Opinion of Advocate General Van Gerven delivered on 16 March 1994

1 Original language: Dutch.

2 For the content and origins of and recent amendments to the Winkelsluitingswet, see M. R. Mok, De winkeldeur op een kier, Sociaal-economische wetgeving, 1993, pp. 30 to 39.

3 Article 3(g) of the EC Treaty corresponds to Article 3(f) of the EEC Treaty mentioned in the national court's questions.

4 Article 1(1) of the Winkelsluitingswet defines a shop as an enclosed space to which the public have access in which goods are sold to private individuals, provided that that space does not form part of a means of transport.

5 The legislation has been amended with effect from 1 January 1993; at present the maximum number of hours for which a shop may be open each week is 55 and shops may be open from 6 am to 6.30 pm on Monday to Friday and from 6 am to 6 pm on Saturday. Compulsory Sunday closing continues in force unabated.

6 Decree implementing Article 10(3) of the Winkelsluitingswet 1976.

7 Pursuant to that decree, municipalities may, for example, grant individual exemptions to shops opening in the evening.

8 Sales by museums are not subject to any restriction as to range of goods which may be offered for sale, on the ground — the Netherlands Government states — that the sale of goods in museums is merely an ancillary activity. The range of goods which may be offered for sale in chemists' shops is not limited either, the assumption being that the sale of medicinal products is the core activity. In addition, chemists' shops operate on the basis of an schedule of opening hours, with the result that they make only limited use of the possibility afforded by the Law to open outside normal opening hours. Lastly, the sale of newspapers and periodicals qualifies for the derogation only on condition that the shop concerned sells only or chiefly such products.

9 Staatsblad, 1988, p. 593. Under Article II of that decree, it entered into force on 1 January 1989, but there was a two-year transitional period after that date. It is common ground that the cases under examination relate to the definitive rules which into force on 1 January 1991.

10 Before the amendment made by the Decree of 13 December 1988, the range of goods which might be sold around the clock in petrol stations was not listed with that degree of precision. In its written observations to the Court, the Netherlands Government justifies the amendment in the following terms: In practice, however, the range of goods sold in the evenings and on Sundays in petrol stations was invariably wider. This gave rise to understandable complaints on grounds of unfair competition from, in particular, the foodstuffs sector and tobacco retailers, which subsequently led to an adjustment of the rules in question.

11 The Gerechtshof and 't Heukske and Boermans refer to such petrol stations as being petrol stations at the side of rijkswegen [national highways]. However, the Netherlands Government rightly points out that no distinction is made between rijkswegen and other roads.

12 By status quo ante, the Netherlands Government manifestly means the situation prior to the entry into force on 1 January 1991 of the Decree of 13 December 1988.

13 Unlike the Winkelsluitingswet and its implementing decrees (see footnote 10), the legislation governing the grant of permits to run petrol stations does employ rijkswegen — other roads as a criterion.

14 See the last paragraph of Article 5 of the Regels ten aanzien van de uitgifte en exploitatie van benzinestations langs Rijkswegen (Rules governing the licensing and operation of petrol stations situated at the side of national highways): Within a reasonable time, the Committee shall submit to the Minister of Economic Affairs a reasoned proposal for allocating an available site. If the Minister finds that he can support that proposal, he shall submit an opinion to the Minister of Transport, Water Control and Construction, who shall be responsible for issuing the permits pursuant to the Rijkswegenreglement (Regulation on national highways). ... If the Minister of Economic Affairs is unable to agree to the Committee's proposal, he shall engage in consultations with the Committee.

15 No party to the proceedings has described the precise composition of this Committee. In any event, according to the request for a preliminary ruling, petroleum companies are represented on it. Moreover, the Netherlands Government observes that the opinions delivered by the Committee have invariably been endorsed by all the companies concerned.

16 Pursuant to Article 4(d) of a communication of 7 November 1972.

17 Conversely, the permit-holder has to pay compensation to the operator if the latter sells less than the pre-determined quantity.

18 Judgment in Case C-145/88 Torfaen Borough Council v B & Q (B & Q I) [1989] ECR 3851, operative part. See also the judgments of 28 February 1991 in Case C-312/89 Conforama [1991] ECR I-997 and in Case C-332/89 Marchandise [1991] ECR I-1027, in which the Court held that the prohibition laid down in Article 30 of the EEC Treaty did not apply to national legislation prohibiting the employment of workers, in the one case, on Sundays and, in the other, on Sundays after 12 noon.

19 Judgments in Case C-304/90 Payless DIY and Others [1992] ECR I-6493 and in Case C-169/91 B & Q II [1992] ECR I-6635. In Case C-306/88 Anders, the Court held that it was not necessary to reply to the questions raised.

20 Judgment in B & Q II, paragraphs 9 and 10.

21 Judgment in B & Q II, paragraph 11.

22 Judgment in Joined Cases C-267 and 268/91 Criminal proceedings against Keck and Mithouard [1993] ECR I-6097.

23 Judgment in Case 8/74 Procureur du Roi v Dassonville[1974] ECR 837, paragraph 5.

24 The expression measures applicable without distinction is preferable to non-discriminatory measures, since, as will be seen later (in section 23), the latter measures may still be caught by the prohibition set out in Article 30 on account of their discriminatory effects.

25 Judgment in Case 120/79 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649, paragraph 8. That judgment did not expressly state that that possibility did not exist in the case of discriminatory measures, although that has been made clear, for example, by the judgment of 17 June 1981 in Case 113/80 Commission v Ireland [1981] ECR 1625, paragraph 11.

26 Well-known, recent instances include the judgments in Case 174/84 Commission v Germany [1987] ECR 1227 (Reinheitsgebot for beer), Case 216/84 Commission v France [1988] ECR 793 (ban on the marketing of substitutes for milk powder and concentrated milk), Case 407/85 3 Glocken and Kritzinger [1988] ECR 4233 and Case 90/86 Zoni [1988] ECR 4285 (both concerned with the obligation to use only durum wheat in the manufacture of pasta) and Case 274/87 Commission v Germany [1989] ECR 229 (ban on the marketing of meat products containing ingredients other than meat).

27 Judgment in Keck and Mithouard, paragraph 15. This wording is evidently based on Article 3 of Commission Directive 50/70/EEC of 22 December 1969, based on the provisions of Article 33(7), on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty (OJ, English Special Edition 1970(I), p. 17). According to that provision. Directive 50/70/EEC covers measures governing the marketing of products which deal, in particular, with shape, size, weight, composition, presentation, identification or putting up and which are equally applicable to domestic and imported products, where the restrictive effect of such measures on the free movement of goods exceeds the effects intrinsic to trade rules. The Court has referred to Article 3 on numerous occasions: see, in particular, the judgments in Case 62/70 Bock [1971] ECR 897, paragraph 17, in Case 155/73 Sacchi [1974] ECR 409, paragraph 8, in Case 75/81 Blesgen [1982] ECR 1211, paragraph 8, and in B & Q I, cited above, paragraph 15.

28 Judgment in Case 268/81 Oosthoek's Uitgevermaatschappij [1982] ECR 4575, paragraph 15.

29 Among other judgments concerning national measures prohibiting or restricting forms of advertising without distinction, one might mention, for example, the following: Case C-362/88 GB-INNO-BM [1990] ECR I-667 (prohibition on displaying the price applicable before the promotion), Case C-241/89 SARPP [1990] ECR I-4695 (prohibition of any statement in advertising of artificial sweeteners alluding to the word sugar), Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad Exterior en Publivía [1991] ECR I-4151 (prohibition on the advertising of beverages with a high alcohol content) and Case C-126/91 Yves Rocher [1993] ECR I-2361 (prohibiting of advertising comparing the current price with a previous price offered by the same trader). Examples of judgments dealing, like the judgment in Keck and Mithouard, with national measures restricting sales methods without distinction include those in Case 382/87 Buet [1989] ECR 1235 (canvassing) and in Case C-239/90 Boscher [1991] ECR I-2023 (obligation to register in the commercial register in the case of a public sale). Lastly, paragraph 15 of the judgment in Oosthoek's Uitgevermaatschappij was also confirmed in paragraph 50 of the judgment in Case C-369/88 Delattre [1991] ECR I-1487 and in paragraph 37 of the judgment in Case C-60/89 Monteil and Samanni [1991] ECR I-1547 (both relating to a sales monopoly of pharmacists).

30 See, for example, the judgment in Joined Cases 60 and 61/84 Cinéthèque [1985] ECR 2605 (temporary prohibition of the distribution of video cassettes and video discs).

31 I refer here to sale or marketing, since products may also distributed by means, for example, of leasing contracts. See K. J. M. Mortelmans, Artikel 30 EG. Verduidelijking van de Dassonville-formule en van de Cassis de Dijonrechtspraak (note on the judgment in Keck and Mithouard), Sociaal-Economische Wetgeving, 1994, p. 115, at p. 122.

32 See, for example, the judgment in Case 277/82 Van Bennekom [1983] ECR 3883 (prohibition on the marketing of vitamins in the absence of prior registration).

33 See, in particular, the judgments in Case C-18/88 GB-INNO-BM [1991] ECR I-5941 (approval procedure for telephone sets with no possible appeal to the courts) and in Joined Cases C-46/90 and C-93/91 Lagauche and Others [1993] ECR I-5267 (approval of radio communication apparatus).

34 In the judgment in Case 190/73 Van Haaster [1974] ECR 1123, paragraph 17, the Court held that a national organization having the purpose of rationing production potentially affected the system of trade within the Community and should therefore be regarded as a measure having an effect equivalent to a quantitative restriction. In the judgment in Case 148/85 Forest [1986] ECR 3449, it held that a national system of wheat-milling quotas applying to both domestically-produced wheat and to imported wheat did not affect intra-Community trade and was therefore not contrary to Article 30 of the EEC Treaty.

35 See, in particular, the Sunday trading cases cited in foot-notes 17 and 18.

36 See the recent judgment of 25 May 1993 in Case C-271/92 LPO [1993] ECR I-2899 (legislation restricting the sale of certain — domestic and imported — optical products to holders of an optician's/spectacle-maker's diploma).

37 According to the Court, national price rules which are applicable without distinction to national and imported products may be contrary to Article 30 of the EC Treaty if they mean that imported products cannot be sold at a profit (maximum price too low) or lose their competitive advantage flowing from their lower cost price (minimum price too high). See, in particular, the judgments in Case 64/75 Tasca [1976] ECR 291, paragraph 27, in Case 82/77 Van Tiggele [1978] ECR 25, paragraph 14, and in Case C-287/89 Commission v Belgium [1991] ECR I-2233, paragraph 17.

38 Footnote concerning only the Dutch version of this passage.

39 See, for example, the judgments in Case 155/80 Oebel [1981] ECR 1993 (prohibition of night work in bakeries), in Case 75/81 Blesgen [1982] ECR 1211 (restrictions on the marketing of alcoholic beverages) and in Case C-23/89 Quietlynn [1990] ECR I-3059 (prohibition on the sale of pornographic articles in unlicensed shops).

40 Note concerning solely the Dutch version of this Opinion.

41 Cf., in the matter of the provision of services under Article 59 of the EC Treaty, the judgment in Joined Cases 62 and 63/81 Seco v EVI [1982] ECR 223, paragraph 9: In such a case the legislation of the State in which the service is provided proves in economic terms to be more onerous for employers established in another Member State, who in fact have to bear a heavier burden than those established within the national territory.

42 See section 22 of the Opinion of Advocate General Tesauro in Hünermund , cited in footnote 56: Whilst it may be the case that a prohibition of a particular sales method, such as for example doorstep selling, does not put imported products at a disadvantage, any more than it makes access to the market more difficult for the products as such, it is also true, however, that such a prohibition may compel the trader concerned to change a sales strategy lawfully used in the Member State of origin to such an extent as to make access to the market of the State in which the prohibition is in force less attractive, and thereby constitute in that respect a barrier to the movement of products between Member States (provisional translation).

43 Footnote concerning only the Dutch version of the Opinion.

44 Of course, it is not for the Court to decide whether such differential treatment might possibly infringe a principle of equal treatment enshrined in national law.

45 That criterion was already contained in the judgment in Cinéthèque, at paragraph 21, cited in footnote 29.

46 In this case, 't Heukske and Boermans argue, in particular, that the legislation on shop closing is discriminatory in any event when it is examined in conjunction with the legislation on the grant of permits for petrol stations (see section 31, below).

47 See, most recently, the judgment of 24 January 1994 in Case C-343/92 Roks [1994] ECR I-571, paragraph 33 and point 3 of the operative part.

48 See also, with regard to freedom to provide services, the judgment in Case 15/78 Koestler [1978] ECR 1971, paragraph 6 in conjunction with paragraph 4.

49 The reason is that importers wishing to launch products from another Member State on the French market have to take the prohibition into account, whereas domestic manufacturers selling competing products in France do not have to. See my Opinion of 18 November 1992, [1993] ECR I-6110, paragraph 5, and my Opinion of 28 April 1993, [1993] ECR I-6117, paragraph 9.

50 Paragraph 18 and the operative part.

51 Previously, that was in fact the case: even recently in the judgment in Yves Rocher (cited in footnote 28), the Court rejected the argument that Article 30 of the EC Treaty is not applicable to national measures impeding the free movement of goods only marginally (paragraph 20) (provisional translation). In that case, the Court also held that Article 30 of the EC Treaty did not distinguish between measures capable of being characterized as measures having effects equivalent to quantitative restrictions, depending on the intensity of their effects on intra-Community trade (paragraph 21) (provisional translation), thereby refusing to apply a de minimis rule.

52 The consequence would seem to be that the measures (other than product requirements) which would then be caught by the prohibition set out in Article 30 of the EC Treaty solely on account of their discriminatory nature would henceforward be capable of being justified only on one of the grounds listed exhaustively in Article 36 of the Treaty and no longer on the basis of a mandatory requirement pursuant to the rule of reason.

53 Dassonville itself was concerned with legislation —which should probably be categorized as a product requirement, since it sought to guarantee the authenticity of the designation of origin of whisky —which meant that importers importing Scotch whisky into Belgium via another Member State could less easily obtain the certificate of authenticity required by the national legislation than importers importing directly from the country of origin; in other words, this was discrimination in fact between imported products (and not between domestic and imported products).

54 If this is accepted, it follows that, in the case of national measures other than product requirements (to which the Dassonville case-law continues to apply in full for the reasons set out in section 20 above), the judgment in Keck and Mithouard has basically effected a reversal of the burden of proof. Whereas, before, such measures fell, prima facie, within the prohibition set out in Article 30 of the EC Treaty but might be taken outside it through the application of the rule of reason, the new rule would be that such measures, prima facie, do not fall within the prohibition contained in Article 30, unless it is shown that, on an overall view, they have discriminatory effects or — if the addition to the wording which I made above is accepted — that they impede intra-Community trade (actually or potentially) in some other manner.

55 If the judgment in Keck and Mithouard has resulted in more than a mere reversal of the burden of proof in the case of requirements not relating to products (see the preceding footnote) and if it, more specifically, reduced, as far as those requirements are concerned, the Dassonville test to a prohibition of discrimination in a broad sense, the Court ought, in my view, to indicate this clearly in the judgment to be delivered in this case.

56 In investigating the precise scope which should henceforth be given to the Dassonville test, one cannot overlook the effect of that test on the prohibitions set out in Articles 59, 48 and 52 of the EC Treaty. In its recent case-law on the application of those prohibitions, the Court has also used a formula of the broad Dassonville type. Difficulties similar to those raised by product requirements may arise, more specifically in connection with services which are regulated in the various Member States, such as financial services (see, for example, the judgment in Joined Cases 110 and 111/78 Van Wesemael [1979] ECR 35, which was delivered one month before the Cassis de Dijon judgment).

57 Judgment in Case C-292/92 Hunermund [1993] ECR I-6787, paragraph 19.

58 See footnote 50.

59 For the justification, see section 13, above. As far as the proportionality test is concerned, see the judgment in B & Q II, paragraphs 12 to 16.

60 Judgment cited in footnote 29.

61 See M. Waelbroeck: Le rôle de la Cour de Justice dans la mise en oeuvre de l'Acte unique européen, Cahiers de droit européen, 1989, p. 41 et seq., at pp. 51, 52 and 53, and paragraph 18 et seq. of my Opinion in B& QI , cited in footnote 18. The judgment in Cinéthèque went against the Opinion of Advocate General Sir Gordon Slynn, who (at 2661 and 2662) argued that the legislation at issue did not treat imported and domestic products differendy in any way. This means that, under the new case-law, that legislation would in any event fulfil the second condition introduced by provided that in the judgment in Keck and Mithouard.

62 At the hearing, the representative of the Netherlands Government denied that the figures were representative.

63 Judgments in Case 13/77GB-INNO-BM [1977] ECR 2115, paragraphs 28 to 34, in Case 229/83 Leclerc [1985] ECR 1, paragraph 14, in Case 231/83 Cullet [1985] ECR 305, paragraph 10, in Joined Cases 209 to 213/84 Asjes and Others [1986] ECR 1425, paragraph 71, in Case 311/85 Vereniging van Vlaamse Reisbureaus [1987] ECR 3801, paragraph 10, in Case 136/86 Aubert [1987] ECR 4789, paragraph 23, in Case 254/87 L'Aigle distribution (fixed price for books) [1988] ECR 4457, paragraph 10, in Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16, and Marchandise, cited above, paragraph 22.

64 Cases C-2/91, C-185/91 and C-245/91, [1993] ECR I-5751, I-5801, I-5851.

65 Judgment in GB-INNO-BM, paragraphs 28 to 31 and 34.

66 Indications to this effect are already to be found in the judgment in Leclerc.

67 These judgments relate to Article 85 of the EC Treaty, but I can see no reason why the principles set out therein should not also be applied, mutatis mutandis, to Article 86 of the EC Treaty.

68 Judgment in Meng, paragraph 19.

69 Judgment in Ohra, paragraph 11.

70 Cf. the judgment in Ohra, paragraph 13.

71 See footnotes 17 and 18.

72 Referring to my opinion in B & Q/[1989] ECR 3883, section 32. See also my Opinion in Conforama and Marchandise, cited in footnote 17.

73 [1992] ECR I-6484, paragraph 33. The Court did not examine that question.

74 I am not convinced that this argument is supported by the facts. From the charts produced to the Court by 't Heukske and Boermans, it appears that the turnover and profits of petrol stations are not affected by more than one-third by the sale of products other than fuel. Only part of that third consists of products for the road and, in turn, only part of those products for the road consist of tobacco products. What is more, only a fraction of those tobacco products is sold outside normal opening hours. Only that part, which is therefore only a fraction of petrol stations' aggregate sales, is affected by the unequal treatment of which 't Heukske and Boermans complain. Even then, the unequal treatment is relatively slight: some petrol stations may sell tobacco products over the counter, whilst others are obliged to sell them from vending machines.