Commission of the European Communities v Kingdom of Belgium.
Date: 1991-03-19
6 Before examining these various allegations, it should be recalled that, when the Commission requests the Court to declare that a State has failed to fulfil its obligations under the Treaty, it is for the Commission itself to adduce evidence of the alleged infringement (judgment in Case 141/87 Commission v Italy [1989] ECR 943).
The criteria listed in the Royal Decree of 11 December 1975
7 As is stated in Article 2(3)(c), (d) and (e) of Commission Directive 70/50/EEC of 22 December 1969, based on the provisions of Article 33(7) of the EEC Treaty, on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty (Official Journal English Special Edition 1970 (I), p. 17), Article 30 of the Treaty precludes, inter alia, national price controls which fix price components differently for domestic products and for imported products, to the detriment of the latter, preclude any increase in the price of the imported product corresponding to the supplementary costs and charges inherent in importation, or fix the prices of products solely on the basis of the cost price or the quality of domestic products at such a level as to create a hindrance to importation. That interpretation of Article 30 has been confirmed by the well-established case-law of the Court and, in particular, by the judgment in Case 56/87 Commission v Italy [1988] ECR 2919, paragraphs 6 and 7.
9 However, the decree in question includes other criteria which concern all undertakings without distinction and certain criteria, such as the "ex-producer or ex-importer price components", "cost of the factors of production, importation or distribution", "selling costs", which enable in particular account to be taken of the specific cost components of imported pharmaceutical products (judgment in Case C-347/88 Commission v Greece [1990] ECR I-4747, paragraph 73).
15 On this specific point, which is the one at issue, the Court has held on several occasions that price control systems applicable to domestic products and imported products alike, although not in themselves constituting measures having an equivalent effect to a quantitative restriction contrary to Article 30 of the Treaty, may nevertheless have such an effect when the prices are fixed at a level such that the sale of imported products becomes either impossible or more difficult than that of domestic products (see in particular the judgment in Case 181/82 Roussel Laboratoria v Netherlands [1983] ECR 3849, paragraph 17).
23 According to the Commission, the decisions adopted by the Minister for Economic Affairs, pursuant to the Law of 9 July 1975, do not disclose to the addressees of those decisions the reasons for which the administration fixed at a given level the maximum price of the product in question, contrary to the requirements of the Court in this matter, as they emerge from the judgment in Case 238/82 Duphar [1984] ECR 523.
31 It should be borne in mind that, as the Court has already pointed out in the Duphar judgment, mentioned above, although the exclusion of a pharmaceutical product from reimbursement by the social security institutions may result in its complete disappearance from the national market, States must, because of the specific nature of the trade in pharmaceutical products, which is characterized by the coverage to a large extent of their cost by the social security institutions, be permitted to regulate the consumption of such products, particularly in order to promote the financial stability of those institutions, in particular by determining the products which may be reimbursable. However, decisions in that regard must not discriminate against imported products and must be based on objective criteria that are independent of the origin of the products and verifiable by any importer. The Commission' s allegations must be examined in the light of those principles.