Case C-71/02

Herbert Karner Industrie-Auktionen GmbH

v

Troostwijk GmbH

(Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))

(Free movement of goods – Article 28 EC – Measures having equivalent effect – Advertising restrictions – Reference to the commercial origin of goods – Goods from an insolvent company – Directive 84/450/EEC – Fundamental rights – Freedom of expression – Principle of proportionality)

Summary of the Judgment

1. Preliminary rulings – Jurisdiction of the Court – Interpretation of Article 28 EC requested in relation to facts confined to national territory – Not inadmissible – Conditions – Individual case

(Arts 28 EC and 234 EC)

2. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National legislation prohibiting references in advertisements to the commercial origin of goods from an insolvent estate when they no longer constitute part of that estate – Measure regulating selling arrangements in a non-discriminatory manner – Measure not caught by the prohibition laid down in Article 28 EC – No breach of the fundamental right to freedom of expression – Pursuance of legitimate goals of consumer protection and fair trading

(Art. 28 EC; Council Directive 84/450, Art. 7)

1. A reference for a preliminary ruling relating to the interpretation of Article 28 EC is not inadmissible simply because all the facts of the specific case before the national court are confined to a single Member State, if it is not obvious that the interpretation requested is not necessary for the national court. Such a reply might help it to determine whether national legislation such as a prohibition on references in advertisements to the commercial origin of goods from an insolvent estate when they no longer constitute part of that estate is likely to constitute a potential impediment to intra-Community trade falling within the scope of application of Article 28 EC.

(see paras 19, 21)

2. Article 28 EC does not preclude national legislation which, irrespective of the truthfulness of the information, prohibits any reference to the fact that goods come from an insolvent estate, where, in public announcements or notices intended for a larger circle of persons, notice is given of the sale of goods which originate from, but no longer constitute part of, the insolvent estate.

Such a restriction on advertisements, which is likely to come within the scope of application of Directive 84/450 concerning misleading advertising, which allows the Member States to ensure more extensive consumer protection than that provided for by the directive provided that that power is exercised in a way that is consistent with the fundamental principle of free movement of goods, must be viewed as relating to selling arrangements and is not caught by the prohibition laid down in Article 28 EC because it applies without distinction to all the operators concerned and affects the marketing of domestic and imported products in the same manner.

Nor does that restriction infringe the fundamental right of freedom of expression, recognised by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, because it is reasonable and proportionate, in the light of the legitimate goals pursued by that provision, namely consumer protection and fair trading.

(see paras 31, 33-34, 39, 41-43, 50, 52-53, operative part)