C-239/90

OPINION OF MR TESAURO —CASE C-239/90

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 5 March 1991 *

Mr President, Several traders operating in that sector, the Members of the Court, Monégasque company British Motors Wright and other French companies, took the view that, under the 1841 Law, such sales were unlawful and applied for and obtained from the Tribunal de Grande Instance, Paris, an order prohibiting them. The contention that that prohibition was The French Cour de Cassation incompatible with Community law was not (Commercial, Financial and Economic accepted either at first instance or on Chamber) has referred to the Court of appeal; however, at last instance the Cour Justice for a preliminary ruling a question de Cassation entertained some doubts and it on the interpretation of Articles 30, 36 and is those doubts, set out in four questions, 59 of the EEC Treaty, in relation to a Law that the Court of Justice is called upon to of 1841, as amended in 1943, of which resolve. Article 1 lays down the conditions for the retail sale of used goods by public auction. In particular, that national law prohibits sales of that type for goods 'belonging to or held by a trader who has not been I do not, I think, need to dwell on the first registered for at least two years in the two questions, which concern whether Registre de Commerce (Trade Register) and Article 59 of the Treaty, properly construed, the Rôle des Patentes (Business Tax Roll) is applicable to occasional sales in one within the jurisdiction of the Tribunal de Member State at which a trader established Grande Instance (Regional Court) in which in another Member State sells by public the sale is to take place'. auction second-hand goods belonging to him, and, if so, whether the requirements laid down by the 1841 Law constitute unlawful restrictions. The answer can, without any reasonable doubt, only be negative.

In its third question, the Cour de Cassation asks whether Article 30 of the Treaty is to be interpreted as preventing the application of the 1841 Law in so far as it imposes on Since the legislation at issue applies without the seller of second-hand goods from distinction, the question must be asked another Member State the obligation to whether the barrier to imports apparent in have been entered in the Trade Register in the French Law is necessary to satisfy the district where the sale is to be carried mandatory requirements, in particular out for at least two years. If the answer is consumer protection and the fairness of yes, the national court asks (in its fourth commercial transactions. Needless to say, question) whether the restriction may be British Motors Wright and the other traders justified on grounds of public policy under who brought the proceedings, who are the Article 36 of the Treaty. respondents before the Cour de Cassation, advocate an answer in the affirmative, relying in particular on authoritative opinions to the effect that sales by auction The answer to those questions seems to me favour speculation, mislead buyers who have to be straightforward, having regard to the no time to reflect, enable a trader on the consistent and unequivocal line taken by the verge of bankruptcy to undermine his Court. creditors' security and even facilitate the disposal of stolen goods.

cars — so long as he is not someone whose Similar conclusions apply to the question agreement to buy has been obtained by the concerning Article 36 of the Treaty, in seller by surprise and deception — has an relation to the issue of public policy. opportunity in all cases to reflect and to Bearing in mind that it is a provision which verify the quality of the product and the must be interpreted strictly, the documents 'propriety' of its origins, as well as the relia­ in this case do not appear to me to disclose bility and commercial standing of the seller; any serious reason to conclude that the furthermore, the Commission states that a condition laid down by the French Law of buyer in France, as in other countries, has 1841 is necessary to prevent trafficking in the guarantee that the auctioneer is entered stolen goods or that there are no more on a professional register, which is subject suitable measures that are less restrictive of to control by the competent administrative trade. It will be remembered in that regard authority. that a similar argument was rejected by the Court in Case 154/85 Commission v Italy [1987] ECR 2735 (paragraphs 13 and 14). On that occasion the Italian Government attempted — albeit timorously — to present the administrative obstacles placed in the In that connection, I would point out that a way of the registration of vehicles from Law which imposed on a seller a series of another Member State as a means, justified safeguards of the kind just described would under Article 36, of preventing trafficking in certainly be capable of satisfying the stolen cars. The Court upheld the requirements of consumer protection and Commission's view that 'less restrictive fairness of commercial transactions, with measures, such as, for example, a check of less restrictive effects on the movement of the chassis number, would be sufficient to goods than the Law with which we are achieve the desired objective'. concerned here.

(3) The national measure in question is not justified on grounds of public policy under Article 36 of the Treaty.'

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