canal satelite digital .pdf

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Case C-390/99

Canal Satlite Digital SLv

Administracin General del Estado(Reference for a preliminary rulingfrom the Tribunal Supremo (Spain))

(Articles 30 and 59 of the EC Treaty (now, after amendment, Articles 28 EC and49 EC) Directive 95/47/EC National legislation requiring operators ofconditional-access television services to register in a national register created forthat purpose, indicating the characteristics of the technical equipment they use,and subsequently to obtain administrative certification thereof Directive 83/189/EEC M eaning of technical regulation )

Opinion of Advocate GeneralStix Hackl de livered on 8 March 2001 . . . I 61 1Judgment of the Court, 22 January 2002 I 635

Summary of the Judgment

1. Preliminary rulings Jurisdiction o f the Court Limits Manifestly irrelevantquestions and questionsregardinghypothetical problems in a context which precludesany useful answer Questions not related to the purpose of the main proceedingsArt. 234 EC)I 607


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SUMMARY CASE C-390/99

2. Approximation of laws Transmission of television signals Directive 95/47 Ability of the Member States to establish prior authorisation procedures Conditionsfor exerciseDirective of the European Parliament and of the Council95/47

3. Free movement of goods Freedom to provideservices Restrictions Nationallegislation on digital television Activities of the operators of cond itional-accessservices and the m arketing of their products m ade subject to prior authorisation justification Conditions Criteria for assessm entEC Treaty, Arts 30 and 59 now, after amendm ent, A rts 28 EC and 49 EC))

4. Approximation of laws Procedure for the provision of information in the field oftechnical standards and regulations Technical regulations within the meaning ofDirective 83/189 Meaning National legislation on digital television requiringoperators ofconditional-access services to enter information in aregisterand to obtainprior certification for their products Whether included Obligation of MemberStates to communicate the draft ofsucha technical regulation to the Com mission ScopeCouncil Directive 83/18 9, Art. 1, points 8, 9 and 10)

1. In the context of the cooperationbetween the Court of Justice and thenational courts established by Article 234EC, it is solely for the national courtbefore which the dispute has beenbrought, and which must assumeresponsibility for the subsequent judicial decision, to determine in the lightof the particular circumstances of thecase both the need for a preliminaryruling in order to enable it to deliverjudgment and the relevance of thequestions which it submits to theCourt. Consequently, where the questions submitted by the national courtconcern the interpretation of Community law, the Court of Justice is, inprinciple, bound to give a ruling.

In exceptional circumstances, however,the Court can examine the conditions

in which the case was referred to it bythe national court, in order to assesswhether it has jurisdiction. The Courtmay refuse to rule on a questionreferred for a preliminary ruling by anational court only where it is quiteobvious that the interpretation ofCommunity law that is sought bearsno relation to the actual facts of themain action or its purpose, where theproblem is hypothetical, or where theCourt does not have before it thefactual or legal material necessary togive a useful answer to the questionssubmitted to it.

(see paras 18-19)I 608


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CANALSATLITEDIGITAL

2. Although Directive 95 /47, on the use ofstandards for the transmission of television signals, does not contain anyprovisions concerning detailed adminis t ra t ive ru les for implement ingMember States obligations under thatdirective, that finding does not justifythe conclusion that the Member Statesmay not establish a prior authorisationprocedure consisting of compulsoryentry in a register together with therequirement of a prior technical reportdrawn up by the national authorities.However, where they establish such anadministrat ive procedure, MemberStates must at all times comply withthe fundamental freedoms guaranteedby the Treaty.

(see paras 27-28)

3. N ation al legislation which makes themarketing of apparatus, equipment,decoders or digital transmission andreception systems for television signalsby satellite and the provision of relatedservices by operators of conditional-access services subject to a prior authorisation procedure restricts both thefree movement of goods and the freedom to provide services. Therefore, inorder to be justified with regard tothose fundamental freedoms, suchlegislation must pursue a public-interest objective recognised by Communitylaw and comply with the principle ofproportionality; that is to say, it must

be appropriate to ensure achievementof the aim pursued and not go beyondwhat is necessary in order to achieve it.

In determining whether such nationallegislation complies with the principleof proportionality, account must betaken of the following considerationsin particular:

for a prior administrative authorisation scheme to be justified eventhough it derogates from thosefundamental freedoms, it must, inany event, be based on objective,non-discriminatory criteria whichare known in advance, in such away as to circumscribe the exerciseof the national authorities discretion, so that it is not used arbitrarily;

a measure introduced by a MemberState cannot be regarded as necessary to achieve the aim pursued if itessent ia l ly dupl ica tes cont ro lswhich have already been carriedout in the context of other procedures, either in the same State orin another Member State;

I 609


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SUMMARY CASEC 390/99

a prior authorisation procedure willbe necessary only where subsequentcontrol must be regarded as beingtoo late to be genuinely effectiveand to enable it to achieve the aimpursued;

a prior a uthorisation proceduredoes not comply with the fundamental principles of the free movement of goods and the freedom toprovide services if, on account of itsduration and the disproportionatecosts to which it gives rise, it is suchas to deter the operators concernedfrom pursuing their business plan.

(see para. 43, and operative part 1-2)

4. National legislation which requiresope rators of conditional-access servicesto enter the equipment, decoders orsystems for the digital transmission andreception of television signals by satellite which they propose to market in a

register and to obtain prior certification for those products before beingable to market them constitutes atechnical regulation within the meaning of Article 1, point 9, of Directive83/189, laying down a procedure forthe provision of information in the fieldof technical standards and regulations,as amended and updated by Directive94/10.

Concern ing the ob l iga t ion underArticle 8 of the directive to communicate the draft of such a technicalregulation to the Commission, thatobligation applies to the said nationallegislation in so far as the latter establishes a system of prior administrativeauthorisation, and cannot therefore beregarded as legislation, referred to inthe exemption laid dow n by Article 10,whereby the Member State complieswith a binding Community measureresulting in the adoption of technicalspecifications.

(see paras 48-50, and operative part 3)

I 610

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