Schutzverband gegen unlauteren Wettbewerb v TK-Heimdienst Sass GmbH.
Date: 2000-01-13
12 It must be observed that the procedure provided for in Article 177 of the Treaty is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of Community law which they need in order to decide the disputes before them (see, in particular, the order in Case C-361/97 Nour [1998] ECR I-3101, paragraph 10).
13 It is settled case-law that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.  Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59 and Case C-200/97 Ecotrade [1998] ECR I-7907, paragraph 25).
14 In this case, the question referred by the national court is whether the effect of national legislation such as that in point in the main proceedings is confined to the Member State concerned or whether, rather, it constitutes a potential impediment to intra-Community trade capable of falling within Article 30 of the Treaty.  The objection raised by the Schutzverband does not therefore relate to admissibility but to the substance of the case.
22 It is settled case-law that all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions and thus prohibited by Article 30 of the Treaty (see, in particular, Case 8/74 Dassonville [1974] ECR 837, paragraph 5).
23 However, the Court held at paragraph 16 of Keck and Mithouard, cited above, that the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements in the territory of the Member State concerned does not fall within Article 30 of the Treaty 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.
24 National legislation such as Article 53a(2) of the GewO, which provides that bakers, butchers and grocers may not make sales on rounds in a given administrative district, such as an Austrian Verwaltungsbezirk, unless they also carry on their trade at a permanent establishment situated in that administrative district or in an adjacent municipality, where they also offer for sale the same goods as they do on their rounds, relates to the selling arrangements for certain goods in that it lays down the geographical areas in which each of the operators concerned may sell his goods by that method.
26 Such legislation imposes an obligation on bakers, butchers and grocers who already have a permanent establishment in another Member State and who wish to sell their goods on rounds in a particular administrative district such as an Austrian Verwaltungsbezirk to set up or purchase another permanent establishment in that administrative district or in an adjacent municipality, whilst local economic operators already meet the requirement as to a permanent establishment.  Consequently, in order for goods from other Member States to enjoy the same access to the market of the Member State of importation as domestic goods, they have to bear additional costs (see Legia and Gyselinx, paragraph 15 and Franzén, paragraph 71).
27 That conclusion is not affected by the fact that, in each part of the national territory, the legislation affects both the sale of products from other parts of the national territory and the sale of products imported from other Member States (see Joined Cases C-277/91, C-318/91 and C-319/91 Ligur Carni and Others [1993] ECR I-6621, paragraph 37).  For a national measure to be categorised as discriminatory or protective for the purposes of the rules on the free movement of goods, 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 (see Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad and Publivía [1991] ECR I-4151, paragraph 24).
28 That being so, it is of no consequence whether, as the Schutzverband contends, the national legislation in question also applies to economic operators with a permanent establishment in an adjacent municipality in another Member State.  Even if it did, it would not cease to be restrictive merely because in part of the territory of the Member State concerned, namely the border area, it affects the marketing of national products and that of products from other Member States in the same manner.
29 It follows that the application to all operators trading in the national territory of national legislation such as that in point in the main proceedings in fact impedes access to the market of the Member State of importation for products from other Member States more than it impedes access for domestic products (see, to this effect, Case C-384/93 Alpine Investments [1995] ECR I-1141, paragraph 37).
30 The restrictive effects of such legislation cannot, contrary to the contention of the Schutzverband, be considered to be of a nature too random and indirect for the obligation which it lays down to be regarded as such as to impede trade between Member States.  In that connection, it need merely be observed that goods from other Member States could never be offered for sale on rounds in an administrative district, such as an Austrian Verwaltungsbezirk, which is not situated in a border area.
31 It follows that national legislation prohibiting butchers, bakers and grocers from making sales on rounds in a particular administrative district, such as an Austrian Verwaltungsbezirk, if they do not also carry on business in a permanent establishment situated in that administrative district or in an adjacent municipality, where they also sell the goods offered for sale on rounds, is capable of impeding intra-Community trade.
33 In that connection, it must first be pointed out that aims of a purely economic nature cannot justify a barrier to the fundamental principle of the free movement of goods (see Case C-120/95 Decker [1998] ECR I-1831, paragraph 39).