Opinion of Mr Advocate General Darmon delivered on 29 November 1988. - Commission of the European Communities v Federal Republic of Germany. - Free movement of goods - Ban on the importation of meat products which do not comply with German rules. - Case 274/87.



European Court reports 1989 Page 00229



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . The legislation of the Federal Republic of Germany provides that meat products may be imported only if they comply with the standards laid down in the Fleisch-Verordnung, a federal regulation of 21 January 1982 governing meat . Is the consequent ban on the importation of products lawfully manufactured and marketed in another Member State but not meeting the requirements of the German standards contrary to Article 30 of the EEC Treaty? That is the question which the Court must decide in this action brought by the Commission for a declaration that the Federal Republic of Germany has failed to fulfil its obligations .

2 . The question is raised at a time when the Court' s case-law, especially its more recent case-law, has clearly defined the scope of the justifications and derogations which Member States may put forward to rebut a charge that they have infringed Article 30 . In the field of foodstuffs - liquid or solid - the Court' s recent decisions in cases dealing with beer, ( 1 ) milk substitutes ( 2 ) and pasta products ( 3 ) spring immediately to mind .

3 . The purpose of the standards contained in the Fleisch-Verordnung is to prohibit the sale of meat products containing certain ingredients other than meat, subject to exceptions for specified products the composition of which is defined, with a requirement, in certain cases, for specific information to be given on the packaging or displayed on signs .

4 . The Court' s consideration of the present case will involve only an assessment of the justifications and derogations put forward by the Federal Republic of Germany . It is undisputed that the German legislation has a restrictive effect on imports . The Federal Republic does not deny that its legislation excludes from the German market products which have been lawfully manufactured and marketed in other Member States, and therefore does not object to its description as a measure having an effect equivalent to a quantitative restriction on imports . It endeavours to demonstrate, however, that the reasons underlying the measure are such that it cannot be held to be a breach of the principle of the free movement of goods . This Opinion will therefore be devoted exclusively to a consideration of those reasons .

5 . The Federal Republic has put forward arguments based on, in turn, the protection of health, the protection of consumers and the protection of national economic operators, and on certain mandatory requirements relating to the common agricultural policy .

I - Protection of health

6 . The defendant State claims, first of all, that the contested provisions are intended to ensure an adequate supply of certain essential nutrients which are contained in meat, particularly proteins, iron and thiamine . According to official reports referred to by the German Government, meat consumption is not adequate even today in certain groups of the population . The aim of ensuring adequate meat consumption in Germany could not be achieved if ingredients other than meat were generally authorized, which would allow the distribution of products which were both cheaper - and thus more attractive - and poorer in essential nutrients .

7 . The Commission considers that those arguments are not well founded . In its view, meat consumption in the Federal Republic of Germany has increased considerably since the 1960s and is now such that internationally recommended protein intake levels have been partially exceeded . In those circumstances, and in view of the fact that the protein needs of the German population are met mainly by fresh meat, the slight changes in the composition of meat products prohibited by the contested provisions would have practically no effect on public nutrition or health .

8 . Let me say at the outset that I am no more convinced than the Commission by the arguments of the German Government .

9 . It should first be observed that the situation of the German population as regards protein availability does not appear to be as critical as the Federal Republic has made out . According to a report on nutrition published by the German Government in 1980, "average protein intake meets the recommended quantity of 0.9 g per kg per day ". However, the report mentions that the situation "differs greatly according to age group . While all adults of both sexes are more likely to exceed the recommended quantities, young people tend, almost without exception, to fall slightly short of the recommended quantities and this tendancy is even quite marked in the 13 - to 14-year-old age group ". But it then goes on to state : "Recommended levels, however, particularly those for proteins, are set with such high safety margins that the lower protein intake found in the case of young people does not pose a threat to growth or health ". Finally, after noting that substances commonly found in the presence of proteins, essentially purine, cholesterol and saturated fatty acids, can be harmful to health, it states that "any further increase in the consumption of meat and meat products by adults should be viewed critically ". ( 4 )

10 . Furthermore, the report on nutrition published by the German Government in 1984 points out that meat and meat products are also important as a source of thiamine, riboflavin, niacin and iron, and then goes on to state that "their contribution to human nutrition lies not only in the proteins and other essential nutrients which they contain but also in their fats and, moreover, ... they contain variable quantities of cholesterol and purine" and, in the case of meat products, "especially certain sausages ... appreciable quantities of salt ". The report' s conclusion is therefore that "it is not desirable that the consumption of meat or fatty meat products in human nutrition should increase ". ( 5 )

11 . Those conclusions reached by official reports on nutrition in the Federal Republic of Germany prompt a number of remarks .

12 . First, the nutritional situation of the German population, viewed as a whole or in groups identified according to age or sex, does not appear to be one of danger or even one merely giving cause for concern . Were that not so, the two official reports would not have both come to the conclusion that an increase in the consumption of meat or meat products was not nutritionally desirable . Consequently, it does not appear to be necessary, on health grounds, to limit the proportion of ingredients other than meat in meat products . From that point of view alone, I do not believe that the ban on imports of meat products whose ingredients other than meat do not comply with the requirements of the Fleisch-Verordnung can be related to the aim of protecting public health sufficiently closely for the purposes of Article 36 of the Treaty .

13 . That impression is strengthened by a further observation . Both reports emphasize that not all the substances contained in meat and meat products are beneficial and that an increase in their consumption would lead to an increasd intake of purines, cholesterol and fats which might be excessive from the point of view of healthy nutrition . That means that the desire not to see any decrease in the proportion of meat ingredients in meat products which underlies the contested legislation does not appear to be totally without risk to consumers' health .

14 . In my view, those observations cast doubts on the need for, and even the usefulness of, the national measure in question as far as the protection of the health of the German population is concerned . Such doubt can but be strengthened by a scrutiny of one of the Court' s most recent decisions .

15 . In the present case, the German Government has put forward arguments comparable in some respects to those of the French Government in the judgment of 23 February 1988 in Case 216/84 Commission v France . ( 6 ) With regard to legislation prohibiting the importation and sale of substitutes for milk powder and concentrated milk, which the French Government endeavoured to justify, inter alia, on grounds of the protection of public health, by the lower nutritional value of the substitutes, the Court held that

"a Member State may not invoke public health grounds in order to prohibit the importation of a product by arguing that its nutritional value is lower or its fat content higher than another product already available on the market in question",

and went on to state that :

"It is plain that the choice of foodstuffs available to consumers in the Community is such that the mere fact that an imported product has a lower nutritional value does not pose a real threat to human health ". ( 7 )

16 . The Court thus answered the question concerning the extent to which the aim of protecting health may be relied on in the case of certain products, not because they are harmful but because their nutritional value is lower . In answering that question it followed a line of reasoning which, in my view, can be transposed directly to the circumstances of the present case . The fact that meat products manufactured in other Member States contain less meat, and thus lesser quantities of animal proteins, thiamine and other essential substances, does not, in my view, constitute a more real threat to human health than that alleged in relation to milk substitutes, since if those meat products were imported, German consumers would still have the choice of fresh meat, which provides an optimum supply of proteins and other essential substances, or national products containing a higher proportion of meat . A sufficient proportion of essential substances in the nutrition of any groups considered to be "vulnerable" could be ensured by that possibility of choice .

17 . Those observations lead me, therefore, to consider that the German legislation cannot be held to be "necessary for the effective protection" ( 8 ) of human life and health, to use the wording which has become traditional at the Court' s decisions, and that the Federal Republic' s arguments on that point must be dismissed, without there being any need to attempt a comparison between the relative virtues of animal and vegetable proteins, or to determine, at this stage, whether measures less restrictive of intra-Community trade might have been envisaged .

II - Consumer protection

18 . The Federal Republic of Germany also claims that the legislation at issue is based on mandatory requirements relating to consumer protection . Paragraphs 4 and 5 of the Fleisch-Verordnung are, it claims, measures which are appropriate to ensure that the consumer is not misled, in view of the fact that "as a result of habits which date back several decades", ( 9 ) the German consumer "assumes that products purchased under a trade description representing them as a meat product are composed only or essentially of meat ". ( 10 ) In the absence of harmonization, which is, in the German Government' s view, the only appropriate means of dealing with the problems posed by the protection of consumers against misleading information or practices, the German legislation, which cannot be interpreted as an absolute ban on importation since it allows for exceptions under certain specified conditions, lays down appropriate rules for providing such protection . The extreme diversity of meat products available in the 12 Member States makes it impossible to resort to less restrictive measures regulating the marking of the products in question .

19 . The Commission considers that in adopting its position on consumer protection the defendant State is in fact putting forward two arguments - one relating to national quality policy and the other to the need to counteract misleading practices regarding the description and composition of meat products .

20 . In the Commission' s view, not only is it doubtful whether the aim of a national quality policy may be regarded, in the light of the Court' s previous decisions, as a mandatory requirement of public interest but, even assuming that such an aim were admissible, the criterion used in the German legislation - that is to say, the elimination of any ingredient other than meat - is inappropriate as a means of achieving it . The quality of meat products is in no way determined essentially by the exclusive use of meat in their composition . The Commission considers that quality must prevail on the market; it is open to manufacturers and retailers of German meat products to promote those products by means of advertising campaigns . Moreover, it is open to the German legislature, if it wishes to ensure that quality products are not at a competitive disadvantage, to enact provisions governing the presentation and description of meat products, standards and categories of quality for certain types of product and consumer information, without hindering imports .

21 . As regards the protection of consumers against misleading practices, the Commission considers that it is by no means impossible for such protection to be ensured by providing purchasers with information which can guide their choice among a considerably wider range of products . Despite the extreme diversity of products available in the 12 Member States, a system of consumer information for listing and describing ingredients is perfectly conceivable within the framework of Council Directive 79/112/EEC of 18 December 1978 ( hereinafter referred to as "the directive "), ( 11 ) as the Fleisch-Verordnung itself shows . The Commission points, in particular, to the possibilities provided by Article 7(3 ) of the directive, which allows for provisions stipulating that quantities of certain ingredients must be indicated, thus providing the option, where the composition of products is particularly complex, of requiring for example only a brief indication of the main ingredients .

22 . That exchange of arguments between the Commission and the defendant State has now become standard in proceedings relating to measures restricting imports of foodstuffs . In recent judgments in such proceedings, to which I have already referred, the Court has adopted positions which are themselves in the process of becoming standard . I therefore consider that it will be sufficient, essentially, to refer to those judgments in the present case .

23 . In its judgment of 14 July 1988 in the Drei Glocken case ( 12 ) on the compatibility with Article 30 of the Italian law prohibiting the importation of pasta products containing common wheat, the Court stated :

"The argument ... that the law on pasta products seeks to protect the consumer by endeavouring to ensure the superior quality of pasta, which is an Italian product with a long tradition, cannot be accepted ".

Although it was

"legitimate to seek to enable consumers who attribute specific qualities to pasta products made exclusively from durum wheat to make their choice in the light of that consideration",

the Court considered that

"that possibility may be ensured by means which do not prevent the importation of products which have been lawfully manufactured and marketed in other Member States and, in particular, 'by the compulsory affixing of suitable labels giving the nature of the product sold' ". ( 13 )

24 . One cannot fail to see the analogy between the Italian argument on ensuring

"the superior quality of pasta, which is an Italian product with a long tradition" ( 14 )

and the German argument that

"as a result of eating habits which date back several decades, German consumers have clear ideas about what to expect from the meat products they buy ". ( 15 )

25 . It appears to me that, as in the case of pasta products, the argument about whether or not there is a mandatory requirement to protect consumers' expectations about quality boils down to the question whether other measures, less restrictive of imports than the national measure at issue, could have been adopted . I consider that the answer to that question is in the affirmative .

26 . It is true that, in view of the different ways in which food products are distributed - they may be sold in packaged form or loose, or consumed in restaurants - consumer information poses problems which are considerably more complex in the case of meat products ( whose extreme diversity is stressed by both parties ) than in the case of pasta products, in which the question was only of enabling consumers to distinguish between pasta made exclusively from durum wheat and pasta containing common wheat . I believe, however, that, despite that complexity, a system of consumer information, built on rules governing the labelling and description of products, would enable the German Government to achieve its legitimate aims .

27 . First of all, as the Commission has rightly stated, the directive provides a wide range of possibilities . In particular, Article 6(5)(a ) provides that the list of ingredients which, according to Article 3, the labelling must show "shall include all the ingredients of the foodstuff, in descending order of weight, as recorded at the time of their use in the manufacture of the foodstuff ". It is to be preceded by a suitable heading which includes the word "ingredients ". Article 6(6 ) provides that : "Community provisions or, where there are none, national provisions may lay down that the name under which a specific foodstuff is sold is to be accompanied by mention of a particular ingredient or ingredients ". It may likewise be stipulated, in accordance with Article 7(3 ), that "quantities of certain ingredients must be indicated either in absolute terms or as percentages ".

28 . It is not for the Court, nor for myself, to prescribe a detailed system for the labelling and description of meat products for the Federal Republic of Germany . But, like the Court, I am bound to find that, in view of the possibilities offered by the directive, the Federal Republic of Germany may not maintain that a barrier to importation constitutes the only means of protecting the consumer .

29 . In the case of packaged foodstuffs, for which the provisions of the directive are the strictest, I cannot see what could prevent the consumer from obtaining from the list of ingredients on the package sufficient information about whether the product in question possesses the qualities he expects of it .

30 . As regards foodstuffs sold in bulk, the preamble to the directive states that "Member States should retain the right, depending on local conditions and circumstances, to lay down rules in respect of ... labelling", but that "in such cases, information should nevertheless be provided for the consumer ". ( 16 ) And while Article 12 provides that : "where foodstuffs are offered for sale to the ultimate consumer without prepackaging, or where foodstuffs are packaged on the sales premises at the consumer' s request or prepackaged for direct sale, the Member States shall adopt detailed rules concerning the manner in which the particulars specified in Article 3 ... are to be shown", it nevertheless specifies that the Member States "may decide not to require the provision of all or some of these particulars, provided that the consumer still receives sufficient information ".

31 . Like the Commission, I consider that those provisions do not preclude short or simplified labels showing the main ingredients together with their percentages if appropriate . In my view, such indications would provide the consumer with the information relevant to his expectations of quality . In particular, he would certainly be able to determine whether the product he was being offered was made solely from meat or essentially from meat, or whether it contained a significant proportion of ingredients other than meat, such as, for example, eggs or milk . Since a Member State is not precluded from using such methods of providing information, I consider that it may not maintain, in the case of foodstuffs sold in bulk, that the national measure at issue is necessary in order to protect consumers in their quality expectations .

32 . That view of the possibilities available in the field of consumer information is, I believe, supported by an examination of the provisions of the Fleisch-Verordnung .

33 . That regulation, which prohibits the marketing of certain meat products in the manufacture of which certain clearly specified ingredients have been used ( Paragraph 4(1 ) ), provides that the prohibition is not to apply to products in the manufacture of which certain specific substances are used under certain well-defined conditions ( Paragraph 4(2 ) ). It also provides, by way of derogation from the prohibition, for the possibility of marketing products to which certain specific substances have been added under certain well-defined conditions, provided that certain rules relating to the information to be shown on packages, or displayed on signs in the case of foodstuffs sold in bulk, or on menus or price lists where the products are consumed in restaurants ( Paragraph 5 ), are observed .

34 . It may thus be noted, for instance, that the use of liquid egg or frozen egg yolk in the manufacture of such products as liver pâté or poultrymeat pâté, up to a maximum proportion of 5% of the quantity of meat and fat, is no bar to their being marketed, nor is any special measure of consumer information required . Similar remarks may be made with regard to the use of dried blood plasma in the manufacture of certain types of sausage, or of edible gelatine in the manufacture of jellied preparations, cooked ham or tongue . It may also be noted that liquid or frozen egg white may be used in the manufacture of certain sausages for boiling and similar products, up to a maximum proportion of 3% of the quantities of meat and fat used; at the marketing stage the products must bear the words "with egg white ". Likewise, cooked meat spreads, poultrymeat pâtés and game pâtés, meat balls and forcemeats may contain solubilized milk proteins up to a maximum proportion of 2% of the meat and fat used, provided that the products bear the words "with milk proteins" at the marketing stage .

35 . Those observations, arising from a reading of Paragraphs 4 and 5 of the Fleisch-Verordnung and of Annexes 2 and 3 to which they refer, lead me to conclude that the German legislation already lays down very precise rules with a view to ensuring that consumers are informed of the presence of certain specific ingredients in certain meat products . I also note that in the case of some specified products no special consumer information is required if they contain certain ingredients . In those circumstances, one may wonder why a rule laid down in the Federal Republic of Germany requiring consumers to be informed of the use of certain ingredients in specified proportions in certain products - which, it may be assumed, is considered by the German Government to be a satisfactory rule, since it enacted it - should cease to be practicable or satisfactory when the same ingredients are used in higher proportions, or other ingredients are introduced into the products . Why, for example, should the indication, on packages or signs, "sausages for boiling with egg white and milk proteins" be apparently satisfactory when the proportions of those ingredients do not exceed 3 and 2% respectively of the quantities of meat and fat and cease to be so in the case of boiling sausages containing a slightly higher percentage of the same ingredients?

36 . I do not consider that the presence in meat products of ingredients in proportions greater than those provided for in the Fleisch-Verordnung or of ingredients not provided for in that regulation would constitute such a radical innovation that the consumer information system set up by that regulation, or another system based thereon, would be brought to naught or deprived of all its effectiveness . The possibility referred to above, of prescribing the indication of percentages for certain ingredients, could clearly be used to improve a system of the kind laid down by the Fleisch-Verordnung .

37 . With regard, finally, to products sold in restaurants, I would likewise point out that Paragraph 5(2 ) of the Fleisch-Verordnung, cited above, provides that indications such as, inter alia, "with milk proteins", "with egg white" or "made with the use of milk" must "be shown on the menu or price list or, if there is no such menu or price list, by some other means or by a written notice ". For certain mass-catering establishments, "it shall be sufficient to indicate the substances by means of notes which may be consulted by the doctor responsible and, on request, by the consumers ". Here, again, it is difficult to see how a consumer information system of this kind could be rendered inoperative or ineffective in the case of the "new" products to which I have referred, especially if the improvements which can be made to the system on account of the diversity of the products are taken into consideration .

38 . I therefore conclude, in the light of those considerations derived from both the directive and the rules applied in the Federal Republic of Germany, that it would have been possible to meet the requirements of consumer protection by measures less restrictive of imports . Here again, therefore, the defendant' s argument cannot be accepted .

III - Protection of traders and producers in Germany

39 . The Federal Republic of Germany also maintained that its legislation was based on a concern to protect producers and distributors of meat products from the unfair competition which arises if "some traders offer their inferior products for sale in a form bound to give consumers the impression that they are of higher quality ". Since "such inferior goods are much cheaper to produce" their producers obtain "a competitive advantage which, since it is based, in the final analysis, on deceit, is contrary to the principles of fair trading ". ( 17 )

40 . In reply to that argument, the Commission, referring to the Court' s case-law, states that :

"neither possible economic pressure nor even a requirement of national law extending to national products rules applicable to products from other Member States can ever justify the application of measures which are incompatible with Article 30 ". ( 18 )

It adds that if it is ensured that consumers have appropriate product information, that is a sufficient guarantee of fair competition between producers and distributors of meat products .

41 . I also consider that the risk of unfair competition arising through the misleading of consumers recedes once consumer protection has been ensured by the provision of proper information . We have seen that the means of providing such information exist . As long as the consumer knows what he is buying, it is difficult to see how fair trading could be affected . Here again, therefore, I consider that the argument of the Federal Republic of Germany must be dismissed .

IV - Mandatory requirements relating to the common agricultural policy

42 . Lastly, in support of its legislation, the Federal Republic of Germany relies on mandatory requirements relating to the common agricultural policy . It submits that the common organizations of the markets in beef and veal and in pigmeat both have the same aim of providing an adequate standard of living for the farming population and that aim would be jeopardized if the surpluses already in existence were further exacerbated by an increased use of ingredients other than meat, particularly soya, in meat products . Since the common market organizations have not led to comprehensive harmonization in the field of the marketing of meat and meat products, they must be supplemented by existing national rules meeting the same aims, such as Paragraphs 4 and 5 of the Fleisch-Verordnung .

43 . In the Commission' s view, the application of the provisions governing the free movement of goods cannot be dependent on whether there are surpluses of products in the Community or in certain Member States, thus giving rise to problems of disposal of stocks .

44 . On that point, I can in fact refer to the Court' s most recent case-law . In its aforementioned judgment in the milk substitutes case, the Court pointed out that

"once the Community has established a common market organization in a particular sector, the Member States must refrain from taking any unilateral action which consequently falls within the competence of the Community ". ( 19 )

It went on to state that

"even if they support a common policy of the Community, national measures may not conflict with one of the fundamental principles of the Community - in this case that of the free movement of goods - unless they are justified by reasons recognized by Community law ". ( 20 )

That position has most recently been reaffirmed in the Court' s judgment in the Drei Glocken case, cited above . ( 21 )

45 . Since, as we have seen, none of the other reasons put forward by the Federal Republic of Germany can justify the failure of the national legislation on meat to observe the principle of the free movement of goods, reference to the common agricultural policy alone cannot provide such justification .

46 . I therefore propose that the Court should :

( 1 ) declare that, by prohibiting the importation and marketing in its territory of meat products from other Member States which do not comply with Paragraphs 4 and 5 of the Fleisch-Verordnung of 21 January 1982, the Federal Republic of Germany has failed to fulfil its obligations under Article 30 of the EEC Treaty;

( 2 ) order the Federal Republic of Germany to pay the costs .

(*) Original language : French .

( 1 ) Judgment of 12 March 1987 in Case 178/84 Commission v Germany (( 1987 )) ECR 1227 .

( 2 ) Judgment of 23 February 1988 in Case 216/84 Commission v France (( 1988 )) ECR 793 .

( 3 ) Judgment of 14 July 1988 in Case 407/85 Drei Glocken GmbH v Unità sanitaria locale Centro-Sud (( 1988 )) ECR .

( 4 ) Quotations from the report taken from the French version of documentation note No II distributed to the Court, pp . 14 and 15 .

( 5 ) Quotations from Annex 5 to the Commission' s application .

( 6 ) Supra, footnote 2 .

( 7 ) Paragraph 15 of the judgment .

( 8 ) Most recently in the judgment of 4 February 1988 in Case 261/85 Commission v United Kingdom (( 1988 )) ECR 547, paragraph 12 .

( 9 ) German Government' s statement of defence, p . 6 .

( 10 ) Ibid .

( 11 ) Council Directive 79/112/EEC on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer ( OJ L 33, 8.2.1979, p . 1 ).

( 12 ) Supra, footnote 3 .

( 13 ) Paragraph 16 of the judgment .

( 14 ) Ibid .

( 15 ) German Government' s statement of defence, p . 6 .

( 16 ) Supra, footnote 11, 13th recital .

( 17 ) German Government' s statement of defence, p . 14 .

( 18 ) Commission' s application, p . 19 .

( 19 ) Case 216/84, cited above, paragraph 18 of the judgment .

( 20 ) Ibid ., paragraph 19 of the judgment .

( 21 ) Case 407/85, cited above, paragraph 26 of the judgment .