Herbert Karner Industrie-Auktionen GmbH v Troostwijk GmbH.
Date: 2004-03-25
19. It should be borne in mind that Article 28 EC cannot be considered inapplicable simply because all the facts of the specific case before the national court are confined to a single Member State (see Joined Cases C-321/94 to C-324/94 Pistre and Others  [1997] ECR I-2343, paragraph 44).
20. That principle has been upheld by the Court not only in cases where the national rule in question gave rise to direct discrimination against goods imported from other Member States ( Pistre and Others , cited above, paragraph 44), but also in situations where the national rule applied without distinction to national and imported products and was thus likely to constitute a potential impediment to intra-Community trade covered by Article 28 EC (see, to that effect, Case C-448/98 Guimont  [2000] ECR I-10663, paragraphs 21 and 22).
21. In this case, it is not obvious that the interpretation of Community law requested is not necessary for the national court (see Guimont , cited above, paragraph 23). Such a reply might help it to determine whether a prohibition such as that provided for in Paragraph 30(1) of the UWG is likely to constitute a potential impediment to intra-Community trade falling within the scope of application of Article 28 EC (see also Case C-254/98 TK-Heimdienst  [2000] ECR I-151, paragraph 14).
33. Without its being necessary to examine in detail the degree of harmonisation achieved by Directive 84/450, it is common ground that Article 7 of that directive allows the Member States to retain or adopt provisions aimed at ensuring more extensive consumer protection than that provided for thereunder.
34. It should be remembered, however, that that power must be exercised in a way that is consistent with the fundamental principle of the free movement of goods, as expressed in the prohibition contained in Article 28 EC on quantitative restrictions on imports and any measures having equivalent effect between Member States (see, to that effect, Case C-23/99 Commission  v France  [2000] ECR I-7653, paragraph 33).
36. 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 regarded as measures having an effect equivalent to quantitative restrictions and thus prohibited by Article 28 EC (see, in particular, Case 8/74 Dassonville  [1974] ECR 837, paragraph 5; Case C-420/01 Commission  v Italy  [2003] ECR I-6445, paragraph 25; and TK-Heimdienst , cited above, paragraph 22).
37. The Court stated in paragraph 16 of Keck and Mithouard , cited above, that national provisions restricting or prohibiting certain selling arrangements which apply to all relevant traders operating within the national territory and affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States are not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the line of case-law initiated by Dassonville , cited above.
38. The Court subsequently found provisions concerning inter alia the place and times of sale of certain products and advertising of those products as well as certain marketing methods to be provisions governing selling arrangements within the meaning of Keck and Mithouard , cited above (see inter alia Case C-292/92 Hünermund and Others  [1993] ECR I-6787, paragraphs 21 and 22; Joined Cases C-401/92 and C-402/92 Tankstation ‘t Heukske and Boermans  [1994] I-2199, paragraphs 12 to 14; and TK‑Heimdienst , cited above, paragraph 24).
39. The Court notes that Paragraph 30(1) of the UWG is intended to regulate references which may be made in advertisements with regard to the commercial origin of goods from an insolvent estate when they no longer constitute part of that estate. In those circumstances, the Court finds such a provision does not relate to the conditions which those goods must satisfy, but rather governs the marketing of those goods. Accordingly, it must be regarded as concerning selling arrangements within the meaning of Keck and Mithouard , cited above.
46. Where a national measure relates to both the free movement of goods and freedom to provide services, the Court will in principle examine it in relation to one only of those two fundamental freedoms if it appears that, in the circumstances of the case, one of them is entirely secondary in relation to the other and may be considered together with it (see, to that effect, Case C-275/92 Schindler  [1994] ECR I-1039, paragraph 22; and Case C-390/99 Canal Satélite Digital  [2002] ECR I-607, paragraph 31).
47. In the circumstances of the case in the main proceedings, the dissemination of advertising is not an end in itself. It is a secondary element in relation to the sale of the goods in question. Consequently the free movement of goods aspect prevails over the freedom to provide services aspect. It is thus not necessary to consider Paragraph 30(1) of the UWG in the light of Article 49 EC.
48. Regarding Troostwijk’s second argument with regard to the compatibility of the legislation in question with freedom of expression, it should be recalled that, according to settled case-law, fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, inter alia, Case C-260/89 ERT  [1991] ECR I-2925, paragraph 41; Case C-274/99 P Connolly  v Commission  [2001] ECR I-1611, paragraph 37; Case C-94/00 Roquette Frères  [2002] ECR I-9011, paragraph 25; and Case C-112/00 Schmidberger  [2003] ECR I-5659, paragraph 71).
49. Further, according to the Court’s case-law, where national legislation falls within the field of application of Community law the Court, in a reference for a preliminary ruling, must give the national court all the guidance as to interpretation necessary to enable it to assess the compatibility of that legislation with the fundamental rights whose observance the Court ensures (see, to that effect, Case C-299/95 Kremzow  [1997] ECR I-2629, paragraph 15).
50. Whilst the principle of freedom of expression is expressly recognised by Article 10 ECHR and constitutes one of the fundamental pillars of a democratic society, it nevertheless follows from the wording of Article 10(2) that freedom of expression is also subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under that provision and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, to that effect, Case C-368/95 Familiapress  [1997] ECR I-3689, paragraph 26; Case C-60/00 Carpenter  [2002] ECR I-6279, paragraph 42; and Schmidberger , cited above, paragraph 79).
51. It is common ground that the discretion enjoyed by the national authorities in determining the balance to be struck between freedom of expression and the abovementioned objectives varies for each of the goals justifying restrictions on that freedom and depends on the nature of the activities in question. When the exercise of the freedom does not contribute to a discussion of public interest and, in addition, arises in a context in which the Member States have a certain amount of discretion, review is limited to an examination of the reasonableness and proportionality of the interference. This holds true for the commercial use of freedom of expression, particularly in a field as complex and fluctuating as advertising (see, to that effect, Case C-245/01 RTL Television [2003] ECR I-0000, paragraph 73; judgments of the ECHR of 20 November 1989, Markt intern Verlag GmbH and Klaus Beermann , Reports of Judgments and Decisions series A No 165, paragraph 33; and of 28 June 2001, VGT Verein gegen Tierfabriken  v Switzerland , Reports of Judgments and Decisions 2001-VI, paragraphs 69 to 70).