4.

But the Netherlands Government has another, much better card up its sleeve: even if it is admitted that the rules in question are incompatible with Article 30, they should nevertheless, it claims, be acknowledged to be lawful by virtue of Article 36. It is clear that they are justified on the ground of protection of health. Moreover, being applicable to both national and imported products, they satisfy the requirement of nondiscrimination which that article makes a prerequisite for such justification. What is to be said of these arguments? Over the second there can be no dispute. The argument based on the protection of health is problematical but is based on data and figures which it would be absurd to dismiss out of hand. According to the Netherlands Government there were in 1981, that is to say in the year before the contested order was issued, more than 9.5 million people covered by compulsory and voluntary insurance. The contributions paid to the Algemene Kas amounted to 8200 million guilders and the cost of reimbursements for medicinal products was 8900 million. The total debit balance was 700 million, to which must be added the minor but nevertheless significant deficits of the Fonds Bejaardenversekering and of the voluntary insurance scheme. In 1982, it would appear, that shortfall increased by around 200 million, and because the crisis prevailing within the Community shows no signs of receding it is to be feared that it will become a permanent feature, with obvious risks for the operation of a service essential to society and, in particular, to the weakest social groups. In a situation of that kind, I think it is impossible to deny that Member States have a power of intervention and that, at least as a general proposition, the safeguards provided by Article 36 must be extended to the measures adopted by them. I am well aware that this argument is open to objections but, in view of the seriousness of the preoccupations underlying it, none of the objections seems strong enough to cast any doubt upon the result which I believe must be reached. This applies, for example, to the objection which I shall describe as relating to the “indirect purpose” of the measures. The Netherlands rules, it is said, are only indirectly concerned with the protection of health; intended as they are to restore the finances of the social security bodies, their most salient feature — which is of primary importance as regards their legal classification — is the economic policy objective which they seek to achieve. That is indeed more or less the actual position. The consequences of this are, however, of little weight. Article 36 refers to justification on the basis of a number of specific grounds or purposes which must underlie the internal measures. It does not, however, say that, in order to operate as grounds of exemption, those purposes must be pursued in a direct fashion. Neither does it say that if a measure has several objectives, only one of which constitutes a ground of justification, that measure must be regarded as unjustified. To read all that into the article, without any basis in logic or in its wording, is tantamount to reducing its scope, which is purely and simply to render lawful national measures intended to protect health or achieve the other important objectives referred to therein. But, it may be retorted, that is an extensive interpretation to which Article 36 is not amenable. The Court has on several occasions emphasized the “exceptional” nature of that provision with respect to the principle of the free movement of goods and has added that that fact is to be taken into account when the provision is being interpreted (cf. judgment of 25 January 1977 in Case 46/76 Baubuis v Netherlands [1977] ECR 5 and 12 October 1978 in Case 13/78 Eggers [1978] ECR 1935). To this I could reply that an exceptional provision is amenable not to an analogical interpretation but to an extensive interpretation, since the latter serves only to identify the intention of the legislature when the wording is unclear or is capable of having a number of meanings. I, however, do not do so because I do not believe that mine is an extensive interpretation. In fact, if I may repeat myself, my interpretation derives from a linear judgment and, I am convinced, one which is true to the letter of the provision in question. When it refers to the “grounds” of a particular set of national rules, Article 36 clearly intends to refer to the basic considerations — such as the protection of health — which inspire those rules. The fact that those considerations are accompanied by others which are not relevant to that article is immaterial, as is the fact that the relevant considerations inspire the contested rules indirectly — albeit not too remotely — rather than in an immediate or direct fashion. There is only one feature which those considerations must display if the ground of justification is to be operative: they must have had a decisive influence on the choices made by the national legislature. And nobody called upon to interpret the Netherlands measures could seriously doubt that this applies to those measures, in so far as they are plainly intended to promote a policy of “austerity”.