Opinion of Mr Advocate General Mischo delivered on 12 November 1986. - Criminal proceedings against Arthur Mathot. - Reference for a preliminary ruling: Tribunal de première instance de Dinant - Belgium. - Preliminary - Labelling of butter. - Case 98/86.



European Court reports 1987 Page 00809



Opinion of the Advocate-General

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Mr President,

Members of the Court,

The tribunal de première instance (( Court of First Instance )), Dinant, has referred the following question to the Court in criminal proceedings brought before that court by the ministère public against a trader in butter, Arthur Mathot :

"Is the requirement imposed only on Belgian processors, and not on their competitors from other Member States, to indicate their name and address on the packaging of butter compatible with Article 30 of the EEC Treaty?"

Thus formulated, the question put to the Court is in effect whether a provision of national law is compatible with Community law .

However, in the context of a reference for a preliminary ruling under Article 177 of the EEC Treaty, the Court only has jurisdiction to interpret the Treaty or to give a ruling on the validity and interpretation of acts of the institutions of the Community .

It is however possible to reformulate the question in such a way as to bring it within the scope of Article 177 . That could be done as follows :

"Does Article 30 of the EEC Treaty, any other provision of that Treaty or a general principle of Community law prohibit Member States from imposing, in regard to the labelling of butter produced in that Member State, rules which are more strict than those applying to imported butter?"

Since the Court has already expressed its view on problems of this type on several occasions, including one quite recently, I can restrict myself to three brief observations which I can make immediately .

1 . Article 30 is not infringed by a national measure which has no restrictive effect on imports .

Very recently, in the judgment of 23 October 1986 in Case 355/85 Commissaire de Police de Thouars v Michel Cognet (( 1986 )) ECR 3231, the Court had occasion to rule on this point . In that judgment the Court ruled, in regard to national legislation giving rise to a difference of treatment according to whether books were placed directly on the market in the Member State in which they were published and printed or were reimported after previously being exported to another Member State ( the selling prices of the former being fixed and those of the latter being unrestricted ), that "Article 30 of the Treaty does not forbid such a difference of treatment . The purpose of that provision is to eliminateobstacles to the importation of goods and not to ensure that goods of national origin always enjoy the same treatment as imported or reimported goods . The absence of restriction as regards the selling price of reimported books does not prejudice the sale of such books . A difference in treatment between goods which is not capable of restricting imports or of prejudicing the marketing of imported or reimported goods does not fall within the prohibition contained in Article 30 ."

2 . No other provision of the Treaty or any general principle of Community law is infringed if domestically-produced products are treated less favourabley than imported products ( reverse discrimination ) if the measures in question apply to a sector which is not governed by Community rules or subject to harmonization of national legislation .

Obviously, the first provision that comes to mind when the question of discrimination arises is Article 7 which provides that "within the scope of application of this Treaty and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited ".

However, as the Court has decided on numerous occasions, in particular in its judgment of 30 November 1978 in Case 31/78 Bussone v Italian Ministry for Agriculture and Forestry (( 1978 )) ECR at 2445 ) and its judgment of 14 July 1981 in Case 155/80 Oebel (( 1981 )) ECR 1993, which I would like to quote here :

"The principle of non-discrimination contained in Article 7 is not infringed by rules which are applicable not on the basis of the nationality of traders, but on the basis of their location ".

It follows that national rules which do not distinguish, whether directly or indirectly, between persons subject to them on the basis of their nationality are not contrary to Article 7, even if they affect the competitiveness of traders subject to them .

Furthermore, as the Court stated in its judgment of 3 July 1979 in Joined Cases 185 to 204/78 van Dam (( 1979 )) ECR 2361, "it cannot be held contrary to the principle of non-discrimination to apply national legislation ... because other Member States allegedly apply less strict rules ".

The Court confirmed that principle in its judgments in Smit ( 1 ) and Cognet ( cited above ).

In regard to Articles 37 and 95 of the Treaty, the Court has held that :

"Whether or not a domestic product - in particular certain potable spirits - is subject to a commercial monopoly, neither Article 37 nor Article 95 of the EEC Treaty prohibits a Member State from imposing on that domestic product internal taxation in excess of that imposed on similar products imported from other Member States ." ( 2 )

Finally, with regard to the general principle of non-discrimination, I would like to draw attention to another passage in the judgment in Case 355/85 Driancourt v Cognet, in which the Court stated that : "As regards the general principle of non-discrimination, it must be observed that Community law does not apply to treatment which works to the detriment of national products as compared with imported products or to the detriment of retailers who sell national products as compared with retailers who sell imported products and which is put into effect by a Member State in a sector which is not subject to Community rules or in relation to which there has been no harmonization of national laws" ( paragraph 11 ).

3 . In the third place, I would like to mention, for what it' s worth, that a problem of reverse discrimination can no longer arise in regard to the labelling of butter because that question has been the subject of a harmonizing measure at Community level . The measure in question is Council Directive 79/112 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 . ( 3 )

According to Article 3 of that directive "indication of the following particulars alone shall be compulsory on the labelling of foodstuffs :

...

6 ) the name or business name and address of the manufacturer or packager, or of a seller established within the Community ".

If Directive 79/112 has been correctly transposed in Belgium, and that is something which the Court is not entitled to verify in the context of a reference for a preliminary ruling, neither domestically-produced butter nor imported butter may be offered for sale in Belgium in a package indicating only a licence number .

Even if the question of reverse discrimination raised by the defendant in the main proceedings does not therefore arise in reality, it seems to me that a reply must none the less be given to the very precise question raised by the national court as to the scope of Article 30 and attention also drawn to the Court' s case-law on reverse discrimination in regard to the free movement of goods .

Conclusion

In conclusion, I propose that the Court reply as follows to the question referred to it by the tribunal de première instance, Dinant :

1 . The purpose of Article 30 of the EEC Treaty is to eliminate obstacles to the importation of goods and not to ensure that goods of domestic origin receive in all cases the same treatment as imported goods .

2 . The fact that a Member State accords less favourable treatment to domestically-produced products than to imported products in a sector not subject to Community rules or to harmonization of national legislation does not come within the scope of Community law .

3 . The legislation of the Member States concerning the labelling and presentation of foodstuffs has been harmonized by Council Directive 79/112/EEC of 18 December 1978 . The first paragraph of Article 3*(1 ) of that directive must be interpreted as meaning that butter labels must indicate the name or business name and address of the manufacturer or packager or of a seller established within the Community .

That rule applies to foodstuffs regardless of their origin .

(*) Translated from the French .

( 1 ) - Judgment of 25 January 1983 in Case 126/82 Smit v Commissie Grensoverschrijdend Beroepsgoederenvervoer (( 1983 )) ECR 92 .

( 2 ) - Judgment of 13 March 1979 in Case 86/78 Peureux v Services fiscaux de la Haute-Saône et du territoire de Belfort (( 1979 )) ECR 897 at p . 915, operative part .

( 3 ) - Official Journal L 33 of 8 February 1979, p . 1 .