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.