3.

It is true that, notwithstanding the prohibitions contained in Articles 30 and 34 of the EEC Treaty, Member States are not entirely deprived of the power of promulgating, where certain conditions are satisfied, provisions which impose a direct or indirect obstacle to trade within the Community. In that regard, the judgment of 20 February 1979 in Case 120/78, REWE ν Bundesmonopolverwaltung für Branntwein [1979] ECR 649, stated that Member States retain the power to introduce restrictions which are “necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer”. As I observed in the opinion which I delivered on 27 September 1979 in Case 15/79, Groenveld ν Produktschap voor Vee en Vlees, that list (which, as the expression “in particular” which precedes it signifies, is purely illustrative) only partly corresponds to Article 36 of the EEC Treaty and recognizes in broader terms the lawfulness of national rules departing from the Community prohibitions subject to the condition that those rules “serve a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods, which constitutes one of the fundamental rules of the Community” (paragraph 14 of the decision in the above-mentioned judgment of 20 February 1979). I do not consider, however, that a rule of the same kind as the Italian one which has given rise to the main proceedings may be regarded as justified in the light of the tests mentioned in the REWE judgment of 20 February 1979. First, in fact, the prohibition on placing on the market and using for foodstuffs intended for human consumption any kind of vinegar which has not been produced by the acid fermentation of wine may not be regarded as justified by the need to protect public health. In particular, apple vinegar is not injurious to health: that appears even from analyses carried out for the criminal proceedings pending before the Italian court. In its observations submitted on 8 November 1979 to the Commission (after, as has already been mentioned, the Commission had commenced the procedure under Article 169 of the Treaty) the Italian Government itself did not adopt the view that the Italian rules were necessary to protect public health. Secondly, the restrictive measures in question cannot be said to be justified as a means of safeguarding fairness in commercial relationships or the position of consumers. The latter may be well protected by means of rules on labelling which require a clear indication of the ingredients of which certain foodstuffs are composed and that without putting in jeopardy the free movement of goods. A solution of that nature was envisaged in the same REWE judgment of 20 February 1979. The issue in that case was whether Community rules left a Member State free to fix a minimum alcohol content for beverages sold on its territory at a higher level than Community standards and the Court held that it was not possible “to regard the mandatory fixing of minimum alcohol content as being an essential guarantee of the fairness of commercial transactions, since it is a simple matter to ensure that suitable information is conveyed to the purchaser by requiring the display of an indication of origin and of the alcohol content on the packaging of products”. Applying analogous tests to the present case I consider that the consumer is suitably protected where there is marked on the container of the vinegar, clearly and in the language of the country where it is marketed, that the product is not produced from the acetic fermentation of wine. Clearly, every Member State has the power to impose that precaution upon traders. In the observations submitted in the course of the procedure under Article 169 the Italian Government contended that the prohibitions contained in its legislation were indispensable for the effective avoidance and suppression of fraud in the preparation and sale of vinegar. I rather think that such an argument (unaccompanied, moreover, by any evidence) cannot be accepted. It suffices to bear in mind that in other countries, for example, in the Federal Republic of Germany, vinegar not derived from wine is widely sold without that giving rise to insuperable problems in regard to the investigation of fraud. In any event, it would appear to me to be difficult to show that the possible existence of technical difficulties in analysing the organoleptic characteristics of the product may constitute a sufficient ground for sacrificing the principle of the free movement of goods. Also in the observations to which I have already referred, the Italian Government contends that the restrictive rules are necessary in order to “guarantee an outlet for considerable quantities of wine which would otherwise flow back on to the market creating serious problems for its equilibrium, with associated intervention at the expense of the European Agricultural Guidance and Guarantee Fund”. But, as I have already observed in my opinion in Case 15/79 (already cited), “I do not think that the promotion of national products constitutes an interest of a general nature the protection of which, according to the case-law of the Court of Justice, justifies an exception to the free movement of goods within the Community.” Finally, as regards fiscal aims which might justify measures departing from the principle of free trade, it is hardly necessary to state that they have nothing to do with the matter of excluding from the market certain types of vinegar.