Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The principal point raised in the present proceedings may be summarized thus: is a national provision whereby minimum prices for the retail sale of given products are fixed compatible with the prohibition on measures equivalent to quantitative restrictions on imports contained in Article 30 of the EEC Treaty?

2. The Economische Politierechter (Police Magistrate for Commercial Cases) of the Arrondissementsrecht-bank, Rotterdam, delivered a judgment on 18 May 1976 whereby Mr Jacobus Philippus van Tiggele, the operator of a discount self-service business in wines and spirits in a town in the Netherlands, was sentenced to a fine of Hfl 5000 or, in default of payment to three months' imprisonment for persistent infringement of the abovementioned regulation by the sale of various brands of gin at less than the minimum prices fixed. After two appeals to higher courts (one to the Gerechtshof (Court of Appeal), The Hague, which quashed the judgment of the court of first instance, and a further appeal to the Hoge Raad (the Supreme Court for the Netherlands) which quashed the judgment of the court of second instance) the case was referred to the Gerechtshof, Amsterdam, which has requested the Court of Justice, pursuant to Article 177 of the EEC Treaty, to deliver a preliminary ruling on the following questions:

3. The first question expressly comes within the framework of the chapter of the EEC Treaty concerning the elimination of quantitative restrictions between Member States. As I have said, the question is whether a national system of minimum prices, like that set up by the Prijsverordening Gedistilleerde Dranken, to which I have already referred, is contrary to the prohibition imposed on Member States pursuant to Article 30 of the EEC Treaty against the application of measures having an effect equivalent to quantitative restrictions on imports. Article 34 does not affect the problem before the Court which is a question of retail price control, so that there is no effect on exports and accordingly the prohibition on measures having effects equivalent to quantitative restrictions on exports does not apply.

4. It has been observed by academic writers that the application of national price control systems not only has the effect of reducing the actual opportunities for competition and the ability of undertakings to compete with each other but often assumes that the undertakings operating on the Common Market have adopted practices at variance with the Community rules on competition (M. Walbroek, Les Regle-mentations Nationales de Prix et le Droit Communautaire, Brussels 1975, p. 55). Perhaps the Commission had this idea in mind when it considered the provisions of Article 30 et seq. of the Treaty together with the duty incumbent upon the States under Article 5 of that Treaty to abstain from taking any measure capable of creating situations which, if they had been brought about by the behaviour of undertakings would come under the prohibitions in Articles 85 and 86 of the Treaty.

5. The Court, in its abovementioned judgment in Case 13/77, the INNO Case, did indeed appraise certain measures adopted by States in fixing prices not only in the light of Article 30 but also with regard to Article 86, which prohibits any abuse by undertakings of a dominant position. However the Court referred to that rule in so far as it establishes the fundamental objective (the protection of freedom of competition) laid down in Article 3 (f) of the Treaty and in so far as the prohibition, which is equally fundamental, of any measure by States which might jeopardize the attainment of the Common Market (second paragraph of Article 5), includes as a logical consequence the duty of Member States not to adopt measures which might cancel the effectiveness of the rules on competition, including Article 86. That is why it is stated in the abovementioned judgment that Member States may not enact measures enabling private undertakings to escape from the constraints imposed by Articles 85 to 90 of the Treaty or which might encourage abuse of a dominant position (paragraphs 33 and 34 of the INNO judgment).

6. We must now consider each of the three kinds of minimum prices which, as has been recalled above, were laid down by the regulation of the Produktschap, in relation to the restrictive effects which they may have on trade between Member States.

7. It remains for me to consider the case of the uniform minimum price applied to old hollands gin, and extended to new hollands gin and vieux where there is no catalogue price per unit.

8. In the second question the Netherlands court requests, as I have previously recalled, an interpretation of Articles 92 to 94 of the EEC Treaty in order to enable it to establish whether a system of minimum prices like that described above is to be regarded as an aid granted by the Netherlands contrary to the said articles.

9. For the reasons set out above I am of the opinion that the Court should reply to the questions submitted, pursuant to Article 177 of the EEC Treaty, by the Gerechtshof, Amsterdam, by an order of 30 June 1977, as follows:

1 Translated from the Italian.