C-254/98

Legislative and factual background to the main proceedings In short, the national legislation in question provides that such arrangements for selling food products — namely the so-called 'sale on rounds' — may be made only by traders 2. The national legislation applicable in the established in a district adjacent to the area main proceedings is Article 53a of the within which they intend to operate using Gewerbeordnung (Austrian Code of Busi- these commercial methods. The exact pro- ness and Industry, hereinafter 'the GewO'). vision of the Austrian legislation, as It provides that bakers, butchers and gro- described in the order for reference, applies cers may not offer for sale on rounds from without distinction to Austrian traders and locality to locality or from door to door those established in the Member States goods which they are entitled to sell under bordering Austria. 1 the terms of their trading licence, unless

1 — Tins point was clarified in the answer given by the Austrian Government, the parties in the main proceedings, and also * Original language: Italian. the Commission, to a written question from the Court.

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Infringement of the provisions of the GewO catalogues showing the frozen products is subject to sanction under national law as offered by the company and collect any unfair competition. orders. 3The drivers also have a supply of goods (not ordered) for direct sale without prior orders having been placed. Sales on rounds are also made in areas of Austrian territory which are not included in, nor adjacent to, those in which the defendant has a permanent establishment. 3. The facts which gave rise to the main proceedings fall within the legislative fra- mework described above and can be sum- marised as follows.

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5. However, the referring court, the Ober- Jurisdiction ster Gerichtshof, considers that there are doubts concerning the compatibility of the national provision with Articles 30 and 36 of the EC Treaty (now, after amendment, Article 30 EC). The Austrian Supreme Court points out that there is no cross- 6. Before discussing the substance of the border element in this case. Nevertheless, question, we must look at the preliminary an assessment by the national court as to point raised by the Schutzverband. It argues whether there is any discrimination against that the question referred for a preliminary Austrian nationals depends on the question ruling is inadmissible for two reasons. First, whether Article 53a of the GewO infringes there is no cross-border element in this Community law. The referring court notes case, as the facts at issue are not relevant to that, in the view of the Austrian Constitu- other Member States. Second, Article 53a tional Court, it would be contrary to the of the GewO regulates a selling arrange- principle of equal treatment to treat Aus- ment and its compatibility with Commu- trian traders less favourably than traders nity law could easily have been assessed on from other Member States. In the light of the basis of the case-law relating to Arti- these considerations, the Oberster Gerichts- cle 30 of the Treaty. 5Therefore there is in hof has submitted the following question to their view no need to refer the question to the Court for a preliminary ruling: the Court.

the national court, it should be noted that issue in the main proceedings are confined the question referred to the Court relates to to a single Member State. 9 Article 30 of the Treaty, a provision which is intended to remove barriers to the free movement of goods in the Community. As the Court stated in Pistre, such barriers may exist even if 'all the facts of the specific case before the national court are confined to a single Member State.' 7In such a situation, 'the application of the national Substance measure may also have effects on the free movement of goods between Member States, in particular when the measure in question facilitates the marketing of goods of domestic origin to the detriment of 9. With regard to the substance of the imported goods. In such circumstances, question, I should point out first of all that, the application of the measure, even if in my opinion, the national provision restricted to domestic producers, in itself described by the national court does not creates and maintains a difference of treat- conflict with Article 30. I consider that the ment between those two categories of legislation in question falls into the class of goods, hindering, at least potentially, national regulations which the Court, from intra-Community trade.' 8 the judgment in Keck and Mithouard onwards, has held to be outside the scope of Article 30. In that case, as we know, the principle was established that '...the appli- cation to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States... so long as those provi- sions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and

in fact, the marketing of domestic products other Member States differently from that and of those from other Member States.' 10 of domestic products. 13 The reasons behind this line of case-law are well-known. In view of 'the increasing tendency of traders to invoke Article 30 of the Treaty as a means of challenging any rules whose effect is to limit their commer- 10. This line of reasoning has been fre- cial freedom even where such rules are not quently and consistently followed in the aimed at products from other Member case-law. It is sufficient for present pur-

ket. In short, for Article 30 to apply, the pharmacy quasi-pharmaceutical products national measure in question must cause a which they are authorised to sell, in so fai- specific decrease in the flow of trade as that rule, which applies without distinc- between Member States. 12 This condition tion as to the origin of the products in is not fulfilled with reference to regulations question, does not affect the marketing of which do not concern the characteristics of goods from other Member States differ- the products but only the arrangements for ently from that of domestic products. 14

Article 30. That legislation does not relate to the characteristics of the products but concerns solely the arrangements for their retail sale and the obligation to operate through a system of authorised retailers applies without distinction as to the origin 10 — Paragraph 16. of the products and does not affect the 11 — Paragraph 14 of Keck and Mithonard, cited ahove. 12 — In Joined Cases C-418/93, C-419/93, C-420/93, C-421/93,

and C-332/94 Seineram Casa Uno ami Others [1996] LCR I-2975, the Court showed that the mere fact that generally it causes a drop in the volume of sales, and consequently, a 13 — Ciase C-387/93 Bancbero [1995]ECU I-4663, paragraphs reduction in imports is not sufficient to hring a national 37 and 44. measure within the scope of Article 30. There must be a 1 4 — C a s e C-292/92 Himermund ami Others | 1 9 9 3 | ECU specific decrease in the actual imports.

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States differently from that of domestic seem likely in any way to restrict the flow products. 15 For the same reasons, national of imports from other Member States. 17 legislation giving pharmacies the exclusive right to distribute processed milk for infants was found not to be contrary to Article 30 of the Treaty. 16

12. I therefore do not consider that the national legislation at issue in this case is a disguised restriction on trade between Member States, as the Commission and TK suggest in their written observations. They claim that a butcher, baker or any other food retailer from another Member 11. In my view, the case-law referred to State who wishes to offer his own products above is applicable to this case. First of all, for sale on rounds in Austria would have to the legislation described by the referring set up an establishment there, in addition to court applies without distinction to Aus- that of his country of origin. This would trian traders and those from other Member involve additional costs and would make States. Traders established in bordering this form of sale unprofitable. However, I States may carry out sales on rounds in do not agree with this argument. The Austrian territory on the same conditions Austrian regulation does not concern trade as those imposed on national traders. In between Member States, nor does it affect that respect, there is therefore no impedi- the access of foreign products to the ment to the import of goods from other domestic market. It is merely a limitation Member States. on the scope of retailers authorised to use a particular method of sale, a limitation which, as we have said, is not dependent on the origin of the products. There is therefore no restriction, either clear or

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disguised, on die movement of goods. It is cannot sell products not ordered in advance not suggested that the national regulation from his van in Austria, for the simple causes a drop in the general volume of reason that in commercial practice, there trade within the national territory. Nor, a are 'natural limits', so to speak, on the area fortiori, can there be a specific effect on the covered by this form of distribution. Retai- volume of imports which, alone, justifies lers of food products will offer them for the application of the prohibition on quan- sale in the manner laid clown in the titative restrictions or measures having Austrian legislation only to consumers in equivalent effect. Also, it should be noted the adjacent areas. And that is why this that the national regulation at issue con- legislation — since traders established in cerns only the sale on rounds of food the Member States bordering Austria arc products not previously ordered. All the assured of being able to sell their goods other methods of sale are unaffected. In my under the same conditions as domestic view, it is not realistic to argue that imports traders — is unlikely to affect intra-Com- have fallen because a baker, butcher or any munity trade. It therefore does not fall other retailer of food products established, within the scope of Article 30 of the Treaty. for example, in Brussels, Paris or Berlin,

Conclusion

13. In light of the foregoing considerations, I propose that the Court reply as follows to the question referred by the Oberster Gerichtshof: