Opinion of the Advocate General — ECLI:EU:C:1997:150
Date: 1997-03-13
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: Austria

Summary of the Judgment 
1. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — 
Definition — Prohibition on the sale of periodicals containing prize competitions — Treat­
ment as national provisions regulating selling arrangements in a non-discriminatory manner 
— Precluded — Applicability of Article 30 of the Treaty 
(EC Treaty, Art. 30) 
2. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — 
Prohibition on the sale of periodicals containing prize competitions — Restriction justified in 
order to maintain press diversity — Permissibility conditional on respect for fundamental 
rights — Reconciliation with freedom of expression — Limits 
(EC Treaty, Art. 30) 
I -3689 
SUMMARY — CASE C-368/95 
3. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — 
Prohibition on the sale of periodicals containing prize competitions —Justification — Main­
taining press diversity — Conditions — To be assessed by the national court 
(EC Treaty, Art. 30) 
1. The application to products from other 
Member States of national provisions 
restricting or prohibiting certain selling 
arrangements is not such as to hinder 
directly or indirectly, actually or poten­
tially, trade between Member States, so 
long as those provisions apply to all rel­
evant traders operating within the 
national territory and so long as they 
affect in the same manner, in law and in 
fact, the marketing of domestic products 
and of those from other Member States. 
That is not the case where the legislation 
of a Member State prohibits the sale on 
its territory of periodicals containing 
games or competitions for prizes. Even 
though such legislation is directed against 
a method of sales promotion, it bears on 
the actual content of the products, in so 
far as the competitions in question form 
an integral part of the magazine in which 
they appear, and cannot be concerned 
with a selling arrangement. Moreover, 
since it requires traders established in 
other Member States to alter the contents 
of the periodical, the prohibition at issue 
impairs access of the product concerned 
to the market of the Member State of 
importation and consequently hinders 
free movement of goods. It therefore con­
stitutes in principle a measure having 
equivalent effect within the meaning of 
Article 30 of the Treaty. 
2. Where a Member State relies on overrid­
ing requirements, such as maintaining 
press diversity, under Article 30 of the 
Treaty in order to justify rules which are 
likely to obstruct the exercise of free 
movement of goods, such justification 
must also be interpreted in the light of 
the general principles of law and in par­
ticular of fundamental rights. Those 
rights include freedom of expression, as 
enshrined in Article 10 of the European 
Convention for the Protection of Human 
Rights and Fundamental Freedoms. A 
prohibition on selling publications which 
offer the chance to take part in prize 
competitions may, in that context, detract 
from freedom of expression. Article 10 
does, however, permit derogations from 
that freedom for the purposes of main­
taining press diversity, in so far as they 
are prescribed by law and necessary in a 
democratic society. 
3. Article 30 of the EC Treaty is to be inter­
preted as not precluding application of 
legislation of a Member State the effect of 
which is to prohibit the distribution on 
its territory by an undertaking established 
in another Member State of a periodical 
produced in that latter State containing 
prize puzzles or competitions which are 
lawfully organized in that State, provided 
that that prohibition is proportionate to 
I - 3690 
FAMILIAPRESS v BAUER VERLAG 
maintenance of press diversity and that 
that objective cannot be achieved by less 
restrictive means. 
This assumes, inter alia, that the newspa­
pers offering the chance of winning a 
prize in games, puzzles or competitions 
are in competition with small newspaper 
publishers who are deemed to be unable 
to offer comparable prizes and the pros­
pect of winning is liable to bring about a 
shift in demand. 
Furthermore, the national prohibition 
must not constitute an obstacle to the 
marketing of newspapers which, albeit 
containing prize games, puzzles or com­
petitions, do not give readers residing in 
the Member State concerned the opportu­
nity to win a prize. It is for the national 
court to determine whether those condi­
tions are satisfied on the basis of a study 
of the national press market concerned. 
I - 3691