Cidrerie Ruwet SA v Cidre Stassen SA and HP Bulmer Ltd.
Date: 2000-10-12
40 It should be borne in mind that Directive 75/106 was adopted on the basis of Article 100 of the EC Treaty (now Article 94 EC) for the purpose of approximating the laws, regulations and administrative provisions of the Member States that have a direct effect on the establishment or functioning of the common market.
41 It is clear from the first recital in its preamble that Directive 75/106 was intended to overcome the obstacles to the free movement of certain prepackaged liquid foodstuffs resulting from the existence, in most Member States, of mandatory regulations that differ from one Member State to another. According to the fourth recital in its preamble, that directive was also designed to improve the protection of consumers against the risks of confusion.
42 As originally drafted, Directive 75/106 undertook full harmonisation of the national regulations in question: Article 4(2) excluded the marketing of prepackages of nominal volumes that differed from those indicated in Annex III, while Article 5 prohibited Member States from adopting, in regard to prepackages satisfying the directive's requirements, measures restricting their marketing for reasons concerning their volume or the determination of that volume.
44 Contrary to the submissions of Ruwet and the Belgian Government, prepackages containing nominal volumes not indicated in Annex III, column I, to Directive 75/106, amended by Directives 79/1005, 85/10, 88/316 and 89/676, but authorised in other Member States in compliance with that directive, cannot be deprived of the benefit of free movement of goods guaranteed by Article 30 of the Treaty solely on the ground that a Member State has, as in the situation in the main proceedings in this case, made the Community range of nominal volumes mandatory.
45 According to settled case-law, Article 30 is designed to prohibit all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (see Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5).
46 In the absence of harmonisation of national laws, Article 30 prohibits in particular obstacles to the free movement of goods that are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods, such as those relating, for example, to their presentation, labelling and packaging, even if those rules apply without distinction to national products and to imported products alike (Case C-470/93 Verein gegen Unwesen in Handel und Gewerbe Köln v Mars [1995] ECR I-1923, paragraph 12).
47 In the case of partial harmonisation such as the situation in point in the main proceedings, this prohibition applies to the ban on the marketing of prepackages that are not the subject of such harmonisation. In such a case, a contrary interpretation would be tantamount to authorising the Member States to partition their national markets in regard to products not covered by the Community rules, contrary to the objective of free movement pursued by the Treaty.
48 Although applicable to national and imported ciders without distinction, a national measure such as that in issue in the main proceedings is liable to hinder intra-Community trade inasmuch as it applies to prepackages having a nominal volume of 0.33 l, lawfully manufactured and marketed in other Member States. It may compel the traders concerned to adjust the presentation of their products according to the place where they are to be marketed and consequently to incur additional packaging costs. Such a prohibition therefore falls within the scope of Article 30 of the Treaty (see, to this effect, the judgment in Mars, cited above, paragraphs 13 and 14).
50 In this regard, it is settled case-law that obstacles to intra-Community trade resulting from disparities between provisions of national law must be accepted in so far as such provisions are applicable to domestic and imported products without distinction and may be justified as being necessary in order to satisfy overriding requirements relating inter alia to consumer protection. However, in order to be permissible, such provisions must be proportionate to the objective pursued and that objective must not be capable of being achieved by measures which are less restrictive of intra-Community trade (Case C-313/94 Graffione [1996] ECR I-6039, paragraph 17, and the case-law there cited).
53 The national court must in this connection take account of all relevant factors, taking as its reference point the average consumer, reasonably well informed and reasonably observant and circumspect (Case C-220/98 Estée Lauder Cosmetics v Lancaster Group [2000] ECR I-117, paragraph 30).
54 In particular, the national court may have regard to the obligation to indicate on the labelling the net quantity of liquid contained in the packaging, expressed in units of volume (litre, centilitre or millilitre, as appropriate). This obligation is set out in general for all liquid foodstuffs in Articles 3(1)(4) and 8(1) of Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ 2000 L 109, p. 29), which consolidated and repealed Directive 79/112. Article 4(1) of Directive 75/106, the wording of which was not amended by Directive 79/1005, also lays down that obligation for prepackages covered by Directive 75/106, amended by Directives 79/1005, 85/10, 88/316 and 89/676. The national court may take account of the corresponding information in so far as it is such as to prevent, in the mind of the reference consumer, any confusion between the two volumes and to enable that consumer to take account of the ascertained difference in volume when comparing the prices of the same liquid presented in two different types of packaging.
56 Finally, the national court may take account of the facts that:
- Article 3(2) of Directive 79/581, introduced by Directive 88/315, laid down an obligation to indicate, at the stage when foodstuffs are sold to the consumer, the unit price (in the case of liquids, in principle in litres), an obligation that applied to, inter alia, prepackaged ciders in nominal volumes not mentioned in Annex III, column I, to Directive 75/106, amended by Directives 79/1005, 85/10, 88/316 and 89/676;
- this obligation was extended, subject to exceptions, to all products, including ciders, offered to consumers, irrespective of the nominal volume of the prepackaged product, by Directive 98/6, national provisions for the transposition of which had to be implemented by 18 March 2000 at the latest - that is to say, prior to the date on which the national court will rule on the application for an order prohibiting the marketing of the products at issue - and which repealed Directive 79/581 with effect from 18 March 2000.
57 The answer to the second question submitted for preliminary ruling must therefore be that:
- Directive 75/106, amended by Directives 79/1005, 85/10, 88/316 and 89/676, must be construed as not allowing Member States to prohibit, by means of legislation such as the Royal Decree, the marketing of any prepackage having a nominal volume which is not mentioned in Annex III, column I, to that directive;
- Article 30 of the Treaty must be construed as precluding a Member State from prohibiting the marketing of a prepackage having a nominal volume not included in the Community range, which is lawfully manufactured and marketed in another Member State, unless such a prohibition is designed to meet an overriding requirement relating to consumer protection, applies without distinction to national and imported products alike, is necessary in order to meet the requirement in question and is proportionate to the objective pursued, and that objective cannot be achieved by measures which are less restrictive of intra-Community trade.