5.

Having reached this point in my analysis I must now turn to the objectives pursued by rules such as those in force in the Federal Republic of Germany; it should be examined whether they are sufficient to justify the obstacle placed in the way of imports. The defendant in the main action indicated three aims which it claimed amount to such justification: the protection of public health, the protection of the consumer against fraud and the suppression of unfair competition. The measure laying down the minimum alcohol content of spirits and liqueurs with which we are at present occupied may therefore be examined in the light of the criteria laid down by Article 3 of Directive No 70/50 so as to establish whether its restrictive effects are out of proportion to the results sought and whether those same objectives may not be attained by other means which would create less of an obstacle to trade. That measure may also be examined in the light of Article 36 of the EEC Treaty which, as we know, states, inter alia, that notwithstanding the rules contained in Articles 30 to 34 there is no prohibition upon restrictions on imports justified on grounds of public policy or the protection of health of humans. I would like to observe in this connexion that Article 36 is without any doubt a more solid basis for assessment than anything which is offered to us by Directive No 70/50, in view of the reservations which I have expressed in relation to the compatibility of that directive with the prevalent strict interpretation of Article 30. I would also emphasize that the criteria contained in Article 3 of Directive No 70/50 presuppose that, in relation to Community law, the results sought by Member States when enacting measures relating to the marketing of products are lawful. The protection of public health is without any doubt a legitimate aim and express reference is made thereto in Article 36. Exceptions to Article 30 which appear necessary for the purpose of protecting producers and consumers against commercial fraud are similarly legitimate: the Court recognized this, also on the basis of Article 36 and the concept of public policy which appears there, in its judgment of 20 February 1975 in Case 12/74 Commission v Federal Republic of Germany ([1975] ECR 181) at paragraph 17 of the decision. On the other hand, I doubt whether the suppression of unfair competition may justify exceptions to Article 30; it appears doubtful, at the very least, that the concept of public policy to which reference is made in the said Article 36 may be stretched thus far. However, I think it is useful to recall that in Directive No 75/726, cited above, on the approximation of laws concerning fruit juices, the prohibition on the creation of obstacles to intra-Community trade in those products by non-harmonized provisions concerning the composition, manufacturing specifications, packaging or labelling of those products (Article 12 (1)) was stated not to apply to provisions justified on grounds of the repression of unfair competition, in addition to those of the protection of public health, the repression of frauds, the protection of industrial and commercial property, of indications of source and appellations of origin (Article 12 (2)). I shall turn now to the measures involved in this dispute. I have great difficulty in sharing the view put forward by the German Spirits Monopoly Administration, according to which the fixing of a minimum alcohol content for spirits and liqueurs serves to protect public health against the risks of alcoholism. It was stated in support of that argument that the lower the tolerated level of alcohol, the higher the quantities of spirits and liqueurs consumed, and that in any event the fact that the market would be inundated with imported products once the dam of a minimum alcohol content was breached would increase the temptation upon consumers. For my part I believe that the placing on the market of an alternative in the form of beverages which are weaker from the point of view of their alcoholic strength would give hope of a diminution in the number of consumers of beverages which are more harmful because they have a higher alcohol content. In connexion with the liqueur which is the subject-matter of this case, there are in Germany drinkers of ‘Cassis de Dijon’ who are at present obliged to drink a version of it with an alcoholic strength of 25 %, which is specially produced for the German market, since the marketing of authentic ‘Cassis de Dijon’ is prohibited. Would it not be better for public health if consumers who are partial to a liqueur with a blackcurrant flavour had the possibility of consuming less alcohol, quite independently of the satisfaction of drinking the original product? And if it is true, as the Advocate for the German Monopoly has stated, that it is the habits and demands of consumers which determine quality standards, with the result that they find on the market that which they wish and expect to find there when asking for a given product, it is not also true that in order to direct those habits and possibly to modify them, it would be advisable, if not necessary, to provide greater possibilities for choice? To guide the public towards beverages with a lower alcohol content would, in my view, show a greater regard for public health than forcing it to consume only beverages whose minimum content of a harmful substance may not be reduced. As regards the repression of frauds, in my view it is important to avoid the sale of products which are passed off for that which they are not or which wrongfully appropriate a designation which should not be applied to them or in relation to which doubt is maintained as to the place of production or in respect of which no indication is given of the substances of which they are composed. I therefore believe that from the point of view of Community law it is perfectly lawful for each Member State to resolve in an appropriate manner the problem of the identification of each product, its designation, its origin and the indication of the substances of which it is composed. But all that has nothing to do with the fixing of a mandator minimum alcohol content for all spirits and all liqueurs. It has been maintained that the information appearing on the label may constitute a further guarantee for the consumer (and that it is to this end that such information is required by the German legislation), but not the sole guarantee. It is claimed that, in general, the consumer fails to take notice of the characteristics of the product and is almost automatically drawn towards less expensive products (in the present case, those having the lowest alcohol content); he is therefore open to frauds of all kinds. But the idea of this widespread, if not general, incapacity on the part of the consumer seems to me to doom to failure any effort to protect him, unless it be to impose upon him a single national product the composition of which is constant and is rigorously controlled. On the other hand, the fixing of a minimum alcohol content in itself merely obviates the risk of purchasing a spirit or liqueur having a minimum alcohol content which is lower than that indicated. But is there perhaps a concept of a spirit or a liqueur which is necessarily linked to a given alcohol content? And in connexion with spirits, is the most serious fraud to be avoided by way of a strict legislative limit the existence of an alcohol level which is lower than that which the consumer expects? These doubts lead me to say that the real motive for the measure in question must be sought elsewhere; it is to be found in a market tradition to which national producers have long conformed and to which, therefore, the tastes of consumers have grown accustomed, such that there is reason to fear an invasion of foreign products having a lower alcohol content. The defendant in the main action has denied that the rules at issue here give national producers an advantage, in that they apply without distinction to all products, whether national or imported. It appears to me that the principal advantage under the rules is to be found in the restriction on the importation of competing products which are already known in their country of origin but which are not marketable because they have an alcohol content which is lower than the prescribed limit. The defendant in the main action has also observed that if it was necessary to allow the marketing of foreign products having a low alcohol content, the whole of national production would be forced to adapt to that type of product, with the consequence that the minimum alcohol content adopted in the Member State having the least exigent requirements in this matter would have to be substituted for the original limit. But that argument is wholly based on the idea that the consumer is guided in his purchases solely by price, that for products having the lowest alcohol content being the lowest. Common experience shows that such is not the case: in countries where the consumption of wine is high (to take the example of a beverage having a relatively low alcohol content), that fact has not led producers of brandy, grappa or other spirits to reduce the alcohol content of those products. From the point of view of Community law, there is nothing to prevent a Member State from fixing a minimum alcohol content for nationally produced spirits or liqueurs, at the same time requiring that the corresponding foreign products should bear a clear indication as to their origin and alcohol content (obviously without misappropriating duly protected national designations). On the basis of the above considerations as a whole I am convinced that measures such as those in force in the Federal Republic, which create an indirect obstacle to imports and, therefore, are contrary to Article 30 of the EEC Treaty, are not justified under Article 36 of the Treaty or Article 3 of Commission Directive No 70/50 of 22 December 1969. The objective of the protection of the consumer against frauds may, in fact, be attained by other means which are less harmful to trade; in relation to that objective, the obstacles placed in the way of the free movement of goods are excessive and, therefore, disproportionate.