CELEX: 61980CC0027
Language: en
Date: 1980-09-30 00:00:00
Title: Opinion of Mr Advocate General Mayras delivered on 30 September 1980. # Criminal proceedings against Anton Adriaan Fietje. # Reference for a preliminary ruling: Arrondissementsrechtbank Assen - Netherlands. # Mandatory description of alcoholic beverages. # Case 27/80.

OPINION OF MR ADVOCATE GENERAL MAYRAS
      DELIVERED ON 30 SEPTEMBER 1980 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      This request for a preliminary ruling from the Economische Politierechter [Magistrate in Economic Matters] of the Arrondissementsrechtbank [District Court] Assen in the Netherlands illustrates yet again the difficult problem of the compatibility of national rules with “the requirements of the free movement of goods, which constitutes one of the fundamental rules of the Community” (judgment of 20 February 1979 in Case 120/78 Rewe v Bundesmonopolverwaltung fir Branntwein [4979] ECR 649 at paragraph 14 of the decision and judgment of 20 June 1980 in Case 788/79 Herbert Gilli and Paul Andres [1980] ECR 2071 at paragraph 9 of the decision).
      The main proceedings, which are criminal in their nature, arise from a prosecution brought by the public prosecutor against a dealer in beverages, Mr Fietje, who is charged with having supplied in the Netherlands a product imported from the Federal Republic of Germany and described as “Berentzen Appel — Aus Apfel mit Weizenkorn 25 völ.%” [Berentzen Appel — Made from apples and spirit distilled from wheat 25% by volume] which did not bear the description “likeur”. This omission contravenes the requirements contained in the Decree of 11 September 1953, adopted in application of Articles 14 and 15 of the 1935 Law on Goods (the “Warenwet”), relating to liqueurs, advocaat and potable spirits for preservation (the “Likeurbesluit”). By virtue of the Law of 22 June 1950 on commercial offences (“Wet op de Economische Delicten”) penal sanctions attach to contraventions of the decree.
      The Economische Politierechter considered that it was necessary, before delivering final judgment, to request the Court to give a preliminary ruling, pursuant to the second paragraph of Article 177 of the Treaty, on the following question :
      “Does the concept ‘measures having an effect equivalent to quantitative restrictions on imports’in Article 30 of the EEC Treaty cover the provisions of Article 1 of the Netherlands Likeurbesluit [Decree on Liqueurs] governing the obligation to use the word ‘likeur’for beverages defined therein, as a result of which products from other Member States which have the characteristics defined in Article 1 of the Likeurbesluit, but in respect of which there is no obligation to use the description ‘likeur’in those Member States, must be labelled differently for importation into the Netherlands?”
      I —
      It is clear that in the terms in which it is framed this question does not permit the Court to give a useful answer to the national court. That is so in the first place for reasons based on the nature of the present proceedings. As the Court has held on many occasions, in proceedings brought pursuant to Article 177 it is not for this Court to give judgment on the compatibility of national rules with Community law. On the other hand, the Court may extract from the wording of the question those elements which come within the interpretation of Community law and which appear to it to be likely to assist the national court in deciding the dispute before it (see for example the judgment of 12 October 1978 in Case 13/78, Joh. Eggers Sohn & Co v Freie Hansestadt Bremen [1978] ECR 1935 at paragraph 19 of the decision).
      It is also so because, as the Commission and the Netherlands Government have pointed out, Article 1 of the “Likeurbesluit” cannot be considered independently of the other provisions thereof. That article, and in particular paragraph (1) thereof, is in fact a basic provision which lays down a principle. As will be seen, it is given greater detail by Articles 3 and 6 of the Decree and is subject to the exceptions provided for in Articles 2 and 5 thereof. For these reasons I venture to understand the question from the court making the reference as being intended to asertain whether national rules making it mandatory to affix the word “liqueur” to the receptacles of certain spirituous beverages, so that products of the same type coming from Member States which do not lay down by law a similar obligation must be differently labelled for the purpose of importation into the Member State in question, constitute a measure having an effect equivalent to a quantitative restriction on imports which is prohibited by Article 30 of the Treaty.
      II —
      As has been mentioned, the “Likeurbesluit” was adopted on the basis of Articles 14 and 15 of the “Netherlandse Warenwet” of 28 December 1935. Article 14 (1) (a) and (c) of that law empowers the executive to adopt, in the interest of public health or fair trading, general administrative regulations (“Algemene Maatregelen van Bestuur”) prescribing the mandatory use of certain descriptions “in trade in goods and other articles” intended for trade where those “goods or articles are of a kind or composition provided for in the regulation”.
      Article 15 (1) (b) confers similar powers for the purpose of prohibiting importation in so far as it takes place “otherwise than in accordance with the conditions precribed by the regulations”. Nevertheless, pursuant to Articles 14 (4) and 15 (4), the exemptions from the rules provided for in paragraph (1) of those provisions may be granted.
      
               (a)
            
            
               The system set up by the “Likeurbesluit” is based on the mandatory employment of certain descriptions for various categories of alcoholic beverages. Thus Article 1 (1) of the “Likeurbesluit” makes mandatory the use of the descriptions “likeur”, “tus-senlikeur”, “verloflikeur” or “likorette” for “any product which has as its characteristic ingredients ethyl alcohol, sugar, aromatic substances and/or fruit juice”, provided that “it satisfies the provisions of Article 3”.
               The latter article sets out the conditions which beverages must satisfy in order to be given the said descriptions. Thus it distinguishes between the products referred to in Article 1 (1), according to their alcoholic strength, which must be “at least 22% by volume at 15oC” for a product described as “likeur”, and in the same way it lays down their minimum sugar content (Article 3 (1) (b)). In addition, it specifies in Article 3 (2) the health requirements which the drinks must meet, relating for example to their transparency or the use of preservatives or colorants.
               By virtue of Article 6 (1), the compulsory use of the descriptions extends to a receptacle for the goods referred to in the Decree which is “intended or suitable for delivery with its contents to the consumer”.
            
         
               (b)
            
            
               However, the obligation laid down by Article 1 of the Decree is subject to a number of exceptions, which are defined in Articles 2 and 5.
               In the first place, the exception covered by Article 2 (a) relates to beverages “described with the help of a description generally used under normal commercial practice” having an alcoholic strength of at least 24% which have received approval from the official responsible, namely the Director of the Department for the Approval of Products (“directeur van de keuringsdienst van waren”). The Netherlands Government has told the Court that, for example, products bearing the names “parfait amour”, “maraschino” and “blackberry” enjoy a dispensation under Article 2 (a). Article 2 (b) refers to certain drinks of a lower alcoholic strength described by descriptions involving the name of a fruit followed by the word “brandewijn” [potable spirits] or “jenever” [geneva], with or without the prefix “verlof” [“licence”], as well as certain typical Netherland drinks (of the “fladderak” or “voorburg” type).
               Finally, the Netherlands Government has drawn the Court's attention to the fact “that a product such as ‘Berentzen Appel’ may also come within the category of exceptions falling within the terms of Article 5 of the ‘Likeurbesluit’”. Having regard to its complexity, I think it is preferable to quote the first paragraph of that article, which is the only paragraph which may apply in this case, in full:
               “Any product of the same kind and composition as one of the products mentioned in this Decree or which might be intended to be a substitute therefor shall not bear a description which does not indicate, or indicates only insufficiently, the nature as well as both the quantitative and qualitative composition thereof unless the Minister for Health and the Environment has given his consent, subject to conditions drawn up by him. Products referred to in the preceding sentence in respect of which no consent within the meaning thereof has been issued or which do not bear a name for which such consent has been given shall be described by means of a description which adequately indicates both their nature and their quantitative and qualitative composition.”
            
         
               (c)
            
            
               There is not at the present time any Community secondary legislation applicable to alcoholic beverages. As the Court has already stressed in its judgment in the aforementioned case of Reive (at paragraph 8 of the decision, [1979] ECR at p. 662), a proposal for a regulation relating to a common organization of the market in alcohol submitted to the Council by the Commission on 7 December 1976 (Official Journal 1976, C 309, p. 2) and subsequently amended (Official Journal, 1979, C 193, p. 5) has not yet been accepted by the Council.
               Much mention has also been made during the present proceedings of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (Official Journal 1979, L 33, p. 1). However, I do not think that there is very much to be gained from a study of that text. On the one hand, the period which Member States are allowed under Article 22 (1) to implement it has not expired. On the other hand, and most importantly, the Directive, after stating in the preamble thereto that “rules of a specific nature which apply vertically only to particular foodstuffs should be laid down in provisions dealing with those products”, makes, in Article 6 (3) thereof, an exception for precisely the case of“beverages containing more than 1.2% by volume of alcohol”. That provision lays down that, in regard to such beverages, “the Council, acting on a proposal from the Commission, shall, before the expiry of a period of four years following notification of this Directive, determine the rules for labelling ingredients and, possibily, indicating the alcoholic content”. For that reason I consider that in cases, such as this, concerning a description which it is compulsory to affix to bottles of an alcoholic beverage, it is dangerous to argue on the basis of analogy with the rules contained in that Directive.
            
         III —
      
               (a)
            
            
               
                  A priori, it appears indisputable that a regulation such as the Netherlands Decree is incompatible with the prohibition laid down by Article 30 of the Treaty. Well-settled case-law of this Court in fact defines the concept of “measures having an effect equivalent to quantitative restrictions on imports” as “all trading rules of Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade” (see for example the judgment of 13 March 1979 in Case 119/78 SA des Grandes Distilleries Pereux v Directeur des Services Fiscaux de la Haute-Saône et du Territoire de Belfort [1979] ECR 975 at paragraph 22 of the decision). The Netherlands Government itself admits that “there can be little doubt that laying down, as a condition for marketing in a Member State, a specific rule on the labelling of national and imported alcoholic beverages directly hinders the importation of alcoholic beverages bearing a different label”.
               The nature and intensity of these hindrances have been described in detail by the accused in the main proceedings. He has told the Court that, having regard to the large amount of his purchases of “Berentzen Appel”, the official importer could “enter into an agreement with the manufacturer with a view to keeping the additional cost caused by the altering of the labelling at as low a level as possible”, but that nevertheless involves keeping a special stock of bottles labelled for the Netherlands. The accused in the main proceedings has also drawn our attention to the much greater difficulties which parallel importers would encounter. If the Netherlands rules were held to be compatible with Community law, such importers would be forced to carry out operations consisting in opening the boxes, affixing a special label to the bottles and then closing the boxes again after having replaced the bottles therein.
            
         
               (b)
            
            
               The prohibition in principle of measures having an effect equivalent to quantitative restrictions does not however completely deprive Member States of the power to maintain and adopt certain regulations or practices which are a direct or indirect barrier to the free movement of goods within the Community. In general terms, the power to do so where appropriate has been expressly conferred upon them by Article 36 of the Treaty. In the case or alcohol and spirituous beverages the exceptions mentioned by Article 36 have been set out in part in the Court's judgment in the aforementioned case of Rewe (paragraph 8 of the decision, [1979] ECR at p. 662), which was confirmed by the Court's judgment in Case 788/79 Gilli and Andres [1980] ECR 2071. But as appears from the following extracts from the Gilli judgment, such a power is only available to the Member States by way of exception and within narrow limits: “It is only where national rules, which apply without discrimination to both domestic and imported products, 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 that they may constitute an exception to the requirements arising under Article 30.”
               This wording thus makes it apparent that two conditions must be satisfied for an exception to be lawful. The rules must first of all satisfy the imperative requirements of “a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods” (paragraph 14 of the decision in the judgment in the Rewe case and paragraph 9 of the decision in the judgment in the Gilli and Andres case, both cited above) and, in particular, one of those which the Court expressly mentions. But that is not enough. The restriction of intra-Community trade to which the rules lead must also be strictly “necessary in order to” attain the more important objective in view. In other words, it is thus necessary that the means be proportionate to the end.
            
         
               (c)
            
            
               I will therefore consider whether rules such as those in the “Likeurbesluit” can be regarded as justified in the light of the conditions which I have just mentioned. For this purpose the fundamental nature of the free movement of goods within the Community which the case-law of the Court stresses and the very general scope of the Court's definition of the concept of “a measure having an effect equivalent to quantitative restrictions on imports” require, in my view, a strict interpretation of the abovementioned conditions.
               First of all, it is common ground that the effectiveness of fiscal supervision is not at issue.
               It is, moreover, undoubtedly possible in this case to take together the arguments based on consumer protection, public health and fair trading. On the one hand, I think that the protection of the health of consumers may be regarded as a part, and moreover a very important part, of consumer protection. On the other hand, since labelling is involved, the same details, in particular those relating to the origin and alcoholic content of the product, ensure both fair trading and consumer protection, as the Court itself pointed out in its judgments in the aforementioned cases of Rewe, where mention was made of “the protection of the consumer against unfair commercial practices” (paragraph 9 of the decision), and Gilli and Andres (paragraphs 7 and 8 of the decision). Thus to consider whether the obligation to include the word “likeur” on a label “satisfies imperative requirements” relating to consumer protection is to consider at the same time whether that obligation also does so in relation to requirements of public health and fair trading. It is moreover on the consumer protection aspect that the arguments of the various parties to these proceedings have concentrated.
               Finally, it is impossible to see what other objectives which are in the general interest a regulation of the kind under consideration, could have sought to attain.
            
         IV —
      In order to decide whether the obligation to use the description in question is lawful I think this simple question should first be asked: Having regard to the other information on the packaging, does the consumer receive more protection when that description is affixed than when it is not? If that description adds nothing to the information given on the packaging it is clear that its mandatory use is not at all necessary to satisfy imperative requirements of consumer protection.
      What information, therefore, does the description “likeur” provide? First, the average consumer, if asked, pragmatically, what this word conveys, will probably be unable to give any other reply but that, as far as he or she is concerned, it is a drink having “a sweet taste and aroma and a certain alcoholic strength” (“en zoete smaak, een zoet aroma en een zeker alcoholgehalte”), according to the definition given by the representatives of the Netherlands Government in answer to a question raised at the hearing.
      
               (a)
            
            
               But the question raised may also be answered by taking account of the scheme of the “Likeurbesluit”. This method is opposed by the Commission which considers that the use of a particular description for specifically described products cannot, in principle, be made compulsory unless that description has a clear and precise meaning for the public. Consequently “the question is not so much whether the word ‘likeur’corresponds to the description of it given in the Decree, as to ascertain whether this word has a meaning for the consumer which is sufficiently clear so as to justify its use being mandatory”.
               The answer to that might indeed be, adopting one of the arguments of the Netherlands Government, that Community rules themselves refer to national rules on descriptions, since Article 5 (1) of Council Directive 79/112/EEC defines “the name under which a foodstuff is sold” as, in the first place, “the name laid down by whatever laws, regulations or administrative provisions apply to the foodstuff in question ...”, and that the name “likeur” certainly falls within this definition.
               But, irrespective of the reservations that might be made in regard to an argument of that kind, it is clear that every description provided for by national provisions cannot be accepted as automatically compatible with Community law. It goes without saying that taking up such a position would amount to foregoing any possibility of reviewing those provisions where they may have the result and even the objective of protecting national products, thus forming an obstacle to the free movement of goods within the common market and distorting competition therein. Furthermore, the same Article 5 (1) also provides that in the absence of a name laid down by law, regulation or administrative provisions the name under which a foodstuff is sold may be a “description of the foodstuff and, if necessary, of its use, that is sufficiently precise to inform the purchaser of its true nature and to enable it to be distinguished from products with which it could be confused”.
               I therefore think that the description of “likeur” contained in the provisions of the Decree should be taken into account.
            
         
               (b)
            
            
               With what information does the Decree provide the consumer?
               That information seems to me to be precise up to a point.
               As far as the composition of a “likeur” is concerned, Article 1 (1) stipulates only that the product bearing that description — as also with “tussenlikeuren”, “verlof-likeuren” and “likörenen” — shall contain “as ingredients ethyl alcohol, sugar, aromatic substances and/or fruit juice”. But it indicates nothing more; in particular it does not cover the nature or the proportion of aromatic substances and fruit juice which a “likeur” may contain.
               As far as alcoholic strength is concerned, the description “likeur” ensures that the strength is at least 22% by volume at 15oC (the first indent of Article 3(1) (a)), but does not enable the exact alcoholic strength of a product which bears that description to be known. Where mention of the alcoholic strength is mandatory, it is not, according to what was said by the representative of the Netherlands Government during the hearing, pursuant to the “Likeurbesluit” but the later Law on beverages and hotels and catering establishments (Article 14 (1) of the “Drank- en Horecawet” of 7 October 1964).
               Similarly, as far as the amount of sugar is concerned, the decree only provides, in respect of all the drinks to which it refers, for a minimum amount of at least 10 grams per 100 millilitres (Article 3(1) (b)). It does not therefore lay down an exact figure for sugar any more than it does for alcoholic strength.
               It cannot, however, be denied that those provisions, in spite of their lack of precision, effectively protect consumers in a number of cases. Consumer protection is, in my view, also ensured, perhaps to an even higher degree, by the various rules — grouped together in Article 3 (2) — relating to the health requirements which the “likeuren” must meet.
               It seems to me that the cases in which the compulsory affixing of the description “likeur” may be regarded as satisfying imperative requirements of consumer protection are those in which the other information presented on the bottle does not indicate to consumers that they are dealing with a beverage having a particular alcoholic strength and a particular amount of sugar and consisting of, in addition to alcohol and sugar, aromatic substances or fruit juice or of both these categories of products together. On the other hand, if there is no doubt on this matter, and a fortiori if the existing particulars provide more information than the description “likeur” can indicate, then the compulsory affixing of that description is unquestionably a measure having an effect equivalent to a quantitative restriction on imports which is prohibited by Article 30 of the EEC Treaty.
            
         
               (c)
            
            
               However, even on the first assumption, it has nevertheless not been proved that the obligation laid down is strictly necessary having regard to the legitimate objective which it is sought to attain. Might not less restrictive means achieve the same results?
               The Netherlands Government stressed that its rules have the advantage of enabling it to take action without difficulty where a beverage did not satisfy or no longer satisfied the requirements which the rules laid down. But the accused in the main proceedings rightly replied that a system, such as that in Germany, which consists in prohibiting the offering for sale of beverages under a description which may deceive the consumer, permitted supervision which was just as easy to carry out. It is perhaps not without interest to note in this connexion, that, according to the information furnished by the Commission, of the Member States, it is only in the Netherlands and Belgium that the use of a description for alcoholic beverages has been made compulsory.
            
         
               (d)
            
            
               However, it may perhaps be pointed out that the system set up by the Netherlands Decree is of the same kind as that provided for by a number of Council directives on the approximation of the laws of the Member States relating to certain foodstuffs, such as that of 24 July 1973 relating to cocoa and chocolate products intended for human consumption (Council Directive 73/241/EEC, Official Journal 1973, L 228, p. 23) or that of 27 June 1977 relating to coffee extracts and chicory extracts, (Directive 77/436/EEC, Official Journal 1977, L 172, p. 20). In these circumstances if a national set of rules only, as it were, anticipates a system set up on a Community scale, how could those rules still be considered to be incompatible with Community law?
               This argument seems to me to be only superficially conclusive. In the first place it is not certain that the descriptions laid down by a regulation such as the Decree, are, when considered in detail, completely comparable to those laid down by the directives. The latter appear to make many more distinctions between the products to which they apply and those distinctions are consequently based on more discriminating criteria. I would cite by way of example Annex I to Directive 73/241/EEC which lists no less than 13 categories of chocolate.
               In the second place I think that the descriptions in question may be critized on the ground that they are somewhat arbitrary, and this is a complaint which cannot be made against Community descriptions. Thus in the Netherlands Decree the minimum alcoholic strength is not the same for the beverages which have to bear the compulsory description provided for by the general rule contained in Article 1 and for those which are covered by the exceptions contained in Article 2 and qualify for the derogations from that obligation. When questioned by the Court on this point the Netherlands Government replied in a way which, far from giving me satisfaction, seemed to me on the contrary to bring this arbitrariness to the forefront.
               The products which are in fact exempted by Article 2 (a) are products traditionally known as liqueurs, a test adverse to the products of the other Member States, which, with certain exceptions, are not so well known to consumers in the Netherlands as domestic products. The particular features whereby advantage may be taken of Article 2 (b) scarcely appear to be more satisfactory: the beverages falling under this provision are not claimed to be “genuine” liqueurs (“echte likeuren”) but to be “a group of fruit beverages which are most certainly liqueurs according to the definition but which are not regarded as such in practice”. These fruit beverages have a lower alcoholic strength than “likeuren” which is what the Netherlands Government undoubtedly has in mind when it mentions “genuine” liqueurs. If they were covered by Article 1 they would have to be described as “tus-senlikeur” or “verloflikeur” — which, moreover, the accused in the main proceedings and the Commission told the Court, without being contradicted, were little known to the consumer in the Netherlands. They are only exempted because of their descriptions, which are in Dutch and are contained in the restrictive list in Article 2 (b). It therefore seems to me that the same objection may be made to the second distinguishing criterion as has been made to the first.
               These considerations show that in their content alone the Community directives on the approximation of laws and national rules of the kind under consideration seem to me to follow different paths. But it is above all because of the differences in their nature that the comparison between them from the point of view of their effect on intra-Community trade, which is what is of interest in this case, appears to be difficult. By its nature, a directive adopted by the Council of the Community — save for limited and accepted exceptions — applies uniformly in the nine Member States and this, in law, places all products that happen to be in the Community on an equal footing. A national regulation on the other hand, by its nature, has a field of application confined to the frontiers of the Member State which adopted it, with the constraints which that may entail in the case of products coming from other Member States.
               Finally, it goes without saying that the possibility of obtaining exemptions from the obligation to use a description cannot alter my opinion. It is in fact clear from the Court's judgment of 24 January 1978 in Case 82/77 Openbaar Ministerie of the Kingdom of the Metherlands v Jacobus Philippus van Tiggele [1978] ECR 40 that “the requirement that importers and traders must comply with the administrative formalities inherent” in a system of exemptions, even if granted freely, may “in itself constitute a measure having an effect equivalent to a quantitative restriction” (paragraph 19 of the decision).
            
         In these circumstances I propose in conclusion that the Court's answer to the question submitted by the Economische Politierechter of the Arrondissementsrechtbank Assen should be that national rules making it compulsory to include the word “likeur” on the packaging of certain spirituous beverages so that products of the same kind from Member States which do not lay down a similar obligation must be labelled differently if they are to be imported into the Member State in question constitute a measure having an effect equivalent to a quantitative restriction on imports which is prohibited by Article 30 of the Treaty.
      (
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         )	Translated from the French.