Opinion of mr advocate general Capotorti

Mr President,

Members of the Court,

1. This new Rewe case presents the Court with the opportunity to tackle the problem of the limits within which the Member States are still free to make the marketing of certain categories of products, whether national or imported, conditional upon the presence of certain characteristics, thereby creating an obstacle to the importation of foreign products within those categories which do not possess the requisite characteristics.

2. I will begin by examining the second question, and then turn to the first, which appears to me to be the only important one. It is clear why the court in Hesse thought it appropriate to refer also to Article 37 of the EEC Treaty: as I noted above, the basic rule fixing a minimum alcohol content as a precondition for the marketing of spirits in Germany is contained in the Federal Law on the Monopoly in Spirits and Article 37, as is well-known, concerns State monopolies of a commercial character. I do not think it is necessary to devote a lengthy discussion at this juncture to the statement of the Commission, refuted by various arguments of Rewe, to the effect that the German Spirits Monopoly has now been eliminated; in effect the Law of 2 May 1976 merely amended its rules, and the fact that the exclusive right to import spirits, which formerly belonged to the Monopoly, has been curtailed, does not in my view mean that the Monopoly has come to an end. It is a fact that a Federal Monopoly Administration continues to exist (it is the defendant before the national court!), with various powers in this field; it is also a fact that, simultaneously with this case, another case is pending before the Court — Case 91/78 Hansen — which involves an examination of the detailed rules on the functioning of the German Spirits Monopoly in the light of Article 37.

3. With regard to the wording of the first question, the defendant in the main action has observed that the procedure under Article 177 does not permit the assessment of the lawfulness with regard to Community law of legal provisions in force in a Member State. That is undoubtedly true. But the defendant has recognized that the question also raises a general problem, namely that as to whether measures such as those existing within the Federal Republic of Germany are compatible with Article 30 of the EEC Treaty. In such terms, there is no doubt that the problem may be examined within the context of these proceedings.

4. Before conducting a deeper examination of these two opposing opinions, I would like to make certain observations on the subject of the tendency displayed in Directive No 70/50 and, more generally, on the subject of the problem of the determination of the technical characteristics of goods for the purposes of the marketing thereof.

5. Having reached this point in my analysis I must now turn to the objectives pursued by rules such as those in force in the Federal Republic of Germany; it should be examined whether they are sufficient to justify the obstacle placed in the way of imports. The defendant in the main action indicated three aims which it claimed amount to such justification: the protection of public health, the protection of the consumer against fraud and the suppression of unfair competition. The measure laying down the minimum alcohol content of spirits and liqueurs with which we are at present occupied may therefore be examined in the light of the criteria laid down by Article 3 of Directive No 70/50 so as to establish whether its restrictive effects are out of proportion to the results sought and whether those same objectives may not be attained by other means which would create less of an obstacle to trade. That measure may also be examined in the light of Article 36 of the EEC Treaty which, as we know, states, inter alia, that notwithstanding the rules contained in Articles 30 to 34 there is no prohibition upon restrictions on imports justified on grounds of public policy or the protection of health of humans.

6. In consequence, it is my opinion that the Court should reply to the questions referred to it by the Hessisches Finanzgericht, by order of 28 April 1978, by stating, in accordance with Article 177 of the EEC Treaty, as follows:

1 Translated from the Italian