SCP Boscher, Studer et Fromentin v SA British Motors Wright and others.
Date: 1991-04-30
13 According to the principle laid down in the judgment in Case 8/74 Dassonville [1974] ECR 837, the prohibition of measures having an effect equivalent to quantitative restrictions laid down in Article 30 of the Treaty applies to all trading rules that are capable of hindering intra-Community trade directly or indirectly, actually or potentially.
14 The Court has consistently held (judgments in Case 286/81 Oosthoek [1982] ECR 4575 and Case C-362/88 GB-INNO [1990] ECR I-667) that the possibility cannot be ruled out that to compel a producer either to adopt advertising or sales promotion schemes which differ from one Member State to another or to discontinue a scheme which he considers to be particularly effective may constitute an obstacle to imports even if the legislation in question applies to domestic products and imported products without distinction. In its judgment in Case 382/87 Buet [1989] ECR 1235, the Court stated that that finding applies, a fortiori, when the rules in question deprive the trader concerned of the possibility of using not a means of advertising but a method of marketing.
15 Moreover, the Court has held that legislation which causes undertakings established in another Member State to incur the additional expenditure involved in complying with the obligation to have a representative in the importing Member State must be regarded as a measure having an effect equivalent to a quantitative restriction (judgments in Case 155/82 Commission v Belgium [1983] ECR 531 and Case 247/81 Commission v Germany [1984] ECR 1111).
16 National legislation that imposes on a seller the requirement of prior entry in the trade register at the place where the auction sale takes place is liable to impede the free movement of goods, since its effect is to require the owner of the goods either to use the services of a trader operating at the place of the sale or to refrain from selling goods by public auction.
17 Since the rules at issue apply without distinction to the sale of domestic and imported products, it is necessary to determine whether they may be justified by imperative requirements relating to the protection of consumers.
18 It has been contended that the requirement of prior entry of the seller in the trade register at the place of sale is necessary since otherwise the system of public auctions might not provide adequate safeguards for the consumer as to the origin and condition of an article which he purchases without the benefit of any period of reflexion.
19 As the Court has made clear on several occasions, rules intended to satisfy a mandatory requirement must be proportionate to the goals pursued, and if a Member State has at its disposal less restrictive means of attaining the same goals it is under an obligation to use them.
20 The system of public auctions, as described in the documents before the Court, usually involves buyers who are specially informed; furthermore, there are sufficient safeguards for the consumer. In any event, it is possible to impose conditions which are capable of protecting consumers and have a less restrictive effect on the free movement of goods than the requirement of prior entry of the owner of the goods offered for sale in the trade register at the place of sale.
21 It follows that legislation of the kind referred to by the national court cannot be justified by mandatory requirements relating to the protection of consumers and, consequently, that it is incompatible with Article 30 of the Treaty.