3.

In my Opinion of 29 May 1980 in Case 788/79 Gilli and Andres [1980] ECR 2071, I had occasion to point out that the Member States have not, despite the prohibitions contained in Articles 30 and 34 of the EEC Treaty, been entirely deprived of the right to adopt, subject to certain conditions, provisions which hinder, directly or indirectly, intra-Community trade. In this connexion, Ī referred both to Article 36 of the Treaty and to earlier decisions of this Court, which has accepted that restrictive national measures are in conformity with Community law where they are “necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer” (this sentence is to be found in the judgment of 20 February 1979 in Case 120/78 Rewe v Bundesmonopolverwaltung fiir Branntwein [1979] ECR 649, which was followed by the Court in its decision of 26 June 1980 in Gilli and Andres). Even beyond the circumstances specified in Article 36 of the EEC Treaty, the Court has recognized that national rules are lawful, notwithstanding the prohibitions contained in Article 30 and 34, on condition that they serve “a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods, which constitutes one of the fundamental rules of the Community” (paragraph 14 of the decision in the above-mentioned judgment of 20 February 1979 in Rewe). In the light of this, the Irish Government cannot be reproached for having sought grounds which fall outside the scope of Article 36 in order to justify the aforesaid legislation when it contends that the purpose thereof is to protect the consumer and ensure fair trading. The Court is however empowered and obliged to establish whether this justification is founded on objective grounds and, more particularly, whether the measures adopted and maintained in force by the Irish Government are really necessary to protect the consumer and guarantee a standard of fairness in trade in the products under consideration. In support of its argument, the Irish Government has asserted that articles of jewellery which are in the nature of souvenirs of a particular country are perceived by the consumer as having been manufactured in that country. If, on the other hand, they are produced abroad and subsequently imported, prospective purchasers should be informed of their origin, failing which they would be misled, in the sense that they would be exposed to the risk of buying foreign goods in the firm belief that they had been manufactured on the spot; hence the need, in order to protect consumers on the one hand and domestic producers on the other, for a mark to be affixed to all articles of jewellery manufactured abroad which hold themselves out as being “souvenirs of Ireland”. I cannot share this point of view for various reasons. To begin with, it is not correct to state that the essential characteristic, or at any rate the principal attraction of souvenirs consists in their having been produced on the spot. A souvenir, according to the dictionary, is an article which recalls an object, a place or an event either by virtue of what the article itself represents (for example, a reproduction of a monument or of a sight of outstanding natural beauty) or by virtue of the place where the article was purchased or for both these reasons. In the present case, the disputed provisions concern a particular type of souvenir, namely articles which are generally sold to tourists and are tokens of remembrance of a particular place visited by them. In my opinion, a tourist is not induced to purchase an article of this kind by the belief that it has been manufactured on the spot for it is a well-known fact that souvenirs are frequently manufactured elsewhere (for example, the vast number of reproductions of the Eiffel Tower or the Statue of Liberty or even the countless miniatures of Venetian gondolas!). The essential characteristic of souvenirs which invests them with the power to evoke and recall places which have been visited lies particularly in the pictorial representations which they incorporate and in the fact that they are purchased on the spot. To require imported products to bear a mark indicating their origin is therefore not necessary in order to protect the consumer or ensure fair trading and the sole effect of such a measure is to restrict, without justification, the free movement of goods. The position with regard to typical products of local craftsmen is different. In the case of such articles, the purchaser is indeed motivated by the belief that they have been manufactured on the spot and it is clear that any purchaser who was unaware that the articles came from abroad would be a victim of an unfair commercial practice. It follows that in such cases it is doubtless necessary, and therefore legitimate under Community law, to afford the consumer an appropriate degree of protection. However, the disputed Irish provisions concern, as has been seen, articles of jewellery made of precious or base metal which are souvenirs of Ireland and not typical products of local craftsmen. Accordingly, there can be no justification for the requirement to mark the place of origin or an indication of foreign origin on imported products displaying the above-mentioned characteristics. In any event, even as far as typical products of local craftsmen are concerned, I doubt whether the only way to protect the consumer and ensure fair trading is by means of an indication that an article is of foreign origin. The same objectives could and should be pursued by requiring domestic manufacturers to affix a mark of origin to their products. Any increase in the cost would be offset by the dominant position on the market which is evidently enjoyed by domestic producers and which means that higher profits may be expected. This point may be enlarged upon: even in the case of the souvenirs covered by the provisions under discussion, it would have been possible, and an easy task, to acquaint the consumer with their place of manufacture by introducing a requirement to affix an indication of origin to domestic products. The Irish Govermenťs failure to take such action confirms that it has chosen the system which is most advantageous to domestic products, even as regards the costs involved; for this very reason therefore, it is undeniable that discrimination has occurred between the treatment accorded to domestic products and that accorded to imported products, giving rise to restrictive effects on intra-Community trade. In fact, even on the assumption that it is necessary to protect consumers from the risk of purchasing souvenirs manufactured abroad, the imposition of a requirement which is out of proportion to the objective pursued — Ireland having preferred to lay down requirements in respect of foreign products rather than stipulate that an indication of origin must be affixed to domestic products — is sufficient to constitute an infringement of the last sentence of Article 36 of the EEC Treaty.