Opinion of Advocate General
Mr President,
Members of the Court,
1. Is Article 30 of the Treaty a provision intended to liberalize intra-Community trade or is it intended more generally to encourage the unhindered pursuit of commerce in individual Member States?
2. Paragraph 10(15) of the Professional Code (Berufsordnung), adopted — pursuant to the Law on Professional Associations — by the Landesapothekerkammer Baden-Württemberg (the pharmacists' professional association for the Land Baden-Württemberg, hereinafter the Professional Association), lays down a prohibition on excessive advertising for all the non-medicinal products which, under Paragraph 25 of the Apothekenbetriebsordnung (Rules Governing the Operation of Pharmacies) of 9 February 1987, may also be sold in pharmacies, provided that they do not jeopardize the proper operation of the pharmacy (Paragraph 2(4) of the Apothekenbetriebsordnung). In essence, the effect of the provision at issue is to prohibit all forms of advertising outside pharmacies.
3. A few lines will suffice to set out the facts giving rise to these proceedings. Mrs Ruth Hünermund and the twelve other applicants in the main action, who all own pharmacies in the Land Baden-Württemberg in which they sell quasi-pharmaceutical products, have advertised and intend to continue advertising the products at issue. They therefore brought an action before the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg), claiming that Paragraph 10(15) of the Professional Code in question was incompatible with Community law, in particular with Articles 30 and 36 of the Treaty.
4. Before dealing with the substance of the question, I must dwell briefly on some preliminary matters raised by the Professional Association.
5. The defendant in the main proceedings also claims that in this case the conditions necessary for the application of Article 30 are not satisfied, since the rule of professional conduct cannot be classified as a State measure for the purposes of Article 30. That conclusion is not invalidated, again according to the defendant, by the fact that in its judgment in Royal Pharmaceutical Society of Great Britain, the Court ruled that a measure adopted by a professional body constituted a State measure, since the Royal Pharmaceutical Society had the power to impose disciplinary sanctions, including removal from the register, whereas in the German system that sanction may be imposed only by the competent authorities of the Land.
6. Now we come to the subject-matter of the question submitted to the Court, a question which, as worded, relates solely to whether the disputed measure is justified on the basis of Article 36 or of imperative requirements: the national court is in no doubt that the measure is one that is in principle incompatible with Article 30. It is on the contrary indisputable that it must first of all and in any event be ascertained whether the measure in question displays all the features required for it to be a measure having equivalent effect to quantitative restrictions in so far as it is capable, in the well-known Dassonville formula, of hindering, directly or indirectly, actually or potentially, intra-Community trade.
7. The measure at issue, applicable without distinction and completely neutral as regards domestic products and imported products, prohibits a specified class of traders, pharmacists, from advertising a specified class of non-medicinal products which may also be sold in pharmacies. Other operators — manufacturers, importers, and retailers other than pharmacists — are however absolutely free to advertise those same products.
8. Is the resulting reduction in trade — remote, indirect and contingent, and in any case merely hypothetical — sufficient to bring the measure within the ambit of Article 30?
9. In short, the question is whether measures which govern conditions for marketing (who, where, when, how) and which, merely by affecting the supply of (for example, by a channelling of imports) or demand for (by restricting opportunities to advertise) the products concerned, including imports, may bring about a decrease in sales, none the less fall within the scope of Article 30. That is so irrespective of whether there actually is a reduction in imports or whether, on the contrary, and to what extent, repeal of the disputed measure might have a positive effect on sales and consequently on imports.
10. When the problem is expressed in those terms, it is clear that the measure at issue cannot constitute a barrier to trade between Member States, where barrier means a hindrance, a difficulty of access to the market such as to affect imports in particular: when, that is, the measure concerned is one which in some way — at least because it acts as a deterrent — constitutes a barrier to the free movement of goods.
11. The reply to that question clearly calls for a more general consideration of the scope of Article 30 as regards rules such as those at issue, in particular with respect to the criteria which make it possible to classify a certain provision of national law as a measure having equivalent effect. In other words, and even if it means reversing previous opinions expressed on the subject, I believe that it is necessary to consider whether Article 30, and with it the Dassonville test, may be construed as including in the concept of measures having equivalent effect the following measures as well:
Context of the case-law
12. The first group consists of those decisions in which the Court has considered that the rules in question had no connection whatever with imports and in any case were not capable of hindering trade between Member States. The Court came to that conclusion by stressing the fact that the measures concerned were not designed to control trade, did not concern other forms of marketing the same product or, in any event, left open the possibility of sales through other channels.
13. In the cases just referred to, the Court therefore regarded as immaterial, for the purposes of the applicability of Article 30, a possible reduction in imports as a result of a reduction in sales opportunities affecting domestic and imported products to the same extent. It goes without saying that the prohibition on consumption on the premises of beverages with a high alcoholic strength {Blesgen) or on the sale of sex articles in unlicensed establishments (Quietlynn) arc undoubtedly such as to be capable of having an adverse effect on demand and thus of affecting the volume of imports, it being (from that point of view) quite irrelevant that the prohibition in question does not concern other forms of marketing of the same product or that sales are possible in licensed establishments.
14. A second group comprises those judgments in which the Court has recognized that the prohibition under Article 30 applies in principle also to measures of the kind at issue in this case, confining itself however to a rather atypical examination of their proportionality.
15. Given that the intention of ensuring that working and nonworking hours arc so arranged as to accord with national or regional socio-cultural characteristics is legitimate, with respect to Community law, the Court confined itself however in those judgments to stating that the restrictive effects on trade which may stem from such rules do not seem disproportionate to the aim pursued, and in its most recent judgment in the matter, went on to make it clear that, in order to verify that the restrictive effects of such rules do not exceed what is necessary to achieve the aim in view, it must be considered whether those effects arc direct, indirect or purely speculative and whether those effects do not impede the marketing of imported products more than the marketing of national products.
16. Finally, there is a third group comprising those decisions in which the Court, because it considered that the provisions concerning sales, while not directly affecting imports, were nevertheless capable of hindering intra-Community trade, in so far as they were liable to affect possibilities for distributing (also) imported goods and hence to lead to a reduction in the volume of imports, undertook the classical examination designed to ascertain, first, whether the measures in question pursued public-interest objectives recognized by the Community legal order (consumer protection, health protection etc., according to the circumstances) and, secondly, whether the measures adopted were proportionate to the (legitimate) objective pursued.
17. In the same way, certain rules restricting opportunities to advertise certain products have been held to fall within the ambit of Article 30 in so far as it cannot be ruled out, as the Court has stressed, that to modify the form or the content of an advertising campaign depending on the Member States in which it is carried out may constitute an obstacle to imports, even if the legislation in question applies to domestic products and imported products without distinction.
18. To sum up, then, the Court has subjected to verification of their compatibility with Articles 30 and 36 those measures relating to marketing which, because they prohibit a certain method of selling or advertising, are (or can be) such as to make access to the market more difficult for the traders concerned, who are obliged to discontinue a method which they lawfully use in the Member State of origin.
19. The Court arrived, however, at the same result (incompatibility in principle, subject to verifying whether there is justification under Article 36 or whether there are imperative requirements) in the case of rules in relation to which any disparity between laws is irrelevant, both for the product as such and for the trader marketing it.
General observations on the case-law
20. That, then, is the context of the case-law. If it is desired to draw conclusions, it may be said that the answers given by the Court to one and the same question, that is to say, whether general measures concerning the manner in which trading activity is pursued (who sells what, and when, where and how sales can be effected) and having therefore only an indirect connection with imports, nevertheless fall within the scope of Article 30 as measures having equivalent effect to quantitative restrictions on imports, are essentially three in number:
21. Of course, it might be thought that the different replies reflect the varying degree of the effects (if any), as though a de minimis test were being applied; that, however, is belied by the Court's case-law, according to which 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. Quite recently, moreover, the Court has again affirmed that, with the exception of rules having a purely hypothetical effect on intra-Community trade, it is established that Article 30 does not draw any distinction, according to the degree of their effects on that trade, between measures which can be classified as measures having equivalent effect to a quantitative restriction.
22. In any event, it does not seem to me that the problem before us can be delimited and resolved from the point of view of the degree and/or hypothetical nature of the effects, but rather from that of their specific nature, which, when one thinks about it, can be determined only by a disparity between the laws on the matter.
23. Over and above such a hypothesis, which would have in any event to be verified case by case, I have to confess to being unable to point to anything which could explain the different approach adopted by the Court in the cases first examined. I would observe that both the prohibition on the sale of sex articles in unlicensed establishments and that on selling medicinal products outside pharmacies lead to a channelling of sales. Again, both the disputed measure in Oebel and those challenged in the Sunday trading cases mean that it is not possible to sell at certain hours (or on certain days).
24. The difference in approach in cases such as Sunday trading, on the one hand, and those concerning pharmacists' and opticians' monopolies, and the advertising ban considered in Aragonesa on the other, is even less comprehensible. Starting from the identical premiss (measures capable of reducing the volume of sales and, consequently, of imports, in situations where any disparity of laws is of no importance), the Court has arrived at substantially different results: in the first case, as we have seen, examination centred on the reasonableness of the measure in question having regard to the effects it might have on imports, and in the second, a classical Article 36 verification.
Limits of the definition of measure having equivalent effect
25. The inconsistency and contradictions pointed out increase the need to achieve clarity by means of criteria that are as precise and unambiguous as possible and, even more importantly, of a conscious and explicit basic choice regarding the need for (or expediency of?) review of the type of measures in point here for their conformity with Article 30. This is necessary, furthermore, in order to prevent confusion arising in the minds of the operators concerned who, as matters now stand, are encouraged to challenge, on the basis of Article 30, all kinds of measures (restrictive, of course, of their freedom to trade), merely because an effect on imports cannot be altogether ruled out.
26. Such an interpretation does, admittedly, constitute, in part at least, a change of mind as compared with views I have already expressed on the same subject (Opinions in Bnet, Delattre, Monteil and Samanni, SARPP, Boscher and Société Laboratoire de Prothèses Oculaires).
27. Article 30 would otherwise come to be relied on and used, not for its proper purposes but in order to enable certain traders to avoid the application of national provisions which, in regulating a given activity, restrict freedom to trade, whether by imposing opening hours on shops, or by requiring prior authorization in order to carry on a given activity (why not, even a simple trading licence), or else by imposing professional requirements (sometimes technical as well) on those intending to sell certain classes of goods.
28. In short, I am persuaded that the Dassonville test neither can nor should be so construed as to include in the definition of measures having equivalent effect even those national laws which, because they affect supply and/or demand and therefore, but on that account alone, the volume of sales, may bring about a reduction in the volume of imports, that is to say, where there exists no obstacle whatsoever to the movement within the Community of the products concerned and no connection whatsoever with the disparity between the laws in question.
29. To return to the measure at issue in this case, it remains only to point out in the light of the foregoing observations that such a measure:
30. If, however, the Court were to find that the measure concerned is such as to hinder trade within the meaning of Article 30, it could not be wholly justifiable on grounds of imperative requirements or of any of the derogations laid down in Article 36. The justification put forward in this case, namely that it is necessary to protect human health, would in fact appear to be entirely unfounded.
31. It is on the other hand plain that such a prohibition is at least disproportionate to the objective supposedly pursued, since — as is apparent from the documents in the case — the sale of the products concerned is permitted only in so far as it does not jeopardize the proper operation of the pharmacy. The aim in question may, consequently, be attained by, for example, either placing a ceiling on sales of non-medicinal products, or imposing disciplinary measures on those pharmacists who might concentrate their activity on selling those products.
32. I therefore propose that the Court reply as follows to the question referred to it by the Verwaltungsgerichtshof Baden-Württemberg:
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.