JOINED OPINIONS OF MR ADVOCATE GENERAL VAN GERVEN DELIVERED ON 5 JULY 1990. - COMMISSION OF THE EUROPEAN COMMUNITIES V ITALIAN REPUBLIC. - CASE C-210/89. - CRIMINAL PROCEEDINGS AGAINST NESPOLI AND CRIPPA. - CASE C-196/89.



European Court reports 1990 Page I-03647



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . In the two cases now before it, the Court is being asked to follow its established case-law concerning the free movement of goods and national rules on the preparation of products .

The proceedings in Case C-210/89 concern an action under Article 169 of the Treaty for a declaration against the Italian Republic inasmuch as it has made the importation of cheese from other Member States conditional upon compliance with the provisions of Law No 396 of 2 February 1939, and in particular Article 1 of that law, which prohibit the production and sale of cheese whose minimum fat content is lower than the percentage prescribed by the relevant national rules . According to the Commission, in so doing the Italian Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty and Article 22(1 ) of Regulation ( EEC ) No 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products . ( 1 )

In Case C-196/89 the Pretura di Milano ( Magistrates' Court, Milan ), in proceedings concerning a specific infringement of the aforesaid provisions of Italian law, has submitted a question to the Court for a preliminary ruling on the compatibility with Community law of applying such provisions to cheese products imported from other Member States . The question is worded as follows :

"Are Articles 30 and 36 of the Treaty of Rome to be read and interpreted as meaning that the Italian legislation on cheese other than that protecting 'typical local' products or products of specific origin is not compatible with those articles and is therefore unlawful, in so far as it lays down for ordinary cheeses minimum fat contents by reference to dry weight, at a high level, moreover, where it is established that those rules constitute an obstacle to the free movement of such foodstuffs within the Community which is not justified on grounds of the protection of public health or by the mandatory requirements of protecting consumers and ensuring fair trading?"

2 . According to the Commission, Mr Crippa and Mr Nespoli - the accused in the main proceedings in Case C-196/89 - and the French Government, which has intervened in those proceedings for a preliminary ruling, the established case-law of the Court provides the answer to the question raised . I shall briefly consider that case-law which, in my view, does indeed provide the answer .

By implication that will answer the sole argument put forward by the Italian Government in both cases, namely that there is a serious risk of creating confusion in the minds of consumers if the existing Italian practice is not maintained . After considering the established case-law of the Court, I shall briefly return to that argument in order to deal with it expressly .

I shall also briefly consider the observations submitted by the Associazione italiana lattiero-casearia ( Italian Association of Dairy Producers ) in Case C-196/89 . Those observations are concerned with the reverse discrimination that would come into existence if, according to the established case-law of the Court, restrictions on the manufacture or marketing of goods which cannot be justified by mandatory requirements could be applied to domestic producers alone . As I shall demonstrate below, in my view that argument must be rejected in accordance with the established case-law of the Court .

The established case-law of the Court

3 . The premiss on which the established case-law of the Court is based is that Member States may adopt rules on the manufacture and marketing of ( cheese ) products within their territory in the absence of any rules of Community law thereon . ( 2 ) "Such rules cannot, however, discriminate against imported products or hinder the importation of products from other Member States ". ( 3 )

In its judgment in the Kelderman case ( 4 ) the Court stated that :

"The extension to imported products of a requirement that they contain a specific amount of dry matter may prevent bread originating in other Member States from being marketed in the State concerned . It may make it necessary to vary the method of manufacture according to the place where the bread is to be sold and thus impede the movement of bread lawfully produced in the Member State of origin if identical manufacturing standards are not prescribed in that State ."

That consideration is wholly applicable in this case, provided the words "dry matter" are replaced by the word "fat" and the word "bread" by the word "cheese ".

The judgment in Kelderman was concerned with an absolute prohibition on marketing, meaning that products not manufactured in accordance with the national rules on preparation were barred from being sold in the Member State concerned . According to Italy' s interpretation of its own rules, given inter alia in reply to a written question from the Court, the Italian legislation imposes only a relative prohibition on marketing . This means that products not manufactured in accordance with the Italian rules on the preparation of cheese, for instance because their fat content is not sufficient, cannot be sold under generic names such as, in this case, "cheese" (" formaggio ") or "cheese product" (" prodotto caseario "). ( 5 )

In any event - the interpretation suggested by the Italian Government does not strike me as the only possible one on the basis of the wording of Article 1 of Law No 396 - even a relative prohibition on marketing may not be applied to products imported from other Member States in which they may bear either the same or corresponding indications . The reasons for this were only recently explained by the Court, clearly and in full, in paragraphs 6 and 24 to 37 of its judgment in the German beer case . ( 6 )

4 . National provisions of that kind which are applicable without distinction to domestic products and to goods imported from other Member States may be regarded as compatible with the Treaty only if, in compliance with the principle of proportionality, they are rendered necessary by mandatory requirements such as the protection of public health or the protection of consumers and ( closely connected therewith ) fair trading . ( 7 )

In this case, the Italian Government does not rely upon the protection of public health, which is understandable in view of the guidelines on health emanating from both the Italian authorities ( 8 ) and the European Commission, ( 9 ) whose thrust is that fat consumption amongst the population of most of the Member States of the Community, including Italy, is excessive .

5 . The Italian Government relies on the mandatory requirement of protecting consumers or - closely connected therewith - ensuring fair trading .

In the case-law of the Court it is made clear that a measure imposing a total prohibition on sales of products manufactured in other Member States in accordance with the production rules in force there, still less a measure which prohibits the use of generic names such as, in this case, "cheese" (" formaggio ") or "cheese product" (" prodotto caseario ") and which therefore requires less attractive descriptions or fancy names to be used, cannot be regarded as the least restrictive solution for the purposes of consumer protection ( or fair trading ). I have already referred to the judgment of 12 March 1987 in the German beer case for an example of a relative prohibition on marketing . That judgment also refutes the argument relied upon by the Italian Government in a letter from its Permanent Representation, to the effect that a generic name such as "cheese" should be reserved for products which the consumer, under the influence of national production rules, regards as such . In paragraph 32 of that judgment the Court stated that :

"First, consumers' conceptions which vary from one Member State to the other are also likely to evolve in the course of time within a Member State . The establishment of the common market is, it should be added, one of the factors that may play a major contributory role in that development . Whereas rules protecting consumers against misleading practices enable such a development to be taken into account, legislation of the kind contained in Article 10 of the Biersteuergesetz prevents it from taking place . As the Court has already held in another context ( judgment of 27 February 1980 in Case 170/78 Commission v United Kingdom [1980] ECR 417 ), the legislation of a Member State must not 'crystallize given consumer habits so as to consolidate an advantage acquired by national industries concerned to comply with them' ."

6 . As a less restrictive alternative to a prohibition on sales or on the use of generic names, the Court has referred in its judgments to the possibility of informing the consumer by means of proper labelling as to the composition and the characteristics of the product concerned . To depart from that established case-law on the ground, as set out in a letter of 18 April 1988 from the Italian Permanent Representation to the Commission, that reliance on the labelling would amount to "harmonization of quality at the lowest level" ( thereby referring to the possibility available at the time of choosing cheeses with a low fat content ) underestimates the ability of consumers to weigh the price and quality of products against one another . In that connection I leave open the question whether, taking Case C-196/89 as an example, cheese of the Emmenthal type with a fat content of 30% is necessarily of inferior quality to cheese of the same type with a fat content of, for instance, 45%, also having regard to the health considerations referred to above .

"Confusion of consumers" and "reverse discrimination"?

7 . The only argument put forward by the Italian Government in its written observations is that consumers would be seriously confused if, as a result of the free movement of goods, they were confronted with an Emmenthal-type cheese with a fat content of, for instance, less than 45%, whereas cheese of the same type produced and sold in Italy had a minimum fat content of 45 %.

That argument cannot be upheld . It is scarcely credible to maintain that, for the protection of consumers, it is necessary to impose as the least restrictive measure and one which is strictly necessary, a prohibition on imports or on the use of a name as regards cheeses of a specific type which are lawfully produced in another Member State of the Community . Labelling, that is to say the provision of more or better information, is an effective and less restrictive alternative in modern society which is made up of well-informed citizens .

8 . According to the Associazione italiana lattiero-casearia, the Treaty provisions concerning the free movement of goods in conjunction with existing national rules which impose strict standards as regards the production or description of cheese, for example, have the effect of placing national producers at a disadvantage in relation to their rivals in other Member States . The intervener goes so far as to suggest that this difference of treatment is contrary to the second subparagraph of Article 40(3 ) of the Treaty .

In my view, that assertion as well is incompatible with the established case-law of the Court . The possibility that the production of a single product, for instance cheese, may be subject to different production rules in different Member States is the direct result of the absence of harmonizing or other relevant provisions of Community law and of the possibility thereby left to the Member States of regulating the activities carried on within their territory themselves .

That undoubtedly leads to differences which may, in the light of the case-law of the Court authorizing in principle ( that is to say without prejudice to mandatory requirements ) the entry into the territory of one Member State of products lawfully manufactured in other Member States, place a country' s own producers in a less advantageous position . However, that does not run counter either to the spirit or to the letter of the EEC Treaty which favours instead the repeal or dilution, by the competent national authorities, under pressure from domestic producers, of more stringent national provisions which are not strictly necessary ( and frequently have a protectionist slant ).

Conclusion

9 . In the light of the foregoing, I propose that, in Case C-210/89, the Court declare that the Italian Republic has failed to fulfil its obligations on account of the application to goods imported from other Member States of rules imposing an absolute prohibition on sales or a prohibition on sales under the name "cheese", even though those goods have been lawfully manufactured and may be described as "cheese" in the Member State of production in accordance with the production rules in force there . I also propose, therefore, that the Italian Republic should be ordered to pay the costs in that case .

10 . In Case C-196/89 I propose that the Court answer the question submitted for a preliminary ruling as follows :

"Article 30 et seq . of the EEC Treaty must be interpreted as precluding national rules which make the use of the names 'cheese' or 'cheese product' subject to compliance with a minimum fat content from being applied also to products imported from another Member State, which are lawfully manufactured and marketed there as 'cheese' and on which consumers are provided with proper information ."

(*) Original language : Dutch .

( 1 ) OJ, English Special Edition 1968 ( I ), p . 176 .

( 2 ) Judgment in Case 237/82 Jongeneel Kaas v Netherlands [1984] ECR 483, paragraph 13 .

( 3 ) Ibid .

( 4 ) Judgment in Case 130/80 [1981] ECR 527, paragraph 7 .

( 5 ) The fact that this case is concerned with the most generic term that exists for cheese products, namely "cheese", distinguishes it from situations in which the name used necessarily presupposes the existence of a typical ingredient or method of production and the product offered for sale is substantially different . In that connection, at the hearing the Associazione italiana lattiero-casearia referred to the answer given by the Commission to a question from the European Parliament concerning cheese manufactured from cow' s milk which may not be marketed in Greece under the name "Feta" ( answer to Written Question No 2302/87 by Mr Pol Marck ( 90/C 9/03 ), OJ 1990 C 9, pp . 2 and 3 ). It is clear from the Court' s judgment in Case 286/86 Ministère public v Deserbais [1988] ECR 4907 that that situation - which I need not consider - does not arise here . In that judgment, the Court treated a very similar restriction on the use of a name far less generic than the term "cheese", namely "Edam", as being contrary to Article 30 et seq . of the EEC Treaty .

( 6 ) Case 178/84 Commission v Germany [1987] ECR 1227 .

( 7 ) Judgment in Case 120/78 REWE-Zentral v Bundesmonopolverwaltung fuer Branntwein [1979] ECR 649, paragraph 8 . The last two requirements referred to in the text are at times merged into a single requirement : see the Opinion of Mr Advocate General Mayras in Case 27/80 Fietje [1980] ECR 3839, who on p . 3861 uses the phrase "the protection of the consumer against unfair commercial practices ".

( 8 ) As far as the Italian authorities are concerned, the national court refers, by way of example, to the health campaign conducted in 1986 by the Istituto nazionale della nutrizione, one of whose fundamental themes was reducing fat consumption .

( 9 ) See the programme "Europe against Cancer" submitted by the Commission to the Council on 17 December 1986 ( COM(86 ) 717 final, OJ 1987 C 50, p . 1 ), in the section entitled "Improvement in nutrition", see the subsection entitled "Nutrition and cancer" ( pp . 15 and 16 ) and in the section entitled "Elaboration of guidelines relating to nutrition and cancer prevention", see "Action 16" ( on p . 18 ), and the "European Code against Cancer" ( p . 32 ). In those passages, an excessively fatty diet is invariably referred to as a risk factor . Subsequently, the Council and the representatives of the governments of the Member States meeting within the Council adopted an action plan for 1988 to 1989 by Decision of 21 June 1988 ( 88/351/EEC, OJ 1988 L 160, p . 52 ). The action planned for 1990 to 1994 was adopted by Decision of 17 May 1990 ( 90/238/Euratom, ECSC, EEC, OJ 1990 L 137, p . 31 ).