5.

The Commission recognizes that the system of hallmarking articles which are either made of precious metals or are silver-plated has as its purpose to protect consumers and ensure fair trading. In its opinion, however, it is unlawful to require a fresh hallmark to be impressed on the article where it has already been stamped with one in the country of origin or to impose the use of a hallmark in a specific form. I share the Commission's views on the lawfulness of the system of hallmarking in general. It remains to be seen whether the restrictions on intra-Community trade in articles made of precious metals which result from provisions on hallmarking such as those contained in Belgian law are proportionate in relation to the purpose of protecting consumers and fair trading. In other words, it is necessary to determine whether the system in question is lawful in the light of the principle of proportionality. This Cou rt has denied that it is permissible to rely on the principles of consumer protection and fair trading where those objectives can be achieved by imposing on intra-Community trade restrictions which are less severe than those in point; see in that respect the judgment of 20 February 1979 in Case 120/78 Rewe, cited above, in particular paragraph 13 of the decision. We have seen that under the Belgian system, which the national court has taken as a point of reference for its question, the arrangements in respect of imported articles made entirely of precious metal differ from those applicable to imported articles plated with a precious metal. The inquiry which remains to be made must therefore take into account the different treatment accorded (in this case) to the two categories of articles. A preliminary observation which may, however, be made with reference to both categories is that no harmonization directives have yet been adopted in those sectors by the Community. In other words, neither the general programme for the elimination of technical barriers to trade which result from disparities between the provisions laid down by law, regulation or administrative action in Member States, adopted by the Council on 28 May 1969 nor the Council Resolution of 17 December 1973 on industria! policy, both of which provide for the gradual removal of legislative disparities also in the field of trade in precious metals, has been implemented. Against that background, I shall deal first of all with the category of articles made of precious metal; here I should like to observe that a system such as the one which is in force in Belgium and in principle recognizes foreign assays as valid for the purpose of marketing products on its own territory is amply justified by the need to protect consumers and fair trading. Moreover, it seems to me that where the foreign legislation offers no guarantees regarding the official character of the aforesaid assays, or makes no provision whatever for such assays, it is reasonable to require importers to comply with local legislation and consequently with the requirements as to hallmarking which that legislation prescribes. Nor do I believe that it is excessive to require articles to be stamped with both the hallmark as to fineness and with the manufacturer's mark, since the purpose of both marks is to ensure that the specific objectives of protecting the consumer and fair trading are attained. The hallmark as to fineness enables buyers to determine at a glance how much pure metal is present in the alloy and the manufacturer's mark makes it easy to identify the manufacturer for the purposes of responsibilities incumbent upon him (which include responsibility in relation to the accuracy of the indications concerning fineness). What strikes me as more important is that hallmarks should display the same features irrespective of the importer's nationality. From that point of view, in my opinion, a provision such as Article 14 of the abovementioned Decree No 80 of 1939, according to which persons who are not Belgian nationals must Erovide a guarantee when registering the allmark, whereas Belgian nationals are under no such obligation, is not in conformity with Community law. A provision of that kind creates discrimination without justification between nationals and non-nationals. In that connection, I would recall the judgment of 17 June 1981 in Case 113/80 which I have already cited (see in particular paragraph 11 of the decision). Furthermore, as regards the arrangements in respect of silver-plated articles made of base metal, we have already seen that under the Belgian legislation such articles must always be hallmarked in Belgium, regardless of the fact that they have already been stamped with similar hallmarks or undergone similar assays in their country of origin. The Commission maintains that, in that case too, in the light of Aride 30, the importation of articles bearing hallmarks which are in conformity with the law of the country of origin should be permitted, on condition that such hallmarks provide at least the same information as that which would be provided by the hallmarks impressed in accordance with Belgian law. In support of that argument, the Commission relies on the judgment of the Court of 16 December 1980 in Case 27/80 Fietje [1980] ECR 3839. In that case it was necessary to determine whether a Member State might enact rules governing the description and labelling of imported alcoholic beverages so as to make it necessary to alter the label under which a given beverage was lawfully marketed in its country of origin. The Court ruled that where the deuils given on the original label supplied the consumers with information (on the nature of the product) equivalent to that contained in the description prescribed by the Sute of imporution, the aforesaid provisions of national law must be regarded as a measure having an effect equivalent to a quantiutive restriction since they did not serve a purpose which was in the public interest relating to consumer protection. In my opinion, the criterion laid down in that judgment also applies in the present case, even though there is no denying that it is particularly difficult to determine in practice whether the content and the value of the information set out on a hallmark prescribed by a given country is equivalent to the same requirement imposed by another Sute. In that regard, it should be borne in mind that hallmarks sumped on precious meuls provide the consumer with information by means of a very restricted number of signs. Under the Belgian system, for example, a letter sunds for the meul, a numeral sunds for the pure meul content and the characteristic form of every hallmark makes it possible to distinguish the indications relating to fineness from those relating to the manufacturer's mark. That type of code differs, or may differ, from one country to another and it is therefor reasonable to assume that consumers in a given country are familiar with the code used there and not with any other codes which may be in force elsewhere. In this field, the harmonization of national laws is essential. Without it, the question whether hallmarks in conformity with the law of a Sute are also suiuble for providing foreign consumers with the desired information must be approached very cautiously. In my view, it is important to emphasize that foreign hallmarks must be equivalent as regards content (in the present case, the indications relating both to fineness and to the manufacturer's mark), as regards assays (which must offer the same guarantees) and, finally, as regards the degree of clarity (the consumer must be able to undersund the indications provided by the hallmarks). If those conditions are fulfilled, it is also possible to agree with the Commission when it mainuins that provisions of national law are incompatible with Article 30 of the Treaty if they require importers to use hallmarks in a specific form or corresponding to a model registered beforehand, even though sufficient information is already provided by the hallmarks differing in form impressed on the articles at the time of importation.