Opinion of Advocate General Van Gerven delivered on 18 November 1992

1 Original language: Dutch.

2 For the text of this provision, I can refer to the Report for the Hearing.

3 Sec the judgment in Case 31/78 Bussone [1978] ECR 2429, paragraphs 38 to 40, and the judgment in Case 155/80 Oebel [1981] ECR 1993, paragraph 7.

4 Sec the judgment in Joined Cases 185/78 to 204/78 Van Dam 1979J ECR 2345, paragraph 10. the judgment in Oehel. paragraphs 9 and 10, and the judgment in Case 126/82 Smit [1983] ECR 73, paragraph 27.

5 The fact that sale at a loss may, in certain specific circum stances, be classified as an abuse of a dominant position for the purpose of Article 86 of the Treaty is clear from the judgment of Court in Case C-62/86 Akzo v Commission [1991] ECR I-3454, in which the Court, in paragraphs 69 to 72, laid down the relevant criteria.

6 Sec the judgment in Case 311/85 Vereniging van Vlaamse Reisbureaus [1987] ECR 3801, paragraphs 23 and 24, the judgment in Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16, and the judgment in Case 332/89 Marchandise [1991] ECR I-1027, paragraph 22.

7 Judgment in Case 82/77 — van Tiggele [1978] ECR 25, paragraph 16.

8 Judgment in Case 286/81 Oosthoek [1982] ECR 4575, paragraph 15; for recent applications, see inter alia the judgments in Case 382/87 Buet [1989] ECR 1235, paragraphs 7 and 8, Case C-362/88 GB-Inno-BM [1990] ECR I-667, paragraph 7, Case C-369/88 Delattre [1991] ECR I-1487, paragraph 50, Case C-239/90 Boscher [1991] ECR I-2023, paragraph 14, and Joined Cases C-1/90 and C-176/90 Aragonesa [1991] ECR I-4151, paragraph 10.

9 In any event, the judgment in van Tiggele concerned a different issue, which was whether the laying down of minimum prices by way of regulation was compatible with Article 30.

10 There is certainly a tendency in the case-law of the Court not to regard national rules whose scope of application is limited to the sale of products at retail trade level as measures having equivalent effect, within the meaning of Article 30 of the Treaty: for an illustration, see inter alia the judgment of the Court in Oebel (regulation of the times of delivery of bread to individual buyers and retailers), the judgment in Case 75/81 Blesgen [1982] ECR 1211 (statutory prohibition on offering for sale for consumption on the premises of alcoholic beverages of a certain strength) and the judgment in Case C-23/89 Quietlynn [1990] ECR I-3509 (prohibition on retailing sex articles without a licence). In the present case, however, the national rules also take effect at the level of resale, tliat is to say of importation and wholesale.

11 This has been settled case-law since tfic judgment in Case 120/78 Rewe [1979] ECR 649, paragraph 8.

12 See point 8 of the observations of the French Government, which deals with the compatibility of the ban with the competition rules of the Treaty.

13 Those grounds have already been mentioned by the Court in the Cassis de Dijon judgment: see the judgment in Rewe, paragraph 8.

14 It is not certain that this case is completely covered by the exceptions provided for by the French prohibition, in particular, paragraph II of Article 1 of the Law of 2 July 1963, such as sales of perishable products, sales carried out on cessation or change of a business, and sales of products which arc out of season, out of fashion or technically obsolete.