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.

He alleges that the effect of applying the system on the domestic market has been the reduction of the consumption of spirits, the virtual disappearance of distilleries and the development of a very large national brewing industry.

In the appellant's view the effect of the restrictive measures on intra-Community trade may be described as appreciable by reason of the protection conferred on the Belgian brewing industry which to a large extent is safe against competition from foreign spirits in the share of the market in alcohol in general.

The Belgian legislation is accordingly incompatible with Article 30 of the EEC Treaty since the prohibitions laid down by the Law of 1919 are likely to affect imports of spirits from other Member States of the Community and thereby constitute a measure having an effect equivalent to quantitative restrictions according to the case-law of the Court in the judgment of 5 February 1981 in Case 53/80 Koninklijke Kaas/abriek Eyssen BV [1981] ECR 409, paragraph 11.

The incompatibility with Community law of the provisions of the Belgian Law of 29 August 1919 can be avoided only by recourse to Article 36 of the EEC Treaty in so far as that provides that obstacles to intra-Community trade may be justified, as far as is relevant to the questions put to the Court by the Belgian Cour de Cassation on grounds of the protection of health and life of humans.

In the appellant's view the Belgian legislation in question cannot be justified on that ground pursuant to Article 36 of the EEC Treaty. The benefit of the exception to the provisions of Article 30 provided for in Article 36 of the EEC Treaty is applicable only to the adoption of national provisions on grounds of the protection of the health and life of humans today.

On the other hand the Belgian legislation in question owed its origin and justification only to grounds which have ceased to apply.

The appellant observes in that respect that when the Belgian Law of 1919 was adopted it was necessary to deal with certain economic and social conditions which have ceased to exist today by counteracting certain forms of dangers created by alcohol and thus to ensure the protection of the health and wellbeing of families, wives and children.

The reasons which were behind the adoption of the Law at the time are different from those contained in the order making the reference which mentions mainly combating alcoholism in general and in particular its association with crime which is more serious owing to the traffic on the roads.

In the appellant's view the kinds of danger caused by alcohol are today statistically and sociologically identical in all countries and in particular the countries of the Community whether from the point of view of human physiology, public safety by reason of the risks of road accidents or by reason of criminal associations.

Consequently what is universally valid for all the other countries of the Community cannot provide reasons for one of them alone justifying the adoption or maintenance of provisions contrary to Article 30 of the EEC Treaty on the basis of Article 36 thereof.

Neither the special circumstances at the time when the Law in question was adopted in Belgium nor the social and human context of Belgium today make it lawful therefore to have national rules relating to spirits which are so restrictive in relation to the rules of other Member Slates. The universality of the actual conditions relating to the consumption of alcohol in the Community makes disparity between the Belgian national legislation and the laws of othercountries of the Community singular and unacceptable.

Moreover, the appellant in the main proceedings observes in the alternative that the Belgian rules are contran' to the principle of proportionality according to which where a choice is possible between several courses of action to tackle a social problem which is of the same nature throughout the Community the remedy least obstructing trade such as the licensing system should be adopted.

Since it cannot come within the exceptions of Article 36, the Belgian legislation on spirits falls under the prohibition in Article 30 of the EEC Treaty.

With regard to the first question put to the Coun the Belgian Government considers that the Law of 29 August 1919 has no restrictive effect upon intra-Community trade since it makes no distinction between imponed and national products and affects only drinks the strength of which is in excess of 22o at a temperature of 15o C consumed in public places.

In the view of the Belgian Government the system in question is comparable to the systems adopted by other governments for combating alcoholism such as determing the closing time for licensed premises and in the absence of common rules for the market in alcohol is consistent with the interpretation given by the Coun to Article 30. It refers to the judgment of the Court of 20 February 1979 in Case 120/78 Rewe-Zentrale A G v Bundesmonopolverwaltung far Branntwein where it was held that obstacles to movement within the Community resulting from disparities between the national laws relating to the marketing of the products in question (alcohol and spirituous beverages) must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and consumer protection. The same consideration is mentioned again by the Court in Case 788/79 Gilli and Andres.

The Belgian Government maintains that those observations which apply to the ban on the consumption of spirits in places accessible to the public as provided for in Article 1 of the Law of 29 August 1919 apply a fortiori to the ban on keeping spirits in places to which consumers are admitted and other parts of the establishment as well as in any dwelling appurtenant thereto, as provided by Article 2 of the Law. The latter provision is in fact necessary to ensure the effectiveness of the provisions of Article 1 without in itself being capable of impeding intra-Community trade.

The answer proposed by the Belgian Government to the first question put to the Court is therefore that the provisions of Anieles 1 and 2 of the Belgian Law of 29 August 1919 are not in conflict with the prohibition of measures having an effect equivalent to quantitative restrictions as contained in Article 30 of the EEC Treaty.

As regards the second question the Belgian Government considers that the provisions in dispute are in any event covered by Article 36 of the EEC Treaty. It stresses that the provisions aim to meet social imperatives, namely combating alcoholism, the maintenance of public morality and public safety threatened both by road accidents caused by drivers affected by drink and crime caused by alcoholism.

The legislation in dispute not only allows the Belgian State to deal with the quite specific problem of public drunkenness in a way which it considers most effective, like other Member States which have adopted similar measures, but also makes it possible to achieve the objectives referred to in Article 36 of the EEC Treaty. The Belgian Government contends that according to the Coun's consistent case-law at the present stage of European integration the Member States are entitled to maintain or introduce measures meeting the objectives referred to in Article 36 of the Treaty. It refers in particular to the judgment in Case 34/79 Regina v Henn and Darby [1979] ECR 3795 where it was recognized that in principle it is for each Member State to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory (paragraph 15 at p. 3813).

Moreover the Belgian Government stresses that the provisions in question constitute neither arbitran discrimination nor a disguised restriction on trade between Member States. There is no arbitrary discrimination because similar situations are not treated differently since the provisions in dispute concern consumption as such in public places without distinction between the kind of products, the manufacturers, the sellers and importers.

The Belgian Government stresses that to accept the claim that there is a disguised restriction would mean disregarding the nature of the law in dispute, its basic raison d'etre, the conditions in which it was adopted and the reasons at present justifying its continuance. In that respect the Government cites the statement bv the Commission on 27 January 1978 in answer to a question put to it by Mr Cousté recognizing that the provisions in question were lawful, necessary and not disproportionate for attaining the objectives pursued by the Belgian Government; further there is no discrimination between domestic products and products imported from other Member States. The same is true of the European Commission of Human Rights which recognized the validity of Article 2 of the Law of 29 August 1919 from the point of view of the Convention for the Protection of Human Rights.

In conclusion the Belgian Government proposes the following answer to the second question:

The provisions of Article 1 and 2 of the Belgian Law of 29 August 1919 must be regarded as justified having regard to the provisions of Article 36 of the EEC Treaty.

There would however be a different conclusion if it is considered that the prohibitions apply both to domestic and foreign products and are justified by the aim of protecting an overriding general interest of a kind prevailing over the requirements of a single market or by the grounds set out in Article 36 and in particular those relating to the protection of human health.

In that respect the French Government states that the solution to problems of voluntary intoxication or dependence on drugs is to restrict the availability of a product and to change public behaviour in order to reduce demand as was concluded by the Community deliberations conducted since November 1977 in liaison with the World Health Organization and the International Council on Alcohol and Addictions.

The French Government observes that in the deliberations it was stressed that among the courses of action by States with regard to the prevention of alcoholism there is mention of legislative measures the content of which may vary at the discretion of each country. Thus the French Government, among other measures opted for restricting the availability of alcoholic drinks by limiting the number of places where they were served.

The French Government therefore considers that the Belgian legislative measures are neither a means of arbitrary discrimination nor a disguised restriction on trade between Member States and that, regard being had to the facts mentioned in the order making the reference, the measures are intended to satisfy essential requirements and as such entitled to exemption from the obligations under Article 30 of the EEC Treaty.

In support of that conclusion the French Government cites Directive 70/50/EEC of 22 December 1969 and the grounds of certain judgments of the Court and in particular those given in Cases 120/78 Cassis de Dijon and 788/79 Criminal Proceedings against H. Gilli and P. Andres.

In the submission of the United Kingdom, the Belgian Law of 29 August 1919 falls within the prohibition laid down in Article 30 of the EEC Treaty. The ban on the sale of drinks which have an alcoholic content of more than 22o has the effect of reducing their potential sales. Belgium is moreover a maįor producer of beer but not an important producer of spirits. The Law thus favours products of which there is a substantial local production. It impedes competition from imported products and has an adverse effect on intra-Community trade.

The United Kingdom also considers that the measures provided for by the Belgian Law involve discrimination against spirit producers in other Member States whose internationally established brands are impeded from entering the Belgian market, whereas local producers can easily adapt themselves to the law of their own country by producing spirits for their domestic market below 22' , and in practice have done so.

The United Kingdom maintains that the tests laid down by the Court in a number of recent cases and reaffirmed in its judgment in Case 113/80 Commission v Ireland have established that the maintenance of the Belgian Law can be justified only if the Law is necessary in order to satisfy mandatory requirements relating (for present purposes) to the protection of public health.

It submits that the Belgian Law is not capable of such justification in the absence of medical evidence to demonstrate that:

The consumption of a given quantity of alcohol in the form of spirit of a strength of over 22o is more damaging to health than the consumption of the same quantity of alcohol consumed in a more diluted form in products of a strength below 22o by volume;

Finally, it is necessary to inquire whether the disputed Law has been diverted from its proper purpose and is being used in such a way as either to create discrimination in respect of goods originating in other Member States or indirectly to protect certain national products (Case 34/79 Regina v Henn and Darby, paragraph 21 of the judgment).