CJEC, December 14, 1982, No 314-81

THE COURT

1 By two judgments of 30 january 1981 and a judgment dated 12 february 1981 which were received at the court on 18 december 1981 and a judgment of 6 january 1982 which was received at the court on 8 march 1982 the tribunal de grande instance (regional court), Paris , referred to the court for a preliminary ruling under article 177 of the eec treaty a question on the interpretation of article 171 of the eec treaty in order to obtain guidance on the inferences to be drawn from the judgment of 10 july 1980 (case 152-78 commission v french republic (1980) ecr 2299) by which the court declared that'' by subjecting advertising in respect of alcoholic beverages to discriminatory rules and thereby maintaining obstacles to the freedom of intra-community trade, the french republic has failed to fulfil its obligations under article 30 of the eec treaty''.

2 The preliminary question submitted by the national court, which is the same in all four cases, was raised in the course of prosecutions brought against the responsible officers of various undertakings (manufacturers and importers of alcoholic beverages, advertising agents and publishers) for offences against the provisions of the french code on the retail of alcoholic beverages and measures against alcoholism (hereinafter referred to as'' the code'') resulting from advertising campaigns to promote various alcoholic beverages, namely an aperitif made in France (case 314-82, two brands of port imported from Portugal (cases 315 and 316-81) and a brand of whisky imported from the united kingdom (case 83-82).

3 The accused contended before the national court that the judgment of 10 july 1980 declared the provisions of the code which they were alleged to have infringed to be contrary to community law and that therefore all proceedings against them ought to be withdrawn.

4 Considering that in this instance it was necessary to determine whether community law, as laid down by that judgment, renders articles l 1, l 17, l 18 and l 21 of the code directly and immediately inapplicable, the national court requested the court of justice to explain the effect of its judgment of 10 july 1980 having regard to the provisions of article 171 of the treaty.

5 In the proceedings before the court the accused expanded upon their view that the judgment of 10 july 1980 had'' general effect'' inasmuch as the court had condemned in its entirety the french legislation on the advertising of alcoholic beverages as laid down in the code. They argued that there was therefore no need to distinguish between the products in question on the basis of their origin. In particular, it was not permissible to treat national products differently from products imported from other member states to the detriment of the former. The accused emphasized that such'' general effect'' had been recognized in France in judgments given by several courts of first instance and of appeal.

6 That view was contested by the comite national de defense contre l'alcoolisme, civil party in the proceedings before the national court, and by the commission and the french government. These submit that the court found the french legislation to be contrary to article 30 of the treaty only in so far as the marketing of alcoholic products originating in other member states is subject, de facto or de jure, to more stringent provisions than those applying to competing national products. As regards products imported from Portugal , the commission and the french government point out that article 30 of the eec treaty governs intra-community trade only and that the system applicable to those products comes under the agreement on free- trade concluded on 22 july 1972 with that state (official journal, english special edition 1972 (31 december), p. 167) without prejudice to the effect which that agreement may have in the matter.

7 In view of the doubts which have thus arisen following the judgment of 10 july 1980 it is necessary to recall the scope of that judgment before answering the question submitted by the national court.

Scope of the judgment of 10 july 1980

8 The commission's application which led to the judgment of 10 july 1980 sought a declaration that the french republic had failed to fulfil its obligations under article 30 of the eec treaty by regulating the advertising of alcoholic beverages in a way discriminatory to products originating in other member states. The commission contended that the rules laid down by the code were structured in such a way that the advertising of certain imported alcoholic products was prohibited or subject to restrictions whilst the advertising to promote national products was entirely unrestricted or less restricted.

9 In its judgment the court held that the rules on the advertising of alcoholic beverages laid down by the code are contrary to article 30 of the eec treaty inasmuch as they constitute an indirect restriction on the importation of alcoholic products originating in other member states to the extent to which the marketing of those products is subject, in law or in fact, to more stringent provisions than those which apply to national or competing products.

10 In this regard the court emphasized in particular that since they come under the tax arrangements applying to wine french natural sweet wines enjoy unrestricted advertising whilst imported sweet wines and liqueur wines are subjected to a system of restricted advertising. Similarly, whilst distilled spirits typical of national produce, such as rum and spirits obtained from the distillation of wines, cider or fruit, enjoy completely unrestricted advertising, it is prohibited in regard to similar products which are mainly imported products, notably grain spirits such as whisky and geneva.

11 Contrary to the contention advanced by the accused, the judgment of 10 july 1980 only affects the treatment of products imported from other member states and the french legislation was declared to be contrary to article 30 only in so far as it enacts rules which are less favourable to those products than towards national products which may be regarded as being in competition with them.

12 It follows, in the first place, that the breach of obligations found by the court does not concern the rules applicable to national products and, secondly, that the court was not called upon to consider the rules applicable to products imported from non-member countries. The only inference which must be drawn from the judgment to which the preliminary question refers is therefore that, as far as advertising is concerned, the french republic must treat alcoholic products originating in other member states in the same way as competing national products and consequently it must revise the classification set out in article l 1 of the code in so far as that classification has the effect of putting at a disadvantage, in fact or in law, certain products imported from other member states.

Effect of the judgment of 10 july 1980

13 Article 171 states that'' if the court of justice finds that a member state has failed to fulfil an obligation under this treaty, the state shall be required to take the necessary measures to comply with the judgment of the court of justice''.

14 All the institutions of the member states concerned must, in accordance with that provision, ensure within the fields covered by their respective powers, that judgments of the court are complied with. If the judgment declares that certain legislative provisions of a member state are contrary to the treaty the authorities exercising legislative power are then under the duty to amend the provisions in question so as to make them conform with the requirements of community law. For their part the courts of the member state concerned have an obligation to ensure, when performing their duties, that the court's judgment is complied with.

15 However, it must be emphasized in this regard that the purpose of judgments delivered under articles 169 to 171 is primarily to lay down the duties of member states when they fail to fulfil their obligations. Rights for the benefit of individuals flow from the actual provisions of community law having direct effect in the member states'internal legal order, as is the case with article 30 of the treaty prohibiting quantitative restrictions and all measures having equivalent effect. Nevertheless, where the court has found that a member state has failed to fulfil its obligations under such a provision, it is the duty of the national court, by virtue of the authority attaching to the judgment of the court, to take account, if need be, of the elements of law established by that judgment in order to determine the scope of the provisions of community law which it has the task of applying.

16 Therefore the answer to the question submitted must be that if the court finds in proceedings under articles 169 to 171 of the eec treaty that a member state's legislation is incompatible with the obligations which it has under the treaty the courts of that state are bound by virtue of article 171 to draw the necessary inferences from the judgment of the court. However, it should be understood that the rights accruing to individuals derive, not from that judgment, but from the actual provisions of community law having direct effect in the internal legal order.

Costs

17 The costs incurred by the government of the french republic and 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 submittd to it by the tribunal de grande instance, Paris , by judgments of 30 january 1981, 12 february 1981, 30 january 1981 and 6 january 1982, hereby rules:

If the court finds in proceedings under articles 169 to 171 of the eec treaty that a member state's legislation is incompatible with the obligations which it has under the treaty the courts of that state are bound by virtue of article 171 to draw the necessary inferences from the judgment of the court. However, it should be understood that the rights accruing to individuals derive not from that judgment, but from the actual provisions of community law having direct effect in the internal legal order.