C-71/02

I - 3028

KARNER

3. Article 2(2) (a) the characteristics of goods or services, such as their availability, nature, execution, composition, method and date of manufacture or provision, fitness for purpose, uses, quantity, specification, geographical or commer- cial origin or the results to be expected 'For the purposes of this directive: from their use, or the results and material features of tests or checks carried out on the goods or services;

...'

2. "misleading advertising" means any advertising which in any way, includ- ing its presentation, deceives or is likely 5. Article 7 to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their eco- nomic behaviour or which, for those reasons, injures or is likely to injure a competitor...' '1. This directive shall not preclude Mem- ber States from retaining or adopting provisions with a view to ensuring more extensive protection, with regard to mis- leading advertising, for consumers, persons carrying on a trade, business, craft or profession, and the general public. 4. Article 3

...' 5 'In determining whether advertising is mis- leading, account shall be taken of all its features, and in particular of any informa- tion it contains concerning: 5 — Text as amended by Directive 97/55.

Persons who, in the course of trade and for III— Facts the purposes of competition, provide poten- tially misleading information on business matters, in particular as regards the nature, origin, production method or pricing of particular goods or services or of the entire range on offer, or as regards price lists, the 8. The parties to the main proceedings are method of procurement or source of supply engaged in the purchase and sale of assets of goods, awards won, the reason for or resulting from insolvency proceedings. Both purpose of the sale or the quantity of stock, parties were involved in the sale of the may be the subject of an application for an moveable assets of a construction company injunction ordering them to cease and, which had been compulsorily wound up. where they knew or must have known that On 26 March 2001, the defendant in the the information was potentially misleading, main proceedings (hereinafter 'Troostwijk') an action for damages.' acquired, with the authorisation of the insolvency court, machines, vehicles and construction materials belonging to the insolvency debtor. Those assets from the 6 — BGBl. No 448/1984, most recently amended by BGBl. I No 136/2001. insolvency estate were to be sold on at an

I - 3030

KARNER

auction on 14 May 2001. Troostwijk 9. The auction was advertised by means of advertised that auction as follows: a sales catalogue and a notice in the press. The notice was also posted on the website www.troostwijkauctions.com.

'LARGE INSOLVENCY AUCTION

10. The plaintiff in the main proceedings featuring machines, construction materials (hereinafter 'Karner') obtained from the and a fleet of vehicles Handelsgericht Wien (Commercial Court, Vienna) an interlocutory injunction order- ing Troostwijk to:

behalf of or on the instructions of the 13. The national court takes the view that insolvency administrator, but on the the prohibition applies irrespective of defendant's own account, and that it is whether, in a particular case, there is a real not therefore an insolvency auction.' danger of the public being misled or whether that danger is ruled out by the provision of appropriate explanatory infor- mation. It considers that the provision also applies where an advertisement states that the advertiser acquired the goods from the insolvency administrator, and even where a considerable difference in price remains despite the profit margin added on by the 11. The Oberlandesgericht Wien (Higher purchaser. In this case also, it submits, Regional Court, Vienna) upheld the injunc- truthful and useful information is withheld tion, which was based on Paragraph 30 of from consumers. the UWG, and dismissed as groundless the appeal against the obligation to provide clarification. Troostwijk brought an extra- ordinary appeal on a point of law against that ruling before the Oberster Gerichtshof (Supreme Court). 14. In contrast, the general prohibition on misleading acts contained in Article 2 of the UWG applies only to information that is in fact capable of misleading. The scope of that provision is thus more restricted than that of Article 30 (1) of the UWG, which is intended to apply to a special set of circumstances. 12. The Oberster Gerichtshof has doubts as to whether the prohibition contained in Paragraph 30(1) of the UWG is compatible with Article 28 EC. It considers that, when adopting that measure, the legislature pro- ceeded on the basis '... that the public prefers to purchase goods sold by an 15. The national court takes the view that insolvency administrator because it assumes the prohibition on advertising contained in it is obtaining the goods at bargain prices, Article 30 of the UWG may have an adverse but that, in the case of an advertisement for effect on trade within the internal market. the sale of goods from an insolvency estate, Where a trader is prevented from stating the public does not distinguish according to truthfully that he is offering goods at a whether the goods are being sold by the particularly low price because he has insolvency administrator or by a third party acquired them from an insolvency admin- who has acquired the goods from the istrator (at an even lower price), the insolvency estate. Third parties who have consumer is denied that information. A acquired goods from an insolvency estate person purchasing goods from an insolv- must be prevented... from exploiting that ency estate must also take into account in tendency on the part of the public'. his advertising the different legislative

20. Troostwijk is of the opinion that 7 — Judgment in Joined CASES C-267/91 and C-268/91 Keck and Article 30 of the UWG restricts the free Mithouard [1993] ECR I-6097, paragraph 16 et s e q . movement of goods. That provision, it

I - 3033

OPINION OF MR ALBER — CASE C-71/02

contends, prohibits the dissemination of Information regarding the origin of a truthful information. For the potential product has to do with the attributes of buyer, that information is not only a matter that product. For that reason, Article 30 of interest, but also an important factor in does not constitute a selling arrangement his decision whether or not to buy. That within the meaning of the judgment in Keck rule therefore represents an obstacle to the and Mithouard. sale of the goods in question.

8 —Judgmentin Case C-292/92 Hünermund [1993] ECR I-6787. 9 —Judgmentin Case C-412/93 Leclerc-Siplec [1995] ECR I-179. 10 —Judgment in Joined Cases C-34/95, C-35/95 and C-36/95 23. Troostwijk considers the rule in Arti- De Agostini [1997] ECR I-3843. 11 — Judgment in Case C-405/98 Gourmet International [2001] cle 30 of the UWG to be product-related. ECR I-1795.

I - 3034

KARNER

26. In their submission, the prohibition ation of truthful information. Troostwijk contained in Article 30 of the UWG applies refers in this connection to the judgment in to domestic and foreign goods and eco- GB-INNO-BM. 12 To that extent, it sub- nomic operators in the same way. It does mits, Article 30 of the UWG also infringes not restrict access to the market for foreign Directive 84/450. goods. The requirements laid down by case- law with respect to the legality of a selling arrangement are therefore met.

29. On the assumption, as employed by the Court in its case-law, that the average consumer is reasonably well-informed, 27. The Commission points out, further- observant and sensible, protection must be more, that only total prohibitions are provided only against information that is in prohibited by Community law, since they fact capable of misleading him. That func- have the effect of cementing national tion is already performed by Article 2 of the consumer trends. Article 30 of the UWG, UWG. On the other hand, provisions which on the other hand, restricts advertising only guard against a theoretical danger that the in respect of one very specific piece of public will be misled, as Article 30 of the information, namely the fact that the goods UWG does, are not necessary. advertised originate from a liquidation.

31. Karner, the Austrian Government and 33. The Swedish Government also points the Swedish Government, on the other out that sales held by insolvency adminis- hand, are of the opinion that the prohib- trators are generally subject to special ition laid down in Paragraph 30 of the provisions, such as a requirement that the UWG is justified on grounds of consumer assets in the insolvency estate should be protection and fair trading. The consumer disposed of within a certain period of time. does not distinguish between goods sold by Those rules do not apply to sales held by the insolvency administrator himself and third parties after the assets have been goods acquired from the insolvency estate removed from the estate. It is therefore and then sold on by third parties. Advertis- misleading to describe the resale of such ing goods as coming from an insolvency goods as an 'insolvency auction', an 'insol- estate serves as an enticement to the public. vency sale' or in similar terms. The Swedish In those circumstances, the consumer Government considers that protection is wrongly assumes that a particularly good necessary not only on the ground of bargain may be obtained. Those expect- consumer protection but also in order to ations are disappointed where the goods are ensure fair trading. made more expensive by the profits of intermediaries. The prohibition contained in Article 30 of the UWG is intended to guard against such disappointment.

34. Finally, Karner and the Swedish Gov- ernment can see no alternative measures that would be equally effective and less restrictive. Consequently, they too regard the prohibition as proportionate.

36. The directive does not contain express rules on advertisements for the sale by auction of goods from an insolvency estate. The requirement in Article 3 of the directive that, in determining whether advertising is B — Measures having equivalent effect to a misleading, account must be taken of all its restriction on imports (Article 28 EC) features, and in particular of information concerning the characteristics of the goods, such as their commercial origin, seems to be relevant only to the prohibition contained in Article 2 of the Austrian UWG, which concerns the need to establish that there is a 38. As the prohibition at issue is not the danger that the public will be misled in a subject of a Community harmonisation particular case. Article 30 of the UWG is measure, it is necessary to examine the not covered by Article 3, since it seeks to question, as referred by the national court, combat a theoretical danger that the public whether Articles 28 and 30 EC are to be will be misled. It does not require proof that interpreted as precluding a prohibition such there is a danger that the public will be as that contained in Article 30 of the UWG. misled in a particular case. Irrespective of how the advertisement is actually presented and whether it is in fact capable of misleading, describing the goods in ques- tion as coming from an insolvency estate is prohibited in so far as those goods no longer form part of the insolvency estate at the time when the advertisement is pub- lished. The approximation of legislation effected by Directive 84/450 does not cover 1. Objection of inadmissibility the combating of such theoretical dangers.

43. The advertisement at issue in the main proceedings was published on the internet. That enabled potential buyers in other Member States to access the advertisement 41. The question raised by Kärner seeks and, if they so wished, to acquire goods at rather to ascertain whether Article 28 EC is the auction. If such an advertisement is applicable to a situation such as that in the prohibited under Article 30 of the UWG, main proceedings. Karner takes the view trade between Member States is hindered at that Article 30 of the UWG is not incom- least indirectly and potentially as such patible with the rules of the Treaty on the advertising becomes impossible. The ques- free movement of goods because trade tion is whether that is sufficient for the between Member States is not affected. prohibition in Article 28 EC to apply or However, determining the scope of Arti- whether the solution to this problem should cle 28 EC is a question of substantive law. not instead be sought by recourse to the The reference for a preliminary ruling is means available under national constitu- therefore admissible. tional law.

14 —Judgments in Case 244/80 Foglia [1981] ECR 3045, 15—Judgments in Case 8/74 Dassonville [1974] ECR 837, paragraph 18, and Case C-83/91 Meilicke [1992] paragraph 5, and Keck and Mithouard (cited above in ECR I-4871, paragraph 25. footnote 7, paragraph 11).

I-3038

KARNER

44. Behind Karner's argument that the are subordinate to those relating to the free subject-matter of this case is of purely movement of goods, it is necessary first of domestic significance lies a completely all to examine whether the rule in Para- different question which is much more graph 30 of the UWG falls within the scope difficult to answer: does Article 28 EC of Article 28 EC. serve to safeguard the free exercise of commercial activities in the individual Member States, or must it be limited to the liberalisation of intra-Community trade? Ultimately, Troostwijk's concerns undoubtedly have less to do with its sales prospects abroad than with overcoming an onerous advertising restriction that limits 3. Classification as a selling arrangement the exercise of its commercial activities at home. The question is whether this still falls within the scope of Article 28 EC.

I - 3039

OPINION OF MR ALBER — CASE C-71/02

23 — Cited above in footnote 8, paragraph 22 (advertising of 21—Judgment in Keck and Mithouard (cited above in quasi-pharmaceutical products outside the pharmacy). footnote 7, paragraph 16 et seq.). 24 — Cited above in footnote 9, paragraph 22 (prohibition on 22 — Judgments in Keck and Mithouard (cited above in televised advertisements for distribution undertakings). footnote 7, paragraph 13) and Joined Cases C-418/93 to 25 — Cited above in footnote 10, paragraph 44 (outright ban on C-421/93, C-460/93 to C-462/93, C-464/93, C-9/94, advertising aimed at children less than 12 years of age and C-10/94, C-11/94, C-14/94, C-15/94, C-23/94, C-24/94 on misleading advertising, as provided for by Swedish and C-332/94 Casa Uno and Others [1996] ECR I-2975, legislation). paragraph 24. 26 — Cited above in footnote 11, paragraphs 25 and 32.

I - 3040

KARNER

of the UWG does not fall within the scope ments for products, not the products of Article 28 EC. themselves, or their composition, form, size, weight or origin. The prohibition in Article 30 of the UWG is therefore a sales- related measure.

52. Troostwijk sets against the classifica- tion of Paragraph 30 of the UWG as a sales- related measure the argument that the origin of goods has to do not with their sale but with their attributes. It contends that references to the origin of goods are 55. According to the aforementioned case- product-related. law, however, selling arrangements are excluded from the scope of Article 28 EC only where they apply to all relevant traders operating within the national territory and where they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member 53. As indicated above, the origin of goods States. 27 is described in Article 3(a) of Directive 84/450 as one of the 'characteristics of goods'. On that basis, it seems entirely reasonable to regard the origin of goods as a distinctive attribute.

insolvency estate are permissible in other main proceedings, such a prohibition does Member States and cites Belgium, France not exist in all Member States, so that the and Sweden as examples. It contends that advertisement prohibited in Austria would the use of the internet makes it impossible be permissible in some Member States. to differentiate between advertising in Austria and advertising in other Member States, and that, as a result, Paragraph 30 of the UWG hinders the free movement of goods in so far as it restricts advertising which is permissible in other Member States. 60. The use of uniform advertising con- cepts throughout the internal market requires protection under Community law against obstacles which impede such activ- ities. The Court has already ruled as such in Yves Rocher and Mars. 28 The internet creates for traders new opportunities 58. The Swedish Government contradicts which, in the absence of Community rules Troostwijk's submission and points out and because the relevant legislation differs that Swedish law contains a provision from one Member State to another, they comparable to Paragraph 30 of the UWG. have as yet been unable fully to utilise. The According to the Commission, the decisive obstacles which this creates must not make criterion is whether the rule concerned it impossible to exercise the fundamental makes it more difficult or even impossible freedoms safeguarded by the Treaty. for foreign products to gain access to the market. It takes the view that the free movement of goods is adversely affected only where domestic distributors of goods are afforded a competitive advantage. In its submission, Article 30 of the UWG does not do that.

62. The requirement, as referred to by Troostwijk, of compliance with different 64. Ultimately, however, more recent case- advertising rules depending on the Member law appears to indicate that that question State concerned, and the consequent need must be answered in the negative. On the to adjust advertisements accordingly could one hand, the additional costs relate not to constitute discrimination against imported the adjustment of the goods to be imported goods in so far as undertakings not but to the adjustment of the advertising, established in Austria are obliged to adjust that is to say, a sales-related factor. their Community-wide advertising for the According to the distinction drawn in the Austrian market in accordance with Para- judgment in Keck and Mithouard, such graph 30 of the UWG. The mere act of additional financial expenditure would determining what is permissible under the probably have to be regarded as not being law of each Member State incurs consider- covered by Article 28 EC. able costs. 31 The rule in Paragraph 30 of the UWG therefore means that advertising imported goods is more expensive. The question is whether such additional expend- iture alone is sufficient to justify classifica- tion of the rule in question as a measure having an effect equivalent to a quantitative restriction. 65. On the other hand, even in its more recent case-law, the Court has taken into account whether the relevant rule makes it difficult for foreign goods to gain access to 63. The judgment in Yves Rocher can the market. In Gourmet International, it hardly be relied upon to answer that held this to be true of a prohibition on all question, as it predates the judgment in advertising directed at consumers in the Keck and Mithouard, which introduced the form of advertisements in the press, on the radio and on television, the direct mailing of unsolicited material or the placing of posters on the public highway. 32 However, 30 — Bundesgesetz, mit dem bestimmte rechtliche Aspekte des elektronischen Geschäfts- und Rechtsverkehrs geregelt (E- in contrast to the circumstances of that Comniercc-Geserz — ECG) und das Signaturgesetz sowie case, Article 30 of the UWG does not die Zivilprozessordnung geändert werden, (Law governing certam legal aspects of electronic business and legal impose a total prohibition on the advertis- transactions (E-Commerce Law — ECG) and amending the Signature Law and Code of Civil Procedure) BGBl. I ing of goods that come from an insolvency No 152/2001. 31 — See the preamble to the Proposal for a European Parliament and Council Directive on certain legal aspects of electronic commerce in the internal market, COM (1998) 586 final of 18 November 1998, p. 9 et seq. 32 — Cited above in footnote 11, paragraph 2 1 .

70. In addition to the general rule in Article 30 EC, it is settled case-law that, in areas where Community law does not provide for harmonisation, obstacles to 67. It must therefore be concluded that the intra-Community trade resulting from dis- prohibition on advertising contained in parities between provisions of national law Article 30 of the UWG, as a sales-related must be accepted in so far as such provi- measure (selling arrangement), does not fall sions are applicable to domestic and within the scope of Article 28 EC. imported products without distinction and

I - 3044

KARNER

may be justified as being necessary in order to be overriding requirements in the general to satisfy overriding requirements relating interest which are in principle capable of inter alia to consumer protection. However, justifying restrictions on the free movement in order to be permissible, such provisions of goods. 34 must be proportionate to the objective pursued and that objective must not be capable of being achieved by measures which are less restrictive of intra-Commu- nity trade. 33

33 — Judgments in Case C-313/94 Graffione [1996] ECR I- 34 — Judgments in Ruwet (cited above in footnote 33, para- 6039, paragraph 17, and Case C-3/99 Ruwet [2000] graph 50) and De Agostini (cited above in footnote 10, ECR I-8749, paragraph 50. paragraph 46).

I - 3045

OPINION OF MR ALBER — CASE C-71/02

obstruct the exercise of fundamental free- mation. Advocate General Fennelly, too, doms, such justification, provided for by argued in an Opinion in proceedings con- Community law, must be interpreted in the cerning the directive on tobacco advertising light of the general principles of law and in that advertising should be regarded as particular of fundamental rights. Thus the forming part of the freedom of expression national rules in question can fall under the within the context of Community law. 37 exceptions provided for by Community law only if they are compatible with the fundamental rights the observance of which is ensured by the Court. It follows that, in such a case, it is for the national court and, if necessary, the Court of Justice to appraise the application of those provisions having regard to all the rules of Community law, including freedom of expression, as embo- died in Article 10 of the ECHR, as a general 76. On that analysis, it must be concluded principle of law the observance of which is that the prohibition on advertising con- ensured by the Court. 35 tained in Article 30 of the UWG restricts the freedom of expression. That restriction is made all the more severe by the fact that the prohibition applies to the dissemination of truthful information.

I - 3046

KARNER

reputation and rights of others. 38 In 79. Against that yardstick, a restriction on Casado Coca it recognised that rules of advertising on grounds of consumer protec- professional conduct pursue a legitimate tion and fair trading, as imposed by aim for the purposes of Article 10(2) and Article 30 of the UWG, would in principle are therefore capable of justifying a restric- probably have to be regarded as compatible tion of advertising opportunities. 39 The with Article 10 of the ECHR, provided that European Commission of Human Rights there is no equivalent means of achieving takes the view that advertising may be those objectives which is less restrictive of subjected to more extensive restrictions the fundamental right to freedom of expres- than the expression of political ideas. 40 sion.

81. As the Swedish Government correctly observes, a sale organised by an insolvency 38 —Judgment in Marki Intern (cited above in footnote 13, § 31). administrator is normally characterised by 39 — Judgment i n Casado Coca (cited above in footnote 36, § the need to realise the assets of the under- 46). taking as soon as possible and compliance 40 — Decision of 5 May 1979 i n Case 7805/77, X and Church of Scientology v Sweden, Decisions and Reports 16 (1979), with certain legislative provisions. That 68, 73. Frowein, in: Frowein/Peukert, European Conven- tion on Human Rights (1985), Article 10, Paragraph 9, affects the price that can be obtained for with further references. Van Dijk/Van Hoof, Theory and practice of the European Convention on Human Rights the goods offered. The same cannot be said (second edition), Article 10, Paragraph 8, p. 425. of an auction such as that advertised by the 41 — Joined Opinion in Germany v Parliament and Council and defendant in the main proceedings. The Imperial Tobacco (cited above in footnote 37, paragraph 159). defendant is not subject, when organising

I - 3047

OPINION OF MR ALBER — CASE C-71/02

auctions, to the provisions applicable to an held by or on behalf of the insolvency insolvency administrator. Nor is it under administrator and that the goods auctioned pressure to sell the goods as quickly as will no longer form part of the insolvency possible. Those differences justify the draw- estate at the time of the auction. ing of a clear distinction between advertis- ing for an auction such as that held by the defendant in the main proceedings and that for an auction held by an insolvency administrator.

I - 3048

KARNER

solution advocated here can therefore be indirectly and potentially, of having an taken from that judgment. effect on the sale of goods auctioned in Austria to buyers in other Member States.

86. Consequently, it must be concluded 88. Although the order for reference that a total prohibition on advertisements expressly raises only the question of the stating that the goods advertised come from interpretation of Article 28 EC, the Court an insolvency estate goes beyond what is has on numerous occasions in the past held necessary in the interests of consumer that it must extract from all the factors protection and fair trading, and is therefore provided by the national court the elements disproportionate. The prohibition cannot of Community law requiring an interpreta- therefore be justified by reference to Arti- tion, having regard to the subject-matter of cle 30 EC or to overriding reasons in the the dispute. 44 The order for reference does general interest. not therefore preclude a legal assessment of other provisions of the Treaty.

I - 3049

OPINION OF MR ALBER — CASE C-71/02

exports, the rule in question falls outside Paragraph 30 of the UWG is compatible the scope of Article 29 EC. with the provisions on the freedom to provide services.

92. The judgments in GB-INNO-BM and D — Freedom to provide services (Article 49 Schindler demonstrate how difficult it can EC) be to draw that distinction in practice. Both cases concerned the distribution of adver- tising material. In the judgment in GB- INNO-BM, the Court examined the dis- tribution of promotional literature exclu- sively from the point of view of the free movement of goods. 46 In Schindler, on the 90. If the approach I have set out above is other hand, the mailing of advertising adopted and the prohibition in Article 30 of material regarding a 4 foreign 7 lottery was the UWG is classified as a selling arrange- classified as a service. ment that falls outside the scope of Arti- cle 28 EC, the question arises whether that rule falls within the scope of the provisions on the freedom to provide services and, if so, to what extent it is consistent with those provisions.

dent advertising agency. Such an activity from the Court, that it had not used an would in principle have to be classified as advertising agency but had placed the falling within the scope of Article 49 EC. notice on the internet itself. However, that does not rule out the application of the provisions on the freedom to provide services, since the auction notice at issue in the main proceedings, which is repro- duced in the order for reference, gives the internet address 'www.troostwijk.com'. 94. The order for reference contains no That is the home page of the parent information on the factual circumstances company of the defendant in the main surrounding the advertisement on the inter- proceedings, which is established in the net. The following observations can there- Netherlands. That site currently contains a fore serve only as practical guidance on list of dates of auctions taking place across how the national court should assess the Europe, and includes advertisements com- facts of the case in the context of Commu- parable to that used by the defendant in the nity law if it establishes that the advertise- main proceedings and catalogues listing the ment in question was placed on the internet goods offered for sale at each auction. This by a third party. suggests that the advertisement in question was placed on the internet by the parent company, which operates throughout Eur- ope and is established in the Netherlands. If the parent company and the subsidiary each have their own legal personality, the national court will have to rule on whether 95. The main proceedings concern an Article 30 of the UWG is compatible with advertisement which was published inter the provisions on the freedom to provide alia on the website 'www.troostwijkauc- services. tions.com'. The national court will first of all have to ascertain whether the defendant in the main proceedings placed the adver- tisement on the internet itself or whether that was done by a third party. If it is the former, the facts of the case will have to be assessed exclusively in the context of the free movement of goods; if it is the latter, the prohibition in Article 30 of the UWG will have to be examined with a view also 97. The freedom to provide services could to determining its compatibility with the have been restricted in two ways. If the freedom to provide services. advertisement was placed on the internet by a third party, including a parent company with independent legal status, which is established in another Member State, the freedom to provide services could have been restricted in so far as Article 30 of the UWG totally prohibits the distribution of the 96. It is true that, at the hearing, Troost- advertisement in Austria. The service in wijk explained, in response to a question question could not in those circumstances

98. If, however, the third party is also established in Austria, the freedom to provide services could have been restricted in so far as the advertisement cannot be distributed via the internet to other Mem- ber States where such advertisements are in principle permitted. Troostwijk submitted, without contradiction, that it is not possible to vary the publication of advertisements according to the Member State concerned. 100. The grounds of justification listed in That being the case, the only way in which Article 46 EC do not seem relevant to the Article 30 of the UWG could be complied main proceedings. However, it is settled with would be for no advertisements to be case-law that consumer protection and fair placed on the internet. This, moreover, is trading in principle constitute overriding consistent with the home State principle. reasons in the general interest which are That principle requires compliance with the capable of justifying restrictions on the provisions applicable in the Member State freedom to provide services. 49 It is true from which the relevant communication is that Article 30 of the UWG seeks to protect sent. The home State principle is enshrined consumers and ensure fair trading. How- inter alia in Article 3(1) of the E-Commerce ever, for the reasons given in the context of Directive and has been applied by the Court the examination of the provisions on the in the context of the broadcasting of free movement of goods, the rule laid down television advertising. 48 in Article 30 of the UWG probably has to be regarded as disproportionate in this context too. A distinction in the advertise- ment at issue making it clear that it is not an advertisement for an auction of assets in an insolvency estate organised by an insol- vency administrator would be just as effective in ensuring consumer protection and fair trading as the total prohibition 99. In those circumstances, it would fall to contained in Article 30 of the UWG. the national court to examine whether the Consequently, any restriction of the free- restriction in Article 30 of the UWG is dom to provide services would be unjusti- necessary in order to achieve one of the fied. objectives referred to in Article 46 EC or for overriding reasons in the general interest,

Article 28 EC is to be interpreted as meaning that it does not preclude national legislation which prohibits any reference, however true, to the fact that goods come from an insolvency estate, where public announcements or notices intended for a large audience advertise the sale of goods originating from, but no longer forming part of, an insolvency estate. Such legislation may nevertheless constitute a disproportionate restriction on the freedom to provide services, if it can properly be assessed against the provisions relating to that freedom (Article 49 EC).

I - 3053