CELEX: 61981CC0261
Language: en
Date: 1982-09-21 00:00:00
Title: Opinion of Mr Advocate General Reischl delivered on 21 September 1982. # Walter Rau Lebensmittelwerke v De Smedt PVBA. # Reference for a preliminary ruling: Landgericht Hamburg - Germany. # Free movement of goods - Margarine. # Case 261/81.

OPINION OF MR ADVOCATE GENERAL
      REISCHL
      DELIVERED ON 21 SEPTEMBER 1982 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      The facts of this case which has been referred to the Court for a preliminary ruling on the interpretation of Article 30 of the EEC Treaty may be summarized as follows:
      By confirmation of sale of 23 July 1980 the German undertaking Walter Rau Lebensmittelwerke, Hilter, the plaintiff in the main action, undertook to supply to the Belgian undertaking, De Smedt, PvbA, Zemst, the defendant in the main action, 15000 kg of Deli vegetable margarine packed in 500 gram tubs having the shape of a truncåted cone at a price of DM 290 for 100 kg.
      Since at the time when the contraa was concluded Belgian law did not permit such margarine to be marketed unless it was in cube-form the seller warranted as a term of the contract that the margarine which it supplied could be marketed under the provisions of the EEC Treaty on the free movement of goods and the relevant decisions of the Court of Justice of the European Communities. The parties also agreed that the goods should be accepted and paid for only if they could be marketed in Belgium in tubs having the shape of a truncated cone.
      After the conclusion of the contract the relevant Belgian rules were replaced by Article 8 of the Royal Decree of 2 October 1980 on the manufacture and marketing of margarine and edible fats. That article reads as follows:
      “The reuil of composite margarine and edible fats which are not completely liquid at 20o C shall be prohibited where each block or its external packaging is not cube-shaped. This provision shall not apply to products having a net weight of less than 50 g or more than 2 kg.”
      After checking with the competent Belgian Ministry and being told that the marketing of margarine packed in tubs having the shape of a truncated cone was prohibited in Belgium the buyer repudiated the contraa for that reason. The seller thereupon brought an aaion before the Landgericht [Regional Court] Hamburg to compel performance of the contract.
      By order of 16 September 1981 the Vth Civil Chamber of the Landgericht Hamburg stayed the proceedings and pursuant to Article 177 of the EEC Treaty referred the following question to the Court for a preliminary ruling:
      “Is there a prohibited measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the Treaty establishing the European Economic Community if it is prohibited, as in Article 8 of the Belgian Royal Decree of 2 October 1980 on the manufaaure and marketing of margarine and edible fats, to market margarine or edible fats if each block or its external packaging is not cube-shaped and because of that prohibition margarine packaged in a different shape in another Member State in accordance with the provisions of that State has to be specially packaged in cube-form in order for it to be imported into the Kingdom of Belgium?”
      My views on that question are as follows:
      I — Admissibility of the reference for a preliminary ruling
      The Belgian Government, which has submitted observations on the request for a preliminary ruling, considers that in view of the judgment of the Court in the first Foglia v Novello case (
            2
         ) the reference is inadmissible because the main action does not consist of a genuine legal dispute. In its view the artificial nature of the action is evident in particular from the fact that criminal proceedings are pending against the defendant and its directors in which they are charged with having infringed the Belgian provisions concerning the packaging of margarine by having marketed the plaintiffs products.
      Even if that suspicion may not be entirely dismissed (not least because the Commission brought proceedings, at the instigation, moreover, of the plaintiff in the main action, to have the original Belgian packaging rules declared to be in breach of the Treaty but then withdrew the proceedings after the provisions were amended), I none the less concur with the opinion of the Commission and the plaintiff in the main action that the action pending before the court which has made the reference for a preliminary ruling is substantially different from the facts with which the Court was confronted in the first Foglia v Novello case. The special feature of that case, as the Court is well aware, was that in the Court's view the parties to the main action merely wanted to obtain a ruling that the legislation of another Member State was invalid by means of an action before a national court between two private individuals who were in agreement as to the result to be attained and who had inserted a clause in their contract in order to induce the national court to give a ruling on that question. Owing to the artificial nature of that expedient the Court held that it had no jurisdiction to rule upon the questions submitted.
      Following a further reference from the national court concerned the Court then explained in the second Foglia v Novello case (
            3
         ) that the duty assigned to the Court by Article 177 is not that of delivering advisory opinions on general or hypothetical questions but of assisting in the administration of justice in the Member States. It accordingly did not have jurisdiction to reply to questions of interpretation which are submitted to it within the framework of procedural devices arranged by the parties in order to induce the Court to give its views on certain problems of Community law which do not correspond to an objective requirement inherent in the resolution of the dispute.
      
      
         Conversely, the Court had expressly stated in the first Foglia v Novello case that its duty is to supply all courts in the Community with the information on the interpretation of Community law which is necessary to enable them to settle genuine disputes which are brought before them (paragraph 11 of the decision). Moreover, as the Court explained in the second Foglia v Novello (
            4
         ) case, the degree of legal protection may not as a rule depend on whether such a question is raised in proceedings between individuals or in an action to which the State whose legislation is called in question is a party in some way or another.
      As was emphasized in the judgment in the second Foglia v Novello case, in principle it is therefore for the court making the reference for a preliminary ruling to determine in the light of the facts of the case which it has to decide whether a question needs to be answered by way of preliminary ruling in order for it to give its judgment. If in proceedings between individuals questions are submitted which are intended to enable the national court to determine whether the legislation of another Member State is compatible with Community law, then, as is apparent from that judgment, both the court making the reference for a preliminary ruling and this Court must uke special care to prevent the parties from using the procedure under Article 177 for purposes other than those which the EEC Treaty intended.
      In this case, however, on application of those criteria such an abuse of procedure cannot be proven. After the judgment in the Cassis de Dijon (
            5
         ) case the parties to the main action were not entirely wrong to assume that the Belgian authorities would not impede imporution of the margarine which had been packed in accordance with the German legislation. In that respect it is understandable too that the contractual obligations to accept and pay for the goods were made dependent on whether it was possible to market the goods in Belgium.
      When that did not prove to be the case there then arose a “genuine dispute” in which the parties are plainly not in agreement as to the result to be achieved, unlike the situation in the first Foglia v Novello (
            6
         ) case. Therefore, as the court making the reference for a preliminary ruling has made clear, the question on the interpreution of Article 30 of the EEC Treaty needs to be answered in order for the dispute to be settled. Consequently the question must be considered admissible.
      II — The substance of the case
      In order to decide whether the: Belgian rules are compatible with the provisions of Community law the court making the reference for a preliminary ruling would like to know whether the prohibition contained in Article 8 of the aforesaid Royal Decree of 2 October 1980 as to the reuil of margarine having a net weight of more than 50 g and less than 2 kg if each block or its external packaging is not cube-shaped constitutes a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the EEC Treaty.
      
               1.
            
            
               In answering that question it should first be recalled that, as the Court has held in a consistent line of decisions, (
                     7
                  ) in the absence of common rules relating to the production and marketing of a product it is in principle for Member States to regulate all matters relating to its production and marketing (amongst which must be included rules as to packaging) on their own territory provided that no Community measures to harmonize national legislation on those matters have been adopted.
               However, as the Court has made clear in a consistent line of decisions dating from the Dassonville case, (
                     8
                  ) those rules must not hinder, directly or indirectly, actually or potentially, intra-Community trade.
               The next matter to examine is the extent to which such hindrances to intra-Community trade are justified by the interests referred to in Article 36 of the EEC Treaty or by imperative requirements relating to fair trading and consumer-protection.
            
         
               2.
            
            
               The defendant in the main action and the Belgian Government are in substantial agreement that for several reasons the Belgian rules in question cannot be regarded as a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the EEC Treaty. In their opinion the case-law of the Court, as expounded in the judgments in the Cassis de Dijon, (
                     9
                  )Gilli (
                     10
                  ) and other cases, cannot be relied upon for the purposes of this case as in those cases it was absolutely impossible to impon or market the products in question because their quality did not meet the requirements of the legislation of the country of importation. In this case, however, only the requirement as to the external packaging of the product, which moreover is comparable to the rules as to packaging applicable in the Federal Republic of Germany, need be complied with for the margarine to be imported into Belgium. Finally, it is argued that the provision in question does not prohibit the importation and marketing of margarine outright but merely lays down detailed requirements as to its sale by retail.
               I agree with the plaintiff in the main action and the Commission that that line of argument is not valid. First, as the Court has again emphasized most recently in the Blesgen case, (
                     11
                  ) any rules as to marketing may in principle constitute a measure having an equivalent effect within the meaning of Article 30 of the EEC Treaty even if they are not directly related to the crossing of the frontier by the products in question.
               Not only has the Court confirmed that provisions as to the quality of certain products may constitute such prohibitive measures but, as the judgments in the Sekt-Weinbrand, (
                     12
                  )synthetic vinegar-wine-vinegar, (
                     13
                  )Fietje (
                     14
                  ) and other cases show, it has also extended the application of Article 30 to rules dealing merely with marking in other words with presentation.
               If, however, as in the Fietje (
                     14
                  ) case, it is recognized that some rules on labelling may have that kind of restrictive effect ón trade, then that must be all the more true of rules which prescribe a certain type of packaging because if such rules are not the same as the equivalent rules of other Member States they at any rate entail additional expense and special costs for the manufacturers in the other Member States if they wish to put their products on the market in question.
               An important point in this regard is that under Paragraph 2 (1) of the German Law on Margarine (Gesetz über Margarine, halbfette Margarine und Kunstspeisefett [Law on Margarine, half-fat margarine and artifical edible fats], as revised and published on 11 July 1975 (Bundesgesetzblatt I, p. 1841)), margarine may be sold only in packs having a square base or the form of a truncated cone. We have been told that as a result higher-quality margarine in particular tends to be marketed in the Federal Republic of Germany mainly in the latter form, which basically consists of a tub.
               Consequently a German manufacturer who lawfully packages and sells all his margarine in that form is prevented from selling it on the Belgian retail market if he is not prepared to undertake an expensive special production run.
               Therefore even if the rules in question are not an outright obstacle to importation they are likely to hinder intra-Community trade actually and indirectly and according to the decisions of the Court are therefore to be regarded as constituting a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the EEC Treaty.
               Contrary to the view of the defendant in the main action and the Belgian Government, that finding is not altered by the fact that the rules in question apply only to the retail of margarine in packs weighing 50 g to 2 kg since margarine imported from other Member States in the packs which do not have the required cube-shape may not be sold to the final consumer in any case.
            
         
               3.
            
            
               It only remains, therefore, to examine whether the rules in question are not prohibited measures having an effect equivalent to quantitative restrictions on imports because, as the Court held in the Gilli case (
                     15
                  ), they “may be justified as being necessary in order to satisfy imperative requirements relating in particular to the protection of public health, the fairness of commercial transactions and the defence of the consumer”. (
                     16
                  )
               None of the parties to the proceedings have seriously contended that margarine is harmful to health so there is no need to consider the question whether the form of packaging is justified on the grounds of the protection of public health which is expressly mentioned in Article 36 of the EEC Treaty.
               On the other hand, however, there is the question whether the requirement of the cubic form for margarine is justified, as the defendant in the main action and the Belgian Government believe, by the argument that consumers must be protected from the risk of confusing butter and margarine. Since the avoidance of such a risk may be an entirely legitimate public concern there is no need to consider in this case the question of the burden of proof which the Belgian Government raised with reference to the nisin case. (
                     17
                  ) The crucial question is simply whether it is reasonable to attempt to protect consumers by requiring a special form of packaging for margarine or whether that aim can be attained by other means causing less interference with inter-State trade.
               As is clear from the judgments in the Cassis de Dijon, (
                     18
                  )Keldermann (
                     16
                  ) and the synthetic vinegar-wine-vinegar (
                     19
                  ) cases cited above, the answer to that question must be in the affirmative since in every case so far in which importing States have adopted specific rules as to product quality on the ground of the need to protect consumers the Court has held that that legitimate concern may also be satisfied by less drastic means such as suitable labelling.
               If the purpose of the packaging rules can be fulfilled just as well by suitable labelling of the goods, no other view is possible. An indication in sufficiently bold letters on the external wrapping of the margarine that the contents consist of “margarine” is reasonably sufficient to prevent any mistake on the part of the buyer as to the contents of the package. Compared with the prohibition of the use of forms of packaging which are permitted in other Member States, such a requirement of marking is undoubtedly the least restrictive because it does not necessitate any special expensive packing equipment. Consequently, as the plaintiff in the main action and the Commission rightly pointed out, there is no need to resort to the instrument of a prohibition of specific forms of packaging permitted in other Member States in order to protect the consummer.
               Where a national measure is prohibited under Community law on the ground that it is a disguised restriction on trade between Member States then, as far as the rest of the Belgian Government's argument is concerned, it cannot be justified on the ground of national traditions either.
               Finally I cannot accept the legal argument of the defendant in the main action whereby it seeks to deduce from the decisions of the Court, and in particular from the judgments in Fietje (
                     20
                  ) and Frans-Nederlandse Maatschappij voor Biologische Producten BV (
                     21
                  ), that Member States have some discretion as to the choice of the means which they use to safeguard the objectives of public interest. On a proper view, however, those judgments too can simply be regarded as an expression of the principle of the proportionality of means propounded in Community law.
            
         III — In conclusion I therefore propose that the questions submitted to the Court should be answered as follows:
      The concept of measures having an effect equivalent to quantitative restrictions on imports in Article 30 of the EEC Treaty must be understood as applying to a prohibition, contained in the legislation of a Member State, against the retail of margarine where each block or its external packaging is not cube-shaped, if as a result of that prohibition margarine which has been lawfully packaged in another Member State is prevented from being marketed.
      (
            1
         )	Translated from the German.
      (
            2
         )	Judgment of 11 March 1980 in Case 104/79 Pasquale Foglia v mariella Novello (1980) ECR 745.
      (
            3
         )	Judgment of 16 December 1981 in die 244/80 Pasquale Foglia v Mariella Novillo [1981] ECR 3045.
      (
            4
         )	Judgment of 16 December 1981 in Case 244/80 Pasquale Foglia/Mariella Norelio [1981] ECR 649.
      (
            5
         )	Judgment of 20 February 1979 in Case 120/78 REWE-Zentrale AG, v Bundesmonopolverwaltung für Brtnntwein (1979) ECR 649.
      (
            6
         )	Judgment of 11 March 1980 in Case 104/79 Pasquale Foglia v Mariella Novillo [1980] ECR 745.
      (
            7
         )	See Judgment of 7 April 1981 in Case 132/80 NV United Foods and PVBA Aug. Van den Abeele v Belgian State [1981] ECR 995;
      Judgment of 17 June 1981 in Cue 113/80 Commission v Ireland [1981] ECR 1625;
      Judgment of 17 December 1981 in Case 272/80 Criminal proceedings against Frans-Nederlandse Maatschappij voor Biologische Producten BV [1981] ECR 3277.
      (
            8
         )	Judgment of 11 July 1974 in Case 8/74 Procedure du Roi v Benoit and Gustave Dassonville [1974] ECR 837.
      (
            9
         )	Judgment of 20 February 1979 in Case 120/78 REWE-Zentrale AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649.
      (
            10
         )	Judgment of 26 June 1980 in Case 788/79 Criminal proceedings against Herbert Gilli and Paul Andres [1980] ECR 2071.
      (
            11
         )	Judgment of 31 March 1982 in Case 75/81 Joseph Blisgen v The Stale of Belgium [1982] ECR 1211.
      (
            12
         )	Judgment of 20 February 1975 in Case 12/74 Commission v federal Republic of Germany [1975] ECR 181.
      (
            13
         )	Judgment of 9 December 1981 in Case 193/80 Commission v Italian Republic [1981] ECR 3019.
      (
            14
         )	Judgment of 16 December 1980 in Case 27/80 Criminal proceedings against Anton Adriaan Fietje [1980] ECR 3839.
      (
            15
         )	Judgment of 26 June 1980 in Case 788/79 Criminal proceedings against Herbert Gills and Paul Andres [1980] ECR 2071.
      (
            16
         )	Similar words were used in the judgment in Casus de Dijon op. cit..
      See also the judgment of 19 February 1981 in Case 130/80 Criminal proceedings against Fabriek voor Hoogtvaardige Vocdingtprodukten Keldermann BV [1981] ECR 527.
      (
            17
         )	Judgment of 5 February 1981 in Case 53/80 Criminal proceedings against Koninklijke Kaasfabriek Evnen BV [1981] ECR 409.
      (
            18
         )	Judgment of 20 February 1979 in Case 120/78 REWE-Zentrale AG v Bundesmonopolverwaltung fur Branntwein [1981] ECR 649
      
      See also the judgment of 19 February 1981 in Case 130/80 Criminal proceedings against Fabriek voor Hoogtvaardige Vocdingtprodukten Keldermann BV [1981] ECR 527.
      (
            19
         )	Judgment of 9 December 1981 in Case 193/80 Commission v Italian Republic [1981] ECR 3019.
      (
            20
         )	Judgment of 16 December 1980 in Case 27/80 Criminal proceedings against Anton Adriaan Fiertje [1980] ECR 3839.
      (
            21
         )	See judgment of 7 April 1981 in Case 132/80 NV United Foods and PVBA Aug. Van den Abeele v Belgian State [1981] ECR 995.