Opinion of Advocate General Tesauro delivered on 19 April 1994

1 Original language: Italian.

2 Case C-69/91 Decoster [1993] ECR I-5335.

3 Case C-92/91 Taillandier [1993] ECR I-5383.

4 Article 3 provides that terminal equipment must: (a) possess specifications compatible with those of the network; (b) not interfere with the working of the network; (c) under normal conditions, ensure that every type of signal can be exchanged with the network; (d) transmit and regenerate communications accurately; (e) not cause unusual external electromagnetic induction and not be disturbed by such induction; (f) possess specifications capable of ensuring the combined use of materials of the same kind, including those that enable continuous service to be provided; (g) be supplied with connecting apparatus suitable to the network. Article 4 provides furthermore that the equipment must: (a) ensure that people, domestic animals and property are protected against the risks arising from electrical overload occurring accidentally in the network; (b) not transmit accidental electrical overload; (c) provide protection against sound shocks.

5 Commission Directive of 16 May 1988 (OJ 1988 L 131, p. 73).

6 See point II of the order for reference, headed Incompatibility with Community law of the requirement of type approval in respect of terminal equipment intended for re-export.

7 See point I of the order for reference.

8 Still according to the national court, Law No 90-56S of 2 July 1990 —which endowed France Telecom with independent legal personality —clearly separated, in accordance with the provisions of Article 6 of Directive 88/301, the regulatory duties and monitoring procedures carried out by the Ministry of Posts and Telecommunications from the commercial operations carried on by France Telecom. It follows that at the material time (September 1991), and as distinct from the findings of the Court in the abovementioned Decoster and Taillandier cases, the technical specifications and approval procedures applied in France did comply with the provisions of Directive 88/301.

9 Directive 86/361/EEC (OJ 1986 L 217, p. 21) was later replaced by Directive 91/263/EEC (OJ 1991 L 128, p. 1) — mentioned below —, which subsequently set out (in Article 4) the essential requirements which terminals must satisfy.

10 See Directive 91/263.

11 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 terminal 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 Directive 86/361/EEC.

12 The situation might be different in the case of: (i) traders located in border areas; (ii) firms specializing in triangular import-export transactions. So far as concerns the first case, however, the chance of a trader selling non-approved terminals to users resident in another Member State (or to passing tourists) is greatly decreased by the doubts which purchasers may entertain (unless they are experts) as to whether the equipment (the cost of which is not insignificant) is capable of working properly on the network in their own countries. With regard to the second case, triangular operations of that sort may appear in principle unattractive from the commercial point of view (why should a trader in the re-exporting Member State obtain supplies from a firm in another Member State, which has in its turn imported the product from a third Member State, instead of oDtaining supplies direct?) while, as the French Government confirms, such transactions may in any case be exempted from the requirement of type approval, since in that case there is in fact a guarantee tnat the equipment — which is not introduced into national distribution channels — will indeed be re-exported and will not therefore be connected to the national network.

13 Case C-69/88 Krantz v Ontvanger der Directe Belastingen and Staat der Nederlanden [1990] ECR I-583.

14 Case C-80/92 Commission v Belgium [1994] ECR I-1019.

15 Furthermore, prima facie at least, the French legislation, like the Belgian legislation examined in Case C-80/92, would not appear to conflict with Article 34 as interpreted by the Court (see also the judgment in Case 237/82 Jongeneel Kaas v NetherUnds [1984] ECR 483); it merely subjects exported products to the same treatment as that applied to products offered for sale on the domestic market.

16 Judgment in Case C-18/88 Régie des Télégraphes et des Téléphones v GB-Inno-BM [1991] ECR I-5941.

17 See also the recent Judgment in Joined Cases C-46/90 and C-93/91 Procureur du Roi v Lagauche and Others [1993] ECR I-5267.

18 Article 9(2).

19 See the judgment in Case 96/75 EMI Records v CBS Schallplatten [1976] ECR 913.