Opinion of Mr Advocate General Mischo delivered on 22 March 2001. - Commission of the European Communities v French Republic. - Failure by a Member State to fulfil its obligations - Article 30 of the EC Treaty (now, after amendment, Article 28 EC) - Free movement of articles of precious metal - Rules on acceptable standards of fineness. - Case C-84/00.



European Court reports 2001 Page I-04553



Opinion of the Advocate-General

1. By an action for failure to fulfil obligations brought on 7 March 2000, the Commission asks the Court to declare that the French Republic has failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC), by failing to allow the marketing within France of articles of precious metals which come from other Member States and purport to have a standard of fineness of 999 parts per thousand, despite the fact that that standard of fineness is commonly used in commercial practice. It also asks that the French Republic be ordered to pay the costs.

2. In its application, the Commission sets out the steps taken in the pre-litigation procedure provided for by Article 169 of the EC Treaty (now Article 226 EC), which was particularly protracted in this case because of the French Government's willingness in principle, though not in fact, to amend the national law in question in the way advocated by the Commission.

3. In its complaint against the French Republic, the Commission alleges that Articles 521 and 522 of the Code Général des Impôts (General Tax Code) impose a restriction on the movement of goods in providing (Article 521) that:

Manufacturers of articles made of gold or containing gold, silver or platinum shall be subject to the rules on guaranteed standards in this chapter, not only in respect of their own production but also in respect of articles which they have manufactured for them by third parties using materials belonging to them. Any person who markets such articles which come from other Member States of the European Union or third countries, or their representatives, shall also be subject to these rules,

and (Article 522) that:

The statutory standards of fineness for articles of gold or containing gold, silver or platinum are as follows:

(a) 916 and 750 parts per thousand for articles of gold; 585 and 375 parts per thousand for articles containing gold;

(b) 925 and 800 parts per thousand for articles of silver;

(c) 950, 900 and 850 parts per thousand for articles of platinum.

4. Articles of precious metals with a standard of fineness of 999 parts per thousand manufactured in other Member States that recognise that standard are denied access to the French market. The Commission, relying on the Court's decisions of 22 June 1982 and 15 September 1994 concerning precious metals, does not dispute the right of the Member States to regulate the standard of fineness and the hallmarking of works made of precious metals. It considers that, whilst certain standards of fineness may be rejected on the ground that they are too close to those with which domestic consumers are familiar, that cannot be the case for certain standards of fineness commonly used in commercial practice which are unlikely to create such confusion as to undermine consumer protection and fair trading.

5. The standards which, in the Commission's view, all of the Member States must acknowledge, and which have therefore been incorporated in the draft directive of the Council and the Parliament on articles of precious metals, submitted to the Council on 22 April 1996, include the figure 999 parts per thousand.

6. In its defence, the French Government does not deny the restrictive effect on trade of Articles 521 and 522 of the General Tax Code and does not contend that the requirements of consumer protection and fair trading preclude a standard of fineness of 999 parts per thousand in France.

7. On the contrary, it points out, in a memorandum addressed to the Commission on 21 August 1996, that ... the standard of 999 parts per thousand ... can be easily integrated into French law and attaches to its draft amendment of Article 522 of the General Tax Code included in the amending draft of its 1997 Finance Law a statement of reasons in these terms: the statutory standards of fineness for articles of precious metals do not include 999 parts per thousand for gold, silver and platinum. Certain manufacturers, including those in other Member States of the European Union, produce such works. Certain consumers wish to invest in works made of precious metals of a very high standard of fineness. It is appropriate to permit the marketing of such articles on French territory and, in order to do so, these standards of fineness must be made lawful.

8. It thus appears undeniable that the French Government accepts that the Commission's complaint is well founded. In truth, I fail to see how grounds of consumer protection and fair trading can be relied upon in relation to a standard of fineness that is close to absolute purity and superior to the highest standards currently recognised by French law, namely 916 parts per thousand for articles of gold, 925 parts per thousand for those of silver, and 950 parts per thousand for those of platinum.

9. In contrast to standards inferior to the lowest standards allowed by French law, the standard of 999 parts per thousand is unlikely to deceive the French consumer.

10. Clearly therefore, at the date when proceedings were started and, as far as I am aware, as at today's date, French law has not been amended to bring it into line with Article 30 of the Treaty, notwithstanding the French Government's numerous assurances that such an amendment was imminent.

11. It appears from various memoranda sent by the French Government to the Commission that the amended 1997 Finance Law, the 1998 Finance Law and the Law amending and simplifying the rules on indirect contributions, the draft of which was filed on 18 June 1998, were all in turn intended to bring the infringement to an end.

12. In fact, for reasons unknown to me, that did not happen.

Conclusion

13. Accordingly, I can only propose that the Court uphold the Commission's application in its entirety and therefore:

(1) declare that the French Republic has failed to comply with its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC) in failing to allow the marketing within France of articles of precious metals which come from other Member States and purport to have a standard of fineness of 999 parts per thousand;

(2) order the French Republic to pay the costs.