OPINION OF ADVOCATE GENERAL

delivered on 23 March 1995 (*1)

1.The question referred to the Court by the President of the Tribunal de Commerce (Commercial Court), Mons (Belgium), concerns the interpretation of Article 30 of the EEC Treaty and was raised in proceedings following an application for a restraint order brought by the Groupement National des Négociants en Pommes de Terre de Belgique (National Association of Belgian Potato Dealers, hereinafter ‘Belgapom’) pursuant to Article 95 of the Belgian Law of 14 July 1991. Belgapom's application sought, inter alia, a declaration that certain actions by SA ITM Belgium and SA Vocarex infringed Article 40 of the abovementioned law, which prohibits sales at a loss and sales yielding only a very low profit margin, which are treated as sales at a loss.

2.The Belgian Law of 14 July 1991 on Commercial Practices and Consumer Information and Protection (*1) provides in the first paragraph of Article 40 that traders are prohibited from offering a product for sale or selling a product at a loss. The following paragraphs provide: ‘A sale shall be considered to have been made at a loss if the price is not at least equal to the price at which the product was invoiced at the time of supply or at which it would be invoiced if it were resupplied. Any sale which, taking account of those prices and of overheads, yields only a very low profit margin is to be treated as a sale at a loss. In order to assess whether the profit margin is normal or unusually small, the volume of sales and the rotation of stocks shall be amongst the factors taken into account.’

3.Article 41(1) of the Law lays down a number of exceptions to the prohibitions in Article 40 (clearance sales, sales of products liable to rapid deterioration, etc.) while the first paragraph of Article 95 provides that the President of the Commercial Court is to rule on the existence and order the cessation of an infringement of the Law on an application which, pursuant to Article 98(1)(3), may also be made by a professional association with legal personality.

4.In late September 1993, the purchasing department of SA ITM Belgium, a company in the Intermarché group whose registered office is in Mons, Belgium (hereinafter ‘ITM’), was informed that SA Géron, whose registered office is in Limburg, Belgium, was offering a consignment of 200 tonnes of ‘Bintjes’ potatoes for sale at a price of BFR 27 for 25 kg (a unit price of BFR 1.08 per kg). The offer was open from 30 September to 8 October 1993 and covered potatoes graded by size, packed in 25kg nets and delivered free of charge to various shops. SA Vocarex, an independent trading company whose registered office is in La Louvière, Belgium, which has a franchise contract with the ITM group, took advantage of the offer and ordered some of the abovementioned potatoes which it sold in its shop, after advertising, for BFR 29 for 25 kg, thereby making a gross profit of 1.31% of the purchase price.

5.According to the facts set out in the order for reference, a person purporting to act on behalf of Belgapom telephoned ITM and tried to prevent the sale of the potatoes at the abovementioned price, stating that all Belgian outlets had agreed to sell those potatoes for BFR 89 for 25 kg.

6.On 19 October 1993, Belgapom applied to the Commercial Court, Mons, for a restraint order under Article 95 of the Law of 14 July 1991, seeking (1) a declaration that the conduct of ITM and Vocarex infringed Article 40 of the Law prohibiting sales at a loss and sales yielding only a very low profit margin, which are treated as sales at a loss, and (2) an order for the cessation of that conduct.

7.Vocarex's defence included a submission that Article 40 of the Law of 14 July 1991 was incompatible with Article 30 of the EEC Treaty and it requested that a question be referred to the Court of Justice for a preliminary ruling on the matter.

8.Thereafter, the President of the Commercial Court, Mons, decided by judgment of 21 January 1994 to stay the proceedings and refer a question to the Court. The judgment sets out the following reasons:

(a)Although the first and second paragraphs of Article 40 of the Law of 14 July 1991 are clear, the subsequent paragraphs create ‘genuine legal uncertainty’ for traders, exacerbated by the case-law on the subject, which has treated as lawful profit margins of between 0.5% and 10% for products in the same category depending on the method of calculation chosen, the variables taken into account etc.

(b)The genuine uncertainty facing traders as to whether or not their sales method is lawful and as to the outcome of any action which might be brought against them could in itself be a barrier to the free movement of goods.

(c)Even if it were accepted that the objective of legislation such as that at issue is to promote fair competition between traders and protect the consumer against certain sales methods, in this case the action simply seeks to protect the corporate interests of wholesalers; consumer interests are not put at risk by an exceptional promotional offer, advertised as such and extremely limited in duration.

(d)The generality of the wording and the imprecise nature of the variables to be taken into consideration in deciding whether an action is lawful mean that the prohibition as laid down in the third and fourth paragraphs of Article 40 also affects practices unconnected with the objective pursued.

(e)The possibility that in those circumstances the abovementioned paragraphs of Article 40 constitute a barrier to intra-Community trade cannot be ruled out.

9.On those grounds, the President of the Commercial Court, Mons, referred the following question to the Court of Justice for a preliminary ruling: ‘To what extent is Article 40 of the Law of 14 July 1991 and more particularly the third and fourth paragraphs thereof, having regard to the general nature of the terms in which they are couched, compatible with Article 30 of the EEC Treaty, where those paragraphs lay down that a sale at a price higher than the price invoiced at the time of supply but with a very low profit margin is to be treated as equivalent to a sale at a loss?’

10.The Court has consistently held (*2) that it is not competent to rule on the compatibility of a national measure with Community law. However, the Court is competent to provide the national court with all material relating to the interpretation of Community law which may enable it to determine the issue of compatibility for the decision in the case before it.

11.On a correct interpretation of the question referred, therefore, the President of the Commercial Court, Mons, seeks a ruling as to whether Article 30 of the EEC Treaty specifically precludes a national provision, couched in general terms, which prohibits, by treating it as a sale at a loss, a sale above the price invoiced at the time of supply but yielding a very low profit margin.

III — Preliminary observation

12.According to a principle which the Court has laid down and from which it has never departed in its case-law on the freedom of movement of workers, the right of establishment and the freedom to provide services, the Treaty articles concerned (Articles 48, 52 and 59 respectively) do not apply to situations or activities which are confined in all respects within a single Member State. (*3)

13.There is no similar statement of principle in the case-law relating to Article 30 of the Treaty, which prohibits the Member States from imposing measures having an effect equivalent to quantitative restrictions on imports. It may none the less be inferred from the case-law on the matter as a whole that, according to the Court, the possibility that Article 30 applies cannot be ruled out on the basis of the purely internal nature of a given situation or activity unless the proceedings before the national court are governed by a domestic provision which exclusively concerns domestic products. Such a construction finds support in the following considerations.

According to the statement in Dassonville, (*4) which is still the cornerstone of the case-law of the Court on Article 30 of the Treaty, (*5)

any measure which is capable of directly or indirectly, actually or potentially, hindering intra-Community trade constitutes a measure having equivalent effect to quantitative restrictions. Consequently, a question of interpretation of the abovementioned Treaty provision may arise before a national court even if the proceedings before it concern a situation or activity not directly linked to inter-State trade; it suffices that those proceedings involve a problem of applying a national measure which covers not only domestic products but also imported products, such that it cannot be ruled out a priori that that measure may hinder, even if only indirectly or potentially, intra-Community trade.

It may however be argued that, in so far as the purpose of Article 30 of the Treaty ‘is to eliminate obstacles to the importation of goods and not to ensure that goods of national origin always enjoy the same treatment as imported ... goods’, the connecting factor bringing a given situation within the ambit of Article 30 of the Treaty should be sought in the provenance of the goods allegedly affected, in the specific case, by a given national measure. The application of Article 30 would thus be excluded if the situation which gave rise to the proceedings before the national court exclusively and solely concerned goods produced or manufactured in the Member State in which they were marketed and in which the dispute at issue arose.

Such a point of view would not be without support in the case-law. In Oosthoek's Uitgeversmaatschappij, a preliminary ruling on the question whether Articles 30 and 34 of the EEC Treaty preclude national legislation which prohibits the offering, for sales promotion purposes, of free gifts to purchasers of an encyclopaedia, it is stated (in paragraph 9) that ‘the application of the Netherlands legislation to the sale in the Netherlands of encyclopaedias produced in that country is in no way linked to the importation or exportation of goods and does not therefore fall within the scope of Articles 30 and 34 of the EEC Treaty. However, the sale in the Netherlands of encyclopaedias produced in Belgium and the sale in other Member States of encyclopaedias produced in the Netherlands are transactions forming part of intra-Community trade. In the view of the question raised by the national court, it is therefore necessary to determine whether provisions of the type contained in the Netherlands legislation are compatible with both Article 30 and Article 34 of the EEC Treaty.’

I must stress that the questions referred to above cannot be investigated in the context of this case for the following reason.

As is clear from the case-law, the assessment by the Court of whether a given situation is purely internal may be based only on the findings of fact made by the national court. Consequently, if the national court considers that the dispute before it is governed by a rule of Community law on the interpretation of which it seeks a preliminary ruling, the Court of Justice may consider the situation giving rise to the dispute to be purely internal only if it is obviously so on the basis of the facts set out in the order for reference.

In this case, the order for reference justifies serious doubts as to whether the commercial actions which are the subject-matter of Bel-gacom's application for a restraint order concern goods from another Member State. It is not however in my view possible to consider that the facts set out by the referring court establish beyond doubt that the goods in question were produced in Belgium.

Consequently, even if the principle stated above, in point 14, were accepted, it would still not be possible in this case to consider that, pursuant to that principle, the dispute before the Commercial Court, Mons, is outside the scope of Article 30 of the Treaty solely because it concerns a purely internal situation.

IV — Keck and Mithouard

It is sufficient to read the preliminary question to see the importance for the reply of applying the principles stated in Keck and Mithouard. That is so not only because at issue is a question relating to the interpretation of Article 30 of the EEC Treaty, but also because the national legislation, whose compatibility with that article of the Treaty is the matter on which the national court seeks guidance, has at least prima facie evident analogies with the national legislation (prohibiting resale at a loss) with regard to which the Court interpreted Article 30 in Keck and Mithouard.

Before its judgment in Keck and Mithouard, the Court had frequently been faced with questions concerning the interpretation of Article 30 of the Treaty in relation to national provisions prohibiting sales at a price lower than the price fixed by a national scheme regulating prices.

In Case 82/77 Openbaar Ministerie of the Netherlands ν Van Tiggele [1978] ECR 25, its first judgment in this field, the Court, starting (paragraph 12) from the formula already quoted (see point 13 above) from Dassonville, held (paragraph 14) that ‘imports may be impeded in particular when a national authority fixes prices or profit margins at such a level that imported products are placed at a disadvantage in relation to identical domestic products either because they cannot profitably be marketed in the conditions laid down or because the competitive advantage conferred by lower cost prices is cancelled out’. In the light of those considerations, the Court then stated that (1) ‘a national provision which prohibits without distinction the retail sale of domestic products and imported products at prices below the purchase price paid by the retailer cannot produce effects detrimental to the marketing of imported products alone and consequently cannot constitute a measure having an effect equivalent to a quantitative restriction on imports’ (paragraph 16); (2) ‘the fixing of the minimum profit margin at a specific amount, and not as a percentage of the cost price, applicable without distinction to domestic products and imported products is likewise incapable of producing an adverse effect on imported products which may be cheaper, as in the present case where the amount of the profit margin constitutes a relatively insignificant part of the final retail price’ (paragraph 17); (3) ‘this is not so in the case of a minimum price fixed at a specific amount which, although applicable without distinction to domestic products and imported products, is capable of having an adverse effect on the marketing of the latter in so far as it prevents their lower cost price from being reflected in the retail selling price’ (paragraph 18).

The national provision which gave rise to the question of interpretation of Article 30 referred in the Keck and Mithouard cases did not, however, concern a prohibition on selling at a price lower than that fixed under a national scheme for regulating prices but the prohibition (directed on that occasion to wholesalers and retailers) of practising a specific sales method consisting in reselling a product at a price lower than its purchase price. The Court was accordingly requested to rule on whether, and to what extent, it was appropriate to apply in that case the principle laid down in Oosthoek to the effect that legislation which restricts or prohibits certain forms of advertising and certain means of sales promotion may, although it does not directly affect imports, be such as to restrict their volume because ‘to compel a producer either to adopt advertising or sales promotion schemes which differ from one Member State to another or to discontinue a scheme which he considers to be particularly effective may constitute an obstacle to imports even if the legislation in question applies to domestic products and imported products without distinction’.

The Court took the opportunity to reconsider ab initio the question of the interpretation of Article 30, and the consequences of that re-examination are particularly significant in view of the fact (and the terms of the judgment leave room for no doubt whatsoever as to this) that the judicial change of direction which may be discerned was wholly intentional.

The formula in Dassonville, quoted above (see point 13 above), again marks the starting point. The Court affirmed (paragraph 11) that ‘any measure which is capable of directly or indirectly, actually or potentially, hindering intra-Community trade constitutes a measure having equivalent effect to a quantitative restriction’ within the meaning of Article 30 of the Treaty. It then stated (paragraphs 12 and 13): ‘National legislation imposing a general prohibition on resale at a loss is not designed to regulate trade in goods between Member States’, but may however ‘restrict the volume of sales, and hence the volume of sales of products from other Member States, in so far as it deprives traders of a method of sales promotion’. It raised the question, finally, in the last sentence of paragraph 13, whether that possibility was sufficient to characterize the legislation in question as a measure having equivalent effect to a quantitative restriction on imports. By voicing doubt as to whether legislation which may restrict the volume of sales of products from other Member States may affect imports and thus fall within the scope of Article 30, the Court was already underlining the issue in respect of which the Court changed direction.

It paved the way for the change by introducing a distinction between on the one hand restrictive national rules laying down requirements (designation, form, size, weight, composition etc.) to be met by goods coming from other Member States where they are lawfully manufactured and marketed and on the other hand national provisions restricting or prohibiting certain selling arrangements. The Court, referring expressly to Cassis de Dijon, stated (paragraph 15) that national rules in the first category, even if they applied without distinction to all products, constituted measures of equivalent effect prohibited by Article 30 unless their application could be justified by a public-interest objective taking precedence over the free movement of goods. With regard however to national provisions in the second category, the Court considered (paragraph 16) that ‘contrary to what has previously been decided, the application [of such] provisions ... is not such as to hinder directly or indirectly, actually or potentially, trade between Member States’, so long as (a) they apply to all relevant traders operating within the national territory and (b) they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. The Court concluded: ‘Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products’ (paragraph 17).

The Court accordingly drew an absolute, ‘ontological’, distinction: restrictive national rules laying down requirements to be met by goods coming from other Member States, which refer to the subject-matter properly so called of trade between Member States, create by their nature impediments to such trade. In contrast, national rules prohibiting or restricting certain selling arrangements, since they concern only the conditions and circumstances in which goods from other Member States are sold, are not by their nature liable to affect intra-Community trade.

It may reasonably be concluded from a comparison of Keck and Mithouard and the paragraph cited above (see point 19) of Oosthoek that the Court has accepted, ‘contrary to what has previously been decided’, that the possibility that prohibiting or restricting certain selling arrangements may influence the conduct of relevant traders so as to have an adverse impact on trade between Member States is too remote and hypothetical to establish a relationship, even indirect and potential, between the national provisions in question on the one hand and any adverse impact on imports on the other. (17)

24.In the light of the foregoing, a national rule prohibiting or restricting certain selling arrangements does not in principle constitute a measure having equivalent effect to a quantitative restriction on imports. However, in order to ensure that the rule is neutral for intra-Community trade it must also be ascertained first whether it applies to all traders operating within the territory of the Member State concerned and secondly whether it affects in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.

25.Neither ascertaining the persons covered by a rule nor ascertaining the manner in which it affects in law the marketing of domestic products compared to that of imported products is in my view liable to give rise to major problems in applying Keck and Mithouard. It must none the less be observed that an effective and thorough examination of those two questions must not simply focus on the letter of the rule but must also consider its purpose and overall scheme, looking at it in so far as possible within the broader legislative framework in which it is set.

26.The difficulties will be significantly greater when the issue is to ascertain whether a national rule affects in the same manner in fact the marketing of domestic products and of imported products. Those difficulties do not concern the determination of the subject-matter of the review: at that stage, it will be necessary to ascertain whether a rule which draws no distinction between national traders on the one hand and traders who are citizens of other Member States on the other and which does not affect in law the marketing of imported products differently from the marketing of domestic products may, when applied in practice, have the effect of creating marketing conditions which place domestic products at an advantage.

27.In my view, it is clear that a sufficient differentiation between ascertaining the effect of a rule in practice and ascertaining its effect in law may be effected only by reference to certain hypotheses relating to the factual conditions in which the rule being considered may apply. There is none the less a risk in so doing that the examination will lead to a never-ending study of situations in the context of which it would suffice to formulate an artificial or statistically insignificant hypothesis to erode the legally neutral character of the measure.

28.I therefore consider that the examination of the effects which a national measure may have in practice, for present purposes, must be carried out taking account of the normal course of events. (19) It is accordingly from that angle that any facts of which the Court is apprised, whether in the order for reference or in the written observations submitted to it, must be assessed. (20)

V — Reply to the question referred

29.The legislation described in the question referred by the President of the Commercial Court, Mons, unquestionably does not lay down requirements to be met by goods coming from other Member States. May such legislation however be considered to prohibit a certain ‘selling arrangement’?

30.In my view, the answer may only be in the affirmative. The legislation to which the order for reference refers, which lays down a general prohibition of selling or offering for sale goods at a price which, although higher than the price invoiced at the time of supply, none the less yields only a very low profit margin, in fact concerns the conditions in which goods are permitted to be sold and, consequently, prohibits a certain ‘selling arrangement’ within the meaning of Keck and Mithouard.

31.ITM and Vocarex argue (see p. 8 et seq. of their observations submitted to the Court, in particular p. 10) that by ‘selling arrangements’ within the meaning of Keck and Mithouard must be understood solely specific selling arrangements, which do not include selling at a profit since, according to those companies, it is precisely that element, namely the existence of a profit margin, even if very low, which constitutes the ‘very essence of selling’.

32.That argument cannot be accepted. Not only because the very low profit margin referred to in the order for reference cannot be regarded as constituting the ‘very essence of selling’, but, above all, because neither the letter nor the spirit of the judgment in Keck and Mithouard permits a distinction to be drawn between selling arrangements ‘sui generis’, the prohibition or restriction of which will fall outside the scope of Article 30 of the Treaty, and ‘ordinary’ selling arrangements, the prohibition or restriction of which may be regarded as a measure having equivalent effect to a quantitative restriction. Moreover, in the judgments following Keck and Mithouard the Court has categorized national provisions concerning wholly different matters from unusual or sui generis selling arrangements as rules corresponding to ‘selling arrangements’ and consequently not falling within the scope of Article 30. (21)

33.The rule referred to in the order for reference cannot however be definitively regarded as falling outside the scope of Article 30 of the Treaty before it has been considered whether first it applies to all traders operating within the national territory and secondly it affects in the same manner, in law and in fact, the marketing of domestic products and of imported products.

34.The prohibition at issue applies to all traders operating in Belgium, irrespective of their nationality, (22) and therefore to wholesalers when they sell to retailers in the same way as to retailers when they sell to consumers since the law draws no distinction between them. (23)

35.The wording of the provision which refers to a sale or an offer for sale which, given the price at which the product was invoiced at the time of supply (or would be invoiced if it were resupplied), yields only a very low profit margin shows clearly that the prohibition does not apply to the sale made by the producer or manufacturer of the product sold, since in that case there has obviously been no prior supply. That fact can however have no effect whatsoever on the examination of the provision in the light of Article 30 of the Treaty since, in any event, the prohibition is directed at neither Belgian producers or manufacturers nor citizens from other Member States who sell in Belgium the goods they have produced or manufactured. (24) It is moreover clear that the Court is not competent to rule on the question (which falls outside not only the scope of Article 30 of the Treaty but also Community law in general) whether the distinction between wholesalers and retailers on the one hand and producers and manufacturers on the other is incompatible with the national-law principle of equal treatment. (25)

36.The question now arises whether the legislation being considered affects in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.

37.I believe that the reply must be affirmative. It follows neither from the legislation itself nor from its context that the prohibition laid down affects, in law, the marketing of imported products in a different manner from the marketing of domestic products, while furthermore there is nothing to suggest that, in the normal course of events, the prohibition at issue may in fact discriminate in the sense discussed above. (26)

(c)the prohibition laid down, which is directed solely at wholesalers and retailers, allows domestic producers to sell their products at a very low profit margin. Producers established in another Member State are thereby put at a disadvantage over domestic producers, since, in order to distribute their products, they will generally have to use the services of intermediaries who, caught by the above-mentioned prohibition, cannot promote those products to consumers by using the method of sales promotion at issue.

In my view, none of those arguments stands up to analysis. More specifically:

(a)the rules described in the order for reference treat as sales at a loss sales which yield only a very low profit margin taking account of the price at which the product was invoiced at the time of supply (or would be invoiced if it were resupplied) and of overheads. Consequently, any higher costs incurred in marketing products from other Member States are taken into consideration in determining whether or not the profit margin realized on the sale of those products is very low and those products are therefore not from that point of view placed at a disadvantage over domestic products;

(b)it is clear from the combined tenor of paragraphs 13, 16 and 18 of the judgment in Keck and Mithouard that a national rule prohibiting a certain method of sales promotion, consisting in resale at a loss, cannot be considered to have a greater impact on the marketing of products from other Member States than on the marketing of domestic products. The Court followed analogous reasoning in relation to the prohibition of certain advertising methods in Hünermund and Others (paragraphs 20 to 23) and Leclerc-Siplec (paragraphs 20 to 23), cited above (see footnote 18). It follows logically from those judgments that the Court does not consider that the greater need in the case of imported products for methods of sales promotion in order to facilitate their access to the market of another Member State is liable to increase the effect of the abovementioned prohibitions on the marketing of such products;

(c)although producers generally use the services of intermediaries (wholesalers or retailers) to sell their products to consumers in other Member States, modern market conditions also lead domestic producers generally to use the services of intermediaries (wholesalers or, at least, retailers) to distribute their products. Consequently, the possibility that the rule under consideration affects the marketing of imported products more than that of the products sold by a domestic producer directly to the consumer does not in itself make the prohibition at issue liable, in the normal course of events, to impede the marketing of products imported from other Member States any more than it impedes that of domestic products.

37.In summary, a national rule such as that described in the order for reference which lays down a general prohibition of sales yielding a very low profit margin falls outside the scope of Article 30 of the Treaty since, according to the facts set out, that rule applies to all traders operating within the national territory and affects in the same manner, in law and in fact, the marketing of domestic products and of imported products.

38.If, contrary to the foregoing, the Court were to consider that the abovementioned rule constituted a measure having equivalent effect to a quantitative restriction on imports, it would then be necessary to ascertain whether that rule could be justified by overriding requirements and above all the principle of proportionality. As is clear from the line of case-law developed by the Court since Cassis de Dijon, a national rule applicable without distinction to domestic products and imported products, which falls within the scope of Article 30 of the Treaty in so far as it constitutes a measure having equivalent effect to a quantitative restriction on imports, may be justified if: (a) it pursues a legitimate objective under Community law which takes precedence over the free movement of goods, (b) it is an appropriate means of attaining the objective pursued, and (c) it is necessary for the attainment of that objective, in the sense that the objective could not be attained by means of measures which impede intra-Community trade to a lesser extent.

39.For the sake of completeness, I will briefly consider in the following paragraphs the question whether the provision described in the order for reference could, if it were considered to fall within the scope of Article 30, be justified in the above sense. It follows indirectly from the order for reference that the disputed prohibition of the sale or offer for sale of products at a price yielding only a very low profit margin seeks both to ensure fair competition and to protect the interests of consumers. It thus appears that the objective of the national legislature is to prevent the abovementioned sales method from being used either as a means of eliminating competitors who cannot sell or offer for sale the same products at that price or as a means of attracting consumers so that, ‘enticed’ by the offer, in a specific outlet, of a product at a price so low that it yields the seller only an unusually low profit margin, they are induced to buy other products sold at higher prices than normal in order to compensate for the low price mentioned above.

Those two objectives are unquestionably among those which may in principle justify the imposition of a measure of equivalent effect within the meaning of Article 30 of the Treaty. The prohibition at issue may moreover, given its generality, be considered to be an effective means of attaining the objectives in question. But it is precisely its very generality which raises the question whether its broad scope is necessary to attain the objectives, in principle lawful, mentioned above.

The reply to that last question should, I believe, be negative, (a) In order for selling at a very low profit margin to constitute a means of eliminating competition, it would have to be carried out continuously and systematically. It is not therefore necessary, in order to avoid distortion of competition, to impose a prohibition of the abovementioned selling arrangement so general as to encompass situations in which the conditions of use of that selling arrangement (for example, that it be used only once or for a limited period) rule out adverse effects on competition; (b) selling at a price which yields only a very low profit margin can, of course, be operated as a means of ‘luring’ the consumer only at the retail stage. Consumer protection alone, therefore, does not require that selling arrangement to be prohibited also at the stages of product marketing which precede retail sales.

Conclusion

In the light of all the considerations set out above, I propose that the Court reply as follows to the question referred:

Article 30 of the EEC Treaty does not apply to a national provision, couched in general terms, which prohibits, by treating it as a sale at a loss, selling at a price which, although higher than the price at which the product was invoiced at the time of supply, none the less yields only a very low profit margin if, as in this case, the provision applies to all traders (wholesalers and retailers) operating within the national territory and affects in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.

*1 Original language: Greek.

1 Moniteur Belge, 29 August 1991, p. 18712.

2 See for example Case C-438/92 Rustica Semences ν Finanzamt [1994] ECR I-3519, paragraph 10, Case C-131/91 ‘K’ Line Air Service Europe [1992] ECR I-4513, paragraph 10, and Case C-215/87 Schumacher [1989] ECR 617, paragraph 6.

3 See for example the recent decisions in Joined Cases C-29/94 to C-35/94 Attbertin and Others [1995] ECR I-301, paragraphs 9 to 11, Case C-23/93 TV 10 [1994] ECR I-4795, paragraph 14, and Case C-379/92 Peralta [1994] ECR I-3453, paragraphs 27 to 29.

4 Case 8/74 [1974] ECR 837, paragraph 5.

5 See most recently Case C-412/93 Leclerc-Siplec [1995] ECR I-179, paragraph 18.

(7) See the judgment in Case 355/85 Dnancourt ν Cognet [1986] ECR 3231, paragraph 10.

(8) Case 286/81 [1982] ECR 4575.

(9) Emphasis added.

(10) The case-law of the Court of Justice is analysed from a similar perspective, demonstrating that categorizing a national measure as a measure having equivalent effect within the meaning of Article 30 of the Treaty does not necessarily preclude the application of that provision to national products, in points 20 to 25 of the Opinion of Advocate General Tesauro in Lancry and Others, cited above (in footnote 6).

(11) See TV 10, cited above, paragraph 14, and Case C-153/91 Petit [1992] ECR I-4973, paragraph 8, Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 37, and Case C-52/79 Procureur du Roi ν Debrauve [1980] ECR 833, paragraph 9.

(12) Those doubts are reinforced by one of the documents (number 6) annexed to the observations submitted to the Court by TTΜ and Vocarex. According to the document in question, relied on by those companies in support of an argument unconnected to the question here examined, Belgian potato production greatly exceeds domestic consumption and the majority of potatoes produced in Belgium are of the ‘Bintje’ variety (including the potatoes sold in Vocarex's shop).

(13) Joined Cases C-267/91 and C-268/91 [1993] ECR I-6097.

(14) See further Case C-78/82 Commission ν Italy [1983] ECR 1955, paragraph 16, Case C-231/83 Cullet [1985] ECR 305, paragraph 23 et seq., Case C-287/89 Commission ν Belgium [1991] ECR I-2233, paragraphs 21, 24 and 28, and Joined Cases C-80/85 and 159/85 Edah [1986] ECR 3359, paragraph 10 et seq.

(15) Cited above, in footnote 8. See also Case C-382/87 Buet [1989] ECR 1235, paragraphs 7 and 8, Case C-362/88 CB-Inno-BM [1990] ECR I-667, paragraph 7, Case C-239/90 Boscher [1991] ECR I-2023, paragraph 14, and Case C-126/91 Yves Rocher [1993] ECR I-2361, paragraph 10.

(16) Case C-120/78 Rewe-Zentral ν Bundesmonopolverwaltung für Branntwein [1979] ECR 649.

(17) I believe that it is not without relevance that, in Peralta, which post-dates Keck and Mithouard, the Court, on a reference for a preliminary ruling concerning the compatibility with Article 30 of the Treaty of Italian legislation which, by prohibiting the discharge at sea of chemical substances and requiring Italian vessels to have costly equipment, is liable to lead to an increase in the import of chemical products into Italy, replied (paragraph 24) ‘that legislation like the legislation in question makes no distinction according to the origin of the substances transported, its purpose is not to regulate trade in goods with other Member States and the restrictive effects which it might have on the free movement of goods are too uncertain and indirect for the obligation which it lays down to be regarded as being of a nature to hinder trade between Member States (see the judgment in Case C-69/88 Krantz ν Ontranger der Directe Belastingen [1990] ECR I-583, paragraph 11, and the judgment in Case C-93/92 CMC Motorradcenter ν Pelin Baskiciogullari [1994] ECR I-2355, paragraph 12)’ (emphasis added).

It is noteworthy however that the national provision in relation to which the Court interpreted Article 30 in that judgment cannot be classified in either of the two categories of national provisions referred to, from the point of view of their effect on intra-Community trade, in Keck and Mithouard.

(18) See Case C-292/92 Hünermund and Others [1993] ECR I-6787, Joined Cases C-401/92 and C-402/92 Tankstation't Hetikske and Boermans [1994] ECR I-2199, Joined Cases C-69/93 and C-258/93 Punto Casa and PPV [1994] ECR I-2355 and Leclerc-Siplec, cited in footnote 5 above.

(19) Thus a rule which is neutral from the point of view of its scope and effect in law on the marketing of products cannot be considered to be a measure having equivalent effect to a quantitative restriction if it may in a wholly hypothetical case affect in fact the marketing of imported products differently from that of domestic products. In my view, that proposition follows the same line of logic as that underlying paragraph 24, cited above (see footnote 17), of the judgment in Peralta.

(20) For a different approach to the problem of assessing the effect in fact of a national provision on the marketing of domestic products and imported products, see points 23 and 24 of the Opinion of Advocate General Van Gerven in Tankstation 't Heukske and Boennans, cited in footnote 18 above.

(21) Of those judgments, cited in footnote 18 above, Hiinermund and Others concerned a provision prohibiting pharmacists from advertising quasi-pharmaceutical products outside the pharmacy, Tankstation 't Heukske and Boer-mans provisions governing the opening hours of service stations, Punto Casa and PPV a provision prohibiting certain commercial activities on Sundays and, finally, Leclerc-Siplec a prohibition of broadcasting televised advertising for a certain method of marketing products (distribution).

(22) The examination of the rule at issue from the point of view of Article 30 of the Treaty is not in any way affected by the arguments adduced by ITM and Vocarex (see p. 12, in fine, of their observations) that the legislation in question prohibits ITM from using a method of sales promotion which its parent company is able to practise in France, the site of its registered office.

(23) With regard to the scope of Article 40 of the Belgian Law of 14 July 1991 and more generally the problems of domestic law raised by the application of the Belgian legislation on selling at a loss and selling at a very low profit margin, see inter alia L. De Brouwer: ‘Les ventes réglementées’ in Les pratiques du commerce et la protection et l'information du consommateur depuis la loi du 14 juillet 1991, p. 71 et seq., in particular pp. 72 to 75; A. de Caluwé, C. Delcorde and X. Leurquin: Les pratiques du commerce, 2nd edn., No 13.1 et seq., and A. Puttemans: ‘La réglementation de la vente à perte’, Journal des Tribunaux, 1991, p. 225 et seq.

(24) It should be noted that the national legislation which was the subject-matter of the question referred in Keck and Mithouard also distinguished between resellers (who were prohibited from selling at a loss) and manufacturers (who were not caught by the prohibition).

(25) Cf. Case C-132/93 Steen [1994] ECR I-2715, paragraph 10.

(26) According to the order for reference, the concept of ‘sale yielding only a very small profit margin’ as it appears in the legislation at issue creates ‘genuine uncertainty’ for traders, exacerbated by the case-law on the subject, and that uncertainty could be a barrier to the free movement of goods. In my view, that factor alone cannot bring national legislation such as that at issue, which prohibits a certain ‘selling arrangement’, within the scope of Article 30 of the Treaty; nor is it such as to increase, in fact, the effect of that legislation on the marketing of imported products.

(27) See the recent case C-315/92 Verband Sozialer Wettbewerb ν Clinique Laboratories and Estée Lauder [1994] ECR I-317, paragraphs 13 to 16.

See, with regard to the objectives of the Belgian legislation prohibiting sales at a loss and sales at a price which yields only a very low profit margin, A. de Caluwé, C. Delcorde, X. Leurquin, op. cit., No 13.2, and Α. Puttemans, op. cit., in particular pp. 225 and 238. See also E. Balate: ‘La loi du 14 juillet 1991 sur les pratiques du commerce et sur l'information et la protection du consommateur: évaluation au regard du droit européen’ in Les pratiques du commerce et la protection et l'information du consommateur depuis la loi du 14 juillet 1991, p. 175 et seq., in particular pp. 210 to 212.

29It is noteworthy that as early as its judgment in Cassis de Dijon (cited above, footnote 16), the Court held (paragraph 8) that the ‘mandatory requirements’ capable of justifying the imposition of a measure of equivalent effect include in particular ‘the fairness of commercial transactions and the defence of the consumer’.