Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. In the two cases now before it, the Court is being asked to follow its established case-law concerning the free movement of goods and national rules on the preparation of products.
2. According to the Commission, Mr Crippa and Mr Nespoli — the accused in the main proceedings in Case C-196/89 — and the French Government, which has intervened in those proceedings for a preliminary ruling, the established case-law of the Court provides the answer to the question raised. I shall briefly consider that case-law which, in my view, does indeed provide the answer.
The established case-law of the Court
3. The premiss on which the established case-law of the Court is based is that Member States may adopt rules on the manufacture and marketing of (cheese) products within their territory in the absence of any rules of Community law thereon. Such rules cannot, however, discriminate against imported products or hinder the importation of products from other Member States.
4. National provisions of that kind which are applicable without distinction to domestic products and to goods imported from other Member States may be regarded as compatible with the Treaty only if, in compliance with the principle of proportionality, they are rendered necessary by mandatory requirements such as the protection of public health or the protection of consumers and (closely connected therewith) fair trading.
5. The Italian Government relies on the mandatory requirement of protecting consumers or — closely connected therewith — ensuring fair trading.
6. As a less restrictive alternative to a prohibition on sales or on the use of generic names, the Court has referred in its judgments to the possibility of informing the consumer by means of proper labelling as to the composition and the characteristics of the product concerned. To depart from that established case-law on the ground, as set out in a letter of 18 April 1988 from the Italian Permanent Representation to the Commission, that reliance on the labelling would amount to harmonization of quality at the lowest level (thereby referring to the possibility available at the time of choosing cheeses with a low fat content) underestimates the ability of consumers to weigh the price and quality of products against one another. In that connection I leave open the question whether, taking Case C-196/89 as an example, cheese of the Emmenthal type with a fat content of 30% is necessarily of inferior quality to cheese of the same type with a fat content of, for instance, 45%, also having regard to the health considerations referred to above.
Confusion of consumers and reverse discrimination?
7. The only argument put forward by the Italian Government in its written observations is that consumers would be seriously confused if, as a result of the free movement of goods, they were confronted with an Emmenthal-type cheese with a fat content of, for instance, less than 45%, whereas cheese of the same type produced and sold in Italy had a minimum fat content of 45%.
8. According to the Associazione italiana lattiero-casearia, the Treaty provisions concerning the free movement of goods in conjunction with existing national rules which impose strict standards as regards the production or description of cheese, for example, have the effect of placing national producers at a disadvantage in relation to their rivals in other Member States. The intervener goes so far as to suggest that this difference of treatment is contrary to the second subparagraph of Article 40(3) of the Treaty.
Conclusion
9. In the light of the foregoing, I propose that, in Case C-210/89, the Court declare that the Italian Republic has failed to fulfil its obligations on account of the application to goods imported from other Member States of rules imposing an absolute prohibition on sales or a prohibition on sales under the name cheese, even though those goods have been lawfully manufactured and may be described as cheese in the Member State of production in accordance with the production rules in force there. I also propose, therefore, that the Italian Republic should be ordered to pay the costs in that case.
10. In Case C-196/89 I propose that the Court answer the question submitted for a preliminary ruling as follows:
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).