1.After recalling the facts at the origin of the main proceedings, the terms of the order making the reference and the provisions of the Belgian legislation applicable to the matter, the Commission puts forward in essence the following observations of a legal nature:As regards the first question put to the Court on the prohibition of sale the Commission thinks it right to recall that according to the case-law of the Cou rt of Justice, and in particular the judgment of 26 June 1980 in Case 788/79 Gil/i [1980] ECR 2071 and that of 19 February 1981 in Case 130/80 Kelderman [1981] ECR 527, the concept of measures having an effect equivalent to quantitative restrictions on imports appearing in Article 30 of the Treaty must be understood as meaning that a prohibition imposed by a Member State on importing or marketing certain classes of products whether of domestic origin or imported comes within that provision where the products are lawfullv marketed in another Member State. The Commission considers that the prohibition in question on selling certain spirits in all places accessible to the public is akin to measures which the Court has considered in the aforementioned judgments as measures having an effect equivalent to quantitative restrictions on imports. Although the Commission considers that not all rules on sale constitute ipso facto even potential obstacles to imports, undoubtedly such marketing rules are a direct or indirect, actual or potential obstacle to intra-Community trade. It follows that the ban on the sale of spirits in places accessible to the public as contained in Article 1 (1) of the Law of 1919 amounts to a measure having equivalent effect within the meaning of Article 30 since it affects spirits imponed from other Member States.In the Commission's view the same is true of the ban on offering spirits without charge in places accessible to the public. The fact that it is not a commercial transaction is irrelevant because the actual or potential effect of the ban is to prevent commercial transactions following such offer.Finally the Commission considers that the ban on drinking spirits in places accessible to the public is likely directly or indirectly, actually or potentially, to impede impons. In that respect the Commission recalls that in its Directive 66/683 (Journal Officiel 1966, p. 3748) it treats national provisions prohibiting the consumption of an imponed product as measures having equivalent effect within the meaning of Article 30. The Commission adheres to that interpretation.As regards the second pan of the first question dealing with the rule preventing persons selling drinks for consumption on the premises from having any quantity of spirits in stock on the premises or dwelling house appurtenant thereto the Commission regards such a measure, which is but the complement of the one previously referred to, as also an actual or potential, direct or indirect obstacle to impons. It is therefore to be regarded as a measure having an effect equivalent to a quantitative restriction referred to in Article 30 of the Treaty.As regards the second question the Commission considers that in principle the object of a law of such general and absolute scope as that in question is to protect public health. Nevertheless in view of the disparity between the law and its application in practice the Commission thinks that a. definitive position must be adopted in the light particularly of the information furnished by the Belgian State on the effects of the Law of 1919 on the consumption of alcohol. In doing so the Commission considers it is following the case-law of the Court to the effect that “it must always be the duty of a national authority relying on Article 36 to prove that the measures which it enforces satisfy these criteria” (paragraph 24 of the judgment of 8 November 1979 in Case 231/78 Denkavit [1979] ECR 3369).In conclusion the Commission proposes the following answer to the first question put by the Cour de Cassation:“Legislative measures prohibiting on the one hand the consumption, the sale or the offering even without charge of spirits for consumption on the premises in all places open to the public and on the other hand prohibiting persons selling drinks for consumption on the premises from having spirits in stock in anv quantity whatsoever constitute measures having an effect equivalent to quantitative restrictions on imports within the meaning of Article 30 of the EEC Treaty.”As regards the answer to the second question the Commission considers that the measures described in the first question may be justified on grounds of protecting public health where it appears that they are in practice effective therefor.
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