Opinion of Mr Advocate General Van Gerven delivered on 5 July 1990

1 Original language: Dutch.

2 OJ, English Special Edition 1968 (I), p. 176.

3 Judgment in Case 237/82 Jongeneel Kaas v Ne therlands [1984] ECR 483. paragraph 13

4 Ibid

5 Judgment in Case 130/80 [1981] ECR 527, paragraph 7

6 The fact that this case is concerned with the most generic terra that exists for cheese products, namely cheese, distinguishes it from situations in which the name used necessarily presupposes the existence of a typical ingredient or method of production and the product offered for sale is substantially different. In that connection, at the hearing the Associazione italiana lattiero-casearia referred to the answer given by the Commission to a question from the European Parliament concerning cheese manufactured from cow's milk which may not be marketed in Greece under the name Feta (answer to Written Question No 2302/87 by Mr Pol Marck (90/C 9/03), OJ 1990 C 9, pp. 2 and 3). It is clear from the Court's judgment in Case 286/86 Minislère public v Deserbais [1988] ECR 4907 that that situation — which I need not consider — does not arise here. In that judgment, the Court treated a very similar restriction on the use of a name far less generic than the term cheese, namely Edam, as being contrary to Article 30 et seq. of the EEC Treaty.

7 Case 178/84 Commission v Germany [1987] ECR 1227.

8 Judgment in Case 120/78 REWE-Zentrah Bundesmonopolverwaltung fir Branntwein [1979] ECR 649, paragraph 8. The last two requirements referred to in the text are at times merged into a single requirement: see the Opinion of Mr Advocate General Mayras in Case 27/80 Fietje [1980] ECR 3839, who on p. 3861 uses the phrase the protection of the consumer against unfair commercial practices.

9 As far as the Italian authorities are concerned, the national court refers, by way of example, to the health campaign conducted in 1986 by the Istituto nazionale della nutrizione, one of whose fundamental themes was reducing fat consumption.

10 See the programme Europe against Cancer submitted by the Commission to the Council on 17 December 1986 (C9M(86) 717 final, OJ 1987 C 50, p. 1), in the section entitled Improvement in nutrition, see the subsection entitled Nutrition and cancer (pp. 15 and 16) and in the section entitled Elaboration of guidelines relating to nutrition and cancer prevention, see Action 16 (on p. 18), and the European Code against Cancer (p. 32). In those passages, an excessively fatty diet is invariably referred to as a risk factor. Subsequently, the Council and the representatives of the governments of the Member States meeting within the Council adopted an action plan for 1988 to 1989 by Decision of 21 June 1988 (88/351/EEC, OJ 1988 L 160, p. 52). The action planned for 1990 to 1994 was adopted by Decision of 17 May 1990 (90/238/Euratom, ECSC, EEC, OJ 1990 L 137, p. 31).