Commission of the European Communities v Hellenic Republic.
Date: 1995-06-29
7 In support of its action, the Commission maintains that national legislation which reserves the sale of a certain category of product in principle solely to pharmacies constitutes a measure having equivalent effect prohibited by Article 30 of the Treaty on the ground that the prohibition of certain forms of marketing channels sales and is consequently likely to hinder, albeit indirectly, intra-Community trade in the product concerned. In reply to a question put to it by the Court, the Commission stated that the legislation at issue did not constitute a mere restriction of certain selling arrangements within the meaning of the judgment in Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097 but entailed a restrictive effect on trade by making the importation of the product concerned from the other Member States more difficult and more onerous: if that product could be sold in large stores their price would drop, which would lead to an increase in demand and therefore in the volume of imports.
13 In that respect it should be observed that the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment, cited above, so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty (see, in particular, the judgments in Keck and Mithouard, cited above, paragraphs 16 and 17, in Case C-292/92 Huenermund and Others [1993] ECR I-6787, paragraph 21, and in Case C-412/93 Société d' Importation Édouard Leclerc-Siplec [1995] ECR I-0000, paragraph 21).
14 So far as concerns the Greek legislation called in question in this case by the Commission, those conditions are fulfilled.
15 Thus, that legislation, the effect of which is to limit the commercial freedom of traders irrespective of the actual characteristics of the product referred to, concerns the selling arrangements of certain goods, inasmuch as it prohibits the sale, other than exclusively by pharmacies, of processed milk for infants and thus generally determines the points of sale where they may be distributed.
16 Moreover, the legislation objected to by the Commission, which applies, without distinction according to the origin of the products in question, to all of the traders operating within the national territory, does not affect the sale of products originating in other Member States any differently from that of domestic products.
17 The fact, invoked by the Commission, that the Hellenic Republic does not itself produce processed milk for infants does not undermine those findings. The applicability of Article 30 of the Treaty to a national measure for the general regulation of commerce, which concerns all the products concerned without distinction according to their origin, cannot depend on such a purely fortuitous factual circumstance, which may, moreover, change with the passage of time. If it did, this would have the illogical consequence that the same legislation would fall under Article 30 in certain Member States but fall outside the scope of that provision in other Member States.
18 The situation would be different only if it was apparent that the legislation at issue protected domestic products which were similar to processed milk for infants from other Member States or which were in competition with milk of that type.
19 In this instance, the Commission has not shown that that was the case.
20 It follows from the foregoing considerations that the Greek legislation called in question by the Commission is confined to limiting the places where the product concerned may be distributed by regulating the marketing of that product, without thereby preventing access to the market of products from other Member States or specifically placing them at a disadvantage.
21 That being so, the Greek legislation reserving the sale of processed milk for infants in principle exclusively to pharmacies falls outside the scope of Article 30 of the Treaty. The Commission' s application must therefore be dismissed.