JUDGMENT OF 16. 12. 1980 — CASE 27/80 FIETJE

In Case 27/80 REFERENCE to the Court pursuant to Article 177 of the EEC Treaty by the Economische Politierechter [Magistrate in Economic Matters] of the Arrondissementsrechtbank [District Court] Assen for a preliminary ruling in the criminal proceedings pending before that court against

THE COURT composed of: P. Pescatore, President of the Second Chamber, acting as President, T. Koopmans (President of the First Chamber), Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco, A. Touffait and O. Due, Judges, Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

1 Observations of Mr Fietje, the accused in the main proceedings

2. Observations of the Netherlands Government

3. Observations of the Commission

Ill — Oral procedure

Decision

Costs

I —. Facts and procedure

1. Mr Fietje, a dealer in beverages, was summoned to appear before the Economische Politierechter of the Arrondissementsrechtbank Assen charged with having supplied a product, imported from the Federal Republic of Germany, described as Berentzen Appel — Aus Apfel mit Weizenkorn 25 vol.% [Berentzen Appel — Made from apples and spirit distilled from wheat 25% by volume], which did not bear the description likeur prescribed by Article 1 of the Likeurbesluit of 11 September 1953 (Staatsblad 466).

2. Article 1 thereof at present reads as follows :

3. The Likeurbesluit was promulgated on the basis of Articles 14 and 15 of the Nederlandse Warenwet [Netherlands Law on Goods] of 28 December 1935 (Staatsblad 793), which read as follows:

4. There is at present no secondary Community legislation relating to the alcoholic beverages in question since the regulation on which such legislation might be based, namely the Commission's proposal relating to a common organization of the market in alcohol, has not yet been accepted by the Council. This proposal and the amendments thereto were published in the Journal Officiel 1972, C 43, p. 1; Official Journal 1976, C 309, p. 2 and Official Journal 1979, C 193, p. 5.

5. By a judgment of 19 December 1979 the Economische Politierechter referred the following question to the Court:

6. The judgment making the reference was registered at the Court Registry on 18 January 1980.

7. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure and to request the Netherlands Government and the Commission to answer certain questions in writing prior to the hearing.

II —. Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

1. Observations of Mr Fietje, the accused in the main proceedings

2. Observations of the Netherlands Government

3. Observations of the Commission

Ill —. Oral procedure

1. By a judgment of 19 December 1979, which was received at the Court on 18 January 1980, the Economische Politierechter of the Arrondissementsrechtbank Assen referred to the Court for a preliminary ruling under Article 1 77 of the EEC Treaty a question on the interpretation of Article 30 of the EEC Treaty which a view to considering the compatibility with Community law of Article 1.of the Netherlands Likeurbesluit, in so far as that article makes the use of the word likeur mandatory in the case of the beverages therein defined.

2. The question has been raised in the context of criminal proceedings against a dealer in beverages who is charged with having supplied a beverage, imported from the Federal Republic of Germany and described as Berentzen Appel — Aus Apfel mit Weizenkorn 25 vol.%, which did not bear the description likeur even though it fell within the abovementioned provision.

3. The Likeurbesluit was enacted on the basis of Articles 14 and 15 of the Netherlands Warenwet of 28 December 1935 (Staatsblad 793). Those articles provide, inter alia, that, in order to protect public health or fair trading, general administrative regulations may specify the descriptions which must be used in trade in goods where the goods are of a kind or composition provided for in the regulation.

4. Article 1 (1) of the Likeurbesluit of 11 September 1953 (Staatsblad 466) is at present worded as follows :

5. Article 2 of the Likeurbesluit sets forth a number of exceptions to the obligation to use the descriptions referred to in Article 1. One of these exceptions relates to products described with the help of a description generally used under normal commercial practice to describe a liqueur, provided that those liqueurs have an alcoholic strength of not less than 24% by volume and the director of the appropriate government department has given his approval. Other exceptions apply to the beverages which are listed in the article and described by names which for the most part are typically Dutch. Finally, Article 14 (4) of the Warenwet empowers the appropriate ministers to grant exemptions from inter alia the rules of the Likeurbesluit.

6. The accused submitted that these national rules are incompatible with Article 30 of the EEC Treaty and the Economische Politierechter considered it necessary that, prior to his giving judgment in the criminal proceedings, the Court should give a ruling on the following question :

7. Before the Court answers the question referred to it, it should be emphasized that, in the absence of common rules relating to the production and marketing of alcohol, it is, in principle, for the Member States to regulate all matters relating to the marketing of alcoholic beverages on their own territory, including the description and labelling of these beverages, subject to any Community measure adopted with a view to approximating national laws in these fields.

8. At the present stage in the development of Community law the factors to which the national court need have regard in its interpretation do not relate therefore to the compatibility with Community law of the obligation to use a particular description in marketing certain alcoholic beverages. As the national court has itself indicated in the wording of the question to the Court of Justice for a preliminary ruling, the issue is whether the extension of such an obligation to beverages imported from the other Member States in such a way as to make it impossible to market the imported product without altering the label under which the beverage is lawfully marketed in the exporting Member State is to be regarded as a measure having an effect equivalent to a quantitative restriction which is prohibited by Article 30 of the Treaty.

9. In order to answer this question it is necessary to consider whether the extension of the national rules is capable of impeding the free movement of goods between Member States and, if so, to what extent such an obstacle is justified on the ground of the public interest underlying the national rules.

10. Although the extension to imported products of an obligation to use a certain name on the label does not wholly preclude the importation into the Member State concerned of products originating in other Member States or in free circulation in those States it may none the less make their marketing more difficult, especially in the case of parallel imports. As the Netherlands Government itself admits in its observations, such an extension of that obligation is thus capable of impeding, at least indirectly, trade between Member States. It is therefore necessary to consider whether it may be justified on the ground of the public interest in consumer protection, which, according to the observations of the Netherlands Government and according to the Warenwet, underlies the rules in question.

11. If national rules relating to a given product include the obligation to use a description that is sufficiently precise to inform the purchaser of the nature of the product and to enable it to be distinguished from products with it might be confused, it may well be necessary, in order to give consumers effective protection, to extend this obligation to imported products also, even in such a way as to make necessary the alteration of the original labels of some of these products. At the level of Community legislation, this possibility is recognized in several directives on the approximation of the laws of the Member States relating to certain foodstuffs as well as by Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (Official Journal 1979, L 33, p. 1).

12. However, there is no longer any need for such protection if the details given on the original label of the imported product have as their content information on the nature of the product and that content includes at least the same information, and is just as capable of being understood by consumers in the importing State, as the description prescribed by the rules of that State. In the context of Article 177 of the EEC Treaty, the making of the findings of fact necessary in order to establish whether there is such equivalence is a matter for the national court.

13. In their observations both the Commission and the Netherlands Government put forward arguments based on the existence in the Netherlands rules of several provisions providing for exemptions. The Netherlands Government stresses that, under Article 2 of the Likeurbesluit, a description in general use under normal commercial practice may be allowed for the purpose of describing a liqueur and it also places emphasis on Article 14 (4) of the Warenwet, which provides for the granting of exemptions from any rule adopted pursuant to the said article. The Commission, on the other hand, takes the view that the exceptions provided by Article 2 of the Likeurbesluit have the result of discriminating against imported products which are relatively little known on the market in the Netherlands.

14. When considering these arguments it must be borne in mind that a measure caught by the prohibition provided for by Article 30 of the EEC Treaty does not escape this prohibition simply because the competent authority is empowered to grant exemptions, even if this power is freely applied to imported products. On the other hand, in the case of a measure justified on grounds recognized by the Treaty, the Treaty does not forbid in principle provision being made for the possibility of granting derogations therefrom by individual decisions left to the discretion of the administration. However, exceptions must not lead to the favouring of domestic products because this would constitute arbitrary discrimination against or a disguised restriction on products imported from other Member States. Subject to that reservation, it does not appear that the exemptions provided for by the Netherlands rules provide any new factors in relation to the question put by the national court.

15. The answer to the question referred to the Court for a preliminary ruling should therefore be that the extension by a Member State of a provision which prohibits the sale of certain alcoholic beverages under a description other than that prescribed by national law to beverages imported from other Member States, thereby making it necessary to alter the label under which the imported beverage is lawfully marketed in the exporting Member State, is to be considered a measure having an effect equivalent to a quantitative restriction, which is prohibited by Article 30 of the Treaty, in so far as the details given on the original label supply the consumer with information on the nature of the product in question which is equivalent to that in the description prescribed by law. It is for the national court to make the findings of fact necessary in order to establish whether or not there is such equivalence.

16. The costs incurred by the Government of the Kingdom of the Netherlands and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the accused in the main proceedings is concerned, in the nature of a step in the criminal proceedings before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT, in answer to the question referred to it by the Economische Politierechter of the Arrondissementsrechtbank Assen by judgment of 19 December 1979, hereby rules :

1 The extension by a Member State of a provision which prohibits the sale of certain alcoholic beverages under a description other than that prescribed by national law to beverages imported from other Member States, thereby making it necessary to alter the label under which the imported beverage is lawfully marketed in the exporting Member State, is to be considered a measure having an effect equivalent to a quantitave restriction, which is prohibited by Article 30 of the Treaty, in so far as the details given on the original label supply the consumer with information on the nature of the product in question which is equivalent to that in the description prescribed by law.

2 It is for the national court to make the findings of fact necessary in order to establish whether or not there is such equivalence.