Opinion of Mr Advocate General Darmon
Mr President,
Members of the Court,
1. The issue in this action brought against the United Kingdom for failure to fulfil its Treaty obligations is whether the Trade Descriptions (Origin Marking) (Miscellaneous Goods) Order of 2 February 1981 (hereinafter referred to as the Order) is compatible with Article 30 of the EEC Treaty.
2. From this the Commission concludes that the Order provides the retailer with a means of escaping the burden of his obligation by allowing him to pass it up the distribution chain; that burden does not in fact rest on the retailer but on the other traders and, finally, on the manufacturer himself.
3. This dispute therefore raises two questions which I will consider in turn:
I — Hindrance to trade
4. According to a consistent line of decisions of the Court all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered measures having an effect equivalent to quantitative restriction. The Court thus interpreted the concept of hindrance widely. In that regard, it does not matter whether the hindrance arises from a discriminatory measure or from a provision which applies to national and imported products alike, as in this case.
5. It is therefore for the Commission, since it asks the Court to apply the provisions of Article 30 to a national measure applicable to goods without distinction, to show that it entails a specific trade restriction. As it is, no such proof has been adduced.
II — Consumer protection
6. According to the case-law of the Court, obstacles to intra-Community trade resulting from disparities between national legislation relating to the marketing of the products in question must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to ... the defence of the consumer.
7. The United Kingdom maintains that such is the case, claiming that only the Member State may decide whether such protection is necessary and that in the present case opinion polls have shown that United Kingdom consumers need to know the origin of the relevant products before making any purchase. Moreover, there is an undeniable link between a product's geographical origin and its intrinsic qualities (Italian shoes and French perfumes, for example). Finally, it claims that the origin-marking requirement is the least restrictive means as far as trade is concerned and therefore conforms with the principle of proportionality.
8. As I have just stated, referring to the Court's decision in the Cassis de Dijon case, in the absence of common rules, Member States may lay down requirements for the marketing of national and imported products within their territory. None the less, the trade barriers which may arise cannot remain a matter for appraisal by each Member State. As far as this point is concerned, the previous decisions of the Court are unambiguous. Such barriers are justified only if they are necessary in order to satisfy mandatory requirements one of which is consumer protection.
9. In this case it is therefore a question of deciding whether the protection of United Kingdom consumers necessitates a national measure requiring all the products concerned, whatever their origin, to indicate the country in which they were manufactured or produced. However, the Court has held that: As regards indications of origin in particular, the geographical area of origin of a product must confer on it a specific quality and specific characteristics of such a nature as to distinguish it from all other products.
10. In view of all the considerations I propose that the Court should:
1 Translated from the French.
2 Anicle 1 (3).
3 Article 2 (a).
5 Article 3 (1) (a).
6 Case 120/78 REWE Zentral AGm v Bundesmonopolverwaltung für Branntwein [1979] ECR 649.
7 Case 8/74 Procureur du Roi v Benoît and Gustave Dassonville [1974] ECR 837, paragraph 5 at p. 852.
8 Opinion of Mr Advocate General Reischl in Case 75/81 Bleigen v Belgium [19821 ECR 1211 at p. 1235.
9 Ibid, at p. 1238, (my emphasis).
10 Case 75/81 Bleigen v Belgium, cited above, paragraphs 8 to 10 at p. 1229; see also Case 193/80 Italy [1981] ECR 3019, paragraph 20; Case 286/81 Oosthoek [1982] ECR 4575, paragraph 15.
11 Judgment of 13 March 1984 in Case 16/83 Prantl, paragraph 16 at p. 1641.
12 Case 113/80 Commission v Ireland [1981] ECR 1625, paragraph 16 at p. 1641.
13 Case 120/78 REWE Zentral AG v Bundesmonopolverwaltung fur Branntwein [1979] ECR 649, paragraph 8 at p. 662.
14 Opinion published in OJ C 185 of 27. 7. 1981, p. 32.
15 Case 120/78 [1978] ECR 649 at p. 662, paragraph 8, (my emphasis).
16 Case 113/80 [1978] ECR 1625, paragraph 16 at p. 1641, (my emphasis).
17 Case 12/74 Commission v Germany [1975] ECR 181, paragraph 7 at p. 194.
18 Case 113/80 [1981] ECR 1625, at p. 1646.