Important legal notice

61988C0025

European Court reports 1989 Page 01105

Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The tribunal de grande instance ( Regional Court ), Bobigny, has submitted an important question of interpretation to the Court . The order for reference raises the problem of lawfulness, having regard to Articles 30 and 36 of the EEC Treaty, of an obligation, failure to fulfil which gives rise to liability in criminal law, imposed on importers of products of Community origin to verify the conformity of the product which they import with the national rules of the Member State of importation . Statutory regimes providing for criminal liability under which importers are required to carry out special checks appear to exist, according to the Commission, in several other Member States . The Commission also stated that it intends to issue a communication on the subject of such rules in the light of the Court' s decision in this case . Finally, the order for reference may also have repercussions on the decisions of the judicial institutions of the Member States in regard to the liability, both criminal and civil, of importers .

In this case, the legal framework is laid down in the Law of 1 August 1905 on fraud and deceit in regard to products and services . Article 11-4 of that law, inserted by Law No 83-660 of 21 July 1983, provides as follows :

"Products must, upon being placed on the market for the first time, conform to the rules in force regarding the health and safety of persons, fair trading and consumer protection .

It is therefore the duty of the person responsible for placing the product on the market for the first time to verify its conformity with the rules in force .

That person is required to provide evidence of the verifications and checks carried out if requested to do so by the officials authorized to implement this law ."

Summary of the facts

2 . Norlaine is a buying office for textiles intended for resale in the shops operated on French territory by various companies under the "Bouchara" name . In 1984, the company imported from the Italian Republic and the Federal Republic of Germany certain fabrics described as "fancy ". Those fabrics were delivered by the Italian and German manufacturers and were accompanied by invoices describing the composition of the fabrics . Norlaine resold those fabrics without doing any work on them or labelling them and reproduced in the sales invoices the composition of the goods as indicated on the invoices submitted by its own foreign suppliers .

3 . When carrying out a spot check, the service de la répression des fraudes ( Prevention of Fraud Department ) took 18 samples of different sorts of fabric which were being offered for sale in the Bouchara shop in Toulouse and which had been supplied by Norlaine . Of the 18 samples tested by an official laboratory, seven were found not to conform to the declared composition . It was in those circumstances that Mrs Bouchara ( née Wurmser ) and Mr Bloch, the managers of Norlaine, were prosecuted before the tribunal de grande instance de Bobigny for deceit as to the composition of goods by offering for sale or causing to be offered for sale textile products bearing false information as to their composition contrary to the Law of 1 August 1905 .

The questions referred to the Court and the terms in which they are formulated

4 . By judgment of 29 October 1987, the national court referred the following questions to the Court of Justice for a preliminary ruling :

"( 1)Is Article 11-4 of the Law of 1 August 1905, as amended, on fraud and misrepresentation with respect to products or services compatible with Article 30 of the Treaty of Rome prohibiting quantitative restrictions on imports and all measures having equivalent effect?

( 2 ) If the first question is answered in the negative, do the French rules constitute an exception to Article 30 of the Treaty of Rome justified by Article 36 of the Treaty?"

It would seem that those questions do not have to be construed as meaning that the national court is asking the Court of Justice to determine the compatibility or otherwise of certain provisions of French law with Community law . I would propose therefore that the Court should reformulate them as follows :

"Do Articles 30 and 36 of the EEC Treaty preclude the introduction or maintenance of an obligation, failure to fulfil which will give rise to criminal liability imposed on the person who first places a product on the market, to verify the conformity of that product with the national rules on the health and safety of persons, fair trading and consumer protection?"

The rules on criminal liability in French law

6 . According to the second sentence of Article 11-4 of the French Law of 1 August 1905, "the person responsible for placing the product on the market for the first time (( is )) to verify its conformity with rules in force ". That provision was introduced by a law of 1983 which affirmed a line of judicial authority assimilating the absence of verification to serious negligence . I think it would be useful to give a brief account of the context and scope of those judicial decisions .

Article 1 of the Law of 1 August 1905 lays down criminal penalties for any person who deceives or attempts to deceive a party with whom he has concluded a contract, in particular as to the composition of the goods delivered . That offence of deceit requires a fraudulent intention . In assessing that intention, the case-law prior to the Law of 1983 made a distinction between the producer and the distributor of products .

The courts considered that bad faith on the part of the producer could be deduced from a failure to undertake a verification . For that reason, the offence of deceit had practically become, so far as the producer was concerned, an offence not requiring any mental element, that is to say an offence which may be proved on the basis of mere negligence on the part of the producer, without there being any need to show that he had any guilty intention .

The decisions on the criminal liability of the distributor were different . The failure to undertake a verification was not regarded as sufficient to prove the existence of a fraudulent intention on his part . It was only where he himself did some work on the goods that the courts regarded him as liable in criminal law .

Although the Law of 1905 punishes anyone who deceives or attempts to deceive a party with whom he has concluded a contract, it was thus in principle the producer who was presumed to be responsible for the deceit for the obvious reason that he is the person best placed to be aware of and indicate the composition of his own goods . However, the courts derogated from that twofold system in regard to the distributor-cum-importer of products not manufactured in France . The criminal liability of such a person for deceit was the same as that of a producer of French products . The practical difficulties involved in making foreign manufacturers amenable to the criminal law seems to have been the reason for the assimilation of the situation of the importer to that of the producer . In any event, the Law of 21 July 1983 affirmed that case-law . It is now expressly provided that the person responsible for placing the product on the market for the first time, that is to say, the French producer or the importer of a product not produced in France, is required to verify the conformity of the product with the rules in force .

7 . There are, however, gaps in the statutory provision which must be borne in mind when its lawfulness in regard to Community law is being considered . Thus, it is silent as to the scope of the obligation to verify the conformity with national rules of products placed on the market . In reality, such verification implies knowledge on the part of the importer in two respects . On the one hand, it implies knowledge of the national rules in force and those rules must, where necessary, be in conformity with the provisions of Community law ( see infra, sections 9 and 16 ). On the other hand, it implies a sufficient knowledge of the characteristics and composition of the imported products to be able to determine whether they conform to the rules of the country of importation . On the latter point, it should be noted that the provision in question does not give any indication as to the conduct expected of the importer in order to avoid incurring criminal liability . Is the importer supposed to have every imported product systematically analysed by a laboratory, as the defendants in the main proceedings envisage? Or may he avoid criminal liability by producing certificates drawn up by the foreign producer, as the French Government claims . At the hearing, the divergent views of the parties were not reconciled .

Another point on which the provision involved is unclear concerns the enumeration of the national provisions to which the imported products must conform . Article 11-4 of the Law of 1905 merely states in general terms that products "must conform to the rules in force regarding the health and safety of persons, fair trading and consumer protection ".

Lack of harmonization in Community law on this matter

8 . It should first be observed that criminal liability for the failure of products distributed to conform to the indications on the label is not currently governed by any Community directive . Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising ( Official Journal 1984, L 250, p . 17 ) does indeed prescribe a series of legal measures which the Member States must adopt to protect the public against misleading advertising . Furthermore, Council Directive 71/307/EEC of 26 July 1971 on the approximation of the laws of the Member States relating to textile names ( Official Journal, English Special Edition 1971 ( II ), p . 694 ) harmonizes the names of textile fabrics and the indications to appear on the labels accompanying textile products .

However, neither the general directive of 1984 nor the special directive on textile products of 1971 preclude the Member States from maintaining in force provisions intended to provide greater protection, in particular, as in this case, an obligation on those who put products on the market to verify the composition thereof, failing which they will be subject to stricter criminal liability .

9 . Those preliminary observations do not provide an answer to the more general question whether, in regard to all the matters covered by Article 11-4 of the Law of 1905, Community law does or does not contain a corpus of harmonized rules . It is of course not possible, nor is it necessary in the context of this case, to reply to that question in general terms, having regard to the range of matters covered by the provision and the absence of a precise indication of the rules governing those matters ( see section 7 ). It is sufficient to point out, on the one hand, that if the rules concerned have been harmonized, the obligation to verify may none the less raise difficult problems, in particular in determining whether the national provision in question is valid vis-à-vis Community law .

The obligation to verify is liable to hinder intra-Community trade

10 . According to Article 30 of the EEC Treaty, quantitative restrictions on imports and all measures having equivalent effect are prohibited in trade between the Member States . A measure which imposes on an importer-cum-distributor an obligation, failure to fulfil which will make him subject to a regime imposing stricter criminal liability, to ensure the conformity of imported products with the national rules, whereas the criminal law does not impose the same obligation on distributors of domestic products, constitutes at first sight a measure which could be unfavourable to intra-Community trade . It is true that such an obligation does not necessarily involve significant direct or indirect costs which place imported products at a real disadvantage . The extent of those costs depends in reality on the scope which is given to the obligation . Thus, if one adheres to the French Government' s point of view to the effect that the importer will not be liable in criminal law if he produces certificates drawn up by the manufacturers of the imported products, the costs appear in no way dissuasive . I will return to this question later ( see section 19 ). At this stage it is sufficient to note that the measure under consideration comes within the definition of the concept of "measures having equivalent effect" given by the Court in its judgment in Dassonville and repeated in many subsequent judgments . According to the judgment in Dassonville, all rules which are "capable of hindering, directly or indirectly, actually or potentially, intra-Community trade" are to be regarded as measures having an equivalent effect to quantitative restrictions ( judgment of 11 July 1974 in Case 8/74 Procureur du Roi v Dassonville (( 1974 )) ECR 837 ). Those conditions are certainly fulfilled in this case . It cannot be excluded that a distributor will abandon his plans to import products for fear of incurring criminal liability .

May the obligation to verify none the less be justified under Article 30 of the EEC Treaty?

11 . In the "Cassis de Dijon" judgment ( judgment of 20 January 1979 in Case 120/78 Rewe v Bundesmonopolverwaltung fuer Branntwein (( 1979 )) ECR 649 ) and on numerous subsequent occasions the Court held that, in the absence of common rules on the marketing of the products involved, obstacles to movement within the Community resulting from disparities between the national laws relating to the marketing of a product must be accepted in so far as those provisions apply without distinction both to domestic and imported products and where the hindrance they cause does not go beyond what is necessary to satisfy imperative requirements relating, inter alia, to consumer protection and fair trading .

The Court thus laid down the principle of proportionality according to which restrictions imposed on intra-Community trade may be permitted only if they are not disproportionate to the objectives legitimately being pursued . However, the Court reserved that ground of justification for national measures which are not inherently discriminatory in regard to imported products . Such measures must, on the other hand, be applicable without distinction to domestic and imported products . In other words, whereas a national measure which is discriminatory in nature ( or in form ) is clearly covered by the prohibition contained in Article 30 and may be justified only on the basis of Article 36 of the Treaty ( see the judgment of 17 June 1981 in Case 113/80 Commission v Ireland (( 1981 )) ECR 1625, paragraph 11 ), a national measure which is applicable without distinction to all products is prohibited under Article 30 only in so far as the condition laid down in the "Cassis de Dijon" judgment is not fulfilled, that is to say, if the measure concerned goes beyond what is necessary in order to satisfy imperative requirements .

It must therefore be considered first whether the measure concerned is discriminatory in nature or, on the other hand, whether it is applicable without distinction .

Does the obligation to verify apply without distinction to domestic and Community products?

12 . The defendants in the main proceedings do not take a clear position on the question whether the obligation laid down in Article 11-4 of the Law of 1905 applies without distinction to domestic and Community products . They say that distributors are more severely treated when they market products originating elsewhere in the Community than when they market French products because, in the first case, the mental element of the offence of deceit is presumed to exist whereas, in the second, that element must be proved . They do not therefore consider the scope of the obligation to verify the conformity of products with the national rules but, skipping one step in the reasoning processs, address themselves directly to the penalty to which distributors are liable if they infringe the obligation to verify .

The French Government' s position is more consistent . It points out that Article 11-4 of the Law of 1905 requires the person responsible for placing a product on the market for the first time to verify its conformity with the national rules . The obligation to undertake that verification thus concerns all products which are placed on the French market for the first time . According to the French Government, and I believe the Court should take the same view on this point, the obligation thus applies without distinction to all products placed on the French market for the first time and, therefore, to all those responsible for that initial placing on the market, namely the manufacturers of domestic products and the importers of products originating elsewhere in the Community .

The fact that that obligation, according to the scope given to it, may be more burdensome for the importer than for the manufacturer (by reason of the fact that the latter has control over the product) and, therefore, may have a more or less considerable dissuasive effect on intra-Community trade does not change the nature of the provision, which is not discriminatory (in form). Such a consideration of the scope of the obligation to verify is, however, important in determining whether the obligation may be justified on the basis of the principle of proportionality, that is to say, in determining whether the hindrance to intra-Community trade inherent in the obligation to verify is justified having regard to the imperative objective which the measure concerned seeks to achieve.

Does the obligation to verify go beyond what is necessary to achieve the objectives aimed at by the provision?

13. The objectives pursued by Article 11-4 of the Law of 1905 can be seen from the text of the provision itself. From the time they are placed on the market for the first time, products must conform to the provisions in force regarding "the health and safety of persons, fair trading and consumer protection". The objectives regarding the health and safety of persons are among those expressly mentioned in Article 36 of the EEC Treaty. Measures which constitute a hindrance to intra-Community trade but which are intended to achieve objectives of that nature may, in an appropriate case, be justified under Article 36. I will return to this question in sections 20 and 21.

The other two objectives which it is sought to achieve in this case (fair trading and consumer protection) are among the matters in regard to which, according to the settled case-law of the Court, provisions which create a hindrance to intra-Community trade may be justified in so far as they do not impose restrictions which exceed what is necessary for the realization of the objectives concerned.

Furthermore, it is perfectly possible for a national provision to pursue several objectives simultaneously without its being possible to determine which objective is the dominant one. Thus, there are provisions which seek to protect the consumer not merely from the point of view of health and safety but also in regard to fair trading. In that case, the provision may be justified, under the conditions set out above, both under Article 36 and under Article 30 of the Treaty (see judgment of 6 June 1984 in Case 97/83 Melkunie ((1984)) ECR 2367 and the Opinion of Mr Advocate General VerLoren van Themaat).

14. How far does the duty to verify laid down in Article 11-4 of the Law of 1905 go? As I have indicated in section 7, the parties give very different answers to that question. However, it is not for the Court to determine the scope of the obligation to verify laid down in Article 11-4 of the Law of 1905. It is for the national courts to clarify that situation. The Court of Justice must rule on the conditions under which a measure requiring a verification of the conformity of imported products with the rules of the country of importation is itself in conformity with the EEC Treaty.

In the present state of the conventions on the execution of foreign judgments in criminal matters, it is understandable that an obligation, for breach of which a criminal-law penalty is provided, to carry out a check of imported products is not imposed on the foreign manufacturer. It should also be noted that Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (Official Journal 1985, L 210, p. 29) has opted for a similar solution in regard to products imported into the Community: under that directive, the importer is liable on the same basis as the manufacturer. Although in this case civil liability is concerned, the comparison is not uninstructive.

Within the limits of compliance with the principle of proportionality, the Member States are free to determine the penalty to be imposed where the obligation to verify has been infringed. A system of criminal liability under which in such a case the element of intention in the offence of deceit does not have to be proved does not appear to me to be disproportionate to the objectives which it is sought to achieve, in so far as the scope of the obligation to verify is itself reasonable.

16. Let me now turn my attention specifically to the scope of the obligation to verify the conformity of imported products with national rules. Such verification implies, as I have already indicated, knowledge in two respects. It implies, on the one hand, knowledge on the part of the importer of the national rules concerned. That aspect poses no immediate problems in this case. It could however raise difficult problems of compatibility of national rules with Community law. However, the difficulties which result from this are identical both for the importer of Community products and for the manufacturer of domestic products. Verification implies, on the one hand, a sufficient knowledge on the part of the importer of the characteristics of the imported products so as to be able to determine whether or not they conform to the rules in force in the importing country. In order to acquire that knowledge of the imported products, what steps may be required, within the limits of compliance with Article 30 of the EEC Treaty and the principle of proportionality therein contained? What measures unfavourable to intra-Community trade may none the less be justified, by reason of the objective legitimately pursued, so as not to fall under the prohibition of measures having equivalent effect laid down in Article 30 of the EEC Treaty? Those are the crucial questions in this case.

Over recent years, the Court has delivered several judgments concerning the conformity of verification systems with Articles 30 and 36 of the EEC Treaty. In general, it may be said that the Court, applying the principle of proportionality, has not accepted long and costly verification measures which are not justified having regard to the objectives which the verification system is intended to achieve. As a corollary to the same rule, the Court has also not accepted that Member States may seek information the provision of which makes imported products dearer when equivalent information exists in the Member State of origin.

17. The defendants in the main proceedings cite in particular the following two judgments. In its judgment of 17 December 1981 in Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Produkten BV ((1981)) ECR 3277, the Court ruled that the authorities of the importing State are not

"entitled unnecessarily to require technical or chemical analyses or laboratory tests when the same analyses or tests have already been carried out in another Member State and their results are available to those authorities or may at their request be placed at their disposal".

On the basis of the position adopted by the Court in the abovementioned judgment, an initial conclusion may be drawn in this case. If the importer can avoid criminal liability only by systematically carrying out long and costly laboratory analyses in respect of each imported product even though the same analyses, dealing with the same subject-matter, have already been carried out in another Member State by or at the request of the manufacturer, it is obvious that such rules are of the kind envisaged by the prohibition contained in Article 30 of the EEC Treaty.

18. The judgment of the Court of 15 December 1976 in Case 41/76 Donckerkwolcke v Procureur de la République ((1976)) ECR 1921 is also cited by the defendants in the main proceedings. In that judgment, the Court first held that, in intra-Community relations, Article 30 precluded the maintenance in effect by national legislation of a requirement, even of a purely formal nature, of import licences or any other similar requirement (which would constitute a measure discriminatory in form and therefore, in itself, a measure having equivalent effect). On that occasion, the Court also considered that even though the requirement to indicate the country of origin of goods did not as such constitute a measure equivalent to a quantitative restriction,

"such a requirement would, however, fall under the prohibition contained in Article 30 of the Treaty if the importer were required to declare, with regard to origin, something other than that what he knows or may reasonably be expected to know".

However, it should be pointed out that the Donckerwolcke case was concerned with the conformity with Community law of an administrative measure which required - for purely statistical purposes - that the country of origin should be indicated on the customs declaration form. The Court took into consideration the imbalance between the restriction imposed on the importer by the obligation to provide information which he could not reasonably know and the relatively limited importance of the objective of the measure. It seems to me, however, hazardous to infer from the judgment of 15 December 1976 that the Court is generally disposed to consider that the Member States may not ask of importers anything other than what they know or might reasonably be expected to know concerning the imported products.

However, in certain circumstances, the Member States must be able to require a higher degree of care on the part of importers. Where the documents drawn up by the manufacturer do not make it possible to verify whether the imported products conform to the national rules of the importing country, a fortiori when the manufacturer is unable or refuses to determine objectively the composition of his product in order to establish such conformity, the importer may be required to carry out the analyses required, if only on a sample basis - to determine whether the products conform to the national rules. Similarly, where the importer has reason to doubt the accuracy of the documents supplied by the manufacturer, Member States may have recourse to the seller's duty of care in order to require him to verify, if only on a sample basis, the accuracy of the information supplied.

Can the obligation to verify be justified under Article 36 of the EEC Treaty?

20. I indicated above the limits within which an obligation to verify the conformity of imported products with national rules in regard to fair trading and consumer protection appears to me to be justified under Article 30 of the EEC Treaty. It now remains for me to consider whether the reply should be different if the obligation is to verify the conformity of imported products with national rules, not harmonized in Community law, concerning the health and safety of persons. Those two matters are expressly referred to in Article 36 of the EEC Treaty.

21. In my opinion, whether the verification relates to conformity with rules concerning the one or the other of those objectives does not fundamentally alter the nature of the problem. Certainly, in Community law the basis of the justification will be different according to the objective to be achieved. If the national rules concern fair trading or consumer protection, justification must be founded on Article 30 of the Treaty. If, on the other hand, the national rules govern the health or safety of persons, it is Article 36 of the Treaty which provides the appropriate legal basis. In both cases, however, the measure concerned may be justified only if it does not impose restrictions going beyond what is necessary to achieve the objectives pursued (see the judgment of 20 May 1976 in Case 104/75 de Peijper ((1976)) ECR 613, in particular paragraphs 16 to 18 at p. 636. At the very most, it might be said that Member States are entitled to require a higher degree of care on the part of the persons concerned when they are called upon to verify the conformity of a product with national rules intended to realize the objectives mentioned in Article 36 of the Treaty. In other words, having regard to the importance which the authors of the Treaty attached to the matters provided for in Article 36, the Member States might impose in such a case, but always subject to compliance with the principle of proportionality, restrictions relatively more severe than what is permissible on the basis of Article 30.

Applied to a provision which seeks to achieve "mixed objectives" (that is to say, objectives which may justify measures with reference both to Article 30 and to Article 36 of the Treaty), I think that line of reasoning must none the less be qualified. It is only where the national legislature itself lays down a hierarchical relationship between the objectives which the provision seeks to achieve, making clear the priority which it attaches to the objectives concerning the health and safety of persons compared to the other objectives pursued, that restrictions arising from the obligation to verify conformity with rules concerning health and safety may be reinforced without those greater restrictions being regarded as unjustified hindrances. In the present case there is an obligation to verify which is laid down in very general terms without a distinction being made in the provision itself between the various objectives pursued. Furthermore, the provision does not concern pharmaceutical products, which are governed by a special code (see footnote 1). The provision in point does not therefore require that a distinction be drawn according to whether Article 30 or Article 36 of the EEC Treaty is concerned.

Proposed reply

22. In conclusion, I propose that the Court should reply as follows to the questions referred to it for a preliminary ruling:

"Articles 30 and 36 of the EEC Treaty do not preclude the introduction or the maintenance in force of an obligation, imposed on the importer of products of Community origin, failure to fulfil which entails the application of stricter rules of criminal liability than those applicable to the distributor of domestic products, to verify, before the products are placed on the market in the importing country and in the same way as is required of the manufacturer of domestic products, the conformity of such products with national rules, not harmonized in Community law, concerning the health and safety of persons, fair trading and consumer protection, in so far as the importer may satisfy that obligation by relying on certificates drawn up by or at the request of the foreign manufacturer, where such certificates make it possible to carry out the verification in question and the importer has no reason to call in question their accuracy."

(*) Original language: Dutch.

(1) The French Government's expert stated at the hearing that the provision referred to all products, with the exception of pharmaceutical products which are governed by a special code.