Criminal proceedings against Ludomira Neeltje Barbara Houtwipper.
Date: 1994-09-15
10 The answer to that question can be given only on the basis of Article 30 of the Treaty, to the exclusion of Article 36, since measures such as those provided for by the rules in question do not fall within the scope of the exceptions listed exhaustively in Article 36 (see the judgment in Case 220/81 Robertson [1982] ECR 2349, paragraph 8).
11 It is established by the case-law beginning with "Cassis de Dijon" (Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung fuer Branntwein [1979] ECR 649) that, in the absence of harmonization of legislation, obstacles to the free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marked, rules that lay down requirements to be met by such goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article 30. This is so even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking precedence over the free movement of goods.
13 Legislation, such as the Waarborgwet, which requires articles of precious metal imported from other Member States, in which they are lawfully traded and hallmarked in accordance with the legislation of those States, to be given an additional hallmark in the importing Member State, renders the imports more difficult and costly. As the German Government has observed, it requires action by an importer, the payment of fees to the supervising authority and leads to delays in marketing the products, which increase the costs of those products.
14 However, the requirement that an importer cause to be affixed on articles of precious metal a hallmark indicating their fineness, that is the quantity of pure precious metal used, is in principle of a nature such as to ensure effective protection for consumers and to promote fair trading. Since the consumer is not able to determine, by touch or by eye, the exact degree of purity of an article of precious metal, he may, in the absence of a hallmark, easily be misled when purchasing such an article.
15 That is why the Court stated in its judgment in Robertson, cited above, that a Member State cannot require a fresh hallmark to be affixed to products imported from another Member State in which they have been lawfully marketed and hallmarked in accordance with the legislation of that State, where the information provided by that hallmark, in whatever form, is equivalent to that prescribed by the Member State of importation and intelligible to consumers of that State.
17 The rules in question also require that the trademark be affixed by a legal person satisfying certain requirements as to competence and independence.
18 It is not open to a Member State to prevent the marketing in its territory of articles of precious metal hallmarked in the Member State of exportation by an independent body, on the ground that in its contention it is only action by the competent body in the State of importation which can ensure that the hallmark functions as a guarantee.
19 The Court has consistently held that the existence of double controls in the State of exportation and in the State of importation cannot be justified if the results of the control carried out in the Member State of origin satisfy the requirements of the Member State of importation (see in particular the judgment in Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 3277, paragraph 15). The hallmark functions as a guarantee where it is affixed by an independent body in the Member State of exportation.
20 In that respect is it necessary to reject the argument of the German Government to the effect that a Member State may not prohibit the marketing in its territory of articles of precious metal hallmarked by the producers themselves in the Member State of exportation, where compliance with the law and, consequently, consumer protection and the safeguarding of fair trading are assured by a range of measures capable of ensuring that the hallmark functions as a guarantee. It argues that such is the case under the German legislation, which provides for quality rules for the manufacturer, penalties under public law if those rules are infringed, action under the Law against Unfair Competition by certain associations vested with the power to issue warnings, the manufacturer' s guarantee and, finally, special training given to gold- and silversmiths.
21 As the United Kingdom has observed, there is a danger that fraud may take place, in particular on the market for articles of precious metal. Small changes in the quantity of precious metal may have a very great impact on the manufacturer' s profit margin. According to the United Kingdom, reducing the quantity of precious metal by one part per thousand may increase the profit margin by up to 10%.
22 In the absence of Community rules, the Member States have a wide discretion, and it is for them to choose the appropriate measures to deal with that risk. The choice between prior control by an independent body and a scheme such as that in the Federal Republic of Germany is a matter for the legislative policy of the Member States; the Court will review that choice only where there has been a manifest error of assessment. That has not occurred in this case, as the Advocate General has shown in points 27 and 28 of his Opinion.
23 It is for the national court to examine whether the hallmarking of articles of precious metal imported from other Member States has been carried out by a body providing guarantees of independence, those guarantees not necessarily having to be the same as those required by the national legislation.
27 Accordingly, the reply to be given to the question put to the Court by the Arrondissementsrechtbank, Zutphen, is as follows:
"1. Article 30 of the Treaty must be interpreted as meaning that it does not preclude the application of national rules prohibiting the sale of articles of precious metal not bearing a hallmark indicating their fineness in accordance with those rules, provided that those articles do not bear a hallmark, in accordance with the legislation of the Member State of exportation, containing information which is equivalent to that provided by the hallmarks required by the rules of the Member State of importation and which is intelligible to consumers in that Member State.
2. Where national rules require the hallmark to be affixed by an independent body, the marketing of articles of precious metal imported from other Member States may not be prohibited if those articles have in fact been hallmarked by an independent body in the Member State of exportation.
3. The findings of fact required in order to determine the equivalence of the information provided by the hallmark are a matter for the national court, which must also examine whether the articles of precious metal have been hallmarked by an independent body in the Member State of exportation.
4. Article 30 of the Treaty precludes the application of national rules which prohibit the marketing of articles of precious metal which do not indicate the date of their manufacture, where those articles have been lawfully marketed without that indication in other Member States, from which they have been imported."