Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. Once again Article 30 of the EEC Treaty forms the subject-matter of a request for interpretation submitted under Article 177 of that Treaty. The facts are very simple. A company, Kelderman, has been charged with contravening the Netherlands Brood-besluit [Bread Order] of 21 December 1925 by placing on the market in the Netherlands brioches imported from France whose dry-matter content does not conform with the levels prescribed by Article 10 of that order. Before the Economische Politierechter [Magistrate in Economic Matters] at the Arrondissementsrechtbank [District Court] Amsterdam, the accused contended that the said provision was no longer of any legal effect since it was incompatible with Article 30 of the EEC Treaty. The magistrate was accordingly led to submit the following question to the Court:

2. The Netherlands provisions under which the criminal proceedings against Kelderman were brought call for some clarification. The Broodbesluit was issued pursuant to Articles 14 and 15 of the Warenwet of 19 September 1919, which allows rules on the description, varieties and composition of certain products to be made for the purposes of protecting public health and furthering fair trading. Article 10 of the Broodbesluit provides in substance that the weight of the dry matter of a loaf must be less than 22 grams or fall within one of the brackets thereinafter listed (30-36g, 60-70g, 120-140g, 240-265g, 480-530g, etc.). Exceptions are provided for in the cases of bread containing raisins or sugar, and biscuits.

3. There is no doubt that rules of the kind described above are capable of hindering, at least indirectly, intra-Community trade. In fact, if minimum and maximum limits to dry-matter content are laid down with implied reference to a specified scale of sizes of bread not only are conditions imposed which are more stringent than a requirement relating to a minimum percentage of dry-matter (or of a maximum percentage of water) such as is found in several legal systems, but strict adherence to a scale of sizes (or forms) which reflect a local tradition is also presupposed. It is thus sufficient that in another Member State different traditions prevail, or that (as in this case) it is not considered necessary to restrict the maximum dry-matter content, for the sale of bread products imported from that State to be hindered.

4. The objective of protecting public health certainly provides justification in principle for a national measure laying down a certain minimum dry-matter content for bread: it is clear that such a measure is concerned to ensure that bread is nourishing and that the quantity of water contained in it is not excessive. On the other hand I would deny that the fixing of a maximum dry-matter content may be justified on the same basis; it appears to me difficult to maintain that bread having a lesser degree of humidity is injurious to health. However, what is first and foremost at issue here is the system of fixing dry-matter content within brackets, which is strictly linked, as we have seen, to the manufacture of bread in specified sizes. That system, which is not related in any way to the protection of health, results in hampering the importation of bread which is made in different sizes in other Member States, a situation which is clearly contrary to Article 30.

5. In conclusion I consider that the Court should reply to the request for a preliminary ruling submitted to it by the Economische Politierechter at the Arrondissementsrechtbank, Amsterdam, by order lodged at the Court Registry on 29 May 1980, with the following ruling:

1 Translated from the Italian.