C-59/82

WEINVERTRIEBS- GMBH

on the interpretation of Article 30 et seq, of the EEC Treaty,

THE COURT

composed of: P. Pescatore, President of the Second Chamber, acting as President, A. O'Keeffe and U. Everling (Presidents of Chambers), Lord Mackenzie Stuart, G. Bosco, T. Koopmans, O. Due, K. Bahlmann and Y, Galmot, Judges,

Advocate General : G. F. Mancini Registrar: P. Heim

gives the following

I — Facts and written procedure The Seventh Commercial Chamber of the Landgericht München I considered it relevant to know whether such a 1. The plaintiff in the main action prohibition was or was not contrary to applied to the Landgericht München I Article 30 of the Treaty and therefore for an injunction restraining the referred the following two questions to defendant in the main action from the Court for a preliminary ruling: marketing in the territory of the Federal Republic of Germany vermouth imported from Italy on the ground that its " 1 . Is the interpretation of a statutory alcoholic content was less than 16 % by provision in Member State A, volume. whereby vermouth produced in Member State B is not marketable in Member State A because it has slightly less than the minimum According to Italian law (Article 7 of alcoholic content prescribed by law Decree-Law No 3 of 11 January 1956, in Member State B, compatible with transformed into Law No 108 of 16 Article 30 et seq. of the EEC Treaty March 1956) the alcoholic content of even though no minimum content vermouth marketed in Italy must be at for domestic vermouth is prescribed least 16 % by volume. Nevertheless, in Member State A and accordingly Article 20 of the said Law allows the had the vermouth been produced in Italian authorities to permit by way of Member State A it would have been exception the production of vermouth freely marketable there? with an alcoholic content of less than 16 % by volume provided it is intended for export and the law of the country of destination is observed. If Question 1 is answered in the affir­ mative :

provisions of Member State B on very ordinary dispute" on the provisions minimum alcoholic content if the of German municipal law. Further, vermouth is produced for export to German consumers, and in particular Member State A?" those who each year visit Italy, expect Italian vermouth marketed in the Federal Republic of Germany to be identical with Italian vermouth marketed in Italy. It is The order making the reference was irrelevant that German vermouth may lodged at the Court Registry on 11 have a lower alcoholic content than February 1982. that of the Italian vermouth because "German vermouth is simply a different In accordance with· Article 20 of the product from Italian vermouth". Protocol on the Statute of the Court of Justice of the EEC written observations The defendant in the main action first of were lodged by the plaintiff in the main all observes that the wording of the action, represented by Dr Gerstenberg, questions referred to the Court may be Rechtsanwalt, Munich, by the defendant understood as meaning that the court in the main action, represented by R. making the reference is asking the Court Klaka, by the Government of the Italian of Justice to rule on the lawfulness of a Republic, represented by Mr Conti, German national provision and its Avvocato dello Stato, by the Government compatibility with Article 30 et seq. of of the French Republic, represented by the EEC Treaty and must therefore be Mr Prevel, Secretary General of the regarded as inadmissible. Nevertheless Comité Interministériel pour les the court making the reference is Questions de Coopération Economique concerned with obtaining an interpret­ Européenne, acting as Agent, and by ation of the prohibition of measures the Commission of the European having an effect equivalent to Communities, represented by its Legal quantitative restrictions and an interpret­ Adviser, Mr Wägenbaur, acting as ation of the general principle of non­ Agent. discrimination. Consequently the questions are admissible especially as the Court of Justice is always entitled to Upon hearing the report of the Judge- reformulate the questions put. Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any As regards the first question the preparatory inquiry. defendant in the main action refers to the facts and to the German legislative provisions applicable to the case and expresses the view that according to the established case-law of the Court of II — Observations pursuant to Justice in relation to Article 30 the Article 20 of the Protocol importing State is bound not to impose on the Statute of the Court other or more extensive conditions on of Justice of the EEC imported products than those applied to domestic products. To treat imported products differently from domestic The plaintiff in the main action is of the products, which is the effect of the opinion that there is no room in the German Law, constitutes a measure present case for the application of Article having an equivalent effect within the 30 of the EEC Treaty since the meaning of Article 30 of the EEC proceedings in its view represent only "a Treaty.

According to the defendant in the main "There is a measure having an equivalent action that measure can in no way be effect within the meaning of Article 30 justified under the first sentence of of the EEC Treaty which cannot be Article 36. In its view the quality of the justified under the first sentence of imported Italian vermouth is not Article 36 of the EEC Treaty where challenged by the plaintiff in the main vermouth produced in Italy for the action. It is thus inexplicable for it not to purposes of exportation cannot be be possible to import Italian vermouth marketed in the Federal Republic of with an alcoholic content slightly less Germany because of national provisions than 16 % by volume into the Federal of the German legislation relating to Republic of Germany when the alcoholic wine whereas comparable vermouth of content of German vermouth in no case German origin may be marketed in the exceeds 14 % by volume. In addition the Federal Republic of Germany." defendant observes that vermouth is not drunk because of its alcoholic content but because of its special taste or its Italian origin and the defendant is of the In view of the answer to the first opinion that the aim of the plaintiff in question the defendant in the main the main action is not primarily to action considers that the second question protect the German consumer so much does not call for an answer. as the interests of the German producers of vermouth.

between Member States. Therefore even to the differences still existing between the protection of public health cannot be the national rules in the food products invoked, as is apparent from the case-law sector within the Community. Moreover of the Court and in particular the in the judgment of 5 February 1981 in judgment of 10 July 1980 in Case Case 53/80 Kaasfabriek [1981] ECR 409 152/78 Commission vFrance [1980] ECR the Court did not consider that a similar

JUDGMENT OF 20. 4. 1983 — CASE 59/82

It domestic producers by keeping products also emphasizes that according to the originating from a given State (Italy) off case-law of the Court and Commission the market or making them less Directive 70 / 50 / EEC of 22 December competitive by subjecting them to more 1969 (Official Journal, English Special onerous marketing conditions. In Edition 1970 (I), p. 17) the discrimi consequence the measure is incompatible nation arising from the contested with Article 30 et seq. of the EEC German rules cannot in any event fail to

SCHUTZVERBAND GEGEN UNWESEN I. D. WIRTSCHAFT v WEINVERTRIEBS-GMDH

valid in themselves and, where they the concept of quantitative restriction apply, all products, whatever their origin, and its discriminatory effect. should be treated in the same way. In the view of the Italian Government, at the present stage of development of The French Government too proposes Community law the introduction of a that an answer in the negative should be "kind of principle of country of origin" given to the first question. It states that must be ruled out since it would be the Court, especially in the judgment of contrary to Article 30 of the EEC 13 March 1979 in Case 119/78 {Peureux Treaty. [1979] ECR 975) has laid down the principle that national laws must apply uniformly and without discrimination both to products manufactured within Finally, the Italian Government adds that the national territory and to those according to Italian law the production imported from other Member States. of vermouth for export with an alcoholic content less than 16 % by volume is In the present case it is not denied that perfectly legitimate when it is authorized the imported vermouth conforms to and checked. Consequently the national German law. The German authorities measure in question cannot be justified cannot therefore require that the product by the need to prohibit the marketing of conforms to the law of the Member State products made unlawfully. where it was produced before its sale may be authorized in the Federal Republic of Germany. On those grounds the Italian Government considers that: In consequence the French Government proposes that the Court

The Commission also informs the Court constitutes discrimination against the that following a complaint from a imported product." German trade association its attention has recently been drawn to the anomalies In view of that answer to the first resulting from the position in question question the second question, in the and that after considering the legal Commission's view, does not call for an position it has decided to take answer. proceedings against the Federal Republic of Germany as provided for in Article 169 of the EEC Treaty. The German Ill — Oral procedure Government has already received a letter giving formal notice thereof. At the sitting on 10 February 1983 the plaintiff in the main action, represented In those circumstances the Commission by Dr Gerstenberg, Rechtsanwalt, the proposes that the first question from the defendant in the main action, Landgericht München I should be represented by Dr Nieder and Mr answered as follows: Gaedertz, Rechtsanwälte, the French Government, represented by Mr " The concept of measures having an Carnelutti, acting as Agent, the Italian effect equivalent to quantitiative Government, represented by Mr Conti, restrictions referred to in Article 30 of acting as Agent, and the Commission of the EEC Treaty must be interpreted as the European Communities, represented including a provision which, by applying by its Legal Adviser, Mr Wägenbaur, the rules governing production in acting as Agent, presented oral argument another Member State and thus and answered questions put by the preventing the importation of vermouth Court. originating in that other Member State even though no such rule governs The Advocate General delivered his production in the importing State, opinion at the sitting on 10 March 1983.

"Wine-based beverages produced abroad (foreign wine-based beverages) may be imported only if the whole production has taken place in one and the same State according to the provisions applicable there and the product may be marketed there for the purpose of being consumed in an unaltered state;

s Since that provision results in a ban on the importation into the Federal Republic of Germany of Italian vermouth the alcoholic content of which is less than 16 %, the national court considered it necessary to know whether such a ban constituted a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the EEC Treaty. It therefore stayed the proceedings and referred the following questions to the Court:

" 1 . Is the interpretation of a statutory provision in Member State A, whereby vermouth produced in Member State B is not marketable in Member State A because it has slightly less than the minimum alcoholic content prescribed by law in Member State B, compatible with Article 30 et seq. of the EEC Treaty even though no minimum content for

JUDGMENT OF 20. 4. 1983 — CASE 59/82

domestic vermouth is prescribed in Member State A and accordingly had the vermouth been produced in Member State A it would have been freely marketable there?

If Question 1 is answered in the affirmative:

SCHUTZVERBAND GEGEN UNWESEN I. D. WIRTSCHAFT v WEINVERTRIEBS-GMBH

10 The Schutzverband nevertheless maintained that the rule was justified on the ground that German consumers, in particular the veiy large number which visits Italy each year, expect Italian vermouth marketed in the Federal Republic of Germany to be identical to the vermouth marketed in Italy and that they would therefore be misled by Italian vermouth the alcoholic content of which by volume is less than that of the same vermouth drunk by them in Italy.

11 Although it is true that since its judgment of 20 February 1979 in Case 120/78 (REWE [1979] ECR 649) the Court has repeatedly stated that protection of consumers, in particular, may justify obstacles to the free movement of goods resulting from disparities in national rules, the discrimi­ natory nature of the rule in issue excludes application of that criterion, which concernes only legislation governing the marketing of national and imported products uniformly. Therefore in the present case it is not possible to plead consumer protection to exclude Article 30 since the same protection is not given in relation to the national products.

12 The first question must therefore be answered to the effect that a ban on the import of vermouth the alcoholic content of which is less than the minimum precribed in the exporting Member State for marketing on its domestic market, when no such minimum is prescribed for the marketing of vermouth produced in the importing Member State, is to be regarded as a measure having an effect equivalent to a quantitative restriction prohibited by Article 30 of the Treaty.

THE COURT ,

in answer to the questions referred to it by the Landgericht München by order of 20 January 1982, hereby rules:

A ban on the import of vermouth the alcoholic content of which is less than the minimum prescribed in the exporting Member State for marketing on its domestic market, when no such minimum is prescribed for the marketing of vermouth produced in the importing Member State, is to be regarded as a measure having an effect equivalent to a quantitative restriction prohibited by Article 30 of the Treaty.

Pescatore O'Keeffe Everling Mackenzie Stuart

Bosco Koopmans Due Bahlmann Galmot

Delivered in open court in Luxembourg on 20 April 1983.