4.

Position taken by the parties taking part in the proceedings before the Court. Two opposing viewpoints were put to the Court: on the one hand, that of Twee Provinciën, on the other, that of the Netherlands Government and the Commission. I shall describe them briefly. Twee Provinden — after initially mentioning that the compulsory inclusion of the F mark makes for distortion of the conditions of competition ( 10 ) — argues that the labelling directive is applicable to the measure at issue and that that measure is incompatible therewith. Its reasoning is in three stages. In the first place, it argues that its cheese is a foodstuff within the meaning of the directive. Secondly, it maintains that the national cheese mark, albeit supplied by the State and required to be affixed to cheeses by producers, constitutes ‘words, pictorial matter or a symbol’ which ‘relate to a foodstuff’ or, in any event, ‘accompanies a foodstuff’ within the meaning of Article l(3)(a) of the directive. Thirdly, in Twee Provinciën's view, the requirement to indicate letters differing according to the region of production concerned cannot be brought within one of the justificatory grounds exhaustively listed in Article 15(2) of the labelling directive for the application of non-harmonized national provisions. Cheese production in the Netherlands is generally carried on using the same method. Since the cheeses have no properties capable of identifying them from the point of view of their different regional provenance, the particulars as to provenance required by the Netherlands measures do not perform any specific function and consequently, according to the case-law of the Court, are in breach of Article 30 of the EEC Treaty. Both the Netherlands Government and the Commission argue in contrast that the labelling directive is not applicable in this case. The requirement to include a letter varying according to the region of production does not in their view constitute labelling within the meaning of Article 1(1) of the directive. Their arguments to this effect are sufficiently different as to warrant their being set out separately. According to the Netherlands Government, the national cheese mark is not a label but a control mark which is applied to an unpackaged (whole) cheese. It describes the cheese mark as a colourless, perforated wafer made of casein, five to seven centimetres in diameter pressed into the (whole) cheese. The national cheese mark, which includes the letter specific to the region, makes it possible to trace back a particular (whole) cheese to a particular producer, a particular production date and even a particular batch or consignment. Since cheese is generally cut up (in a packaging plant or at the point of sale) before it is supplied to the ultimate consumer, it will be pure chance if the consumer should get to see the national mark or any part of it. Even if he does, the average ultimate consumer will not know what the code letter signifies. According to the Netherlands Government, all in all the cheese mark does not perform the function of a label, that is to say, of informing the ultimate consumer; in contrast, the mark indicates that the cheese was produced in conformity with the statutory provisions and satisfies certain quality requirements. The place of production can be identified using the code in the course of (spot) checks. The Commission bases its argument principally on a teleological interpretation of the labelling directive. In its view, the aim of the directive is to inform and protect the consumer and the term ‘labelling’ within the meaning of Article 1(1) should be read in that light. Labelling is based on particulars intended for the ultimate consumer in order to inform him or influence his behaviour. Particulars on foodstuffs labelling which are not of direct interest to the ultimate consumer should not be categorized as labelling, for instance, particulars relating to fiscal, health or quality standards controls. To prohibit such particulars would not serve the ultimate consumer and would be seriously detrimental to the possible controls open to the public authorities. The Commission considers that it is clear that that was not the intention of the Community legislator from a declaration on interpretation made by the Council and the Commission when the Council directive was adopted. According to that declaration, ‘this Directive does not concern labelling relating to the prices, fiscal control, batch identification, health control or quality standards control’. In the Commission's view, that declaration is exemplified by this case: the consumer will appreciate immediately that the serial number and the combination of letters or letters and numbers on the national cheese mark have nothing to do with the characteristics of the cheese, but constitute simply a control mark. ( 11 )