C-75/81

on the interpretation of Articles 30 and 36 of the Treaty with regard to the Belgian national legislation prohibiting the stocking and the consumption of spirits of an alcoholic strength exceeding 22° in all places open to the public and in dwellings appurtenant thereto,

THE COURT

composed of: J. Mertens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges,

Advocate General: G. Reischl Registrar: P. Heim

gives the following

BLESGEN v BELGIUM

(a) legislative measures prohibiting I F a c t s and w r i t t e n p r o c e d u r e the consumption, the sale or the offering even without charge of spirits (that is to say drinks The Tribunal Correctionnel [Criminal whose alcoholic strength exceeds Court], Verviers, found Mr Blesgen 22° at a temperature of 15° guilty of infringing Articles 1, 2 and 14 Centigrade) for consumption on of the Law of 29 August 1919 (the the premises in all places open to Vandervelde Law) on alcohol inasmuch the public, in particular in as, being a retailer of drinks for establishments retailing drinks, consumption on the premises and having hotels, restaurants, places of one or more previous convictions, he entertainment, shops, stalls, held in stock and sold in his boats, trains, trams, stations, establishment spirits of an alcoholic workshops or working sites as strength exceeding 22 degrees at a well as on the public thor- temperature of 15 degrees Centigrade. oughfare, even if such a prohibition applies without distinction to national products That judgment was confirmed by the and imponed products and is Cour d'Appel, Liège, Criminal Chamber, not intended to protect national on 4 November 1980, and Mr Blesgen production? thereupon appealed to the Cour de Cassation in reliance on Articles 30 and 36 of the EEC Treaty. (b) legislative measures prohibiting persons selling drinks for consumption on the premises By judgment of 18 March 1981 the Cour from having in stock in any de Cassation took the view that it was quantity whatsoever spirits (as necessary for the Court of Justice to defined above) either on the interpret the above-mentioned provisions premises to which consumers are and after staying the proceedings admitted or in other parts of the requested the Court to answer the establishment and any following questions: appurtenant dwelling, even if such a prohibition applies " 1 . Must the expression 'measures without distinction to national having an effect equivalent to products and to imported

Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the As regards the first question put to the EEC written observations were lodged Court on the prohibition of sale the on 17 June 1981 by the Commission of Commission thinks it right to recall that the European Communities, represented according to the case-law of the Cou rt bv its Agents François Lamoureux and of Justice, and in particular the judgment Peter Oliver, on 22 June 1981 by the of 26 June 1980 in Case 788/79 Gil/i appellant in the main action, Joseph [1980] ECR 2071 and that of Henri Blesgen, represented by Jean 19 February 1981 in Case 130/80 Materne of the Liege Bar, on 22 June Kelderman [1981] ECR 527, the concept 1981 by the Belgian Government of measures having an effect equivalent represented by the Minister for Foreign to quantitative restrictions on imports Affairs, on 6 July 1981 by the French appearing in Article 30 of the Treaty Government and on 7 July 1981 by the must be understood as meaning that a United Kingdom represented by its prohibition imposed by a Member State Agent W. H. Godwin. on importing or marketing certain classes of products whether of domestic origin or imported comes within that provision where the products are lawfullv Upon hearing the report of the Judge- marketed in another Member State. The Rapporteur and the views of the Commission considers that the Advocate General the Cou r t decided to prohibition in question on selling certain open the oral procedure without any spirits in all places accessible to the preparatory inquiry. It nevertheless public is akin to measures which the

Court has considered in the quantity of spirits in stock on the aforementioned judgments as measures premises or dwelling house appurtenant having an effect equivalent to thereto the Commission regards such a quantitative restrictions on imports. measure, which is but the complement of Although the Commission considers that the one previously referred to, as also an not all rules on sale constitute ipso facto actual or potential, direct or indirect even potential obstacles to imports, obstacle to impons. It is therefore to be undoubtedly such marketing rules are a regarded as a measure having an effect direct or indirect, actual or potential equivalent to a quantitative restriction obstacle to intra-Community trade. It referred to in Article 30 of the Treaty. follows that the ban on the sale of spirits in places accessible to the public as contained in Article 1 (1) of the Law of 1919 amounts to a measure having As regards the second question the equivalent effect within the meaning of Commission considers that in principle Anicie 30 since it affects spirits imponed the object of a law of such general and from other Member States. absolute scope as that in question is to protect public health. Nevertheless in view of the disparity between the law and its application in practice the Commission thinks that a. definitive In the Commission's view the same is position must be adopted in the light true of the ban on offering spirits particularly of the information furnished without charge in places accessible to the by the Belgian State on the effects of the public. The fact that it is not a Law of 1919 on the consumption of commercial transaction is irrelevant alcohol. In doing so the Commission because the actual or potential effect of considers it is following the case-law of the ban is to prevent commercial the Court to the effect that "it must transactions following such offer. always be the duty of a national authority relying on Anicie 36 to prove that the measures which it enforces satisfy these criteria" (paragraph 24 of Finally the Commission considers that the judgment of 8 November 1979 in the ban on drinking spirits in places Case 231/78 Denkavit [1979] ECR accessible to the public is likely directly 3369). or indirectly, actually or potentially, to impede impons. In that respect the Commission recalls that in its Directive 66/683 (Journal Officiel 1966, p. 3748) it In conclusion the Commission proposes treats national provisions prohibiting the the following answer to the first question consumption of an imponed product as put by the Cour de Cassation: measures having equivalent effect within the meaning of Anicie 30. The Commission adheres to that interpret- ation. "Legislative measures prohibiting on the one hand the consumption, the sale or the offering even without charge of spirits for consumption on the premises As regards the second pan of the first in all places open to the public and on question dealing with the rule preventing the other hand prohibiting persons persons selling drinks for consumption selling drinks for consumption on the on the premises from having any premises from having spirits in stock in

anv quantity whatsoever constitute The Belgian legislation is accordingly measures having an effect equivalent to incompatible with Anicie 30 of the EEC Treaty since the prohibitions laid down quantitative restrictions on imports by the Law of 1919 are likely to affect within the meaning of Article 30 of the imports of spirits from other Member EEC Treaty." States of the Community and thereby constitute a measure having an effect equivalent to quantitative restrictions As regards the answer to the second according to the case-law of the Court in question the Commission considers that the judgment of 5 February 1981 in Case the measures described in the first 53/80 Koninklijke Kaas/abriek Eyssen BV question may be justified on grounds of [1981] ECR 409, paragraph 11. protecting public health where it appears that they are in practice effective therefor. The incompatibility with Community law of the provisions of the Belgian Law of 29 August 1919 can be avoided only by recourse to Article 36 of the EEC Treaty 2. The appellant points out that the in so far as that provides that obstacles Belgian Law on the distribution and to intra-Community trade may be consumption of alcohol is singularly justified, as far as is relevant to the restrictive in comparison with the rules in questions put to the Court by the Belgian force in other countries of the Cour de Cassation on grounds of "the Community. He observes that only protection of health and life of humans". Belgium has adopted and maintained since 1919 a system totally prohibiting the consumption of spirits in places open to the public and allowing the purchase In the appellant's view the Belgian for consumption in private of not less legislation in question cannot be justified than two litres at a time of spirits not on that ground pursuant to Article 36 of complving with the descriptions in the the EEC Treaty. The benefit of the Vande'rvelde Law of 22 August 1919. exception to the provisions of Article 30 provided for in Article 36 of the EEC Treaty is applicable only to the adoption of national provisions on grounds of the He alleges that the effect of applying the protection of the health and life of system on the domestic market has been humans today. the reduction of the consumption of spirits, the virtual disappearance of distilleries and the development of a very large national brewing industry. On the other hand the Belgian legislation in question owed its origin and justi- fication only to grounds which have ceased to apply. In the appellant's view the effect of the restrictive measures on intra-Community trade may be described as appreciable by reason of the protection conferred on the The appellant observes in that respect Belgian brewing industry which to a that when the Belgian Law of 1919 was large extent is safe against competition adopted it was necessary to deal with from foreign spirits in the share of the certain economic and social conditions market in alcohol in general. which have ceased to exist today by

Consequently what is universally valid With regard to the first question put to for all the other countries of the the Coun the Belgian Government Community cannot provide reasons for considers that the Law of 29 August one of them alone justifying the 1919 has no restrictive effect upon intra- adoption or maintenance of provisions Community trade since it makes no contrary to Article 30 of the EEC Treaty distinction between imponed and on the basis of Anicie 36 thereof. national products and affects only drinks the strength of which is in excess of 22° at a temperature of 15° C consumed in Neither the special circumstances at the public places. time when the Law in question was adopted in Belgium nor the social and human context of Belgium today make it In the view of the Belgian Government lawful therefore to have national rules the system in question is comparable to relating to spirits which are so restrictive the systems adopted by other in relation to the rules of other Member governments for combating alcoholism Slates. The universality of the actual such as determing the closing time for conditions relating to the consumption of licensed premises and in the absence of alcohol in the Community makes common rules for the market in alcohol disparity between the Belgian national is consistent with the interpretation given legislation and the laws of other by the Coun to Anicie 30. It refers to

JUDGMENT OF 31. 3. 19å2 — CASE 75/81

The answer proposed by the Belgian Government to the first question put to the Court is therefore that the provisions Moreover the Belgian Government of Anieles 1 and 2 of the Belgian Law of stresses that the provisions in question 29 August 1919 are not in conflict with constitute neither arbitran· discrimi- the prohibition of measures having an nation nor a disguised restriction on effect equivalent to quantitative trade between Member States. There is restrictions as contained in Anicie 30 of no arbitrary discrimination because the EEC Treaty. similar situations are not treated

BLESGEN v BELGIUM

JUDGMENT OF 31. 3. 1982 — CASE 75/81

entitled to exemption from the Law involve discrimination against spirit obligations under Article 30 of the EEC producers in other Member States whose Treaty. internationally established brands are impeded from entering the Belgian market, whereas local producers can easily adapt themselves to the law of In support of that conclusion the French their own country by producing spirits Government cites Directive 70/50/EEC for their domestic market below 22' , of 22 December 1969 and the grounds of and in practice have done so. certain judgments of the Court and in particular those given in Cases 120/78 "Cassis de Dijon" and 788/79 Criminal Proceedings against H. Gilli and P. Andres. The United Kingdom maintains that the tests laid down by the Court in a number of recent cases and reaffirmed in its judgment in Case 113/80 Commission v Ireland have established that the main­ 5. The United Kingdom also refers t o tenance of the Belgian Law can be the judgment of the Court in Case justified only if the Law is necessary in 120/78 "Cassis de Dijon" where it was order to satisfy mandatory requirements held that in the absence of common rules relating (for present purposes) to the relating t o the production and marketing protection of public health. of alcohol it was for the Member States to regulate all matters relating thereto provided that where the national law operated as an obstacle to movement within the Community that law had to It submits that the Belgian Law is not be justified on a ground of general capable of such justification in the interest such as the protection of public absence of medical evidence to health. demonstrate that:

Consumption in public places of spirits In Denmark the sale of what are called above 22° would be more harmful to "strong drinks" (wine, wine from fruit public health than the consumption of and other drinks fermented with alcohol such drinks in premises at present which contain more than 2.5% alcohol, permitted by the law. distilled alcoholic drinks containing ethanol, beer containing 2.25% or more alcohol (ethanol) and drinks to which the aforementioned beverages have been Finally, it is necessary to inquire whether added) is allowed only by persons the disputed Law has been diverted from holding a licence which lasts for eight its proper purpose and is being used in vears and is granted by the local such a way as either to create discrimi- authority. There is exemption for nation in respect of goods originating in canteens which upon licence by the other Member States or indirectly to police may serve beer and wine solely protect certain national products (Case during meal-times. 34/79 Regina v Henn and Darby, paragraph 21 of the judgment).

"Strong drinks" may not be served in business undertakings save specialized shops which upon licence from the police may offer, free samples in their shops, at HI — I n f o r m a t i o n given by the fairs or at exhibitions. There is a general Commission exemption with regard to serving strong drinks free of charge at exhibitions which are not open to the public. Finally it is not permitted to serve "strong At the request of the Court the drinks" to persons less than eighteen years of age or who are under Commission, within the period withdrawal treatment as decided by the stipulated, supplied information on the public authority or who are drunk. laws and administrative provisions in the other Member States restricting the sale of spirits in public places.

1. Non-alcoholic b e v e r a g e s ; . . . The opening of bars for alcoholic drinks is subject to various restrictions relating in particular to the population of the Alcoholic beverages: municipality. Anyone wishing to open a bar for drinks must by law make a pre- 2. Undistilled fermented beverages liminary declaration (administrative namely wine, beer, cider, perry and document) and be in possession of a mead, to which are added natural licence Revenue document). sweet wines coming under the tax arrangements applying to wine as well Prefects may make orders specifying the as blackcurrant liqueurs and radii within which there may be no bars fermented fruit or vegetable juices around certain establishment."; (hospitals, containing 1 to 3° of alcohol; schools, barracks, buildings intended for worship and so forth). 3. Natural sweet wines other than those belonging to Group 2, liqueur wines, Special provisions prohibit the sale of wine-based aperitifs and strawberry, drinks of the third, fourth and fifth raspberry, blackcurrant or cherry groups to minors. liqueurs containing no more than 18° of pure alcohol; The sale of the following drinks is prohibited: 4. Rums, tafias, spirits obtained from the distillation of wines, ciders, perries or fruits not containing any added 1. Apéritifs with a wine basis of more essence, as well as liqueurs sweetened than 18° of alcohol; with sugar, glucose or honey in a minimum amount of 400 grams per litre in regard to aniseed-flavoured 2. Spirits flavoured with aniseed of more liqueurs and 200 grams per litre in than 45° of alcohol without prejudice regard to other liqueurs which do not to the application of the provisions of contain more than half a gram of the first and second paragraphs of essence per litre; Article 1 of the Decree of 24 October 1922 as amended;

Presidential Decree No 180 of 19 The opening hours of bars are also February· and 10 March 1979, which regulated. Thus bars must be closed to concerns the conditions for operating the public at certain times. Exemptions places for the sale of spirits and gaming may be obtained especially for centres, lays down the following restaurants. conditions which must be satisfied for the grant of a licence for operating one of the above-mentioned establishments: In Italy the sale to the public of all drinks whether spirituous or not is subject to a licence from the provinicial Clean record; authority for public security.

Applicant must be more than 21 years of The sale of spirits of any strength by age. itinerant traders is prohibited.

The sale is moreover prohibited if it may The sale in bars, restaurants and so forth create problems for public safety and of spirits of more than 2 1 % alcohol is health or if the neighbourhood may be "subject to a special licence from the affected aesthetically. prefect.

The Royal Decree No 592/1963 Such licences and authorizations are provides that everything concerning the granted subject to satisfying certain operation of public establishments on the conditions relating to hygiene and public day of elections (prohibition of decency.

JUDGMENT OF 31. 3. I « : — CASE 75/81

The sale of alcoholic drinks in the open To obtain a licence the directors and air, under canvas or in huts occasionally managers of an establishment and the and on special or periodic occasions is establishment itself must satisfy certain also subject to regulation. criteria.

The hours for opening (nor before 7 Although the law makes no distinction a.m.) and closing (in principle II p.m.) between the two types of licence there is are also regulated. in fact a distinction between less strong drinks (less than 15%) and strong drinks. The latter distinction is of some importance in relation to the delegation The sale of drinks to certain categories to local authorities of the power to issue of persons is also prohibited. Thes licences. The law provides thai "bye-laws include persons under interdiction or mav prohibit in establishments, or in subiect to judicial guardianship, minors establishments of a specified category as less than IS years of age not defined in the bye-law, in the mu- accompanied by persons in loco parentis nicipality or in areas specified in the except when travelling, and persons in a bye-law: state of inebriation.

BLESGEN v BELGIUM

Off-licences authorizing the sale of such A literal interpretation of the provisions drinks to be consumed only off the in force would allow the district council premises. to prohibit the serving of all alcoholic drinks in all establishments throughout the district. However, there is no Further the holder of an on-licence or mention of such a ban in commentary on off-licence may sell alcoholic drinks only the law in force or in administrative during the hours laid down by law. practice. It seems unlikely that such a complete ban has ever been adopted by a district council. Before any such regu- lations may be adopted the Provincial In addition there are various specific Council for Public Health and the local rules applving for example to theatres, Chamber of Commerce must be heard restaurants, trains and ships. and moreover any such regulations must be approved by the Gedeputeerde Staten (committee of local aldermen). As regards Scotland and Northern Ireland the Commission states that the law applicable follows the principles of In England and Wales the sale of English law. alcoholic drinks, namely spirits, wine, beer and cider, is conditional upon the grant of a licence. The law therefore As regards wholesale dealings Scotland applies to all alcoholic drinks whatever and Northern Ireland have the same their strength. system as England which is described above. As regard retail sales, subiect to anv recent amendments, the principal The law distinguishes between wholesale differences in relation to the English and retail sales. Any sale to one person svsiem are as follows:

: T h e questions w e r e raised in criminal proceedings b r o u g h t by the Belgian authorities against a restaurateur accused of infringing Articles 1, 2 and 14 of the aforesaid Law inasmuch as, being a retailer of drinks for consumption on the premises, he held in stock and sold in his establishment spirits of an alcoholic strength exceeding 22 degrees at a t e m p e r a t u r e of 15 degrees Centigrade.

BLESGEN v BELGIUM

3 Both before the Cour de Cassation and in his observations to the Court of Justice the accused maintained that even if they applied without distinction to domestic and imported products the rules laid down by Articles 1 and 2 of the Law of 29 August 1919 constituted measures having an effect equivalent to quantitative restrictions on the importation of spirits contran- to Anicie 30 of the EEC Treaty. Further those measures could not be justified on any of the grounds listed in Anicie 36 of the Treaty and in panicular the protection of the health and life of humans since there was no cenain and present need for them which would be recognized as such throughout the Community.

4 The Belgian Cour de Cassation considered that the case involved problems of the interpretation of Community law and referred the following questions to the C o u n for a preliminary ruling:

" 1 . Must the expression 'measures having an effect equivalent to quantitative restrictions on impons' contained in Anicie 30 of the Treaty establishing the European Economic Community be interpreted as meaning that the prohibition laid down by that provision covers:

First question

The first question inquires whether the concept of measures having an effect equivalent to quantitative restrictions as set forth in Article 30 of the EEC Treaty also covers measures prohibiting the consumption for payment or free of charge (Question 1 (a)) and the holding in stock (Question 1 (b)) in all places open to the public or in other parts of the premises and any dwelling appurtenant thereto, of spirits in excess of 22° of alcohol even if such prohibition applies without distinction to domestic and imported products and not intended to protect domestic production.

, Moreover according to Article 3 of Commission> Directiver 70/50 of 2 ' December 1969 (Official Journal, English Special Edition 1970 (I) p. 17) 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, the prohibition in Article 30 of the Treaty also covers national measures governing the marketing of products even though equally applicable to domestic and imported products, where the restrictive effect of such measures on the free movement of goods exceeds the etiects intrinsic to trade rules.

« That is not however the case with a legislative provision concerning only the sale of strong spirits for consumption on the premises in all places open to the public and not concerning other forms of marketing the same drinks It is to be observed in addition that the restrictions placed on the sale ot the spirits in question make no distinction whatsoever based on their nature or origin Such a legislative measure has therefore in fact no connection with the importation of the products and for that reason is not of such a nature as to impede trade between Member States.

,c The same considerations also apply to the prohibition of keeping the drinks in question in premises appurtenant to the establishment open to the public. In so far as that provision is ancillary to the prohibition of consumption on the premises its effect cannot be to restrict the importation of products orig- inating in other Member States.

„ The first question must therefore be answered to the effect that the concept in Anicie 30 of the EEC Treaty of measures having an effect equivalent to

On those grounds,

THE COURT

hereby rules:

The concept in Article 30 of the EEC Treaty of measures having an effect equivalent to quantitative restrictions on imports is to be understood as meaning that the prohibition laid down by that provision does not cover a national measure applicable without distinction to domestic and imported products which prohibits the consumption, sale or

BLESGEN v BELGIUM

offering even without charge of spirituous beverages of a certain alcoholic strength for consumption on the premises in all places open to the public as well as the stocking of such drinks on premises to which consumers are admitted or in other parts of the establishment or in the dwelling appurtenant thereto, in so far as the latter prohibition is complementary to the prohibition of consumption on the premises.