61981C0075
OPINION OF MR ADVOCATE GENERAL REISCHL
DELIVERED ON 9 FEBRUARY 1982 (
1
)
Mr President,
Members of the Court,
The present case, concerned once again with the interpretation of Articles 30 and 36 of the EEC Treaty, has its origin in criminal proceedings brought by the Belgian authorities against a Belgian hotelier and restaurateur Joseph Blesgen. A judgment of the Tribunal Correctionnel, Verviers, of 21 December 1977 found Joseph Blesgen guilty of infringing Anieles 1, 2 and 14 of the Belgian Law of 29 August 1919 concerning rules on alcohol (the socalled “Lex Vandervelde”) because, being a retailer of drinks for consumption on the premises, and having one or more previous convictions, he held in stock and sold in his establishment spirits of an alcoholic strength exceeding 22o at a temperature of 15o C.
After confirmation of the judgment by the Cour d'Appel, Liège, Criminal Chamber, the defendant appealed in cassation to the Belgian Cour de Cassation where he alleged that, even if thev applv without distinction to national products and imported products and are not intended to protect national production, the rules in Articles 1 and 2 of the Law in question constitute measures having an effect equivalent to quantitative restrictions on imports of spirits between Member States within the meaning of Article 30 of the EEC Treaty inasmuch as those rules give rise to restrictions on the consumption of such drinks. The measures cannot moreover be justified on any of the grounds provided for by Article 36 of the Treaty, namely the protection of health and life of humans, because the measures so far as the protection of health and life of humans is concerned do not actually constitute a case of present necessity which may be specified and accepted as such throughout the entire Community.
By judgment of 18 March 1981 the Belgian Cour de Cassation, which has to decide as to the compatibility of Anieles 1 and 2 of the Belgian Law with Community law, stayed the proceedings by a decision of 18 March 1981 and referred the following questions to the Court pursuant to Article 177 of the EEC Treaty:
“1.
Must the expression ‘measures having an effect equivalent to quantitative restrictions on imports’ contained in Article 30 of the Treaty establishing the European Economic Community be interpreted as meaning that the prohibition laid down by that provision covers:
(a)
legislative measures prohibiting the consumption, the sale or the offering even without charge of spirits (that is to say drinks whose alcoholic strength exceeds 22o at a temperature of 15o Centigrade) for consumption on the premises in all places open to the public, in particular in establishments retailing drinks, hotels, restaurants, places of entertainment, shops, stalls, boats, trains, trams, stations, workshops or working sites as well as on the public thoroughfare, even if such a prohibition applies without distinction to national products and imponed products and is not intended to protect national production?
(b)
legislative measures prohibiting persons selling drinks for consumption on the premises from having in stock in any quantity whatsoever spirits (as defined above) either on the premises to which consumer are admitted or in other parts of the establishment and any adjoining dwelling, even if such a prohibition applies without distinction to national products and to imponed products and is not intended to protect national production?”
In the event of Question 1 being answered in the affirmative:
2.
“Must the expression ‘justified on grounds of ... the protection of health and life of humans’ contained in Article 36 of the Treaty establishing the European Economic Community be interpreted as meaning that measures such as those described under Pans (a) and (b) of Question 1 may or must be considered as justified on the grounds set out above in the operative pan of this judgment?”
The following is my opinion:
I — First question
1.
In subparagraph (a) the court making the reference inquires as to the criteria of interpretation enabling it to decide whether a prohibition such as that contained in Article 1 of the Lex Vandervelde (Article 3 whereof simply provides that alcoholic drinks are deemed to include all drinks the alcoholic content of which is more than 22o at a temperature of 15o C) falls within the category of quantitative restrictions on imports or measures having equivalent effect within the meaning of Article 30 of the EEC Treaty. The question in subparagraph (b) is intended to allow the court making the reference to decide whether the rules contained in Article 2 of the Belgian Law are compatible with Article 30 of the EEC Treaty.
A common factor of both provisions of the Belgian Law concerning rules on alcohol (I shall henceforth refer to it simply as “the Law”) is that they do not prohibit the sale or stocking of alcoholic drinks with an alcoholic content of more than 22o generally as such in the Kingdom of Belgium but only the serving and stocking of those products at the places referred to therein. Therefore it is not a question of marketing rules as such, but simply that the use of the spirits in question is limited to the said conditions. The prohibition on stocking contained in Article 2 of the Law is obviously intended only to ensure respect for the prohibition on serving which otherwise could not be effectively enforced by the relevant authorities. That objective justified treating the two provisions on use as one for the purposes of the present investigation. In other words should the prohibition on serving prove to be a measure having an effect equivalent to a quantitative restriction on impon within the meaning of Article 30 of the EEC Treaty the same would apply to the prohibition on stocking contained in Article 2 of the Law and vice versa.
2.
In considering the question whether the disputed rules are to be regarded as a measure having an effect equivalent to a quantitative restriction on impon within the meaning of Article 30 of the EEC Treaty it must be borne in mind, as the Coun has constantly established in its case-law (
2
), that in the absence of common rules relating to the production and marketing of a product it is for the Member States to regulate all matters relating to its production, distribution and consumption on their own territory. With regard to the Law with which we are concerned it should be observed that the restrictions provided for therein, as the coun making the reference and the panies stress, are intended to protect the physical and mental health of the population and to combat alcoholism in general and in particular with regard to its effects on crime, which are greater today because of road traffic; in addition there are the serious burdens arising from the social, moral and material point of view for households and families. Since the Community has not been able to adopt or at any rate has not adopted any provisions in this field it must therefore generally be recognized that the individual Member States have remained competent to regulate the serving and stocking of spirits and therefore different rules are possible from State to State.
A condition however is, as the Court has also stressed in numerous judgments, that such provisions do not present an obstacle to intra-Community trade inasmuch as they are to be regarded as measures having an effect equivalent to quantitative restrictions on imports within the meaning of Article 30 of the EEC Treaty. The criterion therefore is whether the rules in question are to be regarded as an obstacle to trade within the meaning of that provision.
The defendant in the main action, the British and French Governments and the Commission all wish that question to be answered in the affirmative on the basis of the principle first formulated by the Court in its judgment in the Dassonville case (
3
) and frequently repeated to the effect that “All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions.” According to that v. ide formula which was later even extended to “any national provisions” with those characteristics, as for example in the judgment of the Court in the Vriend case (
4
), the said parties to the proceedings submit that the possibility that the rules in question impede the sale of foreign spirits imponed from other Member States into Belgium cannot be excluded.
Opinions differ simply on the question of the justification of the measures which according to this view have equivalent effect. There is agreement that such measures are justified, and the case-law of the Court in REWE-Zentral AG, Gilli and Kelderman (
5
) is cited in support, in so far as they are “necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and defence of the consumer.” In the view of the French Government and lastly also of the Belgian Government the rules in question are intended primarily to help the campaign against alcoholism and are therefore urgently necessary on grounds of public health within the meaning of the said rule.
The defendant in the main proceedings and the British Government reject such justification. Apart from the fact that it is questionable whether the rules in question pursue the same objective today as when they were adopted it must nevertheless be assumed that they do not represent the most moderate means of achieving that objective as is apparent from the licensing systems of the other Member States. In consequence it is claimed that the measure must really be regarded as a disguised restriction on trade between the Member. States. Finally the Commission further points out that according to the case-law of the Court it is for the Member State to show -hat the measures in question are necessary for the protection of public health and in the final analysis the Kingdom of Belgium has not done so.
All parties agree that should Article 36 of the EEC Treaty be relied upon as justification the corresponding arguments must apply to that provision as well.
3.
Contrary to those proposals as to what the answer should be, all of which more or less assume on the basis of the “Dassonviile formula” that the Belgian Law is to be treated as a measure having equivalent effect within the meaning of Article 30 and consequently concentrate on considering grounds of justification, it seems to be more than doubtful whether the contested rules on use which apply without distinction to imported and domestic spirits fall at all within the scope of Article 30 of the EEC Treaty. The wording thereof provides only that “quantitative restrictions on imports and all measures having equivalent effect shall, without prejudice to the following provisions, be prohibited between Member States.” It follows therefrom that provision can apply only if trade across frontiers is restricted by national measures either because the import of goods from other Member States is actually impeded or made impossible or because simply the marketing of imported goods is made more difficult. To that extent Article 30, like the other basic freedoms contained in the Treaty, is intended as a specific expression of a general prohibition of discrimination to prevent imported goods from being treated worse either by law or in practice when they are marketed than similar domestic products. That consideration leads to the conclusion that only such national provisions fall within the scope of Article 30 as are specifically likely adversely to affect trade between Member States or, in the word of Article 36, which constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
It ultimately does not matter, as the many judgments of the Court in this field show, whether the discrimination is the result of different measures applicable to domestic or imported goods or of rules which make no distinction applicable equally to domestic and imported goods. The sole distinction between measures which apply differently and those which apply without distinction lies in the fact that should the first lead to imported goods being placed in a worse position as regards marketing justification of the different treatment is always required whereas no such justification is required with regard to measures which apply equally and which in practice do not lead to a worse position for imported goods as against domestic goods.
If I understand the position correctly, the Court too in its previous case-law has entered upon discussion of whether a measure is justified on account of the protected goods referred to in Article 36 or for other reasons only where it was at least clear that the relevant measure even if in form applicable without distinction in practice led to different treatment of domestic and imported goods. It must be admitted that the aim, namely to prevent discrimination in free movement of goods, has found only more or less forceful expression. Although there was emphasis at first on the prevention of discrimination as for example in the judgment on sparkling wine and spirits obtained by distilling wine (
6
), that aim does not find such clear expression in a number of later judgments beginning with Case 120/78 (“Cassis de Dijon”) and even in the Gilii and Kelderman cases. In those cases, which were concerned with marketing rules applicable without distinction, the Court recognized that there were aims in the general interest, in particular effective fiscal supervision, the protection of public health, fairness of commercial transactions and the protection of the consumer, which may take precedence over the requirements of free movement of goods on a balance of interest. Nevertheless the Court assumed in those cases too that the national measures in question were likely, directly or indirectly, actually or potentially, to hinder intra-Community trade by presenting an obstacle to the sale of foreign goods, as may be imagined.
Thus it was clear in the Gilli case that the prohibition of marketing goods containing acetic acid which did not originate in the acetic fermentation of wine made it impossible to market all kinds of fruit vinegar in Italy. In the Kelderman case the Court found that “the extension to imported products of a requirement that they contain a specific amount of dry matter may prevent bread originating in other Member States from being marketed in the State concerned”. Not least, in Case 120/78 (“Cassis de Dijon”) the Court accepted that provisions on the minimum alcohol content of alcoholic beverages were discriminatory, stating that “in practice, the principal effect of requirements of this nature is to promote alcoholic beverages having a high alcohol content by excluding from the national market products of other Member States which do not anwer that description.”
The question in another group of cases concerned with national price rules was not that foreign goods which as such could not fulfil certain prescribed conditions were excluded from the domestic market but that a national price system applied to particular products. In considering whether such a price system was to be regarded as a measure having equivalent effect within the meaning of Article 30 of the EEC Treatv the Court both in the GBINNOBM and van Tiggele and Danis cases (
7
) repeated the definition of measures having equivalent effect already given in the Dassonville judgment. In all three judgments the Court however made it clear that rules imposing a price system applicable equally to national products and to imported products “do not amount in themselves to a measure having an effect equivalent to a quantitative restriction.” Such price rules may however, as is stated in the judgments, produce such an effect if they are drafted in such a way that the marketing of imported products becomes either impossible or more difficult than the marketing of similar national products. From the example of those judgments it is quite clear in my opinion that the Court will regard a national system which applies without distinction as a measure having equivalent effect only if imported products suffer discrimination on marketing as against domestic products of the same kind.
Finally the Court had an opportunity in the Groenveld case (
8
) further to define the concept of measures having equivalent effect. That case was concerned with appraising a national measure simply forbidding a particular group of producers, namely manufacturers of meat products, from having in stock or processing horse meat and there was no distinction between products intended for expon and those intended for sale on the domestic market. The Court found that Article 34 of the EEC Treaty “concerns national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its expon trade in such a way as to provide a panicular advantage for national production or for the domestic market of the State in question at the expense of the production or of the trade of other Member States”. The Coun clearly showed by that additional criterion of specific restriction on patterns of trade that national rules which apply without distinction, which in themselves do not concern goods crossing frontiers and at most have secondary effects upon trade between Member States do not fall within the prohibition of Article 30 ei seq. of the EEC Treaty.
Consequently it is stated in the judgment in the United Foods case which has already been cited (cf. Note 1) that Article 30 has inter alia as its object the removal of barriers which are “specifically aimed at imponed products”.
Subsequently in the Oehel case (
9
) the Coun expressly referred to the formula used in the Groenveld judgment in holding that Anieles 30 and 34 of the EEC Treaty in no way prevented a national prohibition on night work in bakeries since they were pan of economic and social policy and applied by vinue of objective criteria to alì the undertakings in a panicular industry which were established within the national territory, without leading to any difference in treatment whatsoever on the ground of the nationality of traders and without distinguishing between the domestic trade of the State in question and the expon trade.
It seems to me that that criterion of specific trade restrictions recently referred to by the Court is in line in particular with the concept of measures having equivalent effect with which Commission Directive 70/50/EEC of 22 December 1969 (Official Journal, English Special Edition 1970 (I), p. 17) was concerned. The first paragraph of Article 3 of the directive provides that measures governing the marketing of products and equally applicable to domestic and imponed products are to fall under the prohibition of Article 30 of the EEC Treaty “where the restrictive effect of such measures on the free movement of goods exceeds the effects intrinsic to trade rules.” According to the second paragraph of Article 3 that is the case, in particular, where “the restrictive effects on the free movement of goods are out of proponion to their purpose” or where “the same objective can be attained by other means which are less of a hindrance to trade.” That also clearly shows that only such national measures are to fall within the scope of Article 30 of the EEC Treaty as are likely to be an obstacle to international trade so that imponed products, on marketing, are placed at a disadvantage as against domestic products.
Against that background it must be observed in relation to the Belgian rule in question which undoubtedly falls within the field of health and social policy and has as its aim to prevent the serving of strong spirits at the places specified therein, first that the marketing of those spirits as such within Belgian territory is not affected, in consequence international trade is not adversely affected either by the rule as to use, which has the sole restriction that strong spirits defined according to objective criteria and applying both to domestic and imponed products mav not be served or stocked in the places specified in the Belgian Law.
4.
In consequence it remains simply to consider whether the rule on consumption, in spite of the fact that it applies without distinction, has as its specific object or effect the restriction on imports inasmuch as imponed products are in practice at a disadvantage as against domestic products. Such a protectionist effect could arise onlv if, as the defendant in the mam proceedings and the British Government think, the prohibition of serving was laid down in such a way that foreign products primarily and preponderantly are affected.
As we have heard, however, the 1919 Law has inter alia led to a reduction in the Belgian production of spirits. In spite of that reduction, however, a large proportion of the total consumption of strong spirits in Belgium is of domestic production, as a glance at the figures produced by the Commission on the impon and consumption of spirits in the Member States of the Community shows. Thus for example in 1978 there was a total consumption of 234000 hectolitres of pure alcohol. On the other hand only 146000 hectolitres were imponed, of which 140000 hectolitres originated in Member States of the Community. In 1979 222000 hectolitres of pure alcohol were consumed of which 152000 hectolitres, including 146000 hectolitres from Member States, were imponed. Finally 1980 reveals a consumption of 234000 hectolitres of pure alcohol and a total impon of 174000 hectolitres of which 170000 hectolitres were from countries of the Community.
Those figures are evidence on the one hand of the existence of a considerable production of domestic spirits which are treated in the same way as imported products with regard to the rules on consumption, and on the other hand they indicate an unmistakeable increase in imports while consumption of strong spirits remains more or less constant. That fact also shows that in so far as the contested rules on consumption are in a position to influence imports at all it is not at the expense of the marketing of foreign products.
In the same way the argument that the prohibition of serving spirits with an alcoholic content in excess of 22o favours the Belgian beer industry is not sound. It is apparent from the meaning and object of Article 30 that only rules which place imponed products at a disadvantage as against similar domestic products or, ones which are in competition with the imponed products and thus lead to an advantage in competition for domestic products may be regarded as measures having an effect equivalent to quantitative restrictions on impons. The Court confirmed that in its Judgment of 10 July 1980 in Case 152/78 concerning advertising of alcoholic beverages (
10
) thus following my opinion of 2 July 1980. As far as the similar nature and competitive relationship between the products then in question were concerned the Court expressly referred to the judgment of 27 February 1980 in Case 168/78 concerning the taxation of spirits (
11
). It follows from that judgment however that within the larger group of alcoholic beverages spirits form an identifiable whole united by common characteristics such as being obtained by distillation, having a relatively high alcoholic content suitable for human consumption and so forth. Vice versa it follows that beer, which is obtained by simple fermentation and is characterized by a relatively low alcoholic content, cannot be termed a similar drink to spirits and as regards use is not in a competitive relationship to it. It can therefore also not be assumed that the ban on the serving of spirits makes the sale of imported spirits more difficult to the advantage of domestic beer.
As the Belgian Government rightly points out, further evidence against such protective effect is the fact that it is possible to serve all alcoholic drinks obtained by simple fermentation including wine, which is a typicallv non-Belgian product. Thus if the protective effect were accepted foreign products could also profit from these rules.
Finally the said rules in relation to consumption cannot be classified as a measure having an effect equivalent to a quantitative restriction on import, as is maintained, simply because Belgium is the only country in the Community with such a ban on serving whereas all other Member States combat alcoholism with a licensing system which takes various forms, for the business of operating bars and restaurants. As the Court stated in the judgment in the van Dam case (
12
) and similarly in the judgment in the Oebel case, it cannot be held contrary to the principle of nondiscrimination to apply national legislation merely because other Member States apply less strict rules.
For those reasons and having regard to the said case-law I conclude that the measure in question, which is applicable without distinction, is in itself not such as specifically to restrict the import of spirits having a high alcohol content. In particular there is no discrimination as regards the marketing of imported products as against similar domestic products. The measure is therefore not to be classified as an unlawful measure having an equivalent effect to quantitative restrictions on imports within the meaning of Article 30 of the EEC Treaty.
II — Consequently it is not necessary to inquire whether the measure is justified on the grounds set out in Article 36 of the EEC Treaty or developed by the case-law of the Court.
Should the Court not be of my opinion then let me observe in the alternative that if, as required by the case-law, the aim of free movement of goods on the one hand is to be weighed against the objective pursued by the national measure as regards health and social policy that must lead to the measure's being regarded as justified. Contrary to what it now says the Commission moreover took that view in its answer of 27 January 1978 to the written question by Mr Cousté concerning the sale of spirits in Belgium (Official Journal C 56 of 6 March 1978, p. 8)
III — In conclusion I propose that the questions put should be answered as follows :
Article 30 of the EEC Treaty does not prohibit a measure such as that in Article 1 (1) and Articles 2 and 3 of the Belgian Law of 29 August 1919 concerning rules on spirits as amended by the Law of 2 April 1965.
(
1
)	Translated from the German.
(
2
)	Recent ludgments include
ludgment oi 7 Annl l KI in Case 132/80 NV Umied Foods Belftan State||981] ECR 195.
udgment oí 17 lune 1981 in Case 113/80 Cammititon v 7rfW[l9SI] ECR 1625.
Judgment of 17 December 1981 in Case 272/80 Criminal proceeding alainu Frani-hiedcrlandie Maalithappn voor BlolORMllc Producten B V [1981] LCR
(
3
)	Judgment of 11 juli 1974 in Case 8/74 Procureur du Rai Benotl and'Gustave Dassonville 11974) ECR 837
(
4
)	Judgment of 26 February 1180 in Case 94/79 Criminal proceedings against Pieter Vriend ( 1980] ECR 327
(
5
)	Judgment of 20 February 1979, Case 120/78 Hcwe-Zcntral AC Bundesmonopolverwaltung ļur Branntwein 11979) ECR 649. paragraph 8 al p 662;Judgment ol 26 June 1980 in Case 788/79 Criminal proceedings against Herbert Gilli and Paul Andres [1980] ECR 2071; judgment of 19 February 1981 in Case 130/80 Criminal proceedings against Fabriek voor Hoogwardigc Voedmgsprodutten Kelderman Sľ(l98l] ECR 527.
(
6
)	Judgment of 20 February 1975 in Case 12/74 Commission v Federai Republic of Germany [1975] ECR 181.
(
7
)	Judgment of 16 November 1177 in Case 13/77 Gfi- 1NNO-BM v Vereniging van de Kleinhandelaars in Tabak (ATABI [^77] ECR21I5; Judgment of 24 January 1978 in Case 82/77 Openbaar Ministerie o/ the Kingdom of the Netherlands v Jacobus Philippus van Tiggele[ľ>7S) ECR 25; Judgment of 6 November 1979 in Joined Cases 16 to 20/79 Openbaar Ministerie v Joseph Dams and Others [1979) ECR 3327
(
8
)	Judpmcni oi 8 November 1979 m Casc 15/79 P.B Groenveld v Produktschap voor Vee en Vlees [1979] ECR. H09
(
9
)	ludpmenl of 14 juli 1981 in Ca>r 155/80 Seniui Oie/[1981) ECR 1993
(
10
)	Judgment of 10 July 1980 in Case 152/78 Commission v French Republic [1980] ECR 2299
(
11
)	Judgment of 27 February 1980 in Case 168/78 Commission v french Republic [1980] ECR 347
(
12
)	Judgment of 3 July 1979 in Joined Cases 185 lo 204/78 Criminal procrrdmįi against Firma į. van Dam en Zonen [1979) ECR 2345