Alfa Vita Vassilopoulos AE (C-158/04) and Carrefour Marinopoulos AE (C-159/04) v Elliniko Dimosio and Nomarchiaki Aftodioikisi Ioanninon.
Date: 2006-09-14
15. The prohibition of measures having equivalent effect to quantitative restrictions set out in Article 28 EC covers all measures which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (see, in particular, Case 8/74 Dassonville  [1974] ECR 837, paragraph 5; Case 178/84 Commission  v Germany  ( Beer purity ) [1987] ECR 1227, paragraph 27; Case C‑192/01 Commission  v Denmark  [2003] ECR I-9693, paragraph 39; and Case C‑366/04 Schwarz  [2005] ECR I‑10139, paragraph 28).
16. The Court has, however, clarified that measures having equivalent effect to quantitative restrictions and therefore prohibited by Article 28 EC do not include national provisions restricting or prohibiting certain selling arrangements, 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 (see Joined Cases C‑267/91 and C‑268/91 Keck and Mithouard  [1993] ECR I‑6097, paragraph 16).
19. It is common ground that the principal characteristic of ‘bake-off’ products is that they are delivered at sales outlets after the main stages of preparation of those products have been completed. At those sales outlets, only a brief thawing and reheating or final baking are carried out. In those circumstances, requiring vendors of ‘bake-off’ products to comply with all of the requirements imposed on traditional bakeries, including, in particular, the requirement of having a flour store, an area for kneading equipment and a solid-fuel store, does not take the specific nature of those products into account and entails additional costs, thereby making the marketing of those products more difficult. That legislation therefore constitutes a barrier to imports which cannot be regarded as establishing a selling arrangement as contemplated in Keck and Mithouard  (paragraphs 15 and 16).
20. The Court has consistently held that a national rule which hinders the free movement of goods is not necessarily contrary to Community law if it may be justified by one of the public-interest grounds set out in Article 30 EC or by one of the overriding requirements laid down by the Court’s case-law where the national rules are applicable without distinction (see, to this effect, Case 120/78 Rewe-Zentral ( Cassis de Dijon ) [1979] ECR 649, paragraph 8, and Schwarz , paragraph 30).
21. In the absence of harmonisation, it is for the Member States to decide on their intended level of protection of human health and life and on whether to require prior authorisation for the marketing of foodstuffs, always taking into account the requirements of the free movement of goods within the Community (see, inter alia, Case 174/82 Sandoz  [1983] ECR 2445, paragraph 16, and Case C‑41/02 Commission  v Netherlands  [2004] ECR I-11375, paragraph 42).
22. However, in order for such rules to comply with the principle of proportionality, it must be ascertained not only whether the means which they employ are suitable for the purpose of attaining the desired objectives but also whether those means do not go beyond what is necessary for that purpose (Case C‑463/01 Commission  v Germany  [2004] ECR I‑11705, paragraph 78, and Case C‑309/02 Radlberger Getränkegesellschaft and S. Spitz  [2004] ECR I‑11763, paragraph 79).
23. Regarding the justification of an objective as to quality put forward by the national court, the Court finds that a national measure which restricts the free movement of goods may not be justified solely on the ground that it aims to promote quality foodstuffs. In order to justify a restriction on the free movement of goods, such an objective may be taken into account only in relation to other requirements which have been recognised as being imperative, such as consumer or health protection.