Opinion of Mr Advocate General Capotorti

Mr. President,

Members of the Court,

1. In these proceedings the preliminary question is again concerned to establish — in a situation in which there is a national prohibition against the manufacture of a specified product — the scope of the concept measure having equivalent effect to quantitative restrictions (on exports or imports) which is referred to in Articles 30 and 34 of the EEC Treaty.

2. I think I should first of all clarify the provisions of Netherlands law governing preparations of horsemeat. The prohibition laid down for manufacturers of sausages in Article 3 (1) of the regulation of 5 December 1973 is subject to an exception in respect of boucheries chevalines [butchers dealing in horsemeat]: Article 5 of the regulation indicates that such boucheries may manufacture sausages from horsemeat provided that they sell them directly to consumers and not to middlemen. On the other hand the import and export of horsemeat sausages are not in themselves prohibited so that traders may import such products into the Netherlands (from Member States or non-member countries) or re-export them inside or outside the Community territory without encountering specific restrictions.

3. It seems to me incontestable that internal legislation containing the provisions referred to in fact constitutes an appreciable hindrance on intra-Community trade in the products in question. A situation in which sausages may not be made from horsemeat by undertakings which do not directly slaughter animals (which accordingly cannot be classified as boucheries) or which wish to distribute the product on the market through middlemen (wholesalers or retailers) in fact constitutes an obstacle, indirect but almost insuperable, to exports. In such a situation the only horsemeat sausages which may lawfully be exported are products manufactured abroad — in another Community country or in a non-member country — and imported into the Member State where the prohibition applies, and exports of sausages made on a small scale by boucheries chevalines, although these do not appear to me to be of any great economic importance. The Commission is correct in observing that provisions like the Netherlands regulation constitute also an obstacle, albeit indirect, to imports: this is because such a stringent restriction on the production of horsemeat sausages ultimately reduces the importation of horsemeat, thus limiting its consumption. This case must thus be viewed in the context not anly of Article 34 of the EEC Treaty, concerning exports, but also in the light of Article 30, concerning imports in relations between Member States.

4. As the Court knows, despite that prohibition the Member States are not entirely deprived of power to enact provisions constituting an obstacle, direct or indirect, to intra-Community trade provided that specified conditions are fulfilled. The Court of Justice in a recent decision (judgment of 20 February 1979 in Case 120/78 REWE v Bundesmonopolverwaltung für Branntwein, in particular paragraphs 8 to 15 of the decision) stated in this connexion that the Member States retain power to introduce such restrictions as may be necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer. That list, which only partly corresponds to Article 36 of the EEC Treaty, recognizes in fairly general terms the lawfulness of national provisions constituting an exception to Articles 30 and 34 if such provisions are in the general interest and such as to take precedence over the requirements of the free movement of goods, which constitutes one of the fundamental rules of the Community (paragraph 14 of the above-mentioned judgment of 20 February 1979).

5. In conclusion, then, I am of the opinion that the question submitted by the College van Beroep voor het Bedrijfsleven, Rijswijk, (sic) by an order of 26 January 1979 should receive the following reply from the Court of Justice:

1 Translated from the Italian.