Report for the Hearing in Case C-269/89

I — Facts and procedure

1. The Vlees- en Vleeswarenbesluit (Netherlands Order on Meat and Prepared Meat Products) of 27 April 1987 adopted pursuant to Articles 14 and 16 of the Warenwet (Netherlands Law on Product Quality Control) lays down rules on the composition and description of meat and prepared meat products. Among them Article 1(1 )(o) lays down a percentage called the Federgetal, which expresses the ratio of water content to the content of organic non-fatty substances.

2. The company Bonfait BV sold and delivered within the Commune of Almelo in August and September 1988 products described as vleeswaren (prepared meat products). The products were Mosaikpastete and Kaiserjagdwurst which it had bought from the firm Kempers, based in the Federal Republic of Germany, where the products are lawfully produced and sold.

3. The Magistrate dealing with commercial cases on the Arrondissementsrechtbank Almelo took the view that the proceedings raised a problem of interpretation of Community law and decided by interlocutory judgment of 29 June 1989 to stay the proceedings and to refer the following questions to the Court of Justice pursuant to Article 177 of the EEC Treaty:

4. The judgment making the reference was registered at the Court Registry on 5 September 1989.

II — Summary of written observations submitted to the Court

As regards the first question, Bonfait BV argues that the national rules applicable to the present situation are not those of the Vlees- en Vleeswarenbesluit, but those of the Order of 4 March 1985 concerning the importation of meat-based products originating from Member States of the EEC, implementing, inter alia, Council Directive 77/99/EEC of 21 December 1976 on health problems affecting intra-Community trade in meat products (Official Journal 1977 L 26, p. 85). Since the directives which apply to the matter do not contain rules concerning the Federgetal, its inclusion in the Vlees- en Vleeswarenbesluit infringes Community law and therefore cannot be applied.

As regards the second and third questions, Bonfait BV claims that the products in question comply with the rules in force in the Federal Republic of Germany and can therefore be sold there as Fleischwaren (meat products). Although the Federgetal as such is unknown in the Federal Republic of Germany Mosaikpastete and Kaiserjagdwurst broadly satisfy the German standard governing the Wasser: Eiweiss (water/protein) ratio in the regions where conditions are applied in this respect.

Bonfait BV refers to the case-law of the Court concerning measures having an effect equivalent to quantitative import restrictions prohibited by Article 30 of the EEC Treaty. In this connection, the impossibility of using the names vleeswaar (prepared meat product) and vleesprodukten (meat-based products) for products which do not comply with the requirements of the Vlees- en Vleeswarenbesluit has the effect of restricting the competitive capability of the product and therefore constitutes a measure of equivalent effect, as the Court has held in particular in its judgment in Case 178/84 Commission v Germany [1987] ECR 1227, the Beer case.

Since, according to the defendant in the main proceedings, the Community has already adopted rules in this area through the directive cited, Article 36 of the EEC Treaty cannot apply. Even supposing that Article 36 did apply, there is nothing to suggest that the water content represents a real danger to public health, and, in any event, protection of the consumer could be ensured by less stringent means, such as appropriate labelling.

6. The Netherlands Government considers that the first question concerns the interpretation of national rules and that the Court therefore has no jurisdiction to reply to it.

1 Language of the case: Dutch.