Humanplasma GmbH v Republik Österreich.
Date: 2010-12-09
25. The free movement of goods is a fundamental principle of the EC Treaty which is expressed in the prohibition, set out in Article 28 EC, of quantitative restrictions on imports between Member States and all measures having equivalent effect (Case C‑170/04 Rosengren and Others  [2007] ECR I‑4071, paragraph 31).
26. According to settled case-law, the prohibition of measures having an effect equivalent to a quantitative restriction, laid down in Article 28 EC, applies to all legislation of the Member States that is capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (see, inter alia, Case 8/74 Dassonville  [1974] ECR 837, paragraph 5; Rosengren and Others , paragraph 32; C‑297/05 Commission  v Netherlands  [2007] ECR I‑7467, paragraph 53; and Case C‑143/06 Ludwigs-Apotheke  [2007] ECR I‑9623, paragraph 26).
27. In the present case, according to the order for reference, the national legislation at issue in the main proceedings prohibits the importation and the placing on the market, in principle, of blood and blood components obtained from donations of blood for which payment has been made, it being understood that the reimbursement of costs incurred by the donor in order to carry out the blood donation is also considered, under that legislation, as constituting payment.
30. Therefore, it must be held, as the Austrian Government also expressly accepts, that national legislation such as that at issue in the main proceedings is capable of hindering intra-Community trade and therefore constitutes a measure of equivalent effect to a quantitative restriction on imports within the meaning of Article 28 EC.
31. In order to determine whether that legislation constitutes a restriction which is prohibited under Article 28 EC, it must therefore also be examined whether, as inter alia the Austrian Government and the European Commission claim, it can be justified on grounds of the protection of human health.
32. In that regard, it must be noted that human health ranks foremost among the assets or interests protected by Article 30 EC and it is for the Member States, within the limits imposed by the Treaty, to decide on the degree of protection which they wish to afford to human health and on the way in which that protection is to be achieved (Case C‑322/01 Deutscher Apothekerverband [2003] ECR I‑14887, paragraph 103; Case C‑262/02 Commission  v France [2004] ECR I‑6569, paragraph 24; Rosengren and Others , paragraph 39: and Ludwigs-Apotheke , paragraph 27).
33. In the present case, it is common ground that the legislation at issue in the main proceedings, which, according to the Austrian Government, has the aim, first, of ensuring that blood and blood components marketed in Austria satisfy the criteria of high quality and safety and, second, of attaining the objective enshrined in Article 20(1) of Directive 2002/98, that is, encouraging voluntary and unpaid blood donations, addresses human health concerns such as those acknowledged in Article 30 EC. Therefore, those objectives are in principle capable of justifying a restriction on the free movement of goods.
34. However, according to the case-law, a provision which is capable of restricting a fundamental freedom guaranteed by the Treaty, such as the free movement of goods, can be properly justified only if it is appropriate for securing the attainment of that objective and does not go beyond what is necessary in order to attain it (see, inter alia, Case C‑14/02 ATRAL [2003] ECR I‑4431, paragraph 64; Case C‑254/05 Commission  v Belgium  [2007] ECR I‑4269, paragraph 33; judgment of 13 March 2008 in Case C‑227/06 Commission  v Belgium , paragraph 61; and Case C‑141/07 Commission  v Germany  [2008] ECR I‑6935, paragraph 48).
38. With regard, second, to the assessment of whether legislation such as that at issue in the main proceedings is proportionate, it must be noted that it follows from the case-law of the Court that since Article 30 EC constitutes an exception, which is to be strictly interpreted, to the rule of the free movement of goods within the Community, it is for the national authorities to demonstrate that their rules are necessary in order to achieve the declared purpose and that that objective could not be achieved by less extensive prohibitions or restrictions, or by prohibitions or restrictions having less effect on intra-Community trade (see, to that effect, Case C‑17/93 van der Veldt  [1994] ECR I‑3537, paragraph 15; Case C‑189/95 Franzén  [1997] ECR I‑5909, paragraphs 75 and 76; Case C‑434/04 Ahokainen and Leppik  [2006] ECR I‑9171, paragraph 31; and Rosengren and Others , paragraph 50).
39. Admittedly, according to the settled case-law of the Court, noted in paragraph 32 of the present judgment, when assessing whether the principle of proportionality has been observed in the field of human health, account must be taken of the fact that a Member State has the power to determine the degree of protection which it wishes to afford to human health and the way in which that degree of protection is to be achieved. Since that degree of protection may vary from one Member State to another, Member States must be allowed discretion ( Commission  v Germany , paragraph 51).
40. Also, the mere fact that one Member State imposes less strict rules than those applicable in another Member State does not mean that the latter’s rules are incompatible with Articles 28 EC and 30 EC (see, in particular, Commission  v Germany , paragraph 51).
41. However, the fact that a number of other Member States reimburse blood donors’ costs may be relevant when assessing the objective justification put forward in relation to the Austrian legislation, and, particularly, concerning the assessment of its proportionality (see, in that regard, Case C‑333/08 Commission  v France  [2010] ECR I‑0000, paragraph 105).
42. In that regard, it should be pointed out that, as is apparent inter alia from Article 21 of Directive 2002/98, in order to ensure the quality and safety of blood and blood components, each donation of blood must be tested in conformity with the requirements listed in Annex IV to that directive, it being understood that those requirements will evolve in line with scientific and technical progress.