Francesco Guarnieri & Cie v Vandevelde Eddy VOF.
Date: 2011-04-07
13. In that regard, it must, admittedly, be noted that Articles 52 TEU and 355 TFEU do not include in ‘the territorial scope of the Treaties’ the territory of the Principality of Monaco and that, further, exclusion from the customs territory of the European Union entails the inapplicability of the FEU Treaty rules on the free movement of goods (see, to that effect, Case C‑30/01 Commission v United Kingdom [2003] ECR I‑9481, paragraph 60).
14. However, pursuant to Article 3(2)(b) of Regulation No 2913/92, the territory of the Principality of Monaco is to be considered to be part of the customs territory of the European Union. As no customs duty or charge having equivalent effect can, consequently, be applied to trade between Monaco and the Member States, goods originating in Monaco, exported directly to a Member State, must be treated as if they originated in those Member States. The result of that assimilation to goods originating in Member States is that goods originating in Monaco are covered by the rules of the Treaty on the free movement of goods (see, by analogy, Case 41/76 Donckerwolcke and Schou [1976] ECR 1921, paragraphs 17 and 18, and Commission v United Kingdom , paragraph 54).
15. In relation to the question of whether a provision of a Member State, that requires any foreign national, such as Monegasque nationals, to provide security pending judgment when he seeks to bring proceedings against a national of that Member State, although such a requirement is not imposed on nationals of that State, constitutes a hindrance to the free movement of goods, it must be noted that all trading rules enacted by Member States, that are capable of hindering, directly or indirectly, actually or potentially, intra‑Community trade, are to be considered to be measures having an effect equivalent to quantitative restrictions (see, to that effect, Case 8/74 Dassonville [1974] ECR 837, paragraph 5, and Case C‑421/09 Humanplasma [2010] ECR I-0000, paragraph 26).
17. Admittedly, a measure of that sort has the effect of making traders wishing to bring proceedings subject to different procedural rules according to whether or not they have the nationality of the Member State concerned. Nevertheless, as the Advocate General pointed out at points 46 and 47 of her Opinion, the possibility that nationals of other Member States would therefore hesitate to sell goods to purchasers established in that Member State who have the nationality of that State is too uncertain and indirect for that national measure to be regarded as liable to hinder intra-Community trade (see, by analogy, Case C‑69/88 Krantz [1990] ECR I‑583, paragraph 11; Case C‑379/92 Peralta [1994] ECR I‑3453, paragraph 24; Case C‑96/94 Centro Servizi Spediporto [1995] ECR I‑2883, paragraph 41; and Case C‑412/97 ED [1999] ECR I‑3845, paragraph 11). The causal link between the possible distortion of intra-Community trade and the difference in treatment at issue is therefore not established.
19. That being said, it should be noted, as the Commission of the European Communities pointed out, that the Court has already held that a national provision of one Member State, such as that at issue in the main proceedings, while it does not operate any distinction according to the origin of goods, nevertheless entails, in relation to nationals of other Member States, direct discrimination based on the nationality of the claimant, in so far as it does not require security from nationals of the first-mentioned State (Case C‑43/95 Data Delecta and Forsberg [1996] ECR I‑4661, paragraphs 17 and 22, and Case C‑323/95 Hayes [1997] ECR I‑1711, paragraph 19).
20. Such discrimination, which is prohibited by the first paragraph of Article 18 TFEU, cannot however be found in relation to a Monegasque company, such as the claimant in the main proceedings, since that company may not usefully claim the benefit of that provision of the Treaty (see, to that effect, Case C‑122/96 Saldanha and MTS [1997] ECR I‑5325, paragraph 15; see also, on freedom of movement of persons, Joined Cases C‑22/08 and C‑23/08 Vatsouras and Koupatantze [2009] ECR I‑4585, paragraph 52).