Avis juridique important

Judgment of the Court of 15 December 1993. - Ruth Hünermund and others v Landesapothekerkammer Baden-Württemberg. - Reference for a preliminary ruling: Verwaltungsgerichtshof Baden-Württemberg - Germany. - Free movement of goods - Quasi-pharmaceutical products - Prohibition on advertising outside the pharmacy. - Case C-292/92. European Court reports 1993 Page I-06787 Swedish special edition Page I-00467 Finnish special edition Page I-00515

Summary Parties Grounds Decision on costs Operative part

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(EEC Treaty, Art. 30)

2. Free movement of goods ° Quantitative restrictions ° Measures having equivalent effect ° Concept ° Obstacles arising from non-discriminatory national rules on selling arrangements ° Article 30 of the Treaty not applicable ° Prohibition on advertising quasi-pharmaceutical products outside the pharmacy

(EEC Treaty, Art. 30)

1. Measures adopted by a professional association in the pharmacy sector constitute, if they are capable of affecting trade between Member States, "measures" within the meaning of Article 30 of the Treaty in so far as, according to the national legislation,

° the association in question is a public-law body with legal personality and regulated by the State, membership of which is compulsory for all pharmacists practising within the area over which it has jurisdiction;

° the association lays down rules of professional conduct applicable to pharmacists and monitors compliance by its members with their professional obligations;

° professional conduct committees, which are part of and whose members are nominated by the association, may impose disciplinary measures such as fines, disqualification as a member of bodies of the association or withdrawal of the right to vote or be elected to those bodies on pharmacists who have infringed professional conduct rules.

2. The application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of Article 30 of the Treaty, so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty.

Article 30 of the Treaty is therefore to be interpreted as not applying to a rule of professional conduct, laid down by a pharmacists' professional body in a Member State, which prohibits all pharmacists within the area over which it has jurisdiction from advertising outside the pharmacy quasi-pharmaceutical products which they are authorized to sell, in so far as that rule, which applies without distinction as to the origin of the products in question, does not affect the marketing of goods from other Member States differently from that of domestic products.

In Case C-292/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Verwaltungsgerichtshof Baden-Wuerttemberg (Federal Republic of Germany) for a preliminary ruling in the proceedings pending before that court between

Ruth Huenermund,

Hermann Douglas,

Heinz Geyer,

Hermann Haake,

Hermann Hauer,

Georg-Dieter Heldmann,

Alexander von Hoffmeister,

Leo Koehler,

Martin Lochner,

Wolfgang Noeldner,

Hans Schneider,

Wolfgang Steffan,

Gerhard Talmon-Gross

and

Landesapothekerkammer Baden-Wuerttemberg,

Party joined to the proceedings: the Vertreter des oeffentlichen Interesses bei den Gerichten der allgemeinen Verwaltungsgerichtsbarkeit in Baden-Wuerttemberg (the Representative of the Public Interest in the courts of general administrative jurisdiction in Baden-Wuerttemberg),

on the interpretation of Articles 30 and 36 of the EEC Treaty,

THE COURT,

composed of: O. Due, President, G.F. Mancini, J.C. Moitinho de Almeida, M. Diez de Velasco and D.A.O. Edward (Presidents of Chambers), C.N. Kakouris, R. Joliet, F.A. Schockweiler, G.C. Rodríguez Iglesias, F. Grévisse, M. Zuleeg, P.J.G. Kapteyn and J.L. Murray, Judges,

Advocate General: G. Tesauro,

Registrar: H. von Holstein, Assistant Registrar,

after considering the written observations submitted on behalf of:

° H. Douglas and others, by A. Bach and F. Oesterle, Rechtsanwaelte, Stuttgart,

° the Landesapothekerkammer Baden-Wuerttemberg, by R. Zuck, Rechtsanwalt, Stuttgart,

° the Vertreter des oeffentlichen Interesses bei den Gerichten der allgemeinen Verwaltungsgerichtsbarkeit in Baden-Wuerttemberg, by H. Fliegauf, Leitender Oberlandesanwalt for the Vertreter des oeffentlichen Interesses,

° the Italian Government, by Professor L. Ferrari Bravo, head of the Department for Legal Affairs of the Ministry of Foreign Affairs, assisted by I.M. Braguglia, Avvocato dello Stato, acting as agents,

° the Commission of the European Communities, by R. Wainwright, Legal Adviser, and A. Bardenhewer, of the Legal Service, acting as agents,

having regard to the Report for the Hearing,

after hearing the oral observations of H. Douglas and others, the Landesapothekerkammer Baden-Wuerttemberg, represented by R. Zuck and by J. Pieck, Rechtsanwalt, Eschborn, the Vertreter des oeffentlichen Interesses bei den Gerichten der allgemeinen Verwaltungsgerichtsbarkeit in Baden-Wuerttemberg, represented by E. Birkert, Regierungsdirektor for the Vertreter des oeffentlichen Interesses, and the Commission at the hearing on 15 September 1993,

after hearing the Opinion of the Advocate General at the sitting on 27 October 1993,

gives the following

Judgment

1 By order of 14 May 1992, received at the Court on 1 July 1992, the Verwaltungsgerichtshof Baden-Wuerttemberg (Higher Administrative Court, Baden-Wuerttemberg, Federal Republic of Germany) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 30 and 36 of the Treaty to enable it to determine whether a rule of professional conduct laid down by the Landesapothekerkammer Baden-Wuerttemberg (the pharmacists' professional association for the Land Baden-Wuerttemberg, hereinafter "the Professional Association") which prohibits pharmacists practising in that Land from advertising outside the pharmacy quasi-pharmaceutical products which they are permitted to sell is compatible with those provisions.

2 That question was raised in proceedings between several pharmacists from Baden-Wuerttemberg and the Professional Association concerning the lawfulness of that rule of professional conduct.

3 According to the documents before the Court, Paragraph 10(15) of the Berufsordnung (Professional Code) of the Professional Association prohibits "excessive advertising" for the non-medicinal products which, under Paragraphs 2(4) and 25 of the Apothekenbetriebsordnung (Rules Governing the Operation of Pharmacies), may be sold in a pharmacy provided that the sales do not affect the proper operation of the dispensary. It is common ground that in practice that provision of the Berufsordnung prohibits all forms of advertising outside pharmacies for quasi-pharmaceutical products.

4 The applicants in the main proceedings, all owners of pharmacies in the Land Baden-Wuerttemberg selling quasi-pharmaceutical products which they would like to advertise outside the pharmacy, brought an action before the Verwaltungsgerichtshof Baden-Wuerttemberg against the Professional Association seeking a declaration that the prohibition of advertising was invalid. Before that court the applicants' main submission was that Paragraph 10(15) of the Berufsordnung was incompatible with Articles 30 and 36 of the Treaty.

5 In those circumstances the Verwaltungsgerichtshof Baden-Wuerttemberg stayed the proceedings in order to refer the following question to the Court:

"Is Article 36, in conjunction with Article 30, of the EEC Treaty to be interpreted to the effect that the provisions of a Berufsordnung (Professional Code) by which a Landesapothekerkammer prohibits pharmacists within its area of competence from advertising outside their pharmacies, even for the purpose of marketing goods commonly sold in pharmacies (1) within the meaning of Paragraph 25 of the Apothekenbetriebsordnung (Rules Governing the Operation of Pharmacies), are justified?"

6 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

Competence of the Court

7 The Professional Association, defendant in the main proceedings, submitted that the question referred was inadmissible on the ground that the Court did not have jurisdiction to rule on the validity under Community law of a national provision.

9 The Professional Association also submitted that by its question the Verwaltungsgerichtshof Baden-Wuerttemberg was merely seeking a view on a hypothetical problem, since it did not hold that a preliminary ruling was necessary for it to give judgment.

10 There is nothing however in the order for reference or the documents before the Court to cast doubt on the genuine nature of the dispute in the main proceedings or on the national court' s assessment of the need for a preliminary ruling to enable it to resolve the dispute before it.

11 The Court is accordingly competent to rule on the question referred by the Verwaltungsgerichtshof Baden-Wuerttemberg.

Article 30 of the Treaty

12 Article 30 prohibits quantitative restrictions on imports, and all measures having equivalent effect, between Member States.

13 The Professional Association submitted first that the professional conduct rule at issue before the national court could not be a "measure" within the meaning of Article 30 of the Treaty since under German law pharmacists' professional associations had no power to strike off as a disciplinary sanction; that sanction could be applied only by the competent authorities of the relevant Land.

14 It is apparent from the order for reference that under German law the Professional Association is a public law body which has legal personality and is regulated by the State; membership is compulsory for all pharmacists practising in the Land Baden-Wuerttemberg. The Professional Association also lays down rules of professional conduct applicable to pharmacists and monitors compliance by its members with their professional obligations. Finally, professional conduct committees, which are part of and whose members are nominated by the Professional Association, may impose disciplinary measures such as fines, disqualification as a member of bodies of the Association or withdrawal of the right to vote or be elected to those bodies on pharmacists who have infringed professional conduct rules.

15 The Court has already held (see the judgment in Joined Cases 266/87 and 267/87 The Queen v Royal Pharmaceutical Society of Great Britain, ex parte Association of Pharmaceutical Importers [1989] ECR 1295, paragraph 15) that measures adopted by a professional body on which national legislation has conferred powers of that nature constitute, if they are capable of affecting trade between Member States, "measures" within the meaning of Article 30 of the Treaty.

16 That ruling is not in any way called in question by the fact that, unlike the professional body to which that judgment relates, the Professional Association concerned in this case is not empowered to revoke the authorization needed by its members to practise.

17 The Professional Association next submitted that the prohibition on advertising challenged before the national court was not a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty since it was not capable of impeding intra-Community trade in quasi-pharmaceutical goods.

18 It is settled case-law that any measure which is capable of hindering, directly or indirectly, actually or potentially, intra-Community trade constitutes a measure having an effect equivalent to a quantitative restriction (judgment in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5).

Costs

25 The costs incurred by the Italian 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.

On those grounds,

THE COURT,

in answer to the question referred to it by the Verwaltungsgerichtshof Baden-Wuerttemberg by order of 14 May 1992, hereby rules:

Article 30 of the EEC Treaty is to be interpreted as not applying to a rule of professional conduct, laid down by the pharmacists' professional body in a Member State, which prohibits pharmacists from advertising quasi-pharmaceutical products outside the pharmacy.