Opinion of Advocate General

My Lords,

This is a reference for a preliminary ruling by the tribunal de police de Martigues in France in criminal proceedings pending before that court against two supermarket managers, Mr Darras and Mr Tostain, who are charged with selling books at prices below those allowed by French Law 81-766 of 10 August 1981.

There was an appeal against the order for reference, which was initially made on 29 March 1984, but that appeal was dismissed and so the reference now comes before the Court.

The questions posed are these:

Mr Darras was represented by counsel before the Court this morning and adopted the written submissions put in on behalf of the Commission.

The legislation in this case is identical with that in issue in the Court's decision in Case 229/83 Association des centres distributeurs Edouard Leclerc v SARL Au blé vert (judgment of 10 January 1985) {Leclerc Books); the facts and issues of law are broadly the same. The only difference, which is a nonmaterial difference, is that these are criminal rather than civil proceedings.

The only questions which arise are those concerned with the free movement of goods, questions relating to Articles 3(f) and 85 not having been raised in this case. It seems to me that those questions are fully answered by paragraphs 21 to 30 and point 2 of the operative part of the Court's judgment in the Leclerc Books case.

As to Question 1 in the present reference, paragraphs 24 to 27 and point 2 of the operative part of Leclerc Books established that the price restrictions in question do constitute measures having equivalent effect to quantitative restrictions on imports, contrary to Article 30 of the Treaty, subject to the proviso: unless it is established that those books were exported for the sole purpose of re-importation in order to circumvent the legislation in question.

That proviso has been commented on by many writers. It does not seem to me to arise or to call for any comment in this case. I merely point out that the proviso has been adopted subsequently in the Court's judgment in Case 299/83 Saint Herblain distribution v Syndicat des libraires de Loire-Océan (judgment of 11 July 1985).

Questions 2 to 4 in the case again are covered by paragraphs 28 to 30 of the decision in the Leclerc Books case. The legislation in question can only be justified on the grounds set out in Article 36, an Article which must be interpreted strictly, and as the Court has said, is not to be extended to cover objectives which are not specified therein.

In my view, it follows that what are described here as national interests, such as that of bookshops threatened by competition from other forms of distribution, cannot be accepted as a justification for such national legislation though I do not see why the interests of such bookshops are described in the reference as national interests.

If that is right, then Question 4 does not fall for consideration.

I propose, accordingly, that the questions referred by the national court should be answered as follows:

The fourth question, as I have said, does not fall to be answered in those circumstances.

The costs of the Commission in this case are not recoverable. The costs of the parties to the main action fall to be dealt with by the national court.