(Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))

(Free movement of goods – Article 28 EC – Measures having equivalent effect – Advertising restrictions – Reference to the commercial origin of goods – Goods from an insolvent company – Directive 84/450/EEC – Fundamental rights – Freedom of expression – Principle of proportionality)

Summary of the Judgment

(Arts 28 EC and 234 EC)

(Art. 28 EC; Council Directive 84/450, Art. 7)

1.A reference for a preliminary ruling relating to the interpretation of Article 28 EC is not inadmissible simply because all the facts of the specific case before the national court are confined to a single Member State, if it is not obvious that the interpretation requested is not necessary for the national court. Such a reply might help it to determine whether national legislation such as a prohibition on references in advertisements to the commercial origin of goods from an insolvent estate when they no longer constitute part of that estate is likely to constitute a potential impediment to intra-Community trade falling within the scope of application of Article 28 EC.

(see paras 19, 21)

2.Article 28 EC does not preclude national legislation which, irrespective of the truthfulness of the information, prohibits any reference to the fact that goods come from an insolvent estate, where, in public announcements or notices intended for a larger circle of persons, notice is given of the sale of goods which originate from, but no longer constitute part of, the insolvent estate.

Such a restriction on advertisements, which is likely to come within the scope of application of Directive 84/450 concerning misleading advertising, which allows the Member States to ensure more extensive consumer protection than that provided for by the directive provided that that power is exercised in a way that is consistent with the fundamental principle of free movement of goods, must be viewed as relating to selling arrangements and is not caught by the prohibition laid down in Article 28 EC because it applies without distinction to all the operators concerned and affects the marketing of domestic and imported products in the same manner.

Nor does that restriction infringe the fundamental right of freedom of expression, recognised by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, because it is reasonable and proportionate, in the light of the legitimate goals pursued by that provision, namely consumer protection and fair trading.

(see paras 31, 33-34, 39, 41-43, 50, 52-53, operative part)

JUDGMENT OF THE COURT (Fifth Chamber) 25 March 2004 (1)

(Free movement of goods – Article 28 EC – Measures having equivalent effect – Advertising restrictions – Reference to the commercial origin of goods – Goods from an insolvent company – Directive 84/450/EEC – Fundamental rights – Freedom of expression – Principle of proportionality)

In Case C-71/02,

REFERENCE to the Court under Article 234 EC by the Oberster Gerichtshof (Austria) for a preliminary ruling in the proceedings pending before that court between

and

Troostwijk GmbH,

on the interpretation of Article 28 EC,

THE COURT (Fifth Chamber),

composed of C.W.A. Timmermans, acting as President of the Fifth Chamber, A. Rosas (Rapporteur) and S. von Bahr, Judges,

Advocate General: S. Alber, Registrar: F. Contet, Principal Administrator,

after considering the written observations submitted on behalf of:

– Herbert Karner Industrie-Auktionen GmbH, by M. Kajaba, Rechtsanwalt,

– Troostwijk GmbH, by A. Frauenberger, Rechtsanwalt,

– the Austrian Government, by C. Pesendorfer, acting as Agent,

– the Swedish Government, by A. Falk, acting as Agent,

– the Commission of the European Communities, by U. Wölker and J.C. Schieferer, acting as Agents,

after hearing the oral observations of Herbert Karner Industrie-Auktionen GmbH, represented by M. Kajaba; of Troostwijk GmbH, represented by A. Frauenberger; of the Austrian Government, represented by T. Kramler, acting as Agent; of the Swedish Government, represented by A. Falk; and of the Commission, represented by J.C. Schieferer, at the hearing on 26 February 2003,

after hearing the Opinion of the Advocate General at the sitting on 8 April 2003,

gives the following

1.1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2.2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

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(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

‘Is Article 28 EC to be interpreted as precluding national legislation which, irrespective of the truthfulness of the information, prohibits any reference to the fact that goods come from an insolvent estate where, in public announcements or notices intended for a large circle of persons, notice is given of the sale of goods which originate from, but no longer constitute part of, the insolvent estate?’

Admissibility

Observations submitted to the Court

Karner submits that the reference for a preliminary ruling is inadmissible. In its view, the facts giving rise to the dispute in the main proceedings relate to a purely internal situation because the parties thereto are established in Austria, the goods in question were acquired following a case of insolvency which occurred in the territory of that Member State and Paragraph 30(1) of the UWG concerns forms of advertising in Austria.

Findings of the Court

It should be borne in mind that Article 28 EC cannot be considered inapplicable simply because all the facts of the specific case before the national court are confined to a single Member State (see Joined Cases C-321/94 to C-324/94 Pistre and Others [1997] ECR I-2343, paragraph 44).

That principle has been upheld by the Court not only in cases where the national rule in question gave rise to direct discrimination against goods imported from other Member States (Pistre and Others, cited above, paragraph 44), but also in situations where the national rule applied without distinction to national and imported products and was thus likely to constitute a potential impediment to intra-Community trade covered by Article 28 EC (see, to that effect, Case C-448/98 Guimont [2000] ECR I-10663, paragraphs 21 and 22).

In this case, it is not obvious that the interpretation of Community law requested is not necessary for the national court (see Guimont, cited above, paragraph 23). Such a reply might help it to determine whether a prohibition such as that provided for in Paragraph 30(1) of the UWG is likely to constitute a potential impediment to intra-Community trade falling within the scope of application of Article 28 EC (see also Case C-254/98 TK-Heimdienst [2000] ECR I-151, paragraph 14).

It follows from the foregoing considerations that the reference for a preliminary ruling is admissible.

Substance

Observations submitted to the Court

Karner, the Austrian and Swedish Governments and the Commission submit that the prohibition in Paragraph 30(1) of the UWG is a selling arrangement within the meaning of that term as described in Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I‑6097. The provision applies without distinction to domestic and imported products and is not by nature such as to impede the latters’ access to the market any more than it impeded the access of domestic products. It therefore falls outside the scope of application of Article 28 EC.

If the Court should nevertheless find that Paragraph 30(1) of the UWG does constitute a measure having equivalent effect within the meaning of Article 28 EC, Karner, supported by the Austrian and Swedish Governments, considers that it is justified by the mandatory requirement of consumer protection within the meaning of the line of case-law initiated in ‘Cassis de Dijon’ (Case 120/78 Rewe-Zentral [1979] ECR 649). The Swedish Government also refers to the principle of fair trading.

Referring to the wording of Article 7 of Directive 84/450, the Austrian Government states that Paragraph 30(1) of the UWG is aimed at combatting misleading advertising in the interests of consumers, competing undertakings and the general public.

Troostwijk maintains that Paragraph 30(1) of the UWG is incompatible with both Article 28 EC and Directive 84/450. The national provision prevents consumers from having the benefit of accurate information and is capable of affecting intra-Community trade. The reference to the origin of goods relates to one of their qualities and not to the marketing of those goods. Such a reference cannot therefore be regarded as a selling arrangement within the meaning of Keck and Mithouard, cited above.

According to Troostwijk, that provision restricts the possibility of disseminating advertising which is lawful in other Member States. It is clear that advertising an offer of sale such as that at issue in the main proceedings cannot be confined to the territory of a single Member State. Varying the information according to the Member States concerned is impossible on the internet, since that mode of communication is not restricted to a single region.

Regarding the compatibility of Paragraph 30(1) of the UWG with Directive 84/450, Troostwijk submits that that directive establishes partial harmonisation and allows Member States to retain and adopt provisions aimed at ensuring more extensive consumer protection. The goal of consumer protection is not served by the provision in so far as it ‘prohibits truthful assertions in advertisements’.

Lastly, Troostwijk submits that the provision is not compatible with Article 10 of the ECHR concerning freedom of expression, since restrictions on that right may be justified only if the expression of the truth might, even in a democratic society, seriously jeopardise a high-ranking individual or collective right.

Response of the Court

The Court notes, as a preliminary point, that the file on the case forwarded to it by the national court shows that Paragraph 30(1) of the UWG is based on the presumption that consumers prefer to purchase goods sold by an insolvency administrator when a company is wound up because they hope to make purchases at advantageous prices. Where advertising related to the sale of goods from an insolvent estate, it would be difficult to know whether the sale has organised by the insolvency administrator or by a party who had acquired goods from the insolvent estate. The national provision is intended to prevent economic operators from taking undue advantage of that tendency on the part of consumers.

Although it is true that the national rules governing consumer protection in the event of sales of goods from an insolvent estate have not been harmonised at the Community level, the fact remains that some aspects relating to advertising for such sales may fall within the scope of Directive 84/450.

It should be borne in mind that that directive is intended to set minimum criteria and objectives on the basis of which it is possible to determine whether advertising is misleading. The Directive’s provisions include Article 2(2), which define ‘misleading advertising’ and Article 3, which states which factors are to be taken into account to determine whether advertising is misleading.

Without its being necessary to examine in detail the degree of harmonisation achieved by Directive 84/450, it is common ground that Article 7 of that directive allows the Member States to retain or adopt provisions aimed at ensuring more extensive consumer protection than that provided for thereunder.

It should be remembered, however, that that power must be exercised in a way that is consistent with the fundamental principle of the free movement of goods, as expressed in the prohibition contained in Article 28 EC on quantitative restrictions on imports and any measures having equivalent effect between Member States (see, to that effect, Case C-23/99 Commission v France [2000] ECR I-7653, paragraph 33).

It is appropriate, first of all, to determine whether a national rule such as Paragraph 30(1) of the UWG, which prohibits any reference to the fact that the goods in question come from an insolvent estate where, in public announcements or notices intended for a large circle of persons, notice is given of the sale of goods which originate from, but no longer constitute part of the insolvent estate, falls within the scope of application of Article 28 EC.

It is settled case-law that all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be regarded as measures having an effect equivalent to quantitative restrictions and thus prohibited by Article 28 EC (see, in particular, Case 8/74 Dassonville [1974] ECR 837, paragraph 5; Case C-420/01 Commission v Italy [2003] ECR I-6445, paragraph 25; and TK-Heimdienst, cited above, paragraph 22).

The Court stated in paragraph 16 of Keck and Mithouard, cited above, that national provisions restricting or prohibiting certain selling arrangements which apply to all relevant traders operating within the national territory and affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States are not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the line of case-law initiated by Dassonville, cited above.

The Court subsequently found provisions concerning inter alia the place and times of sale of certain products and advertising of those products as well as certain marketing methods to be provisions governing selling arrangements within the meaning of Keck and Mithouard, cited above (see inter alia Case C-292/92 Hünermund and Others [1993] ECR I-6787, paragraphs 21 and 22; Joined Cases C-401/92 and C-402/92 Tankstation ‘t Heukske and Boermans [1994] I-2199, paragraphs 12 to 14; and TK‑Heimdienst, cited above, paragraph 24).

The Court notes that Paragraph 30(1) of the UWG is intended to regulate references which may be made in advertisements with regard to the commercial origin of goods from an insolvent estate when they no longer constitute part of that estate. In those circumstances, the Court finds such a provision does not relate to the conditions which those goods must satisfy, but rather governs the marketing of those goods. Accordingly, it must be regarded as concerning selling arrangements within the meaning of Keck and Mithouard, cited above.

As is clear from Keck and Mithouard however, such a selling arrangement cannot escape the prohibition laid down in Article 28 EC unless it satisfies the two conditions set out in paragraph 37 of this judgment.

As regards the first of those conditions, Paragraph 30(1) of the UWG applies without distinction to all the operators concerned who carry on their business on Austrian territory, regardless of whether they are Austrian nationals or foreigners.

As regards the second condition, Paragraph 30(1) of the UWG, contrary to the national provisions which gave rise to Joined Cases C-34/95 to C‑36/95 De Agostini and TV-Shop [1997] ECR I-3843 and to Case C‑405/98 Gourmet International Products [2001] ECR I-1795, does not lay down a total prohibition on all forms of advertising in a Member State for a product which is lawfully sold there. It merely prohibits any reference, when a large number of people are targeted, to the fact that goods originate from an insolvent estate if those goods no longer constitute part of the insolvent estate, on grounds of consumer protection. Although such a prohibition is, in principle, likely to limit the total volume of sales in that Member State and, consequently, also to reduce the volume of sales of goods from other Member States, it nevertheless does not affect the marketing of products originating from other Member States more than it affects the marketing of products from the Member State in question. In any event, there is no evidence in the file forwarded to the Court by the national court to permit a finding that the prohibition has had such an effect.

In those circumstances, as the Advocate General stated in paragraph 66 of his Opinion, it must be held that the two conditions laid down by Keck and Mithouard, cited above, and referred to in paragraph 37 of this judgment, are fully satisfied in the case in the main proceedings. Accordingly, a national provision such as Paragraph 30(1) of the UWG is not caught by the prohibition in Article 28 EC.

Second, it is necessary to consider Troostwijk’s arguments that Paragraph 30(1) of the UWG, first, restricts the dissemination of advertising which is lawful in other Member States and, second, is incompatible with the principle of freedom of expression as laid down in Article 10 ECHR.

Regarding the first argument, it is appropriate to construe it as relating to the question whether Article 49 EC governing the freedom to provide services precludes a restriction on advertising such as that laid down in Paragraph 30 of the UWG.

Where a national measure relates to both the free movement of goods and freedom to provide services, the Court will in principle examine it in relation to one only of those two fundamental freedoms if it appears that, in the circumstances of the case, one of them is entirely secondary in relation to the other and may be considered together with it (see, to that effect, Case C-275/92 Schindler [1994] ECR I-1039, paragraph 22; and Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 31).

47In the circumstances of the case in the main proceedings, the dissemination of advertising is not an end in itself. It is a secondary element in relation to the sale of the goods in question. Consequently the free movement of goods aspect prevails over the freedom to provide services aspect. It is thus not necessary to consider Paragraph 30(1) of the UWG in the light of Article 49 EC.

Regarding Troostwijk’s second argument with regard to the compatibility of the legislation in question with freedom of expression, it should be recalled that, according to settled case-law, fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, inter alia, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41; Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 37; Case C-94/00 Roquette Frères [2002] ECR I-9011, paragraph 25; and Case C-112/00 Schmidberger [2003] ECR I-5659, paragraph 71).

Further, according to the Court’s case-law, where national legislation falls within the field of application of Community law the Court, in a reference for a preliminary ruling, must give the national court all the guidance as to interpretation necessary to enable it to assess the compatibility of that legislation with the fundamental rights whose observance the Court ensures (see, to that effect, Case C-299/95 Kremzow [1997] ECR I-2629, paragraph 15).

Whilst the principle of freedom of expression is expressly recognised by Article 10 ECHR and constitutes one of the fundamental pillars of a democratic society, it nevertheless follows from the wording of Article 10(2) that freedom of expression is also subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under that provision and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, to that effect, Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 26; Case C-60/00 Carpenter [2002] ECR I-6279, paragraph 42; and Schmidberger, cited above, paragraph 79).

It is common ground that the discretion enjoyed by the national authorities in determining the balance to be struck between freedom of expression and the abovementioned objectives varies for each of the goals justifying restrictions on that freedom and depends on the nature of the activities in question. When the exercise of the freedom does not contribute to a discussion of public interest and, in addition, arises in a context in which the Member States have a certain amount of discretion, review is limited to an examination of the reasonableness and proportionality of the interference. This holds true for the commercial use of freedom of expression, particularly in a field as complex and fluctuating as advertising (see, to that effect, Case C-245/01 RTL Television [2003] ECR I-0000, paragraph 73; judgments of the ECHR of 20 November 1989, Markt intern Verlag GmbH and Klaus Beermann, Reports of Judgments and Decisions series A No 165, paragraph 33; and of 28 June 2001, VGT Verein gegen Tierfabriken v Switzerland, Reports of Judgments and Decisions 2001-VI, paragraphs 69 to 70).

In this case it appears, having regard to the circumstances of fact and of law characterising the situation which gave rise to the case in the main proceedings and the discretion enjoyed by the Member States, that a restriction on advertising as provided for in Paragraph 30 of the UWG is reasonable and proportionate in the light of the legitimate goals pursued by that provision, namely consumer protection and fair trading.

In the light of all the foregoing considerations, the question referred to the Court must be answered as follows: Article 28 EC does not preclude national legislation, which, irrespective of the truthfulness of the information, prohibits any reference to the fact that goods come from an insolvent estate where in public announcements or notices intended for a large circle of persons, notice is given of the sale of goods which originate from, but no longer constitute part of, the insolvent estate.

Costs

54The costs incurred by the Austrian and Swedish Governments and by the Commission, which have submitted observation to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

in answer to the questions referred to it by the Oberster Gerichtshof by order of 29 January 2002, hereby rules:

Article 28 EC does not preclude national legislation which, irrespective of the truthfulness of the information, prohibits any reference to the fact that goods come from an insolvent estate, where, in public announcements or notices intended for a larger circle of persons, notice is given of the sale of goods which originate from, but no longer constitute part of, the insolvent estate.

Delivered in open court in Luxembourg on 25 March 2004.

Registrar

President

ECLI:EU:C:2025:140

Language of the case: German.