C-788/79
ECLI:EU:C:1980:171
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JUDGMENT OF 26. 6. 1980 — CASE 788/79
prohibition imposed by a Member of wine comes within that provision State on importing or marketing where the vinegar involved is lawfully vinegar containing acetic acid not produced and marketed in another derived from the acetic fermentation Member State.
In Case 788/79
REFERENCE to the Court under Article 177 of the EEC Treaty by the Pretura di Bolzano for a preliminary ruling in the criminal proceedings against
HERBERT GILLI AND PAUL ANDRES
on the interpretation af Article 30 of the EEC Treaty,
T H E COURT (Second Chamber)
composed of: A. Touffait, President of Chamber, P. Pescatore and O. Due, Judges,
Advocate General: F. Capotorti Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of I — Facts and procedure the procedure and the observations submitted under Article 20 of the In the main proceedings before the Protocol on the Statute of the Court of Pretura di Bolzano Herbert Gilli and Justice of the EEC may be summarized Paul Andres, the defendants in those as follows: proceedings, challenged the compatibility
GILLIAND ANDRES
with Community law and in particular (a) a total acidity expressed as acetic with Article 30 of the EEC Treaty of acid of 6 grams at least per 100 ml; certain provisions of the rules adopted in Italy in relation to the production and marketing of vinegar. (b) a quantity of alcohol not in excess of 1.5% by volume. In Italy this matter is governed first of all by Law No 991 of 9 October 1964 (Gazzetta Ufficiale No 265 of 28 October 1964) which delegates to the It should further be pointed out that government power to adopt rules for the under Article 94 of Decree No 162 suppression of fraud in the preparation infringements of Article 51 are pun- and marketing of musts, wines and ishable by fines ranging from 2 to 20 vinegars. Article 2 (6) of that Law million lire and in addition by stipulates that the decree shall prohibit imprisonment not exceeding three years the direct or indirect use in the food in the most serious cases. sector of synthetic alcohols and products containing acetic acid not arising from the fermentation of wine or piquette. Finally Article 60 of Decree No 162 provides that "the provisions of this In accordance with that Law Article 51 decree shall apply in a similar manner to of Decree No 162 of the President of the products imported from abroad". Republic of 12 February 1965 (Gazzetta Ufficiale No 73 of 23 March 1965) provides: For infringement of Article 51 of Decree No 162 the Fraud Department of San "Synthetic ethyl alcohol and products Michele all'Adige summoned Herbert containing acetic acid not originating in Gilli, importer and wholesaler of food products, residing in Comedo all'Isarco the acetic fermentation of wine or (Bolzano) and Paul Andres, trader, piquette and products derived from the residing in Bolzano, before the Pretura acetic fermentation of wine or piquette di Bolzano. which cannot be classified as vinegar in accordance with Article 41 shall not be carried, held for sale, marketed or dealt with in any manner whatsoever for use, The first is charged with having directly or indirectly, for human marketed and stocked for the purpose of consumption". sale apple vinegar made by the company Richard Hengstenberg, Esslingen (Federal Republic of Germany), Article 51 of Decree No 162 was containing acetic acid not derived from amended by Law No 739 of 9 October the acetic fermentation of wine; the 1970 (Gazzetta Ufficiale No 270 of second is charged with having stocked 24 October 1970) which simply deleted the same product for sale. the words "or piquette".
The word "vinegar" is reserved by In the proceedings before the Pretura di Article 41 of Decree No 162 to Bolzano counsel for Gilli claimed that "products obtained from the acetic the prohibition in Article 51 of Decree fermentation of wine" having: No 162 on importing apple vinegar from
JUDGMENT OF 26. 6. 1980 — CASE 788/79
the Federal Republic of Germany and II — O b s e r v a t i o n s submitted marketing it in Italy was a measure p u r s u a n t to A r t i c l e 20 of having an effect equivalent to a the P r o t o c o l on the S t a t u t e quantitative restriction and thus contrary of the C o u r t of J u s t i c e of to Article 30 of the EEC Treaty and he the E E C denied that the prohibition was justified under Article 36 of the EEC Treaty. A — Observations of the defendants in In consequence the Pretura di Bolzano the main proceedings stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling: First of all the defendants state that although the Court of Justice is not "Must the expression 'quantitative required in proceedings under Article restrictions on imports and all measures 177 of the Treaty to rule on the having equivalent effect' contained in compatibility of rules of national law Article 30 of the Treaty establishing the with the provisions of Community law, EEC be understood as meaning that the nevertheless it has jurisdiction to provide prohibition referred to in Article 51 of the national court with "all items of Decree No 162 of the President of the information relating to Community law Republic of 12 February 1962 on putting to enable the national court to judge the on the market products containing acetic compatibility of the said rules with the acid not derived from the acetic fer- Community rules in question". mentation of wine must be considered as Consequently they may claim that the being a quantitative restriction on question put to the Court for its views imports or a measure having equivalent "may certainly be considered by it". effect?"
The order making the reference was The defendants in the main proceedings lodged at the Court Registry on cite Cases 41/76, Donckerwolcke, 31 October 1979. Pursant to Article 20 judgment of 15 December 1976 [1976] of the Protocol on the Statute of the ECR 1921, and 120/78 REWE, Court of Justice of the EEC written judgment of 20 February 1979 [1979] observations were lodged on 14 January ECR 649, and maintain that the 1980 by the Commission of the expression "quantitative restrictions on European Communities, represented for imports and all measures having this purpose by A. Prozzillo and R. equivalent effect" must be understood as Wägenbaur, acting as Agents, and on 25 meaning "all trading rules enacted by January 1980 by the defendants in the Member States which are capable of main proceedings represented by Roland hindering, directly or indirectly, actually Riz, of the Bolzano Bar. or potentially, intra-Community trade".
On hearing the report of the Judge- According to the defendants in the main Rapporteur and the views of the proceedings Article 51 of Decree No 162 Advocate General the Court decided to prevents vinegar not derived from the open the oral procedure without any acetic fermentation of wine from being preparatory inquiry. introduced into the national territory. That measure is therefore an obstacle to By order dated 12 March 1980 the Court the free movement of goods within the decided pursuant to Article 95 of the Member States of the EEC. Further it Rules of Procedure to refer this case to cannot be made lawful by Article 36 of the Second Chamber. the EEC Treaty.
GILLI AND ANDRES
First of all from the point of view of In conclusion the defendants in the main the protection of public health the proceedings ask the Court to rule that defendants in the main proceedings the words "quantitative restrictions on maintain that apple vinegar "is more imports and all measures having conducive to health than vinegar from equivalent effect" in Article 30 of the wine because of its high content of EEC Treaty must be interpreted as potassium" and contains no injurious "covering also a prohibition on holding substances. Consequently apple vinegar is for the purposes of sale or marketing not injurious to public health and this is products containing acetic acid not also supported by Danilo Avancini, derived from the acetic fermentation of Director of the Provincial Agricultural wine where this means a complete Institute of San Michele all'Adige. prohibition on the import into Italy of a sub-product of the common agricultural production, more precisely vinegar different from that derived from the acetic fermentation of wine". Next, from the point of view of protecting consumers, containers of the apple vinegar have a label which is sufficiently explicit to show that it is apple vinegar and this rules out any Β — Observations of the Commission possibility of confusion with wine vinegar. Thus consumers are not misled as to the quality of the product by hypothetical confusion with other similar The Commission informs the Court of products. Justice that upon complaint by a Member State against the Italian legislation concerning vinegar it has concluded that there is a breach of Article 30 of the EEC Treaty and has Finally from the point of view of the commenced proceedings against Italy. requirements of fair competition between producers of vinegar there is no risk in this case of unfair competition between producers of vinegar because the It considers that the question put by the containers of apple vinegar are clearly Pretura is "whether the prohibition on distinguishable from others and also importing products containing acetic acid because apple vinegar is considerably not derived from the acetic fermentation dearer than wine vinegar. of wine, in particular apple vinegar, is a measure compatible with Article 30".
The defendants in the main proceedings The Commission refers to the established are of the opinion that the aim of Article case-law of the Court regarding Article 51 of Decree No 162 is to protect 30 of the EEC Treaty and maintains that national producers of wine and products since the Italian rules allow only wine derived from grapes, such as wine vinegar and in particular exclude apple vinegar, and maintain that this defence vinegar they make impossible the sale in of the national interests is contrary to Italy of vinegar other than wine vinegar. one of the basic principles of the EEC, Since the Federal Republic of Germany, namely the principle of free movement of the country of origin of apple vinegar in goods, and is therefore in particular this case, allows the marketing of all contrary to Article 30 of the EEC vinegars, the Italian rules in the matter Treaty. therefore appear as "a complete obstacle
JUDGMENT OF 26. 6. 1980 — CASE 788/79
directly and actually hindering intra- The Commission further observes that Community trade and in particular the the simple abolition of the prohibition on export of apple vinegar originating in importing vinegar containing acetic acid Germany". not derived from the acetic fermentation of wine would not be sufficient to allow such vinegar to be marketed in Italy without restriction in view of the scope The Commission then considers the of Article 41 of Decree No 162 which Italian rules from the point of view of reserves the description "vinegar" to whether they may be justified "as being products obtained from the acetic fer- necessary in order to satisfy mandatory mentation of wines. requirements relating ... to the protection of public health, the fairness of commercial transactions and the In view of all the factors to which it has defence of the consumer (paragraph 8 of referred the Commission proposes that the aforementioned REWE case). the question put by the Pretura di Bolzano should be answered as follows:
It is true that Law No 991 of 9 October "The concept of measures having an 1964 includes among its aims the effect equivalent to quantitative necessity of guaranteeing to consumers restrictions on import in Article 30 of the the origin and quality of vinegar. The EEC Treaty must be interpreted as also Commission however maintains that covering a prohibition enacted by a where "there is a requirement, which, as Member State on importing or in the present case or so it appears, is marketing vinegar containing acetic acid respected, for a label explaining to the not derived from the acetic fermentation consumer the composition and parti- of wine and in particular apple vinegar culars of the product in question and where the product in question is lawfully there is no question of any produced and marketed in another considerations relating to public health, Member State". it is not possible to see how protection of the consumer can justify a prohibition of certain vinegars which are nevertheless readily marketed in other Member States". Ill — Oral procedure
In fine it considers that the main aim of The accused in the main proceedings, the prohibition on using for human represented by Roland Riz, of the consumption vinegars other than wine Bolzano Bar and the Commission, vinegar is to ensure an outlet for the represented by its Agents, Mr surplus production of wine. Although the Wägenbaur and Mr Prozzillo, submitted interests of agricultural policy may in oral argument and answered questions fact explain the Italian Government's from the Court at the sitting on 8 May desire to protect itself against imports of 1980. competing products, nevertheless they cannot justify the prohibition in question from the point of view of Community The Advocate General delivered his law. opinion at the sitting on 29 May 1980.
GILLI AND ANDRES
Decision
1 By order of 26 October 1979, which was received at the Court on 31 October 1979, the Pretore, Bolzano, submitted to the Court of Justice under Article 177 of the EEC Treaty a question directed to establishing whether the prohibition, contained in Article 51 of Decree No 162 of the President of the Italian Republic of 12 February 1965 (Gazzetta Ufficiale No 73 of 23 March 1965), hereinafter referred to as "Decree No 162", as amended by Article 20 of Law No 739 of 9 October 1970, on marketing products containing acetic acid not derived from the acetic fermentation of wine constitutes a quantitative restriction on imports or a measure having equivalent effect, referred to in Article 30 of the EEC Treaty.
2 That question has been raised in the context of criminal proceedings for fraud brought against two traders residing in Bolzano, one of them charged with marketing and holding for the purpose of sale apple vinegar made in Germany containing acetic acid not derived from the acetic fermentation of wine, and the other charged with holding the same product for the purpose of sale, being offences created and made punishable by Articles 51 and 94 of Decree No 162 which prohibits the use, directly or indirectly, for human consumption of, inter alia, products containing acetic acid not derived from the fermentation of wine, even where those products are imported from abroad.
3 The accused in the main proceedings submitted that the prohibition on importing apple vinegar from the Federal Republic of Germany and marketing it in Italy constituted a measure having an effect equivalent to a quantitative restriction contrary to Article 30 of the EEC Treaty and the national judge requested the Court to give a preliminary ruling on the following question:
"Must the expression 'quantitative restrictions on imports and all measures having equivalent effect' contained in Article 30 of the Treaty establishing the EEC be understood as meaning that the prohibition referred to in Article 51 of Decree No 162 of the President of the Republic of 12 February 1965 on putting on the market products containing acetic acid not derived from the acetic fermentation of wine must be considered as being a quantitative restriction on imports or a measure having equivalent effect?"
JUDGMENT OF 26. 6. 1980 — CASE 788/79
4 The national court is thereby asking for assistance in the matter of interpret- ation in order to enable it to assess whether a prohibition such as that laid down by Article 51 of Decree No 162 does or does not come within the category of the quantitative restrictions on imports or measures having equivalent effect referred to in Article 30 of the EEC Treaty.
5 In the absence of common rules relating to the production and marketing of the product in question it is for Member States to regulate all matters relating to its production, distribution and consumption on their own territory subject, however, to the condition that those rules do not present an obstacle, directly or indirectly, actually or potentially, to intra-Community trade.
6 It is only where national rules, which apply without discrimination to both domestic and imported products, may be justified as being necessary in order to satisfy imperative requirements relating in particular to the protection of public health, the fairness of commercial transactions and the defence of the consumer that they may constitute an exception to the requirements arising under Article 30.
7 However, it appears from the documents in the file on the case that it is not in dispute that, first, apple vinegar contains no injurious substances and is not harmful to health and, secondly, the receptacles containing that vinegar are provided with a sufficiently clear label indicating that it is in fact apple vinegar, thus avoiding any possibility of the consumer's confusing it with wine vinegar.
8 Thus there is no factor justifying any restriction on the importation of the product in question from the point of view either of the protection of public health or of the fairness of commercial transactions or of the defence of the consumer.
9 From that it follows that the provisions relating to the prohibition on the marketing of products containing acetic acid other than that derived from wine as set out in Article 51 of Decree No 162 do not serve a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods, which constitutes one of the fundamental rules of the Community.
GILLI AND ANDRES
10 In practice, the principal effect of provisions of this nature is to protect domestic production by prohibiting the putting on to the market of products from other Member States which do not anwer the descriptions laid down by the national rules.
1 1 It appears therefore that a unilateral requirement, imposed by the rules of a Member State, prohibiting the putting on to the market of vinegars not produced from the acetic fermentation of wine constitutes an obstacle to trade which is incompatible with the provisions of Article 30 of the Treaty.
12 Consequently, the answer to the question submitted by the Pretore, Bolzano, should be that the concept of "measures having equivalent effect" to "quantitative restrictions on imports", occurring in Article 30 of the EEC Treaty, is to be understood as meaning that a prohibition imposed by a Member State on importing or marketing vinegar containing acetic acid not derived from the acetic fermentation of wine, and in particular apple vinegar, comes within that provision where the product involved is vinegar lawfully produced and marketed in another Member State.
Costs
1 3 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
T H E COURT (Second Chamber),
in answer to the question referred to it by the Pretore, Bolzano, by order of 26 October 1979, hereby rules:
The concept of "measures having equivalent effect" to "quantitative restrictions on imports", occurring in Article 30 of the EEC Treaty, is to
OPINION OF MR CAPOTORTI — CASE 788/79
be understood as meaning that a prohibition imposed by a Member State on importing or marketing vinegar containing acetic acid not derived from the acetic fermentation of wine, and in particular apple vinegar, comes within that provision where the product involved is vinegar lawfully produced and marketed in another Member State.
Touffait ' Pescatore Due
Delivered in open court in Luxembourg on 26 June 1980.
A. Van Houtte A. Touffait Registrar President of the Second Chamber
OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED ON 29 MAY 1980 1
Mr President, Herbert Gilli and Paul Andres are Members of the Court, traders (a wholesaler and retailer respectively) in foodstuffs in the province of Bolzano and have been charged with 1. This Court has had many occasions a contravention of Articles 51 and 94 of upon which to interpret the concept of Decree No 162 of the President of the "measures having an effect equivalent to Italian Republic of 12 February 1965, the quantitative restrictions" (on exports or former for marketing and holding for imports) contained in Articles 30 and 34 sale a quantity of apple vinegar and the of the EEC Treaty. The present dispute latter for also holding for sale the same will allow that case-law to be expanded product. Criminal proceedings were and will go towards defining in greater accordingly commenced before the detail the meaning of Article 30 and its Pretore [magistrate], Bolzano, and in the field of application. context of those proceedings the Pretore, by order of 26 October 1979, requested this Court to deliver a preliminary ruling I would briefly summarize the facts. on the following question: I — Translated from the Italian.