JUDGMENT OF 11. 5. 1989 CASE 25/88 JUDGMENT OF THE COURT 11 May 1989* In Case 25/88 REFERENCE to the Court under Article 177 of the EEC Treaty by the tribunal de grande instance de Bobigny for a preliminary ruling in the criminal proceedings pending before that court against Esther Renée Bouchara, née Wurmser, and Norlaine SA on the interpretation of Articles 30 and 36 of the Treaty, THE COURT composed of: O. Due, President, R. Joliet, T. F. O'Higgins and F. Grévisse (Presidents of Chambers), Sir Gordon Slynn, G. F. Mancini, F. A. Schockweiler, J. C. Moitinho de Almeida and G. C. Rodríguez Iglesias, Judges, Advocate General: W. Van Gerven Registrar: H. A. Rühi, Principal Administrator after considering the observations submitted on behalf of Esther Renée Bouchara, defendant in the main proceedings, and the parties civilly liable, by J. P. Sulzer, of the Paris Bar, the French Republic, in the written procedure, by E. Belliard, Deputy Director at the Directorate of Legal Affairs of the Ministry of Foreign Affairs, acting as * Language of the case: French. 1124
CRIMINAL PROCEEDINGS v WURMSER AND OTHERS Agent, assisted by M. Giacomini, Secretary for Foreign Affairs in the Directorate of Legal Affairs of the Ministry of Foreign Affairs, acting as Deputy Agent, and in the oral procedure, by M. Giacomini, acting as Agent, assisted by Mr Tibilan, an official of the Ministry of Finance (Anti-Fraud Department) and Mr Dobking, an official of the Ministry of Justice, the Commission of the European Communities, by R. Wainwright, Legal Adviser, acting as Agent, having regard to the Report for the Hearing and further to the hearing on 22 November 1988, after hearing the Opinion of the Advocate General delivered at the sitting on 15 December 1988, gives the following Judgment 1 By order of 29 October 1987, which was received at the Court on 25 January 1988, the tribunal de grande instance de Bobigny (Regional Court, Bobigny), referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Articles 30 and 36 of the Treaty in order to determine the compatibility with Community law of a French legislative provision requiring importers to verify the conformity of the imported products with the rules in force and imposing criminal liability for failure to do so. 2 Those questions arose in criminal proceedings brought against the management of Norlaine SA, charged with the offence of deceit for having offered for sale or caused to be offered for sale textile products bearing false information as to their composition, an offence punishable under the Law of 1 August 1905 on frauds and misrepresentation with respect to products and services, as amended by Law No 83-660 of 21 July 1983 on consumer protection (Journal officiel de la République française, p. 2262). 1125
JUDGMENT OF 11. 5. 1989 CASE 25/88 3 It is apparent from the documents before the Court that in 1984, Norlaine, the buying office for shops trading under the 'Bouchara' name, imported fabrics supplied by Italian and German manufacturers with invoices indicating the composition of the products. "When the company sold those fabrics to its customers, it reproduced on its invoices the information provided by its foreign suppliers, which was subsequently placed on the fabrics sold to consumers by the 'Bouchara' shops. 4 After having samples taken in one of those shops analysed, the Consumer and Prevention of Fraud Department discovered that the composition of the fabrics did not correspond to what was indicated. The ministère public (Public Prosecutor's Department) therefore brought criminal proceedings before the tribunal de grande instance, Bobigny, on the basis, in particular, of Article 11-4 of the abovementioned law, which 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.' 5 Since the accused alleged that that provision was incompatible with Article 30 of the EEC Treaty, the court stayed proceedings and 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 frauds 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 that Treaty?' 1126
CRIMINAL PROCEEDINGS v WURMSER AND OTHERS 6 Reference is made to the Report for the Hearing for a fuller account of the legal background to and facts of the main proceedings, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. 7 In its questions, the national court seeks essentially to ascertain whether the application to products imported from another Member State of a provision requiring the person who first places products on the national market verify their conformity with the rules in force on that market regarding the health and safety of persons, fair trading and consumer protection and imposing criminal liability if they fail to do so, is compatible with Articles 30 and 36 of the EEC Treaty. 8 According to Article 30 of the Treaty, 'quantitative restrictions on imports and all measures having equivalent effect shall... be prohibited between Member States'. According to the settled case-law of the Court (see, initially, the judgment of 11 July 1974 in Case 8/74 Procurem du Roi v Dassonville [1974] ECR 837), all trading rules which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade are to be considered as measures having an effect equivalent to quantitative restrictions. 9 It must be accepted that a rule requiring the person who places a product on the national market for the first time to verify its conformity with the rules in force on that market could induce traders who distribute similar domestic and imported products to prefer the domestic products, in regard to which verification is the responsibility not of the distributor but of the manufacturer. It must therefore be considered whether the application of such a rule to products imported from another Member State may none the less be justified in the light of Articles 30 and 36 of the Treaty. 10 In that regard, it should first be noted that among the general interests expressly protected by the national provision at issue in the main proceedings, only the protection of the health and safety of persons is covered by Article 36. On the other hand, fair trading and consumer protection are among the imperative requirements which, in accordance with a line of decisions of the Court (see, initially, the judgment of 20 February 1979 in Case 120/78 Rewe v Bundesmono- 1127
JUDGMENT OF 11. 5. 1989 CASE 25/88 polverwaltung für Branntwein [1979] ECR 649 ('Cassis de Dijon')), may justify a measure liable to hinder intra-community trade, on condition that that measure is applied without distinction to domestic and imported products. 11 A measure which, in regard both to domestic products and imported products, imposes an obligation to verify on the person who first places the product on the market is, in principle, applicable without distinction to both categories of products. It may therefore be justified both under Article 36 and under Article 30 of the Treaty as interpreted by the Court in the abovementioned decisions. 12 However, the justification under the abovementioned provisions of the Treaty of a unilateral measure impeding intra-community trade presupposes that the sphere in question is not the subject of Community rules. In that regard, it should be noted that there are no general rules at the Community level concerning verification of the conformity of products with the rules in force on the relevant market. Although there are harmonizing directives in regard to misleading advertising and the designation of certain products, their provisions do not govern the question at issue in the main proceedings. It follows that, as Community law stands at present, that question is still subject to national law within the limits laid down in Articles 30 and 36 of the Treaty. 13 For a national rule capable of having a restrictive effect on imports to be justified under Article 36 of the Treaty or on the basis of the imperative requirements mentioned above, it must however be necessary for the purposes of providing effective protection of the public interest involved and it must not be possible to achieve that objective by measures less restrictive of intra-community trade. It must therefore be considered whether a national provision such as that concerned in the main proceedings is in accordance with the principle of proportionality thus expressed. 1 4 As an instance of a measure less restrictive of trade, the defendants in the main proceedings and the Commission refer to the possibility of bringing a criminal prosecution against the foreign manufacturer before the courts of the Member State of importation in the same way as against a domestic manufacturer. 1128
CRIMINAL PROCEEDINGS v WURMSER AND OTHERS 15 In that regard, it should be pointed out that even when the criminal law of the Member State of importation provides for such a possibility, its application presupposes that exports to that State are carried out by the manufacturer himself and not by a trader independent of him. Moreover, as Community law stands at present, there is no obligation to enforce a criminal sentence imposed by the courts of another Member State. In those circumstances, the possibility of imposing criminal liability on a foreign manufacturer who has not carried out the same verification as is required of a domestic manufacturer cannot suffice to achieve the objective pursued by a provision such as that at issue in the main proceedings. 16 Even if, in principle, an obligation on the person who places a product on a national market for the first time to verify the conformity of that product with the rules in force on the said market may, as Community law stands at present, be justified on grounds concerning the health and safety of persons, fair trading and consumer protection, the application of such an obligation to products manufactured in another Member State must, in accordance with the principle of proportionality, take account, on the one hand, of the importance of the public interest in question and, on the other, of the means of proof normally available to an importer. 17 In regard in particular to the verification of information supplied to consumers as to the composition of a product when it is released for sale, the importer may not, as a general rule, be required to have the product analysed for the purposes of that verification. Such an obligation would impose on the importer a burden considerably greater than that imposed on a domestic manufacturer, who himself has control of the composition of the product, and it would often be disproportionate to the objective to be achieved, having regard to the existence of other forms of verification equally reliable and less burdensome. 18 As the Court has held, in particular in its judgment of 17 December 1981 in Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Produkten [1981] ECR 3277, although Member States are not prohibited from requiring prior approval of certain products, even if those products have already been approved in another Member State, the authorities of the State of importation are however not entitled unnecessarily to require technical or chemical analyses when the same analyses or tests have already been carried out in another Member State and their results are available to those authorities. That rule is a particular application of a more 1129
JUDGMENT OF 11. 5. 1989 CASE 25/88 general principle of mutual trust between the authorities of the Member States and must therefore also apply when the verification is the responsibility of the importer himself. It follows that the latter must be able to discharge his responsibility by producing a certificate concerning the composition of the product issued by the authorities of the Member State of production or by a laboratory authorized to issue such certificates by those authorities. 19 With regard to products in regard to which the legislation of the Member State of production does not require official certificates concerning the composition of the product to be supplied, the importer must also be entitled to rely on other attestations providing a like degree of assurance. It is for the national court to determine whether, having regard to all the circumstances of the case, the attestations provided by the importer are sufficient to establish that the latter has fulfilled his obligation to verify. 20 The reply to the questions referred to the Court for a preliminary ruling should therefore be that, as Community law now stands, a provision requiring the person responsible for placing a product on the national market for the first time to verify its conformity with the rules in force on the said market regarding the health and safety of persons, fair trading and consumer protection and rendering that person liable in criminal law for breach of that requirement is compatible with Articles 30 and 36 of the EEC Treaty on condition that its application to products manufactured in another Member State is not subject to requirements going beyond what is necessary to achieve the objective pursued, having regard, on the one hand, to the public interest in question and, on the other, to the means of proof normally available to an importer. With regard in particular to the verification of information on a product's composition supplied to consumers when the product is released for sale, the importer must be entitled to rely on certificates issued by the authorities of the Member State of production or by a laboratory approved by the said authorities for that purpose, or, if the legislation of that Member State does not require the production of such certificates, on other attestations providing like degree of assurance. Costs 21 The costs incurred by the French Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main 1130
CRIMINAL PROCEEDINGS v WURMSER AND OTHERS proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court. On those grounds, THE COURT, in answer to the questions referred to it by the tribunal de grande instance de Bobigny, by order of 29 October 1987, hereby rules: As Community law stands at present, a provision requiring the person responsible for placing a product on the national market for the first time to verify its conformity with the rules in force on the said market regarding the health and safety of persons, fair trading and consumer protection and rendering that person liable in criminal law for breach of that requirement is compatible with Articles 30 and 36 of the EEC Treaty on condition that its application to products manufactured in another Member State is not subject to requirements going beyond what is necessary to achieve the objective pursued, having regard, on the one hand, to the public interest in question and, on the other, to the means of proof normally available to an importer. With regard, in particular, to the verification of information on a product's composition supplied to consumers when the product is released for sale, the importer must be entitled to rely on certificates issued by the authorities of the Member State of production or by a laboratory approved by the said authorities for that purpose, or, if the legislation of that Member State does not require the production of such certificates, on other attestations providing a like degree of assurance. Due Joliét O'Higgins Grévisse Slynn Mancini Schockweiler Moitinho de Almeida Rodríguez Iglesias Delivered in open court in Luxembourg on 11 May 1989. J.-G. Giraud Registrar O. Due President 1131