Opinion of Mr Advocate General Reischl
Mr President,
Members of the Court,
The issue in the proceedings brought for a breach of the Treaty on which I am giving my opinion today concerns the compatibility of the French rules on advertising in respect of alcoholic beverages with the prohibition contained in Article 30 of the EEC Treaty on measures having an effect equivalent to quantitative restrictions on imports.
In Article L 1 in the First Title, the Law on the sale of beverages and on measures against alcoholism (Decree of 8 February 1955, Order No 59-107 of 7 January 1959) divides beverages into five groups according to their manufacture, sale and consumption.
The first group comprises nonalcoholic drinks. Group 2, contained in Order No 60-1253 of 29 November 1960, covers fermented drinks which are not obtained by means of a distillation process, such as wine, beer, cider or perry and mead. Also in this group are natural sweet wines under the tax arrangements applying to wine as well as Crème de Cassis and fermented fruit or vegetable juices having an alcoholic content of 1 to 3o. The remaining natural sweet wines not covered by the second group — liqueur wines, wine-based aperitifs and strawberry, raspberry, blackcurrant or cherry liqueurs having an alcohol content of not more than 18o — belong to the third group. The fourth group, added by Law No 57-725 of 27 June 1957, comprise the following types of drinks: rum, tafia, spirits obtained from the distillation of wine, cider or perry or from other fruit and which contain no essence, as well as liqueurs sweetened with sugar, glucose or honey. Aniseed liqueurs must contain at least 400 grams, and the other liqueurs at least 200 grams, of those substances per litre but must not have more than half a gram of essence per litre. Finally, all other alcoholic beverages fall into the fifth group.
Advertising in respect of drinks is regulated by Chapter II of the Law, to be more precise, in Articles L 17 and L 18 thereof. Under those articles there are no restrictions on advertising for drinks listed in Groups 1, 2 and 4. There are restrictions on advertising for drinks in the third group whereby only the description of the product, its composition and the name and address of the manufacturer and of the dealers may be stated. Finally, as regards drinks referred to in the fifth group, that is, all alcoholic drinks which are not expressly mentioned in the Law, all advertising of any kind is prohibited.
Exception had already been taken to these rules in Commission Recommendation No 70/125/EEC of 22 December 1969 to the French Republic on the adjustment of the State monopoly of a commercial character in alcohol (Official Journal, English Special Edition, Second Series, VI, p. 27) on the ground that they were in particular prejudicial to certain products traditionally considered as products of the other Member States. In a subsequent exchange of letters between the Commission and the French Government the latter adopted the view, however, that the rules in question on the advertising of alcoholic drinks, which in any case did not make any distinction in regard to the origin of those products, helped to combat alcoholism and therefore contributed to public health. The Commission, on the other hand, stood by its opinion that Articles L 17 and L 18 of the Law on the sale of drinks and on measures against alcoholism were capable of hindering the importation of alcoholic beverages from other Member States into France and therefore constituted a measure, unjustified under Article 36 of the EEC Treaty, having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the EEC Treaty.
By a letter of 4 June 1976 the Commission began formal proceedings in accordance with Article 169 of the EEC Treaty. The French Government, in a letter from its Permanent Representation of 9 July 1976, maintained its view, and by a letter of 25 January 1978 the Commission sent a reasoned opinion to the French Republic in accordance with the first paragraph of Article 169 of the EEC Treaty. Thereupon the French Government informed the Commission by a letter from its Permanent Representation of 29 March 1978 that it would give close attention to its opinion and would communicate with the Commission again in a short while in order to let it know what it intended to do. The Commission did not receive any further word from the French Government and therefore decided to bring the action introduced at the Court of Justice on 6 July 1978 in which it applies for a declaration that the French Republic has subjected advertising in respect of alcoholic beverages to discriminatory rules thereby maintaining obstacles to intra-Community trade and has thus acted contrary to its obligations under Article 30 of the EEC Treaty; it further claims that the French Republic should be ordered to pay the costs.
The French Republic, on the other hand, contends that the Commission's application should be dismissed and that the applicant should pay the costs of the proceedings.
1. In assessing the facts of this case it is necessary first to decide the question — on which there has been no decision by the Court of Justice so far — whether a national restriction on advertising in respect of certain alcoholic drinks, which does not relate to the fact of importation, can, in any event, be a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the EEC Treaty. The purpose of that provision is to ensure freedom of movement of goods between Member States under normal conditions of competition. Hitherto the Court of Justice has made it clear in its case-law that all trading rules or measures by Member States which are capable of hindering intra-Community trade, directly or indirectly, actually or potentially, are to be considered as measures having an effect equivalent to quantitative restrictions (cf. judgments of 11 July 1974, Case 8/74, Procureur du Roi v Benoît and Gustave Dassonville, [1974] ECR 837; of 8 July 1975, Case 4/75, REWE-Zentralfinanz eGmbH v Landwirtschafiskammer, [1975] ECR 843; of 20 May 1976, Case 104/75, Adriaan de Peijper [1976] ECR 613; of 15 December 1976, Case 35/76, Simmenthal SpA v Italian Minister for Finance, [1976] ECR 1871; and of 15 December 1976, Case 41/76, Suzanne Criel, née Donckerwolcke, and Henri Schou v Procureur de la Republique au Tribunal de Grande Instance, Lille, and Director-General of Customs [1976] ECR 1921). It follows from that statement of the law that Article 30 et seq. come into play not only when the crossing of frontiers by goods becomes more difficult, but also if their sale, in the State into which they are imported, is impeded as compared to national products. Clearly, prohibited measures meeting this description may take the most varied forms.
2. Thus in the present case it must be established whether the rules on the advertising of alcoholic beverages contained in the French Law on the sale of drinks and on measures against alcoholism are necessary and appropriate to meet the imperative requirement of the protection of public health and whether or not imported products are put at a disadvantage as against similar national products by those specific rules. Both parties acknowledge that it is necessary to combat alcoholism, which is a danger to public health. The parties further agree that a restriction on advertising in respect of alcoholic beverages is in principle capable of effectively curbing that danger. The dispute is simply whether advertising in respect of alcoholic beverages is regulated in France in a discriminatory way, that is to say, whether their differential treatment is objectively justified by their varying degrees of harmfulness.
3. To sum up I therefore propose that the Court of Justice should declare that the French Republic has subjected advertising in respect of alcoholic beverages to discriminatory rules thereby maintaining obstacles to intra-Community trade, and has thus failed to fulfil its obligations under Article 30 of the EEC Treaty. In view of this outcome the French Republic should also be ordered to pay the costs of the proceedings.
1 Translated from the German.