C-401/92

'1 . Do the provisions of the EEC Treaty, * Original language: Dutch. including Articles 30 to 36 or Article 86 1 — For the content and origins of and recent amendments to the Winkelsluitingswet, see M. R. Mok, 'De winkeldeur op een in conjunction with Article 3(f) and kier', Sociaal-economische wetgeving, 1993, pp. 30 to 39. Article 5 militate against rules which are 2 — Article 3(g) of the EC Treaty corresponds to Article 3(f) of the EEC Treaty mentioned in the national court's questions. in themselves lawful on the compulsory

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closing of shops as laid down in the (b) make a distinction between petrol Netherlands Winkelsluitingswet 1976 stations at the side of rijkswegen and serving as the basis for implement­ (national highways) and petrol sta­ ing measures as laid down in the tions at the side of other public (amended) implementing degree highways, in so far as the former of 6 December 1977 under which oper­ enjoy more freedom to offer for sale ators of inter alia petrol stations, shops tobacco and tobacco products than in station buildings and at airports, the latter? shops in hospitals and museums are or continue to be permitted to offer for sale and to sell smoking accessories, beverages, newspapers, music cassettes and foodstuffs whereas others, including specialized shops are considerably more restricted in their opening possibilities?

3. Is it relevant to the answer to Ques­ tion 2(a) and (b) whether as between the two categories of petrol station distin­ guished in Question 2(b) there exists a difference between the proportion of normal revenue yielded by motor fuels 2. Must the abovementioned provisions or and by other products in so far as the any other provisions of the EEC Treaty first category is (substantially) less be interpreted as precluding the criminal dependent for its revenue on sales of conviction of operators of petrol sta­ products other than motor fuels than tions at the side of the public highway the second category? on the basis of the Winkelsluitingswet and the abovementioned implementing decree in so far as those provisions lay down rules for shops in petrol stations which:

4. It is striking that, in its first question, the the closing of shops which apply the above- national court describes the Winkelsluiting­ mentioned distinctions, in particular if those swet as constituting 'rules' which are 'in rules are considered in the light of govern­ themselves lawful'. It might be inferred from mental rules on the grant of permits for this that the national court is convinced that petrol stations which give a competitive national rules on the compulsory closing of advantage to petroleum companies with a shops are in principle compatible with Com­ relatively large market share (Question 4). munity law, and is asking simply whether it is compatible with Community law for implementing measures based on such rules to impose heavier burdens on some catego­ ries of shopkeepers than on others. In com­ mon with the Commission, I consider that In this Opinion I shall consider those two all the rules on shop closing, including the issues separately after I have described the law on which the implementing measures are national rules in question as precisely as pos­ based, should be tested against Community sible in the light of the parties' written obser­ law. vations.

1. Description of the national rules referred to in the national court's questions

(e) for more than 52 hours a week.'

(b) outside the opening hours indicated ...'.

6. The Winkelsluitingswet therefore restricts shop opening hours in the Netherlands in three ways: a maximum number of opening hours is laid down per week (52 hours at the Article 3(2) of the Winkelsluitingswet, in the material time); there are earliest opening 4 version in force at the material time, adds as hours and latest closing hours depending on follows: the day of the week (at the material time: 5 am and 6 pm respectively on working days and 5 am and 5 pm respectively on Satur­ days), and compulsory Sunday closing. Despite those restrictions, the Winkelsluit­ ingswet leaves shopkeepers a degree of free­ dom in so far as they can decide how to dis­ tribute the maximum number of opening 'In addition, the notice may not be certified hours per week over the periods during if the opening hours displayed thereon indi­ which the law allows shops to open. In order cate that the shop in question is accessible to to prevent that freedom leading to non­ the public: compliance with the restrictions described above, Article 2(1)(a) of the Winkelsluitings­ wet requires shopkeepers to affix at each public entrance a certified notice setting out the opening hours. (a) on Sundays;

7. Two decrees adopted pursuant to the (b) on working days before 5 am; Winkelsluitingswet set out derogations from the general rules. The Decree of 14 Decem­ 5 ber 1976, which makes it possible to grant 4 — The legislation has been amended with effect from 1 Janu­ ary 1993; at present the maximum number of hours for which a shop may be open each week is 55 and shops may be open from 6 am to 6.30 pm on Monday to Friday and from 6 am to 6 pm on Saturday. Compulsory Sunday closing 5 — Decree implementing Article 10(3) of the Winkelsluitingswet continues in force unabated. 1976.

'The prohibitions set out in Article 2(1) of the Law shall not apply to a petrol-station

(c) articles for personal hygiene, snack foods, ice creams, soft drinks, tobacco, 6 — Pursuant to that decree, municipalities may, for example, smoking accessories, provided that it is grant individual exemptions to shops opening in the evening. 7 — Sales by museums are not subject to any restriction as to customary to consume such articles 9 range of goods which may be offered for sale, on the ground while travelling in a vehicle'. — the Netherlands Government states — that the sale of goods in museums is merely an ancillary activity. The range of goods which may be offered for sale in chemists' shops is not limited either, the assumption being that the sale of medicinal products is the core activity. In addition, chemists' shops operate on the basis of an schedule of opening hours, 9 — Before the amendment made by the Decree of 13 Decem­ with the result that they make only limited use of the possi­ ber 1988, the range of goods which might be sold around the bility afforded by the Law to open outside normal opening clock in petrol stations was not listed with that degree of hours. Lastly, the sale of newspapers and periodicals qualifies precision. In its written observations to the Court, the Neth­ for the derogation only on condition that the shop con­ erlands Government justifies the amendment in the follow­ cerned sells only or chiefly such products. ing terms: 'In practice, however, the range of goods sold in the evenings and on Sundays in petrol stations was invari­ 8 — Staatsblad, 1988, p . 593. Under Article II of that decree, it ably wider. This gave rise to understandable complaints on entered into force on 1 January 1989, but there was a two- grounds of unfair competition from, in particular, the food­ year transitional period after that date. It is common ground stuffs sector and tobacco retailers, which subsequently led to that the cases under examination relate to the definitive rules an adjustment of the rules in question.' which into force on 1 January 1991.

'The organization of the sector of tobacco retailers considers that the sale of tobacco and tobacco products in petrol stations dis­ torts competition in built-up areas, but not along highways. Maintenance of the status 1 quo ante, 1that is to say, sale from vending 9. Article 3(2) of the Decree of 6 Decem­ machines, did not give rise to problems in ber 1977, also as amended by the Decree the sector. Those objections did not apply in of 13 December 1988, sets out the rules the case of stations located along the net­ applicable to all other petrol stations. Its work of main roads. Consequently, the sale wording is identical to that of Article 13(1), of tobacco and tobacco products is not pro­ except that it provides in indent (c) that hibited in any petrol station, it is merely the tobacco and smoking accessories may be manner of sale which is regulated.' sold outside normal opening hours only from 'a vending machine'.

1.2. The Netherlands legislation governing the grant of permits to run petrol stations

In order to justify that — admittedly very limited — difference between petrol stations located outside built-up areas at the side of dual carriageways or motorways and petrol stations not so located, the explanatory memorandum to the Decree of 18 Decem­ ber 1988 states that the grant of an unlimited 10. Since 1972, holders of permits to operate petrol stations situated at the side of rijks-

10 — The Gerechtshof and 't Heukske and Boermans refer to such petrol stations as being 'petrol stations at the side of rijkswegen [national highways]'. However, the Netherlands 11 — By status quo ante, the Netherlands Government mani- Government rightly points out that 'no distinction is made festly means the situation prior to the entry into force on 1 between rijkswegen and other roads'. January 1991 of the Decree of 13 December 1988.

— they must hold at least a 1% share 12 — Unlike the Winkelsluitingswet and its implementing decrees (see footnote 10), the legislation governing the grant of per­ of the Netherlands market in petrol mits to run petrol stations does employ 'rijkswegen (market share); — other roads' as a criterion. 13 — See the last paragraph of Article 5 of the Regels ten aanzien van de uitgifte en exploitatie van benzinestations langs Rijkswegen (Rules governing the licensing and operation of petrol stations situated at the side of national highways): 'Within a reasonable time, the Committee shall submit to the Minister of Economic Affairs a reasoned proposal for allocating an available site. If the Minister finds that he can support that proposal, he shall submit an opinion to the Minister of Transport, Water Control and Construction, who shall be responsible for issuing the permits pursuant to — they must have a nation-wide distri­ the Rijkswegenreglement (Regulation on national high­ ways). ... If the Minister of Economic Affairs is unable to bution network; agree to the Committee's proposal, he shall engage in con­ sultations with the Committee.' 14 — No party to the proceedings has described the precise com- position of this Committee. In any event, according to the request for a preliminary ruling, petroleum companies are represented on it. Moreover, the Netherlands Government observes that the 'opinions delivered by the Committee have invariably been endorsed by all the companies con­ cerned'. 15 — Pursuant to Article 4(d) of a communication of 7 Novem­ ber 1972. — they must be assured of sufficient 16 — Conversely, the permit-holder has to pay compensation to continuity in the supply of the req­ the operator if the latter sells less than the pre-determined quantity. uisite products.

5. In the event that sites for petrol stations are available for allocation, the Com­ mittee for "Benzinestations langs Rijks­ wegen" (Committee for petrol stations situated at the side of rijkswegen) shall 2. The scope of Articles 30 to 36 of the EEC be notified by the Minister of Economic Treaty as regards national measures regu- Affairs. The Committee's task shall con­ lating shop opening hours sist in advising the Minister of Eco­ nomic Affairs on the allocation of avail­ able sites as between participating companies. That allocation as between participating companies shall be carried out having regard to the market shares determined in accordance with section 2 2.1. The Court's case-law with regard to of these rules. The Chairman of the national measures applying 'without distinc- Committee for "Benzinestations langs tion' prior to the judgment in Keck and Rijkswegen" may act as a mediator in Mithouard connection with both the determination of the participating company's market share and the assessment of the expected turnover of the petrol stations which are to be allocated.' (My emphasis).

13. In the past, the Court has repeatedly delivered judgments on the compatibility with Articles 30 and 36 of the EC Treaty of national measures regulating shop opening hours. In particular, it has had occasion to consider section 47 of the British Shops It also appears from this excerpt that, for the Act 1950, which provides that shops have to purposes of determining market shares, be closed to the public on Sundays. In its account is taken solely of the sale of motor judgment of 23 November 1989 in Torfaen

14. The case now before the Court differs from the aforementioned cases in so far as it That judgment was interpreted divergently is not concerned with compulsory Sunday in a number of Member States, resulting in closing — moreover, the offences which gave new requests for preliminary rulings. In rise to the criminal proceedings took place judgments delivered on 16 Decem­ on weekdays — but with the way in which 18 ber 1992, the Court confirmed its judg­ general rules on shop closing are applied to a ment in B & Q I, although it did not particular category of economic operators. reiterate the words quoted above in italics. It made those rulings after finding that the various national laws on Sunday trading were not intended to regulate the flow of goods and did not make the marketing of products from other Member States more However, that is not the chief reason for difficult than the marketing of domestic which the case-law cited above cannot be applied simpliciter in this case. That reason is to be found in the judgment of 24 Novem­ 21 ber 1993 in Keck and Mithouard, in which 17 — Judgment in Case C-145/88 Torfaen Borough Council v B the Court to some extent altered its case-law & Q ('B & Q I') [1989] ECR 3851, operative part. See also the on Article 30 of the EC Treaty. In view of judgments of 28 February 1991 in Case C-312/89 Con- forama [1991] ECR I-997 and in Case C-332/89 Marchan- the still uncertain nature of this change, I dise [1991] ECR I-1027, in which the Court held that the prohibition laid down in Article 30 of the EEC Treaty did not apply to national legislation prohibiting the employ­ ment of workers, in the one case, on Sundays and, in the other, on Sundays after 12 noon. 19 — Judgment in B & Q II , paragraphs 9 and 10. 18 — Judgments in Case C-304/90 Payless DIY and Others 20 — Judgment in B & Q II , paragraph 11. [1992] ECR I-6493 and in Case C-169/91 B & Q II [1992] ECR I-6635. IN Case C-306/88 Anders, the Court held that 21 — Judgment in Joined Cases C-267 and 268/91 Criminal pro- it was not necessary to reply to the questions raised. ceedings against Keck and Mithouard [1993] ECR I-6097.

Discriminatory measures can be justified only on one of the grounds listed in Art­ 24 — Judgment in Case 120/79 Rewe-Zentral v Bundesmonopol- verwaltung für Branntwein [1979] ECR 649, paragraph 8. icle 36 of the EC Treaty. In the absence of That judgment did not expressly state that that possibility harmonized European rules, measures appli­ did not exist in the case of discriminatory measures, although that has been made clear, for example, by the cable without distinction may also be justi­ judgment of 17 June 1981 in Case 113/80 Commission v Ireland [1981] ECR 1625, paragraph 11. 25 — Well-known, recent instances include the judgments in Case 174/84 Commission v Germany [1987] ECR 1227 ('Reinheitsgebot' for beer), Case 216/84 Commission v France [1988] ECR 793 (ban on the marketing of substi­ 22 — Judgment in Case 8/74 Procureur du Roi v Dassonville tutes for milk powder and concentrated milk), Case 407/85 [1974] ECR 837, paragraph 5. 3 Glocken and Kritzinger [1988] ECR 4233 and Case 90/86 23 — The expression 'measures applicable without distinction' is Zoni [1988] ECR 4285 (both concerned with the obligation preferable to 'non-discriminatory measures', since, as will to use only durum wheat in the manufacture of pasta) and be seen later (in section 23), the latter measures may still be Case 274/87 Commission v Germany [1989] ECR 229 (ban caught by the prohibition set out in Article 30 on account on the marketing of meat products containing ingredients of their discriminatory effects. other than meat).

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The possibility cannot be ruled out that in order to compel a producer either to adopt adver tising or sales promotion schemes which dif fer from one Member State to another or to discontinue a scheme which he considers to be particularly effective may constitute an obstacle to imports even if the legislation in However, in Keck and Mithouard itself, the question applies to domestic products and 27 Court did not have to deal with such a prod imported products without distinction.' uct requirement. What was at issue in that case was another category of national mea sures applicable without distinction, more specifically measures prohibiting or restrict ing a particular sales promotion method. In other words, what is involved here is With regard to that category of measures and national measures relating to sales promotion measures, treated in the same way in the 28 methods and forms of advertising. case-law, prohibiting or restricting certain kinds of advertising, the Court ruled as fol lows in the judgment of 15 December 1982 in Oosthoek's Uitgevermaatschappij (where 27 — Judgment in Case 268/81 Oosthoek's Uitgevermaatschappij [1982] ECR 4575, paragraph 15. what was at issue was Netherlands legisla 28 — Among other judgments concerning national measures pro hibiting or restricting forms of advertising without distinc tion, one might mention, for example, the following:

Case 62/70 Bock [1971] ECR 897, paragraph 17, in Case of the judgment in Case C-369/88 Delattre [1991] ECR I- 155/73 Sacchi [1974] ECR 409, paragraph 8, in Case 75/81 1487 and in paragraph 37 of the judgment in Case C-60/89 Blesgen [1982] ECR 1211, paragraph 8, and in B & Q I, Monteil and Samanni [1991] ECR I-1547 (both relating to a cited above, paragraph 15. sales monopoly of pharmacists).

29 — See, for example, the judgment in Joined Cases 60 and 61/84 Cinéthèque [1985] ECR 2605 (temporary prohi­ 2.2. The implications of the judgment in bition of the distribution of video cassettes and video discs). 30 — I refer here to sale 'or marketing', since products may also Keck and Mithouard distributed by means, for example, of leasing contracts. See K. J. M. Mortelmans, 'Artikel 30 EG . Verduidelijking van de Dassonville-formule en van de Cassis de Dijon- rechtspraak' (note on the judgment in Keck and Mith- ouard), Sociaal-Economische Wetgeving, 1994, p. 115, at p . 122. 31 — See, for example, the judgment in Case 277/82 Van Ben- nekom [1983] ECR 3883 (prohibition on the marketing of vitamins in the absence of prior registration). 18. In Keck and Mithouard, the Court was 32 — See, in particular, the judgments in Case C-18/88 called on to interpret Article 30 of the EC GB-INNO-BM [19911 ECR I-5941 (approval procedure for telephone sets with no possible appeal to the courts) and in Joined Cases C-46/90 and C-93/91 Lagauche and Others [1993] ECR I-5267 (approval of radio communica­ tion apparatus). 35 — See the recent judgment of 25 May 1993 in Case C-271/92 33 — In the judgment in Case 190/73 Van Haaster [1974] LPO [1993] ECR I-2899 (legislation restricting the sale of ECR 1123, paragraph 17, the Court held that a national certain — domestic and imported — optical products to organization having the purpose of rationing production holders of an optician's/spectacle-maker's diploma). potentially affected the system of trade within the Commu­ nity and should therefore be regarded as a measure having 36 — According to the Court, national price rules which are an effect equivalent to a quantitative restriction. In the applicable without distinction to national and imported judgment in Case 148/85 Forest [1986] ECR 3449, it held products may be contrary to Article 30 of the EC Treaty if that a national system of wheat-milling quotas applying to they mean that imported products cannot be sold at a profit both domestically-produced wheat and to imported wheat (maximum price too low) or lose their competitive advan­ did not affect intra-Community trade and was therefore not tage flowing from their lower cost price (minimum price contrary to Article 30 of the EEC Treaty. too high). See, in particular, the judgments in Case 64/75 Tasca [1976] ECR 291, paragraph 27, in Case 82/77 Van 34 — See, in particular, the Sunday trading cases cited in foot­ Tiggele [1978] ECR 25, paragraph 14, and in Case C-287/89 notes 17 and 18. Commission v Belgium [1991] ECR I-2233, paragraph 17.

the Court held as follows in paragraph 16: 19. I would first state that that judgment does not detract from the principle that national measures which discriminate against products from other Member States in com­ parison with domestic products can be justi­ fied only on the grounds listed in Article 36 'However, contrary to what has previously been decided, the application to products from other Member States of national provi­ 37 — Footnote concerning only the Dutch version of this pas­ sions restricting or prohibiting certain selling sage.

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38 — See, for example, the judgments in Case 155/80 Oebel [1981] ECR 1993 (prohibition of night work in bakeries), in Case 75/81 Blesgen [1982] ECR 1211 (restrictions on the marketing of alcoholic beverages) and in Case C-23/89 Quietlynn [1990] ECR I-3059 (prohibition on the sale of pornographic articles in unlicensed shops). In the light of this, I understand the distinc­ 39 — Note concerning solely the Dutch version of this Opinion. tion made by the Court as follows: whereas

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41 — See section 22 of the Opinion of Advocate General Tesauro in Hünermund , cited in footnote 56: 'Whilst it may be the case that a prohibition of a particular sales method, such as for example doorstep selling, does not put imported prod­ ucts at a disadvantage, any more than it makes access to the market more difficult for the products as such, it is also true, however, that such a prohibition may compel the trader concerned to change a sales strategy lawfully used in 40 — Cf., in the matter of the provision of services under Art­ the Member State of origin to such an extent as to make icle 59 of the EC Treaty, the judgment in Joined Cases 62 access to the market of the State in which the prohibition is and 63/81 Seco v EVI [1982] ECR 223, paragraph 9: 'In in force less attractive, and thereby constitute in that respect such a case the legislation of the State in which the service is a 'barrier" to the movement of products between Member provided proves in economic terms to be more onerous for States' (provisional translation). employers established in another Member State, who in fact have to bear a heavier burden than those established within 42 — Footnote concerning only the Dutch version of the Opin­ the national territory'. ion.

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OPINION OF MR VAN GERVEN - JOINED CASES C-401/92 AND C-402/92

23. As far as the substantive aspects of the second condition are concerned, the question arises as to when measures affect in the same manner, 'in law' and 'in fact', the marketing of domestic and imported products.

22. The second condition — that the mea­ sures in question must 'affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States'— also has to be interpreted in the light of the criterion of access to the market. In that connection, the judgment contains two general observations. First, in In my view, a measure affects the marketing paragraph 13, it states that the fact that of products in the same manner 'in law' national legislation may restrict the volume where, depending on its aim and its wording, it applies in the same manner to domestic

43 — Of course, it is not for the Court to decide whether such differential treatment might possibly infringe a principle of 44 — That criterion was already contained in the judgment in equal treatment enshrined in national law. Cinéthèque, at paragraph 21, cited in footnote 29.

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45 — In this case, 't Heukske and Boermans argue, in particular, that the legislation on shop closing is discriminatory in any event when it is examined in conjunction with the legisla­ tion on the grant of permits for petrol stations (see sec­ 48 — The reason is that importers wishing to launch products tion 31, below). from another Member State on the French market have to 46 — See, most recently, the judgment of 24 January 1994 in Case take the prohibition into account, whereas domestic manu­ C-343/92 Roks [1994] ECR I-571, paragraph 33 and point 3 facturers selling competing products in France do not have to. See my Opinion of 18 November 1992, [1993] ECR of the operative part. I-6110, paragraph 5, and my Opinion of 28 April 1993, 47 — See also, with regard to freedom to provide services, the [1993] ECR I-6117, paragraph 9. judgment in Case 15/78 Koestler [1978] ECR 1971, para­ graph 6 in conjunction with paragraph 4. 49 — Paragraph 18 and the operative part.

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OPINION OF MR VAN GERVEN — JOINED CASES C-401/92 AND C-402/92

54 other than product requirements and, more way. 53For certainty's sake, I shall there specifically, whether the Court intended to fore consider later in this Opinion whether reduce the prohibition set out in Article 30 the national legislation at issue, still on an of the EC Treaty to a prohibition of discrim overall view, is discriminatory in law and in 5 fact or impedes intra-Community trade in ination (in a broad sense). 1It is not possible to give a definite answer to that question: on the one hand, the Court refers twice to the Dassonville test; on the other, it seems, how ever, to identify that test, as regards the national provision at issue, with a prohibi tion of discrimination ratione personae (as far as the capacity of the economic operators is concerned) or ratione materiae (as far as 52 — Dassonville itself was concerned with legislation — which should probably be categorized as a product requirement, the marketing of products is concerned). The since it sought to guarantee the authenticity of the designa- tion of origin of whisky — which meant that importers question is perhaps not of very much signif importing Scotch whisky into Belgium via another Member icance, since — in so far as I have been able State could less easily obtain the certificate of authenticity required by the national legislation than importers import to make an overview of the case-law — the ing directly from the country of origin; in other words, this was discrimination in fact between imported products (and not between domestic and imported products). 53 — If this is accepted, it follows that, in the case of national measures other than product requirements (to which the Dassonville case-law continues to apply in full for the rea 50 — Previously, that was in fact the case: even recently in the sons set out in section 20 above), the judgment in Keck and judgment in Yves Rocher (cited in footnote 28), the Court Mithouard has basically effected a reversal of the burden of rejected the argument that Article 30 of the EC Treaty is proof. Whereas, before, such measures fell, prima facie, not applicable to national measures 'impeding the free within the prohibition set out in Article 30 of the EC movement of goods only marginally' (paragraph 20) (provi Treaty but might be taken outside it through the application sional translation).

51 — The consequence would seem to be that the measures (oth 54 — If the judgment in Keck and Mithouard has resulted in er than product requirements) which would then be caught more than a mere reversal of the burden of proof in the case by the prohibition set out in Article 30 of the EC Treaty of requirements not relating to products (see the preceding solely on account of their discriminatory nature would footnote) and if it, more specifically, reduced, as far as those henceforward be capable of being justified only on one of requirements are concerned, the Dassonville test to a prohi the grounds listed exhaustively in Article 36 of the Treaty bition of discrimination in a broad sense, the Court ought, and no longer on the basis of a mandatory requirement pur in my view, to indicate this clearly in the judgment to be suant to the 'rule of reason'. delivered in this case.

As a result, the Court has gone back on its judgment of 18 May 1993 in Case C-126/91 57 25. In the light of the scope, as defined Yves Rocher, which was still entirely con­ above, of the judgment in Keck and Mith- sistent with the Oosthoek's Uitgever- ouard, it is now possible to examine whether maatschappij case-law (see section 16, national measures other than measures relat­ above). ing to sales promotion methods fall within the new rules set out in that judgment. That question has been answered in the meantime as regards rules on forms of advertising: in the judgment of 15 December 1993 in Hunermund, the Court took over, mutatis 26. Should the Court's reasoning in the mutandis, paragraphs 13, 16 and 17 of the judgments in Keck and Mithouard and in judgment in Keck and Mithouard, cited Hunermund also be applied to national leg­ above (in section 18 of this Opinion). It did islation such as the Winkelsluitingswet at issue in this case? If so, such national legisla­ tion would not fall within the scope of Art­ icle 30 of the EC Treaty so long as it fulfilled 55 — In investigating the precise scope which should henceforth be given to the Dassonville test, one cannot overlook the the conditions set out in the judgment in effect of that test on the prohibitions set out in Arti­ cles 59, 48 and 52 of the EC Treaty. In its recent case-law Keck and Mithouard examined above. In on the application of those prohibitions, the Court has also used a formula of the broad 'Dassonville type'. Difficulties similar to those raised by product requirements may arise, more specifically in connection with services which are reg­ ulated in the various Member States, such as financial ser­ vices (see, for example, the judgment in Joined Cases 110 56 — Judgment in Case C-292/92 Hunermund [1993] ECR and 111/78 Van Wesemael [1979] ECR 35, which was deliv­ I-6787, paragraph 19. ered one month before the Cassis de Dijon judgment). 57 — See footnote 50.

The national legislation at issue in this case falls into a category of measures relating to the circumstances of time and place in which the goods concerned may be sold to con­ sumers and to the manner in which they may be so sold. In other words, it is concerned with sales arrangements within the meaning of the judgment in Keck and Mithouard. It appears from the description set out in sec­ tions 5 to 9, above, that that legislation on shop closing prohibits some categories of I would add in passing that, to my mind, the small traders from offering for sale, during foregoing suggests that all other national certain hours, a greater or lesser assortment measures applicable without distinction also of products or from doing so in the manner fall in principle within the new Keck and which appears most advantageous to them Mithouard case-law, in so far as,unlike prod­ (by obliging them to sell by means of vend­ uct requirements, they do not necessitate any ing machines). adaptation of the intrinsic or extrinsic char­ acteristics of the products imported. This is the case, more specifically, with a measure of the kind at issue in the judgment in Ciné- 59 thèque, which, it is agreed, gave rise to a more far-reaching application of the Dasson- ville test beyond the bounds of discrimina­ 27. In my view, such legislation does indeed tion and, more specifically, also brought mar­ fall within the new case-law. The reason is keting prohibitions (applicable without that the legislation does not contain require­ 60 distinction) within that test. ments relating to the intrinsic or extrinsic characteristics of the products in question, and therefore does not involve additional production or distribution costs where a 59 — Judgment cited in footnote 29. product from a Member State in which it 60 — See M. Waelbroeck: 'Le rôle de la Cour de Justice dans la mise en oeuvre de l'Acte unique européen', Cahiers de droit was lawfully manufactured and marketed is européen, 1989, p . 41 et seq., at pp. 51, 52 and 53, and para­ graph 18 et seq. of my Opinion in B&QI, cited in footnote 18. The judgment in Cinéthèque went against the Opinion of Advocate General Sir Gordon Slynn, who (at 2661 and 2662) argued that the legislation at issue did not treat imported and domestic products differendy in any way. 58 — For the justification, see section 13, above. As far as the This means that, under the new case-law, that legislation proportionality test is concerned, see the judgment in B & would in any event fulfil the second condition introduced Q II , paragraphs 12 to 16. by 'provided that' in the judgment in Keck and Mithouard.

29. In view of the foregoing, I conclude that It seems to me that this is in fact the case. As Article 30 of the EC Treaty has to be inter­ far as the first condition is concerned, it preted as not being applicable to national appears to me that national legislation of the legislation on shop closing which, like that at kind at issue does not make any distinction issue in these proceedings, applies equally to between economic operators from the Mem­ all economic operators (including those from ber State concerned and economic operators other Member States) carrying out their from other Member States in the sense that activities in the national territory, affects the the latter are not assured of equal access to marketing of domestic products and prod­ the domestic market. As far as the second ucts from other Member States in the same condition is concerned, it does not appear manner in law and, on an overall view, also that, on an overall view, the legislation — the in fact, and, on an overall view, does not purpose of which, moreover, is not to regu­ impede intra-Community trade in any other late intra-Community trade flows — affects manner. in another manner, 'in law' or 'in fact', the marketing of products from other Member States, causing those products' access to the domestic market to be impeded or reduced by comparison with that of domestic prod­ ucts. As the Court expressly stated in the judgment in Keck and Mithouard, it is not 3. The compatibility of the differentiated sufficient for this purpose that there is a pos­ application of national legislation on shop sibility that the legislation may be liable to closing with Articles 3(g), 5 and 86 (or 85) of restrict the volume of sales of products gen­ the EEC Treaty erally and hence also that of sales of prod­ ucts from other Member States (see sec­ tion 22, above). Lasdy, no more can I see what other circumstances could cause the legislation to be regarded as a measure hav­ ing equivalent effect. Neither the circum­ stance mentioned in the national court's third question that the revenue of one cate­ 30. The Netherlands legislation on shop gory of petrol stations is (substantially) less closing provides for exceptions for certain

The reference in the national court's first question to Article 86 of the EC Treaty in In my view, the Court cannot entertain that conjunction with Articles 3(g) and 5 seems suggestion. In this case, it is the legislation to have been prompted by the claim by 't on compulsory shop closing which is at issue Heukske and Boermans that the Winkelsui- and the Netherlands legislation on the grant tingswet affords petrol stations whose turn­ of permits for petrol stations is only an over and profits are the least dependent on ancillary issue: the Gerechtshof itself did not the sale of products other than motor fuels provide the Court with any factual or legal — namely those situated outside built-up data thereon — I obtained the particulars areas at the side of dual carriageways and given above (in sections, 10, 11 and 12 and in motorways — the greatest possibilities for this section) from the parties' observations offering such products for sale. Only such submitted to the Court — such as to enable petrol stations are entitled to sell tobacco it to rule on the compatibility of that legisla­ and tobacco products over the counter out­ tion with Articles 3(g), 5 and 86 (or 85, side normal opening hours. Other petrol sta­ which was not even mentioned by the tions are not entitled to sell such goods out­ national court) of the EC Treaty. side normal opening hours except fromvending machines, whereas, according to that which the figures produced by 't Heukske and Boermans are alleged to 61 show, it is precisely those petrol stations which are most dependent for their turnover and profits on the same of products other than motor fuels. 32. The question remains as to whether leg­ islation on shop closing which imposes greater restrictions on some categories of 61 — At the hearing, the representative of the Netherlands Gov­ economic operators than on others is com­ ernment denied that the figures were representative. patible with Community competition law. In

62 — Judgments in Case 13/77GB-INNO-BM [1977] ECR 2115, paragraphs 28 to 34, in Case 229/83 Leclerc [1985] ECR 1, paragraph 14, in Case 231/83 Cullet [1985] ECR 305, para­ 65 graph 10, in Joined Cases 209 to 213/84 Asjes and Others In later judgments, the Court held that it [1986] ECR 1425, paragraph 71, in Case 311/85 Vereniging was prohibited, in particular, for Member van Vlaamse Reisbureaus [1987] ECR 3801, paragraph 10, in Case 136/86 Aubert [1987] ECR 4789, paragraph 23, in Case 254/87 L'Aigle distribution ('fixed price for books') [1988] ECR 4457, paragraph 10, in Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16, and Marchandise, cited above, paragraph 22. 64 — Judgment in GB-INNO-BM, paragraphs 28 to 31 and 34. 63 — Cases C-2/91, C-185/91 and C-245/91, [1993] ECR I-5751, 65 — Indications to this effect are already to be found in the I-5801, I-5851. judgment in Leclerc.

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OPINION OF MR VAN GERVEN — JOINED CASES C-401/92 AND C-402/92

States to require or encourage the conclusion In that connection, attention should be of agreements contrary to Article 85 of the drawn to the restrictive manner in which, in EC Treaty or the creation of dominant posi­ the judgments in Meng, Reiff and Ohra, tions contrary to Article 86, or tostrengthen 66 cited above, the Court interpreted the the effects of such agreements or dominant words 'strengthen' and 'require or encour­ positions. The Member States are also for­ age'. As regards the term 'strengthen', the bidden to eliminate the State nature of their Court held as follows in the judgment in own legal provisions by delegating to private Meng: undertakings the responsibility for taking decisions to intervene in the economic sphere.

33. 't Heukske and Boermans' argument that the major petrol companies in the Nether­ lands occupied and abused a (collective) dominant position and concluded agree­ 'In this regard, it should be held in the first ments (the charge is to a large degree place that the Netherlands legislation on implied) is couched very vaguely, and they insurance agents neither requires nor encour­ did not even produce prima facie evidence to ages the conclusion of unlawful agreements support it. The Gerechtshof makes no men­ by insurance intermediaries, since the prohi- tion at all of possible cartels or dominant bition which it lays down is sufficient in positions. Accordingly, there is no reason to 6 itself' 8 ( myemphasis) (provisional transla­ consider that a Member State such as the tion). Netherlands might, by passing legislation on shop closing of the type at issue, have strengthened pre-existing cartels or domi­ nant positions or required or encouraged the 66 — These judgments relate to Article 85 of the EC Treaty, but I can see no reason why the principles set out therein should creation of such agreements or dominant not also be applied, mutatis mutandis, to Article 86 of the positions contrary to Article 85 or Article 86 EC Treaty. 67 — Judgment in Meng, paragraph 19. of the EC Treaty. 68 — Judgment in Ohra, paragraph 11.

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TANKSTATION 'T HEUKSKE AND BOERMANS

34. None of the parties has shown, or even argued that the Sunday shop-closing rules, argued, that the Winkelsluitingswet merely whose substance or application were confirmed pre-existing agreements or abuses unfavourable to certain individuals or of dominant positions, or that the prohibi­ regions, were contrary to Community law. tions set out in that law are not sufficient to In my Opinion published with the judgment attain its aim. Consequently, that legislation of 16 December 1992, I observed as fol­ 71 cannot be regarded as strengthening, encour­ lows: aging or requiring, within the meaning given to those terms by the Court in the judg­ ments in Meng, Reiff and Ohra, practices of undertakings which restrict competition.

71 — Referring to my opinion in B & Q / [1989] ECR 3883, sec­ tion 32. See also my Opinion in Conforama and Marchan- dise, cited in footnote 17. 69 — Cf. the judgment in Ohra, paragraph 13. 72 — [1992] ECR I-6484, paragraph 33. The Court did not exam­ 70 — See footnotes 17 and 18. ine that question.

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OPINION OF MR VAN GERVEN — JOINED CASES C-401/92 AND C-402/92

has more than a minimal difference on the treatment adversely affects trade between turnover and profits of petrol stations 3 —, Member States within the meaning of but that does not mean that the difference in Article 85(1) or Article 86 of the EC Treaty.

Conclusion

36. In conclusion, I propose that the Court should answer the questions referred by the Gerechtshof te 's Hertogenbosch, as follows:

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