EU Law Blog

Internet Sales, DVDs, Censorship and the Free Movement of Goods: Case C-244/06

Here's a neat judgment of the Court of Justice on the free movement of goods. The case concerns the censorship and classification of videos and DVDs sold by mail order and over the internet. The judgment is a neat one because it is a sort of quick and thorough revision course on the case law on the free movement of goods !

All European countries engage in fairly strict censorship and classification of films, videos and DVDs, basically because freedom of expression is a largely unprotected right. German law requires that all videos and DVDs that may be sold to children and young people must be authorized and appropriately labelled by an officially recognized public authority or voluntary organization.

The judgment in Case C-244/06 Dynamic Medien Vertriebs GmbH v. Avides Media AG concerned the sale in German of Japanese "Anime" DVDs by a German company, Avides Media, over the internet. The DVDs offered for sale by Avides Media came from the United Kingdom (where the choice is greater) and had been vetted by the British censors but not by the German authorities. Dynamic Medien, a competitor of Avides Media, brought proceedings in the German courts to prevent Avides Media from offering for sale DVDs that had not been vetted and marked by the German authorities.

The German court asked the Court of Justice whether the principle of free movement of goods laid down in Article 28 EC precludes the German law prohibiting the sale by mail order of DVDs and videos that are not labelled as having been vetted by the German authorities as to their suitability for young people. The German court also asked whether the German prohibition could be justified under Article 30 EC.

The Court of Justice held, in the first place, that the German rules constitute a measure having equivalent effect to quantitative restrictions within the meaning of Article 28 EC, which in principle is incompatible with the obligations arising from that article unless it can be objectively justified.

The Court recalled that all trading rules enacted by member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions and are, on that basis, prohibited by Article 28 EC (see, inter alia, Case 8/74 Dassonville, paragraph 5, Case C-420/01 Commission v. Italy, paragraph 25, and Case C-143/06 Ludwigs-Apotheke, paragraph 26).

The German measures in question were not deigned to regulate trade between Germany and other member States. But the Court also recalled the important issue is the effect of those measures may have on intra-EC trade. By virtue of that factor, absent any harmonization of national legislation, obstacles to the free movement of goods which are the consequence of applying, to goods coming from other member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods constitute measures of equivalent effect (such as those relating to designation, form, size, weight, composition, presentation, labelling or packaging), even if those rules apply to all products alike, unless their application can be justified by a public-interest objective taking precedence over the requirements of the free movement of goods (see, Case 120/78 Rewe-Zentral ('Cassis de Dijon'), paragraphs 6, 14 and 15; Case C-368/95 Familiapress, paragraph 8; and Case C-322/01 Deutscher Apothekerverband, paragraph 67). The Court has also treated as measures having equivalent effect, prohibited by Article 28 EC, national provisions making a product lawfully manufactured and marketed in another member State subject to additional controls, save in the case of exceptions provided for or allowed by Community law (see, Case C-390/99 Canal Satélite Digital, paragraphs 36 and 37, and Case C-14/02 ATRAL, paragraph 65).

It was debated before the Court whether the German rules on censorship were selling arrangements within the meaning laid down by the Court in its judgment in Joined Cases C-267/91 and C-268/91 Keck and Mithouard, paragraph 16. The Court concluded in this case that the German rules on censorship do not constitute a selling arrangement within the meaning of Keck and Mithouard and the subsequent cases. It recalled that in paragraph 15 of its judgment in Case C-391/92 Commission v Greece that rules restricting the marketing of products to certain points of sale, and having the effect of limiting the commercial freedom of economic operators, without affecting the actual characteristics of the products referred to, constitute a selling arrangement. Therefore, the need to adapt the products in question to the rules in force in the member State in which they are marketed prevents the German requirements from being treated as selling arrangements (see Canal Satélite Digital, paragraph 30). That is the case, inter alia, with regard to the need to alter the labelling of imported products (see, Case C-33/97 Colim, paragraph 37, and Case C-416/00 Morellato, paragraphs 29 and 30).

The Court then considered whether the German measures could be justified as being necessary to protect young people, being an objective linked to public morality and public policy recognized as grounds for justification in Article 30 EC.

The Court held that the German measures were so justified.

It recalled that the protection of the rights of the child is recognized by various international instruments which the Member States have cooperated on or acceded to, such as the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations and entered into force on March 23rd 1976, and the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on November 20th 1989 and entered into force on 2nd September 1990. The Court has already pointed out that those international instruments are among those concerning the protection of human rights of which it takes account in applying the general principles of Community law (see, inter alia, Case C-540/03 Parliament v Council, paragraph 37). Under Article 17 of the Convention on the Rights of the Child, the States Parties recognize the important function performed by the mass media and are required to ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. Article 17(e) provides that those States are to encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being.

The Court pointed out that the protection of the child is also enshrined in the Charter of fundamental rights of the European Union, Article 24(1) of which provides that children have the right to such protection and care as is necessary for their well-being (see, Parliament v Council, paragraph 58).

Nevertheless, the Court recalled that the German system of the examination of the DVDs and videos must be proportionate in the sense that it must be readily accessible, can be completed within a reasonable period, and, if it leads to a refusal, the decision of refusal must be open to challenge before the courts (see, Case C-344/90 Commission v France, paragraph 9, and Case C-95/01 Greenham and Abel, paragraph 35). It concluded that while it seemed prima facie that the German system was proportionate, the national court must examine whether it is in fact proportionate.

Cosmetics, Free Movement and Harmonization Directive: Case C-257/06

The Court of Justice handed down a neat judgment in Case C-257/06 Roby Profumi SrL v. Comune di Parma dealing with the relationship between a directive that harmonizes the law completely and the free movement provisions of the EC Treaty.

That's sometimes an issue that is obscured in certain student text books but which is of great practical importance.

The judgment in Case C-257/06 concerned the obligation imposed by Italian law on the importer of cosmetic products to provide the requisite national authorities with certain information on the products and their manufacturers.

The referring national court asked whether such obligations were compatible with Article 28 EC as well as with Directive 76/768.

The Court recalled that Directive 76/768 provided exhaustively for the harmonization of national rules on the packaging and labeling of cosmetic products (see, inter alia, Case C-77/97 Unilever, paragraph 24; Case C-220/98 Estée Lauder, paragraph 23, and Case C-99/01 Linhart and Biffl, paragraph 17). Consequently, when the question referred concerns harmonization at the EC level, the national measures relating thereto must be assessed in the light of the provisions of that harmonizing measure and not those of the EC Treaty (see, Case C-150/88 Eau de Cologne & Parfümerie-Fabrik 4711, paragraph 28; Case C-37/92 Vanacker and Lesage, paragraph 9, and Case C-324/99 DaimlerChrysler, paragraph 32).

Oh, and by the way, the Court held that the Italian obligations were compatible with Directive 76/768.

Garlic, Food Supplements, Public Health and Free Movement of Goods: Case C-319/05

Garlic is good for you and vampires hate it.

That's why Germany classified garlic preparations in capsules as a medicinal product within the meaning of Directive 2001/83/EC on the Community code relating to medicinal products. The consequence of such a classification is that the product cannot be placed on the market without a marketing authorization which is granted after pharmacological tests have been carried out. And they probably can only be sold in pharmacies.

The Commission considered that the garlic preparations in question should not be classified as a "medicinal product" and that the consequence of that classification is to impose a burden on importers of the product in Germany amounting to a restriction on the free movement of goods contrary to Article 28 EC. Consequently, the Commission took Germany to Court.

And won. The Court of Justice held in Case C-319/05 Commission v. Germany that Germany had classified the product wrongly as a medicinal product thereby imposing a restriction on the free movement of goods prohibited by Article 28 EC.

The Court then turned to the question of whether the German measure was justified for reasons relating to the protection of public health in accordance with Article 30 EC. The Court held that there was no public health justification for such a measure.

The judgment examines how the public health exception works. It recalls that it is for the member States, in the absence of harmonization and to the extent that uncertainties continue to exist in the current state of scientific research, to decide on their intended level of protection of human health and life. The member States also decide on whether to require prior authorization for the marketing of foodstuffs but they must take into account the requirements of the free movement of goods within the EC (Case 174/82 Sandoz, paragraph 16, and Joined Cases C-158/04 and C-159/04 Alfa Vita Vassilipoulos and Carrefour-Marinopoulos, paragraph 21). When they exercise their discretion in taking measures to protect public health, the member States must comply with the principle of proportionality: They must confine their measures to what is actually necessary to ensure the safeguarding of public health; they must be proportional to the objective thus pursued, which could not have been attained by measures which are less restrictive of intra-EC trade (see Sandoz, paragraph 18, Case C-192/01 Commission v. Denmark, paragraph 45; and Case C-24/00 Commission v. France, paragraph 52).

In this case the Court found that Germany, instead of making the garlic pills subject to such an authorization procedure, could have prescribed suitable labelling to warn consumers of the potential risks related to taking this product. The protection of public health would thus have been ensured without such serious restrictions on the free movement of goods (see, to that effect, Case C-17/93 van der Veldt, paragraph 19).

Wondering why take garlic capsules when you can chew on the real thing ? The capsules are better if you want intimate moments with someone you are not yet intimate with. So a trip to the pharmacy is recommended in any event.

Charges equivalent to a customs duty: Case C-173/05

This kind of case is pretty rare. You don't find many charges equivalent to a customs duty these days.

But in its judgment in Case C-173/05 Commission v. Italy, the Court of Justice held that a tax imposed by the Sicilian authorities on gas pipelines was a charge having equivalent effect to a customs duty prohibited by Articles 23 and 25 EC.

The local authorities in Sicily instituted a tax on the ownership of gas pipelines that carried gas from Algeria up into mainland Italy. The tax was ostensibly an "environmental tax". The catch in this case was that the tax was payable only when gas actually present in the pipeline. Consequently, the Court held that the Sicilian tax is a charge levied on goods (the gas) imported from a non-member country (Algeria) for distribution and consumption in Italy or in transit to other member States.

The Court also held that the Sicilian tax was contrary to Article 133 EC and to Article 9 of the Cooperation Agreement between Algeria and the EC.

Swedish alcohol monopoly takes a blow: Case C-170/04

The Court of Justice has handed down a judgment in Case C-170/04 Klas Rosengren and others v. Riksåklagaren which restricts the scope of the Swedish retail alcohol monopoly. The judgment deals with just one aspect of the monopoly - the importation of drinks by private individuals - and does not deal with the very existence of the monopoly itself.

The story goes like this. According to the Swedish Law on alcohol, retail sales of booze in Sweden are carried out under a monopoly held by Systembolaget. Only Systembolaget and wholesalers authorised by the State may import alcoholic beverages. Private individuals are prohibited from importing booze. If a person wants to import alcohol from another member State, that person must do so exclusively through Systembolaget. Systembolaget is required to obtain any alcoholic beverage on request at the consumer’s expense, provided that it sees no objection to doing so.

Klas Rosengren and several other Swedes ordered cases of bottles of Spanish wine by correspondence. The wine was imported into Sweden, without being declared to customs, by a private transporter. The wine was then confiscated by the Swedish customs authorities. Mr Rosengren and the others were charged with the criminal offense of unlawful importation of alcoholic beverages.

The Swedish Supreme Court asked the Court of Justice whether the provisions of the Swedish legislation are compatible with Community law, in particular with the principle of free movement of goods guaranteed by the Treaty.

The Court cut straight to the chase and held that the Swedish rules on importation of booze must be assessed in the light of the EC provisions on the free movement of goods (Article 28 EC) and not in the light of the specific provisions relating to State monopolies (Article 31 EC), since the latter apply only to rules relating to the existence or operation of monopolies (see Case C-189/95 Franzén. The importation of alcoholic beverages is not the specific function assigned to the monopoly by the Law on alcohol, which rather confers on the monopoly the exclusive right to retail sales of alcoholic beverages in Sweden.

The Court held that the Swedish rules on importation constituted a clear quantitative restriction on the free movement of goods. Even though the Systembolaget could not in principle refuse to import on the request of individual, by forcing consumers to address themselves to the monopoly body, the law imposed on them a variety of inconveniences with which they would not be faced if they imported the beverages themselves. The Court also noted that the price charged by the Systembolaget to consumers included all manner of extras which would not have been charged in the event of a direct import.

The Court then went on to examine whether the restriction could be justified. It held that it could not be justified. In particular, it held that the prohibition of importation must be considered unsuitable for attaining the objective of protecting the health and life of persons and was clearly disproportionate to the goal of protecting young people because it applied to all, regardless of age.

Public statements, obstacles to trade and state liability: Case C-470/03

The Court of Justice recently handed down an important judgment in an intriguing case. In Case C-470/03 A.G.M.-COS.MET Srl v. Suomen valtio, Tarmo Lehtinen the issue raised was whether a public statement by a civil servant could constitute an obstacle to the free movement of goods within the meaning of Article 28 EC.

In this case, an official of a Finnish government department made public statements to the effect that an identified type of vehicle lift manufactured in Italy was defective and should not be placed on the market.

The Court held that the matter of the free movement of vehicle lifts was governed by Directive 98/37/EC on the approximation of the laws of the Member States relating to machinery and not by Article 28 EC. The Court stated that Directive 98/37/EC carried out exhaustive harmonization at EC level of the rules on the free movement of machinery and consequently the Treaty provisions on the free movement of goods and in particular Article 28 EC did not apply but those of the Directive did (see Case C-309/02 Radlberger Getränkegesellschaft and S. Spitz at paragraph 53).

That point is of great practical importance but overlooked by many academic texts. But that is a digression...

The Court held that a statement made publicly by a civil servant, even though the statement carried no legal force, can constitute an obstacle to the free movement of goods prohibited by Directive 98/37/EC (and by Article 28 EC if applicable) if the addressees of the statement understand it to reflect the official position taken by the State.

As a consequence, the member State may be liable in damages to compensate for the loss and damage caused by the statements of the civil servant. The Court adds that EC law does not preclude but does not require that the individual civil servant being personally liable in addition to the State.

Tobacco advertising ban, harmonization and the internal market: Case C-380/03

The Court of Justice handed down an interesting and important judgment on using Article 95 EC as the legal basis for prohibiting tobacco advertising. In its judgment in Case C-380/03 Germany v. European Parliament and Council, the Court upheld the legality of two key provisions of Directive 2003/33/EC.

The judgment is both a classic one and a bit of surprise. Here's why.

Germany had been successful back in 2000 in its attempt to have annulled Directive 98/43/EC on the advertising and sponsorship of tobacco products. The Court annulled Directive 98/43/EC by its judgment in Case C-376/98 Germany v. Parliament and Council. That was quite a complicated judgment but to simplify it outrageously, the Court had held that Article 95 EC (Article 100a EC as it was numbered at the time) could not be used as a legal basis for the outright ban of certain forms of tobacco advertising.

Then the European Parliament and Council adopted Directive 2003/33/EC to replace Directive 98/43/EC that had been annulled.

So Germany had a go at annulling the new Directive in Case C-380/03. And this time it failed.

In Case C-380/03 Germany sought the annulment of two articles prohibiting:
(i) the advertising of tobacco products in the press and other printed publications, in information society services and in radio broadcasts and
(ii) the sponsorship of radio programmes by tobacco companies. Only publications intended for professionals in the tobacco trade and publications from non-member countries which are not principally intended for the Community market are exempted.

Germany claimed that those prohibitions could not be adopted on the basis of Article 95 EC. That provision allows the EC to adopt measures for the approximation of national provisions which have as their object the establishment and functioning of the internal market. But Germany claimed that neither of the two prohibitions in the new Directive contributes to eliminating obstacles to the free movement of goods or to removing appreciable distortions of competition and consequently the conditions justifying recourse to Article 95 EC were not met.

This time round, the Court of Justice dismissed the action by Germany and held that Directive 2003/33/EC was validly based on Article 95 EC.

The Court found that at the time of the Directive’s adoption, disparities existed between national rules on advertising and sponsorship in respect of tobacco products which justified action by the Community legislature. Those disparities were such as to impede the free movement of goods and the freedom to provide services. They also meant that there was an appreciable risk of distortions of competition(see Joined cases C-154/04 and C-155/04 Alliance for Natural Health and others at paragraph 30). The Court also held that held that, provided that the conditions for recourse to Article 95 EC as a legal basis are fulfilled, the Community legislature cannot be prevented from relying on that legal basis on the ground that public health protection is a decisive factor in the choices to be made (see Joined cases C-154/04 and C-155/04 Alliance for Natural Health and others at paragraph 31).

Interestingly, the Court held that the different national measures prohibiting or restricting the advertising of tobacco products are liable to impede access to the market by products from other Member States more than they impede access by domestic products. It also held that such measures restrict the ability of undertakings established in the member States where they are in force to offer advertising space in their publications to advertisers established in other member States, thereby affecting the cross-border supply of services (see, to this effect, Case C-405/98 Gourmet International Products, paragraphs 38 and 39).

In contrast to its judgment in Case C-376/98, the Court held in this case that because of the disparities in national laws likely to affect trade between member States, the EC could "approximate" national law on the basis of Article 95 EC by definitively prohibiting the marketing of the product in question.

The Court took the precaution of stating:

"Recourse to Article 95 EC as a legal basis does not presuppose the existence of an actual link with free movement between the Member States in every situation covered by the measure founded on that basis. As the Court has previously pointed out, to justify recourse to Article 95 EC as the legal basis what matters is that the measure adopted on that basis must actually be intended to improve the conditions for the establishment and functioning of the internal market (see, to this effect, Joined Cases C-465/00, C-138/01 and C-139/01 Österreichischer Rundfunk and Others, paragraphs 41 and 42, and Case C-101/01 Lindqvist, paragraphs 40 and 41).

For other cases on the use of Article 95 EC see our previous posts here and here.

Booze trips and excise duty: Case C-5/05

Excise rates on booze and smokes vary a great deal between member States of the EU. So, when living in a high excise duty country (like the Netherlands or the United Kingdom) it is important to either go to a low excise duty country or have a friend who is going there to replenish the stocks. Council Directive 92/12/EEC as amended by Council Directive 92/108/EEC of 14 December 1992 exempts products acquired by private individuals for their own use and transported by them from excise duty in the Member State of importation.

Now, the Court of Justice has given a fairly restrictive interpretation of "own use" in its judgment in Case C-5/05 Joustra.

What happened was this. 70 Dutchmen (and women too) formed a group appropriately called the ‘Cercle des Amis du Vin’. Each year, on behalf of the circle, Mr Joustra orders wine in France for his own use and that of the other members of the group. On his instructions, that wine is then collected by a Dutch transportation company which transports it to the Netherlands and delivers it to Mr Joustra’s home. The wine is stored there for a few days before being delivered to the other members of the circle. Mr Joustra pays for the wine and the transport and each member of the group then reimburses him for the cost of the quantity of wine delivered to that member and a share of the transport costs calculated in proportion to that quantity. Mr Joustra does not engage in that activity on a commercial basis or with a view to making a profit. But he has a lot of friends. The wine ordered by Mr Joustra was released for consumption in France and excise duty was paid there. The quantity of wine delivered to each member of the group did not exceed the maximum quantities laid down by the Directive as a guideline for determining whether the products are intended for commercial purposes, namely 90 litres of wine, of which no more than 60 litres may be sparkling wine.

The Dutch tax authorities spoiled the fun and levied excise duty of EUR 906.20 on that wine. Mr Joustra disputed liability for that excise duty. In his opinion, the words ‘transported by them’ in the Directive do not prevent it from being interpreted as meaning that the charging of excise duty in the Member State of destination is precluded where a private individual himself purchases, in another member State, products subject to excise duty and arranges for those products to be transported, under his instructions and on his account, to the member State of destination by a third party, the Dutch transporter.

The Court was having none of that. It held that the Directive requires that those products be intended for the personal use of the private individual who has acquired them and that it therefore excludes products acquired by a private individual for the use of other private individuals. Furthermore, the products in question must be transported personally by the private individual who purchased them. Were this not so, the effect, for the competent authorities of the member States, would be an increased risk of fraud as the transport of products covered by the exemption requires no documentation.

So, carry your own booze next time, right ?

Free movement, import licenses and alcohol: Case C-434/04

This neat case recapitulates how a system of import licenses is dealt with under the provisions of the EC Treaty on the free movement of goods.

In its judgment in Case C-434/04 Jan-Erik Anders Ahokainen and Mati Leppik the Court of Justice held that the requirement to hold an import license before importing ethyl alcohol into Finland was caught by the prohibition of measures equivalent to quantitative restrictions on trade between member States prohibited by Article 28 EC but can be justified on grounds of public health provided for in Article 30 EC.

Finnish law required a license before importing ethyl alcohol. Anyone importing the booze without a license was criminally liable for smuggling. Mr Ahokainen and Mr Leppik were caught by Finnish customs importing ethyl alcohol from Germany which had been wrongly declared as sesame oil (of all things). During the course of national proceedings, they raised the issue whether the Finnish system of import licenses was compatible with EC law.

The Court recalled its classic case law according to which all trading rules enacted by member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade must be considered to be measures having an effect equivalent to quantitative restrictions and are thus prohibited by Article 28 EC (see, in particular, Case 8/74 Dassonville paragraph 5; Case C‑420/01 Commission v Italy, paragraph 25; and Case C‑20/03 Burmanjer and Others, paragraph 23). Even rules applied without distinction to domestic and imported products, the application of which to imported products is likely to reduce their sales volume, constitute in principle measures having equivalent effect prohibited by Article 28 EC (see, in particular, Case 120/78, Rewe-Zentral, ‘Cassis de Dijon’).

As for a system of import licenses, such a system is in principle contrary to Article 28 EC, which precludes the application in intra-Community trade of national provisions which require, even as a pure formality, import licences or any other similar procedure (Case 124/81 Commission v United Kingdom, paragraph 9, and Case C‑304/88 Commission v Belgium, paragraph 9; see also Case C‑212/03 Commission v France, paragraph 16, and Case E-1/94 Restamark, paragraphs 49 and 50.) Imposing formalities for importation can hinder intra-Community trade and impede access to the market for goods which are lawfully produced and marketed in other member States. The restriction is even greater if the system adds to the costs of those goods (see, in particular, Case C‑189/95 Franzén, paragraph 71). In that case there is more than a ‘mere’ restriction or prohibition of certain selling arrangements.

Consequently, the Court held that the Finnish import license system in question was contrary to Article 28 EC.

As for the justification of the system under Article 30 EC, the Court recalled the principle that the measure in question must be proportionate to the objective to be achieved and must not constitute a means of arbitrary discrimination or a disguised restriction on trade between member States.

The Court held that there was no evidence before it that the grounds of health and public policy relied on by the Finnish authorities had been diverted from their proper purpose and used to discriminate against goods originating in other member States, or indirectly to protect certain national products (Case 34/79 Henn and Darby, paragraph 21, as well as Joined Cases C‑1/90 and C‑176/90 Aragonesa de Publicidad Exterior and Publivía, paragraph 20).

As to the issue of proportionality of the measure, since it concerns an exception to the principle of the free movement of goods it is for the national authorities to demonstrate that their rules are consistent with the principle of proportionality: That they are necessary to achieve the declared objective, which in the present case is the protection of public health and public order, and that this objective could not be achieved by less extensive prohibitions or restrictions, or by prohibitions or restrictions having less effect on intra-Community trade (see, Case C‑17/93 Van der Veldt , paragraph 15, as well as Franzén, paragraphs 75 and 76).

What is a bit confusing in the judgment is that the Court, in its formal answer to the referring Finnish court, runs together the answers in respect of both Article 28 EC and Article 30 EC. That leads to the impression that the measure in question could be regarded as outside the scope of Article 28 EC. That is certainly not the case a the Court's reasoning shows. The Advocate General's learned and humorous opinion formulates an answer in a more orthodox way.

Free movement of goods, doorstep sales and Case C-441/04

What's up with the Court of Justice these days ? The judgments are just not coming out in English anymore.

Anyway, if you want to read a neat, classic case on the free movement of goods (and practice your French), then go for Case C-441/04 A-Punkt Schmuckhandel.

The facts were simple enough. Austrian law prohibits the sale of and taking of orders for all sorts of stuff at private homes. The list of stuff that could not be sold that way included jewelry. But then Frau Schmidt, a German trader, organized a "jewelry party" - a bit like a "tupperware party" - at someone's house. Not amused, A-Punkt, a competitor, sued her and tried to get an injunction preventing her from organizing more such parties. But the indomitable Frau Schmidt countered that what she did was perfectly legal in Germany where she came from and that the Austrian prohibition was itself contrary to Article 28 EC.

So, was it ?

The Court held it was not, in principle. Because direct sales at someone's home were a "selling arrangement" as defined by Joined cases C-267/91 and C-268/91 Keck and Mithouard and Case C-20/03 Burmanjer. Consequently, the Austrian restriction on doorstep sales did not come within the ambit of the prohibition contained in Article 28 EC provided it applied to all traders in Austria and affected all goods equally, whether of foreign or of indigenous origin. It was left to the referring court to check that that was the case.

For good measure, the Court added that the mere fact that the Austrian law would have the effect of decreasing consumption of the goods in question was insufficient to bring that law within the ambit of Article 28 EC (see, Joined cases C-418/93, C-419/93, C-420/93, C-421/93, C-460/93, C-461/93, C-462/93, C-464/93, C-9/94, C-10/94, C-11/94, C-14/94, C-15/94, C-23/94, C-24/94 and C-332/94 Semarero Casa Uno.