61981C0314
OPINION OF MRS ADVOCATE GENERAL ROZÈS
DELIVERED ON 17 NOVEMBER 1982 (
1
)
Mr President,
Members of the Court,
The Court has been requested to give a preliminary ruling by the Tribunal de Grande Instance [Regional Court], Paris.
I —
By a judgment of 10 July 1980 (
2
) the Court declared that:
“By subjecting advertising in respect of alcoholic beverages to discriminatory rules and thereby maintaining obstacles to the freedom of intra-Community trade, the French Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty.”
A number of companies and their directors who were being prosecuted in the Tribunal de Grande Instance, Paris, for unlawfully advertising alcoholic beverages then contended that by that judgment the Coun had declared the first paragraph of Article L17 and Article L 18 of the French Code on the Retail of Beverages and Measures against Alcoholism, which they were charged with having infringed, to be contrary to Community law and that all proceedings against them ought to be withdrawn.
In view of that defence the Tribunal de Grande Instance, in four series of cases which it has submitted to the Court under Article 177 of the EEC Treaty and which the Coun has ordered to be joined requests it to rule upon :
“The direct and immediate effect, within the internal French legal order, of Community law as a result of its judgment of 10 July 1980, having regard also to the provisions of Article 171 of the EEC Treaty.”
II —
The difficulty of the national court can be explained by the circumstances relating to the various beverages in question and the measures taken to comply with the Court's judgment cited above.
The products which the accused are charged with having unlawfully advertised belong in fact to two distinct categories.
The first category consists of alcoholic beverages which are not imported from the Member States but which have two different origins:
A national origin: in this case an alcoholic beverage in Group 3, as defined by Article L1 of the Code, namely the wine-based aperitif Saint Raphael, the advertising of which is restricted (Case 314/81).
An origin in a nonmember country: these are beverages which also belong to Group 3, namely natural sweet wines (
3
) or liqueur wines, to be precise, the ports of Porto Cruz and Porto Cintra imported from Portugal (Cases 315 and 316/81).
The second category consists of an alcoholic beverage in Group 5 which is, imponed from a Member State, the Scotch whisky Label 5, the advertising of which is prohibited (Case 83/82).
As to the measures necessary to comply with a judgment of the Court, Article 171 states that:
“If the Court of Justice finds that a Member State has failed to fulfil an obligation under this Treaty, the State shall be required to take the necessary measures to comply with the judgment of the Court of Justice.”
The only measure actually taken after the Court's judgement had been given was the sending, on 10 October 1980, of a circular from the Garde des Sceaux to the French courts and public prosecutors' offices informing them of the inference to be drawn from the judgment of 10 July 1980.
The circular stated that the French legislation had been condemned only in so far as it discriminated against a product imported from a Member State of the Community. It drew a distinction depending on whether the product advertised was:
A French product, by definition not imported, or a product imported from a nonmember country in which case the French courts did not have to take account of the judgment, or a product imported from a Member State in which case it was for the criminal court to decide whether the product was “actually discriminated against” compared to other national products which might be considered to be in competition with it.
The accused take the view that the Court's judgment condemned the French legislation on the advertising of alcoholic beverages in its entirety and that Articles L 17 and L 18 of the Code are now wholly inapplicable irrespective of the origin of the product which they are charged with unlawfully advertising or the group to which it belongs.
Confronted with those different views the Tribunal de Grande Instance would like to know the inferences which it must draw from the Court's judgment as regards the prosecutions brought by the Procureur de la République [Public Prosecutor] and the Comité National de Défense contre l'Alcoolisme [National Committee for the Campaign against Alcoholism] which are still pending before it.
In the proceedings under Article 177 it is not for this Court to apply its judgment to the cases pending before the national court. This Court may, however, usefully assist the national court by explaining the scope of its decision, as regards the prosecutions before that court, by virtue of the “direct effect” of Article 30 (which, according to the Court's judgment, was the only provision with which the French Republic failed to comply) and the fact that the French legislation on the advertising of alcoholic beverages has not yet been formally amended.
III —
Put in that way the problem in theory calls for a fairly simple answer.
The Commission's reasoned opinion which led to the Court's judgment of 10 July 1980 referred only to Article 30 of the Treaty and consequently only advertising restrictions or prohibitions affecting imports from other Member States were described in that judgment as measures having an effect equivalent to a quantitative restriction.
Moreover, in its judgment of 15 June 1976 in the EMI ast (
4
) the Court held:
“Within the framework of the provisions of the Treaty relating to the free movement of goods and in accordance with Article 3 (a), Article 30 et seq. on the elimination of quantitative restrictions and of measures having equivalent effect expressly provides that such restrictions and measures shall be prohibited ‘between Member States’.”
1.
Adopting the order in which the cases were pleaded I shall begin with the second category of products concerned, that is to say whisky imported from a Member State, for which the answer should not present any difficulty, even for the French Government, and in respect of which the Comité National de Défense contre l'Alcoolisme has not joined the proceedings as civil party.
In an earlier judgment of 27 February 1980 which the Court gave between the same parties (Commission v French Republic) it held that:
“... there are nevertheless, in the case of all spirits (whether they are made by the distillation of cereals or the distillation of wine), common characteristics which are sufficiently pronounced to accept that in all cases there is at least partial or potential competition” (
5
) (emphasis added).
In paragraph 16 of its decision of 10 July 1980 (
6
) the Court observed that:
“Those [general] observations made in the context of a dispute on the lax arrangements applying to the drinks in question, apply for identical reasons to the assessment of obstacles of a commercial nature covered by Articles 30 and 36 of the Treaty.”
However, in paragraph 20 of the same decision (
7
) the Court stated:
“... the [French] rules ... are contrary to Article 30 of the EEC Treaty inasmuch as they constitute an indirect restriction on the importation of alcoholic products originating in other Member Sutes to the extent to which the marketing of those products is subject, in law or in fact, to more stringent provisions than those which apply to national or competing products ”.
From those passages it seems fairly clear to me that whisky imported from a Member State must be treated in the same way as directly competing national beverages, that is to say beverages in Group 4 (cognac in particular), the advertising of which, as French legislation stands at present, is entirely unrestricted.
On this point the Court's judgment does not in principle call for any action on the part of the French legislature since the national prohibition continues to apply only to whisky imported directly from nonmember countries.
Therefore ail that needs to be done, and must be done, is for all proceedings against those concerned to be withdrawn. This follows in particular from the Court's judgment of 16 February 1978 in the Schonenberg case (
8
) in which it held that:
“Where criminal proceedings are brought by virtue of a national legislative measure which is held to be contrary to Community law a conviction in those proceedings is also incompatible with that law”.
2.
In the case of beverages which are not imported from Member States the question arises in a different way.
As I have explained, this category of products consists of French beverages as well as beverages originating in nonmember countries. I shall examine each case in turn.
(a) National products
The accused (in Case 314/81) contend that if the application of the code has to be suspended for products imported from Member States (like whisky, for example, which after the Court's judgment should be included among the beverages in Group 4, the advertising of which is unrestricted) yet is maintained for national products in Group 3 (Saint Raphael), which may be advertised only to a limited extent), this amounts to “reverse discrimination”.
Those products are in fact either Eartially similar, a concept which “must e interpreted widely”, (
9
) or are “in competition, even partial, indirect or potential”, (
10
) with one another. This Court has however already held that, as regards the similarity and competition existing between the products mentioned, reference need only be made to the judgment which it gave in proceedings between the same parties on 27 February 1980 in Case 168/78 on the tax system for spirits. (
11
) It should be noted that the products concerned in that case were imported natural sweet wines and liquer wines on the one hand and distilled spirits typical of national produce and imported grain spirits on the other.
According to the accused such a difference in treatment is contrary to:
Article 3 (f) and the first paragraph of Article 7 of the Treaty; The principle that those subject to economic rules should be treated equally, which is itself one of the general principles of Community law; and
The safeguarding of fundamental rights ensured by the Court.
At the hearing the same parties also referred to the opinion of the Procureur Général at the Cour d'Appel [Court of Appeal], Paris, of 24 May 1981 and to the judgment of that court of 14 June 1982 in Seal and Others, a case about an advertising campaign for various beverages in Group 5, notably pastis, an aniseed-based aperitif.
The Procureur Général said that “to continue to apply the contested legislation to national products alone would constitute reverse discrimination and be contrary to the constitutional principle that the law should not discriminate contained in the Declaration of Human Rights and incorporated not only in the French Constitution but also in the European Convention on Human Rights”.
The Cour d'Appel itself held that:
“... ever since the judgment mentioned above (
12
) declared the French legislation and in particular Article L 17 referred to in the summons to be absolutely contrary per se to the Treaty of Rome for introducing into the field under consideration a disparity in treatment likely to impede intra-Community trade, it has been necessary not to draw any distinction between beverages imported from one of the Member Sutes and the rest”.
It went on to say that:
“Even if, in accordance with Article 36 of the Treaty, the needs of public health should not be disregarded in this instance, laws or regulations which, in the words of that same article, might be equivalent to ‘a means of arbitrary discrimination’ or ‘a disguised restriction’ on trade between the member countries of the Community must not be allowed to continue to exist in the Common Market...”.
As I have already indicated, the operative part of the Court's judgment of 10 July 1980 did not declare the French legislation to be contrary per se to the Treaty of Rome.
As to the question of “reverse discrimination”, the Court undoubtedly has jurisdiction to safeguard fundamental rights where measures adopted by Community authorities may affect them. But the question which arises in these proceedings does not concern any infringement of fundamental rights by a measure adopted by one of the institutions of the Communities. The Court's judgment does not require the national authorities “to continue to apply the contested legislation to national products alone”. It is entirely neutral in that regard. Therefore it is not for the Court in these proceedings to pronounce on the question whether the application of a Member State's legislation which is likely to cause discrimination against nationals of that State is compatible with general principles of Community law.
The other submissions of the parties must now be examined.
Article 3 (f) of the Treaty on which they rely provides that: “... the activities of the Community shall include,
as provided in this Treaty and in accordance with the timetable set out therein
....
(f)
the institution of a system ensuring that competition in the common market is not distorted”.
If that article lays down one of the principles on which the Community is founded it has effect only in the context of the specific provisions to which it refers, that is to say the rules on competition (
13
) and not the free movement of goods. (
14
)
The first paragraph of Article 7 states that:
“Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited”.
Does that provision enact a general prohibition of reverse discrimination?
It seems not.
According to the decisions of this Court such a prohibition applies in cases concerning the free movement of persons (
15
) but in other cases it comes into operation only on the basis of specific provisions of the Treaty or where a common policy exists, which is not the case in this instance.
For example, in its judgment of 13 March 1979 in the Peureux case (
16
) the Court held that:
“Whether or not a domestic product — in particular certain potable spirits — is subject to a commercial monopoly, neither Article 37 nor Article 95 of the EEC Treaty prohibits a Member State from imposing on that domestic product internal taxation in excess of that imposed on similar products importēti from other Member States”.
More recently, in its judgment of 16 February 1982 in the Vedel case (
17
), the Court refused to accept that the discrimination which a product produced on the domestic market was likely to suffer compared to similar products from other Member States was reverse discrimination.
As regards the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950, Article 6 (1) thereof provides that:
“In the determination of his civil rights and obligations or any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...” (emphasis added).
Article 14, also cited by the accused, provides that:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” (emphasis added).
Those two provisions appear to have nò place in these proceedings.
The principle of equality before the criminal law undoubtedly exists in the French constitutional order but to me it appears out of place in a Community legal order which is socioeconomic in nature.
Consequently it is for the French courts to rule, subject to review by the Cour de Cassation, on such “reverse discrimination”.
In this regard, contrary to what the Commission said at the hearing, the Cour de Cassation has hitherto never held that “the legality of the [French] criminal legislation, when viewed in the light of the provisions of the Treaty, which rank higher than those of national law, must not be decided differently depending on the nationality of the accussed or the origin of the product alleged to have been unlawfully advertised”. This was a submission made by some of the appellants in their appeal and not a ground of the judgment which the Cour de Cassation delivered on 1 October 1979. (
18
)
(b) Beverages imported from nonmember countries
In their written observations the accused parties (in Cases 315 and 316/81) rely solely on the general nature of the condemnation contained in the Court's judgment.
I believe that I have shown that the Court's judgment was not a general condemnation.
In its written observations the Commission raises the question whether the Free-Trade Agreement signed on 22 July 1972 between the European Economic Community and Portugal might be of some assistance to those accused. At the hearing the accused in the proceedings which gave rise to Case 316/81 also invoked the provisions of that Agreement. They contended that in any case by virtue of Articles 9 and 10 of the Treaty equal treatment must be accorded to products from nonmember countries in free circulation in the Member States.
Although that aspect of the problem was not expressly raised by the national court, I shall examine it briefly, for the Court's judgment has created a degree of legal uncertainty in France which may be worth dispelling.
Articles 14 (2) and 23 of the Agreement between Portugal and the EEC are equivalent to Articles 30 and 36 of the EEC Treaty. However, the similarity in their wording is not a sufficient reason for transposing to the scheme of the Agreement the Court's decision of 10 July 1980 which defines the relationship in the Community between the protection of public health and the rules on the free movement of goods. (
19
)
On the other hand it ought to be possible for beverages imported from nonmember countries (Portugal or other countries) which have complied with the customs formalities in a Member State, other than France, where they were imported, to be promoted by way of advertising campaigns in France just like similar beverages produced in that other Member State, provided that the sellers show that the advertising carried out relates only to products put into free circulation in the rest of the Community.
IV —
In conclusion there are certain considerations which, I think, unquestionably merit the Court's attention.
I have said that from the stria point of view of the free movement of goods between Member States (Article 30) it made no difference whether the national authorities concentrated their efforts to stamp out excessive consumption of alcohol on national products or on products directly imported from nonmember countries. The Court itself did not attach any importance to the fact that the classification set out in Article L 1 of the French Code was based on certain differences relating both to the method of manufacture of the products as well as to their characteristics; all that was needed was that two groups of beverages should be in competition, even partial, indirect or potential, or similar.
However, quite apan from what Mr Mortelmans calls the “growing mischief” of reverse discrimination, the situation is not the same from the point of view of public health which, in the absence of a common policy in this sector, remains a legitimate goal of the national legislature. The campaign against alcoholism is indivisible in its necessity and it should not be subject to distinctions depending on whether intra-Community trade is concerned or not.
It may be asked why the advertising of national aniseed-based apéritifs like pastis is totally prohibited whereas the advertising of grain spirits and geneva from other Member Sutes is permitted. Should the advertising of those last two beverages be totally unrestricted, as it is for beverages in Groups 2 and 4, while only limited advertising is permissible in the case of beverages in Group 3? Should all natural sweet wines and all wine-based aperitifs from other Member States (the advertising of which is still restricted) be treated like French natural sweet wines to which the tax arrangements for wine apply (the advertising of which wines is unrestricted)?
From that point of view, the unqualified application of the principle of the equal treatment of products imported from other Member States is likely to unleash a wave of advertisements running directly counter to the aim which the legislature seeks to achieve. The result would be that the national rules would be best designed to ensure the free movement of goods but least suited to protect public health.
In my view there are only two ways of remedying this situation:
Either by harmonizing or approximating (pursuant to Articles 100 or 235 of the Treaty) Member States' legislation on the advertising of alcoholic beverages. The classification for tax purposes would have to take into account the requirements of public health as far as it could;
Or by completely recasting the French legislation on the advertising of alcoholic beverages. The French authorities appear to have adopted this latter course as they have tabled a bill on the advertising of alcoholic beverages on 24 May 1980.
As things stand at present I can but conclude that in reply to the question asked by the national court the Court should rule:
By virtue of Article 171 of the EEC Treaty a Member State's legislation governing the advertising of alcoholic beverages which the Court has held to be a measure having an effe equivalent to a quantitative résiliation on imports within the meaning of Article 30 of the Treaty is unenforceable only against similar products from other Member Sutes.
(
1
)	Translated from the French.
(
2
)	Case 152/78 Commission v French Republic [1980] ECR 2299.
(
3
)	Other than those covered by the tax arrangement applying to wines in Group 2.
(
4
)	(1976) ECR 871. paragraph 8 of the decision ai p. 904
(
5
)	(1980) ECR 347. paragraph 12 oí the decision al p. 362.
(
6
)	(1980) ECR ai p. 2316
(
7
)	(1980) ECR ai p. 2317
(
8
)	(19781 ECR 473 aip. 492.
(
9
)	Paragraph 5 of the decision in the judgment of 27 February 1980, at p. 359.
(
10
)	Paragraph 6 of the decision in the judgment of 27 February 1980, at p. 360.
(
11
)	Paragraph 13 of the decision of 10 July 1980, at p. 2315.
(
12
)	The Court's judgment of 10 July 1980.
(
13
)	Title I of Pan Three.
(
14
)	Title 1 of Pan Two.
(
15
)	Right of establishment laid dcrøn in anide 52: judgment of 5 February 1979, /Croon, [1979] ECR 399.
(
16
)	[1979) ECR at p. 915; see Opinion of Mr Advocate General Mayras of 14 December 1978 [1979] ECR at pages 920 and 921
(
17
)	Cf. my Opinion of 20 October 1981 [1902] ECR 481.
(
18
)	Rotii di Monulera and Otbtn.
(
19
)	Cf. paragraph 15 of the decision of 9 February 1982 in Polydor.