3.

Although the arguments put forward by the parties both contain an element of truth, they are in my view rather weak. There is no need to recall that masterpiece of Renaissance printing, the famous Mainz Bible, or the lawsuit brought against its creator, Johann Gutenberg, in order to recognize that printing is not a mere service but a difficult and refined art, even as regards the preparation of a periodical review. Nor can it be denied that publications are products or goods, since they clearly appear under heading No 49.02 of the Common Customs Tariff. However, the problem in this case does not concern the definition under Community law of the publications referred to in Article 80 of the French Finance Law. The Court is asked whether that provision, by limiting the grant of certain tax benefits for French publishers, constitutes a measure likely to hinder, directly or indirectly, actually or potentially, intra-Community trade in the periodicals produced by such publishers. In order to answer that question, I would observe first of all that the French Government does not deny that the provision cited has a restrictive effect; at the hearing it in fact expressly admitted that, by defining it as an ‘effect induced by an obstacle (to the freedom) to provide, services’. On that premise, it is a question of establishing whether the restriction provided for in Article 80 actually affects intra-Community trade or rather, as the French Government maintains, constitutes an obstacle to the freedom to provide services; for that purpose it is sufficient to consider in detail the content of the contested rule, to determine the practical effect of the restriction to which it gives rise. As has already been stated in Section 1, the tax relief provided for by Article 80 may consist of a reserve fund constituted by means of the earmarking of part of the profit of the undertaking or the deduction from those profits of the expenditure incurred in the marketing of the newspaper or periodical. In both cases, therefore, the advantage offered to undertakings consists in tax relief for a part of the profits which they make from the sale of their publications. The inference to be drawn from that statement is clear: by providing that publishers ‘shall not benefit (from such advantages) for the part of their publications which (are) printed abroad’, the French legislature in fact sought to deny tax relief to the profits made from the sale of publications printed in the territory of other States. If that is the position, however, it clearly appears that the ‘practical effect’ of the rules is not to hinder the freedom to provide printing services, since that does not provide profits for publishers; its effect is rather to prevent the grant of the tax advantage in respect of profits obtained, wholly or in part, from the sale of French newspapers printed abroad and imported into France from abroad in order to be marketed there. Seen in that light, the provision clearly contains a measure having an equivalent — and therefore restrictive — effect. I would go further: the measure is discriminatory. Indeed, although the French Government stated at the hearing that the publications in question are chiefly marketed in France, it did not state that they are not also sold in other markets in the Community. If the periodical was printed in France, sales abroad would necessarily confer upon the publisher a tax-free profit; that would not be the case, however, if copies of the same periodical, printed abroad, were imported and sold in France or re-exported from France to other Community markets.