Opinion of Advocate General Tesauro delivered on 3 June 1992

1 Original language: Italian.

2 Besides the present case and Taillandier, I would point out RTT v GB-Inno-BM, on which judgment was delivered on 13 December 1991 (Case C-18/88 [1991] ECR I-5941) together with the references to the Court in Lagattchc (Case C-46/90 [1993] ECR I-5267, in which the Court decided to reopen the oral procedure following the Opinion of Advocate General Lenz), Evrard (Case C-93/91 [1993] ECR I-5267), Sauges (Case C-164/91, still pending), Henryon and Others (Joined Cases C-238 to 240/91, still pending), Gleyzes (Case C-288/91, still pending) and Marchandeait (Case C-323/91, still pending).

3 There arc, obviously, differences between the various cases. Those differences do not, however, relate to the event at issue, which is invariably the marketing of terminals without approval of the specific type of terminal under consideration — a difference which sometimes carries implications for the scope of the national provisions which apply. In addition, the event in question may clearly arise in the context of different legal relations, whether substantive or procedural. For example, whereas the reference to the Court in RTT v GB-Inno-BM arose from an action brought by a competitor, namely the national telecommunications body, which sought an injunction against a trader selling terminal equipment without type-approval, this case derives from criminal proceedings brought against a trader who had been selling equipment without type-approval.

4 Specialized publications emphasize how technological deve lopment has played a crucial role in the evolution of economic and legal structures in the telecommunications sector in general and in the market for terminals in particular. The speed of innovation, the merging of sectors wnich were previously separate and characterized by diflering economic and legal structures (postal services and telecommunications, information and audiovisual activities), the variety of means for transmitting information (which, of course, has its coun terparl in the range of terminals available) — in short, the emergence of that broad and complex area of activity com monly known as information technology — have profoundly changed the nature and characteristics of the goods and services bought and sold, opening up new fields of action to vigorous international competition. As far as telecommunications terminal equipment is con cerned, there is no doubt that, even before Community provisions were adopted, the changes mentioned above had farreaching repercussions on the structure and functioning of the European markets. The competition (mainly) from nonmember countries (the USA, Japan and the newly industrialized countries) and the necci for industrial cooperation on account of the scale of the investment required have gradually reduced the divisions between the various national markets of Europe, thereby weakening not only the exclusive rights enjoyed (de pure or de facto) by national (public) bodies with regard to the supply of terminal equipment but also the privileged links between such bodies and certain national producers (Alcatel, Siemens, Italici and so on). It is precisely the influence of those factors which explains why the Member States were largely willing to accept the liberalization programme set out by the Commission in the Green Paper and later embodied in the directive on terminal equipment. That directive was — as I had occasion to point out in my Opinion in Case 202/88 — challenged before the Court by certain Member States on formal grounds alone, relating to the use of Article 9C(3) as its legal basis; its liberalizing tendency, which had already received general assent, went unchallenged. With regard to developments in the telecommunications sector and the market for terminal equipment, sec E. Stevers, Telecommunication Regulation in the European Community (Working Paper No 89/421), Istituto Universitario Europeo, 1990, pp. 12 ff; AA. W, Vers une nouvelle réglementation des télécommunications, Brussels 1990, pp. 1 ff and 175 ff; C. Overbury and P Ravaioli, The Application of EEC Law to Telecommunication, Annual Proceedings of ford/jam Corporate Lau Institute, 1989, pp. 271 ff.

5 Commission communication. Green Paper on the develop ment of the common market for telecommunications services and equipment, COM (87) 29C of 30 June 1987.

6 OJ 1988 L 131, p. 73.

7 OJ 1983 L 109, p. 8.

8 It is wotrh emphasizing that in all the requests tor prelimi nary rulings from French courts arising from proceedings brought against persons charged with the marketing ol unap proved terminals, the questions submitted to the Court arc the same as. or at least largely comparable to. the questions raised here

9 To that end paragraph 9 of the preamble to the directive states:Stronger competition in the terminal equipment market requires the introduction of transparent technical specifications and type-approval procedures ... To ensure that [these] arc applied transparently, objectively and without discrimination, the drawing-up and application of such rules should be entrusted to bodies independent of competitors in the market in question. Similarly, paragraph 17 states that:Monitoring of type-approval specifications and rules cannot be entrusted to a competitor in the terminal equipment market in view of the obvious conflict of interest. Member States should therefore ensure that the responsibility for drawing up type-approval specifications and rules is assigned to a body independent of the operator of the network and of any other competitor in the market for terminals.

10 See Stevers, op. cit., p. 17, where the measures needed to ensure market participation in the competitive markets on fair terms are described as including the separation of regulatory and operational activities in order to prevent possible abuse of dominant position in type approval, and also ibid, p. 39; see also H. lingerer, Comments on Telecommunication Regulatory Reform in the European Community, published in AA. W., Deregidation or Re-regulation}, London, 1990, p. 103; M. Coleman, European Competition Law in the Telecommunications and Broadcasting Sectors, European Competition Law Review, 1990, p. 204; AA. W., Vers une Nouvelle Réglementation des Télécommunications, op. cit., pp. 200 ff and pp. 224 ff; J. Schcrcr, European Telecommunication Law, published in AA. W, The Law of Information Technology in Europe, Deventer, 1991, p. 228; C. Overbury, P. Ravaioli, op. cit, pp. 282 ff and 302 ff; B. Amory, Vers une Nouvelle Réglementation Européenne des Télécommunications, Revue Française d'Administration Publique, 1989, p. 671; E. Bordón Iglesias, La Libertad de Circulación de Mercancías y Política de la Competencia en el Mercado de Terminales de Telecommunicaciones, Revista de Estudios y Investigación de las Comunidades Europeas, 1990, pp. 559 ff; M. Hoskins, A Review of EEC Telecommunications Policy: Too Much of a Good Thing, European Business Law Review, 1992, p. 8; P. Ravaioli, La Communauté Européenne et les Télécommunications: Développements Récents en Matière de Concurrence, Revue Internationale de Droit Economique, 1991, p. 103.

11 In this connection it may be useful to point out that the directives adopted by the Commission under Article 90(3) are binding for the purposes of Article 189 of the Treaty (see judgment in Case 226/87 Commission v Greece [1988] ECR 3611), so that the obligations laid down in those directives, even if limited to defining (or determining or expressing, to use other terms occurring in the judgment) obligations already substantively embodied in the Treaty, arc still to be regarded as formally autonomous. Accordingly, Member States arc bound to give effect to them unless they intend to challenge the legality of the directive by applying to the Court for its annulment (as has occurred in respect of all directives adopted under Article 90(3) to date). Moreover, should such an application to the Court be out of time, it is at least doubtful whether the Member State appearing as defendant in proceedings under Article 169 for failure to implement the directive is entitled to raise, as an ancillary matter, the issue of its legality by reference to the exception under Article 184 of the Treaty. It will be recalled that, in the case of a decision adopted by the Commission under Article 90(3), the Court held in Case 226/87 that the Member State to which the decision was addressed may not — having failed to challenge it in time — plead its illegality in proceedings brought by the Commission for failure to give effect to it. However, the right of a Member State, in an action for failure to fulfil its obligations, to object that a regulation or (more importantly) a directive is illegal (and Article 184 refers to regulations alone), is a matter of dispute for which no firm guidance may be found in previous judgments. An exhaustive study both of the academic debate on the point and of the relevant case-law of the Court is set out in the Opinion of Advocate General Darmon in Case C-258/89, to which I would draw attention, whilst pointing out that the Court did not address itself explicidy to the question of principle raised by the Advocate General (judgment in Case C-258/89 Commission v Spain [1991] ECR I-3977).

12 The judgment refers to the impairment of competition between Member States (paragraph 27). However, not only the reasoning as a whole, which emphasizes the impact of national legislation on imports, but also the general structure of the ruling, which seeks in the passage in question to show that one of the conditions for the application of Article 86, namely an adverse effect on intra-Community trade, has been fulfilled demonstrates that the Court in fact stressed the distortion, not so much of competition as of trade between Member States.

13 This accords with the view of P. Ravaioli; op. cit., p. 120, note 29.

14 It must be said that, in the light of that conclusion, the very introduction of a commencement date under Article 6 of the directive seems superfluous. That is probably due to the fact that, at the time when the directive was adopted, RTTv GB-Inno-BM had not yet been decided. Accordingly, the Commission was entitled to the view that the obligation to ensure independent rules and inspections could not be inferred from the Treaty but was, at least in part, created by the directive. Hence, in so far as the Commission may have believed that, in view of the substantive obligations laid down by the directive (that is to say, those under Articles 2, 3, 6 and 7), the directive itself was instituting new obligations rather than merely setting out obligations already contained in the Treaty, it may have considered it advisable to make the effects of one of the provisions of the directive subject to a commencement date, clearly intended to allow States a period of grace for enacting the legislative amendments required. On the other hand, it must be emphasized that the commencement date relates only to Article 6 of the directive, and docs not in any way seek to — nor indeed could it — limit the effects of the obligations directly imposed by the Treaty.

15 The assertions of the Commission and Mrs Gillon, which incidentally were in no way contradicted by the French Government, to the effect that iranci; Télécom was simply the shop front for the FIT administration, are borne out in specialized publications Sec in particular AA. VV. Vers une Nouvelle Réglementation des Télécommunications, op cit., p 93, which explains that France Telecom is the trade name of the Direction genérale des télecommunications, sec also J. Chevallier, La Mutation des Postes et Télécommum calions, AJDA, 1990, p. 667.

16 The French Government has not explained whether under Decree No 89-312 type-approval was invariably issued by the Direction générale des télécommunications or by some other directorate within the Ministry for Posts and Telecommunications. The decree itself is silent on this point. In any case, even if responsibility for type-approval had been transferred to another directorate, this would not substantially change matters.

17 Indeed, it is not clear from the documents before the Court whether, subsequent to the abovementioned Ministerial Notice of November 1985, certificates of compliance were introduced which were distinct from type-approval certificates and the CNET report. However, that is irrelevant. Even on the supposition that certificates of compliance were issued by a body totally unconnected with the PTT administration, and hence that there was at least a possibility of having equipment checked for compliance pursuant to Decree No 85-712 by an independent and impartial body, the fact remains that the technical specifications serving as parameters for the inspection would nevertheless have been laid down by the PTT administration, and hence by an entity which — as wc have seen — was not independent.

18 — P. Ravaioli, op. cit.. p 113. note 18, observes significantly that since the connection of equipment, pursuant to the directive on termina! equipment, ts no longer governed by exclusive rights or subject to prior authorization, the retusai under Article 3 to allow such connection will be permissi ble only in the context of the tvpc approval procedure.

19 The Court had also noted that the existing situation, in which the RIT alone determines the conditions governing approval and also decides on the grant of approvalwas very debatable when the RTT was also a competitor on the mar kct in equipment for connection to the network.