Opinion of Advocate General Tesauro delivered on 27 October 1993

1 Original language: Italian.

2 Berufsordnung of 22 November 1955, as amended on 9 April 1986.

3 Bundesgesetzblatt ƒ, p. 547.

4 Those arc, in particular, foodstuffs and items for the care of babies and the sick, dietetic foodstuffs, toiletries and cosmetics, herbicides and plant-protection products and products for animal feed.

5 See, for example, the judgment in Case 111/76 Van den Hazel [1977] ECR 901, paragraph 4 of the grounds

6 Joined Cases 266/87 and 267/87 The Queen v Royal Pharmaceutical Society of Great Britain [1989] ECR 1295, paragraph 14.

7 See p. 5 and 6 of the order for reference.

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

9 On that point, it is interesting to note that the national court thought that it is immaterial whether the rules in question have the effect of reducing the volume of imports of the products concerned or merely shift turnover from pharmacists to other suppliers, since the intention is to prevent, in addition to adverse effects on imports in the form of an overall reduction in the volume of imports of certain goods, an alteration of the patterns of trade or a channelling of imports (p 6 and 7 of the order for reference).

10 The same remarks hold pood in fact for all restrictions applicable without distinction which relate to the opportunity to advertise certain goods. Except where they arc such as to place imported goods at a disadvantage and thus constitute de facio discrimination (see the judgment in Case 152/78 Commission v France [1980] ECR 2299), restrictions of that type affect the opportunity to sell the products concerned in exactly the same way, whether the goods arc domestic or imported.

11 In addition to Marenco: Pour une Interprétation Traditionnelle de Mesure d'effet equivalent à une restriction quantitative, in CDE, 1984, p. 291 et seq., and White: In search of limits to Article 30 of the EEC Treaty, in CMLRev, 1989, p. 234 et seq., sec among the latest and most important publications on the nutter concerned. Gormcly, in CMLRev, 1990, p. 141 et seq.; Mortclmans, Article 30 of the EEC Treaty and legislation relating to market circum stances: time to consider a new definition? in CMLRev, 1991, p 115 et seq., Steiner, Drawing the line: Uses and abuses of Article 30 of the EEC Treaty, in CMLRev. 1992, p. 749 et seq., Chalmers, Free movement of goods within the European Community: an unhealthy addiction to Scotch whisky, in International and Comparative Law Quarterly, 1993. p. 269 el seq.

12 A measure concerning product advertising mav righllv be included among measures relating to how It is clear that advertising, since it encourages consumption, constitutes the most effective means ol promoting sales and that, for that reason, u may have an appreciable effect on demand and therefore on sales.

13 Case C-271/92 [1993] ECR I-2899.

14 To that effect, sec lhe judgments in Case 155/80 Oebel :1981; UCR 1993; Case 75/81 Blesgen [Ì9S2] ICR 1211, Case C-23/89 Quietlynn and Richardt 1991: KCR I-3059. and Case C-350/89 Shepionhitrit [1991] ; I-.CR I-2387.

15 Oebel, cited above, paragraph 20

16 Bleigen, cited above, paragraph 9

17 Quietlynn. cited above, paragraph 11. tu the same elicci, sec Sheplonbnrst, cited above.

18 The Court confines itself to establishing that the prices imposed are not such as to make it impossible or more difficult to sell imported goods, that is to say that they arc not such as to put imports at a disadvantage (sec, inter alia, the judgments in Case 188/86 Lefivre [1987] ECR 2963 and Case C-347/88 Commission v Greece [1990] ECR I-4747, concerning maximum price schemes; and also Joined Cases 80/85 and 159/85 Nederlandse Bakkerij Stichting and Others v Edah [1986] ECR 3359, and Case C-287/89 Commission v Belgium [1991] ECR I-2233, concerning minimum price schemes). On the contrary, it is obvious that a mechanical application of the Dassonville principle would not preclude a price-control system, affecting the conditions of supply and demand, from being such as to be able to bring about a reduction in the volume of sales and thus (also) in the volume of imports.

19 Of significance in this respect is Forest, in which the issue was a system of quotas at the level of flour production. The Court found that it appeared that such a system in fact has no effect on wheat imports and is not likely to impede trade between Member States. The reason is that, even though a restriction on the quantities of wheat which may be milled may prevent millers from buying wheat, millers are free to buy imported wheat to cover part or all of their requirements (judgment in Case 148/85 Direction Générale des Impôts v Forest [1986] ECR 3449, paragraph 19). Sec also the judgments in Case C-69/88 Krantz v Ontvanger der Directe Belastingen [1990] ECR I-583, paragraph 11, and Case C-93/92 GMC Motorradcenter [1993] ECR I-5009, paragraph 12, where the Court ruled that any restriction on imports caused by the national measures in question, respectively the power of the tax authorities to seize goods sold with reservation of title and the duty to provide prccontractual information to purchasers of motorcycles about points relating to the warranty, were too uncertain and indirect to be considered liable to hinder trade between Member States.

20 Judgment in Case C-145/88 Torfaen Borough Council v B&Q [1989] ECR I-3851; Case C-312/89 Conforama and Others [1991] ECR I-997 and Case C-332/89 Marchandise and Others [1991] ECR I-1027; also judgment in Case C-169/91 Council of the City of Stoke v B&Q [1992] ECR I-6635.

21 Conforama, cited above, paragraph 8.

22 Here, I cannot however avoid pointing out that the approach under consideration in paragraphs 12 and 13 (measures in themselves outside Article 30) cannot be thought to be rendered obsolete by that development. The Quietlynn judgment is in fact more recent than the first Sunday trading judgment and Sheptonhurst more recent than the Conforama and Marchandise judgments: the two approaches thus overlap chronologically, which helps increase confusion.

23 Conforamn and Marchandise judgments referred to above, at paragraphs 12 and 13 respectively.

24 Judgment in Council of the Cay of Stoke-on Trent, referred to above, at paragraph 15

25 To that effect, sec Case 286/81 Oosthoek's Uitgeversmaatschappij [1982] ECR 4575, which is the first time the approach under discussion was applied to this type of legislation. See also: Case 382/87 Buet and Another v Ministère Public [1989] ECR 1235; Case C-369/88 Delattre [1991] ECR I-1487: Case C-60/89 Monteil and Samanni [1991] ECR I-1547; Case C-239/90 Boscher [1991] ECR I-2023 and Case C-271/92 Société Laboratoire des Prothèses Oculaires, mentioned above. Following the same line of argument, the Court has held provisions of national law prohibiting or restricting certain forms of advertising to be capable or restricting the volume of imports. See in this connection Oosthoek, referred to above; Case C-362/88 GB-INNO-BM [1990] ECR I-667; Case C-241/89 SARPP [1990] ECR I-4695; Joined Cases C 1/90 and C-176/90 Aragonesa de Publicidad [1991] ECR I-4151, and Case 126/91 Schulzverband gegen Unwesen in der Wirtschaft e. V. v Yves Rocher [1993] ECR I-2361

26 Oesthoek, cited above, at paragraph 15.

27 See the judgments in Buet, Delattre and Boscher, referred to above, at paragraphs 8, 50 and 14 respectively.

28 It is worth pointing out that in the Delattre and Boscher cases, unlike Oosthoek and Buet, the sales methods were entirely lawful. The relevant legislation was, none the less, an obstacle to trade, cither because it required the prior entry of the seller in the trade register at the place of the auction (Boscher), or because the kind of products concerned, lawfully marketed in one Member State as foodstuffs or cosmetic products, were classified in the importing Member State as medicinal products, as a result of which they fell within the sales monopoly reserved to pharmacists and could not be sold by mail-order (Delattre). That last case, on a true reading, discloses rather a Cassis dc Dijon situation, since it actually deals with disparity in legislation which, in the last analysis, affects the very presentation of the product.

29 See paragraph 15 of the Oosthoek judgment, paragraph 29 of the SARPP judgment and paragraph 10 of the Yves Rocher judgment.

30 Judgment in GB Ih'NO, referred lo above- In thai judg mem, the Court stressed the fact that freedom for consum ers is compromised ii thev arc deprived of access to adver using available in the country where purchases arc made (paragraph 8).

31 Sec the judgment in Case C-60/89 Momeli and Siimanni ;1991; F.CR I-1547, and Delmm cued above (both con ccrning the monopoly reserved to pharmacists), and also the most recent judgment in Socicle Laboratoire de Proíbe id Ocitlatrei, cited above, on the opticians' monopoly

32 Aragonem, cited above.

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

34 Yves Rocher, cited above, paragraph 21.

35 From thai viewpoint, it is plain that the effect of rules of that kind is, at most, to channel sales, in so far as product X may be sold only in shops and not by other means.

36 As a matter of fact, the case law of the Court docs not expressly state whether the Member State of origin means that of the product or of the producer. It is likewise evident that the terms of the problem change in relation to one hypothesis or the other.

37 See sections 16 to 18

38 Besides the Sunday trading cases, 1 refer to Delattre and Monleti and Samanm for the medicinal products monopoly aspect; the l.PO judgment on the opticians' monopoly; to the Aragonesa Įudgmcnt. With regard on the other liand to the group of cases on sales promotion methods, I refer to what I said in footnote 3Ü

39 Case 20/87 Cauthard [1987] h C R 4879. To the same effect, sec Case 204/87 Bekaerl 1988 KCR 2029.