Opinion of Mr Advocate General Mayras

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 :

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.

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.

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.

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.

1 Translated from the French.