4.

The objective of protecting public health certainly provides justification in principle for a national measure laying down a certain minimum dry-matter content for bread: it is clear that such a measure is concerned to ensure that bread is nourishing and that the quantity of water contained in it is not excessive. On the other hand I would deny that the fixing of a maximum dry-matter content may be justified on the same basis; it appears to me difficult to maintain that bread having a lesser degree of humidity is injurious to health. However, what is first and foremost at issue here is the system of fixing dry-matter content within brackets, which is strictly linked, as we have seen, to the manufacture of bread in specified sizes. That system, which is not related in any way to the protection of health, results in hampering the importation of bread which is made in different sizes in other Member States, a situation which is clearly contrary to Article 30. Recognizing that the system of fixing dry-matter content within brackets entails an obligation to produce bread in specified sizes, the Netherlands Government has argued that this promotes fair trading and consumer protection. In its view, since bread is usually sold without packaging, the standard sizes of the various loaves assure the consumer as to the weight. However, even if it is accepted that that requirement ought to be met it remains to be seen why the sale of bread otherwise than in the customary sizes may not be permitted subject to the condition that a wrapper be provided on which the weight is indicated (in the present case the “brioches” in question were marketed in precisely that state). It should be recalled that Article 3 of Commission Directive 70/50/EEC of 22 December 1969, based on the provisions of Article 33 (7) of the EEC Treaty, on the abolition of measures which have an effect equivalent to quantitative restrictions, considered as coming within that category “measures governing the marketing of products which deal, in particular, with shape, size, weight, composition, presentation, identification or putting up and which are equally applicable to domestic and imported products, where the restrictive effect of such measures on the free movement of goods exceeds the effects intrinsic to trade rules”. It was stated in the second paragraph of that provision that that is the case, in particular, where the restrictive effects on the free movement of goods are out of proportion to their purpose and where the same objective can be attained by other means which are less of a hindrance to trade. It appears to me beyond doubt that national arrangements cast in the form of Article 10 of the Netherlands Broodbesluit constitute a hindrance to the free movement of goods which is out of proportion to the objectives in view, which may be attained by other means. If it is desired to assure consumers as to the nature and weight of the product which is offered for sale otherwise than in traditional sizes, requiring traders to provide the necessary information on a label would constitute a sufficient means in relation to the intended objective. Finally, I must comment on the contention of the Netherlands Government that the Warenwet empowers the competent minister to grant exemptions from the conditions laid down in the Broodbesluit. I shall merely recall what the Court said in its judgment of 24 January 1978 in Case 82/77 van Tiggele [1978] ECR 25 (paragraph 19 of the decision), namely, that a measure which falls under the prohibition laid down in Article 30 of the Treaty does not escape the prohibition merely because the competent authority is empowered to grant exemptions, even if that power is freely applied to imported products.