Opinion of Mr Advocate General VerLoren van Themaat delivered on 22 September 1982 and confirmed at the sitting on 9 December 1982

1 Translated from the Dutch.

2 Now that in particular the second expression seems to have gained currency in academic discussions as well as in these proceedings, the following clarification of both expressions may be of some use. The first expression (the reasonableness rule) is connected with the decisive criterion established in paragraph 6 of the decision in the Dassonville case, to the enea that in order to prevent unfair competition which was there under consideration a State must ensure that the measures which it adopts should be reasonable. The second expression is connected with the case-law of the United States on the Sherman Act, according to which the strict prohibition of cartel agreements is mitigated by s rule of reason established by legal precedent. According to, inter alia, L H. Tribe in his American Constituţional Law, 197B pp. 340-342, the same kind of approach, involving the application of fairly iar reaching criteria, comparable to the Court'i case-law on Article 30 of the EEC Treaty, has also been adopted by the Supreme Court in relation to the inter-State commerce clause, which Ís itself comparable to Article 30. Thus the principle laid down by the Court in its judgment in Case 7/61 to the effect that Economically based State regulations have almost invariably been struck down (op. ch. p. 340) is also valid for American case-law. By adopting an approach which is in my opinion wholly analogous — albeit naturally involving the use of entena adapted to different circumstances — the Court has, in its decisions concerning in particular Articles 30 and 59 et seq., also mitigated the stria prohibitions contained in those articles by applying a rule of reason, as formulated for the first time in the Dassonville judgment. It is dear from inter alia the judgments of the Court in the Dassonville cue and in Rem (the Cassis de Dijon case), [1974] ECR 649, that the more detailed explanations concerning the rule of reason given by the Court in its case-law are to a large extent derived from Artide 36 of the EEC Treaty by analogy, with the extremely important difference that, in the event of nutigation of the basic rule contained in the Dmttomviik judgment where Article 36 is not applicable, the measures involved must apply to domestic and imported products without distinction. Moreover, on the basis oi the Court's case-law relating to Article 59 et seq. — where Artide 36 docs not apply but strictly comparable criteria are none the less used — there can of course be no question of the direct application of the rules of interprétation developed by the Court in relation to Artide 36. Rather, it seems to me that a general principle of interpretation is involved in relation to strict prohibitions laid down by provisions of the EEC Treaty. Thus, inter lia, grounds of overriding public interen justifying a prohibition, other than grounds dictated by economic objectives, may be reconciled with the requirements of the free movement of goods and services presented by the EEC Treaty. The use of the expression rule of reason to describe that principle of interpretation strikes me as preferable to the use of expressions exception or constitute an exception — which were adopted in this connection in my Opinion in Case 6/81 and in paragraph 10 of the Court's decision in the Commission v Ireland case, respectively, —inasmuch as, in practice, that principle forms a single entity with the prohibition which it mitigates and which is laid down by the Court in paragraph 5 of the decision in the Dassonville case. The principle must form a single entity with that prohibition also because, according to the Court's case-law concerning Article 36, the EEC Treaty leaves no room for any real exceptions to prohibitions other than those expressly provided for therein, although there is scope for a reasonable interpretation of those prohibitions. In my opinion, the unity of the basic rule and the mitigating rule laid down by the Dassonville judgment also emerges dearly in some of the Court's recent judgments, inducing those in Case 6/81 Beele and in Case 220/81 Robertson.

3 See, in particular, in this connection the Rapport Tan de Commissie Ordelijk Economisch Verkeer, The Hapje 1967, p. 19 et seq. which throws some tight on this mailer; the Schuurmans and Jordens Edition of the Law in question (1979), p. 9; and Mulder-Duk, Scheu van ha Sociaal-Economisch Recht in Nederland, Second Edition, Zwolle 1980, pp. MS, 146 and ISO.

4 Although in iu judgment in Cale 7/61 Commission v Italy [1961] ECR 671 the Court merely established in, unlike Anide 226, Article 36 cover (eidusively) casei o( a non-economic nature, the rationale of that decision leads in my opinion to the consequence that in connection with the rule of reason in relation to Arude 30 only imperative requirements of general interest and non-economic in nature can have a funcuon. The Court's eatensive case-law concerning the rule ot reason in my view confirms the truth of that assumption.