C-30/99

COMMISSION V IRELAND

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 22 February 2001 1

Table of contents

I — Introduction I - 4623 II — The legal framework I - 4624 A — National legislation I - 4624 B — Community law I - 4627 III — he procedure and action I - 4627 IV — The Court's case-law concerning hallmarks on articles of precious metals and Article 30 of the Treaty I - 4629 V — Views of the parties and analysis of the application I-4631 A — The complaint relating to standards of fineness I - 4631 (1)The view of the Commission 1-4631 (2)Analysis I-4632 B — The complaint relating to the sponsor's mark I-4638 (1)The view of the Commission I-4638 (2)Analysis I-4639 C — The complaint concerning the obligation to bear an approved hallmark . . . . I - 4643 (1)The view of the Commission I-4643 (2)Analysis 1-4644 D — The complaint alleging discriminatory provisions I - 4645 ( 1 )The view of the Commission 1-4645 (2)Analysis 1-4645 VI — Conclusion I-4646

I — Introduction fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Arti- cle 28 EC). The Commission criticises Ire- land on the ground that its national legisla- tion on guaranteeing the standard of fine- 1. In this case, the Commission requests the ness of precious metal in articles made of Court to rule against Ireland for failure to silver, gold or platinum constitutes a mea- sure of equivalent effect prohibited under Article 30 of the Treaty. Its criticism I — Original language: Dutch. focuses in particular on the standards of

I - 4623

— the Hallmarking Act 1981 ('the Act'). This is the Irish statute which lays 2. The Court has already, in its judgments down the general legislative framework in Robertson2 and Houtwipper, 3set out for guaranteeing the standard of fine- the conditions under which the Member ness of precious metal contained in State of importation may subject articles of articles made of silver, gold and plati- precious metal to renewed controls and num; hallmarking requirements, where the goods in question are already in lawful circulation within the Community. The Commission's heads of complaint must in particular be assessed in the light of that case-law of the — the 1983 Hallmarking (Irish Standards Court. of Fineness) Regulations and the 1990 Hallmarking (Irish Standards of Fine- ness) (Amendment) Regulations ('the 1983 and 1990 Standards of Fineness Regulations'). These provisions set out the approved standards of fineness in Ireland for goods made of the precious metals gold, silver and platinum. 4The I I — The legal framework standards, expressed in parts per thou- sand of the total mass, are:

A — National legislation — for gold: 916.6, 833, 750, 585,417 and 375 (corresponding respec- tively to 22, 20, 18, 14, 10 and 9 carats); 3. All Member States of the European Union have legislation governing the marks 4 — The 1983 and 1990 Standards of Fineness Regulations add the authorised standards of fineness of precious metals to 2 — Case 220/81 [1982] ECR 2349. those already set out in Irish legislation dating from 1637, 1783 and 1807. According to the Irish Government, this is 3 — Case C-293/93 [1994] ECR I-4249. the oldest consumer-protection legislation in the country.

I - 4625

OPINION OF MR GEELHOED — CASE C-30/99

metal other than imported articles to which thousand on the hallmark of imported an 'international hallmark' has already articles, with the exception of articles been applied: covered by the Vienna Convention (Regu- lation 4 of the 1983 Approved Hallmarks Regulations).

(1) the appropriate mark used by the Dublin Assay Office (Assay Office mark). The content of this mark differs for articles produced in Ireland and for imported articles not already bearing an international hallmark; 7. According to section 9(1) of the Act, articles of precious metal submitted to the Assay Master to be struck with an approved hallmark must also be struck with a distinctive mark, known as the sponsor's mark. This mark indicates the (2) a mark denoting the relevant standard responsible maker, worker of or dealer in of fineness and applied in the Dublin such articles (section 1 of the Act). The Assay Office (fineness marks); Assay Master and the sponsor may make arrangements for the sponsor's mark to be struck by the Assay Master (section 9(2) of the Act). The sponsor's mark must be registered with the Wardens and Common- (3) a mark or letter denoting the year of alty of Goldsmiths of the City of Dublin, manufacture of the article or the year known as 'the Company' (section 9(3) of of hallmarking of the article and (in the Act). Registration is valid for a period any event) applied in the Dublin Assay of 10 years from the date of registration Office. and may be renewed every 10 years (section 9(4) of the Act).

III — The procedure and action 9. In 1993 the European Commission sub- mitted a proposal for a Council directive on articles of precious metal, which was replaced in 1994 by an amended propo- sal. 7 The proposed directive provides for harmonisation of standards of fineness of articles made of precious metal and the 11. In response to several complaints by related hallmarks with a view to removing undertakings involved in the importation barriers to intra-Community trade and and marketing of articles made from pre- ensuring free movement of articles of cious metals in a number of Member States, precious metal and fair trading within the the Commission initiated an analysis of the Community. The draft directive states that compatibility of the applicable national articles of precious metal must satisfy the legislation with Article 30 of the Treaty. essential requirements set out in its By letter of 28 June 1993, the Commission annexes. It provides that Member States put Ireland on formal notice pursuant to may not, with regard to the indication of the procedure laid clown in Article 169 of the standard of fineness, prohibit, restrict the EC Treaty (now Article 226 EC). As it or hinder the placing on the market of was not satisfied with Ireland's reply, the articles of precious metal that meet the Commission issued a reasoned opinion on harmonised marking requirements. 11 November 1996. In its reply of 3 April 1997 the Irish Government disputed the contention that its existing legislation was contrary to Article 30 of the Treaty. Var- ious contacts followed between the Com- mission's services and the Irish authorities, with particular regard to Irish proposals for 10. At the hearing, counsel for the Eur- amending the national legislation, espe- opean Commission stated that discussions cially with a view to extending recognition of foreign standards of fineness for precious metals. This correspondence did not, how- 7 — Amended proposal for a European Parliament and Council ever, lead to a result that was satisfactory to Directive on articles or precious metal (0J 1994 C 209. p. 41 (hereinafter also 'the draft directive'). the Commission. It therefore decided to

— declare that: 3. by requiring articles made from pre- cious metals (gold, silver or platinum) imported from another Member State, and marketed in Ireland, which have been lawfully struck in another Mem- 1. by prohibiting the marketing in Ire- ber State with a hallmark stamped by a land, with the description and indica- body which offers guarantees of inde- tion of fineness which they bear in their pendence, and which offers appropri- country of origin, of articles made from ate information to consumers, to bear precious metals (gold, silver or plati- an approved hallmark struck by the num) lawfully manufactured and mar- Assay Master which is appointed by keted in other Member States but not the Wardens and Commonalty of complying with the Irish provisions Goldsmiths of the City of Dublin; concerning standards of fineness, or by obliging importers of such articles to replace their hallmarks with those for the appropriate lower official Irish standard of fineness; 4. by establishing differences between approved hallmarks struck on articles manufactured in Ireland and those hallmarks of the same type struck on 2. by requiring articles made from pre- articles imported from other Member cious metals (gold, silver or platinum) States, Ireland has failed to fulfil its imported from another Member State, obligations under Article 30 of the and marketed in Ireland, to bear a Treaty;

8 — The Commission brought a similar action on 7 March 2000 against France for failure to comply with Article 30 of the Treaty (Case C-84/00 Commission v France). The Commis- sion's complaint in that case is directed at a ban on the marketing in France of articles made of precious metals which indicate a standard of fineness of 999 parts per thousand. — order Ireland to pay the costs. I - 4628

15. During the hearing on 7 December 2000 the Commission and the Irish Gov- 9 — Cited above in footnote 1. ernment clarified their respective positions. 10 — Cited above in footnote 2.

I - 4629

OPINION OF MR GEELHOED — CASE C-30/99

which they were lawfully traded and hall- products imported from another Member marked in accordance with the legislation State in which they have been lawfully of those States, be stamped with an addi- marketed and hallmarked in accordance tional hallmark in the Member State of with the legislation of that State where the importation rendered imports more diffi- 'information provided by that hallmark... is cult and more costly. A national rule of this equivalent to that prescribed by the Mem- kind was, the Court held, a measure having ber State of importation and intelligible to equivalent effect to a quantitative restric- consumers of that State'. 14 In that event tion and was in principle prohibited under the dictates of the free movement of goods Article 30 of the Treaty. It required action take priority over the public-interest objec- by an importer, the payment of fees to the tive. supervising authority and led to delays in the marketing of the products, thereby increasing the costs of the products. 11

I - 4630

COMMISSION V IRELAND

whether the articles of precious metal Treaty, as construed in the judgment in imported from other Member States were Dassonville 18 and in those in Robertson hallmarked by independent bodies. The and Hoatwipper. Court added that the guarantees need not be exactly the same as those required by the legislation of the Member State of importa- tion. 17

23. Articles made of precious metal which have been lawfully manufactured and mar- keted in other Member States may, indeed, not be marketed in Ireland with the V — Views of the parties and analysis of description and indication of the standards the application of fineness which they bear in their country of origin if those standards of fineness do not comply with Irish requirements. They cannot be imported and described as gold, silver or platinum articles unless the hall- marks are replaced with those correspond- ing to the appropriate lower official Irish standard. While it is true that the Irish A — The complaint relating to standards legislation may, on the basis of Houtwip- of fineness per, be motivated by considerations of consumer protection and fair trading, the Court has also stated that within the system of the common market such interests must be assured by mutual respect for the fair and traditional practices in the different Member States. 19

( 1 ) The view of the Commission

22. The Commission's first head of com- plaint is essentially that the Irish provisions 24. The Commission further contends on on standards of fineness, together with the the basis of the Robertson and Hontwipper hallmarking requirement, constitute a pro- judgments that a hallmark lawfully hibited measure having equivalent effect within the meaning of Article 30 of the 18 — Case 8/74 [1974] ECU 837. 19 — The Commission cites in this connection the Court's ludgments in Case 182/84 Miro [1985| LCR 3731 and in 17 — Houtwilipcr, paragraph 23. Case C-269/89 Bonfait |1990| LCR I-4169.

stamped on articles of precious metal in the addition of 990 and 999 parts per thousand Member State of origin and indicating the to the existing standards. In the case of nominal fineness in parts per thousand silver, the existing standards were to be would provide the consumer with equiva- added to by those of 800 and 999 parts per lent information, even though the levels of thousand. Standards for platinum were to fineness differ from those laid down in the be extended by the addition of the stan- Irish legislation. Regarding the intelligibil- dards of 850, 900 and 999 parts per ity of the information provided by the thousand. These proposals were designed hallmark, the Commission considers that to bring the official Irish standards into line the means exist to inform the consumer with those contained in the April 1996 fully of the meaning and significance of version of the draft directive. non-Irish standards of fineness. The Com- mission suggests the attachment of a sui- table label to articles of precious metal, notices in display windows, and markings in catalogues, on order forms or on invoices supplied to buyers. The Commission stres- ses that these information requirements are 27. The Commission is prepared to accept additional to the necessary presence of a this amendment to the Irish legislation. The hallmark. It does not regard labelling as a draft directive, as it stands at present, is substitute for hallmarking. based on recognition of the standards that are most frequent within the Community. The Commission accepts that a surfeit of standards could confuse consumers, even if additional information measures were to be adopted. A limitation on the number of recognised standards to those most com- 25. On the basis of this reasoning, the monly used and applied within the Com- Commission concludes that articles of pre- munity could be justified as a proportionate cious metal that are lawfully manufactured means of protecting consumers and ensur- and marketed in the Community but with ing the fairness of commercial transactions. standards of fineness differing from the However, the amendments to the existing official Irish system should be marketable legislation are not yet in force and for that in Ireland bearing their original hallmarks. reason Ireland remains in default with its In this regard, the content of the foreign present rules. hallmarks may be brought to consumers' attention using the above methods.

is capable of hindering, directly or indir­ 30. This rule actually creates two types of ectly, actually or potentially, intra-Commu- barriers to trade. nity trade constitutes a restriction on such trade within the meaning of Article 30 of 20 the Treaty. The prohibition of the mar­ keting of articles of precious metal imported from elsewhere in the Commu­ nity which do not satisfy the Irish require­ ments constitutes a classic example of a barrier to trade. 31. First, articles of precious metal brought on to the market elsewhere in the Commu­ nity — for instance with the standards of 333, 500, 800, 840, 990 and 999 parts per thousand for gold, 850, 900 and 999 parts per thousand for platinum, and 800 parts per thousand for silver, standards which are normal in commercial practice — cannot 29. The Irish rules essentially distinguish lawfully be imported into Ireland, even three categories of articles made of precious though stamped with original hallmarks. metal imported from other Member States. Articles of precious metal coming within The first group consists of articles of the second and third categories which have precious metal covered by the Vienna been manufactured and marketed in Convention and having a nominal standard another Member State in accordance with of fineness that is in accordance with the the legislation there in force, and which official Irish standards under the 1983 and have been lawfully hallmarked in that 1990 Standards of Fineness Regulations. Member State, must be stamped with a Articles coming within this category can, new hallmark when imported into Ireland. without further requirement, be traded on This operation results in extra costs for the the Irish market. The second group consists importer, thereby rendering imports more of articles from Member States which have difficult and more expensive. ratified the Vienna Convention but whose official standards do not correspond to the standards prescribed in Ireland. These arti­ cles must be restamped in accordance with the appropriate lower Irish standard. The final category consists of articles of pre­ cious metal imported from Member States which have not ratified the Vienna Con­ 32. Second, these articles with unofficial vention. Irrespective of whether or not standards may be sold in Ireland only once these articles have been hallmarked in their the original hallmark has been removed country of origin, they must be checked and replaced by an official Irish hallmark and restamped in Ireland, where appropri­ indicating the nominal standard of fineness ate with the next lowest Irish standard which is closest below the actual standard. being affixed to the mark. This means, for instance, that an article of precious metal with an actual gold fineness of 800 parts per thousand will be hall­ 20 — Dassonville, cited above, paragraph 5. See also Joined Cases C-2Ć7/91 and C-268/91 Keck and Mithouard [1993] marked in Ireland with the nominal stan­ ECR I-6097, paragraph 11. dard of 750. Because of this downward

adjustment the higher value of the article 34. That complaint is, in my view, well will not be evident on the market. In founded. Infringements of the free move- Houtivipper, the Court — rightly — ment of goods cannot be justified if they go noted that fraud through small changes in further than is necessary. The judgments in the quantity of precious metal may have a Robertson and Houtwipper made it clear very great impact on a manufacturer's that restamping of imported goods is profit margin. 21 Conversely, a slight down- unnecessary if the hallmark was lawfully ward adjustment may also have an appre- struck in the Member State of origin under ciable effect on the profit margin. the supervision of an independent body and provides information that is equivalent to that contained on the hallmark of the Member State of importation.

33. I now wish to address the Irish Gov- standard happens to be used in their own ernment's invocation of the need to protect country.23 Indeed, the vast majority of the public interest. There is no issue as to Member States use the indication of parts the competence of Ireland to make the sale per thousand, and that indication is also of imported articles made of precious metal applied in Ireland itself. It may thus be subject to the presence of a hallmark that assumed that Irish consumers are familiar provides Irish consumers with intelligible with this system of indication. information on standards of fineness.

According to recent case-law, one must proceed on the basis of the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect (see, in particular, Case C-210/96 Gut Spring¬ 21 — Houtwipper, paragraph 21. The Court is here referring to enheide and Tusky [1998] ECR I-4657, paragraph 31, and the observation of the United Kingdom Government that a Case C-220/98 Estée Lauder [2000] ECR I-117, para- reduction in the quantity of precious metal by one part per graph 27). thousand may increase the profit margin by up to 10%. 23 — Point 36.

35. Further, this position of principle does, question. It further submits that the Com- in my opinion, take account of the eco- mission has not adduced evidence that the nomic requirements of the consumer who hallmarks on articles of precious metal in cannot determine the exact standard of certain Member States are in fact equiva- fineness of articles made of precious metal lent to the official Irish standards. Ireland by merely looking at or touching them. The also contends that the Act does not exclude hallmark serves to provide the consumer recognition of the equivalence of hallmarks with a sufficiently accurate knowledge of struck elsewhere. the nature and quality of the product and to distinguish it from other products with which it might be confused. 24 The Com- mission agrees that the Irish legislation limits the recognition of officially permitted standards to those which occur most fre- quently in the Community. In order to avoid any risks to the consumer which might continue to exist, the Irish legislature finally has the power to prescribe addi- tional information requirements which are less restrictive of the free movement within the Community of articles made from 37. I would point out in this regard that, in precious metals. proceedings for failure to fulfil an obliga- tion under Article 226 EC, it is for the Commission, in its capacity as applicant, to prove the allegation that the obligation has not been fulfilled and to place before the Court the information needed to enable it to determine whether that obligation has not been fulfilled. 25The Commission must therefore establish that the disputed mea- sure comes under the prohibitory rule. In its application the Commission argued convin- cingly why the Irish rules may impede trade between Member States within the mean- 36. The Irish Government's defence against ing of Article 30 of the Treaty. It may do so this complaint is unconvincing. From the in abstracto, without indicating precisely procedural point of view, it submits that the the specific cases in which an infringement Commission must prove that the absence of has occurred and even without a specific an express mutual acceptance clause does instance having actually occurred. 26 It is in fact give rise to a restriction on intra- then for the Member State to establish that Community trade in articles made of pre- the measure can be justified, and that a cious metal. The Irish Government claims particular measure is necessary and propor- that the Commission has not even estab- lished that intra-Community trade may be adversely affected by the legislation in 25 — See, inter ALIA, Case C-159/94 Commission v France [1997] ECR I-5815, paragraph 102, recently confirmed in the judgment of 14 December 2000 in Caie C-55/99 Commis- sion v France [2000] F.CR I-11499, paragraph 30. 26 — Case C-184/96 Commission v France [1998] ECR I-6197, 24 — See Robertson, paragraph 11. paragraph 17.

40. Nor is it possible to accept the conten- tion that the rules, as they applied at the 38. The Commission submits that a hall- time when the reasoned opinion was issued, mark with the nominal standard of fineness did not prohibit the Irish authorities from of a precious metal indicated in parts per recognising equivalence. It was argued that thousand provides consumers with equiva- the competent Minister already had such a lent information. It contends that the Irish power under section 2 of the Act. During legislation does not feature any require- the hearing, however, counsel for the Irish ment that hallmarks of the precious-metal Government was forced to concede that articles in question, imported from other Ireland cannot recognise any hallmark on Member States, should be recognised as precious metal from a Member State with 'equivalent'. Ireland, it argues, must there- different standards of fineness without first fore demonstrate that the provisions gov- of all amending the existing legislation. The erning precious metals are necessary and power which the Minister may have to proportionate for attaining the public-inter- make mutual acceptance possible in indivi- est objectives. dual cases by means of special regulations is insufficient to satisfy the obligations arising under Article 30 of the Treaty.

39. Ireland has, in my opinion, failed to adduce that evidence. Nowhere in its legislation does it appear that 'equivalent' hallmarks on imported goods which do not 41. Equally little credence, in my opinion, meet the official Irish requirements will be can be attached to the other arguments put recognised. The submission that goods with forward by the Irish Government in sup- foreign hallmarks which do indeed comply port of its contention that the Court should with the standards of fineness recognised in declare the Commission's first head of Ireland can be imported without double complaint to be unfounded. hallmarking does not in any way whatever detract from the fact that for many articles this barrier, which is at any rate potential, does in fact exist. The pending Irish draft rules for amending the 1983 and 1990

44. The Irish Government also expresses the view that what is regarded as fair and traditional practice in one Member State need not necessarily be so regarded in another. According to the Cassis de Dijon judgment, it argues, Member States may, if 47. These arguments are based on a mis- there is justification on grounds of public construction of the Commission's action. interest, prohibit the marketing of imported The competence of Ireland to make it goods even if they comply with the fair and compulsory for imported articles of pre- long-standing practices in another Member cious metals to bear a hallmark has never State. been in dispute. On the contrary, the Commission stresses the great importance which it attaches to the hallmark's signifi- cance as a source of information. Labelling cannot be regarded as being an alternative to a hallmark but rather as a possible supplement thereto. It is incorrect to claim 45. The Commission does not, however, that the obligation to provide information deny that the Irish legislation is designed to would be diluted through possible supple- protect the public interest. That said, the mentary labelling inasmuch as the obliga-

I - 4637

OPINION OF MR GEELHOED — CASE C-30/99

28 — In support of its submission, the Commission cites the 49. Section 9 of the Act requires that judgments in Case 155/82 Commission v Belgium [1983] ECR 531 and Case 247/81 Commission v Germany [1984] imported articles of precious metal must, ECR 1111, as well as Directive 70/50/EEC of 22 Decem- ber 1969, based on the provisions of Article 33(7), on the in addition to the approved hallmark, also abolition of measures which have an effect equivalent to be struck with a mark indicating the quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty responsible maker, worker or dealer (the (OJ, English Special Edition 1970(1), p. 17).

I - 4638

COMMISSION V IRELAND

proportionate, in the sense of there not mission, no justification for a systematic being any possible alternatives which registration of a sponsor's mark as a would be less restrictive of trade and which precondition for the marketing of goods would permit the same objective to be manufactured elsewhere in the Community. attained.

53. The Irish Government has declared that it is prepared to amend the provision in 51. The Irish authorities have submitted section 9(1) of the Act so that articles of that the purpose of the sponsor's mark is to precious metal which feature a responsible make it possible to trace the person party's mark struck in accordance with the responsible for the article of precious legislation of another Member State may be metal, whether that be the maker, worker imported into Ireland, on condition that or dealer. Identification of that person must that other Member State declares that the be possible, since the system of control mark has in fact been registered there. The would otherwise be ineffective. Commission, however, has not yet received any information to suggest that the Irish rules have in fact been amended in a manner which it would regard as satisfac- tory.

57. The Irish Government points out that the obligation to have a sponsor's mark 55. In Robertson, the Court recognised registered with the 'Company' does not that the obligation on the part of the apply to all imported articles made of manufacturer or importer to stamp articles precious metal. If such articles bear an of precious metal with a hallmark indicat- international hallmark and conform to the ing the manufacturer of the particular Irish standards of fineness, a sponsor's article is in principle capable of affording mark is not required under section 4(2) of effective protection to consumers and of the Act and the Vienna Convention. Nor is promoting fair trading. The mark makes it there any obligation on the sponsor to be possible for the purchaser of the article to an Irish national, to reside in Ireland, to identify the manufacturer. 30 As in the case nominate a representative in Ireland or to of the indication on the hallmark of the maintain a branch office there. The class of standard of fineness of precious metals, persons who can register a mark is, it there is here no longer any need for argues, practically unlimited. Nor need the protection where the mark lawfully struck sponsor's mark be struck in Ireland. In in the Member State of origin provides most cases, it is struck on the articles by the intelligible information on the identity of makers, workers or dealers themselves the responsible party that is equivalent to prior to being presented for assay to the that provided by the hallmark prescribed in Assay Master. Further, no extra costs are the Member State of importation. The involved where the Assay Master strikes the Commission is correct in pointing out that sponsor's mark while affixing the hallmark. the Irish rules make it completely impos- sible, in the event of equivalent informa- tion, to avoid double registration in the Member State of origin and in that of importation. This absolute impossibility constitutes an infringement of the principle of proportionality, thereby rendering the rule incompatible with Article 30 of the Treaty. 58. Although these arguments may to some extent reduce the restrictive effects which 29 — Suffice it to refer to the judgments cited in footnote 27. the measure may have on trade, they do not 30 — Robertson, paragraph 11. remove the fundamental objection. An

59. Only if the exception in section 4(2) of the Act is satisfied will it be possible to avoid compulsory registration. I would note in this connection that this exception 61. It is, however, clear that the Irish rules has, by virtue of the cumulative precondi- place articles of precious metal which have tions, a limited scope. The article con- already been stamped with a manufac- cerned must originate in a Member State turer's mark in accordance with the legisla- that is a Party to the Vienna Convention tion of the Member State of origin, and and, in particular, the precious metal which which do not come under the derogating it contains must have a standard of fineness arrangements, at a disadvantage in com- that is recognised in Ireland. Otherwise, the parison with articles of precious metal that Irish legislation does not even offer traders have been manufactured and marketed in the opportunity of demonstrating that the Ireland. Imported goods may still be subject marks already on the goods to be marketed to a second obligation to be stamped with a by them in Ireland satisfy the guarantees of sponsor's mark. I have already noted in identity. 31 regard to the burden of proof resting on the Commission that the latter does not, within the context of proceedings for failure to fulfil obligations, have to demonstrate that the legislation of other Member States offers equivalent guarantees. It is sufficient 60. The Irish Government is also unable to if it establishes clearly to the Court that no agree with the Commission's view that the provision has been made in Irish legislation Irish rules discriminate against imported for recognition of the marks of responsible goods. It submits that, with the exception parties which offer equivalent guarantees. of the rule on international hallmarks, the same requirement applies irrespective of the origin of the article of precious metal. The fact that articles imported from other Member States already have a manufac-

indeed recognise the equivalence of articles 64. That position is, however, untenable. of precious metal which satisfy the provi- The possibility of adopting ancillary mea- sions of Article 5 of the Vienna Conven- sures in extreme cases does not mean that a tion. That provision lays down a mechan- specific a priori control is justified. Indeed, ism whereby the authorised assay offices of the Irish legislation makes no provision for countries that are parties to the Vienna a mechanism under which the equivalence Convention may provide one another with of the guarantee of identity can be recog- information. However, official registers of nised in individual cases. sponsors' marks also exist in those Member States which have not ratified the Vienna Convention. If the Irish legislature consid- ers that consumer protection and fair trading are adequately guaranteed by the system of the Vienna Convention, there is, as the Commission correctly points out, no need whatever to deny equivalence when 65. The Irish Government has also argued articles of precious metal offering a similar in this connection that a system such as that guarantee are imported from Member suggested by the Commission would be no States which are not parties to that Con- less disruptive of the free movement of vention. That guarantee, the parties seem goods than is the current Irish system of to agree, must at least relate to the name of sponsors' marks. The Commission disputes the sponsor, an abbreviation of that name that assertion on the ground that it should or a symbol, and the requirement that the be possible to establish a network for the name in question be registered so that it is exchange of information between Member possible, on consulting the register, to States enabling rapid verification to be establish the identity of the party respon- made as to whether a mark has been sible for marketing the article. Those registered and who the person responsible minimum guarantees are also imposed in is. The competent authorities in the Mem- the Vienna Convention. ber States should, for instance, be in a position to exchange copies of official registers.

movement of goods, in conjunction with Act, an 'approved hallmark' is to be under­ the principle of bona fide compliance with stood as being either a hallmark struck by Treaty obligations under Article 5 of the the Assay Master in accordance with Irish EC Treaty (now Article 10 EC), impose a legislation or an international hallmark, or duty to act diligently not only on the both. Imported articles of precious metal Member State of importation. 33 In my that have been lawfully manufactured and opinion, this duty also applies to the marketed in the Community and do not authorities of the Member State of expor­ bear an international hallmark are there­ tation, which are obliged to provide an fore subject to the requirement that they be adequate response to any request for infor­ struck by the Assay Master with an mation made by the independent adminis­ approved hallmark, in accordance with trative authorities of the Member State of the Irish provisions. importation.

I - 4643

OPINION OF MR GEELHOED — CASE C-30/99

amend its legislation so as to provide a nity. In view of the foregoing, my assess- clause for reciprocal recognition of hall- ment of this matter may be brief. marks struck in other Member States by independent bodies and offering equivalent guarantees. However, the amendments to which the Irish Government referred have not as yet been adopted, let alone entered into force, and the Commission has for that reason maintained its head of complaint.

72. This complaint relates to the reciprocal 74. There is consequently no justification recognition of controls within the Commu- for arguing that the guarantee function of a hallmark can be ensured only if the mark is struck by the competent authorities of the 34 — That Government has submitted that hallmarking by an Member State of importation. The Irish independent body has a greater preventive effect and rules require that in all cases articles of ensures better consumer protection than does hallmarking by the manufacturer himself. The United Kingdom takes precious metal bear a mark struck by the the view that even a system of occasional supervision by an Assay Master pursuant to Irish legislative independent body falls short of a system under which such a body is in fact responsible for the hallmarking. I will not provisions unless the imported articles of in the present Opinion address the question whether it is necessary under all circumstances that the hallmark be precious metal are stamped with an inter- struck by an independent public body, and thus cannot be struck by the undertakings concerned on a self-regulatory national hallmark. In other words, the Irish basis. legislation refuses to recognise legal acts of

I - 4644

COMMISSION v IRELAND

an administrative nature carried out else- carats). The Commission submits that these where in the Community. That legislation is rules amount indirectly to an obligatory consequently stricter than allowed by the origin marking requirement by which con- judgment in Houtwipper and runs counter sumers can distinguish national from to the requirements of proportionality. The imported products. The importation of Commission's plea in law must therefore be goods originating in other Member States declared to be well founded. is thereby rendered difficult and, by reason of their discriminatory nature, these rules cannot be justified by mandatory require- ments of consumer protection or fair trad- ing. 35

VI — Conclusion

77. On the basis of the foregoing, I propose that the Court should:

(a) declare that:

— by prohibiting the marketing in Ireland, with the description and indication of fineness which they bear in their country of origin, of articles made from precious metals (gold, silver or platinum) lawfully manufactured and marketed in other Member States but not complying with the Irish provisions concerning standards of fineness, or by obliging importers of such articles to replace their hallmarks with those for the next lowest official Irish standard of fineness;

— by requiring articles made from precious metals (gold, silver or platinum) imported from another Member State, and marketed in Ireland, to bear a sponsor's mark indicative of the maker, worker or dealer responsible for such articles, registered by the body which appoints the Assay Master by which those articles are intended to be struck with the approved hallmark, when those articles already bear the mark of the responsible party in accordance with the legislation of the Member State of origin;

— by requiring articles made from precious metals (gold, silver or platinum) imported from another Member State, and marketed in Ireland, which have been lawfully struck in another Member State with a hallmark I - 4646