law://eu/cjeu/1982/c-177-82/hd_1_1_2_2_1@2026-11-12The Commission contends that both Article 30 and Articles 85 and 86 are part of the fundamental rules of the Treaty, their aim being to achieve and maintain free movement of goods, that is to say a unified market. They complement one another and combine together towards achieving the objectives set out in Article 2 of the Treaty. This requires an exhaustive interpretation of those rules which leaves no lacunae as to the result to be achieved, as would happen, for example, if measures or practices of the persons addressed by those provisions which have a comparable negative effect in every respect on the unity of the market were examined in the light of Articles 85 and 86 but not in the light of Article 30 or vice versa. That approach remains correct even if the expression “affect trade between Member States” is used primarily to define the competence of the Community whilst the expression “hinder intra-Community trade” establishes a substantive test for determining whether a measure or practice is compatible with the Treaty. Similar considerations apply to the judgments in which the Court has held that certain mandatory requirements of public interest relating to fair trading may in certain circumstances prevail over the free movement of goods.The Commission therefore believes that the terms, purpose and context of the provisions in question militate against the application of different criteria for determining whether it is a question of a measure having equivalent effect hindering intra-Community trade or a measure affecting trade between Member States within the meaning of Article 85 of the Treaty. In its judgment in INNO ν ATAB the Court has already expressed its views on rules comparable to Article 30 of the Tobacco Excise Law. According to paragraph 53 of the decision in that case, such a system “generally” has exclusively internal effect. Paragraph 54 qualifies that view by stating that the possibility cannot be excluded that in certain cases such a system may be capable of affecting intra-Community trade. That approach is wholly in accordance with the numerous decisions of the Court on the question whether national price systems are compatible with Article 30 of the Treaty, decisions which help the Commission to form its judgment of such measures. Measures which impose minimum or maximum prices or temporarily freeze margins or prices are inherently likely to deflect trade from its natural course as determined by the free interplay of supply and demand. Nevertheless, they are not per se contrary to Article 30. Such is the case only where the price level at which the State intervenes impedes intra-Community trade.The specific cases now before the Utrecht court concern a statutory prohibition preventing the entire retail trade from selling certain products at a price lower than the retail price chosen by the manufacturers or importers having regard to the excise duty which they have to pay. The special feature of that system is not so much the price level which it thus brings about but the fact that it completely removes a whole marketing stage, namely the retail trade, from the influence of market forces. To put it another way, this case does not involve temporary control of the market but a permanent restriction on the number of traders on that market. The Court has not left the slightest doubt about the fact that trade and the freedom essential to it are vital to the proper functioning of the common market (cf. judgment in Joined Cases 56 and 58/64, Consten and Grundig ν Commission, [1966] ECR 299). A retailer who is permanently prohibited from engaging in any form of price competition to increase his turnover is deprived of the most effective means which he has to influence the volume of demand at his sale outlet.According to generally accepted laws of economics, the volume of demand for products from other Member States largely determines the volume of inter-State trade in those products. A permanent freezing of demand by a prohibition against selling at a price lower than the price fixed by the manufacturer or importer permanently freezes the volume of imports as well; in other words it deflects trade from its natural course. Put in yet another way, when the retail trade is totally deprived of the most important and most natural weapon available to it in a market economy, namely its own price policy, an artificial level of demand is created, which in turn affects the volume of imports. Even if these factors are difficult to quantify, there is generally little doubt about the certainty and predictability of that relationship of cause and effect. There is little doubt either that the sale of new products, and thus quite often the sale of imported products, is impeded sooner and to a greater extent than the sale of established products. Those aspects of the system in question should not be overlooked when the question is answered whether or not intra-Community trade is in fact affected, which in paragraph 54 of the decision in INNO ν ATAB the Court considered possible “in certain cases”. Seen in that light, the fact that in the sector in question it is mainly small retailers who are affected (cf. on this point the Opinion of Mr Advocate General Reischl in INNO ν ATAB) seems less important. The applicability of Article 30 of the Treaty ought not to depend on the economic importance of the market participants affected by a particular measure.Finally, still on this point, the Commission refers in particular to the judgment of the Court in Joined Cases 16 to 20/79 {Openbaar Ministerie ν Danis and Others [1979] ECR 3327, at p. 3339) where it was held that, if as a result of a measure to control prices traders wishing to import products could do so only at a loss, such a situation constituted a measure having an effect equivalent to quantitative restrictions on imports. In other words an economic measure by which the national authorities restrict the normal supply of imported products must be examined to see if it is compatible with Article 30. In the Danis case the restriction consisted in the risk of loss run by importers. In this case the restriction is applied at the retail level so that the final consumer has no incentive to increase demand for imported products. The phenomenon is more diffuse, but of the same nature nevertheless. A similar argument may be advanced with reference to the case concerning restrictions on production which the Court decided in its judgment in Case 190/73 (Officier van Justitie ν van Haaster[1974] ECR 1123).
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.