C-130/80

T H E COURT (Second Chamber)

composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges,

Advocate General: F. Capotorti Registrar: J. A. Pompe, Deputy Registrar

gives the following

KELDERMAN

JUDGMENT

The facts of the case, the course of the not meet the requirements imposed in procedure and the observations sub- the Netherlands. mitted under Article 20 of the Protocol on the Statute of the Court of Justice of In those circumstances a summons was the EEC may be summarized as follows: served on that company to appear in criminal proceedings before the Econo- mische Politierechter of the Arrondisse- mentsrechtbank, Amsterdam. Before that I — Facts and procedure court the accused admitted the charge made against it but claimed that "the offence is not punishable since Article 10 of the Broodbesluit has no binding Fabriek voor Hoogwaardige Voedings- force" on the ground that it is contrary produkten Kelderman BV, a company to Article 30 of the EEC Treaty. having its place of business at Naarden (Netherlands) and specializing in the importation of bread, imports from Consequently the court making the France amongst other things "brioches" reference stayed the proceedings and which it markets in the Netherlands referred the following question to the under the name of "eierbrood" [bread Court of Justice for a preliminary ruling: made with eggs]. That "bread" has a minimum weight of 400 grammes of "Must the concept of 'measures having which about 300 grammes is dry matter). an effect equivalent to quantitative restrictions on imports' in Article 30 of the EEC Treaty be interpreted as The Netherlands rules are very strict as extending to the requirement laid down to the dry-matter content of bread. Thus in Article 10 of the Broodbesluit [Bread pursuant to Articles 14 and 15 of the Law of 19 September 1919 (Staatsblad Order] (Warenwet [Law on Goods]) that 793) called the Warenwet [Law on the quantity of dry matter in a loaf must Goods], laying down requirements as to fall within certain limits, with the result the quality and the description of goods, that traditional products from other the Order of 21 December 1925 Member States, the dry-matter content (Staatsblad 478) called the Broodbesluit of which exceeds the limits laid down, [Bread Order] stipulates in Article 10 may not be marketed in the that the quantity of dry-matter content Netherlands?" of bread must fall within very precise limits. The order making the reference was registered at the Court on 29 May 1980. In accordance with Article 20 of the The effect of that provision is that a Protocol on the Statute of the Court of weight of about 300 grammes of dry Justice of the EEC written observations matter does not come within any of the were lodged on 22 July 1980 by the limits laid down so that the bread made Commission, represented for that with eggs imported by Kelderman does purpose by Rolf Wägenbaur and Auke

B — Observations of the Government of the Federal Republic of Germany II — O b s e r v a t i o n s l o d g e d p u r - s u a n t to A r t i c l e 20 of the S t a t u t e of the C o u r t of Justice The Government of the Federal Republic of Germany first reminds the Court as a preliminary point that the procedure A — Observations of the Government of under Article 177 of the EEC Treaty the Netherlands empowers the Court of Justice to rule on questions concerning the interpretation and validity of Community law but not The Netherlands Government confines on the validity of provisions of national itself to presenting clarifications to the law; it then concludes that whether the Court on the Broodbesluit. It states that provisions of the Treaty on the free the aim of that order was to lay down movement of goods permit national rules certain requirements in regard to the of the type contained in the Netherlands composition and the description of bread order in question has in this case to be in the interests of public health and fair determined "in the abstract". trading. With those objectives in mind the Netherlands Government wished to : The Government of the Federal Republic " 1 . Introduce a clear delimitation for the of Germany takes the view that such consumer between the various rules are justified under the first sentence weights of bread, of Article 36 of the Treaty provided that they are necessary to protect the con- sumer against deception. But admittedly 2. Make sure that the population such protection of the consumer against received sufficient nutritive matter". deception is not a principle which is expressly set forth in Article 36. But the Federal Government submits that such Since bread represents a substantial protection is a necessary part of the proportion of available foods it is public policy referred to in Article 36

Using examples drawn from both “Rules of national law which lay down a German and Community regulations the specific composition or particular charac- Federal Government demonstrates how a teristics for food products and which bar prohibition on sale may be absolutely the sale of food products not meeting necessary if the justified expectations of those requirements are compatible with the consumer cannot be adequately the provisions of the Treaty on the free protected by less stringent measures. On movement of goods in so far as those the other hand provisions as to the rules are necessary in the circumstances description of products may be sufficient of each case to secure reasonable to prevent the consumer from being protection of the consumer against misled if such provisions are based on deception”. “the fact that consumers have a clear idea of what they may expect from given descriptions”, while marking is sufficient if it enables the consumer to get an idea, “mainly from the relevant details on the C — Observations of the Commission packaging, of the composition and the nature of the food product and to identify and to assess without difficulty The Commission first points out that the any deviations from the usual charac- “Minutes of the Hearing” sent by the teristics.” court making the reference do not contain any information as to the facts. Then, having examined the relevant In conclusion of that line of argument provisions of national law, it goes on to the Federal Government submits that, in state that there does not exist at the the absence of any rules in Community Community level any measure or even law, the provisions which a Member any proposal for a measure for State wishes to introduce in the area in harmonizing the laws of the Member question must be framed on the basis of States on bread as the only proposal for

a directive submitted by the Commission Kelderman only at a later stage, that to the Council in January 1973 has never is to say, after the product had been been discussed in the Council. manufactured and marketed in France in accordance with the legal provisions of that country"; Like the Federal Government of Germany the Commission believes that it is not possible to give an answer to the (c) Finally, the prohibition on the sale of question as framed by the court making "brioche" in the Netherlands might the reference; however, the interpret- derive solely from the fact that its ation of Community law does make it dry-matter content does not fall possible to furnish the national court within the relevant weight limits with information which would assist that contained in the Broodbesluit court to decide the case before it. (Article 10). The Commission is of the opinion that the "object of the provisions" contained in Article 10 is Having too little information on the facts not perfectly clear and that there are of the instant case, the Commission two possible interpretations : considers that it cannot get an exact idea of the nature of the provisions of the Broodbesluit and that it is therefore "not 1. Article 10 has effect only where a at all certain whether the issue is the specific product is sold as bread; total prohibition of the sale of the accordingly "the impossibility of 'brioche' in question or the prohibition selling 'brioche' in the Nether- of its sale under a description in which lands is attributable to the fact the word 'bread' appears". that it is offered for sale under the name of 'eierbrood'." However, that prohibition might then be According to the Commission there easily evaded by an importer by could be three possible reasons for the selling "brioche" under another prohibition on the sale of "brioche" : name. If that interpretation is correct the Broodbesluit constitutes a measure having an (a) First, "brioche" might not meet the effect equivalent to a quantitative Netherlands requirements as to its restriction on imports since "it composition; but the Commission prohibits the marketing in the itself believes that it appears clear Netherlands of bread or of a from the notes of the pleadings of similar product produced in Kelderman's Counsel that it is not another Member State in the composition of "brioche" which accordance with the requirements has caused problems; in force in that State and marketed under a specific (b) The description "eierbrood" [bread description whilst that description made with eggs] might also be has to be viewed in the contrary to the provisions of the Netherlands as sufficiently clear Netherlands Broodbesluit but there and precise to describe that again the Commission takes the view product"; that such a description "does not seem to be contrary to it" adding 2. Another construction of the. that "if that were the case there Broodbesluit might be based on would be no incompatibility with the text of Article 3 thereof which Article 30 provided that such evinces that the Broodbesluit description had been used by applies to all kinds of bread and

to products similar to bread which In conclusion the Commission proposes may be substituted for it. that the question referred to the Court Consequently the "brioche" in should be answered as follows: question may be marketed only "The expression 'measures having an when the provisions of the Brood- effect equivalent to quantitative besluit and particularly those restrictions on imports' used in Article 30 contained in Article 10 thereof are of the Treaty must be understood as observed. In that case the meaning that the prohibition set forth in marketing in the Netherlands of that article also covers a condition laid products manufactured and down by regulation of a Member State marketed in any given Member requiring that the quantity of dry matter State in accordance with the in bread must fall within specific limits in requirements in force in that State cases where bread has been lawfully would be made impossible and produced and marketed in another Article 10 of that order would Member State". have to be treated as a measure having an effect equivalent to a quantitative restriction on imports prohibited by Article 30 of the EEC Treaty. Nevertheless it is necessary to examine whether that provision might be justified on the ground of Article 36 of the Treaty. Admittedly the Brood- besluit was enacted in the interests of public health and fair trading Ill — Oral procedure but the Commission believes that the order does not constitute an indispensable safeguard in the Kelderman BV, the accused in the main pursuit of those two objectives. proceedings, represented by Mr van First of all as regards trie safe- Ewijk, the Government of the Nether- guarding of public health "Article lands, represented by Mr Bos, assisted by 10 is not concerned with the Mr De Koe, a public health inspector, composition of bread as such and the Commission, represented by Mr since the weight of dry matter is van Rijn, assisted by Mr Wagenbaur, not fixed by reference to the total submitted oral argument and answered weight of the bread". As for fair questions from the Court at the sitting trading that may be ensured by on 27 November 1980. other means entailing fewer obstacles to trade between the Member States: "there would be need in particular to consider providing buyers with the necessary information, for example, in the form of labelling The Advocate General delivered his requirements". opinion at the sitting on 18 December 1980.

KELDERMAN

"Must the concept of 'measures having an effect equivalent to quantitative restrictions on imports' in Article 30 of the EEC Treaty be interpreted as extending to the requirement laid down in Article 10 of the Broodbesluit [Bread Order] (Warenwet [Law on Goods]) that the quantity of dry matter in a loaf must fall within certain limits, with the result that traditional products from other Member States, the dry-matter content of which exceeds the limits laid down, may not be marketed in the Netherlands?"

5 It should be observed first of all that in the absence of common or harmonized rules on the making and marketing of bread it is for Member States to regulate all matters relating to the composition, making and marketing of that foodstuff on their own territory.

6 As the Court stated in its judgments of 20 February 1979 in Case 120/78 REWE [1979] ECR 649 and of 26 June 1980 in Case 788/79 Gilli [1980] ECR 2071, obstacles tö intra-Community trade resulting from disparities between the national laws relating to the marketing of the products in question must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy imperative requirements relating in particular to the protection of public health, fair trading and consumer protection.

7 The extension to imported products of a requirement that they contain a specific amount of dry matter may prevent bread originating in other Member States from being marketed in the State concerned. It may make it necessary to vary the method of manufacture according to the place where the bread is to be sold and thus impede the movement of bread lawfully produced in the Member State of origin if identical manufacturing standards are not prescribed in that State.

1 2 However, it must be observed in this connexion that the provision of suitable information for consumers may easily be ensured by appropriate means, such as requiring labelling showing, for example, the weight and specific composition of an imported product. That has also been stated in regard to the facts of the dispute submitted to the national court.

1 3 Finally, in its observations the Netherlands Government points to the fact that the Netherlands rules give the competent minister wide powers to grant exemptions from the requirement of satisfying the conditions imposed by the Broodbesluit.

KELDERMAN

14 On that matter it is necessary to bear in mind well-established case-law (judgment of 24 January 1978 in Case 82/77 Van Tiggele [1978] ECR 25; judgment of 16 December 1980 in Case 27/80 Fie tje [1980] ECR 3839 to the effect that a measure caught by the prohibition provided for by Article 30 of the Treaty does not escape that prohibition simply because the competent authority is empowered to grant exemptions, even if that power is freely applied to imported products. Freedom of movement is a right whose enjoyment may not be dependent upon a discretionary power or on a concession granted by the national administration.

15 It is apparent from the foregoing that the obstacle preventing the marketing in the Netherlands of bread lawfully produced and marketed in another Member State is not justified on any ground of public interest and that therefore the application of the relevant national legislation to imported bread constitutes a measure having an effect equivalent to a quantitative restriction which is prohibited by Article 30 of the Treaty.

in answer to the question submitted to it by the Economische Politierechter, Amsterdam, by judgment of 28 March 1980, hereby rules:

The concept of "measure having an effect equivalent to quantitative restrictions on imports" appearing in Article 30 of the Treaty must be understood as meaning that rules laid down by law in a Member State which require the quantity of dry matter in bread to fall within specified sets of limits are covered by that article where they apply to the impor- tation of bread lawfully produced and marketed in another Member State.

Pescatore Touffait Due

Delivered in open court in Luxembourg on 19 February 1981.

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

OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED O N 18 DECEMBER 1980 1