JUDGMENT OF 17. 3. 1983 — CASE 94/82 DE KIKVORSCH

In Case 94/82 REFERENCE to the Court under Article 177 of the EEC Treaty by the Economische Politierechter [Magistrate dealing with commercial offences] in the Arrondissementsrechtbank [District Court] Arnhem for a preliminary ruling in the criminal proceedings brought against

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, O. Due and K. Bahlmann, Judges, Advocate General: G. F. Mancini Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Written observations submitted to the Court

A — The observations of De Kikvorsch

B — Observations of the Government of the Netherlands

C — Observations of the Commission

III — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. The accused in the main action, De Kikvorsch Groothandel-Import-Export BV (hereinafter referred to as De Kikvorsch), was summoned before the Economische Politierechter of the Arrondissementsrechtbank, Arnhem, for importing and marketing in 1980 in the Netherlands a beer described as Berliner Kindl Weiße from the Federal Republic of Germany.

2. Article 6 (4) of the Bierverordening lays down the abovementioned requirement concerning acidity in the following terms:

3. Article 7 (2) of the Bierverordening states that it is prohibited to market in the Netherlands beer of which the extract strength of the original wort does not fall within one of the categories referred to in Article 7(1). The reference to the category in which the beer is included must under Article 9 (1) (b) be stated on the prepackaging as follows for example: Category II for beer which has an extract strength of the original wort of between 7 and 9.5 inclusive. On the other hand, Article 7 (3) provides that the extract strength of the original wort itself is not to be stated on the prepackaging or on the label.

4. The Bierverordening was adopted under a decision of the Committee of Ministers of the Benelux Economic Union of 31 August 1973 on the harmonization of legislation concerning beer (Basic Text Benelux 1973/1974, p. 1680 et seq.). That decision also contains a prohibition of the marketing of beers of which the pH is less than 3.9, but it does not contain any prohibition of the statement of the extract strength of the original wort.

5. Under Article 14 (1) (b) of the Drank- en Horecawet [Law on beverages and cafés, hotels and restaurants] (of 7 December 1964, Staatsblad p. 386, most recently amended by the Law of 14 December 1977, Staatsblad p. 675), the alcoholic content must be stated in the Netherlands on the packaging of alcoholic beverages which are supplied to individuals in the course of trade for consumption otherwise than on the premises.

6. On 26 June 1970, the Commission submitted to the Council a proposal for a Council directive on the harmonization of the legislation of the Member States on beer (Journal Officiel 1970, C 105, p. 17). That proposal, which did not regulate the degree of acidity and contained no provision concerning a statement of the extract strength of the original wort on prepackaging or labels, was subsequently withdrawn.

7. Having raised of his own motion the question of the compatibility of the abovementioned provisions with Community law, the Economische Politierechter of the Arrondissementsrechtbank, Arnhem, decided to stay the proceedings under Article 177 of the EEC Treaty and refer the following question to the Court for a preliminary ruling:

8. The order made by the Economische Politierechter of the Arrondissementsrechtbank, Arnhem, was received at the Court Registry on 22 March 1982.

II —. Written observations submitted to the Court

A —. The observations of De Kikvorsch

B —. Observations of the Government of the Netherlands

C —. Observations of the Commission

(a). the acidity (pH) of the beer, not being sour beer, is 3.9 or less

(b). the extract strength of the original wort of the beer is stated on the prepackaging or on the label of the beer.

III —. Oral procedure

1. By judgment of 28 December 1981, which was received at the Court Registry on 22 March 1982, the Economische Politierechter [Magistrate dealing with commercial offences] in the Arrondissementsrechtbank [District Court], Arnhem, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 30 of the EEC Treaty, in order to enable him to determine the compatibility with Community law of certain provisions of the Netherlands Bierverordening [Beer Order] 1976, which was adopted by the Produktschap voor Bier [Beer Production Board] (Verordeningenblad Bedrijfsorganisatie of 31 August 1976].

2. That question arose in the context of criminal proceedings brought against a beer importer, who was accused of marketing in the Netherlands a beer imported from the Federal Republic of Germany and described as Berliner Kindl Weiße, the acidity of which exceeded the limit laid down in Article 6 (4) of the Bierverordening, which had not been manufactured according to the processes provided for in Article 1 (j) for the preparation of so-called sour beers and the label of which stated the strength of the original wort of the beer, contrary to Article 7 (3) of the Bierverordening.

3. With regard to the provisions on acidity, it is clear from the file, as supplemented during the oral procedure before the Court, that the Bierverordening was adopted under a decision of the Committee of Ministers of the Benelux Economic Union of 31 August 1973 on the harmonization of legislation concerning beer (Basic Text Benelux 1973/1974, p. 1680 et seq.) and that the purpose of the relevant part of that decision was to define the different types of beer traditionally brewed in the Benelux countries and to protect their typical taste.

4. The prohibition of a statement of the strength of the original wort of the beer on the prepackaging or label was taken from the Verordening Verbod Vermelding Stamwortgehalt van Bier [Order prohibiting any statement of the strength of the original wort of beer] of 1964. It is connected with the requirement that the alcoholic content must be stated on the packaging which is contained in Article 14 (1) (b) of the Drank- en Horecawet [Law on beverages and cafés, hotels and restaurants] of 7 December 1964 (Staatsblad, p. 386). It is clear from the file that the Produktschap wished to avoid the risk of confusion between those statements, which, in the Netherlands, are both normally expressed in percentages.

5. Under those circumstances, the Economische Politierechter referred to the Court a question which in substance asks whether the extension of national prohibitory provisions such as those described above to beer imported from another Member State, in which it is lawfully produced and marketed, must be regarded as a measure having an effect equivalent to a quantitative restriction on imports, prohibited by Article 30 of the Treaty.

6. Before that question is answered, it should be recalled, as the Court has repeatedly held since its judgment of 20 February 1979 in Case 120/78, REWE, [1979] ECR 649, that in the absence of common rules relating to the production and marketing of the products concerned, obstacles to free movement within the Community resulting from disparities between the national laws must be accepted in so far as such rules, applicable to domestic and to imported products without distinction, may be recognized as being necessary in order to satisfy mandatory requirements relating inter alia to fariness in commercial dealings and consumer protection.

7. Consequently it is necessary to consider whether the extension to imported products of national provisions such as those in question in the main action is capable of impeding the free movement of goods between Member States and, if so, to what extent such obstacles are justified on the ground of the public interest underlying the national provisions. For that purpose, it is necessary to consider separately the two types of prohibition at issue in this case.

8. The extension to imported beer of national rules prohibiting the marketing of beer which does not comply with the conditions on acidity is likely to preclude beer lawfully produced and marketed in other Member States from being marketed in the Member State in question. That obstacle to the free movement of goods between Member States cannot be justified by the need to define the different types of beer traditionally brewed in a certain part of the Community and to protect their typical taste. In particular, no consideration relating to the protection of the national consumer militates in favour of a rule preventing such consumer from trying a beer which is brewed according to a different tradition in another Member State and the label of which clearly states that it comes from outside the said part of the Community.

9. The answer to that part of the question for a preliminary ruling must therefor be that, if the rules on trading in beer, adopted by a Member State in order to define the different types of beer traditionally brewed in a certain part of the Community and to safeguard its typical taste, prohibit the marketing of any beer whose acidity exceeds a certain level, unless that beer is produced by processes traditionally used in that part of the Community to obtain sour beer, the extension of that prohibition to beer lawfully produced and marketed in another Member State must be regarded as a measure having an effect equivalent to a quantitative restriction, which is prohibited by Article 30 of the Treaty.

10. Although the extension to imported products of a prohibition of the statement of certain information on the packaging of a product is not an absolute barrier to the importation into the Member States concerned of products originating in other Member States, it is none the less of such a nature as to render the marketing of those products more difficult or more expensive, through the need to alter the label under which the product is lawfully marketed in the Member State in which it is produced.

11. Article 30 of the Treaty in no way prevents a Member State from protecting its consumers against labelling which is of such a kind as to mislead the purchaser. Such protection is indeed required by Article 2 (1) of 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. Such consumer protection may also entail a prohibition of the provision of certain information on the products, particularly if that information may be confused by the consumer with other information required by the national rules. For such a prohibition to be applied to products from another Member State, in such a way as to necessitate the alteration of the original labels of such products, the original labels must actually be of such a kind as to give rise to the confusion which the rules seek to avoid. The findings of fact necessary in order to establish whether or not there is such a risk of confusion are a matter for the national court.

13. The answer to the latter part of the question referred to the Court for a preliminary ruling should therefore be that the extension by a Member State of the prohibition of a statement of the strength of the original wort of beer on the prepackaging or the label to beer imported from other Member States, necessitating an alteration of the label under which the imported beer is lawfully marketed in the exporting Member State must be regarded as a measure having an effect equivalent to a quantitative restriction, which is prohibited by Article 30 of the Treaty, unless such statement, regard being had to its specific terms, is of such a kind as to mislead the purchaser.

On those grounds, THE COURT (Second Chamber), in answer to the questions submitted to it by the Economische Politierechter of the Arrondissementsrechtbank, Arnhem, by judgment of 28 December 1981, hereby rules:

1 If the rules on trading in beer, adopted by a Member State in order to define the different types of beer traditionally brewed in a certain part of the Comunity and to safeguard its typical taste, prohibit the marketing of any beer whose acidity exceeds a certain level, unless that beer is produced by processes traditionally used in that part of the Community to obtain sour beer, the extension of that prohibition to beer lawfully produced and marketed in another Member State must be regarded as a measure having an effect equivalent to a quantitative restriction, which is prohibited by Article 30 of the Treaty.

2 If such rules prohibit a statement of the strength of the original wort of the beer on the prepackaging or the label thereof, the extension of that prohibition to beer imported from other Member States, necessitating an alteration of the label under which the imported beer is lawfully marketed in the exporting Member State, must be regarded as a measure having an effect equivalent to a quantitative restriction, which is prohibited by Article 30 of the Treaty, unless such statement, regard being had to its specific terms, is of such a kind as to mislead the purchaser.