5.

It is exceptional for action to be taken against a Member State under Article 171 of the EEC Treaty for failure to fulfil an obligation. To my knowledge, this is only the third such action. According to Article 171, if the Court finds that a Member State has failed to fulfil an obligation under the Treaty, the State is required to take the necessary measures to comply with the judgment of the Court. The Commission seeks a declaration that: ‘by continuing to restrict the designation “vinegar” exclusively to wine vinegar, although such a restriction was held to be incompatible with Article 30 of the EEC Treaty by the Court of Justice in its judgment of 9 December 1981 in Case 193/80, the Italian Republic has failed to fulfil its obligations under Article 171 of the Treaty’. Let me say at once that I intend to find in favour of the Commission. The Court has already pointed out that wine vinegar is a ‘typically national product’ in Italy (paragraph 20 of the decision in Case 193/80). Accordingly, the Court has already taken into consideration the special nature of the Italian market, as described by the Italian Republic, namely that in Italy only wine vinegar was known and marketed particularly as a result of the restrictive legislation previously in force. In its judgment, the Court acknowledged that ‘in the absence of common rules relating to the marketing of a product it is for the Member States to regulate on their own territory all matters relating to the marketing of that product and that obstacles to movement within the Community resulting therefrom must be accepted’ (paragraph 21 of the decision in Case 193/80). However, it immediately went on to emphasize that the rules laid down must be necessary and held that there was no mandatory requirement such as the protection of public health, consumer protection or fair trading which made it possible to regard the Italian legislation on vinegars of agricultural origin as necessary. The Court took account of the argument that Italian consumers have become accustomed to the term ‘aceto’ being used in commerce for wine vinegar alone, which the Italian Republic has again advanced in this case, but, whilst the Court conceded that it was necessary for the Italian Government to afford protection to consumers, it stated quite unequivocally in paragraph 27 of its decision that it was sufficient for that purpose to affix ‘suitable labels giving the nature of the product sold and containing a description or additional information specifying the type of vinegar offered for sale, provided that such a requirement applies to all vinegars including wine vinegar’ (emphasis added). The Court expressed itself in those terms after stating in paragraph 26 of its decision that ‘vinegar is a generic term and it would not be compatible... in particular with the fundamental principle of the free movement of goods for national legislation to be able to restrict a generic term to one national variety alone to the detriment of other varieties produced, in particular, in other Member States’. The Court therefore accepted a distinction based on an indication of the raw material used in the manufacture of vinegar, and not on a description of that product when it is marketed. Can it be said that by substituting ‘agro’ for ‘aceto’ as the generic designation, the Italian Republic has made no more than an insignificant alteration in the terminology within the limits set by the Court in its judgment? I do not think so. There is no need in that regard to engage in lengthy semantic disquisitions. It is sufficient to state that if the term ‘aceto’ is maintained in order to designate wine vinegar, it will, in view of the ‘time-honoured tradition’ relied upon by the Italian Government in these proceedings, continue to have in the minds of consumers the generic meaning which the new Italian law seeks to attribute to the term ‘agro’. Consequently, the compulsory restriction of the designation ‘aceto’ to wine vinegar alone will perpetuate in this respect the situation which the Court criticized in its judgment of 9 December 1981. That should not have been the outcome of the application of Article 171 of the EEC Treaty in the light of the Court's judgment which seeks to preserve the comprehensive character of any generic description. Since the consumer can be protected by other means, in particular by the methods carefully spelt out by the Court, I cannot advise the Court to uphold the position adopted by the Italian Government.