C-314/81

JUDGMENT OF 14. 12. 1982 — JOINED CASES 314 TO 316/81 AND 83/82

courts of the Member State concerned the judgment of the Court. However, have an obligation to ensure, when it should be understood that where performing their duties, that the the Court has found that a Member Court's judgment is complied with. State has failed to comply with a 2. If the Court finds in proceedings provision of Community law having under Articles 169 to 171 of the direct effect in the internal legal Treaty that a Member State's order, the rights accruing to legislation is incompatible with the individuals derive not from the obligations which it has under the judgment finding that that State has Treaty, the courts of that State are failed to fulfil its obligations but from bound by virtue of Article 171 to the actual provisions of Community law. draw the necessary inferences from

In Joined Cases 314 to 316/81 and 8 3 / 8 2

R E F E R E N C E t o the Court under Article 177 of the EEC Treaty by the Tribunal de Grande Instance [Regional Court], Paris for a preliminary ruling in the cases pending before that court between

(1) PROCUREUR DE LA REPUBLIQUE [Public Prosecutor]

and (in the first three groups of cases)

PROCUREUR DE LA RÉPUBLIQUE v WATERKEYN

on the effect within the internal French legal order, and more specifically on Articles L 1, L 18 and L 21 of the French Code on the Retail of Beverages and Measures against Alcoholism, of Article 30 of the EEC Treaty and the judgment of the Court of Justice of 10 July 1980 concerning the advertising of alcoholic beverages,

T H E COURT

composed of J. Mertens de Wilmars, President, P. Pescatore and A. O'Keeffe (Presidents of Chambers), G. Bosco, T. Koopmans, O. Due and Y. Galmot, Judges,

Advocate General: S. Rozès Registrar: J. A. Pompe, Deputy Registrar

gives the following

Group 2 (Order No 60-1253 of 29 No person shall engage in advertising of November 1960): undistilled fermented any kind of beverages in stadiums, public beverages, namely wine, beer, cider, or private sports grounds, premises perry and mead, to which are added containing swimming pools or in halls in natural sweet wines coming under the which sporting events habitually take tax arrangements applying to wine as place or in any premises occupied by well as blackcurrant liqueurs and youth clubs or community education fermented fruit or vegetable juices groups. containing 1 to 3° of alcohol; Article L 18 (Order No 60-1253 of 29 Group 3: natural sweet wines other than November 1960): those belonging to Group 2, liqueur wines, wine-based' aperitifs and Subject to the provisions of the second strawberry, raspberry, blackcurrant or paragraph of Article L 17 advertising in cherry liqueurs containing no more than respect of the beverages comprised in the 18° of pure alcohol; third group (Order No 59-107 of 7 January 1959) the manufacture and sale of which are not prohibited shall be Group 4 (Law of 27 June 1957): rums, permitted if it indicates exclusively the tafias, spirits obtained from the name and composition of the product, distillation of wines, ciders, perries or the name and address of the manu- fruits not containing any added essence, facturer, his agents and stockists. as well as liqueurs sweetened with sugar, glucose or honey in a minimum amount of 400 grams per litre in the case of The type of bottling and labelling may aniseed-flavoured liqueurs and 200 be reproduced only if it bears exclusively grams per litre in the case of other the name and the composition of the liqueurs which do not contain more than product, the name and address of the half a gram of essence per litre; manufacturer, his agents and stockists.

manufacturer, stockist, wholesaler or Interfamiliale d'Édition SA and Télé Sept retailer of beverages who carries out, Jours directed by Dominique Ferry on causes to be carried out or persists in behalf of Télé Sept Jours Sàrl. advertising prohibited by Articles L 17 and L 18. The same fines may be imposed on advertising agents, adver- tisers and producers of advertising material, publishing directors and distri- bution and production managers who carry out, cause to be carried out or That advertising campaign did in fact persist in unlawful advertising. indirectly concern the Saint Raphaël aperitifs, which are beverages classified in Group 3 by Article L 1 of the Code in respect of which advertising is permitted by Article L 18 only on condition that it is restricted to the name and compostion of the product, the name and address of its manufacturer, his agents and stockists. At the beginning of 1977 Henri Lej eu ne, However, the advertising posters and chairman and managing director of Saint designs focused attention on the brand Raphaël SA asked Claude Douce, Saint Raphaël and encouraged the chairman and managing director of consumption of that product. Bélier SA to arrange an advertising campaign for an alcoholic beverage, Saint Raphaël Bitter. It was conducted by means of advertisements appearing on hoardings and in the press. The advertisements were placed on hoardings in the second half of 1977 by Alex Jean Cayard, chairman and managing Waterkeyn, chairman and managing director of the company La Martini- director of the company More O'Ferrall, quaise instructed the agency R. H. M. to Jacques Dauphin, chairman and arrange an advertising campaign in 1974 managing director of Dauphin Office and 1975 for Cruz port. The advertising Technique d'Affichage SA, Henri was conducted by means of Renouard-Larivière, chairman and advertisements appearing in the managing director of Marignan Publicité magazine Libre Service Actualité directed SA and Jean Giraudy, chairman and by Paul Pietet on behalf of the company managing director of Affichage Giraudy Libre Service Actualité, in the weekly SA. From April to June 1977 magazine Le Point directed by Olivier advertisements appeared in the weekly Chevrillon on behalf of Presse Infor- magazine L'Express directed by Marie- mation SA and in the magazines Jours de Denise Servan-Schreiber, née Brésard on France directed by Marcel Minckes on behalf of Groupe Express SA and in behalf of Jours de France SA, Pańscope the magazines Paris Match, directed directed by Daniel Filipacchi on behalf by Daniel Filipacchi on behalf of of the company Publications Hebdoma­ the company Cogedi-Presse, Femmes daires Parisiennes and in Le Nouveau d'Aujourd'hui directed by Maurice Guide Gault et Millau directed by André Brébart on behalf of Les Editions du Gavot on behalf of the company Jour Hennin Sari, La Vie directed by Michel Azur. Port wine, being a natural sweet Houssin on behalf of Les Publications de wine, falls within the third group of Vie Catholique SA, Chez Nous directed alcoholic beverages defined by the Code. by Marc Poulbot on behalf of Union However, by arousing interest and desire

During 1975 Jean Cayard, chairman and managing director of La Martiniquaise SA, instructed the agency R. H. M. to mount an extensive advertising campaign Before that court the accused based their for a drink called Liqueur d'Ecosse Label defence in particular on the judgment of i classified by Article L 1 of the Code on the Court of Justice of 10 July 1980 the retail of beverages in the fourth in Case 152/78 Commission v French group of beverages in respect of Republic [1980] ECR 2299 They which advertising is unrestricted. The contended that the proceedings brought campaign was conducted by means of against them were groundless for the advertisements posted on billboards by want of validity, in French internal law, the Régie Publicitaire des Transports of Articles L 1, L 17, L 18 and L 21 of Parisiens directed by Jacques Foby, the the Code which according to the company J. C. Decaux-Paris Publicité judgment of the Court were contrary to Abribus directed by Jean Claude Decaux the provisions of Article 30 of the EEC and the company Intermag Régie Circuit Treaty. H directed by Jacques Zadok, by the reproduction of advertisements in reduced form on matchboxes by the company Publistop Promotion directed by René Martaud, and by the insertion In a circular dated 10 October 1980 the of advertisements in the magazines Garde des Sceaux, the Minister of Femme d'Aujourd'hui and Femme PratiqueJustice, stated that "French criminal published by Éditions du Hennin SA courts must be guided" by the Courts directed by Maurice Brébart, Auto judgment of 10 July and that it was Journal published by the company therefore necessary to ascertain its scope. Socpress, whose publishing director was Since "the Court of Justice of the

It also mentioned that even before the If the product considered to have been Court's decision the French Government unlawfully advertised was a product had laid a bill before Parliament "taking which was not imported from one of the account of the various criticisms of the Member States of the EEC, French legislation on the advertising of alcoholic courts did not have to take account of beverages". the judgment. The aim of the judgment was merely to ensure that competing products from different Member Sutes By judgments delivered on 30 January should be treated equally and Com- 1981 in the first group of cases, on 12 munity law could not supplant national February 1981 in the second group, on law in regulating situations governed by 30 January 1981 in the third group and national law only. on 6 January 1982 in the fourth group of cases the 16th Chamber of the Tribunal de Grande Insunce, Paris, held that the advertising in question was unlawful. It If the beverage considered to have been also noted that according to Article 56 of unlawfully advertised was a beverage the French Constitution "national law imported from a Member Sute it was for shall not conflict with Community law". the criminal court to inquire whether After citing Article 171 of the EEC Articles L 17 and L 18 of the Code Treaty, concerning judgments in which enacted rules which were less favourable the Court of Justice holds that a Member to the product in question than to other State has failed to fulfil its obligations products which might be considered to under the Treaty, it held: be in competition with that product. It would not be a simple matter to decide whether the beverage in question was actually in competition with another "As a result it does not seem that beverage to which less strict rules Community law, although having an applied. It would therefore be the duty authority superior to that of domestic of the Public Prosecutor to bring a pros- French laws, has necessarily to be ecution each time an imported product directly and immediately applicable was advertised in breach of the national within the internal legal order. legislation and it would be for the court before which the prosecution was brought to inquire whether the various factors existed which would compel it to In the present case it is therefore make the judgment of the Court of necessary to determine whether Com- Justice prevail over national law, or, munity law, as recently laid down by the after esublishing that there was no Court of Justice of <the European discrimination against the product Communities by its judgment of 10 July

1980, renders directly and immediately Justice of the European Economic inapplicable in French internal law Community, written observations were Articles L 1, L 18 and L 21 of the Code lodged on 18 February 1982 by Jean on the Retail of Beverages and Measures Giraudy and Affichage Giraudy SA, against Alcoholism. represented by Louis Sitruk, Advocate at the Cour de Paris, on 26 February by André Gayot and the company Jour Under Article 177 of the Treaty of Rome Azur, represented by Eric Bernard, the Court of Justice of the European Advocate at the Cour de Paris, on Communities must in this case be 1 10 March ana 14 May by the Com­ requested to give a preliminary ruling mission of the European Communities, since the question raised involves the represented by its Legal Adviser, René interpretation of a measure which it, a Christian Béraud, on 22 March by Marc Community institution, has adopted Poulbot, Maurice Brćbart and Michel within the legislative framework of the Houssin, represented by André Treaty establishing and regulating the Simonard, Advocate at the Cour de European Economic Community." Paris, on 26 March by Marie-Denise Servan-Schreiber, née Brésard and Consequently the Tribunal de Grande Groupe Express SA, represented by Instance, Paris, decided to reserve Raoul Castelain, Advocate at the Cour judgment on the application of the de Paris, on 1 April by the Government national provisions in question until the of the French Republic represented by Court of Justice had, pursuant to Article Guy Legras, Deputy Secretary General 177 of the EEC Treaty, of the Comité Interministériel pour les Questions de Coopération Économique Européenne [Interministerial Committee given a decision upon the direct and for Matters of European Economic Co­ immediate effect, within the French operation], on 2 April by Jacques internal legal order, of Community law Dauphin and Dauphin Office Technique as established by its judgment of 10 July d'Affichage SA, represented by Paul- 1980, having regard also to the François Ryziger, Advocate at the provisions of Article 171 of that Treaty. Conseil d'État and the Cour de Cassation, on 5 April by the Comité National de Défense contre l'Alcoolisme, The first three judgments of the Tribunal represented by Penine Crosnier of the de Grande Instance, Paris, were Bar of Seine Saint-Denis, on 30 April by registered at the Court on 18 December André Boussemart, represented by Albert 1981 and the fourth judgment on 8 Bénatar, Advocate at the Cour de Paris, March 1982 under Nos 314/81 to 316/81 on 26 May by Jean Cayard and La and 83/82 respectively. Martiniquaise SA, represented by François Greffe, Advocate at the Cour By order of 10 March 1982 the Court de Paris, on 28 May by René Martaud decided to join Cases 314 to 316/81 for and the company A. M. P. represented the purposes of the procedure and the by Jacques Krief, Advocate at thé Cour judgment and later, by an order of 31 de Paris, on 3 June by Rodolphe Joël March 1982, it decided to join those and the company Cusenier, the successor cases with Case 83/82. to the company C. D. C , represented by François Deby and Robert Collin, Advocates at the Cour de Paris, on 7 In accordance with Article 20 of the June by Jean-Claude Decaux and J. C. Protocol on the Statute of the Court of

II — Written observations lodged with the Court The Tribunal de Grande Instance ought to have dismissed the objection raised by the accused and convicted them as the matters before that court are governed by national law alone. In any event The Comité National de Déjense contre Articles L 17, L 18 and L 21 of the Code l'Alcoolisme observes that before the cannot be directly and immediately effects of Article 171 of the EEC Treaty applicable. are considered the area of application of Community law covered by the judgment of the Court of Justice of 10 July 1980 should be assessed. The very way in which that judgment is worded indicates As to the meaning of Article 171 of the that the French legislation on the EEC Treaty, it is not part of the function advertising of alcoholic beverages was of courts judging the substance of cases condemned only in so far as it caused to apply principles of Community law discrimination between national products established· in decided cases before the and' those imported from Member States national legislation has been amended. of the EEC and recognized as being in National courts are Bound by the competition with the national products. national legal system of which they form Therefore national law continues to pan. Anide 171 provides for a be applicable where the prosecutions transitional period in which the Member concern products imported from non- State may clarify, by laws or regulations, member countries or national products. what effect' Community law will have on national law. Before those decisions of the Sute come into effect national courts can only observe national legal rules. In any event it is for the national court, Judgments of the Coun of Justice of the when considering each case, to decide European Communities cannot lead to a whether Articles L 17 and L 18 of the defacto abrogation. It is for the executive Code are less favourable to beverages and legislature to draw up new national imported from a Member State than the legal rules which are compatible with the provisions applied to other products principles of Community law.

Moreover, it is in fact expedient that plicability of Articles L 17 and L 18 of national legislation should remain in the Code. force during the transitional stage. It is viul that legislation, which despite its defects is essentialy a means of combating alcoholism and protecting Jacques Dauphin and Dauphin Office public health, should continue to remain Technique d'Affichage SA take the view in force. that in general terms the question of the applicability of rules of Community law in the internal legal order of Member States and the supremacy of Community rules over national rules has been clearly At any rate, Articles 36 and 171 of the resolved by the Court in its decisions. EEC Treaty taken together ought to make it possible to avoid a legal vacuum which would simply undo the efforts made in recent decades to fight As regards the question of the scope and alcoholism in France. effects of judgments delivered by the Court pursuant to Article 17.1 of the EEC Treaty in actions for a declaration that a State has failed to fulfil its obligations, a distinction should be made, Jean Giraudy and Affichage Ciraudy SA depending on whether the judgment has take the view that it follows from the to do with a breach of a rule which is judgment of the Court of Justice of 10 directly, or not directly, applicable. In July 1980 that the provisions pursuant to the first case the Court's judgment has a which the prosecutions were brought declaratory effect which is binding on before the national court are contrary to everyone, but the basis of the right Community law. Community law is an accorded to individuals to rely on the independent body of law. In many provision in question before their circumstances it has direct effect and this national courts is the provision's direct is true of Article 30 of the EEC Treaty. applicability and not the judgment Community law prevails over national establishing the breach of obligations. If law, past and future. The Court has held the judgment consists of a declaration in particular than a national court which that a Member Sute has acted in breach is called upon, within the limits of its of a rule which is not directly applicable, jurisdiction, to apply provisions of individuals may not rely upon it. In the Community law is under a duty to give present case the Court has declared that full effect to those provisions, if the French Republic has infringed Article necessary refusing of its own motion to 30 of the EEC Treaty the direct apply any conflicting provision of applicability of which has never been national legislation, even if adopted sub- called in issue. sequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means. The same applies to provisions of If Articles L 17, L 18 and L 21 of the national criminal law. It is necessary to Code applied to the advertising of draw the consequences of this situation certain French beverages and yet, by in regard to the main proceedings par- virtue of the judgment of 10 July 1980, ticularly as regards the immediate inap- might no longer be applied to the

advertising of certain foreign beverages, must, in a case within its jurisdiction, there would be "reverse" discrimination apply Community law in its entirety and against French manufacturers of protect rights which that law confers on beverages. However, the Court of Justice individuals and must, accordingly set has condemned reverse discrimination. aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule. The Tribunal de Grande Instance, Paris, must therefore take account of the direct and immediate effect of Community law which was found by the judgment of 10 To convia the undertakings which July 1980 to render Articles L 17 and L advertised French beverages when they 18 of the Code inapplicable. could not have been convicted if they had advertised foreign beverages in the same group would, in the cases in point, be tantamount to introducing discrimi- nation on grounds of nationality contrary to Article 7 of the Treaty and, secondly, and most importantly, a breach The primacy of Community law has, of the principle of equality of treatment moreover, been recognized by the Cour in the matter of economic rules which is de Paris in a judgment of the Chambre one of the general principles of d'Accusation of 12 February 1982 in Community law. which it was held that, in so far as Article 171 of the EEC Treaty requires a Member State to comply with judgments in which the Court of Justice declares that it has failed to fulfil its obligations, that article applies to all State institutions, including those responsible To prohibit, to the detriment of French for exercising judicial functions, and that undertakings producing aperitifs, certain if the principle of the primacy of kinds of advertising which may be Community law is to be observed it is lawfully carried out in respect of necessary to declare that Articles L 17, beverages made by foreign undertakings L 18 and L 21 of the Code, which have would perhaps remedy an infringement still not been repealed, have ceased to be of Article 30 by the French Republic and applicable ever since the Court of put an end to a measure having an effect Justice, in its judgment of 10 July 1980, equivalent to a restriction on imports, declared them to be contrary to Article but it would lead to a breach of the 30 of the EEC Treaty. principle of equality in competition on the French market, and therefore within the Community market, and undoubt- edly cause discrimination on grounds of nationality.

A third solution would be for the Court Marie-Denise Servan-Schreiber, née to hold that judgments given in cases of Brésard and Groupe Express SA take the failure of Member States to fulfil their view that it is possible to envisage several obligations have direct effect so that the courses of action where a Member State national coun would be obliged to set does not conform with a judgment in aside the provisions which caused which the Court of Justice finds that it judgment to be given against the has failed to fulfil its obligations. Member State in question. In that event the rules of Community law would be strengthened and in particular it would be possible for Article 5 to be fully effettive. The Commission or another Member State could initiate fresh proceedings at the end of which the Court would find that there had been a breach of the obligations arising from its first The last solution is to be preferred. It is judgment. In that event the nationals of in keeping with the general trend of the Member States would have no right of case-law of the Court, has the merit of action enabling them to enforce being in accord with its case-law on the compliance with the right which has protection of fundamental rights, avoids become part of their legal heritage and unnecessary delay in proceedings and which arises from the obligation, which protects the individual against inconsist- Article 171 of the EEC Treaty imposes encies in the case-law of national courts. on the Member State against which judgment is given, to adopt the necessary measures. Jean Cayard and La Martiniquaise SA believe that the answer to the question whether Community law must have In proceedings in which reliance is direct effect in the internal French legal placed on provisions which have pre- order in this case must definitely and viously been the subject of an action for unarguably be in the affirmative.

The primacy of Community law over internal French law has, moreover, been André Gayot and Jour Azur SA take the recognized by the Cour de Paris in a view that by virtue of the Court's judgment of the Chambre d'Accusation judgment of 10 July 1980 the Tribunal of 12 February 1982 on the occasion of a de Grande Instance, Paris, has no choice prosecution based on the same provisions but to find that Articles L 18 and L 21 of of French law. the Code cannot be applied in any manner whatever. The primacy of Community law over national law means that a judgment of the Court finding that a Member State has failed to fulfil its obligations does not simply require that State to repeal the rule of national law Rodolphe Joël and the company Cusenier which is contrary to the Community point out that the Tribunal de Grande rule; it also prohibits that rule of Instance, Paris, has resolved the problem national law from being applied, even of the scope of the judgment of the before it has been expressly repealed by Court of Justice of 10 July 1980 with the Sute in question. The effect of a regard to the validity of the provisions in judgment in which the Court of Justice question of the Code by finding that declares that a Member State has failed they have been declared to be contrary to fulfil a Community obligation which it to Community law and are therefore

JUDGMENT OF 14. 12. IM2 — JOINED CASES 314 TO 316/81 AND 83/82

inapplicable as from that date. The that Member State may not continue to question submitted to the Court apply or sanction a statutory provision therefore concerns the consequences of which has been held to be contrary to the Court's judgment for the national the Treaty. A Member State whose court and, more particularly, the point courts did not act in conformity with the whether the national court is directly obligations entailed in complying with a bound by that finding of inapplicability judgment in which that State was found and the question as to when the said to have failed to fulfil its obligations provisions become inapplicable. would be in breach of the commitments undertaken by virtue of Article 5 of the Treaty.

A judgment on a Member State's failure to fulfil its obligations is declaratory in The prohibition may not be evaded on nature inasmuch as it finds that a the pretext that the provisions in provision of national law is incompatible question have not yet been formally with Community law, in which case that repealed by the competent authority. provision must be regarded as having lost its legal effect for the very reason thai it conflicts with Community law. Such a Jean-Claude Deceux and /. G Deceax- judgment, however, produces direct Pam Publicité Abńbtts SA state that the effects in the internal order inasmuch as beverage in question in the proceedings it places direct obligations on the auth­ which gave rise to Case 83/82 is one orities of the Member States and confers imported from a Member Sute of the rights upon individuals. The obligations Community and that therefore there can upon the Member State in question arise be no question of not giving effect to the from Article 171 of the Treaty, which judgment of the Court of Justice of 10 concerns the courts of a Member State July 1980 in which it was declared that as well as its legislature. The couru of by subjecting advertising in respect of

PROCUREUR DE LA REPUBLIQUE » VATERKEYN

It follows from the decision of the Court In this instance the only possible that Articles L 1, L 17, L 18 and L 21 of outcome of the decision to make a the Code may not be applied in this case. reference will be that the Court of Justice will consider the provisions in question to be inapplicable because they are contrary to Community law. René Martaud and the company A. M. P. stau that they rest their case entirely on the consistent line of decisions of the Court of Justice on this matter. The Government of the French Republic stresses that the judgment of the Court of Justice of 10 July 1980 condemns the French .legislation on the advertising of André Boussemart takes the view that the alcoholic beverages only in so far as it question put to the Court of Justice discriminates against a product imported ought never to have been submitted. It is from one of the Member States. In not necessary for the Court to reconfirm principle that legislation has become what it has expressly decided in its inapplicable before the national courts, judgment of 10 July 1980 and the French and the criminal courts in particular, in Constitution makes clear, without the so far as it is contrary to Article 30 of slightest possible ambiguity, that the the EEC Treaty. Two types of situation

JUDGMENT OF 14. 12. 1982 — JOINED CASES 314 TO 316/81 AND 83/82

In the absence of a uniform body of Community rules governing the adver- The Commission observes, as regards the tising of alcoholic beverages national formulation of the question submitted to products continue to be subject tö the the Court, that the reference made' tö national law of the Member Sute in Article 171 of the EEC Treaty in order question. Member States retain full to support the assertion that the power to regulate the advertising of supremacy of Community law over national alcoholic beverages and are also national law does not necessarily mean entitled to subject1 those beverages to that Community law is directly and more stringent, and therefore discrimi- immediately applicable results from a natory, rules compared to those misunderstanding. If a Member State governing beverages from the rest of the fails to discharge the obligation to adopt Community. Such reverse discrimination the measures required to comply with a would not appear to be contrary to the judgment of the Court that failure does case-law of the Court. Its case-law on not mean* that the relevant provision of internal taxation may be readily applied Community law is not directly applicable to the free movement of goods. by national· courts in their internal legal order. The obligation is a general one and applies to the entire body of Community law as interpreted by the Court in the judgment in question, irrespective of whether the provision of Since the advertising in France of Community law which was not complied national beverages does not affect intra- with has direct effect or not, It is not Community trade it cannot be subject to therefore a maner of determining Article 30 et seq. of the EEC Treaty and whether Article 171 has direct effect in the case-law on those articles. It may national law but a question whether the legitimately be subjected to rules more provisions which gave rise to the

It follows from the judgment of the When stating the reasons for its Court of 10 July 1980 that the provisions judgment the Court ought at least to of the French legislation on the consider the consequences of that direct advertising of alcoholic beverages which effect on legislation such as that now at are contrary to the prohibition laid down issue. in Article 30 may no longer be relied on as against the persons concerned and that the penal sanctions laid down by In addition, the Tribunal de Grande that legislation no longer have any legal Instance should also be given guidance basis in their case. on the question whether the legislation has become inoperative in its entirety on the ground that it is contrary to (b) On the question of the Community law, or whether it may still consequences of the direct effect of apply where intra-Community trade is Article 30 upon the contested national not affected. legislation, it should be recalled that in the Court's judgment of 10 July 1980 the legislation was held to be contrary to the Lastly, the question submitted to the prohibition laid down in Article 30 Court should be re-framed as follows: inasmuch as it subjected the advertising of alcoholic beverages to rules which discriminated against imported products Does Article 30 of the EEC Treaty, as and thereby maintained obstacles to construed by the Court of Justice in its intra-Community trade.

JUDGMENT OF 14. 12. 1982 - JOINED CASES 314 TO 316/81 AND 83/82

PROCUREUR DE LA REPUBLIQUE » WATERKEYN

is not prohibited per se by the Treaty. measure having an effect equivalent to a Article 92 gives Member States the right, quantitative restriction, as gradually but does not compel them, to introduce developed by the Court in its decisions certain kinds of aid when the conditions concerning the Community, cannot be for this are fulfilled. The prohibition of transposed to the scheme of the discrimination laid on the Community Agreement between the EEC and legislature must be considered at the Portugal. The protection of health may Community level in view of the fact that indeed be regarded as an objective the citizens of each Member State are all concept which does not allow any citizens of the Community, whereas the distinction to be made depending on obligations of the Member States are at whether intra-Community trade is the national level. In short, reverse involved or not. On the other hand, the discrimination should be abolished by concept of a measure having equivalent harmonization. effect, which, even in the Community, leaves room for many interpretations, must be still more imprecise where non- member countries are concerned so that Article 14 of the Agreement between the The fact, shocking though it may appear, EEC and Portugal cannot have direct that the contested legislation is applicable effect in this respect. only to national products, is not to be attributed to Community law. It is for the Member State in question to enact new legislation which is compatible with the Treaty and terminates the reverse Any difference of opinion should be discrimination and, in the meantime, it is settled in regular meetings between the free to withdraw the proceedings against contracting parties. It would not be its own manufacturers. Moreover, the desirable to try to compel the manufacturers and sellers concerned may Community alone, by legal action, to rely upon the constitutional principle mat comply with the obligation arising from the law must not discriminate which is Article 14 of the Agreement when laid down in the Declaration of Human Portugal could continue to insist on its Rights and adopted not only by the own interpretation. French Constitution but also by the European Convention on Human Rights.

The Comité National de Déjense contre The Government of the French Republic l'Alcoolisme argued that the national stated that the judgment of the Court of legislation on the advertising of alcoholic 10 July 1980 declared the French beverages should remain in force except legislation on the advertising of alcoholic with regard to products imported from beverages to be contrary to Anicie 30 of the EEC and genuinely capable of the EEC Treaty only in so far as it was competing with national products discriminatory towards products orig- subjected io less stringent rules. inating in other Member Sutes. It was therefore logical to distinguish between the products in question according to their origin. The French legislation was not affected as far as French products were concerned. According to the decisions of the Court, trade restrictions which were unjustified within the Common Market might be permissible in The accused in the main proceedings and relations between a Member Sute and the companies responsible for them in civil Portugal. French courts must uphold the law contended in particular that the direct effect, within the internal French Court's judgment of 10 July 1980 was legal order, of Article 30 of the Treaty general in its effect and no distinction with regard to products imported from should be made depending on the origin another Member Sute. of the products in question. Such effect had been recognized in France in several judgments of appeal courts. When read together Anieles 171 and 5 of the EEC Treaty indicated that national courts must refrain from imposing penal sanctions for offences against a provision of national law which the Court of Justice had held to be contrary to The Commission again stated that in Community law. The prohibition against principle Community law was not in

JUDGMENT OF 14. 12. 1982 — JOINED CASES 314 TO 31&/8I AND 83/82

3 The accused contended before the national court that the judgment of 10 July 1980 declared the provisions of the Code which they were alleged to have infringed to be contrary to Community law and that therefore all proceedings against them ought to be withdrawn.

4 Considering that in this instance it was necessary to determine whether Community law, as laid down by that judgment, renders Articles LI, L 17, L 18 and L 21 of the Code directly and immediately inapplicable, the national court requested the Court of Justice to explain the effect of its judgment of 10 July 1980 having regard to the provisions of Article 171 of the Treaty.

s In the proceedings before the Court the accused expanded upon their view that the judgment of 10 July 1980 had "general effect" inasmuch as the Court had condemned in its entirety the French legislation on the advertising of alcoholic beverages as laid down in the Code. They argued that there was therefore no need to distinguish between the products in question on the basis of their origin. In particular, it was not permissible to treat national products differently from products imported from other Member States to the detriment of the former. The accused emphasized that such "general effect" had been recognized in France in judgments given by several courts of first instance and of appeal.

6 That view was contested by the Comité National de Défense contre l'Alcoolisme, civil party in the proceedings before the national court, and by the Commission and the French Government. These submit that the Court found the French legislation to be contrary to Article 30 of the Treaty only in so far as the marketing of alcoholic products originating in other Member Sutes .is subject, de facto or de jure, to more stringent provisions than those applying to competing national products. As regards products imported from Portugal, the Commission and the French Government point out that Article 30 of the EEC Treaty governs intra-Community trade only and that the system applicable to those products comes under the Agreement on free-

io In this regard the Court emphasized in particular that since they come under the tax arrangements applying to wine French natural sweet wines enjoy unrestricted advertising whilst imported sweet wines and liqueur wines are subjected to a system of restricted advertising. Similarly, whilst distilled spirits typical of national produce, such as rum and spirits obuined from the distillation of wines, cider or fruit, enjoy completely unrestricted advertising,

JUDGMENT OF 14. 12. 1982 — JOINED CASES 314 TO 316/81 AND 83/82

it is prohibited in regard to similar products which are mainly imported products, notably grain spirits such as whisky and geneva.

M Contrary to the contention advanced by the accused, the judgment of 10 July 1980 only affects the treatment of products imported from other Member States and the French legislation was declared to be contrary to Article 30 only in so far as it enacts rules which are less favourable to those products than towards national products which may be regarded as being in competition with them.

i2 It follows, in the first place, that the breach of obligations found by the Court does not concern the rules applicable to national products and, secondly, that the Court was not called upon to consider the rules applicable to products imported from non-member countries. The only inference which must be drawn from the judgment to which the preliminary question refers is therefore that, as far as advertising is concerned, the French Republic must treat alcoholic products originating in other Member States in the same way as competing national products and consequently it must revise the classi- fication set out in Article L 1 of the Code in so far as that classification has the effect of putting at a disadvantage, in fact or in law, certain products imported from other Member States.

i6 Therefore the answer to the question submitted must be that if the Court finds in proceedings under Articles 169 to 171 of the EEC Treaty that a Member State's legislation is incompatible with the obligations which it has under the Treaty the courts of that State are bound by virtue of Article 171 to draw the necessary inferences from the judgment of the Court. However, it should be understood that the rights accruing to individuals derive, not from that judgment, but from the actual provisions of Community law having direct effect in the internal legal order.

Costs

i7 The costs incurred by the Government of the French Republic and the Commission of the European Communities, which have submitted obser- vations to the Court, are not recoverable. As these proceedings are in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

JUDGMENT- OF.U. 12. 1982 - JOINED CASES 314 TO 316/81 AND 83/82

On those grounds,

THE COURT