Opinion of Mr Advocate General Mischo delivered on 2 June 1988. - Proceedings for compulsory reconstruction against Smanor SA. - Reference for a preliminary ruling: Tribunal de commerce de L'Aigle - France. - Prohibition of the use of the name 'deep-frozen yoghurt'. - Case 298/87.



European Court reports 1988 Page 04489



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . Smanor SA ( hereinafter referred to as "Smanor ") is a French company specializing in the manufacture and wholesale of deep-frozen products, in particular natural yoghurts and yoghurts containing pieces of fruit which it subjects to a deep-freezing process on the basis of an invention for which it holds the patent . Since 1977 Smanor has been the subject of several attempts by the French authorities to prohibit it from marketing those products under the name "yoghurt" and to require it to sell them on French territory under the name "deep-frozen fermented milk ".

2 . In France, the use of the name "yoghurt" is governed by Article 2 of Decree No 63-695 of 10 July 1963 on the prevention of fraud with regard to fermented milk and yoghurt, as amended by Decree No 82-184 of 22 February 1982 . Article 2 is in the following terms :

"The name 'yoghurt' shall be used to designate only fresh fermented milk obtained, in accordance with proper and usual practices, from the growth solely of the specific lactic, thermophile bacteria known as Lactobacillus bulgaricus and Streptococcus thermophilus, which must be introduced at the same time and must be alive in the product put on sale at the rate of at least 100 million bacteria per gram .

The milk used for the manufacture of the yoghurt must not have been reconstituted . However, powdered milk, whether skimmed or not, may be added, up to a maximum dose of 5 grams of powder per 100 grams of milk used .

After the coagulation of the milk, the yoghurt must not be subjected, to any treatment other than refrigeration, and possibly stirring .

The amount of live lactic acid contained in the yoghurt must not be less than 0.8 grams per 100 grams at the time of sale to the consumer ."

3 . The question referred to the Court by the tribunal de commerce, L' Aigle, before which Smanor is the subject of compulsory reconstruction proceedings, relates to the interpretation, with regard to the abovementioned national rules, of

( 1 ) Articles 30 to 36 of the EEC Treaty, and

( 2 ) Articles 5, 15 and 16 of 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.(1 )

1 . Articles 30 to 36 of the EEC Treaty

4 . In its written observations, the French Government argues that "in this case the Court is faced with a situation which falls outside the purview of Community law, and in particular Article 30 et seq . of the EEC Treaty, inasmuch as the main proceedings concern only "the application of French law to a French company which produces deep-frozen 'yoghurt' on French territory" and, it later adds, "markets them in France ".

5 . France therefore proposes that the Court should rule that "Article 30 et seq . of the EEC Treaty do not apply to situations which are purely internal to a Member State such as that at issue here ".

6 . In this respect it should first be noted that the French rules do in fact apply only to products sold on the French market . They therefore have no effect on exports and, consequently, it does not seem to me that there is any need to examine them in the light of Article 34 of the EEC Treaty relating to measures having an equivalent effect to quantitative restrictions on exports . Moreover, in the infringement proceedings which the Commission has since instituted against the French Republic, it has, it seems, likewise confined itself to calling in question the French legislation under Article 30 alone .

7 . It is clear that Article 30 cannot apply to situations which are purely internal to a Member State . Thus for example, in its judgment of 15 December 1982 in Case 286/81 Oosthoek' s Uitgeversmaatschappij (( 1982 )) ECR 4575, at paragraph 9, the Court expressly found that "the application of Netherlands legislation to the sale in the Netherlands of encyclopaedias produced in that country is in no way linked to the importation or exportation of goods and does not fall within the scope of Articles 30 and 34 ".

8 . But it must not be overlooked that, in the context of a reference for a preliminary ruling, the Court is not required to examine directly the main dispute and the facts of the case . The question whether, on its facts, the case does indeed, relate to a purely internal situation is for the national court to decide .

9 . Were the national court to arrive at the conclusion that the dispute before it merely concerns the application of French legislation to the sale in France of yoghurt produced in France, then that state of affairs would indeed have no connection with the importation of goods and would not come within the purview of Article 30 .

10 . However, it is clear from the consistent case-law that it is for the national courts to assess the relevance of the questions they refer to the Court in the light of the facts of the case before them ( 2 )and that the Court has never declined to reply to them, even when it was difficult to envisage how its reply could have any effect on the resolution of the main dispute,(3 )unless the questions were asked in the context of proceedings being in the nature of "pre-arranged procedural devices".(4 )That is clearly not so in the present case .

11 . The national court seems to take the view that it is faced with a problem having at least some connection with intra-Community trade . It is not asking the Court to rule on Smanor' s situation in relation to French legislation, but in its question is raising two problems relating to the interpretation of Community law .

12 . The first is in effect whether Article 30 of the EEC Treaty precludes a Member State from restricting the right to use the name "yoghurt" solely to the fresh product, to the exclusion of deep-frozen products .

13 . The Court therefore has once again to consider the familiar problem of national rules which apply without distinction to domestic products and products which are imported ( or may be imported ).

14 . In this respect, there can be no doubt that national rules such as those mentioned by the tribunal de commerce constitute a quantitative restriction on imports, as defined in the consistent case-law of the Court, first laid down in its judgment of 11 July 1974 in Case 8/74 Procureur du Roi v Dassonville (( 1974 )) ECR 837, whereby "all trading rules enacted by Member States which are capable of hindering directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions ." ( paragraph 5 ).

15 . The regulations in question ban the sale in France under the name "yoghurt" of products lawfully manufactured and marketed under that name in other Member States on the sole ground that they have undergone a treatment other than refrigeration or stirring, in actual fact deep-freezing . It is evident from the Commission' s observations that deep-frozen yoghurt is in fact manufactured and lawfully marketed under that name in the United Kingdom and in Ireland . There are therefore at least potential channels of trade .

16 . As the Court held in its judgment of 16 December 1980 in Case 27/80 Fietje (( 1980 )) ECR 3839, "although the extension to imported products of an obligation to use a certain name on the label does not wholly preclude the importation into the Member State concerned of products originating in other Member States or in free circulation in those States, it may none the less make their marketing more difficult ... ( and ) is thus capable of impeding, at least indirectly, trade between Member States" ( paragraph 10; see also paragraph 15 of the Oosthoek judgment, cited above ).

17 . If foreign manufacturers are obliged to have a different name printed on the products they export to the French market, ( even though the packaging may automatically mention the words "deep-frozen yoghurt" in several languages ), they may thereby be caused to abandon such exports .

18 . Or, if the exportation nevertheless goes ahead, the product may encounter serious sales resistance on the part of many consumers who would perhaps be tempted to buy "deep-frozen yoghurt" but are not necessarily attracted by the name "deep-frozen fermented milk ".

19 . On the other hand, as the Commission rightly pointed out in its written observations ( point 48 ), a measure such as the one in issue, although indirectly applicable to imported and domestic products, has the effect of placing at a disadvantage imported products the transport and stocking of which in deep-frozen form would represent a considerable advantage in distribution, in favour of domestic production, which is more readily distributed in a fresh state .

20 . I may therefore conclude that rules such as those in question in this case can be compatible with the EEC Treaty only if they are covered by one of the exceptions provided for in Article 36 or by one of the imperative requirements referred to by the Court in its Cassis de Dijon judgment of 20 February 1979.(5 )

21 . The Court has consistently held that,(6 )in the absence of common rules governing the marketing of the products in question, obstacles to free movement within the Community arising out of differences between national rules must be tolerated if such rules are applicable without distinction to domestic products and imported products and may be justified as being necessary on the grounds of public interest set out in Article 36, such as the protection of health of persons, or imperative requirements relating inter alia to the protection of consumers or the fairness of commercial transactions . Such rules must also be proportionate to the objective pursued . If a Member State has a choice between different measures for achieving that objective, it must choose the means which impinges the least on freedom of trade .

22 . In this connection, it should first be stated that until recently there were no common or harmonized rules governing the manufacture or marketing of yoghurt . In such a case it is for each Member State to regulate, on its own territory, all matters relating to the composition, manufacture and marketing of these products.(7 )

23 . Since then Council Regulation No 1898/87 on the protection of designations used in marketing of milk and milk products has entered into force.(8 )But, although, on the one hand, this regulation expressly refers to yoghurt ( see the Annex thereto ), it contains no specific rules relating to its manufacture and composition and, moreover, continues to refer in the second indent of Article 2 ( 2 ) to descriptions within the meaning of Article 5 of Council Directive 79/112/EEC which, as we shall see, are those laid down in the laws, regulations or administrative provisions applicable to the products in question in the Member States . On the other hand, Article 5 thereof, authorizes the Member States to maintain their national rules restricting the manufacture and marketing on its territory of products not complying with the conditions referred to in Article 2 thereof only "subject to observance of the general principles of the Treaty ". It follows, as the Court stressed in its judgment of 23 February 1988 in Case 216/84 Commission v France (( 1988 )) ECR 793, that if the national rules in question are contrary to Article 30 of the EEC Treaty, it in no event satisfies the conditions laid down by the aforesaid Article 5 ( see paragraph 22 ).

24 . However that may be, it is therefore necessary to examine whether, in actual fact, the French provisions which have equivalent effect to quantitative restrictions on imports are justified on one of the grounds set out above .

25 . The protection of public health is not relevant because, on the one hand, the French provisions do not ban the marketing of the product in question on the ground that it is deep-frozen, but simply prohibit the use of the name "yoghurt ". On the other hand it is clear from the documents in the case that, when such products were being exported to non-member countries, the French authorities recognized that they were of "sound, proper and merchantable quality" and conceded that "no substance harmful to the health of consumers is used in their manufacture ."

26 . As regards consumer protection it is true that the Court has on several occasions ( 9 )acknowledged that a Member State' s concern to avoid confusion in the minds of consumers between products of the same type but having different characteristics and to inform them in as accurate a manner as possible about such differences particularly as regards their manufacture and composition, is in itself entirely legitimate and not open to question .

27 . Nevertheless, consumer protection may in general be effectively "ensured by methods which do not impede the importation of products lawfully manufactured and marketed in other Member States, in particular by means of the mandatory affixing of adequate labelling as to the nature of the product sold".(10 )

28 . That could be done in this case if the French rules allowed the name "yoghurt" to be used for the products in question, whilst at the same time requiring the addition of the words "deep-frozen" in order to highlight the specific treatment which they have undergone .

29 . Such a solution is all the more appropriate in the light of the expert opinion which Mr Hermier, Director of Research of the Institut national de recherches agronomiques ( National Institute for Agronomic Research ) was called upon to give in the context of the action brought by Smanor before the French Conseil d' Etat against Decree No 82-184 of 22 February 1982, in which it was stated that :

"Yoghurt sold in a fresh state and deep-frozen yoghurt contain viable lactic bacteria . The quantity thereof present in yoghurt sold fresh may remain constant during the whole period of sale permitted by the regulations . On the other hand, in the case of deep-frozen yoghurt, the number of viable lactic bacteria inevitably diminishes during the freezing process and then during the period of conservation in the frozen state . However, in spite of this diminution, the number of such bacteria may remain greater than the minimum of 100 million per gram ( limit set by the Decree of 22 February 1982 for yoghurt sold in a fresh state ) for some months at -18°C ."

30 . At the hearing, the agent of the French Government acknowledged that it is possible for the limit set by the French regulations to be complied with during the first three or four months of deep-freezing . The more recent scientific studies to which he referred as pointing to the existence of a tendency for the "actual activity" or the "effectiveness" or the "vitality" of the surviving lactic bacteria to diminish during this period appear not to be relevant in this case, as the French rules merely require the bacteria to be alive .

31 . As I have already pointed out, it is clear, lastly, from the Commission' s observations that deep-frozen yoghurt is in fact produced and lawfully marketed under that name in other Member States, in particular Ireland and the United Kingdom that only four Member States lay down a minimum number, which is in fact variable, of live bacteria which must be present, and that, above all, in no State other than France are yoghurt or deep-frozen fermented milk governed by specific regulations different from those for fresh fermented milk . The Codex Alimentarius of the Food and Agricultural Organization ( FAO ) and the World Health Organization ( WHO ) ( Standard No A-11a ) merely requires that in the finished product, the micro-organisms must be in a viable state and present in abundant quantities .

32 . That being so, the other imperative requirement within the meaning of the Cassis de Dijon judgment, namely the fairness of commercial transactions, cannot justify a Member State' s prohibition of the sale under the name "yoghurt" of fermented milk, even in a deep-frozen state, coming from other Member States, provided that it is properly and traditionally produced and marketed under the same name in the Member State of origin and the buyer is given the appropriate information .

33 . In fact, the Court has always held that in a common market system, 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.(11 )

34 . It should therefore be possible for deep-frozen yoghurt manufactured in other Member States to be marketed in France, a fortiori when that product, after undergoing deep-freezing, still satisfies the requirements laid down by the importing Member State for fresh yoghurt as regards the quantity of live lactic bacteria, which is the characteristic feature of yoghurt ".

35 . On the basis of all these considerations, I propose that the Court' s reply to the first part of the question asked by the tribunal de commerce, L' Aigle, should be that :

"The prohibition of measures having an equivalent effect to quantitative restrictions on imports within the meaning of Article 30 of the EEC Treaty precludes a Member State from applying to products imported from another Member State national rules which restrict the right to use the name 'yoghurt' to fresh yoghurt alone to the exclusion of deep-frozen yoghurt, when such products are properly and traditionally produced and marketed under the description 'deep-frozen yoghurt' in their Member State of origin and buyers are given appropriate information ."

2 . Council Directive 79/112/EEC

36 . In the context of the facts which are before the Court, the second part of the tribunal de commerce' s question seeks in substance to know whether Articles 5, 15 and 16 of Council Directive 79/112/EEC must be interpreted as meaning that they preclude national rules on the names under which products are sold from withholding authorization for the name "yoghurt" which has undergone deep-freezing .

37 . It is true that, as the French Government has stated, Directive 79/112/EEC seeks to approximate national laws on the labelling and presentation of food products and leaves the Member States to regulate the names under which foodstuffs are sold .

38 . Although Article 3 of the directive sets out the only particulars including primarily the name under which the product is sold which, subject to certain exceptions, must be mentioned on the labelling of foodstuffs, it does not attempt to harmonize the content of those particulars . On the contrary, Article 5 ( 1 ) expressly states that :

"The names under which a foodstuff is sold shall be the name laid down by whatever laws, regulations or administrative provisions apply to the foodstuff in question or, in the absence of any such name, the name customary in the Member State where the product is sold to the ultimate consumer ...".

39 . It follows, in my opinion, that the reference to Articles 15 and 16 of the Treaty is not relevant, as the French Government has moreover argued .

40 . Article 16 lays down a Community procedure whereby the Member States may either maintain in force or introduce national provisions in addition to the general provisions of the directive ( see the ninth recital in the preamble ). Pursuant to its terms, it applies where reference is expressly made to it, which is not the case as regards Article 5 .

41 . Article 15 ( 1 ) provides that :

"Member States may not forbid trade in foodstuffs which comply with the rules laid down in this directive by the application of non-harmonized national provisions governing the labelling and presentation of certain foodstuffs or of foodstuffs in general ."

This provision clearly refers to national non-harmonized rules on labelling and not to those on the name under which a product is sold pursuant to which one of the particulars which must mandatorily appear on the label is determined .

42 . As far as Article 5 is concerned, although it is true that it refers to the names provided for by the laws, regulations or administrative provisions of the Member States, its meaning and precise scope must nevertheless be assessed in the light of its general context .

43 . The sixth recital in the pramble to Directive 79/112/EEC states that :

"The prime consideration for any rules on the labelling of foodstuffs should be the need to inform and protect the consumer ."

It appears from the following recital that it was for this purpose that the list of information which must in principle appear on the label was decided upon .

44 . The 12th recital states that :

"The rules on labelling should also prohibit the use of information that would mislead the purchaser ..., to be effective, this prohibition should also apply to the presentation and advertising of foodstuffs ."

45 . Article 2 implements this prohibition by providing in paragraph 1 thereof in particular that :

"The labelling and methods used must not :

( a ) be such as could mislead the purchaser to a material degree, particularly :

( i ) as to the characteristics of the foodstuff and, in particular, as to its nature, identity, properties, composition, quantity, durability, origin or provenance, method of manufacture or production, ... ".

46 . This rule also applies to Member States in respect of the rules adopted by them with regard to the names under which products are sold . Since that name is one of the particulars which under Article 3 must appear on the label, it must not be capable of misleading the buyer . It is also significant that, in the absence of such rules, Article 5 ( 1 ) provides that that name shall consist of

"a description of the foodstuff and, if necessary, of its use, that is sufficiently precise to inform the purchaser of its true nature and to enable it to be distinguished from products with which it could be confused ".

47 . Furthermore, Article 5 ( 3 ) provides that :

"The name under which the product is sold shall include or be accompanied by particulars as to the physical condition of the foodstuff or the specific treatment which it has undergone ( e.g . powdered, freeze-dried, deep-frozen, concentrated, smoked ) in all cases where omission of such information could create confusion in the mind of the purchaser ."

48 . Like the Commission, I think that it may legitimately be inferred therefrom that a Member State cannot refuse to authorize a certain name for a product solely on the ground that that product has undergone a specific treatment, such a deep-freezing, provided, of course, that it continues, even after undergoing that treatment, to satisfy the other conditions laid down by the national rules for the authorization of the use of the name in question .

49 . Any other solution would bring about a reasult contrary to that which is sought . To prohibit the use of the name "yoghurt" for deep-frozen yoghurt would be likely to mislead the consumer and to conceal from him the true nature of the product . The name imposed by the French authorities, namely "deep-frozen fermented milk", seems to me particularly open to criticism in this respect since fermented milk does not normally contain germs of the streptococcus thermophilus or the lactobacillus bulgaricus, whereas the product in issue in the main proceedings does .

50 . Whether the product, having been deep-frozen, still satisfies the other conditions required by the national rules in order for the name "yoghurt" to be used is a question of fact which falls to be determined, in the context of a request for a preliminary ruling, by the court making the reference .

51 . It will find useful guidance on this point in the report drawn up by Mr Hermier, Director of Research of the Institut national de recherches agronomiques, to which I referred above . In particular, it will be for the national court to examine the conditions under which the deep-freezing is carried out and to take account of the minimum durability period which Smanor marks on its products ( this date is one of the particulars which, under Article 3 of Directive 79/112/EEC, must be indicated on foodstuffs .

52 . In the light of the foregoing observations, I propose that the Court' s reply to the second part of the question referred to it by the tribunal de commerce, l' Aigle, should be as follows :

"The provisions of Directive 79/112/EEC, in particular Article 5 thereof, must be interpreted as meaning that they prohibit a Member State from refusing to permit goods to be sold under the name 'yoghurt' in the case of products, whether imported or of national origin, which have undergone deep-freezing, provided that they comply with the other requirements laid down by the national rules for the authorization of such name in the case of fresh products ."

53 . Before concluding, I should nevertheless like to add the following two remarks :

"( 1 ) As Directive 79/112/EEC applies to the labelling and presentation of foodstuffs marketed in the whole of the Community without distinction as to the origin of those foodstuffs,(12 )the reply to the second question which I have suggested above should enable the national court to resolve the dispute pending before it, even were it to find that, as the French Government maintains, Smanor' s factual situation does not come within the scope of Article 30 et seq . of the EEC Treaty .

( 2 ) As Article 30 of the Treaty does not seek to ensure that goods of national origin invariably enjoy the same treatment as imported goods,(13 )the French legislature may, as Community law stands at present, maintain in force for national products, its rules concerning, in particular, the quantity of live bacteria . That might lead to 'reverse discrimination' to the detriment of domestic products, owing to the fact that a Member State is not permitted to prohibit the marketing, on its territory, under that name, of deep-frozen yoghurt imported from another Member State in which it is lawfully produced and marketed without necessarily satisfying the requirements of the French legislation . Such a situation, however regrettable it may be, can be remedied only by the approximation of national laws relating to the production and marketing of yoghurt ."

(*) Translated from the French .

( 1 ) Official Journal 1979, L 33, p . 1 .

( 2 ) See in particular the judgment of 29 September 1987 in Case 126/86 Gimenez Zaera v Institut national de la sécurité sociale et la trésorerie générale de la sécurité sociale (( 1987 )) ECR 3697, at paragraph 7 .

( 3 ) See in particular the judgment of 12 June 1986 in Cases 98, 162 and 258/85 Bertini and Others v Regione Lazio and Unità Sanitarie Locali (( 1986 )) ECR 1885, at paragraph 8 .

( 4 ) See judgment of 16 December 1981 in Case 244/80 Foglia v Novello (( 1981 )) ECR 3045, at paragraph 18 .

( 5 ) Case 120/78 REWE v Bundesmonopolverwaltung fuer Branntwein (( 1979 )) ECR 649 .

( 6 ) See, in addition to the Cassis de Dijon judgment of 20 February 1979, cited above under footnote 8, in particular the "Beer" judgment of 12 March 1987 in Case 178/84 Commission v Germany (( 1987 )) ECR 1227, at paragraph 28, as well as the judgments of 26 June 1980 in Case 788/89 Gilli (( 1980 )) ECR 2071, at paragraph 6, 9 December 1981 in Case 193/80 Commission v Italy (( 1981 )) ECR 3019, at paragraph 21, and 10 November 1982 in Case 261/81 Rau (( 1982 )) ECR 3961, at paragraph 12 .

( 7 ) See the very recent Milk substitutes judgment of 23 February 1988 in Case 216/84 Commission v France (( 1988 )) ECR 793, at paragraph 6 .

( 8 ) Official Journal 1987, L 182 of 3 July 1987, p . 36 .

( 9 ) See for example :

- the Petillant de raisin judgment of 4 December 1986 in Case 179/85 Commission v Germany (( 1986 )) ECR 3879, at paragraph 11;

- the Beer judgment of 12 March 1987 in Case 178/84 Commission v Germany ( cited above ) ECR 1227, at paragraph 35;

- the Milk substitutes judgment of 23 February 1988 in Case 216/84 Commission v France ( cited above ) ECR 793, at paragraph 10 .

( 10 ) See in particular the Beer judgment ( cited above ) ECR 1227, at paragraph 35 which refers to the abovementioned judgment of 9 December 1981 in Case 193/80, ECR 3019, at paragraph 27 .

( 11 ) See in particular the judgment of 26 November 1985, Case 182/84 Miro (( 1985 )) ECR 3731, at paragraph 24, and the Petillant de raisin judgment of 4 December 1986 ( cited above ) ECR 3879, at paragraph 11, which both refer to the judgment of 13 March 1984 in Case 16/83 Prantl (( 1984 )) ECR 1299 . See also to this effect the Cassis de Dijon judgment at paragraph 13 .

( 12 ) See the Court' s judgment of 18 February 1987 in Case 98/86 Ministère Publique v Mathot (( 1987 )) ECR 809, at paragraph 11 .

( 13 ) See to this effect the Mathot judgment ( cited above ) at paragraph 7 .