Lodewijk Gysbrechts and Santurel Inter BVBA.
Date: 2008-12-16
31. In order to provide to the referring court all those elements for the interpretation of Community law which may be of assistance in adjudicating on the case pending before it, whether or not that court has specifically referred to them in its questions (see Case C‑17/06 Céline  [2007] ECR I‑7041, paragraph 29), it is necessary to examine a prohibition such as that at issue in the main proceedings, as described in paragraph 30 of this judgment, also in the light of the Belgian authorities’ interpretation of it in the main proceedings.
33. In accordance with settled case-law, a national measure in an area which has been the subject of exhaustive harmonisation at Community level must be assessed in the light of the provisions of that harmonising measure and not those of the Treaty (Case C‑322/01 Deutscher Apothekerverband  [2003] ECR I‑14887, paragraph 64).
34. However, in the present case, it is clear that the harmonisation effected by Directive 97/7 was not exhaustive. In that regard, as is expressly provided by Article 14(1) of that directive, Member States may introduce or maintain, in the area covered by the directive, more stringent provisions to ensure a higher level of consumer protection, provided that power is exercised with due regard for the Treaty (see Deutscher Apothekerverband , paragraph 64).
40. In that regard, the Court has classified as measures having equivalent effect to quantitative restrictions on exports national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade in such a way as to provide a particular advantage for national production or for the domestic market of the State in question, at the expense of the production or of the trade of other Member States (Case 15/79 Groenveld  [1979] ECR 3409, paragraph 7).
41. In the main proceedings, it is clear, as the Belgian Government has moreover noted in its written observations, that the prohibition on requiring an advance payment deprives the traders concerned of an efficient tool with which to guard against the risk of non‑payment. That is even more the case when the national provision at issue is interpreted as prohibiting suppliers from requesting that consumers provide their payment card number even if they undertake not to use it to collect payment before expiry of the period for withdrawal.
42. As is clear from the order for reference, the consequences of such a prohibition are generally more significant in cross-border sales made directly to consumers, in particular, in sales made by means of the internet, by reason, inter alia, of the obstacles to bringing any legal proceedings in another Member State against consumers who default, especially when the sales involve relatively small sums.
43. Consequently, even if a prohibition such as that at issue in the main proceedings is applicable to all traders active in the national territory, its actual effect is none the less greater on goods leaving the market of the exporting Member State than on the marketing of goods in the domestic market of that Member State.
45. A national measure contrary to Article 29 EC may be justified on one of the grounds stated in Article 30 EC, and by overriding requirements of public interest, provided that the measure is proportionate to the legitimate objective pursued.
47. It must however be added that, in accordance with settled case-law, consumer protection may constitute a legitimate objective in the public interest capable of justifying a restriction on the free movement of goods (see Case 120/78 Rewe-Zentral  [1979] ECR 649, paragraph 8, and Case C‑441/04 A-Punkt Schmuckhandel  [2006] ECR I‑2093, paragraph 27).
51. In that regard, according to settled case-law, in order for national rules to comply with the principle of proportionality, it must be ascertained not only whether the means which they employ are suitable for the purpose of ensuring the attainment of the objectives pursued but also whether those means do not go beyond what is necessary to attain those objectives (see Joined Cases C‑158/04 and C‑159/04 Alfa Vita Vassilopoulos and Carrefour-Marinopoulos  [2006] ECR I‑8135, paragraph 22).