C-293/93

HOUTWIPPER

OPINION OF ADVOCATE GENERAL GULMANN delivered on 9 June 1994

Mr President, 2. The precious metals gold, silver and plat­ Members of the Court, inum in the pure state are too soft to be suit­ able for working. That means that all articles of precious metal consist of a mixture of pre­ cious and base metals (an alloy). As a result of the high value of precious metals there is a requirement in all Member States that arti­ cles of precious metal shall be struck with various hallmarks, including a hallmark giv­ ing information as to the individual article's 1. The Netherlands Law on the guarantee as standard of fineness, normally expressed in to the fineness of articles of precious metal thousandths (hereinafter 'fineness hallmark'). prohibits dealing by way of trade in articles of platinum, gold or silver which are not struck by an independent body with a hall­ mark giving information on the content of precious metal in the individual article (here­ inafter the 'standard of fineness' of the arti­ cle). 1Mrs Houtwipper is charged before the Arrondissementsrechtbank (District Court), 3. The laws of the Member States, however, Zutphen, with infringing that prohibition. differ considerably both as to the hallmarks She is pleading not guilty, claiming that the to be applied (particularly as concerns the prohibition is contrary to the EEC Treaty. information which they provide with regard The Arrondissementsrechtbank, Zutphen, to the nominal standard of fineness, namely has referred to the Court for a preliminary that with which the article is struck) and as ruling a question on the interpretation of to the manner in which the standard of fine­ Articles 30 and 36 of the Treaty so that it ness is verified and the hallmarking is may decide whether the provision at issue effected. conflicts with those provisions. 2

5. The national requirements for hallmark­ ing cause serious obstacles to trade in articles The proposal aims at removing the existing of precious metal, as a number of States obstacles to trade by harmonization of the require imported goods also to comply with legislation of the Member States on the hall­ the national requirements. That has meant marking of articles of precious metal. Com­ that, as stressed by the Portuguese Govern­ mon rules are laid down for a number of ment in its observations, in this field, which requirements to ensure a correct indication is also important in an economic respect, of the standard of fineness and it is provided there is still no real common market. that as far as concerns the indication of the standard of fineness the Member States may not restrict the marketing of articles of pre­ cious metal which are hallmarked either by the manufacturer or his authorized represen­ tative in accordance with the procedures described in the directive (conformity attes­ tation) or after prior assaying (verification) by an independent body specially authorized 6. Efforts so far at Member State level to for the purpose. promote international trade in articles of precious metal have not been particularly 3 successful. Only a few Member States have ratified the Vienna Convention on the con­ trol and marking of articles of precious met­ 4 als of 15 November 1972, according to which the Contracting States undertake not to require further assaying or hallmarking of The Commission has thus proposed a multi- articles of precious metals which are con­ faceted system as regards hallmarking with trolled and hallmarked in accordance with the standard of fineness by equating hall­ the provisions of the Convention and proce­ marking by an independent body with hall­ dures of authorized independent public marking by the manufacturer himself but in bodies. such a way that there are detailed require­ ments concerning a manufacturer's own hall­ marking. 3 — According to my information, Denmark, Portugal, the United Kingdom and Ireland. 4 — The Convention was signed in Vienna on 15 November 1972 between Finland, Norway, Portugal, Switzerland, the United Kingdom, Sweden and Austria. 5 — See note 1.

10. Waarborg strikes the finished articles of precious metal — if the relevant assaying jus­ tifies it — with one of the following fineness hallmarks: for platinum 950, for gold 916, 12. The requirement of assaying and hall­ 833, 750 and 585, and for silver 925, 835 and marking applies irrespective of whether the 800. 8Articles of precious metal not having article of precious metal is imported from another Member State and has there been subjected to control and hallmarking in

6 — Waarborgwet, Article 30. 7 — Waarborgwet, Article 7. 8 — Waarborgwet, Article 1. 9 — Waarborgwet, Article 3.

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accordance with the legislation of that Mem­ 14. There is substantial agreement between 1 those who have submitted observations in ber State. 0 the case — in addition to Mrs Houtwipper, the Netherlands, United Kingdom, German, French, Portuguese and Greek Governments and the Commission — that:

13. Mrs Houtwipper has claimed first of all that the provisions of the Waarborgwet dis­ — rules such as those at issue are measures tort competition between traders in the having an effect equivalent to quantitative Netherlands and their European colleagues restrictions within the meaning of Arti­ by imposing considerable and unjustified cle 30 of the Treaty since they lead to costs on the Netherlands traders. obstacles to trade by laying down requirements as to quality and hallmark­ ing even with regard to goods which are lawfully produced in another Member 1 State; 1

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HOUTWIPPER

pensable, for example for consumer pro­ 17. The Court gave its views on a somewhat tection and fair trading, and if the restric­ similar case in the judgment in Case 220/81 tions involved are reasonably related to Robertson. 3 the objectives pursued and these cannot be achieved by measures less restrictive 1 of trade. 2

In that case certain Belgian importers were being prosecuted for the sale of silver cutlery from other Member States which did not bear a hallmark showing the silver content in accordance with the Belgian rules then appli­ cable. A comparison of the laws of the Mem­ ber States showed that in all of them there 15. The first two requirements for regarding was an obligation to hallmark articles of pre­ the contested rules restricting trade as lawful cious metal in one way or another, but that it are met in this case. The relevant national was only in Belgium that there was an obli­ laws are not yet harmonized and the Nether­ gation also to hallmark silver-plated metal. lands rules on hallmarking apply without distinction to domestic and imported prod­ ucts.

The Court ruled in its judgment that the obligation to stamp silver-plated articles, which by their very nature were capable of being confused with articles of solid silver, might be regarded as necessary for affording effective protection to consumers and pro­ moting fair trading and that therefore 'Arti­ cle 30 ... does not prevent a Member State 16. We must therefore consider whether the from applying national rules prohibiting the application of the contested rules to sale of silver-plated articles not stamped with imported goods is indispensable for con­ a hallmark complying with the requirements sumer protection and fair trading, as the of those rules to like articles imported from Netherlands Government claims. another Member State where they have been lawfully marketed'.

It may therefore be stated that hallmarking articles of precious metal with the standard of fineness may be regarded as indispensable 21. The Netherlands, United Kingdom, for consumers and for fair trading. French, Portuguese and Greek Governments

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stress that hallmarking of the standard of to the need for consumer protection and fair fineness undertaken by an independent body trading, inasmuch as not only the manufac­ after assaying gives consumers better protec­ turer but also the dealer in articles of pre­ tion than when the manufacturer or the cious metal is responsible, according ¡titer importer undertakes the hallmarking himself. alia to criminal law, competition legislation and trade standards, if the hallmarking of the standard of fineness is not correct.

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27. Assaying and hallmarking by an inde­ 30. Accordingly it is necessary to consider pendent body undoubtedly have a greater afresh whether and if so to what extent a preventive effect and protect consumers bet­ requirement may be imposed for assaying ter than hallmarking carried out by the man­ and hallmarking, in importing States, articles ufacturer himself. Fraud is an obvious risk in of precious metal imported from another this sphere and it must be permissible for the Member State, which have been assayed and Member States to refuse to accept that subse­ hallmarked there by an independent body. quent criminal liability is a sufficient safe­ guard against that risk.

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HOUTWIPPER

that the nominal standards of fineness The United Kingdom Government thus does required in the different States vary consider­ not deny that there may be cases in which ably and that the form and content of the such acceptance is possible without the risk various hallmarks may also be very different. of misleading consumers, but emphasizes, as Finally it points out that the question of an addition to the Netherlands Govern­ whether certain negative fluctuations in the ment's statement, that the fineness hallmarks stated standard of fineness are permissible, not only vary from one Member State to and if so how wide they may be, may vary another but also vary in number and appear­ from one Member State to another. ance within the individual Member State according to the age of the article in ques­ tion.

33. The Netherlands Government claims 35. The governments are undoubtedly right that it may be hard enough for experts in the in emphasizing the importance of the fact trade to distinguish between each State's that there is a multiplicity of fineness hall­ fineness hallmarks and that in any case it is marks in the Community and point out that impossible for an average consumer to know the common market cannot operate fully in and understand the fineness hallmarks of all this sphere until rules are adopted under Member States. It therefore expresses the Community law for the harmonization of view that it is doubtful whether foreign arti­ national rules in the sector. cles may be approved without fresh hall­ marking unless there is to be an obvious risk that consumers will be misled.

metal is given in by far the majority of Mem­ exception formulated in the Robertson judg­ ber States in thousandths. That indication ment further than strictly necessary. must be intelligible to consumers irrespective of whether precisely that nominal standard is used in the consumer's own country. It does not seem probable that there should be, by reason of such differences alone, a suffi­ ciently important risk of misleading as to be able to justify renewed hallmarking in the State of importation. In my view consumers will undoubtedly also be able to understand without being misled the significance of hall­ marking applied in other Member States even though it may differ in certain points The authorities of the Member States must from the hallmarking applied in their own strive conscientiously to comply with this Member State. duty. That presupposes that they fail to accept articles of precious metal from other Member States where they have been assayed and hallmarked by an independent body only where there are good grounds for assuming that consumers will be misled if assaying and hallmarking are not carried out afresh. In that respect the authorities must take account of the basic principles laid down in the case-law of the Court according 37. It should be stressed, not least on the to which measures which entail obstacles to basis of observations from the Netherlands trade are lawful only if they are indispens­ and United Kingdom Governments during able and are reasonably related to the objec­ the oral procedure that consumers' interest tives pursued, which cannot be attained by in not being misled is certainly worthy of measures which obstruct Community trade protection but that that interest should be less. safeguarded in a way which does not render illusory the basic rules of the Treaty with regard to free movement of goods between Member States.

42. For those reasons I shall suggest that the Court answer the question referred to it by the Arrondissementsrechtbank, Zutphen, as follows:

Article 30 of the Treaty does not prevent national rules prohibiting the sale of arti­ cles of precious metal which have not been examined and provided with hallmarks as to the standard of fineness of the article by an independent body established in that State from being applied to articles of precious metal imported from another Member State where they are lawfully marketed. Such rules cannot however be applied to articles imported from another Member State where they are lawfully marketed if they have in that State been assayed by an independent body and pro­ vided by it with the appropriate hallmarks which contain information equivalent to that provided by the hallmarks prescribed by the rules of the Member State of importation and are as intelligible to consumers of that State.

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