C-292/92

O P I N I O N O F MR TESAURO - CASE C-292/92

OPINION OF ADVOCATE GENERAL TESAURO delivered on 27 October 1993

Mr President, Governing the Operation of Pharmacies) of Members of the Court, 9 February 1987, 2 may also be sold in phar- macies, 3 provided that they do not jeopar- dize the proper operation of the pharmacy (Paragraph 2(4) of the Apothekenbetriebsor- 1. Is Article 30 of the Treaty a provision dnung). In essence, the effect of the provi- intended to liberalize intra-Community sion at issue is to prohibit all forms of adver- trade or is it intended more generally to tising outside pharmacies. encourage the unhindered pursuit of com- merce in individual Member States?

It must next be pointed out that the Profes- sional Association, whose task it is in partic- These proceedings provide an opportunity to ular to ensure that its members fulfil their establish a clear position of principle on the professional duties, is a body governed by scope of one of the fundamental provisions public law, possessing legal personality and of the Treaty and raise in particular the ques- regulated by the State. It is hardly necessary tion whether a rule in a code of professional to add, finally, that all pharmacists practising conduct which prohibits pharmacists from in that Land are required to be members of advertising outside their pharmacies non- the Professional Association and are there- medicinal products (also or exclusively) sold fore subject to the prohibition concerned. in the pharmacies is compatible with Articles 30 and 36 of the EEC Treaty.

question was incompatible with Community national court with an interpretation on the law, in particular with Articles 30 and 36 of issues coming within Community law which the Treaty. will enable that court to resolve the legal problem before it'. 4 As for the second point, I shall merely observe that it is sufficiently As is clear from the order for reference, the clear from the order for reference that the national court, on the basis of the relevant national court requires an interpretation of Community case-law, is of the opinion that Articles 30 and 36 in order to resolve the dis- the disputed provision should be regarded in pute pending before it: that is to say, whether principle as a measure having equivalent or not pharmacists may continue to advertise effect prohibited by Article 30. It none the the products in question. less considered it appropriate to refer the matter to this Court, in order to establish whether the said provision is justified in the light of Article 30 in conjunction with Arti- cle 36 of the Treaty. 5. The defendant in the main proceedings also claims that in this case the conditions necessary for the application of Article 4. Before dealing with the substance of the 30 are not satisfied, since the rule of profes- question, I must dwell briefly on some pre- sional conduct cannot be classified as a State liminary matters raised by the Professional measure for the purposes of Article 30. That Association. conclusion is not invalidated, again according to the defendant, by the fact that in its judg- ment in Royal Pharmaceutical Society of Great Britain, 5 the Court ruled that a meas- The latter maintains that the question ure adopted by a professional body consti- referred for a preliminary ruling is inadmis- tuted a State measure, since the Royal Phar- sible, on the ground that the Court has no maceutical Society had the power to impose jurisdiction to decide on the validity of a disciplinary sanctions, including removal provision of national law in the light of from the register, whereas in the German Community law. In any event, it considers system that sanction may be imposed only that that question relates to a hypothetical by the competent authorities of the Land. problem and amounts therefore to a mere request for advice because, far from showing that the reference is necessary, the national court has confined itself to pointing out that it is not impossible for the advertising I would first of all point out, in that respect, restrictions to be regarded by the Court as that this case is not in substance different unjustified from the point of view of the free from that referred to above, since infringe- movement of goods. ments of the rules of the Professional Code by members of the Professional Association arc a matter for the disciplinary bodies As regards the first point raised, suffice it to note that, on the basis of settled case-law, although the Court cannot, within the 4 Sec. for example, the judgment in Case 111/76 Van den framework of Article 177, give a ruling on Hazel [197?; HCR 901, paragraph 4 of the grounds the validity of provisions of national legisla- '•> Joined Cases 266'87 and 267/87 The Queen v Royal Phar macetitieal Soaely of Great Britam [19891 ECR 1295, para tion, 'it may nevertheless provide the graph 14.

which belong to the Association itself and cists, from advertising a specified class of are given powers precisely in order to non-medicinal products which may also be impose disciplinary sanctions. In any case, sold in pharmacies. Other operators — man- the important point here is that the measure ufacturers, importers, and retailers other in dispute does form part of the rules of pro- than pharmacists — are however absolutely fessional conduct adopted by a professional free to advertise those same products. organization, but by virtue of authority con- ferred by the State and subject to control by the State. It cannot therefore be denied that the provision in cause is a State measure, par- ticularly when it is considered that the Landesapothekerkammer, unlike the Royal Pharmaceutical Society, is a body governed by public law. In those circumstances, it might reasonably be thought that the repeal of the disputed measure would lead (possibly and exclus- ively) to a change in the ratio of the volume of sales by pharmacies (on the one hand) to 6. Now we come to the subject-matter of the volume of sales by other shops (on the the question submitted to the Court, a ques- other), that is to say, to a different division of tion which, as worded, relates solely to the total sales between the various sales whether the disputed measure is justified on channels. 8 It cannot, however, be excluded the basis of Article 36 or of imperative out of hand that the prohibition on certain requirements: the national court is in no advertising activities, as imposed on pharma- doubt that the measure is one that is in prin- cists, may adversely affect opportunities to ciple incompatible with Article 30. 6 It is on sell the products in question and, even if the contrary indisputable that it must first of only in that way, imported products also. all and in any event be ascertained whether the measure in question displays all the fea- tures required for it to be a measure having equivalent effect to quantitative restrictions in so far as it is capable, in the well-known Dassonville formula, 'of hindering, directly or indirectly, actually or potentially, intra- Community trade'. 7 In other words, such a measure may well produce some effect on imports, but only by reason of the fact that, as a result of its imposing restrictions on advertising, it has an adverse effect on demand for the goods to which it applies and (may) thus entail a 7. The measure at issue, applicable without distinction and completely neutral as regards domestic products and imported products, prohibits a specified class of traders, pharma- 8 — On that point, it is interesting to note that the national court thought that 'it is immaterial whether the rules in question have the effect of reducing the volume of imports of the products concerned or merely shift turnover from pharma- cists to other suppliers', since 'the intention is to prevent, in addition to adverse effects on imports in the form of an over- 6 — See p. 5 and 6 of the order for reference. all reduction in the volume of imports of certain goods, an 7 — Judgment in Case 8/74 Dassonville [1974] ECR 837, para- alteration of the patterns of trade or a channelling of graph 5. imports' (p 6 and 7 of the order for reference).

8. Is the resulting reduction in trade — remote, indirect and contingent, and in any case merely hypothetical — sufficient to 9. In short, the question is whether measures bring the measure within the ambit of Arti which govern conditions for marketing cle 30? (who, where, when, h o w 1 1 ) and which, merely by affecting the supply of (for exam ple, by a channelling of imports) or demand for (by restricting opportunities to advertise) the products concerned, including imports, As can be seen, the problem is not a new one may bring about a decrease in sales, none the and it has, especially in recent years, been the less fall within the scope of Article 30.

In the present case, the possible restrictive effects on imports stem from the very existence of the measure concerned, while any disparity In order to give a reply to the national court, with respect to the law of the State of origin the first question which must therefore be asked is whether, as regards the concept of a measure having equivalent effect, it is suffi cient, in principle at least, for it to not to be 9 — The same remarks hold pood in fact for all restrictions applicable without distinction which relate to the opportu impossible for the measure to have some nity to advertise certain goods. Except where they arc such as to place imported goods at a disadvantage and thus con effect on imports, however small and indi stitute de facio discrimination (see the judgment in Case 152/78 Commission v frame [1980] ECR 2299), restrictions rect; or whether, on the contrary, the causal of that type affect the opportunity to sell the products con link between measure and imports must be cerned in exactly the same way, whether the goods arc domestic or imported. such as to cause the conceivable restrictive 10 — In addition to Marenco: 'Pour une Interprétation Tradition consequences for imports to be considered

Uses and abuses of Article 30 of the EEC Treaty', in CMLRev. 1992, 11 — A measure concerning product advertising mav righllv be p. 749 et seq., Chalmers, 'Free movement of goods within included among measures relating to 'how' It is clear that the European Community: an unhealthy addiction to advertising, since it encourages consumption, constitutes Scotch whisky', in International and Comparative Law the most effective means ol promoting sales and that, for Quarterly, 1993. p. 269 el seq. that reason, u may have an appreciable effect on demand and therefore on sales.

The starting-point of such a consideration has to be an outline of the case-law on the 11. The reply to that question clearly calls subject, case-law which — why conceal it? for a more general consideration of the scope — is certainly not amenable to systematic of Article 30 as regards rules such as those at interpretation and which, as I pointed out in issue, in particular with respect to the criteria my Opinion in Société Laboratoire de Proth- which make it possible to classify a certain èses Oculaires,12 where I could not however provision of national law as a measure hav- conceal a certain unease with respect to a ing equivalent effect. In other words, and mechanical application of the Dassonville even if it means reversing previous opinions formula to rules of the kind now before the expressed on the subject, I believe that it is Court, may be reduced to three types of necessary to consider whether Article 30, solution, albeit with some difficulty, owing and with it the Dassonville test, may be con- strued as including in the concept of mea- sures having equivalent effect the following measures as well: 12 — Case C-271/92 [1993] ECR 1-2899.

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H U N E R M U X Ü v LANDESAPOTHEKERKAMMER BADEN-WÜRTTEMBERG

to its fragmentar)' character, to which I have commercial premises did not fall within the just alluded. scope of Article 30 in so far as it did not concern 'other forms of marketing' , 5 the same product.

Context of the case-law

13 — To that effect, sec lhe judgments in Case 155/80 Oebel :i98i; UCR 1993; Case 75/81 Blesgen [Ì9S2] I C R 1211, Case C 23/89 Quietlynn and Richardt Ί 9 9 0 : KCR I 3059. 13 — Bleigen, cited above, paragraph 9 and Case C 35C/89 Shepionhitrit [ 1991 ; I-.CR 1 2387. 16 - Quietlynn. cited above, paragraph 11. tu the same elicci, sec 14 Oebel, cited above, paragraph 20 Sheplonbnrst, cited above.

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O P I N I O N O F MR TESAURO — CASE C-292/92

17 — The Court confines itself to establishing that the prices imposed are not such as to make it impossible or more dif- ficult to sell imported goods, that is to say that they arc not Those restrictive effects on trade, even such as to put imports at a disadvantage (sec, inter alia, the judgments in Case 188/86 Lefivre [1987] ECR 2963 and though hypothetical and unsubstantiated, Case C-347/88 Commission v Greece [1990] ECR 1-4747, have accordingly been held to be sufficient concerning maximum price schemes; and also Joined Cases 80/85 and 159/85 Nederlandse Bakkerij Stichting and Oth- for the relevant measures to be covered by ers v Edah [1986] ECR 3359, and Case C-287/89 Commis- sion v Belgium [1991] ECR 1-2233, concerning minimum Article 30. 21 The Court seems thus to have price schemes). On the contrary, it is obvious that a recognized that the principle set out in Das- mechanical application of the Dassonville principle would not preclude a price-control system, affecting the condi- sonville applies (mechanically) to national tions of supply and demand, from being such as to be able provisions of the kind in question, from to bring about a reduction in the volume of sales and thus (also) in the volume of imports. which it follows that there is a twofold 18 — Of significance in this respect is Forest, in which the issue was a system of quotas at the level of flour production. The Court found that it appeared that such a system 'in fact has no effect on wheat imports and is not likely to impede trade between Member States'. The reason is that, even though a 19 — Judgment in Case C-145/88 Torfaen Borough Counál v restriction on the quantities of wheat which may be milled B&Q [1989] ECR 1-3851; Case C-312/89 Conforama and may prevent millers from buying wheat, millers are free to Others [1991] ECR 1-997 and Case C-332/89 Marchandise buy imported wheat to cover part or all of their require- and Others [1991] ECR 1-1027; also judgment in Case ments (judgment in Case 148/85 Direction Generate des C-169/91 Council of the City of Stoke v B&Q [1992] ECR Impôts v Forest [1986] ECR 3449, paragraph 19). Sec also 1-6635. the judgments in Case C-69/88 Krantz v Ontvanger der Directe Belastingen [1990] ECR 1-583, paragraph 11, and 20 — Conforama, cited above, paragraph 8. Case C-93/92 CMC Motorradcenter [1993] ECR 1-5009, 21 — Here, I cannot however avoid pointing out that the paragraph 12, where the Court ruled that any restriction on approach under consideration in paragraphs 12 and imports caused by the national measures in question, 13 (measures in themselves outside Article 30) cannot be respectively the power of the tax authorities to seize goods thought to be rendered obsolete by that development. The sold with reservation of title and the duty to provide prc- Quietlynn judgment is in fact more recent than the first contractual information to purchasers of motorcycles about Sunday trading judgment and Sheptonhurst more recent points relating to the warranty, were too uncertain and than the Conforama and Marchandise judgments: the two indirect to be considered liable to hinder trade between approaches thus overlap chronologically, which helps Member States. increase confusion.

condition to be satisfied if they are to be concerned, a review directed to the question compatible with Article 30: (a) the rule in whether the measure in point is reasonable, question must pursue an objective which is and more precisely whether it is appropriate legitimate with respect to Community law with regard to (any) restrictive effects. In and (b) it must not exceed what is necessary other words, instead of undertaking a 'classi- in order to attain that objective, which is the cal' examination designed to ascertain case where the resulting obstacles to trade do whether the relevant rules satisfy imperative not 'exceed the limit of the effects intrinsic to requirements and whether the measures commercial regulation'. selected are proportionate to the aim in view, the Court appears to look for the existence of a justifying cause, having regard to the effects on intra-Community trade which might result from the rules under consider- ation. That said, there can be no disguising the fact that such an approach, even though 15. Given that the intention of ensuring that characterized by a far gentler, or at least working and non-working hours arc so more superficial, appraisal than that usually arranged as to accord with national or carried out in the context of Articles 30 and regional socio-cultural characteristics is legit- 36, is at variance with the approach inaugu- imate, with respect to Community law, the rated in the Oebel judgment. Court confined itself however in those judg- ments to stating that 'the restrictive effects on trade which may stem from such rules do not seem disproportionate to the aim pur- sued', 22 and in its most recent judgment in the matter, went on to make it clear that, in order to verify that the restrictive effects of such rules do not exceed what is necessary to achieve the aim in view, it must be consid- ered whether those effects 'arc direct, indi- rect or purely speculative and whether those effects do not impede the marketing of imported products more than the marketing 16. Finally, there is a third group comprising of national products'. 23 those decisions in which the Court, because it considered that the provisions concerning sales, while not directly affecting imports, were nevertheless capable of hindering intra- Community trade, in so far as they were lia- ble to affect possibilities for distributing (also) imported goods and hence to lead to a reduction in the volume of imports, under- Such an approach would therefore seem to took the classical examination designed to imply an only marginal review of the rules ascertain, first, whether the measures in question pursued public-interest objectives recognized by the Community legal order 22 — Conforamn and Marchandise judgments referred to above, (consumer protection, health protection etc., at paragraphs 12 and 13 respectively. according to the circumstances) and, sec- 23 — Judgment in Council of the Cay of Stoke-on Trent, referred to above, at paragraph 15 ondly, whether the measures adopted were

26 — See the judgments in Buet, Delattre and Boscher, referred to 24 — To that effect, sec Case 286/81 Oosthoek's Uitgevers- above, at paragraphs 8, 50 and 14 respectively. maatschappij [1982] ECR 4575, which is the first time the 27 — It is worth pointing out that in the Delattre and Boscher approach under discussion was applied to this type of leg- cases, unlike Oosthoek and Buet, the sales methods were islation. See also: Case 382/87 Buet and Another v Ministère entirely lawful. The relevant legislation was, none the less, Puhlic [1989] ECR 1235; Case C-369/88 Delattre [1991] an obstacle to trade, cither because it required the prior ECR 1-1487: Case C-60/89 Monteil and Samanni [1991] entry of the seller in the trade register at the place of the ECR 1-1547; Case C-239/90 Boscher [1991] ECR auction {Boscher), or because the kind of products con- 1-2023 and Case C-271/92 Sodate Laboratoire des Prothèses cerned, lawfully marketed in one Member State as food- Oculaires, mentioned above. Following the same line of stuffs or cosmetic products, were classified in the importing argument, the Court has held provisions of national law Member State as medicinal products, as a result of which prohibiting or restricting certain forms of advertising to be they fell within the sales monopoly reserved to pharmacists capable or restricting the volume of imports. Sec in this and could not be sold by mail-order (Delattre). That last connection Oosthoek, referred to above; Case case, on a true reading, discloses rather a 'Cassis dc Dijon' C-362/88 GB-INNO-BM [1990] ECR 1-667; Case situation, since it actually deals with disparity in legislation C-241/89 SARPP [1990] ECR 1-4695; Joined Cases which, in the last analysis, affects the very presentation of C 1/90 and C-176/90 Aragonesa de Publicidad [1991] ECR the product. 1-4151, and Case 126/91 Schulzverband gegen Unwesen in der Wirtschaft e. V. v Yves Rocher [1993] ECR 1-2361. 28 — Sec paragraph 15 of the Oosthoek judgment, paragraph 29 of the SARPP judgment and paragraph 10 of the Yves 25 — Oesthoek, cited above, at paragraph 15. Rocher judgment.

18. To sum up, then, the Court has sub- That is above all the case with regard to jected to verification of their compatibility those rules which reserve to a single class of with Articles 30 and 36 those measures relat- traders (pharmacists, opticians) the right to ing to marketing which, because they pro- sell certain categories of goods (medicinal hibit a certain method of selling or advertis- products, contact lenses), making it impossi- ing, are (or can be) such as to make access to ble to market such goods except through the the market more difficult for the traders con- channels prescribed by law and thus involv- cerned, who are obliged to discontinue a ing a formal channelling of sales. ,0 That is method which they lawfully use in the Mem- also the case where there is a prohibition, ber State of origin. applicable in one part of a Member State and in certain circumstances, on advertising bev- erages having an alcoholic strength of more than 23 degrees: " the only effect on imports might be the result of a more general fall in In such cases, the Court has, therefore, sales, arising in its turn from the effect of the emphasized the disparity between national prohibition in question on demand for the laws, in so far as such disparity constitutes products concerned. an 'obstacle' for the trader concerned and

30 - Sec the judgment in Case C 6C/89 Momeli and Siimanni 29 - - Judgment in GB Ih'NO, referred lo above- In thai judg ;i99i; F.CR 1 1547, and Delmm cued above (both con mem, the Court stressed the fact that freedom for consum ccrning the monopoly reserved to pharmacists), and also ers is compromised ii thev arc deprived of access to adver the most recent judgment in Socicle Laboratoire de Proíbe using available in the country where purchases arc made id Ocitlatrei, cited above, on the opticians' monopoly (paragraph 8). 31 - Aragonem, cited above.

(c) they are measures having equivalent The Court is therefore of the opinion that effect, unless they are justified on the only measures which would not fall grounds of imperative requirements or within the scope of Article 30 are those under Article 36. whose effects on imports are purely hypo- thetical; it is not, however, clear whether those hypothetical effects would, even on first sight, have to appear to be of little sig- Can such divergent results be explained on nificance (should they ever occur). On that the basis of the different effects which the point, suffice it to say that to apply a de min- measures in question have on imports? It imis rule in the field of trade in goods, even seems to me that all the situations examined within those limits, is, it seems to me, very are characterized by the same features: restrictions on imports are purely hypothet- ical and in any event such as to affect domes- tic products and imported products in 32 — See judgment in Joined Cases 177/82 and 178/82 Van de Haar [1984] ECR 1797, at paragraph 13 and Case exactly the same way, as a consequence (if it 103/84 Commission v Italy [1986] ECR 1759, paragraph 18. exists) solely and exclusively of a reduction 33 — Yves Rocher, cited above, paragraph 21.

I-6810

H U N E R M U N D v LANOESAPOTHEKERKAMMER BADEN WÜRTTEMBERG

difficult, if not downright impossible: quite that point of view an 'obstacle' to the move- apart from anything else, proving the degree ment of goods within the Community. of hypothetical effects would be a probatio diabolica.

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OPINION OF MR TESAURO — CASE C-292/92

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HUNERMUND v LANDESAPOTHEKERKAMMER BADEN-WÜRTTEMBERG

27. Article 30 would otherwise come to be A significant case here is Gaiichard,38 which relied on and used, not for its proper pur- involved legislation requiring prior authori- poses but in order to enable certain traders zation for the opening and extension of com- mercial premises exceeding a certain area. The Court, rightly, did not even rule on a 37 Besides the Sunday trading cases, 1 refer to Delattre and Monleti and Samanm for the medicinal products monopoly aspect; the l.PO judgment on the opticians' monopoly; to the Aragonesa Įudgmcnt. With regard on the other liand to the group of cases on sales promotion methods, I refer to 38 Case 20/87 Cauthard 11987] h C R 4879. To the same effect, what I said in footnote 3Ü sec Case 204/87 Bekaerl Ί 9 8 8 ' KCR 2029.

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OPINION OF MR TESAURO — CASE C-292/92

possible conflict between that legislation and 29. To return to the measure at issue in this Article 30 (despite the fact that that aspect case, it remains only to point out in the light was extensively dealt with in the Advocate of the foregoing observations that such a General's Opinion), holding instead that the measure: legislation at issue should be considered from the point of view of the rules on free- dom of establishment and concluding that (a) is concerned with the advertising of cer- such rules were inapplicable, because the sit- tain products by a certain category of uation involved was purely internal. shops;

I-6814

HUNERMUND v LANDESAPOTHEKERKAMMER BADEN-WÜRTTEMBERG

justification put forward in this case, namely aim in question may, consequently, be that it is necessary to protect human health, attained by, for example, either placing a ceil- would in fact appear to be entirely ing on sales of non-medicinal products, or unfounded. imposing disciplinary measures on those pharmacists who might concentrate their activity on selling those products. It seems to me that it is impossible to accept the Professional Association's argument that the prohibition on advertising in question is essential in order to ensure a proper supply From that viewpoint, the only possible con- of medicinal products and to avoid a situa- clusion is that the measure in question is tion in which the image of pharmacists no incompatible with Community law. longer reflects their traditional activity.

A further alternative would be to justify the 31. It is on the other hand plain that such a measure in question by recourse to clearly prohibition is at least disproportionate to the demonstrable formulas which are also to be objective supposedly pursued, since — as is found in some of the judicial precedents apparent from the documents in the case — referred to, but, as may be clearly seen from the sale of the products concerned is permit- the foregoing considerations, I cannot in the ted only in so far as it does not jeopardize present case subscribe to that proposition the proper operation of the pharmacy. The either.

32. I therefore propose that the C o u r t reply as follows to the question referred to it by the Verwaltungsgerichtshof Baden-Württemberg: