CJEC, 3rd chamber, February 14, 2008, No C-244/06

THE COURT (Third Chamber),

1 This reference for a preliminary ruling concerns the interpretation of Articles 28 EC and 30 EC and of Directive 2000-31-EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('the Directive on electronic commerce') (OJ 2000 L 178, p. 1).

2 The reference has been made in the course of proceedings between two companies incorporated under German law, Dynamic Medien Vertriebs GmbH ('Dynamic Medien') and Avides Media AG ('Avides Media'), with respect to mail order sales by Avides Media in Germany, via the internet, of image storage media from the United Kingdom which have not been examined and classified by a higher regional authority or a national voluntary self-regulation body for the purpose of protecting young persons and which do not bear any label from such an authority or body as to the age from which such image storage media may be viewed.

Legal framework

Community law

3 According to Article 1(1) thereof, Directive 2000-31 seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States.

4 Article 2(h) of Directive 2000-31 defines the concept of 'coordinated field' as 'requirements laid down in Member States' legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them.'

5 Article 2(h)(ii) states that the coordinated field does not cover requirements such as those applicable to goods as such or requirements applicable to the delivery of goods. As regards the requirements relating to goods, recital (21) in the preamble to Directive 2000-31 mentions safety standards, labelling obligations, and liability for goods.

6 Article 3(2) of Directive 2000-31 provides that Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State. Article 3(4), however, states that under certain conditions Member States may, in respect of a given information society service, take measures necessary for reasons such as public policy, in particular the protection of young persons and the protection of public health and consumers.

7 Directive 97-7-EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19) seeks, according to Article 1 thereof, to harmonise the provisions applicable in the Member States concerning distance contracts between consumers and suppliers.

National law

8 Paragraph 1(4) of the Law on the protection of young persons (Jugendschutzgesetz) of 23 July 2002 (BGBl. 2002 I, p. 2730) defines sale by mail order as 'any transaction for consideration carried out by means of the ordering and dispatch of a product by postal or electronic means without personal contact between the supplier and the purchaser or without technical or other safeguards to ensure that the product is not dispatched to children or adolescents'.

9 Paragraph 12(1) of the Law on the protection of young persons provides that pre-recorded video cassettes and other image storage media programmed with films or games to be reproduced or played on a screen (picture carriers) may be made publicly accessible to a child or adolescent only if the programmes have been authorised for that person's age range and labelled by the highest authority of the Land or by a voluntary self-regulation body under the procedure described in Paragraph 14(6) of that Law, or if they are information, educational or training programmes labelled by the supplier as 'information programmes' or 'educational programmes'.

10 Paragraph 12(3) of the Law provides that 'image storage media which have not been labelled or have been labelled "Not suitable for young persons" under Paragraph 14(2) by the highest authority of the Land or by a voluntary self-regulation body under the procedure described in Paragraph 14(6), or which have not been labelled by the supplier in accordance with Paragraph 14(7), may not:

1. be offered, transferred or otherwise made accessible to a child or adolescent;

2. be offered or transferred in retail trade outside of commercial premises, in kiosks or in other sales outlets which customers do not usually enter, or by mail order.'

The dispute in the main proceedings and the questions referred for a preliminary ruling

11 Avides Media sells video and audio media by mail order via its internet site and an electronic trading platform.

12 The dispute in the main proceedings concerns the importation by that company of Japanese cartoons called 'Animes' in DVD or video cassette format from the United Kingdom to Germany. The cartoons were examined before importation by the British Board of Film Classification ('the BBFC'). The latter checked the audience targeted by the image storage media by applying the provisions relating to the protection of young persons in force in the United Kingdom and classified them in the category 'suitable only for 15 years and over'. The image storage media bear a BBFC label stating that they may be viewed only by adolescents aged 15 years or older.

13 Dynamic Medien, a competitor of Avides Media, brought proceedings for interim relief before the Landgericht (Regional Court) Koblenz (Germany) with a view to prohibiting Avides Media from selling such image storage media by mail order. Dynamic Medien submits that the Law on the protection of young persons prohibits the sale by mail order of image storage media which have not been examined in Germany in accordance with that Law, and which do not bear an age-limit label corresponding to a classification decision from a higher regional authority or a national self-regulation body ('competent authority').

14 By decision of 8 June 2004, the Landgericht Koblenz held that mail order sales of image storage media bearing only an age-limit label from the BBFC is contrary to the provisions of the Law on the protection of young persons and constitutes anti-competitive conduct. On 21 December 2004, the Oberlandesgericht (Higher Regional Court) Koblenz, ruling in an application for interim relief, confirmed that decision.

15 The Landgericht Koblenz, called to rule on the merits of the dispute and unsure whether the prohibition provided for by the Law on the protection of young persons complied with the provisions of Article 28 EC and Directive 2000-31, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

'[1] Does the principle of the free movement of goods within the meaning of Article 28 EC preclude a provision of German law prohibiting the sale by mail order of image storage media (DVDs, videos) that are not labelled as having been examined in Germany as to their suitability for young persons?

[2] In particular: Does the prohibition of mail order sales of such image storage media constitute a measure having equivalent effect within the meaning of Article 28 EC?

[3] If so: Is such a prohibition justified under Article 30 EC, having regard to Directive [2000-31] even if the image storage medium has been examined as to its suitability for young persons by another Member State ... and is labelled accordingly, or does such a check by another Member State ... constitute a less severe means for the purposes of that provision?'

The questions referred for a preliminary ruling

Preliminary observations

16 By its questions, which it is appropriate to examine together, the referring court asks whether the principle of free movement of goods within the meaning of Articles 28 EC to 30 EC, the latter being read, where appropriate, in conjunction with the provisions of Directive 2000-31, precludes national rules, such as those at issue in the main proceedings, which prohibit the sale and transfer by mail order of image storage media which have not been examined or classified by the competent authority for the purpose of protecting young persons and which does not bear a label from that authority indicating the age from which they may be viewed.

17 As far as concerns the national legal context giving rise to the request for a preliminary ruling, the German Government submits that the prohibition of mail order sales of unexamined image storage media is not absolute. In fact, that type of sale is in accordance with national law when it is ensured that the order was made by an adult and that delivery of the goods concerned to children or adolescents is prevented by effective means.

18 In that context, the question arises as to the definition in national law of the concept of mail order sales. It is clear from the case-file that that concept is defined by Paragraph 1(4) of the Law on the protection of young persons as 'any transaction for consideration carried out by means of the ordering and dispatch of a product by postal or electronic means without personal contact between the supplier and the purchaser or without technical or other safeguards to ensure that the product is not dispatched to children or adolescents'.

19 However, it is not for the Court, in the context of a reference for a preliminary ruling, to give a ruling on the interpretation of provisions of national law or to decide whether the interpretation given by the national court of those provisions is correct (see, to that effect, Case C-58-98 Corsten [2000] ECR I-7919, paragraph 24). The Court must take account, under the division of jurisdiction between the Community Courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (see Case C-475-99 Ambulanz Glöckner [2001] ECR I-8089, paragraph 10; Case C-136-03 Dörr and Ünal [2005] ECR I-4759, paragraph 46; and Case C-419-04 Conseil général de la Vienne [2006] ECR I-5645, paragraph 24).

20 In such circumstances, it is appropriate to reply to the request for a preliminary ruling by starting from the premiss, which is that of the referring court, that the rules at issue in the main proceedings prohibit any sale by mail order of image storage media which have not been examined and classified by the competent authority for the purpose of protecting young persons and which do not bear a label from that authority indicating the age from which they may be viewed.

21 Furthermore, it is apparent, in the light of the evidence in the case-file, that the rules at issue in the main proceedings apply not only to suppliers established on the territory of the Federal Republic of Germany but also to suppliers whose registered offices are in other Member States.

22 As regards the provisions of Community law applicable in circumstances such as those in the main proceedings, certain aspects relating to the sale of image storage media by mail order may come within the scope of Directive 2000-31. However, as is clear from Article 2(h)(ii) thereof, that directive does not govern the requirements applicable to goods as such. The same is true of Directive 97-7.

23 Since the national rules relating to the protection of young persons at the time of the sale of goods by mail order have not been harmonised at Community level, the rules at issue in the main proceedings must be assessed by reference to Articles 28 EC and 30 EC.

The existence of a restriction on the free movement of goods

24 Avides Media, the United Kingdom Government and the Commission of the European Communities take the view that the rules at issue in the main proceedings constitute a measure having equivalent effect to a quantitative restriction prohibited, in principle, by Article 28 EC. According to the United Kingdom Government and the Commission that regime is, however, justified on grounds relating to the protection of young persons.

25 Dynamic Medien, the German Government and Ireland submit that the rules at issue in the main proceedings concern selling arrangements within the meaning of the judgment in Joined Cases C-267-91 and C-268-91 Keck and Mithouard [1993] ECR I-6097. Since they are applicable to both national and imported products alike, and affect the marketing of those two types of products in the same way in law and in fact, they do not fall within the prohibition laid down in Article 28 EC.

26 According to settled case-law, all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions and are, on that basis, prohibited by Article 28 EC (see, inter alia, Case 8-74 Dassonville [1974] ECR 837, paragraph 5, Case C-420-01 Commission v Italy [2003] ECR I-6445, paragraph 25, and Case C-143-06 Ludwigs-Apotheke [2007] ECR I-0000, paragraph 26).

27 Even if a measure is not intended to regulate trade in goods between Member States, the determining factor is its effect, actual or potential, on intra-Community trade. By virtue of that factor, in the absence of harmonisation of national legislation, obstacles to the free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods constitute measures of equivalent effect (such as those relating to designation, form, size, weight, composition, presentation, labelling or packaging), even if those rules apply to all products alike, unless their application can be justified by a public-interest objective taking precedence over the requirements of the free movement of goods (see, to that effect, Case 120-78 Rewe-Zentral ('Cassis de Dijon') [1979] ECR 649, paragraphs 6, 14 and 15; Case C-368-95 Familiapress [1997] ECR I-3689, paragraph 8; and Case C-322-01 Deutscher Apothekerverband [2003] ECR I-14887, paragraph 67).

28 In its case-law, the Court has also treated as measures having equivalent effect, prohibited by Article 28 EC, national provisions making a product lawfully manufactured and marketed in another Member State subject to additional controls, save in the case of exceptions provided for or allowed by Community law (see, inter alia, Case C-390-99 Canal Satélite Digital [2002] ECR I-607, paragraphs 36 and 37, and Case C-14-02 ATRAL [2003] ECR I-4431, paragraph 65).

29 By contrast, the application 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 for the purposes of the line of case-law beginning with Dassonville, on condition that those provisions apply to all relevant traders operating within the national territory and that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States (see, inter alia, Keck and Mithouard, paragraph 16; Case C-292-92 Hünermund and Others [1993] ECR I-6787, paragraph 21; and Case C-434-04 Ahokainen and Leppik [2006] ECR I-9171, paragraph 19). Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products (see Keck and Mithouard, paragraph 17).

30 Subsequently, the Court treated as provisions governing sales arrangements within the meaning of the judgment in Keck and Mithouard provisions concerning, in particular, a number of marketing methods (see, inter alia, Hünermund and Others, paragraphs 21 and 22; Case C-254-98 TK-Heimdienst [2000] ECR I-151, paragraph 24; and Case C-441-04 A-Punkt Schmuckhandel [2006] ECR I-2093, paragraph 16).

31 It is clear from paragraph 15 of the judgment in Case C-391-92 Commission v Greece [1995] ECR I-1621 that rules which restrict the marketing of products to certain points of sale, and which have the effect of limiting the commercial freedom of economic operators, without affecting the actual characteristics of the products referred to, constitute a selling arrangement for the purposes of the case-law cited in paragraph 29 of this judgment. Therefore, the need to adapt the products in question to the rules in force in the Member State in which they are marketed prevents the abovementioned requirements from being treated as selling arrangements (see Canal Satélite Digital, paragraph 30). That is the case, inter alia, with regard to the need to alter the labelling of imported products (see, inter alia, Case C-33-97 Colim [1999] ECR I-3175, paragraph 37, and Case C-416-00 Morellato [2003] ECR I-9343, paragraphs 29 and 30).

32 In the present case, the rules at issue in the main proceedings do not constitute a selling arrangement within the meaning of the case-law resulting from Keck and Mithouard.

33 Those rules do not prohibit sale by mail order of image storage media. They provide that, in order to be marketed in that way, image storage media must be subject to a national examination and classification procedure for the purpose of protecting young persons, regardless of whether a similar procedure has already been followed in the Member State from which those image storage media were exported. Furthermore, those rules lay down a condition with which image storage media must comply, namely that with regard to their labelling.

34 Such rules are liable to make the importation of image storage media from a Member State other than the Federal Republic of Germany more difficult and more expensive, with the result that they may dissuade some interested parties from marketing such image storage media in the latter Member State.

35 It follows that the rules at issue in the main proceedings constitute a measure having equivalent effect to quantitative restrictions within the meaning of Article 28 EC, which in principle is incompatible with the obligations arising from that article unless it can be objectively justified.

Possible justification for the rules at issue in the main proceedings

36 The United Kingdom Government and the Commission take the view that the rules at issue in the main proceedings are justified in so far as they are designed to protect young people. That objective is linked in particular to public morality and public policy, which are grounds of justification recognised in Article 30 EC. Furthermore, Directives 97-7 and 2000-31 expressly authorise the imposition of restrictions on grounds of public interest.

37 Dynamic Medien, the German Government and Ireland concur with that position if it is established that those rules do not fall outside the prohibition laid down by Article 28 EC. The German Government submits that they pursue public-policy objectives and ensure that young people are able to develop their sense of personal responsibility and their sociability. Furthermore, the protection of young people is an objective which is closely related to ensuring respect for human dignity. Ireland also invokes the imperative requirement of consumer protection recognised by the judgment in Cassis de Dijon.

38 Avides Media takes the view that the rules at issue in the main proceedings are disproportionate in so far as they have the effect of systematically prohibiting the sale by mail order of image storage media not bearing the labelling which they require, regardless of whether or not the image storage media concerned were examined in another Member State for the purpose of protecting young people. In addition, it is argued, German law fails to provide for a simplified procedure in cases where such an examination has in fact been made.

39 In that connection, it must be recalled that the protection of the rights of the child is recognised by various international instruments which the Member States have cooperated on or acceded to, such as the International Covenant on Civil and Political Rights, which was adopted by the General Assembly of the United Nations on 19 December 1966 and entered into force on 23 March 1976, and the Convention on the Rights of the Child, which was adopted by the General Assembly of the United Nations on 20 November 1989 and entered into force on 2 September 1990. The Court has already had occasion to point out that those international instruments are among those concerning the protection of human rights of which it takes account in applying the general principles of Community law (see, inter alia, Case C-540-03 Parliament v Council [2006] ECR I-5769, paragraph 37).

40 In this context, it must be observed that, under Article 17 of the Convention on the Rights of the Child, the States Parties recognise the important function performed by the mass media and are required to ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. Article 17(e) provides that those States are to encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being.

41 The protection of the child is also enshrined in instruments drawn up within the framework of the European Union, such as the Charter of fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1), Article 24(1) of which provides that children have the right to such protection and care as is necessary for their well-being (see, to that effect, Parliament v Council, paragraph 58). Furthermore, the Member States' right to take the measures necessary for reasons relating to the protection of young persons is recognised by a number of Community-law instruments, such as Directive 2000-31.

42 Although the protection of the child is a legitimate interest which, in principle, justifies a restriction on a fundamental freedom guaranteed by the EC Treaty, such as the free movement of goods (see, by analogy, Case C-112-00 Schmidberger [2003] ECR I-5659, paragraph 74), the fact remains that such restrictions may be justified only if they are suitable for securing the attainment of the objective pursued and do not go beyond what is necessary in order to attain it (see, to that effect, Case C-36-02 Omega [2004] ECR I-9609, paragraph 36, and Case C-438-05 International Transport Workers' Federation and Finnish Seamen's Union [2007] ECR I-0000, paragraph 75).

43 It is clear from the decision making the reference that the national rules at issue in the main proceedings are designed to protect children against information and materials injurious to their well-being.

44 In that connection, it is not indispensable that restrictive measures laid down by the authorities of a Member State to protect the rights of the child, referred to in paragraphs 39 to 42 of this judgment, correspond to a conception shared by all Member States as regards the level of protection and the detailed rules relating to it (see, by analogy, Omega, paragraph 37). As that conception may vary from one Member State to another on the basis of, inter alia, moral or cultural views, Member States must be recognised as having a definite margin of discretion.

45 While it is true that it is for the Member States, in the absence of Community harmonisation, to determine the level at which they intend to protect the interest concerned, the fact remains that that discretion must be exercised in conformity with the obligations arising under Community law.

46 Although the rules at issue in the main proceedings correspond to the level of child protection that the German legislature has sought to ensure on the territory of the Federal Republic of Germany, it is also necessary that the measures implemented by those rules be suitable for securing that objective and do not go beyond what is necessary in order to attain it.

47 There is no doubt that prohibiting the sale and transfer by mail order of image storage media which have not been examined and classified by the competent authority for the purpose of protecting young persons and which do not bear a label from that authority indicating the age from which they may be viewed constitutes a measure suitable for protecting children against information and materials injurious to their well-being.

48 As far as concerns the substantive scope of the prohibition concerned, the Law on the protection of young persons does not preclude all forms of marketing of unchecked image storage media. It is clear from the decision making the reference that it is permissible to import and sell such image storage media to adults by way of distribution channels involving personal contact between the supplier and the purchaser, which thus ensures that children do not have access to the image storage media concerned. In the light of those factors, it appears that the rules at issue in the main proceedings do not go beyond what is necessary to attain the objective pursued by the Member State concerned.

49 As regards the examination procedure established by the national legislature in order to protect children against information and materials injurious to their well-being, the mere fact that a Member State has opted for a system of protection which differs from that adopted by another Member State cannot affect the assessment of the proportionality of the national provisions enacted to that end. Those provisions must be assessed solely by reference to the objective pursued and the level of protection which the Member State in question intends to provide (see, by analogy, Case C-124-97 Lääräand Others [1999] ECR I-6067, paragraph 36, and Omega, paragraph 38).

50 However, such an examination procedure must be one which is readily accessible, can be completed within a reasonable period, and, if it leads to a refusal, the decision of refusal must be open to challenge before the courts (see, to that effect, Case C-344-90 Commission v France [1992] ECR I-4719, paragraph 9, and Case C-95-01 Greenham and Abel [2004] ECR I-1333, paragraph 35).

51 In the present case, it appears from the observations submitted by the German Government before the Court that the procedure for examining, classifying, and labelling image storage media, established by the rules at issue in the main proceedings, fulfils the conditions set out in the preceding paragraph. However, it is for the national court, before which the main action has been brought and which must assume responsibility for the subsequent judicial decision, to ascertain whether that is the case.

52 Having regard to all the foregoing considerations, the answer to the questions referred must be that Article 28 EC does not preclude national rules, such as those at issue in the main proceedings, which prohibit the sale and transfer by mail order of image storage media which have not been examined and classified by the competent authority for the purposes of protecting young persons and which do not bear a label from that authority indicating the age from which they may be viewed, unless it appears that the procedure for examination, classification and labelling of image storage media established by those rules is not readily accessible or cannot be completed within a reasonable period, or that a decision of refusal is not open to challenge before the courts.

Costs

53 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, THE COURT (Third Chamber) hereby rules:

Article 28 EC does not preclude national rules, such as those at issue in the main proceedings, which prohibit the sale and transfer by mail order of image storage media which have not been examined and classified by a higher regional authority or a national voluntary self-regulation body for the purposes of protecting young persons and which do not bear a label from that authority or that body indicating the age from which they may be viewed, unless it appears that the procedure for examination, classification and labelling of image storage media established by those rules is not readily accessible or cannot be completed within a reasonable period, or that a decision of refusal is not open to challenge before the courts.