(b)

According to the Cassis de Dijon judgment, ( 6 ) which resulted in the definition given in the Dassonville judgment ( 7 ) being reformulated more narrowly, a measure is not to be regarded as a prohibited measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the EEC Treaty if, first, it applies to all products without distinction and, secondly, if it is “necessary in order to satisfy mandatory requirements relating in particular to ... the fairness of commercial transactions and the defence of the consumer.” The Italian Government seeks to infer from the existence of Council Directive 74/329/EEC of 18 June 1974 on the approximation of the laws of the Member States relating to emulsifiers, stabilizers, thickeners and gelling agents for use in foodstuffs (Official Journal 1974, L 189, p. 1) that until the harmonization, envisaged in Article 4 of the directive, of the conditions under which gelling agents may be added to foodstuffs has been effected the Member States are free to lay down those conditions themselves. In its opinion, the Community legislature expressly recognized in the third recital in the preamble to the directive that the protection of the consumer must be taken into particular account in relation to the products covered by the directive. Fair trading and consumer protection are of particular importance in relation to the rules governing the use of gelatin since it is possible, with the help of gelatin, to include a large quantity of water especially in the case of preserved meat products and ice-cream. However, that argument cannot be accepted for several reasons. The defendant's basic premise that there are no Community rules governing the permissible gelatin content of foodstuffs and that therefore, in principle, it is for the Member States to regulate that matter, is correct. It is not however necessary to decide whether, as the Italian Government contends, gelatin is to be regarded as a thickening or gelling agent within the meaning of Article 1 of the directive and therefore in principle within the scope thereof. The decisive factor is that gelatin is not included in the substances listed in Annex I to the directive, which, according to Article 2 thereof, are the only substances whose use as emulsifiers, stabilizers, thickeners or gelling agents may be authorized by the Member State. The provisions of Articles 5 to 8 of the contested directive relating to the protection of public health and the protection of the consumer against adulteration only apply to the products referred to in Annex I thereto. If gelatin were regarded as a thickening or gelling agent within the meaning of Article 1 of the directive it would follow that its use as an additive in foodstuffs would in any event be prohibited under Article 2 because it is not referred to in Annex I. Article 9 of the directive provides that Article 2 is not to apply inter alia to edible gelatin. It must therefore be presumed that the directive does not prohibit the Member States from authorizing the use of gelatin as an additive to foodstuffs in addition to those substances referred to in Annex I thereto. Therefore, since the matter is not dealt with in the Community legislation, it is for the Member States, as the Court has stated inter alia in the Gilli case, ( 8 ) to regulate all matters relating to production, distribution and consumption on their territory, subject however to the condition that rules adopted do not infringe Article 30 of the EEC Treaty. Even if the Italian Government's argument that gelatin constitutes a thickening or gelling agent within the meaning of Article 1 of the directive is accepted the conclusion will be the same. Article 4 of the directive, which provides that the Council is to harmonize as soon as possible the conditions under which the substances in question may be used, may certainly not, as a provision of secondary Community law, be interpreted as meaning that as long as harmonization has not been effected the Member States are empowered to adopt measures which are not consistent with the provisions of Articles 30 and 36 of the EEC Treaty. According to previous judgments of the Court, an obstacle to trade is only to be regarded as other than a measure having an effect equivalent to a quantitative restriction if it is necessary in order to satisfy the imperative requirements of fair trading and consumer protection. Accordingly it is necessary, in each individual case, to weigh the requirements of the free movement of goods in the common market against any legitimate interests in protection. In that respect the principle of proportionality requires, as the Court has consistently held, that if a Member State has a choice between various measures to attain the same objective “it should choose the means which least restricts the free movement of goods” (Case 261/81, Walter Rau Lebensmittelwerke v De Smedt PvbA ( 9 )). In particular, the Court has held on many occasions (judgments in Cases 120/78, 788/79, 27/80, 130/80, 220/81 and 261/81 ( 10 )) that an absolute prohibition on imports cannot be justified on the ground of consumer protection where confusion on the part of the consumer can be prevented by appropriate labelling. In this case, as the Commission has rightly contended, confusion on the part of the consumer may be prevented by providing that notice of the gelatin content of the products in question must be given. In the case of packed products the information may be provided without difficulty on the packaging, whilst in the case of unpacked products information regarding their contents may be required to be given in some other sufficiently clear manner. In that connection it is not possible to uphold the Italian Government's objection that the labelling required by Council Directive 79/112/EEC of 18 December 1978 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 (Official Journal 1979, L 33, p. 1), according to which the ingredients of foodstuffs are simply to be recorded in descending order of weight, constitutes insufficient protection for the consumer in this case. The general, socalled “horizontal” Community rules contained in that directive, which apply to all foodstuffs, do not, in anyevent, as the Commission has correctly observed, preclude the adoption of special rules applicable only to specific foodstuffs. In particular, according to Article 4 (2) of the Directive 79/112 Community law may provide that in addition other particulars must appear on the labelling. In the absence of such Community provisions the Member States may, according to the second subparagraph of Article 4 (2), make provision for such particulars in accordance with the procedure laid down in Article 16 of the directive. It must therefore be concluded that the provision in the contested Decreto Ministeriale of 20 October 1978 laying down the maximum gelatin content constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30.