C-382/87

OPINION OF MR TESAURO —CASE 382/87

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 15 February 1989 *

Mr President, In France, Law No 556 of 12 July 1971 Members of the Court, prohibited inter alia private bodies providing courses of instruction from canvassing at homes 'with a view to concluding contracts for courses of instruction'.

1. Canvassing at the home is one of the most controversial commercial techniques which have been conceived and developed in this century. A typical effect of surprise by such an approach can be exploited with great success by a skilful and experienced salesman and furthermore the consumer is exposed to a serious risk of fraud for he is Since certain bodies attempted to taken quite unawares and is often led, circumvent the prohibition by proposing the especially if he is one of those who for sale of educational material at home without various reasons may be more open to linking it to the offer of a 'service' of influence, such as the elderly, housewives or instruction, Law No 1137 of 22 December immigrant workers, to sign undertakings, 1972 filled the gap by prohibiting 'visiting the real scope of which eludes him, for the home of a natural person ... to propose goods or services which are often insigni­ the sale ... of any documents or materials ficant or in any event much less interesting intended to meet the same needs as the than he was led to believe. Not infrequently, supply of a service in respect of which moreover, the consumer, while appreciating canvassing is prohibited by a special the disadvantageous nature of the trans­ provision of law by virtue of the subject of action proposed by the salesman who arrives that canvassing'. unexpectedly at his home, enters out of timidity into undertakings which he would not accept in other circumstances.

4. It is clear from the order of reference that the question (despite its somewhat unusual wording) is whether a prohibition of the kind I have described above falls within the definition of a measure having an 8. The Commission and the Member States effect equivalent to a quantitative restriction which have submitted observations do not on imports prohibited by Article 30 and agree on that issue. whether it is relevant to cite in its justifi­ cation a mandatory requirement of Community law such as the protection of consumers. The Commission cites a passage in the judgment of 15 December 1982 in Case 286/81 Oosthoek, 1 which is worded as follows: 'Legislation which restricts or 5. It is therefore necessary in the first place prohibits certain forms of advertising and to consider whether prohibiting the use of a certain means of sales promotion may, particularly advantageous commercial although it does not directly affect imports, technique such as canvassing at private be such as to restrict their volume because it homes may affect trade between Member affects marketing opportunities for the States. imported products. The possibility cannot be ruled out that to compel a producer either to adopt advertising or sales promotion schemes which differ from one Member State to another or to discontinue a scheme which he considers to be particularly 6. In that respect I must straight away point effective may constitute an obstacle to out that the prohibition involves no imports even if the legislation in question discrimination of imported products in so applies to domestic products and imported far as the canvassing is prohibited indepen­ products without distinction'. dently of the origin of the products which are subject to it.

sale of a product and consequently to However, I must confess that the reasoning reduce the volume of imports. in Blesgen leaves me somewhat puzzled where it states that the restrictions resulting from the prohibition of the sale of alcohol for consumption on the premises does not exceed the normal scope of commercial rules. Reasoning based on the requirements of the protection of public health would seem to me to rest on a more substantial basis, since the statement that prohibiting The aforementioned Member States, on the the consumption on the premises of other hand, relied on the judgment of 31 spirituous beverages does not appreciably March 1982 in Case 75/81 Blesgen, 2where affect sales seems to be debatable, and in the Court held that the prohibition by a any event should be verified on the basis of Belgian law of the sale for consumption on objective assessments of the volume of the premises of strong alcoholic beverages in imports. places open to the public had no effect on the free movement of goods going beyond the scope of normal commercial regulation since it did not affect the numerous other forms of marketing the beverages and thus belonged to those measures which, according to Commission Directive 70/50 of 22 December 1969, 3do not as a general rule have any effect equivalent to quanti­ tative restrictions 'since such effects are As regards canvassing, I do not find the normally inherent in the disparities between views of the Member States very rules applied by Member States in this convincing, since it is clear from the respect'. The same observation applies to documents in the case and confirmed by marketing methods of instruction, in general experience that the commercial particular methods of teaching languages, method in question, apartfrom the serious which may be done in bookshops, the and justified reservations to which it gives specialist sections of large stores, by corre­ rise and which I shall discuss later, is spondence and by other means. assured of success and guarantees a sales volume which no other system even approaches. Mr Buet even stated on the subject that 90 % of his turnover comes from canvassing at the home and that prohi­ biting canvassing would practically destroy his sales possibilities for the product.

10. Since the leading judgment of 20 and there is still on the one hand a national February 1979 in Rewe, 4 the Court has provision which indirectly impedes free upheld the view that 'obstacles to movement movement and on the other a mandatory within the Community resulting from requirement which may justify the provision. disparities between national laws relating to the marketing of . .. products ... must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, 14. Of the various mandatory requirements the fairness of commercial transactions and recognized hitherto by the Court of Justice, the defence of the consumer'. the one relevant here is the protection of consumers, which subsequently constituted, no doubt also due to the impulse supplied by the same case-law, one of the objectives expressly pursued by the Community legis­ lation and in particular by Council Directive 11. It is true nevertheless that in the present 85/577/EEC of 20 December 1985 to case the obstacle to intra-Community trade protect the consumer in respect of contracts does not arise from any disparity in national negotiated away from business premises. 5 laws since it is independent of the fact that the Member State whence the product orig­ inates prohibits canvassing, as does France, or, on the contrary, permits it, as the majority of Member States seem to do.

consumers. Accordingly, Article 8 of the on the basis that the consumer is sufficiently directive expressly provides that the protected in such cases by particularly strict directive 'shall not prevent Member States guarantees imposed by specific provisions from adopting or maintaining more such as the requirement of a written favourable provisions to protect consumers contract, the customer's right to cancel the in the field which it covers'. contract within a particular period and a ban on the vendor's requiring immediate payment. The special conditions which Law No 556 of 12 July 1971 imposes on bodies providing home study courses and the guar­ antees to which such contracts are subject, moreover, give the consumer a protection 16. Nor does the defendant in the main which does not disappear simply because a proceedings dispute the Member States' contract is made at the latter's home. power to adopt particularly strict provisions to regulate sales by canvassing at the home to protect the consumer against fraud.

There is thus a whole series of not insigni­ ficant safeguards which might, if necessary, However, he cites the absence in the present be strengthened, for example, by making it case of another condition amply stressed by necessary to have contact by telephone with the case-law of the Court, namely the the potential customer to arrange a home proportionality of the means adopted in visit in advance, without its being necessary relation to the objective pursued: Member to adopt excessively restrictive measures States must satisfy the imperative need to such as an absolute prohibition of home protect consumers, as other imperative canvassing. needs of Community law, 'by adopting an appropriate measure which impedes trade between Member States as little as possible'. 6

19. A recent development in the Court's 21. The need to adopt particularly strict case-law, moreover, allows a fresh measures to ensure full protection of the approach. Whereas until now the criterion consumer in the case of home canvassing for assessing proportionality was to seems to me particularly justified in the case determine whether having regard to the of the marketing of educational material in particular level of protection determined by general and language courses in particular. a Member State, such a level might also be To promote the sale of language courses the achieved by means less restrictive of intra- vendor will contact above all people wishing Community trade than those adopted by the to learn a language of which they are said State, the judgment of the Court of 20 completely ignorant and who will be able to September 1988 given in Case 302/86 determine only subsequently whether the Commission v Kingdom of Denmark [1988] teaching method proposed has been satis­ ECR 4607, on the other hand, assumes that factory for their purpose. In contrast to the a Member State may not impose absolute supply of other goods or services, the supply observance of an imperative need of of educational material, and in particular protection and of particular rules when the the supply of language courses, is thus level of protection capable of being achieved addressed to a potential purchaser who by by other means suffices. On the basis of that definition is unable to determine the quality fresh approach it may, for example, be of the goods or services which he is offered considered whether in the present case a set and who for that reason may be more easily of measures such as that proposed by the duped than, for example, the potential defendant in the main proceedings may purchaser of a new car who will necessarily allow a sufficiently effective protection in most cases have at least some knowledge which does not expose the consumer to the of the features and functioning of the risk of fraudulent transactions except in product 'car'. isolated cases and in any event limits the seriousness of any fraud.

vation in choice can easily lead such Community law unless it is proved that the consumers unconsciously to disregard any different level of protection is attributable to doubt about the effectiveness of the the latent intention of impeding imports of teaching method or educational material to goods from another Member State. which they attach their special hopes of success in their studies or career and delib­ erately not use the guarantee machinery, for example the option to cancel the contract which may be provided for by the law. 25. It must therefore be inferred from the aforementioned considerations that the prohibition of home canvassing appears necessary to ensure the protection of the consumer at the level desired by the national 23. Finally, as compared with the marketing legislature and that that is so irrespective of of other goods and services, the sale of the seriousness of the particular body educational material differs in the fact that providing home study courses or the merit the poor quality of the material supplied of the educational material which it may have very serious consequences both in markets, issues on which Mr Buet laid financial terms, since there is often a particular stress without, however, being considerable expenditure, and in terms of able to show that the possibility of abuse, personal commitment since the person which in the past had made adoption of concerned must in any event invest much strict legislative rules necessary, has time and intellectual energy in his study henceforth disappeared. which will be wasted if the results should prove to be poor.

'Article 30 of the EEC Treaty does not preclude the application by a Member State of a domestic provision applicable without distinction to domestic and imported products prohibiting sale by means of canvassing in private dwellings of documents and educational material for learning foreign languages.'