Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. In a somewhat brief letter of 12 December 1990, the Examining Magistrate attached to the Tribunal de Grande Instance (Regional Court) of Bergerac referred a question to the Court on advertising by a parallel importer of motor vehicles.

2. To appreciate the significance of the question, which asks only whether such a marketing practice is in compliance with the European rules currendy in force, one must look at the context of the dispute in national and Community law.

3. As emerges, in particular, from its own preamble, the directive in question pursues two aims at once. On the one hand, it seeks to guarantee an adequate level of consumer protection by establishing minimum and objective criteria as a basis for determining whether any given form of advertising is misleading, while on the other hand it seeks to ensure the free movement of goods and services by favouring the execution of advertising campaigns across a number of Member Sutes.

4. Before examining the effect of the above rules in relation to the case before the Court, it should be emphasized that to forbid the kind of advertising at issue here would be likely in practice to hit parallel importers particularly hard, by preventing them from sufficiently advertising their product. In the first place, it is parallel importers more than anyone else who find it useful to advertise that motor vehicles are nezo-especially those who sell cars that have already been registered in another Community country. It should be emphasized here that, as the Commission confirmed at the hearing, the type-approval still necessary in the country of parallel importation is made quicker and easier if the vehicle has already been registered in another Community country. In the second place, the description of the vehicles as cheaper reflects the defining element in the parallel importer's business; he naturally buys in a country where, accessories being equal, list prices are lower than in the country into which he imports. This is, moreover, the phenomenon at the root of parallel imports and their sole commercial justification.

5. It should equally be stressed that Community law gives specific protection to parallel imports of products in general and motor vehicles in particular.

6. Such an approach is further confirmed by the Commission notice on procedures for the type-approval and registration of vehicles previously registered in another Member Sute, and not least by the case-law of the Court, which tends towards limiting administrative obstacles to the registration of cars in Member Sutes other than those in which they were purchased, guaranteeing adequate consumer protection against obstacles placed by manufacturers or dealers against issue of the certificate of compliance, and ensuring that the final consumer gets adequate after-sales service.

7. It is, therefore, in the light of the context above that it must be determined whether it is lawful and reasonable to prohibit a type of advertising which, in relation to can marketed by parallel importers, draws attention on the one hand to the cars' newness and on the other hand to their lower price.

8. It must also be remembered that it is one thing to make the purchase of a product attractive by extolling its features, and another thing to hide its precise characteristics at the moment the commercial transaction takes place.

9. The above considerations also apply in large measure to the other aspect of the advertising, regarding the cost of the product.

10. To deal, finally, with the point that Article 7 of the directive allows Member States to adopt provisions with a view to ensuring more extensive protection for consumers, I will say only that, in the present case, it is not a question of specific measures aimed at ensuring such protection, but of the interpretation of the general definitions given by the directive, and that, in any case, the rule cited cannot have the effect of justifying measures that specifically hinder advertising by parallel importers of motor vehicles when, as in this case, consumer protection can be achieved by measures that are less prejudicial to the marketing of the products in question.

11. For those reasons, I suggest that the Court reply to the question put by the national court as follows:

1 Original language: Iulian.

2 Official Journal L 250, p. 17.

3 Caie C-106/89 MiHeuing [1990] ECR I-4135, paragraph 8.

4 Cut C-362/88 GBINNO (19901 ECR I-667, paragraph 7; and Caic 286/81 Ooàhoeks Wagnatmaaudappij [1982] ECR 4375, paragraph 15.

5 OJ L 15, p. 16.

6 OJ 1985 C 17, p. 4.

7 OJ 1988 C 281, p. 9.

8 Cue 26/75 [1975] ECR 1367, paragraphs 7, 8, 9 and 12.

9 Cate 31/85 [1985] ECR 3933, paragraph 14.

10 Cate 406/85 [1987] ECR 2525. paragraph 12.

11 [1987] ECR 2717, paragraph 12 to 14.

12 By reason of Regulation (EEC) No 123/85, referred to above, which places a duty on producers co allow dealen to sell at least to the agents of the final consumer.

13 From that standpoint, I cannot share the assertion nude, in my view too peremptorily, in a recent judgment of the French Cour de Cassation of 19 April 1989, according to which a car can be described as new only if it has not already been registered. I do, however, agree with that court's decision to overturn the judgment of the appeal court which had acquitted the seller, and I do so in consideration of the fut that, in that particular case, the seller had not told the buyer at the time of the sale that the registration had already taken place.