Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

The present case, concerned once again with the interpretation of Articles 30 and 36 of the EEC Treaty, has its origin in criminal proceedings brought by the Belgian authorities against a Belgian hotelier and restaurateur Joseph Blesgen. A judgment of the Tribunal Correctionnel, Verviers, of 21 December 1977 found Joseph Blesgen guilty of infringing Anieles 1, 2 and 14 of the Belgian Law of 29 August 1919 concerning rules on alcohol (the socalled Lex Vandervelde) because, being a retailer of drinks for consumption on the premises, and having one or more previous convictions, he held in stock and sold in his establishment spirits of an alcoholic strength exceeding 22o at a temperature of 15o C.

After confirmation of the judgment by the Cour d'Appel, Liège, Criminal Chamber, the defendant appealed in cassation to the Belgian Cour de Cassation where he alleged that, even if thev applv without distinction to national products and imported products and are not intended to protect national production, the rules in Articles 1 and 2 of the Law in question constitute measures having an effect equivalent to quantitative restrictions on imports of spirits between Member States within the meaning of Article 30 of the EEC Treaty inasmuch as those rules give rise to restrictions on the consumption of such drinks. The measures cannot moreover be justified on any of the grounds provided for by Article 36 of the Treaty, namely the protection of health and life of humans, because the measures so far as the protection of health and life of humans is concerned do not actually constitute a case of present necessity which may be specified and accepted as such throughout the entire Community.

By judgment of 18 March 1981 the Belgian Cour de Cassation, which has to decide as to the compatibility of Anieles 1 and 2 of the Belgian Law with Community law, stayed the proceedings by a decision of 18 March 1981 and referred the following questions to the Court pursuant to Article 177 of the EEC Treaty:

In the event of Question 1 being answered in the affirmative:

The following is my opinion:

I — First question

1. In subparagraph (a) the court making the reference inquires as to the criteria of interpretation enabling it to decide whether a prohibition such as that contained in Article 1 of the Lex Vandervelde (Article 3 whereof simply provides that alcoholic drinks are deemed to include all drinks the alcoholic content of which is more than 22o at a temperature of 15o C) falls within the category of quantitative restrictions on imports or measures having equivalent effect within the meaning of Article 30 of the EEC Treaty. The question in subparagraph (b) is intended to allow the court making the reference to decide whether the rules contained in Article 2 of the Belgian Law are compatible with Article 30 of the EEC Treaty.

2. In considering the question whether the disputed rules are to be regarded as a measure having an effect equivalent to a quantitative restriction on impon within the meaning of Article 30 of the EEC Treaty it must be borne in mind, as the Coun has constantly established in its case-law, that in the absence of common rules relating to the production and marketing of a product it is for the Member States to regulate all matters relating to its production, distribution and consumption on their own territory. With regard to the Law with which we are concerned it should be observed that the restrictions provided for therein, as the coun making the reference and the panies stress, are intended to protect the physical and mental health of the population and to combat alcoholism in general and in particular with regard to its effects on crime, which are greater today because of road traffic; in addition there are the serious burdens arising from the social, moral and material point of view for households and families. Since the Community has not been able to adopt or at any rate has not adopted any provisions in this field it must therefore generally be recognized that the individual Member States have remained competent to regulate the serving and stocking of spirits and therefore different rules are possible from State to State.

3. Contrary to those proposals as to what the answer should be, all of which more or less assume on the basis of the Dassonviile formula that the Belgian Law is to be treated as a measure having equivalent effect within the meaning of Article 30 and consequently concentrate on considering grounds of justification, it seems to be more than doubtful whether the contested rules on use which apply without distinction to imported and domestic spirits fall at all within the scope of Article 30 of the EEC Treaty. The wording thereof provides only that quantitative restrictions on imports and all measures having equivalent effect shall, without prejudice to the following provisions, be prohibited between Member States. It follows therefrom that provision can apply only if trade across frontiers is restricted by national measures either because the import of goods from other Member States is actually impeded or made impossible or because simply the marketing of imported goods is made more difficult. To that extent Article 30, like the other basic freedoms contained in the Treaty, is intended as a specific expression of a general prohibition of discrimination to prevent imported goods from being treated worse either by law or in practice when they are marketed than similar domestic products. That consideration leads to the conclusion that only such national provisions fall within the scope of Article 30 as are specifically likely adversely to affect trade between Member States or, in the word of Article 36, which constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

4. In consequence it remains simply to consider whether the rule on consumption, in spite of the fact that it applies without distinction, has as its specific object or effect the restriction on imports inasmuch as imponed products are in practice at a disadvantage as against domestic products. Such a protectionist effect could arise onlv if, as the defendant in the mam proceedings and the British Government think, the prohibition of serving was laid down in such a way that foreign products primarily and preponderantly are affected.

II — Consequently it is not necessary to inquire whether the measure is justified on the grounds set out in Article 36 of the EEC Treaty or developed by the case-law of the Court.

Should the Court not be of my opinion then let me observe in the alternative that if, as required by the case-law, the aim of free movement of goods on the one hand is to be weighed against the objective pursued by the national measure as regards health and social policy that must lead to the measure's being regarded as justified. Contrary to what it now says the Commission moreover took that view in its answer of 27 January 1978 to the written question by Mr Cousté concerning the sale of spirits in Belgium (Official Journal C 56 of 6 March 1978, p. 8)

III — In conclusion I propose that the questions put should be answered as follows :

Article 30 of the EEC Treaty does not prohibit a measure such as that in Article 1 (1) and Articles 2 and 3 of the Belgian Law of 29 August 1919 concerning rules on spirits as amended by the Law of 2 April 1965.

1 Translated from the German.

2 Recent ludgments include ludgment oi 7 Annl l KI in Case 132/80 NV Umied Foods Belftan State||981] ECR 195. udgment oí 17 lune 1981 in Case 113/80 Cammititon v 7rfW[l9SI] ECR 1625. Judgment of 17 December 1981 in Case 272/80 Criminal proceeding alainu Frani-hiedcrlandie Maalithappn voor BlolORMllc Producten B V [1981] LCR

3 Judgment of 11 juli 1974 in Case 8/74 Procureur du Rai Benotl and'Gustave Dassonville 11974) ECR 837

4 Judgment of 26 February 1180 in Case 94/79 Criminal proceedings against Pieter Vriend ( 1980] ECR 327

5 Judgment of 20 February 1979, Case 120/78 Hcwe-Zcntral AC Bundesmonopolverwaltung ļur Branntwein 11979) ECR 649. paragraph 8 al p 662;Judgment ol 26 June 1980 in Case 788/79 Criminal proceedings against Herbert Gilli and Paul Andres [1980] ECR 2071; judgment of 19 February 1981 in Case 130/80 Criminal proceedings against Fabriek voor Hoogwardigc Voedmgsprodutten Kelderman Sľ(l98l] ECR 527.

6 Judgment of 20 February 1975 in Case 12/74 Commission v Federai Republic of Germany [1975] ECR 181.

7 Judgment of 16 November 1177 in Case 13/77 Gfi- 1NNO-BM v Vereniging van de Kleinhandelaars in Tabak (ATABI [^77] ECR21I5; Judgment of 24 January 1978 in Case 82/77 Openbaar Ministerie o/ the Kingdom of the Netherlands v Jacobus Philippus van Tiggele[ľ>7S) ECR 25; Judgment of 6 November 1979 in Joined Cases 16 to 20/79 Openbaar Ministerie v Joseph Dams and Others [1979) ECR 3327

8 Judpmcni oi 8 November 1979 m Casc 15/79 P.B Groenveld v Produktschap voor Vee en Vlees [1979] ECR. H09

9 ludpmenl of 14 juli 1981 in Ca>r 155/80 Seniui Oie/[1981) ECR 1993

10 Judgment of 10 July 1980 in Case 152/78 Commission v French Republic [1980] ECR 2299

11 Judgment of 27 February 1980 in Case 168/78 Commission v french Republic [1980] ECR 347

12 Judgment of 3 July 1979 in Joined Cases 185 lo 204/78 Criminal procrrdmįi against Firma į. van Dam en Zonen [1979) ECR 2345