Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. In the present reference for a preliminary ruling the Court is once again asked to interpret the concept of a measure having an effect equivalent to a quantitative restriction which is used in Article 30 of the EEC Treaty. It is necessary today to determine whether the said concept applies to a marketing ban relating only to imported products. More precisely, it must be determined whether a ban on marketing a certain product (vermouth with an alcoholic content below a certain minimum) imposed in the countiy of manufacture may be imposed in the country of import by way of a reference to the law of the country of manufacture, even though the country of import itself has no such ban.

2. The defendant in the main action pointed out that the problem of compatibility with the Treaty had arisen not so much by reason of the hypothetical law of Member State A but by reason of the very specific provisions in force in relation to vermouth in the Federal Republic of Germany. Naturally, answer may be given that there as elsewhere the national rules are merely to be used as an abstract parameter against which the scope of the Community rule may be measured. But that would really be no answer. As I said on 10 February in my Opinion in Case 94/82, De Kikvorsch, this is really a device. National courts, indeed, frequently have recourse to a reference for a preliminary ruling in cases which would be more satisfactorily dealt with by means of a direct action against a Member State for failing to fulfil the obligations imposed by the Treaties or by secondary legislation; and thus by involving this Court in their surrogate activities may usurp powers and initiatives which are in principle those of the Commission.

3. I think it cannot seriously be doubted that rules such as those whose essential features I have stressed are capable of creating an obstacle to intra-Community trade. They prevent the importation of a product when quite fortuitously it happens that its marketing is banned in the place of origin and at the same time — and this is the decisive issue — it places no restriction on the marketing of the similar domestic product. The discrimination between domestic and imported products is patent and therefore Article 30 applies automatically. The Commission rightly points out that in its Directive 70/50/EEC of 22 December 1969 (Official Journal, English Special Edition 1970 (I), p. 17) measures which prescribe that imported products are to conform, totally or partially, to rules other than those of the importing country are to be regarded as measures having an effect equivalent to quantitative restrictions (Article 2 (3) (p)).

4. The plaintiff in the main action claims that the ban on marketing in Germany Italian vermouth with an alcoholic content of less than 16% escapes the prohibition in Article 30 because it is intended to protect the German consumer. Thus the plaintiff does not deny (and how could it?) that the rules impedes intra-Community trade, but it claims that its protective function has a socially important value which according to the case-law of the Court limits or reduces the scope of the Community prohibition. The Schutzverband maintains that the German consumer, and in particular the millions of tourists ... who visit Italy every year, expect Italian vermouth marketed in the Federal Republic of Germany ... to be identical to the Italian vermouth sold or served in Italy; it infers that if vermouth produced in Italy and sold in Germany does not correspond to that marketed in Italy the consumer is being misled (see statement of 14 April 1982, paragraph 3).

5. During the written procedure and again during the oral procedure the argument was put forward that the requirement of protecting human health suffices, as stated in the first sentence of Article 36 of the EEC Treaty, to render the ban imposed by the German legislation lawful. But that argument does not hold up, either. The same cogent argument which prevents consumer protection from being pleaded to exempt from the prohibition of Article 30 militates against it.

6. One last aspect of the case remains to be considered. As I have said, the prohibition in paragraph 32 of the Law of 14 July 1971 arises because of the reference to the law of the country where the vermouth is produced. Can that fact affect the issue? I do not think so. In my opinion the fact that domestic and imported products are treated differently is decisive.

7. For all the aforesaid considerations I propose the following answer to the questions referred to the Court for a preliminary ruling by the Landgericht München I by order of 26 January 1982 in the case brought by the Schutzverband gegen Unwesen in der Wirtschaft against the limited liability company Weinvertriebs :

1 Translated from the Italian.