Criminal proceedings against Rémy Schmit (C-240/95)

Contents

Judgment of the Court (Fifth Chamber)27 June 1996^noteIn Case C-240/95,REFERENCE to the Court under Article 177 of the EC Treaty by the Cour d'Appel, Metz (France), for a preliminary ruling in the criminal proceedings before that court againstTHE COURT (Fifth Chamber),composed of: D. A. O. Edward, President of the Chamber, J.-P. Puissochet, C. Gulmann, P. Jann and M. Wathelet (Rapporteur), Judges,Advocate General: M. B. Elmer,Registrar: L. Hewlett, Administrator,after considering the written observations submitted on behalf of:— Rémy Schmit, by Jean-Claude Fourgoux, of the Paris Bar,— the French Government, by Claude Chavance, Secretary for Foreign Affairs in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and Romain Nadal, Assistant Secretary for Foreign Affairs in that ministry, acting as Agents,— the Commission of the European Communities, by Hendrick van Lier, Legal Adviser, and Jean-Francis Pasquier, a national civil servant seconded to the Legal Service, acting as Agents,having regard to the Report for the Hearing,after hearing the oral observations of Robert Vergobbio and Salvatore La Mancusa, civil parties to the main proceedings; Rémy Schmit, represented by Jean-Claude Fourgoux; the French Government, represented by Catherine de Salins, Deputy Director of the Foreign Affairs Directorate of the Ministry of Foreign Affairs, and Frédéric Pascal, Chargé de Mission in the Legal Affairs Directorate in that ministry, acting as Agents; and the Commission, represented by Jean-Francis Pasquier, at the hearing on 15 February 1996,after hearing the Opinion of the Advocate General at the sitting on 28 March 1996,gives the following

Judgment

1By judgment of 31 May 1995, received at the Court on 7 July 1995, the Cour d'Appel (Court of Appeal), Metz, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on Article 30 of the Treaty.

2The question arose in criminal proceedings brought against Mr Schmit, the manager of a company based at Yutz (France) specializing in the import and export of private cars and the sale of second-hand cars. Mr Schmit was charged with offences under the French rules on vehicle model-year dates introduced by Decree No 78-993 of 4 October 1978 applying to motor vehicles the Law of 1 August 1905 on Deceptive Practices and Misrepresentation in the field of products and services (JORF of 6 October 1978, p. 3491, ‘the Decree’) and by implementing Order of 2 May 1979 (JORF of 16 May 1979, p. 1144, ‘the Order’).

3Before marketing motor vehicles, all motor-vehicle manufacturers and importers have to send to the French Minister for Transport a detailed descriptive notice of the models which they envisage putting on the French market in any given year (Article 1 of the Order) and the serial number starting from which vehicles will be manufactured in conformity with the model for the new year (Article 2 of the Order).

4Each motor vehicle conforming to the model whose characteristics have been fixed for a given year by the manufacturer is to be designated by the model-year date for that year, which is known as the ‘model year’ (Article 2 of the Decree), provided that it was sold to the user after 30 June of the previous calendar year (Article 5 of the Decree).

5Consequently, vehicles sold between 1 July and 31 December in the year ‘n’ are given the anticipated year date of the year ‘n +1’. In this respect, the French rules differ from the system in force in most other Member States, which generally employ the calendar year in which the vehicle was sold or the date on which it was first registered.

6The year date has to be indicated in the sales description and on the order and delivery forms, invoices, certificates of sale and other commercial documents drawn up for all vehicles sold in France (Article 5 of the Decree). The use, in any form whatsoever, of any indication, any sign, any fancy name, any manner of presentation or labelling or any mode of display, sale or advertising which may create confusion in the purchaser's mind as to the model-year date is prohibited (Article 7 of the Decree).

7Mr Schmit is charged with deliberately omitting to mention the model-year date on invoices and with attributing a wrong model-year date to vehicles. He allegedly sold a Renault 25 GTD Beverly, which was placed on the market in Luxembourg on 13 August 1991, as having a model year of 1992, whereas, according to documentary evidence from the manufacturer, its model-year date was 1991. The weights and measures officers also found that Mr Schmit had in his showroom a Volkswagen ‘Corrado’ purporting to have a model-year date of 1992 which had been registered for the first time abroad on 5 July 1991. According to the order for reference, the regional weights and measures department stated in its report that it took the view that Mr Schmit knew for a fact that the model-year date of the vehicle was 1991. In addition, it emphasized that, as a car trader, Mr Schmit could not have been unaware that the model-year date changed in France on 1 July each year and abroad on 1 January.

8Without contesting the substance of the charges brought against him, Mr Schmit argued that, in so far as the French administrative authorities interpreted the aforementioned decree and order as restricting the benefit of the anticipated model-year date to vehicles marketed in France by approved distributors, the national rules were contrary to Articles 30 and 36 of the EC Treaty. It put parallel imports at a disadvantage and hence helped to partition the markets.

9In the light of those matters of fact and law, the Cour d'Appel, Metz, stayed proceedings and referred the following question to the Court for a preliminary ruling:‘Does Article 30 of the Treaty establishing the European Community preclude national legislation concerning model-year dates for motor vehicles which causes the administrative authorities and traders of a Member State to consider that, in the case of two motor vehicles of the same model and make, placed on the market on the same date after 1 July, one vehicle may be held out as falling under the model-year date of the following calendar year whereas the other, manufactured in another Member State and the subject of parallel importation, may not?’

10First, it should be emphasized in limine that the place where the vehicles in question are manufactured is irrelevant. Under Article 30, a vehicle manufactured in the national territory which is then exported and reimported through parallel channels constitutes an imported product in the same way as a vehicle manufactured in another Member State which is then directly introduced into the national territory.

11Secondly, the benefit of the anticipated model-year date is restricted to vehicles sold as from 1 July.

12Thirdly, it should be noted that since no harmonization measure has been adopted with regard to vehicle model-year dates, the question raised must be considered solely in the light of Article 30 et seq. of the Treaty.

13The French Government argues that the rules in question apply without distinction to vehicles produced in France and to vehicles manufactured in the other Member States. It relies in particular on a judgment of the Tribunal de Grande Instance (Regional Court of Appeal), Paris, of 15 March 1995, according to which the rules in question cannot ‘in any event, be interpreted as being designed to restrict solely to vehicles manufactured and sold in France by French dealers the benefit of early attribution of a model-year date by refusing such attribution to vehicles with the same characteristics sold abroad. ... since any vehicle with characteristics corresponding to those of vehicles to which the French rules enable to be granted as from 1 July in a given calendar year the model-year date of the following calendar year, must qualify, where the vehicle is re-sold in French territory, for the same conditions in regard to the model-year date irrespective of the place where it was acquired’.

14Since the scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts (Joined Cases C-132/91, C-138/91 and C-139/91 Katsikas and Others [1992] ECR I-6577, paragraph 39, and Case C-382/92 Commission ν United Kingdom [1994] ECR I-2435, paragraph 36), it is argued that the rules in question do not restrict, directly or indirectly, actually or potentially, trade between Member States.

15That argument cannot be accepted.

16Reference to a single decision does not enable that interpretation to be regarded as established. Moreover, even if, as the Tribunal de Grande Instance, Paris, states, the rules in question cannot ‘in any event, be interpreted as being designed to restrict solely to vehicles manufactured and sold in France by French dealers the benefit of early attribution of a model-year date by refusing such attribution to vehicles with the same characteristics sold abroad’, it must be held that those rules have the effect that vehicles imported through parallel channels are not in fact likely to satisfy the requirements which they lay down in order to qualify for the anticipated model-year date.

17Those rules do not affect in the same way the marketing, on the one hand, of motor vehicles manufactured in France and intended for the home market or of vehicles imported by approved distributors and, on the other hand, of vehicles imported or reimported through parallel channels.

18As observed in paragraphs 3, 4 and 5 of this judgment, only vehicles conforming to the characteristics declared to the administrative authorities by the manufacturer or importer whose serial number is contained within the series declared on that same occasion can qualify for the anticipated model-year date. Since the attribution of such a model-year date depends on declarations which may be made only by the manufacturer or an official importer, it follows that such attribution is in fact precluded in the case of vehicles which are the subject of parallel imports or re-imports. In practice, such vehicles have to be marketed under the model-year date applied in the Member State from which they are imported, which generally corresponds to the calendar year of sale or the date of first registration.

19It follows that the rules in question are likely to discourage the sale of the vehicles concerned in so far as, although they are the same model as the others, they are presented as being of an earlier year and accordingly are at a discount on resale or where compensation is payable in the event of a claim.

20It appears, moreover, from the case-file that some French manufacturers and official dealers have made advertising capital out of that difference in treatment in order to encourage consumers to purchase vehicles marketed by their sales network.

21Accordingly, a dealers' trade organization launched a campaign in France in 1994 to the effect that a vehicle purchased in France in the network after 1 July would be of the 1995 ‘model year’, whereas the same vehicle purchased outside France would still be of the 1994 model year. By the same token, a car manufacturer conducted a poster advertising campaign showing two identical new vehicles separated by a customs sign with the slogan ‘... there is already a year between them’.

22It follows from the whole of the foregoing considerations that rules such as those at issue have the effect of impeding imports (see Case 8/74 Dassonville [1974] ECR 837).

23The French Government argues, however, that the rules in question are designed to guarantee fair transactions between purchasers and sellers of vehicles. They are designed to enable the customer to identify the vehicle on the basis of the characteristics mentioned in the notice lodged with the Ministry of Transport.

24Suffice it to say in that regard that rules such as those in issue are not appropriate to satisfy the requirements invoked relating to consumer protection or fairness of commercial transactions.

25Apart from the fact that the rules in issue merely provide for notification to the Ministry of Transport of the descriptive notice of the model and do not additionally organize the provision to consumers of the information contained therein, the model-year system laid down by the rules is capable of providing consumers with only very limited information. On the one hand, it does not enable the consumer to determine the differences in characteristics of vehicles depending on their model year, since two vehicles of the same model sold during the second half of the calendar year may have a different model year and, conversely, two vehicles of a different model sold during the first half of the year may have the same model year. On the other hand, the system affords the consumer no guarantee as to the date of manufacture of the vehicle, since it does not prevent the manufacturer from marketing under a new model year a vehicle which has virtually been unmodified from one year to the next or, conversely, from modifying a vehicle in the course of a year. Accordingly, in the result, the consumer cannot be sure that two vehicles of a different model year will have different characteristics or that two vehicles of the same model and model year will be identically manufactured.

26In the light of the foregoing, the reply to the national court's question should be that Article 30 of the Treaty precludes national legislation concerning model-year dates for motor vehicles which causes the administrative authorities and traders of the Member State in question to consider that, where two motor vehicles of the same model and make are sold in that Member State after 30 June, only the vehicle which was the subject of a parallel import would be prohibited from holding itself out as being of the following model year.

Costs

27The 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, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (Fifth Chamber),in answer to the question referred to it by the Cour d'Appel, Metz, by judgment of 31 May 1995, hereby rules: Article 30 of the EC Treaty precludes national legislation concerning model-year dates for motor vehicles which causes the administrative authorities and traders of the Member State in question to consider that, where two motor vehicles of the same model and make are sold in that Member State after 30 June, only the vehicle which was the subject of a parallel import would be prohibited from holding itself out as being of the following model year.

Delivered in open court in Luxembourg on 27 June 1996.