CELEX: 61983CC0269
Language: en
Date: 1985-01-22 00:00:00
Title: Opinion of Mr Advocate General Lenz delivered on 22 January 1985. # Commission of the European Communities v French Republic. # Measures having an effect equivalent - Preferential postal tariff for national newspapers and periodicals. # Case 269/83.

OPINION OF MR ADVOCATE GENERAL LENZ
      delivered on 22 January 1985 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      A.
      Article D 18 of the French Code des Postes et Télécommunications (as amended by the Decree of 12 February 1965) provides that newspapers and other periodicals shall, on condition that they are of general interest in terms of information, education, instruction and entertainment, qualify for a special press rate, which is lower than the tariff for printed matter and samples.
      Article D 21 of the Code further provides that newspapers and periodicals which are printed abroad, in whole or in part, shall be governed by the tariff applicable to normal printed matter. That rule, however, does not apply in the case of French publications printed in a Member State of the European Communities. Publications qualify as French if the chief editor has French nationality and is resident in France. They then enjoy the preferential tariff applicable to publications printed in France. It is further laid down in Article D 21 that the postal administration may apply the preferential tariff enjoyed by newspapers and periodicals to foreign publications posted in France, if the country in question similarly applies to French newspapers and periodicals posted in its territory a tariff which, to use its terms, operates ‘en faveur des objets de même catégorie’ (which, according to the French Government, applies only to Belgium).
      On examining those provisions at the same time as it gave consideration to the provisions prevailing in other Member States, the Commission concluded that the abovementioned conditions for the application of the preferential tariff were incompatible both with the prohibition under Article 30 of the EEC Treaty on measures having equivalent effect to quantitative restrictions on imports, and with Commission Directive No 70/50/EEC of 22 December 1969, adopted pursuant thereto, in particular Article 2 (3) (1) and (o) thereof, which reads as follows:
      ‘The measures [which are to be eliminated on account of their incompatibility with Article 30 of the EEC Treaty] must be taken to include those measures which:
      ...
      
               (l)
            
            
               totally or partially preclude the use of national facilities or equipment in respect of imported products only, or totally or partially confine the use of such facilities or equipment to domestic products only;
            
         ...
      
               (o)
            
            
               make importation subject to the granting of reciprocity by one or more Member States;
            
         ...’
      That view was notified to the French Government by letter in 1979 and 1980.
      The French Government considered — and still considers — the above appraisal to be incorrect. In a letter of June 1980 it expressed the view that the provisions of the directive which are quoted above were inapplicable to the preferential French tariff. It further considered that the provisions to which the Commission objected did not — since the importation and marketing of foreign publications in France was unrestricted — fall within the prohibition under Article 30 of the EEC Treaty, and that it was furthermore questionable whether that article was at all applicable to products which served as vehicles of political, social and cultural information and hence could not be equated with goods.
      The Commission was not persuaded that the above contention was correct, and in July 1981 it called upon the French Government to amend Article D 21 of the Code des Postes et Télécommunications in such a way as to enable publications of all Member States to enjoy the preferential tariff.
      As that demand was not acted upon, the Commission, in a letter dated 19 July 1982, initiated the procedure under Article 169 of the EEC Treaty, further citing in support of its view Article 2 (2) and (3) (k) of Commission Directive No 70/50/EEC, mentioned above, which reads as follows:
      
               ‘(2)
            
            
               In particular, [this directive] covers measures which make imports or the disposal, at any marketing stage, of imported products subject to a condition — other than a formality — which is required in respect of imported products only, or a condition differing from that required for domestic products and more difficult to satisfy. Equally, it covers, in particular, measures which favour domestic products or grant them a preference, other than an aid, to which conditions may or may not be attached.
            
         
               (3)
            
            
               The measures referred to must be taken to include those measures which:
               ...
               
                        (k)
                     
                     
                        hinder the purchase by private individuals of imported products only, or encourage, require or give preference to the purchase of domestic products only;
                     
                  ...’
            
         Accordingly, because the French Government failed to respond to the request in the letter for a statement of its views, a formal opinion under Article 169 of the EEC Treaty was issued on 14 March 1983, and — since the measures demanded were not adopted within the stipulated period and no further statement on the subject was forthcoming — the matter was brought before the Court of Justice on 9 December 1983. In its application, the Commission asks the Court to declare that the French Republic has failed to comply with its obligations under Article 30 of the EEC Treaty, namely by conferring the advantage of a reduced postal rate, pursuant to Article D 21 of the Code des Postes et Télécommunications, on French newspapers and periodicals alone, to the exclusion of newspapers and periodicals of other Member States which are posted and distributed in France.
      B.
      On the above application — which the French Government considers unfounded — it seems to me appropriate to make the following observations.
      
               1.
            
            
               In the proceedings before the Court, the French Government no longer adhered to the view which it had expressed in the preliminary procedure, that the products governed by the tariff arrangements were not to be regarded as goods because they served as vehicles for political, cultural and social information, and could therefore not be subject to the provisions on the free movement of goods.
               That view is indeed — as the French Government conceded in the oral procedure — untenable. For that to become apparent, it is sufficient to look at the judgment in Case 7/68, (
                     1
                  ) according to which the provisions on the free movement of goods cover all products ‘which can be valued in money and which are capable, as such, of forming the subject of commercial transactions’. It must be conceded without hesitation that the foregoing applies to newspapers and other periodicals.
            
         
               2.
            
            
               It is also clear from the decisions of the Court — ever since the judgment in Case 8/74 (
                     2
                  ) — that the prohibition in Article 30 calls for a very broad formulation. Thus, all trading rules enacted by Member States ‘which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade’ are to be regarded as measures having an effect equivalent to quantitative restrictions [(1974] ECR 837, at p. 852, para. 5). That formulation is now of central importance in the appraisal of obstacles to imports which do not come within the categories of customs duties and aids.
               On the other hand, as Article 30 has been directly applicable since the expiry of the transitional period, the Commission directive which I mentioned at the outset serves merely as an aid to interpretation. It is therefore, as was rightly emphasized, not binding on the Court, and in particular does not contain an exhaustive enumeration of all conceivable obstacles to imports, for which reason it would be wrong to conclude that measures not falling within the provisions of the directive could not be regarded as measures having an effect equivalent to quantitative restrictions on imports.
               The decisions of the Court furthermore make it clear that for the purposes of Article 30 it is not the extent of an adverse effect on trade — for instance, how appreciable it is — which matters. Thus it was clearly stressed in the judgment in Joined Cases 177 and 178/82 (
                     3
                  ) that Article 30 does not draw distinctions according to the degree of the adverse effect on trade, and hence also applies when the impediment is slight, and other marketing opportunities remain open.
            
         
               3.
            
            
               On that basis is may readily be concluded that the Commission was right to accuse the French Republic of infringing the Treaty.
               It must indeed be accepted that the provisions described above make the selling of printed material produced in other Member States more difficult whenever it takes place inside France by way of subscription (sales from kiosks, to which different conditions do not apply, are probably not affected). Such printed products go up in price by comparison with French publications, and the increase certainly affects subscribers since they have to bear the transport costs. Nor, to judge from the figures submitted, is the increase by any means insignificant; according to the information supplied by the Commission, the distribution costs, in the case of a subscription, account for 35% of the selling price in the provinces and 45% of the selling price in Paris; the French Government informed the Court, in answer to a question put by it, that the preferential rate varies, according to weight, between FF 0.194 and FF 0.853 as compared with the normal rate, which ranges between FF 1.70 and FF 6.50. That may lead to a situation — and, for the purposes of Article 30 the formulation quoted above, such a possibility is sufficient — in which subscriptions to foreign periodicals (where purchase from the kiosk is not possible) are abandoned altogether. It is also conceivable that a number of readers, in those circumstances, will opt for French publications with their cheaper subscription rates. Even though it must be admitted that, as far as some publications are concerned, the buyer's decision is determined less by price than by taste and by certain cultural or political preferences, it is still impossible in general terms to rule out an interchangeability between French and foreign publications, as in the case of subscriptions to specialized periodicals — scientific journals, for instance — or where the language of the publication is not a determining factor for the buyer and the purchase price as such is not notably different. If it were otherwise, then — as the Commission rightly points out — the differential tariffs discussed above would indeed hardly make sense. Moreover, even the French Government concedes that the tariff rules are designed to provide indirect support for certain publications and to keep certain, readers faithful to them.
               It cannot, furthermore, be objected to that view of the matter that the price of periodicals is not determined by the postal tariff, that the French market is not the principal sales area for the distribution of foreign publications and hence that the disputed tariff is of importance for no more than a small part of the circulation. That is obviously based on a misunderstanding of the term ‘cost price’ used by the Commission, which means, not the selling price charged by the publisher (in which transport costs probably do not account for a large share), but rather the price to be paid by the postal subscriber.
               Similarly, it cannot be objected to the view set out above that what is at issue is not a measure taken exclusively in favour of French printed matter, since foreign publications can enjoy the special tariff as well, if — by fulfilling the criteria mentioned above — they can be treated as French publications, or if in their country of origin French publications also qualify for a preferential tariff. The first-mentioned conditions cannot readily be satisfied; they give rise to special expenditure and therefore constitute difficulties which are not of the same consequence for printed matter produced in France. As far as the other point is concerned, however, it is not only of significance that the circumstance mentioned in no way alters the fact that it is for the most part French periodicals which enjoy the tariff; it is also important to note — and here the Commission is right — that under Community law justification for the application of measures which obstruct imports may not be derived from the fact that similar measures are applied in other Member States.
            
         
               4.
            
            
               Although the above considerations are in themselves sufficient to demonstrate that the application is well-founded, it may further be remarked that the Commission was right in referring to the explanatory provisions in its directive of 22 December 1969.
               
                        (a)
                     
                     
                        That applies to Article 2 (2), which — as has been shown — contemplates two categories of measure; first, those measures which subject imported products to certain conditions of sale, or introduce conditions which are more onerous than those imposed on domestic products, and secondly, those which favour domestic products.
                        The provisions at issue come within the latter category — in any event in so far as the sale of publications through the post is concerned — because in that respect imported products are subject to less favourable conditions. By the same token, it may be said that domestic products are favoured, since in reality it is not just a matter — as the French Government has explained — of encouraging purchasers of periodicals on the French market to obtain them by way of subscription, as opposed to buying them at the newsstand; the fact that a few foreign publications may (if certain conditions are fulfilled) enjoy the special tariff cannot obscure the fact that it is primarily domestic products which are thereby favoured.
                     
                  
                        (b)
                     
                     
                        The same applies to Article 2 (3) (k), dealing with measures which encourage or give preference to the purchase of domestic products only.
                        That is so because the advantage of which French publications are the main beneficiaries is of real importance, and because — in the case of certain publications at any rate — it may quite properly be supposed that they are substitutable for foreign journals.
                     
                  
                        (c)
                     
                     
                        Lastly, as regards Article 2 (3) (o), which refers to importation subject to the granting of reciprocal concessions by one or more Member States, it is admittedly true that in view of its wording it does not quite fit the present case, because it is not possible to point to any condition governing importation.
                        
                     
                  However, it is perfectly possible to regard as tenable an application by analogy to cases such as the present one, or at the very least to accept that the core of that provision covers rules such as Article D 21 of the French Code des Postes et Télécommunications.
            
         C.
      In conclusion, it should be held that the Commission's application is well-founded, and a declaration should therefore be made that the French Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty by reserving, pursuant to Article D 21 of the Code des Postes et Télécommunications, the benefit of a reduced postal rate to French newspapers and periodicals, to the exclusion of similar publications of other Member States which are posted in France and are distributed there.
      Similarly, as requested in the application, the Court should order the French Republic to pay the costs of the proceedings.
      (
            *1
         )	Translated from the German.
      (
            1
         )	Judgment of 10 December 1968, Case 7/68 Commission of the European Communities v Italian Republic [1968] ECR 423.
      (
            2
         )	Judgment of 11 July 1974, Case 8/74 Procureur du Roi v Benoit and Gustave Dassonville [1974] ECR 837.
      (
            3
         )	Judgment of 5 April 1984, Joined Cases 177 and 178/82, Criminal proceedings against Jan van de Haar and Kaveka de Meern BV[1984] ECR 1797.