AND ON HIS OWN ACCOUNT AND RESELLS SUCH GOODS 'TO PROFESSIONAL, TRADE OR LARGE-SCALE USERS' ? IS IT POSSIBLE TO MAKE A DISTINCTION BETWEEN SUCH ACTIVITIES AND RETAIL TRADE ACTIVITIES EVEN WHERE, FOR EXAMPLE, SUCH ACTIVITIES ARE VOLUNTARILY RESTRICTED TO A LIMITED NUMBER OF PURCHASERS HOLDING A TRADE CARD?
( 3 ) SINCE MOST CONSUMERS CAN BE DESCRIBED AS 'TRADE' CUSTOMERS, WHAT CRITERIA SHOULD BE APPLIED TO DISTINGUISH BETWEEN THE CASE WHERE THE WHOLESALER SELLING TO 'PROFESSIONAL, TRADE OR LARGE-SCALE USERS' WHO POSSESS A QUALIFYING CARD ISSUED BY HIM ACTS IN HIS CAPACITY AS WHOLESALER AND THE CASE WHERE HE ACTS AS RETAILER?
( 4 ) DO CASUAL SALES, EVEN OF SINGLE ITEMS, TO A 'TRADE USER' TO WHOM THE WHOLESALER HAS PERMITTED ACCESS TO HIS STORES WHICH IS RESERVED FOR HOLDERS OF A QUALIFYING CARD ALWAYS NECESSARILY CONSTITUTE WHOLESALE SALES?
( 5 ) WHAT EVIDENCE SHOULD THE WHOLESALER BE ABLE TO PRODUCE IN ORDER TO SHOW THAT THE TRANSACTIONS UNDERTAKEN BY HIM WITH A 'PROFESSIONAL, TRADE OR LARGE-SCALE USER' FALL WITHIN HIS WHOLESALE TRADE?
( 6 ) HOW IS THE PROTECTION OF THE CONSUMER TO BE ENSURED WHERE, AS A 'TRADE USER' AND HOLDER OF A QUALIFYING CARD GIVING HIM ACCESS TO WHOLESALE STORES, HE PURCHASES GOODS FOR HIS PERSONAL NEEDS BY THE CASH-AND-CARRY METHOD?"
6 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE, THE COURSE OF THE PROCEDURE AND THE OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
FIRST QUESTION
7 THE FIRST QUESTION OF THE NATIONAL COURT IS ESSENTIALLY DESIGNED TO ASCERTAIN WHETHER THE DEFINITION OF WHOLESALE TRADE SET OUT IN ARTICLE 2*(2 ) OF DIRECTIVE 64/223/EEC MAY BE RELIED UPON BY AN INDIVIDUAL BEFORE THE COURTS OF A MEMBER STATE IN ORDER TO OPPOSE THE APPLICATION TO HIM OF NATIONAL RULES GOVERNING THE PURSUIT OF RETAIL TRADE ACTIVITIES .
8 BEFORE THAT QUESTION IS EXAMINED AND IN ORDER TO DEFINE THE FRAMEWORK AND THE SCOPE OF THE RULES OF COMMUNITY LAW REFERRED TO BY THE NATIONAL COURT, IT IS APPROPRIATE TO POINT OUT THAT THE AIM OF DIRECTIVE 64/223/EEC IS THE ATTAINMENT, IN THE FIELD OF WHOLESALE TRADE ACTIVITIES, OF FREEDOM OF ESTABLISHMENT, AS GUARANTEED BY ARTICLE 52 ETSEQ . OF THE TREATY, AND OF FREEDOM TO PROVIDE SERVICES, AS GUARANTEED BY ARTICLE 59 ET SEQ . OF THE TREATY .
9 AS REGARDS FREEDOM OF ESTABLISHMENT, THE COURT HAS CONSISTENTLY HELD ( SEE IN PARTICULAR THE JUDGMENT OF 12 FEBRUARY 1987 IN CASE 221/85 COMMISSION V BELGIUM (( 1987 )) ECR 719 ) THAT ARTICLE 52 OF THE TREATY IS INTENDED TO ENSURE THAT ALL NATIONALS OF MEMBER STATES WHO ESTABLISH THEMSELVES IN ANOTHER MEMBER STATE, EVEN IF THAT ESTABLISHMENT IS ONLY SECONDARY, RECEIVE THE SAME TREATMENT AS NATIONALS IN THAT STATE AND IT PROHIBITS, AS A RESTRICTION ON FREEDOM OF ESTABLISHMENT, ANY DISCRIMINATION ON GROUNDS OF NATIONALITY .