CJEC, June 22, 1982, No 220-81

THE COURT

1 By judgment of 26 april 1979, received at the court registry on 20 july 1981, the tribunal de premiere instance (court of first instance), brussels, referred to the court for a preliminary ruling under article 177 of the eec treaty a question on the interpretation of articles 30 to 36 of the eec treaty in order to determine the compatibility with community law of the belgian rules relating to the hallmarking of silver-plated articles.

2 That question was raised in connection with criminal proceedings instituted against certain importers for selling silver-plated cutlery from other member states whose hallmarks did not fulfil the requirements of the belgian rules.

3 Under article 10 of belgian royal decree no 80 of 28 november 1939 supplementing and amending the law of 5 june 1868 on freedom to work gold and silver materials, and establishing a compulsory guarantee as to the fineness of articles made of precious metals, as amended by the decree-law of 28 february 1947, silver-plated ware must be stamped with two hallmarks, one constituting the manufacturer ' s own hallmark and the other bearing a numeral indicating the number of grams of pure silver with which the article is coated. That provision lays down, however, that cutlery and tableware must bear the weight in grams per batch of 12 articles. The above-mentioned decree also provides that manufacturers or importers of silver-plated articles are under an obligation to register the impression of the hallmark which they employ with the competent belgian authorities and to provide a security upon registration if they are not belgian nationals.

4 Royal decree no 80 was supplemented by the regent ' s decree of 13 july 1948 laying down detailed rules for the implementation of the former. Article 7 of the decree of 13 july 1948 provides that in the case of silver-plated articles, both the manufacturer ' s mark and the hallmark as to weight must be in a specific form, that is to say, a barrel for the former and a rectangle for the latter, that the number of grams of pure silver coating must be specified in arabic numerals and that the indications must be set out lengthwise. Since the above-mentioned rules do not provide for any exception in the case of silver-plated articles manufactured abroad, such articles may not be offered for sale in belgium unless hallmarked in the same manner as silver-plated articles manufactured in belgium.

5 A comparative examination of the laws of the member states shows that whereas the laws of all those states provide, in one way or another, for the obligation to hallmark articles made of precious metals (gold, silver or platinum), only belgium provides for the compulsory hallmarking of silver-plated articles. Most of the other member states have not adopted any specific provisions as regards the hallmarking of such articles. In germany, however, hallmarking of articles made of a metal resembling gold or silver, including silver-plated articles, is prohibited except in the case of cutlery and tableware which may be stamped with a hallmark bearing a numeral indicating the weight of the pure silver coating. In that case, as is standard practice, the amount of pure silver is measured in relation to a surface area of 24 square decimetres.

6 Taking the view that its decision depended on the question whether the above-mentioned belgian rules were compatible with the prohibition of measures having an effect equivalent to quantitative restrictions, laid down in article 30 et seq. Of the eec treaty, and that, accordingly, an interpretation of those provisions was necessary to enable it to give judgment, the tribunal de premiere instance, brussels, referred to the court of justice the following question for a preliminary ruling:

' ' Must articles 30 to 36 of the treaty establishing the european economic community be interpreted as prohibiting in the precious metals sector provisions such as royal decree no 80 of 28 november 1939 supplementing and amending the law of 5 june 1868, confirmed by the law of 16 june 1947 and amended by the decree-law of 28 february 1947, which determine, in accordance with particular methods, the fineness of an alloy containing pure silver and govern the form and the details of hallmarks guaranteeing the fineness so determined?

' '

7 It is apparent from the file on the case that the main proceedings concern only imports of silver-plated articles from other member states. Accordingly, the question submitted for a preliminary ruling may be confined to the issue whether articles 30 to 36 of the treaty preclude a member state from applying national rules, prohibiting the sale of silver-plated articles not stamped with hallmarks which comply with the requirements of those rules to similar articles imported from another member state in which they have been lawfully marketed.

8 The answer to that question can be given only on the basis of article 30 of the treaty, to the exclusion of article 36, since measures such as those provided for by the rules in question do not fall within the scope of the exceptions listed exhaustively in article 36.

9 Under article 30 of the treaty, quantitative restrictions on imports and all measures having equivalent effect are prohibited in trade between member states. In accordance with the established case-law of the court, any commercial legislation adopted by the member states which is capable of hindering either directly or indirectly, actually or potentially, intra-community trade is to be regarded as a measure having an effect equivalent to quantitative restrictions. However, as the court has repeatedly held, first in its judgment of 20 february 1979 in case 120-78 rewe (1979) ecr 649, in the absence of common rules relating to the marketing of the products concerned, obstacles to movement within the community resulting from disparities between the national laws must be accepted in so far as such rules, applicable to domestic and to imported products without distinction, may be recognized as being necessary in order to satisfy mandatory requirements relating inter alia to consumer protection and fair trading.

10 In the light of those principles, it should be stated first of all that national rules of the kind described by the court making the reference, the effect of which is to prohibit the marketing of silver-plated articles imported from other member states not stamped with hallmarks which comply with the requirements of those rules, constitute an obstacle to the free movement of goods between the member states. Their effect is to require either hallmarking during the manufacturing process, in the case of articles intended for the belgian market, or hallmarking by the importer, in accordance with the rules of belgian law, thereby rendering the marketing of products from other member states, and in particular parallel imports, more difficult and more expensive.

11 It must be recognized, however, that the obligation on the part of the manufacturer or the importer to stamp silver-plated articles, which by their very nature are capable of being confused with articles made of solid silver, with special hallmarks which are indelible, inseparable from the article and indicate the quantity of pure silver coating as well as the name of the manufacturer of the article, is in principle capable of affording effective protection to consumers and of promoting fair trading. The hallmark as to weight achieves that twofold objective by enabling the consumer to acquire a sufficiently accurate knowledge of the nature and the quality of the product and to distinguish it from other products with which it might be confused. Moreover, the manufacturer ' s mark enables the buyer of the article to identify the manufacturer.

12 However, there is no longer the need for such protection where articles of that kind are imported from another member state in which they have been lawfully marketed, if they are already hallmarked in accordance with the legislation of that state, on condition however that the indications provided by the hallmarks prescribed by that state, in whatever form, contain information which includes indications equivalent to those provided by the hallmarks prescribed by the member state of importation and intelligible to consumers of that state.

13 It is for the national court to make the findings of fact needed for the purpose of determining whether or not such equivalence exists.

14 Therefore the answer to the question raised by the tribunal de premiere instance, brussels, must be that article 30 of the eec treaty does not prevent a member state from applying national rules prohibiting the sale of silver-plated articles not stamped with a hallmark which complies with the requirements of those rules to like articles imported from another member state in which they have been lawfully marketed, provided that such articles have not been stamped, in accordance with the legislation of the member state of exportation, with a hallmark containing information equivalent to that provided by the hallmarks prescribed by the rules of the member state of importation and intelligible to consumers of that state. It is for the national court to make the findings of fact needed for the purpose of determining whether or not such equivalence exists by reference to the interpretative criteria specified by the court.

Costs

15 The costs incurred by the belgian government, the united kingdom and by the commission of the european communities which have submitted observations to the court are not recoverable. As these proceedings are in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court

In answer to the question submitted to it by the tribunal de premiere instance, brussels, by judgment of 26 april 1979 hereby rules:

1. Article 30 of the eec treaty does not prevent a member state from applying national rules prohibiting the sale of silver-plated articles not stamped with a hallmark which complies with the requirements of those rules to like articles imported from another member state in which they have been lawfully marketed, provided that such articles have not been stamped, in accordance with the legislation of the member state of exportation, with a hallmark containing information equivalent to that provided by the hallmarks prescribed by the rules of the member state of importation and intelligible to consumers of that state.

2. It is for the national court to make the findings of fact needed for the purpose of determining whether or not such equivalence exists by reference to the interpretative criteria specified by the court.