Opinion of Advocate General Van Gerven delivered on 18 February 1993

1 Original language: Dutch.

2 In its written observations the Commission goes into detail as regards these former Spanish rules.

3 Boletín Oficial del Estado No 153 of 27 June 1986, p. 23427.

4 See the Report of the Judge-Rapporteur for the text of that article.

5 That licence is automatically cancelled if the film is not submitted within 200 days from the commencement of filmine. The ICAA may extend that period upon a reasonable request from those concerned.

6 See inter alia the judgment in Case 14/86 Pretore di Saló v Persons unknown [1987] ECR 2545 at paragraphs 15 and 16; see most recendy the judgment in Joined Cases C-330/90 and 331/90 López Brea and Hidalgo Palacios [1992] ECR I-323 at paragraph 5.

7 For the precise references to these directives see footnote 9 infra.

8 Judgment in Case 7/68 Commission v Italy [1968] ECR 423, in particular at p. 428; see more recently the judgment in Case C-2/90 Commission v Belgium [1992] ECR I-4431 at paragraphs 23 and 26; see the description of goods in Advocate General Jacobs's Opinion of 19 September 1991 in that case at paragraph 18.

9 Judgment in Joined Cases 60/84 and 61/84 Cinéthèque v Féderation Nationale des Cinémas Français [1985] ECR 2605 at paragraph 10. Cf. also the judgment in Case 18/84 Commission v France [1985] ECR 1339 at paragraph 12 in which the Court refused to describe printing work as a service since it leads directly to the manufacture of a physical article which, as such, is classified in the Common Customs Tariff ....

10 That is why, in the realization of the common market, Community action was directed first towards the elimination of import quotas for films from another Member State: see in particular Articles 5 to 10 of Council Directive 63/607/EEC of 15 October 1963 implementing in respect of the film industry the provisions of the General Programme for the abolition of restrictions on freedom to provide services (OJ, English Special Edition 1963-1964, p. 52). The second directive adopted in this sector requires the Member States by 31 December 1966 at the latest to abolish all import quotas for films of one or more Member States: Article 7 of the Second Council Directive of 13 May 1965 implementing in respect of the film industry the provisions of the General Programmes for the abolition of restrictions on freedom of establishment and freedom to provide services (OJ, English Special Edition 1965-1966, p. 62). The third paragraph of Article 7 makes it clear that abolition of import quotas gives the right to import prints, dupes and advertising material without restriction.

11 Intra-Community trade in materials, sound-recording media, films and other material products necessary for the production of a film naturally comes under the Treaty provisions with regard to movement of goods: see, with regard to products used for the transmission of television signals, the judgment in Case 155/73 Sacchi [1974] ECR 409 at paragraph 7; see also the judgment in Case C-260/89 Elliniki Radiophonia Tileorassi (ERT) [1991] ECR I-2925 at paragraph 14. Moreover Photographic and cinematographic goods, including cinematograph film are the subject of a special chapter of the Common Customs Tariff, namely Chapter 37: see Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1, at pp. 249 to 252.

12 Judgment in Case 262/81 Coditel v Ciné-Vog Films (Coditel II) [1982] ECR 3381 at paragraph 11, which refers to the judgment in Case 62/79 Coditel v Ciné-Vog Films (Coditei I) [1980] ECR 881 at paragraph 12.

13 See the definition of distribution and renting of films in Article 2(2) of Council Directive 68/369/EEC of 15 October 1968 concerning the attainment of freedom of establishment in respect of activities of self-employed persons in film distribution, OJ, English Special Edition 1968 (II), p. 520.

14 As regards the aspect of remuneration or consideration as a characteristic of the Community concept of services and more generally of the concept of economic activity within the meaning of the EEC Treaty see in particular the judgments in Case 13/76 Donà v Mantero [1976] ECR 1333 at paragraph 12; in Case 196/87 Steymann v Staatssecretaris van Justitie [1988] ECR 6159 at paragraph 14; and in Case C-159/90 Society for the Protection of Unborn Children Ireland v Grogan [1991] ECR I-4685 at paragraphs 16 to 21.

15 Article 59 is also applicable, according to the so-called tourist guide judgments, where the person supplying the services and the person for whom they are intended are established in the same Member State, but the services themselves are offered on the territory of another Member State: judgments in Case C-154/89 Commission v France [1991] ECR I-659 at paragraph 10, in Case C-180/89 Commission v Italy [1991] ECR I-709 at paragraph 9 and in Case C-198/89 Commission v Greece [1991] ECR I-727 at paragraph 10.

16 Judgments in Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377 at paragraph 10; and in Case 186/87 Cowan v Trésor Public [1989] ECR 195 at paragraph 15.

17 Judgment in Case C-76/90 Säger [1991] ECR I-4221 at paragraph 13.

18 See the judgment in Case 205/84 Commission v Germany [1986] ECR 3755 at paragraph 21; see also the judgment in Case C-221/89 Factortame and Others (Factortame II) [1991] ECR I-3905 at paragraph 20.

19 Cf. the judgment in Case 33/74 Van Binsbergen [1974] ECR 1299 at paragraph 25; see more recently inter alia the judgment in Commission v Germany cited in the previous footnote, at paragraph 25; the so-called tourist guide cases previously cited, Commission v France at paragraph 12, Commission v Italy at paragraph 15 and Commission v Greece at paragraph 16; the judgment in ERT, cited in footnote 10, at paragraph 19; the Mediawet judgments in Case C-353/89 Commission v Netherlands [1991] ECR I-4069 at paragraph 14 and Case C-288/89 Collectieve Antennevoorziening Gouda [1991] ECR I-4007 at paragraph 10; and in Case C-106/91 Ramrath [1992] ECR I-3351 at paragraph 27.

20 Säger judgment at paragraph 12.

21 Cf. the Mediawet judgment Commission v Netherlands at paragraph 23.

22 Cf. judgments in Case 352/85 Bond van Adverteerders v Netherlands State [1988] ECR 2085 at paragraph 32; in Collectieve Antennevoorziening Gouda at paragraph 11; in Commission v Netherlands at paragraph 15.

23 Apparently the report referred to is the Rapport fait au nom de la commission de la jeunesse, de la culture, de l'éducation, de l'information et des sports sur la promotion du cinéma des pays de la Communauté, drawn up by Mrs Marie-Jeanne Pruvot, Parlement européen, Documents de Séance 1983-1984, 15 July 1983, PE 76.975/final.

24 Judgment in Case 30/77 Regina v Bouchereau [1977] ECR 1999 at paragraph 35.

25 See the judgment in Case 7/61, Commission of the EEC v Italy [1961] ECR 317, in particular at p. 329. For more recent confirmations of this principle, see inter alia the judgments in Case 238/82 Duphar v Netherlands [1984] ECR 523 at paragraph 23; in Case 288/83 v Ireland [1985] ECR 1761 at paragraph 28; and in Case 103/84 Commission v Italy [1986] ECR 1759 at paragraph 22.

26 Judgment in Bond van Adverteerders, paragraph 34; see also the Mediawet judgments: the Collectieve Antennevoorziening Gouda, paragraph 11 and the Commission v Netherlands judgment, paragraph 15.

27 Judgments in Case 118/86 Openbaar Ministerie v Nertsvoederfabriek Nederland [1987] ECR 3883 at paragraph 15; and in Case 72/83 Campus Oil Limited v Minister for Industry and Energy [1984] ECR 2727 at paragraph 36; see also the Opinion of Advocate General Mancim in Case 238/82 Duphar v Netherlands [1984] 546 at pp. 549 and 550.

28 Judgment in Nertsvoederfabriek Nederland, paragraph 15.

29 Judgment in Bond van Adverteerders, paragraph 36.

30 Judgment in Case 41/74 Van Duyn [1974] ECR 1337 at paragraph 18; Bouchereau judgment, paragraph 34.

31 Bond van Adverteerders judgment, paragraph 37.

32 Judgment in Case C-211/91 Commission v Belgium [1992] ECR I-6757, paragraph 9.

33 See the Opinion of Advocate General Tesauro in this case, delivered on 24 November 1992, section 5, [1992] ECR I-6769.

34 Judgment in Commission v Belgium, paragraph 10.

35 That may also be seen clearly from the passage, quoted by the Commission in its written observations, from the statement of the reasons on which the draft of Law No 3/80 was based, that is, the predecessor of the Decree-Law.

36 Article 3(p) of the EEC Treaty, as amended by Article G of the Treaty on European Union. The text of the Treaty was published in OJ 1992 C 191, p. 1.

37 Judgment in Commission v Italy, previously cited in footnote 14, at paragraph 20; confirmed by the Court in the Mediawet judgments: in Collectieve Antennevoorziening Gouda at paragraph 14 and in Commission v Netherlands at paragraph 18.

38 Judgment in Commission v France, previously cited in footnote 14, at paragraph 17; judgment in Commission v Greece, previously cited in footnote 14, at paragraph 21; since then also confirmed in the Mediawet judgments in the same paragraph of the grounds of judgment as those referred to in the preceding footnote.

39 Judgment in Collectieve Antennevoorziening Gouda at paragraph 23; judgment in Commission v Netherlands at paragraph 30; that paragraph has been expressly confirmed y the Court: judgment in Case C-148/91 Vereniging Veronica Omroep Organisatie [1993] ECR I-487, at paragraphs 9 and 10.

40 Judgment in Case C-379/87 Groener v Minister for Education and the City of Dublin Vocational Education Committee [1989] ECR 3967 at paragraph 19.

41 Cinéthèque judgment, paragraphs 23 and 24.

42 Judgment in Case C-169/91 B&Q [1992] ECR I-6635 at paragraph 11; cf. the similar, but slightly different expression in the previous Sunday-closing judgments: those in Case C-145/88 Torfaen Borough Council v B&Q [1989] ECR 3851 at paragraph 14; in C-312/89 Conforama and Others [1991] ECR I-997 at paragraph 11; and in Case C-332/89 Marchandise and Others [1991] ECR I-1027 at paragraph 12.

43 It may be recalled that in accordance with Article 27(1) of the Universal Declaration of Human Rights, all persons are entitled to participate freely in the cultural life of the Community and to enjoy the arts. The Court has consistendy held that it may draw inspiration from such guidelines provided by international treaties for the protection of human rights on which the Member Sutes nave collaborated or of which they are signatories; see the judgment in Case 4/73 Nold v Commission [1974] ECR 491 at paragraph 13; ERT judgment, paragraph 41.

44 See also, with regard to this proportionality test, apart from the passages previously quoted from the Groener and Cinéthèque judgments, the judgments in Collectieve Antennevoorziening Gouda at paragraphs 24 and 25 and in Commission v Netherlands at paragraphs 31, 42 and 43.

45 See supra section 17 and the judgments cited in footnote 26. See also the judgment in Veronica Omroep Organisatie, previously cited, where the use of an economic prohibition was accepted as a means of attaining an objective of cultural policy, at paragraph 10 et seq.

46 The position remains, however, that it is appropriate to arrange for such measures to be as far as possible of a transfrontier nature, for example by establishing literature or film prizes for a linguistic area common to various Member States. By such means the stress is placed, as required by the Treaty on European Union, (section 22 above) on the manner in which a country's own culture forms part of a common cultural heritage.

47 See, as regards the first aspect, the references in footnote 13. With regard to the second aspect reference may be made inter alia to the judgments in Case C-41/90 Höfner and Eker [1991] ECR I-1979 at paragraphs 37 to 39; in the López Brea case referred to in footnote 5, at paragraph 7; and in Case C-60/91 Batista Morais [1992] ECR I-2085 at paragraph 7.

48 See the Coditei I and Coditei II judgments at paragraphs 14 and 15 and paragraph 13 respectively.

49 See Advocate General Warner's Opinion in the first Coditei case and Case 52/79 Debauve [1980] ECR 860, at p. 878; cf. the Opinion of Advocate General Sir Gordon Slynn in the Cinéthèque case [1985] ECR 2606, at p. 2615.

50 L. Defalque, Les restrictions quantitatives et les mesures d'effet équivalent in Commentaire Mégret. Le droit de la CEE, I, Brussels, Editions de l'Université de Bruxelles, 1992, (201), pp. 272 and 273; P. J. G. Kapteyn and P. Ver- Loren van Themaat, Inleiding tot het recht van de Europese Gemeenschappen, Deventer, Kluwer, 1987, p. 294; see also the English edition of that book by L. W. Gormley: Introduction to the Law of the European Communities, Deventer-Boston, Kluwer Law Sc Taxation, 1989, p. 450.

51 In my view a similar enlargement may be made with regard to the ground of the protection of the health and life of humans, animals or plants set out in Article 36, which is covered by the wider ground of protection of the environment. Cf. from that point of view the judgment in Case C-2/90 Commission v Belgium [1992] ECR I-4431, in which the solution might perhaps also have been based on this broadly conceived exception to Article 36.

52 In the Coditei II judgment previously cited, the Court itself stated that the protection of artistic and intellectual property is to be assimilated to the narrower expression of protection of industrial and commercial property used in Article 36.