C-1/90

Article 25 of the abovementioned law provides for a largely similar prohibition on the advertising of tobacco products. ' 1 . In communications media controlled by the Generalität and by the local authority of Catalonia all forms of advertising of By virtue of the advertising prohibition alcoholic beverages with a strength of more provided for in those provisions and in the than 23 degrees shall be prohibited. That detailed rules for their application approved prohibition shall not apply to indirect adver- in Decree N o 9 of 16 January 1986, 2 the tising by sponsors or to fixed advertising Directorate-General for Public Health of hoardings in programmes not specifically the Catalonian public authority, the intended for advertising purposes, such as defendant in the main proceedings, in sports broadcasts. Summer 1988 imposed on Aragonesa de Publicidad Exterior SA (hereinafter referred to as 'Aragonesa') and on Publivía SAE, the applicants in the main proceedings, fines amounting to PTA 75 000 and PTA 225 000 2. The advertising of beverages with an respectively, after it had been established alcohol content greater than 23 degrees that external advertising hoardings, shall not be permitted: operated by those companies, carried adver- tising for tobacco products and alcoholic beverages having an alcoholic strength of more than 23 degrees (hereinafter referred to as 'beverages with a high alcohol content'). (a) in streets, in squares, in parks, on roads and other public thoroughfares, on walls, hoardings and other means of 2. Neither Aragonesa nor Publivía * Original language: Dutch. contested the facts alleged against them, but 1 — Law No 20/85 of 25 July 1985 on prevention and assistance with regard to substances likely to lead to dependency (DOG. Num. 572, de 7-VIII-1985, p. 465). 2 — DOG No 646, of 7 November 1986, p. 380.

3. A prohibition on advertising such as that provided for in Article 19 of Law No 20/85 undoubtedly constitutes trading rules '(1) Does a law of a Member State (or, in capable, within the meaning of the this case, of the Parliament of an Dassonville judgment of impeding directly autonomous community of a Member or indirectly, actually or potentially, intra- State with powers, under domestic Community trade. 4 The prohibition on legislation, to legislate on particular advertising may in fact make the sale of matters) which prohibits, within the imported products more difficult and/or less territory under its jurisdiction, the attractive and thus constitute a measure advertising of beverages of an alcoholic strength of more than 23 degrees in (a) 3 — U should be observed that the questions submitted for a the mass media (b) streets and preliminary ruling solely concern the advertising ban in respect of drinks with a high alcoholic content (Article 19 highways, with the exception of signs of Law N o 20/85) and not the prohibition also mentioned above concerning the advertising of tobacco products indicating centres of production and (Article 25 of Law N o 20/85), although it is clear from the sale (c) cinemas (d) public transport, Orders for Reference that the applicants in the main proceedings raise the question of the compatibility of both constitute a measure having an effect products with Article 30 of the EEC Treaty (in the equivalent to a quantitative restriction Aragonesa case, see the Order for Reference, at p. 2, and in the Publivía case, the Order for Reference, at p. 3). on exports within the meaning of 4 — Judgment in Case 8/74 Dauonville [1974] ECR 837, para. Article 30 of the EEC Treaty? 5.

The defendant in the main proceedings and 5. The Court has consistently held that the the Commission claim that the prohibition Member States may no longer rely on of advertising seeks to protect public health Article 36 of the EEC Treaty in order to and therefore, in spite of the (potential) justify rules restrictive of trade, when obstacles which it constitutes for intra- Community directives provide for the Community trade, is none the less complete harmonization of all measures compatible with Article 30 of the EEC necessary to ensure the protection of the Treaty. The applicants in the main interests enumerated in that article. 6 With proceedings do not share that point of view. regard to the advertising of alcoholic beverages, Community rules exist currently only with regard to television advertising and those rules, contained in Directive 8 9 / 5 5 2 / E E C , provide for the Member Applicability of Article 36 of the EEC States to bring into force the legislation, Treaty regulations and administrative provisions necessary to comply with the directive with effect from 3 October 1991. 7 Currently, it is not therefore appropriate to speak of 4. The applicants in the main proceedings complete harmonization, so that recourse are proceeding on the principle that the may be had to Article 36 of the EEC prohibition on advertising under exam- Treaty. N o r is that contested by the ination constitutes a discriminatory trading applicants in the main proceedings. rule. I do not share that opinion (see paragraph 10 below). If the national court were nevertheless to consider the present case to involve discriminatory rules, the prohibition of advertising may nevertheless be compatible with Article 30 of the EEC 6. It is also clear from the Court's settled Treaty by virtue of Article 36. Under the case-law that recourse to Article 36 of the terms of the first sentence of that article, 'the provisions of Articles 30 to 34 shall not 6 — Judgment in Case 227/82 Van Bennekom [1983] ECR preclude prohibitions or restrictions on 3883, para 35, and more recently the judgment in Case C-347/89 Freistaat Bayern v Eurim-Pbarm GmbH [1991] imports . . . justified on grounds of . . . the ECR 1-1747, paragraph 26. protection of health and life of humans 7 — See Article 15 of Council Directive 89/552/EEC of 3 Even discriminatory trading rules whose October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in objective is to protect public health may Member States concerning the pursuit of television broad- casting activities (OJ 1989 L 298, p. 23). That article therefore be accepted if the conditions laid imposes certain restrictions on television advertising for down in the second sentence of Article 36 alcoholic drinks. That advertising may not be aimed speci- fically at minors or depict minors consuming these drinks and developed in the Court's case-law are (a), it may not create the impression that the consumption of alcohol contributes towards social or sexual success (c), or it may not place emphasis on high alcoholic content as 5 — At paragraph 11. being a positive quality of the beverages (f).

EEC Treaty in order to justify trading rules Even if beverages with a high alcohol such as the prohibition on advertising in content were in themselves not considered issue is possible only if the trading rules in more dangerous in themselves for public question satisfy the requirements of health because of their high alcohol content necessity and proportionality contained in than beverages with a low alcohol content, 9 the article in question. that does not mean that only a prohibition of the advertising of all alcoholic beverages is appropriate for protecting public health.

trade. It should be observed straightaway that the Court has already expressly acknowledged in its Commission v France judgment, cited above, that the advertising of alcoholic beverages undeniably constitutes an incitement to consumption and that it may therefore be asserted that requirements laid down with regard to the advertising of alcoholic beverages fall within the sphere of the fight against alcoholism Moreover, there are in my view, no alter- and the protection of public health. 8 native rules which would be less restrictive Aragonesa and Publivia point out, however, of trade. Since the intention is to prevent that the prohibition of advertising is aimed the population from being exposed against in the present case solely at beverages with a its will in public places or through the media high alcohol content, whilst beverages of controlled by the public authorities, ' 2 to low alcoholic strength, which account for 94.7% of alcohol consumption, are not 9 — That line of thinking is put forward by the applicants in the main proceedings and the United Kingdom and they

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In requirement, the prohibition on advertising particular it seeks to remove from the under examination and the resulting advertising prohibition beverages with a low impediment to the free movement of goods alcohol content of which Catalonia is a big do not appear to me disproportionate in producer, and to include within it beverages relation to the objective pursued by the with a high alcohol content which are prohibition and the result achieved thereby. essentially non-Catalan products. They The advertising ban does not make the point out that the Catalan authorities did importation and sale of beverages with a not mention in the observations which they higher alcohol content impossible but only submitted to the Court scientific studies more difficult.

The conclusion content from those with a high alcohol may therefore be drawn that the restriction content. By all accounts, that limit (more or on trade occasioned by the advertising ban less) corresponds to the distinction between is not likely to jeopardize market inte- alcoholic beverages obtained by fermen- gration, and that the prohibition is not tation and alcoholic beverages obtained by disproportionate to the objective of public distillation, 17 which is a distinction corre- health pursued by it. sponding to differences in consumption habits and economic operators.

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ARAGONESA DE PUBLICIDAD EXTERIOR AND PUBLIVlA

Trading rules constitute a disguised applicable to all beverages with a high restriction on intra-Community trade when alcohol content irrespective of origin. the restrictive effect of the rules on trade is However, they point out that the Catalan not limited to what is necessary in order to prohibition on the advertising of beverages protect the interest referred to by the rules. with a high alcohol content in practice As I have already stated above (paragraph affects mainly beverages with a high alcohol 7), that is not so in this case. content of a non-Catalan origin, because Catalonia produces those beverages only in limited quantities. They also point out that the wines and 'cavas', beverages with a low alcohol content of which Catalonia is a I thus come to the conclusion that all the major producer, do not fall within the preconditions of Article 36 are satisfied and advertising ban and are thus indirectly that a trading rule such as the prohibition afforded more favourable treatment. They on advertising in question, which seeks to do not deny that the prohibition also affects protect public health — even if it were national, that is to say Spanish, 19 beverages discriminatory, which is not the case (see with a high alcohol content but they below) — is by virtue of Article 36 not consider that, since that prohibition was incompatible with Article 30 of the E E C introduced not by Spain but by Catalonia, it Treaty. cannot be said to constitute disguised discriminatory trading rules because it does not affect specifically Catalan interests and on the contrary indirectly favours them.

11. Ordinarily I would hardly need to the information available the advertising ban examine this point because, even if the is not discriminatory. First of all I would trading rules were discriminatory they emphasize that — contrary to the assertions may — as I have tried to show above — be made by Aragonesa and Publivia — the justified on grounds of public health under Catalan production of beverages with a high Article 36 of the EEC Treaty. However, the alcohol content is certainly not negligible 21 reasoning adopted by the Commission and and that the advertising ban thus also by the Catalan Government (in the obser- actually affects Catalan interests. Secondly, vations which it submitted to the Court in it is not at all certain in my view that the the Publivia case) raises the question local production of beverages with a low whether the advertising ban, on the alcohol content enjoys an indirect benefit as assumption that it is not discriminatory, a result of the advertising ban on beverages must nevertheless be regarded as compatible with a high alcohol content. That would with Article 30 of the EEC Treaty under the presuppose in fact that beverages with a 'Cassis de Dijon' principle or by virtue of high alcohol content and those with a low Article 36 of the EEC Treaty. I will express alcohol content are competing products. It a view on these two points in order to should also be pointed out that, although supply the national court with all the Catalonia is without any doubt a major elements of Community law which may be producer of beverages with a low alcohol useful to it in order to assess whether the content (and in particular of wine and rules are discriminatory or not, and if they 'cavas') (and that those beverages are not are not, in identifying the specific grounds covered by the advertising ban, Catalonia on which they are compatible with Article also imports many beverages with a low 30. alcohol content which are not affected by the advertising ban. Finally, I am not persuaded that, as argued by Publivia, imported beverages with a high alcohol content, as opposed to such beverages of Spanish origin, are still only little known to the Catalan consumer and that the adver- 12. With regard to the discriminatory tising ban thus affects imported beverages nature or otherwise of the advertising ban, I more severely. It is clear from the infor- would first observe that, as the Court mation available that in 1988 imports from expressly stated in its paragraphs 12 and 13 abroad into Catalonia of beverages with a of its judgment in Du Pont de Nemours high alcohol content were worth PTA 4.3 Italiana,10 even if the restrictive effect on billion, whilst the total consumption of such trade occasioned by the rules of a Member beverages there was worth PTA 7.3 billion. State does not benefit all national products Moreover, the list annexed to the obser- but only those of a certain region of a Member State, those rules are nevertheless discriminatory under the Court's case-law.

vations submitted by the Catalan authorities catory ground mentioned in Article 36. The lead to the conclusion that a very extensive question has arisen because in the 'Cassis de range of beverages with a high alcohol Dijon' judgment itself the Court held that content is imported and sold in Catalonia.22 the protection of public health was a mandatory requirement and it has never gone back on that in subsequent judgments.23 During the last 10 years the Court on each occasion when it has had to determine whether non-discriminatory rules impeding trade pursuing the objective of In my opinion it is clear from the foregoing protecting public health were compatible observations that the advertising ban in with Article 30 of the EEC Treaty, has question does not constitute a discrimi- examined whether Article 36 of the EEC natory trading rule but on the contrary is Treaty was applicable or not. 24 applicable without distinction to national and imported products.

the same circumstances. The problem is thus Motte [1985] ECR 3887, at paragraphs 17 et seq.; in Case 304/84 Ministère Public v Muller [1986] ECR 1511, at whether, as I have already pointed out, the paragraph 16; in Case 178/84, the Reinheitsgebot case, (non-discriminatory) rules in question in Commission v Germany [1987] ECR 1227, at paragraphs 40 et seq.; in Case 407/85 3 Glocken and Another w USL such a case fall under Article 30 as a result Centro-Sud and Another [1988] ECR 4233, at paragraphs of a mandatory requirement as recognized 11 « seq.; in Case 125/88 Nijman [1989] ECR 3533, at paragraphs 12 et seq.; in Case C-42/90 Bellon [1990] ECR in the 'Cassis de Dijon' case or whether they 1-4863, at paragraph 10 et seq.; in principle fall under that provision but By way of example, reference may be made here to the S Glocken judgment, paragraph 11, in which the Court held escape the application thereof on the justifi- that: 'It should be observed that a prohibition on the sale of pasta products made from common wheat or from a 22 — It should also be pointed out that, in spite of the adver- mixture of common wheat and durum wheat is an obstacle tising ban, there has been in Catalonia over the years a to the importation of pasta products lawfully made in major increase in the consumption of imported beverages other Member States from common wheat or from a

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might be taken that Article 36 operates only Moreover, the theoretical objection may be once it is established, with the aid of the overcome by stating that the principle of the 'Cassis de Dijon' doctrine, that the Article 'protection of health' mentioned in Article 30 prohibition is indeed applicable. 36 operates as a justificatory ground in the case of a discriminatory measure whereas, in the case of a non-discriminatory measure, Notwithstanding that theoretical reservation it takes the form of an imperative I am of the opinion that under its current requirement within the meaning of the case-law, the Court is correct to have direct 'Cassis de Dijon' doctrine. recourse to Article 36 where one of the grounds of justification mentioned in that article is raised. Indeed it seems to me Although that is, as I have stated above, a curious to rely on an unwritten 'imperative question of no great practical importance, it requirement' of public health when the would nevertheless be desirable if the Court public health justification is expressly were to use the opportunity afforded to it in provided for in a provision of written law. this case to clarify this point.

15. In the light of the foregoing I propose that the Court should give the following answer to the questions referred to it for a preliminary ruling:

' 1 . Article 30 must be interpreted as meaning that in principle it precludes rules which make it an offence under certain circumstances, though not absolutely, to advertise beverages with an alcoholic strength of more than 23 degrees;