C-25/88

OPINION OF MR VAN GERVEN —CASE25/88

OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on 15 December 1988 *

Mr President, 'Products must, upon being placed on the Members of the Court, market for the first time, conform to the rules in force regarding the health and safety of persons, fair trading and consumer protection.

* Original language: French.

CRIMINAL PROCEEDINGS v WURMSER AND OTHERS

reproduced in the sales invoices the compo­ (2) If the first question is answered in the sition of the goods as indicated on the negative, do the French rules constitute invoices submitted by its own foreign an exception to Article 30 of the Treaty suppliers. of Rome justified by Article 36 of the Treaty?'

3. When carrying out a spot check, the service de la répression des fraudes It would seem that those questions do not (Prevention of Fraud Department) took 18 have to be construed as meaning that the samples of different sorts of fabric which national court is asking the Court of Justice were being offered for sale in the Bouchara to determine the compatibility or otherwise shop in Toulouse and which had been of certain provisions of French law with supplied by Norlaine. Of the 18 samples Community law. I would propose therefore tested by an official laboratory, seven were that the Court should reformulate them as found not to conform to the declared follows: composition. It was in those circumstances that Mrs Bouchara (née Wurmser) and Mr Bloch, the managers of Norlaine, were prosecuted before the tribunal de grande instance de Bobigny for deceit as to the 'Do Articles 30 and 36 of the EEC Treaty composition of goods by offering for sale or preclude the introduction or maintenance of causing to be offered for sale textile an obligation, failure to fulfil which will products bearing false information as to give rise to criminal liability imposed on the their composition contrary to the Law of 1 person who first places a product on the August 1905. market, to verify the conformity of that product with the national rules on the health and safety of persons, fair trading and consumer protection?' The questions referred to the Court and the terms in which they are formulated

The rales on criminal liability in French law sufficient to prove the existence of a frau­ dulent intention on his part. It was only where he himself did some work on the goods that the courts regarded him as liable 6. According to the second sentence of in criminal law. Article 11-4 of the French Law of 1 August 1905, 'the person responsible for placing the product on the market for the first time [is] to verify its conformity with rules in force'. That provision was introduced by a law of 1983 which affirmed a line of judicial authority assimilating the absence of verifi­ Although the Law of 1905 punishes anyone cation to serious negligence. I think it who deceives or attempts to deceive a party would be useful to give a brief account of with whom he has concluded a contract, it the context and scope of those judicial was thus in principle the producer who was decisions. presumed to be responsible for the deceit for the obvious reason that he is the person best placed to be aware of and indicate the composition of his own goods. However, the courts derogated from that twofold Article 1 of the Law of 1 August 1905 lays system in regard to the down criminal penalties for any person who distributor-cum-importer of products not deceives or attempts to deceive a party with manufactured in France. The criminal whom he has concluded a contract, in liability of such a person for deceit was the particular as to the composition of the same as that of a producer of French goods delivered. That offence of deceit products. The practical difficulties involved requires a fraudulent intention. In assessing in making foreign manufacturers amenable that intention, the case-law prior to the Law to the criminal law seems to have been the of 1983 made a distinction between the reason for the assimilation of the situation producer and the distributor of products. of the importer to that of the producer. In any event, the Law of 21 July 1983 affirmed that case-law. It is now expressly provided that the person responsible for placing the The courts considered that bad faith on the product on the market for the first time, part of the producer could be deduced from that is to say, the French producer or the a failure to undertake a verification. For importer of a product not produced in that reason, the offence of deceit had prac­ France, is required to verify the conformity tically become, so far as the producer was of the product with the rules in force. concerned, an offence not requiring any mental element, that is to say an offence which may be proved on the basis of mere negligence on the part of the producer, without there being any need to show that he had any guilty intention. 7. There are, however, gaps in the statutory provision which must be borne in mind when its lawfulness in regard to Community law is being considered. Thus , it is silent as The decisions on the criminal liability of the to the scope of the obligation to verify the distributor were different. The failure to conformity with national rules of products undertake a verification was not regarded as placed on the market. In reality, such verifi-

However, neither the general directive of 1984 nor the special directive on textile products of 1971 preclude the Member States from maintaining in force provisions Another point on which the provision intended to provide greater protection, in involved is unclear concerns the particular, as in this case, an obligation on enumeration of the national provisions to those who put products on the market to which the imported products must conform. verify the composition thereof, failing which Article 11-4 of the Law of 1905 merely they will be subject to stricter criminal states in general terms that products 'must liability. conform to the rules in force regarding the health and safety of persons, fair trading and consumer protection'. Imported products must therefore conform to all the rules adopted by the national authorities on 9. Those preliminary observations do not the matters referred to in that provision. ' provide an answer to the more general question whether, in regard to all the 1 — The French Government's expert stated at the hearing that the provision referred to all products, with the exception of matters covered by Article 11-4 of the Law pharmaceutical products which are governed by a special of 1905, Community law does or does not code. contain a corpus of harmonized rules. It is

OPINION OF MR VAN GERVEN —CASE 25/88

10. According to Article 30 of the EEC May the obligation to verify none the less be Treaty, quantitative restrictions on imports justified under Article 30 of the EEC and all measures having equivalent effect Treaty? are prohibited in trade between the Member States. A measure which imposes on an importer-cum-distributor an obligation, failure to fulfil which will make him subject to a regime imposing stricter criminal 11. In the 'Cassis de Dijon' judgment liability, to ensure the conformity of (judgment of 20 January 1979 in Case imported products with the national rules, 120/78 Rewe v Bundesmonopolverwaltung whereas the criminal law does not impose für Branntwein [1979] ECR 649) and on the same obligation on distributors of numerous subsequent occasions the Court domestic products, constitutes at first sight a held that, in the absence of common rules

CRIMINAL PROCEEDINGS v WURMSER AND OTHERS

products. They say that distributors are more severely treated when they market products originating elsewhere in the Community than when they market French The Court thus laid down the principle of products because, in the first case, the proportionality according to which mental element of the offence of deceit is restrictions imposed on intra-Community presumed to exist whereas, in the second, trade may be permitted only if they are not that element must be proved. They do not disproportionate to the objectives legit therefore consider the scope of the obli imately being pursued. However, the Court gation to verify the conformity of products reserved that ground of justification for with the national rules but, skipping one national measures which are not inherently step in the reasoning processs, address discriminatory in regard to imported themselves directly to the penalty to which

The as the condition laid down in the 'Cassis de obligation to undertake that verification Dijon' judgment is not fulfilled, that is to thus concerns all products which are placed say, if the measure concerned goes beyond on the French market for the first time. what is necessary in order to satisfy According to the French Government, and I imperative requirements. believe the Court should take the same view on this point, the obligation thus applies without distinction to all products placed on the French market for the first time and, therefore, to all those responsible for that It must therefore be considered first initial placing on the market, namely the whether the measure concerned is discrimi manufacturers of domestic products and the natory in nature or, on the other hand, importers of products originating elsewhere whether it is applicable without distinction. in the Community.

The fact that that obligation, according to consumer protection) are among the matters the scope given to it, may be more in regard to which, according to the settled burdensome for the importer than for the case-law of the Court, provisions which manufacturer (by reason of the fact that the create a hindrance to intra-Community latter has control over the product) and, trade may be justified in so far as they do therefore, may have a more or less not impose restrictions which exceed what is considerable dissuasive effect on intra- necessary for the realization of the Community trade does not change the objectives concerned. nature of the provision, which is not discriminatory (in form). Such a consideration of the scope of the obligation to verify is, however, important in deter­ mining whether the obligation may be justified on the basis of the principle of proportionality, that is to say, in deter­ mining whether the hindrance to intra- Furthermore, it is perfectly possible for a Community trade inherent in the obligation national provision to pursue several to verify is justified having regard to the objectives simultaneously without its being imperative objective which the measure possible to determine which objective is the concerned seeks to achieve. dominant one. Thus, there are provisions which seek to protect the consumer not merely from the point of view of health and safety but also in regard to fair trading. In Does the obligation to verify go beyond that case, the provision may be justified, what is necessary to achieve the objectives under the conditions set out above, both aimed at by the provision? under Article 36 and under Article 30 of the Treaty (see judgment of 6 June 1984 in Case 97/83 Melkunie [1984] ECR 2367 and the Opinion of Mr Advocate General VerLoren van Themaat). 13. The objectives pursued by Article 11-4 of the Law of 1905 can be seen from the text of the provision itself. From the time they are placed on the market for the first time, products must conform to the provisions in force regarding 'the health and safety of persons, fair trading and consumer protection'. The objectives regarding the 14. How far does the duty to verify laid health and safety of persons are among down in Article 11-4 of the Law of 1905 those expressly mentioned in Article 36 of go? As I have indicated in section 7, the the EEC Treaty. Measures which constitute parties give very different answers to that a hindrance to intra-Community trade but question. However, it is not for the Court which are intended to achieve objectives of to determine the scope of the obligation to that nature may, in an appropriate case, be verify laid down in Article11-4 of the Law justified under Article 36. I will return to of 1905. It is for the national courts to this question in sections 20 and 21. clarify that situation. The Court of Justice must rule on the conditions under which a measure requiring a verification of the conformity of imported products with the The other two objectives which it is sought rules of the country of importation is itself to achieve in this case (fair trading and in conformity with the EEC Treaty.

15. In that regard, a position must first be element of intention in the offence of deceit adopted on the actual principle of such a does not have to be proved does not appear measure. In the present state of Community to me to be disproportionate to the law, the rules concerning fair trading and objectives which it is sought to achieve, in consumer protection are far from being so far as the scope of the obligation to harmonized. The Member States may verify is itself reasonable. therefore require that products imported from other Member States comply with their national rules in those areas. As a corollary of that requirement, they may also 16. Let me now turn my attention speci­ require the importer to verify the fically to the scope of the obligation to conformity of the imported products with verify the conformity of imported products the rules in force, as long as that obligation with national rules. Such verification applies to all products, including domestic implies, as I have already indicated, products, which are placed on the market knowledge in two respects. It implies, on for the first time. the one hand, knowledge on the part of the importer of the national rules concerned. That aspect poses no immediate problems in this case. It could however raise difficult problems of compatibility of national rules In the present state of the conventions on with Community law. However, the diffi­ the execution of foreign judgments in culties which result from this are identical criminal matters, it is understandable that an both for the importer of Community obligation, for breach of which a products and for the manufacturer of criminal-law penalty is provided, to carry domestic products. Verification implies, on out a check of imported products is not the one hand, a sufficient knowledge on the imposed on the foreign manufacturer. It part of the importer of the characteristics of should also be noted that Council Directive the imported products so as to be able to 85/374/EEC of 25 July 1985 on the determine whether or not they conform to approximation of the laws, regulations and the rules in force in the importing country. administrative provisions of the Member In order to acquire that knowledge of the States concerning liability for defective imported products, what steps may be products (Official Journal 1985, L 210, required, within the limits of compliance p. 29) has opted for a similar solution in with Article 30 of the EEC Treaty and the regard to products imported into the principle of proportionality therein Community: under that directive, the contained? What measures unfavourable to importer is liable on the same basis as the intra-Community trade may none the less be manufacturer. Although in this case civil justified, by reason of the objective legit­ liability is concerned, the comparison is not imately pursued, so as not to fall under the uninstructive. prohibition of measures having equivalent effect laid down in Article 30 of the EEC Treaty? Those are the crucial questions in this case.

general, it may be said that the Court, 18. The judgment of the Court of 15 applying the principle of proportionality, December 1976 in Case 41/76 Doncker- has not accepted long and costly verification wolcke v Procureur de la République [1976] measures which are not justified having ECR 1921 is also cited by the defendants in regard to the objectives which the verifi the main proceedings. In that judgment, the cation system is intended to achieve. As a Court first held that, in intra-Community corollary to the same rule, the Court has relations, Article 30 precluded the main also not accepted that Member States may tenance in effect by national legislation of a seek information the provision of which requirement, even of a purely formal nature, makes imported products dearer when equi of import licences or any other similar

The Court took Court in the abovementioned judgment, an into consideration the imbalance between initial conclusion may be drawn in this case. the restriction imposed on the importer by If the importer can avoid criminal liability the obligation to provide information which only by systematically carrying out long and he could not reasonably know and the rela costly laboratory analyses in respect of each tively limited importance of the objective of imported product even though the same the measure. It seems to me, however, analyses, dealing with the same subject- hazardous to infer from the judgment of 15 matter, have already been carried out in December 1976 that the Court is generally another Member State by or at the request disposed to consider that the Member States of the manufacturer, it is obvious that such may not ask of importers anything other rules are of the kind envisaged by the than what they know or might reasonably prohibition contained in Article 30 of the be expected to know concerning the EEC Treaty. imported products.

19. In the light of the foregoing, it seems to product in order to establish such me that the provisions of the EEC Treaty conformity, the importer may be required to do not preclude an obligation imposed both carry out the analyses required, if only on a on importers and on domestic manufac­ sample basis — to determine whether the turers to have available to them documents products conform to the national rules. which indicate the characteristics of Similarly, where the importer has reason to products placed on the market and enable doubt the accuracy of the documents them to verify the conformity of those supplied by the manufacturer, Member products with the national rules of the States may have recourse to the seller's duty importing State (see the judgment of 17 of care in order to require him to verify, if December 1981 in Case 272/80, cited only on a sample basis, the accuracy of the above, [1981] ECR 3291, paragraph 15, and information supplied. the Opinion of Mr Advocate General VerLoren van Themaaat in Case 124/81 Commission v United Kingdom [1983] ECR 248, and at p. 249). However, it is not Can the obligation to verify be justified permissible for that obligation to result in an under Article 36 of the EEC Treaty? importer being required to draw up the documents concerned at his expense where those documents already exist. As a general rule, the importer must be able to verify the 20. I indicated above the limits within conformity of the products on the basis of which an obligation to verify the conformity documents drawn up by or at the request of of imported products with national rules in the manufacturer of the product originating regard to fair trading and consumer elsewhere in the Community if, I repeat, protection appears to me to be justified those documents enable him to verify the under Article 30 of the EEC Treaty. It now conformity of the product with the rules of remains for me to consider whether the the importing State. Normally, he must reply should be different if the obligation is therefore be able to rely on statements made to verify the conformity of imported by a manufacturer established in another products with national rules, not Member State, whether made on the harmonized in Community law, concerning initiative of the manufacturer or at the the health and safety of persons. Those two request of the importer. matters are expressly referred to in Article 36 of the EEC Treaty.

priate legal basis. In both cases, however, objectives which may justify measures with the measure concerned may be justified only reference both to Article 30 and to Article if it does not impose restrictions going 36 of the Treaty), I think that line of beyond what is necessary to achieve the reasoning must none the less be qualified. It objectives pursued (see the judgment of 20 is only where the national legislature itself May 1976 in Case 104/75 de Peijper [1976] lays down a hierarchical relationship ECR 613, in particular paragraphs 16 to 18 between the objectives which the provision at p. 636. At the very most, it might be said seeks to achieve, making clear the priority that Member States are entitled to require a which it attaches to the objectives higher degree of care on the part of the concerning the health and safety of persons persons concerned when they are called compared to the other objectives pursued, upon to verify the conformity of a product that restrictions arising from the obligation with national rules intended to realize the to verify conformity with rules concerning objectives mentioned in Article 36 of the health and safety may be reinforced without Treaty. In other words, having regard to the those greater restrictions being regarded as importance which the authors of the Treaty unjustified hindrances. In the present case attached to the matters provided for in there is an obligation to verify which is laid Article 36, the Member States might impose down in very general terms without a in such a case, but always subject to distinction being made in the provision itself compliance with the principle of propor­ between the various objectives pursued. tionality, restrictions relatively more severe Furthermore, the provision does not than what is permissible on the basis of concern pharmaceutical products, which are Article 30. governed by a special code (see footnote 1). The provision in point does not therefore require that a distinction be drawn Applied to a provision which seeks to according to whether Article 30 or Article achieve 'mixed objectives' (that is to say, 36 of the EEC Treaty is concerned.