(b)

The second question, which is more difficult to answer, follows from that basic proposition and seeks to ascertain whether it is possible to speak of a measure having equivalent effect to quantitative restrictions within the meaning of Article 30 of the EEC Treaty when goods have not been produced and marketed in accordance with the law of the Member State from which they are imported. That question, as the Commission points out, is obviously inspired by the Cassis de Dijon decision (Case 120/78, Rewe ( 3 )), in which the Court of Justice held that the fixing of a minimum alcohol content for alcoholic beverages intended for human consumption, even though it applied without distinction to both homeproduced and imported products, fell within the prohibition laid down in Article 30 “where the importation of alcoholic beverages lawfully produced and marketed in another Member State is concerned”. At first sight, it might be inferred from the latter condition that a measure having equivalent effect within the meaning of Article 30 only exists when the goods from another Member State whose importation or marketing is being restricted have been produced and marketed in accordance with the law of that State. It can be argued in favour of that view that only measures capable of restricting intra-Community trade are prohibited by Article 30 of the EEC Treaty. It can be further argued that a product which is not produced and marketed in accordance with the law of its country of origin cannot, by definition, benefit from the free movement of goods guaranteed by the EEC Treaty. A closer analysis of the Cassis de Dijon judgment ( 4 ) and of the ensuing cases shows however that the Court of Justice did not intend that the question whether a product was produced and marketed in accordance with the law of its country of origin should be an additional criterion to be applied in deciding whether or not a measure having equivalent effect exists. It has been made clear since the abovementioned judgment that even national marketing rules which apply without distinction to both homeproduced and imported products may constitute restrictions on intra-Community trade if such measures are not necessary to satisfy certain imperative requirements relating, for example to effective tax control, fair trading and consumer protection. The purpose of the condition in question is to make clear, as is obvious from the later judgments (see Case 53/80, Officier van Justitie v Eyssen, and Case 272/80, Frans-Nederlands Mattschappij voor Biologische Producten ( 5 )), that, if a product has been produced and marketed in accordance with the law of the Member State of origin, additional requirements in the importing State will only be legitimate when they are necessary in order to satisfy the aforementioned imperative requirements. That conclusion, which takes into account the facts of the case, does not however justify as such the converse proposition that a restriction on the importation of a product which has not been produced in accordance with the law of its country of origin is not to be regarded as a measure having equivalent effect within the meaning of Article 30. It would, in my opinion, be wrong in principle if consideration of the question whether or not a product was produced and marketed in its country of origin in accordance with the legislation there applying were divorced from the facts of the case. The question whether a restriction on trade is to be regarded as a measure having equivalent effect in Community law can only be answered on the basis of Community law and not on the basis of the various national legal systems. Moreover to take account of the internal law of the Member States in order to determine whether national trade rules are to be regarded as measures having equivalent effect within the meaning of Article 30 of the EEC Treaty would also generally lead to practical difficulties. The legislation in question often goes into great detail, is complicated and is difficult to understand. If the customs authorities of a Member State had to decide whether or not particular goods had been marketed in accordance with the law of another Member State, they would encounter difficulties, including, for example, those of a linguistic nature, which would be difficult to overcome. National authorities and courts cannot be required to know and to be able to apply the legislation in force in the ten, perhaps soon to be twelve, Member States. Moreover, account would also have to be taken, in verifying that a product had been lawfully produced and marketed, of the question whether the legislation of the other Member State was in conformity with Community law. That result cannot be right. All that can be required of national authorities is that they apply both their own national law and Community law correctly. On those grounds, I agree with the view of the defendant in the main proceedings, and with the German, French and Netherlands Governments, that the question whether the apples in question were produced and marketed in the country of origin in accordance with legislation applying there is not decisive in determining whether or not the Netherlands legislation at issue is to be regarded as a measure having equivalent effect within the meaning of Article 30 of the EEC Treaty. That aspect can at most be taken into account in considering the question of whether or not the national legislation at issue is justified as being necessary to meet the imperative requirements referred to in the Cassis de Dijon judgment ( 6 ) or is justified on one of the grounds set out in Article 36 of the EEC Treaty.