Aragonesa de Publicidad Exterior SA and Publivía SAE v Departamento de Sanidad y Seguridad Social de la Generalitat de Cataluña.
Date: 1991-07-25
10 As the Court held, inter alia, in its judgment in Case C-362/88 GB-INNO-BM v Conféderation du Commerce Luxembourgoise [1990] ECR 667, paragraph 7, legislation which restricts or prohibits certain forms of advertising and certain means of sales promotion may, although it does not directly affect trade, be such as to restrict the volume of trade because it affects marketing opportunities.
13 That form of reasoning cannot be accepted. The protection of public health is expressly mentioned amongst the grounds of public interest which are set out in Article 36 and enable a restriction on imports to escape the prohibition laid down in Article 30. In those circumstances, since Article 36 also applies where the contested measure restricts only imports, whereas according to the Court' s case-law the question of imperative requirement for the purposes of the interpretation of Article 30 cannot arise unless the measure in question applies without distinction to both national and imported products, it is not necessary to consider whether the protection of public health might also be in the nature of an imperative requirement for the purposes of the application of Article 30.
15 On the first point it is sufficient to observe, as the Court pointed out in its judgment in Case 152/78 Commission v France [1980] ECR 2299, paragraph 17, that advertising acts as an encouragement to consumption and the existence of rules restricting the advertising of alcoholic beverages in order to combat alcoholism reflects public health concerns.
16 On the second point it must be stated that in the present state of Community law, in which there are no common or harmonized rules governing in a general manner the advertising of alcoholic beverages, it is for the Member States to decide on the degree of protection which they wish to afford to public health and on the way on which that protection is to be achieved. They may do so, however, only within the limits set by the Treaty and must, in particular, comply with the principle of proportionality.
20 As the Court held in Case 34/79 Regina v Henn and Darby [1979] ECR 3795, paragraph 21, the function of the second sentence of Article 36 is to prevent restrictions on trade based on the grounds mentioned in the first sentence from being diverted from their proper purpose and used in such a way as to create discrimination in respect of goods originating in other Member States or indirectly to protect certain national products.
24 It is true that, when a national measure has limited territorial scope because it applies only to a part of the national territory, it cannot escape being characterized as discriminatory or protective for the purposes of the rules on the free movement of goods on the ground that it affects both the sale of products from other parts of the national territory and the sale of products imported from other Member States. For such a measure to be characterized as discriminatory or protective, it is not necessary for it to have the effect of favouring national products as a whole or of placing only imported products at a disadvantage and not national products.