Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The Court of Justice has had many occasions on which to deliver rulings regarding the limits within which exceptions to the principle of the free movement of goods may be made on the basis of industriai or intellectual property rights or through the need to curb practices involving unfair competition. The principal issue which this case raises is of that kind even although the case presents another aspect which arises rom the Community rules protecting freedom of competition.

2. With regard to the prohibition of measures having an effect equivalent to quantitative restrictions referred to in Article 30 of the Treaty, the Court of Justice has of course consistently held that that prohibition affects all national measures which hamper the importation or sale of a product which has been duly placed on the market in another Member State. In this connexion it appears to me irrelevant whether the product in question has particular characteristics required by the person commissioning that product in order to commemorate an event of significance to himself. The decisive factor is that the product has been duly placed on the market in another Member State (as occurred in this case where the 1000 china services were sold by the manufacturer in the United Kingdom).

3. Similar reasoning to that set out in relation to rights of industrial, commercial and intellectual property also applies to restrictions on the movement of goods which may result from national provisions intended to counter practices of unfair competition (the papers in the case show that this is also the purpose of the provisions on marketing referred to by the Danish court in its question). In fact the suppression or unfair competition is not included amongst the grounds on which Article 36 permits exceptions to the prohibition in Article 30. Nevertheless in the judgments of 11 July 1974 in Case 8/74 Dassonville [1974] ECR 837 and of 20 February 1979 in Case 120/78 REWE [1979] ECR 649 the Court of Justice held that in the absence of Community rules on marketing it is necessary to accept obstacles to the free movement of goods resulting from national laws intended to meet specified mandatory requirements, in particular requirements relating to the fairness of commercial transactions and the defence of the consumer. Nevertheless the restrictive measures justified by such objectives are lawful only in so far as they are reasonable that is to say, are not discriminatory and are limited to the indispenable minimum. This case-law was recently confirmed in the judgment of 26 June 1980 in Case 788/79 Gilli [1980] ECR 2071 in which the Court of Justice ruled that it is only where national rules, which apply without discrimination to both domestic and imported products, may be justified as being necessary in order to satisfy imperative requirements relating in particular to ... the fairness of commercial transactions and the defence of the consumer that they may constitute an exception to the requirements arising under Article 30.

4. A question of the interpretation of Article 85 of the EEC Treaty arises if the validity of the stipulation against exportation to other Member States contained in the agreement between Imerco and Broadhurst is called in question. The point is relevant in this case only on the assumption that the Danish court took that stipulation into accout when it prohibited the sale in Denmark by Dansk Supermarked of the substandard china services manufactured by Broadhurst. Furthermore in this connexion it cannot be said that Article 85 presents any great difficulties of interpretation: the nature and conditions of the prohibition of agreements in restriction of competition are well known, as is the fact that contracts restricting outlets and partitioning markets are included amongst such agreements.

5. In conclusion, I suggest that the Court of Justice should reply to the question submitted to it by the Højesteret, Denmark by an order of 14 February 1980 by ruling as follows:

1 Translated from the Italian.