Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

Article D 18 of the French Code des Postes et Télécommunications (as amended by the Decree of 12 February 1965) provides that newspapers and other periodicals shall, on condition that they are of general interest in terms of information, education, instruction and entertainment, qualify for a special press rate, which is lower than the tariff for printed matter and samples.

Article D 21 of the Code further provides that newspapers and periodicals which are printed abroad, in whole or in part, shall be governed by the tariff applicable to normal printed matter. That rule, however, does not apply in the case of French publications printed in a Member State of the European Communities. Publications qualify as French if the chief editor has French nationality and is resident in France. They then enjoy the preferential tariff applicable to publications printed in France. It is further laid down in Article D 21 that the postal administration may apply the preferential tariff enjoyed by newspapers and periodicals to foreign publications posted in France, if the country in question similarly applies to French newspapers and periodicals posted in its territory a tariff which, to use its terms, operates en faveur des objets de même catégorie (which, according to the French Government, applies only to Belgium).

On examining those provisions at the same time as it gave consideration to the provisions prevailing in other Member States, the Commission concluded that the abovementioned conditions for the application of the preferential tariff were incompatible both with the prohibition under Article 30 of the EEC Treaty on measures having equivalent effect to quantitative restrictions on imports, and with Commission Directive No 70/50/EEC of 22 December 1969, adopted pursuant thereto, in particular Article 2 (3) (1) and (o) thereof, which reads as follows:

That view was notified to the French Government by letter in 1979 and 1980.

The French Government considered — and still considers — the above appraisal to be incorrect. In a letter of June 1980 it expressed the view that the provisions of the directive which are quoted above were inapplicable to the preferential French tariff. It further considered that the provisions to which the Commission objected did not — since the importation and marketing of foreign publications in France was unrestricted — fall within the prohibition under Article 30 of the EEC Treaty, and that it was furthermore questionable whether that article was at all applicable to products which served as vehicles of political, social and cultural information and hence could not be equated with goods.

The Commission was not persuaded that the above contention was correct, and in July 1981 it called upon the French Government to amend Article D 21 of the Code des Postes et Télécommunications in such a way as to enable publications of all Member States to enjoy the preferential tariff.

As that demand was not acted upon, the Commission, in a letter dated 19 July 1982, initiated the procedure under Article 169 of the EEC Treaty, further citing in support of its view Article 2 (2) and (3) (k) of Commission Directive No 70/50/EEC, mentioned above, which reads as follows:

Accordingly, because the French Government failed to respond to the request in the letter for a statement of its views, a formal opinion under Article 169 of the EEC Treaty was issued on 14 March 1983, and — since the measures demanded were not adopted within the stipulated period and no further statement on the subject was forthcoming — the matter was brought before the Court of Justice on 9 December 1983. In its application, the Commission asks the Court to declare that the French Republic has failed to comply with its obligations under Article 30 of the EEC Treaty, namely by conferring the advantage of a reduced postal rate, pursuant to Article D 21 of the Code des Postes et Télécommunications, on French newspapers and periodicals alone, to the exclusion of newspapers and periodicals of other Member States which are posted and distributed in France.

On the above application — which the French Government considers unfounded — it seems to me appropriate to make the following observations.

1. In the proceedings before the Court, the French Government no longer adhered to the view which it had expressed in the preliminary procedure, that the products governed by the tariff arrangements were not to be regarded as goods because they served as vehicles for political, cultural and social information, and could therefore not be subject to the provisions on the free movement of goods.

2. It is also clear from the decisions of the Court — ever since the judgment in Case 8/74 — that the prohibition in Article 30 calls for a very broad formulation. Thus, all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be regarded as measures having an effect equivalent to quantitative restrictions [(1974] ECR 837, at p. 852, para. 5). That formulation is now of central importance in the appraisal of obstacles to imports which do not come within the categories of customs duties and aids.

3. On that basis is may readily be concluded that the Commission was right to accuse the French Republic of infringing the Treaty.

4. Although the above considerations are in themselves sufficient to demonstrate that the application is well-founded, it may further be remarked that the Commission was right in referring to the explanatory provisions in its directive of 22 December 1969.

In conclusion, it should be held that the Commission's application is well-founded, and a declaration should therefore be made that the French Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty by reserving, pursuant to Article D 21 of the Code des Postes et Télécommunications, the benefit of a reduced postal rate to French newspapers and periodicals, to the exclusion of similar publications of other Member States which are posted in France and are distributed there.

Similarly, as requested in the application, the Court should order the French Republic to pay the costs of the proceedings.

1 Translated from the German.

2 Judgment of 10 December 1968, Case 7/68 Commission of the European Communities v Italian Republic [1968] ECR 423.

3 Judgment of 11 July 1974, Case 8/74 Procureur du Roi v Benoit and Gustave Dassonville [1974] ECR 837.

4 Judgment of 5 April 1984, Joined Cases 177 and 178/82, Criminal proceedings against Jan van de Haar and Kaveka de Meern BV[1984] ECR 1797.