Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. The tribunal de grande instance (Regional Court), Bobigny, has submitted an important question of interpretation to the Court. The order for reference raises the problem of lawfulness, having regard to Articles 30 and 36 of the EEC Treaty, of an obligation, failure to fulfil which gives rise to liability in criminal law, imposed on importers of products of Community origin to verify the conformity of the product which they import with the national rules of the Member State of importation. Statutory regimes providing for criminal liability under which importers are required to carry out special checks appear to exist, according to the Commission, in several other Member States. The Commission also stated that it intends to issue a communication on the subject of such rules in the light of the Court's decision in this case. Finally, the order for reference may also have repercussions on the decisions of the judicial institutions of the Member States in regard to the liability, both criminal and civil, of importers.
Summary of the facts
2. Norlaine is a buying office for textiles intended for resale in the shops operated on French territory by various companies under the Bouchara name. In 1984, the company imported from the Italian Republic and the Federal Republic of Germany certain fabrics described as fancy. Those fabrics were delivered by the Italian and German manufacturers and were accompanied by invoices describing the composition of the fabrics. Norlaine resold those fabrics without doing any work on them or labelling them and reproduced in the sales invoices the composition of the goods as indicated on the invoices submitted by its own foreign suppliers.
3. When carrying out a spot check, the service de la répression des fraudes (Prevention of Fraud Department) took 18 samples of different sorts of fabric which were being offered for sale in the Bouchara shop in Toulouse and which had been supplied by Norlaine. Of the 18 samples tested by an official laboratory, seven were found not to conform to the declared composition. It was in those circumstances that Mrs Bouchara (née Wurmser) and Mr Bloch, the managers of Norlaine, were prosecuted before the tribunal de grande instance de Bobigny for deceit as to the composition of goods by offering for sale or causing to be offered for sale textile products bearing false information as to their composition contrary to the Law of 1 August 1905.
The questions referred to the Court and the terms in which they are formulated
4. By judgment of 29 October 1987, the national court referred the following questions to the Court of Justice for a preliminary ruling:
5. I propose first to consider the origins of Article 11-4 of the Law of 1905 and to analyse the scope of the provision. I will then conclude that in this case the matter is not governed by Community law. The greater part of my Opinion will be devoted to a consideration of the lawfulness of rules such as those laid down by the French law, having regard to Articles 30 and 36 of the EEC Treaty. I will conclude in that regard that we are concerned with a measure which may produce an effect equivalent to quantitative restrictions on imports. Having established that, I will consider whether the measure may be justified, in the light of the Court's case-law, on the basis of Articles 30 and 36 of the EEC Treaty.
The rales on criminal liability in French law
6. According to the second sentence of Article 11-4 of the French Law of 1 August 1905, the person responsible for placing the product on the market for the first time [is] to verify its conformity with rules in force. That provision was introduced by a law of 1983 which affirmed a line of judicial authority assimilating the absence of verification to serious negligence. I think it would be useful to give a brief account of the context and scope of those judicial decisions.
7. There are, however, gaps in the statutory provision which must be borne in mind when its lawfulness in regard to Community law is being considered. Thus, it is silent as to the scope of the obligation to verify the conformity with national rules of products placed on the market. In reality, such verification implies knowledge on the pan of the importer in two respects. On the one hand, it implies knowledge of the national rules in force and those rules must, where necessary, be in conformity with the provisions of Community law (see infra, sections 9 and 16). On the other hand, it implies a sufficient knowledge of the characteristics and composition of the imported products to be able to determine whether they conform to the rules of the country of importation. On the latter point, it should be noted that the provision in question does not give any indication as to the conduct expected of the importer in order to avoid incurring criminal liability. Is the importer supposed to have every imported product systematically analysed by a laboratory, as the defendants in the main proceedings envisage? Or may he avoid criminal liability by producing certificates drawn up by the foreign producer, as the French Government claims. At the hearing, the divergent views of the parties were not reconciled.
Lack of harmonization in Community law on this matter
8. It should first be observed that criminal liability for the failure of products distributed to conform to the indications on the label is not currently governed by any Community directive. Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (Official Journal 1984, L 250, p. 17) does indeed prescribe a series of legal measures which the Member States must adopt to protect the public against misleading advertising. Furthermore, Council Directive 71/307/EEC of 26 July 1971 on the approximation of the laws of the Member States relating to textile names (Official Journal, English Special Edition 1971 (II), p. 694) harmonizes the names of textile fabrics and the indications to appear on the labels accompanying textile products.
9. Those preliminary observations do not provide an answer to the more general question whether, in regard to all the matters covered by Article 11-4 of the Law of 1905, Community law does or does not contain a corpus of harmonized rules. It is of course not possible, nor is it necessary in the context of this case, to reply to that question in general terms, having regard to the range of matters covered by the provision and the absence of a precise indication of the rules governing those matters (see section 7). It is sufficient to point out, on the one hand, that if the rules concerned have been harmonized, the obligation to verify may none the less raise difficult problems, in particular in determining whether the national provision in question is valid vis-à-vis Community law.
The obligation to verify is liable to hinder intra-Community trade
10. According to Article 30 of the EEC Treaty, quantitative restrictions on imports and all measures having equivalent effect are prohibited in trade between the Member States. A measure which imposes on an importer-cum-distributor an obligation, failure to fulfil which will make him subject to a regime imposing stricter criminal liability, to ensure the conformity of imported products with the national rules, whereas the criminal law does not impose the same obligation on distributors of domestic products, constitutes at first sight a measure which could be unfavourable to intra-Community trade. It is true that such an obligation does not necessarily involve significant direct or indirect costs which place imported products at a real disadvantage. The extent of those costs depends in reality on the scope which is given to the obligation. Thus, if one adheres to the French Government's point of view to the effect that the importer will not be liable in criminal law if he produces certificates drawn up by the manufacturers of the imported products, the costs appear in no way dissuasive. I will return to this question later (see section 19). At this stage it is sufficient to note that the measure under consideration comes within the definition of the concept of measures having equivalent effect given by the Court in its judgment in Dassonville and repeated in many subsequent judgments. According to the judgment in Dassonville, all rules which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be regarded as measures having an equivalent effect to quantitative restrictions (judgment of 11 July 1974 in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837). Those conditions are certainly fulfilled in this case. It cannot be excluded that a distributor will abandon his plans to import products for fear of incurring criminal liability.
May the obligation to verify none the less be justified under Article 30 of the EEC Treaty?
11. In the Cassis de Dijon judgment (judgment of 20 January 1979 in Case 120/78 Rewe v Bundesmonopolverwaltung für Branntwein [1979] ECR 649) and on numerous subsequent occasions the Court held that, in the absence of common rules on the marketing of the products involved, obstacles to movement within the Community resulting from disparities between the national laws relating to the marketing of a product must be accepted in so far as those provisions apply without distinction both to domestic and imported products and where the hindrance they cause does not go beyond what is necessary to satisfy imperative requirements relating, inter alia, to consumer protection and fair trading.
Does the obligation to verify apply without distinction to domestic and Community products?
12. The defendants in the main proceedings do not take a clear position on the question whether the obligation laid down in Article 11-4 of the Law of 1905 applies without distinction to domestic and Community products. They say that distributors are more severely treated when they market products originating elsewhere in the Community than when they market French products because, in the first case, the mental element of the offence of deceit is presumed to exist whereas, in the second, that element must be proved. They do not therefore consider the scope of the obligation to verify the conformity of products with the national rules but, skipping one step in the reasoning processs, address themselves directly to the penalty to which distributors are liable if they infringe the obligation to verify.
Does the obligation to verify go beyond what is necessary to achieve the objectives aimed at by the provision?
13. The objectives pursued by Article 11-4 of the Law of 1905 can be seen from the text of the provision itself. From the time they are placed on the market for the first time, products must conform to the provisions in force regarding the health and safety of persons, fair trading and consumer protection. The objectives regarding the health and safety of persons are among those expressly mentioned in Article 36 of the EEC Treaty. Measures which constitute a hindrance to intra-Community trade but which are intended to achieve objectives of that nature may, in an appropriate case, be justified under Article 36. I will return to this question in sections 20 and 21.
14. How far does the duty to verify laid down in Article 11-4 of the Law of 1905 go? As I have indicated in section 7, the parties give very different answers to that question. However, it is not for the Court to determine the scope of the obligation to verify laid down in Article 11-4 of the Law of 1905. It is for the national courts to clarify that situation. The Court of Justice must rule on the conditions under which a measure requiring a verification of the conformity of imported products with the rules of the country of importation is itself in conformity with the EEC Treaty.
15. In that regard, a position must first be adopted on the actual principle of such a measure. In the present state of Community law, the rules concerning fair trading and consumer protection are far from being harmonized. The Member States may therefore require that products imported from other Member States comply with their national rules in those areas. As a corollary of that requirement, they may also require the importer to verify the conformity of the imported products with the rules in force, as long as that obligation applies to all products, including domestic products, which are placed on the market for the first time.
16. Let me now turn my attention specifically to the scope of the obligation to verify the conformity of imported products with national rules. Such verification implies, as I have already indicated, knowledge in two respects. It implies, on the one hand, knowledge on the part of the importer of the national rules concerned. That aspect poses no immediate problems in this case. It could however raise difficult problems of compatibility of national rules with Community law. However, the difficulties which result from this are identical both for the importer of Community products and for the manufacturer of domestic products. Verification implies, on the one hand, a sufficient knowledge on the part of the importer of the characteristics of the imported products so as to be able to determine whether or not they conform to the rules in force in the importing country. In order to acquire that knowledge of the imported products, what steps may be required, within the limits of compliance with Article 30 of the EEC Treaty and the principle of proportionality therein contained? What measures unfavourable to intra-Community trade may none the less be justified, by reason of the objective legitimately pursued, so as not to fall under the prohibition of measures having equivalent effect laid down in Article 30 of the EEC Treaty? Those are the crucial questions in this case.
17. The defendants in the main proceedings cite in particular the following two judgments. In its judgment of 17 December 1981 in Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Produkten BV [1981] ECR 3277, the Court ruled that the authorities of the importing State are not
18. The judgment of the Court of 15 December 1976 in Case 41/76 Donckerwolcke v Procureur de la République [1976] ECR 1921 is also cited by the defendants in the main proceedings. In that judgment, the Court first held that, in intra-Community relations, Article 30 precluded the maintenance in effect by national legislation of a requirement, even of a purely formal nature, of import licences or any other similar requirement (which would constitute a measure discriminatory in form and therefore, in itself, a measure having equivalent effect). On that occasion, the Court also considered that even though the requirement to indicate the country of origin of goods did not as such constitute a measure equivalent to a quantitative restriction,
19. In the light of the foregoing, it seems to me that the provisions of the EEC Treaty do not preclude an obligation imposed both on importers and on domestic manufacturers to have available to them documents which indicate the characteristics of products placed on the market and enable them to verify the conformity of those products with the national rules of the importing State (see the judgment of 17 December 1981 in Case 272/80, cited above, [1981] ECR 3291, paragraph 15, and the Opinion of Mr Advocate General VerLoren van Themaaat in Case 124/81 Commission v United Kingdom [1983] ECR 248, and at p. 249). However, it is not permissible for that obligation to result in an importer being required to draw up the documents concerned at his expense where those documents already exist. As a general rule, the importer must be able to verify the conformity of the products on the basis of documents drawn up by or at the request of the manufacturer of the product originating elsewhere in the Community if, I repeat, those documents enable him to verify the conformity of the product with the rules of the importing State. Normally, he must therefore be able to rely on statements made by a manufacturer established in another Member State, whether made on the initiative of the manufacturer or at the request of the importer.
Can the obligation to verify be justified under Article 36 of the EEC Treaty?
20. I indicated above the limits within which an obligation to verify the conformity of imported products with national rules in regard to fair trading and consumer protection appears to me to be justified under Article 30 of the EEC Treaty. It now remains for me to consider whether the reply should be different if the obligation is to verify the conformity of imported products with national rules, not harmonized in Community law, concerning the health and safety of persons. Those two matters are expressly referred to in Article 36 of the EEC Treaty.
21. In my opinion, whether the verification relates to conformity with rules concerning the one or the other of those objectives does not fundamentally alter the nature of the problem. Certainly, in Community law the basis of the justification will be different according to the objective to be achieved. If the national rules concern fair trading or consumer protection, justification must be founded on Article 30 of the Treaty. If, on the other hand, the national rules govern the health or safety of persons, it is Article 36 of the Treaty which provides the appropriate legal basis. In both cases, however, the measure concerned may be justified only if it does not impose restrictions going beyond what is necessary to achieve the objectives pursued (see the judgment of 20 May 1976 in Case 104/75 de Peijper [1976] ECR 613, in particular paragraphs 16 to 18 at p. 636. At the very most, it might be said that Member States are entitled to require a higher degree of care on the part of the persons concerned when they are called upon to verify the conformity of a product with national rules intended to realize the objectives mentioned in Article 36 of the Treaty. In other words, having regard to the importance which the authors of the Treaty attached to the matters provided for in Article 36, the Member States might impose in such a case, but always subject to compliance with the principle of proportionality, restrictions relatively more severe than what is permissible on the basis of Article 30.
Proposed reply
22. In conclusion, I propose that the Court should reply as follows to the questions referred to it for a preliminary ruling:
1 Original language: French.
2 The French Government's expert stated at the hearing that the provision referred to all products, with the exception of pharmaceutical products which are governed by a special code.