Report for the Hearing in Case C-196/89

I — Facts and procedure

1. Italian legislation prohibits the production, importation and marketing in Italy of cheeses whose fat content is lower than that prescribed by that legislation. No derogation is permitted in favour of products from another Member State whose composition is in conformity with the legislation of that State.

2. In the course of an inspection carried out in April 1989 in a supermarket run by Mr Enzo Nespoli, inspectors from the Presidio multizonale di igiene e prevenzione (Inter-area Health and Safety Unit), Milan, found that a French cheese with a fat content of 30% was being marketed. That cheese, called Predor Light, had been imported into Italy by Predor Italia, whose chairman was Giuseppe Crippa.

3. Since Predor Light is a cheese of the Emmenthal type, which is required by the Italian legislation to have a minimum fat content of 45%, both Mr Crippa and Mr Nespoli were prosecuted.

4. In the criminal proceedings instituted before it, the Pretura di Milano (Magistrates' Court, Milan) found that the product in question was clearly cheese since the Italian description prodotto caseario (cheese product) on the label was synonymous with the word formaggio (cheese), and stated that it was clear from the structure of the product that it was an Emmenthal-type cheese. Next, the Pretura raised the question whether the Italian legislation, in so far as it applied to cheeses other than typical local cheeses and cheeses of specific origin, was compatible with Articles 30 and 36 of the EEC Treaty. In its view, the Italian legislation could be regarded as constituting an obstacle to intra-Community trade and could not be justified either on grounds of the protection of public health or by mandatory requirements relating to consumer protection or fair trading.

5. Accordingly, by order of 9 June 1989, the Pretura di Milano decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

6. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were submitted by the French Government, represented by Edwige Belliard, acting as Agent, by the Italian Government, represented by Luigi Ferrari Bravo, Head of the Legal Department at the Ministry of Foreign Affairs, acting as Agent, assisted by Pier Giorgio Ferri, avvocato dello Stato, by the Commission of the European Communities, represented by Sergio Fabro, a member of its Legal Department, acting as Agent, by the Associazione italiana lattiero-casearia (Italian Association of Dairy Producers), represented by Fausto Capelli, of the Milan Bar, and by Enzo Nespoli and Giuseppe Crippa, represented by Nicole Coutrelis, of the Paris Bar.

7. On 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.

II — Summary of the parties' observations

1. Mr Crippa and Mr Nespoli, the accused in the main proceedings, point out that, in its order for the reference, the national court itself has answered the question raised, taking the view that the Italian legislation constituted a barrier to trade and was not justified either by mandatory requirements or on any of the grounds provided for in Article 36 of the Treaty. Nevertheless, they wish to add the following observations:

2. The Associazione italiana lattiero-casearia (Italian Association of Dairy Producers), the intervener in the main proceedings, observes at the outset that this case relates to cheese in general, excluding typical local cheeses or cheeses with a registered designation of origin, in respect of which any legal problems would necessitate a different solution.

3. After referring to the judgments in REWE Zentral and in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, the

4. The Italian Government points out that the Italian legislature intended to restrict the name cheese solely to products containing specified nutrients, in order to protect the legitimate expectations of consumers with regard to the traditional manufacture of that foodstuff. The relevant legislation also prevents a number of domestic products from being offered for sale under the name cheese; those products are released for consumption under other names.

5. The Commission of the European Communities notes at the outset that the Italian legislation is the subject of infringement proceedings under Article 169 of the Treaty currently pending before the Court.

1 Language of the case: Italian.