Judgment of the Court (Third Chamber) of 13 November 1986. - Nederlandse Bakkerij Stichting and others v Edah BV. - References for a preliminary ruling: Arrondissementsrechtbank Almelo and Arrondissementsrechtbank de s'Hertogenbosch - Netherlands. - Measures having equivalent effect - Bread prices. - Joined cases 80 and 159/85.



European Court reports 1986 Page 03359



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS - MEASURES HAVING EQUIVALENT EFFECT - NATIONAL LEGISLATION PRESCRIBING A MINIMUM RETAIL PRICE FOR BREAD - PERMISSIBILITY - CONDITIONS - DIFFERENCE OF TREATMENT FAVOURING IMPORTED BREAD - PERMISSIBLE

( EEC TREATY , ART . 30 )

2 . COMMUNITY LAW - GENERAL PRINCIPLES - EQUAL TREATMENT - DISCRIMINATION ON GROUNDS OF NATIONALITY - PROHIBITION - NATIONAL LEGISLATION PRESCRIBING A MINIMUM RETAIL PRICE FOR BREAD - DIFFERENCE OF TREATMENT FAVOURING IMPORTED BREAD - PERMISSIBLE

( EEC TREATY , ART . 7 )

Summary

1 . ARTICLE 30 OF THE TREATY IS TO BE INTERPRETED AS MEANING THAT :

NATIONAL PROVISIONS WHICH PRESCRIBE A MINIMUM RETAIL PRICE OF A SET AMOUNT FOR DOMESTICALLY PRODUCED BREAD AND LAY DOWN , IN THE CASE OF IMPORTED BREAD , A DISTRIBUTION MARGIN TO BE ADDED TO THE PURCHASE PRICE EQUAL TO THE DISTRIBUTION COSTS OF WELL-ORGANIZED AND EFFICIENTLY OPERATED DISTRIBUTORS , CONSTITUTE A MEASURE EQUIVALENT TO A QUANTITATIVE RESTRICTION ON IMPORTS WHERE THAT DISTRIBUTION MARGIN IS COMPULSORY EVEN WHEN THE RESULTING SELLING PRICE IS HIGHER THAN THE MINIMUM PRICE APPLICABLE TO DOMESTICALLY PRODUCED BREAD ;

SUCH PROVISIONS DO NOT CONSTITUTE A QUANTITATIVE RESTRICTION ON IMPORTS WHERE THE DISTRIBUTION MARGIN FOR THE SALE OF IMPORTED BREAD IS THE SAME AS THAT TAKEN INTO ACCOUNT IN DETERMINING THE SET MINIMUM PRICE FOR DOMESTICALLY PRODUCED BREAD AND IS NOT COMPULSORY FOR IMPORTED BREAD SOLD AT OR ABOVE THAT MINIMUM PRICE ;

IT DOES NOT PRECLUDE SUCH PROVISIONS FROM ALLOWING THE SELLING PRICE FOR IMPORTED BREAD RESULTING FROM THE APPLICATION OF THE DISTRIBUTION MARGIN TO BE LOWER IN CERTAIN CASES THAN THE MINIMUM PRICE FIXED FOR DOMESTICALLY PRODUCED BREAD .

2 . NEITHER ARTICLE 7 OF THE EEC TREATY NOR THE GENERAL PRINCIPLE OF NON-DISCRIMINATION IN COMMUNITY LAW APPLIES TO A DIFFERENCE OF TREATMENT CONSISTING IN THE FACT THAT UNDER NATIONAL PROVISIONS WHICH PRESCRIBE A MINIMUM RETAIL PRICE OF A SET AMOUNT FOR DOMESTICALLY PRODUCED BREAD AND LAY DOWN A DISTRIBUTION MARGIN FOR IMPORTED BREAD , THE SELLING PRICE OF IMPORTED BREAD MAY IN CERTAIN CASES BE LOWER THAN THE MINIMUM PRICE FIXED FOR DOMESTICALLY PRODUCED BREAD .

Parties

IN JOINED CASES 80 AND 159/85

REFERENCES TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ,

IN CASE 80/85 , BY THE ARRONDISSEMENTSRECHTBANK ( DISTRICT COURT ), ALMELO , IN THE PROCEEDINGS BEFORE THAT COURT BETWEEN

NEDERLANDSE BAKKERIJ STICHTING ( NETHERLANDS BAKERY ASSOCIATION ), THE HAGUE , THEODORUS CORNELIS DAM , FIRMA BOS , JOHANNES BERNARDUS BUSCH AND JACOBUS BOS , ENSCHEDE ,

AND

EDAH BV , HELMOND ,

AND

IN CASE 159/85 , BY THE ARRONDISSEMENTSRECHTBANK , ' S-HERTOGENBOSCH , IN THE CRIMINAL PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

OFFICIER VAN JUSTITIE , ' S-HERTOGENBOSCH ,

AND

EDAH BV , HELMOND ,

Subject of the case

ON THE INTERPRETATION OF ARTICLES 7 AND 30 OF THE EEC TREATY ,

Grounds

1 BY A JUDGMENT OF THE PRESIDENT OF THE ARRONDISSEMENTSRECHTBANK , ALMELO , OF 13 MARCH 1985 , WHICH WAS RECEIVED AT THE COURT ON 1 APRIL 1985 , AND A JUDGMENT OF THE ARRONDISSEMENTSRECHTBANK , ' S HERTOGENBOSCH , OF 20 MAY 1985 , WHICH WAS RECEIVED AT THE COURT ON 28 MAY 1985 , THOSE COURTS EACH REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF ARTICLES 7 AND 30 OF THE EEC TREATY AND THE GENERAL PRINCIPLE OF NON-DISCRIMINATION . IN VIEW OF THE FACT THAT THOSE QUESTIONS ARE CLOSELY CONNECTED OR IDENTICAL IN SUBJECT-MATTER , THE COURT HAS JOINED THE CASES FOR THE PURPOSES OF THE PROCEDURE AND THE JUDGMENT .

2 THE QUESTIONS WERE SUBMITTED IN CONNECTION WITH TWO SETS OF PROCEEDINGS BROUGHT AGAINST EDAH BV , AN UNDERTAKING WHICH OPERATES SUPERMARKETS IN THE NETHERLANDS . THE PROCEEDINGS RELATE TO THE SALE OF BREAD BY EDAH BV AT A PRICE LOWER THAN THE MINIMUM SELLING PRICE FIXED PURSUANT TO THE NETHERLANDS LEGISLATION ON THE SELLING PRICE OF BREAD ( THE VERORDENING BROODPRIJZEN ). THE PROCEEDINGS BEFORE THE PRESIDENT OF THE ARRONDISSEMENTSRECHTBANK , ALMELO , RELATE TO AN INTERLOCUTORY APPLICATION BROUGHT BY THE NEDERLANDSE BAKKERIJ STICHTING , AN ORGANIZATION REPRESENTING THE INTERESTS OF NETHERLANDS BAKERS , AND BY SEVERAL BAKERS WHOSE SHOPS ARE CLOSE TO A SUPERMARKET OPERATED BY EDAH BV , FOR AN ORDER RESTRAINING IT FROM CHARGING PRICES BELOW THE MINIMUM PRICE . IN THE CRIMINAL PROCEEDINGS BEFORE THE ARRONDISSEMENTSRECHTBANK , ' S HERTOGENBOSCH , EDAH BV IS CHARGED WITH INFRINGING THE ABOVEMENTIONED PROVISIONS BY THE OFFICIER VAN JUSTITIE .

3 ARTICLE 2 OF THE VERORDENING BROODPRIJZEN , WHICH WAS ADOPTED ON 2 SEPTEMBER 1976 BY THE PRODUKTSCHAP VOOR GRANEN , ZADEN EN PEULVRUCHTEN ( CEREAL , SEED AND PULSE BOARD ), PROHIBITS THE SALE OF NETHERLANDS-PRODUCED BREAD BELOW THE MINIMUM PRICE . IN FIXING THAT MINIMUM PRICE , THE PRESIDENT OF THE PRODUKTSCHAP MUST TAKE INTO ACCOUNT IN PARTICULAR THE TOTAL PRODUCTION COSTS OF WELL-ORGANIZED AND EFFICIENTLY OPERATED BAKERS AND THE TOTAL DISTRIBUTION COSTS OF WELL-ORGANIZED AND EFFICIENTLY OPERATED DISTRIBUTORS .

4 IN 1982 , THE VERORDENING BROODPRIJZEN WAS AMENDED BY THE ADDITION OF ARTICLE 2 ( A ), WHICH PROHIBITS THE SALE TO CONSUMERS OF BREAD OTHER THAN NETHERLANDS-PRODUCED BREAD AT A PRICE LOWER THAN THE SUM OF THE PURCHASE PRICE , A MARGIN EQUAL TO THE TOTAL DISTRIBUTION COSTS OF WELL-ORGANIZED AND EFFICIENTLY OPERATED DISTRIBUTORS AND THE VALUE-ADDED TAX THEREON . WITH EFFECT FROM 23 MARCH 1985 , BY VIRTUE OF A REGULATION DATED 7 MARCH 1985 , THAT PROHIBITION CONCERNING BREAD NOT PRODUCED IN THE NETHERLANDS IS NO LONGER APPLICABLE TO BREAD SOLD AT A PRICE EQUAL TO OR HIGHER THAN THE MINIMUM PRICE APPLICABLE TO BREAD PRODUCED IN THE NETHERLANDS .

5 FROM JANUARY TO MARCH 1985 , IN THE COURSE OF A SALES PROMOTION CAMPAIGN IN ITS SUPERMARKETS , EDAH BV SOLD SLICED NETHERLANDS-PRODUCED BREAD AT HFL 1.59 INSTEAD OF THE MINIMUM PRICE OF HFL 1.86 APPLICABLE TO THAT TYPE OF BREAD AT THE MATERIAL TIME BY VIRTUE OF A DECISION OF THE PRESIDENT OF THE PRODUKTSCHAP OF 23 JULY 1984 . IN THE MAIN PROCEEDINGS , EDAH BV SOUGHT TO JUSTIFY ITS NON-COMPLIANCE WITH THE MINIMUM PRICE BY ARGUING THAT THE NETHERLANDS LEGISLATION ON THE MINIMUM PRICE OF BREAD WAS INCOMPATIBLE WITH ARTICLES 7 AND 30 OF THE EEC TREATY .

6 THE TWO NATIONAL COURTS CONCERNED THEN EACH DECIDED TO REFER TO THE COURT TWO QUESTIONS ON THE INTERPRETATION OF THOSE ARTICLES . THE FIRST OF THE QUESTIONS SUBMITTED BY THE ARRONDISSEMENTSRECHTBANK , ' S-HERTOGENBOSCH , WHICH CONCERNS THE LEGISLATION APPLICABLE PRIOR TO 23 MARCH 1985 , IS AS FOLLOWS :

' IS A PROVISION ON PRICES WHICH UNDER THE LEGISLATION OF A MEMBER STATE IS APPLICABLE TO SALES TO CONSUMERS BY RETAILERS ESTABLISHED IN THAT STATE CONTRARY TO THE PROHIBITION OF MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS ON IMPORTS LAID DOWN IN ARTICLE 30 OF THE EEC TREATY , WHERE FOR IMPORTED PRODUCTS THAT PROVISION REQUIRES THAT THERE BE ADDED TO THE PURCHASE PRICE A FIXED MARGIN OF A SPECIFIED SUM OF MONEY WHICH CONSTITUTES A RELATIVELY SMALL PART OF THE FINAL RETAIL PRICE , WHEN FOR DOMESTIC PRODUCTS THERE IS A SET MINIMUM PRICE FIXED BY THE MEMBER STATE?

'

7 THE FIRST OF THE QUESTIONS SUBMITTED BY THE PRESIDENT OF THE ARRONDISSEMENTSRECHTBANK , ALMELO , WHICH RELATES TO THE BREAD PRICES LEGISLATION AS AMENDED FROM 23 MARCH 1985 , IS WORDED AS FOLLOWS :

' IS A LEGISLATIVE PROVISION OF A MEMBER STATE WHICH PRESCRIBES A MARGIN CONSTITUTING A RELATIVELY SMALL PART OF THE FINAL RETAIL PRICE CONTRARY TO THE PROHIBITION OF MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS ON IMPORTS LAID DOWN BY ARTICLE 30 OF THE EEC TREATY IN SO FAR AS THAT PROVISION APPLIES TO IMPORTED PRODUCTS SOLD TO THE CONSUMER BY A RETAILER IN THE MEMBER STATE CONCERNED AT A PRICE LOWER THAN THE MINIMUM PRICE LAID DOWN FOR THAT PRODUCT BY THAT STATE , IF A NATIONAL PRODUCT MAY NOT BE SOLD ON THOSE TERMS IN ANY CIRCUMSTANCES?

'

8 THE TWO COURTS THEN ASK THE FOLLOWING IDENTICALLY WORDED SECOND QUESTION :

' IS A LEGISLATIVE PROVISION OF A MEMBER STATE WHICH PROHIBITS A RETAILER ESTABLISHED IN THAT STATE FROM SELLING A PARTICULAR PRODUCT TO A CONSUMER BELOW A CERTAIN MINIMUM PRICE CONTRARY TO THE PROHIBITION OF DISCRIMINATION ON GROUNDS OF NATIONALITY LAID DOWN IN ARTICLE 7 OF THE EEC TREATY , WHERE THAT PROHIBITION APPLIES ( IN ALL CIRCUMSTANCES ) TO THE NATIONAL PRODUCT , BUT NOT TO THE IMPORTED PRODUCT?

'

9 IT SHOULD FIRST OF ALL BE POINTED OUT THAT THE COURT MAY NOT IN THE FRAMEWORK OF ARTICLE 177 OF THE EEC TREATY RULE ON THE COMPATABILITY OF A NATIONAL LEGISLATIVE OR ADMINISTRATIVE MEASURE WITH COMMUNITY LAW . IT MAY , HOWEVER , PROVIDE THE NATIONAL COURT WITH A RULING ON THE INTERPRETATION OF COMMUNITY LAW WHICH WILL ENABLE IT TO DECIDE THE LEGAL ISSUE BEFORE IT .

ARTICLE 30

10 UNDERSTOOD IN THE LIGHT OF THE FOREGOING THE NATIONAL COURTS ' FIRST QUESTIONS ASK PRIMARILY HOW ARTICLE 30 OF THE EEC TREATY IS TO BE INTERPRETED AS REGARDS NATIONAL LEGISLATION PRESCRIBING A RETAIL PRICE SUCH AS THE LEGISLATION APPLICABLE TO BREAD IN THE NETHERLANDS BOTH BEFORE AND AFTER 23 MARCH 1985 , WHICH MAKES IT COMPULSORY TO CHARGE A SET MINIMUM PRICE FOR BREAD PRODUCED NATIONALLY AND TO APPLY A SET DISTRIBUTION MARGIN FOR IMPORTED BREAD .

11 AS REGARDS THE APPLICATION TO STATE PRICE-CONTROL SYSTEMS OF THE PROHIBITION OF MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS ON IMPORTS CONTAINED IN ARTICLE 30 , THE COURT HAS ALREADY STATED ( SEE JUDGMENT OF 26 FEBRUARY 1976 IN CASE 65/75 TASCA ( 1976 ) ECR 291 ; JUDGMENT OF 24 JANUARY 1978 IN CASE 82/77 VAN TIGGELE ( 1978 ) ECR 25 ; JUDGMENT OF 29 JANUARY 1985 IN CASE 231/83 CULLET V LECLERC ( 1985 ) ECR 305 ) THAT SUCH SYSTEMS , IF APPLICABLE TO NATIONAL PRODUCTS AND IMPORTED PRODUCTS ALIKE , DO NOT IN THEMSELVES CONSTITUTE MEASURES HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION BUT MAY HAVE SUCH AN EFFECT WHEN PRICES ARE FIXED AT A LEVEL SUCH THAT IMPORTED PRODUCTS ARE PLACED AT A DISADVANTAGE COMPARED TO IDENTICAL NATIONAL PRODUCTS , EITHER BECAUSE THEY CANNOT PROFITABLY BE MARKETED ON THE CONDITIONS LAID DOWN OR BECAUSE THE COMPETITIVE ADVANTAGE CONFERRED BY LOWER COST PRICES IS CANCELLED OUT .

12 THE QUESTIONS SUBMITTED , HOWEVER , DO NOT RELATE TO LEGISLATION APPLICABLE TO DOMESTIC PRODUCTS AND IMPORTED PRODUCTS ALIKE BUT TO DIFFERENT RULES FOR THE TWO GROUPS OF PRODUCTS , LAID DOWN BY DIFFERENT INSTRUMENTS ADOPTED AT DIFFERENT TIMES AND DIFFERING IN SUBSTANTIVE CONTENT . AS THE COURT HELD IN ITS JUDGMENT OF 29 NOVEMBER 1983 IN CASE 181/82 , ( ROUSSEL LABORATORIA ( 1983 ) ECR 3849 ), PROVISIONS OF THAT KIND , WHICH DIFFERENTIATE BETWEEN THE TWO GROUPS OF PRODUCTS , MUST BE REGARDED AS MEASURES HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION WHERE THEY ARE LIABLE TO MAKE MORE DIFFICULT , IN ANY MANNER WHATEVER , THE SALE OF IMPORTED PRODUCTS .

13 WHERE , AS WAS TRUE OF THE VERORDENING BROODPRIJZEN IN THE VERSION IN FORCE BEFORE 23 MARCH 1985 , THOSE PROVISIONS REQUIRE A COMPULSORY DISTRIBUTION MARGIN TO BE ADDED TO THE PURCHASE PRICE OF IMPORTED BREAD , WHATEVER THE AMOUNT OF THAT PURCHASE PRICE , THEY HAVE THE EFFECT THAT IN CERTAIN CASES IMPORTED BREAD MUST BE SOLD AT A PRICE HIGHER THAN THE MINIMUM PRICE APPLICABLE TO DOMESTICALLY PRODUCED BREAD . THEY MAY THEREFORE PLACE IMPORTED BREAD AT A COMPETITIVE DISADVANTAGE IN REGARD TO ITS RETAIL PRICE AND MAKE ITS SALE MORE DIFFICULT . PROVISIONS WHICH MAY HAVE SUCH AN EFFECT ARE CAPABLE OF HINDERING TRADE BETWEEN MEMBER STATES AND ARE THEREFORE CONTRARY TO ARTICLE 30 OF THE EEC TREATY .

14 BY CONTRAST , WHERE , AS IS TRUE OF THE VERSION OF THE VERORDENING BROODPRIJZEN IN FORCE SINCE 23 MARCH 1985 , THE PROVISION LAYING DOWN A COMPULSORY DISTRIBUTION MARGIN IS NOT APPLICABLE TO IMPORTED BREAD SOLD AT OR ABOVE THE MINIMUM PRICE APPLICABLE TO DOMESTICALLY PRODUCED BREAD , THAT COMPETITIVE DISADVANTAGE IS AVOIDED . IN THE ABSENCE OF SUCH A DISADVANTAGE , THE SALE OF IMPORTED BREAD IS NOT MADE MORE DIFFICULT AND TRADE BETWEEN MEMBER STATES NOT HINDERED BY SUCH A PROVISION .

15 IT CANNOT BE ACCEPTED THAT , AS EDAH BV ARGUES , SUCH A PROVISION MAY NEVERTHELESS HINDER TRADE IN SO FAR AS IT PREVENTS PARTICULARLY WELL-ORGANIZED AND EFFICIENTLY OPERATED RETAILERS FROM PASSING ON THEIR COMPETITIVE ADVANTAGE IN THE SALE OF IMPORTED BREAD . WHERE THE SAME MARGIN , CORRESPONDING TO THE DISTRIBUTION COSTS OF WELL-ORGANIZED AND EFFICIENTLY OPERATED DISTRIBUTORS , IS IMPOSED ON THE SALE OF IMPORTED BREAD AND TAKEN INTO ACCOUNT IN FIXING THE MINIMUM PRICE OF DOMESTICALLY PRODUCED BREAD , NATIONAL AND IMPORTED PRODUCTS ARE PLACED ON THE SAME FOOTING AS REGARDS RETAILERS ' ABILITY TO PASS ON A COMPETITIVE ADVANTAGE DUE TO THEIR ORGANIZATION AND EFFICIENT OPERATION , WHILE ANY COMPETITIVE ADVANTAGE DERIVED FROM THE LOWER COST PRICE OF AN IMPORTED PRODUCT CAN BE PASSED ON AND IS NOT CANCELLED OUT . THE SALE OF THE IMPORTED PRODUCT IS NOT THEREFORE MADE IN ANY WAY MORE DIFFICULT .

16 IN ITS ATTEMPT TO SHOW THAT THE LEGISLATION AT ISSUE IS CAPABLE OF HINDERING TRADE EVEN IN THE FORM IN FORCE SINCE 23 MARCH 1985 , EDAH BV HAS ALSO PUT FORWARD THE FOLLOWING CALCULATION : WHERE THE PURCHASE PRICE OF IMPORTED BREAD IS HFL 1.69 AND THAT OF NETHERLANDS-PRODUCED BREAD HFL 1.72 , IMPORTED BREAD MUST BE SOLD AT A PRICE OF HFL 1.86 TO INCLUDE THE COMPULSORY MARGIN OF HFL 0.17 , WHILE IN THE CASE OF NETHERLANDS-PRODUCED BREAD WHICH IS ALSO SOLD AT THE MINIMUM PRICE OF HFL 1.86 THE RETAILER IS ABLE TO MAKE DO WITH A DISTRIBUTION MARGIN OF HFL 0.14 . ACCORDING TO EDAH BV , WHOSE OPINION ON THAT POINT WAS SUPPORTED BY THE COMMISSION AT THE HEARING , THAT ILLUSTRATION SHOWS THAT IMPORTED BREAD IS IN CERTAIN CIRCUMSTANCES SUBJECT TO DISCRIMINATION .

17 IT IS TRUE THAT , IN THE CIRCUMSTANCES TO WHICH EDAH BV REFERS , THE RETAILER CANNOT PASS ON THE BENEFIT OF A LOWER COST PRICE FOR IMPORTED BREAD TO THE CONSUMER . IT SHOULD NEVERTHELESS BE NOTED THAT THE DISTRIBUTION MARGIN FOR IMPORTED BREAD IS THEN HIGHER THAN THAT FOR DOMESTIC BREAD AND THAT THAT FACTOR MAY LEAD THE RETAILER TO GIVE PREFERENCE TO THE SALE OF THE FORMER AT THE EXPENSE OF THE LATTER . THAT BEING THE CASE , IT CANNOT BE CONCLUDED THAT THE IMPORTATION OF BREAD IS MADE MORE DIFFICULT .

18 IT IS ALSO IMPOSSIBLE TO ACCEPT EDAH BV ' S ARGUMENT THAT SUCH PROVISIONS ARE CONTRARY TO ARTICLE 30 OF THE EEC TREATY BECAUSE THEY ENABLE IMPORTED BREAD TO BE SOLD BELOW THE MINIMUM SELLING PRICE APPLICABLE TO DOMESTICALLY PRODUCED BREAD WHEN THE PURCHASE PRICE IS SUFFICIENTLY LOW . THE PURPOSE OF THAT ARTICLE IS TO ELIMINATE OBSTACLES TO THE IMPORTATION OF GOODS AND NOT TO ENSURE EQUAL TREATMENT IN ALL CASES FOR GOODS OF NATIONAL ORIGIN AND IMPORTED GOODS . UNEQUAL TREATMENT WHICH DOES NOT HAVE THE EFFECT OF HINDERING IMPORTS OR MAKING THE SALE OF IMPORTED GOODS MORE DIFFICULT BUT INSTEAD FAVOURS THEM DOES NOT FALL WITHIN THE PROHIBITION LAID DOWN BY THAT ARTICLE .

19 FINALLY , IT IS UNNECESSARY TO EXAMINE THE ARGUMENT PUT FORWARD BY EDAH BV AND THE COMMISSION TO THE EFFECT THAT SUCH PROVISIONS ARE CONTRARY TO ARTICLE 30 OF THE EEC TREATY IN SO FAR AS A MINIMUM PRICE IS PRESCRIBED FOR CERTAIN SPECIFIED TYPES OF DOMESTICALLY PRODUCED BREAD WHEREAS THE DISTRIBUTION MARGIN APPLIES TO ANY IMPORTED BREAD . HAVING REGARD TO THE FACT THAT THERE IS NOTHING IN THE JUDGMENTS BY WHICH THE NATIONAL COURTS REQUESTED THE PRELIMINARY RULING TO INDICATE THAT THAT DIFFERENCE - IF INDEED IT BE MORE THAN ONE OF PURE FORM - IS OF ANY RELEVANCE FOR THE PURPOSES OF THE MAIN PROCEEDINGS , THE COURT CONSIDERS THAT THE QUESTION WHETHER ARTICLE 30 PROHIBITS SUCH A DIFFERENCE OF TREATMENT HAS NOT BEEN PUT TO IT BY THOSE COURTS .

20 FROM WHAT HAS BEEN SAID IT FOLLOWS THAT THE ANSWER WHICH MUST BE GIVEN TO THE FIRST QUESTION SUBMITTED BY THE PRESIDENT OF THE ARRONDISSEMENTSRECHTBANK , ALMELO , AND THE ARRONDISSEMENTSRECHTBANK , ' S-HERTOGENBOSCH , IS THAT ARTICLE 30 OF THE EEC TREATY MUST BE INTERPRETED AS MEANING THAT :

( A ) NATIONAL PROVISIONS WHICH PRESCRIBE A MINIMUM RETAIL PRICE OF A SET AMOUNT FOR DOMESTICALLY PRODUCED BREAD AND LAY DOWN , IN THE CASE OF IMPORTED BREAD , A DISTRIBUTION MARGIN TO BE ADDED TO THE PURCHASE PRICE EQUAL TO THE DISTRIBUTION COSTS OF WELL-ORGANIZED AND EFFICIENTLY OPERATED DISTRIBUTORS , CONSTITUTE A MEASURE EQUIVALENT TO A QUANTITATIVE RESTRICTION ON IMPORTS WHERE THAT DISTRIBUTION MARGIN IS COMPULSORY EVEN WHEN THE RESULTING SELLING PRICE IS HIGHER THAN THE MINIMUM PRICE APPLICABLE TO DOMESTICALLY PRODUCED BREAD ;

( B ) SUCH PROVISIONS DO NOT CONSTITUTE A QUANTITATIVE RESTRICTION ON IMPORTS WHERE THE DISTRIBUTION MARGIN FOR THE SALE OF IMPORTED BREAD IS THE SAME AS THAT TAKEN INTO ACCOUNT IN DETERMINING THE SET MINIMUM PRICE FOR DOMESTICALLY PRODUCED BREAD AND IS NOT COMPULSORY FOR IMPORTED BREAD SOLD AT OR ABOVE THAT MINIMUM PRICE ;

( C ) IT DOES NOT PRECLUDE SUCH PROVISIONS FROM ALLOWING THE SELLING PRICE FOR IMPORTED BREAD RESULTING FROM THE APPLICATION OF THE DISTRIBUTION MARGIN TO BE LOWER IN CERTAIN CASES THAN THE MINIMUM PRICE FIXED FOR DOMESTICALLY PRODUCED BREAD .

ARTICLE 7 AND THE PROHIBITION OF DISCRIMINATION

21 THE SECOND OF THE QUESTIONS SUBMITTED BY THE NATIONAL COURTS ASKS WHETHER ARTICLE 7 OF THE EEC TREATY OR THE GENERAL PRINCIPLE OF NON-DISCRIMINATION PRECLUDES PROVISIONS SUCH AS THOSE IN QUESTION IN THIS CASE FROM ALLOWING THE SELLING PRICE OF IMPORTED BREAD TO BE LOWER IN CERTAIN CASES THAN THE MINIMUM PRICE FIXED FOR DOMESTICALLY PRODUCED BREAD AND CONSEQUENTLY TO PUT THE LATTER AT A DISADVANTAGE BY COMPARISON WITH IMPORTED BREAD .

22 THE DIFFERENCE OF TREATMENT TO WHICH THE QUESTION REFERS CONSISTS IN A DISTINCTION DRAWN BY NATIONAL LEGISLATION BETWEEN GOODS ACCORDING TO THEIR ORIGIN AND BETWEEN RETAILERS ACCORDING TO THE GOODS WHICH THEY SELL . IN THE CASE UNDER CONSIDERATION , HOWEVER , THERE IS NO DISTINCTION BETWEEN TRADERS ACCORDING TO THEIR NATIONALITY OR ACCORDING TO THE PLACE WHERE THEY ARE ESTABLISHED . SUCH LEGISLATION THEREFORE CANNOT BE DESCRIBED AS A CASE OF ' DISCRIMINATION ON GROUNDS OF NATIONALITY ' , EVEN OF A DISGUISED OR INDIRECT NATURE , WITHIN THE MEANING OF ARTICLE 7 OF THE EEC TREATY .

23 AS REGARDS THE GENERAL PRINCIPLE OF NON-DISCRIMINATION , IT MUST BE STATED THAT UNFAVOURABLE TREATMENT OF DOMESTIC PRODUCTS IN COMPARISON WITH IMPORTED PRODUCTS OR OF RETAILERS SELLING DOMESTIC PRODUCTS IN COMPARISON WITH THOSE SELLING IMPORTED PRODUCTS , WHEN APPLIED BY A MEMBER STATE IN A SECTOR NOT SUBJECT TO COMMUNITY RULES OR TO THE HARMONIZATION OF NATIONAL LEGISLATION , DOES NOT FALL WITHIN THE SCOPE OF COMMUNITY LAW .

24 IT MUST THEREFORE BE STATED IN ANSWER TO THE SECOND QUESTION SUBMITTED BY THE PRESIDENT OF THE ARRONDISSEMENTSRECHTBANK , ALMELO , AND THE ARRONDISSEMENTSRECHTBANK , ' S-HERTOGENBOSCH , THAT NEITHER ARTICLE 7 OF THE EEC TREATY NOR THE GENERAL PRINCIPLE OF NON-DISCRIMINATION IN COMMUNITY LAW APPLIES TO A DIFFERENCE OF TREATMENT CONSISTING IN THE FACT THAT SUCH LEGISLATION ALLOWS THE SELLING PRICE OF IMPORTED BREAD TO BE LOWER IN CERTAIN CASES THAN THE PRICE FIXED FOR DOMESTICALLY PRODUCED BREAD .

Decision on costs

COSTS

25 THE COSTS INCURRED BY THE NETHERLANDS GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURTS , THE DECISION ON COSTS IS A MATTER FOR THOSE COURTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER ),

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE PRESIDENT OF THE ARRONDISSEMENTS- RECHTBANK , ALMELO , BY JUDGMENT OF 13 MARCH 1985 , AND BY THE ARRONDISSEMENTS- RECHTBANK , ' S-HERTOGENBOSCH , BY JUDGMENT OF 20 MAY 1985 , HEREBY RULES :

( 1 ) ARTICLE 30 OF THE EEC TREATY IS TO BE INTERPRETED AS MEANING THAT :

( A ) NATIONAL PROVISIONS WHICH PRESCRIBE A MINIMUM RETAIL PRICE OF A SET AMOUNT FOR DOMESTICALLY PRODUCED BREAD AND LAY DOWN , IN THE CASE OF IMPORTED BREAD , A DISTRIBUTION MARGIN TO BE ADDED TO THE PURCHASE PRICE EQUAL TO THE DISTRIBUTION COSTS OF WELL-ORGANIZED AND EFFICIENTLY OPERATED DISTRIBUTORS CONSTITUTE A MEASURE EQUIVALENT TO A QUANTITATIVE RESTRICTION ON IMPORTS WHERE THAT DISTRIBUTION MARGIN IS COMPULSORY EVEN WHEN THE RESULTING SELLING PRICE IS HIGHER THAN THE MINIMUM PRICE APPLICABLE TO DOMESTICALLY PRODUCED BREAD ;

( B)SUCH PROVISIONS DO NOT CONSTITUTE A QUANTITATIVE RESTRICTION ON IMPORTS WHERE THE DISTRIBUTION MARGIN FOR THE SALE OF IMPORTED BREAD IS THE SAME AS THAT TAKEN INTO ACCOUNT IN DETERMINING THE SET MINIMUM PRICE FOR DOMESTICALLY PRODUCED BREAD AND IS NOT COMPULSORY FOR IMPORTED BREAD SOLD AT OR ABOVE THAT MINIMUM PRICE ;

( C)IT DOES NOT PRECLUDE SUCH PROVISIONS FROM ALLOWING THE SELLING PRICE FOR IMPORTED BREAD RESULTING FROM THE APPLICATION OF THE DISTRIBUTION MARGIN TO BE LOWER IN CERTAIN CASES THAN THE MINIMUM PRICE FIXED FOR DOMESTICALLY PRODUCED BREAD .

( 2)NEITHER ARTICLE 7 OF THE EEC TREATY NOR THE GENERAL PRINCIPLE OF NON-DISCRIMINATION IN COMMUNITY LAW APPLIES TO A DIFFERENCE OF TREATMENT CONSISTING IN THE FACT THAT SUCH LEGISLATION ALLOWS THE SELLING PRICE OF IMPORTED BREAD TO BE LOWER IN CERTAIN CASES THAN THE PRICE FIXED FOR DOMESTICALLY PRODUCED BREAD .