C-84/00
ECLI:EU:C:2001:182
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COMMISSION V FRANCE
OPINION OF ADVOCATE GENERAL MISCHO delivered on 22 March 2001 1
1. By an action for failure to fulfil obliga- restriction on the movement of goods in tions brought on 7 March 2000, the Com- providing (Article 521) that: mission asks the Court to declare that the French Republic has failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC), by failing to allow the marketing within France of articles of precious metals which come from other Member States and purport to have a standard of fineness of 'Manufacturers of articles made of gold or '999 parts per thousand', despite the fact containing gold, silver or platinum shall be that that standard of fineness is commonly subject to the rules on guaranteed stan- used in commercial practice. It also asks dards in this chapter, not only in respect of that the French Republic be ordered to pay their own production but also in respect of the costs. articles which they have manufactured for them by third parties using materials belonging to them. Any person who mar- kets such articles which come from other Member States of the European Union or 2. In its application, the Commission sets third countries, or their representatives, out the steps taken in the pre-litigation shall also be subject to these rules', procedure provided for by Article 169 of the EC Treaty (now Article 226 EC), which was particularly protracted in this case because of the French Government's will- ingness in principle, though not in fact, to amend the national law in question in the way advocated by the Commission. and (Article 522) that:
3. In its complaint against the French Republic, the Commission alleges that Articles 521 and 522 of the Code Général des Impôts (General Tax Code) impose a 'The statutory standards of fineness for articles of gold or containing gold, silver or 1 — Original language: French. platinum are as follows:
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(a) 916 and 750 parts per thousand for may be rejected on the ground that they are articles of gold; 585 and 375 parts per too close to those with which domestic thousand for articles containing gold; consumers are familiar, that cannot be the case for certain standards of fineness com- monly used in commercial practice which are unlikely to create such confusion as to undermine consumer protection and fair trading.
(b) 925 and 800 parts per thousand for articles of silver;
5. The standards which, in the Commis- sion's view, all of the Member States must acknowledge, and which have therefore been incorporated in the draft directive of the Council and the Parliament on articles of precious metals, submitted to the Coun- (c) 950, 900 and 850 parts per thousand cil on 22 April 1996, include the figure 999 for articles of platinum.' parts per thousand.
6. In its defence, the French Government 4. Articles of precious metals with a stan- does not deny the restrictive effect on trade dard of fineness of 999 parts per thousand of Articles 521 and 522 of the General Tax manufactured in other Member States that Code and does not contend that the recognise that standard are denied access to requirements of consumer protection and the French market. The Commission, rely- fair trading preclude a standard of fineness ing on the Court's decisions of 22 June of 999 parts per thousand in France. 1982 2and 15 September 1994 3concern- ing precious metals, does not dispute the right of the Member States to regulate the standard of fineness and the hallmarking of works made of precious metals. It considers that, whilst certain standards of fineness
2 — Case 220/81 Robertson and Others [1982] ECR 2349. 7. On the contrary, it points out, in a 3 — Case C-293/93 Houtwipper [1994] ECR I-4249. memorandum addressed to the Commis- I - 4556
COMMISSION V FRANCE
sion on 21 August 1996, that '... the 9. In contrast to standards inferior to the standard of 999 parts per thousand ... can lowest standards allowed by French law, be easily integrated into French law' and the standard of 999 parts per thousand is attaches to its draft amendment of Arti- unlikely to deceive the French consumer. cle 522 of the General Tax Code included in the amending draft of its 1997 Finance Law a statement of reasons in these terms: 'the statutory standards of fineness for articles of precious metals do not include 999 parts per thousand for gold, silver and platinum. Certain manufacturers, including those in other Member States of the European Union, produce such works. 10. Clearly therefore, at the date when Certain consumers wish to invest in works proceedings were started and, as far as I am made of precious metals of a very high aware, as at today's date, French law has standard of fineness. It is appropriate to not been amended to bring it into line with permit the marketing of such articles on Article 30 of the Treaty, notwithstanding French territory and, in order to do so, the French Government's numerous assur- these standards of fineness must be made ances that such an amendment was immi- lawful.' nent.
11. It appears from various memoranda sent by the French Government to the Commission that the amended 1997 Finance Law, the 1998 Finance Law and the Law amending and simplifying the rules on indirect contributions, the draft of which was filed on 18 June 1998, were all in turn intended to bring the infringement 8. It thus appears undeniable that the to an end. French Government accepts that the Com- mission's complaint is well founded. In truth, I fail to see how grounds of consumer protection and fair trading can be relied upon in relation to a standard of fineness that is close to absolute purity and superior to the highest standards currently recog- nised by French law, namely 916 parts per thousand for articles of gold, 925 parts per thousand for those of silver, and 950 parts 12. In fact, for reasons unknown to me, per thousand for those of platinum. that did not happen.
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Conclusion
13. Accordingly, I can only propose that the Court uphold the Commission's application in its entirety and therefore:
(1) declare that the French Republic has failed to comply with its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC) in failing to allow the marketing within France of articles of precious metals which come from other Member States and purport to have a standard of fineness of '999 parts per thousand';
(2) order the French Republic to pay the costs.
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