Opinion of Mr Advocate General Darmon delivered on 25 September 1990. - Criminal proceedings against Bonfait BV. - Reference for a preliminary ruling: Arrondissementsrechtbank Almelo - Netherlands. - Measures having equivalent effect - Meat and prepared meat products. - Case C-269/89.



European Court reports 1990 Page I-04169



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . By judgment of 29 June 1989 given in criminal proceedings brought by the Officier van Justitie ( Public Prosecutor ) for the District of Almelo against the company Bonfait BV (" Bonfait "), the Magistrate dealing with commercial cases on the Arrondissementsrechtbank Almelo has referred three questions for a preliminary ruling .

2 . The judgment referring the case is rather brief . It appears, however, from the written observations submitted to the Court and from the explanations given at the hearing that Bonfait was prosecuted for having put on the market in the Commune of Almelo products under the name of "vleeswaren", imported from the Federal Republic of Germany and having a ratio of water content to organic non-fatty substances (" Federgetal ") higher than that allowed by the Netherlands rules governing the use of that name . The products in question did, however, comply with the requirements of the rules applying in their State of origin as regards the same ratio and by virtue of this fact could be called by the generic name "Fleischwaren", corresponding in German to that of "vleeswaren" in Dutch and to the French term "charcuterie ".

3 . The precise reasons for the prosecution are still somewhat unclear since, as was stated at the hearing, the packaging of the products in question did not bear the word "vleeswaren ". However, it is not for the Court to give an opinion on the application by the national court of its national legislation and it must therefore assume that the questions for a preliminary ruling concern a prosecution for the use of a specific name where the products in question do not comply with rules on composition on which the lawful use of the name depends .

4 . It is certainly not appropriate to give too much weight to the precise terms used by the referring court in formulating the questions . On a literal reading the first and third questions request the Court to interpret national law, which is not within its powers . I share the Commission' s view that the Court is essentially being asked whether national rules which restrict the use of a description such as "vleeswaren" to products conforming to a certain limit as regards the ratio of water content and to the level of organic substances may be applied to products which are lawfully marketed under a similar description in another Member State but which do not satisfy the requirement referred to .

5 . The problem thus presented to the Court must be examined in the light of the prohibition laid down in Article 30 of the EEC Treaty, expressly referred to by the national court . I do not think that Directive 77/99/EEC of the Council of 21 December 1976, ( 1 ) to which, moreover, the judgment of referral does not refer, is relevant for the purposes of resolving the problem . That directive aims at harmonizing the provisions intended to guarantee the quality of meat products from the health point of view, whereas the Netherlands Government, as its observations show, does not rely on protection of public health in defence of the rules in question but on consumer protection and fair trading . The directive contains provisions on the composition of the products governed by it only to the extent that it concerns the protection of human health in the strict sense . It is not therefore necessary to refer to it when examining a description rule connected with the composition of meat products if the protection of health is not a relevant factor .

6 . As far as Article 30 is concerned, the Court' s now classic case-law makes it possible to answer without undue difficulty the question whether rules such as those in question fall within the scope of the prohibition established by that provision . In its judgment of 12 March 1987 in Case 178/84, given in proceedings brought by the Commission against Germany for failure to fulfil an obligation concerning the "Purity Law" for beer, the Court observed, in connection with the provision of the "Biersteuergesetz" prohibiting the use of the designation "beer" for beverages that did not comply with particular rules on manufacturing, thereby in practice restricting the importation of such beverages lawfully marketed in other Member States under that name, that the legitimate concern to

"seek to enable consumers who attribute specific qualities to beers manufactured from particular raw materials to make their choice in the light of that consideration"

could be satisfied

"by means which do not prevent the importation of products which have been lawfully manufactured and marketed in other Member States and, in particular 'by the compulsory affixing of suitable labels giving the nature of the product sold' ". ( 2 )

7 . That reasoning, already developed in the Court' s judgment of 9 December 1981 in Commission v Italy ( 3 ) on the designation of "vinegar", also seems to me to be appropriate in the present case in which the use of a designation such as "vleeswaren" is concerned . The possibility, for the consumer, to be able to exercise his choice in favour of products having a particular ratio of moisture content to the level of organic non-fatty substances laid down by the Netherlands rules for "vleeswaren", or "vleesprodukten", does not make it necessary to prohibit in that Member State the marketing, under a name applying to those products, of preparations lawfully marketed under a similar name in another Member State . A label which contains the necessary information on the composition of the products indicating, as necessary, the relevant proportions of particular constituents, would enable the consumer to make his choice with full knowledge of the facts, without its being necessary to resort to a measure which, by preventing the sale in a Member State of products bearing a description authorized by law in the Member State of origin, undeniably restricts in practice the scope for distribution in the first State . It also seems to me that, having regard to the prohibition in Article 30, consumer protection does not justify the restriction on importation resulting from the application of the Netherlands rules on the designation of meat products marketed under that name in another Member State .

8 . The judgment of 16 December 1980 in Case 27/80 Fietje, referred to by the Netherlands Government at the hearing, does not run counter to that appraisal in any way . The Court stated :

"The extension by a Member State of a provision which prohibits the sale of certain alcoholic beverages under a description other than that prescribed by national law to beverages imported from other Member States, thereby making it necessary to alter the label under which the imported beverage is lawfully marketed in the exporting Member State, is to be considered a measure having an effect equivalent to a quantitative restriction ... in so far as the details given on the original label supply the consumer with information on the nature of the product in question which is equivalent to that in the description prescribed by law ." ( 4 )

That judgment thus fits squarely with the Court' s established case-law on the matter, whose main outlines have been indicated above . It is not at all necessary for the protection of the consumer to impose, or not allow, the use of a designation when information on the qualities or the composition of the product can be provided by appropriate marking; the prohibition laid down in Article 30 accordingly takes full effect .

9 . The Netherlands Government has also raised, although in a fairly brief fashion, the concern about fair trading . Its position does not appear to be any more convincing on this point either . The Court' s case-law on the subject is clearly illustrated by the judgment in Miro, ( 5 ) rendered in connection with rules which, in the Netherlands, prohibited the use of the appellation "gin" for beverages having an alcohol content less than 35% and thus prevented "gins" having an alcohol content of 30% imported from Belgium from being marketed there under their original name . After stating that

"in the absence of common rules, a Member State cannot in principle be denied the possibility of establishing rules under which the right to use certain traditional appellations is subject to the observance of a minimum limit for alcohol content", ( 6 )

the Court observed that

"in a system of a common market, interests such as fair trading must be guaranteed with regard on all sides for the fair and traditional practices observed in the various Member States ". ( 7 )

The Court therefore considered that it could not

"be regarded as an essential requirement of fair trading for national rules fixing the minimum alcohol content of a traditional beverage to be complied with by products of the same kind imported from another Member State if they are lawfully and traditionally manufactured and marketed under the same appellation in the Member State of origin and the purchaser is provided with proper information ". ( 8 )

10 . That reasoning applies to the present case . It is undeniable that, notwithstanding a higher degree of water content in proportion to organic non-fatty substances, the products imported by Bonfait have been lawfully and traditionally manufactured and marketed in the Federal Republic of Germany under the designation "Fleischwaren ". Provided that proper information can be provided to the purchaser, which is the case, as we have seen, it would not appear, having regard to Article 30, that fair trading can justify a prohibition on the marketing of such products under the description "vleeswaren ".

11 . Finally, it seems that a justification for the national rules in question based on the protection of public health need not be considered . As I have already noted, the Netherlands Government has not raised this possibility . After all, it would have been difficult for it to contend that the rule on designation rested on a concern to protect public health since products not in conformity with the rule, such as those imported from Germany in the present case, may be lawfully marketed in the Netherlands under a description other than "vleeswaren ".

12 . In conclusion, I propose that the Court should rule as follows :

"The application to products imported from another Member State of national rules prohibiting the marketing, under a description specific to prepared meat products, of preparations whose ratio of water content to the content of organic non-fatty substances exceeds a certain maximum limit, is prohibited by Article 30 of the EEC Treaty if the products satisfy the requirements of the exporting State regarding the use of a description specific to prepared meat products and are lawfully marketed there under such a description ."

(*) Original language : French .

( 1 ) Directive on health problems affecting intra-Community trade in meat products ( OJ 1977 L 26, p . 85 ).

( 2 ) Case 178/84 Commission v Germany [1987] ECR 1227, paragraph 35 .

( 3 ) Case 193/80 Commission v Italy [1981] ECR 3019 .

( 4 ) Case 27/80 Fietje [1980] ECR 3839, paragraph 15 .

( 5 ) Judgment in Case 182/84 Miro BV [1985] ECR 3731 .

( 6 ) Paragraph 23 .

( 7 ) Paragraph 24 .

( 8 ) Paragraph 25 .