The principle of mutual recognition cannot apply to trade within the EU in goods originating in third countries and in free circulation where they have not, before being exported to a Member State other than that in which they are in free circulation, been lawfully marketed in the territory of a Member State.

As regards the existence of a possible justification of such a practice, in particular on consumer protection grounds, on account of the risk of fraud on the market for articles of precious metals, in the absence of EU legislation the choice of appropriate measures to deal with that risk is for the Member States, who have a wide discretion. Consequently, in the present state of EU law and apart from the cases that may be governed by an international agreement, a Member State is in principle entitled not to consider that hallmarks affixed in the territory of third countries offer a level of protection of consumers equivalent to the hallmarks affixed by independent bodies in the territory of the Member States.

That is the case of a practice under which precious metals marked with hallmarks of an assay office of a Member State, whether they have been lawfully both hallmarked and marketed in the territory of that Member State or in that of another Member State or have been hallmarked in the territory of a third country in accordance with the legislation of the former Member State and put into free circulation in a Member State, and whether or not they have been lawfully marketed in the territory of a Member State, may be marketed in the territory of the Member State concerned only after they have been the object of an additional control and hallmarking in the last mentioned Member State.

National legislation that requires articles of precious metal imported from other Member States, in which they are lawfully traded and hallmarked in accordance with the legislation of those States, to be given an additional hallmark in the importing Member State has the effect of rendering the imports more difficult and costly, and thus constitutes a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 34 TFEU.

A Member State fails to fulfil its obligations under Article 34 TFEU by refusing, generally and systematically, to recognise the hallmarks of an assay office of another Member State, in so far as, first, such a practice of refusal is not justified where the results of the control carried out in the Member State from which the precious metals are exported meet the requirements of the Member State of import and, secondly, where such a practice of refusal is capable of being justified by the protection of consumers, it is not proportionate to the objectives it pursues.

First, as regards the first aspect of the failure to fulfil obligations, such a practice of refusal is not justified where the two Member States are pursuing equivalent levels of consumer protection. That is so in the case of precious metals marked with a hallmark of an assay office affixed in a Member State and lawfully marketed in the territory of a Member State, and in the case of precious metals marked with the hallmark of an assay office affixed in a third country which have been put into free circulation in the EU and, before being exported to the Member State concerned, were lawfully marketed in the territory of a Member State which, like the Member State concerned, has chosen not to allow its own assay office or offices, or other bodies it may authorise to affix its hallmarks to precious metals, to affix those hallmarks in the territory of third countries.

Secondly, where such a practice of refusal is capable of being justified by the protection of consumers, which is the case where it relates to precious metals marked with hallmarks of that assay office affixed in the territory of third countries which have been put into free circulation in the EU and are exported to the Member State concerned without first having been lawfully marketed in a Member State, and to such goods which after being put into free circulation have been lawfully marketed in a Member State which does not require precious metals to be hallmarked by an independent body, or in a Member State which requires such hallmarking but allows it to be done in the territory of third countries, as a result of its general and systematic nature it is not proportionate to the objectives it pursues, because it concerns precious metals bearing that assay office’s hallmarks generally, not only precious metals bearing that assay office’s hallmarks affixed in the territory of third countries, without moreover distinguishing according to the circumstances in which the precious metals are exported to the Member State refusing to recognise the hallmarks, in particular whether they are exported to that Member State after merely being put into free circulation in another Member State or after also being lawfully marketed in another Member State.

(see paras 58-60, 62, 64, 68, 69, operative part 1)