C-69/88

OPINION OF MR DARMON —CASE C-69/88

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 12 December 1989 *

* Original language: French. 1 — First paragraph of Article 16 of the Law of 22 May 1845.

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4. Inasmuch as Netherlands legislation designed to regulate trade with other divests suppliers who are nationals of Member States. The Invorderingswet, which another Member State of the right to applies without distinction to domestic and reclaim their property seized by the tax imported goods furnishing the place of authorities along with the other goods of its residence of the tax debtor, with the debtors, the Court is requested to rule on exception of stocks, belongs to what one whether that legislation is to be regarded as might call the general legislative framework a measure having equivalent effect to a of business activities. It is distinct from quantitative restriction on imports within legislative provisions relating directly and the meaning of Article 30 of the EEC exclusively to the conditions for the Treaty and, if so, whether its application is production or marketing of certain products justified under Anicie 36. or types of product, whose effects on imports must be assessed, as far as the prohibition under Article 30 is concerned, by reference to the guidelines laid down by this Court in its 'Cassis de Dijon' 5. As was observed above, in the course of 3 judgment. The Court's recent judgment in the main proceedings Krantz GmbH 1 the case of Tor/aen Borough Council seems submitted that there was, in the circum­ to demonstrate that where provisions stances of the case, a measure having equi­ forming part of the abovementioned legis­ valent effect and stated that the rights of lative framework have effects on imports, seizure held by the Netherlands tax auth­ their compatibility with Article 30 is subject orities was 'prejudicial to trade in goods in 2 to somewhat different legal criteria. the Netherlands' and that a general awareness of those rights outside the Netherlands would lead to a considerable decline in sales on instalment terms from the other Member States.

9. On the first point the Court, drawing or not the effects on imports were excessive b parallels with the Oebel case, took the view for the attainment of an objective which was that national rules governing the opening in itself legitimate. hours of retail premises 'reflect certain political and economic choices in so far as their purpose is to ensure that working and non-working hours are so arranged as to 11. However, I do not propose that the accord with national or regional socio Court should contend with any such cultural characteristics, and that, in the problems. It seems to me that a situation present state of Community law, is a matter 7 such as the one described by the national for the Member States'; accordingly, those court does not even lend itself to an national rules had to be regarded as approach of the kind adopted in the Torfaen consistent with the objectives of public Borough Council judgment. In my opinion it interest pursued by the Treaty.

10. Should the Court, in answering the seizure of property such as those at issue questions submitted by the Arrondissements here. There is therefore no cause in the rechtbank, adopt a similar approach? If so, present case to make compatibility with the Court must consider whether the aim Article 30 dependent on the extent to which pursued by the Invorderingswet, namely to imports are effected; rather, there are ensure that action to recover taxes is grounds for concluding that the compati effective, is in keeping with the broad bility of the national measure with Article objectives of the Treaty and, if necessary, 30 is shown quite simply by the absence of inform the national court that it is any bearing on imports. responsible for ascertaining whether or not the effects on imports of that law do go beyond what is necessary to ensure the effectiveness of such action.

the Treaty. Decisions on such matters in the Netherlands or elsewhere in the remain within the powers of the Member Community, does not cover stocks of raw States. In that hypothesis the Dutch court materials, auxiliary materials, or finished would have the task of determining whether products. Its scope is thus strikingly limited. Moreover, the Invorderingswet has no effect on the volume of demand from 6 — Judgment of 14 July 1981 in Case 155/80 [19811 ECR

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goods on instalment terms by sellers, who 14. I must also make some remarks might hesitate to enter into a contract with prompted by the comparison of the present a buyer subject to Netherlands direct case with the circumstances which gave rise taxation. I should emphasize the merely to the Court's judgments in Blesgen* and 9 hypothetical character of any 'reluctance' on Forest. In the first judgment the Court the sellers' part, inasmuch as such reluctance ruled that legislation prohibiting the could only relate to the materialization of consumption, with or without charge, in all an uncertain event — indeed, an event places open to the public of spirits whose uncertain on two counts, since the risk of alcoholic strength exceeded 22° had seizure of goods sold on instalment terms to a Netherlands buyer does not arise unless (i) that buyer also turns out to be a defaulting debtor of direct taxes, and (ii) the competent national authorities decide to resolve the situation by the seizure of 'in fact no connection with the importation property. Lastly, it may be added that in of the products' facing that risk (if any) all sellers are on the same footing, whether they are Netherlands nationals or from another Member State.

and for that reason was not

13. In the light of those considerations I find it difficult, to say the least, to describe the Netherlands law in question as a measure restricting imports on the basis of the argument — the only argument which 'of such a nature as to impede trade can be made in this respect — that between Member States'. ,0

16. The very broad definition of a 'measure having equivalent effect' formulated in the In both those cases the national measures at Dassonville judgment has since 1974 served issue, although considered to have no as a constant point of reference for bearing on imports, were nevertheless of subsequent judgments on the subject. The such a nature that their abolition might have inherent breadth of that definition and the enabled imports to increase. Thus, since Court's concern, apparent in its judgments, according to the case-law of the Court it is not to reduce its scope fully explain why possible, in certain circumstances, to regard businessmen have attempted to have a wide legislation as having no bearing on imports variety of measures treated as measures when that legislation is in fact not totally having equivalent effect to quantitative without effects in that regard, the same restrictions on imports, where such an effect must be true a fortiori of measures whose — however indirect and tenuous — restrictive effect, whether actual or cannot be altogether ruled out. The Court's potential, is simply undetectable. judgment in Torfaen Borough Council, based on the Cinéthèque judgment, provides some clarification to the effect that restrictive effects on imports, if inherent in legislation pursuing goals permitted by the Treaty, cannot, unless they are disproportionate, 15. Admittedly, the status of the Blesgen cause a measure to be regarded as a and Forest judgments within the Court's measure having equivalent effect to quanti­ case-law on measures having equivalent tative restrictions. Thus a 'lower limit' for a effect is perhaps rather peculiar. It was to measure having an equivalent effect to that peculiarity that Mr Advocate General quantitative restrictions on imports is Van Gerven was alluding in his Opinion in becoming discernible. The present case falls the Torfaen Borough Council case when he short of the lower limit, or the 'lower limit noted that 'the factual context of those n to the lower limit', since the alleged effects judgments was quite specific' and when he 12 on imports of the Invorderingswet cannot referred to the 'empirical judgment' be substantiated in the first place. which the Court had exercised. Perhaps, in the light of the wording used in the Ciné- thèque and Torfaen judgments, the Court would today have used slightly different terms with which to justify its conviction that measures similar to those considered in the Blesgen and Forest judgments are 17. In the absence of any perceptible effect compatible with Article 30. However, I also on imports, there can be no measure having believe that if ever a national measure equivalent effect. I therefore take the view that the first question submitted for a preliminary ruling must be answered in the 11 — Case 148/85, cited above in footnote 9, paragraph 19. 12 — Case C-145/88, cited above in footnote 4, paragraph 7 of negative, from which it follows that it is not the Opinion. necessary to answer the second question.