European Commission v Czech Republic.
Date: 2016-09-22
8


It should, however, be recalled, first, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court of Justice make no provision for the parties to submit observations in response to the Advocate General’s Opinion (judgments of 17 July 2014, Commission v Portugal, C‑335/12, EU:C:2014:2084, paragraph 45, and of 4 May 2016, Commission v Austria, C‑346/14, EU:C:2016:322, paragraph 23).
14


Since the Court can examine of its own motion whether the conditions laid down in Article 258 TFEU for bringing an action for failure to fulfil obligations are satisfied (judgment of 14 January 2010, Commission v Czech Republic, C‑343/08, EU:C:2010:14, paragraph 25 and the case-law cited) and the action is directed not against a national law or regulation but against a practice of the Czech assay office, it should be recalled, as a preliminary point, that an administrative practice of a Member State can be made the object of an action for failure to fulfil obligations when it is, to some degree, of a consistent and general nature (judgments of 29 April 2004, Commission v Germany, C‑387/99, EU:C:2004:235, paragraph 42 and the case-law cited, and of 5 March 2009, Commission v Spain, C‑88/07, EU:C:2009:123, paragraph 54).
16


In accordance with Article 120(c) of the Rules of Procedure and the related case-law, an application initiating proceedings must state the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. That statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of fact and of law on which a case is based to be indicated coherently and intelligibly in the application itself and for the form of order to be set out unambiguously so that the Court does not rule ultra petita or fail to rule on a complaint (judgments of 11 July 2013, Commission v Czech Republic, C‑545/10, EU:C:2013:509, paragraph 108 and the case-law cited, and of 23 February 2016, Commission v Hungary, C‑179/14, EU:C:2016:108, paragraph 141).
17


It is also settled case-law that, in an action under Article 258 TFEU, the letter of formal notice sent by the Commission to the Member State and the reasoned opinion issued by the Commission delimit the subject matter of the dispute, so that it cannot afterwards be extended. The opportunity for the Member State concerned to submit its observations, even if it chooses not to make use of it, is an essential guarantee intended by the Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations. Consequently, the reasoned opinion and the action brought by the Commission must be based on the same complaints as those in the letter of formal notice initiating the pre-litigation procedure (judgments of 29 September 1998, Commission v Germany, C‑191/95, EU:C:1998:441, paragraph 55, and of 10 September 2009, Commission v Portugal, C‑457/07, EU:C:2009:531, paragraph 55 and the case-law cited).
18


The reasoned opinion and the action brought under Article 258 TFEU must therefore set out the complaints coherently and precisely, in order for the Member State and the Court to be able to appreciate exactly the scope of the breach of EU law complained of, a condition which is necessary to enable the Member State to put forward its defence and the Court to determine whether there is a breach of obligations as alleged (judgments of 14 October 2010, Commission v Austria, C‑535/07, EU:C:2010:602, paragraph 42, and of 3 March 2011, Commission v Ireland, C‑50/09, EU:C:2011:109, paragraph 64 and the case-law cited).
34


According to settled case-law of the Court, all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, trade within the EU must be considered to be measures having an effect equivalent to quantitative restrictions on imports within the meaning of Article 34 TFEU (judgments of 11 July 1974, Dassonville, 8/74, EU:C:1974:82, paragraph 5, and of 16 January 2014, Juvelta, C‑481/12, EU:C:2014:11, paragraph 16).
35


Obstacles to the free movement of goods resulting, in the absence of harmonisation of national legislations, from the application by a Member State to goods coming from other Member States, in which they are lawfully manufactured and marketed, of rules relating to conditions with which those goods must comply, even if those rules apply without distinction to all products, therefore constitute measures having equivalent effect prohibited by Article 34 TFEU, unless their application can be justified by an objective of public interest capable of taking precedence over the free movement of goods (see, to that effect, judgments of 20 February 1979, Rewe-Zentral (‘Cassis de Dijon’), 120/78, EU:C:1979:42, paragraph 8; of 15 September 1994, Houtwipper, C‑293/93, EU:C:1994:330, paragraph 11; and of 16 January 2014, Juvelta, C‑481/12, EU:C:2014:11, paragraph 17).
37


The Court has concluded that, as regards free movement of goods within the EU, goods in free circulation are definitively and wholly assimilated to goods originating in the Member States and that the provisions of Article 34 TFEU consequently apply without distinction to products originating in the EU and products put into free circulation in any of the Member States, whatever the real origin of the products (see, to that effect, judgments of 15 December 1976, Donckerwolcke and Schou, 41/76, EU:C:1976:182, paragraphs 17 and 18; of 18 November 2003, Budějovický Budvar, C‑216/01, EU:C:2003:618, paragraph 95, and of 16 July 2015, UNIC and Uni.co.pel, C‑95/14, paragraph 41).
38


However, it also follows from the Court’s case-law that placing on the market is a stage subsequent to import. Just as a product lawfully manufactured within the EU may not be placed on the market on that ground alone, the lawful import of a product does not mean that it will automatically be allowed onto the market. A product coming from a third country which is in free circulation is thus assimilated to products originating in the Member States as regards the elimination of customs duties and quantitative restrictions between Member States. Where, however, there is no EU legislation harmonising the conditions of marketing of the products concerned, the Member State in which they are put into free circulation may prevent their being placed on the market if they do not satisfy the conditions laid down for that purpose under national law in compliance with EU law (judgments of 30 May 2002, Expo Casa Manta, C‑296/00, EU:C:2002:316, paragraphs 31 and 32, and of 12 July 2005, Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 95).
42


The Court has previously held that national legislation that requires articles of precious metal imported from other Member States, in which they are lawfully marketed and hallmarked in accordance with the legislation of those States, to be given an additional hallmark in the Member State of import has the effect of rendering imports more difficult and costly, and thus constitutes a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 34 TFEU (see, to that effect, judgments of 21 June 2001, Commission v Ireland, C‑30/99, EU:C:2001:346, paragraph 27, and of 16 January 2014, Juvelta, C‑481/12, EU:C:2014:11, paragraphs 18 and 20).
45


It follows from consistent case-law of the Court that national legislation which constitutes a measure having equivalent effect to a quantitative restriction on imports within the meaning of Article 34 TFEU may be justified on one of the public interest grounds set out in Article 36 TFEU or in order to meet imperative requirements (judgments of 10 February 2009, Commission v Italy, C‑110/05, EU:C:2009:66, paragraph 59 and the case-law cited, and of 6 September 2012, Commission v Belgium, C‑150/11, EU:C:2012:539, paragraph 53).
47


On this point, the Court has previously held that the requirement that an importer must have articles of precious metals marked with a hallmark indicating their fineness is in principle such as to ensure effective protection for consumers and to promote fair trading (judgments of 21 June 2001, Commission v Ireland, C‑30/99, EU:C:2001:346, paragraph 29, and of 16 January 2014, Juvelta, C‑481/12, EU:C:2014:11, paragraph 21).
48


However, in that context, the Court has also held that a Member State may not require a fresh hallmark to be affixed to products imported from another Member State in which they have been lawfully marketed and hallmarked in accordance with the legislation of that State, where the information provided by the hallmark, in whatever form, is equivalent to that prescribed by the Member State of import and intelligible to consumers of that State (judgments of 21 June 2001, Commission v Ireland, C‑30/99, EU:C:2001:346, paragraph 30, and of 16 January 2014, Juvelta, C‑481/12, EU:C:2014:11, paragraph 22).
51


It must be recalled that, as regards the requirement that a hallmark must be affixed by a legal person satisfying certain requirements as to competence and independence, the Court has indeed previously held that a Member State cannot, by arguing that the guarantee function of the hallmark can be ensured only by action by the competent body of the Member State of import, prevent the marketing in its territory of articles of precious metals hallmarked in the Member State of export by an independent body. The existence of double controls in the Member State of export and the Member State of import cannot be justified if the results of the control carried out in the Member State of origin satisfy the requirements of the Member State of import. The Court has also held that the hallmark’s guarantee function is satisfied if it is affixed by an independent body in the Member State of export (see, to that effect, judgment of 15 September 1994, Houtwipper, C‑293/93, EU:C:1994:330, paragraphs 17 to 19).
52


However, on account of the risk of fraud on the market for articles of precious metals, where small changes in the quantity of precious metal may have a very great impact on the manufacturer’s profit margin, the Court has acknowledged that in the absence of EU legislation the choice of appropriate measures to deal with that risk is for the Member States, who have a wide discretion (see, to that effect, judgment of 15 September 1994, Houtwipper, C‑293/93, EU:C:1994:330, paragraphs 21 and 22).
53


In this context, the Court has taken the view that, while the choice between prior control by an independent body and a scheme allowing manufacturers in the Member State of export to hallmark the goods in question themselves is within the discretion of each Member State, a Member State whose legislation requires the hallmark to be affixed by an independent body cannot prevent the marketing in its territory of articles of precious metals imported from other Member States where those articles have in fact been hallmarked by an independent body in the Member State of export. The Court has also stated that the guarantees of independence provided by the body of the Member State of export need not necessarily coincide with those laid down in the national legislation of the Member State of import (see, to that effect, judgments of 15 September 1994, Houtwipper, C‑293/93, EU:C:1994:330, paragraphs 20, 22, 23 and 27, and of 16 January 2014, Juvelta, C‑481/12, EU:C:2014:11, paragraphs 36 and 37).
63


While, however, the Czech practice at issue is thus capable of being justified in part, in particular because the precious metals concerned may not correspond to the conditions of lawful marketing in a Member State, for that justification to be accepted it is also necessary that the practice is appropriate for attaining that objective and does not go beyond what is necessary to attain it (see, to that effect, judgments of 10 February 2009, Commission v Italy, C‑110/05, EU:C:2009:66, paragraph 59 and the case-law cited, and of 16 January 2014, Juvelta, C‑481/12, EU:C:2014:11, paragraph 29).