Opinion of the Advocate General — ECLI:EU:C:2003:177
Date: 2003-03-20
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: France

Summary of the Judgment 
1. Free movement of goods — Quantitative restrictions — Measures having equivalent 
effect — Articles 28 EC to 30 EC — Scope — Goods in transit through a Member 
State and intended for a non-member country — Included 
(Arts 28 EC to 30 EC) 
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SUMMARY — CASE C-115/02 
2. Free movement of goods — Quantitative restrictions — Measures having equivalent 
effect — National legislation providing for a procedure for detention by the customs 
authorities, at the time of intra-Community transit, of goods suspected of infringement 
of trade mark, lawfully manufactured in a Member State and intended for a 
non-member country — Justification — Protection of industrial and commercial 
property — None — Transit not forming part of the specific subject-matter of the 
trade marks 
(Arts 28 EC and 30 EC) 
1. Goods lawfully manufactured in one 
Member State in transit within another 
Member State come within the scope of 
Articles 28 EC to 30 EC even if they are 
intended for a non-member country. 
The Customs Union established by the 
Treaty necessarily implies that the free 
movement of goods between Member 
States should be ensured. That freedom 
could not itself be complete if it were 
possible for Member States to impede 
or interfere in any way with the 
movement of goods in transit so that 
it is necessary, as a consequence of the 
Customs Union and in the mutual 
interest of the Member States, to 
acknowledge the existence of a general 
principle of freedom of transit of goods 
within the Community. 
(see para. 18, 20) 
2. Article 28 EC is to be interpreted as 
precluding the implementation, by the 
customs authorities of a Member State, 
pursuant to a legislative measure of 
that Member State concerning intellec­
tual property and on the ground of 
suspected infringement of trade mark, 
of procedures for detention of goods 
lawfully manufactured in another 
Member State and intended, following 
their transit through the territory of the 
first Member State, to be placed on the 
market in a non-member country. 
A measure of detention under customs 
control which delays the movement of 
goods and may block their movement 
completely, has the effect of restricting 
the free movement of goods and there­
fore constitutes an obstacle to that 
freedom. 
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RIOGLASS AND TRANSREMAR 
Such a measure cannot be justified on 
the ground of protection of industrial 
and commercial property within the 
meaning of Article 30 EC since that 
transit does not involve any marketing 
of the goods in question and is there­
fore not liable to infringe the specific 
subject-matter of the trade mark. 
(see paras 21, 24, 27, 29-30, operative part) 
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