C-27/80

JUDGMENT OF 16. 12. 1980 — CASE 27/80

an obstacle is justified on the ground It is for the national court to make of the public interest underlying the the findings of fact necessary in order national rules. to establish whether or not there is such equivalence.

2. The extension by a Member State of a 3. A measure caught by the prohibition provision which prohibits the sale of provided for by Article 30 of the EEC certain alcoholic beverages under a Treaty does not escape this description other than that prescribed prohibition simply because the by national law to beverages imported competent authority is empowered to from other Member States, thereby grant exemptions, even if this power making it necessary to alter the label is freely applied to imported products. under which the imported beverage is On the other hand, in the case of a lawfully marketed in the exporting measure justified on grounds Member State, is to be considered a recognized by the Treaty, the Treaty measure having an effect equivalent to does not forbid in principle provision a quantitative restriction which is being made for the possibility of prohibited by Article 30 of the EEC granting derogations therefrom by Treaty and which is not justified on individual decisions left to the the ground of the public interest in discretion of the administration. consumer protection in so far as the However, exceptions must not lead to details given on the original label the favouring of domestic products supply the consumer with information because this would constitute on the nature of the product in arbitrary discrimination against or a question which is equivalent to that in disguised restriction on products the description prescribed by law. imported from other Member States.

composed of: P. Pescatore, President of the Second Chamber, acting as President, T. Koopmans (President of the First Chamber), Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco, A. Touffait and O. Due, Judges,

Advocate General: H . Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of description "likeur" prescribed by Article the procedure and the observations 1 of the "Likeurbesluit" of 11 September submitted pursuant to Article 20 of the 1953 (Staatsblad 466). Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

descriptions may be used in conjunction plainly such products, shall satisfy the with expressions specifying the taste or following conditions: the aroma." (a) the alcoholic strength shall be: Article 2 of the "Likeurbesluit" sets forth a number of exceptions to the obligation at least 2 2 % by volume at 15 °C in to use the descriptions referred to in the case of a product described as Article 1. The exception mentioned in 'likeur' ; Article 2 (a) applies to products "described with the help of a description at least 15% by volume at 15 °C in generally used under normal commercial the case of a product described as practice to describe a liqueur where 'tussenlikeur' ; those liqueurs have an alcoholic strength of at least 2 4 % by volume at 15 ° C and at least 13% and less than 15% by the Director of the Department for the volume at 15 ° C in the case of a Approval of Products, who may seek the product described as 'verloflikeur' ; opinion of special experts within the meaning of Article 8 of this decree, a percentage which is not less than considers that they are sufficiently that of the alcoholic strength marked similar, as far as concerns their aroma, on the container in the case of a taste and consistency, to products product described as 'likorette' ; described in that way under normal commercial practice". at least 2 8 % and less than 3 0 % at 15 °C in the case of a product Article 2 (b) and (c) mentions other described as 'inmaakbrandewijn'; exceptions to the rule contained in Article 1. Briefly, they comprise a list of (b) the sugar content shall be at least 10 beverages having an alcoholic strength of grams per 100 millilitres; the sugar at least 2 0 % by volume at 15 ° C which content shall be represented by the are described by designations involving total amount of saccharose and the name of a fruit followed by the word invert sugar reduced to saccharose "brandewijn" [potable spirits] or present in that quantity of the "jenever" [geneva] (as well as certain product." typical Netherlands names such as "fladderak" and "voorburg"), and a list of beverages having an alcoholic strength As far as this case is concerned it should of 13% to 15% by volume which are also be mentioned that Article 6(1) of also described by approximately the same the "Likeurbesluit" provides that: designations as the beverages on the first list but to which is added the prefix "verlof-" [licence]. Lastly, a final "Any product referred to in this decree exception relates to "inmaakbrandewijn" which is contained in a receptacle [spirits for preserving]. intended or suitable for delivery with its contents to the consumer shall have marked on the receptacle the description Article 3 (1) of the "Likeurbesluit" prescribed for the product by this decree provides that: or the particulars referred to in Article 5. Those particulars are subject to the "Any product described in accordance application of Article 9 ter (1), (3) and with Article 1 (1) or as 'inmaak- (5) of the Algemeen Besluit (Warenwet) brandewijn', or products which are [General Decree (Law on Goods)]".

3. The "Likeurbesluit" was promul- tation of goods of a specific or gated on the basis of Articles 14 and 15 general description or other articles of the "Nederlandse Warenwet" intended for trade may, by means [Netherlands Law on Goods] of 28 of general administrative regu- December 1935 (Staatsblad 793), which lations : read as follows: (a) be prohibited; Article 14 (b) be prohibited in so far as importation takes place other- "(1) In order to protect public health wise than in accordance with and to further fair trading, general the conditions prescribed in the administrative regulations may regulations; prescribe descriptions which, in trade in goods and other articles (c) be prohibited in so far as intended for trade or for putting importation takes place other- into circulation, wise than through such first offices as may be jointly (a) may be used only if the goods designated by the Minister for or articles are of a kind or Social Affairs and Public composition provided for in the Health and the ministers regulation (...) concerned in the matter in consultation with the Minister (b) may not be used if the goods or of Finance." articles are of a kind or composition provided for in the (...) regulation (...) (c) shall be used if the goods or 4. There is at present no secondary articles are of a kind or Community legislation relating to the composition provided for in the alcoholic beverages in question since the regulation (...) regulation on which such legislation might be based, namely the Com- (...) mission's proposal relating to a common organization of the market in alcohol, (4) The Minister for Social Affairs and has not yet been accepted by the Public Health and the ministers Council. This proposal and the concerned in the matter may by amendments thereto were published in common accord grant exemptions the Journal Officiel 1972, C 43, p. 1; from the rules laid down in Official Journal 1976, C 309, p. 2 and paragraph (1); such exemptions Official Journal 1979, C 193, p. 5. may be granted subject to conditions. Any decision adopted Similarly, the period given to Member under the preceding sentence shall States to implement Council Directive be published in the Staatscourant 79/112/EEC of 18 December 1978 on [Official Gazette]". the approximation of the laws of the Member States relating to the labelling, (...) presentation and advertising of Article 15 foodstuffs for sale to the ultimate consumer (Official Journal 1979, L 33, "(1) For the purpose of safeguarding p. 1) has not yet expired. Article 6 (3) of public health, the importation of that directive provides that: goods of a specific or general description and, for the purpose of "In the case of beverages containing furthering fair trading, the impor- more than 1.2% by volume of alcohol,

"Does the concept 'measures having an effect equivalent to quantitative re- /. Observations of Mr Fietje, the accused strictions on imports' in Article 30 of the in the main proceedings EEC .Treaty cover the provisions of Article 1 of the Netherlands Likeur- Mr Fietje states that as a result of the besluit [Decree on Liqueurs] governing "Likeurbesluit" the sale in the Neth- the obligation to use the word 'likeur' erlands of the beverage which he imports for beverages defined therein, as a result requires the alteration of the original of which products from other Member labels and this increases costs since States which have the characteristics German legislation does not make it defined in Article 1 of the Likeurbesluit, compulsory to use the word "Likör". but in respect of which there is no From this he concludes that the obligation to use the description 'likeur' "Likeurbesluit" forms an obstacle to the in those Member States, must be labelled free movement of the beverage in differently for importation into the question. Netherlands?"

measure having an effect equivalent to a Zentral AG v Bundesmonopolverwaltung quantitative restriction within the für Branntwein [1979] ECR 649: meaning of Article 30 of the Treaty, as defined by the Court in its case-law, for " I n the absence of common rules relating example in its judgment of 15 December to the production and marketing of 1976 in Case 41/76 Suzanne CrieĻ née alcohol — a proposal for a regulation Donckerwolcke, and Henri Sebou v submitted to the Council by the Procureur de L· République au Tribunal de Commission on 7 December 1976 Grande Instance, Lille, and Director- (Official Journal, C 309, p. 2) not yet General of Customs [1976] ECR 1921, having received the Council's approval since a beverage which has been lawfully — it is for the Member States to regulate placed on the market of one Member all matters relating to the production and State may, in the circumstances of this marketing of alcohol and alcoholic case, only be sold in another Member beverages on their own territory. State after the label has been altered. Obstacles to movement within the According to M r Fietje, not only has the Community resulting from disparities applicability of Article 30 of the Treaty, between the national laws relating to the even in those fields in which national marketing of the products in question laws have not yet been harmonized as must be accepted in so far as those provided for in Article 100, been provisions may be recognized as being confirmed by the Court, for example in necessary in order to satisfy mandatory Case 41/76 Donckerwolcke, cited above, requirements relating in particular to the but that applicability also appears clearly effectiveness of fiscal supervision, the from Commission Directive 70/50/EEC protection of public health, the fairness of 22 December 1969 based on the of commercial transactions and the provisions of Article 33 (7), on the defence of the consumer". abolition of measures which have an effect equivalent to quantitative In this connexion M r Fietje stresses that restrictions on imports and are not the effectiveness of fiscal supervision is covered by other provisions adopted in not relevant in this case.

In this measures on the free movement of goods connexion he points out that the label on exceeds that which is sought in the the product in question expressly states context of trade rules. the composition of the beverage at issue: "aus Apfel mit Weizenkorn" [made from apples and spirit distilled from wheat], Mr Fietje then submits that Article 1 of "reiche Fruchtfülle sonnenpraller Äpfel the "Likeurbesluit" does not satisfy the und milder, gereifter Weizenkorn" [the tests formulated by the Court in full richness of the fruit of sun-ripened paragraph 8 of its judgment of 20 apples and soft, matured spirit distilled February 1979 in Case 120/78 Rewe- from wheat] and "25 vol.%" [ 2 5 % by

O n the other hand, under a system in which the law gives a definition of the 2. Observations of the Netherlands term "likeur" without making its use Government mandatory, a prohibition on the use of the word "likeur" in the case of a beverage which does not come within the definition is justified. The Netherlands Government observes first that the question referred to the Court for a preliminary ruling is Mr Fietje adds that if account is also incomplete. In its view, Article 1 of the taken of the breadth of the range of "Likeurbesluit" must be considered in alcoholic beverages offered for sale in conjunction with Article 2 thereof, which the Netherlands it is impossible to say provides exceptions to the obligation to that it is absolutely essential to use the use certain descriptions. Consequently, it word "likeur" in order to further fair submits that the Court should reframe trading. the question as follows:

M r Fietje therefore concludes that a product which has been lawfully "Does the concept of 'measures having marketed in Germany must be able to be an effect equivalent to quantitative sold freely in other Member States and restrictions on imports', which is found that the consumer must be able to find in Article 30 of the Treaty, apply to the the same label and therefore the same provisions contained in the 'Nederlandse particulars wherever the product is Likeurbesluit (Warenwet)' regulating the offered for sale. Otherwise the consumer obligation to apply to the beverages might wonder whether the product in therein defined a description to which question is the same in those other Netherlands authorities have given countries. statutory or administrative approval so

that the products from other Member Similarly, it considers that labelling States which have the particular features foodstuffs in Dutch is justified. This defined in Article 1 (1) of the opinion is corroborated by the first 'likeurbesluit', but as regards which there sentence of Article 14 (2) of Council is no obligation in these Member States Directive 79/112/EEC of 18 December to use that description, must be 1978, by Article 7(3) of Council differently labelled for the purpose of Directive 73/241/EEC on the approxi- importation into the Netherlands?" mation of the laws of the Member States relating to cocoa and chocolate products intended for human consumption (Official Journal 1973, L 228, p. 23), and The Netherlands Government concedes also by several other similar directives that a labelling rule such as the one in relating to foodstuffs, some of which are this case indirectly impedes the impor- covered by common organizations of the tation of beverages which bear a market. different label, but it submits that the case-law of the Court, for example paragraphs 6 and 7 of the judgment of the Court of 11 July 1974 in Case 8/74 If such a requirement may be prescribed Procureur du Roi v Benoît and Gustave by Member States in respect of products Dassonville [1974] ECR 852, is to the for which there is a common organ- effect that so long as a Community ization of the market, a fortiori it may be system has not been set up in this field prescribed in respect of products for Community law does not preclude which there is no such organization. national measures provided that they are justified and reasonable in their results. Moreover, the Netherlands Government The Netherlands Government also refers points out that the "Likeurbesluit" to Article 4 (2) of the above-mentioned applies to national as well as imported Directive 79/112/EEC which states that products. Community provisions applicable to specified foodstufs may provide that other particulars in addition to those listed in the directive must appear on the The Netherlands Government takes the labelling and that, where there are no view that the potential obstacles to trade Community provisions, Member States which might result from the "Likeur- may make provision for such particulars. besluit" are justified by the principle of In its opinion this principle must apply consumer protection, that is to say, by especially as the period given to the the concern to give the consumer infor- Member States to implement the mation and to protect him from fraud directive has not yet expired. and also to further the transparency of the market. It goes on to say that, in contrast to the position in Case 120/78 Rewe, cited It also maintains that the fact that an above, the "Likeurbesluit" does not alcoholic beverage bears an approved prevent a product originating in another description constitutes a guarantee to the Member State from being offered for consumer that it meets certain sale in the Netherlands but only requirements concerning the composition contributes to ensuring the transparency or the nature of the ingredients and it of the market. On this point the enables the authorities to take action Netherlands Government refers to should those requirements not be met. Article 5(1) of Directive 79/112/EEC

which provides that the name under rather than with a view to consumer which a foodstuff is sold shall be the protection. Under that former system name laid down by whatever laws, regu- different kinds of licences, namely A and lations or administrative provisions apply B licences, were granted to bars and to the foodstuff in question or, in the restaurants for the sale of beverages absence of any such name, the name described as being of "low" or "high" customary in the Member State where alcoholic strength respectively. • The the product is sold to the ultimate dividing line between these categories lay consumer, or a description of the at the level of 15% by volume at 15 °C. foodstuff that is sufficiently precise to inform the purchaser of its true nature and to enable it to be distinguished from The Commission goes on to say that products with which it might be according to the information which it confused. has gathered the categories of "verlof- likeur" and "likorette" were specially created for bars holding an A licence.

It adds that it "Likeurbesluit". The Netherlands has been unable to obtain any satis- Government concludes that, so far as factory explanation of the difference trade is concerned, the system between the 2 2 % minimum alcoholic introduced by the "Likeurbesluit" does strength referred to in Article 3 and the not therefore produce any arbitrary 24% and the 2 0 % minimum alcoholic discrimination or disguised obstacles strengths laid down in Article 2 for within the meaning which the Court has certain exceptions. given to these concepts, and it consequently submits that the Court should answer in the negative the The Commission's observations con- question referred to it by the national cerning the possible reframing of the court. question referred to the Court for a pre- liminary ruling are substantially the same as those submitted by the Netherlands Government on this point in so far as the

FIETJE

Accordingly it is also not products and that the use of such a possible to regard the mandatory use of description may not be prescribed unless the word "likeur" as an effective its meaning is sufficiently clear to the guarantee protecting the individual. consumer so as to justify its mandatory use. As far as concerns the legal context in which the obligation to use the word The Commission takes the view that the "likeur" arises, the Commission points word "likeur" does not necessarily apply out that to the consumer the words to a product which contains 2 2 % alcohol "tussenlikeur", "verloflikeur" and by volume at 15 °C or which has some "likorette" are even less clear and that minimum alcoholic strength or other. In none of them is found in the two Dutch this context it refers to several Dutch, dictionaries consulted.

volume. The Commission also takes the view that The Commission acknowledges that in the exception provided for in Article order to define certain concepts it is 2 (a) of the "Likeurbesluit" in fact sometimes not possible to avoid laying discriminates against relatively new down fairly strict limits which, for that products and products coming from reason, will always be somewhat other Member States which are arbitrary. It also acknowledges that the comparatively little known on the market national legislature is free to act in that in the Netherlands. Similarly there does way without coming into conflict in that not seem to it to be any rational expla- respect with Article 30 of the Treaty. nation of the fact that the exception only However, the Commission considers that applies to products with an alcoholic where it may be doubted whether the strength exceeding 24% by volume.

JUDGMENT OF 16. 12. 1980 — CASE 27/80

name and certain products of which the Consequently the Commission submits minimum alcoholic strength is fixed at that the Court should answer the 20%. question referred to it for a preliminary ruling as follows:

The fact that the provisions of the "A provision of national law which "Likeurbesluit" in question are not stipulates that the word 'likeur' must be justified from the point of view of placed on the container of certain consumer protection means, in the spirituous beverages which are defined opinion of the Commission, that they are on the basis of alcoholic strength but not justified from the point of view of without the actual alcoholic strength public health either: they do not give the having to be mentioned is a measure consumer sufficient information on the having an effect equivalent to a alcoholic strength. quantitative restriction on imports within the meaning of Article 30 which is prohibited where such a description does Similarly the Commission thinks that the not give the consumer sufficiently clear provisions at issue cannot be justified information". either by the need to avoid unfair competition because, where a name is at issue, this ground of justifcation follows the same fate as that based on consumer Ill — Oral procedure protection.

At the sitting on 1 July 1980 the Finally it notes that the provisions at Netherlands Government, represented by issue appear to be particularly unjustified Maas Geesteranus, acting as Agent, Mr in the light of the facts of this case, since Fietje, represented by Ch. Gielen of the the goods in question already bore the Amsterdam Bar, and the Commission, legend "Berentzen Appel — Aus Apfel represented by P. Kuyper, a member of mit Weizenkorn 25 vol.%", which were its Legal Department, presented oral sufficient to inform the consumer in the argument. Netherlands of the alcoholic strength and the fact that the product was made from apples and must therefore have the The Advocate General delivered his taste of apples. opinion on 30 September 1980.

4 Article 1 (1) of the "Likeurbesluit" of 11 September 1953 (Staatsblad 466) is at present worded as follows :

"Where it satisfies the provisions of Article 3, any product which has as its characteristic ingredients ethyl alcohol, sugar, aromatic substances and/or fruit juice may and must be described by one of the following words: 'likeur', 'tussenlikeur', 'verloflikeur' (it being permissible, where appropriate, to spell the word 'likeur' as 'liqueur'), or 'likorette', and the last description must be immediately followed by a statement of the percentage by volume of the alcoholic strength at 15 °C. These descriptions may be used in conjunction with expressions specifying the taste or the aroma."

Article 3 of the "Likeurbesluit" provides that every product described in accordance with Article 1 (1) must have a certain minimum sugar content. It also provides that a product described as "likeur" must have an alcoholic strength of at least 2 2 % by volume and it lays down different and lower alcoholic strengths for the other products which it mentions. In addition Article 3 contains various other provisions on the composition and quality of

JUDGMENT OF 16. 12. 1980 — CASE 27/80

the products. According to Article 6, the name specified for the product must appear on any receptacle which is intended or suitable for delivery with the product to the consumer.

5 Article 2 of the "Likeurbesluit" sets forth a number of exceptions to the obligation to use the descriptions referred to in Article 1. One of these exceptions relates to products "described with the help of a description generally used under normal commercial practice to describe a liqueur", provided that those liqueurs have an alcoholic strength of not less than 24% by volume and the director of the appropriate government department has given his approval. Other exceptions apply to the beverages which are listed in the article and described by names which for the most part are typically Dutch. Finally, Article 14 (4) of the "Warenwet" empowers the appropriate ministers to grant exemptions from inter alia the rules of the "Likeurbesluit".

9 In order to answer this question it is necessary to consider whether the extension of the national rules is capable of impeding the free movement of goods between Member States and, if so, to what extent such an obstacle is justified on the ground of the public interest underlying the national rules.

io Although the extension to imported products of an obligation to use a certain name on the label does not wholly preclude the importation into the Member State concerned of products originating in other Member States or in free circulation in those States it may none the less make their marketing more difficult, especially in the case of parallel imports. As the Netherlands Government itself admits in its observations, such an extension of that obligation is thus capable of impeding, at least indirectly, trade between Member States. It is therefore necessary to consider whether it may be justified on the ground of the public interest in consumer protection, which, according to the observations of the Netherlands Government and according to the "Warenwet", underlies the rules in question.

ii If national rules relating to a given product include the obligation to use a description that is sufficiently precise to inform the purchaser of the nature

JUDGMENT OF 16. 12. 1980 — CASE 27/80

of the product and to enable it to be distinguished from products with it might be confused, it may well be necessary, in order to give consumers effective protection, to extend this obligation to imported products also, even in such a way as to make necessary the alteration of the original labels of some of these products. At the level of Community legislation, this possibility is recognized in several directives on the approximation of the laws of the Member States relating to certain foodstuffs as well as by Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (Official Journal 1979, L 33, p. 1).

FIETJE

empowered to grant exemptions, even if this power is freely applied to imported products. On the other hand, in the case of a measure justified on grounds recognized by the Treaty, the Treaty does not forbid in principle provision being made for the possibility of granting derogations therefrom by individual decisions left to the discretion of the administration. However, exceptions must not lead to the favouring of domestic products because this would constitute arbitrary discrimination against or a disguised restriction on products imported from other Member States. Subject to that reservation, it does not appear that the exemptions provided for by the Netherlands rules provide any new factors in relation to the question put by the national court.

is The answer to the question referred to the Court for a preliminary ruling should therefore be that the extension by a Member State of a provision which prohibits the sale of certain alcoholic beverages under a description other than that prescribed by national law to beverages imported from other Member States, thereby making it necessary to alter the label under which the imported beverage is lawfully marketed in the exporting Member State, is to be considered a measure having an effect equivalent to a quantitative restriction, which is prohibited by Article 30 of the Treaty, in so far as the details given on the original label supply the consumer with information on the nature of the product in question which is equivalent to that in the description prescribed by law. It is for the national court to make the findings of fact necessary in order to establish whether or not there is such equivalence.

1. The extension by a Member State of a provision which prohibits the sale of certain alcoholic beverages under a description other than that prescribed by national law to beverages imported from other Member States, thereby making it necessary to alter the label under which the imported beverage is lawfully marketed in the exporting Member State, is to be considered a measure having an effect equivalent to a quantitave restriction, which is prohibited by Article 30 of the Treaty, in so far as the details given on the original label supply the consumer with information on the nature of the product in question which is equivalent to that in the description prescribed by law.

2. It is for the national court to make the findings of fact necessary in order to establish whether or not there is such equivalence.

Pescatore Koopmans Mackenzie Stuart

O'Keeffe Bosco Touffait Due

Delivered in open court in Luxembourg on 16 December 1980.

A. Van Houtte P. Pescatore Registrar President of the Second Chamber, acting as President