EN Official Journal of the European Union CE 88/319

(2004/C 88 E/0324)

WRITTEN QUESTION E-0226/03

by Guido Podestà (PPE-DE) and Amalia Sartori (PPE-DE) to the Commission

(3 February 2003)

Subject: Regulatory obstacles to intra-Community trade in gold products — breach of Article 28 of the EC Treaty

It is now almost 50 years since the entry into force of the EC Treaty and the related provisions establishing a common market and yet many regulatory obstacles still exist and are preventing the free movement within the EU of gold products legally hallmarked and marketed in a Member State.

This applies, in particular, to Italian gold products which, although manufactured, legally hallmarked and marketed in Italy, find it difficult to move from Italy to some other Member State of the EU because of the legislation and regulatory obstacles in force, particularly in France, Ireland and the United Kingdom.

It is now consistently established by Community case law that any trade regulations enacted by Member States which may actually or potentially impede intra-Community trade directly or indirectly are regarded as measures with an effect equivalent to quantitative restrictions and hence a breach of Article 28 of the EC Treaty.

Despite recent complaints — some of which are still pending — and despite the seriousness of the violations established, which erode a freedom, that of the free movement of goods, which is crucial for the Community, the Commission does not appear to have paid the necessary attention to this issue so far.

1. In the light of the situation described above, can the Commission say how it intends finally to put an end to any impediments or obstacles to free movement between Member States, within the common market, of gold products legally manufactured, hallmarked and marketed in a Member State?

2. Can the Commission explain why, despite repeated reports, it has so far failed to intervene with sufficient rigour to put an end to the breaches described above?

Answer given by Mr Bolkestein on behalf of the Commission

(5 March 2003)

The Commission is asked how it intends to remove obstacles to the free movement of gold products legally manufactured, hallmarked and marketed in a Member State and what steps have been taken to bring an end to breaches of article 28 of the EC Treaty in this area.

The first point to make is that, in the past, harmonising legislation in this area was proposed by the Commission but never came to fruition. Pending any harmonisation of the rules relating to hallmarking, obstacles to the free movement of gold products within the Union fall to be examined under articles 28 to 30 of the EC Treaty.

In the early 1990s, several infringement cases concerning obstacles to trade in precious metals were brought against various Member States including France, Ireland and the United Kingdom. However, in the light of the ruling of the European Court in the Houtwipper case (Case-293/93) delivered on 15 September 1994, these cases were closed. In Houtwipper, the Court expressly rejected the argument of the German government that:

a Member State may not prohibit the marketing in its territory of articles of precious metal hallmarked by the producers themselves in the Member State of exportation, where compliance with the law, and consequently, consumer protection and the safeguarding of fair trading are assured by a range of measures capable of ensuring that the hall mark functions as a guarantee.

Instead the Court said that, in the absence of Community rules, the Member States had a wide discretion, and it was for them to choose the appropriate measures to deal with the risk of fraud. The choice between prior control by an independent body and a scheme permitting hallmarking by manufacturers, backed up by training, quality rules and sanctions was a matter for the legislative policy of the Member States; the Court would review that choice only where there had been ‘a manifest error of assessment’.

In its judgement in Commission v. Ireland (case C-30/99), delivered on 21 June 2001, the Court chose not to revisit ‘the question whether a hallmark struck by a manufacturer or his laboratory offers sufficient guarantees of independence to be considered equivalent to a hallmark struck by an independent body’.

The Commission recently received new complaints against the three Member States referred to in the question, alleging that their policy of failing to recognise hallmarks struck by the manufacturer in the context of a scheme of accreditation, monitoring and surveillance is contrary to article 28 of the EC Treaty. The Commission is currently examining whether the refusal to recognise such marks might constitute ‘a manifest error of assessment’ by the authorities of these Member States.