogation provided for under Article 7(2) of the directive. 47. Together with the United Kingdom and the Commission, I consider that the word- ing of that provision, which imposes an unconditional obligation on Member States to authorise apparatus bearing the CE marking, indicates that it has direct effect. That provision is sufficiently clear, precise 50. In view of its failure to transpose the and unconditional to be relied upon by an directive within the time-limit, even if the individual before a national court. 12 Italian Government were able to rely on Article 7(2) of the directive in respect of economic operators, it would find it to be 11 — Article 6(4) of the directive contains a procedural rule for the manufacturer or his authorised representative estab- of no use. As already indicated, the case lished within the Community or the person responsible for placing the equipment on the market in the case of radio concerns an exception, which must be equipment using frequency bands whose use is not interpreted strictly. The requirement for a harmonised throughout the Community. In this case, Radiosistemi took note of that provision and of the national type-approval stamp under provisions based on other relevant directives, Council Article 398 of the Codice Postale has no Directive 89/336/EEC of 3 May 1989 on the approxi- mation of the laws of the Member States relating to connection whatsoever with the grounds electromagnetic compatibility (OJ 1989 L 139, p. 19), as amended. for a derogation set out in Article 7(2) of 12 — Case 148/78 Ratti [19791 ECR 1629. the directive. Consequently, the Italian

The third question 53. As the Commission has rightly pointed out, that procedure is a sort of safety net. It applies only when there is no other specific obligation under Community legislation to give notification. Consequently, after the entry into force of the directive, and more 51. The third question concerns the mean- particularly following the transposition of ing of 'measure' for the purposes of the directive into domestic law, it is no Article 1 of the decision. More specifically, longer the notification procedure provided it refers to the question whether continuing for in the decision which applies, but the to withhold a certain model or product procedure provided for under Article 9 of lawfully marketed in another Member the directive. State, even after it has been ascertained by the national authorities responsible for technical checks that the product is in conformity with both national and Com- munity legislation, that is to say, after the evidential purposes justifying the initial seizure have been served, constitutes a measure within the meaning of the said decision. 54. In any event, the purpose of the decision implies in my opinion that the Italian authorities should in any case have notified the Commission that they had seized and removed from the market equip- ment which did not bear the national type-approval stamp. Further, I share the 52. The Decision makes provision for a Commission's view that notification once is notification procedure. The purpose of that sufficient and every individual seizure need procedure is to ensure that the Commission not be reported. What matters is that that is aware of whether any distortion actually decision should be given and continue to exists, particularly in sectors of intra-Com- receive practical effect. That means that munity trade not yet harmonised, caused by notification must accordingly be given national legislation or practices. Possible where distortions in intra-Community problems may thereby be identified and trade occur or are likely to occur as a suitable solutions found. Accordingly, result of national legislation, in this case national authorities must notify at the Article 398 of the Codice Postale, and its earliest opportunity the Commission and application.

56. The question therefore is whether the 59. That provision contains a stricter pen- exception provided for under Article 3 may alty for manufacturers or importers of apply to the administrative measure of electrical or radio-electrical equipment. In seizure. It is not disputed that the aim of addition to confiscation, they are subject to the seizure carried out by the agents of the an administrative fine ranging from ITL 50 Polizia Postale was to remove from the 000 to ITL 1 000 000 in the event of an Italian market goods which had already infringement of Article 398. Any other been lawfully marketed in the Community. person who contravenes those provisions Further, it appears that the goods were not is subject to a lesser penalty, namely an released after it had been ascertained that administrative fine ranging from ITL 15 they objectively satisfied the technical stan- 000 to ITL 300 000. dards for the prevention of interference with the reception and transmission of radio signals. Thus, the aforementioned measures were not adopted on the ground that there was doubt as to whether the goods were in conformity with the legis- 60. Radiosistemi has argued that, in view lation in force, and the seizure must be of the fact that all remote control units are regarded as a penalty applied because the imported, that penalty discriminates goods did not bear the national type-appro- against importers. However, the Commis- val stamp. sion and the United Kingdom Government have argued that a difference in the size of the fine can be justified.

Italian legislation, is linked to the affixing bear a national type-approval stamp is of a stamp. The United Kingdom Govern- incompatible with Community law. 13 ment observes in that respect that it is a penalty for failure of the goods to bear the national type-approval stamp. Since the Italian legislation is incompatible with Community law, the penalty is also incom- patible with Community law. However, the 63. Even now that the time-limit for the United Kingdom claims that the situation transposition of the directive has expired, would be different if the penalties were the situation is not substantially different. intended to ensure compliance with the Since then only harmonised type-approval directive. In that regard, Member States procedures and the CE marking have been have powers under the provisions set out in in force. That is in no way affected by the Article 9 of the directive. The Commission fact that the Italian Government has not considers that the penalties (fines and transposed the directive in due time. As the confiscation) for manufacturers or Court has already held, a Member State importers are for the most part incom- which has not yet adapted its domestic law patible with Article 28 EC because they are to the directive — even if that law pro- disproportionate to the object pursued by vides for penal sanctions — cannot apply the relevant Italian legislation. that domestic law to persons who have acted in compliance with the provisions of the directive after the expiry of the period fixed for its implementation. 14

68. The penalties give rise to more serious 66. The directive leaves the national auth- cause for concern when they are examined orities a degree of manœuvre. It applies in from the point of view of the principle of respect of implementing both the directive proportionality. The Court is strict with itself and the national provisions not yet regard to penalties linked to administrative harmonised, for example those concerning provisions, which are otherwise allowed, the use of frequencies. However, even such when such penalties are disproportionate. I implementing measures must satisfy the refer, inter alia, to Cayrol. 17 In that case, criteria laid down by case-law. They must the Court held that any administrative or be, inter alia, effective, proportional and penal measure which goes beyond what is dissuasive. 15 strictly necessary for the purposes of enabling the importing Member State to obtain reasonably complete and accurate information on the movement of goods covered by specific measures of commercial policy must be regarded as having an effect equivalent to a quantitative restriction pro- hibited by the Treaty.

70. Where it is established that the goods proper documentation needed to verify have been lawfully placed on the market conformity. Otherwise, it is sufficient to elsewhere in the Community and that they impose an administrative fine, provided also satisfy all the conditions laid down that its size is proportionate to the gravity both by the harmonised regulations and by of the offence. the Italian legislation on the use of radio frequencies, a penalty based on the mere infringement of a procedural regulation must be restricted in scope. In such a case, it is excessive to seize the goods and/or impose a heavy fine. At most, the view may 71. In light of the above arguments, I be taken, as the Commission also sug- conclude that seizure and/or a heavy fine gested, that seizure may be justified for a for infringement of a procedural regulation limited period, namely in cases where the is not compatible with the purpose of equipment in question does not have the Article 28 EC or with that of the directive.

VI — Conclusion

72. In light of the above, I propose that the Court answer the questions referred for a preliminary ruling by the Giudice di Pace di Genova as follows:

(1) Community law, particularly Article 28 EC, precludes national rules which prevent economic operators from importing, marketing or holding in stock, with a view to selling, radio equipment without national type-approval where such persons do not have the opportunity to prove that such equipment satisfies national requirements concerning the use of radio frequencies.

I - 5864

Such is the case in respect of the systematic seizure and confiscation of radio equipment which is lawfully placed on the market elsewhere in the Community and in respect of which it has been ascertained by the public authorities that it is in conformity with both national and Community legislation, on the sole grounds that such equipment does not bear a national type-approval stamp. Such a measure restricts the free movement of goods lawfully placed on the market elsewhere in the Community and therefore comes within the meaning of 'measure' under Article 1 of Decision 3052/95.

(4) Community law does not preclude a system of penalties as provided for under Article 399 of the Codice Postale, provided that the size of the fines is proportionate to the legal interest safeguarded by the regulation infringed. However, Community law does preclude the systematic seizure and confiscation of the goods connected with the infringement, as provided for in that article. I - 5865