(d)

However, it may perhaps be pointed out that the system set up by the Netherlands Decree is of the same kind as that provided for by a number of Council directives on the approximation of the laws of the Member States relating to certain foodstuffs, such as that of 24 July 1973 relating to cocoa and chocolate products intended for human consumption (Council Directive 73/241/EEC, Official Journal 1973, L 228, p. 23) or that of 27 June 1977 relating to coffee extracts and chicory extracts, (Directive 77/436/EEC, Official Journal 1977, L 172, p. 20). In these circumstances if a national set of rules only, as it were, anticipates a system set up on a Community scale, how could those rules still be considered to be incompatible with Community law? This argument seems to me to be only superficially conclusive. In the first place it is not certain that the descriptions laid down by a regulation such as the Decree, are, when considered in detail, completely comparable to those laid down by the directives. The latter appear to make many more distinctions between the products to which they apply and those distinctions are consequently based on more discriminating criteria. I would cite by way of example Annex I to Directive 73/241/EEC which lists no less than 13 categories of chocolate. In the second place I think that the descriptions in question may be critized on the ground that they are somewhat arbitrary, and this is a complaint which cannot be made against Community descriptions. Thus in the Netherlands Decree the minimum alcoholic strength is not the same for the beverages which have to bear the compulsory description provided for by the general rule contained in Article 1 and for those which are covered by the exceptions contained in Article 2 and qualify for the derogations from that obligation. When questioned by the Court on this point the Netherlands Government replied in a way which, far from giving me satisfaction, seemed to me on the contrary to bring this arbitrariness to the forefront. The products which are in fact exempted by Article 2 (a) are products traditionally known as liqueurs, a test adverse to the products of the other Member States, which, with certain exceptions, are not so well known to consumers in the Netherlands as domestic products. The particular features whereby advantage may be taken of Article 2 (b) scarcely appear to be more satisfactory: the beverages falling under this provision are not claimed to be “genuine” liqueurs (“echte likeuren”) but to be “a group of fruit beverages which are most certainly liqueurs according to the definition but which are not regarded as such in practice”. These fruit beverages have a lower alcoholic strength than “likeuren” which is what the Netherlands Government undoubtedly has in mind when it mentions “genuine” liqueurs. If they were covered by Article 1 they would have to be described as “tus-senlikeur” or “verloflikeur” — which, moreover, the accused in the main proceedings and the Commission told the Court, without being contradicted, were little known to the consumer in the Netherlands. They are only exempted because of their descriptions, which are in Dutch and are contained in the restrictive list in Article 2 (b). It therefore seems to me that the same objection may be made to the second distinguishing criterion as has been made to the first. These considerations show that in their content alone the Community directives on the approximation of laws and national rules of the kind under consideration seem to me to follow different paths. But it is above all because of the differences in their nature that the comparison between them from the point of view of their effect on intra-Community trade, which is what is of interest in this case, appears to be difficult. By its nature, a directive adopted by the Council of the Community — save for limited and accepted exceptions — applies uniformly in the nine Member States and this, in law, places all products that happen to be in the Community on an equal footing. A national regulation on the other hand, by its nature, has a field of application confined to the frontiers of the Member State which adopted it, with the constraints which that may entail in the case of products coming from other Member States. Finally, it goes without saying that the possibility of obtaining exemptions from the obligation to use a description cannot alter my opinion. It is in fact clear from the Court's judgment of 24 January 1978 in Case 82/77 Openbaar Ministerie of the Kingdom of the Metherlands v Jacobus Philippus van Tiggele [1978] ECR 40 that “the requirement that importers and traders must comply with the administrative formalities inherent” in a system of exemptions, even if granted freely, may “in itself constitute a measure having an effect equivalent to a quantitative restriction” (paragraph 19 of the decision).