BA EU Law CJEU Reader - August 2024 Students PDF

EU LAW – BA COURSE AUTUMN 2024 JUDGMENTS OF THE CJEU THE READER FOR TEACHERS...

EU LAW – BA COURSE AUTUMN 2024 JUDGMENTS OF THE CJEU THE READER FOR TEACHERS OVERVIEW Since we will be using some cases in the context of various topics, they are listed below in the numerical order (according to their case number). Some of the cases are shortened. In order to help you to get a quicker orientation among them, we also provide a summary of their contents in this overview. 120/78 - Rewe v Bundesmonopolverwaltung für Branntwein „Cassis de Dijon“ Judgment of the Court of 20 February 1979 1. State monopolies of a commercial character — Specific provision of the Treaty — Scope (EEC Treaty, Art. 37) 2. Quantitative restrictions — Measures having equivalent effect — Marketing of a product — Disparities between national laws — Obstacles to intra-Community trade — Permissible — Conditions and limits (EEC Treaty, Art. 30 and 36) 3. Quantitative restrictions — Measures having equivalent effect — Concept — Marketing of alcoholic beverages — Fixing of a minimum alcohol content (EEC Treaty, Art. 30)........................ 5 C-267/91 and C-268/91 Criminal proceedings against Bernard Keck and Daniel Mithouard – „Keck“ Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Concept — Obstacles to trade resulting from disparities between national legislation laying down requirements to be met by goods — Included — Obstacles resulting from national provisions regulating selling arrangements in a non-discriminatory way — Inapplicability of Article 30 of the Treaty — Legislation prohibiting resale at a loss (EEC Treaty, Art. 30)……………………………………………………………………………………………………………………………….12 C-213/96 – Outokumpu Excise duty on electricity - Rates of duty varying according to the method of producing electricity of domestic origin - Flat rate for imported electricity........................................................................... 19 C-281/98 - Angonese Judgment of the Court of 6 June 2000. Freedom of movement for persons - Access to employment - Certificate of bilingualism issued by a local authority - Article 48 of the EC Treaty (now, after amendment, Article 39 EC) - Council Regulation (EEC) No 1612/68................................................................... 22 C-184/99 – Grzelczyk Judgment of the Court of 20 September 2001. Articles 6, 8 and 8a of the EC Treaty (now, after amendment, Articles 12 EC, 17 EC and 18 EC) - Council Directive 93/96/EEC - Right of residence for students - National legislation which guarantees a minimum subsistence allowance only for nationals, persons covered by Regulation (EEC) No 1612/68 and stateless persons and refugees - Foreign student who has met his own living expenses during the first years of his studies........................................................................................ 35 C-112/00 – Schmidberger Judgment of the Court of 12 June 2003 - Free movement of goods - Restriction resulting from actions of individuals - Obligations of the Member States - Decision not to prohibit a demonstration by environmental protesters which resulted in the complete closure of the Brenner motorway for almost 30 hours - Justification - Fundamental rights - Freedom of expression and freedom of assembly - Principle of proportionality…………………………………………………………………………………………………………………40 C-383/01 - De Danske Bilimportører Judgment of the Court of 17 June 2003. Free movement of goods - Charge on the registration of new motor vehicles - Internal taxation - Measure having an equivalent effect to a quantitative restriction............................................................................................................................................................... 49 C-110/05 - Commission v Italy Judgment of the Court (Grand Chamber) of 10 February 2009. Failure of a Member State to fulfil obligations - Article 28 EC - Concept of ‘measures having equivalent effect to quantitative restrictions on imports’ - Prohibition on mopeds, motorcycles, motor tricycles and quadricycles towing a trailer in the territory of a Member State - Road safety - Market access - Obstacle - Proportionality............................ 53 C-438/05 - The International Transport Workers' Federation and The Finnish Seamen's Union (“Viking”) Judgment of the Court (Grand Chamber) of 11 December 2007 - Maritime transport - Right of establishment - Fundamental rights - Objectives of Community social policy - Collective action taken by a trade union 1 organisation against a private undertaking - Collective agreement liable to deter an undertaking from registering a vessel under the flag of another Member State................................................................................................... 60 C-108/09 - Ker-Optika Judgment of the Court (Third Chamber) of 2 December 2010. Free movement of goods - Public health - Selling of contact lenses via the Internet - National legislation authorising the sale of contact lenses solely in medical supply shops - Directive 2000/31/EC - Information society - Electronic commerce................. 69 C-171/11 - Fra.bo Judgement of the Court (Fourth Chamber) of 12 July 2012 (Free movement of goods — Measures having equivalent effect to a quantitative restriction — National certification procedure — Presumption of compliance with national law — Applicability of Article 28 EC to a private‑law certification body)............... 74 C-46/12 – N Judgment of the Court (Third Chamber), 21 February 2013 Citizenship of the Union — Freedom of movement for workers — Principle of equal treatment − Article 45(2) TFEU — Regulation (EEC) No 1612/68 — Article 7(2) − Directive 2004/38/EC — Article 24(1) and (2) — Derogation from the principle of equal treatment for maintenance aid for studies consisting in student grants or student loans — European Union citizen studying in a host Member State — Paid employment prior to and subsequent to the start of studies − Principal objective of the person concerned at the time of entry on the territory of the host Member State — Effect on his classification as worker and on his entitlement to student grants.............................................................................................. 744 C-456/12 – O and B Judgment of the Court (Grand Chamber), 12 March 2014 Directive 2004/38/EC — Article 21(1) TFEU — Right to move and reside freely within the territory of the Member States — Beneficiaries — Right of residence of a third-country national who is a family member of a Union citizen in the Member State of which that citizen is a national — Return of the Union citizen to that Member State after short periods of residence spent in another Member State...................................................................................................................................... 783 C-507/12 - Saint-Prix Judgment of the Court (First Chamber) of 19 June 2014 - Reference for a preliminary ruling — Article 45 TFEU — Directive 2004/38/EC — Article 7 — ‘Worker’ — Union citizen who gave up work because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth.................... 87 C-333/13 – Dano Judgment of the Court (Grand Chamber), 11 November 2014 Reference for a preliminary ruling — Free movement of persons — Citizenship of the Union — Equal treatment — Economically inactive nationals of a Member State residing in the territory of another Member State — Exclusion of those persons from special non-contributory cash benefits under Regulation (EC) No 883/2004 — Directive 2004/38/EC — Right of residence for more than three months — Articles 7(1)(b) and 24 — Condition requiring sufficient resources................... 900 C-67/14 – Alimanovic Judgment of the Court (Grand Chamber) of 15 September 2015 Reference for a preliminary ruling — Freedom of movement for persons — Citizenship of the Union — Equal treatment — Directive 2004/38/EC — Article 24(2) — Social assistance — Regulation (EC) No 883/2004 — Articles 4 and 70 — Special non-contributory cash benefits — Member State nationals who are job-seekers and resident in a different Member State — Excluded — Retention of the status of ‘worker’..................................................................................... 966 C-15/15 - New Valmar Judgment of the Court (Grand Chamber) of 21 June 2016 - Reference for a preliminary ruling — Free movement of goods — Prohibition of measures having equivalent effect to quantitative restrictions on exports — Article 35 TFEU — Company established in the Dutch-speaking region of the Kingdom of Belgium — Legislation requiring invoices to be drawn up in Dutch, failing which they are null and void — Cross-border concession agreement — Restriction — Justification — Disproportionate....................................................... 1000 C-342/15 – Piringer Judgment of the Court (Fifth Chamber) of 9 March 2017 - Reference for a preliminary ruling — Freedom of lawyers to provide services — Possibility for Member States to reserve to prescribed categories of lawyers the drafting of formal documents for creating or transferring interests in land — Legislation of a Member State requiring that the authenticity of the signature on a request for entry in the land register be certified by a notary................................................................................................................................................................. 1044 C-434/15 - Asociación Profesional Elite Taxi Judgment of the Court (Grand Chamber) of 20 December 2017 - Asociación Profesional Elite Taxi v Uber Systems Spain, SL - Request for a preliminary ruling from the Juzgado Mercantil de Barcelona - Reference for a preliminary ruling — Article 56 TFEU — Article 58(1) TFEU — Services in the field of transport — Directive 2006/123/EC — Services in the internal market — Directive 2000/31/EC — Directive 98/34/EC — Information society services — Intermediation service to connect, by means of a smartphone application and for remuneration, non-professional drivers using their own vehicle with persons who wish to make urban journeys — Requirement for authorisation............................................................................................. 1100 C-419/16 - Simma Federspiel Judgment of the Court (Third Chamber) of 20 December 2017 - Reference for a preliminary ruling — Freedom of establishment and freedom of movement for workers — Articles 45 and 49 TFEU — Mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine — Directives 75/363/EEC and 93/16/EEC — Remuneration of trainee specialist doctors.................................... 1155 2 Joined cases C-360/15 and C-31/16 – Visser Judgment of the Court (grand Chamber) of 30 January 2018 - Reference for a preliminary ruling — Services in the internal market — Directive 2006/123/EC — Scope — Article 2(2)(c) — Exclusion of electronic communications services and networks — Article 4(1) — Concept of ‘service’ — Retail trade in goods — Chapter III — Freedom of establishment of service providers — Applicability in purely internal situations — Article 15 — Requirements to be evaluated — Territorial restriction — Zoning plan prohibiting the activity of retail trade in goods other than bulky goods in geographical zones situated outside the city centre — Protection of the urban environment — Authorisation of electronic communications services and networks — Directive 2002/20/EC — Financial payments attached to rights to install facilities for a public electronic communications network)............................................................................................................... 11919 C-673/15 Coman v Inspectoratul General pentru Imigrări Judgment of the Court (Grand Chamber) of 5 June 2018 - Reference for a preliminary ruling — Citizenship of the Union — Article 21 TFEU — Right of Union citizens to move and reside freely in the territory of the Member States — Directive 2004/38/EC — Article 3 — Beneficiaries — Family members of the Union citizen — Article 2(2)(a) — Definition of ‘spouse’ — Marriage between persons of the same sex ………………………………………………………………………………………….126 C-591/17 - Austria v Germany Judgment of the Court (Grand Chamber) of 18 June 2019, Republic of Austria v Federal Republic of Germany - Failure of a Member State to fulfil obligations — Articles 18, 34, 56 and 92 TFEU — Legislation of a Member State prescribing an infrastructure use charge for passenger vehicles — Situation in which owners of vehicles registered in that Member State qualify for relief from motor vehicle tax in an amount corresponding to that charge............................................................................................................................. 1322 C-393/17 - Kirschstein Judgment of the Court (Third Chamber) of 4 July 2019 - Reference for a preliminary ruling — Directive 2005/29/EC — Unfair commercial practices — Scope — Concept of ‘commercial practices’ — Directive 2006/123/EC — Services in the internal market — Criminal law — Authorisation schemes — Higher education — ‘Master’s’ degree — Prohibition to confer certain degrees without authorisation)…………………143 C-390/18 - Airbnb Ireland Judgment of the Court (grand chamber) of 19 December 2019 - Reference for a preliminary ruling — Directive 2000/31/EC — Information society services — Directive 2006/123/EC — Services — Connection of hosts, whether businesses or individuals, with accommodation to rent with persons seeking that type of accommodation — Qualification — National legislation imposing certain restrictions on the exercise of the profession of real estate agent — Directive 2000/31/EC — Article 3(4)(b), second indent — Obligation to give notification of measures restricting the freedom to provide information society services — Failure to give notification — Enforceability — Criminal proceedings with an ancillary civil action).......... 14949 C-78/18 Commission v Hungary The Court (Grand Chamber) of 18 juin 2020 - Failure of a Member State to fulfil obligations — Admissibility — Article 63 TFEU — Free movement of capital — Existence of a restriction — Burden of proof — Indirect discrimination linked to the origin of the capital — Article 12 of the Charter of Fundamental Rights of the European Union — Right to freedom of association — National rules imposing on associations receiving financial support sent from other Member States or from third countries legally binding obligations of registration, declaration and publication which can be enforced — Article 7 of the Charter of Fundamental Rights — Right to respect for private life — Article 8(1) of the Charter of Fundamental Rights — Right to the protection of personal data — National rules imposing the disclosure of information on persons providing financial support to associations and of the amount of that support — Justification — Overriding reason in the public interest — Transparency of the financing of associations — Article 65 TFEU — Public policy — Public security — Fight against money laundering, financing of terrorism and organised crime — Article 52(1) of the Charter of Fundamental Rights.................................................................................................................... 1554 C-449/20 Real Vida Seguros SA v Autoridade Tributária e Aduaneira Judgment of the Court (seventh chamber) of 9 September 2021 - Reference for a preliminary ruling – Taxation – Article 63 TFEU – Free movement of capital – Income tax – Dividends attached to listed shares – Tax advantage reserved for dividends attached to shares listed on the national stock exchange – Difference in treatment – Objective distinguishing criterion – Restriction – Article 65 TFEU – Objectively comparable situations – Justification – Objective of a purely economicnatu…………………..………………………………………………………………………………….…………163 C-261/20, Thelen Technopark Berlin GmbH v MN Judgment of the Court (Grand Chamber) of 18 January 2022 - Reference for a preliminary ruling – Freedom to provide services – Article 49 TFEU – Directive 2006/123/EC – Article 15 – Architects’ and engineers’ fees – Fixed minimum tariffs – Direct effect – Judgment establishing a failure to fulfil obligations delivered during proceedings before a national court or tribunal……………………166 3 Joined cases C-451/19 & C-532/19 Subdelegación del Gobierno en Toledo v XU & QP Judgment of the Court (Fourth Chamber) of 5 May 2022 - Reference for a preliminary ruling – Article 20 TFEU – Union citizenship – Union citizen who has never exercised his or her right of freedom of movement – Application for a residence card for his or her family member who is a third-country national – Refusal – Obligation for the Union citizen to have sufficient resources – Obligation for spouses to live together – Minor child who is a Union citizen – National legislation and practice – Genuine enjoyment of the substance of the rights conferred on EU nationals – Deprivation…………………………………………………………………………………………………………………..172 C-83/21 Airbnb Ireland UC plc, Airbnb Payments UK Ltd v Agenzia delle Entrate, judgment of the Court (Second Chamber) of 22 December 2022 - Reference for a preliminary ruling – Internal market – Article 114(2) TFEU – Exclusion of fiscal provisions – Directive 2000/31/EC – Information society services – Electronic commerce – Online property intermediation platform – Article 1(5)(a) – Exclusion of the ‘field of taxation’ – Directive 2006/123/EC – Services in the internal market – Article 2(3) – Exclusion of the ‘field of taxation’ – Directive (EU) 2015/1535 – Article 1(1)(e) and (f) – Concepts of ‘rule on services’ and ‘technical regulation’ – Obligation on providers of property intermediation services to collect and transmit to the tax authorities data on rental contracts and to withhold tax at source on the payments made – Obligation on service providers that do not have a permanent establishment in Italy to appoint a tax representative – Article 56 TFEU – Restrictive nature – Legitimate objective – Disproportionate nature of the obligation to appoint a tax representative – Third paragraph of Article 267 TFEU – Prerogatives of a national court or tribunal against whose decisions there is no judicial remedy under national law)…………………………………………………………………………………………………181 C-372/21 Freikirche der Siebenten-Tags-Adventisten in Deutschland KdöR v Bildungsdirektion für Vorarlberg, judgment of the Court (Third Chamber) of 2 February 2023 - Reference for a preliminary ruling – Status under EU law of churches and religious associations or communities in the Member States – Article 17(1) TFEU – Freedom of establishment – Article 49 TFEU – Restrictions – Justification – Proportionality – Subsidies for a private school – Application submitted by a religious society established in another Member State – Establishment recognised by that society as a denominational school…………………………………………………………..190 4 120/78 - Rewe v Bundesmonopolverwaltung für Branntwein „Cassis de Dijon“ Judgment of the Court of 20 February 1979 1. State monopolies of a commercial character — Specific provision of the Treaty — Scope (EEC Treaty, Art. 37) 2. Quantitative restrictions — Measures having equivalent effect — Marketing of a product — Disparities between national laws — Obstacles to intra-Community trade — Permissible — Conditions and limits (EEC Treaty, Art. 30 and 36) 3. Quantitative restrictions — Measures having equivalent effect — Concept — Marketing of alcoholic beverages — Fixing of a minimum alcohol content (EEC Treaty, Art. 30) NB: Art. 30 EEC Treaty is now Art. 34 TFEU; Art. 36 EEC Treaty is now Article 36 TFEU; Article 37 EEC Treaty is now Art. 37 TFEU Facts and Issues The facts, the procedure and the observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows: I — Facts and written procedure The principle activity of the limited liability company Rewe-Zentral AG (hereinafter referred to as Rewe), a central cooperative undertaking having its registered office in Cologne, is the importation of goods from other Member States of the Community. On 14 September 1976 it requested authorization from the Bundesmonopolverwaltung für Branntwein (Federal Monopoly Administration for Spirits) to import from France, for the purposes of marketing in the Federal Republic of Germany, certain potable spirits, including the liqueur “Cassis de Dijon”, containing 15 to 20% by volume of alcohol. By letter of 17 September 1976 the Bundesmonopolverwaltung informed Rewe that authorization to import was not necessary: by notice of 8 April 1976 (Bundesanzeiger No 74 of 15 April 1976 and No 79 of 27 April 1976) the Bundesmonopolverwaltung had granted with general effect the authorization required by Article 3 (1) of the Branntweinmonopolgesetz (Law of 8 April 1922 on the Monopoly in Spirits, as last amended by the Law of 2 May 1976) for the importation of spirits into the Federal Republic, and at all events the importation of liqueurs was not subject to authorization. However, it informed Rewe that the “Cassis de Dijon” which it intended to import could not be sold in the Federal Republic of Germany, since Article 100 (3) of the Branntweinmonopolgesetz provides that only potable spirits having a wine-spirit content of at least 32% may be marketed in that country. The exceptions to that rule are the subject-matter of the Verordnung über den Mindestweingeistgehalt von Trinkbranntweinen (Regulation on the Minimum Wine-Spirit Content of Potable Spirits) of 28 February 1958 (Bundesanzeiger No 48 of 11 March 1958). “Cassis de Dijon”, which contains from 15 to 20% wine-spirit by volume, is not covered by that regulation and, pursuant to Article 100 (3) of the Branntweinmonopolgesetz, the Branntweinmonopolverwaltung is not empowered to authorize derogations in individual cases. Rewe brought an action against that decision before the Verwaltungsgericht Darmstadt; by order of 27 December 1976 that court referred the case to the Hessisches Finanzgericht. The Finanzgericht decided, by order of its Seventh Senate of 28 April 1978, pursuant to Article 177 of the EEC Treaty, to stay the proceedings until the Court of Justice has given a preliminary ruling on the following questions: 1. Must the concept of measures having an effect equivalent to quantitative restrictions on imports contained in Article 30 of the EEC Treaty be understood as meaning that the fixing of a minimum wine-spirit content for potable spirits laid down in the German Branntweinmonopolgesetz, the result of which is that traditional products of other Member States whose wine-spirit content is below the fixed limit cannot be put into circulation in the Federal Republic of Germany, also comes within this concept? 2. May the fixing of such a minimum wine-spirit content come within the concept of “discrimination regarding the conditions under which goods are procured and marketed … between nationals of Member States” contained in Article 37 of the EEC Treaty? The order of the Hessisches Finanzgericht was registered at the Court on 22 May 1978. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 22 June and 24 July 1978 by Rewe-Zentral AG, the plaintiff in the main action, on 27 July by the Commission of the European Communities, on 10 August by the Government of the Kingdom of Denmark and on 16 August 1978 by the Government of the Federal Republic of Germany. 5 After hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry. However, it invited the Government of the Federal Republic of Germany and the Commission to reply to a question at the hearing. II — Written observations submitted to the Court Rewe-Zentral AG, the plaintiff in the main action, observes that proceedings commenced against the Federal Republic of Germany by the Commission in 1974 for failure to fulfil an obligation led to the regulation of 7 December 1976 amending, albeit partially, the regulation of 28 February 1958 on the minimum wine-spirit content. (a) The first question According to the settled case-law of the Court any measure of such a kind as to hinder, directly or indirectly, actually or potentially, trade between Member States falls under the prohibition contained in Article 30 of the EEC Treaty. To prohibit the marketing of a product from one Member State in another Member State hinders the importation of that product in a direct and immediate manner; it is therefore a measure having an effect equivalent to a quantitative restriction on imports prohibited by Article 30 of the EEC Treaty, subject to the exceptions laid down by Community law. The protection of the health of humans, within the meaning of the first sentence of Article 36 of the Treaty, can certainly not justify the fixing of a minimum wine-spirit content for potable spirits. Nor is there any conviction in the argument to the effect that it is necessary to fix certain lower limits to the wine- spirit content by law in order to satisfy both general commercial practice within the Federal Republic and the wishes of consumers. That question can remain unanswered; commercial practice and the wishes of consumers are not in any event factors relating to public policy justifying recourse to Article 36. Article 3 of Commission Directive No 70/50 of 22 December 1969 (Official Journal, English Special Edition 1970 (I), p. 17) considers as being measures having an effect equivalent to quantitative restrictions on imports, which must be abolished between the Member States, “measures governing the marketing of products which deal, in particular, with shape, size, weight, composition, presentation, identification or putting up and which are equally applicable to domestic and imported products, where the restrictive effect of such measures on the free movement of goods exceeds the effects intrinsic to trade rules”. According to the tenth recital in the preamble to that directive, such is the case “where imports are either precluded or made more difficult or costly than the disposal of domestic production and where such effect is not necessary for the attainment of an objective within the scope of the powers for the regulation of trade left to Member States by the Treaty”. The regulation on the minimum wine-spirit content of potable spirits in force in Germany renders it impossible, in that country, to market and therefore to import from other Member States certain liqueurs which are known and marketed there in that form, including “Cassis de Dijon”. The manufacture of those liqueurs in a form specifically designed for the German market would make their importation more difficult and more costly in relation to the disposal of national products. According to the second sentence of Article 36 of the EEC Treaty prohibitions on imports shall not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States; the Court has ruled that there is a disguised restriction within the meaning of that provision where it is established that the exercise of trademark rights by the holder of the trademark, having regard to the marketing system operated by him, contributes to the artificial partitioning of the markets between Member States. The German regulation on the minimum wine-spirit content of potable spirits and Article 100 (3) of the Branntweinmonopolgesetz create precisely such an artificial partition between the market of the Federal Republic of Germany and the market of the other Member States; they are therefore also contrary to the second sentence of Article 36. The first question put by the Hessisches Finanzgericht should therefore be answered as follows: The concept of “quantitative restrictions on imports and all measures having equivalent effect” within the meaning of Article 30 of the EEC Treaty must be interpreted as meaning that the fixing at national level of a minimum wine-spirit content for potable spirits as a condition for authorization to market within the Member State concerned, where its result is that traditional products of other Member States whose winespirit content is below the fixed limit cannot be put into circulation in the Federal Republic of Germany, constitutes such a measure. … 6 The Government of the Federal Republic of Germany recalls the content, context, antecedents and purpose of the national provisions on the minimum wine-spirit content of potable spirits. Those provisions were prompted, in particular, by the wish to protect the consumer against adverse effects on his health: a limitless authorization for all varieties of potable spirits, whatever their alcohol content, would be likely to lead to an increase in the consumption of alcohol as a whole and therefore to increase the specific dangers of alcoholism; the provisions are also intended to protect the consumer against abuses and unfair practices during the manufacture and sale of spirits. Settled commercial practices concerning all the essential requirements relating to manufacture, composition and appellation of spirits have developed pragmatically within the Federal Republic and these find their expression in the Begriffsbestimmungen fur Spirituosen (definitions of spirits). (a) The first question The scope of the questions of interpretation referred to the Court goes well beyond the subject-matter of the main action: in most Member States there exist provisions, very diverse in nature, relating to the minimum wine-spirit content of potable spirits and those provisions constitute merely a small part of the complex problem raised by the existence of a considerable number of divergent national “technical standards” for numerous goods. Pursuant to Articles 3 (h) and 100 of the Treaty, the resulting obstacles to trade must be reduced by recourse to the procedure for the approximation of such provisions laid down by law, regulation or administrative action in Member States as they directly affect the establishment or functioning of the common market. Until such time as the national rules relating to manufacture and marketing have been harmonized, Article 30 of the EEC Treaty is to be applied only in so far as those provisions lead to discrimination against imported goods in relation to domestic goods. Measures which are applicable without distinction to domestic products and imported products do not, according to Directive No 70/50, have effects equivalent to those of quantitative restrictions and do not therefore, in principle, fall within the scope of Article 30. The conditions regarding minimum quantities in force in the Federal Republic quite clearly do not involve different treatment for imported goods and there can therefore be no question of the application of Article 30. Quite apart from formal equality of treatment, it should be noted that the provisions relating to the minimum alcohol content do not give national producers any material advantage. Any obstacles to trade are due solely to the fact that the legal orders of the two Member States have traditionally laid down different minimum requirements in relation to the alcohol content of various spirits. The mere fact that German law contains stricter minimum requirements, which, when viewed objectively, give no advantage to national producers, cannot constitute a material discrimination within the meaning of Article 30 of the Treaty. The arguments adduced by the plaintiff from the proceedings commenced in respect of failure to fulfil an obligation against the Federal Republic of Germany do not carry conviction in this context: that case, which was essentially concerned with aniseed liqueurs, differed fundamentally from the main action in this case, in particular in that the German rules required a minimum alcohol content which was higher for foreign aniseed liqueurs than for similar national liqueurs. In view of the fundamental importance to an assessment of the technical specifications of all other sectors of production of the line of argument adopted by the plaintiff in the main action, it should be noted that its consequence would be that the minimum alcohol content of a given product in the Federal Republic of Germany would no longer be governed by German law but by French law; in consequence, the lower minimum alcohol content fixed by French law should also be extended to the whole of German national production. In the final analysis, the rules of the least exigent Member State would be authoritative in all the others; this legal effect, supposedly the result of Article 30, which is a directly applicable provision, should have been attained as from 1 January 1970 at the latest. By reason of the automatic effect of Article 30 other amendments to national legal provisions could take place continually in the future, whenever a single Member State tempered the requirements laid down by its rules; in an extreme case, a single Member State could enact legislation for the whole Community, without the collaboration or even the knowledge of the other Member States. The result would be to lower minimal requirements to the lowest level set in any given national rules, in the absence of the authorization required by Article 100 of the Treaty, which presupposes the consent of the Member States. In this connexion it should be borne in mind that the abolition of minimal requirements in force in a Member State cannot be limited to imported products; on the contrary, it must also be mandatory in respect of national production, otherwise fresh discrimination would be created. Nor would it be possible to limit the requirements of Article 30 as so defined to so-called “traditional” products; from the point of view of Article 30, there is no convincing reason for treating new products differently from traditional products. 7 Those consequences are incompatible with the principle of legal certainty. They are excluded above all by the functional separation of powers between the national authorities and the Community authorities. In relation to the interpretation of Article 30, that fundamental principle of the Treaty implies that the application of that provision reaches its limit at the point where the functional exercise of the powers retained by the Member States would be jeopardized. The Member States must continue to be able effectively to exercise those powers, until the achievement of harmonization transfers their freedom of action to the Community. This respect for the separation of functions is particularly important in the field of technical specifications. In accordance with the case-law of the Court concerning the interpretation of Article 95 of the EEC Treaty it must be accepted that the general framework of the national legislative system must remain the determining factor, even as regards products which do not normally exist within the importing country, in those fields requiring harmonization which still come under the control of the Member States. The solution sought by the plaintiff in the main action, which amounts to the adoption of the lowest national minimum requirements, is further to be discounted on the basis that the provisions in question serve purposes which are legitimate in relation to Community law and fall within the ambit of social, consumer or fiscal law, in which there is a wide margin of discretion. Pending harmonization at the Community level, that margin of discretion can of necessity belong only to the Member States. For all those reasons national rules relating to the minimum percentage of components which determine the value of certain products, the purpose of which is legitimate with regard to Community law and the restrictive effects of which on trade arise solely because of their traditional differences, cannot be covered by Article 30 of the EEC Treaty merely because of the division of powers between the Member States and the Community which results from the system of the Treaty. Article 3 of Directive No 70/50 does not alter this conclusion. The protection of the consumer against fraud and against dangers to his health and the maintenance of fair competition are legitimate aims which are in conformity with Community law. The means chosen in order to attain that end are not subject to any condition under Community law, which itself contains numerous provisions relating to minimum contents in the foodstuffs sector. The restrictive effect on trade of such provisions does not exceed the normal limits of the “effects intrinsic to mere trade rules”. The principle of proportionality is not threatened: a mere requirement as to labelling cannot replace the fixing of a minimum alcohol content; the fact that manufacturers must adapt their products intended for export to the specifications of the importing country pending harmonization is merely the necessary consequence of the differences between national specifications. The first question referred to the Court should be answered as follows: The concept of “measures having an effect equivalent to quantitative restrictions on imports” within the meaning of Article 30 of the EEC Treaty does not cover differences existing between the rules in force within various legal orders of the Member States relating to the minimum wine-spirit content of potable spirits, which lead to the consequence that products which are traditionally suitable for marketing in Member States where the minimum requirements are lower may be marketed in other Member States only with a higher wine-spirit content. … The Commission outlines the state of German law relating to the fixing of the minimum wine-spirit content of potable spirits, to the “definitions of spirits” and to foodstuffs; it recalls the procedure for failure to fulfil an obligation initiated against the Federal Republic of Germany in 1974 and the fact that following the various complaints referred to it it decided to undertake a general study relating to the compatibility with Article 30 of the EEC Treaty of national rules relating to the composition, quality and designation of foodstuffs and, more particularly, alcoholic beverages. (a) The problem as a whole The Commission’s present attitude on the problem as a whole may be summarized as follows: In so far as provisions relating to the composition or nature of the components of certain beverages or foodstuffs are not designed to ensure protection of health, restrictions on trade may be justified, in accordance with Article 36 of the Treaty, only on the basis of the principle of the protection of the consumer (consumer information and protection against fraud) and that of fair competition between producers. 8 The question arises here of the extent to which such objectives may be attained by provisions relating to designations and by information indicating the properties and composition of the product in question rather than by a total prohibition on sale. In view of the very high sensitivity of prices of the products in question and of the fact that the consumer can only with difficulty compare the various alcohol contents of similar products, mandatory rules concerning the minimum wine-spirit content such as those at issue in the main action may contribute to ensuring fair competition and consumer protection. Where suitable designation or labelling of the product is not sufficient to avoid any error on the part of the consumer or where it is wholly or largely impossible to supply the requisite information, a prohibition on sale may be justified. In the final analysis, the essential question is whether rules which are applicable without distinction concerning the composition of products, in conjunction with the designation of those products, must be considered to be “out of proportion”. Where that is not the case restrictions on trade between Member States resulting from disparities between those rules can be abolished only by means of the approximation of laws or the creation of a Community law. The first question should be answered as follows: The fixing of a minimum wine-spirit content for potable spirits, which is applicable to domestic products and imported products without distinction, may be justified in the interests of consumer protection and fair competition between producers of potable spirits. However, such rules are excessive and therefore constitute a prohibited measure having an effect equivalent to quantitative restrictions on imports where their consequence is that, notwithstanding a suitable indication, typical products from other Member States, manufactured according to a particular process and characterized traditionally by an alcohol content which is lower than the limit fixed may not be put into circulation in the Member State concerned or may be put into circulation there only if they conform to unreasonable requirements. … Decision 1 By order of 28 April 1978, which was received at the Court on 22 May, the Hessisches Finanzgericht referred two questions to the Court under Article 177 of the EEC Treaty for a preliminary ruling on the interpretation of Articles 30 and 37 of the EEC Treaty, for the purpose of assessing the compatibility with Community law of a provision of the German rules relating to the marketing of alcoholic beverages fixing a minimum alcoholic strength for various categories of alcoholic products. 2 It appears from the order making the reference that the plaintiff in the main action intends to import a consignment of “Cassis de Dijon” originating in France for the purpose of marketing it in the Federal Republic of Germany. The plaintiff applied to the Bundesmonopolverwaltung (Federal Monopoly Administration for Spirits) for authorization to import the product in question and the monopoly administration informed it that because of its insufficient alcoholic strength the said product does not have the characteristics required in order to be marketed within the Federal Republic of Germany. 3 The monopoly administration’s attitude is based on Article 100 of the Branntweinmonopolgesetz and on the rules drawn up by the monopoly administration pursuant to that provision, the effect of which is to fix the minimum alcohol content of specified categories of liqueurs and other potable spirits (Verordnung über den Mindestweingeistgehalt von Trinkbranntweinen of 28 February 1958, Bundesanzeiger No 48 of 11 March 1958). Those provisions lay down that the marketing of fruit liqueurs, such as “Cassis de Dijon”, is conditional upon a minimum alcohol content of 25%, whereas the alcohol content of the product in question, which is freely marketed as such in France, is between 15 and 20%. 4 The plaintiff takes the view that the fixing by the German rules of a minimum alcohol content leads to the result that well-known spirits products from other Member States of the Community cannot be sold in the Federal Republic of Germany and that the said provision therefore constitutes a restriction on the free movement of goods between Member States which exceeds the bounds of the trade rules reserved to the latter. 9 In its view it is a measure having an effect equivalent to a quantitative restriction on imports contrary to Article 30 of the EEC Treaty. Since, furthermore, it is a measure adopted within the context of the management of the spirits monopoly, the plaintiff considers that there is also an infringement of Article 37, according to which the Member States shall progressively adjust any State monopolies of a commercial character so as to ensure that when the transitional period has ended no discrimination regarding the conditions under which goods are procured or marketed exists between nationals of Member States. 5 In order to reach a decision on this dispute the Hessisches Finanzgericht has referred two questions to the Court, worded as follows: 1. Must the concept of measures having an effect equivalent to quantitative restrictions on imports contained in Article 30 of the EEC Treaty be understood as meaning that the fixing of a minimum wine-spirit content for potable spirits laid down in the German Branntweinmonopolgesetz, the result of which is that traditional products of other Member States whose wine-spirit content is below the fixed limit cannot be put into circulation in the Federal Republic of Germany, also comes within this concept? 2. May the fixing of such a minimum wine-spirit content come within the concept of “discrimination regarding the conditions under which goods are procured and marketed … between nationals of Member States” contained in Article 37 of the EEC Treaty? 6 The national court is thereby asking for assistance in the matter of interpretation in order to enable it to assess whether the requirement of a minimum alcohol content may be covered either by the prohibition on all measures having an effect equivalent to quantitative restrictions in trade between Member States contained in Article 30 of the Treaty or by the prohibition on all discrimination regarding the conditions under which goods are procured and marketed between nationals of Member States within the meaning of Article 37. 7 It should be noted in this connexion that Article 37 relates specifically to State monopolies of a commercial character. That provision is therefore irrelevant with regard to national provisions which do not concern the exercise by a public monopoly of its specific function — namely, its exclusive right — but apply in a general manner to the production and marketing of alcoholic beverages, whether or not the latter are covered by the monopoly in question. That being the case, the effect on intra-Community trade of the measure referred to by the national court must be examined solely in relation to the requirements under Article 30, as referred to by the first question. 8 In the absence of common rules relating to the production and marketing of alcohol — a proposal for a regulation submitted to the Council by the Commission on 7 December 1976 (Official Journal C 309, p. 2) not yet having received the Council’s approval — it is for the Member States to regulate all matters relating to the production and marketing of alcohol and alcoholic beverages on their own territory. Obstacles to movement within the Community resulting from disparities between the national laws relating to the marketing of the products in question must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer. 9 The Government of the Federal Republic of Germany, intervening in the proceedings, put forward various arguments which, in its view, justify the application of provisions relating to the minimum alcohol content of alcoholic beverages, adducing considerations relating on the one hand to the protection of public health and on the other to the protection of the consumer against unfair commercial practices. 10 As regards the protection of public health the German Government states that the purpose of the fixing of minimum alcohol contents by national legislation is to avoid the proliferation of alcoholic beverages on the national market, in particular alcoholic beverages with a low alcohol content, since, in its view, such products may more easily induce a tolerance towards alcohol than more highly alcoholic beverages. 10 11 Such considerations are not decisive since the consumer can obtain on the market an extremely wide range of weakly or moderately alcoholic products and furthermore a large proportion of alcoholic beverages with a high alcohol content freely sold on the German market is generally consumed in a diluted form. 12 The German Government also claims that the fixing of a lower limit for the alcohol content of certain liqueurs is designed to protect the consumer against unfair practices on the part of producers and distributors of alcoholic beverages. This argument is based on the consideration that the lowering of the alcohol content secures a competitive advantage in relation to beverages with a higher alcohol content, since alcohol constitutes by far the most expensive constituent of beverages by reason of the high rate of tax to which it is subject. Furthermore, according to the German Government, to allow alcoholic products into free circulation wherever, as regards their alcohol content, they comply with the rules laid down in the country of production would have the effect of imposing as a common standard within the Community the lowest alcohol content permitted in any of the Member States, and even of rendering any requirements in this field inoperative since a lower limit of this nature is foreign to the rules of several Member States. 13 As the Commission rightly observed, the fixing of limits in relation to the alcohol content of beverages may lead to the standardization of products placed on the market and of their designations, in the interests of a greater transparency of commercial transactions and offers for sale to the public. However, this line of argument cannot be taken so far as to regard the mandatory fixing of minimum alcohol contents as being an essential guarantee of the fairness of commercial transactions, since it is a simple matter to ensure that suitable information is conveyed to the purchaser by requiring the display of an indication of origin and of the alcohol content on the packaging of products. 14 It is clear from the foregoing that the requirements relating to the minimum alcohol content of alcoholic beverages do not serve a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods, which constitutes one of the fundamental rules of the Community. In practice, the principle effect of requirements of this nature is to promote alcoholic beverages having a high alcohol content by excluding from the national market products of other Member States which do not answer that description. It therefore appears that the unilateral requirement imposed by the rules of a Member State of a minimum alcohol content for the purposes of the sale of alcoholic beverages constitutes an obstacle to trade which is incompatible with the provisions of Article 30 of the Treaty. There is therefore no valid reason why, provided that they have been lawfully produced and marketed in one of the Member States, alcoholic beverages should not be introduced into any other Member State; the sale of such products may not be subject to a legal prohibition on the marketing of beverages with an alcohol content lower than the limit set by the national rules. 15 Consequently, the first question should be answered to the effect that the concept of “measures having an effect equivalent to quantitative restrictions on imports” contained in Article 30 of the Treaty is to be understood to mean that the fixing of a minimum alcohol content for alcoholic beverages intended for human consumption by the legislation of a Member State also falls within the prohibition laid down in that provision where the importation of alcoholic beverages lawfully produced and marketed in another Member State is concerned. … On those grounds, THE COURT, in answer to the questions referred to it by the Hessisches Finanzgericht by order of 28 April 1978, hereby rules: The concept of “measures having an effect equivalent to quantitative restrictions on imports” contained in Article 30 of the EEC Treaty is to be understood to mean that the fixing of a minimum alcohol content for alcoholic beverages intended for human consumption by the legislation of a Member State also falls within the prohibition laid down in that provision where the importation of alcoholic beverages lawfully produced and marketed in another Member State is concerned. 11 C-267/91 and C-268/91 Criminal proceedings against Bernard Keck and Daniel Mithouard – „Keck“ Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Concept — Obstacles to trade resulting from disparities between national legislation laying down requirements to be met by goods — Included — Obstacles resulting from national provisions regulating selling arrangements in a non- discriminatory way — Inapplicability of Article 30 of the Treaty — Legislation prohibiting resale at a loss (EEC Treaty, Art. 30) NB: Article 30 of the EEC Treaty is now Article 34 TFEU REPORT FOR THE HEARING in Joined Cases C-267/91 and C-268/91 * I — Facts A — Legislative background … B — Background to the dispute 2. According to the orders for reference, towards the end of 1989 officials of the French Directorate for Competition and the Prevention of Fraud drew up a report in which they found that litre bottles of ‘Picon Bière’ (21 % vol) and ‘Sati Rouge’ coffee were being sold at a loss at ‘Hypermarché CORA SA’ at Mundolsheim (France) and ‘Hypermarché Rond Point COOP’ at Geispolsheim (France) respectively. 3. On the basis of those reports the Procureur de la Republique (Public Prosecutor) brought a prosecution against each of the managers of the two hypermarkets on the grounds that, at Mundolsheim, from 3 November 1989 to 10 November 1989 they resold in an unaltered state 1 264 bottles of ‘Picon Bière’ at the unit price of FF 44.35, namely a unit price which was lower than the actual purchase price of FF 48.27, including taxes, when the limit fixed for resale at a loss was FF 46.222, and from 15 to 17 December 1989 at Geispolsheim resold 544 kg of ‘Sati Rouge’ coffee in an unaltered state at a price lower than the actual purchase price by selling batches of four 250 gramme packets at FF 20 when the actual purchase price per kilogramme was FF 25.132. 4. Before the Tribunal de Grande Instance, Strasbourg, the accused stated, in particular, that the prohibition of resale at a loss is: — contrary to Article 30 of the EEC Treaty, — liable, under certain conditions, to fall within the scope of Article 85 of that treaty, — incompatible with the principles of the free movement of persons, services, and capital, establishment of free competition, of non-discrimination and more particularly with Articles 3 and 7 of the Treaty, because, firstly, the prohibition makes only resale at a loss an offence and exempts from the scope of the prohibition the manufacturer, who is free to sell on the market the product which he manufactures, processes or improves and, secondly, it distorts competition, especially in a frontier zone, between traders on the basis of their nationality and place of establishment. C — The preliminary questions 5. By the judgments of 27 June 1991 the Tribunal de Grande Instance decided to stay the proceedings and refer the following two identical questions to the Court of Justice for a preliminary ruling: ‘Is the prohibition in France of resale at a loss under Article 32 of Order No 86-1243 of 1 December 1986 compatible with the principles of the free movement of goods, services and capital, free competition in the Common Market and non-discrimination on grounds of nationality laid down in the Treaty of 25 March 1957 establishing the EEC, and more particularly Articles 3 and 7 thereof, since the French legislation is liable to distort competition: (a) firstly, because it makes only resale at a loss an offence and exempts from the scope of the prohibition the manufacturer, who is free to sell on the market the product which he manufactures, processes or improves, even very slightly, at a price lower than his cost price; (b) secondly, in that it distorts competition, especially in frontier zones, between the various traders on the basis of their nationality and place of establishment?’ 6. The grounds of the orders for reference shows that the Tribunal de Grande Instance has considered the question of the compatibility of the prohibition of resale at a loss with the provisions of the Treaty even though, prima facie, 12 the prohibition of resale at a loss, laid down by the national legislature, may appear justified by the double aim of protecting the consumer and regulating healthy and fair competition. II — Procedure … III — Summary of the written observations submitted to the Court 13. The accused in the main proceedings first of all describe the French legislation concerning the prohibition of resale at a loss, and then go on to observe that it is not applicable to operations carried out by manufacturers, industrialists or craftsmen on the products that they manufacture. They add that, since the offence of resale at a loss is committed when the selling price of the product is lower than the purchase price, those prices should be clearly defined. Those prices are difficult to define and French courts have not yet made all their components clear. Finally, the exemptions from the prohibition of resale at a loss are not readily ascertainable or easily applied. In conclusion, the accused in the main proceedings consider that the sanctions introduced by France are superficial, complicated, in places ambiguous and in any event unique in the Community. 14. The accused in the main proceedings then claim that the French legislation prohibiting resale at a loss constitutes a measure having equivalent effect within the meaning of Article 30 of the Treaty. The first definition of a measure having an effect equivalent to a quantitative restriction was given by the Commission in Article 3 of Directive 70/50/EEC of 22 December 1969, based on the provisions of Article 33(7) of the Treaty, on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty (Official Journal, English Special Edition 1970 (I), p. 17). In its case-law (see in particular the judgments in Cases 8/74 Procureur du Roi v Dassonville ECR 837, 120/78 REWE v Bundesmonopolverwaltung fur Branntwein (‘Cassis de Dijon’) ECR 649, 193/80 Commission v Italy ECR 3019, 174/82 Sandoz ECR 2445) the Court defined in broad terms the concept of a measure having equivalent effect by stating, firstly, that in the absence of common rules on the production and marketing of the product at issue to replace divergent national rules, Member States retain the power to regulate everything relating to the production, distribution and consumption of the product and, secondly, that the restrictions resulting from disparities between the national laws relating to the marketing of products, where the national measure is applied without distinction to domestic and imported products, must be accepted only in so far as those provisions may be recognized as being necessary in order to satisfy imperative requirements of consumer protection, the protection of public health and the environment and fair trading. The accused in the main proceedings consider that the French legislation prohibiting resale at a loss constitutes a measure applicable without distinction to domestic and imported products and having disproportionate restrictive effects. The Court has not balked at bringing that type of commercial legislation within the scope of Article 30 of the Treaty. In that respect, the accused in the main proceedings refer to the judgments in Cases 286/81 Oosthoek’s Uitgeversmaatschappij ECR 4575, 382/87 Buet and Another v Ministère Public ECR 1235, C- 145/88 Torfaen Borough Council v B&Q ECR 3851 and 312/89 Conforama and Others ECR I- 1021. The fact that the events giving rise to the present cases took place in a frontier zone bordering on the Federal Republic of Germany, where resale at a loss is not prohibited, serves to demonstrate that a foreign trader hesitates to establish himself in France where he must renounce an efficient and proven marketing technique for acquiring and retaining new customers. That prohibition thus protects French traders from foreign competition on prices which would be of benefit to the consumer. The dissuasive nature of the prohibition of resale at a loss with respect to foreign producers is made all the more acute owing to the fact that it only applies to resale and that most foreign traders are resellers. Furthermore, a foreign trader must, if he were to establish himself in France, familiarize himself with the changes in French case-law relating to the prohibition of resale at a loss. Moreover, he could be discouraged by the subtleties of the legislation at issue and its application by the courts. The accused in the main proceedings conclude that the prohibition of the resale at a loss affects the marketing of a product and, therefore, comes within the scope of Article 30 the Treaty. 15. Finally, the accused in the main proceedings consider that the barriers to trade created by the prohibition of resale at a loss cannot be justified by imperative requirements. Among the imperative requirements laid down by the Court only consumer protection and fair trading can be invoked in the present cases. 13 It is difficult to see in what way the consumer, whose interest lies in obtaining the best price, is protected by the prohibition of resale at a loss. Such resale lowers prices. Consumer protection, if such were Judged necessary in relation to resale at a loss, could be achieved, for example, by means of suitable labelling. In that respect, to make the prohibition of resale at a loss an offence is disproportionate. In that context, the accused in the main proceedings refer to the judgments in Cases 94/82 De Kikvorsch ECR 947, 274/87 Commission v Germany ECR 229 and C-362/88 GB-INNO-BM ECR I-667. Neither does fair trading justify prohibition of resale at a loss. Indeed, the trader cannot afford the luxury, at the risk of being forced out of the market, of reselling permanently and massively at a loss. Resale at a loss can only be seen as a specific commercial promotion strategy analogous to sale at cost, which is authorized in France. Fair trading would not be jeopardized by resale at a loss. On the contrary, the facts show that prohibition of this form of sale has led to reprehensible price-freezing practices arising from the contractually imposed obligation not to resell at a loss, breach of which entailed the loss of a rebate due at the end of the financial year, which was only definitively acquired at the end of the year and on condition that the distributor did not resell at a loss. Finally, the accused in the main proceedings consider that the alleged imperative requirements justifying the prohibition of resale at a loss are already seriously put in doubt by the exceptions to that prohibition provided for by the French legislation. If resale at a loss were inimical to consumer protection, exception to the alignment would not be justified either. Fair trading is also called into question by the possibility of reselling at a loss where prices are aligned on the prices lawfully charged for the same products by another trader. The exceptions to the prohibition of resale at a loss imply that this type of resale has some positive points. 16. The accused in the main proceedings propose that the question put to the Court be answered as follows: ‘Article 30 of the EEC Treaty is to be interpreted as meaning that it precludes legislation of a Member State which prohibits resale of goods at a loss’. 17. The French Government observes in limine that it is relevant to consider the French legislation prohibiting sales at a loss in the light of the Treaty and not to compare the regime applicable to resellers with that applicable to manufacturers. The fact that a regime is applied to a category of traders in a different situation does not constitute discrimination or a restriction on competition within the meaning of the Treaty. There is no competition between manufacturers and resellers since their economic activity is different. Moreover, the argument to the effect that discrimination on grounds of nationality would be created has no legal basis. Even if other Member States do not prohibit resale at a loss, the fact remains that two traded established in France are subject to the same law irrespective of their nationality. Citing the judgments in Cases 229/83 Leclerc v Au Blé Vert ECR I and 231/83 Cullet v Leclerc ECR 305, and referring to Articles 3 and 7 of the EEC Treaty, mentioned in the preliminary questions, the French Government considers that the compatibility of the French legislation with Article 30 of the Treaty and with the rules of Community competition law should be examined. 18. According to the French Government, the prohibition in France of resale at a loss does not constitute a measure having an effect equivalent to a quantitative restriction. In the light of the definition given of such a measure at paragraph 5 of the judgment in Dassonville, above, and having regard to Article 3 of Directive 70/50/EEC, above, the French Government points out that the prohibition on resale at a loss applies without distinction to domestic and imported products and does not prescribe a definite amount for the sale of a product but lays down only a principle applicable when the rice of the product is determined. Such legislation does not undermine the comparative advantage of an imported product which is cheaper than a domestic product; conversely, it does not fix maximum prices rendering it impossible to market in France a product imported at a high price or burdened with the cost of transport and packaging. Furthermore, the Court stated in its judgment in Case 82/77 Openbaar Ministerie of the Netherlands v Van Tiggele ECR 25 that legislation prohibiting resale at a loss was compatible with Article 30. 19. According to the French Government, the prohibition of resale at a loss does not conflict with the competition rules laid down in the Treaty despite the fact that, in the present state of Community law and in the absence of Community harmonization of commercial legislation, some distortion may occur within the limited area of frontier zones. Although the competition rules laid down in the Treaty and in the measures implementing it are applicable to national legislation (see the judgment in Case 231/83, above), the prohibition of resale at a loss does not have as its aim or object to restrict competition. Rather, such a prohibition preserves fair trading by combatting an unfair 14 competitive practice. Such a trading practice could enable a trader to corner a market and acquire artificially a body of customers and, once that objective was attained, to sell at the normal price or even higher. Moreover, the loss sustained by the trader would be compensated by the margins on other products. As the present case before the Court shows, the prohibition of resale at a loss may create distortions in frontier zones between French distributors and the distributors of the neighbouring country where resale at a loss is permitted. Although it is difficult to quantify the detrimental effect, it does not seem to the French Government that such distortion can exert any influence on the patterns of infra-Community trade. The French Government points out that it is consistent case-law that there has to be an appreciable effect on intra-Community trade before the Court will, on the basis of the provisions of the Treaty concerning competition, find fault with a legislative provision. 20. In conclusion, the French Government requests the Court to state, in reply to the question referred by the national court, that legislation prohibiting resale at a loss is compatible with the principles laid down in the Treaty of Rome both as regards the provisions relating to competition within the Common Market and as regards those relating to the free movement of goods and to non-discrimination on grounds of nationality. 21. The Hellenic Republic states that national legislation which prohibits resale at a loss without introducing discrimination on the basis of the origin of the products or the nationality of the trader is compatible, in principle, with Article 3(f), the second paragraph of Article 5, Articles 7, 30 and 85 of the Treaty. As regards Article 30 of the Treaty, the Court has already held that a national provision which prohibits without distinction the retail sale of domestic and imported products at prices below the purchase price paid by the retailer cannot adversely affect the marketing solely of imported products and cannot, consequently, constitute a measure having an effect equivalent to quantitative restrictions on imports (judgments in Case 65/75 Tasca ECR 291; Van Tiggele, above; Cases 16-20/79 Joseph Danis ECR 3327; Case 78/82 Commission v Italy ECR 1955). As regards the principle of non-discrimination laid down in Article 7, the Court has recognized that that provision is not infringed by rules whose application is determined not by the nationality of traders but by their place of establishment. Nor may the application of national legislation regarded as contrary to the principle of non- discrimination merely because other Member States apply less stringent provisions or the legislation in point affects more generally the competitiveness of traders who are subject to it. Moreover, Member States are under a duty not to prejudice by means of national legislation the practical effects of the competition rules applicable to undertakings (see the judgment in Case 231/83, above). A system of price control which does not fix a single minimum price for a product but takes account in general of the purchase price paid in each case by the retailer, according to the rules of the market and of competition, in order to fix the lowest permissible resale price cannot in itself be regarded as a measure which is intended or is liable to encourage, or actually encourages, agreements, decisions or concerted practices between undertakings in circumstances contrary to Article 85 of the Treaty. 22. The Government of the Hellenic Republic states, however, that legislation prohibiting resale at a loss may, under certain conditions, be incompatible with Community law by reason of the fact that it excludes manufacturers from its scope of application. The question of the impact of the legislation in question on the Community legal system might arise if it were in fact capable of influencing the pattern of exports from other Member States. According to the orders for reference, it is established that the national legislation at issue distorts competition. However, it is not made clear in what way that distortion is created so as to make it possible to verify whether it concerns questions of Community interest and whether the measure in question is liable to distort competition or has an equivalent effect to a quantitative restriction. It is for the national court to find whether there is such an effect resulting from the application of the legislation referred to in the preliminary questions. Thus, under certain conditions, the national measure, which provides for differentiated treatment as between manufacturers and retailers in relation to the selling price of products, might possibly constitute a measure having an effect equivalent to a quantitative restriction. 23. In conclusion, the Hellenic Republic proposes that the questions referred for a preliminary ruling be answered as follows: 15  ‘National legislation such as that described by the national court may be considered incompatible with the provisions of Article 30 of the Treaty concerning quantitative restrictions and, possibly, with the rules on competition in Article 85 in so far as in a particular case it is found that the conditions for the application of the Community provisions in question are satisfied. It is for the national court to find whether those conditions are met.’ 24. The Commission observes, first of all, that the articles of the Treaty relating to freedom of movement for workers, freedom of establishment and freedom to provide services within the Community do not fall to be applied in any form in the context of the prohibition of resale at a loss. Nor is that prohibition liable to favour agreements between undertakings and Articles 85 and 86 do not, as a result, preclude the application of such a prohibition. The disparities existing in frontier zones as a result of different national legal systems likewise cannot be reviewed from the point of view of the prohibition of discrimination on grounds of nationality laid down in Article 7 of the Treaty. 25. The Commission then points out that the Court has jurisdiction to furnish the national court with all factors relating to the interpretation of Community law which may prove to be useful for the purpose of deciding the dispute, and thus to take into account provisions of Community law to which the national court has not referred in its question. 26. In this respect the Commission considers that, in the light of the case-law of the Court (see the judgments in Case C-362/88, Case 382/87, Case 286/81 and 8/74, above), prohibition of resale at a loss may constitute an obstacle to the importation of goods from other Member States, in so far as a trader wishing to use that marketing strategy to publicize or promote a product will find himself obliged to renounce a method which he considers to be effective. 27. The Commission adds that the prohibition of resale at a loss, as a measure applicable without distinction to domestic and imported products, may be justified, in the absence of Community rules, if it is necessary in order to satisfy imperative requirements in conformity with public-interest objectives pursued by the Treaty and where the barriers to trade do not appear excessive in relation to the objective which it is sought to attain. The fact that the prohibition does not apply at the stage of manufacture does not mean that that legislation is not applied without distinction since it concerns two different situations at two successive stages of the economic process, and since that differentiated treatment is not based on the origin of the product or the trader, but on the difference which exists between the production stage and the marketing stage. One of the reasons for the prohibition of resale at a loss is its incompatibility with the establishment of healthy competition and the absence of any real advantage for consumers as a whole, as the loss is offset by the margins on other products. 28. However, in the opinion of the Commission, neither consumer protection nor fair trading may justify the prohibition of resale at a loss. It is indeed not certain that the trader would recover the loss by the margins on other products. On the other hand, the consumer could find an obvious economic advantage in profiting from such sales at low prices, and it is not established that the consumer is misled by the fact that the fall in price of one product could possibly be offset by an increase in the prices of other products, as the consumer is in a position to compare the price of products charged by different traders. In any event, if such a risk were established, an answer to it could be found by means less restrictive of the free movement of goods, and consisting in an obligation to give the consumer sufficient information about the conditions of resale at a loss. Nor would fair trading be jeopardized by resale at a loss. Thus, a trader could choose, on logical economic grounds, to penetrate a given market by charging temporarily prices with no profit margin, but which would allow him to publicize himself and from which he would reap long-term benefits to compensate for the early losses. Likewise, a distributor could choose to base his strategy on the sale of a product at a low price, if that would allow him to make an overall profit. Resale at a loss is only contrary to fair trading if it is carried out in the context of anti- competitive practices. 29. In conclusion, the Commission proposes that the Court give the following answers to the questions raised: ‘(1) Articles 3(f), 7, 48, 52, 58, 59, 60, 85 and 86 of the EEC Treaty must be interpreted as meaning that they do not preclude the application of national legislation prohibiting traders from reselling a product in an unaltered state at a price lower than its purchase price. 16  (2) Articles 30 and 36 of the EEC Treaty must be interpreted as meaning that they preclude the application to goods imported from another Member State of national legislation prohibiting traders from reselling a product in an unaltered state at a price lower than its purchase price.’ JUDGMENT OF THE COURT 24 November 1993 * In Joined Cases C-267/91 and C-268/91, REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Grande Instance (Regional Court), Strasbourg (France), for a preliminary ruling in the criminal proceedings pending before that court against Bernard Keck and Daniel Mithouard, on the interpretation of the rules of the EEC Treaty relating to competition and freedom of movement within the Community, […] gives the following Judgment 1 By two judgments of 27 June 1991, received at the Court on 16 October 1991, the Tribunal de Grande Instance, Strasbourg, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of the rules of the Treaty concerning competition and freedom of movement within the Community. 2 Those questions were raised in connection with criminal proceedings brought against Mr Keck and Mr Mithouard, who are being prosecuted for reselling products in an unaltered state at prices lower than their actual purchase price (‘resale at a loss’), contrary to Article 1 of French Law No 63-628 of 2 July 1963, as amended by Article 32 of Order No 86-1243 of 1 December 1986. 3 In their defence Mr Keck and Mr Mithouard contended that a general prohibition on resale at a loss, as laid down by those provisions, is incompatible with Article 30 of the Treaty and with the principles of the free movement of persons, services, capital and free competition within the Community. 4 The Tribunal de Grande Instance, taking the view that it required an interpretation of certain provisions of Community law, stayed both sets of proceedings and referred the following question to the Court for a preliminary ruling: ‘Is the prohibition in France of resale at a loss under Article 32 of Order No 86-1243 of 1 December 1986 compatible with the principles of the free movement of goods, services and capital, free competition in the Common Market and non-discrimination on grounds of nationality laid down in the Treaty of 25 March 1957 establishing the EEC, and more particularly in Articles 3 and 7 thereof, since the French legislation is liable to distort competition: (a) firstly, because it makes only resale at a loss an offence and exempts from the scope of the prohibition the manufacturer, who is free to sell on the market the product which he manufactures, processes or improves, even very slightly, at a price lower than his cost price; (b) secondly, in that it distorts competition, especially in frontier zones, between the various traders on the basis of their nationality and place of establishment?’ 5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. 6 It should be noted at the outset that the provisions of the Treaty relating to free movement of persons, services and capital within the Community have no bearing on a general prohibition of resale at a loss, which is concerned with the marketing of goods. Those provisions are therefore of no relevance to the issue in the main proceedings. 17 7 Next, as regards the principle of non-discrimination laid down in Article 7 of the Treaty, it appears from the orders for reference that the national court questions the compatibility with that provision of the prohibition of resale at a loss, in that undertakings subject to it may be placed at a disadvantage vis-à-vis competitors in Member States where resale at a loss is permitted. 8 However, the fact that undertakings selling in different Member States are subject to different legislative provisions, some prohibiting and some permitting resale at a loss, does not constitute discrimination for the purposes of Article 7 of the Treaty. The national legislation at issue in the main proceedings applies to any sales activity carried out within the national territory, regardless of the nationality of those engaged in it (see the judgment in Case 308/86 Ministère Public v Lambert ECR 4369). 9 Finally, it appears from the question submitted for a preliminary ruling that the national court seeks guidance as to the possible anti-competitive effects of the rules in question by reference exclusively to the foundations of the Community set out in Article 3 of the Treaty, without however making specific reference to any of the implementing rules of the Treaty in the field of competition. 10 In these circumstances, having regard to the written and oral argument presented to the Court, and with a view to giving a useful reply to the referring court, the appropriate course is to look at the prohibition of resale at a loss from the perspective of the free movement of goods. 11 By virtue of Article 30, quantitative restrictions on imports and all measures having equivalent effect are prohibited between Member States. The Court has consistently held that any measure which is capable of directly or indirectly, actually or potentially, hindering intra-Community trade constitutes a measure having equivalent effect to a quantitative restriction. 12 National legislation imposing a general prohibition on resale at a loss is not designed to regulate trade in goods between Member States. 13 Such legislation may, admittedly, restrict the volume of sales, and hence the volume of sales of products from other Member States, in so far as it deprives traders of a method of sales promotion. But the question remains whether such a possibility is sufficient to characterize the legislation in question as a measure having equivalent effect to a quantitative restriction on imports. 14 In view of the increasing tendency of traders to invoke Article 30 of the Treaty as a means of challenging any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other Member States, the Court considers it necessary to re-examine and clarify its case-law on this matter. 15 It is established by the case-law beginning with ‘Cassis de Dijon’ (Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein ECR 649) that, in the absence of harmonization of legislation, obstacles to 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 (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article 30. This is so even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking precedence over the free movement of goods. 16 By contrast, contrary to what has previously been decided, 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 within the meaning of the Dassonville judgment (Case 8/74 ECR 837), 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. 17 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. Such rules therefore fall outside the scope of Article 30 of the Treaty. 18 18 Accordingly, the reply to be given to the national court is that Article 30 of the EEC Treaty is to be interpreted as not applying to legislation of a Member State imposing a general prohibition on resale at a loss. […] On those grounds, THE COURT, in answer to the questions referred to it by the Tribunal de Grande Instance, Strasbourg, by two judgments of 27 June 1991, hereby rules: Article 30 of the EEC Treaty is to be interpreted as not applying to legislation of a Member State imposing a general prohibition on resale at a loss. C-213/96 – Outokumpu Excise duty on electricity - Rates of duty varying according to the method of producing electricity of domestic origin - Flat rate for imported electricity. NB: Articles 9, 12 and 95 of the EC Treaty refer to Article 28, 30 and 110 TFEU; Article 177 of the EC Treaty is now Article 267 TFEU Judgment … 13. Outokumpu has imported electricity from Sweden since 1 November 1995 undera contract with the Swedish company Vattenfall AB. 14. The first supplies were delivered, on an experimental basis, from 18 September to9 October 1995. For that trial supply, Outokumpu submitted on 17 October 1995a tax declaration for September 1995 to the District Customs Office. In a coveringletter with that declaration, Outokumpu stated that in its opinion the levying ofelectricity duty on those imports was contrary to Articles 12 and 13 of the ECTreaty, with the result that no duty was payable. 15. On 23 October 1995 the District Customs Office decided that under Paragraph 4of Law No 1473/94 Outokumpu was liable to pay electricity duty of 1.3 p/kWh +0.9 p/kWh, in accordance with the tax table for imported electricity. 16. Outokumpu instituted proceedings before the Uudenmaan Lääninoikeus forannulment of the decision of the Helsinki District Customs Office on the groundthat the excise duty on electricity was a charge having equivalent effect to acustoms duty, prohibited by Articles 9 and 12 of the Treaty. Outokumpu submitted,in the alternative, that a duty of that kind was discriminatory under Article 95 ofthe Treaty, and asked for it to be reduced to the lowest level of duty on electricityproduced in Finland, namely 0 p/kWh, the rate applicable to exempted electricityor electricity falling outside the scope of Law No 1473/94. 17. Since it considered that the outcome of the case before it depended on theinterpretation of Articles 9, 12 and 95 of the Treaty, the national court stayed proceedings and referred the following questions to the Court for a preliminary ruling: 'Under Finnish national legislation on the taxation of energy, excise duty onelectricity is levied in Finland on electrical energy produced there, the amount ofthe duty depending on the method of production of the electricity. On electricityproduced by nuclear power, the excise duty charged is a basic duty of 1.5 p/kWhand an additional duty of 0.9 p/kWh. On electricity produced by water power, theexcise duty charged is only an additional duty of 0.4 p/kWh. On electricity producedby other methods, for example from coal, excise duty is charged on the basis of theamount of input materials used to produce the electricity. On electrical energyproduced by some methods, for example in a generator with an output below twomegavolt-amperes, no excise duty at all is charged. On imported electricity, theexcise duty charged, regardless of the method of production of the electricity, is abasic duty of 1.3 p/kWh and an additional duty of 0.9 p/kWh. The excise duty onelectricity is thus determined with respect to imported electricity on a differentbasis from that applied to electricity produced in Finland. The levying of exciseduties determined on the basis of the method of production of the energy isfounded on environmental grounds in the drafting history of the law. The amountof duty chargeable on imported electricity is not, however, determined on the basisof the method of production of the electricity. The excise duty chargeable onimported electricity is higher than the lowest excise duty chargeable on electricityproduced in Finland, but lower than the highest excise duty chargeable onelectricity produced in Finland. The excise duty on imported electricity is levied onthe importer, whereas the excise duty relating to electricity produced in Finland islevied on the electricity producer. 19 1. Is excise duty on electricity, determined for imported electricity in the mannerdescribed above, to be regarded as a charge having equivalent effect to a customsduty, within the meaning of Articles 9 and 12 of the EC Treaty? 2. If it is not a charge having equivalent effect to a customs duty, is excise duty onelectricity, determined for imported electricity in the manner described above, tobe regarded as a tax which discriminates against imports from other MemberStates, within the meaning of Article 95 of the EC Treaty?‘ 18. By those questions, which should be examined together, the national court seeksa ruling from the Court on the classification from the point of view of Articles 9,12 and 95 of the Treaty, and if appropriate on the compatibility with thoseprovisions, of an excise duty which is levied on electricity of domestic origin at rateswhich vary according to its method of production, while being levied on importedelectricity at a flat rate which is higher than the lowest rate but lower than thehighest rate applicable to electricity of domestic origin. 19. As regards classification, the Court has consistently held (see, inter alia, CaseC-90/94 Haahr Petroleum v Åbenrå Havn and Others ECR I-4085, paragraph19) that provisions relating to charges having equivalent effect and those relatingto discriminatory internal taxation cannot be applied together, so that under thesystem established by the Treaty the same charge cannot belong to both categoriesat the same time. 20. The Court has also consistently held (see, inter alia, Haahr Petroleum, paragraph20) that any pecuniary charge, whatever its designation and mode of application,which is imposed unilaterally on goods by reason of the fact that they cross afrontier, and which is not a customs duty in the strict sense, constitutes a chargehaving equivalent effect within the meaning of Articles 9, 12, 13 and 16 of the ECTreaty. However, such a charge may not be so characterised if it forms part of ageneral system of internal dues applying systematically to categories of productsaccording to objective criteria applied without regard to the origin of the products,in which case it falls within the scope of Article 95 of the Treaty. 21. The first point to note is that a duty of the kind at issue in the main proceedingsforms part of a general system of taxation which is levied not only on electricalenergy as such but also on several primary energy sources such as coal products,peat, natural gas and pine oil. 22. Second, both imported electricity and electricity of domestic origin form part of thesame tax system and the duty is levied by the same authorities, whatever the originof the electricity, under procedures governed by the general legislation on exciseduties. 23. Third, with the exception of electricity of domestic origin produced in generatorswith an output below two megavolt-amperes and of that produced in smallquantities from peat, the duty is levied on electricity, whatever its origin, whetherdomestic or imported. In those circumstances, the fact that in the case of importedelectricity the duty is payable by the importer on importation does not provide asufficient basis for the conclusion that it is imposed on the goods concerned byreason of the fact that they cross the frontier. 24. Outokumpu observes, however, that according to the Court's case-law (see, inparticular, Case 132/78 Denkavit Loire v France ECR 1923, paragraph 8), inorder to form part of a general system of internal dues, the charge imposed onimported products must be imposed on domestic products and imported productsat the same marketing stage and the chargeable event must be identical for bothclasses of products. 25. On this point, it must be stated that, in circumstances such as those of this case, nodifference may be discerned in the fact that imported electricity is taxed at the timeof importation and electricity of domestic origin at the time of production, since inview of the characteristics of electricity the marketing stage is the same for both operations, namely the stage when the electricity enters the national distributionnetwork (see, to that effect, Joined Cases C-149/91 and C-150/91 Sanders Adourand Guyomarc'h Orthez Nutrition Animale v Directeur des Services Fiscaux desPyrénées-Atlantiques ECR I-3899, paragraph 18). 26. Outokumpu further submits that the duty at issue is not imposed on imported anddomestic products according to the same criteria and without reference to theirorigin. Duty is levied on electricity of domestic origin at different rates dependingon whether it is produced by nuclear or water power, or is taxed only at the levelof the raw materials used or is exempted, whereas imported electricity is taxed, asan end product exclusively, at a flat rate whatever its 20 method of production. Thetaxable amounts and rates of tax thus differ depending on whether the electricityis of domestic origin or imported. 27. The Court has already held that a charge in the form of an internal tax may not beregarded as a charge having equivalent effect to a customs duty unless the detailedrules governing the levying of the charge are such that it is imposed solely onimported products to the exclusion of domestic products (Case 32/80 Officier vanJustitie v Kortmann ECR 251, paragraph 18). As may be seen fromparagraph 23 above, that is not the case of the duty at issue in the mainproceedings. 28. The Court has also held that the fact that the origin of the goods determines theamount of the duty to be levied cannot remove it from the scope of Article 95 ofthe Treaty (Haahr Petroleum, paragraph 25). 29. Consequently, an excise duty of the kind at issue in the main proceedingsconstitutes internal taxation within the meaning of Article 95 of the Treaty, not acharge having equivalent effect to a customs duty within the meaning of Articles9 and 12. 30. As regards the compatibility of such a duty with Article 95 of the Treaty, it issettled case-law, first, that in its present state of development Community law doesnot restrict the freedom of each Member State to establish a tax system whichdifferentiates between certain products, even products which are similar within themeaning of the first paragraph of Article 95 of the Treaty, on the basis of objectivecriteria, such as the nature of the raw materials used or the production processesemployed. Such differentiation is compatible with Community law, however, onlyif it pursues objectives which are themselves compatible with the requirements ofthe Treaty and its secondary legislation, and if the detailed rules are such as toavoid any form of discrimination, direct or indirect, against imports from otherMember States or any form of protection of competing domestic products. 31. Article 95 of the Treaty therefore does not preclude the rate of an i