Judgment of the Court (Fourth Chamber) of 25 September 1985. - Procureur de la République v Bernard Girault. - Reference for a preliminary ruling: Tribunal de grande instance d'Avignon - France. - National rules on fuel prices. - Case 202/84.



European Court reports 1985 Page 02985



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS - MEASURES HAVING EQUIVALENT EFFECT - RULES ON THE PRICE OF FUEL - PROHIBITION - CRITERIA

( EEC TREATY , ART . 30 )

2 . FREE MOVEMENT OF GOODS - DEROGATIONS - PUBLIC POLICY - RULES ON THE PRICE OF FUEL - JUSTIFICATION - NONE

( EEC TREATY , ART . 36 )

Summary

1 . ARTICLE 30 OF THE EEC TREATY PROHIBITS NATIONAL RULES PROVIDING FOR A MINIMUM PRICE TO BE FIXED BY THE NATIONAL AUTHORITIES FOR THE RETAIL SALE OF FUEL WHERE THE MINIMUM PRICE IS FIXED ON THE BASIS SOLELY OF THE EX-REFINERY PRICES OF THE NATIONAL REFINERIES AND WHERE THOSE EX-REFINERY PRICES ARE IN TURN LINKED TO THE CEILING PRICE WHICH IS CALCULATED ON THE BASIS SOLELY OF THE COST PRICES OF NATIONAL REFINERIES WHEN THE EUROPEAN FUEL RATES ARE MORE THAN 8% ABOVE OR BELOW THOSE PRICES .

2 . LEGISLATION FIXING A MINIMUM PRICE FOR FUEL CANNOT BE REGARDED AS MEETING AN OBJECTIVE OF PUBLIC POLICY FOR THE PURPOSES OF ARTICLE 36 OF THE EEC TREATY .

Parties

IN CASE 202/84

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DE GRANDE INSTANCE ( REGIONAL COURT ), AVIGNON , FOR A PRELIMINARY RULING IN THE CRIMINAL PROCEEDINGS BROUGHT BEFORE THAT COURT BY

PROCUREUR DE LA REPUBLIQUE ( PUBLIC PROSECUTOR )

AGAINST

BERNARD GIRAULT ,

AND THE PARTY LIABLE AT CIVIL LAW , THE COMPANY SAMU-AUCHAN ,

Subject of the case

ON THE INTERPRETATION OF ARTICLES 30 AND 36 OF THE EEC TREATY ,

Grounds

1 BY JUDGMENT OF 26 JULY 1984 , WHICH WAS RECEIVED AT THE COURT ON 9 AUGUST 1984 , THE TRIBUNAL DE GRANDE INSTANCE , AVIGNON , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLES 30 AND 36 OF THE EEC TREATY , IN ORDER TO ENABLE IT TO DETERMINE WHETHER NATIONAL RULES IMPOSING A MINIMUM PRICE ON THE SALE OF FUEL TO CONSUMERS ARE COMPATIBLE WITH COMMUNITY LAW .

2 THE QUESTIONS WERE RAISED IN THE CONTEXT OF CRIMINAL PROCEEDINGS BROUGHT AGAINST BERNARD GIRAULT WHO IS ACCUSED OF HAVING CHARGED UNLAWFUL PRICES BY SELLING PETROL AT PRICES BELOW THE MINIMUM PRICES FIXED BY THE RULES IN FORCE IN DECEMBER 1983 .

3 THE ACCUSED DID NOT DISPUTE THE SUBSTANCE OF THE FACTS ALLEGED AGAINST HIM BUT ASKED TO BE ACQUITTED ON THE GROUND THAT THE MINIMUM PRICES WHICH HE HAD FAILED TO APPLY WERE BASED ON THE MINISTERIAL DECREES OF 29 APRIL 1982 AND 9 NOVEMBER 1983 CONCERNING THE PRICE SYSTEM FOR PETROLEUM PRODUCTS , WHEREAS THOSE RULES WERE , HE MAINTAINED , INCOMPATIBLE WITH COMMUNITY LAW , IN PARTICULAR ARTICLE 30 OF THE EEC TREATY , AND WERE NOT JUSTIFIED ON ANY OF THE GROUNDS SET OUT IN ARTICLE 36 OF THAT TREATY .

4 IN THOSE CIRCUMSTANCES THE TRIBUNAL DE GRANDE INSTANCE , AVIGNON , CONSIDERED IT NECESSARY TO REFER TO THE COURT OF JUSTICE THE FOLLOWING QUESTIONS FOR A PRELIMINARY RULING :

' ( 1 ) IN COMMUNITY LAW AND HAVING REGARD IN PARTICULAR TO ARTICLE 30 OF THE TREATY OF ROME , CAN THE FIXING OF A MINIMUM RETAIL PRICE FOR MOTOR FUELS ON THE FRENCH DOMESTIC MARKET BE REGARDED AS A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION ON IMPORTS?

( 2)DO THE ARGUMENTS ADVANCED BY THE ADMINISTRATION DE LA CONCURRENCE ET DE LA CONSOMMATION ON PAGES 13 , 14 AND 15 OF ITS OBSERVATIONS , IN PARTICULAR THE DESIRE TO PROTECT THE INTERESTS OF CONSUMERS AT THE NATIONAL LEVEL BY MAIN TAINING EFFECTIVE COMPETITION WITHIN THE NATIONAL TERRITORY IN ORDER TO ENSURE THAT SMALL RETAILERS SURVIVE IN THE FACE OF COMPETITION FROM LARGE GROUPS , CONSTITUTE GROUNDS OF PUBLIC POLICY OR PUBLIC SECURITY FOR THE PURPOSES OF ARTICLE 36 OF THE TREATY OF ROME?

'

5 THE QUESTION CONCERNING THE INTERPRETATION OF ARTICLE 30 OF THE EEC TREATY HAS ALREADY BEEN EXAMINED BY THE COURT IN ITS JUDGMENT OF 29 JANUARY 1985 IN CASE 231/83 ( CULLET V CENTRE LECLERC TOULOUSE ( 1985 ) ECR 315 ). THE PRICE SYSTEM AT ISSUE IN THE MAIN PROCEEDINGS IS THE SAME AS THAT WHICH GAVE RISE TO CASE 231/83 EXCEPT THAT MINISTERIAL DECREE NO . 83-58/A OF 9 NOVEMBER 1983 , WHICH IS APPLICABLE TO THE FACTS OF THIS CASE , INCREASED , WITH REGARD TO REGULAR AND SUPER-GRADE PETROL , THE MARGIN WITHIN WHICH THE RETAIL SELLING PRICE FIXED UNDER MINISTERIAL DECREE NO . 82-10/A COULD BE REDUCED . HOWEVER , WITH REGARD TO THE APPLICATION OF COMMUNITY LAW , THAT FACTOR DOES NOT RAISE PROBLEMS WHICH DIFFER FROM THOSE RESOLVED BY THE AFOREMENTIONED JUDGMENT OF 29 JANUARY 1985 .

6 IN THAT JUDGMENT THE COURT CAME TO THE FOLLOWING CONCLUSION WITH REGARD TO THE INTERPRETATION OF ARTICLE 30 OF THE EEC TREATY :

ARTICLE 30 OF THE EEC TREATY PROHIBITS SUCH RULES WHERE THE MINIMUM PRICE IS FIXED ON THE BASIS SOLELY OF THE EX-REFINERY PRICES OF THE NATIONAL REFINERIES AND WHERE THOSE EX-REFINERY PRICES ARE IN TURN LINKED TO THE CEILING PRICE WHICH IS CALCULATED ON THE BASIS SOLELY OF THE COST PRICES OF NATIONAL REFINERIES WHEN THE EUROPEAN FUEL RATES ARE MORE THAN 8% ABOVE OR BELOW THOSE PRICES .

7 WITH REGARD TO THE INTERPRETATION OF ARTICLE 36 OF THE EEC TREATY , THE VIEW WAS TAKEN IN THAT JUDGMENT THAT LEGISLATION FIXING A MINIMUM PRICE FOR FUEL CANNOT BE REGARDED AS MEETING AN OBJECTIVE OF PUBLIC POLICY FOR THE PURPOSES OF THAT PROVISION .

8 SINCE THERE APPEARS TO BE NO NEW FACTOR IN THE PRESENT CASE REFERENCE SHOULD BE MADE , WITH REGARD TO THE REPLIES TO BE GIVEN TO THE TRIBUNAL DE GRANDE INSTANCE , AVIGNON , AND TO THE CONSIDERATIONS WHICH LED TO THOSE REPLIES , TO THE TEXT OF THE AFOREMENTIONED JUDGMENT OF 29 JANUARY 1985 , A COPY OF WHICH IS ANNEXED HERETO .

Decision on costs

COSTS

9 THE COSTS INCURRED BY THE FRENCH GOVERNMENT AND BY THE COMMISSION , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , A STEP IN THE PROCEEDINGS BROUGHT BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

Operative part

THE COURT ( FOURTH CHAMBER )

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DE GRANDE INSTANCE , AVIGNON , BY JUDGMENT OF 26 JULY 1984 , HEREBY RULES :

( 1 ) ARTICLE 30 OF THE EEC TREATY PROHIBITS SUCH RULES WHERE THE MINIMUM PRICE IS FIXED ON THE BASIS SOLELY OF THE EX-REFINERY PRICES OF THE NATIONAL REFINERIES AND WHERE THOSE EX-REFINERY PRICES ARE IN TURN LINKED TO THE CEILING PRICE WHICH IS CALCULATED ON THE BASIS SOLELY OF THE COST PRICES OF NATIONAL REFINERIES WHEN THE EUROPEAN FUEL RATES ARE MORE THAN 8% ABOVE OR BELOW THOSE PRICES .

( 2)LEGISLATION FIXING A MINIMUM PRICE FOR FUEL CANNOT BE REGARDED AS MEETING AN OBJECTIVE OF PUBLIC POLICY FOR THE PURPOSES OF ARTICLE 36 OF THE EEC TREATY .