Opinion of Advocate General

Mr President,

Members of the Court,

1. The present proceedings concern two questions referred by the French Cour de Cassation for a preliminary ruling and designed essentially to ascertain whether Articles 30 and 36 of the Treaty preclude the application of national legislation prohibiting the sale of optical appliances and corrective lenses by persons who do not hold an optician's certificate or an equivalent qualification.

2. The dispute in the main proceedings is between Laboratoire de Prothèses Oculaires (Laboratory for Eye Prostheses, hereinafter LPO), which markets contact lenses, intraocular implants and related products through its agents or distributors associated with it under licence, and four professional associations of opticians, namely Syndicat des Opticiens Français Indépendants (Union of French Independent Opticians, hereinafter SOFI), Groupement d'Opticiens Lunetiers Détaillants (Association of Retail Opticians supplying Spectacles, hereinafter GOLD), Union Nationale des Syndicats d'Opticiens de France (National Federation of Opticians' Trade Unions in France, hereinafter UNSOF) and Syndicat National des Opticiens d'Optique de Contact (National Union of Contact Lens Opticians, hereinafter SNADOC).

3. It should be noted first of all that Community law, as it now stands, contains no specific rules on the distribution of optical products. Consequently, the task of determining the relevant rules continues to be a matter for the Member States, subject — of course — to compliance with the provisions of the Treaty, in particular those on die free movement of goods.

4. As to the substance, all the opticians' professional associations agree that the rules at issue do not obstruct intra-Community trade inasmuch as they are indistinctly applicable and have neither the aim nor the effect of restricting trade but merely reserve the sale of contact lenses to qualified traders. The only condition for selling the products in question is that the commercial establishments in which they are sold must be managed by a person who holds an optician's certificate. However, the professional associations point out that LPO could perfecdy well market the products in question without necessarily changing its sales strategy or making any particularly costly arrangements. It would only have to ensure that its various sales outlets were managed by opticians.

5. The legislation at issue, like all provisions regulating the procedures for marketing products in general (where, how, when, by whom), is not intrinsically such as to make the marketing of imported products more costly than the marketing of domestic products. Clearly, therefore, for the purposes of this type of legislation, it is completely irrelevant whether or not marketing arrangements in the various Member States are similar.

6. Nevertheless, in principle, even cases such as this should be governed by the classic statement in Dassonville that any trading rules which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions. The Court has also held that a national measure does not fall outside the scope of the prohibition in Article 30 merely because the hindrance to imports which it creates is slight and because it is possible for imported products to be marketed in other ways.

7. In the first group of judgments, the Court held that the measures in question had no connection whatever with imports. In reaching that conclusion, the Court was influenced primarily by the fact that the measures were not intended to regulate intra-Community trade, did not concern other forms of marketing the product, or in any event allowed the possibility of selling it through other channels. It is scarcely necessary to mention the prohibition on the production and delivery of bread at certain hours (Oebel), the prohibition on the consumption of spirituous beverages in certain commercial establishments (Blesgen), or the prohibition on the sale of sex articles in unlicensed establishments (Quietlynn).

8. In a second group of judgments, on the other hand, the Court held that legislation on sales may, although it does not directly affect imports, be such as to restrict their volume simply because it affects marketing opportunities for the imported products and it must therefore be examined to ascertain whether it is compatible with Articles 30 and 36.

9. In a third group of judgments, on the prohibition of Sunday trading, the Court seems at first sight finally to have acknowledged that the principle laid down in Dassonville applies to trading rules of the kind at issue and that their compatibility with Article 30 is therefore subject to two conditions: a) the legislation in question must pursue an objective that is justified with regard to Community law, and b) the restrictive effects of such legislation must not exceed what is necessary to achieve the aim pursued or, to quote the form of words used in those judgments, must not exceed the effects intrinsic to rules of that kind.

10. Let us now return to the present case. As I have said, the legislation at issue reserves the sale of certain products (notably spectacles and contact lenses) to members of a given profession.

11. According to the case-law of the Court, rules of this type have an effect on trade that may in certain circumstances fall within the scope of Article 30.

12. The same verification is necessary in the present case. I would remind you, first, that the Court has consistently ruled that, in the absence of common or harmonized rules, it is for the Member States to decide on the degree of protection which they wish to afford to public health and on the way in which that protection is to be achieved, provided that they comply with the principle of proportionality.

13. This certainly applies to the provisions at issue in this case, which regulate the sale of products intended to correct a defect in a bodily function. Such provisions, which reserve to opticians the sale of instruments for correcting sight, are clearly designed to protect public health.

14. That said, it must point out that, in the case of measures pursuing the objective of protecting health, the Court usually considers whether they are proportionate to that objective under the terms of Article 36 rather than Article 30. In practice, the result is the same either way, in that the measures in question are in any case considered to be compatible with the rules on the free movement of goods. Indeed the Court expressly stated in its judgment in Aragonesa that, in determining whether a measure is justified on grounds of the protection of health, it is not necessary to consider whether that objective might also be in the nature of an imperative requirement to be taken into account for the purposes of the application of Article 30, since the protection of health is expressly mentioned amongst the grounds of public interest which are set out in Article 36.

15. In the light of the foregoing considerations, therefore, I suggest that the Court give the following answer to the questions referred to it by the French Cour de Cassation:

1 Original language: Italian.

2 It should however be pointed out in this connection that a proposal for a directive concerning medical devices (OJ 1991 C 237, p. 3) is at present before the Council. That directive, which harmonizes the national provisions for the safety and health protection of patients in order to guarantee the free movement of such devices within the internal market, also applies to contact lenses and optical wares in general.

3 In its judgment in Case 286/81 Oosthoek [1982] ECR 4575, for example, the Court expressly stated that the application of the Netherlands legislation to the sale in the Netherlands of encyclopaedias produced in that country is in no way linked to the importation or exportation of goods and does not therefore fall within the scope of Articles 30 and 34 of the EEC Treaty (paragraph 9 of the judgment).

4 Case 8/74 Dassonville [1974] ECR 837, paragraph 5.

5 See the judgments in Joined Cases 177/82 and 178/82 Van de Haar [1984] ECR 1797, paragraph 13, and Case 103/84 Commission v Italy [1986] ECR 1759, paragraph 18.

6 See in this connection the judgments in Case 155/80 Oebel [1981] ECR 1993, Case 75/81 Blesgen [1982] ECR 1211, Case 145/85 Forest [1986] ECR 3449, Case C-69/88 Krantz [1990] I-583, Case C-23/89 quietlynn [1990] ECR I-3059, and Case C-350/89 Sheptonhurst [1991] ECR I-2387.

7 Blesgen, referred to above, paragraph 9.

8 Quietlynn, referred to above, paragraph 11.

9 See in this connection the judgment in Oosthoek, referred to above, which is the first occasion on which this approach was adopted to legislation of the type at issue in the present case. See also the judgments in Case 382/87 Buet [1989] ECR 1235 and Case C-369/88 Delattre [1991] ECR I-1487. Following the same line of reasoning, the Court held that national legislation which restricts or prohibits certain forms of advertising may be such as to reduce the volume of imports: see, for example, the judgments in Case C-362/88 CBINNO [1990] ECR I-667 and Joined Cases C-1/90 and C-176/90 Aragonesa [1991] ECR I-4151.

10 See the judgments, referred to above, in Oosthoek, paragraph 15; Buet, paragraphs 7 and 8; and Delattre, paragraph 50.

11 Case C-60/89 Monteil and Samanni [1991] ECR I-1547 and Delattre, referred to above.

12 Case C-145/88 Torfaen [1989] ECR I-3851, Case C-312/89 Conforama [1991] ECR I-997, Case C-332/89 Marchandise [1991] ECR I-1027 and Case C-169/91 Council of the City of Stoke-on-Trent [1992] ECR I-6635.

13 Conforama and Marchandise, referred to above, paragraphs 12 and 13 respectively.

14 Council of the City of Stoke-on-Trent, referred to above, paragraph 15.

15 I note in this connection that LPO claims that most opticians sell spectacles only. However, the figures supplied by the parties do not agree: approximately 2000 out of 6000 sales outlets according to LPO, more than 4000 according to the professional associations.

16 Delattre, referred to above, paragraph 51.

17 See, most recently, the judgment in Aragonesa, referred to above, paragraph 16.

18 Delattre and Montea and Samanni as well as in Case 227/82 Van Bennekom [1983] ECR 3883 and in Case 35/85 Tissier [1986] ECR 1207.

19 Aragonesa, referred to above, paragraph 13.