4.

I shall begin by examining the prohibition of the marketing of beer with a degree of acidity less than 3.9, and I must point out that the lower the degree of acidity — known as the pH — the more sour the beer. Economische Politierechter, who is somewhat reticent in giving information, does not state how the rules in question might be justified. In paragraph 5 of the judgment making the reference he merely states that the answer to the questions submitted to the Court of Justice “necessitates the interpretation of Article 30 and possibly of Article 36 of the EEC Treaty”. He makes no further comment. On the other hand, the parties — the Netherlands Government, De Kikvorsch, the Commission and the French Government — have discussed the exceptions cited at great length in the written procedure and even more so during the oral procedure. On the basis of the information provided by them and the evidence given by technical experts in the main action, I am inclined to the view that Article 6 (4) of the Bierverordening 1976 is not inspired by the need to protect the health of humans and therefore cannot be justified under Article 36. As appears from the transcript of the sitting of 19 October 1981, a technical expert from the Produktschap voor Bier stated that: “In order to discover whether the lower degree of acidity has any effect on the conservation of the beer ...” — and therefore indirectly on the health of the consumer — “it would be necessary to carry out a more detailed analysis”. At the same sitting another expert stated that in the Netherlands legislation the degree of acidity was established by reference to the beer traditionally produced and marketed in the Netherlands and that “the protection of public health did not play any role in the determination of the degree of acidity”. For its part, the Netherlands Government stated in its written observations that the definition of the pH levels adopted by the Committee of Ministers of the Benelux Economic Union, as set out in the Bierverordening 1976, was based on the traditional idea of how beer should taste. On the other hand it made no reference to any link between the definition of the degree of acidity and conservation of the product. During the oral procedure, the Netherlands Government further clarified its position on that point, stating that the rule on the degree of acidity had not the slightest connection with the protection of health. Finally, the Commission has consistently maintained, both in its written observations and during the oral procedure, that the rule in question was adopted by the Netherlands authorities in order to protect the types of beer which are traditionally produced and marketed in the Benelux countries. In support of that it referred inter alia to the view expressed in a letter from the Director of the Institut CIVO-Analyse TNO dated 18 November 1981, submitted to the Economische Politierechter, to the effect that: “The determination of a pH of 3.9 in Article 6 of the Bierverordening is intended in particular to ensure the continued production of a specific type of beer by using a yeast which is as pure as possible. In this way it is possible to prevent the formation of too much acidity, which would not correspond to the desired type of beer. At the same time a measure of protection is furnished against any adulteration which might result in pH values lower than 3.9.” Apart from that information obtained from the inquiry, the fact that it is impossible to rely on protection of health as justification is demonstrated in a way by the Netherlands legislation itself, which permits the marketing of beer with acidity levels lower than 3.9 provided that they comply with a number of conditions and are given an special description. Thus Article 1 (j) of the Bierverordening 1976 states that sour beer means “The beverage which is obtained: either 1. by spontaneous fermentation with an extract strength of the original wort of at least 11% Plato, a total acidity of at least 30 milli-equivalents NaOH per litre, and a content of volatile acids of at least 2 milli-equivalents NaOH per litre, and which must be prepared from a wort of which at least 30 per cent of the total weight of the processed raw materials containing starch and sugar consists of wheat; or 2. by surface fermentation and with the same acidity and extract strength of the original wort as the beer under (j) 1.” According to Article 9 (4), the said beverage “must be described by one of the following descriptions; ‘Gueuze’‘Gueuze-Lambic’, ‘Lambic’” or, “where cherries, cherry juice or cherry extract is added in the preparation, ‘Kriek-Lambic’.” Two observations should be made on those provisions. The first is self-evident: the provision on the minimum degree of acidity of beer was adopted solely to ensure that beer produced and marketed in the Netherlands (and in the other Benelux countries) should conform to the beer which is traditionally produced and consumed there. In that connection it should be stressed that beer can be produced in two ways: by alcoholic fermentation with the use of yeast (which produces beer with a pH of at least 3.9) and mixed acidic fermentation (which produces beer with acidity levels lower than 3.9). It need hardly be stated that in the the Netherlands the former process is preferred. The second observation relates to the “protection of health”. It appears that the level of acidity may, at least theoretically, affect the conservation of the product, but it is equally clear that the parameter of 3.9 is not in itself justified on the basis of that consideration. Other appreciably lower levels are equally capable of ensuring the conservation of the product and therefore the health of consumers. It is also necessary to consider — and this is the second of the two factors in the light of which Article 6 (4) of the Bierverordening 1976 might in principle be considered lawful — whether the prohibition of the marketing of beers other than sour beers having a pH lower than 3.9 may be justified on the ground of the protection of the consumer. The Notherlands Government raised that argument. In its opinion, as I said, the Bierverordening 1976, which lays down generally the characteristics of beer (including the minimum degree of acidity.) and in particular the requirements (and special descriptions) of sour beers, is intended simply to define the more common types of beer in the Benelux countries. Apart from sour beers, the type of beer normally produced in the Netherlands by fermentation using yeast has a degree of acidity of at least 3.9. By prohibiting, albeit with the limited exceptions set out above, the marketing of more sour beers, the Netherlands autorities intend ultimately to protect the habits of the Netherlands consumers. Those habits have existed for a very long time and deserve the greatest respect; however, they certainly cannot be regarded as falling within the category of mandatory requirements the protection of which according to the case-law of the Court justifies certain restrictions on intra-Community trade. Moreover, not even the representative of the Netherlands Government has gone so far as fully to support such an extreme view. It therefore seems to me that the prohibition in question clearly constitutes a measure having an effect equivalent to a quantitative restriction on imports. The French Government has adopted a different approach. It points out that the Netherlands rules permit the production and marketing of sour beers but requires that they should be described in a different way: from that it may in its view be inferred that the heart of the problem submitted by the Economische Politierechter concerns the definition of the product known as “beer”. That is a shrewd observation. The problem of determining what is meant by “beer” exists and will continue to exist until the national rules in that sector have been harmonized. Nevertheless, the question put by the magistrate making the reference does not refer to that problem, nor in my opinion does it necessarily require that problem to be dealt with. The Netherlands Government expressed that opinion and I am entirely in agreement with it.