2.

The requirement of the certificate of origin of goods coming from other States is customary in free trade areas where, in the absence of a common external customs tariff, it is necessary to distinguish between products originating in the area in question, and as such put into free circulation, from products coming from third countries. In our case, however, this requirement has no customs function but is merely intended to protect designations of origin adopted by the Belgian authorities. In the absence of a Community definition it is. certainly lawful for a Member State to adopt the definition of a particular standard product given by the competent authorities of the producer third country for the purposes of protecting, in accordance with international conventions, the designations of origin of foreign products. The first question does not cast doubt upon the conformity with the Treaty of national laws intended to protect the origin of goods, but merely the lawfulness of the particular means used by Belgian law, which relate to proof that the goods in question correspond to the legal definition and which require, even where the goods have already been put into free circulation in another Member State, a certificate of origin issued by the authorities of the country where the goods were produced. The fear expressed by the Brussels court that this requirement will hinder the free movement of goods between Member States to the point where it will completely prevent it in certain cases is most certainly well-founded. Clearly, this is especially the case where the certificate of origin is required to be made out directly in the name of the Belgian importer; or where, even apart from any indication as to the party to whom it must be addressed, the national authorities will accept only the original certificate, without admitting the possibility of equivalent copies, even when legally authenticated. These requirements, even considered separately, are not in fact easy to satisfy for those who purchase the products indirectly in a Member State of the Community with a view to exporting them to Belgium. But, rather than dwell at this stage upon these extreme cases, I will concentrate primarily on the more general question of the compatibility with Community law of the requirement of the certificate of origin for goods bearing a designation duly adopted in the importing State. The requirement of the certificate of origin, issued by the authorities of the producer country as a general rule at the time of export, has a restrictive effect on the movement of products between Member States because of the practical difficulties in obtaining the certificate encountered by traders operating indirectly who normally only purchase from the exclusive concessionaire part of a larger consignment. Although in theory it is also possible for third parties subsequently to ask the British authorities for the certificate, the need to possess the precise details enabling the batch in question to be correctly identified as the subject of a particular export, makes it in practice rather difficult, if not completely impossible, to obtain this certificate, especially for small quantities forming part of a larger consignment. This applies, a fortiori, where individual exclusive concessionaires in the various Member States are unwilling — either because they have entered into a formal undertaking with the producer not to engage in exports, or because they wish to avoid upsetting any convenient territorial division of the markets — to cooperate in any way with third traders, and, for example, do not supply all the details needed to identify the consignment in question. The result of this is in practice completely to prevent freedom of movement between the various national markets, such movement as there is running along a single well-defined path and involving the recognized likelihood of differences, objectively unjustified, in the price of a particular product from one Member State to another. The products in question can in fact be imported legally into Belgium only by exclusive concessionaires or agents of the producers, since the latter are the only ones having access to direct supplies and they can therefore obtain the certificate of origin without any difficulty. The fact that third parties have the possibility of importing freely into Belgium original Scotch whisky by describing it merely as whisky does not, by reason of the clearly uneconomic nature of the operation, cast the situation described above in a more favourable light. One can recognize here a situation which in some respects is similar to that which the Court dealt with in the Grundig-Consten Case. But there are also important differences. Above all, the restriction on freedom of movement and on competition, which in this case is caused not by trade mark rights but by the rules for the protection of the designation of origin of the goods, derives, objectively and necessarily, from the law itself, which applies without the need for any initiative on the part of interested private parties. Whereas in that case the trade mark was used expressly in the private interests of individual undertakings who sought to exclude parallel imports of products from the same firm, in our case, the legal sanctions are intended to ensure respect for a legal requirement enacted to protect a public interest represented, in the main, in the importing State, by the interest of consumers in ascertaining the quality of goods. Furthermore, whereas in the Grundig case the hindrance to parallel imports resulting from the trade mark was a legal obstacle and as such insuperable in domestic law by reason of the completely exclusive nature of the trade mark which was directly guaranteed to its national owner, in this case there is no legal prohibition on parallel imports into Belgium of products bearing a designation of origin. There is only the requirement of a document which in theory anyone may obtain, and which, by its very nature, constitutes without doubt an effective means of controlling the product's authenticity.