C-220/81

JUDGMENT OF THE COURT 22 JUNE 1982 *

Criminal proceedings against Timothy Frederick Robertson and Others (reference for a preliminary ruling from the Tribunal de Première Instance, Brussels) (Measures having an effect equivalent to quantitative restrictions)

Case 220/81

Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Prohibition on the sale of silver-plated articles not hearing a lawful hallmark — Application to similar articles imported from other Member States — Permissibility — Conditions — Assessment by the national court (EEC Treaty, Art. 30)

Anicie 30 of the Treaty does not prevent a hallmark containing information a Member State from applying national equivalent to that provided by the rules prohibiting the sale of silver-plated hallmarks prescribed by the rules of the articles not stamped with a hallmark Member State of importation and which complies with the requirements of intelligible to consumers of that State. It those rules to like anieles imported from is for the national court to make the another Member State in which they findings of fact needed for the purpose have been lawfully marketed, provided of determining whether or not such that such articles have not been stamped, equivalence exists by reference to the in accordance with the legislation of interpretative criteria specified by the the Member State of exportation, with Court.

In Case 220/81

Advocate General: F. Capotoni Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

The facts of the c <e, the'course of the the Law of 16 June 1947 and amended procedure and t í observations sub- by the Decree-Law of 28 February 1947 mitted pursuant Anide 20 of the lays down in Article 1 that: Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows: "Manufacturers of gold, silver and platinum articles shall guarantee the I — Facts and written procedure fineness of the alloy used by stamping the articles with two hallmarks. 1. Belgian Royal Decree No 80 of 28 November 1939 supplementing and amending the Law of 5 June 1868 on One of those hallmarks shall constitute freedom to work gold and silver the manufacturer's own hallmark. The materials, establishing a compulsory other shall indicate the fineness. guarantee as to the fineness of articles made of precious metals, confirmed by

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Article 17 provides for the imposition of criminal penalties in the event of infringements of the provisions of the Being, manufacturers of gold, silver and decree, without prejudice however to the platinum articles, having stamped or application of the more severe provisions caused to be stamped, in particular, of the Criminal Code. cutlery with hallmarks indicating a pure silver content higher than the real weight in grams contrary to Articles 1, 10 and 17 of Royal Decree No 80. The Royal Decree was supplemented by the Regent's Decree of 13 July 1948 laying down detailed rules for the implementation of the former. It Taking the view that its decision provides, in Article 7, inter alia, that both depended on the question whether the the manufacturer's hallmark and the Belgian rules produce effects equivalent hallmark as to fineness or weight must to quantitative restrictions and that, be in the prescribed form (a barrel for consequently, an interpretation of Article the former; a rectangle for the latter), 30 et seq. of the EEC Treaty is necessary that the number of grams of silver used to enable it to give judgment, the to plate an article must be specified in Tribunal stayed the proceedings and arabic numerals and the indications must referred to the Court of Justice, pursuant be set out lengthwise. to Article 177 of the EEC Treaty, the following question for a preliminary ruling:

2. The main proceedings pending before the Tribunal de Première "Must Articles 30 to 36 of the Treaty Instance, Brussels [hereinafter referred establishing the European Economic to as "the Tribunal"] are concerned with Community be interpreted as prohibiting prosecutions initiated against importers in the precious metals sector provisions of silver-plated articles partly as a result such as Royal Decree No 80 of 28 of a complaint from a consumer infor- November 1939 supplementing and mation and defence association, amending the Law of 5 June 1868,

II — Written observations 3. The judgment making the reference was received at the Court Registry on 20 July 1981. 1. The accused in the main pro- ceedings, Declercq, Konijn, Lambeets and Demeuldre-Coche contend that the effect In accordance with Article 20 of the of the Belgian rules requiring articles to Protocol on the Statute of the Court of be stamped with two hallmarks is to Justice of the EEC, written observations make it impossible for an importer or a were submitted by the accused in the foreign manufacturer to sell on the main proceedings, Mr Declercq, Belpian market precious metals manu- represented by G. Kirschen and P. factured abroad unless he complies with Verheirstraeten, of the Brussels Bar; Mr the Belgian legislation as well as his Konijn, represented by J. Perlberger, of national legislation. The importer or the Brussels Bar; Mr Lambeets, foreign manufacturer must therefore represented by Claude Andries, of the ensure that the articles bear two Brussels Bar; Mr Demeuldre-Coche, hallmarks and offer a product which is in represented by Jean-Pierre Clauwaert, of conformity, as regards its precious metal the Brussels Bar; by the party acting in a content, with his national legislation and civil capacity, UFIDEC, a non-profit- the Belgian legislation. The accused making body, represented by Jean de maintain in that connection that the Bock, of the Brussels Bar; by the Belgian offit. I rules in force in the Federal Government, represented by L. Janssen, Republic of Germany differ from the administrative director, on behalf of the Belgian rules inasmuch as they refer to a Ministry of Foreign Affairs, acting as ratio between the weight of pure metal Agent; by the United Kingdom, rep- and the surface area covered, namely 90 resented by R. N. Ricks, of the Treasury grams for a surface area of 24 square Solicitor's Department, acting as Agent; decimetres. and by the Commission of the European Communities, represented by its Legal Adviser, Michel van Ackere, assisted by Michel Waelbroeck, Advocate. The rules in question thus constitute a technical barrier to free trade within the Community which the Council has proposed to remove in accordance with Upon hearing the repon of the Judge- its general programme of 28 May 1969 Rapporteur and the views of the (Official Journal, English Special Advocate General, the Court decided to Edition, Second Series 1974 (IX)) and its open the oral procedure without any Resolution of 17 December 1973 on preparatory inquiry. However, it industrial policy (Official Journal C 117, requested the Commission to inform it in PD·

The Belgian rules must, in the light of plated metal has not been the subject of the case-law of the Court, be classified any proposal for a directive. as a measure having equivalent effect. That case-law covers all measures which are capable of hindering, directly or Next, UFIDEC analyses the case-law of indirectly, actually or potentially, trade the Court relating to measures having between Member States without equivalent effect commencing with the necessarily rendering all importation judgment of 20 February 1979 in Case

judgment. By seeking both to eliminate the abuses which might result from the Accordingly, the accused in the main system establishing freedom as to the proceedings propose that the answer to fineness of the metal used and to the question submitted for a preliminary suppress frauds more effectively, those ruling should be that national legislation, rules ensure both fairness in commercial such as Royal Decree No 80, constitutes transactions and the protection of a measure having an effect equivalent to consumers. Their aim is not protectionist a quantitative restriction on imports, in nature. prohibited by Article 30 of the EEC

2. The party claiming damages in the respect of it. main proceedings, UFIDEC, a non- profit-making body, observes in the first place that, contrary to what is stated in The obligation to stamp hallmarks on the the question put to the Court, this case product itself constitutes a measure does not concern articles made of pure which is absolutely necessary and quite silver, that is to say solid silver, but solely appropriate since the hallmark is silver-plated articles, in other words indelible and inseparable from the prod- those made of base metal coated with a uct and thus serves as an indispensable fine layer of silver. means of identification in commercial

JUDGMENT OF 22. 6. 1982 — CASE 220/81

As is apparent from the Rapport du Roi [Royal Report] on Royal Decree No 80, UFIDEC therefore proposes that the the rules were adopted in order to meet answer to the question should be that "the needs of the consumers concerned Articles 30 to 36 of the EEC Treaty must and of the members of the corporation not be interpreted as prohibiting, in the of watchmakers, jewellers and specific case of silver-plated metal, legal goldsmiths. . .".

However, 3. In the opinion of the Belgian that legislation is not discriminatory and Government, the legislation in question is necessary in so far as products which does not constitute a measure having do not satisfy rhe criteria laid down by equivalent effect, as defined in the the country of o. .:gin must at least satisfy Court's judgment of 11 July 1974 in the criteria of tht· country in which they Case 8/74 Dassonvilie [1974] ECR 837. are offered for sale. It does not create any technical barriers to the importation from other Member States of products made of precious metals since it permits articles from abroad to be sold in Belgium provided 4. The United Kingdom points out that that they bear the official hallmarks pre- in the United Kingdom there are no scribed by their country of origin. legal provisions analogous to the Belgian Accordingly, products manufactured in rules as regards either the methods used another Member State in which the to calculate the precious metal content of required fineness of a precious metal is the products or the determination of lower than that prescribed by Belgium fineness in the case of silver-plated for the grant of official hallmarks may articles. However, the Hallmarking Act circulate in Belgium without having to 1973 lays down that most other articles comply with any formalities. supplied for commercial or industrial

purposes in the United Kingdom and of consumers and honest traders in their described as made, either wholly or in commercial dealings as well as for the pan, of gold, silver or platinum, must be public at large. Permanent marking is hallmarked. particularly suitable in the case of articles made of precious metals which are designed to have a long life-span and often pass through many hands. However, alternative methods which are Next, the United Kingdom Government less durable, such as the use of wrapping analyses the Court's recent decisions on paper or labelling are insufficient to measures having equivalent effect, in provide a permanent guarantee. particular, its judgment of 20 February 1979 in Case 120/78 Rewe. It maintains, in the light of that judgment, that even on the assumption that the obligation to hallmark articles constitutes an obstacle The United Kingdom concludes that in to the free movement of goods within the absence of Community rules in the the Community, it falls outside the scope matter, a Member State may adopt its of Anicie 30 of the EEC Treaty on the own rules as regards the hallmarking of ground that it is necessary in order to articles made wholly or in pan of satisfy overriding requirements relating precious metals. National rules of that to the fairness of commercial kind are designed to achieve objectives transactions and the defence of the which satisfy the criteria established by consumer. the Court in its recent decisions. Since they are in the public interest and are such as to override the principle of the free movement of goods, they are not prohibited by Article 30 of the Treaty if Precious metals, namely gold, silver and they are applied without discrimination platinum are usually alloyed with a base to domestic products and to imported metal which hardens them. It is possible products alike. to establish the actual proportion of pure precious metal only by means of highly technical tests which most consumers and traders are incapable of carrying out. Thus consumers and traders might easily 5. According to the Commission, the fall victim to frauds, misrepresentations question referred to the Court for a pre- or misunderstandings as regards the liminary ruling seeks in substance to fineness of the precious metal which to a ascertain whether a provision applicable large extent determines the value of the to national products and to imported anieles. It is therefore viul for con- products without distinction which sumers and traders to be provided with a determines, according to specific rules specific and reliable guarantee as to and subject to criminal penalties, the fineness. methods of hallmarking metals, is compatible with Article 30 of the Treaty.

Member States which is capable of However, it is necessary to determine the hindering directly or indirectly intra- extent to which the Belgian legislation Community trade. The Court has satisfies the need to ensure fairness in pointed out that in the absence of rules commercial transactions and to protect common to all the Member States, it is the consumer. In that connection, the for each Sute to regulate the production Commission draws a distinction between and marketing of products. In the case of a hallmark as to fineness or weight and a national rules applicable to national manufacturer's own hallmark. products and to imported products

consumer. In view of the value of the articles in In that regard, the Commission observes question, their average life-span and the that if an article made of precious metal importance which buyers attach to the or a silver-plated article is to be imported conformity of such articles with the into Belgium, it should be hallmarked indications displayed, the system of hall- either in conformity with the Belgian marking appears to afford guarantees rules in the country in which it is manu- which cannot be provided merely, by a factured — which would entail the system of labelling, description or other production of articles specially intended wording on the external packaging. for Belgium — or by the importer, in

area to be specified. In view of their necessary conciseness, the indications set That barrier to imports cannot be out on the hallmark are not complete, as justified by Article 36 of the Treaty regards their informative content, but which, according to the case-law of the invariably refer to a specific system of Court, is to be strictly interpreted and rules. Accordingly, foreign hallmarks does not permit the exceptions which refer to a different method of exhaustively listed therein to be extended calculation from the one prescribed by to other cases. the Belgian rules do not, in the terms of

the judgment of 16 December 1980 in "The legal provisions of a Member Sute Case 27/80 Fietje [1980] ECR 3839 laying down that articles made of "have as their content information on precious meuls and silver-plated articles, the nature of the product . . . [which] . . . whether domestically-produced or includes at least the same information, imported from other Member Sutes, and is just as capable of being under- must bear hallmarks which make it stood by consumers in the importing possible to identify the manufacturer and State, as the description prescribed by to determine, according to the circum- the rules of that Sute". sunces, the fineness of the alloy or the number of grams of precious metal with which they have been coated by reference, where appropriate, to a specific method of calculation, are not However, it is questionable whether a covered by the concept of measures Member State may require, in the case of having equivalent effect to quantitative articles imported from other Member restrictions on imports within the States, that the indications relating to the meaning of Article 30 of the EEC fineness of the metal used or to the Treaty. weight in grams be set out on a hallmark of a given form. Nor may a Member Sute impose an obligation to register the impression of a hallmark as to fineness The legal provisions of a Member State and to use only a hallmark which is in requiring manufacturers of such articles conformity with that impression. in other Member Sutes or importers of such articles from other Member Sutes to use hallmarks which are in a specific form or the impression of which must correspond to a model registered As regards the manufacturer's own beforehand, constitute measures having hallmark, the Commission is of the equivalent effect, prohibited by the opinion that the restrictions resulting Treaty, to the extent to which the from the rules in that field are more application of such provisions creates an difficult to justify than those relating to obsucle to intra-Community trade and the hallmark as to fineness. Although the in so far as the hallmarks already Member States retain the right to require imprinted on the articles at the time of the indication of the manufacturer's their importation do not provide buyers, identity by means of a hallmark, that sellers and public authorities with right may not be extended to cover the sufficient information. imposition of an obligation to use, in the case of imported products, a hallmark corresponding to a model registered in Belgium. Such a restriction on trade would not be justified by an objective which is in the public interest and which III — Oral procedure is such as to override the requirements laid down in the rules of the Treaty.

s Under Article 10 of Belgian Royal Decree N o 80 of 28 November 1939 supplementing and amending the Law of 5 June 1868 on freedom to work gold and silver materials, and establishing a compulsory guarantee as to the fineness of articles made of precious metals, as amended i \· the Decree-Law of 28 February 1947, silver-plated ware must be stamped with two hallmarks, one constituting the manufacturer's own hallmark and the other bearing a numeral indicating the number of grams of pure silver with which the article is coated. That provision lays down, however, that cutlery and tableware must bear the weight in grams per batch of 12 articles. The above-mentioned decree also provides that manufacturers or importers of silver-plated articles are under an obligation to register the impression of the hallmark which they employ with the competent Belgian authorities and to provide a security upon registration if they are not Belgian nationals.

ROBERTSON

4 Royal Decree No 80 was supplemented by the Regent's Decree of 13 July 1948 laying down detailed rules for the implementation of the former. Article 7 of the Decree of 13 July 1948 provides that in the case of silver-plated articles, both the manufacturer's mark and the hallmark as to weight must be in a specific form, that is to say, a barrel for the former and a rectangle for the latter, that the number of grams of pure silver coating must be specified in arabic numerals and that the indications must be set out lengthwise. Since the above-mentioned rules do not provide for any exception in the case of silver-plated articles manufactured abroad, such articles may not be offered for sale in Belgium unless hallmarked in the same manner as silver-plated articles manufactured in Belgium.

JUDGMENT OF 22. 6. 1982 — CASE 220/81

1947 and amended by the Decree-Law of 28 February 1947, which determine, in accordance with particular methods, the fineness of an alloy containing pure silver and govern the form and the deuils of hallmarks guaranteeing the fineness so determined?"

7 It is apparent from the file on the case that the main proceedings concern only imports of silver-plated articles f'om other Member Sutes. Accordingly, the question submitted for a preliminary ruling may be confined to the issue whether Articles 30 to 36 of the Treaty preclude a Member Sute from applying national rules, prohibiting the sale of silver-plated articles not stamped with hallmarks which comply with the requirements of those rules to similar articles imported from another Member Sute in which they have been lawfully marketed.

8 The answer to that question can be given only on the basis of Article 30 of the Treaty, to the exclusion of Article 36, since measures such as those provided for by the rules in question do not fall within the scope of the exceptions listed exhaustively in Article 36.

1 1 It must be recognized, however, that the obligation on the part of the manu- facturer or the importer to stamp silver-plated anieles, which by their very nature are capable of being confused with articles made of solid silver, with special hallmarks which are indelible, inseparable from the article and indicate the quantity of pure silver coating as well as the name of the manu- facturer of the article, is in principle capable of affording effective protection to consumers and of promoting fair trading. The hallmark as to weight achieves that twofold objective by enabling the consumer to acquire a sufficiently accurate knowledge of the nature and the quality of the product and to distinguish it from other products with which it might be confused. Moreover, the manufacturer's mark enables the buyer of the article to identify the manufacturer.

u However, there is no longer the need for such protection where articles of that kind are imported from another Member State in which they have been lawfully marketed, if they are already hallmarked in accordance with the legislation of that State, on condition however that the indications provided by the hallmarks prescribed by that State, in whatever form, contain infor- mation which includes indications equivalent to those provided by the hallmarks prescribed by the Member State of importation and intelligible to consumers of that State.

i3 It is for the national court to make the findings of fact needed for the purpose of determining whether or not such equivalence exists.

JUDGMENT OF 22. 6. 1982 — CASE 220/81

1. Article 30 of the EEC Treaty does not prevent a Member State from applying national rules prohibiting the sale of silver-plated articles not stamped with a hallmark which complies with the requirements of those rules to like articles imported from another Member State in which they have been lawfully marketed, provided that such articles

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have not been stamped, in accordance with the legislation of the Member State of exportation, with a hallmark containing information equivalent to that provided by the hallmarks prescribed by the rules of the Member State of importation and intelligible to consumers of that State.

2. It is for the national court to make the findings of fact needed for the purpose of determining whether or not such equivalence exists by reference to the interpretative criteria specified by the Court.

Menens de Wilmars Bosco Touffait Due Pescatore

Mackenzie Stuart O'Keeffe Koopmans Everling