Report for the Hearing delivered in Case 98/86

I — Facts and procedure

1. The provisions of Community law

In its proposal for a Council regulation on the manufacture and marketing of butter, submitted on 14 June 1968, the Commission proposed that butter could only be marketed if its package or label carried the following easily seen, clearly legible and indelible indications:

...

That proposal was never adopted by the Council.

Article 3 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 L 33 of 8 February 1979, p. 1) provides that:

2. The national legislation

Article 4 of the Law of 8 July 1935 on butter, margarine, prepared fats and other edible fats provides that:

Article 5 of the Royal Decree of 22 October 1976 on butter and butter mixtures, and establishing official supervision of butter reenacted verbatim the provision of the 1935 Law, cited above.

The Royal Decree of 2 October 1980 on the labelling of prepackaged foodstuffs, the purpose of which was to transpose into Belgian law Directive 79/112/EEC, provides that it is prohibited to place on the market prepackaged foodstuffs which do not bear the following indications:

...

The Royal Decree of 2 October 1980 does not mention, among the many provisions which it repeals, the provisions cited above of the Law of 8 July 1935 and the Royal Decrees of 3 January 1974 and 22 October 1976.

3. The main proceedings

After receiving an anonymous letter on 23 December 1983, the Office national du lait [National Milk Office] discovered that Arthur Mathot, a butter packager and dealer, residing at Celles (province of Namur), was offering for sale creamery butter in packages bearing the number of his licence as a wholesaler/reprocessor but neither his name nor his address.

As a result of that discovery, Mr Mathot was summoned to appear before the tribunal de première instance, Dinant, acting as a court of summary jurisdiction, on a charge that, as a wholesaler/reprocessor, he had marketed at Celles and elsewhere in the Kingdom between 2 August 1983 and 1 November 1983 in contravention of the Law of 8 July 1935 and the Royal Decree of 27 February 1963 butter prepared by him in packaging not bearing the packager's name or address.

Before the abovementioned court, the accused in the main proceedings contended that the Belgian legislation referred to in the charge required the name and address of producers, manufacturers or packagers in Belgium to be indicated, whereas they did not have to be indicated when the butter came from other Member States of the Community. He also pointed out that supermarkets preferred butter packaged without the name and address of the packager.

Having regard to the fact that under Article 4 (2) of the Law of 8 July 1935, as supplemented by Article 1 of the Royal Decree of 3 January 1974, the obligation to indicate the name and address of the seller in Belgium did not apply to butter originating in the other Member States, the tribunal de première instance, Dinant, decided, by a judgment of 6 March 1986, to stay the proceedings and refer the following question to the Court for a preliminary ruling under Article 177 of the EEC Treaty the following question:

The judgment referring the question to' the Court was received at the Registry on 14 April 1986.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community, written observations were submitted on 5 June 1986 by the substitut du procureur du roi [Deputy Public Prosecutor] attached to the tribunal de première instance de Dinant, on 8 July 1986 by the Belgian Government, represented by H. De Belder, Director of European Affairs, acting as Agent, and on 14 July 1986 by the Commission of the European Communities, represented by Daniel Jacob, a member of its Legal Department, acting as Agent.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. However, it requested the Belgian Government to reply to a question concerning the Royal Decree of 2 October 1980 on the labelling of prepackaged foodstuffs. The Belgian Government replied to that question within the prescribed timelimit.

By decision of 3 October 1986 adopted pursuant to Article 95 (1) and (2) of the Rules of Procedure the Court assigned the case to the Third Chamber.

II — Written observations submitted to the Court

The substitut du procureur du rot submits that Article 4 of the abovementioned Law of 8 July 1935 is not incompatible with Article 30 of the EEC Treaty inasmuch as it does not hinder the free movement of goods even though it provides for different treatment for the packaging of butter originating in Member States of the EEC. He considers that the indications required by that provision are not restrictive inasmuch as they are intended to permit identification of the producer, manufacturer, packager or seller, all being different persons involved in the marketing of butter.

The Belgian Government contends that the Belgian rules are in conformity with Community law, in particular with Directive 79/112/EEC and Articles 30 and 34 of the EEC Treaty.

With regard to the directive, it emphasizes that the Belgian rules comply with the first paragraph of Article 3 (1) (6) in regard to Belgian products. On the other hand, with regard to imported products, the Belgian Government cannot, by virtue of the second paragraph of the same provision, impose on those goods stricter conditions than those laid down in the national legislation of their Member State of origin. Moreover, even if the Belgian Government imposed stricter conditions on domestic products than those provided for in Article 3 (1) (6), those conditions would be perfectly lawful under the second paragraph of that provision.

With regard to Article 30 of the EEC Treaty, the Belgian Government points out that Belgian law cannot be contrary to that provision of the Treaty inasmuch as it prohibits quantitative restrictions on imports. However, the contested provision cannot in fact have any effect on the flow of imports since the obligation therein laid down does not apply to imported products.

Finally, the Belgian Government maintains that there are also no restrictions on exports inasmuch as the Belgian rules provide for no difference in treatment between domestic products intended for export and domestic products marketed in Belgium which might give an advantage to domestic production or the internal market. The Belgian Government refers in that regard to Case 15/79 Groenveld v Produktschap voor Vee en Vlees [1979] ECR 3415 and Joined Cases 141 to 143/81 Holdijk [1982] ECR 1299.

The Commission points out that Article 2 (5) of the Royal Decree of 2 October 1980, which is not referred to in the order for reference, makes the labelling of. butter marketed in Belgium subject to a single body of rules, regardless of the origin of the product. Since it is the most recently enacted provision, it impliedly repeals the earlier provisions of Belgian law laying down different rules. It considers that the existence of the rules laid down in the abovementioned Royal Decree, which are in conformity with the requirements of Directive 79/112/EEC, excludes any difference of treatment. Moreover, in so far as that directive, the purpose of which is, in particular, to facilitate the free movement of foodstuffs, lays down common rules on the labelling of foodstuffs, the Commission considers that there is no need to examine the national rules in the light of Article 30 of the EEC Treaty.

Furthermore, according to the Commission, the discrimination against national products to which the national court refers is not in any event prohibited by the abovementioned provision of the Treaty.

Moreover, as a general rule, in the absence of specific provisions in the Treaty or in the legislation adopted thereunder, reverse discrimination is not prohibited by Community law (see, in that regard, the Opinion of Mrs Advocate General Rozès in Joined Cases 314 to 316/81 and 83/82 Procureur de la République v Waterkeyn and Others and the judgment in that case [1982] ECR 4337). In that judgment, the Court held, in reply to the argument that Article 30 of the EEC Treaty prohibited any difference in treatment detrimental to domestic products, so that the incompatibility of national rules with the Treaty should have general effect and, as a result, those rules should be condemned in their entirety, that:

The Commission emphasizes that the principles laid down by the Court in that judgment derive from the finding that the prohibition laid down in Articles 30 and 34 of the Treaty relates only to obstacles to trade between Member States and does not create a sort of fundamental right to sell goods. The Commission refers in that regard to the judgment of the Court in Retje (Case 27/80 [1980] ECR 3839) and Kelderman (Case 130/80 [1981] ECR 527) in which the Court regarded the extension of particular national rules to imported products as incompatible with Article 30 of the Treaty.

The Commission concludes by proposing that the Court reply as follows to the question referred to it:

1 Language of the Case: French.

2 Article 22 deals with the various items of information which the Member Sutes must supply to the Commission.