Odbor kompatibility s právem ES Úřad vlády ČR	I S A P Informační Systém pro Aproximaci Práva
	Databáze č. 17 : Databáze judikatury

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	Číslo (Kód CELEX): Number (CELEX Code):		61988J0362

	Název: Title:		JUDGMENT OF THE COURT (SIXTH CHAMBER) OF 7 MARCH 1990. GB-INNO-BM SA V CONFEDERATION DU COMMERCE LUXEMBOURGEOIS ASBL. REFERENCE FOR A PRELIMINARY RULING : COUR DE CASSATION - GRAND DUCHY OF LUXEMBURG. FREE MOVEMENT OF GOODS - MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS ON IMPORTS - NATIONAL LEGISLATION PROHIBITING THE PUBLICATION OF THE DURATION OF A SALES OFFER AND REFERRING TO PREVIOUS PRICES. CASE 362/88.

	Publikace: Publication:		REPORTS OF CASES 1990 PAGES I-0667

	Předmět (klíčová slova): Keywords		FREE MOVEMENT OF GOODS;QUANTITATIVE RESTRICTIONS;MEASURES HAVING EQUIVALENT EFFECT;CONSUMER PROTECTION;

	Související předpisy: Corresponding acts:		157E030;157E036

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Oosthoek’s Uitgeversmaatschappij Case 286/81 Oosthoek’s Uitgeversmaatschappij [1982] ECR 4575 · Alpine Investments Case C-384/93 Alpine Investments [1995] ECR I-1141 · Cassis de Dijon Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649 · Gilli Case 788/79 Gilli and Andres [1980] ECR 2071 · Case 193/80 Commission v Italy [1981] ECR 3019 · Case 178/84 Commission v Germany [1987] ECR 1227 · Piageme I Case C-369/89 ASBL Piageme and Others v BVBA Peeters [1991] ECR I-2971


	Plný text: Fulltext:		Ne

Fakta:
GB-INNO-BM (“GB-INNO”), a company incorporated under Belgian law, operates supermarkets in Belgium. It had distributed advertising leaflets on Belgian territory as well as Luxembourg territory which included sales offers involving a temporary price reduction and whih stated the duration of the offer as well as the previous price. The Conféderation du commerce luxembourgeois (hereinafter “CCL”), a non-profit-making association which claims to represent the interests of Luxembourg traders, brought an action against GB-INNO before the Luxembourg courts applying for an injunction against the company to stop the distribution of those advertising leaflets. The action was based on a provision of the Luxembourg law on unfair competition according to which sales offers involving a temporary reduction may not state the duration of the offer or refer to the previous prices.
The Cour de cassation of the Grand Duchy of Luxembourg, seised of the case on appeal, stayed the proceedings and under Article 177 of the Treaty referred to the Court of Justice the question whether a legislative provision such as that of the Luxembourg unfair competition law was compatible with Articles 30, 36 of the Treaty.

Názor soudu a komentář:
Upon doubts raised by the German and Luxembourg Governments, the Court first re-affirms that the present case, which concerns advertising - and thus not directly the movement of goods between Member States - falls within the scope of Articles 30
et seq.
of the Treaty. The Court had already established in a prior judgement that advertising as well as other forms of sales promotion fall within the scope of the provisions of free movement of goods (see
Oosthoek’s Uitgeversmaatschappij
). Furthermore, free movement of goods concerns not only the traders but also the consumers: “It requires, particularly in frontier areas, that consumers resident in one Member State may travel freely to the territory of another Member State to shop under the same conditions as the local population”; this implies that also the consumer information through advertising must be covered by the provisions on free movement of goods. The judgement is in line with other judgements in which the Court has ruled that the freedom to provide services also covers the formation of the contract and the offer to provide services (see
Alpine Investments
).
Having established that advertising falls within the scope of Article 30, the Court concludes that a restriction of the consumer’s access to advertising available in the country where purchases are made constitutes a “measure having an effect equivalent to quantitative restrictions on imports” which is, in principle, prohibited by Article 30 of the Treaty. Relying on its established case-law as established, in particular, in the
Cassis de Dijon
() judgement (see also
Gilli
), the Court points out, however, that in the absence of common rules relating to marketing, obstacles to the free movement of goods resulting from disparities between the national laws must be accepted in so far as those rules (i) are applicable to domestic and imported products alike and (ii) may be justified in order to satisfy mandatory requirements relating
inter alia
to consumer protection or fairness of commercial transactions. The Court therefore goes on to examine whether the relevant provisions of the Luxembourg unfair competition law can be, as has been argued by the Luxembourg Government, justified on grounds of consumer protection.
In order to establish whether, under Community law, access to certain kinds of information can be restricted in the interest of consumer protection, the Court firstly examines the approach which the Community has taken towards consumer protection. Examining in particular the “preliminary programme”
Adopted by the Council in 1975 (OJ 1975, C 92, p. 1).
and the “second programme of the European Economic Community for a consumer protection and information policy”
Adopted by the Council by a Resolution of 19 May 1981 (OJ 1981, C 133, p.1).
, the Court establishes that the Council has established “a link between the protection and information for consumers” according to which the consumer’s situation is to be improved “by providing him with appropriate information and education, and by giving him a voice in decisions which involve him”. Furthermore, the second programme “sets out five basic rights to be enjoyed by the consumer, amongst which appears the right to information and education”. “The part of the programme which lays down the principles which must govern the protection of the economic interests of consumers includes passages which aim to ensure the accuracy of information provided to the consumer, but without refusing him access to certain information. Thus according to one of the principles (Paragraph 28(4)), no form of advertising should mislead the buyer; an advertiser must be able ‘to justify, by appropriate means the validity of any claims he makes.” Secondly, the Court points out that in prior judgements it has given consumer information priority over import restrictions “where the aim of such prohibition may be attained by appropriate labelling of the products concerned which would provide the consumer with the information he needs and enable him to make his choice in full knowledge of the facts” ( Case 193/80 and Case 178/84).
The Court concludes that “under Community law concerning consumer protection the provision of information to the consumer is considered one of the principal requirement. Thus Article 30 cannot be interpreted as meaning that national legislation which denies the consumer access to certain kinds of information may be justified by mandatory requirements concerning consumer protection.”
The Court thus consequently pursues the approach, predominant in Community law, according to which the consumer is a conscientious and critical person who is capable of comprehending information and of acting responsibly (see in particular
Piageme I
).

Shrnutí (Summary of the Judgment):
1. LEGISLATION WHICH RESTRICTS OR PROHIBITS CERTAIN FORMS OF ADVERTISING AND CERTAIN MEANS OF SALES PROMOTION MAY, ALTHOUGH IT DOES NOT DIRECTLY AFFECT TRADE, BE SUCH AS TO RESTRICT THE VOLUME OF TRADE BECAUSE IT AFFECTS MARKETING OPPORTUNITIES. FREE MOVEMENT OF GOODS CONCERNS NOT ONLY TRADERS BUT ALSO INDIVIDUALS. IT REQUIRES, PARTICULARLY IN FRONTIER AREAS, THAT CONSUMERS RESIDENT IN ONE MEMBER STATE MAY TRAVEL FREELY TO THE TERRITORY OF ANOTHER MEMBER STATE TO SHOP UNDER THE SAME CONDITIONS AS THE LOCAL POPULATION. THAT FREEDOM FOR CONSUMERS IS COMPROMISED IF THEY ARE DEPRIVED OF ACCESS TO ADVERTISING AVAILABLE IN THE COUNTRY WHERE PURCHASES ARE MADE. CONSEQUENTLY A PROHIBITION AGAINST DISTRIBUTING SUCH ADVERTISING MUST BE EXAMINED IN THE LIGHT OF ARTICLES 30, 31 AND 36 OF THE EEC TREATY.

2. UNDER ARTICLES 30 AND 36 OF THE TREATY, ADVERTISING LAWFULLY DISTRIBUTED IN ANOTHER MEMBER STATE CANNOT BE MADE SUBJECT TO NATIONAL LEGISLATION PROHIBITING THE INCLUSION, IN ADVERTISEMENTS RELATING TO A SPECIAL PURCHASE OFFER, OF A STATEMENT SHOWING THE DURATION OF THE OFFER OR THE PREVIOUS PRICE. SINCE COMMUNITY LAW REGARDS THE PROVISION OF INFORMATION TO THE CONSUMER AS ONE OF THE PRINCIPAL REQUIREMENTS WITH REGARD TO CONSUMER PROTECTION, ARTICLE 30 OF THE TREATY CANNOT BE INTERPRETED AS MEANING THAT NATIONAL LEGISLATION WHICH DENIES THE CONSUMER ACCESS TO CERTAIN KINDS OF INFORMATION MAY BE JUSTIFIED BY MANDATORY REQUIREMENTS CONCERNING CONSUMER PROTECTION.

Plný text judikátu (Entire text of the Judgment):