SARPP - Société d'application et de recherches en pharmacologie et phytotherapie SARL v Chambre syndicale des raffineurs et conditionneurs de sucre de France and others.
Date: 1990-12-12
8 By way of a preliminary observation, it should be pointed out that although the Court may not, within the framework of Article 177 of the Treaty, rule on the compatibility of a provision of national law with the Treaty, it may provide the national court with all those elements by way of interpretation of Community law which may enable it to assess that compatibility for the purposes of the case before it . Moreover, in doing so it may deem it necessary to consider provisions of Community law to which the national court has not referred in its question .
15 It should be pointed out that the provisions of the directive relating to labelling differ in one essential way from those relating to advertising . As is evident from the ninth recital, because the directive is general and applicable horizontally, it allows the Member States to maintain or adopt rules in addition to those laid down by the directive . With regard to labelling, the limits of the power retained by the Member States are set by the directive itself in so far as it lists exhaustively, in Article 15(2 ), the grounds on which the application of non-harmonized national provisions prohibiting trade in foodstuffs may be justified . However, that provision is not applicable to advertising . Consequently, the question whether in this field Community law precludes the application of national rules in addition to those laid down by the directive must be considered in the light, in particular, of the provisions of the Treaty on the free movement of goods and especially Articles 30 and 36 .
16 That difference gives rise to an important consequence . As the Court pointed out in its judgment in Case 98/86 Ministère public v Mathot [1987] ECR 809, paragraph 11, Directive 79/112 created obligations concerning the labelling of foodstuffs marketed throughout the Community without permitting any distinction to be drawn according to the origin of those foodstuffs, subject only to the condition contained in Article 3(2 ). Consequently, if the provisions of the directive preclude the application of certain national rules on the labelling of foodstuffs, such rules may not be applied either to imported foodstuffs or to national foodstuffs . However, when national rules on advertising are contrary to Articles 30 and 36 of the Treaty, the application of those rules is prohibited only in respect of imported products and not national products .
29 Legislation such as that at issue here which restricts or prohibits certain forms of advertising may, although it does not directly affect imports, be such as to restrict their volume because it affects marketing opportunities for the imported products ( see the judgment in Case 286/81 Oosthoek' s Uitgeversmaatschappij [1982] ECR 4575, paragraph 15 ). The possibility cannot be ruled out that to compel a producer either to modify the form or the content of an advertising campaign depending on the Member States concerned or to discontinue an advertising scheme which he considers to be particularly effective may constitute an obstacle to imports even if the legislation in question applies to domestic products and imported products without distinction .