Opinion of Mr Advocate General Van Gerven delivered on 11 June 1991

1 Original language: Dutch.

2 Law No 20/85 of 25 July 1985 on prevention and assistance with regard to substances likely to lead to dependency (DOG. Num. 572, de 7-VIII-1985, p. 465).

3 DOG No 646, of 7 November 1986, p. 380.

4 U should be observed that the questions submitted for a preliminary ruling solely concern the advertising ban in respect of drinks with a high alcoholic content (Article 19 of Law No 20/85) and not the prohibition also mentioned above concerning the advertising of tobacco products (Article 25 of Law No 20/85), although it is clear from the Orders for Reference that the applicants in the main proceedings raise the question of the compatibility of both products with Article 30 of the EEC Treaty (in the Aragonesa case, see the Order for Reference, at p. 2, and in the Publivía case, the Order for Reference, at p. 3).

5 Judgment in Case 8/74 Dauonville [1974] ECR 837, para. 5.

6 At paragraph 11.

7 Judgment in Case 227/82 Van Bennekom [1983] ECR 3883, para 35, and more recently the judgment in Case C-347/89 Freistaat Bayern v Eurim-Pbarm GmbH [1991] ECR I-1747, paragraph 26.

8 See Article 15 of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23). That article imposes certain restrictions on television advertising for alcoholic drinks. That advertising may not be aimed specifically at minors or depict minors consuming these drinks (a), it may not create the impression that the consumption of alcohol contributes towards social or sexual success (c), or it may not place emphasis on high alcoholic content as being a positive quality of the beverages (f).

9 See the judgment cited above, paragraph 17.

10 That line of thinking is put forward by the applicants in the main proceedings and the United Kingdom and they point out in that connection that drinks with a high alcohol content are habitually consumed in much larger quantities.

11 On the question whether it is justified to set the limit between beverages with a high alcohol content and those with a low alcohol content at 23 degrees, see point 9 above.

12 See for example the recent Freistaat Bayern v Eurim-Pharm judgment, cited above, at paragraph 26.

13 As the Commission observes (see the observations submitted by it to the Court in the Publivia case, at pp. 4 and 10), the advertising ban contained in Article 19 of Law No 20/85, contrary to what might be inferred from the first question submitted for a preliminary ruling, concerns solely media controlled by the public authorities and therefore not commercial television for example.

14 A warning accompanying the publicity message, such as alcohol damages health or enjoy it but drink it in moderation is certainly not as effective an alternative to the advertising ban, since the consumer's attention is then also drawn by the publicity message.

15 The existence of protectionist intentions which the applicants claim to have detected do not seem to me to be proven.

16 See for example the judgment in Case 4/75 Rewe-Zentralfinanz v Lanäwirtschajtskammer [1975] ECR 843, paragraph 8.

17 At the Hearing it was also pointed out that in a draft law tabled recently the Catalan authorities placed the limit at 20°.

18 See also the observations submitted to the Court by the Belgian Government in the Aragonesa case.

19 Judgment in Case 75/81 Bieigen [1982] ECR 1211.

20 The observations submitted by the Catalan authorities to the Court in the Publivia case (pp. 15 to 16) moreover cite the conviction of an undertaking for advertising drinks with a high alcohol content of Spanish origin.

21 Case C-21/88 Du Pont de Nemours Italiana [1990] ECR I-889.

22 The dau produced by the applicants show that during the period 1984 to 1987 7.5% (818227 hi) of the production of alcoholic drinks was made up of drinks with a high alcohol content whilst the remainder, that is 92.5% (10085586 hi) was made up of drinks with a tow alcohol content (see for example the observations of the applicant in the Publivia case, p. 4). Contrary to the conclusion drawn by the applicants from these statistics, it seems to me that having regard to the nature thereof, the quantity of drinks with a high alcohol content in comparison to the quantity of drinks with a low alcohol content is by no means so negligible. See also the Commission's observalions in the Publivia case, p. 6.

23 It should also be pointed out that, in spite of the advertising ban, there has been in Catalonia over the years a major increase in the consumption of imported beverages with a high alcohol content. It is however possible that in the absence of the advertising ban, that increase would have been even more considerable. The applicants in the main proceedings also underline that in relation to 1988 there was in 1989 a reduction in imports of beverages with a high alcohol content (1988, 224179821; in 1989, 18222180 I).

24 Judgments in Case 120/78 REWE Zentral [1979] ECR 649; in Case 788/79 Cilii et Andres [1980] ECR 2071; in Case 130/80 Kelderman [1981] ECR 527, at paragraph 8.

25 See for example the judgments in Van Bennekom, cited above, at paragraphs 34 et seq. ; in Case 94/83 Heijn [1984] ECR 3263, at paragraphs 14 et seq.; in Case 247/84 Motte [1985] ECR 3887, at paragraphs 17 et seq.; in Case 304/84 Ministère Public v Muller [1986] ECR 1511, at paragraph 16; in Case 178/84, the Reinheitsgebot case, Commission v Germany [1987] ECR 1227, at paragraphs 40 et seq.; in Case 407/85 3 Glocken and Another w USL Centro-Sud and Another [1988] ECR 4233, at paragraphs 11 seq.; in Case 125/88 Nijman [1989] ECR 3533, at paragraphs 12 et seq.; in Case C-42/90 Bellon [1990] ECR I-4863, at paragraph 10 et seq.; By way of example, reference may be made here to the S Glocken judgment, paragraph 11, in which the Court held that:It should be observed that a prohibition on the sale of pasta products made from common wheat or from a mixture of common wheat and durum wheat is an obstacle to the importation of pasta products lawfully made in other Member States from common wheat or from a mixture of common wheat and durum wheat. It therefore remains to be determined whether that obstacle may be justified on the grounds of the protection of public health under Article 36 of the Treaty or by virtue of imperative requirements such as those referred to above.

26 Sec the Dassonville judgment, mentioned above, at paragraph 7.