Opinion of Mr Advocate-General Trabucchi
Mr President, Members of the Court,
1. Several dozen bottles of whisky produced by two well-known British firms, bought in France from exclusive concessionaires of the producer, were, after proper importation and customs clearance, imported into Belgium in 1970, with a view to their sale in that country.
2. The requirement of the certificate of origin of goods coming from other States is customary in free trade areas where, in the absence of a common external customs tariff, it is necessary to distinguish between products originating in the area in question, and as such put into free circulation, from products coming from third countries.
3. As part of our consideration of the first question, we must establish the criteria which will enable the national court to decide whether the rules relating to the certificate of origin, which it is claimed apply to this case, are compatible with the Treaty. In this connexion, the first rule of importance is Article 30 prohibiting quantitative restrictions and measures having equivalent effect.
4. Whereas the concept of quantitative restriction is very precise, being identical to a quota, the concept of measure having equivalent effect is not so easy to define, given that the restrictive effect on imports and exports deriving from such a measure is only indirect and given the multiplicity of measures which can tend to produce an effect of this nature.
5. Article 36 of the EEC Treaty does however allow States to derogate from the prohibition on quantitative restrictions and measures having equivalent effect for certain purposes and within defined limits. This possibility of derogation is provided in particular for the purpose of enabling States to fulfil their duties relating to the protection of industrial and commercial property and the protection of morality, the health of persons etc.
6. Be that as it may, even where Article 36 must be considered applicable in theory, there remains the fact that a derogation based on this rule would only be allowed on condition that prohibitions or restrictions implemented by States for the purposes prescribed do not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
7. One can first of all establish the excessive and unjustified nature of the restrictions on free movement pointed out at the beginning of this opinion, resulting from the requirement that on the certificate of origin there must appear the name of the consignee in the Member State who uses the certificate for the purpose of importing and marketing the products. In fact, there certainly exist other means which are less restrictive than mention of the consignee's name on the certificate, which would allow one to identify clearly the consignment of goods to which the certificate of origin relates, especially where the product in question is usually bottled at the place of origin. Consequently, a condition of this kind involves restrictions on trade between Member States which are not justified on the basis of the first part of Article 36. Nor is the refusal to accept authenticated copies of the original certificate admissible.
8. Moving on now to consider the prohibition of arbitrary discrimination, it is enough for me to add that the fact of requiring an importer of a Member State to obtain a certificate of origin when this is quite beyond his powers, since for this he needs the cooperation of third persons which is improbable, besides constituting a serious obstacle to the movement of goods within the Community is capable of having an essentially discriminatory influence even where the same requirement applies to the marketing of corresponding domestic goods, by reason of the fact that, in the case of the latter, dealers are generally not faced with any real difficulty in obtaining the certificate of origin from the local producer. As this restriction is unnecessary to attain the legal objective of the protection of products bearing a designation of origin, it results in any event in arbitrary discrimination, if not between foreign and domestic goods, at least between Community dealers in relation to the actual possibilities of selling the. same product in a particular Member State. Consequently, for this reason as well the limits of the power of derogation laid down expressly by Article 36 would be exceeded.
9. Since, therefore, the Treaty does not allow a State to prohibit imports of products bearing a protected designation and put into free circulation in another Member State of the Community on the sole ground that the importer does not possess the certificate of origin even where there is no doubt as to the authenticity of the goods, or where their authenticity may be proved by some other means, the second question, concerning the interpretation of Article 85 with reference to the appraisal of the exclusive dealing agreement operating between the. Belgian exclusive concessionaire and the British producer, is of minor importance in this case.
10. I therefore advise the Court to reply to the questions referred by the Brussels court by ruling as follows:
1 Translated from the Italian.