CELEX: 61981CC0220
Language: en
Date: 1982-05-13
Title: Opinion of Mr Advocate General Capotorti delivered on 13 May 1982. # Criminal proceedings against Timothy Frederick Robertson and others. # Reference for a preliminary ruling: Tribunal de première instance de Bruxelles - Belgium. # Measures having an effect equivalent to quantitative restrictions. # Case 220/81.

OPINION OF MR ADVOCATE GENERAL CAPOTORTI
      DELIVERED ON 13 MAY 1982 (
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         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               In this reference for a preliminary ruling, the Court is once again asked to consider the scope of the concept of “measures having equivalent effect” (to quantitative restrictions on imports) contained in Article 30 of the EEC Treaty. It is necessary to interpret that provision in a fresh light in order to establish whether and within what limits, if any, a Member State is empowered to require importers of and traders in articles made of or plated with precious metal to hallmark such anieles in accordance with specific rules.
               I shall briefly summarize the facts. The question which needs to be answered has arisen in connection with a series of prosecutions initiated by the Belgian authorities against the accused Robertson, Declercq, Konijn, Haas, Lambeets and Demeuldre-Coche, importers of and traders in precious metals, as a result of a complaint from UFIDEC, a Belgian consumer information and defence association. All the abovementioned accused were charged with having sold silver-plated cutlery from other Member States with a pure silver content inferior in weight to that indicated on the hallmark and, accordingly, of having committed the offence of fraud as to the quality of the goods sold, as well as the infringement referred to in Articles 1, 10 and 17 of Royal Decree No 80 of 28 November 1939, as subsequently amended, which require manufacturers, importers and traders to stamp silver-plated cutlery with hallmarks specifying the pure silver content. Mr Declercq was also charged with another infringement concerning his selling prices. However, that aspect of the main proceedings is unrelated to the questions referred to this Court. The Tribunal de Première Instance, Brussels, before which the prosecutions were initiated, joined the various cases and then stayed the proceedings in order to ask the Court of Justice for a preliminary ruling pursuant to Article 177 of the EEC Treaty on the question whether “Articles 30 to 36 of the Treaty establishing the European Economic Ccn'.munity must be interpreted as pr ŕibiting in the precious metals sector provisions such as Royal Decree No 80 of 28 November 1939 supplementing and amending the Law of 5 June 1868, confirmed by the Law of 16 June 1947 [...], which determine, in accordance with particular methods, the fineness of an alloy containing pure silver and govern the form and the details of hallmarks guaranteeing the fineness so determined”.
            
         
               2. 
            
            
               To begin with, it is necessary to establish what the legislation in force in Belgium lays down as regards the hallmarking of articles made of precious metals. The aforementioned Royal Decree No 80 of 1939 which, as successively amended, still governs the working of and trade in gold and silver, introduced a guarantee as to fineness in the case of articles made of precious metals. In Article 1 (as amended by the Regent's Decree of 28 February 1947) it provides that “manufacturers of gold, silver and platinum articles shall guarantee the fineness of the alloy used by stamping the article with two hallmarks. One of those hallmarks shall constitute the manufacturer's own hallmark. The other shall indicate the fineness”. The fourth paragraph of the same provision provides that “importers of and traders in articles made of precious metals shall be treated as manufacturers in respect of articles sold by them which do not bear the hallmarks prescribed by this decree”. In Article 10 that decree provides that silver-plated articles (which, as I have stated, are relevant for the purposes of the proceedings pending before the national court) must also “bear two hallmarks, one constituting the manufacturer's own hallmark ... and the other bearing a numeral indicating the number of grams of pure silver with which the article is coated”.
               Decree No 80 of 1939 was supplemented by the Regent's Decree of 13 July 1948 which lays down detailed rules for the implementation of the former and provides, inter alia, in Article 7 that the manufacturer's hallmark and the hallmark as to fineness or, in the case of silver-plated metals, as to the weight in pure silver, must be in a specific form, that is to say the manufacturer's mark must be in the form of a barrel and the hallmark as to fineness or weight must be in the form of a rectangle. Moreover, that article provides that the number of grams of silver coating must be specified in arabic numerals and that the indications must be set out lengthwise on each article.
               It must be emphasized that Article 21 of the abovementioned Decree of 13 July 1948 introduced a derogation from the fourth paragraph of Article 1 of Decree No 80 of 1939 by providing that, pending the enactment of implementing provisions designed to establish which articles made of precious metals and manufactured abroad are capable of being marketed in Belgium even though they have not been stamped with the hallmarks prescribed by Belgian law, articles made of gold, silver or platinum and manufactured abroad may, provisionally, be offered for sale in Belgium even though they have not been stamped with the hallmarks prescribed, “provided that they bear the Sute assay hallmarks which permit the goods to be marketed in their country of origin”. In view of the fact that the implementing provisions envisaged have not been enacted to this day, it must, be assumed that the obligation to hallmark foreign articles made of precious metals and imported into Belgium exists only where the legislation of the country of origin makes no provision in connection with the domestic marketing of the articles in question for hallmarks subject to assay. On the other hand, as far as articles made of base metal plated with precious metals are concerned, no derogation is provided for, with the result that at present, in order to be imported and marketed in Belgium, such anieles must in all cases be stamped with the manufacturer's mark and with the hallmark of fineness (see fourth paragraph of Article 1 of Decree No 80 of 1939, cited above).
            
         
               3. 
            
            
               Does a system of the type described give rise to effects equivalent to quantitative restrictions on imports? In my opinion, it undoubtedly constitutes an obstacle to intra-Community trade in products plated with precious metal, on the assumption that the obligation relating to hallmarking in specific forms may not be derogated from in the case of such products (for example silver-plated cutlery) in the sense that the importer and the trader are always required to hallmark articles of that kind from abroad (as is the case in Belgium).
               As regards products made entirely of precious metal, however, the obstacle to international trade is less apparent where local legislation allows such anides to be freely marketed once they have already been hallmarked under the supervision of the public authorities in their country of origin. Those articles too, however, may in cenain cases need to be hallmarked if they have already been stamped in their country of origin with a less comprehensive hallmark (only as to fineness, for example). It is scarcely necessary to add that, in any event, articles which have not been stamped with a hallmark or have not been so stamped under the supervision of the public authorities in the country of origin will require hallmarking.
               It also became apparent in the course of the oral procedure that the hallmarking of imported articles constitutes an additional obligation for the importer. In a system such as the one which is in force in Belgium, the importer must register the hallmarks beforehand with the State authorities and then have all the articles stamped with hallmarks before marketing them. Those operations obviously hinder trade both because they are time-consuming, and accordingly delay marketing, and because they entail additional expenditure.
               Legislation of the type described therefore seems to be contrary to Article 30 of the EEC Treaty. It is well known that the expression “measures having an effect equivalent to quantitative restrictions” includes, according to the established case-law of the Court, “all trading rules of Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trad.” (see the following judgments: 11 July 1974 in Case 8/74 Dassonville [1974] ECR 837; 15 December 1976 in Case 41/76 Donckerwolcke [1976] ECR 1921; and 13 March 1979 in Case 119/78 SA des Grandes Distilleries Peureux [1979] ECR 975, in particular paragraph 22 of the decision). Legislation of the type described undoubtedly constitutes a real, albeit indirect, obstacle to intra-Community trade and should thus fall within the prohibition laid down by Article 30 unless justified on reasonable grounds.
               The Belgian Government for its part draws attention to the fact that Belgian law permits the marketing of articles which have already been stamped, under the supervision of the public authorities, with a hallmark as to fineness and with the manufacturer's mark in their country of origin. I have already mentioned that aspea of the Belgian legislation and pointed out that a large number of articles must in any event be stamped with hallmarks — I am referring to silver-plated articles — and, moreover, that even the provisions concerning articles made entirely of precious metal do not obviate the need for hallmarking in many instances. Accordingly, the problem cannot be solved on the basis of those provisions alone.
            
         
               4. 
            
            
               Counsel for the Belgian Government, supported by the United Kingdom, maintains in the alternative that legislation of the kind under consideration is lawful inasmuch as its purpose is to protect consumers and fair trading. That argument is worthy of consideration.
               It is we iwn that, according to the case-law the Court, the Member States may introduce restrictions on trade which are “necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of physical supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer”; that wording is to be found in the judgment of 20 February 1979 in Case 120/78 Rewe [1979] ECR 649, which was followed by the Court in its judgments of 26 June 1980 in Case 788/79 Gilii [1980] ECR 2071 and of19 February 1981 in Case 130/80 Kelderman [1981] ECR 527. As I have already stated in my opinion in the Gilli case, and repeated in my opinion in the Oebel case (Case 155/80, opinion delivered on 27 May 1981 [1981] ECR 2012), the Court recognized the lawfulness of provisions of national law which derogate from the prohibitions laid down by Articles 30 and 34 of the EEC Treaty even beyond the circumstances referred to in Article 36 of the Treaty where the obstacles to trade created by such provisions serve a purpose which is “in the general interest and such as to take precedence over the requirements of the free movement of goods, which constitutes one of the fundamental rules of the Community” (paragraph 14 of the decision in the Rewe judgment of 20 February 1979). In a recent decision, the Court clearly ruled out the possibility that an exception to Articles 30 and 34 on grounds of the protection of consumers and fair trading might be inferred from Article 36; see the judgment of 17 June 1981 in Case 113/80 Commission v Ireland [1981] ECR 1625, in particular paragraph 8 of the decision. In the same judgment, however, the Court also confirmed the validity of its decision in the Rewe case, reaffirming that the Member Sutes may derogate from Article 30 where it is necessary “in order to satisfy imperative requirements relating in particular to ... the fairness of commercial transactions and the defence of the consumer” (paragraph 10 of the decision). Accordingly, it remains to be established whether those principles are applicable in the circumstances described by the national court.
            
         
               5. 
            
            
               The Commission recognizes that the system of hallmarking articles which are either made of precious metals or are silver-plated has as its purpose to protect consumers and ensure fair trading. In its opinion, however, it is unlawful to require a fresh hallmark to be impressed on the article where it has already been stamped with one in the country of origin or to impose the use of a hallmark in a specific form.
               I share the Commission's views on the lawfulness of the system of hallmarking in general. It remains to be seen whether the restrictions on intra-Community trade in articles made of precious metals which result from provisions on hallmarking such as those contained in Belgian law are proportionate in relation to the purpose of protecting consumers and fair trading. In other words, it is necessary to determine whether the system in question is lawful in the light of the principle of proportionality. This Cou rt has denied that it is permissible to rely on the principles of consumer protection and fair trading where those objectives can be achieved by imposing on intra-Community trade restrictions which are less severe than those in point; see in that respect the judgment of 20 February 1979 in Case 120/78 Rewe, cited above, in particular paragraph 13 of the decision.
               We have seen that under the Belgian system, which the national court has taken as a point of reference for its question, the arrangements in respect of imported articles made entirely of precious metal differ from those applicable to imported articles plated with a precious metal. The inquiry which remains to be made must therefore take into account the different treatment accorded (in this case) to the two categories of articles. A preliminary observation which may, however, be made with reference to both categories is that no harmonization directives have yet been adopted in those sectors by the Community. In other words, neither the general programme for the elimination of technical barriers to trade which result from disparities between the provisions laid down by law, regulation or administrative action in Member States, adopted by the Council on 28 May 1969 nor the Council Resolution of 17 December 1973 on industria! policy, both of which provide for the gradual removal of legislative disparities also in the field of trade in precious metals, has been implemented.
               Against that background, I shall deal first of all with the category of articles made of precious metal; here I should like to observe that a system such as the one which is in force in Belgium and in principle recognizes foreign assays as valid for the purpose of marketing products on its own territory is amply justified by the need to protect consumers and fair trading. Moreover, it seems to me that where the foreign legislation offers no guarantees regarding the official character of the aforesaid assays, or makes no provision whatever for such assays, it is reasonable to require importers to comply with local legislation and consequently with the requirements as to hallmarking which that legislation prescribes. Nor do I believe that it is excessive to require articles to be stamped with both the hallmark as to fineness and with the manufacturer's mark, since the purpose of both marks is to ensure that the specific objectives of protecting the consumer and fair trading are attained. The hallmark as to fineness enables buyers to determine at a glance how much pure metal is present in the alloy and the manufacturer's mark makes it easy to identify the manufacturer for the purposes of responsibilities incumbent upon him (which include responsibility in relation to the accuracy of the indications concerning fineness). What strikes me as more important is that hallmarks should display the same features irrespective of the importer's nationality. From that point of view, in my opinion, a provision such as Article 14 of the abovementioned Decree No 80 of 1939, according to which persons who are not Belgian nationals must Erovide a guarantee when registering the allmark, whereas Belgian nationals are under no such obligation, is not in conformity with Community law. A provision of that kind creates discrimination without justification between nationals and non-nationals. In that connection, I would recall the judgment of 17 June 1981 in Case 113/80 which I have already cited (see in particular paragraph 11 of the decision).
               Furthermore, as regards the arrangements in respect of silver-plated articles made of base metal, we have already seen that under the Belgian legislation such articles must always be hallmarked in Belgium, regardless of the fact that they have already been stamped with similar hallmarks or undergone similar assays in their country of origin. The Commission maintains that, in that case too, in the light of Aride 30, the importation of articles bearing hallmarks which are in conformity with the law of the country of origin should be permitted, on condition that such hallmarks provide at least the same information as that which would be provided by the hallmarks impressed in accordance with Belgian law. In support of that argument, the Commission relies on the judgment of the Court of 16 December 1980 in Case 27/80 Fietje [1980] ECR 3839. In that case it was necessary to determine whether a Member State might enact rules governing the description and labelling of imported alcoholic beverages so as to make it necessary to alter the label under which a given beverage was lawfully marketed in its country of origin. The Court ruled that where the deuils given on the original label supplied the consumers with information (on the nature of the product) equivalent to that contained in the description prescribed by the Sute of imporution, the aforesaid provisions of national law must be regarded as a measure having an effect equivalent to a quantiutive restriction since they did not serve a purpose which was in the public interest relating to consumer protection.
               In my opinion, the criterion laid down in that judgment also applies in the present case, even though there is no denying that it is particularly difficult to determine in practice whether the content and the value of the information set out on a hallmark prescribed by a given country is equivalent to the same requirement imposed by another Sute. In that regard, it should be borne in mind that hallmarks sumped on precious meuls provide the consumer with information by means of a very restricted number of signs. Under the Belgian system, for example, a letter sunds for the meul, a numeral sunds for the pure meul content and the characteristic form of every hallmark makes it possible to distinguish the indications relating to fineness from those relating to the manufacturer's mark. That type of code differs, or may differ, from one country to another and it is therefor reasonable to assume that consumers in a given country are familiar with the code used there and not with any other codes which may be in force elsewhere. In this field, the harmonization of national laws is essential. Without it, the question whether hallmarks in conformity with the law of a Sute are also suiuble for providing foreign consumers with the desired information must be approached very cautiously. In my view, it is important to emphasize that foreign hallmarks must be equivalent as regards content (in the present case, the indications relating both to fineness and to the manufacturer's mark), as regards assays (which must offer the same guarantees) and, finally, as regards the degree of clarity (the consumer must be able to undersund the indications provided by the hallmarks). If those conditions are fulfilled, it is also possible to agree with the Commission when it mainuins that provisions of national law are incompatible with Article 30 of the Treaty if they require importers to use hallmarks in a specific form or corresponding to a model registered beforehand, even though sufficient information is already provided by the hallmarks differing in form impressed on the articles at the time of importation.
            
         
               6. 
            
            
               On the basis of the above considerations, I propose that the Court should answer the question submitted by the Tribunal de Première Instance, Brussels, by judgment of 20 July 1981, as follows:
               The obligation imposed by a Member Sute on importers and traders to stamp with a hallmark as to fineness and with the manufacturer's mark articles made of or plated with precious metal (platinum, gold and silver) which come from another Member State before marketing them does not fall within the concept of measures having an effect equivalent to quantitative restrictions on imports contained in Article 30 of the EEC Treaty, provided that such articles do not bear hallmarks impressed in the country of origin which are equivalent as regards content, clarity and assays. The obligation in question must in all cases be applied in accordance with the same detailed rules both to the nationals of the Sute concerned and to the nationals of other Member Sutes of the Community.
            
         (
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         )	Translated from ihr Iulian.