3.

The first question expressly comes within the framework of the chapter of the EEC Treaty concerning the elimination of quantitative restrictions between Member States. As I have said, the question is whether a national system of minimum prices, like that set up by the Prijsverordening Gedistilleerde Dranken, to which I have already referred, is contrary to the prohibition imposed on Member States pursuant to Article 30 of the EEC Treaty against the application of measures having an effect equivalent to quantitative restrictions on imports. Article 34 does not affect the problem before the Court which is a question of retail price control, so that there is no effect on exports and accordingly the prohibition on measures having effects equivalent to quantitative restrictions on exports does not apply. The Court of Justice has consistently held that the abovementioned prohibition does not affect only national measures which have an actual restrictive effect on the movement of goods. It is sufficient that the commercial legislation of a Member State is capable of impeding intra-Community trade potentially or indirectly, for it to constitute a measure having an effect equivalent to quantitative restrictions. This has been clearly established, as a general rule, in respect of all national provisions concerning trade, irrespective of the nature of the product, whether agricultural or industrial, and thus also of the existence of a common organization of the market, in the judgment of 11 July 1974 in Case 8/74, Dassonville ([1974] ECR 837); it was subsequently confirmed with regard to products coming under a common organization of the market, in the judgment of 30 October 1974 in Case 190/73, Van Haaster ([1974] ECR 1123). A national system fixing minimum prices clearly falls within the scope of ‘trade rules’; the interpretative guidelines mentioned a little earlier thus also apply to such a system. As regards more particularly national measures to control prices the Court has often had occasion to lay down criteria for deciding whether measures fixingmaximum prices are compatible with the operation of a given common organization of the market (I refer in particular to the judgments of 23 January 1975 in Case 31/74, Galli [1975] ECR 47, of 26 February 1976 in Case 65/75, Tasca [1976] ECR 291 and in Joined Cases 88 to 90/75, Sadam [1976] ECR 323). Whilst the Galli judgment, which is essentially based on the existence and implications of a common organization of the market, cannot be of assistance in the present case the Tasca and Sadam judgments in fact establish the scope of Article 30 of the Treaty in relation to intervention by the public authorities with regard to prices. In these rulings the Court confirmed the abovementioned interpretative guidelines concerning the concept of ‘measures having an effect equivalent to quantitative restrictions’ and stated that ‘Although a maximum price applicable without distinction to domestic and imported products does not in itself constitute a measure having an effect equivalent to a quantitative restriction, it may have such an effect, however, when it is fixed at a level such that the sale of imported products becomes, if not impossible, more difficult that of domestic products. A maximum price, in any event in so far as it applies to imported products, constitutes therefore a measure having an effect equivalent to a quantitative restriction, especially when it is fixed at such a low level that, having regard to the general situation of imported products compared to that of domestic products, dealers wishing to import the product in question into the Member State concerned can do so only at a loss’ (paragraph 13 of the decision in the Tasca judgment, paragraph 15 of that in the Sadam judgment). More recently the Court referred to this same criterion, in connexion also with internal measures which had the effect of turning the net manufacturing price into a fixed price binding as regards the retail sale of cigarettes, in its judgment of 16 November 1977 in Case 13/77, N.V. G.B.-INNO-B.M. v Vereniging van de Kleinhandelaars in Tabak (paragraph 52 of the decision). It should be noted that, whilst the main action in the Tasca judgment related to the behaviour of a private person who had exceeded the maximum price levels permissible pursuant to national legislation, the INNO case related to goods sold at less than the prices fixed. In the former instance an infringement of the prohibition of measures having an effect equivalent to quantitative restrictions might occur if the national authorities, in establishing the maximum level for prices, had failed to take account of the prices of any imported products which might be higher than the prices of comparable domestic products. In that case indeed it would have become difficult if not completely impossible for the products of other States to maintain an outlet in the State in question. When a fixed price is imposed, as in the INNO proceedings, the same consideration applies to the implied prohibition on charging higher prices; indeed the Court made express reference to the concept of ‘maximum price’. On the other hand no specific clarification was provided in the INNO judgment of the nature of ‘minimum price’ which is also inherent in the fixed price and in fact it was not directly taken into consideration in the Court's decision. On the other hand it must also be noted that in the INNO case the national measure, which was adopted principally for tax reasons, merely conferred binding force on the price freely chosen by the manufacturer; in the present case, however, the uniform minimum price which, if foreign producers do not supply price-lists appears to be the only price in practice for foreign products, constitutes a price fixed entirely by the authorities and in any case without prior consultation with producers outside the Netherlands. All this indicates that in the judgments of the Court concerning State measures for the control of prices the problems inherent in a mandatory system of minimum prices have not been considered directly. Nevertheless two relevant factors emerge from these judgments. Firstly, clarification of the concept of measures having an effect equivalent to quantitative restrictions, which is applicable to any price control which is likely to constitute an obstacle, directly or indirectly, actually or potentially, to trade between Member States. Secondly, the more specific idea that a price fixed by the authorities, even if applied without distinction to domestic and foreign products, may constitute a measure having an effect equivalent to a quantitative restriction, if it is fixed at such a level as to make the marketing of imported products impossible or perhaps merely more difficult than that of domestic products. We shall see later the effects which these factors may have in the case before us. To continue this train of thought, in connexion particularly with the second criterion set out above, it is appropriate to bear in mind the Commission Directive of 22 December 1969 based on the provisions of Article 33 (7) of the Treaty on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty. It states expressly that it is necessary to abolish measures which ‘fix the prices of products solely on the basis of the cost price or the quality of domestic products at such a level as to create a hindrance to importation’ (Article 2 (3) (e)) or which increase the costs of an imported product (Article 2 (3) (f)). This provides indirect confirmation that it is impossible to exclude the negative effects of a mandatory generalized minimum level of prices on the importation and marketing of imported products.