Dynamic Medien Vertriebs GmbH v Avides Media AG.
Date: 2008-02-14
19. However, it is not for the Court, in the context of a reference for a preliminary ruling, to give a ruling on the interpretation of provisions of national law or to decide whether the interpretation given by the national court of those provisions is correct (see, to that effect, Case C‑58/98 Corsten  [2000] ECR I-7919, paragraph 24). The Court must take account, under the division of jurisdiction between the Community Courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (see Case C‑475/99 Ambulanz Glöckner  [2001] ECR I‑8089, paragraph 10; Case C‑136/03 Dörr and Ünal  [2005] ECR I‑4759, paragraph 46; and Case C‑419/04 Conseil général de la Vienne [2006] ECR I-5645, paragraph 24).
26. According to settled case-law, all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be consid ered as measures having an effect equivalent to quantitative restrictions and are, on that basis, prohibited by Article 28 EC (see, inter alia, Case 8/74 Dassonville [1974] ECR 837, paragraph 5, Case C-420/01 Commission  v Italy  [2003] ECR I-6445, paragraph 25, and Case C‑143/06 Ludwigs-Apotheke  [2007] ECR I-0000, paragraph 26).
27. Even if a measure is not intended to regulate trade in goods between Member States, the determining factor is its effect, actual or potential, on intra-Community trade. By virtue of that factor, in the absence of harmonisation of national 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 marketed, rules that lay down requirements to be met by such goods constitute measures of equivalent effect (such as those relating to designation, form, size, weight, composition, presentation, labelling or packaging), even if those rules apply to all products alike, unless their application can be justified by a public-interest objective taking precedence over the requirements of the free movement of goods (see, to that effect, Case 120/78 Rewe-Zentral (‘ Cassis de Dijon ’) [1979] ECR 649, paragraphs 6, 14 and 15; Case C-368/95 Familiapress [1997] ECR I‑3689, paragraph 8; and Case C-322/01 Deutscher Apothekerverband  [2003] ECR I-14887, paragraph 67).
28. In its case-law, the Court has also treated as measures having equivalent effect, prohibited by Article 28 EC, national provisions making a product lawfully manufactured and marketed in another Member State subject to additional controls, save in the case of exceptions provided for or allowed by Community law (see, inter alia, Case C‑390/99 Canal Satélite Digital  [2002] ECR I-607, paragraphs 36 and 37, and Case C‑14/02 ATRAL  [2003] ECR I-4431, paragraph 65).
29. By contrast, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States for the purposes of the line of case-law beginning with Dassonville , on condition that those provisions apply to all relevant traders operating within the national territory and that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States (see, inter alia, Keck and Mithouard , paragraph 16; Case C‑292/92 Hünermund and Others [1993] ECR I‑6787, paragraph 21; and Case C‑434/04 Ahokainen and Leppik [2006] ECR I‑9171, paragraph 19). Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products (see Keck and Mithouard , paragraph 17).
30. Subsequently, the Court treated as provisions governing sales arrangements within the meaning of the judgment in Keck and Mithouard  provisions concerning, in particular, a number of marketing methods (see, inter alia, Hünermund and Others , paragraphs 21 and 22; Case C-254/98 TK-Heimdienst  [2000] ECR I-151, paragraph 24; and Case C-441/04 A-Punkt Schmuckhandel  [2006] ECR I-2093, paragraph 16).
31. It is clear from paragraph 15 of the judgment in Case C‑391/92 Commission  v Greece  [1995] ECR I-1621 that rules which restrict the marketing of products to certain points of sale, and which have the effect of limiting the commercial freedom of economic operators, without affecting the actual characteristics of the products referred to, constitute a selling arrangement for the purposes of the case-law cited in paragraph 29 of this judgment. Therefore, the need to adapt the products in question to the rules in force in the Member State in which they are marketed prevents the abovementioned requirements from being treated as selling arrangements (see Canal Satélite Digital , paragraph 30). That is the case, inter alia, with regard to the need to alter the labelling of imported products (see, inter alia, Case C‑33/97 Colim  [1999] ECR I‑3175, paragraph 37, and Case C‑416/00 Morellato  [2003] ECR I‑9343, paragraphs 29 and 30).
39. In that connection, it must be recalled that the protection of the rights of the child is recognised by various international instruments which the Member States have cooperated on or acceded to, such as the International Covenant on Civil and Political Rights, which was adopted by the General Assembly of the United Nations on 19 December 1966 and entered into force on 23 March 1976, and the Convention on the Rights of the Child, which was adopted by the General Assembly of the United Nations on 20 November 1989 and entered into force on 2 September 1990. The Court has already had occasion to point out that those international instruments are among those concerning the protection of human rights of which it takes account in applying the general principles of Community law (see, inter alia, Case C-540/03 Parliament  v Council  [2006] ECR I-5769, paragraph 37).
41. The protection of the child is also enshrined in instruments drawn up within the framework of the European Union, such as the Charter of fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1), Article 24(1) of which provides that children have the right to such protection and care as is necessary for their well-being (see, to that effect, Parliament  v Council , paragraph 58). Furthermore, the Member States’ right to take the measures necessary for reasons relating to the protection of young persons is recognised by a number of Community-law instruments, such as Directive 2000/31.
42. Although the protection of the child is a legitimate interest which, in principle, justifies a restriction on a fundamental freedom guaranteed by the EC Treaty, such as the free movement of goods (see, by analogy, Case C‑112/00 Schmidberger  [2003] ECR I‑5659, paragraph 74), the fact remains that such restrictions may be justified only if they are suitable for securing the attainment of the objective pursued and do not go beyond what is necessary in order to attain it (see, to that effect, Case C‑36/02 Omega  [2004] ECR I-9609, paragraph 36, and Case C‑438/05 International Transport Workers’ Federation and Finnish Seamen’s Union  [2007] ECR I-0000, paragraph 75).
44. In that connection, it is not indispensable that restrictive measures laid down by the authorities of a Member State to protect the rights of the child, referred to in paragraphs 39 to 42 of this judgment, correspond to a conception shared by all Member States as regards the level of protection and the detailed rules relating to it (see, by analogy, Omega , paragraph 37). As that conception may vary from one Member State to another on the basis of, inter alia, moral or cultural views, Member States must be recognised as having a definite margin of discretion.
45. While it is true that it is for the Member States, in the absence of Community harmonisation, to determine the level at which they intend to protect the interest concerned, the fact remains that that discretion must be exercised in conformity with the obligations arising under Community law.
46. Although the rules at issue in the main proceedings correspond to the level of child protection that the German legislature has sought to ensure on the territory of the Federal Republic of Germany, it is also necessary that the measures implemented by those rules be suitable for securing that objective and do not go beyond what is necessary in order to attain it.
49. As regards the examination procedure established by the national legislature in order to protect children against information and materials injurious to their well-being, the mere fact that a Member State has opted for a system of protection which differs from that adopted by another Member State cannot affect the assessment of the proportionality of the national provisions enacted to that end. Those provisions must be assessed solely by reference to the objective pursued and the level of protection which the Member State in question intends to provide (see, by analogy, Case C-124/97 Läärä and Others  [1999] ECR I-6067, paragraph 36, and Omega , paragraph 38).
50. However, such an examination procedure must be one which is readily accessible, can be completed within a reasonable period, and, if it leads to a refusal, the decision of refusal must be open to challenge before the courts (see, to that effect, Case C-344/90 Commission  v France  [1992] ECR I‑4719, paragraph 9, and Case C-95/01 Greenham and Abel  [2004] ECR I-1333, paragraph 35).