[1]Important legal notice
   |

                                   61991C0069

   Opinion of Mr Advocate General Tesauro delivered on 3 June 1992. -
   Criminal proceedings against Francine Gillon, née Decoster. - Reference
   for a preliminary ruling: Cour d'appel de Douai - France. - Council
   Directive 83/189/EEC and Commission Directive 88/301/EEC - Notification
   of specifications in the telecommunications sector - Independence of
   the body responsible for laying down rules - Criminal penalties. - Case
   C-69/91.
   European Court reports 1993 Page I-05335
   Swedish special edition Page 00099
   Finnish special edition Page I-00417

Opinion of the Advocate-General

   ++++

   Mr President,

   Members of the Court,

   Introduction: disputes referred to the Court of Justice concerning the
   marketing of terminals without type-approval

   The present case ° like the Taillandier case (Case C-92/91) in which I
   am delivering my Opinion today ° must be seen in the context of a
   series of requests for preliminary rulings, (1) all arising from the
   same fact, namely the marketing (and in some instances, the mere
   possession) of telecommunications terminal equipment (usually
   telephones, cordless telephones and telefax equipment) which has not
   received the prior authorization or type-approval of the competent
   national bodies. (2)

   Such a proliferation of judicial proceedings within what is, after all,
   a short space of time cannot be due to mere coincidence. On closer
   examination the dispute appears to be the tell-tale sign of tension
   manifesting itself ° in some countries at least ° over the marketing of
   terminals by independent operators (that is, operators unconnected with
   public entities trading in the telecommunications sector). Those
   tensions are attributable to the process of liberalization which has
   taken place in recent years in the market for telecommunications
   terminals; it is a process largely due to technological innovation and
   the consequent changes in economic and legal relations (3), which has
   tended gradually to eliminate national monopolies and privileges and
   hence to secure acceptance of the right of traders to import and market
   freely the equipment concerned.

   At Community level, the principle of liberalization, already identified
   as the essential aim of the Commission' s Green Paper on
   telecommunications (4) was later embodied in law, as Commission
   Directive 88/301/EEC of 16 May 1988 on competition in the markets in
   telecommunications terminal equipment (5) (hereinafter "the directive
   on terminal equipment"), and was finally upheld by the Court in the
   well-known judgment in Case 202/88 (France v Commission [1991] ECR
   I-1223).

   In itself, the assertion of the right to import and market terminal
   equipment does not, however, ensure that the markets are effectively
   integrated. Clearly, the importation and (still more) the marketing of
   terminal equipment continues to be subject, at least in part, to a
   complex system of national rules and inspections. Although the
   enforcement of such rules and inspections is to some extent
   indispensable in the absence of a framework of Community or
   international provisions, it may in some circumstances have the effect
   of obstructing trade in a manner which is unjustified or at least
   disproportionate to the (legitimate) aims pursued. Hence the need for
   proper guarantees, precisely with a view to preventing the freedom to
   import and sell terminal equipment from remaining a dead letter, having
   no practical effect.

   Amongst those guarantees, the first and perhaps most important is the
   rule set out in the Green Paper and laid down in Article 6 of the
   directive on terminal equipment, requiring the independence (or, as it
   is sometimes termed, the separation) of regulatory and supervisory
   functions with regard to terminals (including the granting of
   type-approval) from activities of an economic or commercial nature;
   this fundamental guarantee may be supplemented by others, governing the
   procedures for the adoption of national technical specifications, and
   indeed their content, or the proper conduct of inspections to ensure
   that the equipment complies with those specifications.

   That being so, it may readily be seen that the extent of the scope of
   those guarantees is the central issue in the judicial proceedings
   arising from the marketing of terminal equipment without type-approval.
   On that issue there are two opposing interests: on the one hand, the
   interest of traders in being allowed to market terminal equipment as
   freely as possible, and in any event without impediments or
   restrictions lacking any objective justification, and, on the other,
   the public interest in ensuring that such marketing complies with the
   provisions and procedures which are the only means of upholding certain
   essential requirements, the most important of which are the safety of
   users and operators and the proper functioning of the public
   telecommunications network.

   The Court of Justice has already made an important contribution to
   resolving the issue in its judgment in RTT v GB-Inno-BM, mentioned
   above. The present case should serve to enlarge upon that earlier
   ruling, not only ° I believe ° on account of the special nature of the
   legal arguments adduced but also because, of the cases cited, Decoster
   is the first to involve events which occurred after the entry into
   force of the directive on terminal equipment.

   The French rules on terminal equipment capable of being connected to
   the State telecommunications network

   Pursuant to Article D440 et seq. of the French Code des Postes et
   Télécommunications (Postal and Telecommunications Code) (hereinafter
   "the PTT Code"), terminal equipment (telephonic, telegraphic and
   radio-electrical equipment) may be supplied either by the PTT or by
   private competitors. In the latter case the PTT does not intervene in
   dealings between user and supplier but requires type-approval for the
   equipment in question (Article D444 of the PTT Code, as amended by
   Article 3 of Decree No 85/336 of 12 March 1985).

   In pursuance of that principle, and for the purpose of regulating the
   marketing of terminal equipment intended for connection to the public
   telecommunications network, the French Government adopted Decree No
   85-712 on 11 July 1985. Article 2 of Decree No 85-712 provides that
   terminal equipment may not be manufactured for the domestic market,
   imported, kept for sale, sold or distributed (with or without a charge)
   unless it complies with the provisions laid down in the decree.

   Under Articles 3 and 4 the equipment must meet a number of essential
   requirements for the proper functioning of the network and user safety.

   To that end, Article 6 of the decree provides that manufacturers,
   importers, retailers and distributors of the equipment must show that
   the equipment complies with the essential requirements set out in
   Articles 3 and 4.

   Article 6 further provides that the evidence may be supplied by the
   person concerned by submitting any one of four documents, namely a
   report drawn up by a body authorized by the Minister for Industry, a
   type-approval certificate (agrément) issued pursuant to the PTT Code, a
   certificate of compliance issued under Law No 78-23 of 10 January 1978
   on consumer protection and information, or any other document accepted
   as equivalent by decree of the Minister for Industry.

   In order to implement Decree No 85-712 the Ministčre du Redéploiement
   Industriel et du Commerce Extérieur issued a formal "Notice" on 1
   November 1985 regarding the terminal equipment liable to be connected
   to the State telecommunications network. The Notice first contains a
   list, updated to 30 September 1985, of the technical standards and
   specifications to be used for the purposes of Articles 3 and 4 of
   Decree No 85-712, and establishes that equipment complying with those
   standards or specifications is regarded as being in conformity with
   those two articles.

   The Notice further describes how interested parties can show evidence,
   in accordance with the requirements of Article 6 of Decree No 85-712,
   that the terminal equipment complies therewith. It establishes that:

   ° the Centre National d' Études des Télécommunications (CNET) is
   authorized by the Minister for Industry to issue the "report" under
   Article 6 mentioned above;

   ° type-approval (agrément) is to be issued by the Direction Générale
   des Télécommunications, pursuant to the PTT Code, in respect of
   equipment complying with the specifications set out in the list annexed
   to the Notice;

   ° other documents attesting compliance, referred to in Article 6, are
   to be established later.

   It should be noted that the judicial proceedings have not disclosed
   whether, following the Notice issued in November 1985, any evidential
   documents other than the type-approval certificate and the CNET report
   were drawn up.

   Proceedings before the national court

   The facts of the case before the national court are extremely
   straightforward: between May and October 1989 Francine Gillon, née
   Decoster, marketed telecommunications equipment (in particular telefax
   machines) without first obtaining either the type-approval certificate
   or any other document accepted as evidence of compliance with the
   essential requirements under Articles 2 and 3 of Decree No 85-712.
   Indeed, it is clear from the order for reference that Mrs Gillon did
   not even apply for the documents in question.

   Mrs Gillon was accordingly prosecuted and ordered at first instance to
   pay a fine of FF 50 000. The first-instance court held that the
   marketing of terminal equipment without the mandatory certificates
   under Decree No 85-712 amounted to commercial deception (fraude
   commerciale) for the purposes of Article 1 of the Law of 1 August 1905.

   Neither at first instance nor on appeal did the accused deny the facts
   as alleged. However, she disputes their relevance under criminal law,
   claiming that the marketing of equipment without type-approval or other
   certificates of compliance does not constitute an offence, because
   Decree No 85-712 requiring the prior acquisition of such documents is
   inapplicable inasmuch as it conflicts with certain provisions of the
   directive on terminal equipment and Council Directive 83/189/EEC of 28
   March 1983 laying down a procedure for the provision of information in
   the field of technical standards and rules (6) (hereinafter "the
   directive on technical standards").

   There are two objections raised by Mrs Gillon which are recorded in the
   order for reference.

   The first objection concerns an infringement of Article 6 of the
   directive on terminal equipment. Article 6 reads as follows:

   "Member States shall ensure that, from 1 July 1989, responsibility for
   drawing up ... specifications ..., monitoring their application and
   granting type-approval is entrusted to a body independent of public or
   private undertakings offering goods and/or services in the
   telecommunications sector."

   The accused claims that at the material time the French authority
   responsible for drawing up technical specifications and monitoring the
   compliance of equipment with the prescribed requirements was not
   independent of the body which managed the public telecommunications
   network and, simultaneously, marketed terminal equipment in competition
   with other economic operators. It follows ° according to the accused °
   that application of Decree No 85-712 must be suspended on the ground
   that it subjects traders to technical specifications and monitoring
   procedures which are respectively laid down and conducted by a body
   unable to provide the essential guarantee of independence required by
   the Community directive.

   The second objection relates to the infringement of the provisions of
   both the directive on technical standards and the directive on terminal
   equipment requiring Member States, as a preliminary matter, to
   communicate to the Commission in draft form the technical standards and
   specifications for certain products, including in particular
   telecommunications terminals. The accused claims that the technical
   specifications for the equipment at issue were adopted without the
   prior communication laid down by the Community legislation: in the
   circumstances of this case, this calls for suspension of the
   application of Decree No 85-712, and hence authorizes her to market the
   equipment freely, that is, "en dehors de toute procédure d' agrément ou
   d' homologation".

   In view of the arguments relied upon by the accused, the appellate
   court considered it necessary to refer to the Court of Justice three
   questions on the matter, as to whether the abovementioned directives
   have direct effect and what the implications must be as regards the
   applicability of the contested national decree in this case. (7)

   It should, however, be noted that in the procedure before the Court of
   Justice Mrs Gillon presented arguments on matters not included amongst
   those discussed in the order for reference. Besides repeating the
   points regarding lack of independence on the part of the regulatory and
   supervisory body, and failure to communicate the relevant technical
   specifications (respectively Chapter II and Chapter I of her
   observations), she put forward three further arguments, as follows: the
   existence of discriminatory practices by the French authorities to the
   detriment of terminals imported from other Member States (Chapter III);
   practices by France Télécom involving abuse of a dominant position
   (Chapter IV); and the question whether national technical
   specifications which have not been harmonized under Community law are
   applicable to terminals which have already received type-approval in
   another Member State (Chapter V).

   The discussion which follows is principally concerned with the question
   of the independence of the national regulatory and supervisory body
   (heading A below). The other points put forward will, for reasons to be
   given later, be considered briefly (heading B below).

   A ° Independence of the body drawing up the technical specifications,
   monitoring their application and granting type-approval

   (a) Legal basis for the requirement of independence

   As pointed out earlier, the rule under which Member States must entrust
   responsibility for drawing up technical specifications, monitoring
   their application and granting the relevant type-approval, to a body
   independent of public or private undertakings offering goods or
   services in the telecommunications sector ° envisaged earlier in the
   Commission' s Green Paper ° was expressly set out in Article 6 of the
   directive on terminal equipment.

   The preamble to the directive shows clearly that Article 6 is an
   essential part of the general plan to liberalize the market in
   telecommunications terminals which underlies the directive. The
   guarantee of independence ° that is, the impartiality of the
   regulatory, supervisory and licensing functions ° is rightly presented
   as a key to ensuring that no conflict of interests arises in the market
   in question and hence that transparency and true competitive equality
   prevail. (8) The importance of that guarantee is consistently
   emphasized, moreover, in the commentaries on recent developments in
   European telecommunications law. (9)

   As noted above, the validity of Article 6 (together with other
   provisions of the directive on terminal equipment) was upheld by the
   Court in Case 202/88. That judgment provides two points of relevance to
   the present case. In the first place, the Court held that the
   Commission is empowered under Article 90(3) of the Treaty to adopt
   measures of a legislative nature, specifying "the obligations arising
   from the Treaty". (10) In the second place, the Court held that Article
   6 of the directive on terminal equipment does not conflict with the
   Treaty. On this point the Court gave judgment in general terms, without
   specifying the provisions of the Treaty against which the compatibility
   of Article 6 was assessed. In its reasoning the Court in fact
   reiterates the ideas (discussed above) set out in the preamble to the
   directive:

   "a system of undistorted competition, as laid down in the Treaty, can
   be guaranteed only if equality of opportunity is secured as between the
   various economic operators. To entrust an undertaking which markets
   terminal equipment with the task of drawing up the specifications for
   such equipment, monitoring their application and granting type-approval
   in respect thereof is tantamount to conferring upon it the power to
   determine at will which terminal equipment may be connected to the
   public network, and thereby placing that undertaking at an obvious
   advantage over its competitors."

   Thus the Court seems to follow the Commission' s approach, whereby fair
   conditions of competition may be said to exist only in so far as the
   system set up by the Member States guarantees independence and
   impartiality of legislation and supervision, which presupposes the
   separation of those functions from activities of an economic or
   commercial nature.

   That approach was later confirmed by the recent ruling in RTT v
   GB-Inno-BM. The judgment ° which relates to facts predating the entry
   into force of the directive on terminal equipment ° establishes
   primarily, in general terms, that Articles 3(f), 90 and 86 of the
   Treaty are automatically infringed whenever a body with a (statutory)
   monopoly over the management of the telecommunications network derives
   from State provisions the opportunity to distort competition in the
   related, but separate, market in terminal equipment.

   As is evident from the reasons given by the Court for its decision,
   such a distortion of competition may be said to arise whenever the body
   enjoying a monopoly in the management of the telecommunications network
   then combines the business of marketing terminals with the
   responsibilities of laying down the relevant technical specifications,
   monitoring their application, and granting type-approval for the
   equipment concerned.

   According to the Court, in order to maintain effective competition and
   guarantee transparency, it is necessary "to entrust responsibility for
   drawing up technical specifications, monitoring their application and
   granting type-approval to a body independent of public or private
   undertakings offering competing goods and/or services in the
   telecommunications sector."

   The judgment therefore makes it clear that the legal basis for the
   obligation to guarantee the independence of regulatory and supervisory
   functions in respect of telecommunications terminals is to be found, in
   some circumstances at least, in Article 86 of the Treaty, read in
   conjunction with Articles 3(f) and 90 thereof. As regards the
   circumstances which must be present before the abovementioned
   provisions may be applied in combination, these may be summarized as
   follows:

   ° the body in question holds a dominant position in the market in
   telecommunication services;

   ° it distorts competition in the neighbouring market in terminal
   equipment;

   ° it does so by virtue of a national measure which enables it to alter
   unilaterally the conditions under which terminal equipment is marketed.

   Furthermore ° even though in RTT v GB-Inno-BM the Court gives no
   express ruling on the point ° the basis for the requirement of
   independence in question may be found not only in Articles 3(f), 86 and
   90 of the Treaty but also in Article 30 thereof. According to the
   case-law of the Court, a national provision whose effect is to
   facilitate an abuse of a dominant position liable to impair
   intra-Community trade is usually incompatible with the prohibition
   under Article 30 of measures having equivalent effect (judgments in
   Case C-179/90 Merci Convenzionali Porto di Genova v Siderurgica
   Gabrielli [1991] ECR I-5889 and Case 13/77 Inno v ATAB [1977] ECR
   2115). Moreover, in the RTT ruling the Court made a point of observing
   that the national measures in dispute were likely to impede imports of
   equipment from other Member States and thereby adversely affect trade
   between Member States (11) for the purposes of Article 86.

   That is not all, however. There may be adverse effects on trade even if
   there is no dominant position of the kind described in RTT. The
   merging, or combining, within a single body of the functions of
   marketing, on the one hand, and of legislation and supervision, on the
   other, will, if it interferes with equal opportunities as between
   competitors, automatically result in discrimination ° at least
   potential discrimination ° against imported products, irrespective of
   whether the body in question is present and holds a monopoly or at
   least a dominant position in the separate market in telecommunication
   services.

   It is precisely that broader view which is reflected by Article 6 of
   the directive on terminal equipment. Article 6 demands, without
   qualification, the separation of marketing activities from regulatory
   and monitoring activities, and it shows clearly that this separation is
   required even where the body marketing terminal equipment does not at
   the same time operate in the market for telecommunication services.
   (12)

   In the light of those considerations, therefore, I take the view that
   the specific obligation set out in Article 6 of the directive on
   terminal equipment, although broader in scope than the obligation laid
   down by the Court in RTT v GB-Inno-BM, does not represent an innovation
   in relation to the Treaty, in that its legal effects on Member States
   are not substantially different from those already arising from Article
   30 and the combined provisions of Articles 3(f), 86 and 90 of the
   Treaty.

   (b) Direct effect of Article 6 of the directive on terminal equipment

   That being so, the reply to the questions of interpretation raised in
   this case seems relatively simple. To begin with, as far as Article 6
   of the directive on terminal equipment (the subject of the second
   question from the national court) is concerned, I believe that its
   direct effect should be recognized without any hesitation. As was
   observed above, Article 6 in fact merely defines obligations which the
   Treaty itself lays down and imposes on Member States. It would thus be
   illogical to maintain that the specific provision adopted by the
   Commission pursuant to Article 90(3) does not have direct effect when
   the general provisions of the Treaty to which it gives effect do.
   Moreover, whilst it is true that Article 6, in obliging Member States
   to entrust regulatory and supervisory functions to an independent body,
   allows them a margin of discretion as to the system to be created to
   that end, it is equally true that, if viewed in the light of the
   preamble to the directive, that provision lays down a clear, precise
   and unconditional prohibition of the retention of any system whatsoever
   which allows any single entity to combine those functions with the
   supply of goods and/or services in the telecommunications sector.
   Furthermore, since that prohibition is designed to ensure that equal
   conditions of competition prevail in the relevant market, it is also
   clear that the provision is intended to protect the legitimate
   interests of undertakings operating in that market, which may, by
   virtue of Article 6 and the aforesaid Treaty provisions, require Member
   States not to confer regulatory or supervisory functions on a body,
   whether public or private, in competition with them.

   (c) The Community system in force prior to the commencement date set by
   Article 6 of the directive on terminal equipment

   Since it has been established that Article 6 has direct effect, it is
   necessary briefly to deal with a second issue. It seems desirable to
   outline the law as it stood prior to the commencement date (1 July
   1989) after which, pursuant to Article 6, Member States come under the
   obligation to ensure the independence of bodies responsible for drawing
   up specifications, monitoring their application and granting
   type-approval. Admittedly, the latter point was not specifically
   referred to by the national court; however, it is undoubtedly relevant
   to the settlement of the dispute, inasmuch as the material events (that
   is, the marketing by Mrs Gillon of terminal equipment without
   type-approval) occurred between May and October 1989, and hence during
   a period which straddles the date laid down by Article 6.

   In the light of the earlier observations, moreover, the answer presents
   no difficulties. It is sufficient to note that, even prior to the date
   under Article 6, and indeed before the adoption of the directive on
   terminal equipment itself, the requirement of independence existed and
   was binding on Member States, by virtue of the Treaty provisions on the
   movement of goods and on competition. The RTT judgment which was seen
   earlier to refer to an episode comparable to the events in the present
   case but occurring before the adoption of the directive on terminal
   equipment, shows that legislation which does not ensure independent
   regulating and monitoring of terminal equipment and thereby gives rise
   to conflicts of interest is, at least in some circumstances,
   automatically incompatible with Articles 3(f), 86 and 90 of the Treaty.
   Furthermore, for the reasons given above, it is correct to say that
   even where the preconditions for the application of Article 86 (in
   conjunction with Article 90) are not satisfied, that type of
   legislation creates in any event a potential obstacle to trade within
   the Community and thus falls within the scope of the prohibition under
   Article 30 of the Treaty.

   It follows that even before the directive on terminal equipment was
   adopted, Member States were bound under the Treaty to ensure that the
   drawing-up of technical specifications, the monitoring of their
   application and the granting of type-approval for the equipment was
   performed by a body independent of the undertakings offering goods or
   services in the telecommunications sector. (13)

   (d) The contested national legislation

   Turning now to the disputed provisions, I must make the preliminary
   remark that, in France as in other Member States, there have been
   attempts in recent years to introduce a gradual deregulation of the
   telecommunications sector. The relevant measures adopted by the French
   authorities enable, roughly speaking, three separate stages to be
   distinguished:

   ° the first falls within the period preceding the adoption of Decree No
   89-327 of 19 May 1987;

   ° the second falls within the period between Decree No 89-327 and Law
   No 90-568 of 2 July 1990;

   ° the third belongs to the period following Law No 90-568.

   Of those three stages, only the second and, conceivably, the first are
   relevant for present purposes. The third stage, on the other hand,
   belongs to a period (Law No 90-586 having entered into force on 1
   January 1991) which clearly post-dates the events material to this
   case.

   That being so, it is tolerably clear from the evidence produced before
   the Court that, either in the first or in the second stage, the
   national system in question did not afford sufficient guarantees of
   independence, inasmuch as all the activities in question ° that is to
   say, the drawing-up of technical specifications, the monitoring of
   their application, the granting of type-approval for terminal equipment
   and the marketing of that equipment ° were performed by administrative
   organs all of which formed part of the central administration of posts
   and telecommunications which, moreover, was also responsible for the
   monopolistic management of the public telecommunications network.

   In particular, the situation prior to Decree No 89-327 was as follows:

   ° under Decree No 86-129 of 28 January 1986 (Article 2), the drawing-up
   of regulations on telecommunications and the monitoring of compliance
   with their general principles were entrusted to the Délégation Générale
   ŕ la Stratégie, directly under the aegis of the Minister for Posts and
   Telecommunications (PTT);

   ° the Délégation Générale ŕ la Stratégie operated in concert with the
   other directorates general of that ministry, including in particular
   the Direction Générale des Télécommunications (Article 2 of Decree No
   86-129);

   ° the Direction Générale des Télécommunications embraced the Direction
   des Affaires Commerciales et Télématiques, whose task was to propose
   and implement policy on trade and telematics (Article 14 of Decree No
   86-129);

   ° terminals other than those supplied by the administration were
   subject to type-approval (Article D440 et seq. of the PTT Code);

   ° according to the Ministerial Notice of 1 November 1985, cited above,
   type-approval for terminal equipment was the responsibility of the
   Direction Générale des Télécommunications;

   ° although the French Government has not clearly defined the formal
   status of France Télécom at the time, it was clearly part of the
   central administration of the PTT and responsible at managerial level
   for conducting trade in the telecommunications sector; (14)

   ° as regards the report issued by the CNET and considered equivalent to
   type-approval for the purposes of the ministerial notice, it is clear
   that the CNET forms part of France Télécom as a "centre de recherche de
   l' exploitant public" (reply of the French Government to a question
   from the Court) ° which evidently rules out any guarantee of
   independence in the issuing of the certificate of compliance.

   The situation does not seem to have been substantially changed by the
   entry into force of Decree No 89-327. On the contrary, by altering the
   internal structure of the PTT administration and by defining the powers
   of the various departments, Decree No 89-327 reveals even more clearly
   the fusion of purely business activities and those relating to the
   drawing-up of technical specifications, monitoring and type-approval.
   Thus:

   ° it sets up a Direction de la réglementation générale ° in place of
   the Délégation générale ŕ la strategie ° which defines and enacts the
   general legal framework for the activities of the sector in question;
   in particular, the directorate is responsible for:

   ° monitoring compliance with the regulations in force;

   ° preparing draft laws and regulations and drawing up directives
   governing the activities of the various economic operators in the
   sector;

   ° establishing and publishing technical specifications and
   type-approval procedures for terminal equipment (Article 2 of Decree No
   89-327);

   ° it does not alter the commercial functions performed by the PTT
   administration;

   ° it reveals further evidence of the close functional relationship
   between the Direction générale des télécommunications ° and hence
   France Télécom ° and the directorate responsible for laying down rules
   in that sector (the Direction de la réglementation générale); one of
   the departments of the Direction générale des télécommunications (the
   Direction des affaires industrielles) puts forward the technical
   specifications for terminal equipment (Article 4 of Decree No 89-327).
   (15)

   In brief, those points disclose that at the material time neither the
   adoption of rules nor the granting of type-approval for terminal
   equipment (nor more generally the monitoring of compliance (16) were
   carried out by a body independent of the entity marketing the terminal
   equipment itself. On the contrary, all those activities were conducted
   by a single entity (namely the central administration of the PTT). Of
   course, those tasks could have been distributed between various general
   directorates or other departments of that administration. Nevertheless,
   the tasks could be traced back to a single State administration and
   were, in hierarchical terms, subject to a single decision-making
   authority. Moreover, the prevailing system entailed a relationship °
   whether hierarchical or functional ° between the various directorates
   (as is indeed obvious, the departments in question being part of one
   and the same ministry). Lastly, even within the Direction générale des
   télécommunications itself, commercial responsibilities were interwoven
   with vested powers as regards the drawing up of specifications and the
   granting of type-approval.

   Only later, under Law No 90-568, was a separation achieved, at
   organizational level at least, between business activities and the
   other activities (drawing up and monitoring regulations and granting
   type-approval). The law divorced both the management of the public
   telecommunications network and business activities from the central
   administration of the PTT. Those functions are still performed by
   France Télécom but the latter no longer forms part of the Ministry for
   Posts and Telecommunications, operating instead as a body incorporated
   under public law and endowed with its own legal personality. At the
   same time as the constitution of France Télécom was amended, the
   Direction générale des télécommunications within the PTT administration
   was abolished.

   In the light of the foregoing considerations I believe that the
   conclusion must be that, at least until Law No 90-568 entered into
   force, the drawing-up and monitoring of regulations and the granting of
   type-approval were emphatically not performed by a body independent of
   the traders who marketed terminal equipment, and that this points to an
   infringement both of Article 6 of the directive on terminal equipment
   and, for the reasons stated above, of Article 30 of the Treaty.
   Furthermore, it may safely be assumed in this case that prior to Law No
   90-586 the PTT administration was responsible not only for the
   marketing of terminal equipment but also monopolized the management of
   the public telecommunications network. The national measures in
   question therefore allow monopoly powers to be extended from the market
   in telecommunications services to the related, but separate, market in
   terminal equipment; this situation must, in accordance with the
   judgment in RTT v GB-Inno-BM, be considered to conflict with the
   combined provisions of Articles 3(f), 86 and 90 of the Treaty.

   It would have been possible to reach a different conclusion only if
   there had been evidence that, at the material time, any trader had, in
   practice, had an opportunity to have specific terminal equipment tested
   for compliance with the essential requirements of safety and the proper
   functioning of the network :

   ° by a body independent of the PTT administration; and

   ° by reference to technical parameters laid down by a body independent
   of the PTT administration.

   Subject to the findings and appraisals which are the exclusive preserve
   of the national court, I can do no more than reiterate that according
   to the documents before the Court the situation prevailing in France at
   the material time did not lend itself to that hypothesis in any way.

   (e) Inapplicability of Decree No 85-712

   A further point is that failure to observe the abovementioned Community
   provisions should have the result of making the contested national
   decree, that is Decree No 85-712, inapplicable. As we have seen, the
   decree requires traders to seek type-approval for the equipment (or at
   least to obtain certification showing its compliance with certain
   standards). However, in so far as the body laying down technical
   standards (on the basis of which type-approval is issued) and granting
   type-approval (or carrying out equivalent inspections) is
   simultaneously one of the traders concerned (or is closely related),
   there is clearly no possibility of the inspection procedures affording
   other competitors proper guarantees of impartiality.

   Lack of independence therefore constitutes a defect which not only
   vitiates a particular decision on a given request for type-approval but
   which goes to the very heart of the entire system of rules and
   inspections introduced by a Member State with regard to the marketing
   of terminal equipment. It follows that in this case the procedures laid
   down by Decree No 85-712 for the granting of type-approval for terminal
   equipment do not fulfil the essential conditions under Community law
   and must accordingly be regarded as inapplicable.

   I am, of course, perfectly aware of the implications of that
   conclusion. Expressed simply, it means that Member States are not
   entitled to apply type-approval (or similar) procedures unless their
   impartiality is guaranteed (with the result that no criminal liability
   arises on the part of traders who, like Mrs Gillon, have sold terminal
   equipment without type-approval during a period in which the
   impartiality of the legislation and of the inspections was not
   assured).

   This means, however, that terminal equipment may legitimately be
   offered for sale without prior inspection (even by means of a procedure
   providing no guarantees of impartiality) to establish its compliance
   with requirements such as user safety or proper functioning of the
   network.

   Thus the safeguarding of those requirements comes, in effect, to be
   subordinated to the protection of competition: an unsatisfactory
   result, both in general terms (since in the Treaty non-economic
   imperatives of that kind take precedence over the protection of
   competition and trade) and in the light of the specific provisions of
   the directive on terminal equipment, which preserves the right of
   Member States to refuse to allow such equipment to be connected when it
   does not meet essential requirements such as those specified above
   (Article 3 of the directive, referring to the requirements laid down in
   Article 2(17) of Directive 86/361/EEC). If, where the granting of
   type-approval is not impartial, traders cannot be obliged to seek it,
   it follows that the national authority, rather than refusing to allow
   equipment to be connected, will only be able to intervene ex post facto
   to have it disconnected and, if need be, to react to such disruption or
   damage as is found to have occurred. (17)

   Moreover, even though it may give rise to some misgivings, the matter
   must now in my opinion be regarded as settled, following the judgment
   in RTT v GB-Inno-BM. That ruling was given on a preliminary reference
   arising out of an action brought by a public body (RTT) for an
   injunction against a private competitor (the trading group GB-Inno-BM).
   The object of the injunction sought was to require GB-Inno-BM to desist
   from its practice of selling terminal equipment which had not received
   type-approval without informing the purchaser of that fact.

   The defendant had pleaded inter alia the incompatibility with Community
   law of the national provisions (Articles 3 and 91 of the Belgian Decree
   of 20 September 1978) which made the connection of terminal equipment
   subject to authorization by the RTT and required prior type-approval
   for terminal equipment supplied by operators other than RTT. GB-Inno-BM
   contended that these obligations to seek authorization and
   type-approval were illegal inasmuch as RTT thereby assumed,
   simultaneously, the role of regulatory and supervisory body and that of
   interested party, with the result that even the obligation to inform
   the purchaser of the absence of type-approval had to be regarded as
   illegal.

   According to the report for the hearing in that case, the national
   court considered, in the light of those arguments, "that it was
   necessary to ascertain whether a procedure for approval such as that
   imposed by the RTT was lawful because otherwise it would be unlawful to
   require a trader selling telephones to tell his customers that it was
   necessary to submit them for approval." (18)

   As has been stated more than once, the judgment of the Court shows that
   the rules of competition in the Treaty may be invoked by a trader
   opposing the application of a national system which empowers another
   competitor to lay down the technical standards for the products at
   issue and to monitor their application.

   Hence there is every reason to believe that, as a result of the Court'
   s decision, the national court considered that there were no legal
   grounds for the injunction sought by the RTT, and accordingly permitted
   the defendant to market equipment without type-approval, and indeed to
   do so without informing the purchaser that such approval had not been
   granted.

   Consequently, unless the Court sees fit to revise that precedent, I
   believe that the national court' s question should be answered as
   follows: Articles 30, 3(f), 86 and 90 of the EEC Treaty, together with
   Article 6 of the directive on terminal equipment, preclude the
   application of national provisions such as those laid down in French
   Decree No 85-712, which require traders seeking to market terminal
   equipment to demonstrate ° by means of type-approval or an equivalent
   procedure ° that the equipment complies with certain requirements
   (relating in particular to user safety and proper functioning of the
   network) where there is at the same time no guarantee of the
   independence, in relation to any trader offering goods or services in
   the telecommunications sector, of the body which:

   ° issues the type-approval certificate (or an equivalent document);

   ° draws up the technical specifications used for the purpose of issuing
   the type-approval certificate (or an equivalent document).

   B ° Other questions raised in this case

   In view of the answer given to the question as to the independence of
   the body laying down the rules and granting type-approval in the market
   for terminal equipment, no purpose would be served by considering the
   other questions raised in this case. It is only for the sake of
   completeness and, of course, for the eventuality that the Court may
   decide not to follow the solution advocated above that I now propose to
   examine briefly the remaining points which have emerged during the
   proceedings.

   As we know, the questions raised relate to the following matters:

   ° the technical specifications on the basis of which the French
   authorities should have granted type-approval for the equipment in
   question were allegedly adopted without regard to the procedural
   requirements under the directive on technical standards and the
   directive on terminal equipment, which ° in the contention of Mrs
   Gillon and the Commission ° means that those specifications are
   inapplicable;

   ° terminal equipment already granted type-approval in another Member
   State should ° according to Mrs Gillon ° be subjected to "simplified"
   inspections in the Member State of importation, which means in practice
   that national technical specifications which are not indispensable for
   safeguarding certain essential requirements are inapplicable to such
   equipment;

   ° the existence of discriminatory practices on the part of the French
   authorities in granting of type-approval for terminal equipment;

   ° the existence of abuses by France Télécom of its dominant position.

   Those matters call for a general remark: the criticisms set out above °
   unlike the objection that the regulatory and supervisory body is not
   independent ° do not cast doubt on the entire system established by
   Decree No 85-712 for the granting of type-approval for terminal
   equipment. What inference would have to be drawn if those criticisms
   were found to be valid? The reply to that question is, in my opinion,
   very simple. It is clear that the application of technical
   specifications which, on substantive or procedural grounds, are illegal
   invalidates an individual decision (whether favourable or unfavourable)
   given by the national authority. The result is the same when the
   decision regarding type-approval involves discrimination against the
   imported product. Finally, it is self-evident that any infringement of
   Article 86 of the Treaty by a public undertaking renders illegal the
   abusive conduct in question.

   On closer inspection, therefore, the defects complained of may affect
   the outcome of the type-approval procedure but not the actual principle
   of type-approval established by the contested decree.

   It follows that, had Mrs Gillon been adversely affected by refusal to
   grant type-approval, or by any other act incompatible with Community
   law, she could have responded by asserting its illegality under the
   procedures provided for that contingency. She would, however, have had
   to seek type-approval, and this she has not done.

   On the other hand, the mere possibility that refusal to grant
   type-approval might prove to be illegal could not in any way serve to
   exempt Mrs Gillon from seeking it and could not therefore positively
   authorize her to market terminal equipment "en dehors de toute
   procédure d' agrément ou homologation".

   I therefore consider that, in this regard, the answer to be given to
   the national court can be formulated as follows: neither the alleged
   incompatibility with Community law, on grounds of form or substance, of
   national technical specifications for terminal equipment, nor the
   alleged implementation by the national authorities of discriminatory
   practices in the granting of type-approval for such equipment nor the
   alleged adoption by France Télécom of conduct constituting an abuse of
   a dominant position within the meaning of Article 86 of the Treaty can
   serve to exempt those marketing such equipment from the need to seek
   type-approval (or an equivalent document) in accordance with French
   Decree No 85-712.

   Conclusion

   In the light of those considerations, I consider that the following
   answer should be given to the national court:

   Articles 30, 3(f), 86 and 90 of the EEC Treaty, together with Article 6
   of Commission Directive 88/301/EEC of 16 May 1988 on terminal
   equipment, preclude the application of national provisions such as
   those contained in French Decree No 85-712, which require traders
   seeking to market terminal equipment to demonstrate ° by means of
   type-approval or an equivalent procedure ° that the equipment complies
   with certain requirements (relating in particular to user safety and
   proper functioning of the network) where there is at the same time no
   guarantee of the independence, in relation to any trader offering goods
   or services in the telecommunications sector, of the body which:

   ° issues the type-approval certificate (or an equivalent document);

   ° draws up the technical specifications used for the purpose of issuing
   the type-approval certificate (or an equivalent document).

   Should the Court find it necessary to consider the other points raised
   in these proceedings, I propose that the following answer be given to
   the national court:

   Neither the alleged incompatibility with Community law, on grounds of
   form or substance, of national technical specifications for terminal
   equipment, nor the alleged implementation by the national authorities
   of discriminatory practices in the granting of type-approval for such
   equipment nor the alleged implementation by France Télécom of conduct
   constituting an abuse of a dominant position within the meaning of
   Article 86 of the Treaty can serve to exempt those marketing such
   equipment from the need to seek type-approval (or an equivalent
   document) in accordance with French Decree No 85-712.

   (*) Original language: Italian.

   (1) ° 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,
   still pending, in Lagauche (Case C-46/90, in which the Court decided to
   reopen the oral procedure following the Opinion of Advocate General
   Lenz), Evrard (Case C-93/91), Sauges (Case C-164/91), Henryon and
   Others (Joined Cases C-238 to 240/91), Gleyzes (Case C-288/91) and
   Marchandeau (Case C-323/91).

   (2) ° There are, 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.

   (3) ° Specialized publications emphasize how technological development
   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 which were previously separate and characterized by
   differing economic and legal structures (postal services and
   telecommunications, information and audio-visual activities), the
   variety of means for transmitting information (which, of course, has
   its counterpart in the range of terminals available) ° in short, the
   emergence of that broad and complex area of activity commonly 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 concerned, there is
   no doubt that, even before Community provisions were adopted, the
   changes mentioned above had far-reaching repercussions on the structure
   and functioning of the European markets. The competition (mainly) from
   non-member countries (the USA, Japan and the newly industrialized
   countries) and the need 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 jure 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, Italtel 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 90(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, see E. Stevers, Telecommunication
   Regulation in the European Community (Working Paper No 89/421),
   Istituto Universitario Europeo, 1990, pp. 12 ff; AA. VV., 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 Fordham Corporate Law
   Institute, 1989, pp. 271 ff.

   (4) ° Commission communication: Green Paper on the development of the
   common market for telecommunications services and equipment, COM (87)
   290 of 30 June 1987.

   (5) ° OJ 1988 L 131, p. 73.

   (6) ° OJ 1983 L 109, p. 8.

   (7) ° It is worth emphasizing that in all the requests for preliminary
   rulings from French courts arising from proceedings brought against
   persons charged with the marketing of unapproved terminals, the
   questions submitted to the Court are the same as, or at least largely
   comparable to, the questions raised here.

   (8) ° 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] are 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.

   (9) ° 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. Ungerer, Comments on
   Telecommunication Regulatory Reform in the European Community ,
   published in AA. VV., Deregulation 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. VV., Vers une Nouvelle Réglementation des Télécommunications , op.
   cit., pp. 200 ff and pp. 224 ff; J. Scherer, European Telecommunication
   Law , published in AA. VV., 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 Matičre de Concurrence ,
   Revue Internationale de Droit Economique, 1991, p. 103.

   (10) ° 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, are
   still to be regarded as formally autonomous. Accordingly, Member States
   are 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 explicitly to the question of principle raised by
   the Advocate General (judgment in Case C-258/89 Commission v Spain
   [1991] ECR I-3977).

   (11) ° 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.

   (12) ° This accords with the view of P. Ravaioli; op. cit., p. 120,
   note 29.

   (13) ° 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, RTT v 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 does not in any way
   seek to ° nor indeed could it ° limit the effects of the obligations
   directly imposed by the Treaty.

   (14) ° The assertions of the Commission and Mrs Gillon, which
   incidentally were in no way contradicted by the French Government, to
   the effect that France Télécom was simply the shop-front for the PTT
   administration, are borne out in specialized publications. See in
   particular AA. VV. Vers une Nouvelle Réglementation des
   Télécommunications , op. cit., p. 93, which explains that France
   Télécom is the trade name of the Direction générale des
   télécommunications; see also J. Chevallier, La Mutation des Postes et
   Télécommunications , AJDA, 1990, p. 667.

   (15) ° 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.

   (16) ° 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 we have seen ° was not independent.

   (17) ° P. Ravaioli, op. cit., p. 113, note 18, observes significantly
   that since the connection of equipment, pursuant to the directive on
   terminal equipment, is no longer governed by exclusive rights or
   subject to prior authorization, the refusal under Article 3 to allow
   such connection will be permissible only in the context of the
   type-approval procedure.

   (18) ° The Court had also noted that the existing situation, in which
   the RTT alone determines the conditions governing approval and also
   decides on the grant of approval was very debatable when the RTT was
   also a competitor on the market in equipment for connection to the
   network.

References

   1. http://europa.eu.int/eur-lex/lex/en/editorial/legal_notice.htm