C-53/76

The expression 'quantitative restrictions or a standards certificate which is issued on exports and any measures having in place of such licence and may be equivalent effect' contained in Article 34 refused if the quality does not conform of the EEC Treaty must be understood as to certain standards laid down by the applying to rules adopted by a Member body issuing the said certificate, even if State which require in respect only of the such certificate does not give rise to the export of certain goods either a licence imposition of a charge.

In Case 53/76

Reference to the Court under Article 177 of the EEC Treaty by the Tribunal Correctionnel (Criminal Court) of Besançon, for a preliminary ruling in the action pending before that court between

PROCUREUR DE LA REPUBLIQUE (Public Prosecutor), Besançon,

and

BOUHELIER AND OTHERS, residing in the Département of Doubs,

gives the following

JUDGMENT

Facts

The judgment referring the case and the Technical Centres shall be provided written observations submitted under principally by compulsory contributions Article 20 of the Protocol on the Statute from undertakings pursuing an activity in of the Court of Justice of the EEC may the sector in question. be summarized as follows: Within the framework of that law, the Technical Centre for the watch- and I — Facts and procedure clock-making industry was transformed by a Joint Ministerial Decree of 22 April 1. A system of rules has been adopted 1949 into a Technical Centre for in France which governs the quality Industry (Cetehor), a public utility inspection of certain types of watches institution for whose benefit a Decree of intended for export. 21 September 1966 introduced a parafiscal charge calculated on the basis Law No 441228 of 22 July 1948 fixed of the price of blanks and the price of the constitution of the Technical Centres watches and movements, whether or not for Industry — replacing that fixed by a intended for export. provisional Law of 17 November 1943 — whose purpose is the encouragement of The principal task of the public utility technical progress, collaboration in institution in question is to guarantee the improving output and in guaranteeing quality of the products exported by the high standards of quality in the industry. watch- and clock-making industry. To Article 1 of that law provides that 'in any this end it examines samples of sector of activity where the need appears consignments of pressed lever watches ... public utility institutions known as and movements of French manufacture Technical Centres for Industry' may be intended for export to check that they established by decree of the Ministers for conform with certain quality standards. Finance, Economic Affairs, Industry and As a general rule, when such Commerce. Article 8 of the same law examinations are carried out — the provides that the funds of these process does not normally take more

Before the Tribunal Correctionnel the The Tribunal finds that before reaching Ministère Public accused Claude any decision in either the criminal or the civil proceedings it is necessary to refer Bouhelier, Charles Girardet and Rémy the matter to the Court of Justice of the Zimmermann of forgery, the uttering of European Communities for a preliminary forged documents and customs offences ruling in order to determine whether the and Bernard Thiery of customs offences. The first three named are accused of words 'quantitative restrictions on exports and any measures having equivalent having forged the Cetehor certificates by effect' contained in Article 34 of the adding a '0' or another figure to the EEC Treaty must be understood as also figure '4' originally appearing thereon applying to the legal rules of a Member and of having subsequently exported from the franc area under cover of the State which require in respect of the export of certain goods either a licence forged standards certificates a large or a standards certificate in place of such quantity of lever escapement watches and watch movements which had not been licence, where such certificate does not give rise to the imposition of a charge inspected or did not correspond to the and may be refused if the quality does descriptions given in the relevant not conform to certain standards laid certificate. down by the body issuing the certificate in substitution for the licence. 3. The accused have admitted the facts but claim that they do not constitute criminal offences. They requested the The Tribunal ordered a copy of the Tribunal Correctionnel, Besançon, to judgment to be sent to the Registrar of release them and referred in support of the Court of Justice. The decision their request to Articles 34 and 36 of the referring the matter was received at the EEC Treaty and to the restrictive Court Registry and was registered on 28 interpretation of the exceptions June 1976.

Written observations were submitted will enable them, if necessary, to bring under Article 20 of the Protocol on the proceedings against the French Republic Statute of the Court of Justice by the to establish a failure to take action in three accused in the main action relation to the provisions concerning the (Bouhelier, Girardet and Zimmermann), export of lever escapement watches and the Commission of the European watch movements. The Commission sets Communities and the Government of out the content and the scope of the the French Republic. French legislation whose application is

1. Bouhelier and the other accused in clock-making industry in external the main action submit that the Court markets by means of a guarantee of should rule that the provisions of the quality. Code General des Impôts Français (French General Tax Code), which As regards the legal principles applicable, require the production of an export the Commission maintains that any licence for lever watches, are contrary to national rules which make exports to the provisions of the Treaty of Rome. other Member States dependent upon production to the customs authorities of The export of lever escapement watches either a licence or a standards certificate is not covered by any of the types of constitute a direct or indirect, actual or exception provided for in Article 36 of potential, obstacle to trade within the the EEC Treaty.

The judgment of 20 any other similar procedure'. The February 1975 in Commission of the provision of French law which requires European Communities v Federal the production of a licence or, where Republic of Germany (Case 12/74 [1975] appropriate, of a Cetehor certificate, ECR 181) indicates that if a provision constitutes such a provision. could constitute an obstacle to the free movement of goods that is sufficient for 2. The Commission refers to the facts it to be regarded as actually doing so. and the procedure and emphasizes that, The argument put forward by the French while the procedure is taking place, its Customs in this instance that the departments are preparing a file which application of the rules in dispute have

argument is merely conjectural. reason, quality standards which are imposed only on exports to other The Commission then raises the Member States are a fortiori excluded. question whether the requirement of a licence or a standards certificate falls On the basis of the foregoing sub­ within the area of sovereignty retained by missions the Commission suggests that the Member States. It maintains that, in the following answer be given to the considering that question, the two question referred by the Tribunal elements of the choice (the obligation to Correctionnel, Besançon: obtain a licence or a Cetehor certificate) cannot be separated. In fact, the quality 'Apart from the exceptions for which inspection inherent in the issue of one or provision is made by Community law the other of those documents enables the itself, Article 34 of the Treaty precludes reputation of the national products to be the application to intra-Community trade enhanced. However, the Commission of a national provision which requires, maintains that such a requirement is even as a pure formality, import or incompatible with Community law. export licences or any other similar procedure. In fact, there is discrimination between the products intended for export and For a Member State to subject the export those intended for the internal market to other Member States of specific goods and as a result the reputation for high produced within its territory to the issue quality does not apply to all the goods of a certificate showing conformity with produced in the Member States in certain quality standards, without any question: such certificate being required for the same goods to be marketed within the Member State where they are produced, An ordinary optional guarantee label constitutes a measure having effect would enable the quality of certain equivalent to a quantitative restriction on products to be indicated without exports prohibited by Article 34 of the adversely affecting the free movement of Treaty. all the comparable products; Rules adopted by a Member State which However, the fixing of new quality subject the export to other Member standards may enable patterns of trade to States of specific goods not produced be diverted away from certain categories within its territory to the production of a of products and into other channels, similar standards certificate also con­

Government of the French Republic that view is justified by the sales examines the compatibility of those rules statistics produced by the intervening with the Treaty of Rome. It refers to the government; case-law of the Court and the arguments — The quality inspection does not put forward before it by the Commission render exports more difficult, since and Mr Advocate-General Roemer in the the expenses incurred by Cetehor in International Fruit Company case and the inspection and research concludes that quantitative restrictions operations are financed by a levy on are: the total turnover of the undertakings — 'all national measures directly concerned and therefore affect the excluding, totally or partially, the cost prices of the watches whatever import or export of a product on the their destination. The exported basis of numbers or quantities' watches only bear the cost of a — 'all national measures which wholly second inspection in the very rare or in part preclude direct imports (or cases in which the quality is clearly exports) which are not based on unsatisfactory; technical features ... but rather solely — The period of two days required for relate to the number and quantity of the inspection is not excessive in the products in question, order to achieve the aim sought. whilst measures having equivalent effect produce the same effect indirectly as a In conclusion the French Govern­

result of the fact that 'imports or exports ment emphasizes the technical nature of are rendered more difficult or costly in the measures which enable foreign comparison with the marketing of the customers to be given a guarantee of the domestic product'. The effect to be taken quality of the articles offered. The recent into account may only be 'potential'. annual rise which has taken place in the Furthermore, the essential criterion is the export of watches (30 % in value and 'comparability of the effects', whatever 20 % in quantity) is evidence that the designation is given to the process and measures in question have stimulated technique is used. exports.

The parties replied to two questions The Advocate-General delivered his raised by the Advocate-General by opinion at the hearing on 19 January stating, first, that the delays involved in 1977.

Law

1 By judgment dated 19 May 1976, received at the Court Registry on 28 June 1976, the Tribunal Correctionnel, Besançon, referred to the Court of Justice under Article 177 of the EEC Treaty a question concerning the interpretation of Article 34 of the Treaty.

2 The French Law No 48-1228 of 22 July 1948 fixed the legal constitution of the technical centres for industry, the principal purpose of which is to guarantee quality in the industry.

3 A Ministerial Decree of 22 April 1949 adopted in implementation of that law established the technical centre for industry (a public utility institution) known as Cetehor.

4 Among its tasks, Cetehor is required to examine the quality of all lever escapement watches and watch movements intended for export.

9 The question asks, first, whether the requirement of a licence for the export to a Member State of a product manufactured in another Member State constitutes a quantitative restriction on exports or a measure having equivalent effect.

10 Article 34 provides that 'Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States'.

11 The general nature of the principle laid down by that provision, and the interpretation which has already been given to it, mean that in intra-Community trade export licences cannot be required by national legislation, even as factors in a quality inspection.

12 The second part of the question asks whether a quality inspection instituted by a Member State and carrying with it a prohibition on the export of products which do not satisfy the quality standards provided for by the

PROCUREUR DE LA RÉPUBLIQUE v BOUHELIER

national rules may be regarded as a quantitative restriction on exports or a measure having equivalent effect.

JUDGMENT OF 3. 2. 1977 — CASE 53/76

Costs

19 The costs incurred by the Government of the French Republic and the Commission of the European Communities which have submitted observations to the Court are not recoverable.

20 Since the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Tribunal Correctionnel, Besançon, a decision as to costs is a matter for that court.

On those grounds,

THE COURT

President Registrar