Repon for the Hearing delivered in Case 274/87

I — Facts

Paragraph 4 (1) of the Fleisch-Verordnung (Meat Regulation) of 21 January 1982 (BGBl. I, p. 89) prohibits the marketing of meat products in the preparation of which certain animal or vegetable substances are used. Those substances include, inter alia, milk and dairy products, eggs and egg-based products, and vegetable substances containing albumen, starch or dextrin.

There are two exceptions to that prohibition. First, Paragraph 4 (2), read together with Annex 2 of the Fleisch-Verordnung, provides that subparagraph (1) of that paragraph is not to apply in respect of the substances listed, and under the conditions set out, in that annex, without any necessity to place a distinguishing mark, on the product to indicate the presence of those substances.

Secondly, Paragraph 5, read together with Annex 3 of the Fleisch-Verordnung, allows the use of other prohibited substances for certain meat products and under specified conditions. In such cases, however, the goods must bear a mark indicating that those substances are present.

The ban on marketing is supplemented by Paragraph 47 (1) of the Lebensmittel- und Bedarfsgegenständegesetz (LMBG, Law on foodstuffs and necessities) of 15 August 1974 (BGBl. I, p. 1945; III, 2125 to 40), which prohibits the importation of foodstuffs which do not comply with German standards.

Compliance with those rules is ensured by provisions relating to criminal or administrative offences.

The abovementioned provisions have the effect of preventing certain meat products, lawfully manufactured in other Member States where different rules apply to the use of ingredients other than meat, from being imported into the Federal Republic of Germany.

The Commission considered that the prohibition of the importation of meat products that did not comply with German standards was contrary to Articles 30 and 36 of the Treaty and, by a letter of 20 December 1985, requested the German Government, in accordance with the first paragraph of Article 169 of the Treaty, to submit its observations within a period of one month from the receipt of that letter. The German Government explained its point of view in a letter of 24 April 1986.

On 23 December 1986, the Commission delivered a reasoned opinion, as provided for in the first paragraph of Article 169 of the Treaty, requesting the Federal Republic of Germany to adopt the measures necessary to comply with that opinion within a period of one month from the date of notification thereof.

In its reply of 2 June 1987, the German Government maintained its point of view. It stated, however, that in the interim it had been possible to find a solution for the description of French and Belgian pates and suggested that the proceedings should be suspended, referring, inter alia, to discussions in the Council about a possible ban on the use of vegetable proteins in meat products.

II — Written procedure

By an application lodged at the Court Registry on 16 September 1987, the Commission of the European Communities brought an action before the Court under the second paragraph of Article 169 of the EEC Treaty for a declaration that the Federal Republic of Germany had failed to fulfil its obligations.

The procedure followed the normal course. The Commission waived its right to submit a reply.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral proceedings without any preparatory inquiry. The parties were requested to clarify certain statements in writing; they complied with that request within the time allowed.

III — Conclusions of the parties

The Commission claims that the Court should:

The defendant contends that the Court should:

IV — Submissions and arguments of the parties

1. The Commission considers that the German rules constitute an infringement of the prohibition of measures having an effect equivalent to quantitative restrictions (Article 30 of the EEC Treaty) and are not justified. The Commission rejects the following justifications, put forward by the German Government during the pre-litigation procedure:

2. The defendant considers that the German rules are compatible with Articles 30 and 36 of the Treaty because they are justified on the grounds of the protection of health, consumer protection and other mandatory requirements of the public interest.

1 Language of the case: German.