CJEC, March 31, 1982, No 75-81

THE COURT

1 By judgment of 18 march 1981, received at the court on 7 april 1981, the belgian cour de cassation referred to the court of justice for a preliminary ruling under article 177 of the eec treaty two questions on the interpretation of articles 30 and 36 of the eec treaty to enable it to judge whether certain provisions of the belgian law of 29 august 1919 on the sale and consumption of alcohol were compatible with community law.

2 The questions were raised in criminal proceedings brought by the belgian authorities against a restaurateur accused of infringing articles 1, 2 and 14 of the aforesaid law inasmuch as, being a retailer of drinks for consumption on the premises, he held in stock and sold in his establishment spirits of an alcoholic strength exceeding 22 degrees at a temperature of 15 degrees centigrade.

3 Both before the cour de cassation and in his observations to the court of justice the accused maintained that even if they applied without distinction to domestic and imported products the rules laid down by articles 1 and 2 of the law of 29 august 1919 constituted measures having an effect equivalent to quantitative restrictions on the importation of spirits contrary to article 30 of the eec treaty. Further those measures could not be justified on any of the grounds listed in article 36 of the treaty and in particular the protection of the health and life of humans since there was no certain and present need for them which would be recognized as such throughout the community.

4 The belgian cour de cassation considered that the case involved problems of the interpretation of community law and referred the following questions to the court for a preliminary ruling:

' ' 1. Must the expression ' measures having an effect equivalent to quantitative restrictions on imports ' contained in article 30 of the treaty establishing the european economic community be interpreted as meaning that the prohibition laid down by that provision covers:

(a) Legislative measures prohibiting the consumption, the sale or the offering even without charge of spirits (that is to say drinks whose alcoholic strength exceeds 22* at a temperature of 15* centigrade) for consumption on the premises in all places open to the public, in particular in establishments retailing drinks, hotels, restaurants, places of entertainment, shops, stalls, boats, trains, trams, stations, workshops or working sites as well as on the public thoroughfare, even if such a prohibition applies without distinction to national products and imported products and is not intended to protect national production?

(b) Legislative measures prohibiting persons selling drinks for consumption on the premises from having in stock in any quantity whatsoever spirits (as defined above) either on the premises to which consumers are admitted or in other parts of the establishment and any adjoining dwelling, even if such a prohibition applies without distinction to national products and to imported products and is not intended to protect national production?

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' ' 2. In the event of question 1 being answered in the affirmative: must the expression measures ' justified on grounds of... The protection of health and life of humans ' contained in article 36 of the treaty establishing the european economic community be interpreted as meaning that measures such as those described under parts (a) and (b) of question i may or must be considered as justified on the grounds set out above in the operative part of this judgment?

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First question

5 The first question inquires whether the concept of measures having an effect equivalent to quantitative restrictions as set forth in article 30 of the eec treaty also covers measures prohibiting the consumption for payment or free of charge (question 1 (a)) and the holding in stock (question 1 (b)) in all places open to the public or in other parts of the premises and any dwelling appurtenant thereto, of spirits in excess of 22* of alcohol even if such prohibition applies without distinction to domestic and imported products and not intended to protect domestic production.

6 In the view of the belgian government the law in question does not fall under the prohibition of article 30 of the eec treaty because it has no restrictive effect upon intra-community trade in the absence of any discrimination between imported and domestic products. The objective of the law of 29 august 1919 is a general one and forms part of the campaign against alcoholism. The belgian government points out that the ban on keeping and consuming certain spirits in places open to the public is intended to combat alcoholism and its spread and in particular to protect youth against its harmful effects both from a personal and social point of view. It therefore constitutes a legitimate choice of social policy in accordance with the objectives of general interest pursued by the treaty. The absence of community rules in the matter justifies national action in so far as it is considered necessary to satisfy imperative requirements which in any event have precedence over the requirements of free movements of goods.

7 Article 30 of the eec treaty provides that quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between member states. It follows that any national measure likely to hinder, directly or indirectly, actually or potentially, intra-community trade is to be regarded as a measure having an effect equivalent to quantitative restrictions. As the court pointed out in its judgment of 10 july 1980 in case 152-78 commission v french republic (1980) ecr 2299, even though a law on the marketing of products does not directly concern imports, it may, according to the circumstances, affect prospects for importing products from other member states and thus fall under the prohibition in article 30 of the treaty.

8 Moreover according to article 3 of commission directive 70-50 of 22 december 1969 (official journal, english special edition 1970 (i) p. 17) on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the eec treaty, the prohibition in article 30 of the treaty also covers national measures governing the marketing of products even though equally applicable to domestic and imported products, where the restrictive effect of such measures on the free movement of goods exceeds the effects intrinsic to trade rules.

9 That is not however the case with a legislative provision concerning only the sale of strong spirits for consumption on the premises in all places open to the public and not concerning other forms of marketing the same drinks. It is to be observed in addition that the restrictions placed on the sale of the spirits in question make no distinction whatsoever based on their nature or origin. Such a legislative measure has therefore in fact no connection with the importation of the products and for that reason is not of such a nature as to impede trade between member states.

10 The same considerations also apply to the prohibition of keeping the drinks in question in premises appurtenant to the establishment open to the public. In so far as that provision is ancillary to the prohibition of consumption on the premises its effect cannot be to restrict the importation of products originating in other member states.

11 The first question must therefore be answered to the effect that the concept in article 30 of the eec treaty of measures having an effect equivalent to quantitative restrictions on imports is to be understood as meaning that the prohibition laid down by that provision does not cover a national measure applicable without distinction to domestic and imported products which prohibits the consumption, sale or offering even without charge of spirituous beverages of a certain alcoholic strength for consumption on the premises in all places open to the public as well as the stocking of such drinks on premises to which consumers are admitted or in other parts of the establishment or in the dwelling appurtenant thereto, in so far as the latter prohibition is complementary to the prohibition of consumption on the premises.

Second question

12 Since the second question was put only in the event of an answer in the affirmative to the first question, it does not call for consideration.

Costs

13 The costs incurred by the governments of the kingdom of Belgium, the french republic and the united kingdom and by the commission of the european communities, which have submitted observations to the court, are not recoverable. Since the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court

Hereby rules:

The concept in article 30 of the eec treaty of measures having an effect equivalent to quantitative restrictions on imports is to be understood as meaning that the prohibition laid down by that provision does not cover a national measure applicable without distinction to domestic and imported products which prohibits the consumption, sale or offering even without charge of spirituous beverages of a certain alcoholic strength for consumption on the premises in all places open to the public as well as the stocking of such drinks on premises to which consumers are admitted or in other parts of the establishment or in the dwelling appurtenant thereto, in so far as the latter prohibition is complementary to the prohibition of consumption on the premises.