Opinion of the Advocate General — ECLI:EU:C:2004:812
Date: 2004-12-16
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. Free movement of goods — Freedom to provide services — Provisions of the Treaty — Examination of a national measure which relates to two fundamental freedoms — Criteria for determining which rules apply (Arts 28 EC and 49 EC) 2. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — National rules making the itinerant sale of subscriptions to periodicals subject to prior authorisation — Whether permissible — Requirements — To be determined by the national court (Art. 28 EC) 1. Where a national measure relates to both the free movement of goods and freedom to provide services, it will, in principle, be examined in relation to one only of those two fundamental freedoms if it appears that one of them is entirely secondary in relation to the other and may be considered together with it. As regards, in that respect, the sale of a product which is accompanied by an activity with ‘services’ aspects, that fact cannot be sufficient, by itself, to classify such an economic operation as a ‘provision of services’ within the meaning of Article 49 EC. It must be established, in each case, whether that service is or is not wholly secondary in relation to the elements concerning the free movement of goods. (see paras 34-35) 2. Article 28 EC does not preclude national rules under which a Member State makes an offence of the itinerant sale within its territory, without prior authorisation, of subscriptions to periodicals, where such rules apply, without distinction based on the origin of the products in question, to all the economic operators concerned carrying on their activity within that State, provided that such rules affect in the same manner, in law and in fact, the marketing of products originating in that State and that of products from other Member States. It is for the national court to determine whether the application of national law is such as to ensure that those rules affect in the same manner, in law and in fact, the marketing of domestic products and that of products from other Member States, and, if that is not the case, to establish whether the rules in question are justified by an objective in the general interest and whether they are proportional to that objective. (see para. 37, operative part)